Canada's highest court has reinstated Kelly Ellard’s second-degree murder conviction for the death of Reena Virk.

Virk was 14 years old when she was swarmed by eight  teenagers at the southern end of the Cauliflower Bridge in Esquimalt in 1997. She struggled to cross the bridge where she was attacked again and drowned in the Gorge waterway.

Six were convicted in youth court for the assault on the south side of the bridge. Warren Glowatski was convicted in June 1999 of participating in the killing of Virk on the north side of the bridge. Ellard, who  was 15 at the time of the attack,  was convicted in 2000, but it was overturned on appeal.

Her second trial ended in a mistrial in 2004.  Ellard  was convicted by a jury in a third trial in 2005 and sentenced to life in prison. Glowatski was a key Crown witness.

Another witness saw the initial assault, and testified that she saw Virk and Glowatski cross the bridge.

The B.C. Court of Appeal set aside the conviction and ordered a fourth trial. It based this on  trial judge Robert Bauman's  failure to provide a limiting instruction to the jury on what they could make  of prior inconsistent statements by this witness.

During cross-examination by the defence, this witness gave conflicting stories about whether or not she observed Ellard and Glowatski walking across a bridge. Following this cross-examination,  Bauman permitted the Crown to re-examine the witness to demonstrate that she had made consistent statements.

In a decision supported by seven other justices, Supreme Court of Canada Justice Rosalie Abella wrote that “there was no reasonable possibility that the trial judge’s error had any impact on the verdict”.

“It was an accepted fact at the trial that the victim crossed the bridge,” Abella stated in the decision. “Whether or not the Crown’s witness claimed to have seen her do so could have no bearing in any disputed issue, and, in the circumstances of this case, could have had little effect on her general reliability. The real question at trial—whether the witness had seen the accused and G cross the bridge—was not addressed in the re-examination.”

Therefore, the absence of a limiting instruction by the trial judge did not amount to a “legal error”, the Supreme Court of Canada ruled.

The only dissenter, Justice Morris Fish, stated that the “sole purpose” for re-examining the witness was to enhance her credibility.

“It’s entirely possible, if not probable, that the jury would have seen the substance of the re-examination as clearly relevant to a crucial factual issue: whether it was the accused who accompanied G in following the victim across the bridge,” Fish wrote.

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