COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Johnston
,

2021 BCCA 34

Date: 20210128

Dockets: CA42488;
CA42490

Docket: CA42488

Between:

Regina

Respondent

And

Matthew James
Johnston

Appellant

‑ and ‑

Docket: CA42490

Between:

Regina

Respondent

And

Cody Rae Haevischer

Appellant

ABBREVIATED
REASONS FOR JUDGMENT

Restriction
on publication: A publication ban has been imposed under s. 486.5(1)
and s. 486.5(9) of the
Criminal Code
restricting the publication,
broadcasting or
transmission in any way of evidence that could identify victims, or witnesses,
including, without limitation, the persons referred
to in this judgment as Person X, Person Y, K.M. and D.Y..
This
publication ban applies indefinitely unless otherwise ordered.

These
reasons for judgment have been abbreviated from sealed reasons for judgment in
order to protect confidential information.

Corrected
Judgment:  The text of the judgment was corrected at
paragraphs 2, 101, 208, 291 and at the heading above para. 61
on February 19, 2021.

Before:

The Honourable Mr. Justice Tysoe

The Honourable Madam Justice MacKenzie

The Honourable Mr. Justice Willcock

On appeal from: Orders
of the Supreme Court of British Columbia, dated
October 2, 2014 and November 19, 2014 (
R. v. Haevischer
,
2014 BCSC 1863,
2014 BCSC 2172, and 2014 BCSC 2194, New Westminster Docket X072945‑B).

Counsel for the Appellant Matthew James Johnston (CA42488):

B. Martland, Q.C.

J.P.R. Desbarats

D.J. Song

E. Holzman

Counsel for the Appellant Cody Rae Haevischer (CA42490):

S.R.A. Buck

R.P. Thirkell

D. Dlab

Counsel appearing as
Amici Curiae
:

A.K.S. Kapoor

V.M. Cichalewska

Counsel for the Respondent Crown:

M.K. Levitz, Q.C.

J.M. Gordon, Q.C.

C.G. Baragar, Q.C.

M.J. Wolf

Place and Date of Hearing:

Vancouver, British
  Columbia

October 1416 and 1923, 2020

Place and Date of Judgment:

Vancouver, British
  Columbia

January 28, 2021

Date of Release of Abbreviated Reasons for Judgment:

February 25, 2021

Abbreviated Reasons of the Court

Summary:

At trial, the appellants
were found guilty of the murder of six men inside a Surrey apartment building.
The judge found they were either co‑principals to the six murders or,
alternatively, one was a principal as a shooter and the other an aider or
abettor. As part of the pre‑trial proceedings, the judge held an in
camera, ex parte hearing to assess whether allowing an unindicted co‑conspirator,
Person X, to testify would compromise the fair trial rights of the
appellants. The Amici were appointed to provide an adversarial context to this
proceeding. At the same in camera, ex parte hearing, the judge upheld E5s
privilege claim and precluded Person X from testifying due to trial
fairness concerns. Post‑trial, the appellants applied for a stay of
proceedings on the grounds that their pre‑trial conditions of confinement
and alleged police misconduct constituted abuses of process. The Amici joined
the appellants in submitting the police misconduct constituted an abuse of
process. The Crown brought an application for the summary dismissal of the stay
applications without an evidentiary hearing, which the judge granted. The
appellants appeal from their convictions as well as the summary dismissal of
their stay applications. The Amici support the appellants in appealing the dismissal
of their stay applications and in appealing their convictions to the extent
they are based on inadequate disclosure.

Held: Appeal allowed in
part. The judge did not err in excluding the appellants from the in camera, ex
parte hearings, and this decision did not contravene s. 650 of the
Criminal Code. Relatedly, she did not err in failing to address the scope of
the exclusion of Person Xs evidence. The judge also did not err in her
assessment of the credibility of certain witnesses. Although the judge did err
in her assessment of the after‑the‑fact‑conduct of Mr. Haevischer,
the curative proviso of the Criminal Code is applied to this error. The judge
did not err in assessing other circumstantial evidence against Mr. Haevischer,
nor did she err in applying the principles of party liability to him. The judge
similarly did not err in favouring inferences urged upon her by the Crown
rather than those of Mr. Johnston. The Crown did not breach its disclosure
obligations. The judge did err in summarily dismissing the applications for a
stay of proceedings. An evidentiary hearing was necessary to resolve factual
controversies about the extent of police misconduct. Having found that the
alleged abuses of process risked undermining the integrity of the judicial process
and that the only acceptable remedy was a stay of proceedings, the judge could
not properly balance the interests in favour of a stay against societys
interests in entering the convictions without resolving those controversies. In
addition, there is fresh evidence that could reasonably affect the outcome of
the summary dismissal applications. While the verdicts of guilt are affirmed,
the convictions are quashed and the matter is remitted for an evidentiary
hearing on the applications for a stay of proceedings for abuse of process.

Table of Contents

Paragraph Range

Introduction

[1] - [11]

Evidence of the Offences

[12] - [41]

The Trial Reasons

[42] - [47]

The Open
Vukelich
Ruling

[48] - [53]

The Sealed
Vukelich
Ruling

[54] - [57]

Issues on Appeal

[58] - [60]

Did the Trial Judge Err in Excluding the Appellants from
  the Hearing that Led to Her Excluding Person Xs Testimony?

[61] - [91]

Did the Trial Judge Err in Her Assessment of the
  Credibility of Person Y and K.M.?

[92] - [114]

Did the Trial Judge Err in Her Assessment of the
  Circumstantial Evidence Against Mr. Haevischer?

[115] - [185]

(a) Standard of Review

[115] - [122]

(b) Did
  the Judge Err in Her Handling of Inferences Inconsistent with Guilt?

[123] - [134]

(i) Positions of the Parties

[123] - [127]

(ii) Discussion

[128] - [134]

(c) Did the Judge Err in Her Assessment of
  After-the-Fact Conduct?

[135] - [160]

(i) Positions of the Parties

[135] - [149]

(ii) Discussion

[150] - [160]

(d) Did the Judge Err by Filling in the Blanks

[161] - [185]

(i) Positions of the Parties

[161] - [180]

(ii) Discussion

[181] - [185]

Did the Trial Judge Err in Her Application of the
  Principles of Party Liability in Finding Mr. Haevischer Guilty of First
  Degree Murder?

[186] - [215]

(a) Did the Judge Err in Law in Relation to Party
  Liability?

[186] - [196]

(i) Positions of the Parties

[186] - [191]

(ii) Discussion

[192] - [196]

(b) Did the Judge Err in Finding Mr. Haevischer Liable
  as a Principal Under s. 21(1)(a)?

[197] - [207]

(i) Positions of the Parties

[197] - [206]

(ii) Discussion

[207] - [207]

(c) Did the Judge Err in Finding Mr. Haevischer Liable
  as an Aider or Abettor?

[208] - [215]

(i) Positions of the Parties

[208] - [214]

(ii) Discussion

[215] - [215]

Did the Trial Judge Err in Favouring Inferences Urged by
  the Crown, Rather Than Those Suggested by Mr. Johnston?

[216] - [251]

(a) Positions of the Parties

[216] - [239]

(b) Discussion

[240] - [251]

Did the Trial Judge Err by Failing to Address the Scope of
  the Exclusion of Person Xs Evidence, Causing Particular Harm to Mr. Johnston?

[252] - [259]

(a) Positions of the Parties

[253] - [258]

(b) Discussion

[259] - [259]

Did the Crown Fail to Meet Its Disclosure Obligations to
  the Appellants?

[260] - [358]

(a) Background

[260] - [262]

(b) Legal Principles

[263] - [269]

(c) The Brassington Interview

[270] - [311]

(i) The Appellants Arguments

[275] - [278]

(ii) The Respondents Arguments

[279] - [280]

(iii) Discussion

[281] - [311]

Have the Appellants Demonstrated a Breach of the Duty to
  Disclose?

[285] - [295]

Is There a Reasonable Possibility That Non-disclosure Could
  Have Affected the Trial Outcome or the Fairness of the Trial Process?

[296] - [311]

(d) Person Ys WPP Status

[312] - [357]

(i) Information Disclosed to the Appellants Before or
  During the Trial

[318] - [319]

(ii) Newly Disclosed Information Provided to the Appellants

[320] - [324]

(iii) Sealed Information Adduced by the Amici and the Crown

[325] - [329]

(iv) The Appellants Arguments

[330] - [332]

(v) The
Amici
s Arguments

[333] - [334]

(vi) The Respondents Arguments

[335] - [336]

(vii) Discussion

[337] - [357]

(e) Conclusion on Non-Disclosure Issues

[358] - [358]

Did the Trial Judge Err in Dismissing the Applications for
  a Stay of Proceedings in the Absence of an Evidentiary Hearing on the
  Allegations of Abuse of Process?

[359] - [429]

(a) Background

[359] - [362]

(b) Legal Principles

[363] - [375]

(i) Abuse of Process

[363] - [369]

(ii)
[Heading Removed]

[370] - [371]

(iii) The
Vukelich
Threshold

[372] - [374]

(iv) Standard of Review of the
Vukelich
Rulings

[375] - [375]

(c) Positions of the Parties on the Open
Vukelich
Ruling

[376] - [382]

(i) The Appellants Arguments

[376] - [379]

(ii) The Respondents Arguments

[380] - [382]

(d) Positions of the Parties on the Sealed
Vukelich
Ruling and Sealed Fresh Evidence

[383] - [393]

(i) The
Amicis
Arguments

[383] - [388]

(ii) The Respondents Arguments

[389] - [393]

(e) Discussion

[394] - [429]

(i) The Trial Judge Erred by Engaging in a Fact-finding
  Exercise Instead of Taking the
Amici
s Submissions at Their Highest

[395] - [404]

(ii) The Trial Judge Erred by Imposing Too High a Threshold
  on the
Vukelich
Application

[405] - [410]

(iii)
[Heading Removed]

[411] - [413]

(iv) The
Amici
s Fresh Evidence Application

[414] - [421]

(v) There Are No Categories of Offences for Which a Stay of
  Proceedings Can Never Be an Appropriate Remedy for an Abuse of Process

[422] - [424]

(vi)
[Heading Removed]

[425] - [427]

(vii) Conclusion

[428] - [429]

This Courts Jurisdiction to Remit the Matter for a Hearing
  on the Issue of Abuse of Process

[430] - [432]

Disposition

[433] - [434]

Reasons for Judgment of the
Court:

Introduction

[1]

On October 19, 2007, six men were shot to death
while lying defenceless on the floor of suite 1505 of the Balmoral Tower,
an apartment building in Surrey, British Columbia (the Balmoral). The
victims were Corey Lal (Mr. Lal), three associates of Mr. Lal
(Michael Lal, Edward Narong and Ryan Bartolomeo), and two unrelated
bystanders (Christopher Mohan and Edward Schellenberg). These
killings have become known as the Surrey Six murders.

