IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

R. v. Ellard,

 

2005 BCSC 1087

Date: 20050707
Docket: CC981593
Registry: Vancouver

Regina

v.

Kelly Marie Ellard

Ban on Publication 517(1), 648, 631(6) CCC, 110 YCJA, 38 YOA

Inherent Jurisdiction

Ban on names of third party students extended to

any students the school counsellor names

 

Before: The Honourable Mr. Justice Bauman

 

Oral Reasons for Sentence

 

July 7, 2005

Counsel for Crown

C.A. Murray
L.M. Baskerville

 

Counsel for Defendant

P.J. Wilson, Q.C.
M. Daneliuk

 

Place of Trial:

Vancouver, B.C.

 

[1]                THE COURT:  Kelly Marie Ellard is before the court for sentencing following her conviction by her jury of the second degree murder of Reena Virk.  The facts of that murder are notorious and I will not set them out in their tragic detail.

[2]                What has shocked the community, of course, is the senseless, virtually remorseless barbarity of the crime, a crime which saw a number of young teenaged women and one male viciously attack, kick and beat a defenceless girl, Reena Virk, a young woman who sadly was simply trying to find her place within her peer group.

[3]                The initial beating of Reena Virk at the south end of the Craigflower Bridge by the so-called Shoreline 6 and Kelly Ellard and Warren Glowatski was shocking by itself, but what followed on the north side of the bridge is surely beyond the ability of most in a civilized society to explain or understand.

[4]                Ms. Ellard, your jury has clearly concluded that you followed Ms. Virk across the Craigflower Bridge with the intention of continuing the vicious beating of her, that you did so in Gorge Park, and then, with the assistance of Mr. Glowatski, you dragged Ms. Virk into the Gorge Waterway, and, over the course of minutes, you intentionally held Ms. Virk’s head under water until she drowned.

[5]                Far from feeling remorse for this senseless murder, it is apparent from the evidence that over the course of the next weeks you continuously bragged of your crime to your extended circle of friends.  You seemed proud of your actions.  Indeed, you grossly exaggerated the injuries which you claimed to have inflicted on Ms. Virk in an effort, I find, to feed your misguided desire for attention and reputation.

[6]                With a conviction for second degree murder, the automatic sentence is life imprisonment.  The only issue before me in that context is choosing the period between five and seven years during which Ms. Ellard will be ineligible to apply for parole.  I stress the phrase “eligible to apply.”  Whatever period of years I choose simply governs when Ms. Ellard is allowed to apply for parole.  Whether she, in fact, is released on parole and when is for the National Parole Board to decide.

[7]                In setting the period of parole ineligibility, the Crown stresses the aggravating factors surrounding this crime and asks that I set the ineligibility period at the upper end of the range.  The defence, on the contrary, asks that I set the period at five years and stresses that Ms. Ellard has made progress in her life while on bail, subject to stringent conditions.

[8]                The applicable provision in the Criminal Code is s. 745.5.  It reads:

At the time of the sentencing under section 745.1 of an offender who is convicted of first degree murder or second degree murder and who was under the age of sixteen at the time of the commission of the offence, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court, may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made pursuant to section 745.3, by order, decide the period of imprisonment the offender is to serve that is between five years and seven years without eligibility for parole, as the judge deems fit in the circumstances.

I will deal with these statutory considerations in turn.

[9]                At the conclusion of the trial, the jury declined to make a recommendation as to the period of parole ineligibility.

[10]            I have already discussed the nature of the offence and the circumstances surrounding its commission.  I agree with Ms. Murray’s submission that at least these aggravating factors are present:

1.         The murder followed a prolonged, brutal, swarming attack on the defenceless victim, and Ms. Ellard played a central role in the initial swarming and, of course, the crucial role in the final murder;

2.         There is evidence of some planning beforehand by Ms. Ellard.  This was a deliberate murder, not one committed in the heat of the moment;

3.         Ms. Ellard’s conduct after the murder shows her utter disregard for the life which she has taken.

[11]            It remains to consider the age and character of Ms. Ellard.

