COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Pickton,

 

2009 BCCA 299

Date: 20090625


Docket: CA035704, CA035709

Between:

Regina

Respondent (CA035709)
Appellant (CA035704)

And

Robert William Pickton

Appellant (CA035709)
Respondent (CA035704)

 


Publication Restriction Notice:

Pursuant to the orders of Mr. Justice Williams made on 4 August 2010 and 25 August 2010, information that may identify certain witnesses and undercover police officers may not be published, broadcast or transmitted in any manner.  The reasons for judgment in this appeal, as amended below, comply with the existing publication bans.

Corrected Judgment:  This judgment was revised to accord with the publication ban orders of Mr. Justice Williams pronounced 4 August 2010 and 25 August 2010.

 

Before:

The Honourable Chief Justice Finch

The Honourable Mr. Justice Donald

The Honourable Mr. Justice Low

On appeal from:  Supreme Court of British Columbia, December 9, 2007, R. v. Pickton, X065319-47

G.J. Fitch, Q.C. and J.M. Gordon, Q.C.

Counsel for the Respondent/Appellant

G.D. McKinnon, Q.C. and P. McGowan

Counsel for the Appellant/Respondent

Place and Date of Hearing:

Vancouver, British Columbia

30 & 31 March, 1, 2, 3, 6, 7, 8, 9 April 2009

Place and Date of Judgment:

Vancouver, British Columbia

25 June 2009

 

Written Reasons by:

The Honourable Mr. Justice Low

Concurred in by:

The Honourable Chief Justice Finch

Dissenting Reasons by:

The Honourable Mr. Justice Donald (p. 87, para. 246)


Reasons for Judgment of the Honourable Mr. Justice Low:

[1]             At the conclusion of a trial presided over by Mr. Justice Williams, a jury convicted Robert William Pickton of six counts of second degree murder on the following indictment charging him on each count with first degree murder:

Count I

Robert William PICKTON, between the 18th day of July, 2001 and the 5th day of February, 2002, at or near Port Coquitlam, in the Province of British Columbia, did commit the first degree murder of Sereena Abotsway contrary to Section 235(1) of the Criminal Code.

Count 2

Robert William PICKTON, between the 1st day of December, 2001 and the 5th day of February, 2002, at or near Port Coquitlam, in the Province of British Columbia, did commit the first degree murder of Mona Wilson contrary to Section 235(1) of the Criminal Code.

Count 3

Robert William PICKTON, between the 5th day of June, 2001 and the 5th day of February, 2002, at or near Port Coquitlam, in the Province of British Columbia, did commit the first degree murder of Andrea Joesbury, contrary to Section 235(1) of the Criminal Code.

Count 4

Robert William PICKTON, between the 5th day of March, 1999 and the 5th day of February, 2002, at or near Port Coquitlam, in the Province of British Columbia, did commit the first degree murder of Brenda Ann Wolfe, contrary to Section 235(1) of the Criminal Code.

Count 5

Robert William PICKTON, between the 1st day of March, 1999 and the 5th day of February, 2002, at or near Port Coquitlam, in the Province of British Columbia, did commit the first degree murder of Georgina Faith Papin, contrary to Section 235(1) of the Criminal Code.

Count 6

Robert William PICKTON, between the 30th day of August, 1997 and the 5th day of February, 2002, at or near Port Coquitlam, in the Province of British Columbia, did commit the first degree murder of Marnie Frey, contrary to Section 235(1) of the Criminal Code.

[2]             The appellant seeks a new trial on second degree murder substantially on the basis that the trial judge erred in answering the following question posed by the jury during the sixth day of deliberations:  "When considering Element 3 [identity] on one or more of the counts, are we able to say “yes”, if we infer that the accused acted indirectly?”  The appellant says that the trial judge erred in failing to clarify with the jury the meaning of their question before repeating for the jury instruction previously given.  He further says the trial judge, in a second re-charge, answered this question in compliance with a new co-principal theory of criminal liability advanced by the Crown for the first time in response to the jury question and this rendered the trial unfair.  He also points to related errors in the original charge and the fact that, although the charge and neither re-charge included instruction on aiding or abetting, an opening instruction given in writing to the jury at the commencement of the trial did include paragraphs that discuss those subjects, which paragraphs were not removed from the binder of documents that each juror had during deliberations.  The appellant’s argument is that these errors led to the convictions on a party basis that was not properly before the jury or with respect to which there was either no instruction or inadequate instruction.   

[3]             The Crown contends that we must dismiss the appeal.  The Crown says that the case was presented to the jury on the law of parties as required by the body of evidence before the court.  Alternatively, the Crown says that even if there was error in the charge or re-charge, there was no substantial wrong or miscarriage of justice. 

[4]             In a separate appeal the Crown contends that, if there is to be a new trial, it should be on 26 counts of first degree murder.  The Crown says that the trial judge erred in severing the six counts from a 26-count murder indictment, in excluding a large body of similar fact evidence, in giving the jury a Vetrovec warning with respect to two Crown witnesses, and in his instruction to the jury on the use and value of similar fact evidence on the element of planning and deliberation.

[5]             The Crown’s appeal will be discussed in separate reasons.

Facts

[6]             Counsel have prepared an Agreed Statement of Facts (the “Statement”) to assist the court in understanding the large body of evidence presented in this case.  The Statement contains those facts which are not in dispute and describes the evidence that is in dispute, either as to credibility or as to inference.  The Statement was prepared largely from the thorough summary of the evidence presented by the trial judge to the jury in his charge.

[7]             The Crown began leading evidence before the jury on 22 January 2007 and, after calling 98 witnesses, closed its case on 13 August 2007.

[8]             The defence called 31 witnesses and closed its case on 16 October 2007. 

[9]             The Crown sought to prove that the appellant murdered each of the six victims at his farm property in Port Coquitlam after taking them from the downtown eastside area of Vancouver where each of them was a sex-trade worker.  Partial remains of each victim were discovered on the appellant’s property and were identified after being subjected to extensive scientific examination.  The Crown also relied upon inculpatory admissions made by the appellant in a formal statement to the police and later to an undercover operator in the police cells.  He stated that he was a serial killer who disposed of his victims’ remains at a rendering plant and was caught only because he was sloppy toward the end.  The Crown also led evidence from Lynn Ellingsen that she had observed the appellant, in his slaughter house, butchering a deceased sex-trade worker, the victim named in Count 5.  The Crown also relied on the evidence of Andrew Bellwood.  It was his evidence that the appellant admitted to him that he was engaged in the murder of sex-trade workers and described his modus operandi.  The Crown submitted that the same individual caused the death of each of the six victims in accordance with a plan, system or design and that there could be no question that the appellant was the person who carried out the plan in each case.

[10]         The defence asserted that the evidence did not prove beyond a reasonable doubt that the appellant was the person responsible for the murders.  It was said that admissions made by the appellant to the police were not reliable because the appellant had scored low on a verbal intelligence test and was simply giving back to the police assertions they had made to him in order to get the police off his property, and to lessen the impact of the investigation on those close to the appellant.  The defence further contended that the admissions to the cell plant were simply unsophisticated efforts to impress.  The defence challenged the evidence of both Ellingsen and Bellwood and argued that it was unreliable.  Finally, the defence pointed to certain DNA evidence as implicating Dinah Taylor more extensively than the appellant was implicated.  She was a friend of the appellant who lived with him in his trailer on the farm in the spring of 2001 for a period of approximately three months.  The defence also pointed to a man named Pat Casanova as the person possibly responsible for the murders. 

[11]         It is my opinion that the evidence strongly suggested the appellant was the killer or one of the killers on all counts.  The personal effects of four of the victims were found in the appellant’s residence, including in his sleeping area.  The remains of all six victims were found in the appellant’s work place.  Statements made by the appellant to police officers and to the cell plant implicated him, regardless of whether they also implicated others, particularly Dinah Taylor.  The defence theory, on the other hand, raised possibilities that emerged from the evidence in order to attempt to show reasonable doubt.  Put at its best, the defence theory is that possibly another, perhaps Dinah Taylor, or others, used the appellant’s workplace and his adjacent residence as their own private killing field without the appellant being criminally involved.

[12]         The appellant was a person of interest to a police task force that, in early 2001, began collecting from available sources the DNA of women missing from the downtown eastside area of Vancouver.  Each of the victims named in the indictment was a drug-dependent sex-trade worker who had frequently worked in that area.  Investigators determined the date each victim was last seen by family members or agencies with which they had been in regular contact prior to their disappearance.  The indictment spans the period from 30 August 1997 to 5 February 2002, the latter date being the date on which investigators first searched the appellant’s residence.  The defence admitted that all six victims are dead.

[13]         Investigators received information about firearms having been observed in the appellant’s residential trailer and on 5 February 2002 executed a search warrant.  The appellant was arrested, held overnight and released.

[14]         The search of the trailer led to the discovery of, among other things, an inhaler with the name “Sereena Abotsway” (Count 1) on it and a .22 calibre Smith & Wesson revolver wrapped in cellophane and inserted into a soft plastic dildo (the “dildo gun”).  In the dildo gun was a spent cartridge and five unspent bullets.  Because Ms. Abotsway had been reported missing, police officers obtained a warrant to search the entire property of the appellant to seek further evidence with respect to the missing sex-trade workers.

[15]         Police officers again arrested the appellant on 22 February 2002.  He made admissions in a formal statement which was videotaped and transcribed.  While in police cells later, the appellant made further admissions to an undercover police officer posing as a fellow prisoner.  I will set out the substance of these admissions in due course.

[16]         The property of the appellant in Port Coquitlam has more than 17 acres with two residences and several outbuildings.  The appellant lived in a trailer at the north end of the property near outbuildings and his brother, Dave Pickton, lived in a farmhouse at the south end of the property.  Investigators excavated the entire property and divided it into 216 grids, each 20 x 20 meters in size.  The excavations were continued until undisturbed soil was reached, a determination made by a forensic geologist.  Some 338,000 cubic yards of excavated material were extracted and examined by various experts.  All incriminating circumstantial evidence against the appellant was found in his residence, a motor home he formerly lived in and outbuildings associated with the small pig-butchering business he conducted on the property. 

[17]         For the purposes of this appeal, it is not necessary to delve into most of the forensic evidence.  There seems to be no dispute that the conclusions reached by DNA testing are accurate.  It will suffice to simply state as fact the identification of various human body parts and secretions. 

[18]         There is no dispute that the victims in each of the first three counts died as a result of a gunshot wound to the head.  As was said by counsel for the appellant in argument, each of them was murdered “execution style”. 

[19]         What follows is a summary of the evidence found with respect to each count during the search of the appellant’s property:

a.       Count 1 – Victim: Sereena Abotsway (missing from July 2001)

The head, hands and feet of this victim were discovered in a white pail in a freezer in the appellant’s workshop.  The remains were frozen.  The hands and feet were disarticulated.  There was a gunshot wound above the right ear.  The skull had been vertically dissected by a reciprocating saw.  There were two distinct cuts – one through the jaw and face and one through the back of the head.  In the appellant’s trailer the following items were found:  four inhalers and personal documents with the victim’s name on them in a garbage container outside the trailer; a Solomon bag found in the office had the victim’s blood on it and two syringes found in a pocket of the bag yielded a mixed DNA profile with the victim as the major contributor and the appellant not excluded as a minor contributor; a sheer black top in a closet in the appellant’s bedroom had the victim’s DNA profile on it; a blanket seized from an unrecorded location in the trailer had a full DNA profile of the victim on it; other hairs on the same blanket matched the profiles of the appellant and Dinah Taylor.

b.       Count 2 – Victim: Mona Wilson (missing from December 2001)

The head, hands and feet of this victim were found in the slaughterhouse in a green garbage can.  The remains were not frozen and were badly decomposed.  The hands and feet were disarticulated.  There was damage to the wrist bones.  There was a gunshot wound at the back of the skull.  There was a reciprocating saw cut vertically bisecting the skull, probably two distinct cuts, one through the jaw and face and one through the back of the head.  A swab taken from inside the door of the slaughterhouse contained DNA of mixed origin from two individuals – the victim and Pat Casanova could not be excluded as possible contributors.  In the trailer, a rosary of the victim was found in the office and Dinah Taylor’s DNA profile was obtained from a swab of this item.  The dildo gun found in the laundry room yielded two mixed profiles:  on one swab taken from the end of the dildo the DNA of the victim was the major contributor and the appellant was a possible minor contributor with a random match probability of one in 5,500.  Another swab from the base of the dildo produced a mixed profile consistent with having originated from four or more individuals.  The victim and the appellant could not be excluded as contributors.  The DNA profile of this victim was found on more than 75 swabs taken from inside the motor home.  Half of the swabs were from presumptive or confirmed blood swabs.  The swabs came from articles of clothing, pieces of paper, blankets, a running shoe found inside a closet, pieces of wooden moulding, a counter edge, a waterbed heater, a space heater, blinds on a window and assorted drug paraphernalia. 

c.       Count 3 – Victim: Andrea Joesbury (missing from June 2001)

The head, hands and feet of this victim were found in the appellant’s workshop in a pail in the freezer which pail was inserted into the pail holding the remains of the victim in Count 1.  These remains were frozen.  There was a gunshot wound at the back of the skull.  The hands and feet were disarticulated.  There was a vertical reciprocating saw cut that bisected the skull.  Again there were two distinct cuts, one through the jaw and face and one through the back of the head.  The DNA of this victim was found on a pillow slip in the laundry room in the appellant’s residence.  The test for blood was presumptive.  The victim’s DNA profile was also found on a wall near a light switch in the bathroom.  Her DNA profile was on a black nylon jacket at the foot of the appellant’s bed and inside the jacket was an address book with the notation “Andrea, Room 201, Roosevelt Hotel, 166 East Hastings”, nail clippers and a plastic bottle.  The DNA profile of this victim was found on all of these items.  One of two black boots in a closet in the appellant’s bedroom bore the partial DNA profile of this victim.  Her DNA profile was the major component of a mixed profile from the tube of light green lipstick in a garbage bag in the appellant’s bedroom.  No male DNA was identified in the mix.  In the slaughterhouse this victim’s DNA profile was on an orange plastic Western Family bag and this also tested positive for blood.  “Lucky” earrings on a table in the same location tested presumptively for blood and a swab of the blood matched the victim’s DNA profile.  A silver ring found near the earrings tested presumptively for blood and bore this victim’s partial DNA profile. 

d.       Count 4 – Victim: Brenda Ann Wolfe (missing from February 1999)

The fully skeletonised partial right mandible together with five teeth of this victim were located in a trough in the piggery located in the slaughterhouse.  There was a cut mark to the right of the mid-line of the mandible consistent with having been done by a saw.  In the appellant’s residence there was a black “Pacific Trail” jacket with pink liner associated to this victim.  It was in the appellant’s bedroom and from it was removed a hair matching Dinah Taylor’s DNA.  The victim’s DNA was found on the cuffs of a brown leather jacket in the closet in the appellant’s bedroom.  Her partial DNA profile was the major component of a mixed profile lipstick case found in a garbage bag in the same bedroom.  It produced a mixed sample with this victim and Dinah Taylor as a possible contributor.  There was another tube of lipstick in the same location which yielded a mixed DNA profile with Dinah Taylor’s DNA being the major component and the victim’s being a minor component.  In the appellant’s workshop this victim’s partial DNA profile was found on handcuff keys found in a dufflebag in the loft area.  The keys tested presumptively for blood.  The profile was mixed and the appellant could not be excluded as a possible contributor. 

e.       Count 5 – Victim: Georgina Faith Papin (missing from March 1999)

Numerous hand bones of this victim were found in dirt under a platform that supported a freezer in the appellant’s slaughterhouse.  One of the bones was damaged in a manner similar to the damage found on the wrist bones with respect to the victim in Count 2. 

f.        Count 6 – Victim: Marney Frey (missing from September 1997)

The skeletonised and brittle partial right mandible of this victim together with three of her teeth was found in the dirt in the appellant’s slaughterhouse.  There were no marks on mandible or teeth.  These remains were recovered from an area on the property that was subject to the movement of earth and debris.  No other physical remains were recovered with respect to this victim. 

[20]         There was no forensic evidence or opinion as to the cause of death of the victims in Counts 4 through 6.  Proof of homicide in each of those three counts rested on count-to-count similar fact analysis. 

[21]         Robert Korac was a Crown witness.  He immigrated to Canada in 1956 and began working as a butcher.  He soon met the Pickton family, when the appellant was about seven years old, and at the time they operated a small farm at a different location.  Korac butchered pigs for the family and taught the appellant how to do so.  This was acknowledged by the appellant in his statement to the police.  When the appellant was a teenager the family moved to the Port Coquitlam property. 

[22]         Over the years, this witness saw the appellant butchering pigs.  He described for the jury in some detail the slaughtering process and the distinction between smaller pigs destined for barbequing and larger pigs that would be butchered in a different way.  He described how each pig would be “hung up so its hanging upside down with the hind legs apart”.  Larger pigs would be “split ... in half, right from the top to the bottom through the head”.  This would be done using either a handsaw or an electric saw. 

[23]         Korac testified that the appellant used both hand and electric saws when cutting pigs.  There was some question in the evidence as to whether the appellant had an electric saw in 2001.  Korac testified that he got such a saw earlier than 2000.

[24]         Pat Casanova was also a Crown witness.  He denied any involvement in the murders.  He had a long association with the appellant and the butchering of pigs on the property.  Casanova testified to a method of slaughter and butchering of the pigs that was similar to that described by Korac.  Casanova testified that the appellant would attend auctions and purchase pigs.  The small pigs were destined for roasting whereas the larger pigs would be butchered.  The slaughtering of the pigs was the same regardless of the size.  The pigs were killed with either a .22 calibre firearm or a nail gun.  Casanova’s  evidence as to the method used was described in the Statement as follows:

... The pig would then be lassoed by its hind leg and hung upside down. Pickton would “stab” the pig and it would bleed out.  Once bled, it would be Casanova’s task to lower the pig into a barrel of hot water, which made it easier to scrape off the hair.  Once the hair was removed, the pig would again be hung, head down, using a spreader which is a device used to separate the hind legs.  Pickton would then use a knife to slit open the belly and take out the guts.  Casanova explained that Pickton would keep the heart, lungs, and the liver.  The rest of the offal would go into a bucket which, when full, would be emptied into a barrel.  The pig would then be cleaned up and placed in the walk-in cooler overnight.

[25]         Casanova testified that he learned how to butcher pigs from watching the appellant.  He testified that pigs in excess of 100 pounds would frequently be cut in half inside the walk-in cooler located in the slaughterhouse.  The head might also be cut in half based upon the wishes of the customer.  He explained that sometimes the appellant would use a saw to cut on either side of the spine if the intended product was pork chops.  The appellant would use either a handsaw or a reciprocating power saw to do this.  He said that a couple of years before the appellant was arrested “we discovered that the reciprocating works better”.  In cross examination he agreed that a reciprocating saw came on to the property about eight months before the police search of the property. 

[26]         Casanova’s association with sex-trade workers is described in the Statement as follows:

439      Casanova testified that he had seen sex trade workers at the farm and, on occasion, paid some of them for sex.  One of these women was Angel, who performed oral sex on him in Pickton’s bedroom sometime in 2001.  Casanova was shown a photograph of Ms. Joesbury and agreed she was the woman he knew as Angel.  He admitted to intentionally withholding information about his encounter with Angel when questioned by the police.  He also acknowledged having sex with other sex trade workers both at and away from the farm.  Casanova also knew Ellingsen, and testified that she frequently borrowed money from him that she did not repay.  After her departure from the farm he continued to give her money, but at that point in exchange for sex.  This arrangement continued up to the time of Pickton’s arrest in February, 2002.

[27]         The Crown called Gina Houston, a 39 year old mother of three and a long- time, close personal friend of the appellant.  She regularly visited him at his property.  She testified that on 20 February 2002, two days before the second arrest of the appellant and after the police had begun their intensive search of the property, the appellant was distraught and discussed committing suicide.  He said it was “the only way out”.  He attributed responsibility for three or four of the deaths to Dinah Taylor and denied having killed any of the women himself.  He talked about committing suicide together with Houston.  He said he did not want to go to jail.

[28]         Houston testified that the discussion then turned to a telephone conversation that had occurred between them in early December 2001.  She heard the appellant apparently responding to a knock at the door by saying “come in”.  She said she heard several voices and the sound of a scuffle or fight in the background.  She understood the appellant then to be at home in his trailer.  The appellant said “Stop that”.  Then the phone went dead.  She could not successfully call him back.  On February 20 she reminded the appellant of this call and asked if she had heard somebody getting hurt.  He said that he “tried to do everything he could for her, but she didn’t make it”.  Houston asked the appellant if the woman was Mona.  The appellant said “yeah”.  The appellant also confirmed that Mona was in the piggery with as few as two and as many as six other bodies buried in an area used for cockfighting.  The appellant said, “I did not kill Mona”.  Houston asked whether he had killed “any of them” and he said “no”.  The appellant said that Taylor had told him that she “would take responsibility for what she said she would take responsibility for”. 