[2]

The appellants, Matthew James Johnston and Cody Rae
Haevischer were charged with one count of conspiracy to murder Mr. Lal
(contrary to s. 465(1)(a) of the
Criminal Code
, R.S.C. 1985,
c. C‑46) and six counts of first degree murder of all six of
the victims (contrary to s. 235(1) of the
Criminal Code
). James
(Jamie) Bacon and Quang Vinh Thang (Michael) Le were also each charged with one
count of conspiracy to murder Mr. Lal and one count of first degree murder
of Mr. Lal. Mr. Le pleaded guilty to the conspiracy charge and
testified in the trial of the charges against the appellants.

[3]

The appellants were tried separately from Mr. Bacon. A stay
of proceedings was entered by Justice Ker in the case against Mr. Bacon,
but a Crown appeal was allowed by this Court (
R. v. Bacon
,
2020 BCCA 140). Mr. Bacon subsequently pleaded guilty to the
conspiracy charge and another unrelated offence.

[4]

A participant in the killings, Person X, pleaded guilty to
the offences of conspiracy to murder Mr. Lal and of second degree
murder of three of the victims. After an
in camera
proceeding
conducted in the absence of the appellants, Person X was precluded by the
trial judge from testifying in the trial against the appellants. [Sentence
removed.]

[5]

In reasons for judgment dated October 2, 2014, and
indexed as
R. v. Haevischer
, 2014 BCSC 1863 (the Trial Reasons),
the appellants were each found guilty of the conspiracy charge and the six first degree
murder charges following a trial by judge alone.

[6]

Prior to the issuance of the Trial Reasons, the appellants had
each made an application for a judicial stay of proceedings on the basis of
abuse of process relating to the conditions of their pre‑trial
confinement and police misconduct. The appellants sought to introduce
evidence in support of their applications. Relying on the decision of
R. v. Vukelich
(1996), 108 C.C.C. (3d) 193 (B.C.C.A.), leave to appeal refd (1997),
[1996] S.C.C.A. No. 461, the Crown resisted the holding of an evidentiary
hearing on the basis that the facts alleged by the appellants, if assumed to be
true and taken at their highest, did not support the granting of a stay of
proceedings. The trial judge appointed
amici curiae
to deal with
confidential information not known by the appellants that augmented the
appellants assertions of abusive police conduct. The lawyers who have from
time to time been appointed as
amici curiae
will be referred to as
the
Amici
.

[7]

In published reasons dated November 19, 2014, and
indexed as
R. v. Haevischer
, 2014 BCSC 2172 (the Open
Vukelich
Ruling), and sealed reasons dated November 20, 2014, and indexed as
R. v. Haevischer
,
2014 BCSC 2194 (the Sealed
Vukelich
Ruling), the
trial judge agreed with the Crowns position and, as a result, the appellants
stay applications were dismissed and convictions were entered.

[8]

On these appeals, the appellants assert that the trial judge
erred in several respects in the Trial Reasons and erred in dismissing
their stay applications. They also apply to introduce fresh evidence in
support of the ground of appeal that the Crown failed to meet its disclosure
obligations prior to trial and thereby breached their right to make full answer
and defence.

[9]

The appellants say the judge erred in the Trial Reasons in
assessing circumstantial evidence and drawing improper inferences, in applying
the principles of party liability in respect of Mr. Haevischer and in erroneously
concluding that
confirmatory evidence permitted her to rely upon the testimony of witnesses of
disreputable character
. They also assert that the judge contravened
s. 650(1) of the
Criminal Code
by excluding them from the
hearing in which she decided to preclude Person Xs testimony, and Mr. Johnston
says that the judge erred by failing to discuss the scope of the exclusion of
Person Xs evidence.

[10]

As they did before the trial judge, the
Amici
join with
the appellants on the abuse of process issue on appeal. The
Amici
say
that the stay applications should not have been summarily dismissed on the
basis of the record before the judge and on the basis of fresh confidential
evidence they apply to introduce that was obtained from the proceedings against
Mr. Bacon. They further apply to introduce fresh confidential evidence in
connection with the custodial arrangements of a witness, Person Y, who
testified at trial, and they rely on this evidence in support of the
appellants ground of appeal that the Crown breached its disclosure obligations.

[11]

The portions of the hearing of the appeals dealing with the fresh
confidential evidence and the submissions of the
Amici
(and the Crowns response)
were held
in camera
, and these reasons will be abbreviated prior to
their release to the public in order to remove confidential information. The
full version of these reasons will be sealed.

Evidence of the Offences

[12]

The parties filed a joint statement of facts for
the purposes of these appeals. Most of the facts describing the circumstances
of the offences come from the joint statement, but they also include contested testimony
at trial and some findings of the trial judge.

[13]

The Crowns case consisted of a body of circumstantial evidence
and admissions made by the appellants. As Person X did not testify, there
was no direct evidence of the killings themselves.

[14]

The appellants and Mr. Bacon were members of a gang called
the Red Scorpions. One of the victims, Mr. Lal, was a rival drug dealer.
A dispute arose between Mr. Bacon and Mr. Lal, which led to a meeting
between them (and others) at a restaurant. One of the members of the Red Scorpions,
Person Y, testified that Mr. Bacon imposed a tax of $100,000 on Mr. Lal,
which was to be paid before the end of the day on which the meeting was held.
At the meeting, Person Y confiscated a 9 mm Glock gun being
carried by Mr. Lal and decided to keep it as his own.

[15]

The tax was not paid, and the judge found that the Red Scorpions
decided to kill Mr. Lal so that they did not look weak. Person Y
testified that he initially agreed to kill Mr. Lal on his own if someone
lured him into a parking lot, but that he withdrew his offer when Mr. Bacon
decided to get money and drugs out of Mr. Lal before killing
him, a plan that would require more than one assailant.

[16]

In the early afternoon on the day of the killings, there was
a meeting at a Korean restaurant in Surrey. Cell phone records showed
that Mr. Johnstons cell phone used the dominant cell‑signal site
for the restaurant around the time of the meeting, that a call received by
Person Y was consistent with him being
en route
to the
restaurant, that Mr. Les cell phone used the dominant server for the
restaurant and that Person X used his cell phone within the expected
coverage area of the restaurant. Person Y and Mr. Le both testified that
Mr. Johnston and Person X were present in or outside the restaurant. Person Y
testified that Person X asked to borrow his gun at this meeting and that
he gave the gun confiscated from Mr. Lal to Person X. The gun was
found at the scene of the killings with the DNA of Person Y on it.

[17]

At the time of the killings, Mr. Haevischer and his
girlfriend, K.M., lived in a suite in an apartment building in Surrey
known as The Stanley. On the day of the killings, the Surrey Drug Section
of the Royal Canadian Mounted Police (RCMP) was conducting
surveillance at The Stanley for an unrelated investigation, and one of the
officers took some video of the area. In addition, The Stanley had an
internal security video system that recorded various areas of the building.
The video showed that Mr. Johnston and Person X arrived at The Stanley
at 1:48 p.m. on the day of the murders. Mr. Johnston was wearing
a black hoodie with an intricate white design and Person X was
wearing a light grey hoodie with a large black Nike swoosh logo
on the back and a smaller one on the front, and he was carrying a black bag
strapped across his chest.

[18]

K.M. testified that she and Mr. Haevischer were at their suite
in the early afternoon on the day of the killings when Mr. Johnston and
Person X arrived unannounced. She testified that they asked if they could
clean some guns and K.M. helped them clean the guns and bullets with Windex and
paper towels in the living room of the suite. She said that Mr. Haevischer
changed clothes and the three men left the suite, with Mr. Johnston
asking her to move his vehicle from the front visitor parking area to the rear area
of The Stanley.

[19]

The video evidence showed Mr. Johnston, Mr. Haevischer
and Person X leave The Stanley in K.M.s black 745 BMW at 2:16 p.m.
and K.M. moving Mr. Johnstons vehicle to the rear of the building. The
video showed Mr. Johnston and Person X wearing the same clothes as
before (with Mr. Johnston also wearing a baseball cap) and Mr. Haevischer
wearing a black hoodie.

[20]

One of the drug dealers for the Red Scorpions, referred
to as D.Y., lived in the Balmoral. It consisted of one 15‑floor high‑rise tower
and four low‑rise buildings. The complex had an underground parkade
which was accessed by separate gates for vehicles and pedestrians. The
residential floors could be accessed by elevator, which required a fob for
the outside entrances and the parkade entrances. Mr. Lal was the
occupant of suite 1505 of the Balmoral, but no one resided in the suite
and it was used as a stash house for his groups money and drugs.

[21]

D.Y. testified that he gave his fob for the Balmoral to Mr. Johnston
in the early afternoon of the day in question. The fob was used to gain
access to one of the pedestrian gates in the underground parkade at 2:23 p.m.
The distance between The Stanley and the Balmoral is approximately
three kilometers, which would typically take four minutes or slightly
longer to drive in a vehicle.

[22]

A Bible study took place in an apartment in the Balmoral on
October 19, 2007; one of the participants, Ms. Lee, left the meeting
at approximately 2:15 p.m. to return to her car in the underground parkade.
She testified that when she was walking down a ramp towards the parkade,
she saw a black 745 BMW. She watched the BMW park, and, as she was
heading to the exit ramp of the parkade in her vehicle, she saw two men
exit the BMW. She described the two men as Caucasian, between 18 and 22 years
of age with no facial hair and wearing gloves. She said one of them was
approximately 183 cm tall and was wearing a grey hoodie with a Nike swoosh logo
on the back and the other was approximately 170 cm tall and was
wearing a black hoodie.

[23]

Ms. Lee also testified that she saw a third man holding
open the pedestrian gate out of the parkade. She described him as being
approximately 170 cm tall and wearing black gloves and a black hoodie
with white markings pulled down to cover his face. The other two men
were walking in his direction. When she was out of the parkade and driving on
the road, Ms. Lee phoned the hostess of the Bible study to report that
there were some strange men in the parkade. Cell phone records showed
that this call occurred at 2:24 p.m.

[24]

The trial judge concluded that Ms. Lees descriptions of
these three men were consistent with the video taken by The Stanleys closed‑circuit
television (CCTV) of Mr. Johnston, Mr. Haevischer and Person X.

[25]

The judge found that the perpetrators of the killings entered Mr. Lals
suite in the Balmoral at 2:30 p.m. and that the victims were killed
at approximately 2:40 p.m. She made these findings primarily on the basis
of cell phone and fob records, supplemented by evidence of persons in
contact with the victims.

[26]

The evidence indicated that Mr. Lal, Michael Lal, Mr. Bartolomeo
and Mr. Schellenberg (who was servicing fireplaces in the Balmoral)
were in the suite when the perpetrators entered. Mr. Mohan (who lived
across the hall) and Mr. Narong subsequently came or were brought into the
suite.

[27]

The crime scene established that the victims were killed by
two shooters. Two guns were found at the scene, and there were two separate
groupings of the victims, three by a computer near the front door and three by
a fireplace. The Glock gun Person Y had given to Person X was used to
kill three of the victims, and a 9 mm Ultrastar gun was
used to kill the other three. The victims were all found in submissive
positions and were shot in the back of the chest or head with 16 of
the 19 bullets fired by the guns. The victims pockets had been emptied
and their cell phones were all taken. The bodies were discovered by one of the
managers of the Balmoral, who went looking for Mr. Schellenberg.

