For those who don’t know or don’t remember, in 1997 Reena Virk, a 14 year old teenager, was viciously beaten by a group of classmates and murdered by her peers Kelly Ellard and Warren Glowatski. Reena, like many of us at that age, was struggling socially, and her tormentors, like some of us at that age, were cruel and ruthless. Sadly, bullying and high school cruelty ended in Reena’s murder at the hands of 15 year old Kelly Ellard and 16 year old Warren Glowatski.
This week, nearly 19 years after Reena’s murder, I was reminded of the scene in the Shawshank Redemption between Ellis Boyd Redding (Red) played by Morgan Freeman and a parole board interviewer. The application of Kelly Ellard, now 34 years old, for release on “day parole” after 14 years in jail, is reminiscent of the scene reproduced below.
Parole Board Interviewer:
Please, sit down. Ellis Boyd Redding, your files say you’ve served 40 years of a life sentence. You feel you’ve been rehabilitated?
Red:
Rehabilitated? Well, now, let me see. You know, I don’t have any idea what that means.
Parole Board Interviewer:
Uh, well, it means you’re ready to rejoin society –
Red:
– I know what you think it means, sonny. To me, it’s just a made up word, a politician’s word, so that young fellas like yourself can wear a suit and a tie and have a job. What do you really wanna know? Am I sorry for what I did?
Parole Board Interviewer:
Well, are you?
Red:
There’s not a day goes by I don’t feel regret. Not because I’m in here, or because you think I should. I look back on the way I was then, a young, stupid kid who committed that terrible crime. I wanna talk to him. I wanna try to talk some sense to him — tell him the way things are. But I can’t. That kid’s long gone and this old man is all that’s left. I gotta live with that.
***
And so it went for Ellard and her interlocutor, Mr. Ian Mackenzie, a member of the parole board and an ex-police officer. According to the press, Mackenzie asked Ellard who was responsible for Reena’s murder. Ellard answered, “I believe I am.” That was not enough for Mackenzie, who implicitly criticized Ellard for not publicly accepting responsibility earlier and dismissed her acceptance of responsibility as “strategic” rather than from the heart. The fact that Ellard wrote a letter to Reena’s family four years ago accepting responsibility for Reena’s death did not seem to move Mackenzie. Nor did it matter that Ellard had completed various programs in prison, was deemed a “low risk to reoffend”, and had not been involved in any violent incidents in prison for several years.
At the end of the day, Ellard’s acknowledgment of responsibility was not to the Parole Board’s satisfaction. It is difficult to know why. On the one hand, perhaps Ellard has indeed failed to accept full responsibility for her actions. On the other hand, perhaps she hasn’t. Ellard’s only failing might be in her ability to articulate her degree of responsibility and level of remorse to the liking of the Parole Board.
Of course Ellard does not naturally attract sympathy. Reena’s murder was tragic and heartbreaking, and her family’s suffering was drawn out by Ellard’s multiple appeals, three trials, and failure to publicly accept responsibility for her actions until very recently. The public’s visceral reaction is to demand Ellard’s incarceration for life or worse. What is lost in all of this is the purpose of our criminal justice system.
Sentencing is not about “an eye for an eye” or “revenge”. It is about the principles of sentencing mandated by the Criminal Code, including general deterrence, specific deterrence, denunciation, rehabilitation, public safety, and proportionality. In practical terms, what does this mean? It means that a jail sentence should only be as long as necessary to express society’s condemnation of an abhorrent act, to deter others and the offender herself from committing similar acts, to protect the public, and to facilitate the offender’s rehabilitation. It is not to impose a fate on the offender similar to the fate of the victim. Some people find this offensive, but it is the law. The system is not designed to ensure that Ellard loses her life by spending the rest of it behind bars. Assuming the only purpose of sentencing was to discourage others from committing the same crime, keeping Ellard in jail for the rest of her life would not even meet that objective. In fact, study after study has shown that “general deterrence” – deterring others from committing serious crimes – is not enhanced by lengthening prison sentences. Is more than 14 years necessary to denounce her crime? Parliament says that 7 years might actually be enough.
In the case of youth who have committed crimes (persons under 18), there is also a recognition that young people are not as morally culpable for their actions as adults for the simple reason that minors lack the judgment and self-control that comes with age and full physical and mental maturity.
Ellard committed a horrific act at the age of 15. It was inexcusable and she will have to live with it for the rest of her life. But she is 34 years old now and has spent 14 years in jail – in fact, most of her adult life. The court has imposed the maximum sentence on her – life in prison without eligibility for parole for 7 years. Those seven years have come and gone and Ellard has now spent double that amount of time in jail. Whether Ellard is released or not is no longer about punishing her or denouncing her crime. It is about whether she can be released without creating an undue risk to the public.
You can’t blame Ellard for saying “enough is enough already”, and it’s unfortunate that Mackenzie accuses her of sounding “very entitled” for saying so. The truth is that Ellard is right. There is nothing more to be accomplished by keeping Ellard in prison. It is time for Ellard to begin the process of gradual reintegration into society, and in seeking “day parole” rather than “full parole” she was proposing an incremental return to society where she would remain under close supervision in a halfway house. The slightest of missteps in that environment would result in her immediate and indefinite return to jail under our parole system. People forget that “life means life.” Supervision of an offender serving a life sentence never ends, and the specter of returning to jail is never far away.
People don’t realize that Ellard’s co-accused, Warren Glowatski, was released on parole in 2010. They also don’t realize that the vast majority of offenders serving life sentences, apart from the likes of Clifford Olson, Robert Picton, and Russell Williams, are one day released. If as a society we come to the conclusion that this is wrong, then Parliament should consider amendments to the Criminal Code. In the meantime, we have to accept that after the minimum period of incarceration on a life sentence has been served, release is appropriate where the danger to the public is manageable and where offenders have been successful in their efforts at rehabilitation and can continue their rehabilitation in the community. Prolonged incarceration of a person who will ultimately be released is actually in neither the offender’s interest nor the community’s, for the simple reason that prolonged incarceration is destructive.
Everyday criminal defence lawyers must combat the myths that surround the treatment of criminals to ensure that the principles of sentencing mandated by law are understood by the public. It is even more important that criminal defence lawyers advocate for evidence-based law and policy in criminal law over vindictiveness and harshness.
