R. v. Pickton (R.W.), (2009) 290 B.C.A.C. 1 (CA)

• Judge: Finch, C.J.B.C., Donald and Low, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 25, 2009
• Jurisdiction: British Columbia
• Citations: (2009), 290 B.C.A.C. 1 (CA);2009 BCCA 300

R. v. Pickton (R.W.) (2009), 290 B.C.A.C. 1 (CA);

    491 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. SE.001

Regina (appellant) v. Robert William Pickton (respondent)

(CA035704; 2009 BCCA 300)

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

British Columbia Court of Appeal

Finch, C.J.B.C., Donald and Low, JJ.A.

June 25, 2009.

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. Immediately after that appeal was heard, the Crown's appeal from the failure to convict the accused of first degree murder was heard. The Crown alleged that the trial judge erred in severing the six counts from the original 26 counts of first degree murder; in excluding certain extrinsic similar fact evidence that the Crown tendered; in ruling the evidence of two Crown witnesses inadmissible; and in his jury charge respecting a Vetrovec warning and the use of similar fact evidence. The Crown conceded that if its appeal was allowed, but the accused's second degree murder convictions were upheld, the order for a new trial for first degree murder should be stayed as serving no useful purpose. The reasons for judgment in both the accused's and Crown's appeal were released concurrently.

The British Columbia Court of Appeal, in a judgment reported (2009), 288 B.C.A.C. 246; 488 W.A.C. 246, dismissed the accused's appeal, upholding the second degree murder convictions.

The British Columbia Court of Appeal allowed the Crown's appeal and ordered a new trial for first degree murder. The court acceded to the Crown's request to stay the new trial where the second degree murder convictions were upheld.

Editor's Note: The Supreme Court of Canada, in a judgment reported (2010), 404 N.R. 198; 290 B.C.A.C. 264; 491 W.A.C. 264, subsequently upheld the accused's second degree murder convictions.

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 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See Criminal Law - Topic 4853 ].

Criminal Law - Topic 4737.1

Procedure - Information or indictment - Charge or count - Indictable offences - Severing counts in an indictment - The accused was charged with 26 counts of first degree murder - He allegedly lured all 26 victims (missing drug-addicted sex trade workers) to his farm, where he killed them, then dismembered them - The trial judge severed six counts from the original 26, primarily because trying all 26 counts together would place an unreasonable burden on the jury (trial management) - The decision was influenced by the judge's opinion that the evidence on the 20 counts would not be admissible as similar fact evidence respecting the severed six counts - The judge did not determine whether the evidence on the six counts would be admissible similar fact evidence on the remaining 20 counts - The British Columbia Court of Appeal allowed the Crown's appeal respecting severance - The court stated, inter alia, that "the learned trial judge lost sight of the global impact of the evidence on all 26 counts, and of its probative value to show a modus operandi, which underpinned the Crown's case of planned and deliberate murder. ... In asking whether the evidence on the 20 counts could be admitted as similar fact evidence with respect to the six counts, the learned trial judge posed the wrong question and, as a result, reached the wrong conclusion. The correct question was whether the evidence in respect of each of the 26 counts was sufficiently similar to the evidence in respect of the other counts that the perpetrator of one was probably the perpetrator of one or more of the others. If the judge had asked that question he could only have concluded that the evidence on all 26 counts was admissible on each of the other counts as showing a modus operandi pointing in the direction of the [accused] as the perpetrator. ... A trial on all 26 counts, with admissibility of cross-count similar fact evidence, would have caused prejudice to the [accused]. He would have had a more difficult case to answer. But I do not think it would have given rise to either unfair reasoning prejudice or moral prejudice." - See paragraphs 47 to 97.

Criminal Law - Topic 4828

Appeals - Indictable offences - Right of appeal - By Crown - [See Criminal Law - Topic 4860 ].

