Kelly Ellard is seen in an artist's drawing at her trial in B.C. Supreme Court in Vancouver on July 7, 2004. (Jane Wolsak/Canadian Press)

The Supreme Court of Canada has tossed out an unusual bid to stop it from hearing a Crown appeal against holding a fourth trial in the murder of Reena Virk a dozen years ago.

A five-judge panel of Canada's top court ruled unanimously Monday that B.C. prosecutors can proceed with their appeal before the high court of a split lower-court ruling to retry Kelly Ellard in the beating and drowning death of 14-year-old Virk.

The B.C. Appeal Court ruled 2-1 last September that the judge presiding over Ellard's third trial made a mistake in the handling of some witness testimony. The appeal court overturned Ellard's conviction, saying a fourth trial was warranted.

A split decision at the appeal level normally triggers an automatic appeal to the Supreme Court of Canada.

But defence lawyer Brock Martland, in a video-conference hearing with the high court in Ottawa, argued Monday the dissenting judge did not differ with the other two on matters of law so the appeal should not be automatic.

Martland said afterward he was not surprised to lose but felt having the application heard clears away any jurisdictional questions that could have stalled the high court hearing, which could take place in April or May.

If the Supreme Court upholds the B.C. Appeal Court's ruling it would force yet another trial.

Teens swarmed and beat Virk

Virk's body was found floating in Victoria's Gorge waterway Nov. 22, 1997, about a week after her family reported her missing.

A police investigation discovered Virk had been swarmed and beaten by a group of eight teenagers, most of them girls, the night of Nov. 14. Her death would prick the conscience of Canadians and spark an intense national debate about youth violence.

Six teen girls were convicted of assault-related charges after the initial attack.

But what happened after the swarming became the focal point of second-degree murder charges against Ellard, 15 at the time of Virk's killing, and 16-year-old Warren Glowatski. Both were tried as adults.

Glowatski was convicted and granted parole in 2007 after serving the maximum seven-year term handed out for young offenders convicted in adult court.

A jury found Ellard guilty at her first trial but the verdict was overturned on appeal, and a second trial ended in a hung jury. She was convicted again at her third trial.

In court, jurors heard that after her initial beating, Virk stumbled back across the bridge spanning the Gorge.

Second attack

Glowatski testified Ellard joined him in following her across the bridge and attacking her again. He said Ellard then dragged Virk into the water and held her head under the water.

The defence attacked Glowatski as a liar and questioned the evidence of other teens who said they saw Virk, followed by Glowatski and Ellard, cross the bridge. They didn't see anything, but created the scene based on rumours that raced around the teens' school after Virk disappeared, the defence claimed.

The defence said the B.C. Supreme Court judge trying the case should have given better instructions to the jury on how to weigh the consistency of that evidence.

"The way this issue was left with the jury gave rise to a real concern about an unfair process for Ms. Ellard and it opened the door for improper reasoning by the jury," Martland said after Monday's hearing.

Martland said he's aware there might be public frustration over the possibility of a fourth trial. But he noted that, not counting a period when she was out on bail, Ellard has racked up almost seven years in custody since her initial conviction.

"Despite all these twists in the road and despite members of the public being perhaps unhappy at the prospect of a new trial and not having a final answer, in practical terms this young woman has spent many, many years in jail as a result of this." he said. "Anything that happens in the Supreme Court of Canada won't change that fact."