The judge at Robert Pickton's trial made an error in law by deciding the jury should only hear evidence on six of 26 murder charges against the pig farmer, the B.C. Court of Appeal was told yesterday.
"An efficient trial was achieved, but in our submission it was achieved at the expense of a just one," Crown prosecutor Gregory Fitch told a three-member panel on the appeal court.
"The Crown had an overwhelming case that these murders were planned and deliberate," he said. "This overwhelming case is one Mr. Pickton was never called upon to answer."
In a sensational trial in 2007 that attracted international attention, Mr. Pickton was convicted of second-degree murder of six women dependent on drugs who had lived in Vancouver's Downtown Eastside. The prosecution had charged him with the first-degree murder of 26 women.
Yesterday the Crown began a four-day appeal to overturn the acquittal on first-degree murder charges, and to set aside the trial judge's decision to have the first trial on only six charges and to hold back the remaining 20 for a second trial.
Publication bans from the trial on evidence that has not been heard by a jury prohibit media coverage of much of Mr. Fitch's submission to the appeal court. Most of the ruling that split the murder charges into six and 20 also remains under a publication ban.
However the trial judge, Mr. Justice James Williams of B.C. Supreme Court, released a one-page excerpt of his ruling during the trial.
The judge stated he decided that a trial on 26 charges would impose "an unreasonable burden" on jurors as a result of the anticipated length of the trial, the volume and nature of the evidence, and the complexity of the legal tasks that would be required of them.
The severance of murder charges into six and 20 would cause "some inconveniences," he wrote. "However, the proper exercise of my discretion to maximize the likelihood that this trial will proceed properly to verdict, without mistrial, made necessary an order for severance."
He selected six murder charges for the first trial based on the evidence against Mr. Pickton, Judge Williams also stated. "The evidence in support of those charges is materially different than that with respect to the others," he wrote.
Mr. Fitch told the appeal court judges that the trial judge's concern about the manageability of an indictment with 26 murder charges was an appropriate consideration.
"But he could not properly apply the law to sever this indictment on the basis that he did, that the evidence on more than two-thirds of the counts would not be admissible," Mr. Fitch said.
The severance order left the jury with a highly distorted picture of Mr. Pickton's conduct, undermined some aspects of the Crown's case and erected barriers to the jury's ability to assess Mr. Pickton's conduct "in its full and proper context," Mr. Fitch said.
"In some cases, evidence against an accused person is so interlaced it cannot be segregated without, at least, risking distorting the whole picture.
"That, in our submission, is what happened here," he added.
Mr. Fitch also told the appeal court that the Crown would re-try Mr. Pickton only if Mr. Pickton succeeds in his appeal of the second-degree murder charges. Last week, Mr. Pickton's lawyers asked the appeal court to overturn his conviction.
Mr. Pickton is currently sentenced to 25 years without parole, which is the maximum sentence by law.
If his conviction is upheld, it would not be in the public interest to order a new trial on six murders solely to relabel his conduct as first-degree murder, rather than second degree, Mr. Fitch said.
