A Guilty Verdict against the Odds:
Privileging White Middle-Class Femininity
in the Trial of Kelly Ellard
for the Murder of Reena Virk 

Brenna Bhandar, LL.B.
September 2000

INTRODUCTION

On April 20, 2000, Kelly Marie Ellard was sentenced to life imprisonment for the second-degree murder of Reena Virk, and required to serve five years in prison before becoming eligible for parole. Ellard was the last of several youths to be convicted and sentenced in the gruesome beating death of Reena Virk, who was murdered on 14 November, 1997. Warren Glowatski, one of the youths who was involved, was convicted of the second-degree murder of Reena Virk June 2, 1999.⁽¹⁾

The hatred that drove this gang of youths to brutally beat one of their peers - and the hatred that drove Ellard and Glowatski to pursue a severely beaten Reena Virk and "finish her off" - was absent from the legal discourse of the criminal trials. Similarly, the systemic racist-sexist and dominant constructs of femininity that made Reena Virk an object of hate for those who committed the assault and murder were completely absent from the trial of Ellard. Even though the racism and sexism that informed the murder of Virk was a central part of the factual matrix of this case, it was ignored. Whereas the hatred and relations of power that informed this crime should have impacted the sentencing decision, the role of racism and sexism in the murder were explicitly denied by the trial judge.⁽²⁾

Dominant ideologies of race, gender, femininity and class formed the bedrock of the factual matrix in which this horrible crime occurred. Despite the complete absence of this social context in the legal discourse of Ellard's trial, dominant ideologies of race, gender, femininity and class did impact on several aspects of the trial. For example, Ellard, who fits into the dominant construct of white, middle-class, heterosexual femininity was posited as a good, innocent girl by the defence, to be juxtaposed with several of the Crown witnesses whose credibility was consistently undermined by defence counsel on the basis of racialized, gendered and class-based stereotypes. In fact, one aspect of the defence's theory of the case was that Ellard had merely fallen into a "bad peer group" who were now framing her for the crime. This view was echoed in the reasons for sentence, where the trial judge pointed out that at the time the crime was committed, Ellard, who has an "otherwise good character," was hanging out with a peer group that "could only cause one to question the meaning of peer" (Paragraph 19).

I will first attempt to lay out the socio-political context in which Reena Virk lived and which formed the backdrop to her murder, a "backdrop" that was largely absent from the legal proceedings. While race and racism, its interlocking/intersections with sexism, class based discrimination and heterosexism informed the trial of Kelly Ellard and her treatment within the criminal justice system, the way in which the murder of Reena Virk was racialized and gendered was absent, and ultimately explicitly denied by the main actors in the legal arena. After setting out some of the social context factors that informed the crime, I will share some of my observations about Ellard's trial.

EXPLORING THE MISSING PIECES OF THE FACTUAL MATRIX: VIOLENCE, "COMMUNITY," AND RACIALIZED GIRLS

The circumstances surrounding Reena Virk's death, as well as the brutal nature of the assault and murder, reflect and encapsulate the myriad forms of violence experienced by girls and young women of colour.⁽³⁾ The beating and murder of Reena Virk, and the narrative about her life that has emerged in the aftermath tells us about the violence inflicted on young women of colour and girls at the hands of people in the various "communities" in which they live. Reena Virk, who attempted, or least was perceived by some, to transgress the boundaries of these various communities paid for these transgressions with her life.

The mainstream media have generally described Reena's life as one fraught with difficulties because she was "caught between two cultures;" or because she did not "fit in" primarily due to her colour, weight, and facial hair. Yasmin Jiwani has aptly responded to this assertion that Reena was marginalized due to her failure to "fit in," by asking the question "fit into what?" The framework that I seek to employ in this paper recognizes, as a starting point, the "what" that Reena apparently did not fit into: Reena did not fit into the dominant norm of white, middle-class (heterosexual) femininity. Her mere existence as a brown female, with facial hair, and with a large body, represented deviance from this dominant norm. I would also add that within the South Asian community, the dominant construct of femininity also requires women to be thin, fair skinned, modest, and heterosexual.

The alleged act that led to her murder, that of stealing a phonebook from a girl, and calling boys and spreading rumours was perceived by her peers as yet another, more unforgivable transgression; the brown, large female (who was supposed to remain de-sexualized or a-sexual) was asserting her sexuality, thereby infringing on the territory of the white girl whose address book she allegedly took.⁽⁴⁾

Again, Reena Virk was not only transgressing the boundaries of white, middle-class heterosexual femininity, she was also transgressing the boundaries of the South Asian community. Intimately connected to the control of women's sexuality, dominant norms of gender and femininity emphasize the vital importance of a young woman's virginity and chastity until such time as she is ready to be married to a man. (This, of course, is no different than the attributes ascribed to the "upstanding middle-class woman" within dominant norms of gender and class of the dominant racial group.) In the eyes of most South Asian parents, staying out late, smoking cigarettes, and associating with males, are largely seen as activities unsuitable for young South Asian women or girls. Reena's refusal to live by the rules of her parents, in part, led to her move to foster care after a brief stint at her maternal grandparents' home.⁽⁵⁾

At this juncture, it is essential to discuss the notion of "community." Contrary to popular wisdom and mainstream multiculturalist discourses that seek to naturalize the concept of community, I submit that the concept of community is not a natural entity. Rather, as Himani Bannerji has written, "we need to remember that it [the concept of community] is a political and cultural-ideological formation reliant upon social relations which are the bases of social life, and not a spontaneous or natural association of people."⁽⁶⁾ Bannerji analyzes the ways in which external forces, dominant ideologies and hegemonic discourses construct discrete and bounded "ethnic" or "cultural" communities and attribute various characteristics to these communities based on racist, patriarchal and colonialist ideologies. "Ethnic" or "cultural" communities exist in relation to the dominant, implicit and taken-for-granted "white" community, maintaining an inherently hierarchical, dualistic relationship between Canadians (read: white) and non-whites or people of colour.⁽⁷⁾

Bannerji analyzes the ways in which so-called "ethnic or cultural" communities also create and sustain themselves, based on reinvented histories, a problematic concept of "tradition," and common linguistic and religious practices. In order to maintain the idea of a cohesive, unified, and natural entity, "the communities themselves also suppress internal sources of division and seek to present themselves … as seamless realities."⁽⁸⁾ The existence of an apparently cohesive community relies upon the silence of its members about difference and power relations. Bannerji outlines how the concept of "tradition," and its interrelationship with patriarchal, class-based and gendered relations of power are particularly central to the construction of the "traditional cultural community," such as the South Asian community on the West coast.⁽⁹⁾ Thus Reena Virk could be perceived by the mainstream media as not willing to live within the confines of a "traditional," or "strict" South Asian culture. She was also most likely subject to (if not painfully aware of) the sexist and patriarchal expectations of the South Asian community that are justified in the name of "tradition" or "culture."⁽¹⁰⁾

Situating (what we know about) Reena Virk's life in this context reveals some of the violence and oppression that she was subject to, and dispels the simplistic notion that Reena was contending with the pressure of being "caught between two cultures." Reena had to deal with the violence that is inflicted daily on those who don't fit into the dominant construct of white, middle class, heterosexual femininity (one which requires young women to maintain a body weight and size bordering on anorexic, and to be devoid of any body hair, in order to be considered "beautiful" or sexually desirable). Reena Virk had to contend with the patriarchal and racist codes inscribed on her as a South Asian girl, by the dominant white community. Reena also had to contend with the patriarchal standards and codes of conduct imposed on her by the South Asian community itself. The religious background of her parents and grandmother, who are Jehovah's Witnesses, adds another dimension to this discussion of the various "communities" that Reena had to contend with, although I do not discuss it in any detail here.

