Should cyberbullying be a criminal offence?
The Murder of Reena Virk
On November 14, 1997, Reena Virk, age fourteen, was lured to a quiet park in Victoria, British Columbia, where she was swarmed, brutally beaten, and killed by a group of seven girls and one boy, aged between fourteen and sixteen. Her body was found a week later submerged in water under a bridge. The cause of death, according to the pathologist, was not drowning. Rather, it was the beating and the injuries she had sustained, which the pathologist testified, were similar to “those which would result from a car being driven over a body.”
The autopsy was able to determine that Virk had been kicked in the head eighteen times and beaten about the body so severely that tissue was crushed between the abdomen and the backbone. The attack itself came in two stages. First was a severe beating from which Virk tried to flee. She was caught and dragged underneath a bridge. There, the second phase of the attack took place. Her forehead was burned with a cigarette. Attempts were made to cut her hair. Her head was held in the water, and there was evidence that one of the group delivered a karate chop to Virk’s windpipe.
Reasons for the Attack
It was clear that some of the attackers were angry with Virk. One teen claimed that Virk had spread rumours about her. Another said that Virk had sex with her boyfriend. But, for all the investigation and the trials that later occurred, there was no single reason for the swarming. It is questionable that Virk willingly would have gone to meet the other teens if she had reason to fear for her safety.
The Leaders of the Attack and Their Trials
According to the evidence, fifteen-year-olds Kelly Ellard and Warren Glowatski led the attack. Both were bound over to adult court for trial. Neither had any long-term relationship with Virk; based on the evidence, their relationship with Virk could be called brief, at most. Glowatski was tried first, and he was found guilty of second-degree murder. He was given a life sentence with the possibility of parole no earlier than seven years thereafter.
Glowatski had been abandoned by his father, and his mother was an alcoholic. He lived with a friend and was described as “mean,” especially when he was drunk. Glowatski described himself as a gang member. He was called upon to testify at Ellard’s trial, but he refused to do so. His reason: His sentence was under appeal. And perhaps more to the point, he feared for his own life if he testified.
Ellard was seventeen at the time of her first trial, which concluded two years after the fatal attack on Virk, and was found guilty of second-degree murder. She was given a prison sentence in April 2000 that made her eligible for parole in five years. At the time of sentencing, the trial Justice Nancy Morrison said:
Kelly, you are young and intelligent and you have a wonderful family.… They believe in you and I can only say that you should never let them down.… You owe it to Reena Virk to live a life that is exemplary and you owe it to yourself.… 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.,