COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Pickton,

 

2009 BCCA 300

Date: 20090625

Docket: CA035704

Between:

Regina

Appellant

And

Robert William Pickton

Respondent

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on 4 August 2010 and 25 August 2010, information that may identify certain witnesses and undercover police officers may not be published, broadcast or transmitted in any manner.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)

Counsel for the Appellant:

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

G. Baragar, S.J. Brown, J. Duncan,

K. McIntosh

 

Counsel for the Respondent:

G.D. McKinnon, Q.C.

P. McGowan

 

Place and Dates of Hearing:

Vancouver, British Columbia

April 6, 7, 8 & 9. 2009

Place and Date of Judgment:

Vancouver, British Columbia

June 25, 2009

 


Written Reasons by:

The Honourable Chief Justice Finch

Concurred in by:

The Honourable Mr. Justice Donald

The Honourable Mr. Justice Low

 

 


Reasons for Judgment of the Honourable Chief Justice Finch:

I.

[1]             The Crown appeals Robert William Pickton’s acquittal on 9 December 2007 on six counts of first degree murder, following a trial by judge and jury at New Westminster.  Mr. Pickton’s appeal from his conviction of second degree murder on each of those six counts was heard immediately preceding this appeal.  The reasons for judgment in that appeal, number 35709, are being released concurrently with these reasons.

[2]             On this appeal, the Crown asserts first that the learned trial judge erred in his order of 9 August 2006 (reasons indexed at 2006 BCSC 1212) severing 20 other counts of first degree murder on the Indictment from the six counts that proceeded to trial.  The Crown says that the severance order prevented it from presenting the overwhelming case of planning and deliberation that a trial on the 26 counts would have permitted.

[3]             The Crown also asserts that the learned trial judge erred in a series of rulings he made excluding extrinsic similar fact evidence that the Crown tendered as relevant to the identity of the murderer and other issues.  He ruled inadmissible the evidence of Person X, for reasons indexed at 2006 BCSC 1447; the evidence regarding Cynthia Feliks, Inga Hall and Wendy Crawford, for reasons indexed at 2006 BCSC 1601; and the evidence relating to the bones of a woman known at trial as Jane Doe, for reasons indexed at 2007 BCSC 1293.

[4]             The Crown also alleges that the trial judge erred in his charge to the jury in a Vetrovec warning he gave concerning the evidence of the witnesses Andrew Bellwood and Lynn Ellingsen (see Vetrovec v. The Queen, [1982] 1 S.C.R. 811), and that he further erred in his instructions concerning the use of similar fact evidence on the issue of planning and deliberation.

[5]             The Crown says that these errors, individually or collectively, warrant a new trial on charges of first degree murder.  However, the Crown submitted that if the six convictions of second degree murder were sustained in this Court, a new trial would not be sought because “relabeling” those convictions as first degree rather than as second degree murder would serve no useful purpose.

[6]             Accordingly, the Crown asks this Court to:

(a) allow the appeal; (b) set aside the order severing Counts 1, 2, 6, 7, 11 and 16 from the original Indictment; (c) set aside the Respondent’s acquittal on six counts of first degree murder; (d) order a new trial on first degree murder in respect of those six counts and (e) stay, pursuant to s. 686(8) of the Criminal Code, the orders made in sub-paragraphs (a), (b), (c), and (d) above, conditional upon the final determination of further appellate proceedings (or the expiry of time limitations for the institution of such proceedings) such that:

(i)  if Robert William Pickton then stands convicted of six counts of second degree murder, the stay will become permanent; or

(ii)   if a new trial is required, the stay will be dissolved and paragraphs (a), (b), (c), and (d) will become effective.

[7]             Counsel for the respondent Mr. Pickton raises preliminary objections to all of the Crown’s grounds of appeal.  With respect to the rulings on severance and the exclusion of similar fact evidence, the respondent says the grounds raised by the Crown are not restricted to questions of law alone and are therefore beyond the scope of a Crown appeal under s. 676(1)(a) of the Criminal Code.  To the extent that any questions of law alone have been raised, the respondent says the trial judge made no error of law.

[8]             With respect to the errors alleged in the charge to the jury, the respondent says the Crown is precluded from advancing those arguments because it takes a position on this appeal that it did not take at trial.  In fact, the respondent says the Crown actively participated in formulating the instructions to the jury that form the basis of these two grounds of appeal, and that it both agreed with, and failed to object to, the now-impugned instructions.  The respondent says that, in any event, there is no error in either of these instructions.

[9]             Finally, the respondent says that the relief sought by the Crown is not available under the Criminal Code.  The respondent says that if this Court allows the Crown’s appeal then the respondent is entitled to a new trial on charges of first degree murder even if his appeal from convictions on second degree murder is dismissed.

[10]         For the reasons that follow, I would allow the Crown’s appeal and grant the relief sought, including the conditional stay pursuant to s. 686(8) of the Criminal Code.

II.   Overview of the Crown’s case as presented at trial

[11]         Counsel for Crown and defence collaborated in preparing an extensive Agreed Statement of Facts for this appeal, which, by agreement, they supplemented to some extent in their respective factums.  For the purposes of this appeal, there are virtually no facts in dispute.

[12]         The Crown’s case against the respondent consisted of admissions made by the defence at trial; evidence from police investigators; forensic evidence obtained on a search of the respondent’s farm property in Port Coquitlam; forensic analysis of the six victims’ remains; and eyewitness evidence concerning the respondent’s butchering practices and other aspects of his farming operation.  In addition, the Crown led viva voce evidence from Lynn Ellingsen, Andrew Bellwood, Gina Houston and Scott Chubb.  The Crown also led evidence of Mr. Pickton’s statements to police officers during formal interviews, and to an undercover cell plant officer.

[13]         The respondent did not testify.  The defence called viva voce evidence from a number of witnesses whose evidence was directed chiefly at the access of other persons to the respondent’s property and the possibility of their responsibility for, or participation in, the deaths of the six victims.

[14]         The charges against Mr. Pickton arose from a police investigation styled as the “Missing Women Task Force” (MWTF).  Its mandate was to investigate the disappearance of many women from the Vancouver downtown eastside (DTES).  Mr. Pickton was a person of interest in that investigation.

[15]         In January of 2002, a member of the Coquitlam RCMP received information from Scott Chubb, who had worked for the respondent and his brother, Dave Pickton, from time to time, concerning the respondent’s possession of illegal firearms at Mr. Pickton’s farm property at 953 Dominion Avenue in Port Coquitlam.

[16]         The RCMP obtained a search warrant and executed it on 5 February 2002.  The respondent was arrested, detained overnight and released the following day.

[17]         The police search of the respondent’s residential trailer yielded a pair of women’s running shoes and an inhaler with the name “Sereena Abotsway” on it, both found inside a ski bag in the office area of Mr. Pickton’s trailer. The police recognized the name of Sereena Abotsway as one of the women missing from the downtown eastside. The search also produced a .22-calibre Smith & Wesson revolver, the barrel of which was wrapped in cellophane and inserted into a soft plastic dildo. 

[18]         The MWTF thereafter obtained a further search warrant for the entire Pickton property, and for evidence relating to the missing women investigation.

[19]         Mr. Pickton’s property is a 17-acre farm located in Port Coquitlam, a suburb of Greater Vancouver, about 30 kilometres from the DTES.  Pickton’s residential mobile-home trailer was situated towards the north end of the property.  Adjacent to that mobile home trailer was a slaughterhouse.  Nearby were a mechanical shop, a motor home and a garage/workshop.

[20]         Towards the south end of the property was a farmhouse where the respondent's brother, Dave Pickton, lived.  In near proximity to the farmhouse were a long storage shed and a barn.

[21]         The property was used by the respondent as a place to raise and butcher pigs.  The property was also used for a topsoil and landfill business.  There were several large mounds of dirt, some measuring over an acre in size, on the property.

[22]         The investigators searched the entire Pickton property, including all buildings at both the north and south ends of the property.  Excavated materials were processed and examined by experts to distinguish human bones from animal bones and other material in the soil.

[23]         Bones or body parts were discovered that were identified by DNA matching as belonging to the six victims named in the counts that were tried.

[24]         With respect to the other 20 victims on the original Indictment, the search produced evidence of DNA obtained from blood, hair or other human tissue matched to each victim, as well as personal items or clothing identified as belonging to some of the victims.

[25]         All 26 victims on the original Indictment were young women who were known to be engaged in the business of providing sexual services for payment.  They all practiced their trade in the DTES and lived in the vicinity.  Most of the 26 victims were of aboriginal descent. Most were addicted to illegal drugs.  Sex trade workers of this description and from this location were known to be very reluctant to work outside the DTES.

[26]         Mr. Pickton was known to use the services of sex trade workers and to frequent the downtown eastside. 

[27]         The 26 women named in the original Indictment each disappeared, or were last seen, at some point between December 1995 and December 2001.  The remains identified as those of “Jane Doe” are believed to be those of a person last seen sometime prior to February 1995.  The Crown adduced oral testimony from Lynn Ellingsen, Andrew Bellwood and Gina Houston.  The Crown sought to have the evidence of Lynn Ellingsen admitted as similar fact evidence, and in his ruling of 29 September 2006, indexed at 2006 BCSC 1448, the trial judge held her evidence was admissible for that purpose.

[28]         Lynn Ellingsen testified that she was a long time drug user.  For several months in 1999 she lived in the respondent’s trailer at 953 Dominion Avenue.  As summarized in the Agreed Statement of Facts:

249.     Ellingsen testified that one evening when she was living at the farm she and Pickton drove to a bar in Surrey.  After leaving the bar they drove into New Westminster to get something to eat.  Shortly after crossing the bridge into New Westminster, they were pulled over by the police.  Pickton was driving.  Pickton was asked to get out of the car and perform sobriety tests and then they were allowed to proceed.  Ellingsen had no recollection of the date of this incident, but said there was only one occasion on which she was driving with Pickton and he was pulled over by the police.

250.     Cpl. Hyland testified that on the evening of March 20, 1999, she was patrolling 12th Street in New Westminster when she pulled over a small pick-up truck because she suspected the driver might be impaired.  A fellow officer trained in field sobriety testing attended and conducted sobriety tests on the driver before he was allowed to proceed.  Hyland identified the driver as Pickton and the passenger as a female named Lynn Ellingsen, Cpl. Hyland testified that March 20, 1999 was a Saturday.

251.     Ellingsen also gave evidence of driving into Vancouver one evening with Pickton, but could not recall if this was the same night they were pulled over by the police.  On this occasion, Pickton asked her if it was okay if he “picked up a girl”.  Ellingsen said it was fine.  They drove around for a while, stopped, and a woman came up to the window.  Pickton asked the woman if she wanted to come back to the farm.  The woman asked Ellingsen if she was going back to the farm.  Ellingsen said yes and the woman got into the vehicle.  Before they returned to the farm, either Pickton or Ellingsen purchased some crack cocaine.  The two women smoked the cocaine and talked on the drive back to the farm.  Ellingsen described the woman as Native in appearance, with long black hair, bangs, and “chipmunk cheeks”.

252.     When they arrived at the farm, it was dark, and Ellingsen did not see anyone else around the property.  The three went into Pickton’s trailer and sat in the office, where Ellingsen and the woman smoked more crack cocaine.  Pickton then asked them, “Who’s going first?”  The woman replied, “I’ll go first”.  Pickton gave Ellingsen $150 and gave the other woman some money.  He and the woman then went into his bedroom.  Ellingsen went to her bedroom to smoke more cocaine.

253.     Ellingsen testified that sometime later she heard “something like a noise” and went out into the hallway.  Through the kitchen window she could see a bright light coming from the barn.  She walked down the hallway and yelled for Pickton but got no response.  His bedroom was empty.  She went out onto the porch and then decided to check the barn.

254.     As she walked toward the barn she could smell something awful.  When she pushed open the barn doors she saw a body hanging where Pickton slaughtered pigs.  Ellingsen testified it was the woman they had picked up earlier that night.  The woman’s feet and legs were at Ellingsen’s eye level and she could see red nail polish on the woman’s toes.  Pickton was standing and cutting something on a table.  The table was shiny and she could see knives and a lot of blood on it.  Pickton himself was covered in blood.  Ellingsen did not see the woman’s face, but saw long black hair on the table, “like a horsetail”.  She had difficulty describing exactly what she saw Pickton doing.  She said:

A:         I’m not sure really what -- what it was, but there was just this odour and there was almost it was almost kind of like when he used to butcher the pigs.  Like, he would just pull everything out -- almost like -- I don’t – I don’t know how to describe it. I just – I don’t know.

Q:        When things were being pulled out, where were they being placed?

