Crown, defence may consider splitting McArthur case into separate trials

As the case against alleged serial killer Bruce McArthur meanders 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.

McArthur has been charged with 8 counts of 1st-degree murder

Bruce McArthur faces first-degree murder charges in the cases of five men: Andrew Kinsman, 49, Selim Esen, 44, Majeed Kayhan, 58, Soroush Mahmudi, 50, and Dean Lisowick, 47. (Facebook/Canadian Press)

As the case against alleged serial killer Bruce McArthur meanders 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, McArthur made another court appearance, and is scheduled to be back again next month, just days after a judicial pretrial.

At the pretrial, the Crown and defence will address a number of issues, including options for resolving the case — a guilty plea, for example —  estimates on trial length and other procedural and evidentiary issues, according to the Ontario Court of Justice website.

McArthur has been charged with eight counts of first-degree murder in connection with the disappearances of a number of men, many of them connected to Toronto's Gay Village: Skandaraj Navaratnam, 40, Andrew Kinsman, 49, Selim Esen, 44, and Abdulbasir Faizi, 44, Kirushna Kumar Kanagaratnam, 37, Dean Lisowick, 47, Soroush Mahmudi, 50, and Majeed Kayhan, 58.

The investigation into McArthur continues as police search dozens of properties across the city where he worked. It's possible, then, that McArthur could face more charges, meaning the Crown may be considering splitting up — or severing — the charges, and not trying McArthur in 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 lawyer who 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."

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

Pickton was tried and ultimately convicted in 2007 on six counts of second-degree murder. That conviction, and his maximum sentence of life with no parole for 25 years, led the Crown to stay the other 20 charges.

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

Toronto police finished a months-long forensic investigation of the apartment rented by alleged serial killed Bruce McArthur. (CBC)

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

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

There could be a pattern they are attempting to establish where including all eight victims in one trial may help their case, she said. But that also means eight sets of forensic results, and eight different life narratives.

"They are going to have to pinpoint where these people were and their interactions with him," she said. "That gets complicated."

From the defence perspective, it may be legally advantageous for the charges to be split up, Lerner said. If, for example, during the course of the trial, a juror concludes that McArthur is responsible for 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, but certainly you have that risk even with the judge telling the jury not to do that."

As well, different trials mean different juries, and the potential for different verdicts. 

"Just because this jury found my client guilty doesn't mean 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 find themselves under time constraints. Not only are the police continuing their 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, where investigators collected more than 1,800 pieces of evidence and took around 18,000 photographs.

"It is going to be exhausting having to go through all of these photographs that have been taken and to document the purpose of the photograph," said Kevin Bryan, 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 the Centre of Forensic Sciences with regards to this is going to be incredible."

McArthur is accused of killing these eight men. Top row, from left to right, Skandaraj Navaratnam, 40, Andrew Kinsman, 49, Selim Esen, 44, and Abdulbasir Faizi, 44. Bottom row, from left to right: Kirushna Kumar Kanagaratnam, 37, Dean Lisowick, 47, Soroush Mahmudi, 50, and Majeed Kayhan, 58. (Toronto Police Service/CBC)

Disclosure to the defence of all the evidence just 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 murder cases like McArthur's have 30 months to be completed, from the time the charge is laid to the conclusion of the trial.

McArthur was arrested and charged with two counts of first-degree murder in the cases of Esen and Kinsman on January 18.

"It's totally an issue because 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, where there are inordinate 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 McArthur on trial on just a few charges, she said.


Mark Gollom

Senior Reporter

Mark Gollom is a Toronto-based reporter with CBC News. He covers Canadian and U.S. politics and current affairs.