R. v. Pickton

R. v. Pickton
Collection
Supreme Court Judgments
Date
2010-07-30
Neutral citation
2010 SCC 32
Report
[2010] 2 SCR 198
Case number
33288
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
British Columbia
Subjects
Criminal law
Notes
SCC Case Information: 33288
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198
Date: 20100730 Docket: 33288
Between:
Robert William Pickton
Appellant
and
Her Majesty The Queen
Respondent
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment: (paras. 1 to 36)
Partially Concurring Reasons: (paras. 37 to 88)
Charron J. (McLachlin C.J. and Deschamps, Abella, Rothstein and Cromwell JJ. concurring)
LeBel J. (Binnie and Fish JJ. concurring)
______________________________
R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198
Robert William Pickton Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Pickton
2010 SCC 32
File No.: 33288.
2010: March 25; 2010: July 30.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for british columbia
Criminal law — Trial — Fair trial — Charge to jury — Accused charged with several counts of first degree murder — Crown maintaining that accused actually shot and killed victims — Trial judge instructing jury that if they had reasonable doubt whether accused shot victims they should return not guilty verdict — Trial judge subsequently instructing jury following question during their deliberations that they could find that accused was killer if he “was otherwise an active participant” in killings — Accused convicted of second degree murder — Whether trial judge’s response to jury question undermined fairness of trial and occasioned miscarriage of justice — Whether instructions as a whole, including response to jury question, adequately conveyed law on potential routes to criminal liability.
The accused was charged with several counts of first degree murder after the police found the dismembered remains of the victims on his property. Throughout the trial, the Crown maintained that the accused had actually shot and killed the women. The defence took the position that the Crown had failed to prove that the accused was the sole perpetrator, suggesting the potential involvement of others to the exclusion of the accused. On the fourth and last day of instructions to the jury, the defence requested that the trial judge specifically instruct the jury in accordance with the respective theories of the parties. The Crown consented to the request and the trial judge instructed the jury on those counts in respect of which the evidence was clear that the victim had died of a gunshot wound that, if they found that the accused had shot the victims, they should find that the Crown has proven the identity of the killer. On the other hand, if they had a reasonable doubt about whether or not he had shot the victims, they should return a verdict of not guilty. Following a question from the jury on the sixth day of deliberations, the trial judge re-instructed the jury that they could also find that the accused was the killer if he “was otherwise an active participant” in the killings. At the conclusion of the lengthy trial, the jury returned a verdict of guilty of second degree murder on each of the counts. The accused appealed his convictions, arguing that the trial judge’s retraction of the “actual shooter” instruction on the sixth day of deliberations adversely impacted on the fairness of the trial and occasioned a miscarriage of justice. The Court of Appeal, in a majority decision, rejected the accused’s argument and upheld the convictions. The dissenting judge would have granted a new trial on the ground that the trial judge’s failure to instruct the jury on the law of aiding and abetting and how it might apply to this case amounted to a miscarriage of justice.
Held: The appeal should be dismissed.
Per McLachlin C.J. and Deschamps, Abella, Charron, Rothstein and Cromwell JJ.: The majority of the Court of Appeal was correct in finding that no miscarriage of justice was occasioned in this trial. While it was the Crown’s theory that the accused was the sole perpetrator, the record revealed that other routes to liability were also at issue. Not only did the defence theory itself put the participation of others at issue, but the accused’s own statements to the police, which implied the involvement of others but not to the exclusion of the accused, alone made it necessary for the trial judge to instruct the jury on potential routes to liability that went beyond the respective positions of both the Crown and the defence. In his charge, the trial judge explained to the jury what effect any finding that others might have participated in the commission of the offences would have on the question of the accused’s criminal liability. The crux of the other suspects instructions was that it did not matter whether the accused acted alone or with others; provided that he “actively participated” in the killings, and thus had a physical role in them, he could be found criminally liable. The impugned answer to the jury question was consistent with this instruction and, therefore, the contention that the defence was somehow taken by surprise by this course of events is not borne out on the record.
