A 14-word question asked by the jury after six days of deliberations is at the centre of the appeal that began yesterday into the conviction of pig farmer Robert Pickton.
Mr. Pickton, 59, was convicted on Dec. 9, 2007, of the second-degree murder of six women from Vancouver's Downtown Eastside, Canada's most desolate neighbourhood. The verdict in the sensational trial that involved testimony of grisly deaths came after a six-month preliminary inquiry, 11-months of pretrial applications and an 11-month trial.
"When considering [whether Mr. Pickton was the killer] are we able to say 'yes' if we infer that the accused acted indirectly?" the seven men and five women of the jury asked on Dec. 6, 2007.
In the B.C. Court of Appeal yesterday, defence lawyer Gil McKinnon said the trial judge made errors in law in responding to the question. The errors "strike at the core value of our criminal justice system," he told the three-member appeal-court panel. "It is the constitutional right of every accused, no matter how heinous the allegation, to have a fair trial."
Mr. McKinnon asked the court to quash the conviction and order a new trial on six counts of second-degree murder if the judges accept that the errors have undermined Mr. Pickton's right to a fair trial.
The Pickton trial had attracted international attention as it unfolded, but the appeal began as a quiet affair, with media outnumbering the handful of members of the public and victims' families at the courthouse. Supporters banged drums, held signs, and burned sweetgrass at the entrance of the courthouse as members of the victims' families entered the building.
"Just to be here for the appeal hearing, it means a lot," said Cynthia Cardinal, older sister of Georgina Papin, one of the six victims. However, Ms. Cardinal had mixed feelings about what could happen in court. If the verdict is upheld, a trial on charges of murder of 20 additional women will likely not go ahead.
"It really upsets me that [the families of the 20 women]might not get their chance at having their court dates, also, knowing where their loved ones were last. I feel really bad for them," she said.
Jayson Fleury held a poster in memory of his younger sister, Mona Wilson, who was the last of the six victims to go missing. Mr. Fleury expressed frustration that police didn't intervene earlier.
"They [police]did not hear our requests that something fishy was going on in that area," he said.
In the courtroom, Mr. McKinnon said Mr. Justice James Williams of the B.C. Supreme Court answered the jury's question without having a clear understanding of the nature of the problem that was troubling the jury and without asking for clarifications.
The judge gave a contradictory and confusing response when he should have answered unequivocally in the negative, Mr. McKinnon added.
Also, Judge Williams erred in law when he revised his instruction to the jury to create "a real possibility" that some jurors would believe they could convict Mr. Pickton even if he was not the sole perpetrator, Mr. McKinnon said.
Initially, Judge Williams said the issue for the jury to decide was whether Mr. Pickton had actually shot the women. But in response to the jury question, he indicated they could also consider whether the Crown prosecutors proved beyond a reasonable doubt that Mr. Pickton was "an active participant" in the killings.
Mr. McKinnon drew attention to numerous occasions during the trial when prosecutors indicated their case was based on convincing the jury that Mr. Pickton acted alone in killing the women. The issue for the jury was whether Mr. Pickton had to actually pull the trigger to be found guilty, he said.
The judge destroyed the integrity of the entire trial by introducing an alternate basis for the jury to decide that Mr. Pickton was guilty, Mr. McKinnon said.
With a report from Brent Wittmeier