McGill Law Journal Revue de droit de McGill
PERSON(S) OF INTEREST AND MISSING WOMEN:
LEGAL ABANDONMENT IN THE DOWNTOWN
EASTSIDE
Elaine Craig*
The criminal prosecution of Robert Pickton
involved an eleven-month jury trial, two appeals to
the British Columbia Court of Appeal, an appeal to
the Supreme Court of Canada, and seventy-six re-
ported judicial rulings. This article, through a com-
bination of discursive and doctrinal analyses of
these seventy-six decisions, examines what was
(not) achieved by the Pickton trial. It discusses
three areas: the judicial representation of the
women Pickton was prosecuted for murdering; the
implications of the jurys verdict in the Pickton
proceedings; and the impact of the Pickton trial on
the families of the women he murdered. The article
starts from the premise that it is correct to charac-
terize these murders as a product of collective vio-
lence. Colonialism, political and legal infrastruc-
ture, and public discourseand hegemonies based
on race, class, and gender that these processes, in-
stitutions, and practices hold in placeproduced a
particular class of vulnerable women, the police
who failed them, and Robert Pickton. The article
concludes by suggesting that the outcomes of the
Pickton prosecution both highlight the limitations
of the criminal justice system and offer an analyti-
cal framework for examining other institutional re-
sponses (such as the Missing Womens Inquiry) to
the kind of collective violence that gave rise to the
Pickton circumstance.
Les poursuites pnales contre Robert Pickton
ont compris un procs devant un jury de onze mois,
deux appels la Cour dappel de la Colombie-
Britannique, un appel la Cour suprme du Cana-
da et soixante-seize
jugements. Cet article
sinterroge, par une combinaison danalyses discur-
sive et doctrinale de ces soixante-seize dcisions,
sur ce que le procs Pickton a (et na pas) accompli,
abordant trois aspects de ce procs : la reprsenta-
tion judiciaire des femmes que Pickton a tu; les
implications du verdict du jury; et limpact du pro-
cs sur les familles des femmes quil a tu. Larticle
se fonde sur la notion que lon peut caractriser ces
meurtres comme tant des produits de la violence
collective. Le colonialisme, linfrastructure poli-
tique et juridique, et le discours public, de plus que
les hgmonies bases sur la race, la classe, et le
genre, que ces processus, ces institutions et ces
pratiques maintiennent, ont produit la fois une
classe particulire de femmes vulnrables, la police
qui leur a manqu et Robert Pickton lui-mme. En
conclusion, larticle conclut en suggre que les r-
sultats du procs Pickton mettent en vidence les
limites du systme de justice pnale et offrent un
cadre analytique pour lexamen d’autres rponses
institutionnelles (telles que lEnqute sur les
femmes disparues) au genre de violence collective
qui a provoqu la circonstance Pickton.
* Assistant Professor, Schulich School of Law. Thank you to Isabel Grant, Janine Bene-
det, Ronalda Murphy, Steve Coughlan, Dianne Pothier, and the anonymous reviewers
for the McGill Law Journal for their insightful feedback on earlier drafts of this article.
I gratefully acknowledge the support of the Social Sciences and Human Research Coun-
cil through the Insight Grant program.
Citation: (2014) 60:1 McGill LJ 1 Rfrence : (2014) 60 : 1 RD McGill 1
Elaine Craig 2014
2 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
The Pickton Circumstance
The Story of the Missing Women as Reported
by the Courts
The Pickton Prosecution Did Not Produce a
Truth Account
Did the Pickton Trial Achieve Justice for the
Families?
Conclusions on the Limits of the Criminal Justice
Response
I.
II.
III.
IV.
V.
3
8
22
29
36
3
PERSON(S) OF INTEREST AND MISSING WOMEN
I. The Pickton Circumstance
Women are disappearing. Sixty-nine of them disappeared from the
Downtown Eastside of Vancouver between 1997 and 2002.1 Northern
communities in British Columbia believe that more than forty women
have gone missing from the Highway of Tears in the past thirty years.2
The endangered do not come from every walk of life. Most of these women
are Aboriginal. Many of them are poor.3
To be more precise then, poor women and Aboriginal women are dis-
appearing.4 Aboriginal women in particular are the targets of an undenia-
ble epidemic of violence in Canada.5 They are five to seven times more
likely to be killed as a result of violence than are non-Aboriginal women.6
Robert Pickton is thought to have murdered almost fifty of the women
reported as missing from the Downtown Eastside of Vancouver between
1997 and 2002. Following years of widespread indifference toward the
shocking number of women that continued to disappear from this neigh-
bourhood in Vancouver, an investigation finally resulted in Picktons ar-
rest in 2002. Pickton confessed to killing forty-nine women with an aspi-
ration to make it an even fifty.7 The DNA of thirty-three missing women
1 British Columbia, Missing Women Commission of Inquiry, Forsaken: The Report of the
Missing Women Commission of Inquiry (Vancouver: Missing Women Commission of In-
quiry, 2012) vol 1 at 33, online: Missing Women Commission of Inquiry
[Missing Womens Inquiry Vol I].
2 Ibid at 29.
3 Ibid at 2324.
4 Police report that many of the women who have gone missing from the Highway of
Tears area were working in the sex trade at the time of their disappearance. Many of
them were Aboriginal. See Patrick Brethour, Treat Highway of Tears Victims as
Woman First, Police Told, The Globe and Mail (17 October 2010), online:
5 For a discussion of this epidemic and the relationship between violence against women
and Aboriginal and treaty rights under Constitution Act, 1982, s 35, being schedule B to
the Canada Act 1982 (UK), 1982, c 11 see John Burrows, Aboriginal and Treaty Rights
and Violence Against Women (2013) 50:3 Osgoode Hall LJ 699.
6 Amnesty International, No More Stolen Sisters: The Need for a Comprehensive Re-
sponse to Discrimination and Violence against Indigenous Women in Canada (London:
Amnesty International Publications, 2009) at 1, online: Amnesty International
7 R v Pickton, 2007 BCSC 29, [2007] BCJ No 3075 (citing a transcript of the undercover
cellmate interview with Pickton: I was gonna do one more, make it an even fifty at
para 20).
4 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
was found on his farm.8 He was charged with murdering twenty-six wom-
en, and charges against him were recommended with respect to several
other missing women.9 Following Picktons conviction for murder in only
six of these cases,10 the government of British Columbia conducted a pub-
lic inquiry into police failures to investigate the disappearances in a time-
ly manner.11
The Missing Women Commission of Inquiry concluded that in the
cold hard light of 2012, using an objective test and avoiding the unerring
eye of hindsight … the missing and murdered women investigations were
a blatant failure.12 According to the BC Civil Liberties Association, Pivot
Legal Society and West Coast LEAF, the Missing Women Commission of
Inquiry was also an absolute failure.13 The police investigation into
missing and murdered women in the Downtown Eastside and the Missing
Womens Inquiry into that police investigation constitute two institutional
responses to these disappearances. Their failings and achievements have
8 Missing Womens Inquiry Vol I, supra note 1 at 33. See also Lori Culbert, 2 More Wom-
en Identified From DNA at Pickton Farm, Vancouver Sun (30 October 2009), online:
bert, Police to Recommend Pickton Be Charged for Deaths of Six More Women, Van-
couver Sun (29 October 2009), online:
9 In October 2009, RCMP recommended Pickton be charged with the murders of Sharon
Abraham, Stephanie Lane, Yvonne Boen, Jackie Murdock, Dawn Crey and Nancy
Clark (Stevie Cameron, On the Farm: Robert William Pickton and the Tragic Story of
Vancouvers Missing Women (Toronto: Alfred A Knopf, 2010) at 701702 [Cameron, On
the Farm]).
10 R v Pickton, 2006 BCSC 1212, [2006] BCJ No 3671. One of the counts was stayed by
the trial judge and twenty by the Attorney General of British Columbia, after Pick-
tons conviction on six counts of second-degree murder. See Rod Mickleburgh, Pickton
Legal Saga Ends as Remaining Charges Stayed The Globe and Mail (4 August 2010),
online:
11 British Columbia, Missing Women Commission of Inquiry, Terms of Reference (Van-
couver: Missing Women Commission of Inquiry, 2013), online: Missing Women Com-
mission of Inquiry
12 British Columbia, Missing Women Commission of Inquiry, Forsaken: The Report of the
Missing Women Commission of Inquiry (Vancouver: Missing Women Commission of In-
quiry, 2012) vol 2A at 1, online: Government of British Columbia
13 Darcie Bennett et al, Blueprint for an Inquiry: Learning from the Failures of the Miss-
ing Women Commission of Inquiry (Vancouver: BC Civil Liberties Association, West
Coast Womens Legal Education and Action Fund, Pivot Legal Society, 2012) at 5,
online: BC Civil Liberties Association
5
PERSON(S) OF INTEREST AND MISSING WOMEN
received public, media, and government attention.14 To date, what has not
received as much attention is the criminal justice systems response to the
murder of these women.15
The criminal prosecution of Robert Pickton involved an eleven-month
jury trial, two appeals to the British Columbia Court of Appeal, an appeal
to the Supreme Court of Canada, $12 million in defence counsel legal ex-
penses, a $2 million upgrade to the New Westminster courthouse, $9 mil-
lion in Crown counsel expenses, $12 million in judicial support, trial sup-
port, security, and management costs, and seventy-six reported judicial
rulings.16 This article, through a combination of discursive and doctrinal
analysis of these seventy-six decisions, examines what was (not) achieved
by the Pickton trial. It discusses three areas: the judicial representation of
the women Pickton was prosecuted for murdering; the implications of the
jurys verdict in the Pickton proceedings; and the impact of the Pickton
trial on the families of the women he murdered.17
The article starts from the premise that it is correct to characterize
these murders as a product of collective violence. The World Health Or-
ganization defines collective violence as the instrumental use of violence
by people who identify themselves as members of a group whether this
group is transitory or has a more permanent identity against another
group or set of individuals, in order to achieve political, economic or social
14 See ibid; Missing Womens Inquiry Vol I, supra note 1. Pickton Inquiry Slams Blatant
Failures by Police, CBC News (17 December 2012), online:
Four Missing Women File Lawsuit Against Pickton, Police, Government, MacLeans (9
May 2013), online:
quiry Beset by
(3 April 2012), online:
Key Witness, National Post (12 February 2013), online:
Fails Rabble (11 October 2011), online:
Sexism: Ex-Staff, National Post
15 Quicklaw and Westlaw searches conducted on July 22, 2013 suggest that, to date, legal
scholars have not produced any scholarship on the Pickton trial and appeals.
16 Pickton Prosecution Cost More Than $100 Million, CBC News (16 November 2010)
(reporting on figures released by British Columbias Ministry of the Attorney General in
November, 2010.), online:
17 In this article, Pickton trial or Pickton proceedings refers to the proceedings general-
ly rather than to any specific ruling out of the seventy-six reported judicial rulings.
6 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
objectives.18 Sereena Abotsway, Mona Wilson, Andrea Joesbury, Brenda
Wolfe, Georgina Papin, Marnie Frey and countless others from the Down-
town Eastside were rendered subhuman and disposed of well before they
encountered Robert Pickton. The horror of what Robert Pickton did to
these women, and of a police force that ignored what was happening for
years,19 pales in comparison to the collective violence that produced these
subjects and their actions. Colonialism, sexism, the political and legal in-
frastructure, public, media and legal discourseand the race-, class-, and
gender-based hegemonies that these processes, institutions, policies, and
practices hold in placeproduced a class of vulnerable women, the police
who failed them, and Robert Pickton.
To put it otherwise, it is unsurprising that these women in particular,
from this community in particular, were murdered. Do you think Willie
Pickton just entered this picture out of the blue? I mean, we created a pool
that nobody cared about, and he went to it.20 It is unsurprising that the
police investigation into the murdered and missing women was a blatant
failure.21 Entrenched structural inequalities in Canadian society pro-
duced a category of illegible subjects, denied access to the social contract
upon which the states monopoly on power and the paramilitary organiza-
tions charged with enforcing it are purportedly justified. In a sense, it is
also unsurprising that Robert Pickton took Sereena Abotsway, Mona Wil-
son, Andrea Joesbury, Brenda Wolfe, Georgina Papin, and Marnie Frey,
paid them for vaginal or oral intercourse, murdered them, dismembered
their bodies, and distributed and disposed of what was left of them at the
local meat shops and rendering plant where he sent the pigs he purchased
each week at auction.22 What Robert Pickton did to these women was the
material articulation of a social, political, and legal rendering that had al-
ready occurreda kind of bestialization of [wo]man achieved through the
18 World Health Organization, Collective Violence (Geneva: World Health Organization,
2002), online: World Health Organization
19 Missing Womens Inquiry Vol I, supra note 1 at 110.
20 Cameron, On the Farm, supra note 9 at 695 (quoting Don Adam, Vancouver Police De-
partment).