Furthermore, regardless of counsel’s joint position, the trial judge should not have agreed to include the “actual shooter” instruction in the charge. This instruction was not only erroneous in law, but on the facts of this case, it was its addition to the charge which courted a miscarriage of justice. The jury was invited to acquit the accused based on a factual doubt which at law did not necessarily exculpate him. The trial judge properly re-instructed the jury by changing the actual shooter instruction to include the possibility that the accused was “otherwise an active participant in the killing”, so that this instruction was consistent with the other suspects instructions and responsive to the evidence and the central issues of the trial.
The instructions as a whole adequately conveyed to the jury what it needed to know to consider the alternate routes to liability properly. This case was never about whether the accused had a minor role in the killing of the victims. It was about whether or not he had actually killed them. Having regard to the overwhelming evidence about the accused’s having been actively involved in the actual killing of the victims, either by acting alone or in concert with others, and to the charge as a whole, the expressions “acted in concert with” and “active participant in the killing” compendiously captured the alternative routes to liability that were realistically in issue in this trial. While the trial judge could have instructed the jury more fully on the different modes of participation that could ground criminal liability, including the law on aiding and abetting, there was neither a legal error, because he correctly instructed the jury as to the essential elements which the Crown had to prove to establish liability for the murders, nor a miscarriage of justice, because the jury could not have been led into improper reasoning. The absence of an instruction on aiding and abetting could only have enured to the accused’s benefit.
Per Binnie, LeBel and Fish JJ.: The jury was not properly informed of the legal principles which would have allowed them to consider evidence of the accused’s aid and encouragement to an unknown shooter as an alternative means of imposing liability for the murders, but the curative proviso found in s. 686(1)(b)(iii) of the Criminal Code applies. There was overwhelming evidence of the accused’s participation in the murders and, from whichever perspective his participation is considered, he was necessarily either a principal or an aider or abettor. Indeed, a properly instructed jury would likely have convicted the accused of first degree rather than second degree murder.
In relation to causation-based offences such as murder, there can be a difference between factual causation, the scientific “but-for” cause of death, and legal causation, directed at whether the accused person should be held criminally responsible for the consequences that occurred. Party liability as codified in s. 21 of the Criminal Code often bridges the gap which might otherwise exist between factual and legal causation. But, it remains the duty of the trial judge to convey to the jury as triers of fact the relevant legal principles and how they apply to the evidence adduced at trial, so as to avoid the legally irrelevant uncertainty which otherwise might arise.
Although the ultimate legal liability is the same for a principal or an aider or abettor, the findings of fact necessary and specific legal principles which apply to each are different. In the case of an aider or abettor, the main focus is on the intention with which the aid or encouragement was provided. On the record in this case, the acts of aiding or abetting relied upon to make the accused liable for the murders could have included many things, which could similarly have provided the necessary evidence of intention.
Given that there was no evidence that there was more than one operative cause of death, an instruction as to “concerted action” between the accused and one or more third parties needed to make clear to the jury that, if they had a reasonable doubt that the accused personally committed the murders, they needed to be satisfied beyond a reasonable doubt that he at least aided or abetted them. Both the general instruction and the amended “actual shooter” portions of the charge were misleading, and wrong in law. The words “or was otherwise an active participant” did not convey the adequate causal requirement between the accused’s acts and the deaths of the victims for principal liability. The words “or actively participated in the killing of the victim” impermissibly opened up the possibility of the accused’s having acted as an aider or abettor without any further instruction on that route of liability.
Finally, similar fact evidence will be admissible not only to show that an accused personally committed each offence charged as a principal, but also to raise the possibility that the offences were committed, in the alternative, by an accused as an aider or abettor. But, the requisite pattern of conduct must be sufficiently connected to both possibilities on all of the counts.
Cases Cited
By Charron J.
Distinguished: R. v. Ranger (2003), 178 C.C.C. (3d) 375; referred to: R. v. Rose, [1998] 3 S.C.R. 262; R. v. Thatcher, [1987] 1 S.C.R. 652.
