When Robert (Willie) Pickton's judge changed his instructions to the jury at the
trial's 11th-hour, it potentially resulted in jurors being able to convict the
former pig butcherer of acts that are not even criminal, his defence lawyers
In an argument recently filed with the Supreme Court of Canada, Pickton's
lawyers Gil McKinnon and Patrick McGowan say a chain of events sparked by a
question by the jury resulted in the Crown urging the judge to change the rules
of the game just before the buzzer sounded. Instead of deliberating whether to
agree with the Crown's long-held theory that Pickton alone murdered six women,
the defence argued, Justice James Williams told the jurors they could find him
guilty if they believed he "actively participated" in the murders.
That, the defence argued in the written document, may have left jurors with the
impression they could convict Pickton if, for example, they believed he merely
drove the women from the Downtown Eastside to his farm, where someone else might
have killed them.
"Put simply, the jury's critical question was incorrectly answered, the 'goal
posts' were changed by the amendment at a very late and impermissible stage of
the trial, and the Crown gained a significant, unjustified advantage," McKinnon
and McGowan argue in the 64-page document.
"There was a real risk that the jury convicted Pickton for indirect acts upon
which they were not properly instructed, which the defence did not have an
opportunity to address, and which might even fall outside the ambit of criminal
It was on Day 6 of deliberations, following a year-long trial in 2007, that the
jury asked the judge if they could find Pickton guilty of murder if they
believed he had "indirectly" taken part in one or more of the six murders.
Williams did not ask the jurors to clarify their confusing question.
Despite objections by the defence, Williams (urged by the Crown) altered a
previous instruction that jurors must believe Pickton shot the women, and
instead said they could find him guilty of murder if they concluded he "actively
participated" in the deaths.
McKinnon and McGowan argue in the appeal document this was a "miscarriage of
justice" because the defence was never given an opportunity to respond to this
change in direction.
"The Crown persuaded the trial judge to insert an 'escape hatch' into the main
charge, resulting in a stunning, tactical advantage that was clearly wrong. If
the jury had a reasonable doubt about whether or not Pickton shot any of the
women, they could now consider an alternate actus reus [criminal act] to
convict," the document says.
"Trial fairness is at the heart of this appeal. No matter how heinous the crime,
an accused has a constitutional right to a fair trial."
Two days after asking the question, the jury acquitted Pickton of first-degree
murder but found him guilty of second-degree murder in the deaths of Sereena
Abotsway, Marnie Frey, Andrea Joesbury, Georgina Papin, Mona Wilson, and Brenda
Wolfe. The defence is seeking the convictions be quashed and a new trial be
ordered. The Crown has until March 5 to respond to the defence documents.
During arguments before the B.C. Court of Appeal in early 2009, the Crown argued
it had not changed the playing field and a majority of the three justices
agreed. One dissenting justice disagreed, paving the way for the defence to make
this appeal before the Supreme Court of Canada, which will be heard March 25.
If Pickton's appeal is successful, the Crown has said any new trial should
proceed on all 26 counts of first-degree murder he is facing; if the defence is
unsuccessful, the Crown intends to stay the remaining 20 murder charges against
Pickton as he is already serving a life sentence with no chance of parole for 25
Many of the 20 additional family members are devastated that Pickton may never
be tried in court for their loved ones' deaths.
Most of the families of the original six victims are dreading the thought of
re-living another long, painful trial.
In October, police recommended the Crown charge Pickton with six new charges of
first-degree murder, potentially bringing the number of murder counts he could
face to 32. While the Crown maintained during the trial that Pickton acted
alone, luring the women from the Downtown Eastside to his farm where killed them
and butchered their bodies in his slaughterhouse, the defence had argued
Pickton's farm "was a bee-hive of activity" and that other persons - such as his
friends Dinah Taylor and Pat Casanova - could have killed the women.
The Supreme Court of Canada decided in late November to allow Pickton's defence
lawyers to broaden their appeal when they appear before the court in March,
beyond the issues arising from the 2-1 decision of the B.C. Court of Appeal.
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