R. v. Pickton (2010): The SCC Disagrees on the Correct Path to the Same Conclusion

Last week, the SCC dismissed the appeal of Robert Pickton in R. v. Pickton, 2010 SCC 32 [Pickton II], upholding the majority decision of the British Columbia Court of Appeal in R. v. Pickton, 2009 BCCA 299 [Pickton I]. The SCC affirmed that impugned jury instructions did not negatively impact the fairness of the trial, or constitute a miscarriage of justice.

At trial, Pickton was convicted of six counts of second degree murder stemming from the disappearance of a number of women from Vancouver’s notorious downtown eastside. Throughout the hearing, the Crown was consistent in its claims that Pickton alone shot and killed the six women. Pickton’s defence avowed the possibility of the involvement of others and asserted that the Crown failed to prove Pickton was the sole perpetrator. The goal of the defence, as usual, was to simply raise a reasonable doubt that Pickton murdered the woman.

The Impugned Jury Instructions

Counsel for Pickton requested that the trial judge instruct the jury according to the Crown’s theory (that Pickton was the sole perpetrator and shot the six women) and again in relation to the defence theory that others were involved. On agreement of both parties, the following instruction was given to the jury by the trial judge:

If you find that Mr. Pickton shot [name of victim], you should find that the Crown has proven [element 3, the identity of the killer]. 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…

During the trial the jury posed the following question to the judge in relation to the above instruction:

When considering Element 3 [the identity of the killer] on one or more of the counts, are we able to say “Yes”, if we infer that the accused acted indirectly?

In response, the judge instructed the jury of the following:

If you find that Mr. Pickton shot [name of victim] 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 on the charge of murdering her…[Emphasis added]

The defence claimed that the insertion of the phrase “or was otherwise an active participant in her killing” suggested that the accused may have aided or abetted the crimes, and as a result the trial judge should have instructed the jury on the law of aiding or abetting.

Pursuant to s. 21 of the Criminal Code, R.S.C. 1985, c. C-46, liability for offences may occur by primary or principal liability (the accused actually committed the offence), or by secondary (or party) liability (the accused took part in the offence). In general, whether the accused committed the offence or aided and abetted, the legal consequences are the same. The relevant section states, in part:

(1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it…

The Defence Argued that the Trial Judge Moved the “Goal Posts”

The defence argued that the impugned instruction, including the newly introduced phrase—“was otherwise an active participant in her killing”—presented an alternate, ill-defined route to conviction late in the trial. What’s more, the introduction of the possibility of the involvement of others represented new “goal posts” and “adversely [impacted] on the fairness of the trial.”

On denying the appeal, Charron J., writing for the majority, argued two main points. First, the theory that others may have possibly been involved could not have come as a surprise to the jury or the defence. In fact, throughout the trial Pickton’s counsel consistently argued the potential implication of others. According to Charron J.:

The fallacy of Mr. Pickton’s argument lies in the fact that the defence theory itself put the participation of others at issue. Throughout the trial, the defence by its approach urged the jury to consider that others may have actually killed the victims.

The second point related to the adequacy of the jury instructions. Even though there was no explicit instruction on aiding and abetting, the majority ruled that the relevant law had been explained to the jury sufficiently, considering the facts and evidence.

Different Paths Leading to the Same Conclusion

The first point is reasonable. For the defence to argue that the “goal posts” had been moved and that they were somehow surprised by the introduction of “an alternate, ill-defined route to conviction” was a tactic that could not stand on the facts. However, the characterization of the impugned instructions as presenting an “ill-defined route to conviction” was rational. Even though it is unlikely that the defence was taken off guard by the alternate route to conviction, in my opinion the jury should have been more clearly instructed on that route, hence the use of the term “ill-defined.”

With all due respect, the majority’s assertion that the vague jury instructions in this instance were sufficient to educate the jury on the law of aiding and abetting sets a flawed precedent. Even more curious is the majority’s acknowledgement that the aiding and abetting instructions should have been given. Charron J. stated:

Based on the evidence, the trial judge could have, and in hindsight probably should have, also instructed the jury on Mr. Pickton’s potential liability for acts of aiding and abetting… [But]…[t]he instructions could not have led the jury into improper reasoning.

Here, Charron J. appears to assert that since, in the present case, the outcome would not have changed as a result of modified instructions, those instructions were not necessary.

LeBel J.’s Partially Concurring Opinion

In a partially concurring opinion, LeBel J. held the impugned instruction did represent an “ill-defined route to conviction.” However, despite the error by the trial judge, the evidence weighed so heavily in favour of Pickton’s guilt that the appeal should be dismissed.

According to LeBel J.: “”it is…important that the applicable law be carefully delineated and clarified for future cases…” Besides, the curative proviso found in s. 686(1)(b)(iii) of the Criminal Code permits an appeal court to dismiss the appeal “if it is of the opinion that no substantial wrong or miscarriage of justice has occurred”, even if the trial court decision contains “a wrong decision on a question of law.” Accordingly, “the proviso will…apply [if] there is overwhelming evidence of the guilt of the accused and, on that evidence, a properly instructed jury would necessarily return a verdict of guilty…” Such is the case here.


I find LeBel J.’s arguments to be more persuasive. As Canada’s highest court, the SCC should make a concerted effort to clarify the law as much as possible. Furthermore, providing specific instructions and relying on the use of the curative proviso in s. 686(1)(b)(iii) results in a similar outcome for the accused. Not only would the guilty verdict have been upheld, but the law clarified in the same instance.

By ensuring that the instructions were explicitly communicated to the jury, the SCC would either be raising or upholding a specific standard in relation to the adequacy of jury instructions. It is unclear how this could be a negative. According to LeBel J:

“it remains the duty of the trial judge to convey to the jury as triers of fact the relevant legal principles and how they apply to the evidence adduced at trial, so as to avoid the legally irrelevant uncertainty which otherwise might arise.”

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