Media seeks access to videos and other exhibits filed at Robert Pickton's first trial
Neal Hall
Vancouver Sun

Robert Pickton in court in 2002.
Robert Pickton in court in 2002.

NEW WESTMINSTER - Nothing could be more prejudicial to the possible second trial of serial killer Robert (Willie) Pickton than the guilty verdict and sentencing at the first trial last year, a media lawyer argued recently in an effort to get videotapes and other exhibits from that trial released.

"Multiple trial scenarios are nothing new," media lawyer Dan Burnett told B.C. Supreme Court Justice Jim Williams during a three-day hearing last week.

The judge, who has reserved judgment on the media application, initially banned publication of the legal arguments but subsequently lifted most of the ban, allowing the media to report on the proceedings.

Burnett told the judge that in this case, it was Pickton who sought to be tried first on six of the 26 charges he was facing "with the obvious effect of creating the situation in which the second trial must occur with the evidence and verdict from the first trial known to the public."

The lawyer cited previous cases involving multiple trials, such as that of Kelly Ellard, who is facing a fourth trial, and that of Abbotsford killer Terry Driver.

Burnett said "our justice system is not so fragile that it cannot handle those situations."

He argued: "Where the basis of the ban is to guard against prejudicing a future jury, the jurisprudence emphasizes the faith the courts have in jurors, the selection procedures, and other safeguards, even in the face of extreme publicity and even in situations of multiple trials."  

Burnett cited a ruling by former judge Wally Oppal, who observed: "It should also be noted that in the past, in this jurisdiction and in this country, there have been some noteworthy cases that involved an inordinate amount of pretrial publicity followed by multiple trials."

Oppal cited the cases of killers Darren Huenemann (1993), Jelka Pesic (1993), and Josephakis Charalambous, which all proceeded "in an uneventful manner in spite of extensive pretrial publicity and overlapping evidence" from multiple trials involving co-accused.

Burnett argued that the courts, including rulings by the Supreme Court of Canada, have established principles in favour of court openness because most people learn about court proceedings through the media.

Among the trial exhibits the media seeks access to are two videotapes that were considered key evidence at Pickton's trial.

One is a so-called confession tape, where Pickton made a number of incriminating statements to his cellmate in jail, who was an undercover police officer posing as a criminal.

The other is the videotape of Pickton's formal statement to police after his arrest for murder on Feb. 22, 2002.

Burnett argued that the media have already provided full transcriptions of what was said on the videotapes and described Pickton's demeanour at the time.

The defence, which opposed releasing the tapes, cited an affidavit by Sonya Chopra, a California jury consultant who viewed the videotapes.

Chopra concluded the videos could be prejudicial because they are more "vivid" than other ways of conveying information, pointing out some research indicates "vivid" information has more impact than non-vivid information.  

The media retained Jonathan Freedman, a psychology professor at the University of Toronto, who prepared a rebuttal report to Chopra's findings.

The media is also seeking access to a number of voir dire rulings, which involved some evidence never heard by the jury because it was ruled inadmissible.

"Justice must be done and must be seen to be done," Burnett argued. "The lengthy list of voir dires illustrates the vast amount of important information about this trial which has not been reported to the public.

"The principles regarding the importance of open court, public scrutiny, and role of the media in reporting to the public on court proceedings, are all encompassed in the fundamental importance of s. 2(b) [of the Canadian Charter]. Open justice and public scrutiny is a fundamental cornerstone of our justice system."

The judge's ruling on the media application is expected sometime next month.

Pickton, 59, was originally charged with 26 counts of first-degree murder but the judge decided to sever 20 counts, splitting the charges into two trials.

The first trial, which dealt with a six-count murder indictment, ended last Dec. 9 with a jury convicting Pickton on six counts of second-degree murder. He received a life sentence with no chance of parole for at least 25 years.

All his victims were women who lived and worked in Vancouver's Downtown Eastside.

The 11-month trial heard evidence of how Pickton lured women to his farm in Port Coquitlam, where Pickton regularly slaughtered pigs.

Pickton has filed an appeal of his conviction - and the Crown has filed a cross appeal - that will be heard next March 30. It is set for seven days.

Oppal, now B.C. attorney-general, announced earlier this year that if Pickton's appeal fails and his conviction is upheld, the Crown will not proceed with a second murder trial on the remaining 20 counts, a decision that disappointed victims' families.

Rick Frey, the father of one of Pickton's victims, Marnie Frey, has expressed his support for the media gaining access to the exhibits that have not been made public.

So has Lilliane Beaudoin, the sister of Dianne Rock, one of Pickton's alleged victims to be dealt with at the second trial.

"We thank Dan Burnett and we ask that he keeps up the fight for justice for the families that want justice," Beaudoin said.

 Vancouver Sun



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Updated: August 21, 2016