[28]

One of the other participants of the Bible study, Ms. Kim,
was leaving the Balmoral at approximately 2:45 p.m. As she was backing out
of her parking stall in the underground parkade, she saw three young
men in dark tops come out of the pedestrian gate and get into a black BMW
parked a few stalls away. The BMW passed her vehicle on the exit ramp of the
parkade travelling at a very high rate of speed. The trial judge
concluded that these three men were Mr. Johnston, Mr. Haevischer
and Person X.

[29]

Based on police and video surveillance, Mr. Johnston, Mr. Haevischer
and Person X arrived together in the BMW at The Stanley at
approximately 2:56 p.m. Mr. Johnston was observed carrying a white plastic bag.
Both Mr. Johnston and Mr. Haevischer were hooded and wearing gloves. They
went into The Stanley. Person X waited by Mr. Johnstons vehicle
in the rear of the building.

[30]

K.M. testified that when Mr. Johnston and Mr. Haevischer
returned to the suite at The Stanley approximately an hour after they had
left, Mr. Johnston emptied the contents of a black plastic bag containing
bundles of cash and cell phones. She saw Mr. Haevischer boiling cell phones
in a pot on the stove, and, when Mr. Haevischer and his brother (who
arrived before the return of the others or shortly thereafter) were writing on
a whiteboard, she saw the words, People Died.

[31]

The surveilling police observed Mr. Johnston re‑emerge
from the building a few minutes later. Mr. Johnston got into his vehicle
and drove away with Person X in the passenger seat at 3:04 p.m.

[32]

K.M. testified that the cell phones, clothing worn by Mr. Haevischer
and a pair of shoes were put into a laundry bag and that Mr. Haevischer
told her to do whatever his brother told her to do. She said she and Mr. Haevischers
brother went to a location in Surrey where the laundry bag and its contents
were burned. The Stanley CCTV video captured K.M. and Mr. Haevischers
brother (carrying a large cloth bag) going to the parkade at 4:34 p.m. and
K.M.s Acura Integra leaving The Stanley at 4:35 p.m. The video
showed K.Ms Acura returning at 6:41 p.m., and she and Mr. Haevischers
brother were seen a few minutes later walking from the parkade to the elevator.

[33]

K.M. testified that she and Mr. Haevischer left The Stanley
shortly after 8:00 p.m. and went to stay in an associates house for
several days. K.M. said that on that evening Mr. Haevischer told his
associate on a whiteboard that six people died. The next day, she said Mr. Haevischer
asked her the question, Burnt it all, all gone[?] on a whiteboard and K.M. nodded
affirmatively. K.M. further testified that Mr. Haevischer told her that
one of his associates was going to get her BMW cleaned.

[34]

Person Y testified that Mr. Johnston made admissions to
him regarding the murders on three separate occasions. The first occurred
on the evening of the murders, when Person Y was waiting in Mr. Bacons car
in a parking lot of a pub next to the apartment building in
which Person X lived. He was waiting for Mr. Bacon to return from the
building. He testified that Mr. Johnston unexpectedly climbed into the car
and told him of events that had taken place earlier in the day.

[35]

Person Y testified that Mr. Johnston was animated and
told him that there were lots of bodies, that he had to pull someone in from
outside the suite and that they put bodies by a fireplace. He also said
that Mr. Johnston used hand signals to show how many people it was.

[36]

The RCMP was conducting surveillance of Mr. Bacon at this
time and saw that his vehicle had parked in the parking lot next to Person Xs
apartment building. The police did not see anyone get into or out of
the vehicle until a male got into the vehicle before it drove off. Cell phone
records of Mr. Bacon, Mr. Johnston, Person X and Person Y
were consistent with them all being in the area at the time.

[37]

Person Y was acting as a police agent on the other two occasions
Mr. Johnston made admissions, which took place approximately four months
and five months after the killings. Person Y was wearing a wire,
and his testimony at trial included descriptions of hand gestures made by Mr. Johnston.

[38]

On the second occasion, Person Y asked Mr. Johnston
how it was that his (Person Ys) DNA was found on a gun, and Mr. Johnston
replied that he never touched the gun. Mr. Johnston said he did not know
where the gun was left and Person Y would have to ask Person X about
it. Mr. Johnston also said that he saw Person X clean the guns with
Windex.

[39]

The following was said by Mr. Johnston on the third occasion
(with Person Ys testimony in brackets):

·

when
asked if he had seen Person X boil the guns, Mr. Johnston said he was
not exactly sure but clearly one of the guns was left there and the other was not;

·

when
asked why Person Ys gun had been left, Mr. Johnston said he did
not know but it was not him;

·

when
asked why guns were used, Mr. Johnston said he did not know and all he
knew is that he was told to do something (Person Y first testified that Mr. Johnston
pointed to his eyes indicating that he was the lookout person and he
subsequently corrected himself that Mr. Johnston rubbed his fingers
together to indicate money, but he was 80 to 90 percent certain Mr. Johnston
also pointed to his eyes);

·

Mr. Johnston
said the other person was supposed to do this (which Person Y
testified was accompanied by a hand gun gesture with a cocked thumb
and two fingers extended);

·

when
questioned about Person Ys gun, Mr. Johnston said there were
some things he could not answer and I watched him do this  [b]oth
of them (which Person Y testified was accompanied by the same hand gun
gesture);

·

when
asked why Person Ys gun had been left, Mr. Johnston said he was
just told to get this (which Person Y testified was accompanied by Mr. Johnston
rubbing his fingers together to indicate money) and everybody else like (which
Person Y testified was accompanied by a hand gun gesture);

·

when
told that Person X claimed that $50,000 had been taken from the suite, Mr. Johnston
replied that there was nineteen five, I swear, and Mr. Johnston
denied stealing any of the money and said words to the effect that it was Mr. Haevischer
who counted it;

·

when
asked why six people were killed and whether Person X had panicked, Mr. Johnston
said he was not inside and Person Y knew that to be the case because
Person X had already told him; and

·

when Person Y said that Person X had not boiled the
guns, Mr. Johnston replied that he never had one in his hand the
whole entire time (which Person Y testified was accompanied by a hand gun gesture).

[40]

There are other facts and alleged facts that are relevant to
the issues relating to the alleged abuse of process and lack of
disclosure. We will outline them when dealing with those issues.

[41]

We will next briefly summarize the Trial Reasons, the Open
Vukelich
Ruling
and the Sealed
Vukelich
Ruling. We will elaborate on the
judges reasoning when discussing the issues raised on these appeals.

The Trial Reasons

[42]

The Trial Reasons were very extensive, consisting of 728 paragraphs
(as well as an executive summary). After giving an overview of the Crowns case
and a description of the witnesses who testified, the trial judge set out the
factual narrative in great detail.

[43]

During the factual narrative, the judge made a number of
findings of fact. She found that there were two shooters (each
of whom shot three of the victims), that the murders were execution‑style shootings,
and that the victims were under domination of the perpetrators at the time they
were shot. She found that there was initially a plan for Person Y, acting
alone, to kill Mr. Lal and that it changed to a plan in which members of
the Red Scorpions would break into Mr. Lals stash house in
order to kill him and take his money and drugs.

[44]

The judge made findings as to the events that took place on
October 19, 2007, along the lines of the evidence set out above. She
accepted the evidence of Person Y with respect to the admissions made by Mr. Johnston
and found that they constituted acknowledgements that Mr. Johnston was
aware of the plan to kill Mr. Lal, that he was present during the cleaning
of the guns, that he was present at the scene at the time of the murders and
that he provided assistance in carrying out the plan.

[45]

The judge then conducted an assessment of the testimony of four
witnesses of
disreputable character
, including Person Y and K.M. She
was satisfied that it was Person Ys intention to tell the truth and she
found his evidence was corroborated in many respects by independent evidence. She
concluded that many key aspects of K.M.s evidence were in accordance with
the preponderance of probabilities and that there was other evidence tending
to show that K.M. was telling the truth in the material aspects of her
testimony.

[46]

Finally, the judge turned to the specific charges against the
appellants. She was satisfied beyond a reasonable doubt that Mr. Johnston
was a member of the conspiracy to murder Mr. Lal and that the only logical
inference was that Mr. Haevischer knew that the three men were on their
way to kill Mr. Lal by the time they exited the BMW in the parkade of the
Balmoral.

[47]

The judge found that the appellants were co‑principals in
the six murders or, alternatively, one of them was a principal in the
murders as a shooter and the other was an aider or abettor of the
shooters. She was satisfied beyond a reasonable doubt that the murders were
planned and deliberate in that the perpetrators had at all times planned to
kill Mr. Lal and the plan expanded to killing the other five victims
because they could identify the killers. In the alternative, the judge found the
appellants guilty of first degree murder of all six victims
because they caused their death while committing the offence of unlawful confinement.

The Open
Vukelich
Ruling

[48]

The task of the trial judge on the Crowns application for
the summary dismissal of the stay applications was to determine whether the
appellants had demonstrated that the alleged police misconduct during the
investigation into the Surrey Six murders, together with the conditions of
confinement during their first 14 months of pre‑trial custody,
justified holding a full evidentiary hearing to determine whether a judicial
stay of proceedings was warranted. She began by reviewing the principles set
out in
R. v. Babos
, 2014 SCC 16, and she noted the
stay was being sought under the residual category of conduct impinging
on the integrity of the justice system, not the main category of
conduct that compromises trial fairness.

[49]

In the first stage of the
Babos
analysis, the
judge looked to whether the state had engaged in conduct that was offensive to
the notions of fair play and decency so as to harm the integrity of the
judicial system. She accepted for the purposes of the Crowns application
that the fact that the appellants had been kept in segregated confinement for
14 months at the direction of the RCMP was offensive to notions of fair play
and decency and could amount to an abuse of process.

[50]

The alleged police misconduct arose from an investigative technique
referred to as the moving witnesses strategy. The strategy involved
the police targeting vulnerable members or girlfriends of members of
the Red Scorpions in an attempt to bring them into new relationships
with the police so that they would become witnesses against the Red Scorpions.
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.

[51]

In the second stage of the
Babos
analysis, the trial
judge accepted that no remedy short of a stay of proceedings was capable of
redressing the prejudice to the justice system from the alleged misconduct.

[52]

In the third stage of the
Babos
analysis, the trial
judge weighed the seriousness of the state misconduct and the societal interest
in having the convictions entered. It was her view that the seriousness of the
charges and societys interest in seeing justice done were the factors that
weighed most heavily in the balance. When she weighed the impugned state
misconduct against societys interest in having the convictions entered,
she concluded that this was not one of the clearest of cases where
the exceptional remedy of a stay of proceedings was warranted.

[53]

As the trial judge concluded that the grounds advanced by the
appellants would not support a stay of proceedings, an evidentiary hearing was
unnecessary. She dismissed their applications and directed the entry of their
convictions.

