The Supreme Court of Canada in Ottawa.Sean Kilpatrick/The Canadian Press
The Supreme Court of Canada has ordered a hearing for a man who killed six people to determine whether the abuse of his rights by police and corrections officials was so extreme he should walk free.
There is no question Cody Rae Haevischer participated in the Surrey Six murders, aimed at establishing a drug gang’s turf dominance, on Oct. 19, 2007. But the Supreme Court found that he and another participant in the killings, Matthew Johnston, did not receive a proper hearing on their allegations of state abuse. (Mr. Johnston died in jail of cancer last December.)
No matter how serious a crime, allegations of rights violations that are not “manifestly frivolous” – an obvious waste of the court’s time – deserve a full hearing, the court said in an 8-0 ruling on Friday.
Mother of innocent man murdered in B.C. gang war devastated by high court’s ruling
“No category of offence is beyond the ambit of the abuse of process doctrine,” Justice Sheilah Martin wrote for the court, referring to rules that empower judges to quash proceedings to protect the justice system’s integrity.
Eileen Mohan, mother of 22-year-old victim Christopher Mohan, who lived across the hall from the apartment where the killings took place, said she was devastated by the ruling.
“I always felt that the Supreme Court would rule in our favour because my son’s innocent life was taken,” she said in an interview. She said most officers on the case worked diligently and compassionately, without abusive behaviour.
The killings were an execution; six men were placed face down on the floor and shot in the head. One was the intended target, three were his associates, and two were bystanders – a gas fitter servicing fireplaces, and Mr. Mohan across the hall.
Simon Buck, a lawyer for Mr. Haevischer, praised the ruling.
“I think this is good day for the justice system. I have no problem with justice being brought to bear on the offender. However, it can only be done according to fairness and the rule of law.”
The B.C. Prosecution Service declined to comment, as the matter is before the court, except to say the court had clarified important procedural matters.
No date has been set for Mr. Haevischer’s hearing. The punishment for six counts of first-degree murder is a mandatory term of life in prison, with first eligibility for full parole at 25 years. He was found guilty in 2014.
Whether Mr. Haevischer has a realistic chance at walking free is hard to assess, one legal observer said, in part because some of the allegations were heard in-camera, involving a confidential informant. A lower court appointed a lawyer to present those allegations, which were not shared with his own lawyers, or Mr. Johnston’s.
“It’s really hard to predict with any certainty,” said Tony Paisana, a lawyer who represented an intervenor, the Trial Lawyers Association of British Columbia.
In a related Surrey Six prosecution, Red Scorpions gang leader James Kyle Bacon was charged with one count of first-degree murder and one count of conspiracy to commit murder. A judge stayed the charges, finding, in reasons that were sealed from public view, that the state abuse was extreme. But the B.C. Court of Appeal threw out the stay. (Mr. Bacon ultimately pleaded guilty to the conspiracy charge and was sentenced to 18 years, in a plea deal with the Crown.)
Friday’s ruling will have an effect that goes well beyond Mr. Haevischer. Courts across Canada, since the 1990s, have borrowed a process from civil lawsuits in which the defendant is allowed to argue for “summary dismissal” – that is, a quick rejection based on the claim being obviously weak. In the criminal context, when the accused puts forward a claim of state misconduct, the prosecution may ask for (and did, in the current case) a summary dismissal.
That process is meant to save court time. But in practice, the Supreme Court said, it often fails to do so. And only the “manifestly frivolous” abuse claim should be dismissed, it said.
In the case of Mr. Haevischer and the late Mr. Johnston, the abuse allegations were far from frivolous. They included police exploiting vulnerable female witnesses by forming sexual relationships with them, and corrections officials giving in to police pressure and holding the men in solitary confinement for 14 months to make them vulnerable in police interviews. (The RCMP has said its strategy was to move witnesses’ loyalty from the criminal gang to the police.)
B.C. Supreme Court Justice Catherine Wedge ruled that the public interest in convicting the men in 2014 for their crimes outweighed the wrongs alleged, and granted summary dismissal without a full hearing of what the allegations were.
The B.C. Court of Appeal affirmed the findings of guilt but quashed the convictions, and ordered a full hearing of the abuse allegations. The Supreme Court of Canada upheld that ruling.
Mr. Paisana called the Supreme Court of Canada ruling “a sea change” in the summary dismissal of abuse claims in the criminal context. The summary hearings, known in B.C. as Vukelich applications (and by other names in other provinces), are so common the term is now used as a verb.
“You get ‘Vukeliched’ in British Columbia because of how common this practice had become,” Mr. Paisana said.