By LeBel J.
Considered: R. v. Suzack (2000), 141 C.C.C. (3d) 449; distinguished: R. v. Thatcher, [1987] 1 S.C.R. 652; Miller v. The Queen, [1977] 2 S.C.R. 680; referred to: R. v. Bernardo (1997), 121 C.C.C. (3d) 123; Chow Bew v. The Queen, [1956] S.C.R. 124; R. v. Harder, [1956] S.C.R. 489; R. v. Sparrow (1979), 51 C.C.C. (2d) 443; R. v. Isaac, [1984] 1 S.C.R. 74; R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488; R. v. Mena (1987), 34 C.C.C. (3d) 304; R. v. McMaster, [1996] 1 S.C.R. 740; R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411; R. v. Mercer, 2005 BCCA 144, 202 C.C.C. (3d) 130, leave to appeal refused, [2005] 2 S.C.R. x; R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239.
Statutes and Regulations Cited
Criminal Code , R.S.C. 1985, c. C-46, ss. 21 , 229 , 231(5) , 686(1) (b)(iii).
APPEAL from a judgment of the British Columbia Court of Appeal (Finch C.J.B.C. and Donald and Low JJ.A.), 2009 BCCA 299, 272 B.C.A.C. 252, 459 W.A.C. 252, [2009] B.C.J. No. 1251 (QL), 2009 CarswellBC 3826, upholding the accused’s convictions. Appeal dismissed.
Gil D. McKinnon, Q.C., Patrick McGowan and Marilyn Sandford, for the appellant.
Gregory J. Fitch, Q.C., and John M. Gordon, Q.C., for the respondent.
The judgment of McLachlin C.J. and Deschamps, Abella, Charron, Rothstein and Cromwell JJ. was delivered by
Charron J. —
1. Overview
[1] Robert William Pickton became a person of interest to the police in early 2001 when a task force began collecting the DNA of women missing from the downtown eastside of Vancouver. All the missing women were drug-dependent sex-trade workers who had frequently worked in that area. Mr. Pickton operated a pig butchering business adjacent to his residence on his family’s property in Port Coquitlam, east of Vancouver. The investigation culminated in the discovery of the dismembered remains of many of the women on Mr. Pickton’s property, some in buckets in a freezer in his workshop, some in a garbage pail in the piggery near the slaughterhouse, others elsewhere on the property.
[2] Mr. Pickton was charged with 27 counts of first degree murder.
[3] In pre-trial rulings, the trial judge quashed one count and severed 20 others and the trial proceeded on the remaining six counts of first degree murder. At the conclusion of what was a lengthy trial, the jury returned a verdict of not guilty of first degree murder, but guilty of second degree murder on each of the six counts.
[4] The Crown appealed successfully to the Court of Appeal for British Columbia from the severance order and the six acquittals of first degree murder. A unanimous court ordered a new trial on all 26 counts of first degree murder. No appeal is taken from this judgment. It has been stayed pending final resolution of Mr. Pickton’s appeal.
[5] Mr. Pickton appealed from his convictions of second degree murder. His appeal essentially turned on whether the trial judge’s responses to a question by the jury undermined the fairness of the trial by introducing, as the defence contended, an alternate, ill-defined route to conviction at this late stage of the trial. Mr. Pickton based this contention on the following course of events.
[6] Throughout the trial, the Crown maintained that Mr. Pickton actually shot/killed the six women. The defence took the position that the Crown failed to prove that Mr. Pickton was the sole perpetrator, suggesting the potential involvement of others to the exclusion of Mr. Pickton. On the fourth and last day of instructions to the jury, the defence requested that the trial judge specifically instruct the jury in accordance with the respective theories of the parties by adding what has been referred to as the “actual shooter” instruction. The Crown consented to the request, and the trial judge accordingly gave the following jury instruction in respect of the first three counts, each relating to a victim who, it was accepted by both counsel, died as a result of a gunshot wound to the head (the Crown relied on a similar-fact inference to prove that the other three women had also been murdered by Mr. Pickton):
If you find that Mr. Pickton shot [name of victim], you should find that the Crown has proven [element 3, the identity of the killer]. On the other hand, if you have a reasonable doubt about whether or not he shot her, you must return a verdict of not guilty on the charge of murdering her. [Emphasis added.]
