IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

R. v. Pickton,

 

2007 BCSC 1808

Date: 20071213

Docket: X065319

Registry: New Westminster

Between:

Regina

 

And

Robert William Pickton

 

 


Publication Restriction Notice:

Pursuant to s. 486.4, s. 486.5 and the inherent jurisdiction of the Court, information that may identify certain witnesses and undercover police officers may not be published, broadcast or transmitted in any manner. All other publication ban orders issued during this proceeding have expired. This version of the Reasons for Judgment complies with the existing publication bans.

 

Before: The Honourable Mr. Justice Williams

Ruling re: Re-instructing the Jury

 

Counsel for the Crown

G. Baragar

Counsel for the Accused

A. Brooks, QC

Date and Place of Trial/Hearing:

December 6, 2007

 

New Westminster, B.C.

Background

[1]              On December 6, 2007, I re-instructed the jury with respect to a matter that I concluded had been incorrectly stated in my charge on November 30.  I did not provide reasons for my decision to re-instruct, but indicated that I would do so in due course.  These are those reasons.

[2]              In my charge, the jury was instructed as to the basis of criminal liability in the following terms at paragraph 8 of tab 2:

8.         A person commits an offence if he, alone or along with somebody else or others, personally does everything necessary to constitute the offence.  Accordingly, it is not necessary for you to find that Mr. Pickton acted alone in order to find him guilty of the offence.  You may find that Mr. Pickton acted in concert with other persons, although you may not know who they are.  It is sufficient if you are satisfied beyond a reasonable doubt, having considered all the evidence, that he actively participated in the killing of the victim.  It is not sufficient that he was merely present or took a minor role.  The issue for you to decide is whether you are satisfied that it has been proven that he was involved to the extent that the law requires to establish his criminal liability.

[3]              Similar language was used elsewhere in the charge, specifically, in the section dealing with third party suspects.

[4]              On the morning of November 30, the fourth and final day of my delivering the charge to the jury, I had a brief session with counsel.  At that time, defence counsel urged the addition of paragraphs 205, 239 and 262 to the charge.  These three paragraphs were identical, except for the name of the victim.  Paragraph 205 read as follows:

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

[5]              Crown counsel voiced no objection when I canvassed the matter with him.  On that basis, I acceded to the positions of counsel and added the three paragraphs to the charge. 

[6]              On December 6, a question from the jury caused me to re-examine paragraph 205.  Upon consideration, I concluded that the paragraph was inconsistent with what I believed to be the correct and accurate description of the basis of criminal liability as set out in paragraph 8.  I advised counsel of my concern and that I was contemplating modifying paragraph 205 and re-instructing the jury accordingly.

[7]              Defence counsel was adamantly opposed to my re-instructing the jury.  He submitted that to do so at that late stage would cause irreparable damage to the integrity of the trial and tremendous prejudice to Mr. Pickton.  With respect to this latter issue of prejudice, he said that the defence made its submissions to the jury on the understanding that the issue was as stated in paragraph 205, namely, who fired the gun.  The Court could not, at that stage, change that issue.  Further, defence counsel submitted that paragraph 205 set out the correct application of the more general principles enunciated in paragraph 8 to the specific facts of this case.  He said that the issue of active participation reduced here, at least with respect to Counts 1 to 3, to who fired the gun; any other active participation would require a parties charge.  Both Crown and defence were agreed that this was not a parties case.  He additionally contended that paragraph 205 was not raised for the first time on November 30, but had formed part of the draft charge which had been provided to counsel for their review.  Further points raised by defence counsel were that the jury would not know what to make of the late change in their instructions, and that the removal of paragraph 205 and the related paragraphs in Counts 2 and 3 would have a ripple effect on Counts 4, 5 and 6, such that the charge would have to be completely revamped.

[8]              Crown counsel was in favour of a re-instruction to the jury to clarify the inconsistency between paragraphs 8 and 205.  He took issue with the defence submission that any other mode of participation beyond firing the gun would engage a parties charge, and submitted that what had to be made clear to the jury was that there could be co-principals with different modes of participation but equal culpability.  He proposed alternative wording to clarify paragraph 205, which wording I largely adopted.

[9]              In the result, I re-instructed the jury by changing paragraph 205 as follows:

If you find that Mr. Pickton shot Ms. Abotsway or was otherwise an active participant in her killing, you should find that the Crown has proven this element.  On the other hand, if you have a reasonable doubt about whether or not he was an active participant in her killing, you must return a verdict of not guilty.

[10]          This was the change that was made with respect to Count 1.  Counts 2 and 3 were structurally similar, and parallel changes were made in respect of each of those counts.

Discussion

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

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

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

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

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

[16]          The defence also submitted that the jury would be confused by the change to the instructions.  I do not agree.  A basic premise of the jury system is that jurors will accept and apply the directions of the trial judge with respect to the law.  There is a corresponding obligation on the trial judge to ensure that the jury is correctly instructed.  I do not accept that where there has been an error, whether one that favours the Crown or the accused, a trial judge should refrain from making the necessary correction because it may lead the jurors to be confused.  That simply cannot be so.

[17]          The contention that the correction of this matter would have a ripple effect throughout the charge was not, in my view, tenable.  One paragraph in each of Counts 1, 2, and 3 had to be modified.  There was no need to alter Counts 4, 5, and 6; each of those was informed by the instruction at paragraph 8.

[18]          For the foregoing reasons, I am satisfied that the re-instruction of the jury on December 6 was necessary in order to protect the integrity of the trial.

“The Honourable Mr. Justice Williams”