A:         A garbage can.  There was a garbage can at the end of the table…it’s like the same one that he had -- when he butchers pigs that he puts all the -- intestines in.

255.     Pickton pulled her inside the barn, walked her over to the table, and “made her look”.  He told her if she ever said anything to anyone, “she would be right beside her”.  Ellingsen promised she would not say anything and told him she only wanted money for more drugs.  Pickton said he would give her the money and walked her back to the trailer with his hand on her shoulder.  At the trailer Pickton called a taxi, then walked her down to the road and held on to her until the taxi arrived.  When she got in, he told the taxi driver to “take her there and bring her straight back”.  Ellingsen said a short distance down the road she hit the cab driver as hard as she could, jumped out of the cab, and ran.  In her previous statements and testimony, Ellingsen claimed that a cab had taken her directly to Val Foley’s house.  At trial, police testified that there was no record of such a fare.  Ellingsen testified that she eventually arrived at Val Foley’s house, where she called Menard.  Several days later she returned to the farm with a friend to pick up her belongings, but never stayed there again.

256.     In cross-examination, Ellingsen acknowledged having been shown a photographic line-up by the police in 2005 and identifying Georgina Papin, the victim in Count 5, as the woman Pickton took back to the farm.  She also agreed that in every one of her many statements where she discussed this issue, and under oath at the preliminary inquiry, she had placed the barn incident on the same night as the police stop in New Westminster.  The significance of both events occurring the evening of Saturday, March 20, 1999 was the admission at trial that Papin had been seen alive the following day (March 21, 1999) in a Vancouver hospital.  In her interview with Crown counsel prior to testifying, Ellingsen had been shown documents which placed her on the farm after the traffic stop.  Her evidence at trial was the first time she had indicated she was uncertain the two incidents happened the same evening.

[29]         Andrew Bellwood spent time at Mr. Pickton’s farm, and sometimes stayed overnight there in February and March 1999. He met Lynn Ellingsen there.  He used drugs and had an extensive criminal record.  A summary of Bellwood’s evidence, as set out in the Agreed Statement of Facts, includes this:

277.     Bellwood watched Pickton butcher pigs on a couple of occasions and described what he observed.  The pig was suspended from a hook chained around a rafter in the slaughterhouse.  After the pig was gutted, it was immersed in a 45 gallon tub of boiling water.  Once removed, the pig was scraped and any remaining entrails were cleaned out.  On the occasions that Bellwood watched Pickton butchering pigs, they remained whole.  The pig offal was put into 45 gallon drums.  On one occasion, Bellwood went with Pickton to dump pig offal at a disposal plant in Vancouver.  On this occasion, some of the rendering plant workers assisted in taking the barrels off Pickton’s truck.

...

284.     Before Bellwood left the farm on March 14, 1999 he had a conversation with Pickton concerning prostitutes.  The conversation took place in Pickton’s bedroom in his trailer during a late afternoon or early evening after supper while the two of them were watching television.  Bellwood had neither smoked crack cocaine nor consumed alcohol when this conversation occurred; he described his state of mind at the time as “absolutely perfect”.

285.     The conversation occurred while Bellwood was seated in a chair in front of the television and Pickton was sitting on the corner of his bed.  Pickton started the conversation by asking whether Bellwood wanted to go get a prostitute.  Bellwood attempted to shrug the suggestion off, saying, “No, I don’t really want to get a prostitute.”  Pickton said, “Come on, let’s go get a prostitute, I’ll give you a couple hundred bucks.  We’ll go get a prostitute.”  Bellwood again shrugged the suggestion off.  Bellwood testified that Pickton then said to him:

“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 waste from slaughtered pigs.

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.

...

287.     Bellwood described the handcuffs Pickton showed him as being identical to police handcuffs and made of a chrome-looking metal.  The belt was made of leather and was dark brown.  The wire that Pickton told him he would use as a ligature was about three feet long with loops on both ends.  The diameter of each loop was described as being about six inches.

288.     Bellwood testified that when Pickton was telling him what he did with prostitutes, Pickton was kneeling on the bed as if conducting a re-enactment or demonstration of how he would kill the women.  Pickton was kneeling on the bed, pretending to stroke the hair of a woman, and pretending to reach ahead and pull the woman’s hand behind her back.

289.     The conversation came to an end when Bellwood kept saying, “Nah, no, I don’t want to get a – I don’t want to go get a hooker.  No.  No, no.  You’re just – whatever.  You’re kidding around.”  Bellwood testified that he really did not know what to make of the conversation at the time.  He testified that he did not really take it seriously, but thought it was “definitely pretty whacked out”.  The two men did not go and get a prostitute as Pickton had suggested.  Pickton never mentioned using a gun to kill the women.

290.     The topic came up again a few days before Bellwood ultimately left Pickton’s farm in March, 1999.  Bellwood testified that on this occasion Pickton and Lynn [Ellingsen] were lying on Pickton’s bed when Bellwood was also in the room.  Pickton began teasing Bellwood by saying to Lynn, “Andy’s scared to go get a hooker”.  Lynn kind of laughed and the conversation ended.  This second conversation occurred about three days after the first.  As with the first conversation, Bellwood was not under the influence of crack cocaine or alcohol.

[30]         Gina Houston was a long-time close personal friend of the respondent.  In her evidence, she described the respondent’s pig-butchering operation and the manner in which he butchered pigs.  Her evidence included:

321.     As mentioned earlier, Houston described Pickton’s pig butchering operation and the manner in which he butchered the pigs.  She also spoke of the participation of Casanova in this enterprise and the complete non-involvement of Pickton’s brother, Dave, in pig butchering.  Pickton uses a meat grinder to make ground pork.  She described regularly accompanying him, starting in April 1997, on Saturday mornings to the auction where Pickton would buy pigs.  She also testified that on three of four occasions, she accompanied him to the rendering plant where, unassisted and unsupervised by personnel, Pickton would dump the pig offal collected from the butchering process.  On one such outing, she and Pickton drove around the DTES where, to her observation, he appeared to be known to the sex trade workers.

322.     When asked if she recognized any of the photos of the missing women on the MTWF’s poster, Houston identified Sereena Abotsway as someone she had seen together with Taylor, in approximately August of 2001, smoking crack cocaine in Pickton’s bedroom.  She testified the two were having a disagreement. 

...

325.     Houston testified about a conversation she had with Pickton on February 20, 2002.  She and Pickton were sitting in his vehicle outside her residence.  The police had, by this time, “taken over the farm”.  She knew that he was under investigation in connection with the missing women.  Houston attributed to Pickton the following statements made during the course of that conversation:

·        That suicide was “the only way out”.

326.     Pickton spoke to Houston about them both committing suicide before Friday of that week.  He said “the only way out” was a rope, a truck, or a train.  He was distraught and tearful as he said this.  He said he did not want to go to jail.  Houston testified that for some reason Pickton never gave, or that she could discern, he said that “it was all [her] fault” and that “it always came back to [her]”.  

·        That Mona was dead, that Pickton tried to do everything he could for her but that she did not make it and that Mona’s remains, along with the remains of others, were buried in the piggery.

327.     Houston testified that the discussion then turned to a telephone conversation they had in early December, 2001.  During that call, she heard Pickton apparently responding to a knock at the door by saying, “Come in.”  She described hearing “several voices” and the sound of a “skeduffle” or fight in the background.  She understood Pickton to be at home in his trailer at the time.  She heard Pickton say, “Stop that.”  The phone then went dead.  She did not know whether he hung up.  Her attempts to immediately call Pickton back were unsuccessful.  Houston reminded Pickton of this call and asked if what she had heard was someone getting hurt.  He replied that he “tried to do everything he could for her, but she didn’t make it”.  With reference to the fight, Houston asked Pickton if the woman was Mona.  Pickton replied, “yeah.”  No surname was used.  Pickton 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.

[31]         Evidence of Mr. Pickton’s inculpatory statements was admitted through the testimony of police officers who interviewed him, and through an officer who, following Mr. Pickton’s arrest, was placed in his cell as a “cell plant”. 

[32]         The respondent was interviewed on 23 February 2002 over a period of some 12 hours by a series of police officers.  At various points in the interview, as set out in the Agreed Statement of Facts, he said:

“You’re making me more of a mass killer than I am.”

“You want, you want me, you got me already.”

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

“I know.  I know that because the problem is this is way 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.”

[33]         In response to the suggestion that he did not do a good job of cleaning up the victims’ blood he said:

“That’s right, I was sloppy”…”That’s what I am, I’m sloppy.”

“But ah, no, no, that’s not.  I had one more planned but that was, 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.”

[34]         This is the slimmest sampling of statements in the interview from which the respondent’s responsibility for the planned and deliberate murders of the victims could be inferred.

[35]         The respondent also made a number of inculpatory statements to the cell plant officer.  As reproduced in the Agreed Statement of Facts, the exchanges included the following:

Robert PICKTON:       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.

Robert PICKTON:       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.)

Robert PICKTON:       Camera.

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

Robert PICKTON:       Um, hum. 

Robert PICKTON:       I, I fuckin buried myself now.

Cpl. X:                         Hey. 

Robert PICKTON:       I buried myself. 

Cpl. X:                         How?

Robert PICKTON:       Got me. They got me on this one.

Cpl. X:                         No, no shit.

Robert PICKTON:       (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.

Robert PICKTON:       Oh, really?

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

Robert PICKTON:       I did better than that.

Cpl. X:                         Who?

Robert PICKTON:       Me.

Cpl. X:                         No. Huh.

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

Robert PICKTON:       A rendering plant.

Cpl. X:                         Hey?

Robert PICKTON:       A rendering plant.

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

Robert PICKTON:       Mm, hmm.

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

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

Cpl. X:                         Really.

Robert PICKTON:       They got me, oh, fuck, gettin’ too sloppy.

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

Robert PICKTON:       (INDECIPHERABLE).

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

Cpl. X:                         (LAUGHING)

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

Cpl. X:                         Yeah. 

Robert PICKTON:       I wanted one more, make, make the big five O.

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

Robert PICKTON:       Mmm Hmm.

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

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

Cpl. X:                         (LAUGHING)

Robert PICKTON:       I wouldn’t tell ‘em.

Cpl. X:                         Yeah.

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

Cpl. X:                         (LAUGHING)

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

Cpl. X:                         Yeah.

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

Robert PICKTON:       Forty-nine.

Cpl. X:                         Almost made it.

Robert PICKTON:       Hum.

Cpl. X:                         Almost made it.

Robert PICKTON:       I’m worried about it.

Cpl. X:                         Hee hee.

Robert PICKTON:       All the way up to fifty.

Cpl. X:                         Hey?

Robert PICKTON:       I haven’t done fifty yet.

[36]         It was the Crown’s theory that when considered as a whole the evidence showed that the respondent had a particular modus operandi, or pattern of conduct.  That pattern was to lure these particularly vulnerable women, who worked on the streets and who were addicted to drugs, to his premises in Port Coquitlam.  He lured them by offering to buy their sexual services at a higher price than they would charge in downtown Vancouver, and by offering to give them drugs if they came to his residence.  He then transported them in his vehicle to his property, gave them drugs and engaged in sex.  In the course of the sexual activity, the respondent would restrain the women by the use of handcuffs or other restraints.

[37]         The Crown theorized that once the woman was restrained, the respondent would kill her, using the dildo revolver or by some other means, and that he would then take the victim’s body to his slaughterhouse to disembowel and butcher the body.  He would then dispose of the bodily remains over a period of time, feeding some of those remains to his pigs, freezing other parts for subsequent disposal, and delivering some remains to the rendering plant in Vancouver where he disposed of the waste product from his pig butchery.

III.

A.   A Crown Appeal

[38]         The Crown’s right of appeal is granted by s. 676(1)(a) of the Criminal Code which reads, in material part:

676(1)   The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal

(a)   against a judgment or verdict of acquittal…of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone;…

[39]         For the purposes of determining jurisdiction to hear an appeal, the Supreme Court of Canada has held that the application of a legal standard to the facts of a case is sufficient to raise a question of law, and it is of no import that it is not a question of law alone:  R. v. Biniaris, [2000] 1 S.C.R. 381, 143 C.C.C (3d) 1 at paras. 22-23; R. v. Grouse (2004), 189 C.C.C (3d) 357 (N.S. C.A.) at paras. 32-39.

[40]         As the court points out in Grouse, the standard of review or scope of appellate review is a different question from whether there is a question of law for the purposes of determining jurisdiction:  see Grouse at paras. 40-45.