21 Missing Womens Inquiry Vol II, supra note 12 at 1.
22 R v Pickton, 2009 BCCA 299 at paras 32, 35, 288 BCAC 246 (testimony of Lynn El-
lingsen and Gina Houston discussing Picktons practice of attending auctions each Sat-
urday). See also Larry Pynn, Ottawa Rates Health Risk from Human Remains in
Farm Meat Vancouver Sun (24 October 2004), online:
Reached Food Supply, The Globe and Mail (10 March 2004), online:
7
PERSON(S) OF INTEREST AND MISSING WOMEN
most sophisticated political techniques.23 This article examines what role
the criminal justice process plays in constituting or perpetuating the so-
cial relations that produce this bestialization.
While somewhat awkward, referring to the Pickton circumstance
rather than to Picktons actionsis also intentional. It emphasizes the
importance of recognizing the social relations that produced this collective
violencethe way in which women from the Downtown Eastside were
abandoned through processes that deprived them of citizenship and hu-
manity in order to maintain the hegemonic structures that produce citi-
zenship and preserve humanity for some by abandoning others.
The remainder of the article is divided into four parts. Part II exam-
ines the representation of the murdered women in the judicial decisions
produced throughout the Pickton proceedings. The prosecution of Pickton,
because it produced seventy-six separate decisions, offers a unique oppor-
tunity to examine the anatomy of a case as articulated through judicial
rulings.24 Part II reveals that the criminal justice process as reported by
the courts did not recognize the humanity and citizenship of the murdered
women through the story it told about them. In fact, the judicial represen-
tation of the women murdered by Pickton perpetuates the same discur-
sive construction of them that constitutes and reinforces the alienation of
this category of individuals in broader public and political contexts. Part
III briefly examines whether the Pickton trial and appeals produced a
truth account about what happened to these women. The article concludes
that this did not occur. Part IV questions whether the prosecution and
conviction of Pickton on six counts of second-degree murder achieved jus-
tice for the families of the women he murdered. Part IV also rejects the
possibility that the humanity and citizenship of the murdered women
23 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, translated by Daniel
Heller-Roazen (Stanford: Stanford University Press, 1998) at 3 [Agambern, Homo
Sacer] (quoting Michel Foucault).
24 Consider, for example, the very high profile prosecution of Paul Bernardo. It involved
less than a third as many reported decisions: R v Bernardo, [1995] OJ No 1374 (QL)
(Gen Div); R v Bernardo, [1995] OJ No 1394 (QL) (Gen Div); R v Bernardo, [1993] OJ
No 2047 (QL) (Gen Div); R v Bernardo, [1994] OJ No 4114 (QL) (Gen Div); R v Bernar-
do, [1994] OJ No 1718 (QL) (Gen Div); R v Bernardo, [1994] OJ No 4119 (QL) (Gen Div);
R v Bernardo, 50 CRR (2d) 332, 1994 CanLII 7405 (Ont Gen Div); R v Bernardo, [1995]
OJ No 4 (QL) (Gen Div); R v Bernardo, 38 CR (4th) 229, 26 WCB (2d) 343 (Ont Gen
Div); R v Bernardo (1995), 26 WCB (2d) 328, [1995] OJ No 247 (Ont Gen Div); R v Ber-
nardo, [1995] OJ No 585 (QL) (Gen Div); R v Bernardo (1995), 42 CR (4th) 85, 28 WCB
(2d) 129 (Ont Gen Div); R v Bernardo, [1995] OJ No 1379 (QL) (Gen Div); R v Bernardo,
[1995] OJ No 2247 (QL) (Gen Div); R v Bernardo, [1995] OJ No 2248 (QL) (Gen Div); R
v Bernardo (1995), 42 CR (4th) 96, 28 WCB (2d) 130 (Ont Gen Div); R v Bernardo,
[1995] OJ No 3866 (QL) (Gen Div); R v Bernardo, [1995] OJ No 1472 (QL) (Gen Div); R
v Bernardo, [1995] OJ No 2988 (QL) (Gen Div).
8 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
could be restored even if justice were achieved for the family members
who grieve them. One response to the claims that the Pickton proceedings
did not represent the humanity of the murdered women, produce
knowledge about what happened, or achieve justice for the families is that
none of these objectives form a legitimate part of the criminal justice pro-
cess. Part V, the final part of the article, offers three reasons why it is im-
portant to identify what was not achieved by the Pickton proceedings re-
gardless of ones perspective on the functions and limits of the criminal
justice process. It concludes by suggesting that the outcomes of the Pick-
ton prosecution both highlight the limitations of the criminal justice sys-
tem and offer an analytical framework for examining other institutional
responses, such as the Missing Womens Inquiry, to the kind of collective
violence that gave rise to the Pickton circumstance.
This article, examining the criminal justice response to the missing
and murdered women from the Downtown Eastside, forms the first article
of a two-part project. Drawing on the significant limitations of the crimi-
nal justice response identified in this article, the second article will exam-
ine the Missing Womens Inquiry as an institutional response to legal
abandonment in the Downtown Eastside.
II. The Story of the Missing Women as Reported by the Courts
Robert William Pickton became a person of interest to the police in
early 2001 when a task force began collecting the DNA of women missing
from the downtown eastside of Vancouver. All the missing women were
drug-dependent sex-trade workers who had frequently worked in that ar-
ea.25 These are the opening lines of the Supreme Court of Canadas ma-
jority opinion dismissing Picktons appeal from conviction on six counts of
second-degree murder. This is Justice Charrons sole descriptive reference
to the missing and murdered women.
Justice Charrons description is quite fitting. It is not apt because of
its accuracy. In fact, some of the women missing from the Downtown
Eastside were not drug dependent, and not all of them were working in
the sex trade.26 Instead, it is fitting because it encapsulates almost entire-
ly the totality of information about the humanity of these women that can
be gleaned from the seventy-five rulings that came before this decision
from the Supreme Court of Canada. The story of Robert William Picktons
trial, at least as told by its official texts, is not a story about the women he
murdered. It is Robert Pickton who became a person of interest. The miss-
25 R v Pickton, 2010 SCC 32 at para 1, [2010] 2 SCR 198.
26 Missing Womens Inquiry Vol I, supra note 1 at 18. See generally Cameron, On the
Farm, supra note 9.
PERSON(S) OF INTEREST AND MISSING WOMEN
9
ing women are largely missing from these seventy-six judicial render-
ings.27
The seventy-six rulings emanating from Picktons trial and appeals of-
fer only three pieces of information about the murdered women: drug-
dependent, sex-trade workers who lived in the Downtown Eastside.28
These descriptors occur for the first time in an interlocutory ruling on the
admissibility of similar fact evidence related to the 1997 attack by Pickton
on Person X.29 There are six short paragraphs, devoted one each, to the six
women he stood accused of murdering.30 The structure of each paragraph
is the same and each opens with the same sentence:
worked in Vancouver, primarily the Downtown East Side.31
worked in Vancouver, primarily the Downtown East Side.32
Ms. Wilson was a drug dependent sex trade worker who lived and
Ms. Abotsway was a drug dependent sex trade worker who lived and
27 While the site of examination for this article is these seventy-six rulings, seventy-three
of which were authored by Justice Williams of the British Columbia Supreme Court,
this should not be taken as a critique of any individual judge. It is a critique of the crim-
inal justice process, the judicial and legal culture that supports it, and the doctrinal and
procedural rules that undergird it. It is true that no one among Justice Williams, the
three-judge panel of the British Columbia Court of Appeal, nor the nine justices of the
Supreme Court of Canada authored these decisions in a manner that recognized the
humanity of these women. However, all of them operated within the same legal and
professional traditions, culture, and rules. Without changing these, it is hard to assume
any decision maker would have done differently.
28 There is one reference to the Aboriginality of most of the missing women by the British
Columbia Court of Appeal in R v Pickton, 2009 BCCA 300 at para 25, 260 CCC (3d)
132.
29 R v Pickton, 2006 BCSC 1447, [2006] BCJ No 3672. Person X, whose identity remained
anonymous throughout the proceedings, is the only woman known to have survived an
attack by Pickton. She testified at the preliminary inquiry regarding an incident in
which he picked her up from the Downtown Eastside, took her to his farm and attempt-
ed to kill her after they had engaged in sexual intercourse. Her testimony was excluded
at trial (ibid).
30 As discussed below in the section on justice for the families, Justice Williams granted a
motion by the defence to have the twenty-six counts of murder against Pickton severed
into two trials (R v Pickton, 2006 BCSC 1212, supra note 10 at para 39). The first (and,
in the end, only) trial involved six counts arising from the murders of Sereena Abot-
sway, Mona Wilson, Andrea Joesbury, Brenda Wolfe, Georgina Papin and Marnie Frey
(R v Pickton, 2006 BCSC 1447, supra note 29).
31 Ibid at para 3. One might respond immediately to these observations by suggesting that
both the structure and content of this judicial ruling makes sense given that this was a
decision regarding the admission of similar fact evidence. This point will be addressed
below.
32 Ibid at para 4.
Ms. Papin was a drug dependent sex trade worker who lived and
Ms. Frey was a drug dependent sex trade worker who lived and
Ms. Joesbury was a drug dependent sex trade worker who lived and
Ms. Wolfe was a drug dependent sex trade worker who lived and
10 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
worked in Vancouver, primarily the Downtown East Side.33
worked in Vancouver, primarily the Downtown East Side.34
worked in Vancouver, primarily the Downtown East Side.35
worked in Vancouver, primarily the Downtown East Side.36
Following this one sentence description of each, the discussion shifts
to DNA, blood, gunshot wounds to the head, and post-mortem dismem-
berment. It does not shift back. In these seventy-six judicial texts the
drug-dependent sex-trade worker from the Downtown Eastside seamless-
ly and without pause becomes frozen partial remains, dismembered hands
and feet, the fragment of a jawbone with teeth still attached,37 and per-
haps most revealingly meat product38materially and symbolically in-
distinguishable from the other animals butcher[ed]39 on the Pickton
farm.40
Such a bestial representation of the women Pickton murdered evokes
concepts such as the bare life of Giorgio Agambens homo sacer and the
state of exception in which (s)he exists.41 Agamben asserts that modern
33 Ibid at para 5.
34 Ibid at para 6.
35 Ibid at para 7.
36 Ibid at para 8.
37 Ibid at paras 38.
38 R v Pickton, 2006 BCSC 1601 at para 37, [2006] BCJ No 3676.
39 R v Pickton, 2009 BCCA 300, supra note 28 at para 37.
40 The police found a number of plastic bags containing ground meat in freezers on the
Pickton farm. Samples of the meat yielded a combination of DNA from Cynthia Feliks
and Inga Hall. The samples also contained protein characteristic of pig and human (R
v Pickton, 2006 BCSC 1601, supra note 38 at para 10. It seems telling that the sample
would even be referred to as meat by the court. It is arguably more common to refer to
human flesh than to human meat. The noun meat is habitually used to refer to the flesh
of an animal as food, as material intended for consumption.
41 This insight belongs to Geraldine Pratt, who brings Agambens theory of legal aban-
donment to bear on the women murdered by Robert Pickton in Abandoned Women and
Spaces of Exception (2005) 37:5 Antipode 1052. According to Agamben, bare life is the
definition of a life that may be killed without the commission of a homicide … [but that]
could not be put to death following a death sentence (Agamben, Homo Sacer, supra
note 23 at 165). The bare life of the homo sacer is a life with no political relevance (other
than its constitutive role in establishing the sovereign). It is a life that can be eliminat-
11
PERSON(S) OF INTEREST AND MISSING WOMEN
liberal democracies are founded on a state of exceptiona generalized
suspension of the law that he describes as the sovereign ban.42 By sus-
pending the law, a border between inclusion and exclusion is created, and
entire categories of citizens are eliminated. They are legally abandoned.
Such people are, in his words, rendered bare life. By bare life Agamben
means the mere life of the body stripped of all the customary forms or
qualifications of lives (bios) in a community.43 Bare life is life reduced to
matter. According to Agamben, states of exception operate by animalizing
the human.44 In the judicial texts of the Pickton proceedings women are
butcher[ed]45 and human flesh is transformed into meat product.46
What is missing from the legal account of the missing women is as
significant to this animalistic rendering as is the story that the law does
tell about them. A disproportionate number of the women that Pickton
murdered were Aboriginal.47 Sherene Razack would argue that because of
the relationship between colonialism, racism, and prostitution even those
women who were not of Aboriginal descent were racialized. For Razack, to
be a woman working in prostitution in the Downtown Eastside is to be the
racial Other.48 However, race is invisible in the laws story of Robert Pick-
ton and the women he murdered. In seventy-five of the seventy-six judi-
cial rulings produced over the course of the Pickton trial and appeals,
ed without punishment (ibid at 139, 165). Presumably, for Agamben, a death sentence
implies that one is still in some sense being treated as a citizen.
42 Ibid at 1529. In this regard, Agamben draws upon Carl Schmitts concept of sovereign-
ty: Sovereign is he who decides on the exception (Carl Schmitt, Political Theology:
Four Chapters on the Concept of Sovereignty (Chicago: University of Chicago Press,
2005) at 5).
43 Leland de la Durantaye, Giorgio Agamben: A Critical Introduction (Stanford, Califor-
nia: Stanford University Press, 2009) at 207.
44 Giorgio Agamben, The Open: Man and Animal, translated by Kevin Attell (Stanford:
Stanford University Press, 2004) at 34.