Mr. Pickton argued that for the trial judge to later retract from this instruction on the sixth day of deliberations, by instructing the jury that they could also find that he was the killer if he “was otherwise an active participant” in the killings, occasioned a miscarriage of justice.
[7] Low J.A. (Finch C.J.B.C. concurring) rejected Mr. Pickton’s argument (2009 BCCA 299, 272 B.C.A.C. 252). While it was the Crown’s theory that Mr. Pickton was the sole perpetrator, the record revealed that other routes to liability were also at issue throughout the trial. Accordingly, the trial judge correctly instructed the jury in several parts of the charge that it was not necessary to find that Mr. Pickton acted alone in order to find him guilty of the offence. The jury’s question whether they could find that Mr. Pickton was the killer if they inferred that he “acted indirectly” stemmed from the inconsistency in the charge between these other suspects instructions and the actual shooter instruction. The trial judge was correct to rectify the inconsistency, and in the majority’s view, the overall instructions with respect to the parties issue were adequate.
[8] Donald J.A., in dissent, would have granted a new trial on the ground that the trial judge’s failure to instruct the jury on the law of aiding and abetting and how it may apply to this case amounted to a miscarriage of justice to which the curative proviso in s. 686(1)(b)(iii) of the Criminal Code , R.S.C. 1985, c. C-46 , could not be applied.
[9] In this Court, Mr. Pickton repeats his argument that there was a miscarriage of justice and relies for support on the dissenting judgment of Donald J.A.
[10] In my view, the majority was correct in finding that no miscarriage of justice was occasioned in this trial. There is no question that the trial judge could have instructed the jury more fully on the different modes of participation that could ground criminal liability, including the law on aiding and abetting. In hindsight and from a legalistic standpoint, it is easy to argue that he probably should have done so. However, the adequacy of the jury instructions must be assessed in the context of the evidence and the trial as a whole. There is nothing wrong, particularly in complex or lengthy trials, with the trial judge and counsel’s narrowing the issues for the jury by focussing on what is actually and realistically at issue in the case, provided that, at the end of the day, the jury is given the necessary instructions to arrive at a just and proper verdict.
[11] Realistically, this case was never about whether Mr. Pickton had a minor role in the murder of the victims. It was about whether or not he had actually killed them. Accordingly, the jury was left with instructions that required the Crown to prove that he “actively participated”, and thus had a physical role, in the killings of the six women. As stated earlier, from a legalistic standpoint, these instructions did not reflect all potential modes of participation. However, by limiting the grounds of liability in this manner, the instructions were unduly favourable to the defence. Mr. Pickton argues nonetheless that there was a miscarriage of justice. His argument rests on the fact that the trial judge ultimately retracted the actual shooter instruction from the jury’s consideration. In my view, this argument must fail. The actual shooter instruction was not only erroneous in law, but also on the facts of this case it was its addition to the charge which courted a miscarriage of justice. The jury was invited to acquit Mr. Pickton based on a factual doubt which at law did not necessarily exculpate him. The trial judge was therefore correct in ultimately rectifying this error by appropriately re-charging the jury.
[12] Further, given the evidence at trial, the absence of an instruction on Mr. Pickton’s liability as an aider and abettor could only have enured to his benefit. Although imperfect, the overall charge adequately conveyed to the jury the relevant legal principles as they applied to the facts of the case. I would dismiss the appeal and affirm the convictions.
2. Analysis
[13] As outlined above, the central issue in this appeal is whether, in the context of the main charge and the trial as a whole, the trial judge’s response to the sole question posed by the jury effectively changed the “goal posts”, as Mr. Pickton’s counsel put it, thereby adversely impacting on the fairness of the trial. A subsidiary issue arises whether the instructions as a whole, including the response to the jury question, adequately conveyed the law on the potential routes to criminal liability.
