Crown, defence may consider splitting McArthur case into separate trials

As the case against alleged serial killer Bruce McArthurmeanders its way through the courts, some important legal decisions may soon have to made, including whether the 66-year-old landscaper may face more than one trial.

On Wednesday,McArthurmade another court appearance, and is scheduled tobe back again next month, just days aftera judicial pretrial.

At the pretrial,the Crown and defence will address a number ofissues,includingoptions forresolving the case a guilty plea, for example estimates on trial length and otherprocedural and evidentiary issues,according to the Ontario Court of Justice website.

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McArthurhas been charged with eight counts of first-degree murderin connection with the disappearances of a number of men, many of them connected to Toronto's Gay Village:SkandarajNavaratnam, 40, Andrew Kinsman, 49, SelimEsen, 44, and AbdulbasirFaizi, 44, KirushnaKumar Kanagaratnam, 37, DeanLisowick, 47,SoroushMahmudi,50, andMajeedKayhan, 58.

Theinvestigation into McArthur continues as police searchdozens of properties across the city where heworked. It's possible, then, thatMcArthurcould face more charges, meaning the Crown may be considering splitting up or severing the charges, and not trying McArthurin one massive trial.

Does it serve the public?

"That's certainly a consideration going through the Crown's mind," said Daniel Lerner, a Toronto-based defence lawyerwho was a former Ontario Crown prosecutor."How complicated the trial is going to be with this many victims?How long is the trial going to be?How long is this one panel jury going to be sitting for? And what's the risk of mistrial if we do that?"

Lerner said prosecutors may also be asking themselves if it serves the public to get convictions on every single murder case, or whether four or five is enough.

"Because at that point he's not going anywhere."

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In the case of B.C. serial killer Robert Pickton, for example, the judge decided to split the 26 murder charges against the pig farmerinto two trials, believing one trial would be too unwieldy.

Pickton was tried and ultimately convicted in 2007 on six counts of second-degree murder. Thatconviction, and hismaximum sentence of life with no parole for 25 years, led the Crown to stay the other20 charges.

It was a decision,the Crown admitted at the time, that was difficult for some family members to accept.

CarissimaMathen, vice dean of University of Ottawa's faculty of law, said in the case of McArthur, theCrown may believe that eight charges is too many for one trial.

"It depends on what the Crown's theory is with respect to all thesevictims," she said.

There could be a pattern they are attempting to establishwhere includingall eight victims in one trial may help their case, she said. But that also means eight sets of forensic results, and eight differentlife narratives.

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"They aregoingto have to pinpoint where these people were andtheirinteractions with him," she said. "That getscomplicated."

From the defence perspective, it may be legally advantageous for the chargesto be split up, Lerner said. If, for example, during the course of the trial, a juror concludes that McArthur is responsiblefor the death of at least one individual, they may find it more likely he killed others, Lerner said.

"That's impermissible reasoning for the jury, butcertainly you have that risk even with the judge telling the jury not to do that."

As well, different trialsmean different juries, and the potential for different verdicts.

"Just because this jury found my client guilty doesn'tmean another jury will," said Lerner."In which case you know I'd prefer the defence only have to worry about appeals and issues for one murder conviction, not many murder convictions."

Time constraints

It's also possible the Crown will findthemselves under time constraints.Not only are the police continuingtheir search of McArthur-linked properties, but investigators must now catalogue and sift through the evidence they've already recovered.

Recently police announced they completed the search of McArthur's apartment,whereinvestigatorscollected more than 1,800 pieces of evidence andtook around18,000 photographs.

"It is going to be exhausting having to go through all of these photographs that have been taken and to document the purposeof the photograph," said KevinBryan, a former detective with York Regional Police's Forensics Unit.

"It's a staggering amount of work yet to be done.The burden that's going to be put onto theCentreof ForensicSciences withregards to this isgoingto be incredible."

Disclosure to the defence of all theevidencejust relating to the apartment could take months, Bryan said.

"Because there's so much [evidence]it's going to take a long long time. This trial, to me, is years away from ever happening."

If that's true, both the Crown and defence would have to be mindful of the Supreme Court of Canada decision that laid out new rules on the rights of an accused to be tried within a reasonable time frame. Those new rules mean murdercases like McArthur'shave 30 months to be completed, from the time the charge is laid to the conclusion of the trial.

McArthurwas arrested and charged with two counts of first-degree murder in the cases ofEsenand Kinsman on January 18.

"It's totally an issuebecause the ceiling is firm; it's 30 months unless you can prove an exceptional circumstance," said Mathen.

The court says the complexity of a case, for example, wherethere areinordinate amounts of complex physical evidence,can qualify it as an exceptional circumstance, Mathen said.

"But it's not automatic; it depends on the discretion of the judge."

That time constraint, she said, could prompt the Crown to put McArthuron trial on just a few charges, she said.