VANCOUVER EASTSIDE MISSING WOMEN
10 officers working full time to disclose evidence to Pickton
Vancouver police say obligation to defence 'complicates our lives'
December 26, 2004
Of the nearly 100 police officers assigned to the Missing Women Task Force, approximately 10 are dedicated full time to disclosing evidence to the lawyers of alleged serial killer Robert (Willy) Pickton, according to a task-force spokeswoman.
"It does complicate our lives," said Vancouver police Sgt. Sheila Sullivan, spokeswoman for the task force. "Just the sheer volume of material [means] you need dedicated staff dealing with it on an ongoing basis, so it does draw away from resources you could be putting into investigative avenues."
By law, the Crown and police must provide virtually all the evidence they have to the accused's lawyers.
In the case of the missing women, that disclosure is taking place at the same time as the investigation.
At a court hearing on Monday, Dec. 20, B.C. Supreme Court Associate Chief Justice Patrick Dohm pleaded with the families of the missing women for understanding as he once again put off setting a trial date for Pickton.
"I think it is a delay everyone does understand, or should understand," said Dohm.
But many family members have made it clear they do not understand why Pickton, who was first arrested nearly three years ago, may not face trial until early 2006.
Lawyers for both the Crown and the defence have said the primary reason is the sheer volume of evidence in this case. For example, police labs have already processed more than 100,000 swabs.
But the timing is also complicated by the fact that, unlike in most criminal cases, the court case is taking place virtually simultaneously with the police investigation.
On Feb. 22, 2002 -- less than three weeks after police began their search of the accused's Port Coquitlam farm -- Pickton was charged with two counts of first-degree murder.
By April, three more murder charges had been laid against him, and the number continued to increase with each passing month.
Pickton is currently facing 15 first-degree murder charges and the Crown has said it intends to lay another seven -- bringing the total to 22.
But police say they have found the DNA of 30 women on Pickton's farm -- meaning further investigation could yield even more charges.
Sullivan stressed that finding the DNA of a missing woman on the farm does not necessarily mean she has been murdered.
DNA can be identified by something as small as hairs in a brush or the sweat left on a telephone receiver, said Sullivan.
Though she added: "When you find DNA in a place where we know other people have been killed, it adds to the inference that harm has been caused to them and they've been killed.... If you were to look at the evidence, the physical evidence may not be good enough to see a courtroom, but if you look at the circumstances you can draw a pretty strong inference."
With each new DNA sample that is found, said Sullivan, investigators have to go back to the case to investigate further.
"In the event that we find [the] DNA of a particular woman on the farm, we assess how much investigating we've done and make a determination of additional steps, additional people to talk to, additional records to look at, and that case then takes on a new sense of urgency," she said. "What we're doing in our missing-women cases is exactly the same type of investigative steps that any other police officer would take for any other homicide."
Sullivan said the parallel timing of the court case and the police investigation in this case is "a very unique situation."
"In most cases, the investigation is pretty well over by the time the court process has begun. So issues like disclosure are a lot easier to deal with, because the investigative material is all sitting there. It's a finite amount of material, and you photocopy it and disclose it and that's it."
Disclosing evidence in the missing-women case is more complex, said Sullivan, in part because it takes officers away from investigating and partly because disclosing some evidence too early could hamper the ability of police to do their work.
Ravi Hira, a senior Vancouver lawyer who has worked as both a prosecutor and a defence lawyer, said the reason the prosecution has to disclose so much to the defence is due to a 1991 Supreme Court ruling.
"Before December 1991, there was informal disclosure," said Hira. "What would happen is the Crown would lay a charge [and] the defence would ask for particulars. They would get the Crown narrative and witness statements and then they would have to make applications [to the court] for more disclosure, and have to show why the disclosure was required."
But in its landmark Stinchcombe ruling, the Supreme Court of Canada ruled that that wasn't good enough, that prosecutors had to hand over almost everything.
"The Crown is [now] required to disclose to the defence all relevant information for the defence [and] any information that may lead to a chain of inquiry that may lead to relevant information," said Hira.
Such a broad ruling means even information the Crown doesn't plan to use to make its case -- leads that didn't pan out, information on other suspects -- has to be disclosed so the accused can defend himself.