[14] The evidence adduced at trial was described in considerable detail by Low J.A., at paras. 6-118. None of this evidence is at issue in this appeal. In order to situate the issues in their factual context, it will suffice to outline briefly the more salient features of the evidence, as presented by the parties in their respective facta.
[15] The Crown summarizes its case against Mr. Pickton as follows:
The evidence established that Pickton frequented the [downtown eastside of Vancouver] DTES and used the services provided by sex trade workers. He lured these women away from their usual working areas to his Port Coquitlam farm 30 kilometres away by offering additional money, drugs, or both. A firearm consistent in its calibre and class characteristics with the gun used to kill three of the women was found in the laundry room of his residential trailer. Pickton had lived in this trailer, situated at the north end of the 17 acre farm, since 1997. Various restraint devices, some bearing DNA matched to Pickton, were found in his bedroom and in a duffle bag in the loft area of his workshop, one of a number of outbuildings at the north end of the property used by Pickton in his daily activities. Personal belongings and trace DNA of four of the six victims were found throughout Pickton’s trailer. Together with the recovered bodily remains, all this evidence was located within a 70 metre radius of his trailer.
Pickton was a butcher by avocation. He had the tools of the trade and slaughtered pigs in his slaughterhouse on the farm on a weekly basis. The state of the remains of three of the victims (bisected skulls, hands and feet) showed unmistakable signs of having been butchered in a manner similar to the way Pickton butchered large pigs, including the vertical bisection of the skull using a saw and the removal of the hands and feet by a process known as disarticulation.
Pickton told Andrew Bellwood that he lured sex trade workers from the DTES to his home, had sex with them, restrained them with handcuffs, strangled them with a piece of wire, butchered them in his slaughterhouse and disposed of their remains, including at a rendering plant. Pickton regularly disposed of barrels of offal at a rendering plant near the DTES. Recovered from the headboard of Pickton’s bed was a knotted length of insulated electrical wire capable of being used as a ligature. Pickton made no mention of others in his description of this scheme.
An eyewitness, Lynn Ellingsen, testified she accompanied Pickton to the DTES one evening where he engaged a sex trade worker and brought her back to the farm. Later that evening, Ellingsen saw Pickton disembowelling the woman in his slaughterhouse. Ellingsen identified this woman as the victim in Count 5.
Both Bellwood and Ellingsen provided statements to the police recounting this confession and this eyewitness account before any remains of the victims had been found at the north end, Pickton’s end, of the farm.
In his formal statement to the police, Pickton admitted to being the “head honcho” responsible for the deaths of missing women, but said that others were involved too. His references to the involvement of others did not, at the same time, exclude his own participation in the killings. To an undercover officer posing as his cellmate, Pickton admitted to being a serial killer who had killed forty-nine women and planned to kill one more to make an “even fifty.” He told the officer that he disposed of his victims’ remains at a rendering plant. He admitted getting caught because he had become “sloppy towards the end.” The victims whose heads, hands and feet were recovered from his outbuildings were the last three victims in time.
[16] In turn, Mr. Pickton sets out in his factum the thrust of the defence advanced at trial:
The Defence responded to the Crown’s case by attempting to show that Pickton’s farm was a bee-hive of activity, that other persons, unknown and known (Dinah Taylor, Pat Casanova), used Pickton’s place to kill the women without Pickton being criminally involved. Pickton did not testify but he called 31 witnesses. The Defence argued that Pickton’s statements to the police did not amount to reliable admissions that he killed anyone. Rather, Pickton scored low on verbal intelligence tests, was simply parroting back to the police accusations that were put to him in a 12 hour interrogation in an attempt to get the police off his property and lessen the impact of the investigation on those close to him. The Defence submitted that his admissions to the cell plant reflected his unsophisticated efforts to impress his cell mate. The Defence argued that Ellingsen and Bellwood, who were subject to a strong Vetrovec instruction, were chronic drug users, entrenched in a criminal life style, and that their testimony was implausible, unreliable, and unconfirmed by the rest of the evidence. The Defence contended that the forensic evidence did not support the Crown’s theory.
