Testing the Limits on Abuse of Process: Her Majesty the Queen v. Matthew James Johnston, et al.

In R. v. Johnston, 2021 BCCA 34 [Johnston], the British Columbia Court of Appeal (“BCCA”) quashed the convictions of both Matthew James Johnston and Cody Rae Haevischer on six counts of first-degree murder and one count of conspiracy to commit murder. On December 2, 2021, the Supreme Court of Canada (“SCC”) granted leave for the Crown to appeal, after the BCCA ordered a full evidentiary hearing on allegations of police misconduct and abuse of process. 

 

Background 

The Surrey Six Murders

On October 19, 2007, six men were shot to death in suite 1505 of the Balmoral Tower in Surrey, British Columbia. The case became known as the Surrey Six murders, for which the investigation and trials were closely followed in the media. The case involves gang violence, drug deals, police misconduct, Witness Protection, conspiracy—and yes, murder. The high-profile nature of this case means the upcoming SCC appeal will face heightened scrutiny, not only from the legal community, but the public as well.

One of the victims was the occupant of the suite, Corey Lal, a drug dealer and rival of the Red Scorpions gang with which Johnston and Haevischer were affiliated. The other five victims included: three associates of Mr. Lal, Michael Lal, Edward Narong, and Ryan Bartolomeo; a man servicing fireplaces in the building, Edward Schellenberg; and Mr. Lal’s neighbour, Christopher Mohan. There was evidence that the six men were confined unlawfully before their murders: the perpetrators dominated them by forcing them to lie down on their faces in submissive positions, with their hands near their heads. All six men were shot from behind, either in the back or the head, execution-style.

Johnston and Haevischer (the “co-accused” or “defence”) were first tried together at the Supreme Court of British Columbia (“BCSC”) and then appealed their convictions to the BCCA. The trial judge found both men guilty on all six counts of first-degree murder—one per victim—and one count of conspiracy to murder Corey Lal (R. v. Haevischer, 2014 BCSC 1863). (It is worth noting here that “first-degree murder” and “conspiracy” are separate indictable offences under the Criminal Code, RSC, 1985, c. C-46; one need not have committed a murder to commit the conspiracy, and so if there is a conspiracy and an actual murder, an accused can be convicted of both separately.)

Three other people pleaded guilty to the conspiracy, including an individual known as Person X. At Johnston and Haevischer’s trial, the Crown wanted to call Person X, who was present at the murders, as a witness. After an in camera, ex parte hearing, Person X was not allowed to testify.

At trial, the defence made allegations of police misconduct, both during the Surrey Six investigation and related to their pre-trial confinement conditions for the 14 months before the trial. They applied for a stay of proceedings based on abuse of process, which would have required a voir dire (a full evidentiary hearing). The trial judge held a Vukelich hearing considering this application, and declined the request to hold a voir dire on the abuse of process question.

 

In Camera, Ex Parte hearings and the Publication Ban

Significant sections of the trial were held in camera (“held in private”) and ex parte (“without one party present”) to protect privileged information. During in camera hearings, special counsel represented the defence’s interests. The BCCA referred to them as amici curiae (“friends of the court”), which is what they were called at trial. However, as they represented the defence’s interests when their counsel could not be present to protect privileged information, they were not truly amici but “special counsel.”

The appellants suggested that the ex parte nature of these hearings breached their right to be present “during the whole of [their] trial,” as stated in section 650 of the Criminal Code. The BCCA did not give effect to this ground of appeal, mostly because of the privileges engaged and the fact that the amici did represent their interests.

A publication ban and sealing order operate in this case. According to the Department of Justice, publication bans prevent anyone (including courts) from publishing any information “that could identify a victim, witness, or other person who participates in the criminal justice system.” Sealing orders protect sensitive information, where that information “reveals something intimate and personal about the individual, their lifestyle, or experiences” (Sherman Estate v. Donovan, 2021 SCC 25, para 77). (For more, see Braelyn Rumble’s article, published on TheCourt.ca in October.)

In this case, the publication ban has caused key passages of the BCSC and BCCA decisions to be redacted, making certain information unavailable to the public, including this author. The sealing order make Person X’s identity unknown, along with the identities of several other key people including Person Y and K.M.. Person Y is a protected witness serving two unrelated life sentences. K.M., girlfriend of Haevischer at the time of the murders, was a key Crown witness. Another unnamed, protected witness in the Surrey Six investigation entered into a sexual relationship with one of the police officers in the case (who has since pleaded guilty to criminal charges related to this misconduct).

