B.C. judge who stayed murder charges in Surrey Six case owes public an explanation: legal experts

The public reaction on social media was swift and strongly worded: "a travesty of justice," one observer tweeted; a sign that judges "answer to nobody," said another.

The B.C. Supreme Court decision to stay murder charges against notorious gang member Jamie Bacon — without publicly explaining why — seemed to inflame everyone from the casual observer to the province's attorney general, who said in a statement that he was shocked by the ruling.

Bacon is one of the accused in the so-called Surrey Six case and a past leader of the Red Scorpion gang, several members of which have been charged in connection with the killing of six people on Oct. 19, 2007, at an apartment building in the Vancouver suburb of Surrey. 

Bacon had been charged with first degree murder and conspiracy to commit the murder of one of the six, Corey Lal.

The Surrey killings have been described as "horrific" by a previous B.C. Supreme Court judge who presided over the trials of two other men convicted in the case. The details "could not be more shocking," she said: six people executed, two of whom had no involvement in criminal activity and appeared to be in the wrong place at the worst possible time.

Which is why the decision to stay the charges against Bacon stunned many who have watched the case wind its way through the courts over 10 years.

The ruling was made public late last week, after 2 p.m. ET on a Friday afternoon, in a news release from the B.C. Prosecution Service, with no clear explanation of the reasons behind it provided publicly by either the court or Crown prosecutors.

The decision came after hearings that were conducted in closed court, "because of the confidential nature of the information in question," Justice Kathleen Ker wrote in her ruling. The full written ruling and the reasons for entering the stay of proceedings must remain sealed "in order to protect the Crown's claims of privilege," she said in her decision.

While there is no doubt there are legitimate reasons to keep certain aspects of the ruling confidential — protecting the identities of informants, for example — there are some in the legal community who say there is almost certainly more that the judge could — and should — have said.

'The most drastic remedy'

A stay of proceedings is a powerful tool, stopping a criminal trial cold. In one of the pivotal cases on stays, Justice Michael Moldaver of the Supreme Court of Canada described it as "the most drastic remedy a criminal court can order."

Crown prosecutors charged Bacon because they believed there was a substantial likelihood he would be convicted. Now, we'll likely never know.

CBC News reached out to three legal experts from British Columbia, two law professors and a former judge. They weren't asked to comment on the stay — simply because there just isn't enough publicly known to evaluate it — but for their views on the dearth of details about the reasons behind it. On that point, they were unanimous.

Wally Oppal, a former B.C. Supreme Court and Court of Appeal judge and later, B.C.'s attorney general, said, generally speaking, there are too many secret hearings and publication bans in Canadian courts. He said he has full confidence in the judge on this case, Justice Kathleen Ker, and wouldn't comment on her decision to issue the stay.

• Read Justice Kathleen Ker's decision
• Decision to stay charges in Surrey Six killings prompts outrage
• Live Blog from the Surrey Six murder trial

But he did say the lack of an explanation for the stay is "perplexing" and that he knows of "no bar to fully explaining the reasons without revealing information that must remain secret."

Craig Jones, a law professor at Thompson Rivers University in Kamloops, B.C., also used the word "perplexing" to describe the ruling, pointing out that the portion made public is just 15 paragraphs long, and more than half of that is a description of four types of legal privilege.

"I can't help thinking the court could be doing more here," Jones said. "This is one of the most heinous crimes in British Columbia's history. The accused is an infamous gangster. It may well be that justice demanded that he escape these charges, but with such brief and impenetrable reasons, I'm afraid the decision is [not] going to give comfort or reassurance to … [anybody]."

Law professor Michelle Lawrence of the University of Victoria agrees:

"Public confidence in the administration of justice comes under strain when the public does not have access to reasons and is otherwise left to guess as to the basis for a particular outcome in a particular case," she said.

"It is especially important in a case like this, given the seriousness of the charges, that the public have a clear understanding of the court's reasons for halting the prosecution."

Earlier request for stay rejected

Lawrence said judicial stays are "an extraordinary remedy" that should be used in cases "where there is something about the carrying forward of the prosecution that offends society's sense of fairness, and where a more modest remedy (like the exclusion of problematic evidence) is not appropriate."

She pointed to an earlier request for a stay of proceedings in the Surrey Six case made in 2014 by the defence lawyers for Cody Haevischer and Matthew Johnston, who had been found guilty of six counts of first-degree murder and one count of conspiracy to commit murder in relation to the case.

In that instance, B.C. Supreme Court Justice Catherine Wedge's ruling to reject the stay was clear, complete and didn't reveal any of the facts that must remain secret, including anything that would identify a confidential informant.

• Read Justice Catherine Wedge's 2014 ruling
• 2 guilty in Surrey Six killings seek access to secret documents behind stay

Lawyers for Haevischer and Johnston had argued that a stay was justified because of the way they had been treated in custody and the misconduct of the investigators involved in their case, including RCMP officers who had sex with two witnesses, made false statements to their superiors and bragged to a woman not involved in the case about the highly sensitive investigation.

There are important conclusions to be drawn from Wedge's ruling. The first is that there is, in fact, a lot a judge can say about her reasons for handing down a particular decision even when there is much secrecy surrounding a case.

Another is that even when the evidence in favour of a stay is strong, it has to be balanced against the public interest in a conviction.

"When the impugned state misconduct is weighed against society's interest in entering the convictions in this case, this is not one of the 'clearest of cases' where the exceptional remedy of a stay of proceedings would be warranted," Wedge wrote.

So, did the judge in the Bacon case reach a different conclusion based on essentially the same facts or was the case for a stay stronger? For example, is there more evidence of RCMP misconduct this time around?

The judge in the Bacon case did say Bacon's lawyers received information that "impacts Mr. Bacon's fair trial rights. In part, this arose from the manner in which the police handled aspects of privileged and confidential information."

Public's need to know

Finally, one intriguing aspect of the Haevischer and Johnston case is what Judge Wedge said about the protection of the identity of an informant. That protection "​is one of the most absolute, unqualified rights recognized at law," she wrote in her decision. There is, however, one exception, she said: "where the innocence of the accused is at stake."

Is that what the Bacon case turned on? One possibility could be that the defence knows an informant has information that could exonerate Bacon.

"If the evidence was exculpatory, the public might be assured that the justice system worked to prevent a wrongful conviction," said Lawrence. "But if the basis for the stay relates even in some small part to misconduct on the part of the police, the public needs to know that and needs to be assured that those involved will be properly held to account."

So, who is ensuring that public need to know? Not the court, it seems in this case, and, so far at least, not the Crown. A news release from the Crown issued last week said it is considering whether to appeal the stay but didn't suggest it would try to have more detailed reasons released.

Neither does the current attorney general, a former head of the BC Civil Liberties Association, seem to be defending the public right to know. David Eby expressed shock and "tremendous disappointment" over the stay but said nothing about the lack of disclosure.

Another former head of the B.C. Civil Liberties Association, Craig Jones, said that in cases such as the Surrey Six where you can't have a fully open court, it is all the more important to "do all you can to preserve transparency."

"Public confidence in justice relies on open courts," he said. "The risk here is that public confidence will be eroded, and that's too bad because somewhere behind the veil here is probably a perfectly good, if difficult, explanation."