45 R v Pickton, 2009 BCCA 300, supra note 28 at para 37.
46 R v Pickton, 2006 BCSC 1601, supra note 38 at para 37.
47 Missing Womens Inquiry Vol I, supra note 1 at 94.
48 According to Razack, the desire to transgress and the repugnance in response to trans-
gression are central to the maintenance of class, race, and gender hegemonies. All three
hegemonic systems are deployed to stabilize a structure of dominance. In this way, so-
cial, legal, and political relations constitute the bodies and spaces of prostitution, and
the bodies and spaces of prostitution secure a white, middle class, elite (Sherene Ra-
zack, Race, Space, and Prostitution: The Making of the Bourgeois Subject (1998) 10:2
CJWL 338 at 34143, 346 [Razack, Race, Space, and Prostitution]). This is why, for
Razack, the question is not who works as a prostitute but why other women do not work
as prostitutes: Women in prostitution are integrally connected to women who are not
engaged in prostitution … because the violence directed at some of us enables others to
live lives of lesser violence. Prostitution is thus always about racial, class, and male
dominance, and it is always violent (ibid at 35960).
12 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
there is no reference to the Aboriginality of these women. It is impossible
to grasp the reality of the Pickton circumstance, let alone begin to formu-
late systemic responses to it, without recognizing that this collective vio-
lence was perpetuated against Aboriginal women in particular. Yet, in
hundreds of pages of judicial text there is only one reference, by Justice
Finch of the British Columbia Court of Appeal, to the fact that most of the
women Pickton murdered were of Aboriginal descent.49
Discussing this same failure to signify race in the media representa-
tion of women from the Downtown Eastside, Geraldine Pratt highlights
the long colonial history of assuming that Aboriginal peoples and cities
are mutually exclusivea colonial geography that makes First Nations
women almost naturally disappear from the Downtown Eastside.50 Dara
Culhane refers to this as a form of race blindness.51 She describes it as a
regime of disappearance that selectively marginalizes Aboriginal women
in the Downtown Eastside by privileging representations of drug addic-
tion and commercial sex rather than the ordinary and mundane brutality
of everyday poverty and its relationship to the ongoing effects of settler
colonialism.52 For Razack, this kind of insistence on racelessness makes
the law complicit in the perpetuation of violence against Aboriginal wom-
en.53
While the gender of those whose lives were taken by Pickton is com-
municated in these texts, the fact that all of them were women, and in
particular women living in a community where the male privilege of one
well known john was maintained by police and others in authority, also
does not figure in the legal analysis.54 The criminal justice response to the
Pickton circumstance does not tell a story of structuralized and systema-
tized male violence against women.
49 R v Pickton, 2009 BCCA 300, supra note 28 ([a]ll 26 victims on the original Indictment
were young women who were known to be engaged in the business of providing sexual
services for payment. They all practiced their trade in the DTES and lived in the vicini-
ty. Most of the 26 victims were of Aboriginal descent. Most were addicted to illegal
drugs. Sex-trade workers of this description and from this location were known to be
very reluctant to work outside the DTES at para 25).
50 Pratt, supra note 41 at 1062.
51 Dara Culhane, Their Spirits Live Within Us: Aboriginal Women in Downtown
Eastside Vancouver Emerging Into Visibility (2013) 27:3 American Indian Quarterly
593 at 595.
52 Ibid.
53 Sherene Razack, Gendered Racial Violence and Spatialized Justice: The Murder of
Pamela George (2000) 15:2 Can JL & Soc 91 at 95.
54 See generally Cameron, On the Farm, supra note 9.
13
PERSON(S) OF INTEREST AND MISSING WOMEN
Unlike with respect to the women themselves, the official texts of the
criminal justice process do tell a fuller story about both Robert Pickton
and the site where he murdered, dismembered, and disposed of these
women. Pickton, unlike the women he was on trial for murdering, is con-
structed as a whole person in the texts of these decisions. The articulation
of his life has temporality and three dimensions. A reader of these texts
learns about his relationship with his mother and his brother,55 his men-
tal acuity,56 and his affinity for the property he owned with his siblings.57
Also apparent from these decisions is the way in which the procedural
and doctrinal rules of the criminal justice system preserved some dignity
for Robert Pickton throughout this process. For example, the defence was
successful in having a jailhouse video edited before trial to remove seg-
ments depicting Pickton alone in a cell masturbating.58 The Crown op-
posed the editing on the basis that the fact that Pickton was relaxed
enough to masturbate contradicted the defences assertion that Pickton
was so agitated and fatigued that any statements he made during this pe-
riod were unreliable. Justice Williams excluded the evidence on the basis
that the knowledge that Mr. Pickton was masturbating in his cell and
the image of him doing so are reasonably capable of diminishing his digni-
ty in the eyes of the jurors, although in a fairly minor way.59
The rulings also offer many details about the property where these
women were murdered. We learn that the land was used as a farm and
that its civic address was 953 Dominion Avenue, Port Coquitlam, British
Columbia.60 In addition to husbandry, the property was also used for a
topsoil and landfill business.61 It is evident from the judicial rulings that
on this property there were several buildings including a workshop, a
slaughterhouse, a trailer and an old farmhouse.62 Several decisions make
55 See e.g. R v Pickton, 2006 BCSC 995, [2006] BCJ No 3667 (regarding the admissibility
of Picktons statements to the police Justice Williams wrote: I will proceed on the as-
sumption that Mr. Pickton is close to and cares very deeply for his brother at para
268).
56 Ibid (Mr. Pickton is a simple man. … That said, Mr. Pickton is by no means intellectu-
ally dysfunctional or unable to manage with ordinary, day to day interactions with oth-
er persons at para 201).
57 Ibid (I accept that Mr. Pickton was quite attached to his property and that it was very
important to him at para 264).
58 R v Pickton, 2007 BCSC 29, supra note 7.
59 Ibid at para 12.
60 See e.g. R v Pickton, 2006 BCSC 995, supra note 55 at para 95.
61 Cameron, On the Farm, supra note 9 at 6.
62 See e.g. R v Pickton, 2009 BCCA 300, supra note 28 at paras 1921.
14 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
clear that it was a seventeen-acre property about thirty kilometres from
the Downtown Eastside, in Port Coquitlam, a suburb of Vancouver.63
What one cannot learn from these texts about the land where these
(mostly) Aboriginal women died, is that it originally belonged to the Coast
Salish peoples and that it was only in the latter part of the nineteenth
century that European settlers took this land from its original inhabitants
and began farming in the area.64 Similarly, the text of these decisions re-
veals that, according to the Crown, Pickton lured these women away from
the Downtown Eastside to this land in Port Coquitlam by offering them
additional money.65 However, what cannot be gleaned from the laws story
of the Pickton circumstance is that Pickton had the funds available to do
this because he had subdivided and sold off significant chunks of this
land,66 which had been taken from the Coast Salish peoples by European
settlers, acquired by Picktons ancestors, and eventually inherited by
Pickton and his siblings.67 At the time of his incarceration Robert Pickton
was a wealthy man.68 Colonialism and its living legacy are as constitutive
of Pickton in both symbolic and material ways as they are of the women
he murdered.
Why was the Aboriginality of these women not part of the laws story?
Similarly why do the reality and impact of colonialism not figure in the
texts of these decisions? It is not that these factors are irrelevant to the
factual circumstances and legal doctrine involved in the Pickton trial. For
example, the defence attempted to have the Crowns forensic evidence re-
lating to Wendy Crawforda piece of bone recovered from a manure cis-
tern on the Pickton propertyexcluded on the basis that it was not actu-
ally part of her remains.69 The defence argued unsuccessfully that the
bone was an Aboriginal artifact that had at some point been contaminated
63 See e.g. ibid at para 19; R v Pickton, 2006 BCSC 1212, supra note 10 at para 26.
64 Chuck Davis, Where Rails Meet Rivers: The Story of Port Coquitlam (Madeira Park, BC:
Harbour, 2000) at 24. The city of Vancouver, including the area that is now called the
Downtown Eastside, was also land that had been owned and occupied by the Coast Sa-
lish peoples for over 10,000 years (see Culhane, supra note 51 at 595).
65 R v Pickton, 2010 SCC 32, supra note 25 at para 15.
66 Stevie Cameron, On the Farm, supra note 9 at 6.
67 Ibid; Davis, supra note 64 at 24.
68 In 2007, the Pickton farm was worth $7.1 million (Stevie Cameron, The Pickton File
(Toronto: Knopf, 2007) at 23334).
69 R v Pickton, 2006 BCSC 1601, supra note 38 at para 21. Wendy Crawford was one of
the twenty other women that Pickton was charged with murdering. These twenty
charges were severed from the Pickton trial. The Crown introduced evidence of Wendy
Crawfords remains as similar fact evidence intended to establish a distinctive modus
operandi on the part of Pickton (ibid at para 17).
15
PERSON(S) OF INTEREST AND MISSING WOMEN
with Wendy Crawfords DNA. They introduced expert evidence from a fo-
rensic anthropologist who testified that the bone resembled an Aboriginal
artifact used for probing or piercing and that approximately 140 such arti-
facts had been recovered from the Pickton farm.70 Presumably, the pres-
ence of so many Aboriginal artifacts on this seventeen-acre property re-
flects the colonial settlement of what was traditional Salish territory. The
displacement of Aboriginal peoples from this land that became the Pick-
ton farm was a relevant fact regarding the strength of the defence argu-
ment with respect to this piece of evidence. Yet it was not part of the story.
The sentencing decision in Pickton provides another example. Justice
Williams ordered the strictest sentence legally possiblea life sentence,
as required under the law, with a twenty-five-year period of parole ineli-
gibility.71 Length of parole ineligibility is to be determined based on the
circumstances of the offender and the offences, as well as the degree of
moral culpability.72 In identifying the relevant circumstances in this case,
Justice Williams described the womens troubled lives and extreme vul-
nerability. The factors identified as contributing to this vulnerability were
addictions and involvement in survival sex work. There is no reference to
the fact that four of the six women he was convicted of murdering were
Aboriginal.73 Conditions of vulnerability are sourced in the individual ac-
tor rather than racism and the history of colonialism. Moreover, the racial
pattern of these murders is not identified as a circumstance relevant to
the seriousness of Picktons offences or the degree of moral culpability.
Consider a third example. The Crown sought to introduce several
pieces of similar fact evidence in the Pickton trial.74 Similar fact evidence
is factual evidence of other misconduct of an accused introduced for the
purpose of inferring that the accused committed the misconduct at issue
in the trial.75 It is only admissible in exceptional circumstances. In cases
such as this one, in which it is introduced by the Crown in an effort to es-
tablish the identity of the perpetrator, the analysis regarding its admissi-
70 Ibid.
71 R v Pickton, 2007 BCSC 2039 at paras 2021, [2007] BCJ No 3109.
72 R v Shropshire, [1995] 4 SCR 227 at 24243, 129 DLR (4th) 657.
73 R v Pickton, 2007 BCSC 2039, supra note 71 at para 20.
74 R v Pickton, 2006 BCSC 1212, supra note 10. Presumably, the assumption at that point
was that a second trial involving the twenty severed counts would proceed once the first
trial was completed. As discussed below, this second trial never occurred. After Pick-
tons conviction on six counts of second-degree murder was upheld by the Supreme
Court of Canada, Attorney General Wally Oppal decided to stay the additional twenty
charges (Mickleburgh, supra note 10).
75 Sidney N Lederman, Alan W Bryant & Michelle K Fuerst, The Law of Evidence in
Canada, 3rd ed (Toronto: Butterworths, 2009) at 676.
16 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
bility focuses almost exclusively on the similarity in modus operandi and
evidence of signature type behavior.76 In performing this analysis the
court is required to conduct a two-step inquiry. The first step involves ex-
amining the similarity between the way in which the acts were committed
in order to assess how likely it is that the same person committed both
acts. The second step requires the court to determine whether there is
some evidence linking the accused to the similar act.77 The first step of
this inquiry would encourage the Crown in Pickton to articulate a narrow
and specific description or profile of the missing women in an effort to in-
troduce the similar fact evidence of Picktons other murders. The profile
adopted was, of course, that of the drug-dependent sex-trade worker from
the Downtown Eastside. The phrase drug-dependent sex-trade worker
was embraced like a mantra for the Pickton trial in the media,78 and in
the judicial texts this phrase is repeated so frequently that it becomes a
slogan-like identity categorya vacuous shibboleth capturing precisely
the constitutive lack that signifies the creatures who inhabit Agambens
state of exception. It is true that the disciplining effect of the legal doc-
trine in this instance demands a descriptive account reduced to whatever
common denominator is available.