[12]            At the time of the offence, Ms. Ellard was 15 years of age.  She has no previous criminal record, and, indeed, she does not appear to have otherwise been involved in the criminal justice system, save in respect of the New Westminster incident described below.

[13]            Just who Kelly Ellard is, then and now, is the conundrum which I face on this sentencing.  A number of starkly different assessments of her have been made over the years.

[14]            In February 1998, on her adult court transfer application, Dr. Stanley Semrau, a psychiatrist called by the defence, said this:

The allegations regarding Kelly Ellard’s involvement in the death of Reena Virk portray a picture of the most extreme callousness and brutality with an apparent lack of any understandable motivation.  Someone who could commit such acts on their own initiative and in a normal state of mind would clearly be extremely disturbed in their personality and emotional structure.  I am unable to reconcile this portrayal of the crime with the psychological makeup of the Kelly Ellard who I have assessed.  It is therefore extremely difficult to make any meaningful statements regarding motivation regarding such alleged acts on her part.

[15]            In the same vein is this opinion expressed by a psychologist, Dr. Mel Strangeland, in the same hearing:

It is my impression that Kelly would not have committed such a crime strictly on her own inclinations.  She does not present the type of background and personality profile that one would expect of a person who would commit such an act.  I would expect that she would have committed this crime only with the encouragement and through the strong influence of another person or group of people.  Given that she appears to have a reasonable capacity for empathy, she would have had to engage in intense levels of denial or to be in a dissociated state to carry out the brutal assault described or the drowning of the victim.  She denied drinking or using mind-altering drugs on the night in question.  I do not have the information necessary to describe what her state of mind would have been upon commission of the crime.

[16]            The many supportive letters from Ms. Ellard’s extended family universally voice the doubt that the Kelly Ellard these people know could ever have committed such a crime.

[17]            On the other hand, Dr. Lori Vogt, a Consultant Adolescent Forensic Psychiatrist with Youth Court Services, writing again in February 1998, opined:

Personality testing confirms the clinical impression of the absence of major psychiatric illness and highlight the presence of an antisocial or delinquent value system, including an unwillingness to accept responsibility for her own actions and a degree of rebelliousness which put her at high risk for future delinquent behaviour.  This risk is heightened when the individual is under the influence of alcohol, drugs or the peer group.

Kelly has admitted to an escalating pattern of substance abuse, including use of hallucinogens and alcohol over the past two years.  She has also been associating with various delinquent peer groups, which is a concern to her family and the assessment team.  While in custody, despite her declarations of trying to look good for the psychiatric assessment team, her behaviour has been sufficiently insubordinate so that she has not merited transfer to the honour ward of the custody centre, and there has been one incident report written regarding veiled threats that Kelly made to appear.  Her interview behaviour with the writer has been at times manipulative and bordering on aggressive, and the stories that she tells have frequently been inconsistent and contradictory to her previous statements.

Dr. Vogt’s Axis I diagnosis for Ms. Ellard was “conduct disorder moderate to severe.”

[18]            I interject to record that these opinions are before me on this hearing and they are found in Exhibit 1, tab 9.

[19]            Dr. Vogt’s assessment coincides with the assessment which I have developed with the benefit of evidence touching on Ms. Ellard’s conduct over the last six to seven years.

[20]            I should note that my colleague, Justice Morrison, had a more optimistic view of Ms. Ellard and her prospects than do I.  This view was expressed in Justice Morrison’s sentencing of Ms. Ellard in 2000, after her first trial and conviction.

[21]            Clearly, on this hearing, I have had the benefit of a more complete review of Ms. Ellard’s life before and after this crime.  As well, I have had the benefit of a review of her conduct since the year 2000, and, of course, I have had the evidence of Mr. Glowatski.