THE CONCEPT OF CREDIBILITY AND THE FINDING OF "FACTS": HOW THE LAW PERPETUATES DISCRIMINATION

One reason for the absence and denial of the role of racism in the murder of Reena Virk throughout the trial of Ellard is the inability of the law, with its foundations rooted in "legal liberalism" to acknowledge systemic and pervasive racist discrimination.⁽¹¹⁾ Many scholars have also sought to show how law itself, and the liberalism that underlies the main tenets of the legal system perpetuate and maintain various relations of power. These relations of power are maintained in diverse ways. For the purposes of this paper, I will explore some of the more mundane and obvious facets of the legal system that rely upon and perpetuate dominant discourses of race, class and gender.

The main objective of this paper is to describe and analyze how the treatment of Kelly Marie Ellard, and the Crown and the defence witnesses, were informed by racist, sexist and class-based discourses. Working within the framework that I have outlined above, I will focus on how the credibility of the witnesses was constructed and evaluated by the lawyers and trial judge. The ways in which various witnesses were racialized and criminalized by both the defence and Crown counsel reveals a sad reality about the current state of legal practice: in this case, as in many, those responsible for creating the legal arguments and the overall framework of the trial shared a worldview based on dominant ideologies of race and racism, gender and class.⁽¹²⁾

I will also examine the reasons for sentence of the trial judge, which in my view, illustrate the immense power of the law to deny the reality of systemic racism. It is my contention that the Ellard case reflects, at the least, the inability and unwillingness of Canadian institutions (in this case the legal institution and the State), to acknowledge the existence of pervasive, systemic racism in Canada.

It is first necessary for me to articulate what I mean by the words "ideology," "racist ideologies," and "institutionalized" or "everyday racism." To speak of "institutionalized racism" seems to imply that there is a type of racism that is not institutionalized; that is free floating and nebulous, hard to locate. Rather, institutionalized racism can be described as "well entrenched attitudes, carefully taught and assumed, usually unconscious and which are exhibited in often subtle but hostile racist behaviour towards people of another class and colour."⁽¹³⁾ Roxana Ng points to the long historical process that gives rise to institutionalized racism, and argues that this system of domination becomes taken for granted over a long period of time. Peoples' prejudicial attitudes and practices become commonplace, the "normal way of doing things."⁽¹⁴⁾

This existence of well entrenched, pervasive racist attitudes and beliefs can also be described as constituting racist ideology. While the term ideology appears to connote more of an abstract, almost academic phenomenon, it actually helps to describe the kind of encoded, yet very "real" racism that one encounters on a daily basis. Without launching into a detailed exposition on what constitutes ideology, suffice it to say that the concept of ideology entails an exploration between ideas, attitudes, beliefs, and economic and political forces, which are "historically constructed in conjunction with and in relation to material and cultural conditions and relations of power."⁽¹⁵⁾

Ng treats racist ideology as "common sense" so as to draw attention to the norms and behaviours which have become ordinary ways of doing things.⁽¹⁶⁾ In other words, racist ideologies and "institutionalized racism" (as parts of the same phenomenon) operate at a level that inform common, everyday interactions between people. And perhaps this notion of "common sense" racism poses the most difficult challenge for thinking through anti-racist strategies.

Whereas clearly stated racism definitely exists, the more problematic aspect for us is this common sense racism which holds the norms and forms thrown up by a few hundred years of pillage, extermination, slavery, colonization and neo-colonization. It is in these diffused normalized sets of assumptions, knowledge, and so-called cultural practises that we come across racism in its most powerful, because pervasive, form.⁽¹⁷⁾

Keeping these concepts in mind, I begin with an examination of two pre-trial facts that are of import to this analysis of the Ellard trial. The first is the fact that she was raised to ordinary court from youth court. The second fact is that she was placed under house arrest rather than remaining incarcerated while awaiting her trial. The fact of her transfer to ordinary court is pertinent as the Youth Court Judge assessed Ellard's character, the nature of the offence and the circumstances surrounding its commission, among other factors. The B.C. Court of Appeal upheld the decision of the trial judge.

The Youth Court Judge considered all of the relevant factors under s.3, s.16(1.1) and s.16(2) the Young Offender's Act, R.S.C. 1985, c.Y-1 (the "Y.O.A."), in determining whether Ellard ought to be raised to ordinary court.⁽¹⁸⁾ These factors include the nature of the crime and the circumstances in which it was committed; the character of the accused; the age of the accused; the adequacy of the Y.O.A. and the Criminal Code to deal with the young person; the rehabilitation of the accused; and the issue of protecting society from the accused. Ellard's age did not weigh in favour of transfer, but the trial judge found that it did not weigh heavily against transfer either. Ellard's maturity and youth court history weighed against a transfer. The trial judge placed greatest emphasis on the factor listed under s.16(2)(a), which is the seriousness of the alleged offence and the circumstances in which it was allegedly committed.⁽¹⁹⁾ The Court of Appeal, in a unanimous judgment rendered by Mr. Justice Hollinrake, stated that they agreed with the trial judge's focus on this particular factor, s.16(2)(a).

On the issue of Ellard's character, the Youth Court Judge preferred the evidence of Dr. Vogt of Youth Forensic Services, the school counsellor Barbara Smith, a youth worker named Chris Pollard, and Ellard's peers. The defence tendered expert evidence of a psychologist and a psychiatrist, as well as letters of support from Ellard's mother and stepmother. The expert evidence put forth by defence counsel painted a very normal psychological picture of Ellard. In fact, one of the defence experts, Dr. Semrau, speculated about the possibility of Ellard having been under the influence of some drug if she had indeed committed the murder. Neither of the defence witnesses considered Ellard's behaviour to be disordered.⁽²⁰⁾

The evidence of Chris Pollard, Dr. Vogt, and Barbara Smith, on the other hand, described Ellard as having a moderate to severe conduct disorder and a substance abuse problem. She had a great deal of anger and had told the school counsellor that she enjoyed "punching people because punching bags just didn't do it for her." Chris Pollard stated that Ellard "refused to take responsibility for her behaviour and blamed others for her problems in school, in the community, and in custody." One of her peers described Ellard as "crazy" and stated that her nickname is "Killer Kelly."⁽²¹⁾

On the issue of the nature and circumstances of the alleged offence, the Youth Court Judge stated that "the circumstances surrounding the commission of this murder indicate a degree of viciousness and a callous insensitivity which is quite appalling." She also took note of the fact that Glowatski and Ellard attacked Reena Virk after she had been seriously incapacitated by the first brutal beating, in which both Ellard and Glowatski took part. The trial judge concluded that the nature of the crime and the circumstances in which it was carried out weighed very heavily in favour of transfer.

The trial judge also considered the other relevant factors, such as the availability of treatment or correctional resources, the objectives of protecting the public, and the rehabilitation of the offender. Ultimately, she determined that the factors, and particularly s. 16(2)(a), the nature and circumstances of the offence, weighed in favour of transfer. The B.C. Court of Appeal upheld this decision.

The second pertinent fact arising from the pre-trial proceedings is that Ellard remained under house arrest as opposed to remaining incarcerated while awaiting trial. Unlike Glowatski, who remained in prison while awaiting trial, Ellard was able to remain at home under the supervision of her parents, and to continue her studies while at home. The criteria for whether an accused youth remains in closed custody versus house arrest include the protection of society in regard to the seriousness of the offence and the circumstances in which it was committed. The decision also involves a consideration of the needs and circumstances of the young person. Despite the psychological profiles of Ellard as having an anger problem and a conduct disorder, her "needs and circumstances" were deemed to be different from those of Glowatski, her co-accused.