To be admissible, similar fact evidence must be sufficiently similar.79
Much of the Crowns case turned on establishing a repeated pattern of
conduct involving the removal of women with a certain profile from a cer-
76 R v Arp, [1998] 3 SCR 339 at 36566, 166 DLR (4th) 296. Pickton was originally
charged with twenty-six murders. Ultimately, twenty of those counts were severed from
the trial. This left only the six counts for which the remains of the women were discov-
ered on Picktons property, and the defence had conceded their deaths. Once the defence
motion to sever the counts and proceed with two trials was granted, the only way for
the Crown to introduce the evidence of the twenty other murders in the first trial for
the six counts was as similar fact evidence. The Crown was mostly unsuccessful in in-
troducing evidence of the murder of these twenty other women. See e.g. R v Pickton,
2006 BCSC 1601, supra note 38; R v Pickton, 2006 BCSC 1447, supra note 29. With re-
spect to the six counts that did proceed, the jury could only consider the evidence for
each one individually, unless the Crown was permitted to introduce them as cross-count
similar fact evidence with respect to the others. The Crown was successful in this re-
gard. Convictions against Pickton on counts four to six turned on cross-count similar
fact evidence regarding counts one to three: There was no forensic evidence or opinion
as to the cause of death of the victims in Counts 4 through 6. Proof of homicide in each
of those counts rested on count-to-count similar fact analysis (R v Pickton, 2009 BCCA
299, supra note 22 at para 20).
77 R v Handy, 2002 SCC 56, [2002] 2 SCR 908.
78 David Hugill, Missing Women, Missing News: Covering Crisis in Vancouvers Downtown
Eastside (Halifax: Fernwood, 2010) at 1314. See generally Jennifer England, Disci-
plining Subjectivity and Space: Representations, Film and its Material Effects (2004)
36:2 Antipode 295.
79 R v Handy, supra note 77 at para 113.
17
PERSON(S) OF INTEREST AND MISSING WOMEN
tain area of Vancouver. But four of the six women he was on trial for
murdering were Aboriginal, and a massively significant number of the
other women Pickton confessed to murdering (evidence of which the
Crown sought to admit as similar fact) were Aboriginal.80 If race was not
rendered invisible in the manner Razack suggestsif the social relations
that situated Aboriginal bodies in particular in a vulnerable positionality
vis–vis Pickton were recognizedthe Aboriginality of these women
would be at least as cogent and important an aspect of the similar fact
analysis as was their relationship to drugs. Similarly, all of the women
Pickton murdered were living in poverty.81 Why was this shared socio-
economic status not a salient part of the similar fact profile?
The admissibility of similar fact evidence turns on the cogency of the
similarity. The cogency of the similarity is informed, if not dictated, by
culturally and socially biased assessments.82 In other words, how we
characterize, categorize and compare is informed by how we see the
world. Both the principles underpinning the law of evidence and the ap-
plication of its doctrine mirror social, political, and cultural contexts.83 In-
deed, the drug-dependent sex-trade worker from the Downtown Eastside
was the central and almost exclusive character in the medias storyand
thus the public imaginationof these women long before jurists adopted
this same profile to satisfy the doctrinal demands of similar fact evidence
rules.84 This is not a coincidence.
Moreover, it is not that, absent the doctrinal demands of a similar fact
evidence analysis, the spectre is replaced by a more three dimensional,
human representation of the women who were murdered. [D]rug de-
pendent sex trade worker is also used as the sole descriptor of these
women in contexts where there appears to be no doctrinal justification for
80 Missing Womens Inquiry Vol I, supra note 1 at 94. See Hugill, supra note 78 at 4647
(surveying estimates of the number of missing women who were Aboriginal
somewhere between one third to over half).
81 Hugill, supra note 78 at 9195.
82 I have developed this argument in earlier work: see Elaine Craig, Troubling Sex: To-
wards a Legal Theory of Sexual Integrity (Vancouver: UBC Press, 2012) ch 2.
83 The differing application of similar fact evidence doctrine in sexual assault cases involv-
ing child complainants and adult complainants reveals this same phenomenon. I have
demonstrated this pattern in earlier work (see ibid).
84 In describing the media representation of the missing and murdered women, Geraldine
Pratt notes: [W]omen were and continue to be represented almost exclusively as dis-
eased, criminalized, impoverished and degenerate bodies, nowliterallyas disembod-
ied DNA or as dead contaminating [sic] meat (Pratt, supra note 41 at 1062). See also
Hugill, supra note 78.
18 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
its invocation.85 Indeed, the names of the six women Pickton was on trial
for murdering do not even appear in the overwhelming majority of the ju-
dicial texts.86 The Supreme Court of Canada, in its decision upholding
Picktons conviction, does not call any of the six women by name. It refers
to them only as drug-dependent sex-trade workers.87
Similarly, the names of seventeen of the other twenty women that
Pickton was charged with murdering, counts which were severed from the
first trial, do not appear in any of the seventy-six texts.88 The combination
of procedural and evidentiary doctrine with the states ultimate decision
to stay the charges for the murder of these seventeen women renders
them totally invisible in the criminal justice response to the Pickton cir-
cumstance.
Why does it matter what story these texts, and the evidentiary and
procedural rules that underpin them, tell? Seventy-six reported decisions
issued from the criminal prosecution of Robert Pickton. That there were
this many reported decisions in this trial would be remarkable even if
there had been conflicting points of law to resolve. It is even more re-
markable given that this was not the case. Despite the volume of judicial
ink spilled on this case the precedential value of the Pickton proceedings
is almost negligible. Indeed, in total, these seventy-six separate decisions
85 See e.g. R v Pickton, 2006 BCSC 1881 at para 11, [2006] BCJ No 3681; R v Pickton,
2010 BCSC 1198, [2010] BCJ No 1669; R v Pickton, 2007 BCSC 42 at para 14, [2007]
BCJ No 3077; R v Pickton, 2005 BCSC 1240 at para 32, [2005] BCJ No 3245; R v Pick-
ton, 2005 BCSC 1463 at para 6, [2005] BCJ 3247; R v Pickton, 2005 BCSC 967 at para
2, [2005] BCJ 3244; R v Pickton, 2007 BCSC 718 at para 1, [2007] BCJ No 3082. In so
many of the seventy-six decisions, the words sex trade workers could be replaced with
the word women or individuals without any legal significance. See e.g. R v Pickton,
2009 BCCA 299, supra note 22 at para 14. Even in the sentencing decision, the only ac-
count of these womens lives was of drug abuse, desperation, and sex work (R v Pickton,
2007 BCSC 2039, supra note 71).
86 Brenda Ann Wolfe is called by name in only six of the seventy-six rulings. Georgina Pa-
pins name is raised in eight of the seventy-six texts, Marnie Frey in seven. Sereena
Abotsways name appears in eleven rulings, and Andrea Joesburys name is used in
thirteen of the seventy-six decisions. These numbers are based on a Quicklaw search on
30 May 2013. In relation to the use of names in decisions, see Shulamit Almog, As I
Read, I Weep: In Praise of Judicial Narrative (2001) 26:2 Okla City U L Rev 471 at 483
(discussing the way in which Justice Rehnquist, in Ake v Oklahoma, 470 US 68, 105 S
Ct 1087 (1985), brings the victims into the story by calling them by name).
87 R v Pickton, 2010 SCC 32, supra note 25.
88 The names of these twenty women were: Jacquelene McDonell, Dianne Rock, Heather
Bottomley, Jennifer Furminger, Heather Chinnock, Sarah de Vries, Tiffany Drew, Cyn-
thia Feliks, Inga Hall, Helen Hallmark, Tanya Holyk, Sherry Irving, Angela Jardine,
Patricia Johnson, Debra Jones, Diana Melnick, Wendy Crawford, Kerry Koski, Andrea
Borhaven, Cara Ellis (Missing Womens Inquiry Vol I, supra note 1 at 4060).
19
PERSON(S) OF INTEREST AND MISSING WOMEN
have been cited less than twenty times by subsequent courts.89 Neither
the Pickton proceedings as a whole, nor any one of the seventy-six deci-
sions in particular, is destined to become part of the legal canon. But
these texts represent something more. Judicial writing has a public di-
mension.90 In one sense a reported decision is a public normative act.91
This is particularly true in the context of a case like Pickton in which de-
cisions were presumably reported not for their precedential value but ra-
ther for the importance to the judiciary of ensuring public transparency in
such a high profile case.
There is little reason to assume that jurists could (or would) craft their
decisions with a precision that confines them solely to facts, concepts, and
descriptions that are legally relevant. This is true even setting aside the
important point that in many respects both the cognitive and procedural
processes used to identify which facts and descriptions are deemed legally
significant are socially determined.92 Judicial rulings are seldom cleansed
of every element that bears no specific weight on a legal determination.
89 R v Iyanam, 2013 ONSC 1091, 105 WCB (2d) 173; R v Spackman, 2012 ONCA 905, 295
CCC (3d) 177; R c Alexandre, 2012 QCCA 935, 94 CR (6th) 183; R v Leslie, 2012 BCSC
683, [2012] BCJ No 938; R v Skeete, 2012 ONSC 1920, 103 WCB (2d) 293; R v Kociuk,
2011 MBCA 85, 346 DLR (4th) 195 (citing R v Pickton in dissenting opinion); R c
Laroche, 2011 QCCA 1891, 99 WCB (2d) 193; R v Walters, 2011 ABQB 585, 517 AR 321;
R c Lepor, 2011 QCCA 1891, 97 WCB (2d) 247; R c Vollant, 2011 QCCA 1309, JE 2011-
1438; Barrington v Institute of Chartered Accounts of Ontario, 2011 ONCA 409, 333
DLR (4th) 401; R v Hughes, 2011 BCCA 220, 271 CCC (3d) 448; R v Drydgen, 2011
BCSC 393, [2011] BCJ No 555; R v BD, 2011 ONCA 51, 266 CCC (3d) 197; R v Katsis-
Spalding, 2011 ONSC 484, [2011] OJ No 218; Ontario (Ministry of Labour) v Enbridge
Gas Distribution Inc, 2011 ONCA 13, 328 DLR (4th) 343; R v Earhart, 2010 ONCA 874,
272 CCC (3d) 475 (citing R v Pickton in dissenting opinion); R v Khawaja, 2010 ONCA
862, 103 OR (3d) 321; R v Banwait, 2010 ONCA 869, 345 DLR (4th) 234; Bedford v
Canada (AG), 2010 ONCA 814, 330 DLR (4th) 162; R v Yumnu, 2010 ONCA 637, 260
CCC (3d) 421; R v Sarrazin, 2010 ONCA 577, 259 CCC (3d) 293 (citing R v Pickton in
dissenting opinion).
90 Almog, supra note 86 at 473.
91 Ibid at 474. Almog suggests that judicial text has both a public normative aspect and a
private dimension. For her the construction of narrative, word choice and style repre-
sent the private dimension of a legal opinion. The legal outcome, the translation of life
into unimaginative legal language, represents the public dimension of a judicial text.
She identifies a perpetual tension between the two. While I agree with Almog that a le-
gal ruling has these different aspects, I do not think they are discrete and I am not
compelled by the articulation of them as dichotomous. Part of what makes a judicial
text a public normative act is its narrative, its choice of language, its discursive product.
It is this singularity that produces Agambens state of exception. Indeed, the political is
personal. To accept that these aspects of a judicial opinionof lawcan be disaggre-
gated into public and private is to obscure the legally abandoned.
92 This point was made above with respect to the ways in which Aboriginality and coloni-
alism could have been, but were not, perceived to be relevant to the similar fact analysis
in this case.
20 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
[I]n legal writing, facts can be emphasized or omitted, made to appear
relevant when they are not, and skewed one way or another. The goals
are the same [as writing a good novel]to tell a story by using words as
tools to produce a desired reaction.93 Rules of procedure and evidence, the
strictures of doctrine, professional conventions and our social expectations
of law are presumed to limit, if not preclude, laws storytelling capacity.
Nevertheless narrative is ever present within the legal field. It has a way
of penetrating and manifesting itself clearly and forcibly, even after being
minimized, disguised or obscured by the legal course of action.94 Every
written text is produced through a series of choices. These choices include
the decision to relate some facts and omit others, the selection of words
employed to convey a particular meaning, the choice of authorities drawn
upon, and the argumentative style adopted. The constellation of these
choices produces a narrative. More importantly, laws stories in particular
are normativethey make a claim to truth.95 Every judicial narrative is
a claim of knowledge. … When judges narrate, our initial reaction is to
treat their narration as an accurate reflection of reality.96
The figure of the drug-dependent sex-trade worker is a representation
of a mismanaged life. Under this schematic, poverty is understood as the
result of drug addiction rather than the cause.97 Involvement in street-
level sex trade reveals individual failure to acquire sufficient education or
skills and poor decision making regarding the use of drugs. Under this
representation, the precarity of life in the Downtown Eastside becomes a
consequence of individual choice. In this sense, moral responsibility is
equated with rational action.98 Lack of opportunity, the effects of colonial-
ism and gender discrimination, high unemployment, limited social assis-
tance and the political and social choices that produced these circum-
stances are obscured. Correspondingly, governance models premised on
such neo-liberal concepts tend to judge moral worth in terms of self-care
such that a mismanaged life is itself evidence of and grounds for aban-
donment.99
93 Jeffrey L Harrison & Sarah E Wilson, Advocacy in Literature: Storytelling, Judicial
Opinions, and The Rainmaker (1996) 26:4 U Mem L Rev 1285.
94 Almog, supra note 86 at 473.
95 Ibid at 488.
96 Ibid at 488.
97 See Culhane, supra note 51 ([p]overty is rarely analyzed as a causal condition that
gives illicit drug use and sex work their particular public character and devastating
consequences at 596).
98 Ibid.
99 Pratt, supra note 41 at 1055, citing Wendy Brown, Neo-Liberalism and the End of Lib-
eral Democracy (2003) 7:1 Theory & Event 1.
