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Why the Pickton trial dealt with 6 murder charges, not 26

Tourists take a tour of the Supreme Court of Canada building in Ottawa, Friday, July 30, 2010.

FRED CHARTRAND/Fred Chartrand/The Canadian Press

Families and friends of women who went missing from Vancouver's Downtown Eastside fought for years to have authorities acknowledge that their relatives were dead. Police eventually accepted that many of them, who worked as prostitutes and struggled with drug addictions, had been murdered.

However, the clock was turned back in B.C. Supreme Court during the trial of serial killer Robert Pickton. Inside the courtroom, the legal teams sparred over whether 20 of 26 women allegedly murdered by Mr. Pickton were really dead.

A publication ban that prohibited the media from reporting the proceedings in 2006 was lifted Wednesday, after the Supreme Court of Canada upheld Mr. Pickton's conviction for second-degree murder in the deaths of six women. The prosecution has announced that the 20 outstanding murder charges will be stayed because Mr. Pickton has already received the maximum sentence possible under the Canadian legal system.

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Mr. Justice James Williams of the B.C. Supreme Court had split the 26 charges against Mr. Pickton into two trials, deciding that one trial with 26 victims would be unmanageable for a jury. When releasing his decision, he did not allow media coverage of his reason for the unusual split into a group of six and a second trial of 20.

In a ruling on Aug. 9, 2006, Judge Williams set out why Mr. Pickton's first trial should be on only six murder charges. Mr. Pickton's legal team accepted that only six women were dead, based on the evidence that investigators had found. They indicated they would require the prosecution to prove the remaining 20 missing women were not still alive.

The court heard that the prosecution team was confident it could show the women had lives that suddenly stopped. Some kept in touch with family; others kept medical appointments, picked up prescription drugs, and cashed their welfare cheques. Then their routines abruptly ended. Although their human remains were never found, their DNA and several personal items, such as clothing, shoes and purses, were discovered on the Pickton farm. The prosecution was ready to ask jurors to conclude that the evidence showed the women were dead and Mr. Pickton had murdered them.

However, evidence of their death would required testimony by hundreds of family members and friends. The prosecution said it might have to call as many as 535 witnesses just to establish the 20 women were missing. Judge Williams thought that was asking too much of the jurors.

"The ability of 12 men and women of the community, doing their best to fulfill an important civic function, is not without limit," Judge Williams wrote. "Although we can assume that they will do their utmost, I question whether we can proceed on the belief that they will be able to manage anything we ask them to do."

The hurdles to reaching a verdict on 26 charges were enormous, he wrote. The trial could last two years, he said, referring to an estimate by defence lawyers. The amount of evidence at the trial would place "an intolerable if not impossible burden" on the jurors, challenging their ability to sort through and recall evidence related to each count.

The decision on how to proceed with the trial was up to the prosecution. Judge Williams suggested prosecution proceed first with charges in which Mr. Pickton's defence team accepted the women were dead, and not just missing, a suggestion the prosecution subsequently accepted.

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"The fact there is no issue they are dead and were at the property dramatically reduces the amount of circumstantial evidence to be called by the Crown," Judge Williams said. The distinction would allow a trial on six murder charges to proceed with hundreds fewer witnesses, requiring months less that initially estimated for the trial, he said.

The 20 other women posed greater challenges in the courtroom. Defence lawyer Adrian Brooks illustrated the enormity of proving in court that the women had died. Sarah de Vries was last seen in April, 1998. After Mr. Pickton was arrested in February, 2002, her DNA was found on a lipstick container in a white purse located in a mechanical shop on the Pickton property. A debit card that she had allegedly stolen was also found there. Mr. Brooks said 50 witnesses would be required to prove she was dead.

A syringe with windshield washer fluid yielded the DNA of another woman, Tiffany Drew, who disappeared from the Downtown Eastside. Mr. Brooks said 60 witnesses might be called to testify.

The defence team even challenged whether Cynthia Feliks and Inga Hall were dead. The court heard that traces of DNA of the two women were found in ground meat in a freezer on Mr. Pickton's farm. Their DNA profile might indicate no more than that the women sneezed on the meat, the court was told.

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