Ellard's (apparently) stable family background certainly impacted on the decision to allow her to remain under house arrest as opposed to remaining in detention while she awaited trial. I would also assert however, that her femininity and class privilege relative to Glowatski afforded her more lenient treatment in this regard. Unlike Glowatski, who comes from a "broken home," does not have middle-class privilege, and is male, the social power Ellard derived from her white, middle-class femininity certainly made her appear more capable of being rehabilitated (for how could someone like her have committed this heinous crime in the first place?). As I will discuss below, the social power that Ellard exercised in murdering Reena Virk also worked to her advantage within the parameters of the legal system.

The trial began with a three-day voir dire to determine the admissibility of certain evidence. At the heart of this evidence was a videotaped statement of Ellard, given to the police on the night of her arrest. The trial judge held that the videotaped interview was inadmissible. She did not release her reasons until after the conclusion of the trial, while the jury deliberated. Ellard's Charter right and rights under the Young Offenders Act to legal counsel were undoubtedly violated in a serious manner by the investigating officer. In fact, the misconduct of the police officer in his refusal to allow Ellard to place a private phone call to her parents, and to speak alone with her mother once she arrived at the station was quite egregious. However, Ellard's duplicitous statements, lies, and constant denials of any involvement in the murder of Reena Virk reflected aspects of her character that were simply ignored by the trial judge in her ruling on the voir dire. It is not the result of the ruling that I take issue with, but the trial judge's failure to critically assess Ellard's high level of sophistication and manipulation during the interview. The trial judge's interpretation of Ellard's conduct during the interview reveals how young, white, middle class females are privileged within the legal system.

Throughout the interview, Ellard repeatedly denied that she was guilty of anything. After she had been told by the investigating officer that she was under arrest for murder, she repeatedly said things such as "I thought you said I murdered someone;" or "I thought you were accusing me of murder;" in an incredulous tone as though the mere suggestion that she had murdered anyone was preposterous. After the officer had gone through s. 56 of the Young Offenders Act and had enumerated her rights, she stated that she didn't want to speak to a lawyer as she had not done anything. While this statement probably reflects her lack of understanding of her right to counsel, and the fact that she did not understand that calling a lawyer would not constitute evidence of culpability, she also refused to call a lawyer as a means of deflecting guilt.

During the interrogation, she stated that she thought the girl's name was "Trina." When asked to describe what Reena looked like that night, she stated that Reena Virk had been wearing dark clothes, that she had dark skin, and indicated to the officer the length of Reena's hair. When asked to describe N.P., she voluntarily describes her as "black with braids." Similarly, when asked to describe or identify M.P., she states that she is "black with dark curly hair." Ellard was not asked about the colour of Reena, N.P. or M.P., but voluntarily gave this information as a part of describing them. While she identifies the girls of colour by their skin colour or race, she does not racially identify the other girls as "white." While this may seem like a small point, I think at the very least, this indicates that Ellard was conscious of the racial difference of N.P. and M.P., who are black, and Reena who is South Asian, relative to the white girls. Ellard's failure to identify the white girls as racially "white," reveals her view that whiteness is the unstated norm, to which all "non-white" girls stand in opposition or "otherness." Ellard erases the "whiteness" of the other girls who were involved in the beating, and by doing so, erases her own whiteness and power as a member of the dominant racial group.⁽²²⁾

Ellard also told the investigating officer that "it is not very ladylike to be arrested and stuff like that," and expressed concern for her "reputation;" thereby tapping into the dominant construct of white, middle-class femininity that is equated with innocence and normalcy. Throughout the interview, Ellard attempted to gain control over the situation by interrupting the investigating officer. She attempted several times to get the officer to let her go by stating things such as her mother promised to take her up island the next day to keep her away from her friends, once again deflecting guilt and responsibility. Ellard used various means in her attempt to manipulate and control the situation. Eventually, she started admitting more and more of her involvement in the beating under the bridge. However, Ellard forcefully expressed concern for her own welfare, and at no time during the entire interview did she express any kind of remorse or sympathy for the fact that someone had been murdered.

When the officer left her alone with her mother, she repeatedly asked, "why is this happening to me," and stated that she is going to "kill them [her friends and co-accomplices]." Ellard begged her mother to get her out of the room, she told her mother, "you own me, you're my mother, you can take me [out of here]." She exhibited anger while she was alone with her mother, and kicked some things around the room. She stated that all of her friends had betrayed her by saying that she did it. When the interview resumed, Ellard continued to blame others for the murder, including her friend NC, and MP. She repeatedly stated that she did not want to go to jail, and inquired as to whether she could get bail. Ultimately, the interview drew to an end. As the police officer led Ellard and her mother to the door, he told her that her mother could go home and get some clothes for her, as the "prison overalls aren't that flattering." (A comment that would become particularly ironic as the two girls of colour who were Crown witnesses appeared in court wearing prison sweats when they gave their testimony.)

The trial judge properly ruled the videotape inadmissible, as Ellard's right to counsel under the Charter, and her right to speak privately with one of her parents (in addition to or in place of a lawyer) and the rights enumerated under section 56 of the Young Offender's Act were flagrantly violated. However, her characterization of Ellard and her interpretation of Ellard's repeated denials of guilt are troubling. The trial judge saw in Ellard a "young girl who had no criminal record, and was not sophisticated in any way in dealing with police or the justice system." While this may be partially true, it is also inconsistent with Ellard's plea for bail and inquiries into the possibility of house arrest.⁽²³⁾ Ellard told her mother that she ought to tell the police to "put her under probation, under [her mother's] supervision."⁽²⁴⁾ Ellard was also concerned that she would be raised to adult court, and expressed concern to her mother that they might convict her because they had lots of evidence against her. These are not the questions and comments of someone who is without sophistication in relation to, or has no knowledge of, the criminal justice system.

The trial judge characterized Ellard's repeated denials of involvement and repeated attempts to deny that she was in fact under arrest for murder as proof that Ellard did not understand what was happening. Taken in the context of Ellard's repeated lies throughout the videotaped interview in question, these statements can also be seen as a deflection of guilt more than a lack of understanding that she was under arrest for the murder of Reena Virk. The trial judge's characterization of Ellard's demeanour and denials of involvement are consistent with the very picture that defence counsel attempted to paint: an innocent, young, middle-class, white female who could not possibly have committed this heinous crime. In my view, the construction of Ellard as "inherently innocent" cannot be divorced from dominant constructions of white, middle-class femininity that posit individuals who fit into this category, such as Ellard, as pure, chaste, innocent, and upstanding. Ellard, by virtue of her whiteness, middle-class status, and her perceived heterosexuality, was seen by some to be incapable of having committed the murder, in spite of her demeanour during the interview and her repeated and various lies about her involvement in the incident.

I referred earlier to the fact that in this case, as in many, the defence and Crown counsel revealed a set of shared assumptions in their racialization of various witnesses. The rulings of the trial judge reveal that she too, shared the same worldview for the most part. Writing on the topic of the judiciary and dominant ideologies, Joel Bakan has stated the following:

Judges operate at or near the centres of social, economic, and political power and within an institutional framework committed to perpetuating the existing social order. The perspective that they bring to decision making, no matter how sincere their efforts to be neutral and impartial, is inevitably shaped by their social and institutional location.⁽²⁵⁾

In other words, the trial judge's reasons do not merely reflect the individual trial judge's viewpoints, but reflect the much broader systemic phenomenon of the judiciary (who are predominantly white, middle-class, and increasingly female) relying on dominant ideologies in the course of creating law that in turn, upholds the status quo.