[41]         The governing authority on standards of review is Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 211 D.L.R. (4th) 577.  On questions involving the application of a legal standard to a set of facts, the appellate court must be able to “extricate the legal questions from the factual” in order to find error of law (para. 36).  Extricable legal errors include the application of an incorrect standard, failure to consider a required element of a legal test, or similar error in principle (at para. 36).

[42]         On this appeal, counsel for the respondent, Mr. Pickton, does not assert that there is no question of law sufficient to ground jurisdiction under s. 676(1)(a)

[43]         The respondent’s position on this issue is that both severance of the six counts from the remaining 20, and exclusion of the extrinsic similar fact evidence, were discretionary decisions involving questions of mixed law and fact.  The respondent submits that there is no extricable error of law in any of these rulings, and that each of them involved an assessment or weighing of evidence.

[44]         Counsel for the respondent relies on R. v. Sherwood, [1980] B.C.J. 757 (B.C.C.A.), where the majority held that the ruling of the trial judge to exclude evidence tendered by the Crown as similar fact evidence was a discretionary decision on a question of mixed fact and law, and therefore not a question of law alone.

[45]         The Crown says Sherwood is not a decision on the issue of jurisdiction, and that if it is so interpreted, it has been overtaken by subsequent decisions of the Supreme Court of Canada such as Biniaris.  The Crown agrees that the Court may not take a different view than the trial judge did on a question of mixed law and fact, and that Sherwood is simply a case where the Crown did not allege, and failed to demonstrate, any error of law.

[46]         For the purposes of this appeal, I consider the burden on the Crown to be to show extricable legal error in the rulings appealed from, as described in Housen v. Nikolaisen.

IV.   The Ruling on Severance (2006 BCSC 1212, 9 August 2006)

A.   The Application

[47]         Counsel for the defence applied at trial pursuant to s. 591(3)(a) of the Criminal Code for an order severing counts 1, 2, 6, 7, 11 and 16 from the Indictment.  Section 591 reads in part:

591(2)   Where there is more than one count in an indictment each count may be treated as a separate indictment

(3)        The court may, where it is satisfied that the interests of justice so require, order

(a)   that the accused or defendant be tried separately on one or more of the counts;…[emphasis added]

[48]         The Crown opposed the defence application, submitting that the interests of justice required a single trial for all 26 counts.

[49]         The defence conceded that there was direct evidence that the victims in the six counts sought to be severed were dead.  Portions of their bodily remains were found on the respondent’s property.  Defence counsel submitted that the admitted deaths of the six women created a natural division between those six counts and the remaining 20 counts with respect to which the deaths of the victims remained in issue.

[50]         The submissions of defence counsel are summarized at paras. 3-11 of the trial judge’s reasons.  In essence, the defence application was based on two propositions.  The first was that a trial on the 26 count Indictment presented an unreasonable burden for the jury, and was simply unmanageable.  The second was that the admission of cross-count similar fact evidence on the 26 count Indictment would give rise to reasoning and moral prejudice that far outweighed its probative value.  The defence said the likely inadmissibility of cross-count similar fact evidence weighed heavily in favour of severance.  The defence also submitted that if severance were granted, evidence on the 20 severed counts ought not to be admitted as similar fact evidence on the trial of the remaining six counts.

[51]         Accordingly, the defence said the interests of justice required the proposed severance. 

[52]         The Crown maintained that all 26 counts should be tried together.  It proposed to apply at the conclusion of the evidence for a ruling that the jury consider the evidence on each count with respect to the other counts in order to conclude that: (1) each woman named on the Indictment is dead; (2) each woman named on the Indictment was not innocently associated to Mr. Pickton’s property but was murdered; (3) that one individual was the perpetrator of their murders; and (4) that the perpetrator was Mr. Pickton.

[53]         As to the admissibility of the cross-count similar fact evidence, the Crown relied on the analyses in R. v. Arp, [1998] 3 S.C.R. 339, and R. v. Handy, [2002] 2 S.C.R. 908, 164 C.C.C (3d) 481.

[54]         The Crown said there was limited moral prejudice, because all 26 counts were for first degree murder. It submitted that there was no reasoning prejudice .

[55]         The Crown also said that if the severance application were granted, it intended to lead the evidence of the six severed counts as similar fact evidence at a subsequent trial of the remaining 20 counts.  It contended that there was, overall, no gain in manageability, and that this weighed against a severance order.

B.   The Trial Judge’s Reasons On Severance

[56]         The learned trial judge considered the relevant authorities, the magnitude of the proceedings and the cross-count similar fact issue.  With respect to the manageability of the trial he concluded:

[39]      In summary, I believe that a trial on the present Indictment, with all the difficulties and challenges that it will necessarily entail, will impose a burden upon the members of the jury that is simply more than they should reasonably be expected to handle.  In the interests of managing this trial so that it has the greatest prospects of concluding successfully, surely a notion consonant with the interests of justice, it is my considered view that severance of the Indictment is appropriate in light of my comments regarding similar fact evidence below.

[57]         With respect to the admissibility of cross-count similar fact evidence, the trial judge posed the question in this way:

[46]      Mr. Pickton proposes severing the Indictment and proceeding to trial on the Six Counts for which the death of the victim is not in issue.  Whether the evidence on the 20 remaining counts would be admissible as similar fact evidence on an abbreviated six count Indictment therefore needs to be considered, at least in a provisional way.  In my view, the difference between Six Counts and the 20 counts in terms of the evidence of death also bears significantly on the issue of whether the evidence on each of the 26 counts would be admissible on each of the others in a wholesale or at large fashion.  It is the Crown’s position that it would be and that is a critical component of its argument opposing severance.  For ease of analysis, I intend to approach the similar fact issue by considering whether evidence on the 20 counts could be admitted as similar fact evidence with respect to the Six Counts.  [emphasis added]

[58]         The judge answered that question in this way:

[48]      Returning to the present case, the Crown, as noted, contends for the admissibility of the similar fact evidence in order that the trier of fact may conclude that each of the women on the Indictment is dead, was murdered, that one individual was responsible for their murders, and that that Individual is Mr. Pickton.  For the purposes of the present application, I will proceed on the basis that those are appropriately articulated issues.  Despite the similarities that exist between the evidence on the 20 counts and that on the Six – including the shared personal profile of the named women, the fact that each is missing and the fact that remains or traces of each have been discovered inside or within a 100 metre radius of Mr. Pickton’s residential trailer – I do not consider the evidence on the 20 counts to be particularly cogent in relation to those issues with respect to the Six Counts.

[49]      The evidence on the 20 counts does nothing to advance the issues of whether the six women are dead and were murdered.  Indeed, the remains of those six women are themselves the best available evidence of those propositions, in addition to statements of Mr. Pickton and other evidence which is not under consideration here.  Thus, neither of these issues warrants the admission of similar fact evidence from the 20 counts with respect to the Six.

[50]      Turning to the issue of identification, the most relevant and specific evidence that Mr. Pickton is responsible for the deaths of the six women is found in his statements to the police and to certain civilian witnesses.  The condition of the remains of the six women is also likely to be relevant.  However, I cannot see how the evidence with respect to the discovery of DNA and personal items linked to the other 20 women, considered globally, materially assists in proving that Mr. Pickton is responsible for the deaths of the six women (or, for that matter, that one individual is responsible for each of the deaths).  It is some evidence that could permit the inference that the disappearances of 26 women have a connection to his property.  That certainly supports the view that he likely has some connection with the events, but it seems to me to be no more specific than that.  Accordingly, I conclude that the evidence of the 20 severed counts, taken globally, would be only minimally probative of the issue of identification.  There may be particular dimensions to the evidence on some of the 20 counts that would advance the issue, but that would be better considered on a specific application where the merits could be considered.

[59]         He continued:

[54]      …To explain, while I have concluded that the evidence of the 20 counts would most likely be inadmissible as similar fact evidence in support of the charges on a six count indictment, that does not mean that the opposite is also true.  An application to lead evidence relating to the six counts to prove some or all of the allegations on the 20 count Indictment would be assessed on its own merits.  While it is not for me to determine that in the present context, I expect that quite a different case with quite different considerations would be available.  My provisional conclusion with respect to the admissibility of the evidence from the 20 counts on the six count indictment would not be determinative of that other application at all, and a different outcome might well ensue.

[55]      To return to the matter at hand, namely, whether the severance application is assisted or hampered by a consideration of the similar fact issue, it is my conclusion that it is unlikely that there could be a successful application to adduce evidence of the 20 counts as similar fact in support of the Six Counts, and so this particular aspect of the analysis militates in favour of Mr. Pickton’s application for severance.

[60]         The judge concluded:

[63]      I am satisfied that the interests of justice require severance of counts from the present Indictment.  This conclusion is based upon a number of considerations, predominant among them, my concern that proceeding to trial on the Indictment as it is presently constituted will impose an unreasonable burden upon the members of the jury in terms of the anticipated duration of the trial, the volume and nature of the evidence, and the complexity of the legal tasks that this case will require of them.  More than any other, the fact that this matter is to be tried by a judge and jury has informed my analysis and governed this outcome.  I recognize that some inconveniences will result from this order.  However, the proper exercise of my discretion to maximize the likelihood that this trial will proceed properly to verdict without mistrial makes necessary an order for severance.

[64]      Accordingly, I order that all counts other than Counts 1, 2, 6, 7, 11 and 16 be severed from the Indictment.  The evidence in support of those counts is materially different than that with respect to the others such that it justifies this outcome.  One trial will proceed on those six counts; the balance will be tried separately.

C.   The Crown’s Position On Appeal

[61]         The Crown says that the learned trial judge erred in law in his consideration of the probative value of the cross-count similar fact evidence.  Specifically, the Crown asserts that the trial judge did not consider or apply all of the factors outlined in R. v. Handy, [2002] 2 S.C.R. 908, 164 C.C.C (3d) 481, when deciding on whether the cross-count similar fact evidence would likely be admissible.

[62]         The Crown’s position is that the severance of the six counts from the other 20 counts was made on an arbitrary basis unrelated to the probative value of the cross-count similar fact evidence.  The defendant’s application was premised on its concession that the death of the six victims could not be contested, because there was evidence of their body parts having been found.

[63]         The Crown says that the weight of the evidence available to establish death on any one count is irrelevant to any proper determination of the probative value of the similar fact evidence. 

[64]         The Crown maintains that the trial judge’s acceptance of this arbitrary division skewed his analysis of the similar fact evidence’s admissibility.  The division of the counts into the two groups did not justify the conclusion that there was no nexus, or an insufficient nexus, between them.

[65]         So the Crown says failure to assess the probative value of the cross-count similar fact evidence was an error of principle justifying appellate intervention.

[66]         The Crown also submits that the trial judge erred in principle in his analysis of the prejudice to the Crown that would result from severance of the counts and exclusion of the cross-count similar fact evidence.  The Crown says that the full import of its case for first degree murder against the respondent on each count and his modus operandi could only be appreciated by considering the evidence on all 26 counts together.  By approaching the analysis as he did, the trial judge considered only the probative value of the evidence on the 20 counts to the trial of the six counts.  He did not properly consider the converse, namely the probative value of evidence on the six counts to the trial of the remaining 20.  (See paras. 54 & 55 of his reasons quoted above.)

[67]         The Crown submits that the severance order caused serious prejudice to its ability to prove planning and deliberation.  It says the severance caused further prejudice to the Crown, not considered by the trial judge, because it excluded evidence that would have provided important corroboration for the evidence of Andrew Bellwood and Lynn Ellingsen, whose credibility was impugned by the defence, and whose testimony was the subject of the Vetrovec warning.  (The Vetrovec warning is the subject of another of the Crown’s grounds of appeal.)

[68]         The Crown submits that the manageability aspect of the severance application was not the decisive factor in the judge’s ruling.  Moreover, the trial judge’s consideration of manageability failed to take into account the fact that at a subsequent trial of the 20 counts, the evidence on all 26 counts would again likely be put before a jury.

[69]         The Crown says the trial judge’s error in assessing the probative value of the cross-count similar fact evidence, and his further error in assessing the potential prejudice to the Crown as a result of severance, resulted in a decision that was far from reflecting “the interests of justice”.  Indeed, the Crown advances as an alternate ground the submission that the severance order was so plainly wrong as to be unreasonable, and is reversible on that basis as well.

D.   The Respondent’s Position On Appeal

[70]         Counsel for the respondent submits that the Crown has failed to raise any question of law alone in the trial judge’s ruling on severance.  He says the ruling is a discretionary one entitled to substantial deference on appellate review.  He says the real foundation for the ruling, on any fair reading of the judge’s reasons, was trial manageability.  He submits that any error with respect to evaluating the probative value of the similar fact evidence, which is not conceded, is inconsequential when weighed against the overriding concerns as to how a fair trial on 26 counts could be managed.