[22]            In that review, I have found the Corrections records tendered by the Crown to be helpful.  The evidence before me leads me to conclude that these records are carefully made in a timely manner by trained Corrections staff.  To the extent that they contain hearsay, I note s. 723(5) of the Code, which provides that hearsay evidence is admissible at sentencing proceedings.

[23]            I have found the school records less helpful.  In particular, I find unreliable the evidence surrounding the G.O. incident.  The conduct of the school officials at the time of that incident simply does not gibe with the seriousness of the alleged assault described by Ms. Calderwood.

[24]            I highlight these incidents disclosed in the Corrections records, which I accept as having occurred on a balance of probabilities.  To the extent that they give insight into Ms. Ellard’s character, they are relevant.  They are not aggravating factors, so the lower burden of proof is applicable.  I list these:  Ms. Ellard’s comment to her mother in November 1997 about Ms. Virk to the effect, “Maybe she deserved to die”; the monitored comment to another youth in December 1997, “Until I’m sentenced I’m going to be good because I have to.  After that I’m going to go psycho in here”; the intimidation and abuse of Rose Hesketh by Ms. Ellard and another youth in March 1998; the four-on-two assault in April 2001, apparently set up by Ms. Ellard; the threatening behaviour towards inmate H. in July 2004; the March 2005 contraband incident at Surrey Pretrial, Ms. Ellard could not play by the rules even in the throes of her murder trial.

[25]            The Crown has led evidence of the incident in Sapperton Park involving Ms. Ellard and May Klaiber in February 2004.  The Crown appeared to accept the burden of proving these events beyond a reasonable doubt.  I question whether that standard applies as, again, these events are not aggravating factors in the Virk murder, rather they offer insight into Ms. Ellard’s character.

[26]            Nevertheless, I am satisfied to that standard that Ms. Ellard, seven years after the Virk murder, continues to place herself in situations which bring out her antisocial behaviour.  She was clearly drinking and with another inmate and she was involved - I do not say criminally, that is for another judge - but she was involved in a scenario where a vulnerable individual was violently set upon in a group situation.

[27]            These are only a few of the many incidents in Ms. Ellard’s recent life that provide one with evidence as to her character.  In my view, they support Dr. Vogt’s opinion that Ms. Ellard presents with an antisocial or delinquent value system, that her unwillingness to accept responsibility for her own actions and her rebelliousness put her at high risk for future delinquent behaviour.

[28]            R. v. Shropshire (1995), 102 C.C.C. (3d) 193, is one of the leading cases on relevant considerations in determining the period of parole ineligibility.  There the Supreme Court of Canada made it clear that denunciation, future dangerousness, and general and specific deterrence are relevant factors.  I have these matters to mind here.

[29]            The Corrections’ records filed in this proceeding record this entry concerning Ms. Ellard on 2 February 2005:

Inmate does interact and socialize on the unit, but also spends a lot of time sleeping.  Inmate has no ambition to attend any programs, yard or school.  Inmate made the statement, “You guys made me like this.  Why should I do anything?”

[30]            No, Ms. Ellard, you alone are responsible for your situation, and until you reach this elementary conclusion you will not grow; you will not rehabilitate; you will be forever stalled in this nightmare which you have created.  Regrettably, I do not see any of the progress alluded to by Mr. Wilson towards rehabilitation and arising out of your time on bail subject to supervision.  This is not a case like that before my colleague Justice Groberman in Chan, 2004 BCSC 1581.

[31]            Ms. Ellard, for this crime, in light of its aggravating circumstances and stressing the need for denunciation and deterrence, I sentence you to life imprisonment, and I set the period of imprisonment which you must serve before eligibility for parole at seven years. 

[32]            There will be an order for a DNA sample and a lifetime weapons ban under s. 109 of the Criminal Code of Canada, and unless there is anything arising, these proceedings are concluded.

“R. Bauman, J.”
The Honourable Mr. Justice R. Bauman