R. v. Pickton (R.W.), (2010) 290 B.C.A.C. 264 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: July 30, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 290 B.C.A.C. 264 (SCC);2010 SCC 32;[2010] EXP 2463;JE 2010-1375;257 CCC (3d) 296;404 NR 198;[2010] 2 SCR 198;290 BCAC 264;[2010] SCJ No 32 (QL);EYB 2010-177244;321 DLR (4th) 577;77 CR (6th) 12

R. v. Pickton (R.W.) (2010), 290 B.C.A.C. 264 (SCC);

    491 W.A.C. 264

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2010] B.C.A.C. TBEd. JL.038

Robert William Pickton (appellant) v. Her Majesty The Queen (respondent)

(33288; 2010 SCC 32; 2010 CSC 32)

Indexed As: R. v. Pickton (R.W.)

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

July 30, 2010.

Summary:

The accused was convicted by a jury on six counts of second degree murder. On the sixth day of deliberations the jury posed the following question: "When considering Element 3 [identity] on one or more of the counts, are we able to say 'yes', if we infer that the accused acted indirectly?". The accused appealed his convictions, submitting that "the trial judge erred in failing to clarify with the jury the meaning of their question before repeating the jury instruction previously given" and that "the trial judge, in a second re-charge, answered this question in compliance with a new co-principal theory of criminal liability advanced by the Crown for the first time in response to the jury question and this rendered the trial unfair". The accused also argued that although the charge and neither re-charge included instruction on aiding and abetting, an opening instruction given in writing to the jury at the commencement of the trial did include paragraphs that discussed those subjects, which paragraphs were not removed from the binder of documents that each juror had during deliberations. The appellant's argument was that these errors led to the convictions on a party basis that was not properly before the jury or with respect to which there was either no instruction or inadequate instruction. The Crown argued that the case was presented to the jury on the law of parties as required by the evidence before the court and, alternatively, if there was error in the charge or the re-charges, the appeal should be dismissed as there was no substantial wrong or miscarriage of justice.

The British Columbia Court of Appeal, in a judgment reported 288 B.C.A.C. 246; 488 W.A.C. 246, dismissed the appeal. The trial judge, in answering the jury's question, did not err in removing from the jury only the sole perpetrator theory as a means of guilt. He acted correctly in providing the jury with instructions embracing the law of co-principal. The final instruction on the co-principal route to criminal liability was sufficient. It adequately informed the jury of the law applicable to the alternate path to conviction that had to be considered. Donald, J.A., dissenting, would have allowed the appeal and ordered a new trial on the ground that the failure to instruct the jury on aiding and abetting was a misdirection amounting to a serious error of law. Donald, J.A., stated that "1. 'Active participant' in context is ambiguous and leaves open secondary liability as an aider and abettor. 2. The phrase in the jury's question 'acted indirectly' encompasses aiding and abetting. 3. The judge had to answer the question fully and correctly. 4. There is a basis in the evidence for aiding and abetting. 5. There is a risk that without an instruction on secondary liability, the jury might have convicted on acts that do not constitute aiding and abetting." The accused appealed.

The Supreme Court of Canada dismissed the appeal. The majority of the court held, per Charron, J. (McLachlin, C.J.C., Deschamps, Abella, Rothstein and Cromwell, JJ., concurring) that although the overall jury instructions (including the re-charges) were imperfect, they adequately conveyed to the jury the relevant legal principles as they applied to the facts of the case. LeBel, J. (Binnie and Fish, JJ., concurring), opined that the jury instructions were in error (failure to leave jury with a full aiding and abetting instruction), but would have dismissed the appeal by applying the curative proviso of s. 686(1)(b)(iii) of the Criminal Code where, due to the overwhelming evidence against the accused, the verdict would necessarily have been the same but for the error.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 1265

Murder - General principles - Jury charge - General - The accused was convicted by a jury of six counts of second degree murder - On a re-charge the trial judge instructed the jury that they could find the accused guilty if he actually killed the victims or if he was an "otherwise active participant in the killing" - The British Columbia Court of Appeal held that there was no error in not defining "active participant" further for the jury - It did not require explanation - "Active participant" was descriptive and sufficient to convey to the jury that mere presence at the killings was not enough, but that a physical role in the actual killings was enough - The instruction respecting criminal liability as a co-principal was not inadequate - The court referred to the correct statement of the law respecting "co-principal/aiding/abetting routes to liability" - The jury had to be advised of the following three possibilities: "(1) The appellant, acting alone, was the murderer; (2) The appellant, acting in concert with one or more persons, was the murderer; (3) The Crown failed to prove beyond a reasonable doubt that the appellant, acting alone or not, was the murderer" - The jury charge, read in its entirety, clearly and adequately set out these three possibilities for the jury - The Supreme Court of Canada agreed, stating that "the jury instructions on the alternate routes to liability were adequate in the context of the evidence and the issues raised at trial" - See paragraph 32.