 

Grounds of Appeal at the BCCA 

Eight grounds of appeal and two applications for the introduction of fresh evidence were advanced at the BCCA. 

The applications to introduce fresh evidence were dismissed. The BCCA rejected seven of the advanced grounds, including appellant submissions that the Crown breached its duty to disclose all relevant information to the defence and that the trial judge erred in:

• excluding the co-accused from the hearing which led to the exclusion of Person X’s testimony;
• her assessment of the credibility of key Crown witnesses;
• her assessment of circumstantial evidence against Haevischer;
• her application of principles of party liability;
• favouring inferences put to her by the Crown instead of Johnston; and
• failing to address the scope of Person X’s evidence.

The eighth ground of appeal, however, was allowed: The trial judge erred in dismissing the applications for a stay of proceedings without holding an evidentiary hearing dealing with the abuse of process allegations.

Despite quashing the convictions, a unanimous BCCA affirmed the verdicts of guilt. They found no reason to interfere with the findings of guilt and gave no effect to any grounds of appeal that would warrant a new trial. The BCCA followed the SCC’s reasoning in R. v. Pearson, [1998] 3 SCR 620: Where guilt is certain, there is no need to reopen the question of guilt in a new trial. Instead, any Court of Appeal can quash the conviction without overturning the finding of guilt, and direct the question to be answered in the new trial. The BCCA in this case ordered a new trial solely on the question of whether this was one of “the clearest of cases” of abuse of process warranting a stay of proceedings (R. v. Jewitt, [1985] 2 SCR 128). Accordingly, the Crown appeal to the SCC will focus only on a question of law.

  

Vukelich Rulings

A Vukelich hearing is a summary proceeding in which the trial judge determines whether or not to exercise their discretion to decline to hold a voir dire. The Vukelich application triggers a “shortcut” meant to:

prevent undue delay or potential abuse arising from frivolous applications for voir dires in circumstances where the applicant is unable to demonstrate that the results of the hearing could affect the admissibility of the impugned evidence at trial (Johnston, para 406).

The trial judge made two Vukelich rulings on the defence’s stay applications. The “Open Vukelich ruling” was about allegations of police misconduct in the investigation and the pre-trial confinement conditions of the co-accused. The “Sealed Vukelich ruling,” supported in camera by the amici, was about “an additional ground of alleged police misconduct” (Johnston, at para 54).

The BCCA found that the threshold on a Vukelich application is low. The question is “whether a full hearing would ‘assist the proper trial of the real issues’…[assuming] that the allegations advanced in the proposed application could be proven” (Johnston, para 373). When the application is based on allegations of abuse of process, the accused need show only that a full evidentiary hearing would assist in the Court’s determination on the question of whether there has actually been an abuse of process warranting a stay of proceedings.

 

Abuse of Process

In determining whether the Vukelich applications alleged facts that could support the remedy being sought, the trial judge must consider the test that must be met for said remedy. In this case, the accused and amici allege abuse of process. The remedy sought is a stay of proceedings.

The SCC set out the legal principles for abuse of process in R. v. Babos, 2014 SCC 16 [Babos], including two categories of abuse of process where a stay may be granted as remedy: the “main category” where trial fairness is impacted, and the “residual category” where state conduct “offends societal notions of fair play and decency” without compromising the fairness of trial (Johnston, para 366).

Three criteria determine whether a stay of proceedings is appropriate:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome;”

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (Babos, para 32).

The trial judge in this case determined that the alleged misconduct did amount to an abuse of process in the residual category and there was no alternative remedy. She then looked at the third, “balancing” stage and determined that given the horrifying circumstances and gravity of the crime, that a stay of proceedings could not be warranted despite the abuse of process.

 

Possible Crown Positions in the SCC Appeal

The Crown filed an application for leave to appeal to the SCC pursuant to the Criminal Code, section 693(1)(b), where a court of appeal has set aside a conviction. As the BCCA gave effect to only one ground of appeal, it seems certain that this ground is where the Crown appeal will lie. 

The Crown and defence’s Memoranda of Argument are not currently available and may not become available. All published judgments in and related to this case have been redacted, including some of the most crucial sections of the BCCA’s reasons including the “Sealed Vukelich ruling.” I can only predict the grounds that the Crown will advance and how the Crown will frame the question(s) of law at the SCC, based on the limited information provided in the BCCA and BCSC decisions.