[71]         Counsel says it would be wrong for this Court to reweigh and rebalance the factors the judge weighed in exercising his discretion.  He says the separation of the six counts from the other 20 was not arbitrary but was a common-sense decision based on a correct legal analysis and appreciation of the Handy factors.

[72]         Counsel also submits that the Crown has raised a new argument on this appeal that was never presented to the trial judge, namely, the Crown’s emphasis in this Court on the importance of the cross-count similar fact evidence on the issue of planning and deliberation.  Counsel says the Crown should not be heard to rely on planning and deliberation as a Handy issue to support the admissibility of cross-count similar fact evidence when it did not take that position at trial.

[73]         Counsel says it is evident from the record, and the reasons, that the Crown relied on the similar fact evidence to prove only the death by murder of each victim and that the one person responsible for their deaths was Mr. Pickton.

E.   The Crown’s Reply

[74]         To this latter submission the Crown responds that planning and deliberation was an issue throughout the trial.  It was the basis of the Crown’s case for first degree murder.  It was understood by the parties and the trial judge from the outset that proof of planning and deliberation was one of the purposes for which the similar fact evidence was tendered.

F.   Analysis

[75]         The first question to be answered here is whether the Crown met the burden of demonstrating that similar fact evidence, count to count, should be admitted (Arp, para. 52).  Similar fact evidence is admissible as an exception to the general rule that evidence of propensity or disposition is not admissible (see the cases cited at para. 36 of Handy). 

[76]         Similar fact evidence is admissible because “it would be an affront to common sense to suggest that the similarities were due to coincidence” (per Sopinka J. in R v. B. (C.R.), [1990] 1 S.C.R. 717 at para. 72).  As rephrased in Arp, similar fact evidence is admitted “on the basis of an objective improbability of coincidence” (Arp at para. 44).

[77]         The probative value of the similar fact evidence must significantly outweigh its prejudicial effect.  When tendered to prove identity the test for similarity is at its highest.  In Arp, Mr. Justice Cory said:

45        Instead, a principled approach to the admission of similar fact evidence will in all cases rest on the finding that the accused’s involvement in the alleged similar acts or counts is unlikely to be the product of coincidence.  This conclusion ensures that the evidence has sufficient probative force to be admitted, and will involve different considerations in different contexts.  Where, as here, similar fact evidence is adduced on the issue of identity, there must be a high degree of similarity between the acts for the evidence to be admitted.  For example, a unique trademark or signature will automatically render the alleged acts “strikingly similar” and therefore highly probative and admissible.  In the same way, a number of significant similarities, taken together, may be such that by their cumulative effect, they warrant admission of the evidence.  Where identity is at issue ordinarily, the trial judge should review the manner in which the similar acts were committed – that is to say, whether the similar acts involve a unique trademark or reveal a number of significant similarities.  This review will enable him or her to decide whether the alleged similar acts were all committed by the same person.  This preliminary determination establishes the objective improbability that the accused’s involvement in the alleged acts is the product of coincidence and thereby gives the evidence the requisite probative force.  Thus, where the similar fact evidence is adduced to prove identity, once this preliminary determination is made, the evidence related to the similar act (or count, in a multi-count indictment) may be admitted to prove the commission of another act (or count).

[78]         In R. v. Handy, Mr. Justice Binnie makes the point that probative value cannot be assessed in the abstract (para. 73).  The Crown must identify the issue(s) to which the similar fact evidence is said to relate (para. 74).  The degree of similarity required depends upon the issue in the particular case (para. 78).

[79]         Binnie J. set out a list of factors that might serve to connect the similar fact evidence to the circumstances alleged in the charge at para. 82:

82        The trial judge was called on to consider the cogency of the proffered similar fact evidence in relation to the inferences sought to be drawn, as well as the strength of the proof of the similar facts themselves.  Factors connecting the similar facts to the circumstances set out in the charge include:

(1)   proximity in time of the similar acts: D. (L.E.), supra [R. v. D. (L.E.), [1989] 2 S.C.R. 111], at p. 125; R.v.Simpson (1977), 35 C.C.C. (2d) 337 (Ont. C.A.), at p. 345; R. v. Huot (1993), 16 O.R. (3d) 214 (C.A.), at p. 220;

(2)   extent to which the other acts are similar in detail to the charged conduct: Huot, supra, at p. 218; R. v. Rulli (1999), 134 C.C.C. (3d) 465 (Ont. C.A.), at p. 471; C. (M.H.), supra [R. v. C. (M.H.), [1991] 1 S.C.R. 763], at p. 772;

(3)   number of occurrences of the similar acts:  Batte, supra [R. v. Batte (2000), 34 C.R. (5th) 197 (Ont. C.A.)], at pp. 227-28;

(4)   circumstances surrounding or relating to the similar acts (Litchfield, supra [R. v. Litchfield, [1993] 4 S.C.R. 333], at p. 358);

(5)   any distinctive feature(s) unifying the incidents:  Arp, supra, at paras. 43-45; R. v. Fleming (1999), 171 Nfld. & P.E.I.R. 183 (Nfld. C.A.), at paras. 104-5; Rulli, supra, at p. 472;

(6)   intervening events:  R. v. Dupras, [2000] B.C.J. No. 1513 (QL) (S.C.), at para. 12;

(7)   any other factor which would tend to support or rebut the underlying unity of the similar acts.

[80]         Binnie J. said this about similar fact evidence tendered to establish identity by showing a “modus operandi”:

[90]      …Similar fact evidence is sometimes said to demonstrate a “system” or “modus operandi”, but in essence the idea of “modus operandi” or “system” is simply the observed pattern of propensity operating in a closely defined and circumscribed context. 

[91]      References to “calling cards” or “signatures” or “hallmarks” or “fingerprints” similarly describe propensity at the admissible end of the spectrum precisely because the pattern of circumstances in which an accused is disposed to act in a certain way are so clearly linked to the offence charged that the possibility of mere coincidence, or mistaken identity or a mistake in the character of the act, is so slight as to justify consideration of the similar fact evidence by the trier of fact.  The issue at that stage is no longer “pure” propensity or “general disposition” but repeated conduct in a particular and highly specific type of situation.  At that point, the evidence of similar facts provides a compelling inference that may fill a remaining gap in the jigsaw puzzle of proof, depending on the view ultimately taken (in this case) by the jury.

[81]         When the trial judge came to consider the probative value of the cross-count similar fact evidence in this case he asked (at para. 46) “whether evidence on the 20 counts could be admitted as similar fact evidence with respect to the six counts”.  He considered the probative value of the similar fact evidence in terms of whether it would tend to prove the death or murder of any of the six victims for whom death was already conceded, and whether it would tend to prove that one individual, specifically Mr. Pickton, was responsible for the death of the six.  On the first two issues, the trial judge held the similar fact evidence added nothing (para. 49).  With respect to the respondent’s identity as the perpetrator he said the similar fact evidence was of “minimal” or “modest” value (paras. 50-51).

[82]         By focusing his attention on these issues in isolation, it appears to me that the learned trial judge lost sight of the global impact of the evidence on all 26 counts, and of its probative value to show a modus operandi, which underpinned the Crown’s case of planned and deliberate murder.

[83]         Viewed globally, the connecting factors identified in Handy that are present in the circumstances of this case appear to render the respondent’s involvement in the deaths of all 26 victims as most unlikely to be the product of coincidence.  The bodily remains, or other material yielding DNA identification, of all 26 victims were found on the respondent’s property, either in his residence, his slaughterhouse, or on the surrounding grounds.  All 26 victims were “missing women” who disappeared from Vancouver between December 1995 and December 2001.  All 26 missing women were vulnerable drug-addicted sex trade workers.  The respondent was known to employ the services of such people.  The respondent had the tools and ability to dismember and dispose of their remains.  The proximity and time of the 26 women’s disappearances, the number of their disappearances, the location of remains or traces of DNA on the respondent’s property, together with personal possessions belonging to some of them, in one place many miles from the victims’ places of work and residence, all point in the direction of the respondent as the perpetrator and away from the possibility of coincidence or other innocent explanation.

[84]         In my respectful opinion, the learned trial judge was led away from a correct analysis on the probative value of the cross-count similar fact evidence by his acceptance of the defence admission that death could be proven in respect of the six.  Death of the victim was an issue on all 26 counts.  The evidence available to prove death, or to support the inference of death, would no doubt vary from count to count.  That the inference of death was perhaps stronger in the case of the six led to the defence admission of death on those six counts.

[85]         In asking whether the evidence on the 20 counts could be admitted as similar fact evidence with respect to the six counts, the learned trial judge posed the wrong question and, as a result, reached the wrong conclusion.  The correct question was whether the evidence in respect of each of the 26 counts was sufficiently similar to the evidence in respect of the other counts that the perpetrator of one was probably the perpetrator of one or more of the others.  If the judge had asked that question he could only have concluded that the evidence on all 26 counts was admissible on each of the other counts as showing a modus operandi pointing in the direction of the respondent as the perpetrator.  Coincidence as an explanation is highly improbable.

[86]         With respect, the trial judge’s erroneous analysis of the probative value also resulted in a misapprehension of the prejudice to the Crown’s case in excluding the cross-count similar fact evidence.  Some of the evidence on the 20 severed counts would have tended to confirm the evidence of Bellwood and Ellingsen.  Bellwood testified that Mr. Pickton told him he used handcuffs to restrain a victim prior to killing her.  The DNA of one of the 20 victims was identified on the handcuffs found in the headboard of the respondent’s bed.  There was also evidence in respect of one of the severed counts that would have corroborated the evidence of Lynn Ellingsen that she saw the respondent in the act of butchering a woman.

[87]         Because the cross-count similar fact evidence was excluded, the defence was able to attack the credibility of Bellwood and Ellingsen as unconfirmed, when in fact there was other forensic evidence that supported their testimony. 

[88]         The trial judge’s approach to the similar fact evidence also led him to misapprehend the issue of trial manageability.  To repeat, at para. 54 he said:

[54]      …To explain, while I have concluded that the evidence of the 20 counts would most likely be inadmissible as similar fact evidence in support of the charges on a six count indictment, that does not mean that the opposite is also true.  An application to lead evidence relating to the six counts to prove some or all of the allegations on the 20 count indictment would be assessed on its own merits.  While it is not for me to determine that in the present context, I expect that quite a different case with quite different considerations would be available.  My provisional conclusion with respect to the admissibility of the evidence from the 20 counts on the six count indictment would not be determinative of that other application at all, and a different outcome might ensue.

[89]         It was in fact a most relevant consideration for the purposes of severance as to whether evidence relating to the six counts could be led to prove some or all of the allegations on the other 20 counts.  The fact that body parts of six dead downtown eastside sex trade workers were found on the respondent’s property might well support an inference that the other 20 downtown eastside sex trade workers whose DNA or personal belongings were found on his property were also dead, and murdered at his hand.

[90]         The trial judge’s approach to this aspect of the case simply deferred the problem of trial manageability from the case he was to try to a future trial on the remaining 20 counts.

[91]         A trial on all 26 counts, with admissibility of cross-count similar fact evidence, would have caused prejudice to the respondent.  He would have had a more difficult case to answer.  But I do not think it would have given rise to either unfair reasoning prejudice or moral prejudice.

[92]         This is not a case like R. v. Thomas (2004), 190 C.C.C (3d) 31 (Ont. C.A.), where the offences alleged in respect of four complainants were much more serious than those in respect of ten other complainants.  Here, all 26 counts were of equal gravity.

[93]         I come finally to the respondent’s contention that the Crown has taken a position on appeal that it did not take at trial, namely that the cross-count similar fact evidence was admissible to prove planning and deliberation, in addition to the identity of the appellant as the perpetrator.  With respect, I do not consider the respondent’s position to be tenable.

[94]         From the early stages of this trial, it was apparent that the Crown’s case for first degree murder was based on an allegation that each of the 26 killings was planned and deliberate.  It appears that the Crown focused on the admissibility of the similar fact evidence for the purposes of proving the identity of the perpetrator.  Its theory was that the perpetrator’s modus operandi pointed clearly in the direction of the respondent.  The same evidence was equally probative on the issue of planning and deliberation.  Indeed, inherent in the allegation that one person killed 26 persons all having the same personal profile is the idea that the perpetrator must have planned and deliberated on the death of each.  It simply defies common sense to suggest that any of 26 killings carried out by the modus operandi alleged could have been the result of anything other than planning and deliberation.

[95]         I do not accept the respondent’s submission that the Crown has advanced a new position on appeal that was not taken at trial.  It is clear that if the cross-count similar fact evidence had been admitted to establish the respondent’s modus operandi and thereby to prove his identity as the perpetrator of all 26 killings, the same evidence would also have been admissible to prove planning and deliberation on his part.