Criminal Law - Topic 2759

Attempts, conspiracies, accessories and parties - Parties to offences - Jury charge - The Supreme Court of Canada, per LeBel, J. (concurring in the result), stated that "first, if there is evidence admitted at trial which properly supports an alternate mode of liability under s. 21, an instruction on that section should be left with the jury, even though the identity of the other participant or participants is unknown, and even though the precise part played by each participant may be uncertain. Second, it is not necessary for the trial judge to relate the law to the evidence which could support the alternate theory of aiding and abetting where evidence adduced by the Crown relates to either mode of participation, and evidence adduced by the defence relates to either the accused's innocence or the accused's guilt under the relevant subsection(s) of s. 21. Finally, a jury need not be unanimous on the nature of the accused's participation in the offence, so long as it is satisfied that the accused either committed the offence personally or, alternatively, aided and abetted another to commit the offence, provided the jury is satisfied beyond a reasonable doubt that the accused did one or the other." - See paragraph 58.

Criminal Law - Topic 4342

Procedure - Jury - Evidence - Questions by jury - The accused was convicted by a jury on six counts of second degree murder - On the sixth day of deliberations the jury posed the following question: "When considering Element 3 [identity] on one or more of the counts, are we able to say 'yes', if we infer that the accused acted indirectly?" - The accused appealed his convictions, submitting that "the trial judge erred in failing to clarify with the jury the meaning of their question before repeating the jury instruction previously given" - The accused alleged that the words "acted ambiguously" were ambiguous - The British Columbia Court of Appeal stated that "if a jury question is difficult for the court to understand, the court should not speculate as to the concern of the jury and should seek clarification of the question from the jury, but should proceed cautiously in seeking the clarification" - There was no doubt that the jury wanted to know whether the Crown had to prove that the accused actually killed the victims or if there was some alternative route to criminal liability (e.g. criminally liable as a party) - The question was not vague and the trial judge did not err in not seeking clarification - The Supreme Court of Canada agreed.

Criminal Law - Topic 4391

Procedure - Charge or directions - Jury or judge alone - Redirection or further direction - [See Criminal Law - Topic 1265 ].

Criminal Law - Topic 4391.2

Procedure - Charge or directions - Jury or judge alone - Directions following questions by jury - [See Criminal Law - Topic 4397 ].

Criminal Law - Topic 4397

Procedure - Charge or directions - Jury or judge alone - Directions re matters or theories not raised by counsel - The accused was convicted by a jury of six counts of second degree murder - The Crown's primary focus was that the accused was the sole perpetrator - The accused denied killing the victims, alleging that others were responsible - Other persons of interest were investigated, but the Crown chose not to charge them for want of evidence - A jury question on the sixth day of deliberations related to whether they could find the accused guilty "if we infer that the accused acted indirectly" (i.e., co-principal theory of criminal liability) - On a re-charge, the jury was instructed that they did not have to find that the accused acted alone; that they could find him guilty if he was not the killer but actively participated with others - The accused appealed his convictions on the ground that the Crown relied on the sole perpetrator theory, rendering it unfair to now leave before the jury the possibility of guilt based on the co-principal route to criminal liability - The British Columbia Court of Appeal dismissed the appeal - Although the Crown's main argument was that the accused was the sole killer, the co-principal route to liability was before the court throughout - In fact, the accused raised the issue by alleging others were involved - The trial judge had a duty to instruct the jury on any party route to liability that emerged from the evidence - The court stated that "the fact that investigators did not have evidence to charge anyone else ... did not foreclose the obvious and necessary consideration by the trial judge and by the trier of fact that one or more other persons might have been involved" - The defence was alive to alternate routes of criminal liability and knew it would be left with the jury - The manner in which the evidence unfolded was inconsistent with only one route to liability being available to the jury - The jury was not restricted to the sole perpetrator theory, as argued by the accused - The Supreme Court of Canada agreed, stating that "nothing would have been gained in this trial by explaining to the jury the distinctions between an accused's participation as principal, co-principal, or aider and abettor. By requiring proof that [the accused] actively participated in the killing of the victims, by acting either on his own or in concert with others, there was no risk that the jury might convict him on the basis of conduct that did not attract criminal liability for the murders" - See paragraph 33.

