WHY KILLERS WON APPEAL

Judges explain their ruling

B.C.'s highest court says two men convicted in the 2007 Surrey Six murders were entitled to call evidence of police abuse to determine whether the charges against them should have been stayed.

Justices David Tysoe, Anne MacKenzie and Peter Willcock issued more complete reasons on Wednesday explaining why they ordered an evidentiary hearing for Red Scorpion gangsters Cody Haevischer and Matthew Johnston on the extent of police misconduct during the Surrey Six investigation.

Last month, the court released a short statement saying it had accepted Haevischer's and Johnston's arguments that an evidentiary hearing should be held to determine whether the charges should be stayed. That means the killers get another chance to see their charges thrown out, six years after they were convicted and almost 14 years after they slaughtered six men in Surrey's Balmoral Tower, including bystanders Chris Mohan and Ed Schellenberg.

B.C. Prosecution Service spokesman Dan McLaughlin said on Wednesday that no date has been set yet for the evidentiary hearing.

The appeal justices said last month that more reasons for their decision would be released once they could be edited to exclude information from secret hearings that dealt with a confidential informant.

On Wednesday, the judges said that they “allow the appeals against the convictions and quash the convictions, but we affirm the verdicts of guilt.”

“We give no effect to any of the grounds of appeal that would have resulted in a new trial. We remit (return) the matter to the trial court for an evidentiary hearing on the applications for a stay of proceedings for abuse of process.”

They said B.C. Supreme Court Justice Catherine Wedge, the trial judge, made an error when she denied Haevischer and Johnston the ability to call witnesses and other evidence about police abuse in the fall of 2014, after she convicted them of first-degree murder and conspiracy.

The defence had filed submissions about the abuse of process and Wedge ruled that it wasn't enough to warrant a stay of proceedings in such a serious case.

But the appeal court said Wedge didn't have all the evidence of misconduct before her and “made findings of fact at a preliminary stage using an incomplete evidentiary record.”

And they said where police misconduct is alleged, there is significant public interest in all the evidence coming out, despite the Crown arguing “that a stay of proceedings could never be an appropriate remedy given the seriousness of the offences.”

“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 appeal judges said.

“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 court must always retain the ability to dissociate itself from disreputable state conduct by staying the proceedings, no matter how serious the offence.”

The appeal court noted that the police misconduct stemmed from an investigative strategy of targeting “vulnerable members or girlfriends of members of the Red Scorpions in an attempt to bring them into new relationships with the police so they would become witnesses.”

“The trial judge accepted that the effect of the strategy was to encourage an `anything goes' attitude on the part of four officers, which led to egregious misconduct involving exploitative sexual relationships with protected female witnesses, endangerment of the safety of these witnesses by revealing information about them, lying to their superiors and manipulation of overtime and expense claims to cover up their conduct. She concluded that this misconduct could also constitute an abuse of process,” the ruling said.

Three of the now-former Mounties were later convicted of breach of trust.

Haevischer and Johnston were following the orders of Red Scorpion gang leader Jamie Bacon when they went hunting for rival drug dealer Corey Lal on Oct. 19, 2007. They killed Lal, his brother Michael, and associates Ryan Bartolomeo and Eddie Narong. Mohan, who lived in an apartment across the hall with his family, was dragged into apartment 1505 and killed. Schellenberg was servicing the fireplace in 1505 when the killers arrived.

Last year, Bacon pleaded guilty to conspiracy in exchange for the murder charge against him being dropped.