21
PERSON(S) OF INTEREST AND MISSING WOMEN
An explanation for what happened that consistently involves a story of
the fallen young woman who set herself on the wrong path after getting
involved with drugs, choosing the wrong guy and deciding to prostitute
herself in order to support her addictions rationalizes the victimization of
these women as a function of poor decision making on the part of the indi-
vidual. That this was the predominant media representation and social
understanding of the missing women is readily apparent in the coverage
and public response to their disappearances both before and after Pick-
tons arrest.100 The almost universal reference in every media account to
their relationships to drug use, commodified sex, and little else, the invis-
ibility of race and poverty in public and media discourse about the Pickton
circumstance, and the prolonged unwillingness on the part of police and
municipal politicians to respond to their disappearances are consistent
with this problematic neo-liberal account of the murdered women.101 The
judicial texts produced as a result of the Pickton proceedings maintained
this representation.
The voice of a judge, whether in the courtroom or in the text of a judi-
cial ruling, represents the court and ultimately one arm of the state.102 In-
deed, in the context of sexual violence, judicial rulings typically serve as
the only voice of the state in response to any individual violation. Women
100 See Pratt, supra note 41; Lisa E Sanchez, The Global E-rotic Subject, the Ban, and the
Prostitution-Free Zone: Sex Work and the Theory of Differential Exlusion (2004) 22:6
Environment and Planning D: Society and Space 861; Hugill, supra note 78. See also
Beverley A Pitman, Re-Mediating the Spaces of Reality Television: Americas Most
Wanted and the Case of Vancouvers Missing Women (2002) 34:1 Environment and
Planning A 167; Yasmin Jiwani & Mary Lynn Young, Missing and Murdered Women:
Reproducing Marginality in News Discourse (2006) 31:4 Canadian Journal of Commu-
nication 895.
101 The political and social embrace of neo-liberalism in British Columbia contributed in
significant ways to the underlying circumstances in the Downtown Eastside. Welfare
spending in the province has been drastically cut in the last thirty years. Economic
marginalization in British Columbia has increased steadily since 1983. The impact of
these changes is most significant for the most impoverished. In other words, these poli-
cies further deprived economically marginalized women living in the Downtown
Eastside. See Hugill, supra note 78 at 33. Neo-liberal philosophies emphasize individu-
al responsibility, self-reliance, and autonomy from the state. Economic deregulation and
business interests are privileged over environmental protection, cultural diversity and
the reduction of poverty. The result is a governance model which reduces social spend-
ing and which holds the individual responsible for harms suffered by characterizing
them as a function of poor choices and lack of self-care. The conception of the individual
as a responsible and autonomous agent is central to neo-liberalism. Wendy Brown sug-
gests that it is the extension of Adam Smith-esque liberal economic perspectives to so-
cial policy and the regulation of the individual that puts the neo in neo-liberalism (see
Brown, supra note 99).
102 Beverly B Martin, Another Judges Views on Writing Judicial Opinions (2013) 51:1
Duq L Rev 41 at 42.
22 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
who exchange sex for money experience sexual violence at a rate that far
exceeds that of the general population.103 Responsiveness to the social, po-
litical, and legal infrastructure that so frequently relegates this category
of individuals to subhuman status demands displacing these hegemonies
rather than contributing to their discursive production through unidi-
mensional constructs such as the drug-dependent sex-trade worker. In
part, this requires reflecting in the official texts of the criminal justice
process the humanity and citizenship of the women who bring these expe-
riences to the criminal justice system. To date judicial texts have often
been unsuccessful in this regard.104
It is clear that the discursive contribution of the official texts of the
Pickton trial and the procedures and doctrine that undergird these texts
did not produce an account of the murdered women as fully human citi-
zens. Instead, these official texts perpetuated an animalistic, subhuman
representation that obfuscates the social relations that produced the Pick-
ton circumstance. Shifting from a textual analysis of the judicial rulings
in Pickton, the next two sections of this article will examine two aspects of
the outcome of the Pickton trial.
III. The Pickton Prosecution Did Not Produce a Truth Account
Pickton was convicted of murdering six women and sentenced to life
imprisonment without the possibility of parole for twenty-five years. He
will likely spend the remainder of his life incarcerated, no longer able to
kill with impunity the legally abandoned women of the Downtown
Eastside. Does this mean that they have been returned from bare lifeno
longer homines sacrithose that can be killed without punishment?105
Did Picktons trial, conviction, and sentencingthe states formal legal
process responding to the deaths of these womenrestore their humani-
ty? If one accepts that the murder of almost seventy women from the
Downtown Eastside of Vancouver was a function of collective violence
then it is difficult to conclude that the conviction and incarceration of
103 See Melissa Farley, Jacqueline Lynne & Ann J Cotton, Prostitution in Vancouver: Vio-
lence and the Colonization of First Nations Women (2005) 42:2 Transcultural Psychia-
try 242 (interview-based research with sex workers in Vancouver in which ninety per
cent reported being physically assaulted and seventy-eight per cent reported being
raped while engaged in sex work). This reality is brought starkly to the fore when one
reads the biographical information about the sixty-nine missing women included in the
Missing Womens Inquiry Vol I, supra note 1.
104 See e.g. R v Yusuf, 2011 BCSC 626, [2011] BCJ No 891; R v Watson, 72 WCB (2d) 333,
[2007] OJ No 5; R v Smith, 68 WCB (2d) 401, [2005] OJ No 5273; R v Powell, 73 WCB
(2d) 111, 215 CCC (3d) 274.
105 See Agamben, Homo Sacer, supra note 23 at 165.
23
PERSON(S) OF INTEREST AND MISSING WOMEN
Robert Pickton could posthumously reinstate citizenship to any of the
women he murdered. However, there are other potential outcomes of this
process that should be considered. One possibility includes the production
of truth.
The suggestion that the criminal justice process could yield truth or
produce knowledge about what happened to many of the women who went
missing from the Downtown Eastside during this time frame raises many
questions, among them the following two. First, doesor shouldthe
criminal justice process produce truth? Second, did this particular crimi-
nal justice process produce truth?
Whether the production of truth is an achievable or even a legitimate
aim of the criminal justice process is controversial. The law of evidence is
thoroughly imbued with tensions between the pursuit of truth and the
protection of societal values such as due process.106 In some cases, courts
have explicitly rejected the production of truth as the aim of the criminal
justice process.107 Yet, judicial rulings in Canada are redolent with rheto-
ric about the truth seeking function of the criminal trial.108 The Supreme
106 It is beyond the scope of this discussion to illuminate this claim fully. However, the
most obvious example of this tension is reflected in the balancing process derived from
the fundamental rule that underpins much of evidence law: relevant and material evi-
dence, the probative value of which outweighs its prejudicial effect is generally admissi-
ble. The prejudicial effect of evidence might include prejudice to the trial process
through consumption of time, prejudice to the entrenched rights of the accused through
admission of unconstitutionally obtained evidence or prejudice to the privacy interests
of a complainant. Evidence has probative value if the inference it gives rise to makes a
material fact more or less likely. For more detail, see Lederman, Bryant & Fuerst, su-
pra note 75 at 72935.
107 For example, in R v Mullins-Johnson, 2007 ONCA 720, 87 OR (3d) 425 the Ontario
Court of Appeal refused to recognize a third verdict of factually innocent on the basis
that it would erode the significance of the not guilty verdict (ibid at para 25). Their rea-
soning, of course, recognizes the distinction between factual innocence (a truth account)
and legal innocence (a conclusion that the Crown has not met its burden of proof). I am
grateful to my colleague Steve Coughlan for drawing my attention to this example. See
also R v Pittiman, [2006] 1 SCR 381, 36 CR (6th) 87 ([t]he jurys task is not to recon-
struct what happened at 386 [cited to SCR]); R v Mah (2002), 2002 NSCA 99, 207 NSR
(2d) 262 (W.D. reminds us that the judge at a criminal trial is not attempting to resolve
the broad factual question of what happened at para 41).
108 In recent years and with increasing frequency, the Supreme Court of Canada has re-
ferred to a criminal trial as being a search for the truth (Keith D Kilback & Michael D
Tochor, Searching for Truth but Missing the Point (2002) 40:2 Alta L Rev 333 at 333
(discussing a problematic shift in the conceptualization of a criminal trial toward the
view of the trial as a search for the truth)). There are also arguments to suggest that
this emphasis on truth seeking is more than rhetorical. See e.g. Matthew Pearn, Sec-
tion 24(2): Does the Truth Cost Too Much? (2011) 62 UNB LJ 147 (discussing the way
in which the Supreme Court of Canadas decision in R v Grant, 2009 SCC 32, [2009] 2
SCR 353, has broadened the trial judges discretion to include unconstitutionally ob-
24 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
Court of Canada has described it in these words: The ultimate aim of any
trial, criminal or civil, must be to seek and to ascertain the truth. In a
criminal trial the search for truth is undertaken to determine whether the
accused before the court is, beyond a reasonable doubt, guilty of the crime
with which he is charged.109 The search for truth is used by courts to jus-
tify both the inclusion and the exclusion of evidence; it is relied on both to
ensure and limit various procedural protections for the accused; and the
search for truth justifies both the requirement and denial of crown disclo-
sure.110 While a conclusion on the proper relationship between truth and
the criminal justice process is beyond the scope of this discussion, its cen-
trality to our understanding of the criminal trial is indisputable.
The answer to the second questiondid this particular criminal jus-
tice process produce truth?is more definitive. Whether one considers the
pursuit of truth to be a legitimate objective of the criminal justice process,
it is clear that the outcome of this particular trial did not produce a truth
account.111
Robert Pickton was charged with twenty-six counts of first-degree
murder. Twenty of those counts were severed from the original trial and
ultimately stayed. He was tried on six counts of first-degree murder and
convicted of six counts of second-degree murder. In other words, the jury
found Pickton not guilty of first-degree murder.112 To find an accused
guilty of either first- or second-degree murder the finder of fact (here the
jury) must conclude beyond a reasonable doubt that the accused caused
the victims death.113 The difference between first and second-degree mur-
tained evidence in the interests of seeking truth). See also R v Hart, 1999 NSCA 45, 174
NSR (2d) 165 (concluding that limits on cross-examination are established by the bal-
ance between fair trial and pursuit of truth)
109 R v Nikolovski, [1996] 3 SCR 1197 at 1206, 141 DLR (4th) 647 (recognizing the im-
portance of videotapes in the search for truth in criminal trials).
110 Kilback & Tochor, supra note 108 at 342.
111 There is a distinction between legal truth and factual truth. Factual truth refers to
what might be described as historical truth. Legal truth refers to an assessment of the
evidence against a legal standard of proof. Arguably, in Pickton, the distinction is pe-
ripheral. Neither the British Columbia Court of Appeal nor the Supreme Court of Can-
ada accepted even the legal truth of the jurys verdict in this case. Following the out-
come of the appeals, an order for a second trial on charges of first-degree murder was
permanently stayed at the request of the Crown (R v Pickton, 2009 BCCA 300, supra
note 28; R v Pickton, 2010 SCC 32, supra note 25).
112 R v Pickton, 2007 BCSC 2039, supra note 71 at para 8.
113 In re-instructing the jury on causation, the trial judge stated: If you find that Mr. Pick-
ton shot Ms. Abotsway or was otherwise an active participant in her killing, you should
find that the Crown has proven this element. On the other hand, if you have a reasona-
ble doubt about whether or not he was an active participant in her killing, you must re-
25
PERSON(S) OF INTEREST AND MISSING WOMEN
der often relates to the element of planning and deliberation. Murder is
first-degree murder if it is planned and deliberate.114 Juries, of course, do
not give reasons for their decisions. The only knowledge that can be pro-
duced from a jury trial is that which can be deduced from the verdict it-
self. By acquitting Pickton of first-degree murder and convicting him of
second-degree murder, the jury in Pickton must be taken to have conclud-
ed that Pickton killed six women on six different occasions but that for
him none of these murders were planned and deliberate.115 This is a very
unusual, if not inexplicable, outcome. Was Pickton the worlds first unwit-
ting serial killer?
Clearly neither the trial judge nor the British Columbia Court of Ap-
peal believed that to be the case. In his sentencing decision Justice Wil-
liams commented: This case is unique. It is unique because there are six
separate convictions from six separate events, taking place over a period
of approximately four years. … The case is markedly different from virtu-
ally any other case to which I have been referred. 116 Presumably in an ef-
fort to do what he could to mitigate the effect of the jurys troubling ver-
dict, Justice Williams took the relatively rare step of sentencing Pickton
to the maximum period of parole ineligibilitylife without eligibility of
parole for twenty-five years. This is a sentence typically reserved for con-
victions of first-degree murder.
The Crown appealed Picktons acquittal on first-degree murder on the
basis that the trial judge erred in severing the other twenty counts of first
degree murder and by excluding relevant similar fact evidence. The
Crown argued that these rulings prevented it from demonstrating the
overwhelming evidence of planning and deliberation on the part of Pick-
ton. In its decision to grant the Crowns appeal, the British Columbia
Court of Appeal discussed excerpts from Picktons post arrest interview
with the police in which he referred to himself as the head honcho and
stated that he had one more planned.117 The court noted that this is the
slimmest sampling of statements in the interview from which the re-
turn a verdict of not guilty (R v Pickton, 2007 BCSC 1808 at para 9, [2007] BCJ No
3017).