[96]         In my respectful opinion, the learned trial judge erred in law in his assessment of the probative value of the cross-count similar fact evidence by failing to apply the standard for its admissibility as described in Arp and Handy.  That legal error is capable of separation from the factual considerations that informed the trial judge’s decision to sever the six counts from the 20.

[97]         I would allow the Crown’s appeal on this ground alone.

V.   The Extrinsic Similar Fact Evidence

A.   PERSON X

[98]         The Crown says the learned trial judge erred in law in refusing to admit as similar fact evidence the viva voce testimony of Person X  The judge’s ruling on this issue, 2006 BCSC 1447, was pronounced on the same day that he ruled admissible as similar fact evidence the evidence of Lynn Ellingsen, 2006 BCSC 1448.  Ms. Ellingsen’s testimony is summarized above at para. 29 of these Reasons.

[99]         The Crown tendered Person X’s evidence to prove:

a.         identity of the individual responsible for the murders of the six women named in the Indictment;

b.         corroboration of Mr. Pickton’s statement to Mr. Bellwood;

c.         the isolated nature of Mr. Pickton’s property and the proposition that violence could occur there without detection or interference by others; and

d.         whether the deaths of the six women occurred at the location where their remains were discovered.

[100]     Person X had testified at the preliminary inquiry on 14 April 2003, and she had given a number of statements to the police over the years.

[101]     The learned trial judge summarized the evidence the Crown expected Person X to give if permitted to testify:

[10]      Late in the evening on March 22, 1997, [Person X] was standing on the corner of Princess and Cordova in the Downtown East Side of Vancouver when she was approached by Mr. Pickton, driving a red pick-up truck. He inquired how much a blow job would cost, and when she replied “$40”, he, in effect, offered her $100 and suggested that she come to his place in Port Coquitlam.  [Person X] indicated that was too far and suggested a place that was closer.  Mr. Pickton maintained that she should come to his place and told her he would have her back downtown by 1:00 a.m.  [Person X] agreed, and they drove out to Port Coquitlam.  En route, [Person X] asked Mr. Pickton to stop at a gas station so that she could use the restroom but he refused.

[11]      Shortly after they arrived at Mr. Pickton’s residential trailer, the two went to a back room where there was a sleeping bag on the floor.  Mr. Pickton paid [Person X] $100.  She performed oral sex on him, followed by intercourse in the missionary position.  The sexual transaction did not involve violence.

[12]      To this point, there is little dispute about the facts.  However, Mr. Pickton challenges [Person X’s] account of what happened next.

[13]      [Person X] testified and has told the police that she then went into the bathroom where she injected a “speedball”, a mix of heroin and cocaine.  She says that she missed her vein and, as a result, did not get high off of the fix.  [Person X] was cross-examined extensively about why she did not shoot up again given that she had more drugs in her possession at the time.  Her general response was to the effect that she could not afford to: the drugs were to sell and she needed the money she had received from Mr. Pickton to cover her loss at a casino earlier that evening.

[14]      [Person X] testified that when she came out of the bathroom, she asked Mr. Pickton for a telephone book.  As she leaned over the desk to look up a telephone number, she felt Mr. Pickton come up behind her.  He took her left hand and caressed it before placing a handcuff on her left wrist.  [Person X] started to fight Mr. Pickton, hitting him with any object she could get her hands on.  She recalled having seen a large knife on his kitchen table and backed towards it while continuing to fight him.  [Person X] was able to grab the knife from the table and used it to slash Mr. Pickton across his jugular vein.  They continued fighting and at some point [Person X] says she blacked out.  When she came to, they were outside the trailer standing beside his truck.  She was bent over and Mr. Pickton was over top of her, holding her.  [Person X] had the knife in her right hand and begged Mr. Pickton to let her go.  She felt his weight coming down on her and believed him to be losing consciousness.  She slid out from under him and staggered down the driveway.

[15]      [Person X] noticed two houses across the street.  She went to one of the houses and when no one responded to her knocking, she attempted to gain entry by breaking a window.  At that point, she saw a car with two occupants pass by and she called out for help.  The vehicle stopped and picked her up.  An ambulance subsequently arrived to transport her to hospital.

[16]      [Person X] suffered stab wounds to her abdomen and left side, as well as a knife wound to her left hand.  Mr. Pickton also sustained serious injuries in the altercation.

[102]     Person X had an extensive history of drug use, erratic behaviour and criminal convictions.  The judge held there was no air of reality to the suggestion that her evidence was the product of collusion with, or tainting by, Andrew Bellwood (paras. 62-65) and he held that, despite the questions that could be raised as to her credibility, her evidence passed the threshold of being reasonably capable of belief (paras. 66-67).

[103]     The trial judge held, however, that Person X’s evidence did not demonstrate sufficient similarity to the facts alleged in the six counts remaining on the Indictment to meet the first stage of the test in R. v. Arp (Reasons at para. 71).  After comparing Person X’s anticipated evidence with the known circumstances of the charged offences (paras. 73-78) the judge said:

[79]      I find that there is simply not anywhere near the required degree of similarity to permit the conclusion that it is likely that the same individual committed both the 1997 incident and the murders of the six women.  The comparison process is hampered by the fact that little is actually known of the events which resulted in the death and dismemberment of the six women.  It is known that three of them were shot in the head with a firearm.  Of course, there is no firearm known to have been used in the attack upon [Person X].  To the extent that one might be tempted to graft details from Mr. Bellwood’s evidence onto what is known about the six women, that would not be appropriate.  Mr. Pickton’s statement to Mr. Bellwood is general and does not identify specific individuals.  Thus, it could not be safely concluded that he was referring to any or all of the six women whose deaths are in issue.  While it might be the case that his statement referred to those women, that cannot be stated with any degree of certainty.  To engage in the comparative analysis on the basis of speculated conduct is inconsistent with the strict approach required when considering the admissibility of similar fact evidence.

[104]     The Crown contends that the trial judge’s approach to the admissibility of this evidence was wrong in law in three respects.  First, it says the trial judge focused on the specific similarities, or dissimilarities, between Person X’s evidence and the charged conduct, without considering the contextual evidence which tended to show the unity of the Person X events and the offences charged.  It says the approach amounted to the “microscopic” analysis warned against in R. v. Shearing, [2002] 3 S.C.R. 33, 165 C.C.C. (3d) 225 (see paras. 88-90).

[105]     Second, the Crown says the trial judge erred in failing to consider Person X’s evidence together with the extrinsic similar fact evidence of Ellingsen.  The Crown asserts that the evidence of those two witnesses, together with Bellwood’s evidence, described a pattern of conduct that was virtually identical.

[106]     Third, the Crown says the trial judge erred in failing to appreciate that the incomplete act involving Person X could be admitted as similar fact evidence to explain the pattern, or part of the pattern of conduct, that formed the basis of the Crown’s theory.

[107]     Finally, the Crown says the admission of Person X’s evidence would not have caused significant prejudice to Mr. Pickton (as compared, for example, with the graphic evidence of Ellingsen), that its exclusion caused significant prejudice to the Crown because it removed important confirmatory evidence for Bellwood’s testimony, and that as a result there was a complete misweighing of the probative value of Person X’s evidence against its prejudicial effect.

[108]     Counsel for the respondent says that none of these arguments raise a question of law for this Court to consider.  He says all aspects of the Crown’s submission on this issue are questions of fact involving the interpretation of evidence, the weight to be given to the evidence, inferences to be drawn from the evidence, and whether the evidence satisfied an evidentiary threshold.  Counsel says the trial judge did consider Mr. Bellwood’s evidence, and was not asked to consider Lynn Ellingsen’s evidence in this context.

[109]     Finally, the respondent says the trial judge did not say that an incomplete act was incapable of having probative value on a similar fact evidence application.  Rather he said only that the event described by Person X did not have sufficient probative value to outweigh its prejudicial effect.

[110]     As with the severance issue, the Crown bears the burden of showing there to be an extricable error of law in the trial judge’s ruling to exclude Person X’s evidence.  Specifically, the question may be phrased as whether the trial judge erred in applying the legal principles described in Arp and Handy (see paras. 78-81 above).

[111]     The trial judge’s conclusion that there was insufficient similarity between the Person X incident “and the murders of the six women” was based on his comparison of her evidence to “the little that is actually known” of the events leading up to the death and dismemberment of the six women.

[112]     Similarity in the detail of the similar fact evidence to the charged conduct is only one of the factors (the second) identified in Handy as relevant to a consideration of whether the similar fact evidence shows the high degree of similarity required to meet the test for admissibility.

[113]     Other facts in the Handy analysis do not appear to have been considered by the trial judge.  The Person X event was proximate in time to the charged conduct.  The events described by Person X occurred in March 1997.  One of the charged counts related to a person (Ms. Frey) who disappeared in August 1997. (Of course, if the trial judge had not severed 20 counts from the six that were tried, there were a further five counts based on the disappearance of women in 1997).

[114]     Other factors add to the connection between the Person X event and the six counts charged.  The victims named in those counts matched very closely the personal profile of Person X: Person X was a drug-addicted downtown eastside sex trade worker.  She was persuaded to go with Mr. Pickton to his residence by his promise of increased payment for her services.  The place to which Mr. Pickton took her was the very place where the bodily remains and personal effects of the six victims on the charged counts were found. 

[115]     When these other factors of the Handy analysis are considered in relation to Person X’s evidence, there is a much higher degree of similarity than appears from the trial judge’s comparison of the “known details”.

[116]     The trial judge gave no weight to the evidence of Bellwood in considering the admissibility of Person X’s evidence because “it could not be safely concluded that he was referring to any or all of the six women whose deaths are in issue”.  With respect, this analysis appears to me to in error in two respects.  First, the statement is inconsistent with the trial judge’s admission of Bellwood’s evidence.  His testimony (see para. 30 above) recounted his conversation with Mr. Pickton in which Mr. Pickton described his modus operandi, but did not identify any one woman as the victim of his methods.  Admission of Person X’s evidence would have provided important corroboration for Bellwood’s testimony.

[117]     Second, the analysis in Handy requires the trial judge to consider “(4) circumstances surrounding or relating to the similar acts”, and “(7) any other factor which would tend to support or rebut the underlying unity of the similar acts”.  When Person X’s evidence is considered in the context of Mr. Pickton’s admission to Bellwood and the evidence of Ellingsen, the likelihood that the similarity of her encounter with Mr. Pickton to the deaths of the six victims was mere coincidence, and of the remains and belongings of the six victims being coincidentally found at or near Mr. Pickton’s residence, seems highly improbable.

[118]     It does not appear from the record that the trial judge was asked to consider Ellingsen’s evidence in relation to the admissibility of Person X’s evidence.  However, the nature of Ellingsen’s evidence must surely have been fresh in the trial judge’s mind.  He pronounced reasons on the admissibility of Ellingsen’s evidence on 29 September 2006, the same day he ruled to exclude Person X’s evidence.  The evidence of Ellingsen and Person X, together with Bellwood’s evidence, describes a pattern of conduct that is almost identical.

[119]     In his ruling to exclude Person X’s evidence the trial judge said:

[90]      In describing the similarities and the differences between the two accounts, I have examined the events in very careful detail.  I recognize that as Binnie J. cautioned in R. v. Shearing, supra, care must be taken not to compare events at too microscopic a level.  In this case, I have referred to details but I have not relied upon the fineness of the distinction to base my conclusion.  The real issue here, as I have already observed, is the fact that the altercation between Mr. Pickton and [Person X] effectively prevented the pattern, if there was to be one, from proceeding in a way that relevant similarities would have developed.  [emphasis added]

[120]     By this last sentence, I understand the trial judge to mean that the only important similarities that would have shown a pattern of conduct connecting the Person X event to the six counts would have been the restraining of Person X by handcuffs, her killing either by gunshot or otherwise, and the subsequent disembowelling, dismemberment and disposal of her bodily remains.

[121]     It is true that the evidence of Person X only went to prove the first part of the pattern of conduct alleged by the Crown.  However, similar fact evidence is admissible even though it may fall short of showing the whole pattern, or a completed act:  see R. v. Thomas (2004), 190 C.C.C. (3d) 31 at paras. 29-30.

[122]     In my respectful view, the learned trial judge erred by failing to consider all of the factors necessary to a correct ruling on the admissibility of Person X’s evidence as similar fact evidence on the issue for which it was tendered.

[123]     The trial judge held that the admission of Person X’s evidence would likely cause significant prejudice to the defence.  He held its admission would invite the jury to speculate, would consume excessive time and would confuse and distract the jury (para. 105).  He also held it would cause moral prejudice to Mr. Pickton since it engages “a sense of bad personhood”.