The trial judge found it necessary to comment on the "somewhat aggressive" behaviour of the police officer towards Ellard.⁽²⁶⁾ She does not comment on the repeated lies told by Ellard throughout the interview, something which may have caused the police officer to become exasperated. Nor does the trial judge acknowledge that this was an interrogation regarding Ellard's alleged involvement in a brutal murder, and that at times, the use of a "haranguing tone" may have been necessary and reasonable in the circumstances. The judge ends her reasons with the following statement:

What occurred was an interrogation. It began with Kelly Ellard saying she didn't know Reena Virk, and wasn't involved in anything. It ended with Kelly Ellard finally acknowledging that she had punched Reena Virk, that there had been a fight with other girls and Reena. It was clearly a confession of assault. It was never a confession to murder. (Paragraph 51)

At the same time as acknowledging that Ellard lied throughout the entire interview, the trial judge found it necessary to state that Ellard's statement was never a confession to murder. It is as if Ellard's denial of guilt in the murder of Reena Virk should be believed and found credible despite her explicit lies and duplicitous conduct. This set of reasoning foreshadowed what was to come in the reasons for sentence.

Credibility and Fact Finding

Many scholars have explored how dominant ideologies of race, gender, and class construct some groups of people as believable witnesses, while others are deemed to be untrustworthy and dishonest by virtue of their gender, race, or class background. Sherene Razack, for instance, examines the ways in which race, gender, and disability impact on the credibility of witnesses in her critical analysis of R. v. Mohammed, 30 April 1992 (Toronto, Ontario Court, Provincial Division). This case involved a Black male refugee accused of attempting to rape his co-worker, a young, "overweight," white woman with a developmental disability. Razack details the ways in which dominant narratives and stereotypes about women who are overweight and disabled - as incapable of being sexually assaulted - informed the defence's theory of the case. Positing the complainant as a vengeful woman who cried "rape" when her sexual advances were spurned by the accused, defence counsel employed several stereotypes about overweight and disabled women in their attempt to discredit her testimony.⁽²⁷⁾

Razack illustrates how the credibility of both the complainant and accused was constantly undermined by dominant ideologies of race, gender, and disability in this case. She examines the ways in which the "enduring myth of the Black male rapist" operated as a subtext to challenge Mohammed's credibility and the legal presumption of innocence to which every accused person is entitled. While the stereotypes and dominant narratives employed in the case of R. v. Mohammed were fairly specific to the context of sexual assault, Razack's framework of analysis is very useful to an examination of how dominant ideologies factored into the assessment of witnesses' credibility in R. v. Ellard. In the Ellard case, dominant ideologies of race, gender, and class status were employed by the defence counsel in order to discredit the Crown witnesses.

The defence constructed Ellard as an innocent, young, white, middle-class girl who had fallen into a "bad" group of peers, and under their influence had strayed from what otherwise was a life of virtue. Defence counsel invariably used prior inconsistent statements as a means of discrediting the teenage Crown witnesses, and emphasized their theory that all of the incriminating testimony offered by the witnesses was actually just based on rumour and gossip. However, their basic approach did vary in the case of a number of the Crown witnesses, where they used racialized and sexist stereotypes as a means of discrediting them. They also used dependencies on alcohol or drugs of particular witnesses in two ways: to cast doubt on the veracity of their recollections of the event, and to discredit them generally as untrustworthy witnesses.

For instance, G.O., a young woman of colour, was grilled repeatedly about her alcohol and marijuana consumption by defence counsel. The questions about her use of drugs and alcohol were not related to any specific questions about her testimony, but were used to just generally discredit her. Another Crown witness, again, an Aboriginal youth, was repeatedly questioned about his high level of alcohol consumption. Although his alcohol consumption on the night of the incident was certainly germane to the accuracy of his testimony, in the defence's summation they referred to this witness as "the drunken Fred Thomas." I submit that the use of this phrase, in the context of the defence strategy in general, was meant to invoke the stereotype of "the drunken Indian."⁽²⁸⁾

The class status of the witnesses, in combination with the degree to which they "fit" into the dominant norm of white, middle-class, heterosexual femininity, also seemed to impact on the questioning. Even though almost all of the teenage Crown witnesses had given prior statements that were inconsistent with their testimony at trial, or had lied under oath, defence counsel were more ruthless in their questioning of C.K. and G.O., two girls who had criminal records, had admitted to drinking alcohol and smoking marijuana, had relatively "unstable" family backgrounds, and did not appear to enjoy middle-class privilege.

Defence counsel stated to C.K., for instance, "that she was lying [on the stand] to make herself look good in front of the jury." The defence counsel stated to G.O. that she had "cried on the stand because she was feeling sorry for herself." Defence counsel probed into the psychological report of G.O. that was produced prior to her own sentencing in the assault on Reena Virk. They also prodded her about her stated reasons for leaving her father's home, emphasizing that she came from a "broken" home and had behavioural problems. When cross-examining L.Z., a young white woman, defence counsel went into detail about her convictions for prostitution, and revealed that she had committed these offences for the purposes of buying heroin. Clearly, these questions had little to do with the substance of L.Z.'s testimony, but rather were used as a means to discredit her as an untrustworthy, non-credible witness.

M.P., a black female witness at trial, was not only subject to similar haranguing about her criminal record, her "broken" home, and unstable background by defence counsel, but defence counsel also blamed M.P. for the actual murder. The defence counsel asserted that M.P. was part of a gang to which Warren Glowatski also belonged, and that they had killed Reena Virk together. The defence did not have one single piece of evidence to link M.P. to gang activity. In fact, the defence emphasized the existence and importance of the supposed gang, the "Crips," where there was little, if any evidence to show that this gang was more than the musings of a small group of boys. In fact, Ellard herself admitted that the boys were really nothing more than "wannabe" gangsters during cross-examination by Crown counsel. Nonetheless, defence counsel attempted to persuade the jury that M.P. was part of a gang based on the fact that she had once had in her possession a blue bandana (the supposed colour associated with the "gang"), and a letter she had written to Warren Glowatski referring to a "special bond" between them.

This strategy of the defence, to discredit the Crown witnesses on the basis of class-status, criminal records, family backgrounds, drug and alcohol use or dependencies, racialized/gendered stereotypes and other irrelevant factors was mirrored in their attempts to boost the credibility of their own witnesses along the same lines. For instance, the defence made repeated references to the one white male defence witness as holding down a part-time job while going to high school; the young white female witness, who after being released from the youth detention centre for aggravated assault had reformed herself and had not received "as much as a speeding ticket;" and of course, Ellard and her family who enjoyed hot-tubbing and socializing with their long time friend Tammy Brown. As Yasmin Jiwani has observed:

These women are white, middle-class and were well-dressed. Both answered questioned directed at them easily and appeared composed on the stand; they spoke clearly and in a well-articulated tone.⁽²⁹⁾

The defence witnesses were all juxtaposed with the Crown witnesses who were repeatedly criminalized and stereotyped by defence counsel.