[29]         In cross examination, this witness clarified that she had heard a woman’s voice in the background before the knock on the door and thereafter she heard another woman’s voice and a male voice.  The appellant said, “Stop it, not here” several times.  The sounds in the background became increasingly loud and the voices increasingly agitated.  She said she heard a woman screaming.  

[30]         It was elicited in cross examination from Houston that she had smoked crack cocaine with Taylor and Andrea Joesbury (Count 3).  She testified that one day in June 2001, she arrived at the appellant’s trailer and found it clean and tidy.  The appellant arrived home and wanted to know where the girl was who had cleaned his trailer.  The appellant told Houston that he was going to meet with Taylor and the girl who had done the cleaning to pay her for her work.  A few hours later, according to Houston, she spoke by telephone with Taylor who was angry that the appellant had given Andrea more money than he had given Taylor.  According to Houston, Taylor, more than once, said “I’m going to kill the bitch”.  Houston testified that several times the same day she declined to pick up Taylor and Andrea and give them a ride to the appellant’s farm.  She was asked why she didn’t report Taylor’s threat to kill Andrea to the police and she responded:  “I didn’t think she was capable of doing anything to anyone ... my perception of her was being a feeble person who couldn’t take care of herself.” 

[31]         Houston testified that she thought it was her boyfriend, Contois, who brought a reciprocating saw to the property and this may have been in 1999.  She said that she had never seen such a saw being used on the property before that. 

[32]         The Statement describes Houston’s knowledge of the rendering plant and that operation as follows:

226.     West Coast Reduction Ltd. operates a large rendering plant on the waterfront in Vancouver adjacent to the DTES.  West Coast Reduction collects offal and inedible by-products from abattoirs and butchering operations throughout the Lower Mainland.  The waste material is dumped into large pits.

227.     Merle Morris, the plant superintendent at West Coast Reduction since 1997, testified that the BSE (mad cow disease) scare, together with the events of 9-11, had a major impact on the rendering industry.  Prior to 2002, offal from beef, pork, and sheep could be mixed together in the same pit.  There was little security or inspection of what was being dumped.  Small suppliers were permitted to deliver and drop off waste material without charge.  Frequently, they were simply waived through and directed to one of the bays accessing the pits without supervision.  The pits were continually being emptied as old waste material was processed and new waste was added.  Morris estimated that a barrel of offal would be processed and out of sight within fifteen minutes to two hours depending on how close it was to the pit auger.  Morris also testified that without seeing a recognizable part of an animal’s body, such as a pig’s ear, he is unable to distinguish offal or entrails by animal type.  The security measures introduced in 2002 now require that a receiver attend to every truck that enters the plant and supervise the dumping of every load.

228.     Robert Bayers has been the plant foreman at West Coast Reduction since 1992.  He also testified that plant security prior to the BSE scare was minimal and that individuals could enter the facility and dump their loads with little or no supervision.  He testified that as new waste material was constantly being dumped into the pits during the day, what had been dumped would disappear from view very quickly.  Bayers knew Pickton as a very small supplier who would bring barrels of pork offal into the rendering plant for disposal.  He would occasionally see Pickton at the plant driving an older flatbed pick-up truck, sometimes accompanied by a “rough looking” woman.

229.     As noted above, Houston testified that she watched Pickton slaughter pigs on numerous occasions.  Pickton taught her how to butcher pigs.  She stated that there were two large metal barrels in the slaughterhouse into which Pickton would put the “guts” and scraps not being used.  Once a week, Pickton would take the barrels to the rendering plant in the DTES to dispose of the waste material.  Houston accompanied him to the rendering plant on three or four occasions.  Pickton would back into one of the bays, stand on the back of his truck, roll the barrel to the edge, and dump the contents into the large pit “where all the other guts and stuff are”.  When asked whether Pickton had to check in with the rendering plant staff before dumping, she stated that because he had been disposing of his waste material there for so long and was so well known, he would just be directed as to which pit to use.  Houston did not observe anyone supervising Pickton while he was dumping his barrels.

[33]         Lynn Ellingsen was a drug user who lived in the appellant’s trailer for several months in 1999.  She had a relationship with Ron Menard that continued on and off for 11 years.  The relationship was volatile and several times she left Menard to go to transition houses.  At one of these places, she met Houston.  They smoked crack cocaine together.  Through Houston, Ellingsen met the appellant.

[34]         Ellingsen had lost her driver’s licence as a result of a dangerous driving conviction and owed ICBC $14,000.  The appellant hired her to do work around the farm so that she could earn money to pay off the debt.  Initially, she commuted to the appellant’s farm.  While there, she would also party and do drugs.  Eventually she reached an agreement with the appellant that she would live in his trailer in exchange for cleaning it.  She began to live in the spare bedroom.  She did various jobs around the farm, including answering the phones for Dave Pickton’s topsoil business.  Sometimes Menard came out to the farm. 

[35]         Ellingsen was unable to state just when in 1999 she stayed in the appellant’s trailer.  While she was there, every weekend the appellant and Pat Casanova slaughtered and butchered animals.  They purchased the animals at auctions.  She saw both of them butcher pigs.  Casanova had a number of knives and saws that he used in his butchering business. 

[36]         Ellingsen testified that she met Andrew Bellwood at the farm as well as Scott Chubb, with whom she smoked crack cocaine.  She never saw the appellant consume any drugs.

[37]         This witness testified about an incident in New Westminster when she was driving with the appellant.  He was stopped for a sobriety test and permitted to continue on.  She said that this happened only one time.  The police produced a record that on 20 March 1999, a Saturday, the appellant, with Ellingsen as his passenger, was pulled over on 12th Street in New Westminster and given sobriety tests before being permitted to proceed.

[38]         Ellingsen testified that one evening she drove into Vancouver with the appellant.  She could not recall if that was the same night they were pulled over by the police in New Westminster.  In any event, the appellant asked her if it was okay if he “picked up a girl”.  She agreed.  They did pick up a woman and on the way back to the appellant’s property, the appellant or Ellingsen bought some crack cocaine.  The two women smoked the cocaine on the drive back.  Ellingsen identified the other woman in the photographic police line-up in 2005 as being Georgina Papin (Count 5). 

[39]         The witness testified that when they arrived at the farm it was dark and nobody else was there.  She and the woman smoked more crack cocaine.  The appellant and the woman went into the appellant’s bedroom and Ellingsen went to her bedroom to smoke more crack cocaine. 

[40]         Later she heard noise and through the kitchen window she could see a bright light coming from the barn.  The appellant’s bedroom was empty.  She walked toward the barn and noticed an awful smell.  She pushed open the barn doors and saw a body hanging where the appellant slaughtered pigs.  It was the same woman.  The appellant was cutting and there was a lot of blood, including on the appellant.  There was a garbage can at the end of the table where she knew the appellant put the intestines of pigs. 

[41]         The appellant saw her and pulled her inside the barn and made her look.  He threatened that the same thing would happen to her if she told anyone about what she had seen.  She told the appellant she would not say anything and only wanted money for more drugs.  The appellant walked her back to the trailer and telephoned for a taxi.  He walked her down to the road and held on to her until the taxi arrived.  She testified that a short distance down the road she hit the cab driver as hard as she could, jumped out and ran.  However, in statements and previous testimony, she had claimed that the taxi driver took her directly to Val Foley’s house.  There was no record of such a fare.  Ellingsen testified that she eventually arrived at Foley’s house and called Menard.  Several days later she returned to the farm with a friend and picked up her belongings.  She never stayed there again.

[42]         In cross examination, the witness agreed that in all of her statements and at the preliminary inquiry she had placed the barn incident on the same night as the police stop in New Westminster.  The date was significant because there was an admission that Ms. Papin had been seen alive in a Vancouver hospital the day after the police stop in New Westminster.  Before she testified at trial, Crown counsel showed Ellingsen documents which placed her on the farm after the traffic stop.  Her evidence at trial was that she was uncertain about the two incidents occurring on the same evening. 

[43]         There were ambulance crew records in evidence indicating that Ellingsen had been treated at the appellant’s property on 29 March and 30 May 1999.  She agreed that she must have been at the farm but she wasn’t living there.  However, she also maintained that she only returned to the farm the one time with her friend to get her personal belongings.

[44]         Ellingsen admitted to having a long-term drug and alcohol addiction and to becoming a partner in Menard’s drug business.  During her relationship with Menard, she used crack cocaine almost daily.  She admitted to use of the substance about two weeks prior to her testimony at trial.  She admitted to having committed welfare fraud on several occasions.  She used stolen credit cards and stole the appellant’s car several times.  She admitted to being involved in a scheme in which she would engage men on a chat line, arrange to have sex with them, get paid up front and then leave on some pretext and not return.  When she testified at trial, Ellingsen was awaiting trial on charges of criminal harassment and threatening a former boyfriend.

[45]         This witness received benefits from the RCMP totalling $16,264 for rent, moving expenses, bus tickets and living expenses.

[46]         Scott Chubb was an associate of the Pickton brothers and was a Crown witness.  He was the informant who gave information to the police that led to the firearms search of the appellant’s property.  He was an unsavoury witness with a history of substance abuse and a lengthy criminal record that included convictions for offences involving dishonesty.  The Crown concedes that his evidence was inconsistent on many subjects.  In closing submissions to the jury, the Crown conceded that the credibility of this witness was in shambles following cross examination.  This witness was also the subject of a Vetrovec caution.  The Crown relied only on aspects of his evidence that were confirmed. 

[47]         This witness testified that Dave Pickton threatened him after the appellant had been arrested.  He reported the threat to the police and they gave him relocation money and paid expenses to a total of $25,102.  He also applied to be a candidate for a $100,000 reward for information in connection with the arrest and conviction of the person responsible for the murders of the missing sex-trade workers. 

[48]         Chubb testified that he met Ellingsen in 2000 at the appellant’s property.  She lived in the appellant’s trailer and Chubb smoked crack cocaine with her one time.  She appeared to be a regular drug user.  After he heard that the appellant had evicted Ellingsen, Chubb asked the appellant why he had done so.  The appellant told him that Ellingsen was costing him a lot of money and he wanted Chubb to talk to Ellingsen about the money situation.  The appellant offered him $1,000 to perform this task.  Chubb gave evidence about a conversation he had with the appellant as to how to kill “junkies”.  He claimed the appellant said that to get rid of somebody you could inject them with a syringe full of window-washer fluid or radiator fluid and the RCMP likely wouldn’t do an autopsy because they would see the needle tracks and decide that the victim died of an overdose.  The police later found a syringe containing water and methynol, consistent with windshield-washer fluid, in the office in the appellant’s trailer.  A forensic toxicologist testified that methynol could be used to clean a syringe because it has antiseptic properties.  It would take use of the syringe 150 to 375 times to administer a toxic concentration of methynol. 

[49]         Andrew Bellwood was 37 years old when he testified.  He was then living in Alberta where he and his common law wife managed a motel.  He was also working as a truck driver in the oil industry.  He has a history of substance abuse and a criminal record.  He admitted to uncharged criminal behaviour.  He admitted attempting to pass forged cheques and pawning equipment that did not belong to him.  He also admitted to having used credit cards of two of his employers to purchase gas for personal use and to buy $1,200 worth of cigarettes for resale.  His evidence was the subject of a strong Vetrovec caution.

[50]         Bellwood was a resident at a drug treatment programme from August 1998 to the end of January 1999 where he met Ross Contois, whose girlfriend was Gina Houston.  After he left the treatment programme he returned to binging on crack cocaine.  He was introduced to the appellant by Contois at the appellant’s property in early February 1999.  Later he sold some welding cable and a battery to the appellant.  Still later he sold the appellant some other items that Bellwood and Contois had stolen.

[51]         Bellwood, in mid-February, began driving a Kenworth truck.  He went to the appellant’s farm to see if he could borrow money.  He was living out of the Kenworth and sometimes parked it at the appellant’s property.  There he met Lynn Ellingsen.  He smoked crack cocaine with her at other locations.  He testified that Ellingsen stayed with the appellant in the appellant’s room.  He understood from the appellant that the appellant helped Houston out a lot and supported her.  He testified that Houston and Ellingsen did not appear to get along. 

[52]         This witness received small amounts of money from the appellant from time to time.  In late February or early March, Bellwood returned the Kenworth truck to its owner because he wasn’t getting any work for it.  However, before doing so, at the appellant’s suggestion, he replaced eight of the ten tires on the tractor trailer unit with some older tires that were on the farm.  The appellant paid Bellwood $500 for the tires that were removed from the Kenworth.  The appellant suggested to Bellwood that the two of them steal a trailer-load of lumber.  This evidence was introduced to establish the trust relationship that had developed between the two men.  Bellwood agreed in cross examination that he and the appellant “really hit it off”. 

[53]         It was after he returned the Kenworth that Bellwood slept in the spare bedroom of the appellant’s trailer on two to four occasions.  He testified that the appellant had a number of firearms in his trailer and that he showed him a rifle he kept in the office.  The witness said there was quite a bit of ammunition present.

[54]         This witness testified that he left the appellant’s property on 14 March 1999.  He said that prior to his departure he had a conversation with the appellant in the appellant’s bedroom in the trailer.  They were watching television.  Bellwood claimed that he had not smoked cocaine or consumed alcohol prior to this event. 

[55]         The witness testified that the appellant initiated the conversation by asking whether Bellwood wanted to go and get a prostitute.  Bellwood demurred.  The appellant persisted and said he would give Bellwood a couple of hundred dollars.  Bellwood again shrugged off the appellant’s suggestion.  Bellwood testified that the appellant then told him about murdering sex-trade workers.  He gave the following evidence:

“Do you know what I do with these prostitutes?”  From there, he reached underneath his mattress.  He pulled out a set of handcuffs to what would look like a police set of handcuffs.  He pulled out a belt and he pulled out a piece of wire, a piece of wire, a couple looped ends on it, looked to me like they had been spliced.  The wire in my mind would have been the same consistency of, say, a piano wire, just a very fine, braided thin piece of wire.  From there, he motioned on the bed.  You know, he had asked me, “Do you know what I do with hookers?”  I said, “No.”  He had motioned to me that he would put them what we call doggy-style which I guess would be, you know, a sexual position onto the bed, having intercourse with them and as he was telling me this story, it was almost as if there was a woman on the bed.  It was pretty much kind of like a play.  Telling me that he’d reach behind her -- reach for their hand, slide it behind their back and slowly put on the handcuffs, stroking their hair, telling them it’s going to be okay, everything’s all over now.  From there he would, after he got the handcuffs on them, he would strangle them, either with a belt or the piece of wire.  From there, he would take them to the barn, bleed them and gut them.  He commented on how much they bled.  He kept telling me, you know, how much they bleed.  You wouldn’t believe how much blood comes out of a person.  Proceeded to tell me that after he gutted them and hung them in the slaughterhouse, how much pigs ate of the carcass and whatever that the pigs didn’t eat would end up in the 45-gallon drums of entrails that they put the pigs in, you know, the pig guts into, and all that to disposal mixed in with the waste from slaughtered pigs.

[56]         The Statement describes the rest of Bellwood’s evidence about this conversation as follows:

Bellwood testified that Pickton told him he would go and get the prostitute from downtown East Hastings Street.  Pickton said that luring girls out to the farm would sometimes be a tough thing to do.  Pickton told him that because the girls sometimes did not want to leave the area they were working, he would have to offer them heroin or cocaine and sometimes a little more money to persuade them to come out to the farm in Port Coquitlam.

[57]         The witness also testified that when the appellant was telling him what he did to the prostitutes, he was kneeling as though re-enacting or demonstrating how he would kill the women. 

[58]         Bellwood testified that he did not know what to make of the appellant’s statements to him.  He said that he did not take it seriously and thought it was “definitely pretty wacked out”.  The appellant never mentioned using a gun to kill the victims.

[59]         Bellwood testified that a few days later the appellant and Ellingsen were lying on the appellant’s bed.  The appellant teased Bellwood by saying, “Andy’s scared to go get a hooker”. 

[60]         Bellwood acknowledged in cross examination that in his first statement to the police on 23 February 2002, he suggested that Ellingsen was present when the appellant confessed to him about his activities.  The witness said that he had made an error by confusing the first conversation with the second.

[61]         Bellwood left the appellant’s farm after being accused by Ellingsen, Ron Menard and another man in connection with equipment that was said to have gone missing from the property.  Bellwood denied the theft and then Menard hit him in the face, breaking his nose.  The assault continued under the encouragement of Ellingsen.  Bellwood suggested to his attackers that Contois might know something about the missing equipment.  Contois was called and arrived at the property after which Bellwood was permitted to leave under the direction that he had 24 hours to return the missing equipment or he would be hunted down.  The appellant told Bellwood that either Bellwood or Contois had taken the equipment and he wanted it back.  That was the last occasion on which Bellwood saw the appellant.  He did not return to the property to collect his possessions and did not report the assault to the police.

[62]         Ellingsen confirmed the assault on Bellwood.  She testified that the appellant was present during the beating.  However, she denied saying anything to encourage the attack.

[63]         Bellwood admitted to relapses with respect to his drug problem after he left the appellant’s property.  The RCMP paid the $11,000 cost of a drug rehabilitation program.  They also paid his rent for three months while he was attending the program, plus $1,000 to enable his spouse to attend a support group.  The benefits he received totalled more than $16,000.

[64]         I turn now to the formal statement given by the appellant to the police after his second arrest on 22 February 2005.  The arrest was for the first degree murders of Sereena Abotsway and Mona Wilson.  It is important to note that, as of the date of the second arrest, no remains of any of the victims had been discovered by police investigators. 

[65]         The interview started at 10:00 a.m. and concluded shortly before 10:00 p.m. the same day.  The transcript of the interview is 252 pages in length.  Sgt. Bill Fordy initially conducted the questioning.  Cst. Dana Lillies, who had had previous contact with the appellant, spoke to him in the afternoon.  Staff Sgt. Don Adam took over the interview from approximately 6:30 p.m.  The appellant was left alone in the interview room for various lengths of time over the course of the interview.  He left the interview room only twice.  The first time was to speak to his lawyer on the telephone and the second was to use the washroom.  He ate no food during the interview although it was offered and he was provided with a sandwich.  He requested that he be returned to his cell a number of times but these requests were denied.  There is no dispute on appeal as to the voluntariness of the appellant’s statement and no Charter concerns remain at issue.

[66]         Sgt. Fordy told the appellant that he was formally charged with the two murders he had been arrested for the day before and that he was also being investigated for the disappearance and murders of approximately 50 “workers” from the downtown eastside.  He asked the appellant what this meant to him and he said “hogwash”, that he didn’t know anything, and that “it could be [a] setup”.

[67]         Sgt. Fordy discussed the appellant’s family and friends with him.  The sergeant asked the appellant about the worst thing that had ever happened and the appellant detailed injuries and accidents and stated that he was still alive, “but that doesn’t make me a mass murderer”.

[68]         The discussion then turned to the investigation, with emphasis on its size and the use of crime scene experts, some of whom would be looking for DNA.  He informed the appellant that the police could be on the farm for a year and would be digging below the surface for evidence.  This theme was continued by the sergeant and there was discussion about the impact of the investigation on the appellant’s property and on his family and friends. 

[69]         Sgt. Fordy eventually showed the appellant a poster board with photographs of 48 missing women and told the appellant of the evidence against him to that point.  The appellant thought he had seen some of the women around somewhere but not at his place.  He said some of the women were pretty but that he had not had sex with any of them.  None of them had been in his house or his truck.  The appellant repeatedly denied involvement and referred, at times, to being “setup”.  The sergeant repeatedly developed the theme that the appellant was “done, finished”, and was “going to be convicted”.

[70]         After lunch was brought in and Sgt. Fordy left the room for a short time, the subject of conversation was the appellant’s car salvage business and the appellant talked about finding a bloody axe, needles, inhalers, bras, tops, clothes, and even people sleeping in salvage cars.  He then raised the suggestion that he was being set up.  He said:  “There is quite a few people know about my gun, I never kept anything, any, anything for a secret.  I kept open minded and I kept to my myse [sic], ah, everything to everything”.  “... Even my .22, everything else.  I never kept any secrets”.

[71]         Sgt. Fordy asked the appellant about the .22 calibre gun.  The appellant said that he used the “little .22 sometimes to ‘do’ big boars”.  He said that he put plastic around the gun to quieten down the noise a bit when he dealt with really big pigs, “and that’s why, and then I figure I, I put this here little plastic thing over the top of it, over the top but you probably know about that too, right.  Anyways I put the thing over the top of it to quiet it down, but I never used it.”