The Sealed
Vukelich
Ruling

[54]

In the
in camera
hearing before the trial judge,
the
Amici
took the position in support of the appellants applications
for a stay of proceedings that an evidentiary hearing was necessary to deal
with the abuse of process allegation on an additional ground of alleged police
misconduct. [Sentence removed.]

[55]

[Paragraph removed.]

[56]

[Paragraph removed.]

[57]

In the third stage of the
Babos
analysis, the
judge concluded that, even when the abuses were considered cumulatively, a stay
of proceedings would be disproportionate in view of the seriousness of the
offences and the interest of the community in having the appellants convictions
entered. She confirmed her summary dismissal of the applications for a
stay of proceedings.

Issues on Appeal

[58]

The issues on appeal are as follows:

a)

Did the trial
judge err in excluding the appellants from the hearing that led to her order
prohibiting the testimony of Person X in contravention of s. 650 of
the
Criminal Code
?

b)

Did the trial
judge err in her assessment of the credibility of Person Y and K.M.?

c)

Did the
trial judge err in her assessment of the circumstantial evidence against Mr. Haevischer?

d)

Did the trial
judge err in her application of the principles of party liability in finding Mr. Haevischer
guilty of first degree murder?

e)

Did the trial
judge err in favouring inferences urged upon her by the Crown, rather than
those suggested by Mr. Johnston?

f)

Did
the trial judge err by failing to address the scope of the exclusion of
Person Xs evidence, causing particular harm to Mr. Johnston?

g)

Did the Crown
fail to meet its disclosure obligations owed to the appellants?

h)

Did the trial
judge err in dismissing the applications for a stay of proceedings in the
absence of an evidentiary hearing dealing with the allegations of abuse of process?

[59]

In addition, there are applications for the introduction of fresh evidence
in relation to the last two of these issues.

[60]

The
Amici
join the appellants on the final two issues. We
will deal with each of these issues in turn.

Did the Trial Judge Err in Excluding the Appellants
from the Hearing that Led to Her Excluding Person Xs Testimony?

[61]

In the fall of 2012, about a year prior to the
commencement of the trial, the appellants filed an application challenging the
Crowns position that it was entitled to withhold disclosure of
certain materials from them on the basis that the materials would tend to
identify persons designated as E3 and E5, who the Crown asserted were
confidential informants. [Sentence removed.] On application by the appellants,
the trial judge granted a consent order dated November 6, 2012,
appointing the
Amici
to assist the court by providing an adversarial
context in the
ex parte
hearing to adjudicate the Respondent
Crowns claim of informant privilege. The order provided, among other things,
that the
Amici
were to ensure that the appellants and their counsel
would receive disclosure of all information that did not tend to identify the
confidential informant.

[62]

It is important to note that the role played by the
Amici
in this case was different than the role described by Justice Karakatsanis
in
Ontario v. Criminal Lawyers Association of Ontario
, 2013 SCC 43 [
Criminal
Lawyers Association
]. The
Amici
s initial appointment was to assist
with the resolution of the privilege claims of E3 and E5, which necessarily had
to proceed without the accused or their defence counsel. Once those claims were
upheld,
Amici
s

role shifted to providing an adversarial context
to the
ex parte
portions of this proceeding, and thus took on a role
similar to that of defence counsel. At the hearing of these appeals,
Amici
helpfully suggested that their role was more akin to that of special counsel,
and that they would not use the term
Amici
if the appointment were made
today.

[63]

We agree with
Amici
s submission that their role is more
accurately described as that of special counsel.
Amici
were not truly
appointed to be friends of the court, but rather to provide an adversarial
context in the absence of defence counsel. They fulfilled that role ably on
appeal. Nevertheless, because the appointment of
Amici
predates the
decision in
Criminal Lawyers Association
, and the term
Amici
has
been used throughout this litigation, we will continue to use the term
Amici
.

[64]

The Crown indicated an intention to advance its privilege claims
under the common law, as opposed to s. 37 of the
Canada Evidence Act
,
R.S.C. 1985, c. C‑5.

[65]

Mr. Johnston raised an objection to the Crown proceeding
with
in camera
hearings in his absence dealing with informer
privilege at common law on the basis that s. 650 of the
Criminal Code
bars proceedings in the absence of the accused. Section 650(1) reads as
follows:

Accused to be present

650

(1)
Subject
to subsections (1.1) to (2) and section 650.01, an accused,
other than an organization, shall be present in court during the whole of his
or her trial.

Subsections (1.1) to (2) and s. 650.01
have no application to this case.

[66]

In oral reasons given on February 12, 2013, and
written reasons subsequently issued on September 20, 2013, and
indexed as 2013 BCSC 1735, the judge ruled that the Crown was not
required to proceed under s. 37 of the
Canada Evidence Act
and that s. 650 of the
Criminal Code
was not a bar to the
Crown proceeding with
in camera
hearings in the absence of the
accused.

[67]

The judge proceeded to deal with issues of informer privilege by
way of
in camera
hearings in the absence of the appellants. She
heard the Crowns claim of informer privilege in accordance with
R. v. Basi
,
2009 SCC 52, and
Named Person v. Vancouver Sun
,
2007 SCC 43
. At the first stage,
the judge ruled that E5 was a confidential informant with a subsisting
informer privilege. At the second stage, she dealt with the consequences
of the privilege.

[68]

[Paragraph removed.]

[69]

While it was believed that the
in camera
proceedings
were still ongoing, Mr. Johnston filed an application for an order
that he be permitted to attend and participate in the hearings and that he be
given a report about what was occurring in the hearings. The
in camera
proceedings had actually completed before this application was filed, and the
trial judge released her ruling approximately two weeks later, with
the result that she never dealt with the application (except indirectly by issuing
her written reasons dated September 20, 2013, confirming that
s. 650 did not prevent the proceedings from being held
in camera
in the absence of the accused).

[70]

The trial judge issued two versions of her rulings. In the
published version, indexed as 2013 BCSC 1526, the judge briefly
explained that Person X could not be called by the Crown due to trial
fairness concerns. [Sentence removed.]

[71]

[Paragraph removed.]

[72]

[Paragraph removed.]

[73]

On appeal, the appellants do not argue that s. 650 gave them
a right to be present at what was described in
Basi
as the
first stage to determine whether an informer privilege exists. Rather,
they argue that it was a violation of s. 650 to exclude them from the next
stage, at which the judge addressed the consequences of the privilege, which in
this case included a consideration of prohibiting
Person Xs evidence.

[74]

The appellants say the main purposes of s. 650, as
articulated in
R. v. Hertrich
(1982), 67 C.C.C. (2d) 510
(Ont. C.A.), leave to appeal refd [1982] 2 S.C.R. x, are to
enable an accused to be able to make full answer and defence to the
charges and to bring transparency and the appearance of fairness to
the proceedings. Citing
Named Person
at paras. 5051, the
appellants contend that at the second stage they should have been given
standing to present meaningful submissions on how the informer privilege
could be protected with minimal effect on their vital interests. They say
the approach taken by the trial judge was incompatible with s. 650
and irreconcilable with their fair trial rights. They say their
vital interests are at stake, and there is no obligation on them to show
prejudice.

[75]

Before turning to
Named Person
and
Basi
, it is
useful to summarize the characteristics of informer privilege as discussed
by the Supreme Court of Canada in
R. v. Leipert
,
[1997] 1 S.C.R. 281. Informer privilege prevents the disclosure of
information which would tend to identify the informant, and it was developed to
protect people who assist law enforcement and to encourage others to
assist:
Leipert at
para. 9. The privilege is of fundamental
importance to the workings of the criminal justice system:
Leipert
at
para. 10. Although the privilege belongs to the Crown, it cannot be
waived without the informants consent, who must be properly informed of the
consequences of the waiver:
Leipert
at para. 15;
Named Person
at
para. 25. With one exception, the privilege is absolute, and the
police and courts are bound to give effect to it without balancing other
interests against it:
Leipert at
paras. 1214. The one exception,
known as innocence at stake, requires the identity of the informant
to be disclosed when it is necessary to demonstrate the innocence of the
accused:
Leipert at
para. 21.

[76]

Both
Named Person
and
Basi
involved a
situation in which the court was determining whether
informer privilege existed. In
Named Person
, after a person
represented to the judge that he was a confidential police informant,
the judge invited counsel for media groups to a hearing and subsequently
ordered that those counsel could review documents prepared by an
amicus curiae
upon giving undertakings of confidentiality.

[77]

In allowing the appeal of the person claiming informer privilege,
the Supreme Court of Canada held that the judge had made three errors. The
judge should not have appointed the
amicus curiae
because the
determination of the legal test was the judges responsibility. The
judge should not have given notice to selected media counsel. The judge
should have proceeded
in camera
to determine whether the privilege
applied and should not have made an order allowing media counsel to review
documents which were privileged.

[78]

Other than making the point that the
Amici
is not a
substitute for defence counsel as a result of the lack of a solicitor‑client privilege,
the appellants do not assert it was an error for the trial judge to appoint an
amicus curiae
in this case. Indeed, the appointment of the
Amici
was made on their
application. In
Named Person
, it was found to be an error for the judge
to have appointed an
amicus curiae
because a legal determination
was delegated to the
amicus
, although the Court acknowledged that it may
be permissible to appoint an
amicus curiae
in some cases. As
discussed above, the function of the
Amici
in this case was not the
traditional role of an
amicus curiae
to assist as a friend of the
court. The trial judge appointed the
Amici
to provide an
adversarial context; in other words, the
Amici
was instructed to
take an adversarial position in support of the appellants interests.
This served to ameliorate the absence of the appellants and their counsel
from the
in camera
proceedings.

[79]

The appellants rely on passages from
Named Person
in
which the Court discussed how a judge should proceed once the existence of
informer privilege has been established. At para. 50,
Justice Bastarache, writing for the majority, stated that, while
the judge must not violate the privilege, he or she should protect
and promote the values of the open court principle. At para. 51,
he said the following:

[51]       Restricted
disclosure will of course be necessary to protect the privileged information,
but the protection of the open court principle demands that all information
necessary to ensure that meaningful submissions, which can be disclosed without
breaching the privilege, ought to be disclosed. Therefore, standing may be
given at this stage to individuals or organizations who will make submissions
regarding the importance of ensuring that the informer privilege not be
overextended and the way in which that can be accomplished in the context of
the case.

The appellants complain they were not given the opportunity
to make meaningful submissions on how the informer privilege could be
protected with minimal effect on their interest.

[80]

The appellants point would probably be persuasive in cases where
meaningful submissions could be made without breaching the informants
privilege. However, this was a very unusual case in which the trial judge
took the extraordinary step of excluding the entirety of
Person Xs evidence in order to avoid a breach of the privilege. [Sentence
removed.] The above comments of Bastarache J. about the
open court principle were subject to the overriding qualification
that the court cannot release information tending to identify the
confidential informant. In the unique circumstances of this case, it is
our view that the trial judge could not have disclosed any information to
enable the appellants to have made meaningful submissions without
breaching the privilege.

