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Lisa Silver, University of Calgary

Stay always possible remedy, no matter how serious the allegations: B.C. Court of Appeal

Thursday, March 11, 2021 @ 8:21 AM | By Ian Burns

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A new chapter has emerged in a decade-long gangland murder case after the B.C. Court of Appeal quashed the convictions of two men due to allegations of police misconduct, saying courts must always retain the ability to dissociate themselves from disreputable state conduct by staying the proceedings, no matter how serious the offence.

The saga of the so-called “Surrey Six” murders began in 2007, when six men were found dead at a high-rise building in Vancouver. The appellants in the case, Matthew Johnston and Cody Haevischer, were members of a gang called the Red Scorpions and were found guilty of first-degree murder in the killings of a rival drug dealer and five other men. But troubling allegations that police officers in the case had become intimately involved with two witnesses, as well as their pretrial custody conditions, led the two men to seek a stay of proceedings on the grounds of abuse of process.

Those applications were denied, with the trial judge saying the “exceptional remedy” of a stay was not warranted. But a unanimous three-judge panel of the Court of Appeal overturned that ruling.

“An evidentiary hearing was necessary to resolve factual controversies about the extent of police misconduct,” the court wrote in R. v. Johnston 2021 BCCA 34. “Having found that the alleged abuses of process risked undermining the integrity of the judicial process and that the only acceptable remedy was a stay of proceedings, the judge could not properly balance the interests in favour of a stay against society’s interests in entering the convictions without resolving those controversies.”

The Court of Appeal quashed the convictions but affirmed the verdicts of guilt, in a decision which was issued Jan. 28 but only made public after confidential information was redacted. The lower court will now hear the abuse of process allegations, and if they are successful Johnston and Haevischer will receive a stay of proceedings and be released from prison.

The Court of Appeal also rejected the Crown’s submissions that a stay of proceedings could never be an appropriate remedy given the seriousness of the offences.

“Regardless of the nature of the offences being investigated, the police have a duty to conduct themselves in accordance with the law and in a manner that gives the public confidence in their methods,” the court wrote. “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.’ This is contrary to the rule of law on which our system of government is founded. The court must always retain the ability to dissociate itself from disreputable state conduct by staying the proceedings, no matter how serious the offence.”

 University of Calgary associate professor Lisa Silver

Lisa Silver, University of Calgary associate professor

University of Calgary associate professor Lisa Silver said abuse of process applications are important because the public needs to have confidence that police keep to the rules when conducting their investigations.

“In the last few years there has been a lot of concerns about that,” she said. “So, it is a serious matter that a judge needs to weigh properly, and in order to do that they need to hear the evidence.”

Haevischer’s counsel Simon Buck said he was very happy with the result even though some of the other issues he raised, such as excluding his client from in-camera hearings on whether to allow the testimony of an “unindicted co-conspirator,” were denied. But he also said a long process still lies ahead.

“First we have to see whether the Crown is going to seek leave to appeal the decision on the abuse of process grounds, and secondly we have to determine whether there is any merit for us to seek leave to appeal on these other grounds,” he said. “But leaving aside the appeals this matter will be in the courts for a considerable matter of time — there are disclosure issues surrounding the alleged misconduct, and there will be what I would foresee as a fairly lengthy proceeding in which evidence is brought to establish the abuse that could take a year or more in the system to have it finally resolved.”

And Jonathan Desbarats, who represented Johnston, agreed the conduct alleged in the case was very troubling and something that needs to see the light of day in a hearing.

“Obviously one of the interesting things the court said in this decision is that you can never say that a stay of proceedings is not a possible remedy even in a case like this where the allegations are extremely serious,” he said. “You can’t rule out the possibility of a stay and the court says there will be a temptation on the part of the authorities to cut corners, but that is unacceptable.”

Representatives for the Crown did not respond to a request for comment.

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