Criminal Law - Topic 4853

Appeals - Indictable offences - Grounds of appeal - Grounds raised for the first time on appeal - On appeal from an accused's acquittal on six counts of first degree murder, the Crown submitted that the trial judge erred in his jury instruction respecting the testimony of unsavoury witnesses (Vetrovec warning) - The Crown had participated in, and approved, the drafting of the jury charge, but took a different position on appeal - The British Columbia Court of Appeal held that the Crown was precluded from raising this ground of appeal - Previous caselaw precluded an accused from arguing on appeal that a trial judge erred in responding to a jury question when the accused suggested the response and did not object - The Crown had to be held at least to the same standard - See paragraphs 170 to 171.

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - Question of law or error of law - Section 676(1)(a) of the Criminal Code limited the Crown's right to appeal an accused's acquittal to "a question of law alone" - The British Columbia Court of Appeal stated that "the application of a legal standard to the facts of a case is sufficient to raise a question of law, and it is of no import that it is not a question of law alone. ... On questions involving the application of a legal standard to a set of facts, the appellate court must be able to 'extricate the legal questions from the factual' in order to find error of law ... Extricable legal errors include the application of an incorrect standard, failure to consider a required element of a legal test, or similar error in principle." - See paragraphs 38 to 46.

Criminal Law - Topic 4944

Appeals - Indictable offences - New trials - When available - General - [See Criminal Law - Topic 4983 ].

Criminal Law - Topic 4983

Appeals - Indictable offences - Powers of Court of Appeal - Power to make any order that justice requires - An accused charged with six counts of first degree murder was convicted by a jury of second degree murder - The accused appealed his second degree murder convictions - The Crown appealed the acquittals - The Crown sought a new trial for first degree murder, but sought to have that stayed if the accused's appeal from his second degree murder convictions was ultimately dismissed - The Crown argued that it would not be in the public interest to retry the accused if the accused's appeal failed, because the accused had been sentenced to life imprisonment without eligibility for parole for 25 years - Accordingly, retrying the accused merely to change second degree murder to first degree murder would serve no purpose - The accused argued that if the Crown succeeded, and his conviction appeal failed, he was entitled to a new trial for first degree murder and the second degree murder convictions had to be set aside - The British Columbia Court of Appeal acceded to the Crown's request - Section 686(4) of the Criminal Code empowered the court to "make any order, in addition, that justice requires" - The court stated that "there would be no useful purpose in a retrial on those same offences as charges of first degree murder. Such a trial would impose further enormous demands on financial and judicial resources to achieve a final practical disposition that has already been arrived at on the first trial. It would be manifestly redundant and unfair to compel such a result." - See paragraphs 193 to 207.

Criminal Law - Topic 5212

Evidence and witnesses - Admissibility and relevancy - Similar acts - General (incl. procedure) - The British Columbia Court of Appeal stated that "the gate-keeping function of the trial judge on the admissibility of similar fact evidence does require him to consider not only the relevance of the disputed evidence, but also its weight ... as well as the quality and reliability of the evidence. To this extent the judge is required to invade the province of the jury, and there is no sharp line as to where that invasion becomes impermissible" - See paragraph 138.

Criminal Law - Topic 5214

Evidence and witnesses - Admissibility and relevancy - Similar acts - Where indictment includes several counts - [See Criminal Law - Topic 4737.1 ].