[81]

In
Basi
, the judge ordered that defence counsel
could participate in an
in camera
hearing to determine the validity
of a claim of informer privilege as long as they gave undertakings of
confidentiality. The judge based her decision both on the common law of
privilege and s. 650 of the
Criminal Code
. The Crown then
invoked s. 37 of the
Canada Evidence Act
, which provides
for non‑disclosure where a public interest is at stake. The judge subsequently
affirmed her decision. The invocation of s. 37 gave the Crown an
immediate right of appeal.

[82]

In allowing an appeal from the judges order, the
Supreme Court of Canada ruled that the judge erred in
permitting defence counsel to hear testimony that would tend to reveal the
identity of the putative informant at the first stage hearing:
Basi
at para. 44. The Court held that the right to make full answer
and defence does not trigger an exception to informer privilege, and the
only exception to the privilege arises when innocence is at stake:
Basi
at
para. 43.

[83]

The Court addressed the fact that the judge had relied upon
s. 650 in making her order. It first pointed out that an application under
s. 37 of the
Canada Evidence Act
is not caught by s. 650:
Basi
at para. 50. It then went on to point out that the Crown was
not relying on the redacted portions of the documents to prove guilt of
the accused:
Basi
at para. 51.

[84]

As it did in
Named Person
, the Court commented on the
need for trial judges to adopt all reasonable measures to permit defence
counsel to make meaningful submissions and stated that trial judges have
broad discretion to craft appropriate procedures:
Basi
at para. 55.
As stated above, this obligation is subject to the overriding qualification that
trial judges cannot do anything that would breach the privilege.

[85]

The Court also commented that fairness may require
trial judges to provide the defence with redacted or summarized versions
of the evidence and that trial judges may appoint an
amicus curiae
in particularly difficult cases:
Basi
at para. 57. In this
case, the trial judge did appoint an
amicus curiae
, and she could
not have disclosed any information about the evidence heard during the
in
camera
proceedings without breaching the privilege.

[86]

The submissions made by the appellants are similar to the
arguments made in
R. v. Lucas
, 2014 ONCA 561, leave
to appeal refd (2015), [2014] S.C.C.A. Nos. 460, 461. In that case,
the trial judge held an
ex parte
,
in camera
hearing
to deal with the Crowns claim of informer privilege in respect of
statements contained in an information to obtain a
wiretap authorization. The appellants argued that the judge erred in
relying on
Named Person
as authority for conducting an
ex parte
,
in camera
hearing because
Named Person
did not involve
the exclusion of the accused from the hearing.

[87]

Relying on
Basi
, the
Ontario Court of Appeal in
Lucas
held that the appellants
had no right to attend the
in camera
hearing. The Court
pointed out that
Basi
did not turn on the Crowns invocation of s. 37
of the
Canada Evidence Act
because the conclusion in that case
was premised on the need to protect the identity of the confidential
informants:
Lucas
at para. 63.

[88]

The Court in
Lucas
also rejected the
appellants alternate argument that they had the right to make submissions
about the procedure to be followed in the hearing. The Court pointed out
that the decision in
Basi
provided that trial judges have broad
discretion to craft procedures to safeguard the privilege and to protect the interests
of the accused:
Lucas
at para. 66. The Court held that the
provision of a redacted transcript of the hearing being provided to the
appellants counsel was sufficient to safeguard the interests of the
appellants:
Lucas
at paras. 67, 69. In the present case, the
appointment of the
Amici
in an adversarial role was sufficient, in
our view, to safeguard the interests of the appellants.

[89]

Finally, the appellants argue in reply that
Named Person
and
Basi
both involved the first stage of determining the existence
of informer privilege and that there is a balancing of
competing rights at the second stage of determining the consequences
of the privilege. In that regard, they point to the comment at para. 53 of
Basi
that the accused should be excluded
only to the necessary extent.

[90]

As discussed above, informer privilege is absolute, subject
only to the innocence at stake exception. The absolute nature
of the privilege applies as equally at the second stage of a
Basi
hearing
as it does at the first stage. There can be no balancing of interests that
results in a breach of the privilege. While protecting the
privilege, the court has a broad discretion to take measures to safeguard
the interests of the accused. In the present case, the trial judge
appointed the
Amici
to safeguard the appellants interests. We are
satisfied that she could not have taken any other meaningful steps without
jeopardizing the privilege.

[91]

We do not give effect to this ground of appeal.

Did the Trial Judge Err in Her Assessment of the
Credibility of Person Y and K.M.?

[92]

There were four witnesses at trial who were considered to be
witnesses of disreputable character (commonly referred to as
Vetrovec
witnesses),
Person Y, K.M., D.Y. and Mr. Le. After the judge reviewed the
evidence generally in the Trial Reasons, she turned to her assessment of
the unsavoury witnesses. In the result, she accepted most of the evidence
of Person Y, K.M. and D.Y., but rejected the evidence of Mr. Le in
respect of admissions allegedly made to him by each of the appellants. The
appellants assert that the judge erred in her application of the
Vetrovec
principles
with respect to Person Y and K.M.

[93]

The trial judge began her discussion of the credibility of the
unsavoury witnesses at para. 463 of the Trial Reasons by quoting the
following summary of the applicable
Vetrovec
principles from
R. v. Roks
,
2011 ONCA 526, as adopted by this Court in
R. v. Khan
,
2011 BCCA 382 at para. 43:

[63]
Among the essential elements of
a
Vetrovec
caution is an instruction about the essential
characteristics of confirmatory evidence. Jurors are to be told that, in
determining the veracity of the suspect evidence, they should look for evidence
from another source tending to show that the untrustworthy witness is telling
the truth about the guilt of the accused:  [
R. v. Khela
,
[2009] 1 S.C.R. 104], at para.
37;
R. v. Kehler
,
[2004] 1 S.C.R. 328, at paras. 17‑19;
R. v. Sauvé
(2004),
182 C.C.C. (3d) 321 (Ont. C.A.), at para.
82, leave to appeal
refused, [2005] 1 S.C.R. xv. The trier of fact is to look for
confirmation from some other source (the independence requirement) that the
suspect witness is telling the truth in some part of his story that goes to
show that the accused committed the offence charged (the implicative quality or
materiality requirement):
Kehler
, at para. 19;
R. v. Vetrovec
,
[1982] 1 S.C.R. 811, at p. 829.

[64]      The
independence
requirement
insists that to be confirmatory, evidence must
not
be
tainted by connection to the
Vetrovec
witness:
Khela
,
at para. 39.

[65]      To satisfy the
materiality
requirement,
confirmatory evidence need
not
implicate the accused:
Khela
,
at paras. 40‑41;
Kehler
, at para. 16. The
materiality requirement is met where the confirmatory evidence, in the context
of the case as a whole, gives comfort to the trier of fact that the
Vetrovec
witness can be trusted in his or her
assertion
that the
accused is the person who committed the offence:
Khela
, at para. 42;
Vetrovec
, at p. 833. Where the only issue in dispute is whether the
accused committed the offence, to be confirmatory, evidence must comfort the
trier of fact that the
Vetrovec
witness is telling the
truth
in that regard
before convicting on the basis of
the
Vetrovec
witness evidence:
Khela,
at para. 43.

[66]      It is worth reminder
that a trier of fact is entitled to convict on the evidence of a
Vetrovec
witness
in the absence of confirmatory evidence where the trier of fact, cautioned
about the danger of doing so, is satisfied that the witness is telling the
truth:
Khela
, at para. 37;
Kehler
, at para. 22;
Sauvé
, at para. 82.

[Italic
emphasis in original.]

The appellants do not take issue with the correctness of any
of these principles, but contend that the judge did not apply them properly.

[94]

In assessing the credibility of Person Y, the trial judge
began by setting out the features that Mr. Johnston asserted made
Person Y an untrustworthy witness. Two of those features involved
Person Ys motive to work with police: to exact revenge against Mr. Bacon;
and to receive benefits from the police in an amount which ultimately exceeded
$1.3 million.

[95]

The trial judge then reviewed the evidence relating to
Person Y and his testimony. At para. 478, she stated that
Person Y could have easily implicated one or both of the appellants
without contradiction but did not do so. At para. 479, she found that
Person Y had no motive to falsify his evidence. She concluded her
assessment as follows:

[481]

In my view, Person Ys actions do speak for him. His
actions answer many of the issues raised by Mr. Johnston in challenging
Person Ys credibility. Considering the evidence of Person Y as a
whole, as well as the circumstances that have brought him before the Court, I
am satisfied that his intention was to tell a true story to the Court. I would
note that even Mr. Haevischer argues that Person Ys shortcomings
relate more to his reliability than credibility and that the Court ought not to
reject his evidence in total.
Importantly, Person Ys evidence is
corroborated in many respects by independent evidence, and I have accepted it
on many of its essential points
.

[Emphasis added.]

[96]

The trial judge then conducted a similar assessment of K.M.s
trustworthiness. At para. 504, she referred to the attempt by the defence
to paint a picture of K.M. as a jilted girlfriend seeking revenge and a
person trying to save her own skin by falsely implicating the accused. The
judge commented that there was no apparent reason why K.M. would wish to
falsely implicate Mr. Johnston.

[97]

At para. 505, the judge dealt with the
defence submission that K.M. was lying to protect herself, and the judge
asked the rhetorical question of why K.M.s evidence did not implicate either
accused in a more direct way. The judge observed that K.M. could have
significantly implicated both accused without danger of contradiction.

[98]

The trial judge concluded her assessment of K.M.s
trustworthiness as follows:

[508]    As with
Person Y, there are areas of K.M.s evidence with respect to which she is
honestly mistaken, or where her memory was unclear. However, many key aspects
of her evidence are in accordance with the preponderance of probabilities in
this case.
Further, there is evidence from other sources tending to show
that K.M. is telling the truth in the material aspects of her testimony.

[Emphasis added.]

[99]

The appellants concede that it is possible for a trial judge
to accept the evidence of an unsavoury witness without finding
confirmatory evidence:
Roks
at para. 66. However, they say the
trial judge accepted the material aspects of the evidence of
Person Y and K.M. on the basis that there was
confirmatory evidence when there was none.

[100]

The appellants do not assert that the judge erred because she did
not identify the specific confirmatory evidence to which she referred in paras. 481 and 508
of the Trial Reasons. However, they maintain that there was no such
confirmatory evidence and that this amounts to an error in law
despite the fact that it was open to the judge to accept the evidence of
Person Y and K.M. in the absence of confirmatory evidence. We
need not decide whether this would amount to an error in law because we are
satisfied that there were at least two pieces of confirmatory evidence in
respect of the testimony of each of Person Y and K.M.

[101]

It is not necessary for the confirmatory evidence to corroborate
the witnesss evidence in every respect:
R. v. Chenier
(2006), 205 C.C.C. (3d) 333 at 350 (Ont. C.A.). As
discussed in para. 65 of
Roks
(quoted above), evidence need
not implicate the accused in order to be confirmatory. However, it must have
materiality, a concept which the Supreme Court of Canada noted
at para. 40 of
R. v. Khela
, 2009 SCC 4, can be
a difficult one. To be material, the confirmatory evidence must be capable of
restoring the triers faith in relevant aspects of the witnesss account:
Khela
at para. 43.

