Surrey Six killers deserve chance to argue for stay of proceedings over police misconduct: appeal court

B.C.'s top court says two men found guilty of first-degree murder in the Surrey Six killings should get a chance to argue that police misconduct and their treatment in pretrial custody are egregious enough to warrant a stay of proceedings.

A B.C. Court of Appeal decision released Thursday says the lower court judge who tried Matthew Johnston and Cody Haevischer in B.C.'s deadliest gangland slaying should have heard their evidence about alleged wrongdoing before deciding it wouldn't be enough to toss the case.

The lengthy reasons are an explanation of a brief ruling issued last month, in which the three appeal court judges denied the two men a new trial.

The court upheld their guilty verdicts but quashed the entering of convictions until the trial court has a chance to consider their application for a stay of proceedings because of abuse of process.

Trial judge didn't hear all the evidence

Haevischer and Johnston had previously asked the judge for a full hearing on evidence that police sexually exploited female witnesses and lied to their bosses about their behaviour.

The killers also claimed they were held in segregation for more than a year at the direction of RCMP.

But the trial judge found she didn't need to hear the entirety of their evidence because the situation was not the "clearest of cases" that would warrant the "exceptional" remedy of a stay.

The three appeal court judges said that was a mistake.

"It is in precisely this sort of high‑profile case where the police may be tempted to act contrary to their duties on the basis that 'the ends justify the means,'" the appeal court decision says.

"The horrific nature of the offences does not preclude a stay of proceedings regardless of the severity of the abuse ultimately established on the evidence."

A hit on a drug dealer

Haevischer and Johnston received mandatory life sentences in December 2014 for the Surrey Six slayings, which began as a hit on drug dealer Corey Lal and spiralled into the killings of three of Lal's associates — including his brother — and two bystanders, Christopher Mohan and Ed Schellenberg in October 2007.

The Red Scorpions gangsters were carrying out a plan initiated by gang leader Jamie Bacon, who was sentenced to 18 years last fall after pleading guilty to conspiring to commit Lal's murder. 

After consideration for time served, Bacon is expected to spend another five years behind bars.

Haevischer and Johnston had argued for a new trial, partly because of excessive secrecy that excluded them from pretrial proceedings.

The appeal court judges found the trial judge had properly dealt with those issues, but they faulted her reasoning in relation to a hearing that was supposed to act as a screening process to determine if a full evidentiary hearing was needed to decide on an application for a stay of proceedings.

'Anything goes' attitude

The two men claimed that RCMP directed prison officials to hold them in segregation for 14 months.

And they also claimed that police had committed serious misconduct in the way they handled witnesses.

"The strategy involved the police targeting vulnerable members or girlfriends of members of the Red Scorpions in an attempt to bring them into new relationships with the police so that they would become witnesses against the Red Scorpions," the appeal court ruling says.

"The trial judge accepted that the effect of the strategy was to encourage an 'anything goes' attitude on the part of four officers, which led to egregious misconduct involving exploitative sexual relationships with protected female witnesses, endangerment of the safety of these witnesses by revealing information about them, lying to their superiors and manipulation of overtime and expense claims to cover up their conduct."

But the trial court judge decided a full evidentiary hearing was not needed, because she felt that even if what Haevischer and Johnston claimed was all true, it couldn't possibly be enough to toss the case.

The appeal court judges say the allegations must be taken at their "highest" and that the outcome of the balancing act needed to determine if the impact of abuse outweighs the need for justice can never be "inevitable."

They said an evidentiary hearing would have helped the judge decide if a stay was needed.

"The court must always retain the ability to dissociate itself from disreputable state conduct by staying the proceedings, no matter how serious the offence," the appeal court ruling says.

"Accordingly, there is no category of offence that is beyond the ambit of the abuse of process doctrine."