Cases Noticed:

R. v. Rose (J.), [1998] 3 S.C.R. 262; 232 N.R. 83; 115 O.A.C. 201, refd to. [para. 19].

R. v. Ranger (R.) (2003), 176 O.A.C. 226; 178 C.C.C.(3d) 375 (C.A.), refd to. [para. 20].

R. v. Thatcher, [1987] 1 S.C.R. 652; 75 N.R. 198; 57 Sask.R. 113, refd to. [para. 33].

R. v. Bernardo (P.K.) (1997), 105 O.A.C. 244; 121 C.C.C.(3d) 123 (C.A.), refd to. [para. 37].

R. v. Chow Bew, [1956] S.C.R. 124, refd to. [para. 51].

R. v. Harder, [1956] S.C.R. 489, refd to. [para. 51].

R. v. Sparrow (1979), 51 C.C.C.(2d) 443 (Ont. C.A.), refd to. [para. 55].

R. v. Isaac, [1984] 1 S.C.R. 74; 51 N.R. 308, refd to. [para. 55].

R. v. Nette (D.M.), [2001] 3 S.C.R. 488; 277 N.R. 301; 158 B.C.A.C. 98; 258 W.A.C. 98; 2001 SCC 78, refd to. [para. 60].

R. v. Mena (1987), 20 O.A.C. 50; 34 C.C.C.(3d) 304 (C.A.), refd to. [para. 63].

R. v. McMaster (R.A.) et al., [1996] 1 S.C.R. 740; 194 N.R. 278; 181 A.R. 199; 116 W.A.C. 199, refd to. [para. 64].

R. v. Suzack (C.V.) et al. (2000), 128 O.A.C. 140; 141 C.C.C.(3d) 449 (C.A.), refd to. [para. 68].

R. v. Miller and Cockriell, [1977] 2 S.C.R. 680; 11 N.R. 386, refd to. [para. 71].

R. v. Briscoe (M.E.) et al., [2010] 1 S.C.R. 411; 400 N.R. 216; 477 A.R. 86; 483 W.A.C. 86; 2010 SCC 13, refd to. [para. 76].

R. v. Mercer (S.M.) (2005), 210 B.C.A.C. 109; 348 W.A.C. 109; 202 C.C.C.(3d) 130; 2005 BCCA 144, leave to appeal denied [2005] 2 S.C.R. x; 347 N.R. 199; 226 B.C.A.C. 318; 449 W.A.C. 318, refd to. [para. 81].

R. v. Perrier (J.L.), [2004] 3 S.C.R. 228; 325 N.R. 206; 203 B.C.A.C. 4; 332 W.A.C. 4; 2004 SCC 56, refd to. [para. 82].

R. v. Van (D.), [2009] 1 S.C.R. 716; 388 N.R. 200; 251 O.A.C. 295; 2009 SCC 22, refd to. [para. 84].

R. v. Trochym (S.J.), [2007] 1 S.C.R. 239; 357 N.R. 201; 221 O.A.C. 281; 2007 SCC 6, refd to. [para. 85].

Counsel:

Gil D. McKinnon, Q.C., Patrick McGowan and Marilyn Sandford, for the appellant;

Gregory J. Fitch, Q.C., and John M. Gordon, Q.C., for the respondent.

Solicitors of Record:

Gil D. McKinnon, Q.C., Vancouver, B.C., for the appellant;

Attorney General of British Columbia, Vancouver, B.C., for the respondent.

This appeal was heard on March 25, 2010, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada.

On July 30, 2010, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Charron, J. (McLachlin, C.J.C., Deschamps, Abella, Rothstein and Cromwell, JJ., concurring) - see paragraphs 1 to 36;

LeBel, J. (Binnie and Fish, JJ., concurring) - see paragraphs 37 to 88.