[102]

The most material evidence confirming
Person Ys testimony relates to his evidence that, at the meeting at
the Korean restaurant on the day of the killings, he gave Person X
the Glock gun he had confiscated from Mr. Lal. The independent
confirmatory evidence was that the gun was found at the scene of the killings
with Person Ys DNA on it. The police did not reveal this fact to
Person Y until after he told them that he had given the gun to
Person X: Trial Reasons at para. 236.

[103]

Other confirmatory evidence relates to the testimony of
Person Y about the admissions made to him by Mr. Johnston on the
evening of the killings. He testified that the conversation took
place in Mr. Bacons car outside of the apartment building in
which Person X lived. The confirmatory evidence was that the
RCMP surveillance placed Mr. Bacons car in that parking lot at
the time. In addition, cell phone records were consistent with Mr. Bacon,
Mr. Johnston, Person X and Person Y being in the area at
the time.

[104]

The appellants argue there was no confirmatory evidence of
Person Ys testimony in this regard because it is not supported by
independent evidence. They point to the facts that the police did not see
anyone get into Mr. Bacons car except immediately prior to its
departure and that the police did not see Mr. Johnstons vehicle even
though it was on their list of targeted vehicles. However, the trial judge
found it was entirely possible for the exchange between Person Y and Mr. Johnston
to have occurred before the police set up their surveillance, and she accepted
Person Ys evidence about the encounter: Trial Reasons at paras. 419,
425. The appellants are simply repeating arguments they made at trial and, in
the absence of palpable and overriding error (which is not
alleged), the findings of fact of the trial judge are owed
deference. These arguments do not detract from the independent
confirmatory evidence that Mr. Bacons car was in the location
where Person Y testified he had the encounter with Mr. Johnston and
that cell phone records are consistent with them being in the area.

[105]

There was also confirmatory evidence of at least
two aspects of K.M.s testimony. The first was her testimony that she
helped Mr. Johnston and Person X clean guns and bullets with Windex
and paper towels in the living room of her and Mr. Haevischers suite
at The Stanley on the day of the killings. She and Mr. Haevischer did
not return to the suite after they left it on the evening of the killings, and
the confirmatory evidence of K.M.s testimony was that the police searched
the suite several days after the killings and found two rolls of
paper towels on the living room table and a bottle of Windex on
the kitchen counter: Trial Reasons at para. 283.

[106]

The second aspect was K.M.s testimony that, after Mr. Haevischer
and Mr. Johnston returned to The Stanley suite on the afternoon
of the killings, she and Mr. Haevischers brother took a laundry bag
containing cell phones, clothing and shoes to a location in Surrey and burned
the laundry bag and the contents of the bag. Confirmation of this
testimony was provided in part by The Stanley CCTV video, which
captured K.M. and Mr. Haevischers brother leaving with a
large cloth bag at approximately 4:35 p.m. and returning at
approximately 6:40 p.m. It was further confirmed by the evidence of a
police officer who accompanied K.M. in April 2009 to the
location where she said the things had been burned. The officer testified that
the area was charred and showed signs of burning: Trial Reasons at para. 359.

[107]

In addition to claiming that the trial judge erroneously applied
the
Vetrovec
principles to the credibility of Person Y and K.M.,
the appellants say the judge made two other errors in assessing the credibility
of Person Y and K.M. They submit the judge erroneously enhanced
the credibility of both Person Y and K.M. by finding that they
had no motive to lie and that they did not embellish their evidence
when they could have done so without contradiction.

[108]

With
respect to the lack of motive to lie, the appellants cite
R. v. R.W.B.
(1993), 24 B.C.A.C. 1, and
R. v. Batte
(2000),
145 C.C.C. (3d) 449 (Ont. C.A.). In
R.W.B.
,
Justice Rowles said the following:

[28]      It does not logically
follow that because there is no apparent reason for a witness to lie, the
witness must be telling the truth. Whether a witness has a motive to lie is one
factor which may be considered in assessing the credibility of a witness, but
it is not the only factor to be considered.

Justice Doherty
made similar comments in
Batte
:

[121]    What must be avoided in
instructing a jury is any suggestion that the accused has an onus to
demonstrate that a complainant has a motive to fabricate evidence, that the
absence of a demonstrated motive to fabricate necessarily means that there was
no motive, or finally, that the absence of a motive to fabricate conclusively
establishes that a witness is telling the truth. The presence or absence of a
motive to fabricate evidence is only one factor to be considered in assessing
credibility.

[109]

In our view, the trial judge did not conclude that
Person Y and K.M. were credible solely because they did not have
a motive to lie. At most, it was one factor she took into account in assessing
their credibility. More importantly, however, the reason that the judge
addressed the issue of motive was that the appellants had taken the position at
trial that Person Y and K.M. were untrustworthy because they did
have a motive to lie. It was perfectly appropriate for the judge to address
something that the appellants had argued was a detraction from the credibility
of Person Y and K.M.

[110]

With
respect to the lack of embellishment, the appellants rely on the following
paragraph from
R. v. Kiss
, 2018 ONCA 184:

[52]      The trial judge would
have erred if he treated the absence of embellishment as adding to the
credibility of [the complainants] testimony. It is wrong to reason that
because an allegation could have been worse, it is more likely to be
true:
R. v. G.(G.)
(1997), 115 C.C.C. (3d) 1, at p. 10
(Ont. C.A.), [1997] O.J. No. 1501;
R. v. L.L.
, 2014
ONCA 892, at para. 2;
R. v. R.A.G.
, 2008 ONCA 829, at para. 20.
While identified exaggeration or embellishment is evidence of incredibility,
the apparent absence of exaggeration or embellishment is not proof of
credibility. This is because both truthful and dishonest accounts can appear to
be without exaggeration or embellishment.

[111]

The appellants say it was an error in law for the trial judge to
have bolstered the credibility of Person Y and K.M. on the basis
of a lack of embellishment in their testimony. Embellishment can
serve as evidence of a lack of credibility, but a lack of
embellishment serves no evidentiary purpose.

[112]

In
our opinion,
Kiss
does not stand for the proposition that a
trial judge necessarily errs by making a comment about
lack of embellishment when discussing the
credibility of a witness. This is demonstrated by the
two paragraphs of
Kiss
following para. 52:

[53]      On the other hand, in my view, there is nothing
wrong with a trial judge noting that things that might have diminished
credibility are absent. As long as it is not being used as a makeweight in
favour of credibility, it is no more inappropriate to note that a witness has
not embellished their evidence than it is to observe that there have been no
material inconsistencies in a witness evidence, or that the evidence stood up
to cross‑examination. These are not factors that show credibility. They
are, however, explanations for why a witness has not been found to be
incredible.

[54]      Trial judges are
presumed to know the law. In this case, there is no basis for apprehending that
the trial judge inappropriately added weight to [the complainants]
credibility. In my view, on a fair reading of the reasons for judgment, the
trial judge was simply recording that [the complainants] evidence did not
suffer from a problem of exaggeration or embellishment that would have
diminished its weight. He did not err on this ground.

[113]

On a reading of the Trial Reasons as a whole, it is our view
that the judge did not use the lack of embellishment as a makeweight
in favour of the credibility of Person Y and K.M. There were
numerous other factors that she took into account when assessing their
credibility. As in
Kiss
, the judge was simply noting that their
credibility was not diminished by the existence of embellishment in their
testimony. In the case of K.M., the judge made her comments about
lack of embellishment in addressing the argument of
defence counsel that K.M. was falsely implicating the accused in order to
save her own skin.

[114]

This ground of appeal cannot succeed because the
appellants have failed to show that the trial judge made any errors in her
assessment of the credibility of Person Y and K.M.

Did the Trial Judge Err in Her Assessment of the
Circumstantial Evidence Against Mr. Haevischer?

(a) Standard of Review

[115]

The appellant Haevischer says the judge committed three legal
errors in her treatment of circumstantial evidence:

a)

wrongly
requiring that inferences consistent with innocence be based on proven facts,
contrary to the law as described in
R. v. Villaroman
, 2016 SCC 33 at para. 35;

b)

relying on
evidence of post‑offence conduct to assess his degree of culpability,
when the evidence did not particularly speak to culpability; and

c)

bridging
gaps in the evidence rather than recognizing the circumstantial evidence fell
short of supporting a finding beyond a reasonable doubt that Mr. Haevischer
engaged in conspiracy to murder Mr. Lal.

[116]

The
Crown urges upon us the deferential standard of review described in
R. v.
Paquette
, 2019 BCCA 396 at para. 23;
R. v. R.S.B.
, 2020 BCCA 33
at para. 10;
R. v. Widdifield
, 2018 BCCA 62 at para. 30; and
described as follows in
R. v. Bransford
, 2019 BCCA 408:

[31]      An appeal from
conviction in a circumstantial case that seeks to challenge the inferences
drawn (or rejected) by a trial judge attracts a deferential standard of review.
It is fundamentally for the trier [of] fact to decide if any proposed alternative
way of looking at the case is reasonable enough to raise a doubt:
Villaroman
at para. 56, citing
R. v. Dipnarine
, 2014 ABCA 328 at para. 22.
As a result, the question on appeal is whether the trier of fact, acting
judicially, could reasonably be satisfied that the accuseds guilt was the only
reasonable conclusion available on the totality of the evidence:
Villaroman
at para. 55, citing
R. v. Yebes
, [1987] 2 S.C.R. 168.

[117]

Similarly,
in
R. v. O.V.
, 2015 BCCA 449, this Court set out the deferential standard
of review for inferences made by trial judges:

[47]      As held
in
R. v. Newman,
2015 BCCA 237, [reversed on other grounds:
2016 SCC 7] inferences made by trial judges are not to be disturbed unless they
are clearly wrong, unsupported by the evidence or otherwise unreasonable:

[65]      I must keep in mind the limited scope of appellate
review that applies with respect to the inference-drawing process. As Mr. Justice Fish stated
in
R. v. Clark
, 2005 SCC 2 at para. 9, [2005]
1 S.C.R. 6, Appellate courts may not interfere with the findings of fact
made and the factual inferences drawn by the trial judge, unless they are
clearly wrong, unsupported by the evidence or otherwise unreasonable. Also
apt is
R. v. Damin
, 2012 BCCA 504 at para. 38, 331
B.C.A.C. 101, wherein Madam Justice Smith indicated, quoting
Housen
v. Nikolaisen
, 2002 SCC 33 at para. 23, [2002] 2 S.C.R.
235, that inferences drawn by a trial judge from accepted or found facts can be
interfered with on appeal only where the inference-drawing process itself is
palpably in error.

[118]

The Crown notes the appellant, Mr. Haevischer, avoids any
reference to the standard of review. He does not assail findings of fact, and
he does not address whether the inferences drawn were reasonable. It says a
reviewing court should assess inferences drawn from circumstantial evidence by
considering the evidence as a whole and should refrain from taking a piecemeal
approach:
R. v. Duong
, 2019 BCCA 299 at para. 64;
R. v.
Tahirsylaj
, 2015 BCCA 7 at paras. 2930, 38. A fair reading
of the judges reasons as a whole, the Crown submits, does not support the
position the judge lost sight of the proper process of inference‑drawing.