[72]         Sgt. Fordy turned to the evidence concerning Mona Wilson (Count 2).  He showed the appellant several photographs of the interior of the motor home and outlined the evidence (some of it inaccurate) with respect to Ms. Wilson’s DNA in the motor home, as well as referring to a blood-letting event in that vehicle.  The appellant replied, “But that don’t mean I did it”.

[73]         The appellant was then left alone in the interview room for a short period of time during which he looked at a newspaper.  When he returned, Sgt. Fordy again put it to the appellant that he had killed Mona Wilson.  He told the appellant his DNA was with hers and that Pickton was “done like dinner”.  He said that they were digging up the farm looking for bodies.  The appellant continued with his denials and said the police would not find anything.  The sergeant suggested to the appellant that he start thinking about who he was prepared to “take down” with him and mentioned Dave Pickton. 

[74]         Cst. Lillies took over the interview at 4:00 p.m. Sgt. Fordy left the room.  The appellant said to the constable, “I guess I’m locked up forever”.  He repeatedly returned to the theme that he was “done” and that he was “nailed to the cross”.  The constable offered him food but he declined and said that he did not like it and that he did not think that he deserved anything to eat.  He said that he was dead before he started, that he should be on death row and he was finished.  Cst. Lillies referred the appellant to Mona Wilson’s picture and the fact that her DNA was in the motor home and mixed with his DNA on the end of the dildo gun.  The appellant said that did not mean he did it.  He said:  “there is a lot of people know I had the gun”.  The constable later asked again about the dildo gun.  The appellant told her he put the dildo on as a silencer for when he shot boars, but he never used it.  She asked how Mona Wilson’s DNA got on the top of the dildo and the appellant said that he did not know.  Sgt. Fordy returned to the interview room shortly after 5:00 p.m.

[75]         Sgt. Fordy discussed a shiny inhaler and then told the appellant that the DNA of Sereena Abotsway (Count 1) was found in the appellant’s residence and was mixed with his DNA.  The appellant said that was impossible.  The sergeant sought an explanation as to how Mona Wilson’s (Count 2) DNA was mixed with the appellant’s DNA on the dildo gun.  The appellant said he did not know and said, “... just because she was on my property everything else, I don’t know how it got mixed up or whatever, I, I don’t know how I got set up on this here.”  He added, “Yeah, because in my bottom drawer in my, in my, ah, trailer.  Now how it got uh, I, I’m not sure.  I’m not sure.  Unless somebody else trying to set me up I’m never in that trailer.”  Sgt. Fordy clarified this answer to make it clear that the appellant was referring to the motor home.  The appellant said that he had not been in there for “quite a spell”.  He went on to suggest, once again, that somebody might be trying to set him up.

[76]         The sergeant continued with the theme that the evidence, which he summarized, meant that the appellant was “done”.  The appellant agreed that it did not look good but maintained that there was a setup. 

[77]         At approximately 6:20 p.m., S/Sgt. Adam entered the interview room.  By this time, the interview had lasted, with some interruptions, for approximately eight hours.  During that time, the appellant repeatedly denied involvement in the face of persistent questioning and accusations.

[78]         S/Sgt. Adam laid out the case against the appellant for the murders of the victims in counts 1 and 2.  The appellant answered many questions with “no comment”.  He continued to deny involvement.  Eventually there was a discussion about the appellant talking and the police leaving the farm.  The appellant said he had to talk to Dinah Taylor before he did anything and he returned to this position several times thereafter.  The staff sergeant said that Dave, apparently meaning the appellant’s brother, had told police there had been murders and that the appellant had just helped to get rid of some of the bodies. 

[79]         The staff sergeant brought up the subject of what Lynn Ellingsen had said to the police, including that she had been blackmailing the appellant.  The appellant said that Ellingsen was a nice person but “she did blackmail me ... time and time over.  Time and time over.”  The staff sergeant said that it was because “she walked in when you were skinning a girl”.  The appellant replied:  “Yeah, right.”

[80]         The officer told the appellant that the police would go over every square inch of his property and the appellant said they would not find anything.  The officer then said that once deals were made with Ellingsen and Taylor and others, the appellant would have no bargaining power.  The appellant said he wanted to speak to Taylor.

[81]         S/Sgt. Adam asked the appellant, in a lengthy multi-faceted question, if there was a need “to look for somebody else for the older ones”. The appellant nodded “yes” and the question continued with this, “Yeah, okay. Alright. Willy had anyone ever helped you do it?  Any of these guys that are talking about you, are they more involved in this than ah, than [they’re] telling us?”  The appellant said he shouldn’t be talking without a lawyer present and what he said after that is indecipherable.  The staff sergeant continued as follows:  “Look at me for a sec.  You’re a human being Willy, it does matter.”  The appellant replied:  “As I said, it doesn’t matter what I say, it’s over anyways.”

[82]         S/Sgt. Adam told the appellant that he knew he killed the victim in Count 1 and asked him to reach out and touch the photos of the missing women contained in a poster to indicate which ones he had killed.  Then this exchange took place:

Appellant:        (LAUGHING) You’re making me more of a mass killer than I am.

S/Sgt. Don ADAM:      Well how bad is it, how big is it?

Appellant:        I don’t know.

[83]         The next thing that occurred was a rather lengthy discussion that has the appearance of negotiating on the part of the appellant about the search of the appellant’s property.  This began with the officer asking the appellant if he was thinking, “What’s in it for me?”  The appellant eventually said he didn’t want to admit to anything.  The staff sergeant said that he needed to be convinced that the appellant was telling him the whole truth and not just to claim that he had killed women he did not actually kill.  This led to a discussion about the police leaving the farm and, presumably, abandoning the search.  The appellant said:  “[I]f I say what, what you guys want to hear, you guys will pull the fences down and everything else, move out of there.  Is that what you’d do?”  This theme continued for a while and S/Sgt. Adam made it clear that he wasn’t going to negotiate as that would make the statement that was being given inadmissible in court.  Then this exchange took place:

Appellant:                    No, then I’m talking about going to court or whatever.

S/Sgt. ADAM:              What and pleading guilty?

Appellant:                    Um, hum.

S/Sgt. ADAM:              To how many?

Appellant:                    Whatever charged with.

S/Sgt. ADAM:              No, no, no.  No because I’m not, I don’t, you mean two?

Appellant:                    No.  I didn’t say two.

S/Sgt. ADAM:              Well you’re only charged with two right now.

Appellant:                    Two right now.

S/Sgt. Adam:               Like firstly...

Appellant:                    It is, you says, you says, it’s more but...

S/Sgt. ADAM:              Well yeah.

Appellant:                    But I’ll finally admit to everything if you pull the fences down.

[84]         S/Sgt. Adam repeated that he was not making a deal:

S/Sgt. ADAM:              But I am not, like understand, this is not a negotiation to make a deal.  But I guess what I’m saying is, are you talking about twenty girls, are you talking about thirty, are you talking about what?

Appellant:                    I’m talking about everything on my behalf.

S/Sgt. ADAM:              Well but, Willy, what kind of numbers are we talking about?

Appellant:                    Your going to every, everything, everything die.

S/Sgt. ADAM:              Pardon.

Appellant:                    And then you let everything die off and you...

S/Sgt. ADAM:              I told, I told you that’s a non-starter.

Appellant:                    Okay.

S/Sgt. ADAM:              Okay.  But let me ask you a question, alright, because I’m not gonna deal on how things will go in court, I’m not gonna deal with how you know, do the investigation, I’m not, like I...

Appellant:                    Okay...

S/Sgt. ADAM:              Do you mean...

Appellant:                    I mean, I, I’m only asking.  There’s no problem, no, no harm in asking.

S/Sgt. ADAM:              Do you remember yeah, no, no, no I know.  But I, but I need you to understand...

Appellant:                    (OVER TALKING) I just want to like to get, get everybody else’s lives back together again and get everything back to rest.

S/Sgt. ADAM:              But then why don’t you do what’s right, for you and everyone else and, and for Nancy and your brother, and allow people to come to an understanding by at least telling me alright, Don there’s twenty-five, there’s thirty, what, what is it Willy?  Give me a number so I have an idea of what you’re saying.

Appellant:                    I don’t know.

S/Sgt. ADAM:              But you can’t lie to me.  Don’t bother lying to me.

Appellant:                    I’m not lying to you.

S/Sgt. ADAM:              No, no, no I know, I see that.  How many?

Appellant:                    I don’t want to negotiate like that right at this stage.  Cause then the problem then is I’ll be committed to something.

[85]         S/Sgt. Adam again asked the appellant for the truth and the appellant again attempted to negotiate.  The officer then made it clear he couldn’t make a deal because if he did so, the appellant’s admissions would not be admissible in court.  He repeated that he was not going to make a deal with the appellant.  In response to further specific questions, the appellant stated that his brother was “not involved in anything” and that his brother was “protecting [him]”.  The appellant admitted that he had told his brother that Taylor had killed some of the women.  When asked if what he had told his brother was true the appellant said:  “I gotta talk to her here first.  I have to.  I don’t want to say something wrong.  But if you want me to I’ll bring everything out but I gotta talk to her first.”

[86]         When asked if Taylor had killed some of the women on her own, the appellant said, “No comment”.  He said that he would “take the fall for anything else”. 

[87]         Several times the appellant referred to himself as the “head honcho”.  This exchange took place:

S/Sgt. ADAM:              Let’s just travel one more road though, to make sure we understand each other.

Appellant:                    I do.

S/Sgt. ADAM:              Is that if you lie about anything.

Appellant:                    I’m not, I’m not, I have nothing to lie about.  I mean I’m nailed to the cross.  I’m the head honcho right.

S/Sgt. ADAM:              Yeah, yeah, you are.

Appellant:                    So...    

S/Sgt. ADAM:              But...

Appellant:                    ...what have I got to lie about.

S/Sgt. ADAM:              Well you might lie to try to...

Appellant:                    You either, you got me, you got me, you got me and...

S/Sgt. ADAM:              Um, hum.

Appellant:                    I’m nailed to the cross so.

S/Sgt. ADAM:              Yeah, I agree with you.

Appellant:                    There you are.

S/Sgt. ADAM:              But my question is...

Appellant:                    But there will be.

S/Sgt. ADAM:              Are you, are you...

Appellant:                    A lot of people coming down.

S/Sgt. ADAM:              With you?

Appellant:                    A lot of people.

S/Sgt. ADAM:              Well now that’s more interesting.

Appellant:                    But that’s here nor there.

S/Sgt. ADAM:              Ex, explain that to me.

Appellant:                    Oh no, no, no, no, no, no, no, I can’t do that.

S/Sgt. ADAM:              Why not Willy?

Appellant:                    No, no...

S/Sgt. ADAM:              Well you gotta give me some hints so I know             what I’m talking about.

Appellant                     Yeah.

S/Sgt. ADAM:              Well give me some hints then, what...

Appellant:                    Well there’s a lot of the other people involved too. But otherwise, like I said, I’ll just take the fall.

[88]         Again the appellant was asked if others were involved and this is what was said in that regard:

S/Sgt. ADAM:              Okay.  Are there other guys that were involved when, when some of these girls lost their lives, is that what you’re telling me?

Appellant:                    No.

S/Sgt. ADAM:              Just you.  You and, and, and, what, whatever the other girl.

Appellant:                    There’s other people involved but, but that’s here nor there.

S/Sgt. ADAM:              Okay, give me ah, without naming names, just give me a picture of how that comes together, so I can understand where, what I’m thinking, I’m not following you.  So don’t name names, but just give me a picture of how that comes together.

Appellant:                    Well, there’s other people involved.

S/Sgt. ADAM:              Yeah, but Willy, I, your, I’m confused.

Appellant:                    I know.  I know that because the problem is this is say over your head and I, like I said I’m not gonna, I’ll take the fall for everything, but the problem is I’m the head honcho and you got me now.

[89]         The appellant later said that his brother was not involved in anything and again he said, “I’m the head honcho, you know that.”

[90]         There was a brief discussion about the timing of the killings:

S/Sgt. ADAM:              Okay, is it true that ah, when you say that the killings started after ah, [Person X] stabbed you, I kinda got the sense that maybe they started a bit before that.

Appellant:                    At this stage, no comment.

S/Sgt. ADAM:              Okay.  But definitely afterwards (PICKTON NODS “YES”).  Okay.  I got it....

[91]         Reference to Person X relates to evidence of a sex-trade worker who claimed to have had a violent experience with the appellant but whose evidence was excluded by the trial judge.  That is an issue in the Crown’s appeal.  The importance of this passage, however, is that the appellant appears to have been acknowledging that the killings started after a particular period of time, if not before. 

[92]         There was a return to the negotiation theme.  S/Sgt. ADAM suggested that if the appellant explained how many he had killed, it would narrow the investigation at the farm.  The appellant responded that that is not what he had asked for and this exchange followed:

S/Sgt. ADAM:             What did you ask for?

Appellant:                    Um, if I, cause you got me right?

S/Sgt. ADAM:             Yeah.

Appellant:                    I’m the head, head guy right?

S/Sgt. ADAM:             Well let me ask you a question.

Appellant:                    Okay.

S/Sgt. ADAM:              Okay.

Appellant:                    My eyes open, and I’m fucked anyways so...I’m listening.

[93]         The conversation returned to the subject of others being involved.  It included this part of the conversation:

S/Sgt. ADAM:              Okay, without naming names, give me an idea of, of how they’re gonna come down, so I can understand.

Appellant:                    There will be other murderers or whatever, other people, other, other people charged, but that’s here not there.

S/Sgt. ADAM:              Men or women?

Appellant:                    A man.

S/Sgt. ADAM:              Man, one other man.

Appellant:                    Um, hum.

[94]         The conversation turned to the appellant having been careless and sloppy.  It was pointed out to him that he didn’t do a good job of cleaning up the blood and the appellant said, “That’s right, I was sloppy.”  He was asked how he managed to avoid getting caught for so long.  He at first said that he had no comment but when the officer persisted he said, “Carelessness on my behalf.” 

[95]         The staff sergeant asked the appellant if he could lead police to a burial spot and the appellant said he would if he could.  The staff sergeant said that if the appellant pointed out spots on the property the investigation would be speeded up and the police could do their job.  Then he made a reference to good policing.  He asked the appellant if he ever thought of quitting and the reply was “yeah”. 

[96]         There was an exchange about whether the appellant was acting out fantasy or acting out of anger.  He was asked if he no longer viewed the women as being worth anything.  His response:  “But ah, no, no, that’s not.  I had one more planned but that was the end of it.  That was the last I was gonna shut it down, that’s why I was just sloppy.  Just the last one.”  He was asked if he was going to do one more and he said, after something that is indecipherable, “...that was the end of it.  That’s why I got sloppy because the other thing never got that far.”

[97]         When asked why he did not burn the mattress on which Mona Wilson (Count 2) was killed, the appellant said that he was sloppy.  He denied keeping trophies but agreed that it was sloppy to have the women’s identification in his place.  He denied that he killed Mona Wilson by striking her, strangling her, or using a hatchet or a hammer and he said, “It’ll come out in the wash”.  Toward the end of this exchange, the appellant was asked if he killed Mona Wilson on a weekday or a weeknight and the appellant replied:  “You’re making me a murderer more than I am.”

[98]         S/Sgt. Adam returned to a discussion of the motor home.  He wanted to know “how many girls [were killed] in there?”  He repeated the questions as to how many.  The response was:  “I’d say two, probably two, maybe three.”  This exchange continued as follows:

S/Sgt. ADAM:             Okay, so we’ve got Mona obviously, right?

Appellant:                    No.  We got nobody yet.

S/Sgt. ADAM:              Yeah, we do.  But we got Mona, trust me Mona’s the one on the mattress with...

Appellant:                    Um, hum.

S/Sgt. ADAM:              ...with her blood, did you use that dildo on her?  It’s got her DNA on the tip, it’s got yours, you did, didn’t you.  Was she alive or dead?

Appellant:                    Alive.

S/Sgt. ADAM:             When you used it eh? Did you shoot her?

Appellant:                    Shoot her?

S/Sgt. ADAM:             Yeah, well it’s on the .22 maybe she...

Appellant:                    No.  There’s not [sic] holes through it, I put no holes through that.

S/Sgt. ADAM:              No, no, but you might have taken it off and shot the girl.  Like whatever you did caused a lot of blood right.

Appellant:                    Um, hum.  Well you did, you did some of your homework.

S/Sgt. ADAM:             Why not just tell me?

Appellant:                    What can I tell you.

S/Sgt. ADAM:              You’re having fun playing cat and mouse with me here, Willy?  True.

Appellant:                    I’m telling you, I’m telling you well what you got me right?

S/Sgt. ADAM:              Um, hum.  But why don’t we just deal with, with Mona WILSON ah, you, like the things I’d be curious to know, is why you used the motor home instead of the trailer.  Is that, and I, is it just because you knew it might be bloody or a mess or was she out there and you went out there to her. Like how did it happen?

Appellant:                    Well, I don’t know the date you got on there.

S/Sgt. ADAM:             Well you know the date.

Appellant:                    Um, hum.  But what date you got on the paper?

S/Sgt. ADAM:             That she disappeared?

Appellant:                    Um, hum.  Giving your head a rattle am I.

S/Sgt. ADAM:             Pardon.

Appellant:                    I’m giving your head a rattle am I?

S/Sgt. ADAM:              Well you gotta remember that ah, Mona WILSON, was I’m gonna say around the end of, somewhere in November, December of last year.  When did you get her out there, when did this happen?

Appellant:                    No, you’re close.

S/Sgt. ADAM:              Come on.  Cough it up.

Appellant:                    You’re close.  No, you’re close.

S/Sgt. Don ADAM:      But you used the dildo on her when she was still alive, is that true?

Appellant:                    Um, hum.

S/Sgt. ADAM:              Did she do anything to, to send you into a rage or was it just, it was already planned, you had already said that.

Appellant:                    No, she didn’t want to have any sex.

S/Sgt. ADAM:              Pardon.

Appellant:                    She didn’t want any, she didn’t want to do anything.

S/Sgt. ADAM:             So you, what did you just lose control of yourself?

Appellant:                    No.  No comment. (LAUGHING)  No comment at this stage. (PAUSE)  I’m already talking to you guys but not even supposed to talk to you.  But that’s here nor there.  I am nailed to the cross and. [sic]

[99]         S/Sgt. Adam asked a series of questions about where he killed Sereena Abotsway (Count 1) and how he disposed of the bodies.  That led to this exchange:

Appellant:                    I already told you how many’s in the trailer.  Probably, maybe up to as high as three in that, in the motor home.

S/Sgt. ADAM:             Alright.

Appellant:                    That’s was as far as we got.

S/Sgt. ADAM:             Right.

Appellant:                    Possibly.

S/Sgt. ADAM:              Okay, then how many in the, in your, how many in here?  (POINTING TO BOARD)

Appellant:                    No comment.

[100]     The staff sergeant again asked the appellant for something to take back to his investigating officers.  The appellant said that he had told him already and when asked what he meant, the appellant said:  “I said there’ll be other people involved.”  That led to this exchange:

S/Sgt. ADAM:             You haven’t told me who though?

Appellant:                    I didn’t, no.  Why should I tell you that?

S/Sgt. ADAM:             Why not?

Appellant:                    Cause you, because they’re not involved yet.

S/Sgt. ADAM:              You mean like in other words, it’s not out in the open yet?

Appellant:                    Tit for tat.

S/Sgt. ADAM:              Well let me step out.

Appellant:                    No, I’ll let you sleep on it.  You gonna sleep on it a day or two or whatever.

[101]     S/Sgt. Adam asked the appellant to tell him everything and that would be the right thing to do.  The appellant said that he had to talk to Taylor first.  The questioning continued:

S/Sgt. ADAM:              Yeah, what about, so the families of these people, the families of these girls...

Appellant:                    That’s not my comment, that’s not my problem.

S/Sgt. ADAM:             But they’re not...

Appellant:                    Shit happens.

S/Sgt. ADAM:             Well you certainly sum up how you feel about it.

Appellant:                    I mean myself, I’m, I’m nailed, what I’m saying is I’m freeing the property and, I’m taking a lot of extra work off your hands, what you don’t have to do.

S/Sgt. ADAM:              You know something, I could care less about the work.

Appellant:                    Okay.

S/Sgt. ADAM:              My sole reason for, for being with you here is to try and do something for these families.

Appellant:                    Um, hum.

S/Sgt. ADAM:              Alright, and I know you know, you don’t understand that and I accept that, that’s...

Appellant:                    Yeah, but the problem is ah, I’m nailed already so what can I do?  Honestly, you tell me what I can do.

S/Sgt. ADAM:              Well let me ask you a question.  If it was your niece or nephew...

Appellant:                    Well...

S/Sgt. ADAM   :           ...wouldn’t you want...

Appellant:                    If it was my niece or nephew?

S/Sgt. ADAM:              Yeah.

Appellant:                    They’re at the wrong place at the right time.  What else can I say.

S/Sgt. ADAM:             I hear you.  Let me step out...