[17] The Crown took and maintained the position throughout the trial that Mr. Pickton was the sole perpetrator of all six murders. The defence relentlessly tried to discredit the Crown’s theory by suggesting the potential involvement of others, some named and others not, to the exclusion of Mr. Pickton. Mr. Pickton’s counsel took great pains to demonstrate how the Crown’s sole perpetrator theory permeated each step of the proceedings and, likewise, how the defence strategy was reflected at each of those steps, from the defence’s opening statement to the jury to its submissions on the jury question.
[18] There is no question that the respective positions of the Crown and the defence permeate the entire record. The Crown consistently maintained that one person committed all of the murders on the indictment and that that person was Mr. Pickton. The defence maintained that he was not criminally involved. The Crown’s sole perpetrator theory is perhaps understandable, given the cogency of the evidence pointing to Mr. Pickton at the centre of this inhuman scene. It was also responsive to the tactic adopted by the defence to deflect any criminal responsibility from Mr. Pickton to other individuals. However, the question that arises is whether, in the particular circumstances of this case, the Crown was bound to the theory that it advanced.
[19] Counsel for Mr. Pickton stresses that this appeal is not about whether the Crown has the right to modify its theory or strategy as the trial progresses. He acknowledges that, as a general rule, the Crown has that right. As Binnie J. (dissenting, but not on this point) noted in R. v. Rose, [1998] 3 S.C.R. 262: “The notion that it is sufficient for the accused to respond to the ‘Crown theory of the case’ also suffers from the practical difficulty that the Crown’s theory of the case is a moving target that has to adjust to meet new or changing circumstances during the trial, including what the Crown hears in the defence closing address” (para. 27). Counsel also takes no issue with the principle that “a trial judge has a duty to instruct the jury on all routes to liability which arise from the evidence, even if the Crown chooses not to rely on a particular route”. He concedes that, as a general rule, the trial judge has that obligation (A.F., at para. 83). The issue, he argues, is whether in the particular circumstances of this case, the Crown’s so-called change in position and the trial judge’s amendment of the instructions after the jury asked their question undermined the fairness of the trial. In effect, he contends that the defence was unfairly taken by surprise by this turn of events.
[20] Counsel argues that what occurred here impacted on the fairness of the trial much as was found by the Court of Appeal for Ontario in R. v. Ranger (2003), 178 C.C.C. (3d) 375. In that case, Ranger and an individual named Kinkead were both charged with murder in relation to the stabbing of two sisters, but were tried separately. At Ranger’s trial, it was the Crown’s theory that Ranger, who had been in a relationship with one of the sisters and was upset over her intention to leave the country, had gone to her house to kill her and had enlisted Kinkead to help him. The Crown’s case, as put to the jury, relied on proving that Ranger and Kinkead were in the home together and that one or both had killed one or both sisters. Ranger’s defence was based, in part, on alibi evidence. Ultimately, the trial judge’s instructions left it open to the jury to find Ranger guilty, even if they did not accept that he was present at the time of the killings, if they were satisfied that he somehow aided or abetted Kinkead in the killings. In light of what had happened at trial, the Court of Appeal concluded that it was reasonable for defence counsel to have understood that Ranger’s conviction would be grounded on proving that he was in the house at the time of the murders. Consequently, by putting the additional theory to the jury without prior notice to the defence, the trial judge had undermined Ranger’s ability to make full answer and defence.