This discussion would be incomplete without addressing how Crown counsel also engaged in the racialization of their own witnesses as well as Reena Virk. For instance, one of the two Crown counsel asked a Crown witness to describe those who participated in the first attack on Reena Virk. When the witness stated that there were two girls named Nicole, the Crown counsel asked whether the witness could tell them apart. The witness said yes, that one is "Caucasian." When he said that he was unsure about the other Nicole, who was "Black, or African" the Crown counsel interrupted him and asked whether she was "of the Negro race." This, of course, was a relatively minor indication of the Crown counsel's complete lack of understanding of the concept of "race" or racialization. When questioning M.P., the sole young black female witness, he asked her to describe Reena Virk. The same Crown counsel interrupted her and stated, "Reena Virk looked like what we in Canada call East Indian?" The witness affirmed his statement. He followed this with the inane and irrelevant question, "are you part East Indian yourself?"

Perhaps the worst instance of the Crown counsel's irrelevant and racialist remarks during trial arose during the questioning of the expert witness pathologist. He first drew attention to the darker areas on the photograph exhibits of Reena's body. He then asked the pathologist whether the amount of body hair one has is dependent on one's "race." Surprisingly, the pathologist went on to confirm this assertion, underlining the fact that both Crown counsel and their medical "expert" (with an impressive curriculum vitae) had not eschewed the idea that "races" are biologically grounded, discrete and reified "categories" into which humans can neatly be divided. While the existence of body hair on Reena's back was relevant to the case (insofar as Ellard and Glowatski had allegedly made fun of Reena's "hairy back"), there was absolutely no reason to make the absurd assertion that the amount of one's body hair is dependent on one's "race." In doing so, the Crown counsel constructed Reena Virk, yet again, as racially distinct and inferior from white youth, based on supposedly "biologically grounded, racial" differences such as her body hair.

Some people may think that I have focused too narrowly on the defence counsel's tactics or strategy in their attempts to provide the fullest possible defence for their client. The fault does not really lie at the feet of defence counsel, although their conduct at times was unpalatable and quite offensive. The problem lies in the fact that they were able to use racialized, gendered and class-based stereotypes in order to discredit the Crown witnesses. The problem lies in the fact that the other main players, the Crown counsel and the trial judge herself, also expounded and relied upon dominant ideologies and stereotypes throughout the trial. Crown counsel was more than complicit in racializing various witnesses (as well as Reena Virk); they explicitly reinforced dominant discourses of race, gender, femininity and class.

REASONS FOR SENTENCE AND THE ABSOLUTION OF ELLARD

The trial judge sentenced Ellard to the lowest possible number of years before parole eligibility: five years. (The high end of the range for young offenders is seven years.) Ellard will also be on parole for the rest of her life, a mandatory part of the sentence for anyone convicted of second degree murder (in an adult court). I do not believe that the sentence of parole eligibility after five years' incarceration is a bad thing, as I do not generally think that incarceration is the best means of dealing with people convicted of crimes. However, the reasons of the trial judge reflect how the defence's construction of Ellard as innocent and pure, based on dominant ideologies of race, gender, femininity and class greatly impacted on Ellard's trial and ultimately, her sentence. The reasons for sentence also reflect how the racialized nature of the brutal murder of Reena Virk was not only erased, but explicitly denied in Ellard's trial.

I will focus on three main points. The first is to reiterate that the construction of Ellard as innocent, as incapable of having committed the murder because her race, gender, age, sexuality and class status overwhelmed all other considerations, including her negative character traits. At paragraph 12 in her reasons for sentence, the judge stated that the "psychological reports do not show a profound change, [in Ellard's character] in my view, because her initial profile is not what we might have expected from someone involved in such a crime." Although the trial judge fails to expand on what sort of character traits would constitute an appropriate "criminal profile" for a murder of this nature, she goes on to name some of Ellard's characteristics as detailed in psychological reports done shortly after the crime was committed.

These psychological reports described Ellard as having "substance abuse on an alarming level," not showing good judgment, and doing poorly in school. She was described as being stubborn, as blaming others, and was found to be somewhat self-centred. If we refer back to the reasons of the trial judge in the hearing to raise Ellard to adult court, not mentioned by the trial judge, we will also note that Ellard was diagnosed as having a moderate to severe conduct disorder, that she had a great deal of anger, and that she had violent tendencies. Even according to mainstream or conservative criteria of "someone who would be involved in such a crime," Ellard certainly fit the bill. While the trial judge acknowledged many of Ellard's characteristics that do fit the "persona" of someone who might commit a violent crime, she found that Ellard was not, and is not, the "kind of person" who would commit a brutal murder. It is as though Ellard was (and remains) simply incapable of having committed such a nasty crime.

The second point that emerges from the reasons for sentence is the trial judge's emphasis on middle-class family stability which certainly overwhelms her Ladyship's intent to assess Ellard as an "individual."⁽³⁰⁾ In paragraph 10 of her reasons for sentence, the trial judge describes Ellard's "large network of friends and family;" and her "large and loving close extended family," who "continue to love her regardless of what she has done or been found to have done." The trial judge even goes so far as to agree with the one family member who wrote, in a letter of support, that "this is a young person who needs help." While Ellard's family support and parental commitment while she was under house arrest are certainly laudable, one wonders what relevance they have to an assessment of Ellard's character. I also wonder whether letters of support and character references from family members ought to be viewed with more scrutiny; for how objective can they really be? Additionally, it leads one to query whether a youth convicted of murder, without such apparently overwhelming family love and support, would be looked upon as being capable of being rehabilitated at all.

The last point addresses the trial judge's denial of the racism involved and the exclamation that "racism is not a part of her [Ellard's] makeup." This comment was reflective of many things. First, it is reflective of the fact that although there was no evidence put to the trial judge on the issue of racism and its role in the murder of Reena Virk, she still felt that she was able to draw the conclusion that racism was not a part of Ellard's makeup. This comment, that racism can be a part of one's "makeup," reflects a deep misunderstanding of what racism is and how it functions in our society. It is as though, in the eyes of the trial judge, if one does not spout racist epithets or wear a white hood, one does not have the "makeup" of a racist. It is as though there is no such thing as systemic and institutionalized racism, common sense racism, the kind of racism that leads people, for instance, to assume that black people or the poor or other "deviants" are more prone to criminality than nice white girls.

Finally, the power of hegemonic ideologies of race, gender, femininity and class in constructing Ellard as just another member of the dominant class in society are reflected in the manner in which the trial judge addressed the convicted Ellard. Her final words to Ellard reflected a familiarity and "ethic of care" that is not often found in judicial reasons for sentence. After describing Ellard as possessing "an otherwise good character," the trial judge wished her well:

Kelly, you are young and intelligent and you have a wonderful family. They believe in you and I can only say that you must never let them down, and more important, you must never let yourself down again. And I think you owe it to Reena Virk to live a life that is exemplary now, and you owe that to yourself. I hope you do well.

CONCLUSION

Throughout the paper, I have attempted to reveal how dominant ideologies of race, gender, femininity and class informed many of the substantive legal dimensions of the Ellard trial. Defence counsel relied on racialized, gendered and class-based stereotypes in their varied approaches to discrediting witnesses. At least in part, it seems that they relied on deeply rooted notions of who is a credible witness, and people who "naturally" commit crimes versus those who are "inherently" innocent to form their theory of the case that the one black female witness (who has a criminal record and unstable family background) had in fact committed the murder. I have also attempted to show how defence counsel's construction of Ellard as innocent, pure and incapable of committing such a crime was in many respects, adopted by the trial judge.

