Vancouver — Globe and Mail Update Last updated on Friday, Jun. 26, 2009 01:05PM EDT
Robert Pickton’s second-degree murder trial is going to the Supreme Court of Canada.
Less than 24 hours after the B.C. Appeal Court upheld his conviction, Mr. Pickton and his lawyers decided to asked the top court in Canada to consider whether the 60-year old pig farmer received a fair trial.
“A notice of appeal to the Supreme Court of Canada will be filed for Mr. Pickton from the BC Court of Appeal’s decision dismissing his appeal,” Mr. Pickton’s lead lawyer Gil McKinnon said this morning.
“The appeal will be based on the dissenting judgment of [Mr. Justice Ian ] Donald,” he said.
The B.C. Appeal Court, in a ruling released Thursday, upheld the conviction on six counts of murder with two judges in support and Judge Donald opposed.
Mr. Pickton’s appeal in B.C. was based solely on the argument that the trial judge failed to provide appropriate instructions to the jury in response to a question after six days of deliberation.
"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.
Crown had relied on the theory that Mr. Pickton acted alone in the killings. The defence repeatedly suggested during the 11-month that someone else may have been the killer. But prosecutors ridiculed the suggestion and led testimony from lead investigators that they could find no evidence that other suspects were involved, Judge Donald wrote in an 11-page dissenting opinion.
However the trial judge told the jury they could convict Mr. Pickton if they were convinced beyond a reasonable doubt that Mr. Pickton was “an active participant,” suggesting that others were involved.
Judge Donald said the trial judge did not provide the jury with instruction on the law of aiding and abetting a crime and how it may apply to circumstances in this case.
“In my opinion, this was an error of law. The failure to instruct created a miscarriage of justice,” Judge Donald stated. “I would order a new trial.”
The trial judge’s comments came at a time when Mr. Pickton’s defence could not do anything to respond satisfactorily, he also said.
Mr. Pickton, 60, was convicted almost six years after his arrest of the murder of Sereena Abotsway, Mona Wilson, Andrea Joesbury, Marnie Frey, Brenda Wolfe and Georgina Papin. He was sentenced to 25 years without parole, which is the maximum sentence by law for first-degree or second-degree murder. The women were dependent on drugs and worked as prostitutes in Vancouver’s Downtown Eastside, one of Canada’s most desolate poverty-stricken neighbourhoods.
Mr. Pickton has also been charged with the first-degree murder of 20 more women from the Downtown Eastside. B.C. Attorney General Mike De Jong has said the charges will be dropped if the conviction on six counts is upheld upon appeal. A further trial would be pointless because Mr. Pickton is already serving the maximum sentence, Crown counsel have said.
More than 60 women have gone missing from the Downtown Eastside since the mid-1990s.