[119]

The Crown says the judge was fully aware of the alternative
inferences proffered by the appellant, specifically the contention he was
unaware the plan was to murder Mr. Lal. She clearly and emphatically
rejected such inferences, and it is not open to this Court to revive them:
R.
v. Robinson
, 2017 BCCA 6 at para. 38, affd 2017 SCC 52;
R.
v. De Aquino
, 2017 BCCA 36 at para. 33;
Duong
at para. 65.

[120]

In
Robinson
, Justice Newbury wrote:

[38]       [T]his
courts task is to determine whether the trier of fact, acting judicially,
could reasonably be satisfied that the accuseds guilt was the only reasonable
inference available on the totality of the evidence. (
Villaroman
, at para. 55.)
This does not constitute a different standard of review for circumstantial
cases; but it does provide finders of fact and appellate courts with an
alternate formulation by which to assess such casesin the words of Professor
Berger, a kind of inferential litmus test. (At 71.) In circumstantial
cases,
as in non-circumstantial cases
, the appellate court may not
interfere if the verdict is one that a properly instructed jury could
reasonably have rendered. (
Yebes
, at 186.) It is generally the task
of the finder of fact to draw the line between reasonable doubt and
speculation. (
Villaroman
, at para. 71.) It is not open to a court
of appeal to conceive of inferences or explanations that are not reasonable
possibilities; nor to attempt to revive evidence or inferences that the trial
judge reasonably rejected. (
Grover
, at para. 2, quoting from the
reasons of Jackson J.A. in the Court of Appeal.) If an appellant is to
succeed, an inference other than guilt must be reasonable given the evidence
and the absence of evidence, assessed logically, and in light of human
experience and common sense. (
Villaroman
, at para. 36.)

[121]

The Crown contends the words of this Court in
R. v. Vickers
,
2016 BCCA 98
at para. 22, accurately describe the appeal: the substance of this
appeal is better seen as an argument that the verdict is unreasonable because
the evidence left open reasonable inferences that were inconsistent with
guilt. See also
R. v. Dipnarine
, 2014 ABCA 328 at para. 2.

[122]

Further, the Crown says it is open to us to consider that Mr. Haevischer
did not testify in his defence in assessing the reasonableness of the verdict:
Tahirsylaj
at para. 40
; R. v. Jir
, 2010 BCCA 497 at para. 39.

(b) Did the Judge Err in
Her Handling of Inferences Inconsistent with Guilt?

(i) Positions of the Parties

[123]

The
appellant Haevischer emphasises the trial judges description of the inference‑drawing
process at paras. 58891 of the Trial Reasons, particularly the concluding
paragraph:

[591]    The line between
inference and speculation can be a fine one, and where evidence is
circumstantial it is critical to distinguish between the two. D. Watt,
Watts
Manual of Criminal Evidence
(Toronto: Carswell, 2006) at 95 states:

Inference is
a deduction of fact that may logically and reasonably be drawn from another
fact or group of facts found or otherwise established in the proceedings. There
can be no inference without objective facts from which to infer the facts that
a party seeks to establish.
If there are no positive proven facts from which
an inference may be drawn, there can be no inference, only impermissible
speculation and conjecture
.

[Emphasis added.]

[124]

He
says the passage cited from Justice Watt writing extrajudicially in the 2006
edition of
Watts Manual of Criminal Evidence
cannot be reconciled with
the 2016 judgment in
Villaroman
and, in particular, the following
passage from the judgment of Justice Cromwell:

[35]      At one time, it was
said that in circumstantial cases, conclusions alternative to the guilt of the
accused must be rational conclusions based on inferences drawn from proven
facts: see
R. v. McIver
, [1965] 2 O.R. 475 (C.A.)  However,
that view is no longer accepted. In assessing circumstantial evidence,
inferences consistent with innocence do not have to arise from proven facts:
R.
v. Khela
, 2009 SCC 4  at para. 58 ...
Requiring
proven facts to support explanations other than guilt wrongly puts an obligation
on an accused to prove facts and is contrary to the rule that whether there is
a reasonable doubt is assessed by considering all of the evidence.
The
issue with respect to circumstantial evidence is the range of reasonable
inferences that can be drawn from it. If there are reasonable inferences other
than guilt, the Crowns evidence does not meet the standard of proof beyond a
reasonable doubt.

[Emphasis added.]

[125]

He contends Watt J.A.s statement of principle does not
distinguish between inferences consistent with guilt and inferences
inconsistent with guilt; the author clearly treats them both as requiring
positive proven facts. The trial judge, by adopting the statement without
qualification, was misguided and erred in her assessment of the circumstantial
evidence.

[126]

In
response, the Crown says the appellant mistakenly assumes the passage was cited
in reference to inferences inconsistent with guilt. The Crown says the
appellant misreads the text; the cited passage is still included in current
editions of Watt J.A.s text, together with references to
Villaroman
;
and the rule, as stated, is inferences
consistent with guilt
must be
based on proven facts. The Crown says the trial judge referred to the passage
in question during her discussion of the Crowns burden to prove the conspiracy
count beyond a reasonable doubt and in that respect, it is apt. It is a
reference of the sort referred to at para. 49 of
Villaroman
:

[M]ost of the references to the effect that inferences
must arise from evidence concern the
Crowns
burden to prove guilt
beyond a reasonable doubt.
Of course, there is no error in this regard as
the Crown cannot rely on a gap in the evidence to prove an element of the
offence
.

[Italic emphasis in original;
underline emphasis added.]

[127]

In order to succeed on this ground, the Crown says the appellant
must identify inferences consistent with innocence that were not drawn because
of the error alleged:
R. v. Russell
, 2020 BCCA 108 at para 44 (also
indexed as
R. v. Dingwall
), review by the Supreme Court of Canada
pending. The Crown says the judge did not refuse to draw the inferences
proposed by the appellant because they were not supported by proven facts. Rather,
she failed to draw them because they were so resoundingly negatived by the
facts.

(ii) Discussion

[128]

Watts text is cited in the course of the trial judges
consideration of Count 7, the conspiracy charge (Trial Reasons at paras. 57691),
where there is a summary review of the jurisprudence. The focus of the trial
judge at this point in the reasons is the extent to which a concerted purpose,
such as to entitle her to find the existence of the unlawful agreement, could
be inferred. The case against the accused was circumstantial, but the judge
noted conspiracies are often proved by circumstantial evidence. She
specifically identified the following propositions in the cases to which she
referred:

a)

membership in a
conspiracy may be inferred from evidence of conduct that assists the unlawful
object;

b)

any degree of
assistance in the furtherance of the unlawful object can lead to a finding of
membership;

c)

the
cumulative effect of several isolated doings must be interpreted and their
cumulative effect must be properly estimated in the light of all surrounding
circumstances;

d)

evidence of
association between conspirators can be some evidence;

e)

an agreement may
be established by inference from the manner in which the substantive offence
was committed;

f)

it
is not necessary that all members of a conspiracy play, or intend to play,
equal roles in the ultimate commission of the unlawful object; and

g)

members in a
conspiracy need not personally commit, or intend to commit, the offence that each
has agreed should be committed.

[129]

All of these propositions relate to the manner in which a
conspiracy may be proved. None relates to inferences inconsistent with guilt.

[130]

The
trial judge then turned to the basis upon which an inference in favour of the
Crown could properly be drawn:

[588]    Where the Crowns
case against an accused is based on circumstantial evidence, the trier of fact
must be satisfied that the only rational inference is the guilt of the accused.
In
R. v. Griffin
, 2009 SCC 28, the Supreme Court of Canada stated the
proposition this way at para. 33:

The essential component of an instruction on circumstantial
evidence is to instill in the jury that in order to convict, they must be
satisfied beyond a reasonable doubt that the only rational inference that can
be drawn from the circumstantial evidence is that the accused is guilty.

[131]

The
only reference to inferences inconsistent with guilt in this discussion of the
law is at para. 589 of the Trial Reasons, where the judge quoted the
following passage from
R. v. Kresko
, 2013 ONSC 1159 at para. 32:

The strength of an inference
to be drawn from circumstantial evidence is determined by the probative value
of the underlying evidence; see
R. v. Handy
, [2002] 2 S.C.R. 908, at para. 26.
When assessing the strength of an inference the trier must also consider any
alternative explanation or contradiction, and
the accused may submit any
other plausible theory
: see
Fontaine v. Loewen Estate
, [1998] 1
S.C.R. 424, at para. 33.

[Emphasis added.]

[132]

That
reference to the necessity to consider any other plausible theory submitted
by the accused closely reflects what the Supreme Court of Canada says with
respect to inferences inconsistent with guilt in
Villaroman
:

[37]

When assessing circumstantial evidence, the trier of
fact should consider other plausible theor[ies] and other reasonable
possibilities which are inconsistent with guilt:
R. v. Comba
,
[1938] O.R. 200 (C.A.)
, at pp. 205
and 211
, per Middleton J.A.,
affd
[1938]
S.C.R. 396
;
R. v. Baigent
,
2013 BCCA 28
,
335
B.C.A.C. 11
, at para.
20
;
R. v. Mitchell
, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant
that the Crown thus may need to negative these
reasonable
possibilities,
but certainly does not need to negative every possible conjecture, no matter
how irrational or fanciful, which might be consistent with the innocence of the
accused:
R. v. Bagshaw
,
[1972] S.C.R. 2
, at p. 8
. Other plausible theories or other reasonable
possibilities must be based on logic and experience applied to the evidence or
the absence of evidence, not on speculation.

[133]

In our opinion, it is clear the reference to the necessity of a
factual basis for inferences was adopted by the trial judge only in relation to
inferences consistent with guilt in the Crowns conspiracy case. The judge
correctly instructed herself in that regard. There is no indication in her
discussion of the jurisprudence or the application of principles to the facts
in this case that suggests she erred in her treatment of the circumstantial
evidence.

[134]

Further, as we note below, the trial judge discussed at length
and rejected the inferences inconsistent with guilt now urged upon us by the
appellants.

(c)
Did the Judge Err
in Her Assessment of After‑the‑Fact Conduct?

(i) Positions of the Parties

[135]

The trial judge placed weight upon the after‑the‑fact
conduct described at paras. 34598 of the Trial Reasons, specifically:

a)

the destruction
of evidence (cell phones belonging to the victims and clothing belonging to the
accused);

b)

flight (Mr. Haevischer
and K.M. abandoned their apartment); and

c)

discussions
between and amongst the accused (some of which were recorded).

[136]

At para. 679 of the Trial Reasons, the judge correctly
observed after‑the‑fact conduct has no probative value where it is
equally explained by, or is equally consistent with, two or more offences:
R.
v. White
, 2011 SCC 13 [
White (2011)
].

