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Police misconduct claims by men guilty in Surrey Six case must be heard: Appeal Court

VANCOUVER — Two men found guilty of the so-called "Surrey Six" killings must be allowed a hearing to argue their rights were violated by police regardless of the "horrific" nature of their crimes, the British Columbia Court of Appeal has ruled.

VANCOUVER — Two men found guilty of the so-called "Surrey Six" killings must be allowed a hearing to argue their rights were violated by police regardless of the "horrific" nature of their crimes, the British Columbia Court of Appeal has ruled.

The Appeal Court released its reasons on Thursday for a ruling last month that quashed the first-degree murder convictions of Cody Haevischer and Matthew Johnston in the 2007 slayings of six people inside a highrise in Surrey, B.C.

The ruling affirmed the guilty verdicts of the two men and denied their request for a new trial. However, the panel of three Appeal Court judges found the men must be allowed a hearing to argue the case should be tossed out due to an abuse of process.

"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 panel 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 Appeal Court released a brief statement announcing the decision in January, saying lawyers on both sides needed time to redact the reasons for judgment to remove confidential information. Those edited reasons were released Thursday.

The Crown said at the murder trial that the killings began as a hit on rival drug trafficker Corey Lal. Five others, including Lal's neighbour Christopher Mohan and fireplace repairman Ed Schellenberg, who were innocent bystanders, were also killed to eliminate potential witnesses, the trial heard.

Haevischer and Johnston were found guilty of six counts of first-degree murder and one count of conspiracy to commit murder in October 2014, but their convictions were not immediately entered because they filed an application for a stay of proceedings based on an abuse of process.

The Crown argued that the offences of the two men were too serious for an abuse-of-process application to be heard. The B.C. Supreme Court trial judge agreed and their convictions were entered in November 2014.

The appeal ruling returns the case back to where it was in October 2014: The men are guilty, but not convicted, and a hearing will now determine whether the case should be thrown out due to alleged wrongdoing by police and correctional officers.

"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 panel wrote.

Lawyers for Haevischer and Johnston alleged that senior police officers involved in the investigation had exploitative sexual relationships with two female protected witnesses, mishandled sensitive evidence and influenced witness accounts.

The lawyers also argued that the men were subjected to "harsh and inhumane" conditions contrary to the Charter of Rights and Freedoms when they were housed in solitary confinement for 14 months while awaiting trial.

The Appeal Court said the allegations are "very serious" and include improper co-operation between the RCMP and Correctional Services Canada to keep the two men in "horrific pre-trial conditions to attempt to weaken their state of mind and get them to 'crack.'" 

However, the court said it is not ordering a new trial because the judge did not err when she excluded Haevischer and Johnston from a pre-trial hearing to determine the scope of evidence to be allowed from confidential witnesses.

The men and their lawyers were not allowed to attend the hearing in order to protect the identities of the witnesses, but the judge appointed amici curiae, or special counsel, to represent the interests of the accused.

The amici also reported back to Haevischer and Johnston all the information unfolding in the hearing that did not identify the witnesses, the Appeal Court noted.

While protecting the privilege of confidential informants, the court has broad discretion to take measures to safeguard the interests of the accused, the panel of judges wrote.

"We are satisfied that (the trial judge) could not have taken any other meaningful steps without jeopardizing the privilege."

The panel also found that the judge did not err when she accepted evidence from two "unsavoury witnesses" with gang ties. 

Lawyers for Haevischer and Johnston had argued that there was no confirmatory evidence to support the accounts of the two witnesses, and that the judge also erred when she concluded they had no motive to lie and did not embellish their testimony.

The Appeal Court panel wrote that there was evidence, including cellphone records and surveillance video, to support the testimony of the two people.

The ruling can still be appealed to the Supreme Court of Canada.

The BC Prosecution Service and lawyers for Haevischer and Johnston all said they are reviewing the Appeal Court ruling before deciding next steps.

This report by The Canadian Press was first published Feb. 25, 2021.

Laura Dhillon Kane, The Canadian Press