The case of convicted serial killer Robert Pickton is going to the Supreme Court of Canada.

Pickton’s legal team will ask the high court to decide if the former B.C. pig farmer had a fair trial, based on the dissenting reasons from a B.C. Appeal Court decision released Thursday.

In a two-to-one decision, the B.C. Appeal Court rejected Pickton’s appeal of his second-degree murder convictions, leaving him with the option to go to the high court or give up.

 

Pickton’s lawyer Gil McKinnon confirmed to The Globe and Mail that the appeal was going ahead based on dissenting reasons by Justice Ian Donald.

“A notice of appeal to the Supreme Court of Canada will be filed for Mr. Pickton from the B.C. Court of Appeal’s decision dismissing his appeal,” McKinnon said in an email to the newspaper.

Donald said in his written reasons that the trial judge didn’t instruct the jury on the issue of aiding and abetting and how it might apply to the Pickton case.

He would have ordered a new trial.

Pickton had originally been charged with murdering 26 women, but the trial was separated and he was convicted of six counts of second-degree murder in December 2007.

The two concurring B.C. Appeal Court judges rejected defence claims that there were numerous errors in the trial judge’s instructions to the jury.

However, Donald disagreed and came to the conclusion that there was “a misdirection amounting to a serious error of law.”

Much of the appeal arguments surrounded a question from the jury on the sixth day of deliberations, and how the trial judge handled the question.

Jurors wanted to know if they could find Pickton guilty if they found that he acted indirectly in the murders.

The judge accepted the Crown’s position on the question and reinstructed the jury, telling jury members that if they found Pickton shot three of his alleged victims, or was otherwise an active participant in the killings, then they could find him guilty.

“The Judge did not provide the jury with an instruction on the law of aiding and abetting and how it may apply to the circumstances of this case,” Donald wrote. “In my opinion this was an error of law.”

Donald noted that during the trial, the Crown had always stated that Pickton acted alone.

“It remained firmly wedded to that position until the jury came in with its question.”

The defence reacted to the Crown’s case by proposing that someone else may have been the killer and the jury could find reasonable doubt of Pickton’s guilt.

The Crown ridiculed the defence theory as a “red herring,” Donald noted, adding that after the jury question it embraced the judge’s “co-principle” solution that essentially said the jury could find

Pickton guilty if he aided in the killings.

“After six days of deliberation, the jury wanted to know about indirect acts, implying that they were not convinced at that point that Pickton was the actual killer on one or more counts,” Donald said.

He said the risk in not instructing the jury on aiding and abetting is that they may have convicted Pickton of murder even if he had been involved only in disposing of the victims’ remains after the fact.

If Pickton does win a new trial from the high court, he’ll be tried again on first-degree murder charges.

A second B.C. Appeal Court decision Thursday was unanimous in allowing the Crown to retry Pickton on either six or all 26 charges of first-degree murder.