Vancouver — From Thursday's Globe and Mail Published on Wednesday, Dec. 30, 2009 9:16PM EST Last updated on Wednesday, Dec. 30, 2009 9:57PM EST
Serial killer Robert Pickton may have been found guilty for activities that are not even criminal, his lawyers say in an appeal to the Supreme Court of Canada.
In a bid to overturn his conviction of the second-degree murder of six women, his lawyers also say Mr. Pickton's Charter rights to a fair trial and to respond fully to the charges against him were infringed.
“There was a real risk that the jury convicted [Mr. 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 activity,” Mr. Pickton's lawyers Gil McKinnon and Patrick McGowan state in a 63-page submission to the court.
“Trial fairness is at the heart of this appeal,” they say. “No matter how heinous the crime, an accused has a constitutional right to a fair trial.”
The Supreme Court of Canada is to hear Mr. Pickton's closely watched appeal on March 25. He is asking the court to overturn his conviction and order a new trial. Mr. Pickton was found guilty in a jury trial in December, 2007. The Court of Appeal, in a 2-to-1 decision, upheld the conviction.
Mr. Pickton has also been charged with the murder of 20 additional women. All were dependent on drugs and worked as prostitutes in Vancouver's Downtown Eastside neighbourhood, Canada's poorest postal code.
Mr. Pickton's lawyers say Crown prosecutors maintained throughout the trial that Mr. Pickton was the person who killed the six women and that he acted alone.
The trial judge instructed the jurors that they must return a verdict of not guilty if they had a reasonable doubt about whether Mr. Pickton shot the women.
But after six days of deliberating, the jury sent a note to the judge asking if it could find Mr. Pickton was the killer if it inferred he “acted indirectly.”
The trial judge acknowledged he did not know what the jury meant by “acted indirectly,” but did not ask for clarification. He called the jurors back into the courtroom and revised his instructions, saying they could convict Mr. Pickton if they found he shot the victim or was otherwise “an active participant” in the killing.
The trial judge amended the charges against Mr. Pickton “to include an ill-defined, alternative basis for finding [Mr.] Pickton guilty,” the lawyers say.
Two days later, the jury convicted Mr. Pickton of second-degree murder.
Mr. Pickton's lawyers say the issue in the appeal is whether the trial judge's response to the jury, in the context of his previous instructions and the entire trial, compromised the fairness of the trial.
“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,” the lawyers say.
“If [Mr.] Pickton was not the shooter, there was nothing to support a finding that he was present when [someone else] shot the women and that he did some culpable act that significantly contributed toward the cause of death,” they say.
The lawyers say the trial judge erred procedurally when he answered the jurors' question without having a clear understanding of the problem that was troubling them and erred substantively in failing to give a proper response.
Gil McKinnon, Mr. Pickton's lead lawyer, declined yesterday to comment on his written submissions to court. The Crown lawyers have not yet made any submissions.
Mr. Pickton was convicted of murdering Sereena Abotsway, Mona Wilson, Andrea Joesbury, Marnie Frey, Brenda Wolfe and Georgina Papin.
Globe and Mail