Op-Ed: From Bedford to the MWCI, Chronicling the Legal Consequences of Pickton
Reading through Canada (Attorney General) v Bedford,  3 SCR 1101 [Bedford], it is clear that the crimes of serial killer Robert Pickton, and the phenomenon of missing and murdered women from Vancouver’s Downtown Eastside (DTES), were instrumental the Supreme Court of Canada’s decision to strike down three Criminal Code, RSC, 1985, c C-46 provisions related to sex work. At various stages of its analysis, the court illustrates how the provisions prevented Pickton’s victims from taking reasonable measures to ensure their personal security, contrary to s. 7 of the Canadian Charter of Rights and Freedoms [Charter]. The court’s decision to strike down s. 210 (Bawdy-House Prohibition) and ss. 213(1)(c) (Communicating in Public for the Purposes of Prostitution) appears to be linked to how the provisions may have impacted sex workers from the DTES when Pickton was active.
Nearly 12 years after Pickton’s arrest, we are finally in a position to assess the legal legacy of Canada’s worst serial killings. The legal proceedings that resulted from Pickton’s crimes include a criminal prosecution, public inquiry, test litigation in the form of Bedford, and most recently, civil claims filed on behalf of his victims’ families.
R v Pickton
Robert Pickton was initially charged with the 27 counts of first-degree murder, significantly lower than the number women he has admitted and is believed to have killed. However, the trial judge quashed one count, and separated the remaining charges into two separate categories comprising of 6 and 20 charges respectively. The Crown proceeded first with the 6 counts of first-degree murder, and after successfully convicting Pickton on 6 counts of second-degree murder, decided to discontinue the outstanding 20 charges.
This decision was eventually appealed to the Supreme Court of Canada on the basis of whether the trial judge properly instructed the jury on the legal principles that are able to ground criminal liability. The question was whether the jury was given adequate explanation of the different levels of participation that would implicate Pickton in the murders. Either Pickton was principally involved in the murders or played the part as an active participant by aiding and abetting them. In murder charges, legal liability in both instances is the same. The trial judge did not distinguish between being a principal, co-principal or an aider and abettor to the murders, and how the differing degrees of involvement would ground criminal liability. However, the majority in R v Pickton,  2 SCR 198 [Pickton] determined that this did not matter, as the trial judge adequately delineated the potential acts that could have grounded liability. While the trial judge could have been more precise, his jury instructions were sufficient.
The Missing Women Commission of Inquiry
In 2010, the Province of BC launched a public inquiry into missing and murdered women from the DTES. The Missing Women Commission of Inquiry (MWCI) was charged with, among other things, reviewing and making findings of fact in relation to the police investigations into women reported missing from the DTES during the time period in which Pickton was active. The MWCI was also required to recommend changes to police investigations involving missing women and multiple homicides.
At the outset, the Province of BC’s decision to select Wally Oppal, QC as commissioner and not to fund the participation of certain community groups received significant criticism. During the actual inquiry, independent commission counsel for victims’ families, DTES interests and Aboriginal interests frequently sparred with the commissioner for failing to hear important testimony, assess allegations of systemic discrimination and adequately include the voices of Aboriginal women. Commission counsel for Aboriginal interests would resign midway through the inquiry, while the victims’ families and their counsel would walk out on the second last day of testimony. While some called for an “inquiry into the inquiry” before the inquiry had even finished, the BC Civil Liberties Association, Pivot Legal Society and West Coast LEAF published Blueprint for an Inquiry: Learning from the Failures of the Missing Women Commission of Inquiry, to identify lessons for future commissions of inquiry involving marginalized communities.
In the end, the commissioner published an exhaustive report, extensively detailing systemic investigative failures. The report outlined over 60 recommendations to the Province of BC, including fundamental changes to the way policing is done in the province. As of November 2013, the Province of BC has stated that it has begun implementing 28 of the MWCI recommendations.
Canada v Bedford
Alan Young, lead counsel for the women who brought forward Bedford, has stated that the idea behind the challenge crystallized for him when he saw images of police officers scouring the Pickton farm for the remains of the missing women. This is evident in the court’s judgement, which references the experience of missing and murdered women from the DTES in its determination that s. 210 (Bawdy-House Provision) and ss. 213(1)(c) (Communicating in Public for the Purposes of Prostitution) violate s. 7 of the Charter by compromising the security interests of sex workers.
In relation to s. 210, the court remarked that “a law that prevents street prostitutes from resorting to a safe haven such as Grandma’s House while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose.” Grandma’s House refers to the safe house established by sex trade activists in the DTES when Pickton was active. During this period, on average one woman went missing from the DTES every month in a neighbourhood no bigger than 2 km². Grandma’s House provided condoms, food and rooms for rent where sex workers could bring their clients. However, in 2000 the police shut down Grandma’s House, charging its operators with s. 210, operating a bawdy-house. In the view of the court, shutting down Grandma’s House made sex workers in the DTES more susceptible to violence. Since the provision’s aim was to prevent nuisances, the court found it to be grossly disproportionate in its effects, as it did so “at the cost of the health, safety and lives” of sex workers. The provision violated s. 7, and therefore, was unconstitutional.
The court also assessed the constitutionality of ss. 213(1)(c) on the basis of whether it would have enhanced or compromised the personal security Pickton’s victims. The court affirmed the application judge’s determination that for street sex workers, public communication is an essential tool to screen potential clients and assess risk. The provision imposed a grossly disproportionate effect on the security interests of sex workers, and as a result, was in violation of s. 7. While it is conceivable that certain predators may pass this initial screening or street sex worker themselves may turn a blind eye to the risk a client poses, being able to communicate in public has the ability to decrease the risk sex workers face. In the words of the court, “[i]f screening could have prevented one woman from jumping into Robert Pickton’s car, the severity of the harmful effects is established.”
Following the findings of fact outlined in the MWCI report, family members of the women believed to have been or positively identified as victims of Pickton have filed civil claims against him, his family and state actors involved in the investigations. In total, the families of 9 women have filed claims, including one minor, who was 8 months old when his mother disappeared. The victims’ families seek financial restitution for the harms that resulted from the crimes themselves, as well as the police investigative failures that allowed them to occur (these claims can be accessed here).
Ironically, Pickton filed his defence on the day Bedford was released, and denied any responsibility for the women he is alleged or even convicted of murdering. Also of note is the position taken by the City of Vancouver, which represents the Vancouver Police Department, and the Province of BC and Government of Canada, which represents the Royal Canadian Mounted Police (RCMP). The VPD and RCMP were involved in investigating missing women from the DTES, and as documented by the MWCI, were guilty of critical and systemic investigative failures. Both police departments eventually apologized for not doing more to investigate the disappearances of the missing women or catching Pickton sooner. However, in both the defences filed, the police forces maintain that they acted reasonably and breached no duty owed to the women. This has led some critics to claim that the VPD and RCMP have taken their apologies back.
With the benefit of hindsight, one might consider the legal victories that have resulted from Pickton’s crimes as being easily won, given their horrific nature and the large number of victims. However, this would discount the considerable obstacles faced by victims’ families, community advocates and lawyers who have fought long and hard to honour the memories of women who went missing from the DTES. If anything, the struggles of counsel representing victims’ families and marginalized communities during the MWCI demonstrate the significant barriers faced. This is even more apparent in the government’s decision to not provide all victims’ families with financial restitution, which has resulted in the most recent set of litigation. Moreover, while victory in Bedford is significant, the federal government may respond with legislation that continues to prevent sex workers from taking reasonable measures to ensure their safety. From this perspective, there is still much work to do.