The social relations that informed the murder of Reena Virk, namely, racism and sexism, were completely absent from the factual matrix of the case as presented by Crown counsel. There was absolutely no discussion of the racism that people of colour, or South Asians specifically, are subjected to in Victoria, British Columbia. No evidence with respect to the particular forms of discrimination and violence that young racialized girls face in Victoria (as elsewhere of course), was brought to the court's attention. This is problematic for several reasons. First, it denies the reality and existence of the racist and sexist oppression that informed the violence inflicted upon Reena Virk; in essence, it ignored the nature of the offence and the circumstances surrounding its commission. The absence of this part of the social context left an incomplete record upon which the decisions regarding Ellard's guilt and her sentence were based.

I am not attempting to argue that the racist-sexist motivations behind the beating and murder of Reena Virk necessarily ought to have been put forth by the Crown as an element of the crime, or as the "motive" behind the crime.⁽³¹⁾ I agree with Critical Race Theorists that having to prove that an accused had a "racial animus" and that this was the primary motivation for committing a crime belies the true nature of systemic and institutionalized racism.⁽³²⁾ In other words, I am not arguing that the Crown should have attempted to prove that Ellard's primary motive was to kill Virk because she was a South Asian female. Requiring counsel to prove an explicitly racist motive would be difficult where there are no outward and obvious "signs" of racist hatred, as was the case in the beating death of Nirmal Singh Gill, by five young white men who were affiliated with a neo-Nazi organization. While this is problematic and reflects the lack of understanding of race and racism among many judges and other players in the legal arena, it is an unfortunate reality.

While the Ellard trial appears to reflect quite forcefully the inability of the law itself to squarely address the kind of racist-sexism that informed the murder of Reena Virk, the failure of the main players in this particular trial does not necessarily, in my mind, preclude a discussion of how a critical-race feminist framework could and must be applied in a case such as this.

Laying out the social context of the case and pointing to the position of power that Ellard occupied relative to Reena Virk would have enabled the jury, the judge, and the public to better understand the nature of the offence and the circumstances surrounding its commission. Pointing to the systemic forms of racist-sexism that young South Asian women, and particularly those who do not fit into dominant norms of femininity face, would have enabled the jury and the judge to appreciate the "aggravated" circumstances of the initial assault and the murder. Laying out the factual matrix in a more complete way would have enabled them to get a glimpse of how institutionalized, "everyday racism" made it possible for the gang of youths to torture Reena Virk, and for Ellard and Glowatski to fatally assault Reena Virk.

Finally, bringing the reality of racism and sexism squarely into the legal discourse would have made it much more difficult for the defence to rely on racialized, gendered and class-based stereotypes in their attempts to discredit the Crown witnesses, and in their attempts to cast Ellard as the pure and innocent "good girl." If the ways in which dominant ideologies of race, gender, femininity and class operate to marginalize certain groups of people, and specifically to shape common sense notions of credibility, innocence and criminality had been revealed by Crown counsel, the danger of the jury and the trial judge relying on such common sense assumptions would have been greatly reduced.

APPENDIX 1

DECLARATION OF PRINCIPLE

Policy for Canada with respect to young offenders

(a) crime prevention is essential to the long-term protection
of society and requires addressing the underlying causes of
crime by young persons and developing multi-disciplinary
approaches to identifying and effectively responding to children
and young persons at risk of committing offending behaviour in
the future;
(a.1) while young persons should not in all instances be held
accountable in the same manner or suffer the same consequences
for their behaviour as adults, young persons who commit offences
should nonetheless bear responsibility for their contraventions;
(b) society must, although it has the responsibility to take
reasonable measures to prevent criminal conduct by young persons,
be afforded the necessary protection from illegal behaviour;
(c) young persons who commit offences require supervision,
discipline and control, but, because of their state of dependency
and level of development and maturity, they also have special
needs and require guidance and assistance;
(c.1) the protection of society, which is a primary objective of
the criminal law applicable to youth, is best served by
rehabilitation, wherever possible, of young persons who commit
offences, and rehabilitation is best achieved by addressing the
needs and circumstances of a young person that are relevant to
the young person's offending behaviour;
(d) where it is not inconsistent with the protection of society,
taking no measures or taking measures other than judicial
proceedings under this Act should be considered for dealing with
young persons who have committed offences;
(e) young persons have rights and freedoms in their own right,
including those stated in the Canadian Charter of Rights and
Freedoms or in the Canadian Bill of Rights, and in particular a
right to be heard in the course of, and to participate in, the
processes that lead to decisions that affect them, and young
persons should have special guarantees of their rights and freedoms;
(f) in the application of this Act, the rights and freedoms
of young persons include a right to the least possible interference
with freedom that is consistent with the protection of society,
having regard to the needs of young persons and the interests of
their families;
(g) young persons have the right, in every instance where they
have rights or freedoms that may be affected by this Act, to be
informed as to what those rights and freedoms are; and
(h) parents have responsibility for the care and supervision of
their children, and, for that reason, young persons should be
removed from parental supervision either partly or entirely only
when measures that provide for continuing parental supervision
are inappropriate.

Act to be liberally construed
(2) This Act shall be liberally construed to the end that young
persons will be dealt with in accordance with the principles set
out in subsection (1).

R.S., 1985, c. Y-1, s. 3; 1995, c. 19, s. 1.

APPENDIX 2

TRANSFER

Transfer to ordinary court
16. (1) Subject to subsection (1.01), at any time after an
information is laid against a young person alleged to have,
after attaining the age of fourteen years, committed an indictable
offence other than an offence referred to in section 553 of the
Criminal Code but prior to adjudication, a youth court shall, on
application of the young person or the young person's counsel or
the Attorney General or an agent of the Attorney General,
determine, in accordance with subsection (1.1), whether the
young person should be proceeded against in ordinary court.

Trial in ordinary court for certain offences

(1.01) Every young person against whom an information is laid
who is alleged to have committed
(a) first degree murder or second degree murder within the
meaning of section 231 of the Criminal Code,
(b) an offence under section 239 of the Criminal Code (attempt
to commit murder),
(c) an offence under section 232 or 234 of the Criminal Code
(manslaughter), or
(d) an offence under section 273 of the Criminal Code
(aggravated sexual assault),
and who was sixteen or seventeen years of age at the time
of the alleged commission of the offence shall be proceeded
against in ordinary court in accordance with the law ordinarily
applicable to an adult charged with the offence unless the youth
court, on application by the young person, the young person's
counsel or the Attorney General or an agent of the Attorney
General, makes an order under subsection (1.04) or (1.05) or
subparagraph (1.1)(a)(ii) that the young person should be
proceeded against in youth court.

Making of application
(1.02) An application to the youth court under subsection (1.01)
must be made orally, in the presence of the other party to the
proceedings, or in writing, with a notice served on the other
party to the proceedings.

Where application is opposed
(1.03) Where the other party to the proceedings referred to in
subsection (1.02) files a notice of opposition to the application
with the youth court within twenty-one days after the making of
the oral application, or the service of the notice referred to
in that subsection, as the case may be, the youth court shall,
in accordance with subsection (1.1), determine whether the young
person should be proceeded against in youth court.

Where application is unopposed
(1.04) Where the other party to the proceedings referred to in
subsection (1.02) files a notice of non-opposition to the
application with the youth court within the time referred to
in subsection (1.03), the youth court shall order that the
young person be proceeded against in youth court.

Deeming
(1.05) Where the other party to the proceedings referred to
in subsection (1.02) does not file a notice referred to in
subsection (1.03) or (1.04) within the time referred to in
subsection (1.03), the youth court shall order that the young
person be proceeded against in youth court.

Time may be extended
(1.06) The time referred to in subsections (1.03) to (1.05)
may be extended by mutual agreement of the parties to the
proceedings by filing a notice to that effect with the youth
court.

