NEW WESTMINSTER, B.C. - The judge in the Robert Pickton murder trial on Friday rejected three conditions sought by the Crown and will allow defence lawyers the unusual opportunity to make their opening statement immediately after the Crown.
The trial, already adjourned once from its intended start of Jan. 8, is scheduled to begin Jan. 22 in B.C. Supreme Court.
In a criminal trial, the Crown begins first and usually provides the jury with an opening statement that summarizes the facts it says will establish its case. It also provides the jury with a summary of evidence it is expected to lead.
Then it begins calling witnesses.
When it finishes its case, the defence then has the option of making an opening statement and calling witnesses.
But Justice James Williams, noting that courts have discretion to allow the defence to make an opening statement after the Crown, said permitting it in this trial is fair.
"The case at bar can quite readily be characterized as special or unusual in that it is anticipated that the trial will run in the order of 12 months," Williams wrote in a ruling made public Friday.
The Crown intends to call more than 200 witnesses, meaning that it would be many months before the defence would otherwise be able to give its opening statement, said the judge.
It is generally accepted that the benefit of an early defence opening (statement) is that it enhances the jury's ability "to appreciate in a meaningful way the evidence which is led and to relate that evidence to a consideration of the issues," he said.
Pickton is charged with 26 counts of first-degree murder in the deaths of women, many of whom were sex-trade workers from Vancouver's Downtown Eastside.
He faces six of those counts at the trial starting Jan. 22. A second trial on 20 counts is to follow.
Nearly all the long and complicated legal proceedings since Pickton was arrested almost five years ago have taken place under a publication ban.
The Crown did not oppose the defence application for an early opening statement but asked the court to impose three conditions: that the defence indicate the evidence it intends to lead; that a copy of the defence opening be provided to the Crown; and that the defence not be allowed a second opening when the Crown concludes its case.
The judge rejected all three conditions but ordered the defence to provide the court with a copy of its opening for approval prior to it being heard by the jury.
The judge said the defence would not have to indicate what evidence it intends to call because at that early point in the trial the defence does not know "the structure of the case it will ultimately have to meet."
And allowing one side to see the other's opening statement is not the "usual practice," he said.
The judge also declined to rule out the possibility the defence might make a second opening when it begins its case, saying the issue would be determined "on its merits at that time."
The judge, however, conceded that his decision to allow the defence opening is not without risks.
The defence statement could "lapse into argument" and that is not acceptable. It also could create unfairness because there is no assurance the defence will even call witnesses when its turn arrives, he said.