[21] Low J.A. held that “Ranger is distinguishable from the present case because, as I have attempted to demonstrate, the defence here knew that the co-principal theory of liability would be left with the jury” (para. 168). I agree with Low J.A.’s assessment of the record and with his conclusion on this point. The fallacy of Mr. Pickton’s argument lies in the fact that the defence theory itself put the participation of others at issue. Throughout the trial, the defence by its approach urged the jury to consider that others may have actually killed the victims. An inevitable consequence of going down that road is that the jury would have to be instructed on how this could, if at all, impact on Mr. Pickton’s own criminal liability. As Low J.A. aptly observed:
The defence team was composed of experienced criminal defence counsel who could not have failed to be aware throughout of a co-party route to liability, as much as they might have wished to avoid it by confining the Crown to its sole-perpetrator theory. Nor could they not have known of the legal duty of the trial judge to instruct the jury on any party route to liability that emerged from the evidence. They could not have confined the court in the manner they hoped to confine the Crown. An examination of the record makes this very apparent. [para. 121]
[22] Moreover, based on Mr. Pickton’s own statements alone, it was necessary to instruct the jury on potential routes to liability that went beyond the respective positions of both the Crown and the defence. As Low J.A. noted:
In his formal statement to the police and in his statements to the cell plant, the appellant mentioned the involvement of other people. At no time during these conversations did he say that others were involved to the exclusion of him. His mention of others has to be viewed in the context of his admissions of his own involvement. He said to the interviewing officers that he was the “head honcho” and the “head guy”. This implies the involvement of others but not to the exclusion of the appellant. He said that other people were involved “but that’s here nor there”. Presumably he meant “neither here nor there”. He said that a lot of people were “coming down” and “there is a lot of the other people involved too”. The appellant told the cell plant that “there will be about 15 other people are gonna go down . . . some will go down the tank”.
Viewed by themselves or in the context of the appellant’s admissions, these statements, although argued by the defence as raising a reasonable doubt about the appellant being the killer, could also lead to the conclusion that the appellant acted in concert with others. Throughout the trial, the necessity for instruction on the law of parties was apparent. [Emphasis in original; paras. 134-35.]
[23] Accordingly, the trial judge did not confine his instructions to the Crown’s sole perpetrator theory, but explained to the jury what effect any finding that others may have participated in the commission of the offences would have on the question of Mr. Pickton’s criminal liability. I will refer to these instructions compendiously as the “other suspects instructions”. Low J.A. reviewed the relevant parts of the jury charge at some length at paras. 140-44 and 156. This analysis need not be repeated here. Suffice it to note that the other suspects instructions in question went along the same lines as the following instruction given to the jury immediately following the trial judge’s explanation of the elements of the offence of first degree murder:
[8] A person commits an offence if he, alone or along with somebody else or others, personally does everything necessary to constitute the offence. Accordingly, it is not necessary for you to find that Mr. Pickton acted alone in order to find him guilty of the offence. You may find that Mr. Pickton acted in concert with other persons, although you may not know who they are. It is sufficient if you are satisfied beyond a reasonable doubt, having considered all the evidence, that he actively participated in the killing of the victim. It is not sufficient that he was merely present or took a minor role. The issue for you to decide is whether you are satisfied that it has been proven that he was involved to the extent that the law requires [to] establish his criminal liability. [Emphasis added.]
[24] The other suspects instructions were responsive to the evidence and the central issues raised at trial, and they are entirely correct in law. More importantly, on the question that occupies us, the record reveals that it was known throughout the trial to both Crown and defence counsel that the jury would be instructed along these lines. While the wording contained in earlier drafts differed somewhat from para. 8 reproduced above (see discussion at paras. 250-51 of Donald J.A.’s dissenting reasons), the crux of the anticipated other suspects instructions was the same: it did not matter whether Mr. Pickton acted alone or with others, for he could be found criminally liable, provided that he “actively participated” in the killings, and thus had a physical role in them. As we shall see, the impugned answer to the jury question was consistent with this instruction. In answer to the question whether they could find that Mr. Pickton was the killer if they inferred that he “acted indirectly”, the members of the jury were ultimately instructed that they could do so, provided they found that he “was otherwise an active participant” in the killings. The contention that the defence was somehow taken by surprise by this course of events is not, therefore, borne out on the record.