Appellant:                    I mean, I’m nailed.

S/Sgt. ADAM:             Yeah.

Appellant:                    I mean myself, the only thing they can do is shoot me, right, I mean at this stage.

S/Sgt. ADAM:              Um, hum.  Yeah, we don’t shoot people here in Canada.

Appellant:                    Yeah, but the, no, no you follow what I’m trying to say, I mean.

S/Sgt. ADAM:             Yeah.

Appellant:                    I’m nailed to the cross.

S/Sgt. ADAM:             Um, hum.  Yeah...

Appellant:                    What can I, oh, what can I do?

S/Sgt. ADAM:             What about doing the right thing Willy?

Appellant:                    No, no, no because...

S/Sgt. ADAM:             Just think about if first.

[102]     After further discussion about the victims and their families, the interview concluded at 9:54 p.m. 

[103]     Before the formal interview described above, an undercover RCMP officer was put in a police cell with the appellant.  His identity cannot be published.  This officer knew that the appellant was a suspect in a number of murders and that police were searching his property.  He posed as an experienced criminal who had been in jail before and was capable of violence.  He purported to have outstanding warrants for an attempted murder in Ontario.  The conversation between the cell plant and the appellant was audio-taped and video-recorded.  The jury had a transcript of the conversations, some 179 pages long. 

[104]     The undercover officer was in the same cell as the appellant from the afternoon on 22 February 2002 and engaged him in general conversation from time to time.  They were overnight in the cell together and the interview, summarized above, began just after 10:00 a.m. the next day.  The appellant was returned to the cell around 10:00 p.m. that night.  They discussed the appellant’s interview with the police officers.  During this discourse, the appellant said the following:

Appellant:        So they’re, they’re gonna interrogate me for another twelve hours, another twelve hours.  (YELLING IN BACKGROUND) and I, and I told them already, I says I’m not the only one, if I go down.

Cpl. X:             Yeah.

Appellant:        ... a lot of other people are gonna go down, I’m the keyholder here. (YELLING IN BACKGROUND).

Cpl. X:             That’s what you gotta do, right?

Appellant:        Fuck.

Cpl. X:             Yeah, you really fucking have to be careful.

Appellant:        I think I might have buried myself, I said I’m a key holder.

[105]     The two prisoners were given dinner and after dinner this conversation occurred:

Appellant:        They got you for murder charges?  Or attempted murder?

Cpl. X:             Well, they got, they got the attempt, they got, I talked to my lawyer there and there’s some more pending, some more, a couple more fucking things they’ve got on me.

Appellant:        But you’re nothing like mine.

Cpl. X:             Well, fuckin I’m fucking looking at some serious time if fuckin they put things together.  Do you know what I mean? (PICKTON MADE A HAND GESTURE INDICATING “5”AND “0’.)  What’s that?  Five, zero, fifty.  (PICKTON NODS HIS HEAD.)  Ha, ha, fuck you.  (PICKTON PUTS A FINGER TO HIS LIPS TO INDICATE SILENCE.)  You, you’re full a, shitting me.  (PICKTON POINTS AT THE CAMERA.)

Appellant:        Camera.

Cpl. X:             You yourself? I’ve fucking done a few of the these.

Appellant:        Um, hum.

[106]     The undercover officer explained how he had killed someone with a pickaxe and how there was hardly any mess or blood and it took the police a while to figure out what had happened.  The conversation continued:

Appellant:        I, I fuckin buried myself now.

Cpl. X:             Hey.

Appellant:        I buried myself.

Cpl. X: How

Appellant:        Got me.  They got me on this one.

Cpl. X:             No, no shit.

Appellant:        (WHISPERING)(INDECIPHERABLE).

*           *           *           *           *           *           *           *           *

Cpl. X:             Fucking guy does it right.  I find the best way to fucking dispose of something is fucking take it to the ocean.

Appellant:        Oh, really?

Cpl. X:             Oh, fuck, do you know what the fucking ocean does to things, there ain’t much left.

Appellant:        I did better than that.

Cpl. X:             Who?

Appellant:        Me.

CpI. X: No.      Huh.

Appellant:        (PICKTON MOVES AND SITS NEXT TO CPL. X):

Appellant:        A rendering plant.

Cpl. X:             Hey?

Appellant:        A rendering plant.

Cpl. X:             Ha, ha.  No shit.  Ha, ha, that’s gotta be fucking ah, pretty good hey.

Appellant:        Mm, hmm.

Cpl. X:             Can’t be much fuckin’ left?

Appellant:        Oh, no only ah, I was kinda sloppy at the end, too, getting too sloppy.

Cpl. X:             Really.

Appellant:        They got me, oh, fuck, getting’ too sloppy.

Cpl. X:             See fucking you gotta be fucking meticulous you gotta be fucking.

Appellant:        (INDECIPHERABLE).

[107]     The undercover officer talked about his own “crimes” and the conversation continued:

Appellant:        I was gonna do one more, make it an even fifty.

Cpl. X:             (LAUGHING)

Appellant:        That’s why, that’s why I was sloppy about (INDECIPHERABLE).

Cpl. X:             Yeah.

Appellant:        I wanted one more, make, make the big five 0.

Cpl. X:             Make the big five zero (LAUGHING) fuck.  That’s fucked.  Fuckin’ five, zero.  Fuckin’ half a hundred. (PICKTON LAUGHING, NODDING.)

Appellant:        Mmm Hmm.

Cpl. X:             Yeah.  Like you say that’s the best part.  That fuckin’ the one.

Appellant:        Everybody says (POUNDING).  How many of those?  Wouldn’t tell em.

Cpl. X:             (LAUGHING)

Appellant:        I wouldn’t tell ‘em.

CpI. X:             Yeah.

Appellant:        Talk about half, about one quarter.  Talking about all of them. I says no.

Cpl. X:             (LAUGHING)

Appellant:        You know they got forty-eight on the list.

CpI. X:             Yeah.

Appellant:        You know the list has only got like, only got half the people in there.  The other half might, might (INDECIPHERABLE).

[108]     There was discussion about the involvement of other people, as follows:

Appellant:        But I think most of them, based on that fuckin’, fuck evidence.  I think I’m nailed to the cross.

Cpl. X:             Hmm.

Appellant:        But, if that happens there will be about fifteen other people are gonna go down.  Fuck sh... some will go down the tank.

CpI. X:             Yeah.

Appellant:        I said they were my friends.

Cpl. X:             Huh.  Hey between me and you man fuck you know what, that fuckin’, you look after it for yourself.

Appellant:        I thought they were my fuckin friends.

[109]     After the appellant again said that they were going to nail him to the cross, the conversation proceeded:

Appellant:        They even told me hey, you know what, if you kept your act clean, (INDECIPHERABLE).

Cpl. X:             Hum.

Appellant:        It’s just like the cops I mean.  You wouldn’t, wouldn’t believe it.

Cpl. X:             I call Mr. Clean.  

Appellant:        That’s where they got me.

Cpl. X:             Remember I told you, you can’t be too fuckin careful.

Appellant:        I know. That’s where they got me.  

Cpl. X:             Fuck.

Cpl. X:             You, you know eh. You know.

Appellant:        I’m, I’m, I’m I made my own, I made my own grave by being sloppy.

CpI. X:             Doesn’t that just kick you in the ass now.

Appellant:        But it pisses me off, no fuckin’ way, you know it pisses me right off.  That’s what the problem is.  They just, they don’t have nothing but nothing otherwise.

CpI. X:             Oh damn. (LAUGHING)

Appellant:        They have nothing.

CpI. X:             That would fuckin’ piss you off you know.

Appellant:        Really fuckin’ piss me off, I was just gonna fuckin do one more make it even.

CpI. X:             (LAUGHING)

Appellant:        Bigger than the, these, bigger than the ones in the States.

Cpl. X:             Yeah.  Oh yeah, fuckin’ by far.

Appellant:        His record were about forty-two they says.

CpI. X:             Yeah, is it.

Appellant:        Forty-two.

CpI. X:             Fuckin’ it looks like you got the record.

Appellant:        This is big right now, it’s big, it’s growing.

[110]     The appellant made some more comments about being sloppy “at the end”.  The corporal said he hoped the appellant had covered his tracks.  This followed:

Appellant:        Four I was sloppy with. (HOLDING UP 4 FINGERS)

Cpl. X:             Fuck.

Appellant:        Four I was sloppy with.  I just couldn’t finish it off, so I cleaned it up and that’s it.

Cpl. X:             (LAUGHING)

Appellant:        So let everything die for a while.

Cpl. X:             Yeah.

Appellant:        Then, then, do, do another twenty five new ones (LAUGHING)

[111]     There was some discussion about an irrelevant matter and the appellant again gave a number:

Appellant:        Forty-nine.

Cpl. X:             Almost made it.

Appellant:        Hum.

Cpl. X:             Almost made it.

Appellant:        I’m worried about it.

Cpl. X:             Hee hee.

Appellant:        All the way up to fifty.

Cpl. X:             Hey?

Appellant:        I haven’t done fifty yet.

[112]     The conversation turned again to unrelated topics, during the course of which the appellant said, “Ah, I think I’m dead. It’s obvious.”  And “so close”.  The undercover officer was taken from the cells and did not return.

[113]     Dr. Larry Krywaniuk testified for the defence.  He is an expert in assessing intellectual abilities.  Upon testing the appellant, he formed the opinion that this man had difficulty processing verbal information.  He did not review the statements made by the appellant to the police officers interviewing him or to the cell plant in either transcript or in video form. 

[114]     The doctor testified that the appellant’s score in the verbal division was 80, putting him in the ninth percentile.  He scored 95 on the performance division which is in the 37th percentile.  His full-scale I.Q. score was 86, in the low average range.  The Statement summarizes this witness’ opinion at para. 420:

420.     Dr. Krywaniuk’s interpretation of the verbal score was that Pickton’s ability to understand and process verbal information is well below that of the general population.  Pickton has poor short-term recall.  He struggles in his ability to divide his attention or keep multiple thoughts in his mind at the same time.  This makes it difficult for him to compare, contrast, and integrate a large volume of information.  He is also slow in processing information.  Dr. Krywaniuk did not observe Pickton in an interview situation, but testified that, theoretically, Pickton could experience a certain level of confusion and an inability to accurately perceive and respond.

[115]     This witness agreed, in cross examination, that his test results did not indicate that the appellant was unable to pick up women from the downtown eastside, take them to his home, murder them, butcher them and dispose of the evidence.  His tests are not oriented toward that behaviour.

[116]     The defence also called Dr. Gordon Cochrane, an expert in the area of student assessment and achievement testing in education.  He reviewed the appellant’s school record which was incomplete.  The appellant failed grade 2 and after grade 3 began taking special or occupational classes.  He remained in this type of schooling for the remainder of his school career.  He started school in 1955 and the last entry on his school record is in 1964.  The record showed that the appellant consistently under-achieved in school.  Dr. Cochrane was of the opinion that the appellant was falling behind in school relative to his peers.  Three Stanford achievement test scores had placed him at the grade 5 level when he was 13, 14 and 15 years old.  This indicated that his progress had plateaued.  There had been some limited improvement because of the fact that in June of 1964, he achieved grade 6 equivalent English language score. 

[117]     Friends and associates of the appellant, called by both Crown and the defence, gave evidence about their interactions with the appellant.  This evidence generally suggested that he was a simple-minded person with some mechanical ability.

[118]     The appellant did not testify. 

Sole perpetrator issue

[119]     The appellant contends that the Crown, during lengthy pre-trial proceedings, in pre-charge discussions during the trial and in its final address to the jury, maintained that the appellant was the killer on all counts and that he acted alone.  It is said that this position of the Crown made the appellant and his counsel believe that the only case to meet was that the appellant and nobody else was criminally responsible for the killings.  Further, in response to the question from the jury, the Crown made an about-face and, for the first time, introduced a co-principal theory of liability.  Therefore, the argument continues, an amendment of the jury charge by the trial judge in his second recharge created a new route to liability.  The appellant did not understand he had to meet this case and the trial became unfair.

[120]     In my opinion, this argument must fail for a number of reasons.  Co-party routes to liability were before the court throughout.  The main argument of the Crown was that the appellant was the sole killer on all counts.  But it clearly emerged from the evidence as presented by the Crown, particularly from the mouth of the appellant himself, that a person or persons other than him might have been criminally involved in addition to the appellant.  Also, the defence clearly developed a secondary route to liability, at least by implication, by raising the possibility in cross examination and by submitting to the jury that others might have committed the killings to the exclusion of the appellant.  The obvious and necessary consequence of this position is the necessity to consider that more than one person might have been criminally responsible for one or more of the murders.  An attempt by the Crown to prove that the appellant was the sole actor in these killings did not mean, on a proper consideration of the whole of the evidence, that the jury could avoid consideration of any other party route to criminal liability. 

[121]     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.  I find it necessary to review the record in some detail and in the context of the evidence, particularly the statements made by the appellant.

[122]     Pre-trial proceedings commenced on 3 June 2005 and continued until 10 January 2007.  The trial judge made numerous evidentiary rulings, many of which are issues in the Crown’s appeal.  Some of the submissions leading to these rulings touched upon the Crown theory. 

[123]     The appellant extracted from lengthy pre-trial submissions various comments made by counsel.  On 26 June 2006, there were references to the Crown’s theory by defence counsel as follows:

But make no mistake that the Crown theory is that one person committed all of the murders on the indictment and that that person was Mr. Pickton, and that’s the centre, the theme of the entire Crown case, quite obviously.  So in the context of this case to suggest that someone killed women on the indictment and that someone probably killed the denture wearers as well, well, that’s - - that’s pretty much exactly the equivalent of suggesting that Mr. Pickton killed all of the women on the indictment and Mr. Pickton killed the denture wearers.  I mean, I suppose it can be put this way:  will the Crown ever suggest that the denture wearers may have been murdered by someone else other than Mr. Pickton?  No.  It’s necessary to the Crown theory to show that the same person murdered everyone, including the denture wearers and that person was Mr. Pickton. 

[124]     On the same date, Crown counsel, on the Crown’s application to admit as similar fact evidence the discovery of the bones of an unidentified person referred to as Jane Doe, said this:

... The fact that it may be a single perpetrator and the fact that it may ultimately be Mr. Pickton are other logical steps that have to be derived at a different time.  ... Ultimately, the Crown’s case is focused on Mr. Pickton and, you know, proving that he is the single perpetrator.

[125]     In argument on 6 July 2006, on the Crown’s application to admit the evidence of Person X, Crown counsel said this:

The Crown takes the view that [Person X’s] evidence is admissible similar fact evidence, that it relates to the issues of identity which – sort of a subparagraph of identity would probably be reference to rebutting any argument of third parties being involved, and it also goes to the issues of lack of innocent association with Downtown Eastside sex-trade workers.  So those are the primary issues that the evidence goes to.

[126]     During submissions on the severance issue on 27 July 2006, Crown counsel said:

Both because of the location of the remains and how the remains were similarly treated, the Crown will be submitting that the jury could reasonably conclude that one perpetrator is involved.  The Crown does intend to apply, at the end of the evidence, for a ruling that the jury be able, on the basis of similar fact evidence, to apply the evidence on a count-to-count basis in order to conclude that each of the women named in the indictment is dead, and not innocently associated to the applicant’s premises, but rather was murdered, and that one individual was the perpetrator.

[127]     On 18 September 2006, again in the context of the application to admit the evidence of Person X, Crown counsel said that it was “reasonable to believe that the person responsible for the butchery is also the killer and also the person involved in the disposition of the bodies, and there is no evidence which would suggest or support a conclusion to any other extent”.  He continued:

One element of that circumstantial case is the pattern of behaviour that the Crown says is related to there only being only [one] perpetrator.  This pattern is observable in the similarities in the crime that far exceed any probability of coincidence, and we will try to demonstrate that the crimes before the court were the result of systematic murders, dismemberments and disposals of human remains that share such common features that the likelihood of coincidence that other than one person committing the acts is illogical or contrary to common sense.  The Crown says that person is the accused.

[128]     The appellant points to the following passage from the Crown’s opening address to the jury on 22 January 2007:

The Crown intends to prove that these murders of these six women were the work of one man, the accused, Robert William Pickton.  Over the course of several years, he had these women to his home, somewhat isolated acreage located at the address I gave you a moment ago, 953 Dominion Avenue in Port Coquitlam, British Columbia.  There, the Crown intends to prove he murdered them, butchered their remains and disposed of them.  He had the expertise and equipment for the task, he had the means of transportation available and the means for the disposal of the remains.  All six women were denizens of the Downtown Eastside of Vancouver.  They were drug-addicted sex-trade workers.

[129]     It is apparent that the defence anticipated early on that there was a middle ground between the Crown’s sole perpetrator theory and the defence theory that another person or other persons were responsible for the murders to the exclusion of the appellant.  Defence counsel was afforded the opportunity to follow the Crown’s opening statement with an opening statement for the defence.  In the course of that opening, defence counsel said this:  “The defence position in this trial is clear and it is that Mr. Pickton did not kill or participate in the killing of the six women he is accused of murdering.”  It cannot have been understood by the defence that the path to acquittal was merely to raise a reasonable doubt as to whether or not the appellant was the actual killer in one or more of the counts.

[130]     The Crown’s first witness was the lead investigator, S/Sgt. Adam.  He testified that he did not know if he was looking for one serial killer or more than one.  In early February 2002 he had not concluded that the appellant was the only person potentially involved in the murders.  He continued to investigate others.  In cross examination, he testified that Dinah Taylor and Lynn Ellingsen were seen as possible aiders or abettors.  They and Pat Casanova, at different times, were arrested for the murders.  Casanova and Taylor were investigated extensively. 

[131]     The appellant relies upon the re-examination of S/Sgt. Adams, during which Crown counsel elicited from him that there was “no evidence to lay any charges” against any of the individuals named in cross examination. 

[132]     The last witness for the Crown was S/Sgt. Clary.  He was the file co-ordinator and became the primary investigator in the fall of 2004.  He testified that he fully investigated whether Taylor, Ellingsen or Casanova participated in the killings or the aftermath of the killings.  He testified that there was no evidence to justify any charges against them.  

[133]     The appellant says the fact that the Crown led this evidence from the two principal investigators married the Crown to the sole perpetrator theory and let the defence and the jury know that the case to meet was that the appellant was the killer in all six counts to the exclusion of all others.  I do not accept this submission.  The fact that the investigators did not have evidence to charge anybody else with these murders did not foreclose the obvious and necessary consideration by the trial judge and by the trier of fact that one or more other persons might have been involved, together with the appellant, in committing the murders.   The police investigators were looking for evidence against persons other than the appellant capable of establishing their guilt beyond a reasonable doubt.  On the other hand, the defenders of the appellant were seeking only to raise a reasonable doubt with respect to the criminal liability of the appellant for the murders.

[134]     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”. 

[135]     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.

[136]     At various times during the latter part of the trial, the trial judge discussed the content of the jury charge with counsel.  These discussions covered various areas of law.  Counsel have extracted from the transcript many of these discussions in which the law of parties was touched upon.  The phrase “actively participated in the killing of the victim” was on the table with respect to the element of identity.  That phrase is inconsistent with the trier of fact being confined to the sole perpetrator theory.  It is also inconsistent with the defence holding the belief, before it closed its case and before defence counsel addressed the jury, that the defence merely had to raise a reasonable doubt with respect to the Crown’s sole perpetrator argument.  For this reason, I find it unnecessary, with one exception, to examine in detail what was said by counsel during submissions on the content of the charge with respect to parties.  It will suffice to merely discuss the draft proposals for content and the instruction given to the jury on the law of parties in the original charge. 

[137]     The exception is the following extract from a submission by counsel for the defence made on 26 November 2007, after the defence speech to the jury and during a break in the Crown’s speech to the jury:

Your Lordship has explained the basis for criminal liability previous, but in a sense the only way in which he can be criminally liable is if he actively participated in killing the victim.  So perhaps that express language could simply be used again.  So something like:

It is possible that although she [Dinah Taylor] may have been involved, Mr. Pickton actively participated in killing the victim and is therefore also criminally liable.

* * *

Of course, if she may have been involved and you have a reasonable doubt as to whether Mr. Pickton actively participated in the killing, you must acquit.

[138]     The above submission concerned that portion of the charge dealing with other suspects.  However, the instruction proposed by the defence did not employ the language of the sole perpetrator theory.  It employed the language of multi-party liability.  As will be seen, this language found its way into the charge.  It should also be noted that the “other suspects” portion of the charge was concerned with the element of identity and with no other element.  I conclude again that the defence was alive to alternate routes to criminal liability.

[139]     Before discussing other proposals made to the trial judge by counsel as to the content of the charge on the element of identity, I will set out pertinent passages of the instruction that the trial judge gave to the jury in both oral and written form.

[140]     The judge set out the elements of the offence of first degree murder as follows:

[5]        There are five elements to the offence of first degree murder:

Element 1:       That the individual named in the count was killed by means of an unlawful act.