114 Criminal Code, RSC 1985, c C-46, s 231(2). Murder is also first degree murder, even
without planning and deliberation, if the death is caused by the accused in specified cir-
cumstances such as while he is committing certain enumerated offences including kid-
napping or forcible confinement (ibid, s 232(5)).
115 R v Pickton, 2007 BCSC 2039, supra note 71 at para 8.
116 Ibid at para 20.
117 R v Pickon, 2009 BCCA 300, supra note 28 at paras 3233, affd 2010 SCC 32, supra
note 25.
26 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
spondents responsibility for the planned and deliberate murders of the
victims could be inferred.118
Pickton was never retried on these six counts of first degree murder
nor was he tried on the other twenty counts. Robert Pickton was convicted
of six counts of murder on six different occasions without any planning
and deliberation. Despite the Crowns success on appeal this result
stands. From a legal perspective, to find that the trial judge erred by ex-
cluding similar fact evidence of the other murders and severing twenty
other counts and that absent other considerations a new trial should be
ordered is not the same as finding Pickton guilty of first-degree murder.119
It is clear from Justice Donalds dissenting opinion in the British Co-
lumbia Court of Appeal allowing the defence appeal and ordering a new
trial that he also considered the jurys verdict implausible.120 Despite the
body of evidence against Pickton, the jury deliberated over nine days and
reached the somewhat curious result of second degree murder.121 For
Justice Donald, the jurys verdict in Pickton brought to mind the following
passage from R. v. Cribbin: There comes a point where a verdict cannot
be sustained if a jury is so misguided that there is a real possibility that
its verdict was the product of a compromise reached out of puzzlement or
frustration, albeit one that has an evidentiary foundation.122 Perhaps
compromise is a plausible explanation for the jurys puzzling verdict.
The possibility that the acquittals on all charges of first-degree mur-
der were a function of compromise also raises the subject of jury nullifica-
118 R v Pickon, 2009 BCCA 300, supra note 28 at para 34.
119 While the Crowns appeal was successful, an order for a new trial was permanently
suspended. The Crown indicated to the Court that if the six convictions for second-
degree murder were sustained following the defence appeal a second trial would serve
no useful purpose and would not be sought. This is what occurred (Mickleburgh, supra
note 10). The Pickton trial stretched on for many months, involving over one hundred
witnesses, incurring enormous financial and human resource expense (ibid). The prag-
matic justification for not pursuing a second trial of this magnitude (particularly when
the sentence would be the same if convicted) is obvious. While the justification is obvi-
ous, the implications for the truth account produced by the outcome of this criminal jus-
tice process remain.
120 R v Pickton, 2009 BCCA 299, supra note 22. Pickton also appealed his second degree
murder convictions. He appealed on the basis that the trial judge erred in instructing
the jury on co-principal liability. His appeal was dismissed by the British Columbia
Court of Appeal (ibid) and by the Supreme Court of Canada (R v Pickton, 2010 SCC 32,
supra note 25). Justice Donald of the British Columbia Court of Appeal dissented on the
basis that it was an error of law not to instruct the jury on the law of aiding and abet-
ting.
121 R v Pickton, 2009 BCCA 299, supra note 22 at para 278.
122 Ibid, quoting R v Cribbin (1994), 17 OR (3d) 548 at 575, 89 CCC (3d) 67.
27
PERSON(S) OF INTEREST AND MISSING WOMEN
tion. Do juries convict on second-degree murder rather than first-degree
murder in cases where they consider the accuseds actions to be bad but
not that bad?123 Was this what happened in Pickton? Recall Razacks ob-
servation that we care less about the bodies in degenerate spaces and of-
ten define out of existence the violence enacted on those bodies.124 Pre-
sented only with the spectre of the drug-dependent sex-trade worker from
the Downtown Eastside, was the humanity of these victims so unintelligi-
ble to the jury that they were unlikely to convict Pickton of Canadas most
serious homicide?
In his discussion of high profile criminal trials in America, Lawrence
Friedman examines the notion of juries, compromise verdicts, and what
he calls the unwritten law.125 He argues that criminal trials are very often
striking social documents. They sometimes shed a blinding light on social
norms that are otherwise shrouded in darkness and would otherwise be
almost impossible to document.126 These social norms influence jury be-
haviour. To exemplify this phenomenon, Friedman points to the unwrit-
ten laws that have historically protected husbands who murder their
wives lovers and exonerated men accused of raping purportedly unchaste
women.127 Would the jury have acquitted Pickton of six counts of first-
degree murder if the victims had been white women with professional oc-
cupations and higher socioeconomic status? While the outcome of the
Pickton proceedings did not result in a truth account about what really
happened on that farm it may well have offered a lesson about the nature
of criminal justice and its relationship to the social norms that inform it.
Regardless of the reason for a compromise, a jury that arrives at a verdict
by finding a middle ground is neither functioning ideally nor, of course, is
it producing a truth account.
The unusual outcome of Picktons trial is also explainable if the jury
accepted the defence theory of the case. The defence presented Pickton as
an unsophisticated man of extremely low verbal intelligence.128 They
pointed to evidence that they argued implicated other individuals more
123 See e.g. the jurys verdict in R v Latimer (1995), 126 DLR (4th) 203 at 242, 41 CR (4th) 1
(SKCA). As Lisa Dufraimont suggests, [a]lthough a more planned and deliberate mur-
der is hard to imagine, the jury at Robert Latimers first trial convicted him of second
degree murder rather than the first degree murder with which he was charged (Evi-
dence Law and the Jury: A Reassessment (2008) 53:2 McGill LJ 199 at 212).
124 Razack, Race, Space, and Prostitution, supra note 48 at 358.
125 Lawrence M Friedman, Front Page: Notes on the Nature and Significance of Headline
Trials (2011) 55:4 St Louis ULJ 1243 at 1268.
126 Ibid.
127 Ibid at 1269.
128 R v Pickton, 2006 BCSC 995, supra note 55 at para 99.
28 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
extensively than Pickton was implicated. The defence theory was that an-
other, or possibly more than one other, individual was responsible for the
murders.129 On the sixth day of deliberations the jury came back to the
trial judge seeking clarification as to whether they could convict Pickton if
they found that he had acted indirectly in the killing of one or more of the
women. Their question was about causation but it also reveals something
about their deliberations. The jury wanted to know whether they could
convict Pickton if they found that he had not acted alone. 130 It is possible
that the jury concluded that Pickton was involved in killing six women on
six different occasions but that this occurred without planning and delib-
eration on his part because someone else was the mastermind. They may
have accepted the defence suggestion that Pickton lacked the intelligence
necessary to have orchestrated these serial killings. Certainly if this is the
explanation for the outcome of this trial the process cannot be attributed
with having revealed any truth about what happened on that farm. No
one else was ever charged with these murders. More importantly, based
on the evidence and, as the sentencing decision, British Columbia Court of
Appeal decisions, and the Supreme Court of Canada decision suggest, this
conclusion seems implausible.131
Further demonstrating that the Pickton proceedings were not rooted
in a quest for the truth, on appeal the Crown changed its account of what
occurred on the Pickton farm. In its opening address at trial, the Crown
emphasized that Pickton acted alone: [t]he Crown intends to prove that
these murders of these six women were the work of one man, the accused
Robert William Pickton.132 For obvious strategic reasons given the jurys
verdict and one of the defences arguments on appeal,133 in responding to
129 R v Pickton, 2009 BCCA 299, supra note 22 at para 11.
130 It is evident from his response to the question that Justice Williams also drew this in-
ference from the jurys question. In responding, he drew their attention to those por-
tions of his original charge in which he had advised them that they need not find that
Pickton acted alone in order to find him guilty of the offence (R v Pickton, 2009 BCCA
299, supra note 22 at para 185). On appeal, the defence conceded that the jury was ask-
ing whether they could find him guilty if the Crown did not prove that he was the sole
perpetrator (ibid at para 192).
131 R v Pickton, 2009 BCCA 300, supra note 28; R v Pickton, 2009 BCCA 299, supra note
22; R v Pickton, 2010 SCC 32, supra note 25.
132 Shannon Kari, Pickton Had Accomplices, Crown Will Argue Edmonton Journal
(19 March 2010), online:
133 One of the grounds of appeal by the defence was that the trial judge unfairly re-charged
the jury in a way that put before them for the first time a new co-principal theory of the
case. In challenging this argument, the Crown contended that it was proper for the trial
judge to present the jury with the law of parties given the body of evidence before the
court (R v Pickton, 2009 BCCA 299, supra note 22 at para 2).
29
PERSON(S) OF INTEREST AND MISSING WOMEN
the defence appeal before the Supreme Court of Canada, the Crown as-
serted that there was considerable and obvious evidence that Pickton
was the person in charge of a murderous joint venture.134 On appeal the
Crown argued that the pool of evidence clearly left open the possibility
that others were acting in concert with Pickton.135
For the purposes of this discussion, it does not matter whether the
verdict was a function of compromise, or of the erroneous exclusion of sim-
ilar fact evidence that would have established the element of planning
and deliberation, or whether it occurred because the jury concluded that
the mastermind is still out there. Under any of these potential explana-
tions it is not possible to draw from the outcome of the Pickton trial much
truth or knowledge about what really happened. Again, it may be that de-
spite judicial rhetoric to the contrary no one really believes a criminal tri-
al is or should be a truth seeking process. However assuming, as the Su-
preme Court of Canada has suggested,136 that criminal justice and truth
are imbricated in some fundamental respect, their union and the restora-
tion of humanity in the face of collective violence that this union is
thought to achieve are not revealed in the outcome of the Pickton proceed-
ings.
IV. Did the Pickton Trial Achieve Justice for the Families?
In responding to criminalized violence, courts and political actors often
further a narrative that involves pursuing justice for the victims and the
families of the victims.137 Broadly speaking there are two respects in
which one might consider the criminal justice process to have achieved
justice for the families of a murder victim. First, one might assert that the
trial process itself, by offering the families their day in court, ensures
justice for them. Second, the mere fact of conviction might be thought to
achieve this result.
134 R v Pickton, 2010 SCC 32, supra note 25 (Factum of the Respondent at para 2).
135 Ibid.
136 R v Nikolovski, supra note 109.
137 See e.g. Justine Hunter, Decision Not to Try Pickton on 20 More Charges Outrages
Families The Globe and Mail (27 February 2008), online:
decision not to proceed with the second trial: The victims and families deserve jus-
tice all of them do and the trial should go ahead).
30 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
At one time, victims of crime were important players in the criminal
justice system.138 However, private prosecution and citizen action were
gradually replaced by public prosecution, a professional police force, and
state administered remedies.139 Then, in the latter part of the twentieth
century a renewed interest in victims of crime emerged in the form of vic-
tims rights discourse, the restorative justice movement, and the concept
of therapeutic jurisprudence.140 This led to government policies and rules
of criminal procedure aimed at creating some opportunity for victims of
crime to become involved in the criminal justice process through victim
impact statements, victim compensation programs, and travel funding for
victims to attend court proceedings.141 All three of these were made avail-
able to some family members of some of the murdered women for some of
the Pickton proceedings.
The government provided funding for immediate family members to
attend the Pickton trial.142 According to Stevie Cameron, who interviewed
several family members, many of them experienced this process as deeply
problematic. They expressed grievances about the lack of information
they were given about the trial, about the very modest travel funds made
available to them, and about the governments policy of designating only
two approved family members for each victim.143 Family members of the
six women Pickton was convicted of murdering were also given the oppor-
138 George P Fletcher, With Justice for Some: Protecting Victims Rights in Criminal Trials
(Reading, Mass: Addison-Wesley, 1995).
139 Paul Hudson, The Crime Victim and the Criminal Justice System: Time for a Change
(1983) 11:1 Pepp L Rev 23 at 24.
140 See e.g. Fletcher, supra note 138, (advancing ten solutions for protecting victims rights
in criminal trials); Cornelius Prittwitz, The Resurrection of the Victim in Penal Theo-
ry (1999) 3:1 Buff Crim L Rev 109 (discussing refocus on victims by criminologists in
the 1970s and 1980s); Robert C Davis, Arthur J Lurigio & Susan Herman, eds, Victims
of Crime, 3rd ed (Los Angeles: Sage, 2007) (discussing developments in the criminal
laws treatment of crime victims).
141 See e.g. Criminal Code, supra note 114, ss 672.5(14), (15), (15.1); Department of Justice
Canada, Victims Fund, online: Government of Canada
Victim Travel Assistance, & Victim Travel Fund, online: Government of British Colum-
bia
142 Robert Matas, Relatives of Robert Pickton Victims Given $1.25 Million The Globe and
Mail (30 October 2011), online:
Farm, supra note 9 at 598.
143 Ibid at 601. See also Greg Joyce, Victim Services Issues Guide for Families at Coming
Pickton Murder Trial Canadian Press (3 January 2007), online: Missing People
members expressing concerns regarding the governments policies with respect to
providing support and information to family members during the trial).
