The Globe and Mail

A long-awaited ruling by the Supreme Court of Canada Friday morning will either send Robert Pickton back to court or slam shut his penitentiary cell.

The Vancouver pig farmer argued that he was not given a fair trial, after an arduous case that consumed five years, featured 129 witnesses and included 1.3 million pages of documents.

Convicted on six charges of second-degree murder in the gruesome deaths of six Vancouver prostitutes and sentenced to life imprisonment with no chance of parole for 25 years, Mr. Pickton still faces another 20 counts. The B.C. Crown has indicated that it will prosecute them if a new trial is ordered on the original six murder charges.

A painstaking police search of Mr. Pickton’s farm uncovered human remains, DNA and other evidence that allegedly connected him to more than two dozen murders. When the trial began, the Crown portrayed Mr. Pickton as the sole killer. It alleged that he lured the women to his farm, shot them, butchered their bodies in his slaughterhouse and buried the remains in different locations.

The key question for Supreme Court revolves around an incident on the sixth day of jury deliberations. The jury returned to ask B.C. Supreme Court Justice James Williams whether they could still convict the Vancouver pig farmer if they decided that he had not acted alone.

Judge Williams told the jury that they could indeed find Mr. Pickton guilty, if he killed the women “or was otherwise an active participant” in the killings. He said that it would be sufficient for them to conclude that Mr. Pickton had “actively participated” in the murders.

Soon afterward, the jury convicted Mr. Pickton on all six counts.

However, Judge Williams’ instruction contradicted his original admonition – delivered prior to the jury deliberations – which stated that the Crown had to prove that Mr. Pickton had actually killed the victims.

Backed by 2-1 judgment of the B.C. Court of Appeal in their favour, Crown counsel Gregory Fitch and John Gordon staunchly defended Judge Williams’s decision in the Supreme Court at a hearing last year. At the same time, they conceded that their colleagues had dropped the ball at trial by agreeing to have jurors told that Mr. Pickton could only be convicted of murdering six sex-trade workers if he was the actual killer.

“There was no strategic advantage, and it made proof of our case more difficult,” Mr. Fitch told the Supreme Court. “The Crown made an error.”

Regardless, Mr. Fitch argued, 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.

Defence counsel Gil McKinnon countered by accusing Judge Williams of mistakenly permitting the Crown to take advantage of the jury’s quandary by recasting its theory of the crime from that of Mr. Pickton acting alone to the possibility of there having been accomplices.

Mr. McKinnon told the court that Mr. Pickton’s trial lawyers had been caught flat-footed when Judge Williams allowed the Crown to substantially change its theory of the crime. The move was unfair to Mr. Pickton, Mr. McKinnon argued, since the entire defence had been predicated on responding to the Crown's theory that he acted alone.

Mr. McKinnon noted that Judge Williams slammed his hand down on his desk in frustration after sending the jury back to deliberate and said that his original instruction about the Crown’s obligation to show that Mr. Pickton was the killer “had trouble written on it right at the time.”

Mr. McKinnon also noted that the Crown had flatly rejected suggestions from the defence during the trial that there were alternate suspects.

At the Supreme Court hearing, Mr. Justice Morris Fish led a faction that expressed reservations about the Pickton defence having effectively been led down the garden path.

Madam Justice Louise Charron and Madam Justice Rosalie Abella took a different tack, repeatedly suggesting that it would not have helped Mr. Pickton had the errors not been made. “Should we send this back for a new trial over something that could not possibly have benefited him?”

Judge Abella interjected: “Given the staggering amount of evidence in this case … where is the prejudice or miscarriage of justice that would justify overturning it?”