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The British Columbia Court of Appeal today released its decision on the appeal of Robert Pickton’s conviction in the gruesome mass murder case involving six women. At trial, the Crown Attorney had argued strenuously that Pickton was solely responsible for the murders, but after six days of deliberations the jury asked the judge to answer the following question: “When considering Element 3 [that Mr. Pickton was the person who killed the victim] on one or more of the counts, are we able to say ‘yes’ if we infer that the accused acted indirectly?” By its question, the jury seemed to be considering the possibility that others had been involved in the murders.

The trial judge had earlier instructed the jury that, to convict him of murder, the jury must find that Pickton “actively participated in the killing of the victim” but that it was “not necessary that you find that Mr. Pickton acted alone.” Faced with the question from the jury, the trial judge reiterated these instructions and corrected another part of his instructions to clarify that Pickton had to have “actively participated in the killings.” The Crown, sensing that its theory had not been accepted, was happy to go along with this.

In a 2-1 decision, a majority of the Court of Appeal agreed with the trial judge’s approach and dismissed the appeal. The dissenting judge said the trial judge failed to properly instruct the jury on alternative theories of liability, resulting in a miscarriage of justice warranting a new trial.

Without question, the prospect of a second trial to relive these terrible events was not relished by anyone. The dissenting judge acknowledged this. However, if a serious error of law was made which compromised the fairness of the trial, a new trial would be the inevitable result. Under the Criminal Code, where a judge of a Court of Appeal dissents on an issue of law, an appeal may be presented to the Supreme Court of Canada as of right. That is what happened here. The Pickton appeal will soon be dealt with by our nation’s highest Court.