31
PERSON(S) OF INTEREST AND MISSING WOMEN
tunity to speak at his sentencing hearing about the impact of these deaths
on them.144 According to Cameron, each family was given approximately
five minutes to read a statement describing their loss and its impact.145
Whether Picktons trial provided an adequate ability to participate for
some of the families such that they can be said to have had their day in
court is unclear. It is clear, however, that by the time the case reached the
appellate level the state did not recognize a role for the families of the
women Pickton murdered. In a letter advising the families of the six
women that the government would not provide travel funding for them to
attend the hearing, nor would it provide them with updates during the
nine day appeal, British Columbias Attorney General informed them that
the appeal was largely a technical exercise in which lawyers would submit
arguments alleging potential legal errors by the trial judge.146
In terms of the mere fact of conviction, it would be difficult and prob-
lematic to make conclusive claims regarding how the families of the six
women Pickton stood trial for murdering experienced his conviction. Some
family members expressed relief or a sense of closure in response to Pick-
tons conviction on six counts of second degree murder.147 For others, his
acquittal on six counts of first-degree murder served as yet another exam-
ple of the way in which the women he murdered were not recognized as
full citizens.148 Some Aboriginal community leaders also expressed signifi-
cant dismay regarding Picktons acquittals.149
What is clear is that, based on their statements to the media, many
family members of the twenty women Pickton was charged with but never
tried for murdering, did not experience the six convictions as having ob-
144 R v Pickton, 2007 BCSC 2039, supra note 71 at para 2.
145 Cameron, On the Farm, supra note 9 at 695.
146 Josh Wingrove, Families Must Pay Own Way for Pickton Appeal Hearing The Globe
and Mail (23 February 2009), online:
147 Petti Fong, Pickton Verdict Deplored Toronto Star (11 December 2007), online:
148 Lori Culbert, Pickton Now a Convicted Serial Killer Vancouver Sun (9 December 2007),
online:
courtroom).
149 See e.g. statements by Haida leader Bernie Skundaal Williams: I am so angry that
our women have been treated like second-class citizens yet again with these second-
degree-murder verdicts (Acquittal Would Have Led to Ugly Native Backlash Van-
couver Province (10 December 2007), online:
32 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
tained justice for the family members they lost.150 One year after Picktons
conviction on the first six counts of murder, Grand Chief Doug Kelly, a
member of the First Nations Leadership Council, urged the government
to proceed with the remaining charges. There has been no closure for
many of the other victims families. The Crown must plan to proceed with
a second trial for Robert Pickton on all outstanding counts in order to give
the remaining victims families their day in court.151 Lori-Ann Ellis,
whose sister Carrie Ellis was among the twenty other women Pickton was
charged with but not tried for murdering, made the following comments
in response to the decision to stay the outstanding charges against Pick-
ton: Six of the 26 were given justice, they were given their day in court …
The families had an opportunity to speak in public … on how it affected
them. Thats something this family will never have.152 In discussing the
decision to stay charges against Pickton for the murder of Cynthia Feliks,
her stepmother commented that [f]or a lot of us, there have only been six
girls that have actually had justice done for them … We havent had jus-
tice for our girls.153 The family of Dianne Rock wrote to numerous politi-
cians, including the prime minister, asking that Picktons second trial
proceed. They wanted Diannes story told so she is not forgotten as count
No. 4 on an indictment, filed away in a dusty legal folder never to be
opened again.154
There were justifications for the British Columbia governments deci-
sion not to prosecute Pickton on these twenty other counts given that he
was sentenced to life without parole for twenty-five years after his first
trial. It may be true, as then Attorney General Wally Oppal suggested,
that it would not be in the public interest to have a second lengthy and
complicated trial given the six convictions and life sentence.155 Presuma-
bly the economic and human cost of a second trial would be just as high as
the cost of the first proceeding. However, whether this is accurate does
not diminish the fact that many of the families experienced this decision
as a denial of justice. The focus of this discussion is on whether the crimi-
150 Hunter, supra note 137.
151 Union of BC Indian Chiefs, Media Release, Some Victims Families Still Await Justice
on First Anniversary of Pickton Verdict (9 December 2008), online:
152 Hunter, supra note 137.
153 Pickton Victims Families Still Seek Justice The Chronicle Herald (17 December
2012), online:
154 Lori Culbert, A Sister Lost Vancouver Sun (8 March 2008), online:
155 Hunter, supra note 137; Mickleburgh, supra note 10.
33
PERSON(S) OF INTEREST AND MISSING WOMEN
nal justice response to the Pickton circumstance can be said to have at-
tained justice for the families of his victims. With respect to the families of
the women whose murders were not prosecutedwomen whose names
did not even appear in the judicial texts emanating from the Pickton
prosecutionit is difficult to conclude that this was achieved.156
Even if Pickton had been convicted of every one of the murders for
which he was originally charged, and even if all of the families of the
women Pickton murdered had experienced his conviction as a perfor-
mance of justice, or had been given a participatory opportunity in the pro-
cess, there is a sense in which this would not have recognized the citizen-
ship and humanity of the murdered women. While representing these
women through the grief of their family members does gesture toward
recognition of their humanity it does not displace the social, political and
legal conceptions that reduced them to something less than human.
An obvious demonstration of this claim is provided by the sentencing
decision in Pickton.157 The decision references in a compelling way the
grief of family members whose lives have been altered and forever
changed by these murders.158 In describing the murders, the court
properly characterizes [w]hat happened to them [as] senseless and des-
picable.159 But this same court captures the them in this sentence with
only the following descriptors: women who had troubled lives; persons
who were in the ugly grasp of substance abuse and addiction; and per-
sons who were selling their bodies to strangers in order to survive.160
Even if the Pickton trial did return some small number of these wom-
en to their families, it returned them in metaphorical body bags sewn
with the very norms and alienating discourse that rendered them bare in
the first place. Moreover, as Geraldine Pratt observes:
156 In addition to the articulation of injustice expressed by the families of Dianne Rock,
Cynthia Feliks, and Cara Ellis, see Neal Hall, Picktons Second Trial at Least a Year
Away National Post (7 April 2008), online:
the family of Wendy Crawford one of the remaining twenty victims Pickton was accused
of killing); Robert Matas & Anupreet Sandu Bharma, Pickton Loses Appeal, as Fami-
lies Hope for Second Trial The Globe and Mail (26 June 2009), online:
ing in 1997, expressing dismay that even if her DNA were found on Picktons farm
there would be no trial).
157 R v Pickton, 2007 BCSC 2039, supra note 71.
158 Ibid at para 17.
159 Ibid at para 17.
160 Ibid at para 16.
34 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
Empathy through normalised family loss humanizes the murdered
women by locating them within narratives of the middle-class fami-
ly. Not only is this a gendered and heteronormative narrative, it pri-
vatizes, individualizes, and potentially depoliticizes aboriginal wom-
ens and sex workers specific marginality in the Downtown
Eastside.161
The specificity of these lives should not be obscured but rather situat-
ed in a fully contextualized and politically textured narrative. Sereena
Abotsway took part in annual community marches for the missing women
in the Downtown Eastside. She was physically and sexually abused as a
child.162 Brenda Wolfe, a member of the Kahkewistahaw First Nation, did
sex work to supplement a welfare income that was insufficient to support
her children. She was well known in the Downtown Eastside as someone
that people could turn to for support.163 Like Brenda Wolfe and many oth-
ers, Patricia Johnson also struggled to make ends meet living on wel-
fare.164 Dawn Crey, a frequent visitor to the Downtown Eastside Womens
Centre was a member of the Sto:lo First Nation. Her parents were resi-
dential school survivors.165 Both Mona Wilson and Georgina Papin were
Aboriginal women who grew up in foster care environments and were
abused at young ages. Serena Abotsway, Andrea Borhaven, Dawn Crey,
and Helen Hallmark were also placed in foster care as children.166 Tiffany
Drew was an active member of the WISH Drop-In Centre in the Down-
town Eastside. She and a good friend had developed a check-in safety sys-
tem. Within hours of disappearing her absence was noticed.167 In journals
she kept throughout her life, Sarah de Vries described the overt racism
she experienced as a woman of colour in a white community.168 Angela
Jardine was last seen attending a community event in the Downtown
Eastside called Out of Harms Way.169
161 Pratt, supra note 41 at 1064.
162 Missing Womens Inquiry Vol I, supra note 1 at 37.
163 Ibid at 70.
164 Ibid at 57.
165 Ibid at 42. Her DNA was found at the Pickton farm. Murder charges were recommend-
ed by the police but never laid (ibid).
166 Ibid at 37, 40, 42, 54.
167 Ibid at 4546 (charges against Pickton for her murder were stayed after the first set of
convictions was upheld).
168 Ibid at 4344 (charges against Pickton for her murder were stayed after the first set of
convictions was upheld).
169 Ibid at 57 (charges against Pickton for her murder were stayed after the first set of con-
victions was upheld).
35
PERSON(S) OF INTEREST AND MISSING WOMEN
To restore them to their full humanity these women need to be legible
as citizens in their own right. [I]t is too easy to empathize in a general-
ized way as mothers (or sisters or fathers or brothers) if it allows us to
evade the specificity of sex workers lives and their particular (state regu-
lated) vulnerability to violence.170 Their humanity as women involved in
the sex trade, as Aboriginal women living in poverty, as colonial subjects
in a failed social welfare state, and as citizens that belonged to an active
and engaged community in the Downtown Eastside must be recognized. It
is not enough to grieve these women because they were someones daugh-
ter or mother. The notion of getting justice for the families taps into a
social script for which sympathy may be garnered without attributing re-
sponsibility. Drawing on Judith Butlers concept of mourning, Geraldine
Pratt suggests that to actually grieve the missing women requires a will-
ingness to undergo a transformation through recognition of our relation-
ship to them. She suggests that this change might be achieved by witness-
ing what they experienced long before their deaths: the chilling process of
abandonment within the everyday spaces of our cities, and a normalized
passing across the threshold into bare life.171 Getting justice for the fami-
lies may be a good in and of itself but it would not have reinstated the cit-
izenship of this category of individuals. Moreover, as Rakhi Ruparelia has
argued, the narrow definition of those victims recognized by the criminal
law as worthy of participatory rights, such as the provision of a Victim
Impact Statement, focuses attention on the individual deviant offender
rather than the race, gender, and socioeconomic hierarchies that incrimi-
nate the state and society itself.172
In adjudicating the defence application to sever the twenty-six counts
of first-degree murder into two trials, Justice Williams identified the par-
ties that have an interest in ensuring that justice will be done as Mr.
Pickton, the Crown and the community.173 In a criminal trial, the collec-
tive interest in seeing justice done is framed as a charge against the indi-
vidual accused. The rights of the community are recognized, the loss to
the victims families might be acknowledged, and the responsibility of the
individual perpetrator is accepted. However, the capacity of the criminal
170 Pratt, supra note 41 at 1064.
171 Ibid at 1073.
172 Rakhi Ruparelia, All That Glitters Is Not Gold: The False Promise of Victim Impact
Statements in Elizabeth A Sheehy, ed, Sexual Assault in Canada: Law, Legal Practice
and Womens Activism (Ottawa: University of Ottawa Press, 2012) 665 at 669.
173 R v Pickton, 2006 BCSC 1212, supra note 10 at para 35. Justice Williams identified
fairness and justice as the factors to be balanced. He characterized the interests of jus-
tice as including, in addition to the interests of the accused, the interests of the Crown,
other participants in the criminal justice system and of the administration of justice
(ibid at para 20, citing R v Litchfield, [1993] 4 SCR 333, 86 CCC (3d) 97).
36 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
justice process to register its own communitys responsibility for a circum-
stance of collective violenceto recognize our relationship to our vic-
timsseems non-existent.
V. Conclusions on the Limits of the Criminal Justice Response
One response to the claims advanced above is that it is not the func-
tion of the criminal trial process, nor the texts it yields, to displace these
discursive exclusions, pursue knowledge or respond to the social relations
that produce violence against particular categories of people. This may be
true. It may be that the criminal justice process is constituted such that
its gaze is always and inevitably only on the individual accused. If this is
the case it makes the observations described above obvious and perhaps
self-explanatory. It does not, however, make them any less significant.
They are significant for at least three reasons.
First, it is always important to recognize the relationship between a
legal process, such as the criminal justice system, and its constitutive role
in the social context in which it operates. The women murdered by Pick-
ton were legally abandonedrendered to the mere life of bodies, material
substance necessary to the constitution of power hierarchies, yet denied
all of the qualifications and attributes of the lives of citizens.174 Pickton
alone did not do this. Pickton materialized an expulsion already actual-
ized by colonialism, neo-liberalism, racism, sexism and the political, so-
cial, and legal infrastructures that support these social relations. That is
to say, the process of legal abandonment imposed upon these women, the
forty-three other women Pickton confessed to murdering,175 and the count-
less other women disposed of during the same time period,176 occurred
long before the Vancouver Police Department ignored reports that the
disappeared kept disappearing. Moreover, it continued well after the gav-
el dropped opening the first day of the Pickton trial in the newly anointed
New Westminster courtroom. The criminal justice process forms a part of
the social and legal context that perpetuates the racial and gendered spec-
ificity of violence in Canada. Criminal law as pedagogy teaches us who
matters, and even more often, who does not matter.
