Supreme Court ruling gives go-ahead for hearing into police misconduct, cruelty claims tied to Surrey Six case

The Supreme Court of Canada has dismissed an appeal from Crown lawyers who were seeking to deny a hearing into claims of police misconduct and cruel in-custody treatment that allegedly tainted the convictions of the killers involved in the so-called Surrey Six murders in 2007.

It means that Cody Haevischer and Matthew Johnston — who, in 2014, were tried together and found guilty of six counts of first degree murder and one count of conspiracy to commit murder — will be granted a full evidentiary hearing in B.C. Supreme Court over the matter.

Haevischer and Johnston, both members of a criminal organization called the Red Scorpions, tried to bring evidence at their trial alleging police misconduct and poor treatment in hopes of a stay of proceedings.

The trial judge allowed some evidence, but ultimately concluded that even though the allegations were serious, the 2007 murders in a Surrey, B.C., high-rise — which included the killings of two innocent bystanders — were so shocking that a stay of proceedings would not be appropriate.

In the judge's view, there was no reason to further consider the applications in a full hearing to hear all of the accused's evidence.

Haevischer and Johnston — who received mandatory life sentences — appealed the decision.

The B.C. Court of Appeal ruled in 2021 that they 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.

Lawyers for Haevischer and Johnston argued last October before the Supreme Court of Canada that the men were wrongfully denied an opportunity to provide evidence that 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.''

They also claimed prison conditions were "akin to torture" and they were forced to live in cells smeared with mucus, blood and feces, leaving them teetering "on the edge of sanity."

The case has been further complicated since those arguments because Johnston died of cancer in December 2022.

Application deemed not frivolous

On Friday morning, the Supreme Court unanimously ruled that the trial judge should not have summarily dismissed the applications as they were not "manifestly frivolous."

Justice Sheilah Martin wrote about how courts must weigh the dismissal of applications that would never succeed, or waste court time, against those that protect fair trial rights.

"If the frivolous nature of the application is not manifest or obvious on the face of the record, then the application should not be summarily dismissed and should instead be addressed on its merits," she wrote as part of the decision.

Canada's highest court stopped short of ordering a stay of proceedings, allowing B.C. Supreme Court to determine that through the evidentiary hearing. But it did address the gravity of Haevischer and Johnston's allegations.

"While it remains to be determined whether a stay of proceedings should or should not issue in this particular case, in light of both the seriousness of the offences and the seriousness of the abuse, I agree with the general proposition set out by the Court of Appeal that no category of offence is beyond the ambit of the abuse-of-process doctrine," wrote Martin.

The lawyer representing Haevischer, Dagmar Dlab, said in an email to CBC News prior to the ruling that the goal for her client is to obtain a judicial stay of proceedings through the evidentiary hearing so that he can be released from prison.

Dlab said afterwards that she is prepared to press forward with evidence at the eventual hearing, which could include witnesses.

"We will be calling extensive evidence on the state misconduct we say occurred both in the police investigation into the Surrey Six murders and in the inhumane conditions of Mr. Haevischer's incarceration," she wrote in an email to CBC News.

Both she and Johnston's lawyer Brock Martland said the Supreme Court ruling will have implications for future cases where the Crown seeks to dismiss applications by defence lawyers.

"The practice that has developed in B.C. of the Crown, in particular, using those hearings routinely to nix defence applications before they get off the ground is misguided ... there needs to be a far more rigorous standard, a standard of 'manifestly frivolous' that is used before a judge can stop an application from proceeding," Martland said.

'Not a day when I don't miss him'

Eileen Mohan's son Christopher was one of the six people killed in the 2007 shootings. The 22-year-old lived next door to the unit where the killings took place and had no ties to gangs.

"There's not a day when I don't miss him," she said Friday following the Supreme Court's ruling.

Mohan said she's thankful the court did not rule for a stay in proceedings, which would have meant Haevischer could have been released. But she thinks the ruling labels all police involved in the case with alleged misconduct, when it was only a few.

"And that hurts because our investigators ... were [such] kind people. The police officers that gave me hope that Christopher will get justice, they kept me alive," she said.