Order
(1.1) In making the determination referred to in subsection
(1) or (1.03), the youth court, after affording both parties
and the parents of the young person an opportunity to be heard,
shall consider the interest of society, which includes the
objectives of affording protection to the public and rehabilitation
of the young person, and determine whether those objectives
can be reconciled by the youth being under the jurisdiction
of the youth court, and


(a) if the court is of the opinion that those objectives can
be so reconciled, the court shall

(i) in the case of an application under subsection (1), refuse
to make an order that the young person be proceeded against in
ordinary court, and

(ii) in the case of an application under subsection (1.01),
order that the young person be proceeded against in youth
court; or

(b) if the court is of the opinion that those objectives
cannot be so
reconciled, protection of the public shall be paramount and
the court shall

(i) in the case of an application under subsection (1), order
that the young person be proceeded against in ordinary court
in accordance with the law ordinarily applicable to an adult
charged with the offence, and

(ii) in the case of an application under subsection (1.01), refuse
to make an order that the young person be proceeded against in
youth court.

Onus
(1.11) Where an application is made under subsection (1)
or (1.01), the onus of satisfying the youth court of the
matters referred to in subsection (1.1) rests with the
applicant.

Considerations by youth court
(2) In making the determination referred to in subsection
(1) or (1.03) in respect of a young person, a youth court
shall take into account

(a) the seriousness of the alleged offence and the circumstances
in which it was allegedly committed;
(b) the age, maturity, character and background of the young
person and any record or summary of previous findings of
delinquency under the Juvenile Delinquents Act, chapter J-3
of the Revised Statutes of Canada, 1970, or previous findings
of guilt under this Act or any other Act of Parliament or any
regulation made thereunder;
(c) the adequacy of this Act, and the adequacy of the Criminal
Code or any other Act of Parliament that would apply in respect
of the young person if an order were made under this section,
to meet the circumstances of the case;
(d) the availability of treatment or correctional resources;
(e) any representations made to the court by or on behalf of
the young person or by the Attorney General or his agent; and
(f) any other factors that the court considers relevant.

Pre-disposition reports
(3) In making the determination referred to in subsection
(1) or (1.03) in respect of a young person, a youth court
shall consider a pre-disposition report.

Where young person on transfer status
(4) Notwithstanding subsections (1) and (3), where an
application is made under subsection (1) by the Attorney General
or the Attorney General's agent in respect of an offence alleged
to have been committed by a young person while the young person
was being proceeded against in ordinary court pursuant to an
order previously made under this section or serving a sentence
as a result of proceedings in ordinary court, the youth court
may make a further order under this section without a hearing
and without considering a pre-disposition report.

Court to state reasons
(5) Where a youth court makes an order or refuses to make an
order under this section, it shall state the reasons for its
decision and the reasons shall form part of the record of the
proceedings in the youth court.

No further applications for transfer
(6) Where a youth court refuses to make an order under this
section in respect of an alleged offence, no further application 
may be made under this section in respect of that offence.

Effect of order
(7) Where an order is made under this section pursuant to an
application under subsection (1), proceedings under this Act
shall be discontinued and the young person against whom the
proceedings are taken shall be taken before the ordinary court.

Idem
(7.1) Where an order is made under this section pursuant to an
application under subsection (1.01), the proceedings against
the young person shall be in the youth court.

Jurisdiction of ordinary court limited
(8) Where a young person is proceeded against in ordinary court
in respect of an offence by reason of

(a) subsection (1.01), where no application is made under that
subsection,
(b) an order made under subparagraph (1.1)(b)(i), or
(c) the refusal under subparagraph (1.1)(b)(ii) to make an
order, that court has jurisdiction only in respect of that
offence or an offence included therein.

Review of youth court decision
(9) An order made in respect of a young person under this
section or a refusal to make such an order shall, on application
of the young person or the young person's counsel or the
Attorney General or the Attorney General's agent made within
thirty days after the decision of the youth court, be reviewed
by the court of appeal, and that court may, in its discretion,
confirm or reverse the decision of the youth court.

Extension of time to make application
(10) The court of appeal may, at any time, extend the time
within which an application under subsection (9) may be made.


Notice of application
(11) A person who proposes to apply for a review under
subsection (9) shall give notice of the application in such
manner and within such period of time as may be directed by
rules of court.

Inadmissibility of statement
(12) No statement made by a young person in the course of a
hearing held under this section is admissible in evidence
against the young person in any civil or criminal proceeding
held subsequent to that hearing.

(13) [Repealed, 1992, c. 11, s. 2]

(14) [Repealed, R.S., 1985, c. 24 (2nd Supp.), s. 12]

R.S., 1985, c. Y-1, s. 16; R.S., 1985, c. 24 (2nd Supp.),
s. 12; 1992, c. 11, s. 2; 1995, c. 19, s. 8.

Detention pending trial - young person under eighteen
16.1 (1) Notwithstanding anything in this or any other Act
of Parliament, where a young person who is under the age of
eighteen is to be proceeded against in ordinary court by
reason of

(a) subsection 16(1.01), where no application is made under
that subsection,
(b) an order under subparagraph 16(1.1)(b)(i), or
(c) the refusal under subparagraph 16(1.1)(b)(ii) to make an
order, and the young person is to be in custody pending the
proceedings in that court, the young person shall be held
separate and apart from any adult who is detained or held
in custody unless the youth court is satisfied, on application,
that the young person, having regard to the best interests of
the young person and the safety of others, cannot be detained
in a place of detention for young persons.

Detention pending trial - young person over eighteen
(2) Notwithstanding anything in this or any other Act of
Parliament, where a young person who is over the age of
eighteen is to be proceeded against in ordinary court by
reason of

(a) subsection 16(1.01), where no application is made under
that subsection,
(b) an order under subparagraph 16(1.1)(b)(i), or
(c) the refusal under subparagraph 16(1.1)(b)(ii) to make an
order, and the young person is to be in custody pending the
proceedings in that court, the young person shall be held in
a place of detention for adults unless the youth court is
satisfied, on application, that the young person, having
regard to the best interests of the young person and the
safety of others, should be detained in a place of custody
for young persons.

Review
(3) On application, the youth court shall review the placement
of a young person in detention pursuant to this section and,
if satisfied, having regard to the best interests of the young
person and the safety of others, and after having afforded the
young person, the provincial director and a representative of
a provincial department responsible for adult correctional
facilities an opportunity to be heard, that the young person
should remain in detention where the young person is or be
transferred to youth or adult detention, as the case may be,
the court may so order.

Who may make application
(4) An application referred to in this section may be made
by the young person, the young person's parents, the
provincial director, the Attorney General or the Attorney
General's agent.

Notice
(5) Where an application referred to in this section is made,
the applicant shall cause a notice of the application to be given

(a) where the applicant is the young person or one of the
young person's parents, to the provincial director and the
Attorney General;
(b) where the applicant is the Attorney General or the Attorney
General's agent, to the young person, the young person's parents
and the provincial director; and
(c) where the applicant is the provincial director, to the young
person, the parents of the young person and the Attorney General.

Statement of rights

(6) A notice given under subsection (5) by the Attorney General
or the
provincial director shall include a statement that the young
person has the opportunity to be heard and the right to be
represented by counsel.

Limit - age 20

(7) Notwithstanding anything in this section, no young person
shall remain in custody in a place of detention for young
persons under this section after the young person attains the
age of twenty years.

1992, c. 11, s. 2; 1995, c. 19, s. 9.

