It's one of the more troubling questions left unanswered from the sensational murder trial of serial killer Robert Pickton: did he act alone?
Mr. Pickton's lawyer, Gil McKinnon, said yesterday that he intends to ask the Supreme Court of Canada to overturn the appeal court decision that upheld convictions of second-degree murder of six women. The appeal will focus on the trial judge's instructions to jury members in response to a question on whether they could convict Mr. Pickton even if they decided he did not act alone.
“When considering [whether Mr. Pickton was the killer], are we able to say ‘yes' if we infer that the accused acted indirectly," the seven men and five women of the jury asked on Dec. 6, 2007.
The prosecution case was based on the position that Mr. Pickton acted alone. Crown counsel repeatedly dismissed defence-counsel suggestions of other suspects. In the closing address to the jury, Crown counsel said suspects proposed by Mr. Pickton's defence were “bogey men” and “straw men.”
However, the trial judge, Mr. Justice James Williams of the B.C. Supreme Court, told the jury members they could convict Mr. Pickton if they were convinced beyond a reasonable doubt that he was “an active participant.”
The appeal court decision, released this week, stated that the trial heard testimony about three suspects: Mr. Pickton's business associate Pat Casanova, and his friends Dinah Taylor and Lynn Ellingsen.
Lead investigator Don Adam told the court in response to defence questioning that Ms. Taylor and Ms. Ellingsen were seen during the police probe as “possible aiders and abettors,” Mr. Justice Richard Low wrote in the 98-page majority opinion. The police officer testified that the three people at different times were arrested in connection with the murders, but there was no evidence to lay any charges against any of them, Judge Low stated.
RCMP officer Wayne Clary, who became the primary investigator in 2004, also testified that he fully looked into whether Ms. Taylor, Ms. Ellingsen or Mr. Casanova participated in the killings or their aftermath. He concluded there was no evidence to justify any charges against them, the judge wrote.
However, Judge Low decided that the defence had raised the possibility of suspects other than Mr. Pickton. The attempt by Crown counsel to prove that Mr. Pickton was the sole killer did not mean the jury could not consider others, he said.
Mr. McKinnon said the appeal to Canada's top court will be based on the dissenting opinion of Mr. Justice Ian Donald, who said the trial judge did not instruct the jury on the law of aiding and abetting and how it may apply to this case.
“In my opinion, this was an error of law. The failure to instruct created a miscarriage of justice,” Judge Donald stated. “I would order a new trial.” The trial judge's comments came when Mr. Pickton's defence could not do anything to respond satisfactorily, he said.
Mr. Pickton, 60, was convicted almost six years after his arrest for the murder of Sereena Abotsway, Mona Wilson, Andrea Joesbury, Marnie Frey, Brenda Wolfe and Georgina Papin. He was sentenced to 25 years without parole.
Mr. Pickton has also been charged with the first-degree murder of 20 more women from the Downtown Eastside. B.C. Attorney-General Mike De Jong has said the charges will be dropped if the conviction on six counts is upheld upon appeal. A further trial would be pointless because Mr. Pickton is already serving the maximum sentence, Crown counsel have said.
More than 60 women have gone missing from the Downtown Eastside since the mid-1990s.
