VANCOUVER - Three months after Robert Pickton was found guilty on six counts of second-degree murder, a high-ranking judge issued an appeal for patience from families frustrated that 20 other murder charges still had not been heard.
"It has not been overlooked that there are many persons whose voices have not been heard," Associate Chief Justice Patrick Dohm said, speaking in the same courtroom where Pickton's lengthy trial was held.
"The court appreciates the silent voices' cry for a conclusion to this ordeal."
Dohm spoke during a hearing on the timing of Pickton's second trial, addressing his remarks to the families of an additional 20 alleged Pickton victims contained in a second indictment.
The defence wanted the second trial on those 20 counts to proceed as soon as possible. The Crown wanted to wait until after his appeal on the first convictions had been heard.
Dohm ruled Pickton wouldn't face the second trial until the appeal of his original convictions is decided.
The B.C. Court of Appeal is set to hear the appeal arguments starting March 30.
Pickton initially faced 26 first-degree murder counts, but the trial judge separated the charges into two trials to simplify the process.
Shortly after Dohm's decision, Attorney General Wally Oppal announced that Pickton would not face trial on the remaining 20 counts unless his six murder convictions are overturned on appeal.
If the Appeal Court upholds the six convictions, the B.C. Criminal Justice Branch will drop its plans for a trial on the remaining 20 murders Pickton stands accused of committing.
If the court orders a new trial, the Crown wants all 26 first-degree counts to be heard at once.
Clearly, much rests on the appeal.
Pickton was convicted in December 2007 of killing Sereena Abotsway, Mona Wilson, Andrea Joesbury, Georgina Papin, Marnie Frey and Brenda Wolfe.
Appeal courts usually take only a day or two to hear arguments. The length of time set aside for the Pickton appeal -- two weeks -- is extraordinary.
"I've never done an appeal that's taken me so long to prepare,"' said Vancouver lawyer Gil McKinnon, who will represent Pickton. "This is the most complex appeal."
The defence will argue only the grounds of appeal that arose from Justice James Williams's instructions to the jury when it came back on the sixth day of deliberations with a question, said McKinnon.
The question was: "When considering Element 3 on one or more of the counts, are we able to say `Yes' if we infer the accused acted indirectly?"
The jury was referring to one of the five elements Williams laid out in his instructions to establish whether Pickton is guilty on each count.
Element 3 asked the jury to decide whether Pickton was the individual who killed the person named in the murder count.
The other elements dealt with whether the victim died by an unlawful act, the time and place of death and whether Pickton meant to cause their deaths and acted deliberately.
In response to the jury's question, Williams told them to delay their deliberations. Two hours later, he told them they could consider whether they believed Pickton actually shot some of the victims or was an active participant but didn't pull the trigger.
The judge said he had been "not sufficiently precise" and "in error" in three paragraphs of his original charge.
"I regret that I misinformed you," he told jurors. "It was inadvertent. However it is important that you be instructed (as) properly as I'm able and thus these amendments have been provided to you."
The change involved his instructions on the deaths of three of the six women -- Abotsway, Wilson and Joesbury.
The judge gave each juror three sheets and said they replaced three paragraphs of his earlier charge.
"If you find that Mr. Pickton shot Ms. Abotsway 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."
The three victims' bisected heads were found near the trailer of the accused. All had been shot in the head.
Some legal observers emphasized that a trial judge's errors must be quite serious for an appeal court to order a new trial.
The Supreme Court of Canada has said that an accused is entitled to a fair trial, not a perfect trial, said one source who requested anonymity.
"This (Pickton case) is interesting in that there are appeals from both sides and . . . that to me means the judge must have been right," he said.
The source said the "vexing question" for him was why the jury acquitted Pickton of first-degree murder but found him guilty of second-degree.
Susan Wishart, a criminal lawyer who speaks on legal issues for the B.C. branch of the Canadian Bar Association, speculated the jury "could have found that somebody else was running all of this and he was there and assisting."
"So is he planning and deliberating? No. But does he have an intent to kill? Yes. That's second-degree and not first," she said.
The Appeal Court is careful not to speculate about why a jury arrived at a certain decision, said Wishart.
"But at the same time they are very careful about saying, `Yes, this evidence or instruction from the judge could have affected their verdict.' "
Oppal said the Crown was challenging the verdict because it believed Pickton planned to kill his victims and should have been found guilty of first-degree murder.
The Crown also claims the trial judge erred in deciding to hear only six counts. It will also argue that the judge erred by failing to instruct the jury that dismemberment and disposal of the victims' remains on the Pickton property was relevant to the issue of planning and deliberation.
