VANCOUVER The Crown wants the B.C. Court of Appeal to order a new trial for Robert Pickton so he can be tried on 26 counts of first-degree murder.
The Crown outlined Monday in its notice to the Appeal Court a number of errors it said Justice James Williams made during the lengthy jury trial that began in January 2006.
The jury acquitted Mr. Pickton last month on six counts of first-degree murder but found him guilty instead of second-degree murder on those counts.
Mr. Pickton was charged with 26 first-degree murder counts but Judge Williams divided them into two separate proceedings, with only six tried last year. A trial on the remaining 20 counts was planned for this year.
B.C. Attorney General Wally Oppal said Monday he has always believed Mr. Pickton planned to kill his victims, one reason why the Crown is challenging the second-degree murder verdict.
Mr. Oppal said the Crown's appeal is partly a precaution. He expects the defence will also file a notice of appeal of the former pig farmer's conviction.
If a defence appeal was successful, he said, any new trial ordered would be based on second-degree murder.
“We have always been of the view that there was planning and deliberation ... so if the matter is going to go to the Court of Appeal our lawyers would argue that the planning and deliberations have been proved and there should have been convictions for first-degree murder,” Mr. Oppal said.
The trial judge also erred by directing that the counts on the indictment be severed and that the trial proceed on only six of the 26 counts, says the Crown notice of appeal.
Mr. Pickton was initially charged with 26 counts of first-degree murder but the judge ruled in August 2006 during the legal argument phase of the trial that the indictment be severed into two trials: the first with six counts and the second with the remaining 20 counts.
Judge Williams ruled that trying all the counts at once would pose an unreasonable burden on a jury.
“I am satisfied that the interests of justice require severance of counts from the present indictment,” Judge Williams wrote.
Judge Williams determined Mr. Pickton should be tried on six charges first because the evidence in those cases was materially different from the evidence in the other 20.
Mr. Pickton was found guilty Dec. 9 and sentenced to life imprisonment with no chance to apply for parole for 25 years.
The notice of appeal filed by the Crown is called a “Crown appeal against acquittal” even though Mr. Pickton was found guilty on six counts of second-degree murder.
The Crown will argue in the Appeal Court that Mr. Pickton should not have been acquitted by the jury on six counts of first-degree murder.
The Crown appeal comes despite the fact the sentence against Mr. Pickton is virtually identical: a conviction on first-degree carries a life sentence with no chance to apply for parole for 25 years.
A conviction on second-degree murder also carries a life sentence but the minimum period for parole application can be made between 10 and 25 years, depending on the judge's ruling. In Mr. Pickton's case, the judge set his parole eligibility at 25 years.
The Crown says it will also argue that the judge erred by failing to instruct the jury that dismemberment and disposal of the victims' remains was relevant to the issue of planning and deliberation.
Mr. Pickton was found guilty of murdering Sereena Abotsway, Mona Wilson, Andrea Joesbury, Georgina Papin, Marnie Frey and Brenda Wolfe.
The jury heard evidence during the trial that the severed heads of Ms. Abotsway, Ms. Wilson and Ms. Joesbury were found on the property. The heads had been bisected vertically with the victims' hands and feet placed inside the heads.
The partial jawbones of Ms. Frey and Ms. Wolfe were also found on the property, as were some of hand bones identified to Ms. Papin.
The notice also says the judge made an error when he reversed an initial ruling that admitted evidence about bones belonging to an unidentified woman who became known as Jane Doe.
The jury heard evidence about Jane Doe over several days at the trial but then the judge told the jury to disregard all the Jane Doe evidence.
The defence was also expected to file an appeal this week.
Adrian Brooks, a Victoria-based lawyer who played an integral part of the large Mr. Pickton defence team, said he and most of the remaining members of the defence will not be involved in the appeal.
He said Vancouver defence lawyer Gil McKinnon would handle the appeal. The lawyer, who is a well-known and long time defence lawyer, was not immediately available to comment.
Mr. Brooks had not seen the Crown's notice of appeal but expressed surprise.
“Do they really want another trial?” said Mr. Brooks.
Two other areas where the Crown says the judge erred include decisions to keep the jury from hearing evidence related to a woman named Wendy Eistetter, as well as evidence related to three other women whose names are included among the 20 remaining counts.
All the jury heard about Ms. Eistetter was that she was working as a prostitute in the Downtown Eastside and that Mr. Pickton picked her up in a truck and drove her to his property on March 22, 1997.
Victoria-based defence lawyer Michael Mulligan noted that the Crown appeal can only be based on an error of law whereas the defence can appeal on perceived errors of fact and law.
“They (the Crown) have to show that there was some legal error in either one of the rulings with respect to admissibility of evidence or the instructions to the jury,” said Mr. Mulligan, who was not connected to the Pickton proceedings.
“If the Crown demonstrated there was an error of law made by the trial judge that prejudiced the Crown in some fashion ... and if the Appeal Court concluded that the (error) might have affected a conviction for first-degree, their option would be to send it back for a new trial.”