"The purpose of disclosure is so the defence can carefully evaluate the strengths and weaknesses of the Crown's case and make the appropriate decisions," said Hira.
And while so much disclosure can lead to delays, Hira says, in some cases it can actually speed up proceedings -- for example, by causing a defendant to plead guilty when he realizes the strength of the case against him.
Disclosure can also result in both sides agreeing on certain facts -- as happened in the Air India case.
"If you have full disclosure and you review [it] and you see that the other side can prove things, it's pointless to sit around a courtroom listening to them prove things," said Hira.
Pickton's lawyer, Peter Ritchie, was unavailable for comment last week, though in court on Dec. 20 he referred to the charges against his client as a "moving target."
Greg DelBigio, a Vancouver defence lawyer not connected to the Pickton case, said the shifting nature of those charges makes it difficult for Pickton's lawyers to decide how best to defend him.
"Typically, before an accused person is going to have to make any decisions about his or her case, the accused is entitled to know the case against him or her, and that would include the charges," said DelBigio. "[So] where there's an ongoing investigation, it becomes difficult -- if not impossible -- to make fundamental decisions, because the process is evolving and what might be true one day might not be true the next."
The sheer number of possible charges against Pickton has led some to question whether the Crown would be better to draw a line on the file -- going forward with the 15 or 22 cases it feels it can prove now, and then prosecuting the other charges, if any, at a second trial.
While he refused to comment directly on the Pickton case, Hira said that on the face of it, it would be difficult for a jury to be expected to keep many murder cases in their heads at once.
"You have to prove each count beyond a reasonable doubt," said Hira. "The counts will have common witnesses.... But in addition to that, each of the counts will have distinct witnesses dealing with the way that particular incident unfolded.."
And while Sullivan refused to comment on the specific evidence against Pickton, she acknowledged that some charges are stronger than others.
"Each case is unique and although they've all been lumped together, the evidence varies from case to case," she said.
As a practical matter, said Hira, the number of charges an alleged serial killer faces doesn't make much difference.
"Without commenting on Pickton at all, if you get a conviction for four counts of first-degree murder or a conviction for 50 counts of first-degree murder, the sentence to be served is the same," he said. "The only question is closure, and things of that nature."
The DNA of Ernie Crey's sister Dawn has been found on the Pickton farm, but Pickton faces no charges in connection with her. On Monday, Crey told reporters that he hoped the Crown wouldn't go forward with some charges but not others.
"I'm still in limbo on whether charges will be brought," he said. "It's a terrible place to be in, and one that causes me and my brothers and sisters a lot of sleepless nights.... If the trial were to proceed and there were families with missing loved ones living without answers ... I would not want to be a member of a family in those circumstances."
But even if the Crown decides to proceed with all charges at once, Pickton may still not face them all in one go.
That's because the defence has the right to apply for "severance" -- in essence, breaking out the charges into separate trials.
"Once a prosecutor has made his decision about how he should proceed, it's open to the accused to apply for severance to argue that some charges are distinct from others and should be separated," said DelBigio.
There are numerous reasons why a defendant may want to separate the charges against him, said DelBigio, such as wanting to offer an alibi for one charge without exposing himself to cross-examination on the others.
At Monday's court hearing, no one was willing to predict exactly when Pickton's trial may finally begin. And police say they can't be much more specific about when they will be done analysing material from the Pickton farm.
"It could take another year to get through everything if we were going to process everything, and those decisions will have to be made as time goes on," said Sullivan.
DelBigio said that while the delays may be frustrating, especially for the families, it is better than speeding things up and making mistakes.
"If a case is rushed [and] an appeal court finds that somehow the convictions are not justified in law, or the trial process has been unfair, the whole thing is going to be sent back for a retrial," he said.
Perhaps the biggest problem with the Pickton case, said Sullivan, is that it is so different from anything that has come before it, making issues over things like disclosure that much more complicated.
"We don't have any precedents to draw from," she said. "We're sort of making it up as we go along, and doing the very best that we can."
© The Vancouver Sun 2004
Updated: August 21, 2016