[124]     The trial judge’s concern appears to have been that admission of Person X’s evidence would have led the jury to speculate that Mr. Pickton intended to restrain and kill her, and that but for her successful resistance, he would have.

[125]     The evidence was not tendered for that purpose.  The evidence was offered primarily as proof that the person who invited this downtown eastside drug-addicted sex trade worker, Person X, to his property for sex, was the same person who was responsible for the murders of the six victims on the Indictment, as well as for the other purposes identified by the Crown (see para. 100 above).  An instruction to the jury concerning the difference between an inference and speculation could have adequately guarded against the risk the judge was concerned with.

[126]     I see little merit to the argument that Person X’s evidence would have led the jury to believe that Mr. Pickton was a bad person.  Person X’s evidence is much less graphic and inflammatory than Ellingsen’s description of a woman being disembowelled by Mr. Pickton, or the other evidence which was to be led concerning the dismemberment of the six victims.  Any prejudice arising from Person X’s evidence ought also to have been considered in the context of Mr. Pickton’s admissions to Bellwood and to the cell plant officer.  Viewed in this light, the potential prejudicial effect of Person X’s evidence to the defence was relatively slight.

[127]     In my respectful opinion, the learned trial judge also erred in failing to consider the prejudice to the Crown’s case which the exclusion of Person X’s evidence would cause.  Person X’s evidence provided important corroboration for Bellwood’s testimony.  The absence of corroboration left Bellwood’s evidence open to attack by the defence as being unsupported by any other evidence.  This became an important aspect of the defence submissions, and led to the trial judge’s Vetrovec instruction to the jury concerning both Bellwood’s and Ellingsen’s testimony.  Because this aspect of prejudice to the Crown’s case was not considered, a correct balancing of probative force against prejudicial effect of Ellingsen’s testimony was not possible.

[128]     In my opinion, the trial judge’s exclusion of Person X’s evidence was based on extricable error of law.  He failed to consider all relevant factors in assessing the similarity of that evidence to the charged conduct, incorrectly evaluated the probative force of that evidence, and failed to consider the prejudicial effect that either admission or exclusion of the evidence would have.

B.   Jane Doe’s Bones

[129]     Tendered by the Crown as similar fact evidence was evidence relating to an unidentified woman referred to at trial as “Jane Doe”.  The evidence consisted of bones found in two different locations.  One half of a skeletonized human skull with an attached half-vertebra was found near Mission, B.C. in February 1995.  During the search of Mr. Pickton’s property in October 2005, investigators found a left heel bone and a left rib.  The DNA profile of the heel and rib bones matched the DNA profile obtained from the partial skull.

[130]     On its application to have this evidence admitted to prove the identity of the person responsible for the murder of the six victims on the counts tried, the Crown relied on expert evidence concerning the sagittal sectioning of the skull, and evidence of tool mark damage on the skull as similar to evidence relating to three of the victims on the counts to be tried.  The Crown also relied on statements made by Gina Houston, a friend of Mr. Pickton’s, to the effect that he made periodic visits to the Mission area every four to six weeks where he went to “dump” things.

[131]     In his original ruling on this issue, 2006 BCSC 1447, pronounced 3 October 2006, the judge held this proffered evidence met the test for admissibility under Arp and Handy because there was marked similarity between the Jane Doe evidence and the evidence relating to the six counts to be tried, and because there was some evidence linking Mr. Pickton to the Jane Doe evidence.  He held that its probative value outweighed its prejudicial effect, and that a decision on whether the evidence could be considered for purposes other than identification was best left to the conclusion of the evidence.

[132]     After the Crown closed its case, and before the defence led any evidence, defence counsel applied for a reconsideration of the ruling to admit the Jane Doe evidence.  Specifically, the defence contended the evidence at trial did not conform to the evidence the Crown relied on at the original application, and that the evidence as adduced in the Crown’s case before the jury failed to meet the second-stage test in Arp, namely that there be some evidence linking the accused to the similar fact evidence.  The trial judge accepted the defence application, and with defence counsel’s agreement, held that the appropriate remedy was an instruction to the jury to disregard entirely the Jane Doe evidence (rather than to declare a mistrial).

[133]     In his ruling to exclude on 27 August 2007 (indexed at 2007 BCSC 1293), the judge did not resile from his original conclusion that there was a sufficient degree of similarity between the Jane Doe skull and at least three of the victims on the Indictment.  But he concluded that the evidence as developed in the Crown’s case did not meet the second-stage test in Arp, because it failed to provide “some evidence” linking Mr. Pickton to the similar act.

[134]     With respect to Gina Houston’s evidence, the judge said:

[17]      I do not propose to go into great detail in evaluating Ms. Houston’s evidence at trial, but I do consider that it does not, in fact, meaningfully advance a link between Mr. Pickton and Jane Doe’s skull.  Firstly, what she described occurred at least two years after Jane Doe’s skull was deposited in Mission.  She is not able to speak to what Mr. Pickton was doing in the years prior to 1997, and for me to speculate that what she described was simply a continuation of a pre-existing pattern would be without any proper underpinning.  Furthermore, Ms. Houston’s evidence as it emerged at trial did not convey a sense of the secretive conduct that her statements to the police suggested and which influenced to some extent my earlier assessment.  Finally, Mr. Pickton’s destination was less precise in her trial evidence than it had been in her statements to the police.  In short, I am unable to rely on Ms. Houston’s testimony to suggest that Mr. Pickton travelled to Mission at a time proximate to when Jane Doe’s skull was deposited there.

[135]     With respect to the evidence of saw marks on the Jane Doe skull, and their similarity to the evidence at trial, the judge said:

[21]      I do not consider it necessary to descend into a scrutiny of the minutiae of the treatment of Jane Doe’s remains and what is known of Mr. Pickton’s method of butchering animals.  There are general similarities to be observed, just as there are, if one looks with sufficient particularity, differences.  It is neither a case where there are great discrepancies nor one where there are signature similarities.  Nevertheless, there is sufficient likeness that the argument for linkage is afforded some support.

[22]      However, it is with respect to this general topic of butchering method and tools that there arises what I have concluded is a problem of sufficient magnitude for the Crown’s position that it must result in a finding that the evidence of linkage, all things considered, is insufficient.  Specifically, it arises from the fact that Jane Doe’s skull and rib were quite clearly cut with a power saw, most likely a reciprocating saw, while the effect of the evidence led at trial casts very grave doubt upon the proposition that Mr. Pickton had access to or used such an implement until substantially later, probably around 1999 or thereabouts.

[Emphasis added]

[136]     The judge gave considerable weight to the evidence of the witness Pat Casanova as to the time or date at which Mr. Pickton acquired or used a power saw in his butchering process.  He concluded:

[29]      …Considering all the evidence, I am driven to conclude that not only is there no evidence that Mr. Pickton had or used a power saw in the earlier years, but more pointedly, it is highly likely that he did not.  That is quite at odds with the notion of Mr. Pickton being connected to Jane Doe as the one who murdered and/or dismembered her.

[30]      I recognize that it is for the jury to weigh and assess the evidence on the issue of linkage.  However, the authorities, particularly Arp, make clear that the trial judge has the threshold or gatekeeper role of determining admissibility.  In my understanding, that requires some minimal evaluation of the effect of the available evidence.

[31]      I have taken into account, as well, in the analysis of the link under the second stage of Arp the fact that Mr. Pickton has made statements, both to the police in his formal interview and in the course of discussions with his undercover cellmate, wherein he makes apparent admissions that he has killed a large number of women and has disposed of their remains by sending them to a rendering plant.  Although the admissions do not specify who the women are, nor do they provide a time frame for the acts, again, they can be considered a circumstantial link between him and the Jane Doe remains.

[32]      But for the matter of the power saw, both its involvement in the dismemberment of the remains and Mr. Pickton’s access to use of such a device, I would be inclined to conclude that the available evidence would satisfy the threshold required.  However, as the gatekeeper, I am also obliged to take into account evidence that detracts from the linkage.  Here, I have come to conclude that when all, and not just part, of the available and relevant evidence is considered, it cannot be said that the trier of fact could make a proper finding that the similar act to be relied upon was in fact that of Mr. Pickton.

Conclusion

[33]      It is my conclusion that the evidence that has been adduced in this trial to this point fails to meet the standard prescribed for the second stage of the Arp test.  Accordingly, the evidence of the Jane Doe remains will not be before the jury as similar fact evidence to support the contention that Mr. Pickton is the person responsible for the commission of the offences on the Indictment.

[Emphasis added]

[137]     The Crown contends that the trial judge set too high a standard in deciding whether there was a link between the Jane Doe evidence and Mr. Pickton.  Although the trial judge correctly stated the test to be whether there was “some evidence” of a link (per Arp) he went well beyond that in his examination of the evidence, considered the evidence in a piecemeal fashion, and intruded into the function of the jury as trier of fact.

[138]     The gate-keeping function of the trial judge on the admissibility of similar fact evidence does require him to consider not only the relevance of the disputed evidence, but also its weight (per R. v. B. (C.R.) at pp. 54-55) as well as the quality and reliability of the evidence.  To this extent the judge is required to invade the province of the jury, and there is no sharp line as to where that invasion becomes impermissible  (see Arp at para. 47 and Handy at paras. 133-134).

[139]     In my respectful view, the learned trial judge erred in his analysis of this issue by focusing unduly on the evidence of Houston and the question of when Mr. Pickton acquired a power reciprocating saw.  On the question of whether there was some evidence linking Mr. Pickton to the Jane Doe evidence, the obvious starting point was the location of the Jane Doe heel and rib bones found in close proximity to Mr. Pickton’s residential trailer, and the slaughterhouse, and in close proximity to the butchered remains of the six victims named in the Indictment.  It was only the discovery of those heel and rib bones in that location that made the Jane Doe skull in any way relevant.  But for the heel and rib bones, any link between the Jane Doe skull and Mr. Pickton would have been tenuous at best.

[140]     As is evident from the underlined passages in paras. 21, 22, 31 and 32 of the judge’s reasons, there was clearly some evidence linking Mr. Pickton to the Jane Doe bones.  That is all that is required on the second-stage test in Arp.

[141]     When the location of the Jane Doe heel and rib bones, and their DNA match to the partial skull are considered with the rest of the evidence in the Crown’s case, it is my view that the link to Mr. Pickton clearly surpassed the “some evidence” test.  Mr. Pickton told Bellwood he killed women, butchered them in his slaughterhouse and disposed of some of their remains off site.  He told Houston there were women buried on his property.  Ellingsen saw him butchering a woman in his slaughterhouse.

[142]     Although the trial judge said he considered all of the available relevant evidence in deciding this question (para. 32), it is evident to me that he failed to apply the correct test, or that if he did, he fundamentally misapprehended the evidence linking Mr. Pickton to the Jane Doe evidence.

[143]     In my respectful view, this is an extricable error of law that justifies appellate intervention.

C.   Similar Fact Evidence In Relation to Cynthia Feliks, Inga Hall and Wendy Crawford

[144]     The Crown asserts that the learned trial judge erred further in law by refusing to admit evidence relating to Cynthia Feliks, Inga Hall and Wendy Crawford as similar fact evidence.  The judge summarized the evidence offered by the Crown at paras. 9-17 of his ruling, 2006 BCSC 1601, on 30 October 2006.

[145]     Feliks, Hall and Crawford were the named victims in three of the 20 counts severed from the remaining six by the severance ruling of 9 September 2006.  All three women matched the common profile of the six victims remaining on the Indictment.

[146]     Ms. Feliks had last been seen in December 1997.  Ms. Hall was last seen in February 1998 and Ms. Crawford in November 1999.

[147]     The remains of Feliks and Hall were found in two freezers in Mr. Pickton’s workshop.  The DNA of both women was found in packages of ground meat, sample cores of which tested positive for human and pig proteins.  One of the two freezers contained buckets in which were found the head, hands and feet of Sereena Abotsway and Andrea Joesbury.  Hair from Ms. Hall was found on a bookshelf in the slaughterhouse.  The slaughterhouse contained a meat grinder.

[148]     The evidence with respect to Ms. Crawford consisted of a piece of long bone found in the manure cistern in the former piggery.  The bone segment had a distinctive shape, and the evidence suggested that it had been shaped by human hands by, for example, whittling or carving. It was destroyed in the forensic testing process that identified it as Ms. Crawford’s.  The trial judge described the circumstances.

