Kelly has an overwhelming love of animals. She is gentle and caring with them. She is a gentle and shy person. She has never been in trouble, before or since.… She may have a chance to become a worthwhile and productive citizen.
Ellard had no history of trouble with the police or the youth court. Yet the evidence of her role in the attack on Virk included this testimony: It was Ellard who crushed a lit cigarette into Virk’s forehead and punched her head at least twenty-five times. Another witness said that Ellard pushed Virk’s head into a tree and pulled her into the water and held her there (Simmons 2000).
The first trial was not the end for Ellard. Her conviction was appealed. Her defence counsel argued that the Crown’s cross-examination had been unfair, and the British Columbia Court of Appeal agreed. A new trial was ordered and it was held in 2004. The jury was deadlocked. Media reports indicated that, but for a single juror, Ellard would have been found guilty. This resulted in a third trial. The jury deliberated for five days and brought back a decision that would have sentenced Ellard to life in prison with no chance of parole until she had served seven years.
There then came another appeal from Ellard’s defence lawyers, who argued that the trial judge failed to instruct the jury properly, and that certain evidence was not given proper weight. By a 2-1 vote, the British Columbia Court of Appeal agreed, and a fourth trial was ordered. This time, however, the Crown appealed.
By an 8-1 vote, the Supreme Court of Canada restored Ellard’s conviction. Speaking for the majority, Justice Rosalie Abella said that even if the trial judge was in error, there was no reasonable possibility that it would have affected the verdict of guilty (Makin 2009).
Ellard, initially housed in a youth detention facility, has been involved in inmate assaults while incarcerated, including a group attack on a vulnerable person. At no time has she expressed any regrets to the Virk family. Having already served seven years, and now in an adult prison, she soon will be eligible for parole. In this regard, the parole officials are not required to release her. They will review her prison record, among other matters. It will be possible for her to be held in prison for several more years.
Glowatski, in the meantime, served his seven years mandatory prison term. He apologized to the Virk family and, by 2009, was on parole working in the Vancouver area.
In 2009, the Virk family, who witnessed the Ellard trials, apparently were getting on with their lives. As a way of dealing with grief, Virk’s father wrote a book about his daughter’s early years (Virk 2008). He said he wanted to “set the record straight.” Following the murder, the Virks often spoke in elementary and high schools sharing their daughter’s story. Mrs. Virk said, “Our main message is: When someone is being bullied, or you’re being bullied, speak out about it because if one person had made a phone call … things could have been very different. Kids learn from that story” (Armstrong and Makin 2009.)
The Virks’ emphasis seemed to be on preventive action — what individuals could do to stop more serious harm from occurring. It seemed that the judicial system was not central to the means for obtaining justice. Virk’s father said, after a fourth trial was ordered of Kelly Ellard (and before the Supreme Court of Canada set aside that order and restored her conviction), “I think we want to wash our hands of this now and live our life.… No more do I want to place any trust in this system.… It has become like a sad joke” (Mickleburgh 2009).
Other Trials and Sentences in the Case
The remaining six teens were tried and either found or pleaded guilty in individual youth court trials where they were charged with assault causing bodily harm. Their identities were shielded under the then Young Offenders Act. But the sentences handed down by the youth court judge were: one year, nine months, six months, one year probation, and one stayed and one conditional sentence.
There was a history of violence among the six teens. Their identity is referred to by letters, since publication of their names was prohibited:
A., age fifteen, pleaded guilty to a charge of assault causing bodily harm to another girl at the same time as sentencing in the Virk trial. At the time of the second assault, A. was taking a mandatory anger management course at her school. The reason: She had punched a fellow student. A. saw herself as a friend of Ellard and Glowatski. While Glowatski was in jail, A. accepted collect calls from him.
B., age fifteen, saw herself as A.’s best friend. B. said she was drunk the night Virk was murdered. The trial judge gave B. a choice of house arrest — if she agreed to have no contact with A. The alternative was close custody, that is, institutionalization. B. chose close custody.
C., age fifteen, thought Virk had spread rumours about her. C. lived in a group home. The trial judge said that C. had “all the elements, quite frankly, of sociopathic conduct.” C. showed no remorse.
D., age fifteen, lived in the same group home as C. She had a lengthy record of assaults, theft, and breaches of probation. She was angry at Virk for allegedly having sexual relations with her boyfriend.
E., age fourteen, had tried to set Virk’s hair on fire.
F., age fifteen, knew Virk. Apparently, she attempted to have the beating stopped. F. did this at a point when she felt Virk had “had enough.”
(Moore 2000a)
Fighting Back: Students to the Rescue
Ninth-graders from Ontario’s Keswick High School were in a heated game of speed ball in the school gym when one of the players, angry and unprovoked, shouted at his opposite number, Jack Kang: “You fucking Chinese.” He then punched him in the mouth. Jack, of Korean descent and holder of a black belt in tae kwon do, responded with a punch that broke his assailant’s nose. (Jack’s father was a master of tae kwon do, and Jack himself taught children at his father’s studio.)
The assailant, bloodied, dropped to his knees. Jack tried to comfort him. Both boys apologized, but that was not the end of the matter. Police school resources officers laid an assault charge against Jack the morning after the fray. They did so without interviewing witnesses, though they were aware of the racial slur — a matter that they simply put aside.
Police visited the home of Jack’s assailant. Both the boy and his father said they didn’t want to press charges because they didn’t want to “ruin anyone’s life.” (Both boys were honour students with 90 percent averages.) Still, charges were laid. Further, the school principal suspended Jack and, in a letter, stated that he would recommend his expulsion from all schools in the region.
A meeting was arranged. Jack and his classmate were present. Apologies again were made and they shook hands. The principal cancelled his suspension order and expunged the suspension notice from Jack’s record. He also withdrew the recommendation that Jack be expelled from any regional high school, stating that the letter had been sent in error.
Student Response
Students at Keswick High School were aware of the incident and the discipline meted out. They responded by staging a walkout — four hundred students marched from the school protesting the criminal charge against Jack.
The student response got the attention of the media and, through it, the chief of police, Armand La Barge. He ordered another investigation under the direction of a senior hate crimes police unit. Thirty-five witnesses were interviewed. At a large media gathering called by La Barge, he stated that the initial investigation was not “as detailed as it could have or should have been.” He recommended to the Crown that the charge against Jack be dropped. It was an action that the police themselves, in law, could not take.
The
