ADVERTISEMENTS

Given the gravity of Robert William Pickton's crimes, it will be no surprise to most Canadians that on his appeal to the Supreme Court of Canada this past summer, he failed to convince the Court that a new trial was warranted on the basis that the trial judge's jury instructions were so flawed as to occasion a miscarriage of justice.

Pickton's second degree murder convictions for six grisly murders were upheld by the Supreme Court.

The case, however, is not only noteworthy for the horrendous crimes committed by Pickton and the difficulty of prosecuting in the cases of the many other women who were murdered. It also serves as yet another reminder of the crucial importance of properly-crafted jury instructions and the potential impact they can have on trial fairness.

As a general matter, the instructions, whether given in response to a jury question or otherwise, must accurately convey the relevant law, which is easier said than done. There are boiler-plate instructions (sometimes referenced as pattern jury instructions) that can be used by trial judges in relation to some matters. They are not universally followed nor perhaps suited to every conceivable circumstance.

Do trial judges need to be perfect in their first recital of a given instruction to a jury?

The Pickton decision, echoing previous decisions of the Supreme Court, provides a qualified "no." Trial judges, at least in some circumstances, do have a bit of wiggle room. If a mistake is made that can be remedied through a subsequent instruction while still preserving trial fairness, the making of such an instruction is appropriate and should be made.

Similarly, if an omission is made that does not render the whole of the given instruction erroneous at law it may still stand.

[84] Having found an error on a question of law, I must now turn to the curative proviso found in s. 686(1)(b)(iii) of the Criminal Code. As our Court has held on many occasions, not every error will lead to the quashing of a verdict of guilty by an appellate court (R. v. Van, 2009 SCC 22 (CanLII), 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34).

[85] Some errors may be so innocuous or so irrelevant to the questions at issue that there is little likelihood that they would have had any impact on the verdict. Other errors may be more serious, but the proviso will also apply because 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 (R. v. Trochym, 2007 SCC 6 (CanLII), 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 82). In my view, this is the case in the instant appeal. As mentioned above, there were serious errors in relation to a key issue at trial, criminal participation in the offences, in both the instructions to the jury and in response to its question. Nevertheless, in order to assess the possible impact of these errors, the context of the trial as a whole must be kept in mind.

[86] The trial was all about the participation of Mr. Pickton in the murders of the six victims. I will not attempt to review here all of the evidence offered by the Crown during what was a very long trial. However, on a review of the record, in my opinion, the Crown presented compelling, overwhelming evidence of the participation of Mr. Pickton in the murders. From whichever perspective we consider the participation of Mr. Pickton, on the evidence, he was necessarily either a principal or an aider or abettor. It would surpass belief that a properly instructed jury would not have found him guilty of murder in the presence of such cogent evidence of his involvement. Indeed, this properly instructed jury would likely have convicted Mr. Pickton of first degree rather than second degree murder.

See the Court's full ruling: R. v. Pickton, 2010 SCC 32 (CanLII)

- Robert Tanha, Toronto

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