Element 2:       That the named victim was killed at the time and place stated in the Indictment.

Element 3:       That the accused is the individual who killed that person.

Element 4:       That the accused either meant to cause the victim’s death or meant to cause bodily harm that he knew was likely to cause her death and was reckless about whether or not it caused death.

Element 5:       That the death of the named victim was planned and deliberate.

[6]        Those are the elements of the offence of first degree murder and should form the structure of your analysis.

[7]        You must remember that each of the elements of the offence must be proven beyond a reasonable doubt. I have instructed you that each piece of evidence does not have to be proven to that standard, but, for you to find that an element has been sufficiently proven, it is necessary that you conclude that all of the relevant evidence, taken as a whole, satisfies you beyond a reasonable doubt that the element is proven.

[141]     This was followed by what I consider to be a co-principal instruction:

[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]

[142]     The trial judge instructed the jury with respect to the defence submission that there were investigational deficiencies that caused the police to focus on the appellant without looking carefully at other evidence.  This was followed by the instruction on other suspects, introduced as follows: 

[166]    Another way in which investigational deficiencies may be relevant concerns other suspects.  In the course of his submissions, defence counsel put squarely before you the proposition that other persons may have been responsible for the commission of the offences with which Mr. Pickton is charged, and that the police failed to adequately investigate their involvement in the offences.  The defence position is that had the investigation not been so focussed on Mr. Pickton and had it been conducted in a more open fashion, it would have been more apparent that other persons were involved in these offences.  Dinah Taylor is the most prominent of these.  She did not testify at trial.  Pat Casanova’s name was put forward in a similar vein.  He, of course, did testify.

[143]     The charge continued with specific instruction as to the possible involvement of Dinah Taylor and the judge made it clear that a determination of her involvement was not the end of the Crown’s case:

[169]    ... Recall my earlier instruction to you that in order for you to find Mr. Pickton guilty of a count, you must find that he actively participated in the killing of the victim.  It is not sufficient that he was merely present or took a minor role.  You must focus on his involvement.  You will recall, as well, my earlier instruction that it is not necessary that you find that Mr. Pickton acted alone.  You may find that he acted in conjunction with other persons, although you may not know who they are.  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.

* * *

[171]    Regardless of any involvement you may find on the part of Ms. Taylor, understand that you must still fully and conscientiously weigh all of the evidence to determine whether the Crown has proven that Mr. Pickton is guilty of any or all of the counts.  Put another way, this is not necessarily an “either/or” situation.  Thus, even if you find involvement by Ms. Taylor in some or all of the counts, it does not logically follow that the case against Mr. Pickton for those same offences must therefore fail.  It is possible that both of them may have been involved, but if Mr. Pickton actively participated in killing a victim or victims, he is also criminally liable.

[172]    Your task is not to determine all aspects of what happened in this case.  It is to determine whether the evidence satisfies you beyond a reasonable doubt that Mr. Pickton committed any or all of the offences with which he is charged.  If you find it does, then it is your duty to return a verdict of guilty.  If it does not, your duty is to acquit him.  Whether someone else is involved will not necessarily decide this case for you.

[Emphasis added]

[144]     A similar instruction with respect to Pat Casanova followed: 

[175]    As was the case with Ms. Taylor, regardless of any involvement you may find on the part of Mr. Casanova, you must still fully and conscientiously weigh all of the evidence to determine whether the Crown has proven that Mr. Pickton is guilty of any or all of the offences.  Even if you find that Mr. Casanova was involved in some or all of the counts, it does not logically follow that the case against Mr. Pickton for those same offences must therefore fail.  It is possible that both of them may have been involved in ways that Mr. Pickton is also criminally liable.

[Emphasis added]

[145]     As I have stated, it is not necessary to review in detail what was said by counsel during pre-charge discussions.  Crown counsel talked about party instruction in a general way but was not clear with respect to the Crown’s position.  It is difficult to discern from the record whether, when counsel mentioned party instruction, they were talking about the entire law of parties or just about aiding and abetting.  On 16 November 2007, before the defence closed its case, Crown counsel did say, in the context of a discussion about causation, that it was “not necessary to find that the accused acted alone”.  Earlier in the same submission, Crown counsel said that the Crown might seek a party instruction if the necessity for it emerged from the defence jury address.  In any event, it is apparent from drafts proposed during those discussions that there would be instruction of some sort as to the law of parties.

[146]     On 30 November, during the last day of jury instruction, counsel made submissions to the trial judge with respect to the element of identity specific to each count.  Defence counsel referred to an earlier draft instruction provided by the trial judge.  That instruction was then under element three and read, with respect to count 1, as follows: 

If you find that Mr. Pickton shot Ms. Abotsway, you must find that the Crown has proven this element.  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.

[147]     This paragraph was not in the Element 3 portion of the charge as the judge was delivering it on 30 November.  On 16 November, the Crown had persuaded the judge that the paragraph should be included in Element 1.  That element then was that the victim was killed.  It was decided that the first element should be that the victim was killed by means of an unlawful act, a combining of what had been Element 1 and Element 3.  The Crown also persuaded the judge that the wording should be as follows:

If you find that Ms. Abotsway was shot, you should find that the Crown has proven this element.  On the other hand, if you have a reasonable doubt about whether or not she was shot to death, you must return a verdict of not guilty on the charge of murdering her.

[Emphasis added]

[148]     Returning to submissions made on 30 November, defence counsel asked that the paragraph from the earlier draft be inserted into the instruction on Element 3, identity, on each of counts 1 to 3.  For some reason, the Crown acceded to that request but said that the word “must” had to be replaced by the word “should”.  The result was that the following paragraph was given to the jury with respect to count 1:

[205]    If you find that Mr. Pickton shot Ms. Abotsway, 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 shot her, you must return a verdict of not guilty.

[149]     Identical paragraphs were left with the jury with respect to count 2 (para. 239) and with respect to count 3 (para. 262). 

[150]     These came to be known as the “actual shooter instruction”.  As will be discussed later, these paragraphs were wrong in law and were amended by the trial judge when he recharged the jury the second time in response to their question on 6 December.

[151]     On 13 November, the trial judge gave counsel a proposed draft that included, among other things, instruction on the element of planning and deliberation.  However, apparently misplaced, the draft included the following instruction that relates to Element 3, identity:

[16]      It is not necessary to find that the accused acted alone.  You may conclude that Mr. Pickton was involved in the causation of the murders of one or more of the named victims, but also conclude or suspect that there were other persons involved in the commission of the murders as well.  That is not the focus of your analysis.

[17]      To prove the case against Mr. Pickton, it must be proven, beyond a reasonable doubt, that he did something that was an “essential, substantial and integral part” of the killing of the named victim.  By that, I mean that he must be shown to have actively participated in the kiIIing of the victim.  It is not enough to prove that he was present or that he played some minor role in the events.

[18]      To convict someone of first degree murder, Crown Counsel must prove that that person is an active participant in the killing. 

[152]     On 16 November 2007, the Crown submitted the following draft to replace the above with one paragraph: 

[16]      It is not necessary to find that the accused acted alone.  Provided you find beyond a reasonable doubt, having considered all of the evidence, that the accused actively participated in the killings.  By this I mean if you find that he caused the death of the victims by means of an unlawful act and that he did so with an intent required for murder, and that this conduct was planned and deliberate, it does not matter whether he did so alone, or with one or many others.  I remind you that it is the Crown’s theory that the accused actually committed all the offences.

[153]     This paragraph was not useful because it bundled causation and the elements of unlawful act, intent and planning and deliberation, as well as identity. 

[154]     It was common ground between counsel that the words “essential, substantial and integral part of the killing” included in the judge’s paragraph 17 should not be included.  Those words never became part of the instruction and they were not required.  The words came from R. v. Harbottle, [1993] 3 S.C.R. 306, 84 C.C.C. (3d) 1, which concerned proper instruction to a jury on first degree murder where the Crown’s case rested upon murder allegedly committed by two people in the course of an unlawful confinement and not, as in the present case, on planning and deliberation.

[155]     The trial judge did not give to counsel paragraph 8 of the charge reproduced above (the paragraph I consider to be a co-principal instruction) before he commenced delivering the charge on 27 November.  The defence had agreed to the Crown’s paragraph 16 and did not object to paragraph 8 during submissions made on 30 November before the judge finished charging the jury or after he had done so.  Nor does the appellant object to paragraph 8 on appeal except to argue that it was an incomplete instruction in law on the co-principal route to liability.

[156]     The charge as given to counsel in advance and as delivered to the jury contained the following paragraphs on the requirement of unanimity:

[9]        Each of you must make your own decision whether Mr. Pickton is guilty or not guilty on each of the six counts.  However, because this is a criminal trial, all 12 of you must be unanimous in whatever verdict you see fit to return.

[10]      Where you are unanimous that all of the elements of an offence have been proven, you must convict Mr. Pickton of that offence.  Even if some of you have different views as to whether Mr. Pickton acted alone or whether he acted in concert with another person or people, so long as you are unanimous that the elements of the offence have been proven beyond a reasonable doubt, you will return a verdict of guilty.

 [Emphasis added]

[157]     This is another reference to co-principal that was well known to counsel before the defence closed its case.  It is inconsistent with only one route to liability being available for consideration by the jury.

[158]     The appellant directed our attention to a brief passage from his trial counsel’s lengthy final submission to the jury and argues that the defence “framed the critical issue in terms of the Crown’s theory of sole perpetrator and the anticipated jury charge”.  The passage reads: 

His Lordship will instruct you as to your analysis of these counts.  He will tell you, I expect, that you must find that Mr. Pickton had a substantial and integral role in the circumstances, particularly of Counts 1 and Counts 3 where there are death by gunshot wound.  It really comes down to this question:  who fired the gun?  This is a murder case where nobody saw who fired the gun …

[159]     I am not persuaded that the defence was merely responding to the Crown’s sole perpetrator theory.  As already noted, when counsel addressed the jury, the defence knew that a co-principal instruction would be given to the jury in general terms and in the “other suspects” portion of the charge, as well as the paragraph on unanimity.  In the passage quoted above, counsel used the phrase “substantial and integral role”.  That is the language of the law of co-parties.  In addition, counsel asked the wrong question when he said “who fired the gun?”  That was not a correct statement of the critical issue.  The critical issue was whether (on the first three counts) the Crown had proven beyond a reasonable doubt that the appellant either fired the gun or acted in concert with another or others so as to be a co-principal.  The incorrect question aside, the balance of the passage implies an understanding by the defence of the correct question for the jury as demanded by the body of evidence before the court and the law to which I will later refer.

[160]     In his closing address, defence counsel implicitly pointed to the middle ground between the appellant being the sole perpetrator and not being criminally involved at all.  He discussed the possibility that the appellant answered questions during the police interrogation based upon a false belief in guilt arising out of having knowledge of the murders.  Counsel had to know this submission would logically invite a consideration of the appellant being criminally liable on one or more of the counts without being the actual killer.  Discussion of involvement as a mere observer or with knowledge would inevitably lead to consideration of criminal involvement other than as the actual killer.  Counsel said this: 

... We say the problem is this, the interview team may convince a weak-minded accused that he’s going to go to jail, even though not guilty.  I’m going to talk about the tactic of telling somebody again and again, “It’s over.  You’re going to jail.  You’re going to jail for a long time.”  And telling him that again and again and again.  What does a weak-minded person think of that regardless, when they are indeed not guilty?  He is going to be convicted and therefore it does not matter what he says.  Well, if you’re going to be convicted, and it’s done, it’s over with, as they keep on saying to him, does it really matter what you say any more?  Your fate is determined.  To tell lies because they don’t understand the legal system enough to understand the consequences of those lies.  His knowledge of wrong-doing or degree of involvement makes him guilty of murder.  He might be thinking that having some knowledge – and we will come back to some knowledge – that might be something that might make him think that he is guilty of murder.  And whatever a senior police officer says is a fact, who really expects a police officer to lie as much as these police officers lied to him?  And finally, the risk that Mr. Pickton may think he is guilty when he is actually not.  These are risks, these are real risks.  These are risks that played themselves out in this statement...

[Emphasis added]

[161]     The appellant referred us to the final jury address by the Crown to attempt to support the argument that the Crown was confined to the sole perpetrator theory.  Crown counsel said to the jury that it was the position of the Crown that a single person killed the victims and disposed of their remains and that person was the appellant.  Later in his speech, he said this: 

But essentially the Crown says that the totality of this evidence demonstrates that six women were murdered, they were dismembered; that that was done in a significantly similar fashion; that you should have no doubt that they were killed and disposed of by the same person; that the remains of those women were located essentially in the backyard, to make it more broad, the domain, of the accused, a butcher who had the means, the ability and opportunity to commit the acts; that you can determine that the accused had a plan to kill a great number of women and has admittedly killed, in those statements, 49 women.  That, in a nutshell, is the Crown theory.  And it’s the same theory that was given to you in the [Crown] opening ...

[162]     There were other passages in which Crown counsel stated that the murders were committed by the same person or that the appellant acted alone.  In discussing similar facts, counsel said that “[i]t defies coincidence that a second or other individual other than Mr. Pickton in the end was involved in the treatment of those remains”.  The submission continued: 

The individual who did that, in my submission, was engaged in a pattern of conduct, a pattern of conduct moving people from the Downtown Eastside, a particular type of person, a profile, to a remote location such as this farm, somewhere away from where they normally plied their trade, killing them, butchering them and disposing of their remains.  In other words, there was a system in play here.  It’s all work of the same individual in my submission.  And when you’re -- and His Lordship is going to tell you that if you come to that conclusion, how you may use that to determine who that person is, if you’re satisfied it’s Mr. Pickton on any one of them.  And it’s based on - - it’s based on a decision relating to the unlikelihood of coincidence of this thing being carried off by other than the same person.  

Defence counsel has said to you that the central issue in this case is whether the Crown has proven that the individual in this case is the accused.  And I told you right off the bat that we agree with that.  You should have no difficulty, in my submission, determining that the same individual caused the death of all these six women, and you will have no difficulty, in my submission, finding that that was -- that the deaths were caused by means of an unlawful act, and that the person intended to kill them and that it was planned and deliberate.  It was part of a plan.  I didn’t understand from that closing address of defence counsel that apart from the issue of identity, that there was a real strong issue in that regard.

[163]     At various times in his speech, Crown counsel discussed the suggestion by the defence that perhaps others were responsible for the murders.  In a flurry of metaphors, he referred to this as the creation of “straw men” or “bogeymen” and that the defence was using “red herrings”. 

[164]     The appellant argues that these submissions to the jury restricted the case to the sole perpetrator theory.  I disagree.  These were merely submissions to the trier of fact.  They could not stand as a statement of everything the jury properly had to consider.  Nothing said by the Crown to the jury stood as particulars that framed and narrowed the case the defence had to meet.  In part, they were in response to the defence argument to the jury that the Crown had not proven that the appellant was the killer.  Defence and Crown counsel argued opposite poles, but there was a middle ground that was obvious to any student of criminal law, and was probably visible to the attentive layperson as well.  When the Crown addressed the jury, as discussed above, that middle ground had already been included in various sections of the intended charge.  The defence might have taken some comfort from the narrow scope of the Crown’s submission to the jury but could not have assumed from the submission that the case would go to the jury on the narrow basis argued on appeal.

[165]     The law to which I will refer supports the proposition that the Crown need not include in its theory, as presented in argument to the jury, references to all routes to liability.  It always remains the duty of the trial judge to instruct the jury on all avenues to conviction, just as the trial judge is generally bound to instruct the jury on all defences (except a mental disorder defence) that emerge from the evidence, whether argued by defence counsel or not.

[166]     It is fundamental to the appellant’s position on this appeal that the trial judge was bound to charge the jury on the issue of identity in a manner confined to the Crown’s sole perpetrator theory.  In my opinion, on a proper application of the cases, instruction on this basis on the element of identity would have been in error.  This is not a case like R. v. McCune (1998), 131 C.C.C. (3d) 152, 116 B.C.A.C. 267, a manslaughter case, where the Crown based its case on unlawful act (assault), cross examined the accused on that theory only, and later argued criminal negligence/manslaughter in the alternative.  In that case, the Crown expanded its theory on criminal liability in such a way as to materially prejudice the right of the accused to make full answer and defence.  The above review of the evidence and the procedural history makes it clear that no such thing occurred in the present case.

[167]     The appellant also relies on R. v. Ranger (2003), 178 C.C.C. (3d) 375, 67 O.R. (3d) 1 (C.A.), a murder case in which the Crown alleged that the appellant was the killer or assisted another person in the killings at the scene of the crimes.  The trial judge left with the jury a third scenario in which the appellant aided or abetted the killer without being present during the killings, a theory the Crown had “explicitly disavowed”.  The defence theory had been presented to the jury on the basis that the Crown could not prove that the appellant had been at the house where the killings occurred.  The court held that the third route to conviction in the jury instruction undermined the appellant’s defence because counsel reasonably understood that the trial judge would not charge the jury on that basis.   

[168]     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.  Charron J.A. (as she then was) made these useful observations on the applicable law: 

[134]    The underlying question that arises is whether the Crown is bound by the theory that it advances.  To put the question in another way, can an accused be convicted on a basis other than that advanced by the Crown?  In this respect, it is important to note that there is a distinction between particulars given by the Crown under s. 587 of the Criminal Code and the Crown's theory of the case.  While the Crown is generally bound to prove formal particulars, it is not bound to prove the theory that it advances in order to secure a conviction.  A conviction is based, rather, on proof of the necessary elements of the offence. Hence this court, in R. v. Groot (1998), 129 C.C.C. (3d) 293, aff'd [1999] 3 S.C.R. 664, 144 C.C.C. (3d) 287, rejected the general proposition that once the Crown presented a particular theory it would be unfairly prejudicial to the accused in any case to allow the trier to convict on a different theory.  The question turned, rather, on whether the accused, in the particular case under review, was able to present a full and fair defence.

[135]    We must therefore start from the premise that the jury is not bound by the theory of the Crown in its consideration of the evidence.  Nor is it bound by the theory of the defence.  Hence, in order to provide the jury with the assistance that it requires in dealing with the evidence, the trial judge may well find it necessary to instruct the jury in a manner that does not accord with the theory advanced by either Crown or defence counsel at trial.

[136]    I did not interpret the appellant's submissions in this case as disputing this general principle.  The concern that was raised relates, rather, to its particular application in this case.  Indeed, in any case where the trial judge instructs the jury on a material point in a manner that does not accord with the position advanced by either party, a question may arise whether this course impacted on the fairness of the trial.  For example, depending on the circumstances, an accused may argue that his or her principal defence was undermined by the manner in which the trial judge left an alternative defence open to the jury.  The concern about trial fairness, however, will be greater when the instruction relates to a theory of liability that has not been advanced by the Crown.

[Emphasis added]

[169]     At para. 138, Charron J.A. said:  “The question whether a trial judge’s instruction on an alternate theory of liability had an adverse impact on the fairness of the trial is one that can only be determined on a case-by-case basis.”

[170]     In R. v. Rojas, 2006 BCCA 193, 208 C.C.C. (3d) 13, two brothers were convicted of the murder of the victim who had been found strangled and wrapped in a tarp in the back seat of a burning vehicle.  There were separate admissions by each brother as to his conduct and there was circumstantial evidence against each of them.  As a prelude to considering whether there should have been instruction on aiding or abetting, Ryan J.A. said this:

[39]      Where a trial judge with a jury is dealing with an offence alleged to have been committed by more than one person, the question of what to tell the jury is formidable.  To do justice between the Crown and defence the trial judge must instruct the jury as to all routes to conviction and to acquittal that may be properly founded on the evidence.  Balanced against this duty is the requirement that the trial judge should not over-burden the jury with too many instructions which may only serve to confuse it.  It is not an easy task.

[171]     In R. v. Sparrow (1979), 51 C.C.C. (2d) 443 (O.C.A.), one ground of appeal was that the trial judge erred by instructing the jury on aiding and abetting some other person to kill the victim.  It was said that it was error to leave it open to the jury to find that the accused, although not proven to be the actual killer, was a party to the murder.  The Crown unsuccessfully argued that there was evidence that went beyond mere speculation that more than one person was involved in the killing.  A new trial was ordered because the evidence did not warrant leaving a party route to liability with the jury.  However, in arriving at this conclusion, Martin J. A. set out this general proposition at 457-58: 

Where, on a joint trial, there is evidence that a crime was committed by two or more accused persons acting in concert, it is, of course, appropriate to charge the jury with respect to the provisions of s. 21 of the Code even though it is uncertain which accused was the actual perpetrator:  see Chow Bew v. The Queen (1955), 113 C.C.C. 337 at p. 342; R. v. Rice (1902), 5 C.C.C. 509 at pp. 518, 520-21...  I am of the view that it is also appropriate, where an accused is being tried alone and there is evidence that more than one person was involved in the commission of the offence, to direct the jury with respect to the provisions of s. 21 of the Code, even though the identity of the other participant or participants is unknown, and even though the precise part played by each participant may be uncertain.