[25] In any event, I do not understand Mr. Pickton’s miscarriage of justice argument to be founded on the content of any of the other suspects instructions. His argument that the “goal posts” were unfairly changed at a late stage of the trial rests instead on the fact that the trial judge’s answer to the jury’s question effectively retracted from another instruction, the “actual shooter” instruction, which related to element three of the offence, namely the identity of the killer. For convenience, I repeat the actual shooter instruction here:
If you find that Mr. Pickton shot [name of victim], you should find that the Crown has proven [element 3, the identity of the killer]. On the other hand, if you have a reasonable doubt about whether or not he shot her, you must return a verdict of not guilty on the charge of murdering her. [Emphasis added.]
[26] Low J.A. reviewed in some detail the discussions between counsel and the trial judge concerning this instruction (paras. 145-50). It is clear from this review that the wording of this instruction was only finalized in discussions between counsel and the trial judge during the course of the fourth and last day of the charge to the jury. Quite clearly, the latter part of the actual shooter instruction was inconsistent with the other suspects instructions and was also completely erroneous in law. While both counsel may have been content with this instruction in light of their respective theories, it is my view that it should never have been suggested to the trial judge that this instruction was appropriate in law in the context of the evidence in this trial. In particular, as Low J.A. rightly noted, at para. 205, “the Crown should have been adamantly opposed to these paragraphs and . . . the failure to oppose them was the root cause of the jury question”.
[27] Regardless of counsel’s joint position, the trial judge should not have agreed to include this instruction in the charge. Discussions between counsel and the trial judge about the content of the charge can provide invaluable assistance in crafting correct jury instructions and, as such, should be encouraged. However, it is the trial judge’s role to instruct the jury on all relevant questions of law that arise on the evidence. In some cases, these instructions will not accord with the position advanced by counsel for the Crown or the defence.
[28] As events turned out, the inconsistency occasioned by the addition of the actual shooter instruction was not lost on the jury, nor ultimately on the trial judge. On the sixth day of deliberations, the jury submitted the following question:
When considering Element 3 [the identity of the killer] on one or more of the counts, are we able to say “Yes”, if we infer that the accused acted indirectly?
As explained in considerable detail by Low J.A., at paras. 184-206, after hearing submissions from counsel about the question, the trial judge recharged the jury by essentially repeating some of the other suspects instructions and the actual shooter instruction. Shortly after the recharge, however, and as he later explained in his written reasons for the ruling, the trial judge became concerned that the actual shooter paragraphs were inconsistent with the other suspects instructions and were not responsive to the evidence and the central issues of the trial. The trial judge therefore asked the jury to suspend their deliberations temporarily, and, after advising counsel of his intention, he re-instructed the jury by changing the actual shooter instruction so that it was consistent with the other suspects instructions. The corrected paragraph, which applied to the victims of counts 1 to 3, read as follows:
If you find that Mr. Pickton shot [name of victim] or was otherwise an active participant in her killing, you should find that the Crown has proven this element. On the other hand, if you have a reasonable doubt about whether or not he was an active participant in her killing, you must return a verdict of not guilty. [Emphasis added.]
[29] Mr. Pickton argued that the re-instruction gave rise to two errors. First, the trial judge committed a procedural error by failing to inquire as to the meaning of the jury’s question. Second, he erred by modifying the contents of the actual shooter instruction. Low J.A. dismissed Mr. Pickton’s argument that the jury question was ambiguous and that specific inquiry as to its meaning was required. I agree. As Low J.A. rightly observed:
. . . the trial judge properly took a conservative approach in conversing with the jury to avoid an improper intrusion into the substance of the jury’s deliberations.
Low J.A. also found no substantive error. He held that “the trial judge was correct in holding that the three actual shooter paragraphs were wrong in law and that he had an obligation to correct them” (para. 206). I agree.
[30] On the central issue in this appeal, I therefore conclude that the trial judge’s response to the question posed by the jury did not adversely impact on the fairness of the trial as the appellant contends.
[31] The remaining question is whether the other suspects instructions contained in several parts of the cha