The BCCA held that the trial judge erred in applying the incorrect threshold in a Vukelich application related to allegations of abuse of process. It seems likely that the Crown will submit:

1. the BCCA misidentified the appropriate threshold for a Vukelich application; or
2. that there are categories of offences in which a stay of proceedings can never be an appropriate remedy for an abuse of process.

 

Did the BCCA Err in Its Analysis of Vukelich Principles?

At the SCC, the Crown may submit that the BCCA erred in finding that weighing evidence in the context of abuse of process is incompatible with Vukelich principles.

In Johnston, the Crown submitted that the trial judge need not draw the inferences most favourable to the defence in a Vukelich hearing. I expect the Crown will maintain this position at the SCC. Assessing the facts alleged “at their highest” (Johnston, para 405) in the context of the Babos test still requires, at the third stage, that the trial judge accept the inferences available to them and consider whether they could outweigh “the interest that society has in having a final decision on the merits” (Babos, para 32).

The BCCA emphasized that a court must not “inadvertently decide the actual merits of the proposed application,” as cautioned in R. v. Gill, 2018 BCSC 661 (Johnston, para 24). The Crown may ask the SCC to rule that, in the Babos context, it is not improper for the trial judge to ask at the Vukelich stage whether the alleged facts are sufficient to outweigh the societal interest. This would not be deciding the question on the merits, but instead deciding whether the facts as presented are capable of withstanding this balancing.

The Crown may submit that the appropriate threshold in light of Babos is not whether the facts alleged can support criteria (1) and (2), but whether they also support the remedy when balanced against the societal interest in the prosecution. If they cannot, then they do not legally support the remedy. This does not ask the trial judge to make a final determination at the Vukelich hearing, but instead to consider the test against which the allegations will be measured. If the allegations are deficient when weighed against the societal interest under Babos, the trial judge will correctly exercise their discretion in declining to hold the voir dire.

 

Are there Categories of Offences Where a Stay Can Never be Granted?

The BCCA stated unequivocally: “There Are No Categories of Offences for Which a Stay of Proceedings Can Never Be an Appropriate Remedy for an Abuse of Process” (Johnston, para 422, heading (v)). The Crown made repeated submissions to the contrary, and I expect this will form the bulk of its SCC appeal. In fact, it seems to me that the ground discussed above regarding the Vukelich principles is a veiled way of saying the same thing: there is no factual matrix of abuse of process that the accused could advance that might outweigh the societal interest in their conviction, because the offence is so serious that a stay could never be granted.

The thrust of the Crown’s submission is that some criminal offences are so offensive, so shocking to the community’s conscience, that society will tolerate any abuse of process to ensure that justice is done. In such cases, a stay of proceedings flies in the face of society’s expectations that persons found guilty of such offences might be released on what the public would call a technicality.

 

Conclusion – State Conduct Must Have Limits

While it is true that a stay is extraordinary and must only be granted in the clearest of cases, a Crown submission that some offences can never warrant a stay would ask the SCC to create a blanket exclusion. In turn, it would ask the SCC to rule that state behaviour has virtually no limits when a person is accused of first-degree murder. 

This lies contrary to the purpose of the abuse of process doctrine, which seeks to prevent the state and the police from “manipulat[ing] people and events for the purpose of…obtaining convictions” (R. v. Mack, [1988] 2 SCR 903). There are inherent limits on state conduct to protect the public and preserve its trust in the criminal justice system. There is no “ends justify the means” approach to police conduct (Johnston, para 423).

No matter the seriousness of the conduct alleged against an individual, the criminal justice system is still based on the presumption of innocence. State actors, including the police, must conduct themselves accordingly. That someone is accused of a serious offence does not disentitle them to minimum protections to dignity, security, and fair treatment. If the state can conduct unfair investigations and treat an accused, pre-trial, in ways which undermine these fundamental rights, then the state forfeits their opportunity to convict.

The justice system is about limits, and those limits stand to be tested when the SCC hears this appeal. The SCC cannot, and likely will not, hold that any category of offences prevent a stay from remedying an abuse of process. Particularly in 2021, where police misconduct has been so widely attended in the socio-political landscape, it seems impossible that Canada’s highest court will find that the state has an unqualified right to abuse the justice process. The SCC has the option to be tough on crime or to uphold the most basic principles of our justice system: that all persons deserve procedural rights and the protection of their rights. The state cannot do whatever it wants—even in the most horrifying, highest profile cases.

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