[Emphasis added]

[172]     In R. v. Isaac, [1984] 1 S.C.R. 74, a Crown appeal in a murder case, the trial judge charged on s. 21 of the Criminal Code but effectively took away from the jury consideration of any aspect of the section.  For the court, McIntyre J. concluded that it was a “fatal error to exclude consideration of s. 21(1) of the Code from the jury”.  Then he said:

I do not overlook the fact that only the respondent was charged in the indictment and that the record is silent as to charges that may have been brought against the other participants. Nonetheless, where there is evidence that more than one person participated in the commission of a crime, even though only one is charged, a direction under s. 21 of the Criminal Code may be necessary.

This was followed by a quote of the portion of Sparrow underlined above and:   “I adopt those words as a correct statement of the law.”

[173]     In R. v. Thatcher, [1987] 1 S.C.R. 652, the Crown’s principal theory was that the appellant had killed his ex-wife.  Alternatively, the Crown contended that he had had her killed on his behalf.  After setting out s. 21(1) of the Code, Dickson C.J.C. wrote at 690: 

This provision is designed to make the difference between aiding and abetting and personally committing an offence legally irrelevant.  It provides that either mode of committing an offence is equally culpable and, indeed, that whether a person personally commits or only aids and abets, he is guilty of that offence, in this case, causing the death of JoAnn Wilson, and not some separate distinct offence.  This is in contrast with the provisions of the Code relating to accessories after the fact or conspirators (ss. 421 and 423) which create distinct offences for involvement falling short of personal commission.

[Emphasis in original]

[174]     Earlier in the decision, Dickson C.J.C. stated that the requirements of the passage from Sparrow quoted above, as approved in Isaac, were met and that the trial judge’s instruction on s. 21 was “perfectly proper” (p. 688).

[175]     The duty of the trial judge is the same whether the evidence gives rise to a need to charge the jury on aiding and abetting or on the law of co-principal (to which I will refer later in these reasons), or both.  Further, I see no distinction between those cases in which the Crown asserts the criminal involvement of more than one person and those cases, such as the case at bar, in which the possibility of more than one person being criminally involved arises from the body of evidence as an inescapable alternative to both the Crown and the defence theories as argued to the jury.  If the evidence supports alternate routes to liability, the trial judge must give the jury proper instruction on all routes.  In the present case, the evidence does support consideration of the criminal liability of the appellant as a co-principal and as an aider or abettor.  It would have been useful if the Crown had taken the position early on and throughout the trial that the appellant, if he was not the actual killer, was guilty as a co-principal or as an aider or abettor.  However, the co-principal route to liability was clearly before the court in a timely way and to the certain knowledge of the defence. 

[176]     At trial, the appellant did not object to the co-principal paragraphs in the charge that I have identified, other than the amendment of the “actual shooter” paragraphs.  However, on appeal the appellant argues (for the first time) that the admission of count-to-count and Ellingsen similar fact evidence pursuant to the law stated in R. v. Arp, [1998] 3 S.C.R. 339, 129 C.C.C. (3d) 321, restricted the use of that evidence to the sole perpetrator route to liability.  He also argues, again for the first time, that a special instruction would have been required with respect to the similar fact evidence in conformity with R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, 188 C.C.C. (3d) 1, if the jury was to consider that evidence as it related to the co-principal route to liability. 

[177]     I see no merit in these arguments.  They disregard the substantial body of evidence connecting the appellant, and only the appellant, to the whole process from luring of the victims to the rendering plant disposal of their remains.  I do not understand that the trial judge ruled the similar fact evidence admissible because it supported the Crown’s sole perpetrator theory.  It was admissible because of a pattern of events and a pattern of conduct linking the appellant to those events that merited consideration on each count of the evidence on all counts, and the evidence of Ellingsen on all counts.

[178]     The appellant’s factum asks how the jury could be expected to understand that they could consider similar fact evidence under the Crown’s sole perpetrator route to liability but that they had to disregard that evidence under any other route to liability.  This question presupposes that the similar fact evidence was admissible only on the first route to liability.  But the appellant does not present any argument based on the reasoning in Arp as to why the evidence could not be considered with respect to all routes to liability properly left with the jury.  The argument seems to rest on the application of Perrier

[179]     In my opinion, Perrier has no application to the present case.  In Perrier, the court was concerned with a series of home invasions committed by a criminal gang consisting of five or six individuals and a rotating membership.  It was obviously not enough to be able to attribute a particular home invasion to the gang as a whole because the question still remained as to which members participated in which invasions and which crimes.  It was the gang and not the individual that had a distinctive modus operandi.  Therefore, additional safeguards were needed to prove identity on a similar fact basis.  Major J. wrote at para. 25 that in these circumstances,

... the fact that an individual may have been a member of the gang on one occasion proves nothing more than a mere possibility that he was a member on another occasion.  In this case the evidence of group activity must be accompanied by evidence linking the individual to each of the group’s offences for which he has been charged, whether by virtue of the distinctiveness of his role or by other independent evidence. 

[180]      Major J. explained that there were two possible ways to prove the necessary link: 

[32]      Where evidence of similar offences committed by a gang is being introduced not just to identify the gang itself but to identify a particular member, a sufficient connection between the individual and the crimes of the group must be established. This can be done in two ways:

(1)        If the Crown can prove that group membership never changed, that the gang always remained intact and never committed the criminal acts unless all were present, and that the accused was a member of the group, and present, at the relevant time, that will be sufficient to connect the individual to the crimes of the group, and the evidence will usually have sufficient probative value to be admitted as similar fact.

(2)        Where membership in the group is not constant, as in this case, then an additional “link” or “connection” must be made in order to use evidence of group activity against a particular accused. This additional requirement will be satisfied where (a) the accused’s role was sufficiently distinctive that no other member of the group or person could have performed it; thus he necessarily must have participated in all offences; or (b) there is independent evidence linking the accused to each crime. Without this second stage of analysis, there is a risk that the net will be cast too broadly and members of a group who participated in some crimes will be improperly convicted of other crimes by virtue of their association with the group alone.

[181]     No such link became necessary in the present case.  The evidence was capable of establishing that the appellant was the one constant in the sequence of events that I have described more than once in these reasons.  In admitting the similar fact evidence, the trial judge was satisfied that there was evidence tending to connect the appellant to all six murders, an issue not contested by the appellant at trial or on appeal.  There was no suggestion, even by the defence, that there might have been a group of murderers and that the appellant might have been a participant in one or more of the murders but not in the others.  The evidence supported the conclusion that the appellant committed each of the killings or that he actively participated in each of them (or one or more of them) in concert with another person.  I agree with the Crown that the probative value of the similar fact evidence was the same regardless of the route to criminal liability each juror preferred.  The concern addressed in Perrier does not arise.

[182]     Instruction of the jury in the present case on the co-principal route to liability was required by the evidence and was known to the defence.  There was no unfairness to the appellant caused by its inclusion in para. 8 and in the other parts of the charge that I have identified.

[183]     The appellant’s arguments on the other grounds of appeal are based in part on the unavailability of any route to criminal liability other than sole perpetrator.  Because I am of the view that inclusion of a party instruction was not only correct but essential, it will be unnecessary for me to discuss the appellant’s sole perpetrator arguments raised in his submissions on the other grounds of appeal.   

Jury question  

[184]     The jury question came early on the sixth day of deliberations.  The question reads:

When considering Element 3 on one or more of the counts, are we able to say “yes”, if we infer that the accused acted indirectly?

[185]     After hearing submissions from counsel about the question, the trial judge recharged the jury as follows: 

THE COURT: Yes.

            Mr. Foreman, members of the jury, I have your question that was forwarded to me a little bit earlier today, and the question is this:

When considering Element 3 on one or more of the counts, are we able to say “Yes”, if we infer that the accused acted indirectly?

I have thought about that question and I have consulted with counsel on it.  I am hopeful that I know what you’re asking.  I don’t know with complete clarity and I don’t want to engage in a dialogue with you here because that, I think, involves me in what’s going on behind those -- those closed doors.

                        So what I propose to do is offer you something from my charge, and I am hopeful that that may bring some clarity to your issue.  If it doesn’t, I want you, please, to rearticulate your question and ask it, because I want very much to be able to answer your question.  So I hope that this can be of some assistance.

            I am going to refer first of all to the portion of my charge that appears at Tab 2, and this is paragraph number 8.  There it says:

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 of 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.

Now, I am also going to refer you to certain paragraphs that are found at Tab 3.  I am going to refer you here at page 68 to paragraphs 203 through 206, and I will read them to you as well.  This, you will recall, is in the context of discussing the relating of the evidence to the elements in Count 1, but it has a more general application for us.

It is important that you look at all the evidence that bears on this issue and take into account frailties and shortcomings in the evidence and evidence which is inconsistent with Mr. Pickton’s guilt.  You may also consider evidence that may suggest the involvement of other persons. In this case the defence has urged you to find that the involvement of Ms. Taylor and/or Mr. Casanova should give rise to a reasonable doubt in the case against Mr. Pickton.  In that regard you should bear in mind the instruction that I have given you concerning the possible effects of other suspects and the importance of focusing on the case that is made to prove the guilt of the accused.  Evidence of the involvement of other persons does not automatically diminish the case against the accused.  The true focus must be on carefully assessing the case that is made to prove the guilt of the accused and holding that to the high standard of proof beyond a reasonable doubt.

For example, the firearms evidence does not prove which weapon was used in the shooting.  There have been issues raised to question the integrity of the DNA evidence, and there is no evidence to directly link Mr. Pickton to Freezer XD2.  As well, there is the evidence to indicate that Ms. Taylor was seen with Ms. Abotsway at the Dominion Avenue property and that her DNA was present in a number of ways, such as the gauze bandage in the same garbage container where the inhalers had been located.

If you find that Mr. Pickton shot Ms. Abotsway, 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 shot her, you must return a verdict of not guilty on the charge of murdering her.

Please ensure that you consider the totality of the evidence and ask yourself whether you are satisfied beyond a reasonable doubt that Mr. Pickton is the person who killed Ms. Abotsway.  If you are so satisfied, you should find the Crown has proven this element and proceed to examine the fourth element. If you have a reasonable doubt about whether or not Mr. Pickton is the person who killed Ms. Abotsway, you must return a verdict of not guilty on this count.

            Now, I don’t know if I have helped you.  I would like to think that that may have helped you, but for now I am going to send you on your way, back to your room.  If you have a question, if you find that I haven’t clarified the issue for you, please put a question together, give it to the sheriff and we will endeavour to deal with it promptly and responsively.  All right?

THE JURY FOREMAN: Thank you.

THE COURT:  Thank you.

[186]     The above was in compliance with the positions ultimately taken by counsel on both sides, including the invitation to the jury to seek further clarification if needed.   

[187]     The appellant’s first point is that the judge, as initially argued by defense counsel at trial, should have answered the question with a simple “no” because any other answer would open up a new route to liability.  This point is answered by the conclusions I have reached above on the sole perpetrator issue.   

[188]     Although the jury used the phrase “acted indirectly”, the question clearly was concerned with the element of identity.  It begged consideration of the middle ground between the theory of the Crown and the theory of the defence as discussed above. 

[189]     The appellant contends that the jury question was vague and in order to respond to it the trial judge was bound to ask the jurors what they meant by the question.  He asserts that the vagueness arises out of the words “acted indirectly”. 

[190]     The only place in the charge in which those words were used was in quoting s. 222(1) of the Criminal Code.  That subsection was included in the following part  of the instruction: 

[2]        In the portion of my instructions that follows, I will set out the Criminal Code provisions that are applicable.  These are provided to assist you in following and better understanding the law as I explain it; you must not apply your own interpretation to these sections. If, during your deliberations, you feel you lack sufficient understanding of what any of these provisions mean, you should express that concern in a note which the jury guard will bring to me and I will reconvene court to assist you with further instructions on the law.

CRIMINAL CODE PROVISIONS

[3]        The Criminal Code contains a number of provisions with respect to the offence of first degree murder:

222. (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

(2)  Homicide is culpable or not culpable. [“Culpable”means blameworthy.]

(3)  Homicide that is not culpable is not an offence. 

(4)  Culpable homicide is murder or manslaughter ...

(5)  A person commits culpable homicide when he causes the death of a human being,

(a)        by means of an unlawful act,

229.     Culpable homicide is murder

(a)        where the person who causes the death of a human being

(i)         means to cause his death, OR

(ii)        means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not;

231.     Murder is first degree murder or second degree murder.

(1)  Murder is first degree murder when it is planned and deliberate.

[Emphasis added]

[191]     To repeat, the charge set out the elements of first degree murder as follows: 

[5]        There are five elements to the offence of first degree murder:

Element 1:       That the individual named in the count was killed by means of an unlawful act.

Element 2:       That the named victim was killed at the time and place stated in the Indictment.

Element 3:       That the accused is the individual who killed that person.

Element 4:       That the accused either meant to cause the victim’s death or meant to cause bodily harm that he knew was likely to cause her death and was reckless about whether or not it caused death.

Element 5:       That the death of the named victim was planned and deliberate.

[192]     The appellant concedes that the jury question was about parties (hence, about identity) in that the jury was asking whether they could find the appellant guilty as a secondary party if the Crown did not prove that he was the sole perpetrator.  The reference in the question to element 3 (identity) and the phrase “acted indirectly” make that clear.  However, the appellant contends that the question was ambiguous because it might have been about aiding and abetting.  I will return to this point when discussing the final issue, but it seems to me that the jury question comes from s. 222 of the Criminal Code and the various paragraphs in the charge on the element of identity to which I have already referred.  The appellant argues in the alternative that the question, as framed, might have been about accessory after the fact, arising out of the evidence concerning the rendering plant.  This point I find to be merely speculative. 

[193]     In any event, the appellant says that the failure of the trial judge to seek clarification from the jury of its question was a procedural error that led to an unsatisfactory judicial response to the question. 

[194]     If a jury question is difficult for the court to understand, the court should not speculate as to the concern of the jury and should seek clarification of the question from the jury, but should proceed cautiously in seeking the clarification:  R. v. Fleiner (1985) 23 C.C.C. (3d) 415, 11 O.A.C. 181 and R. v. Mohamed (1991), 64 C.C.C. (3d) 1 (B.C.C.A.).  

[195]     I do not think anything turns on the fact that the jury question included the phrase “acted indirectly”.  As I have said, that phrase must have come from s. 222 of the Code as given to the jury in the instruction.  The phrase is concerned only with causation which the trial judge did not isolate as an element of murder.  Causation is included by inference in Elements 1 and 3.  Putting those two elements together, the jury would have known that the Crown had to prove that the deceased was killed by means of an unlawful act and that the appellant committed that act.  I have no doubt that the jury wanted to know if the Crown had to prove that the appellant actually caused the death or if there was some other way that he could be criminally liable.  Reading the question in the context of the charge as given, this is the only conclusion that can be reached as to the meaning of and the reason for the jury question.

[196]     It is my view that the jury question was not vague.  Counsel at trial clearly understood its origin and that understanding has not changed on appeal.  The trial judge initially expressed some perplexity about the question but later in the proceedings, as I will discuss below, it became apparent that he fully understood the question and its implications.  At that point, he agreed with counsel.  The disagreement was with respect to what should be done about it and that is something I will come to in discussing the next issue.  It was the charge that was unclear to the jury.  The question therefore was understandable.

[197]     It is apparent that the jury was perplexed by the difference between para. 8 (as well as the “other suspects” and unanimity instruction) and the three paragraphs that contained the actual shooter instruction with reference to counts 1 to 3.  No legal expertise was required to see that those portions of the charge were irreconcilable.  This prompted the jury question and 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. 

[198]     In my opinion, there was no procedural error.  Specific enquiry of the jury as to the meaning of its question was not required in the circumstances.  Such enquiry could have led to a significant error.  The judge made it clear to the jury at the end of the first recharge that if he had not given them the clarification they needed, they could ask a further question.  This was a long trial conducted at considerable public expense.  It was in the interest of all concerned, including the appellant, that any risk of impairing the integrity of the trial should be minimized.  The trial judge’s exercise of caution was the preferred approach in the circumstances. 

[199]     Whether the trial judge ultimately righted the ship is the focus of the next issue.

Party instruction

[200]     Soon after giving the recharge set out above, the trial judge directed the jury to suspend deliberations.  Then he reconvened court in the absence of the jury and raised with counsel a concern he had about the actual shooter instruction related to counts 1 to 3 and found in paras. 205, 239 and 262 of the written charge.  After referring to para. 205, he said this to counsel: 

When that was proposed it struck a clang note from me.  It just -- I had a problem with it.  The Crown supported that it should go in there, and it went in.  I have been struggling with it and this morning’s events have crystallized my problem.  I have concluded that that paragraph is in error and that it must be modified.  It seems to me that it ignores the very real potential scenario of Mr. Pickton being involved in the commission of the killing without actually pulling the trigger, but at the same time having an active, significant role in the act.

[201]     It is apparent that the trial judge, having recharged the jury as set out above and after reflecting on the matter further, recognized the glaring inconsistency between the three actual shooter paragraphs, on the one hand, and para. 8 of the charge together with the paragraphs that discussed other suspects and the need for unanimity, on the other hand. 

[202]     Over the objections of defence counsel, the judge concluded that he had to modify the actual shooter instruction.  He said he would later provide reasons for this conclusion. 

[203]     The second recharge of the jury was as follows: 

THE COURT: Mr. Foreman and members of the jury, earlier today I instructed you through the sheriff that you were to cease your deliberations while I dealt with a matter, and I have now dealt with that matter and I have some further instructions that I wish to give you at this time.  I have concluded that I was not sufficiently precise, that is, I was in error with respect to three paragraphs of your charge.

                        I hope you have your booklets with you. Do you have your books?  All right.  I am going to direct that you be provided with three sheets, each of you.  Madam Clerk, could these please be provided to the sheriff.

                        If you can just hold up for a moment, I will explain these to you once they’ve been distributed.

                        You have been provided with three sheets.  The first one is indicated as paragraph 205, the second is paragraph 239, the third is paragraph 262.  These paragraphs replace the existing 205, 239 and 262, that is, the paragraph that appears in your hardcopy of the charge should be stroked out and you should consider that these take their places.  And I will read 205 to you, if I may, please:

If you find that Mr. Pickton shot Ms. Abotsway 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.

The same paragraph, or the same content is found at paragraph 239, in that case dealing with Count 2, the matter of Ms. Wilson.  For the record I will read it in.  “If you find” -- this is paragraph 239:

If you find that Mr. Pickton shot Ms. Wilson, 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.

And finally with respect to paragraph 262, this has reference to Count 3:

If you find that Mr. Pickton shot Ms. Joesbury 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.

That is all that we will deal with at this time.  I regret that I misinformed you.  It was inadvertent.  However, it is important that you be instructed as properly as I am able, and thus it is these amendments have been provided to you.

THE JURY FOREMAN: Thank you, My Lord.

THE COURT: So you are free to continue your deliberations.

[Emphasis added]

[204]     The change was the addition to the three paragraphs of the words “or was otherwise an active participant in her killing”.  This made those paragraphs consistent with para. 8 as well as with the instructions on other suspects and unanimity.

[205]     On 13 December 2007, Mr. Justice Williams provided written reasons for giving the second recharge, indexed as 2007 BCSC 1808.  He reproduced para. 8 from the charge and observed that similar language was used with respect to other suspects and elsewhere in the charge.  He noted that on 30 November (the fourth and last day of the charge), the defence urged the addition of the three actual shooter paragraphs.  The Crown did not object.  (I would add that the Crown should have been adamantly opposed to these paragraphs and that the failure to oppose them was the root cause of the jury question.)  The jury question ultimately alerted the trial judge to the problem for the jury arising out of the glaring inconsistency between the three actual shooter paragraphs and the co-principal paragraphs.  The judge concluded at para. 18 of his reasons that the changes to the charge were needed “to protect the integrity of the trial”.  He expressed his reasoning leading to that conclusion as follows: 

[11]      The charge was a considerable time in the drafting process.  A number of weeks before it was delivered to the jury, an early draft was provided to counsel for the Crown and the defence.  There were extensive consultations with counsel, resulting in significant modifications to the instructions.  Paragraph 8 was the product of those discussions and reflects language that was proposed jointly by both Crown and defence counsel.  I acceded to their position, and believe paragraph 8 to be a correct articulation of the level of participation that would render Mr. Pickton criminally liable.

[12]      In my view, paragraph 205 puts too precise a requirement on what the Crown must prove.  That is so because the body of circumstantial evidence that was before the jury did not require it to find that Mr. Pickton fired the gun in order to be criminally liable as set out in paragraph 8.  In effect, paragraph 205 imposed a degree of detail that the circumstantial nature of the evidence in this case did not justify.

