James Keller, THE CANADIAN PRESS
There are currently two appeals before the court: the defence is challenging Pickton’s six second-degree murder convictions, while the Crown is appealing his six acquittals on first-degree murder.
The Crown wants to ensure that if a new trial is ordered, that Pickton is instead tried on the 26 counts of first-degree murder he was initially charged with.
But prosecutor Gregory Fitch made it clear the Crown would ultimately prefer the second-degree convictions to stand and Pickton simply stay in prison, his legal saga over.
"It would not be in the interests of justice to simply order a new trial for first-degree murder … if a new trial is not otherwise required," Fitch told the three judges hearing the appeal.
Fitch is concerned about what would happen if the Appeal Court denied Pickton’s appeal while at the same time granting the Crown’s, which could have the unintended effect of ordering a new trial that the Crown doesn’t want.
In that event, Fitch wants the court to stay the order for a new trial on first-degree murder, allowing the Crown to simply leave Pickton in prison and not pursue the remaining charges.
"It merely suspends – for a limited time or permanently – the underlying order" for a new trial on first-degree murder, said Fitch.
One of the judges questioned whether such an order was even in the Appeal Court’s jurisdiction.
"The problem I see is that Mr. Pickton could lose his appeal and the Crown could ultimately win its appeal," said Justice Richard Low. "Logically, in these events, there would have to be a new trial."
Fitch cited case law that he said gave the court such power.
He also said that if the Appeal Court concludes it has no other option than to order the trial, even if the original convictions stand, he wants another hearing to further argue his point.
Pickton was arrested in February 2002, setting off a massive search of his farm in Port Coquitlam, B.C., where investigators found evidence including blood samples, bone fragments and victims’ belongings.
The pig farmer was convicted in 2007 of six counts of second-degree murder and sentenced to life in prison with no chance of parole for 25 years – the automatic sentence for first-degree murder and the maximum sentence available.
The Crown’s appeal focuses on the trial judge’s decision to split the 26 charges into two separate trials – dealing with six counts first and leaving the 20 remaining charges for a later trial.
Prosecutors have argued that severing the charges limited their ability to use similar-fact evidence – similarities between the different murders – to show Pickton had a scheme to kill prostitutes from Vancouver’s Downtown Eastside.
Fitch earlier argued that such evidence would have helped demonstrate the killings were planned and deliberate, essential elements needed to prove first-degree murder.
But Pickton’s lawyers said the Crown is attempting to make new arguments that weren’t brought up in trial.
"The Crown paid little attention to planning and deliberation, since their theory was that Pickton acted alone," said defence lawyer Gil McKinnon.
Arguments at the appeal are expected to wrap up on Thursday.