A lawyer for one of two men serving life sentences for B.C.'s most notorious gangland slayings says his client was robbed of the right to justice by secrecy surrounding key parts of his trial.
Matthew Johnston and co-accused Cody Haevischer are asking B.C.'s Court of Appeal to set aside their 2014 first-degree murder convictions and to order a new trial for the 2007 Surrey Six killings.
On the opening day of the proceedings Wednesday, Johnston's lawyer, Brock Martland, said even the current hearing would be shrouded in mystery as the court is scheduled to shut out the public and the defence later this week to deal with questions of confidentiality.
"We will be entirely in the dark," Martland told the three judges overseeing the appeal.
"The public will be in the dark."
Robbed of right to be present
Johnston and Haevischer claim their rights were violated by a closed-door, pre-trial hearing which saw a crucial eyewitness excluded from testifying at the trial itself.
The witness, known as Person X, pleaded guilty in April 2009 to three counts of second-degree murder and conspiracy to commit murder in relation to the slayings, which stemmed from a hit against a rival drug dealer ordered by Red Scorpions gang leader Jamie Bacon.
Bacon was sentenced to 18 years last month after pleading guilty to conspiring to commit the murder of Corey Lal. After consideration for time served, he is expected to spend another five and a half years behind bars.
Haevischer and Johnston were given mandatory life sentences in October 2014 without the possibility of parole for 25 years after a judge concluded the two men were with Person X when Lal was murdered along with three associates — including his brother — and two bystanders, Ed Schellenberg and Christopher Mohan.
In submissions filed ahead of the appeal court proceedings, Haevischer and Johnston argued the decision to deny them access to the pretrial hearing robbed them of the right to be present at proceedings affecting their vital interests.
The hearing was supposed to last four days and ended up being ten times that long. And at the end, in a decision that remains sealed, the judge decided that Person X could not testify — leaving the Crown to rely instead on largely circumstantial evidence at trial instead.
"To this day, neither appellant knows why the most important Crown witness was excluded from his trial," the court documents state.
"Neither knows what occurred during roughly 40 days of court time before the judge in their stand-alone trial."
'It treats us like children'
In the Crown's response, prosecutors argue that the trial judge was right to exclude Haevischer and Johnston from the pretrial hearing in order to protect Person X's informer privilege — a "broad and powerful privilege given to persons who provide information to police on a promise of confidentiality."
An 'amici' or 'friend of the court' was appointed at the hearing to act in the interests of the accused by taking an adversarial position.
But Martland told the judges he only learned from recent appeal submissions that the amici had applied to exclude Person X from testifying.
Martland said the new detail was "emblematic" of the excessive secrecy which he claims threatened the administration of justice.
He said the Crown might think his clients should be happy that Person X couldn't testify against them — but likened that position to dealing with the defence like children who are offered ice cream and say they want cake as well.
Martland said the defence may have believed a more drastic remedy was required — like a stay of proceedings.
"I guess our complaint with it is it treats us like children," Martland said.
"It's not that we're unappreciative of the result of Person X being excluded. But we say that the law permitted us — required that we be asked — 'Do you want ice cream or do you want cake? Do you want the exclusion of this witness or do you want something more?'"
'Complicated, intelligent and manipulative'
The appeal will take place over the next two weeks in a courtroom limited to judges and lawyers, all of whom wore masks when they were not speaking. Christopher Mohan's mother, Eileen Mohan, was also in attendance.
In addition to arguments around the proceedings concerning Person X, the defence also claims the trial judge was wrong in her assessment of the reliability and credibility of witnesses who included an admitted murderer and gangster who described himself as a "monster."
According to the defence submissions, one of those people, Person Y, was the Crown's most important witness, claiming to have been involved in the planning of the hit and to have received a confession from Johnston.
But Person Y "was a complicated, intelligent and manipulative witness," the defence claimed.
"He was an admitted murdered (and repeat killer) with a demonstrated ability to rationalize perjury."
In response to that argument, the Crown claims that the trial judge was "acutely aware that they were important Crown witnesses, that they were unsavoury witnesses and that she had to be exceedingly cautious in approaching their evidence."