[13]      My decision to include paragraph 205 at the last minute was, with the benefit of hindsight, an error.  It derogated from the meaning of the instruction at paragraph 8 and gave the jury a direction that was not consonant with the correct direction for the determination of liability for the killing.

[14]      I consider that there was an obligation upon me to correct the error once I realized that it had been made.  To have left the instruction in an erroneous state would not have been appropriate.  It is true that the re-instruction was less favourable to the accused than the original charge.  However, in my view, correcting the error cannot be said to have occasioned prejudice to the accused, as it only restored the instruction to the state of being correct.  While unfortunate, it was not unfair.  In contrast, knowingly leaving an instruction in an incorrect state will inevitably cause a prejudice to the fairness of the trial process.

[15]      The defence submitted that paragraph 205 was present in an earlier draft of the charge that had been provided to counsel.  That is correct.  What became paragraph 205 had, indeed, formed part of a very early draft.  However, during the course of pre-charge discussions, Crown counsel proposed that it would be sensible to reconfigure the elements of the offence as set out in that draft.  Counsel for the defence took no issue with the Crown’s proposals, and I incorporated them into the charge.  As part of that reconfiguration, paragraph 205, as it had appeared in the earlier draft, was eliminated and was no longer part of the draft charge as of November 16.  I observe, as well, that the meaning of the paragraph in the earlier draft was, on the basis of the different context, different in effect than when it was inserted into the charge that I delivered to the jury.  In my view, these events demonstrate the practical limits of relying upon a draft, as a draft is always subject to change.

[206]     In my opinion, 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.

[207]     The remaining question is whether the co-principal instruction as found in para. 8, the other suspects segment of the charge, the instruction on unanimity and paras. 205, 239 and 262, as amended prior to the second recharge, adequately conveyed to the jury what it needed to know in order to properly consider the co-principal route to criminal liability. 

[208]     Section 21(1)(a) of the Criminal Code reads:

21. (1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

[209]     The appellant contends that there was no instruction as to the meaning of the phrase “active participant in the killing”, that there was no evidentiary basis for this alternate route to liability, and if there was an evidentiary basis, there was no instruction as to the evidence the jury could consider in applying the law of co-principal. 

[210]     I do not accept these submissions. 

[211]     I agree with the Crown that not every word or phrase in a jury instruction needs definition.  Most words have their ordinary meanings in the application of the law.  “Active participation in the killing” does not demand explanation.  The appellant does not propose a definition of this phrase that might have been given.  He does say that the phrases “active, significant role” or “significant participation” found in Harbottle would have been appropriate.  But, as already noted, that case was concerned with a route to first degree murder pursuant to s. 231(5) and it is not the law that such phrases must be employed in an instruction on the issue of identity.  In any event, those phrases would be redundant to the phrases actually used and the defence at trial argued for their exclusion from the charge.  In my opinion, “active participation in the killing” was descriptive and was sufficient to convey to the jury that mere presence was not enough but that, with the requisite intent, a physical role in the actual killing was enough.

[212]     Assuming that one or more members of the jury entertained a reasonable doubt as to whether the appellant, acting alone, was the killer, there was considerable evidence to support the proposition that the appellant at least acted in concert with another or others in effecting the killings.  The trial judge reviewed the evidence for the jury extensively.  He made it clear that they had to consider the whole of the evidence in determining whether the Crown had proven each element of the offence of murder beyond a reasonable doubt, including identity.  The co-principal route to liability was merely a secondary route to proof of the element of identity that did not demand a discrete review of any portion of the evidence.  All the evidence related to that route just as it related to the sole perpetrator route.  There was no need to review the evidence a second time in the context of the secondary route to liability. 

[213]     Two things must be remembered in this case.  First, based upon a large body of evidence, the Crown contended that there was a pattern of conduct involving a number of steps – the luring of vulnerable sex trade workers to the appellant’s property, sexual activity with them, murdering them, butchering of their bodies, and disposal of their butchered remains.  The connection of the appellant to these actions was based upon evidence that the appellant was in the habit of picking up sex trade workers from the downtown eastside and taking them to his property, the finding of the remains of the six victims on his property, the discovery of the personal effects and DNA of four of them in his living space, his tacit admissions to the police that he was a serial killer as well as his explicit admission to the cell plant to that effect, and his explicit admission to the cell plant that he had disposed of the remains of the victims at the rendering plant.  Second, the appellant suggested the involvement of others, particularly Dinah Taylor, but also stated that he was the “head honcho”.  There was a thorough review by the trial judge of all the evidence relating to these matters, as well as the evidence of Houston, Bellwood and Ellingsen.  It was not necessary to extract any aspect of the evidence and relate it to the secondary route to liability.  The appellant does not suggest what evidence might have been so extracted, nor has he demonstrated that the failure to relate any portion of the evidence to the secondary route to liability might have led the jury to forbidden reasoning with respect to that route.

[214]     It is the appellant’s position that the instruction with respect to co-principal was inadequate in the original charge and also within the final charge as given to the jury ultimately in response to the jury question.  I disagree. 

[215]     In my opinion, the correct statement of the law with respect to co-principal/aiding/abetting routes to liability was given by Doherty J.A. in R. v. Suzack (2000), 141 C.C.C. (3d) 449, 128 O.A.C. 140, as follows:

[149]    After referring to s. 21(1) of the Criminal Code, Trainor J. said:

If two or more persons act in concert, and by that I mean, in a common participation in the commission of an offence — in this case murder — and they assist one another in the commission of that offence, then they are liable as principals, provided that they each had the intention that I have referred to, meant to cause death, or meant to cause bodily harm as I have defined it.  Both may be found liable, even though you are uncertain as to which of them fired the fatal shots.

[150]    According to this instruction, both Suzack and Pennett could be convicted of murder regardless of which one fired the fatal shots if the Crown established three things beyond a reasonable doubt:

•           that Suzack and Pennett acted in concert in the commission of the murder of Constable MacDonald;

                  that Suzack and Pennett assisted each other in the murder of Constable MacDonald; and

•           that Suzack and Pennett each had the culpable state of mind necessary for the crime of murder.

[151]    The instruction was repeated near the end of the trial judge’s charge to the jury and was given to the jury in written form, at their request, during their deliberations.

[152]    It is beyond question that where two persons, each with the requisite intent, act in concert in the commission of a crime, they are both guilty of that crime.  Their liability may fall under one or more of the provisions of s. 21(1) of the Criminal CodeR. v. Sparrow (1979), 51 C.C.C. (2d) 443 (Ont. C.A.) at 457-58.  Trainor J. told the jury that if Suzack and Pennett jointly participated in the murder with the necessary intent, they were “liable as principals”.  This is potentially a mischaracterization of their liability.  They may have been principals or they may have been aiders or abettors depending on what each did in the course of the common design:  R. v. Simpson (1988), 38 C.C.C. (3d) 481 (S.C.C.) at 488-91.  As Griffiths J.A. said in R. v. Wood (1989), 51 C.C.C. (3d) 201 (Ont. C.A.) at 220:

Where evidence of concerted action in the commission of the offence exists, as in the present case, then it is open to a jury to convict all of the accused either as principals, under s. 229(a), or as aiders or abettors pursuant to s. 21 of the Code, even though the extent of the individual participation in the violence is unclear.

[153]    I do not, however, regard Trainor J.’s error in terminology as having any significance.  The crucial issue is not whether he properly labelled the nature of the appellants’ liability, but whether he properly instructed the jury as to the essential elements which the Crown had to prove to establish joint liability for murder where the jury could not determine which of the two had fired the fatal shots.

[154]    In the passage quoted above, Trainor J. told the jury that to convict Suzack as a joint participant in the murder, the Crown had to prove beyond a reasonable doubt:

•           that he participated with Pennett in the commission of the murder;

•           that he assisted Pennett in the commission of the murder; and

•           that he had one of the intents required by s. 229(a).

[155]    In my view, Suzack was guilty of murder if the Crown proved the three elements set out above.  In fact, the second element (aiding) was perhaps superfluous in that it was encompassed by the broader language set out in the first element.  It was unnecessary to label the nature of his participation.  Indeed s. 21(1) is structured so as to avoid distinctions based on modes of participation in the crime.

[156]    I also do not accept Suzack’s submission that causation had any relevance under this theory of liability.  In R. v. McMaster (1996), 105 C.C.C. (3d) 193 (S.C.C.) at 203, the appellant and another person beat the deceased to death.  It was argued that the trial judge failed to consider whether the appellant’s blows caused the death.  Lamer C.J.C. rejected this argument stating, at p. 203:

However, the trial judge made it clear in his reasons that he was satisfied that the cousins were acting in concert and “jointly involved” in causing the death.  It is a well established principle that where a trier of fact is satisfied that multiple accused acted in concert, there is no requirement that the trier of fact decide which accused actually struck the fatal blow.

[157]    I can find no error in Trainor J.’s instructions as to Suzack’s potential liability for murder as a participant in a common scheme … to commit murder.

[216]     Applying this statement of the law to the body of evidence in the present case, it seems to me that it matters not what role the appellant or an associate might have played in causing the death of a particular victim.  One view of the evidence is that it supports the conclusion that there was (or might have been) a common scheme between the appellant and another with respect to one or more of the killings.  If that conclusion is reached, there is no need for the trier of fact to determine the role each participant played in effecting the killing or which of them committed, by whatever physical means, the ultimate act that caused the death.  Nor would it be necessary to decide whether the appellant was a co-principal, or an aider, or an abettor at the time and place of the killing.

[217]     More than one person may actually commit an offence under s. 21(1)(a) of the Criminal Code.  In R. v. H. (L.I.), 2003 MBCA 97, 176 C.C.C. (3d) 526, Freedman J.A. said this:

[23]      Unless the jury is charged on the applicability of s. 21(1)(a) in such cases, they could be satisfied on the evidence that an accused acted in concert with others in the commission of a homicide, but still acquit because they are not satisfied that the accused struck the killing blow.  A charge on s. 21(1)(a) in such a situation makes clear that who struck the killing blow is legally irrelevant.

[24]      It is clear that where an accused has acted in concert or was jointly involved in inflicting bodily harm on the victim, a jury must be advised of the provisions of s. 21(1) and told that it is open for them to find the accused guilty as a party to murder or manslaughter, even though it is not known whether the “killing blow” was administered by the accused or another co-principal.  In such a case it will be “a fatal error to exclude consideration of s. 21(1) of the Code from the jury” (Isaac, at p. 81).

[218]     In any criminal jury trial, the presiding judge must instruct the jury with respect to available conclusions as to each element of the offence that emerge from the evidence and the final submissions of both the Crown and the defence.  Within the present case, on the issue of identity and with respect to each count properly considered separately from the other counts, the following possibilities emerge:

(1)      The appellant, acting alone, was the murderer;

(2)      The appellant, acting in concert with one or more other persons, was the murderer;

(3)      The Crown failed to prove beyond a reasonable doubt that the appellant, acting alone or not, was the murderer.

[219]     In my opinion, the jury charge, read in its entirety, clearly and adequately set out these three possibilities for the jury. 

[220]     The appellant argues that to find the appellant guilty as a co-principal, it was necessary to find that he and another each (actually) committed all elements of the offence.  He relies on R. v. Logan (1988), 46 C.C.C. (3d) 354, 30 O.A.C. 321, R. v. Kleven, 1999 BCCA 529, 128 B.C.A.C. 145, leave to appeal ref’d [2000] S.C.C.A. No. 176, and R. v. Daly, 2005 BCCA 389, 198 C.C.C. (3d) 185.  In my opinion, these cases do not assist the appellant.  Whether two persons act in concert in the commission of a crime, or whether one merely aids or abets the other, assuming each of them has the necessary intent, each of them in law commits all elements of the offence.   Further to this point, the appellant says that in a shooting death as in counts 1 to 3 in the present case, there must be a “very unusual fact pattern to prove liability as a co-principal” and that “[i]t is only where two persons together aimed and fired a gun that this route to liability is available”.  He relies on R. v. Miller and Cockriell, [1977] 2 S.C.R. 680, 31 C.C.C. (2d) 177.  

[221]     In Miller and Cockriell, one offender held steady the murder weapon, a rifle, while the other pulled the trigger.  Clearly each was a co-principal in the commission of the offence.  But I do not accept the argument that where there is a shooting death there must be unusual facts as there were in Miller and Cockriell  for criminal liability to be founded upon s. 21(1)(a) of the Code.  For the purpose of this analysis, I see no difference between a case in which two people with only one of them wielding a gun, acting in concert, cause the death of the victim by shooting and a case in which each of them fires a gun at the victim and it cannot be determined forensically which of them fired the fatal shot.  There is no distinction to be made between either of these scenarios and a beating committed by two people that results in the death of the victim.  Determining which perpetrator committed the act that caused the death is not important once it is established that they unlawfully acted in concert to bring about the death.  I repeat what Dickson C.J.C. said in Thatcher that s. 21(1) of the Code “is designed to make the difference between aiding and abetting and personally committing an offence legally irrelevant”.    

[222]     These conclusions are supported by Suzack.  In that case, Suzack and Pennett were jointly tried for the first degree murder of a police officer.  Both men attacked and beat the victim and one of them fired the fatal shots.  Each of them testified that the other had done the shooting.  As set out above, the trial judge instructed the jury that the Crown had to prove that Suzack, with the necessary intent, participated with Pennett and assisted him “in the commission of the murder”.  As pointed out by Doherty J.A., the reference to assistance was perhaps superfluous because aiding was part of the concerted action.  Two persons acting in concert (as co-principals) in the commission of a crime assist each other.  It is not necessary to determine whether they are parties under s. 21(1)(a) or s. 21(1)(b).  In the present case, it was enough to show that the appellant, at the very least, on the whole of the evidence must have acted in concert with another person in the physical act of killing the victim whether he actually fired the fatal shot or administered the fatal blow as the case may be from count to count. 

[223]     Counsel for the appellant agrees that there was an evidentiary basis for charging the jury on aiding and abetting.  It escapes my understanding why the Crown was content with the instruction being limited to co-principal and did not insist that the trial judge instruct the jury on aiding and abetting.  But the absence of this instruction potentially benefited the appellant.  Had the jury been so instructed, the path to conviction would have been even clearer, once the jury concluded that the appellant was a participant in the actual killing on each count. 

[224]     The appellant referred us to pattern co-principal instructions in Watt’s Manual of Criminal Evidence (Toronto: Thomson Carswell, 2006) and in CRIMJI: Canadian Criminal Jury Instructions, 4th ed. (Vancouver: Continuing Legal Education Society of British Columbia, 2005).  In Watt, this is the suggested instruction:

JOINT PRINCIPALS

(CODE, S. 21(1)(a))

[1]        The case for the Crown is that the accused (or, specify) committed this (these) offence(s) together (or, along with (NO3P)).  Under our law a person may commit an offence alone or together with others, whether charged and on trial or not.

[2]        Where a criminal offence is committed by two or more persons, each may play a different part.  If they are acting together, as part of a joint plan or agreement to commit the offence, each may be found guilty of it.

[3]        An example may illustrate what I mean.  If A and B together attack C, intending to kill and the combined effect of their blows is to kill him, both A and B would be guilty of murder.  Each contributed to C’s death.  Each intended to kill him.  Each has committed murder.

[4]        It is important to remember, however, that although the accused (or, NOA)) have been charged and are being tried together, each is a separate individual who cannot be found guilty of any offence unless the evidence relating to him/her proves his/her guilt of that offence beyond a reasonable doubt.  Each person is entitled to separate consideration (in relation to each charge).  Each is entitled to have his decided on the basis of his/her own conduct and state of mind and from evidence that may apply to him/her.

[225]     In CRIMJI, the following is suggested at chapter 5:

SPECIAL DIRECTION 2—CO-PERPETRATORS

34.       If you are satisfied beyond a reasonable doubt that _______________ [THE ACCUSED) and ________________ [ONE OR MORE OTHER PERSONS] acted in concert as a joint endeavour ________________ [E.G., JOINED IN A CHAIN OF EVENTS THAT WERE INTERRELATED AND INTERCONNECTED FROM START TO FINISH], then it is not necessary for you to decide which of those persons _______________ [E.G., STRUCK THE FATAL BLOW). They are (both/all) co-perpetrators and they are (both/all) responsible for _______________ [E.G., THE DEATH OF THE VICTIM].

[226]     These sample instructions, of course, are not statements of the law.  They are, however, reflective of what is said in the cases and are useful in a discussion as to what might be said in a jury charge.  In the present case, it is my opinion that the substance of these precedent instructions was captured cumulatively in para. 8, the paragraphs dealing with other suspects and the paragraph on unanimity, as well as amended paras. 205, 239 and 262.  I do not know what else might have usefully been said to the jury on the law relating to co-principal criminal liability.

[227]     The language employed by the trial judge in his charge met the requirements of the law.  In para. 8 quoted above, he told the jury that they did not have to find that the appellant acted alone, that they may find that he “acted in concert with other persons” and that it was sufficient upon a consideration of all the evidence that the appellant “actively participated in the killing”.  These words directed the jury to consider whether, on each count, the appellant played an active role in the physical act of killing. 

[228]     In the “other suspects” portion of the charge reproduced in paras. 144 and 145 above, the judge again told the jury that to find guilt they must be satisfied that the appellant “actively participated in the killing of the victim” and that it was “not necessary that [the jury] find that [the appellant] acted alone”.  These or similar phrases were repeated with specific reference to Taylor and Casanova.

[229]     In the paragraphs of the charge that set out the requirement of unanimity (reproduced above at para. 156), it was made clear to the jurors that, so long as they were unanimous in the result, some of them could conclude that the appellant acted alone and the rest of them could conclude that “he acted in concert with another person or people”.

[230]     Finally, in the second recharge paras. 205, 239 and 262 were amended to state that the element of identity was proven upon a finding that the appellant either shot the victim “or was otherwise an active participant in her killing”. 

[231]     I have no doubt that these instructions properly focussed the attention of the jurors on both routes to liability and adequately conveyed to them that if they were not satisfied that the appellant did the actual killing, they could convict if they were satisfied that he actively participated in the actual killing or acted in concert with another person in the actual killing.  The trial judge presented the alternate route to criminal liability in rather narrow focus.  But, in my opinion, that could not have led the jury to improper reasoning.  Rather, it was to the benefit of the appellant. 

[232]     In my opinion, the trial judge ultimately answered the jury question in a correct and sufficiently comprehensive manner in the circumstances of the case.  There was confusion arising from the original charge. As a result, the jury needed and asked for help.  The first recharge merely restated the confusing instruction and did not answer the jury’s question.  The second recharge provided the jury with the help it needed:  see R. v. S. (W.D.), [1994] 3 S.C.R. 521, 93 C.C.C. (3d) 1 at p. 8.

Aiding and abetting in opening instruction

[233]     The trial judge provided an opening instruction to the jury covering a number of essential topics.  The jurors each had a copy of this instruction in writing.  It included the following instruction on the subjects of aiding and abetting: 

            A person who actually commits an offence is guilty of that offence.  However, you should also understand that a person may be convicted of an offence as a party, that is, where the evidence proves that the person aided or abetted someone else to commit the offence. Aiding means to help or assist the principal offender in the commission of the offence.  Abetting means to encourage or support the principal offender in the commission of the offence. It is more than simply standing by idly.

            To convict an accused as either an aider or abettor, the Crown would have to prove that the accused knew or intended that his acts would aid or abet the principal offender to commit the offence.

            Now, I do not intend that brief explanation to be understood by you as a complete or comprehensive description of the law that you will be required to apply in this case.  It is not.  It is meant only to give you some general sense of the legal considerations that are involved in these charges.  After all of the evidence has been presented, I will give you more complete instructions about these essential elements.  I will also tell you about any defences or other issues that arise on the evidence, and explain how they relate to the essential elements that the Crown must prove and the verdicts that you may give at the end of the case.

[Emphasis added]

[234]     The last paragraph of the above remarks had reference to aiding and abetting as well as to other areas of law touched upon earlier in the opening instruction.  The jury received extensive final instruction on the other areas of law but neither aiding nor abetting was mentioned again.

[235]     There was no amendment made of the opening instruction and the jurors retained their copies throughout their deliberations. 

[236]     In his final instructions, the trial judge said this: 

[2]        It is now my duty to instruct you as to the principles of law that apply in this case, to refresh your individual and collective recollections of certain features of the evidence you have heard, and to explain to you how to relate the applicable legal principles to the facts as you may find them to be, so that you may render a just and proper verdict.

[3]        When we started the case and at different times during the trial, I explained certain general principles and gave you instructions from time to time about how to use some of the evidence as it was received.  Those instructions continue to apply.

[4]        I will now give you further instructions.  These instructions cover a number of topics.  Consider them as a whole.  Do not single out some as more important and pay less or no attention to others.  All are equally important, unless I tell you otherwise.

