The Supreme Court of Canada is set to rule Friday on an appeal by two men found guilty of first-degree murder in the gang executions of six people in Metro Vancouver more than 15 years ago.
Lawyers for Cody Haevischer and Matthew Johnston argued last October before the high court that the men were wrongfully denied an opportunity to give evidence about “egregious” police misconduct and cruel in-custody treatment that tainted their convictions.
The case has been further complicated since those arguments because Johnston died of cancer last December.
However, his lawyer Brock Martland said he spoke with Johnston the day before he died and he wanted the Supreme Court of Canada to order a hearing “to show the public the extent of police misconduct.”
The B.C. Court of Appeal ruled in 2021 that Haevischer and Johnston should be allowed to seek a stay of proceedings for abuse of process and ordered an evidentiary hearing, but it stopped short of overturning their guilty verdicts.
The Appeal Court panel found that “an evidentiary hearing was necessary to resolve factual controversies about the extent of police misconduct.”
The Crown prosecutor’s appeal of that ruling is the subject before the high court.
“It’s one very narrow point in which there’s a possibility that (the trial judge is) found to have made a legal error,” Martland said in an interview. “We’ll see what happens Friday.”
Johnston and Haevischer were found guilty in 2014 for the murders, which their trial heard was part of a gang turf war. The men, along with a key Crown witness known as Person Y, went to a Surrey highrise with victim Corey Lal as their main target, but his brother Michael Lal, Edward Narong and Ryan Bartolomeo were also in the apartment.
Edward Schellenberg, who was in the unit servicing the fireplace, and Christopher Mohan, the 22-year-old living across the hallway, were also murdered.
Martland said the case isn’t about the pair’s innocence, since the court affirmed their guilty verdicts, but rather the conduct of investigators and corrections personnel that potentially tainted their convictions.
“It’s not about reopening the evidence at trial and whether the Crown has proved its case,” he said. “The Crown has proved its case, and that won’t change.”
Lawyers for the two men told the Supreme Court of Canada that male investigators with B.C.’s Integrated Homicide Investigation Team “exploited the trust of key protected female witnesses in order to have sex with them, including girlfriends of the men they ultimately charged.”
Haevischer and Johnston also claim prison conditions were “akin to torture,” forced to live in cells smeared with mucus, blood and feces, leaving them teetering “on the edge of sanity.”
Their lawyers said in submissions to the high court the B.C. Court of Appeal correctly ordered a hearing for them to introduce evidence to back up their claims.
Should the Supreme Court of Canada order a hearing, Martland said the extent of police misconduct during the investigation would get aired in court on a “granular level.”
The decision to place “macho male murder investigators” in charge of vulnerable female witnesses was a “disastrous” decision in hindsight, Martland said.
“The nature of what happened here, it’s the sort of stuff that could have given rise to a public inquiry, that profound level of misconduct on a case this serious,” he said. “To my mind, that gives rise to a whole host of broader systemic questions about the RCMP and about the Integrated Homicide Investigation Team and I don’t know to what extent those questions have been addressed at a systemic level.”
Martland said the Supreme Court of Canada’s decision boils down to whether police misconduct and other issues warrant another hearing into evidence that could see the charges stayed against Haevischer due to abuse of process.
Having failed to overturn their guilty verdicts at the Court of Appeal, Martland said the Supreme Court of Canada is left to decide whether the trial court mistakenly denied Haevischer and Johnston’s bid for a hearing on evidence of a potential abuse of process.
“This case has a whole ton of almost movie-like qualities that are twists and turns, many of them quite unusual and unexpected,” Martland said. “This is a case that was certainly all consuming at the time of the trial, but also the kind of case that stays in your memory and stays in your thoughts.”
—Darryl Greer, The Canadian Press