174 See Agamben, Homo Sacer, supra note 23.
175 R v Pickton, 2009 BCCA 299, supra note 22 (discussing admissibility of his statement to
an undercover officer expressing intent to kill one more: I was gonna do one more,
make it an even fifty at para 107).
176 Missing Womens Inquiry Vol I, supra note 1 at 33 (according to the report of the Miss-
ing Womens Inquiry, sixty-nine women disappeared from the Downtown Eastside be-
tween 1970 and 2002).
37
PERSON(S) OF INTEREST AND MISSING WOMEN
Second, these observations about the Pickton proceedings are notewor-
thy because they exemplify limits of the criminal justice process that are
frequently ignored by policy-makers and politicians. There are implica-
tions to accepting that it is not the function of the criminal justice system
to recognize or restore the humanity of women such as those abandoned
to (and in) the Downtown Eastside.177 There is a significant disjuncture
between this articulation of its limited function and a popular narrative
about the criminal justice systems virtuous protection of and vindication
for the victims of crime. The criminal justice system response to the Pick-
ton circumstance, including the deeply problematic police response to the
missing women, the seventy-six judicial renderings that issued from Pick-
tons criminal proceedings, and the ultimate outcome of these proceedings
did not offer an account of the murdered women and their lives that rec-
ognized their humanity, did not produce knowledge about what happened,
did not offer closure for most of the families of the women murdered by
Pickton, and did not restore the citizenship of these women.
Admittedly, it may be that to say that you can solve the problem of …
violence through the criminal justice system would be like saying that you
can solve health problems through the exclusive use of hospital emergen-
cy departments.178 If this is true, then it is time to take seriously the need
to decentre the criminal justice system as the primordial institutional
mechanism for addressing violence against women. In other words, either
we accept that the current criminal justice model requires radical renova-
tion if it is to recognize and respond to the social indicators of crime and
vulnerability, or we accept that criminal justice is a basement not a ceil-
inga decontextualized, reactive, and individualized process that con-
tributes to, rather than disrupts, the race-, sex-, and socioeconomic-based
social relations that empower some by abandoning others. Yet, as obvious
an observation as this may be, the state continues to maintain this dis-
juncture.
In its 2010 budget, the Federal Government introduced seven initia-
tives intended to address the issue of missing and murdered Aboriginal
women in Canada. The commitment involved millions of dollars to im-
prove police services, including an enhanced Canadian Police Information
177 An additional point should be noted in response to the claim that it was not the function
of the Pickton trial to restore the humanity of these women. The criminal justice re-
sponse to the Pickton circumstance did not only fail to displace either the discursive or
material circumstances that produced a state of exception in the Downtown Eastside.
The criminal justice response perpetuated a conception of the drug-dependent sex-trade
worker reduced to bare life, animalistic materiality (see Agamben, Homo Sacer, supra
note 23).
178 Alfred JC OMarra, The Impact of Inquests on the Criminal Justice System in Ontario:
A Decade of Change, Part II (2006) 10:3 Can Crim L Rev 237 at 250.
38 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
Centre, a National Police Support Centre for Missing Persons, a missing
persons website and amendments to the Criminal Code provisions on
wiretapping.179 This 2010 initiative, which the government continued to
point to in 2013 as its response to the issue of disproportionate numbers of
missing and murdered Aboriginal women in Canada,180 is primarily about
increasing policing resources. In contrast to the millions of dollars dedi-
cated to strengthening policing capacity, the 2010 initiative committed on-
ly $1 million over three years to reduce the vulnerability of young Aborig-
inal women to violence. As a second point of comparison, the government
of British Columbia spent over $102 million on the investigation and
prosecution of Robert Pickton.181 If it is not the function of the criminal
justice system to prevent and restore, but rather merely to respond to in-
fractions of what we have identified through the criminal law as baseline,
bare minimum standards for human behavior, then the response to an
ongoing circumstance of collective violence should not be rooted in im-
proved criminal law enforcement. Acknowledging the extremely limited
capacity of the criminal justice system to respond to circumstances of col-
lective violence must also mean prioritizing other institutional responses
to fulfill functions that cannot be addressed through the criminal justice
system. To begin with, this means dedicating significantly more than $1
million to improve the social and economic circumstances of Aboriginal
women in Canada. In addition to prospective strategies aimed at prevent-
ing further abandonment by addressing the social relations that maintain
these forms of collective violencea separate topic of enormous weight
this means turning to retrospective institutional processes other than the
criminal justice response to pursue the kind of transformation that Pratt
describes: a grieving that is rooted in recognition of our relationship to col-
lective violence and the bare life it produces.182
This brings us to the third reason why it is worthwhile to examine
what was not achieved by the Pickton prosecution. Identifying the inter-
ests not met by the criminal justice process can serve as an analytical
framework for evaluating the impact and efficacy of other state responses
to institutional and social failings such as this one. Accepting that the crimi-
179 Department of Justice, Backgrounder A: Concrete Steps to Address the Issue of Miss-
ing and Murdered Aboriginal Women (October 2010), online: Government of Canada
180 Budget Offers Little for Murdered, Missing Indigenous Women, Silent on Calls for Na-
tional Inquiry Aboriginal Peoples Television Network (21 March 2013), online:
181 Serial Killer Robert Picktons Trial Cost $102 Million CTV News (16 November 2010),
online:
182 Pratt, supra note 41 at 107273.
39
PERSON(S) OF INTEREST AND MISSING WOMEN
nal justice system did notand perhaps was not intended toreturn the murdered
women from bare life, it becomes important to ask whether the state has offered an
institutional response to the Pickton circumstance that recognizes the social relations,
displaces the problematic narratives, and challenges the social processes
that produced a state of exception in the Downtown Eastside? The institu-
tional response that comes to mind, of course, is the commission of in-
quiry: in this case, the government of British Columbias Missing Women
Commission of Inquiry.
Public inquiries or commissions into police conduct, state-sponsored or
state-perpetuated sexual and physical abuse, and other institutional fail-
ures have become commonplace in Canada.183 Arguably, apart from the
criminal justice system public inquiry processes are the most significant,
expensive, and high profile government response to race, sexuality, and
gender-based harms in Canadian society.184 Unlike with the criminal jus-
tice system, they often involve a mandate that is explicitly systemic in its
orientation.185 Often, as was the case following the Pickton prosecution,
the impetus for these commissions originates from individual and public
expressions of dissatisfaction with the formal legal response to a societal
183 See e.g. Ontario, Cornwall Public Inquiry, Report of the Cornwall Inquiry (Cornwall,
Ont: Cornwall Public Inquiry, 2009), online: Government of Ontario
[Cornwall In-
quiry] (regarding child sexual abuse allegations against public officials employed by the
City of Cornwall, Ontario); Canada, Commission of Inquiry Into Certain Events at the
Prison for Women in Kingston (Ottawa: Public Works and Government Services Cana-
da, 1996) (regarding use of excessive force by an all-male riot squad at a female prison);
Indian Residential Schools Settlement Agreement (2006), online:
former attendees for physical, psychological, and sexual abuse sustained while manda-
torily forced to attend an Indian Residential School); Canada, Report of the Royal Com-
mission of Inquiry into the Response of the Newfoundland Criminal Justice System to
Complaints (St. Johns: Royal Commission of Inquiry into the Response of the New-
foundland Criminal Justice System to Complaints, 1991) vol 1 (regarding allegations of
sexual abuse by staff at the Mount Cashel Orphanage in St. Johns, Newfoundland);
Ontario, Report of the Ipperwash Inquiry (Toronto: Ipperwash Inquiry, 2007), online:
Government of Ontario
by police during a First Nations protest at Ipperwash Provincial Park in Ontario).
184 One reaction to the federal governments unwillingness to engage with the issue of
missing Aboriginal women in a holistic manner has come from the provinces. Nine of
Canadas provinces recently called for a national inquiry into missing and murdered
Aboriginal women across the country (Premiers call for inquiry on missing aboriginal
women The Globe and Mail (24 July 2013), online:
185 See e.g. Cornwall Inquiry, supra note 183.
40 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
or institutional failing.186 In other words, they are often preceded by crim-
inal proceedings.187 Moreover, they are as long if not longer, and as expen-
sive if not more expensive, than the criminal trials that precede them.188
The Missing Womens Commission of Inquiry is thought to have cost the
government of British Columbia over $10 million.189 In a loose sense,
there can be overlap between these two processes. Sometimes, the same
government (and sometimes even the same individual) is responsible for
both the criminal justice response to and public inquiry into the same sit-
uation. This is particularly well exemplified by one individuals multi-
capacity involvement in the Pickton circumstance.
Wally Oppal appears for the first time in the very first reported deci-
sion in the Pickton criminal proceedings.190 The decision concerned a pre-
trial application to have the court room closed for the preliminary inquiry.
In rejecting the application, the British Columbia Provincial Court relied
extensively on then Justice Oppals jurisprudence in a previous case.191 By
the time of Picktons trial, Mr. Oppal had been elected to the legislative
assembly of British Columbia and appointed as the provinces Attorney
General. As Attorney General, he oversaw the trial and was responsible
for the decision to stay the twenty additional charges against Pickton af-
ter Picktons second-degree murder convictions. Following his nearly five-
186 Pickton Victim Families Press for Inquiry CBC News (5 August 2010), online:
Pickton Victim Families Want Inquiry into Police CTV News (15 December 2007),
online:
187 See e.g. Missing Womens Inquiry Vol I, supra note 1; Nova Scotia, Royal Commission
on the Donald Marshall Jr Prosecution: Digest of Findings and Recommendations (No-
va Scotia: Royal Commission on the Donald Marshall Jr Prosecution, 1989), online:
Government of Nova Scotia
188 See e.g. Cornwall Inquiry, supra note 183, which cost the cost the Ontario government
$53 million (Ont. premier questions cost of Cornwall sex abuse inquiry CBC News (17
December 2009), online:
189 Gary Mason, The Debacle Over BCs Missing Women The Globe and Mail (20 October
2011), online:
youth and children by police and other public officials lasted almost five years and is es-
timated to have cost the government of Ontario $53 million. The Cornwall Public In-
quiry should not be held out as exemplary in this regard. The government of Ontario
amended its public inquiries legislation in response to the cost and length of the Corn-
wall Public Inquiry (Simon Ruel, The Law of Public Inquiries in Canada (Toronto: Car-
swell, 2010) at xxxiv).
190 R v Pickton, 2002 BCPC 526, [2002] BCJ No 2830.
191 Ibid at para 23, citing R v Murrin, [1997] BCJ No 3182 (QL) (BCSC).
41
PERSON(S) OF INTEREST AND MISSING WOMEN
year tenure as Attorney General, he went on to serve as the Commission-
er of the Missing Womens Inquiry and to author of its final report: For-
saken.192 In either a dramatic coincidence or a startling indication of how
thinly constituted the upper echelons of power and decision making are in
a particular community, the voice of Wallace Oppal served as both the
opening and closing acts in the states institutional response to the Pick-
ton circumstance.
The point, for the purposes of this discussion, is that the same gov-
ernment purse and the same cohort of political and legal decision makers
established and administered both of these processes. In light of this, it
seems reasonable to ask whether the Missing Womens Inquiry served
any of the functions found to be lacking in the criminal justice response.
The third reason it is important to observe what was not achieved by the
Pickton prosecution is that identifying its limits provides parameters by
which to evaluate the states other institutional response to the Pickton
circumstance.
Presumably, the Missing Womens Inquiry represents the final insti-
tutional or state sponsored process in response to the Pickton circum-
stance.193 As noted in Part I, this article examining the criminal justice re-
sponse to the missing and murdered women from the Downtown Eastside
forms the first part of a two-article project. Drawing on the significant
limits of the criminal justice response identified in this article, the second
article will address the following questions: Under the Missing Womens
Commission of Inquiry, does the drug-dependent sex-trade worker from
the Downtown Eastside become a person of interest? Did the Missing
Womens Inquiry produce a truth account capable of providing knowledge
or restoring humanity to the murdered women? Did the family members
of the murdered women experience the inquiry process as a performance
of justice, and more importantly, will the Commission and its report offer
192 Missing Womens Inquiry Vol I, supra note 1; Missing Womens Inquiry Vol II, supra
note 12. The entire report is available online: Missing Women Commission of Inquiry
193 The families of four women whose remains were found on Picktons property recently
filed civil claims against the police, the provincial government and Robert Pickton.
These are private law suits. Legal proceedings of this nature are not properly character-
ized as a state or state sponsored public response to the situation. See Boen v British
Columbia (Minister of Justice), Notice of Civil Claim in BCSC (7 May 2013); De Vries v
British Columbia (Minister of Justice), Notice of Civil Claim in BCSC (9 May 2013);
Marin v British Columbia (Minister of Justice), Notice of Civil Claim in BCSC (9 May
2013); Mongovius v British Columbia (Minister of Justice), Notice of Civil Claim in
BCSC (9 May 2013). See also James Keller, Families of Four Missing Women Sue Rob-
ert Pickton, Police, Government Toronto Sun (9 May 2013), online:
42 (2014) 60:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
a transformative opportunity to realize the collective nature of the vio-
lence perpetuated against the murdered women?