[237]     I do not understand the appellant to be arguing the failure of the trial judge to have the opening instruction removed from the possession of the jurors as a stand-alone basis for allowing this appeal.  I understand the appellant’s position to be that the jurors might have framed their question about “indirect acts”, in part at least, from the written opening instruction on aiding and abetting and might have filtered their final understanding of the co-principal instruction through that part of the opening instruction. 

[238]     I do not share this concern.  The jury had a large amount of material before it.  The written material that included the reference to aiding and abetting came very early in the trial and there was no reference to the topic in counsel’s final speeches or in the final instruction.  The jury deliberated for many days and asked but one question.  That question astutely recognized a curious and serious inconsistency in the final instruction.  I am sure that if aiding and abetting influenced the question such influence would have appeared in the wording of the question, or it would have been the subject of a second question.  In the opening instruction, the trial judge made it plain that his comments were preliminary and required elaboration later.  It is extremely unlikely that this jury would have considered aiding and abetting without seeking that elaboration or without questioning why it was not to be found in the judge’s final written instruction. 

[239]     It is unfortunate that the jury was left with the written opening that included the reference to aiding and abetting but I am not persuaded that the reference might have had any influence on the jury in its understanding of the law or of the application of the law to the case at hand.

Conclusion

[240]     It would have been an error for the trial judge to leave only the sole perpetrator theory as a means of establishing criminal liability against the appellant for the murders.  The judge acted correctly in providing the jury with instruction that embraced the law of co-principal.

[241]     The actual shooter paragraphs were wrong in law.  Had they been left with the jury without amendment, acquittal of the appellant of counts 1 to 3 solely on the basis that the Crown had not proven that the appellant was the actual shooter would have been unjust.  The judge was correct in deciding that amendment of those paragraphs was essential. 

[242]     The final instruction on the co-principal route to criminal liability was sufficient.  It adequately informed the jury of the law applicable to the alternate path to conviction that had to be considered.

[243]     The failure to remove the paragraphs on aiding and abetting from the judge’s written opening instruction was of no consequence. 

[244]     I would dismiss the appeal.

“The Honourable Mr. Justice Low”

I agree:

“The Honourable Chief Justice Finch”

Reasons for Judgment of the Honourable Mr. Justice Donald:

[245]     When, on the sixth day of deliberations, the jury posed a question about inferring that Pickton “acted indirectly” in killing one or more of the victims, it opened up party liability.  They were likely referring to the possibility that he was either a co-principal or an aider or abettor.  The judge did not provide the jury with an instruction on the law of aiding and abetting and how it may apply to the circumstances of this case.  In my opinion, this was an error of law.  The failure to instruct created a miscarriage of justice.  I would order a new trial as I am not persuaded that the curative proviso in s. 686(1)(b)(iii) of the Criminal Code applies.

Party Liability

Background

[246]     The record shows that the Crown, at trial, put a case that Pickton acted alone.  It remained firmly wedded to that position until the jury came in with its question.  The defence responded to the Crown’s case by proposing that someone else may have been the killer and accordingly the jury should entertain a reasonable doubt about his guilt.  The Crown ridiculed Pickton’s theory as a “red herring” and said in the closing address to the jury that those Pickton proposed as other suspects were “bogey men” and “straw men”.  The Crown led testimony from the lead investigators that they could find no evidence that other suspects were involved.  The Crown sought and obtained admission of similar fact evidence on the identification of Pickton as the perpetrator and to rebut the possibility of the involvement of others. 

[247]     The main charge to the jury mentioned in several places that they did not need to find that Pickton acted alone to convict him.  But there was never a clear direction on party liability.  I think the reason for that is obvious.  Given the position of the parties, the judge wanted to convey the idea that the possibility that others may have helped Pickton in the murders was beside the point; if they were satisfied he carried out the killings with intent, which was the Crown theory, they could find him guilty.  This is the sense of para. 203 of the charge: 

It is important that you look at all the evidence that bears on this issue and take into account frailties and shortcomings in the evidence and evidence which is inconsistent with Mr. Pickton’s guilt.  You may also consider evidence that may suggest the involvement of other persons.  In this case the defence has urged you to find that the involvement of Ms. Taylor and/or Mr. Casanova should give rise to a reasonable doubt in the case against Mr. Pickton.  In that regard you should bear in mind the instruction that I have given you concerning the possible effects of other suspects and the importance of focusing on the case that is made to prove the guilt of the accused.  Evidence of the involvement of other persons does not automatically diminish the case against the accused.  The true focus must be on carefully assessing the case that is made to prove the guilt of the accused and holding that to the high standard of proof beyond a reasonable doubt.

[248]     On the fourth day of the charge, the defence, with the Crown’s tacit agreement, requested a direction that spelled out what the jury must find Pickton did on counts 1, 2 and 3.  This has become known as the “actual shooter” instruction.  The instruction was consistent with the sole perpetrator theory and inconsistent with any other theory.  It was known that the victims in counts 1, 2 and 3 died by gunshot wounds to the head.  It was not known how the victims in counts 4, 5 and 6 died, but since the judge permitted similar fact evidence to be applied between counts, the jury could infer that the killer in counts 1 to 3 caused the deaths in counts 4, 5 and 6. 

[249]     The actual shooter instruction came about in this way.  The judge and counsel worked assiduously in developing the charge to the jury.  Over the course of many pre-charge conferences, drafts were exchanged and discussed.  The involvement of persons other than Pickton was approached with a focus on Pickton’s conduct and what the jury needed to find in order to convict him.  The language describing the requisite conduct element went through various degrees of specificity culminating in a version proposed by the Crown which seemed to suit everyone: 

[16]      It is not necessary to find that the accused acted alone.  Provided you find beyond a reasonable doubt, having considered all of the evidence, that the accused actively participated in the killings.  By this I mean if you find that he caused the death of the victims by means of an unlawful act and that he did so with an intent required for murder, and that this conduct was planned and deliberate, it does not matter whether he did so alone, or with one or many others.  I remind you that it is the Crown’s theory that the accused actually committed all the offences.

[250]     So it came as a surprise to defence counsel when the judge gave the direction in different terms: 

[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.

[251]     Defence counsel found this to be too amorphous and vague and awaited the opportunity to put some clarity back into the charge concerning Pickton’s conduct.  As mentioned, this was accomplished on the fourth day of the charge, with the actual shooter instruction, repeated for each of the three counts, going to the jury with these words: 

If you find that Mr. Pickton shot [Ms. Abotsway], 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 shot her, you must return a verdict of not guilty on the charge of murdering her. 

[252]     On the sixth day of the deliberations, the jury came in with its question:

When considering Element 3 [that Mr. Pickton is the person who killed the victim] on one or more of the counts, are we able to say “Yes”, if we infer that the accused acted indirectly? 

The judge was unclear what the jury meant by “acted indirectly” but, after hearing from counsel, he gave a response consistent with his main charge.  Then, within an hour or so, he had second thoughts.  He told counsel that he thought para. 8 did not gibe with the actual shooter instruction because of the possibility that Pickton played an active and significant role in the killing but did not actually pull the trigger.  He said the latter was wrong and he proposed to amend it to conform with the “active participant” language in para. 8. 

[253]     The defence objected that the judge was now intending to introduce party liability into a sole perpetrator case and it was too late to change the character of the case at that point.  The Crown embraced the opportunity for the jury to get around its difficulty by way of the co-principal route to liability.  The judge accepted the Crown’s position and reinstructed the jury.  For each of the three counts, the actual shooter instruction was amended by adding the underlined words: 

If you find that Mr. Pickton shot [Ms. Abotsway] 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. 

[254]     The jury resumed deliberations and three and one-half days later returned verdicts of guilty of second degree murder. 

Discussion

[255]     I will develop the following points in support of the conclusion that the non-direction on aiding and abetting was a misdirection amounting to a serious error of law:

1.       “Active participant” in context is ambiguous and leaves open secondary liability as an aider or abettor.

2.       The phrase in the jury’s question “acted indirectly” encompasses aiding and abetting.

3.       The judge had to answer the question fully and correctly. 

4.       There is a basis in the evidence for aiding and abetting.

5.       There is a risk that without an instruction on secondary liability, the jury might have convicted on acts that do not constitute aiding and abetting.

1.       “Active participant

[256]     The problem with this phrase is that it does not circumscribe co-principal liability as the sole basis for an alternative route.  Arguably, the paragraph 16 proposed by the Crown contained limiting words which did so.  When read with the “actual shooter” instruction, the phrase “actively participated in the killing” took on a meaning which excluded consideration of aiding and abetting.  So, when the judge dropped from para. 16 “[b]y this I mean ... he caused the death of the victims by means of an unlawful act ... with an intent required for murder” and used the language in para. 8, and when he withdrew the “actual shooter” instruction and substituted words in the re-instruction that do not describe the conduct or fault elements for co-principal liability, he left open the prospect that the jury might rely on actions that amount to neither primary nor secondary liability.  An instruction on aiding and abetting was necessary to prevent that. 

[257]     I am not imputing to a lay jury knowledge of terms of art in criminal law.  The natural and ordinary meaning of “active participant” can include helping or encouraging.  In this regard, I refer to the judgment of Mr. Justice Doherty in R. v. Portillo (2003), 176 C.C.C. (3d) 467 at para. 71 (Ont. C.A.), where he proposed model jury instructions to explain potential liability under s. 21(1) of the Criminal Code.  His proposal included the following: 

·        To convict an accused of murder or manslaughter, the jury must be satisfied that the accused participated in the killing.

·        Participation means doing something that caused the death of the deceased or doing something for the purpose of helping another person to do something that caused the death of the deceased.

·        If the jury is satisfied that an accused participated in the killing as described above, it is unnecessary for the jury to determine the exact nature of that participation. 

[Emphasis added]

Mr. Justice Doherty thus interpreted “participated in the killing” to cover either the act of a perpetrator or the act of an aider.  

[258]     Similarly, the Manitoba Court of Appeal, in R. v. H. (L.I.), 2003 MBCA 97, 176 C.C.C. (3d) 526 at para. 88, interpreted the phrase “actively participated in the crime” to mean the participation of a principal or an aider or abettor.

[259]     Therefore, even if the trial judge and Crown counsel intended the re-instruction to clarify the alternative route of co-principal liability, the amended words were just as capable of being broadly understood by the jury to include indirect acts of aiding.  The Supreme Court of Canada has provided guidance to appellate courts in reviewing ambiguous jury instructions.  In Bigaouette v. The King, [1927] S.C.R. 112 at 114, 47 C.C.C. 271, Duff J. stated:

            The law, in our opinion, is correctly stated in the judgment of Mr. Justice Stuart in Rex v. Gallagher [(1922), 37 C.C.C. 83 at 84], in these words:

* * * it is not what the Judge intended but what his words as uttered would convey to the minds of the jury which is the decisive matter. Even if the matter were evenly balanced, which I think it is not, and the language used were merely just as capable of the one meaning as the other, the position would be that the jury would be as likely to take the words in the sense in which it was forbidden to use them as in the innocuous sense and in such circumstances I think the error would be fatal.

2.       “Acted indirectly

[260]     The jury’s question, as noted above, was this: 

When considering Element 3 [that Mr. Pickton is the person who killed the victim] on one or more of the counts, are we able to say “Yes”, if we infer that the accused acted indirectly? 

[261]     Indirect action suggests activity falling under aiding and abetting.  The Crown on appeal submitted that the judge’s direction that “[i]t is not sufficient that [Pickton] was merely present or took a minor role” limited activity to that which is proximate to the killing and requires Pickton’s presence at the scene of the killing.  Therefore, it is argued, the mind of the jury would have been directed only to co-principal liability.

[262]     I cannot accept this argument.  I have said active participant is an ambiguous expression not limited to principal or co-principal.  The instruction that mere presence is not enough neither implies the necessity that Pickton be present nor does it rule out activities indirectly associated with a killing.

3.       Answering jury questions

[263]     Jury questions have to be answered fully and correctly.  If I am right in saying that the jury may have been looking at secondary liability and the judge did not close that avenue, then the answer had to cover aiding and abetting.  The significance of jury questions was explained by Mr. Justice Cory in R. v. S. (W.D.), [1994] 3 S.C.R. 521 at 530, 93 C.C.C. (3d) 1:

            There can be no doubt about the significance which must be attached to questions from the jury and the fundamental importance of giving correct and comprehensive responses to those questions.  With the question the jury has identified the issues upon which it requires direction.  It is this issue upon which the jury has focused.  No matter how exemplary the original charge may have been, it is essential that the recharge on the issue presented by the question be correct and comprehensive.  No less will suffice.  The jury has said in effect, on this issue there is confusion, please help us.  That help must be provided. 

[264]     The dissenting judgment of O’Neill J.A. in R. v. Allen, 2002 NFCA 2, 208 Nfld. & P.E.I.R. 250, is of particular relevance.  Mr. Justice O’Neill would have ordered a new trial on the ground that the trial judge did not respond adequately to the jury’s request for clarification of what is meant by involvement in murder.  He said the trial judge did not provide enough assistance on party liability (at para. 124): 

The re-instruction could not be responsive to the question asked since, as indicated earlier, there was no clear understanding of what the basis for the question was and what specific matters were troubling the jury.  Further, no acts or omissions by the appellant, by way of specific references to the evidence, were identified by the trial judge which could, if accepted by the jury, provide a possible factual underpinning to the operation of s. 21.  Further, there should also have been references to the evidence of actions or inaction by the appellant which, if accepted, could lead the jury to the conclusion that the appellant, even though he may have been present in the house when the actual stabbing occurred, was an innocent bystander insofar as that term is contemplated by a proper interpretation of s. 21. 

[265]     In oral reasons, 2003 SCC 18, [2003] 1 S.C.R. 223, the Supreme Court of Canada reversed the Newfoundland and Labrador Court of Appeal for the reasons given by O’Neill J.A. 

4.       Evidence of aiding and abetting

[266]     The modus operandi alleged against Pickton involved, according to the evidence of Andrew Bellwood, picking up drug addicted prostitutes from the streets of Vancouver, transporting them to the Pickton farm, killing them, butchering their bodies and disposing of their remains.  The first two stages are not, without proof of the common venture to kill, in themselves murder, although with the requisite intention, they could be aiding the actual killer.  The last two stages would lead to a conviction as an accessory after the fact unless they form part of a common design with the killer, in which case they could be aiding or abetting.  Thus, there was a basis in the evidence for an instruction on aiding and abetting. 

5.       Risk in not instructing on aiding and abetting 

[267]     After six days of deliberation, the jury wanted to know about indirect acts, implying that they were not convinced at that point that Pickton was the actual killer on one or more counts.  The risk in not instructing the jury on aiding and abetting is that they may have convicted on evidence that does not constitute either co-principal or aiding and abetting liability.  The example is butchering and disposing of the victim’s remains, which acts are after the fact – unless part of a common scheme. 

[268]     The jury was given no guidance as to the actus reus or mens rea in aiding and abetting; neither did they get a review of what evidence would support secondary liability and what evidence would not. 

Miscarriage of Justice

[269]     There are two aspects of the case which, in my view, lead to a miscarriage.  The first is that by leaving open aiding and abetting, the judge permitted the Crown to take advantage of an alternate route to liability without suffering any loss of credibility in its sole perpetrator theory.  The Crown did not have to ride two horses at once, on the one hand putting a case that Pickton alone killed the victims, and on the other, explaining who might have been the other killer or killers and what they did.

[270]     The second aspect is related to the first but is, in my opinion, much more serious.  No one addressed the jury on aiding and abetting.  The Crown did not ask for a party instruction during the pre-charge discussions, and none was given.  The Crown reserved its right to ask the judge to give a party instruction after hearing the defence address to the jury.  The defence went to the jury responding to the sole perpetrator case presented by the Crown.  Having heard nothing that suggested party liability, the Crown did not ask for a direction.  Had the defence known in a timely way that the Crown wanted a secondary route left open and that the judge would let the jury consider indirect acts in the way he did, it would have been able to make a powerful argument that aiding and abetting was entirely incompatible with the Crown’s approach throughout the trial and that the Crown was at a loss to explain who did what.

[271]     After six days of deliberation, it was simply too late to bring in a new feature of the case and disrupt the orderly process of decision making by new addresses of counsel and a further charge.  The judge should have firmly closed the door on indirect acts and used less ambiguous language to describe the conduct and fault elements of co-principal liability.

[272]     I think there is much in what Pickton’s counsel submits about the unfairness of the Crown changing its position at the terminal stages of the trial.  I view the Crown’s behaviour as scrambling to recover ground by advancing a co-perpetrator theory when the jury question indicated they were having a problem with the sole perpetrator theory.  But I do not rest my decision on that.  It is enough to say, in my view, that the fairness of the trial was compromised by the introduction of the aiding and abetting feature.  On trial fairness, I refer to R. v. Ranger (2003), 178 C.C.C. (3d) 375, 67 O.R. (3d) 1 (C.A.), where Charron J.A., then of the Ontario Court of Appeal, wrote:

[133]    As I will explain, 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.  In all cases, however, the trial judge’s role will be circumscribed by the need to ensure trial fairness. In the particular circumstances of this case, it is my view that the trial judge’s failure to notify counsel of his intention to charge the jury on this additional basis of liability undermined the appellant's ability to make full answer and defence.

* * *

[135]    We must therefore start from the premise that the jury is not bound by the theory of the Crown in its consideration of the evidence. Nor is it bound by the theory of the defence.  Hence, in order to provide the jury with the assistance that it requires in dealing with the evidence, the trial judge may well find it necessary to instruct the jury in a manner that does not accord with the theory advanced by either Crown or defence counsel at trial.

[136]    I did not interpret the appellant's submissions in this case as disputing this general principle.  The concern that was raised relates, rather, to its particular application in this case.  Indeed, in any case where the trial judge instructs the jury on a material point in a manner that does not accord with the position advanced by either party, a question may arise whether this course impacted on the fairness of the trial.  For example, depending on the circumstances, an accused may argue that his or her principal defence was undermined by the manner in which the trial judge left an alternative defence open to the jury.  The concern about trial fairness, however, will be greater when the instruction relates to a theory of liability that has not been advanced by the Crown.

[273]     In this case, aiding and abetting came at a time when there was nothing that the defence could do to respond satisfactorily.

Curative Proviso

[274]     The Crown submits that the omission of a charge on aiding and abetting was harmless because if the jury took that route, they would have used the same conduct and fault requirements as those for sole perpetrator or co-principal liability.  Further, the Crown submits that the case against Pickton was so powerful that the outcome would inevitably have been the same despite the error.  On those two grounds, the Crown invokes the curative proviso under s. 686(1)(b)(iii) of the Criminal Code in resisting an order for a new trial.

[275]     It is common ground that the proviso does not apply if a miscarriage has been found under s. 686(1)(a)(iii).  Having found a miscarriage as discussed, I would not give effect to the proviso.  Even if I were wrong about a miscarriage, I would reject the Crown’s invocation of the proviso.

[276]     In the circumstances, it is uncertain what rules as to conduct and fault the jury may have used had they followed the secondary liability route.  They were not given any guidance in this regard.  For instance, they may have thought that picking up a victim from the downtown eastside of Vancouver and transporting her to the farm was enough without turning their minds to the requisite knowledge on the part of Pickton as to the actual killer’s intention and whether Pickton formed the intention to help the killer carry out the murder.  They were not told that activities after the fact, for example, butchery and disposal, could only lead to party liability for murder with the requisite knowledge and intent.

[277]     Turning to the second ground, the Crown did indeed present a powerful case.  Yet, despite the force and persistence of the Crown’s pursuit of the sole perpetrator theory, the prospect of the involvement of others was always present.  The Crown now says, having repudiated the single-minded approach taken below, that there was always a “middle ground”, which the jury must have come upon when they asked the question about indirect activity.  The trouble with the Crown’s revisionist approach is in the assumption that co-principal liability was the only alternative that needed to be discussed with the jury in relation to that middle ground. 

[278]     Coupled with that problem is the objective fact that despite the body of evidence against Pickton, the jury deliberated over nine days and reached the somewhat curious result of second degree murder.  While it is impossible to know with certainty what was behind the lengthy deliberations and the acquittal on first degree murder, the lack of a full development of party liability in the charge cannot be dismissed as a cause.  In any event, it cannot be said with the confidence asserted by the Crown that the outcome would have inevitably been the same had the error not occurred.  The present case brings to mind the words of Madam Justice Arbour in giving the judgment for the Ontario Court of Appeal in R. v. Cribbin (1994), 89 C.C.C. (3d) 67, 17 O.R. (3d) 548, when she wrote at 75:

There comes a point where a verdict cannot be sustained if a jury is so misguided that there is a real possibility that its verdict was the product of a compromise reached out of puzzlement or frustration, albeit one that has an evidentiary foundation.   

Conclusion 

[279]     In the result, I would order a new trial. 

“The Honourable Mr. Justice Donald”