Two men who executed six people in British Columbia in 2007 are asking the Supreme Court of Canada for a chance to show why their convictions should be quashed over state misconduct, including a prolonged use of solitary confinement.
The case, to be heard on Tuesday, has extreme facts and poses an extreme question: Can mass killers be let off the hook if wrongdoing by police and jailers is deemed egregious enough?
Known as the Surrey Six murder case, it exemplifies the challenges facing a court that lost its leading criminal-law specialist, Justice Michael Moldaver, to retirement on Sept. 1. At a time when more than half the appeals it hears are criminal matters, the case will put the Supreme Court’s criminal-law chops to the test.
By any measure, the case of mass killers Matthew Johnston and Cody Haevischer is complex.
It involves allegations of severe police misconduct, including sexual activity with potential witnesses; several officers were charged criminally and pleaded guilty in relation to misconduct. Corrections authorities are alleged to have relented to police pressure and put the two in solitary confinement for 14 months in pretrial custody to frustrate their access to counsel and make them vulnerable in police interviews. The case also involves thorny procedural questions, and Tuesday’s hearing even includes a rare, in-camera component at which defence counsel will not be present. The stakes are enormous.
The legal question involves the use of “summary hearings” to decide whether defence counsel may argue that the state violated an accused person’s Charter rights. Summary hearings involve little evidence about alleged state misconduct. The idea is to prevent frivolous claims from taking up time.
B.C. Supreme Court Justice Catherine Wedge, who presided over the trial, found in a summary hearing that the state conduct could amount to an abuse of process so serious the only acceptable answer would be to stay the proceedings. But society’s interest in holding a trial for individuals accused of killing six people outweighed the harm to the justice system of halting proceedings, she ruled.
The B.C. Court of Appeal said that was the wrong approach. Once Justice Wedge found a possible abuse of process, she should have held a full hearing to hear evidence about the abuse, rather than a summary hearing. The court upheld the findings of guilt against the men, but said it would not register convictions until Justice Wedge held a full hearing on the evidence to resolve the Charter issues.
Now the Supreme Court of Canada’s task is to decide whether that hearing should go ahead.
Peter Sankoff, a University of Alberta professor specializing in criminal law, who also advocates at the Supreme Court, said the court will be put to the test in cases that affect courtroom procedures and the rules about evidence – the daily stuff of criminal trials.
Criminal justice “is an entirely separate and distinct procedural system,” he said in an interview. “I just think there’s so much that needs to be known.”
Some practitioners say the court is up to the challenge.
“I don’t think one expert in the area is required,” Brian Greenspan, a criminal-defence lawyer in Toronto for nearly 50 years, said in an interview. “I think that there’s a collective expertise. I think the history of the court shows that non-criminal lawyers have made huge contributions to criminal law.”
That group of non-criminal lawyers on the court includes Beverley McLachlin, Brian Dickson, Ian Binnie, John Sopinka and Peter Cory, he said. Mr. Sopinka wrote the judgment that in Mr. Greenspan’s view had the biggest impact on criminal law in the 40-year history of the Charter of Rights and Freedoms – Stinchcombe, a 1991 decision requiring that the state disclose to the defence all information relevant to the case. (Among the criminal lawyers since 1982 were Antonio Lamer, Morris Fish and Louise Charron. Louise Arbour served as chief war crimes prosecutor at an international tribunal.)
The court leaned heavily on Justice Moldaver’s criminal-law expertise. In the two years leading up to his retirement, he wrote or co-wrote eight majority or unanimous criminal-law judgments, a Globe and Mail review found. The next two most prolific authors on the subject were Chief Justice Richard Wagner and Justice Russell Brown, with five each. Justice Moldaver was the court’s sole member to have devoted his career to criminal law before joining the bench.
Justice Moldaver was replaced by Justice Michelle O’Bonsawin, the first Indigenous member, who has five years as a trial judge and was in-house counsel at Canada Post and a mental-health facility before that. Justice Moldaver’s departure means an opening for new voices and leadership on the court. Some criminal-defence lawyers hope the court will now become more amenable to their arguments.
“A very common view among defence counsel is that Justice Moldaver in a sense was a regressive voice in criminal law,” Winnipeg lawyer Scott Newman said in an interview, adding that the court has ample expertise.
Justice Sheilah Martin, a former law dean, has the most hands-on experience in criminal law as a practitioner and a trial judge. She authored four majority or unanimous criminal-law judgments in the past two years. Mr. Newman also mentioned Justice Mahmud Jamal, a former corporate lawyer who represented the Canadian Civil Liberties Association intervening in three major criminal cases, and Justice Suzanne Côté, who has taught the law of evidence.
Justice Nicholas Kasirer and Justice Andromache Karakatsanis, a former deputy attorney-general of Ontario, have also written major criminal-law judgments in the past two years.
Justice Brown is a former academic with just 2 1/2 years on lower courts and is an expert in property law. He has, however, become a strong voice on criminal-law matters, defending the rights of accused people.
Prof. Sankoff said he is a friend of Justice Brown, but while pleased with the appointment, “I didn’t jump up and down as a criminal-law scholar.” As it turned out, however, “he’s the best on the court, in my opinion, and to be honest, it’s not even close. He is the counterpoint to everything I’ve said. ... He doesn’t have the experience, and yet he understands it in a way that I wish everyone else did.”
There is no question Mr. Johnston and Mr. Haevischer committed first-degree murder on Oct. 19, 2007. In a bid to take out a competitor for the drug trade around Surrey, they placed six men face down on the floor in a high-rise and shot them in the head. One was a gas fitter servicing fireplaces, and the other was a neighbour.
“No one’s debating that six murders are enormously serious charges,” Brock Martland, a lawyer for Mr. Johnston, said in an interview, “but you cannot take something that hasn’t been accurately identified and measured and then try to do the balancing on that basis.”