Criminal Law - Topic 5214.1

Evidence and witnesses - Admissibility and relevancy - Similar acts - To prove identity of accused - The accused was charged with 26 counts of first degree murder - He allegedly lured all 26 victims (missing drug-addicted sex trade workers) to his farm, where he killed them, then dismembered them - The trial judge severed six counts from the original 26 - The Crown proposed to call evidence from one drug-addicted sex trade worker (Person X), who around the time of several of the alleged murders, was lured to the accused's farm to perform sexual services - She would testify that the accused came up behind in an attempt to handcuff her and that she managed to escape by seriously injuring the accused with a knife - The trial judge held that the evidence of Person X was not admissible as similar fact evidence because it lacked sufficient similarity to the facts alleged in the six counts - The British Columbia Court of Appeal allowed the Crown's appeal, stating that "the evidence of Person X only went to prove the first part of the pattern of conduct alleged by the Crown. However, similar fact evidence is admissible even though it may fall short of showing the whole pattern, or a completed act. ... The trial judge's concern appears to have been that admission of Person X's evidence would have led the jury to speculate that [the accused] intended to restrain and kill her, and that but for her successful resistance, he would have. The evidence was not tendered for that purpose. The evidence was offered primarily as proof that the person who invited this downtown eastside drug-addicted sex trade worker, Person X, to his property for sex, was the same person who was responsible for the murders of the six victims on the indictment, as well as for the other purpose identified by the Crown ... In my opinion, the trial judge's exclusion of Person X's evidence was based on extricable error of law. He failed to consider all relevant factors in assessing the similarity of that evidence to the charged conduct, incorrectly evaluated the probative force of that evidence, and failed to consider the prejudicial effect that either admission or exclusion of the evidence would have." - See paragraphs 98 to 128.

Criminal Law - Topic 5214.1

Evidence and witnesses - Admissibility and relevancy - Similar acts - To prove identity of accused - [See Criminal Law - Topic 4737.1 ].

Cases Noticed:

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 4].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 143 C.C.C.(3d) 1, refd to. [para. 39].

R. v. Grouse (D.D.) (2004), 226 N.S.R.(2d) 321; 714 A.P.R. 321; 189 C.C.C.(3d) 357 (C.A.), refd to. [para. 39].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577; 2002 SCC 33, refd to. [para. 41].

R. v. Sherwood, [1980] B.C.J. No. 757 (C.A.), refd to. [para. 44].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, refd to. [para. 53].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 164 C.C.C.(3d) 481, refd to. [para. 53].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 76].

R. v. G.T. (2004), 191 O.A.C. 144; 190 C.C.C.(3d) 31 (C.A.), refd to. [para. 92].

R. v. Shearing (I.), [2002] 3 S.C.R. 33; 290 N.R. 225; 168 B.C.A.C. 161; 275 W.A.C. 161; 165 C.C.C.(3d) 225, refd to. [para. 104].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 162].

R. v. Vankoughnett (C.J.), [2008] B.C.A.C. Uned. 91; 2008 BCCA 261, refd to. [para. 179].

R. v. Chandrakumar (S.) (2007), 231 O.A.C. 30; 2007 ONCA 798, refd to. [para. 179].

R. v. Ferguson (L.) (2000), 130 O.A.C. 253; 142 C.C.C.(3d) 353 (C.A.), affd. [2001] 1 S.C.R. 281; 265 N.R. 201; 142 O.A.C. 92, refd to. [para. 179].

R. v. M.A., [2006] O.A.C. Uned. 529; 214 C.C.C.(3d) 38 (C.A.), refd to. [para. 179].

R. v. Munroe, [1940] 2 D.L.R. 579 (B.C.C.A.), refd to. [para. 190].

R. v. Cullen, [1949] S.C.R. 658; 94 C.C.C. 337, refd to. [para. 190].

R. v. Budai (M.K.) et al. (2001), 153 B.C.A.C. 98; 251 W.A.C. 98; 154 C.C.C.(3d) 289 (C.A.), refd to. [para. 190].

R. v. Luedecke (2008), 93 O.R.(3d) 89 (C.A.), refd to. [para. 200].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 676(1)(a) [para. 38]; sect. 686(8) [para. 194].

Counsel:

G.J. Fitch, Q.C., J.M. Gordon, Q.C., G. Baragar, S.J. Brown, J. Duncan and K. McIntosh, for the appellant;

G.D. McKinnon, Q.C., and P. McGowan, for the respondent.

This appeal was heard on April 6-9, 2009, at Vancouver, B.C., before Finch, C.J.B.C., Donald and Low, JJ.A., of the British Columbia Court of Appeal.

On June 25, 2009, Finch, C.J.B.C., delivered the following judgment for the Court of Appeal.