[16]      The forensic evidence relating to Ms. Crawford is a piece of bone that was recovered from a manure cistern on the Dominion Avenue property.  The bone is approximately 7 cm in length, roughly diamond shaped and tapered at both ends.  It was examined by a forensic anthropologist and a police tool mark examiner before being forwarded to a forensic odontologist who reduced the entirety of the bone into powder in preparation for DNA testing by the RCMP’s forensic laboratory.  DNA extracted from the bone powder linked the exhibit to Ms. Crawford.  It is the position of Mr. Pickton that the bone does not represent the remains of Ms. Crawford but, rather, is an aboriginal artifact that was contaminated at some stage with her DNA.

[149]     The Crown tendered the evidence concerning all three women as evidence to prove the identity of the person who murdered the six women named in the Indictment, and to corroborate the evidence of Andrew Bellwood, who testified at the preliminary inquiry that Mr. Pickton told him he killed drug-dependent sex trade workers, dismembered them, and disposed of their remains by feeding them to the pigs or discarding them with pig waste (para. 19).

[150]     The defence position at trial was that the evidence concerning Feliks failed both stages of the Arp test, and that its prejudicial effect outweighed its probative value. (The trial judge does not mention the defendant’s position concerning Ms. Hall in his summary at paras. 24-29.)

[151]     With respect to Ms. Crawford, the defence said the evidence did not establish that the bone was in fact Ms. Crawford’s; that the evidence did not meet the second stage of Arp, i.e., did not show a link to the accused; that the prejudicial effect of the evidence was substantial; and that the forensic destruction of the bone deprived Mr. Pickton of the opportunity to make full answer and defence.

[152]     The trial judge held that the evidence concerning Feliks and Hall was sufficiently similar to the counts charged to meet the first stage of the test in Arp.  He said:

[40]      The forensic evidence indicates a DNA presence of each woman in and on packages of ground meat recovered from freezers XD1 and XD2, as well as on plastic sheets found inside the freezers.  A clump of hair identified to Ms. Hall was also found in the slaughterhouse on the property.  The evidence of the backgrounds of Ms. Feliks and Ms. Hall satisfied me that they are of a similar personal profile, namely, drug dependent sex trade workers known to frequent prostitution strolls in the Lower Mainland.  Ms. Feliks was last seen in late December 1997, Ms. Hall in late February 1998.  It is also of substantial significance that the trace remains of these two women were located in the same freezer as the remains of Ms. Abotsway and Ms. Joesbury.  These latter two women were drug dependent sex trade workers, and the condition of their remains indicates quite strikingly that they were killed and dismembered.  Based on these facts, I am satisfied on a balance of probabilities that the DNA material found in the freezers is some part of the remains of Ms. Feliks and Ms. Hall, that they were murdered and that they were dismembered.  These, therefore, are identified similar acts.

[41]      Comparing this proposed similar fact evidence with the three counts involving Ms. Abotsway, Ms. Wilson and Ms. Joesbury, I am also satisfied that it is likely that the person who committed the similar act conduct is the same person who is responsible for the deaths of those three women…Accordingly, the first stage of the Arp analysis is met.

[153]     The judge held, however, that the evidence failed to establish a link to Mr. Pickton.  He reasoned that Mr. Pickton did not have exclusive access to the freezer where the remains of Feliks and Hall were found (para. 43); that there was none of Mr. Pickton’s DNA in that freezer (para. 43); that the location of the Feliks and Hall remains in Pickton’s slaughterhouse was of limited significance, because Mr. Pickton’s access was non-exclusive (para.44); that the presence of a meat grinder did not provide a link because there was no evidence to show it had been used to grind any human tissue (para. 45); that many persons had access to the meat grinder (para. 46); and that Mr. Pickton’s trade as a butcher was not a link in the circumstances (para. 47).

[154]     The trial judge held that Bellwood’s evidence did not provide a link between Mr. Pickton and the evidence concerning Feliks and Hall.  He said:

[50]      In its oral submissions, the Crown briefly referred to the evidence of Mr. Bellwood as also providing a link.  That evidence, it will be recalled, was that Mr. Pickton related to him that he killed drug dependent sex trade workers, dismembered them in his barn, and fed their remains to pigs.  I do not consider that the evidence of Mr. Bellwood provides a link between Mr. Pickton and the acts committed against Ms. Feliks and Ms. Hall since, as I have just observed, there is no evidence to suggest that either of those women were fed to pigs.

[155]     The judge found that there was no evidence to suggest that Mr. Pickton prevented others from having access to the freezers (para. 51).  He also found that there was no evidence that Mr. Pickton had been in the area of the downtown eastside when Feliks went missing (paras. 52-54); and that although there was some circumstantial evidence that Mr. Pickton was in the general area where Ms. Hall was last seen, the evidence was uncertain, and at most, only evidence of opportunity (para. 55).  With respect to Feliks and Hall the judge concluded that the requisite link had not been made out (para. 56).

[156]     As to whether the evidence concerning Ms. Crawford was admissible, the trial judge held that it met the first-stage test in Arp (para. 66).  However, with respect to the second stage of Arp he said:

[69]      The evidence upon which the Crown relied to establish a link between Mr. Pickton and the proposed similar fact evidence involving Ms. Feliks and Ms. Hall comprised five separate heads:  geography (the remains were found on Mr. Pickton’s property), butchery (he had both experience in the butchery of animals and either access to or possession of related tools and equipment), admissions (the aforementioned statements to Mr. Hiscox and to Mr. Bellwood), his possession of the freezers in which their DNA had been discovered, and the timing of his presence in the Downtown East Side.  The written submissions appear to contend that these same connecting elements should be found to establish a link between Mr. Pickton and the evidence regarding Ms. Crawford.  In my view, only the first three can have any potential relevance to that evidence.

[70]      The fact that Ms. Crawford’s remains were found on Mr. Pickton’s property, near his residential trailer, and in an area that he was known to frequent is not, as I have discussed earlier, sufficient to connect him to her death and/or dismemberment.  Similarly, the modified appearance of the Crawford bone cannot be linked to any unique butchering practice associated to Mr. Pickton or to a particular tool to which had had access.  While his remark to Mr. Hiscox does not constitute a sufficient link for the reasons explained earlier, his admission to Mr. Bellwood is more compelling.

[71]      Ms. Crawford’s bone was recovered from a cistern located at the end of a demolished piggery.  If it could be reasonably inferred that her dismembered remains were fed to pigs and that her bone ended up in the cistern as debris from the piggery, then Mr. Bellwood’s evidence of Mr. Pickton’s statement to him could provide a link between him and the acts committed against Ms. Crawford.  However, in my view, there is an insufficient basis upon which I can safely draw that inference.

[73]      I am therefore left only with the Crown’s representation that at some unspecified time Mr. Pickton kept pigs in the piggery.  Without more, such as evidence demonstrating that he used the piggery around the time of Ms. Crawford’s disappearance in late 1999, I cannot infer from the discovery of her bone in the cistern alone that her remains may have been fed to pigs.  Absent that, Mr. Bellwood’s evidence does not sufficiently link Mr. Pickton to the acts committed against Ms. Crawford.

[74]      I recognize that the Crown, in making this submission, relied as well on the location of the remains of Ms. Papin and Ms. Wolfe in different parts of the same complex, in what it says are areas in which pigs would have had access to them.  Ms. Papin’s remains were found in a pig pen within the complex, Ms. Wolfe’s in the area of the former piggery.  Again, without some indication of whether and when Mr. Pickton kept pigs in these areas, there is little I can infer from the location of these women’s remains.

[75]      In short, there is not sufficient evidence upon which a trier of fact could make a proper finding that Mr. Pickton was responsible for the death and dismemberment of Ms. Crawford.  As a result, I find that the second stage of the R. v. Arp analysis has not been satisfied.  The evidence regarding Ms. Crawford is not admissible in these proceedings on the issue of identity.

[157]     After concluding that the similar fact evidence in respect of Mses. Feliks, Hall and Crawford was inadmissible, the trial judge went on to consider the probative value of that evidence against its prejudicial effect.  He held that the admission of evidence concerning Feliks and Hall would cause the defendant both substantial moral and reasoning prejudice (paras. 77-80) which outweighed its “slight” probative value (para. 78).

[158]     Similarly, with respect to the evidence concerning Ms. Crawford, he held that its prejudicial effect outweighed its probative value (paras. 81-83) and that it carried particular prejudice because it limited the defendant’s ability to make full answer and defence.

[159]     The judge did not find the evidence concerning any of the three women to be sufficiently similar to the conduct that Mr. Pickton described to Bellwood to make it admissible to corroborate Bellwood’s evidence (paras. 87-91).

[160]     On this appeal, the Crown’s position is similar to its position with respect to the evidence of Jane Doe’s bones.  The Crown says the trial judge set far too high a standard in determining whether a sufficient link between the evidence and Mr. Pickton had been shown.  The Arp test requires only that there be “some evidence” of a link, or something more than a mere possibility that he committed the similar acts.  The Crown says there was ample evidence to meet the “some evidence” test, and that the judge erred in law by applying the wrong standard or test.  The Crown says the conclusion that the evidence failed to establish a link is simply unreasonable.

[161]     The Crown also says the learned trial judge erred in the way he assessed the prejudicial effect and probative value of the evidence and that this as well constituted an error of law.

[162]     Counsel for the respondent says that, with one exception, the Crown has failed to raise a question of law alone.  Counsel says the exception is the Crown’s allegation that the trial judge approached the evidence on the second stage of Arp in a piecemeal fashion, contrary to R. v. Morin, [1988] 2 S.C.R. 345.  As to this, counsel for Mr. Pickton says the trial judge applied the correct test for the second stage of Arp.  As to the other errors alleged by the Crown, the respondent says they are all questions of mixed fact and law that involve the weighing or assessment of evidence.  Counsel says the claim that the trial judge set too high a standard at the second stage of Arp is an invitation for the Court to err.

[163]     Dealing first with the evidence concerning Feliks and Hall, in my respectful view, the learned trial judge failed to apply the correct test for its admissibility.  It is not in dispute that there is sufficient similarity between the evidence concerning those two, and the six counts charged to meet the first-stage test in Arp.  The question for the trial judge was whether the second stage was met – that is, whether there was some evidence to establish a link between the similar fact evidence and Mr. Pickton.  On any fair reading of the judge’s reasons it is evident that he did not apply the “some evidence” test.

[164]     As summarized in paras. 154-156 above, the judge conducted a detailed analysis of the similar fact evidence to conclude that the requisite link between it and Mr. Pickton had not been made out.  In my respectful view, that analysis overlooks the considerable body of evidence that did establish a link to Mr. Pickton.  The remains of Feliks and Hall were found in a freezer in Mr. Pickton’s workshop.  That freezer contained the partial remains of the six victims on the counts remaining to be tried.  The remains had been butchered and ground.  Mr. Pickton was a butcher and had a meat grinder in the same building.  Mr. Pickton was known to use the freezer where the Feliks and Hall remains were found.

[165]     When that evidence is considered together with Mr. Pickton’s admissions to Bellwood and the eyewitness evidence of Ellingsen, it is apparent that there was ample evidence to establish the link between the similar fact evidence and Mr. Pickton.

[166]     In effect, the trial judge assumed the role of the jury in examining and assessing this evidence.  He went well beyond his role as a gatekeeper in ensuring that the evidence met not only the test for similarity, but also met the requirement of “some evidence” to show a link to the accused.

[167]     This was, in my view, an error of law, and not an error of mixed law and fact.  The legal error was in applying a test for the link that was not required in law.  The test applied by the judge was a much higher or more stringent test, and it led him into the detailed examination of the evidence described above.

[168]     I think this error may also be said to be a Morin error because of the defence position that the destruction of the Crawford bone impaired its ability to make full answer and defence. The defence disputed that the bone found in the cistern was part of the remains of Ms. Crawford.  What was not disputed was that Ms. Crawford’s DNA was on that bone.  At a minimum, the trial judge ought to have permitted the Crown to lead evidence that Wendy Crawford’s DNA was found in the cistern at the end of the pig trough.  The order excluding any reference to the fact of her DNA being found in connection with that bone goes further than was required to protect Mr. Pickton’s fair trial interests.

[169]     In my respectful view, the learned trial judge erred in law in holding that the evidence concerning Feliks, Hall and Crawford was inadmissible.  I would allow the Crown’s appeal on this ground as well.

VI.   The Vetrovec Warning

[170]     The Crown states this ground of appeal as follows:

The trial judge erred in law by instructing the jury that they could only accept the unconfirmed evidence of Andrew Bellwood (“Bellwood”) and Lynn Ellingsen (“Ellingsen”) if they were satisfied beyond a reasonable doubt that it was true.

[171]     Counsel for the Crown, Ms. Duncan, who argued this issue on appeal, frankly conceded at the outset that the Crown had fully participated with defence counsel in assisting the trial judge to draft this charge, and that the Crown takes a different position on appeal than it took at trial.

