B.C. prosecutors conceded in the Supreme Court of Canada on Thursday that their Crown colleagues dropped the ball at Robert Pickton's murder trial by agreeing to have jurors told that the B.C. pig farmer could only be convicted of murdering six sex-trade workers if he was the actual trigger man.
"The Crown was simply wrong in the context of this case to take that position," said prosecutor Gregory Fitch. "There was no strategic advantage, and it made proof of our case more difficult. The Crown made an error."
However, Mr. Fitch argued that the blunder did not change the fact that Mr. Pickton is overwhelmingly guilty of playing a lead role in the killings, and that it would be a travesty for the court to order a new trial.
His assurances, though, did little to stem questions from a handful of judges who appeared troubled that jurors were given conflicting instructions on how to assess Mr. Pickton's culpability.
Mr. Justice Louis LeBel said the Crown's "fixation" on Mr. Pickton being the sole killer led to the jury getting a flawed understanding of what ingredients were required for it to return a guilty verdict, "raising the possibility of a miscarriage of justice."
Madam Justice Louise Charron led an opposing faction on the court, repeatedly suggesting that it would not have helped Mr. Pickton had the errors had not been made. "Should we send this back for a new trial over something that could not possibly have benefited him?" she asked.
Madam Justice Rosalie Abella interjected: "Given the staggering amount of evidence in this case … where is the prejudice or miscarriage of justice that would justify overturning it?"
After five years of investigation by hundreds of police officers, more than a million pages of evidence and many months of trial, the legitimacy of the jury's guilty verdict has come down to a single question it posed on its sixth day of deliberations. The jury asked B.C. Supreme Court Justice James Williams whether it could convict Mr. Pickton even if he had been aided in the killings by other perpetrators.
Thursday's startling concession by the B.C. Crown - that it erred in having the jury told it could only convict if Mr. Pickton himself did the killing - came along with a plea for the court to logically evaluate the entire case against him.
"He is the one constant in the execution of this scheme," Mr. Fitch said. "His thumb print is on every step."
Mr. Fitch said that Mr. Pickton boasted to friends that he was "the head honcho" of the killings and that he had been stopped just one killing short of his goal of 50 murders.
Defence counsel Gil McKinnon told the court that Mr. Pickton's trial lawyers were caught flat-footed when Judge Williams allowed the Crown to substantially change its theory of the crime.
He argued that the move was vastly unfair to Mr. Pickton, whose entire defence had been predicated on responding to the Crown's theory that he acted alone in killing six sex-trade workers.
Judge Williams's unenlightening response to the jurors' pivotal question merely left the jurors "to roam through individual pieces of evidence without any instruction," Mr. McKinnon said.
He said defence counsel at the trial had "vehemently opposed" the trial judge's intention to tell the jury that it could find Mr. Pickton equally guilty as a sole perpetrator or as a "party" to the killing.
Mr. McKinnon also rejected the Crown's contention that Mr. Pickton's guilt would be a foregone conclusion at a retrial, whether the jury considered him a party to the murders or not.
"It is not enough for the Crown to say, 'Oh, well, there could have been a conviction in any event,' " he said.
Mr. Justice Morris Fish appeared to agree, and added that he found it curious that the Crown had spent the entire trial disparaging the notion that Mr. Pickton acted in concert with others, only to turn around after the jury's question and ask Judge Williams to instruct the jury that Mr. Pickton could have acted in concert with others.
Judge Fish said the defence had fought a single-killer theory and then saw the ground rules change in the middle of jury deliberations.
"The question raised is whether he had a fair trial," Judge Fish said. "Is it fair for the Crown to adopt a position that there was no evidence whatsoever of others being involved, and then argue on appeal that the evidence was otherwise?"