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Lawyers weigh in on the Crown's next step

Prosecutors have a moral obligation to take one more crack at getting first-degree murder conviction, expert says

From Monday's Globe and Mail

Yesterday's verdict in the Pickton trial has made it likely that the Crown will move quickly to prosecute 20 additional murder charges, some legal experts said yesterday.

They said that while the six convictions for second-degree murder against Mr. Pickton will almost certainly result in him spending the rest of his life behind bars, the Crown has both a moral and practical obligation to take one more crack at convicting Mr. Pickton of the ultimate crime.

"There are huge taxpayers' dollars at stake, but I still think the Crown will choose human life over the value of a dollar," said Toronto defence lawyer Edward Sapiano. "The government also cannot be seen to be walking away from the other victims, saying their lives were not of equal value."

However, veteran defence counsel John Rosen said prosecutors must keep a wary eye on a constitutional clock that is running on the remaining charges.

Mr. Rosen said the Crown cannot realistically push for a trial until any appeal of yesterday's verdict is concluded, yet the inevitable passage of months or years during the appeal process could lead to the remaining charges being thrown out because of unreasonable delays.

"The clock is running, and the longer the Crown waits, the more trouble it is in," he said.

"I disagree," remarked Mr. Sapiano. "Don't fret about that. There have only ever been two murder cases thrown out because of unreasonable delay, and one of them was overturned on appeal." Both Mr. Rosen and Toronto defence counsel Cindy Wasser emphasized that the jury verdict was a clear signal that it believed somebody more culpable than Mr. Pickton remains at large.

"The jury did not accept that he was the principal," Mr. Rosen said. "They were saying that one or more people were actual principals, and that Pickton's degree of participation did not amount to first-degree murder.

"This does not defy logic," he added. "A fair reading of the verdict is that he was not the murderer, but he was a helper."

Inasmuch as the verdict was a defeat for the Crown - since its case was predicated on Mr. Pickton having planned and carried out the murders - Mr. Sapiano said that only the defence is likely to have sufficient grounds to mount an appeal.

He said its foremost ground of appeal involves the trial judge's correction - midway through the jury deliberations - to his instructions about how an accused can "indirectly" be guilty of murder.

"Coming that late in the jury deliberations, the defence can argue that it would have had an overwhelming impact, and superseded all the other instructions," he said.

However, Mr. Sapiano said the defence will nonetheless face an uphill battle in winning a new trial. To blunt its attack, he said, the Crown need only show that the error was too minor to have caused a "substantial miscarriage of justice."

Ms. Wasser said the sheer number of murders in the Pickton case, coupled with the horrendous circumstances in which they occurred, makes it highly likely that the trial judge will set Mr. Pickton's parole eligibility period close to 25 years.

B.C. Attorney-General Wally Oppal says no decision has been made on a second trial for Robert Pickton, flatly rejecting suggestions that the Crown has already formulated a plan to either proceed or not proceed.

Mr. Oppal said Mr. Pickton will get another trial if prosecutors decide it is in the public interest to have such a trial. Thinking aloud, Mr. Oppal said the "public interest" includes the 20 other victims and their families.

"At the end of the day, in order for them to have some kind of closure, I suppose it's necessary to have a second trial and determine whether or not Pickton did, in fact, kill those 20 other people so, from that perspective, it may be the right thing to do," he said. "But on the other side of the coin is do you put everybody through another ordeal or another trial."

With a report from Ian Bailey

Categories of homicide

First-degree murder

Involves an intentional killing with elements of planning and deliberation, or where the victim was forcibly confined or sexually assaulted. It carries an automatic sentence of life imprisonment. A defendant is ineligible for parole until 25 years have passed. Under the Criminal Code's "faint hope" clause, however, the defendant can ask a jury after 15 years have passed to relax the 25-year ineligibility period.

Second-degree murder

Is intentional, but unpremeditated. A typical murder of this type occurs during a domestic dispute or a bar fight, where the perpetrator abruptly grabs a gun or knife and intentionally inflicts a fatal blow. It carries an automatic life sentence, with a parole eligibility period set by the trial judge at between 10 and 25 years.

Manslaughter offence

Occurs where there is no intention to kill, yet where an unlawful act results in death. Typical scenarios include a reckless driver who kills a pedestrian or a careless hunter who mistakenly shoots a passerby. Sentences range from no prison time to life imprisonment.

Kirk Makin

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