Endnotes

^1. At the time this paper was written, both convictions had been appealed, but the appeals have yet to be heard by the British Columbia Court of Appeal.

^2. Section 718.2(a) of the Criminal Code, R.S., c. C-34, requires that a sentencing judge consider aggravating factors relating to the offence or the offender, including (under s.718.2(a)(i)) whether the crime was motivated by "bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor."

^3. The Alliance of Five Research Centres on Violence report on "Violence Prevention and the Girl Child," details the range of violence experienced by Canadian girls (Jiwani et al., 1999). See also, Yasmin Jiwani's report, "Violence Against Marginalized Girls" (Vancouver, BC: FREDA, 1998).

^4. Sheila Batacharya has explored this phenomenon thoroughly in her Master's thesis: "Racism, 'Girl Violence' and the Murder of Reena Virk," (University of Toronto, 2000); also see Yasmin Jiwani, "Deconstructing the Myth of Girl Violence: The Denial of Race in the Murder of Reena Virk," in Kinesis, May 2000; and "Erasing Race: The Story of Reena Virk," in Canadian Woman Studies, Vol. 19. No. 3, page 178.

^5. In fact, as related by Suman Virk at the trial of Ellard, Reena had called her parents' home asking if she could spend the night there on the night of the fatal attack. Tragically, she never made it back home.

^6. Bannerji, Himani. "A Question of Silence: Reflections on Violence Against Women in Communities of Colour." In "Scratching the Surface: Canadian Anti-Racist Feminist Thought," ed. E. Dua and A. Robertson, 263. Toronto: Women's Press, 1999.

^7. For the purposes of this paper, I will not delve into a deeper discussion of Canadian nation formation and the racism that constitutes the foundation of the Canadian State. Suffice it to say, however, that the dominant myth of Canada as a nation that was legitimately "founded" by the French and the English ignores the profound reality of the historical and to a large degree, continued colonization of Aboriginal peoples and their land. Multiculturalist ideology relegates people of colour immigrants to the margins of this state that was supposedly "founded" by the English and French, and masks the racist discrimination directed at people of colour. Multiculturalist ideology also maintains a false separation of the racism inflicted on people of colour, the colonialist oppression inflicted upon Aboriginal peoples, and the complicity of people of colour in "settling the nation." See: Bannerji, Himani. "The Dark Side of the Nation: Essays on Multiculturalism, Nationalism and Gender." Toronto: Canadian Scholars' Press, 2000.

^8. Bannerji, "A Question of Silence," page 264.

^9. On this point, Bannerji writes that "This traditional (patriarchal) identity, then, is equally the result of an othering from powerful outside forces and an internalized Orientalism and a gendered class organization." Ibid., page 264.

^10. The profound importance of silence in the South Asian community in Victoria about the violence of patriarchy, sexism, and racism within the "community" pushes most people who verbally or explicitly challenge these dominant norms to the margins of the community. Speaking from personal experience, any attempts to expose and resist the patriarchal, heterosexist or racist values that run throughout many cultural practices and so-called "traditions" generally earns one the title of being too "modern," "Westernized," "disrespectful," "deviant" or quite simply, stupid. In the worst case scenarios, those who challenge these patriarchal norms or are perceived to transgress the dominant norms can also be subject to fatal violence and punishment. [In many respects, this situation parallels that found in small and minority "communities" who turn inward in the face of extensive scrutiny, stigmatization, and fear of criminalization - Editor's note.]

^11. For instance, see Kimberle Crenshaw, "Race, Reform, and Reentrenchment: Transformation and Legitimation in Antidiscrimination Law," in Harvard Law Review, May 1988, Vol. 101, Number 7; Peter Fitzpatrick, "Racism and the Innocence of Law," in "Anatomy of Racism," ed. David T. Goldberg, Minneapolis: University of Minnesota Press, 1990; Himani Bannerji, "In the Matter of X: Building 'Race' into Sexual Harassment," in "Thinking Through: Essays on Feminism, Marxism and Anti-Racism," by Himani Bannerji, Toronto: Women's Press, 1995; Sherene Razack, "Looking White People in the Eye: Gender, Race and Culture in Courtrooms and Classrooms," Toronto: University of Toronto Press, 1998; and Joel Bakan, "Just Words: Constitutional Rights and Social Wrongs," Toronto: University of Toronto Press, 1997.

^12. While I am not confident that lawyers or judges with critical perspectives of the law can achieve social justice within the existing legal parameters, I will discuss how employing a contextualized approach to the facts of this case would have engendered a greater degree of equality and the ever elusive "justice" in the Ellard trial.

^13. Joan Ryan and Bernard Ominayak, "The Cultural Effects of Judicial Bias," in "Equality and Judicial Neutrality," ed. Sheilah L. Martin & Kathleen E. Mahoney, Calgary: Carswell, 1987, page 353.

^14. Roxana Ng, "Racism, Sexism, Nation Building," in "Race, Identity and Representation in Education," ed. Cameron McCarthy and Warren Crichlow, New York, NY: Routledge, 1993, page 52.

^15. Marlee Kline, "The Colour of Law: Ideological Representations of First Nations in Legal Discourse," in "Social and Legal Studies," Vol. 3 (1994), page 452.

^16. Ng uses the term "common sense" in the Gramscian way to indicate the taken-for-granted character of ideological thinking. "The term 'common sense' used in the everyday vernacular, denotes ordinary good sense," Ng, page 52.

^17. Himani Bannerji, "Thinking Through: Essays on Feminism, Marxism, and Anti-Racism," Toronto: Women's Press, 1995, page 45.

^18. I have attached these sections of the Y.O.A. as Appendices 1 and 2.

^19. R. v. K.M.E. [1999] B.C.J. No.222, 1999, B.C.C.A. 75, para 13.

^20. Ibid., para 8.

^21. Ibid.

^22. Himani Bannerji, "In the Matter of X: Building 'Race' into Sexual Harassment," in "Thinking Through: Essays on Feminism, Marxism and Anti-Racism," by Himani Bannerji, Toronto: Women's Press, 1995, pages 126-127.

^23. H.M.T.Q. v. Ellard March 31, 2000 B.C.S.C. 564, Docket No.CC981593 (hereinafter referred to as "Ruling on voir dire, #2") at para 38.

^24. Reference to the Transcript, page 78.

^25. Bakan, page 31.

^26. Ruling on voir dire #2, para 47.

^27. Razack, 142-143.

^28. For a detailed analysis of racist stereotypes and dominant ideologies of race and racism as they pertain to Aboriginal peoples see Marlee Kline, "The Colour of Law: Ideological Representations of First Nations in Legal Discourse," in Social and Legal Studies, Vol. 3 (1994), 451-476.

^29. Yasmin Jiwani, "Deconstructing the Myth of 'Girl' Violence: The Denial of Race in the Murder of Reena Virk," in "Kinesis," May 2000, page 7.

^30. H.M.T.Q. v. Ellard, April 20, 2000, B.C.S.C. Docket No.CC981593, at para 7.

^31. The "motive" of a crime is not an "element of the crime" that needs to be established in order to prove that the accused committed the crime. Establishing a motive helps to prove the mental element of the crime, or the mens rea, one of the elements that the Crown must prove beyond a reasonable doubt in order for the court to find the accused guilty.

^32. See Carol A. Aylward, "Canadian Critical Race Theory: Racism and the Law," Halifax, NS: Fernwood Publishing, 1999, page 63.

The author would like to thank Anil Persaud and Yasmin Jiwani for their insights and comments on previous drafts of this paper.

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