[172]     Mr. McGowan, who addressed this issue for the respondent, submitted that the Crown should not be allowed to raise this issue on appeal, having actively participated in drafting the part of the charge it now impugns.  He says further that the charge is not wrong in substance, and was within the discretion of the trial judge as a “clear, sharp warning” about the reliability of the two witnesses.  And he submitted that in the context of this case, where there was other evidence to support the testimony of Bellwood and Ellingsen, the Vetrovec warning would not have been engaged in the jury’s deliberations.

[173]     In delivering the Vetrovec warning to the jury, the trial judge dealt first with the evidence of Bellwood.  He provided a brief summary of Bellwood’s evidence and  instructed the jury that:

There is no question that Mr. Bellwood’s evidence is very significant in this case, and you must take great care in how you deal with it.

[174]     After reviewing evidence that either confirmed or detracted from Bellwood’s credibility, the trial judge said:

In the end, you will ask yourself whether enough of the important parts of Mr. Bellwood’s testimony have been confirmed to persuade you that his evidence is true, and that it is safe for you to rely on it.

I must tell you that you are not legally required to find such support before you can rely on Mr. Bellwood’s testimony.  You may rely on it without finding support, but only if you are convinced beyond a reasonable doubt that it is true.  However, you should be reluctant to accept Mr. Bellwood’s evidence in the absence of other evidence that supports or confirms the more important parts of his testimony and makes you more confident that his testimony is true.  (emphasis added.)

He gave a similar instruction with respect to Ellingsen’s evidence.

[175]     The Crown now seeks to contend that it was an error to include the words “... but only if you are convinced beyond a reasonable doubt that it is true”, because the reasonable doubt standard applies to the Crown’s case as a whole, not to individual pieces of evidence.

[176]     The charge as given appears to adopt the language suggested by CRIMJI.  The “offending” words do not appear in Watt’s Manual of Criminal Jury Instructions, or in the Model Jury Instructions on the Canadian Judicial Council’s website.

[177]     In my opinion, the Court should not entertain this ground of appeal in the circumstances of this case.  We have been directed to those parts of the transcript where the preparation of this instruction was discussed between counsel and the judge.  The Crown presented a draft that included the impugned instruction.  The charge was given careful scrutiny by counsel for both Crown and defence.  Both counsel agreed the jury should be instructed that if they did not find support for the evidence of Bellwood or Ellingsen, they should rely on their evidence only if they were convinced of its truth beyond a reasonable doubt.

[178]     Neither counsel objected to the charge after it was given.

[179]     This Court has held that it was not open to an offender to argue on appeal that the judge erred in responding to a jury’s question when the defence had suggested the general nature of the response to be given, and did not object after it was given:  See R. v. Vankoughnett, 2008 BCCA 261 at paras. 18-20; R. v. Chandrakumar, 2007 ONCA 798, 231 O.A.C. 30 at para. 36; R. v. Ferguson, 142 C.C.C. (3d) 353 (Ont. C.A.) at para. 92, per Laskin J.A. dissenting, aff’d, [2001] 1 S.C.R. 281; and R. v. Austin (2006), 214 C.C.C. (3d) 38 (Ont. C.A.) at paras. 14 and 15.

[180]     The Crown must be held to at least the same standard.

[181]     I would not give effect to this ground of appeal.

VII.   The Charge to the Jury on Use of the Similar Fact Evidence in Relation to

Planning and Deliberation

[182]     The Crown submits that the learned trial judge erred by failing to instruct the jury correctly on the way it might use similar fact evidence from count to count on the issue of planning and deliberation.  The error is said to be in this passage of the charge:

If you are satisfied beyond a reasonable doubt that Mr. Pickton committed first degree murder in relation to these three women [Ms. Abotsway, Ms. Wilson, and Ms. Joesbury], then you may apply the evidence to any of the other counts you have concluded beyond a reasonable doubt were committed by Mr. Pickton in deciding whether the murder of these other women [Ms. Wolfe, Ms. Papin, and Ms. Frey] was planned and deliberate.

[183]     The Crown says this is a variant of the “anchor” approach to the use of similar fact evidence in proof of planning and deliberation.  The Crown says the jury is not required in law to find any one count proven to the criminal standard before similar fact evidence may be used across multiple counts on the Indictment.  It says that the correct instruction on the use of similar fact evidence in these circumstances would adopt the “pooling” or cumulative approach.  It says the jury should have been told that planning and deliberation was a fact in issue on each of the six counts for which the jury could consider count-to-count similar fact evidence.

[184]     As with the Vetrovec issue, counsel for the respondent says the Crown should not be heard to advance this ground of appeal.  The respondent says the Crown actively participated in the drafting of this part of the charge, as it did with the other parts, and that after the charge was given it did not object on this issue.  Moreover, the respondent says that the impugned instruction, in the context of the charge as a whole, was not wrong in law.

[185]     This part of the charge was given to the jury on 30 November 2007.  Counsel were not provided with the final version of this portion of the charge until that morning.

[186]     However, counsel had participated in the drafting of the charge since about 6 November.  Various drafts were prepared and exchanged, and there were a number of pre-charge conferences in which counsel had ample opportunity to, and did in fact, express their views as to what the charge should contain.  There were detailed discussions on 16 November during which the Crown proposed ten changes to the judge’s draft that had been presented to counsel on 13 November.  The trial judge adopted nine of the Crown’s ten suggestions.

[187]     Crown counsel endorsed the form and content of the draft instruction on planning and deliberation.  He did not ask the trial judge to supplement the similar fact instruction in this part of the charge.

[188]     On the morning of 30 November when counsel received the judge’s final draft, counsel for the Crown noticed that the judge had not included one of the Crown’s proposed changes concerning post-offence conduct.  He asked the trial judge to insert it, and the judge did.  When asked if there was anything else of concern, Crown counsel answered “no”.

[189]     After the charge was given to the jury no objection was taken to this aspect of the charge.

[190]     In these circumstances, in my view it is not now open to the Crown to advance this ground of appeal. This is not simply a case of the Crown failing to object.  This Court has held that such a failure, while an important factor to consider, is not fatal to the Crown’s position on appeal:  see R. v. Munroe, [1940] 2 D.L.R. 579 (B.C.C.A.); R. v. Cullen, [1949] S.C.R. 658, 94 C.C.C 337; R. v. Budai (2001), 154 C.C.C. (3d) 289 (B.C.C.A.).

[191]     This is not a case of mere inadvertence or oversight on the part of Crown counsel.  It is evident from the record that counsel, over a period of some two weeks, actively applied their minds to all aspects of the form and substance of the charge.  It would, in my view, undermine the fairness of the process if the Crown could, after such full consultation and participation, reverse its position in this Court.

[192]     I would not give effect to this ground of appeal.

VIII.  Remedy

[193]     If successful on its appeal, the Crown seeks an order for a new trial of the six counts on charges of first degree murder, and related relief.  However, it asks that the orders sought be made conditional on the outcome of further appellate proceedings, or on the expiry of time for such proceedings, such that:

1.         If Robert William Pickton then stands convicted of six counts of second degree murder the stay will become permanent; or

2.         If a new trial is required the stay will be dissolved and paragraphs (a), (b), (c) and (d) will become effective.

[194]     The Crown says such remedy is available under the provisions of s. 686(8) of the Criminal Code which provides:

Where a Court of Appeal exercises any of the powers conferred by ss. (2), (4), (6) or (7), it may make any order in addition, that justice requires.

[195]     As this is an appeal from acquittal (on charges of first degree murder), it comes within the ambit of s. 686(4) and s. 686(8) is therefore applicable.

[196]     The Crown says that “justice requires” an order in the terms sought because if Mr. Pickton is ultimately successful in his appeal against the convictions of second degree murder, and if the Crown’s arguments are ultimately successful on this Crown appeal, the new trial ordered should be on charges of first degree murder rather than second degree murder.

[197]     If Mr. Pickton is not ultimately successful on his appeal, and the Crown is ultimately successful on its appeal, the Crown says it would not be in the public interest to order a new trial for the limited purpose of “relabeling” the murders as first degree, rather than second degree.  In such circumstances, the Crown would not seek a new trial. The respondent was sentenced to life imprisonment with no possibility of parole for 25 years on each of the six convictions for second degree murder, the same sentence that would be imposed if he were retried and convicted of first degree murder.

[198]     Counsel for Mr. Pickton says the remedy sought by the Crown is not available.  He says that if on the Crown’s appeal the courts ultimately find reversible error and order a new trial, there must be a full new trial on charges of first degree murder.  Counsel says that the convictions on second degree murder would have to be set aside because otherwise Mr. Pickton would be denied the presumption of innocence and his constitutional right to advance whatever defences he may have at a new trial.

[199]     Counsel for Mr. Pickton says this Court has no jurisdiction under s. 686(8) to make an order in the terms sought by the Crown.  He says to order a new trial, but then to order a permanent stay of the order for the trial if the second degree murder convictions stand, is in effect to make two orders that are entirely inconsistent one with the other.

[200]     Counsel referred us to R. v. Luedecke (2008), 93 O.R. (3d) 89 (Ont. C.A.), where the court said:

[130]    I come now to whether this court can make an order limiting the issues at the new trial.  While counsel disagree as to the existence of the power to limit the new trial, they do agree that if the power exists it must be found in s. 686(8):

Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, that justice requires.

[131]    Section 686(8) creates a broad discretionary power to make a wide variety of orders ancillary to the primary order made under the remedial provisions in s. 686: R. v. P. (D.W.) (1987), 49 C.C.C. (3d) 417 (S.C.C.) at pp. 419-20; Thomas, at para. 19.  There are, however, limits on the reach of s. 686(8).  It does not create a free standing remedial power but provides a supplementary power that may be used, where justice requires, to augment the remedial powers found elsewhere in s. 686.  As a supplementary power, an order made under s. 686(8) cannot be at variance with the primary order made in any given case.  Nor can an order made under s. 686(8) be inconsistent with the remedial powers granted under the other provisions in s. 686.  For example, s. 686(8) could not be used to substitute a conviction on a Crown appeal from an acquittal entered by a jury: see R. v. Pearson (1998), 130 C.C.C. (3d) 293, at para.14; Thomas, at paras. 17, 21-22.

[201]     This Crown appeal is from a verdict of acquittal on six counts of first degree murder in a court composed of judge and jury.  Under s. 686(4) the only disposition the Court of Appeal may make is to order a new trial.

[202]     However, s. 686(8) empowers a court exercising any of the powers granted by s. 686(4) to “make any order, in addition, that justice requires”.

[203]     There are a number of considerations that may inform the Court’s decision on what justice requires.  Those considerations include the accused’s right to a fair trial, the right to make full answer and defence, and the right to all of the safeguards and procedures that are designed to prevent a wrongful conviction.  They also include the public’s right to confidence in the administration of justice, the goal of removing society’s or an aggrieved person’s sense of injustice, and the imperative that wrongdoers be held accountable in accordance with the law.

[204]     Counsel for Mr. Pickton took the position that if Mr. Pickton was successful on his appeal, and if the Crown’s appeal was dismissed, he is entitled to a retrial on the six counts tried on charges of second degree murder only.  Counsel says further that if Mr. Pickton is unsuccessful on his appeal, and the Crown appeal succeeds, he is entitled to a full new trial on all 26 counts on charges of first degree murder.  He says he cannot be denied a retrial on charges of first degree murder just because the Crown does not wish to proceed.

[205]     It is only in the event that the Crown appeal succeeds, and Mr. Pickton’s appeal from conviction is ultimately dismissed, so that he stands convicted on six counts of second degree murder, that the Crown’s proposed remedy of a permanent stay becomes of concern.  Thus the question is this: if at the end of appellate proceedings Mr. Pickton stands convicted on six counts of second degree murder, does justice compel a new trial on those same six counts on charges of first degree murder?  Or, as the Crown contends, does justice require that a permanent stay of the order for a new trial be entered?

[206]     I am persuaded that the Crown’s position on this issue is sound.  If Mr. Pickton remains convicted of second degree murder on those six counts after all appeals are concluded, there would be no useful purpose in a retrial on those same offences as charges of first degree murder.  Such a trial would impose further enormous demands on financial and judicial resources to achieve a final practical disposition that has already been arrived at on the first trial.  It would be manifestly redundant and unfair to compel such a result.

[207]     I am satisfied that justice requires an order in the terms sought by the Crown, and accordingly I would so order.

“The Honourable Chief Justice Finch”

I Agree:

“The Honourable Mr. Justice Donald”

I Agree:

“The Honourable Mr. Justice Low”