British Columbia’s top court says two men who were found guilty in the province’s most notorious gangland slaying should have a chance to argue that the case against them should be tossed out because of an abuse of process.
In a decision released Thursday, B.C.’s Court of Appeal denied a bid for a new trial from Matthew Johnston and co-accused Cody Haevischer and upheld their guilty verdicts for murder in relation to the so-called 2007 Surrey Six killings.
But the judges quashed the entering of a conviction for the six counts of first-degree murder and sent the case back to a trial court to consider applications for a stay of proceedings because of abuse of process.
Johnston and Haevischer claim their rights were violated by a closed-door, pretrial hearing that saw a crucial eyewitness excluded from testifying at the trial itself.
The pair also claim the trial judge was wrong in assessing the reliability and credibility of witnesses who included an admitted murderer and gangster who described himself as a “monster.”
‘The public will be in the dark’
A considerable portion of the appeal hearing occurred out of public sight, because of the legal issues involved — which centred around a witness known as Person X, who was himself convicted of three counts of second-degree murder in the case.
In the opening days of the appeal hearing, Johnston’s lawyer lamented the secrecy which has enveloped the proceedings.
“We will be entirely in the dark,” Brock Martland told the three judges overseeing the hearing.
“The public will be in the dark.”
To that end, the appeal court only issued a short statement containing the decision. The written reasons for judgment will remain sealed until the Crown and a lawyer appointed as “friend of the court” have advised the court on which revisions are needed to protect confidential information.
The defence will not get to see the reasons for judgment until they are made public.
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.
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-and-a-half years behind bars.
‘Neither knows what occurred’
Person X pleaded guilty in April 2009 to three counts of second-degree murder and conspiracy to commit murder in relation to the slayings.
He was supposed to be a Crown witness, but in a decision that remains sealed to this day, the trial judge decided at a pretrial hearing that Person X could not testify — leaving the Crown to rely instead on largely circumstantial evidence.
Haevischer and Johnston were denied access to the proceeding where Person X was excluded as a witness. On appeal, they argued that they were robbed of the right to be present at proceedings affecting their vital interests.
“To this day, neither applicant knows why the most important Crown witness was excluded from his trial,” the defence stated in court documents.
“Neither knows what occurred during roughly 40 days of court time before the judge in their judge-alone trial.”
In the Crown’s response, prosecutors argued that the trial judge was right to exclude Haevischer and Johnston from the pretrial hearing in order to protect informer privilege — a “broad and powerful privilege given to persons who provide information to police on a promise of confidentiality.”
Haevischer and Johnston also argued that the judge was wrong to place any weight on the testimony of another witness whose identity was protected: Person Y.
The defence claimed that Person Y ended up being the Crown’s most important witness, claiming to have been involved in the planning of the hit and to have received a confession from Johnston.
But the defence claimed Person Y was manipulative.
“He was an admitted murderer (and repeat killer) with a demonstrated ability to rationalize perjury,” the defence stated in appeal court documents.
The Crown claimed the trial judge was “acutely aware” that Person Y and other “unsavoury witnesses” needed to be treated with caution, but claimed she was exceedingly cautious in approaching their evidence.