[137]

When
she addressed the evidence of Mr. Haevischers participation in the
conspiracy to murder Mr. Lal, she said:

[634]    The evidence of events
after the murders only strengthens the logical inference that Mr. Haevischer
was a participant in the conspiracy. Upon his return to his apartment with Mr. Johnston,
Mr. Haevischer boiled the victims cell phones and directed that the
phones, and the clothing he and Mr. Johnston had been wearing, be
destroyed. He told his brother on a whiteboard that people died. He directed
K.M. to pack her things and the two left their apartment at the Stanley, never
to return. Later that evening before it had been reported on the news, Mr. Haevischer
told Windsor Nguyen by whiteboard that six people died. The next day he told
his [Red Scorpions] associates that items connecting him to the crime scene had
been burned. He arranged for the BMW that transported him and his cohorts to
and from the scene to be cleaned and detailed.

[138]

In
addressing the probative value of this evidence in relation to the murder
charge, the judge said:

[704]    Mr. Haevischer
arranged the immediate destruction of the victims cell phones, as well as the
clothing he had been wearing at the time of the murders. This is circumstantial
evidence suggesting that Mr. Haevischer was not only present at the crime
scene but actively involved in the killings. Destruction of the clothing
suggests that Mr. Haevischer knew it might contain blood or other forensic
evidence tying him to the murders. That, in turn, suggests that he was not
standing passively some distance away from the events going on in the suite. It
is a reasonable inference that Mr. Haevischer arranged the destruction of
the evidence to eliminate his detection as one of the perpetrators:
White
at para 42.

[139]

Mr. Haevischer contends the judge misused the evidence of
after‑the‑fact conduct, notwithstanding her correct summary of the
law. He says the conduct in issue was as consistent with his desire to avoid
being placed at the scene of a violent crime as it was with involvement in the
planning or execution of the murders.

[140]

In
R. v. White
, [1998] 2 S.C.R. 72 [
White (1998)
],
Justice Major, addressing the probative value of after‑the‑fact
conduct, said:

[32]       The result will
always turn on the nature of the evidence in question and its relevance to the
real issue in dispute. It is possible to imagine cases in which evidence of
post-offence conduct could logically support a distinction between two levels
of culpability for a single act, or between two offences arising from the same
set of facts. By way of illustration, where the extent of the accuseds flight
or concealment is out of all proportion to the level of culpability admitted,
it might be found to be more consistent with the offence charged. Post-offence
conduct might also be relevant in cases where the accused has admitted to
committing a physical act but asserts that the act was justified in some way;
in those circumstances, an act of flight or concealment might constitute some
evidence from which, along with other evidence, the jury could infer that the
accused was conscious that he or she had committed a culpable act and had not,
for example, acted in self-defence. See
Peavoy
[(1997), 117 C.C.C. (3d)
226 (Ont. C.A.)], at p. 241;
Jacquard
, [[1997] 1 S.C.R. 314],
at p. 348.

[141]

A
decade later, in
White (2011)
, Justice Rothstein said:

[42]       Whether or not a
given instance of post-offence conduct has probative value with respect to the
accuseds level of culpability depends entirely on the specific nature of the
conduct, its relationship to the record as a whole, and the issues raised at
trial. There will undoubtedly be cases where, as a matter of logic and human
experience, certain aspects of the accuseds post-offence conduct support an
inference regarding his level of culpability.

[142]

These judgments make it clear the probative value of evidence of
after‑the‑fact conduct is contextual, and careful consideration
must be given to how such evidence may speak to the accuseds culpability. The
appellant says his after‑the‑fact conduct did not exclusively suggest
he was a party to either conspiracy to murder or murder. He says even if the
evidence suggests he knew the clothing he destroyed might contain blood or other
forensic evidence tying him to the murders (as the trial judge assumed), the
fact he destroyed the clothing did not allow the judge to draw an inference he
was a perpetrator of the murders rather than a perpetrator of manslaughter (as
a party to robbery). Physical proximity to the killings reveals nothing about
the intent required to support a conviction for murder rather than
manslaughter. There was nothing in the post‑offence conduct at issue that
made it out of all proportion to the offence of manslaughter, and which would
thereby allow it to support a conviction for murder.

[143]

The Crown agrees the proper legal treatment of after‑the‑fact
conduct is highly context‑ and fact‑specific. However, it says Mr. Haevischer
misapprehends the use made of the evidence of after‑the‑fact
conduct. The judge did not use the evidence to determine the degree of Mr. Haevischers
culpability but as evidence tending to establish his participation in a
conspiracy, which was an issue at the trial, and as circumstantial evidence of
his proximity to and active involvement in the killings.

[144]

The
Trial Reasons refer to post‑offence conduct in three places. The first is
at para. 634, quoted above but reproduced here for ease of reference:

[634]    The evidence of events
after the murders only strengthens the logical inference that Mr. Haevischer
was a participant in the conspiracy. Upon his return to his apartment with Mr. Johnston,
Mr. Haevischer boiled the victims cell phones and directed that the
phones, and the clothing he and Mr. Johnston had been wearing, be
destroyed. He told his brother on a whiteboard that people died. He directed
K.M. to pack her things and the two left their apartment at the Stanley, never
to return. Later that evening before it had been reported on the news, Mr. Haevischer
told Windsor Nguyen by whiteboard that six people died. The next day he told
his [Red Scorpions] associates that items connecting him to the crime scene had
been burned. He arranged for the BMW that transported him and his cohorts to
and from the scene to be cleaned and detailed.

[145]

The Crown says this reference to post‑offence conduct is
used by the judge to support the inference she has drawn from other evidence. Mr. Haevischers
examination of this paragraph in isolation from this context gives it an
unwarranted significance.

[146]

The
second reference to the post‑offence conduct is found at paras. 67980
of the reasons:

[679]    Post-offence conduct, if admissible, can provide
circumstantial evidence of the culpability of the accused. Evidence of
post-offence conduct must be relevant to a live issue and not subject to any
exclusionary rule. It may also be excluded where its probative value is
outweighed by its prejudicial effect. Such evidence has no probative value
where an accuseds post-offence conduct is equally explained by, or is equally
consistent with, two or more offences. That is to say, where the evidence
cannot logically support an inference of guilt with respect to one crime rather
than another (for example, murder as distinct from manslaughter) then it has no
probative value and should not be admitted:
R. v. White
, 2011 SCC 13.

[680]    Whether or not a given
instance of post-offence conduct has probative value with respect to an
accuseds culpability depends entirely on the specific nature of the conduct,
its relationship to the evidence as a whole, and the issues raised at trial.
There will be cases where, as a matter of logic and human experience, an
accuseds post-offence conduct will support an inference regarding his level of
culpability:
White
at para. 42.

[147]

The Crown says this is an unobjectionable statement of principle
that reflects the judges awareness of the guiding principles.

[148]

The
final reference is at para. 704 of the Trial Reasons:

[704]    Mr. Haevischer
arranged the immediate destruction of the victims cell phones, as well as the
clothing he had been wearing at the time of the murders.
This is
circumstantial evidence suggesting that Mr. Haevischer was not only
present at the crime scene but actively involved in the killings.
Destruction
of the clothing suggests that Mr. Haevischer knew it might contain blood
or other forensic evidence tying him to the murders. That, in turn, suggests
that he was not standing passively some distance away from the events going on
in the suite. It is a reasonable inference that Mr. Haevischer arranged
the destruction of the evidence to eliminate his detection as one of the
perpetrators:
White
at para 42.

[Emphasis added.]

[149]

The Crown says this paragraph is the last piece of an analysis of
Mr. Haevischers culpability for murder, either as a co‑perpetrator
or an aider or abettor. Before referring to the after‑the‑fact
conduct, the judge had rejected as implausible Mr. Haevischers contention
he was never inside suite 1505. She concluded Mr. Haevischer, Mr. Johnston
and Person X were acting with a common purpose to kill Mr. Lal; the
three intruders jointly and actively participated in the murders with the
requisite intent; and there was a shared self‑interest in killing the
other five victims who were witnesses to the murder of Mr. Lal.

(ii) Discussion

[150]

Consideration
of Mr. Haevischers after‑the‑fact conduct followed the
judges recognition, in relation to the conspiracy charge, that she was
required to estimate the cumulative effect of several isolated doings in the
light of all surrounding circumstances. At para. 610, she observed:

[610]     As Moldaver J.
stated in [
R. v. J.F.
, 2013 SCC 12] at para. 52, where a person
with knowledge of the unlawful object does something to further that object,
with the approval of one of the existing conspirators, that is powerful
circumstantial evidence from which membership in the conspiracy can be
inferred. It follows, in my view, that all of the actions of an accused before,
during and after the achievement of the unlawful object, must be considered --
and considered as a whole, not piecemeal -- in order to determine whether the
only logical inference is the accuseds membership in the conspiracy.

[151]

It
was in this light she first considered Mr. Haevischers after‑the‑fact
conduct:

[624]     the jurisprudence
is clear that all of the actions of an accused before, during and after the
achievement of the unlawful object must be considered as a whole in determining
whether the only logical inference is the accuseds membership in the
conspiracy.

[152]

Reviewing that conduct at paras. 62335 of the Trial Reasons,
the judge placed most emphasis upon the events leading up to the day of the
murders and the evidence of what occurred on October 19. We agree with the
Crowns description of the limited weight placed upon the after‑the‑fact
conduct at para. 634 of the Trial Reasons, where the trial judge says that
conduct strengthened the inferences she had drawn.

[153]

Mr. Haevischers after‑the‑fact conduct was also
considered in relation to the murder charge: Trial Reasons at para. 704.

[154]

Again,
however, the evidence of after-the-fact conduct plays a small role in the
analysis. As the Crown notes, before addressing the after‑the‑fact
conduct, the trial judge had found Mr. Haevischer was present in Mr. Lals
apartment at the time of the murders:

[701]     It is not plausible to suggest (as do both
accused) that one of the three [Red Scorpions] associates could -- or would --
stand by and do nothing while the victims in the suite were being kept under
control, unexpected witnesses were arriving, and the risk of yet other
unsuspecting persons stumbling onto the scene remained a significant
possibility.

[702]    The evidence concerning
the timing of events and the scene the killers left behind leaves little doubt
that the three [Red Scorpions] associates jointly and actively participated in
the murders, and did so with the necessary intent.

[155]

As
we have noted, the judge concluded her consideration of the after‑the‑fact
conduct as follows:

[704]     Destruction of
the clothing suggests that Mr. Haevischer knew it might contain blood or
other forensic evidence tying him to the murders. That, in turn, suggests that
he was not standing passively some distance away from the events going on in
the suite. It is a reasonable inference that Mr. Haevischer arranged the
destruction of the evidence to eliminate his detection as one of the
perpetrators:
White
at para 42.

[156]

The concluding reference to
White (2011)
is to the
observation in that case, previously cited by the judge, that there will be
cases where, as a matter of logic and human experience, an accuseds post‑offence
conduct will support an inference regarding his level of culpability.

[157]

The appellant, in our view, is correct in saying his destruction
of his clothing does not support an inference regarding his culpability for murder.
Another reasonable inference might have been drawn: he simply sought to destroy
any evidence that would establish his presence at the killings, including
clothing that might have been seen by those he encountered in the Balmoral
parking lot or recorded on video cameras. Common sense does not suggest the
only explanation for Mr. Haevischers destruction of his clothing was that
it was blood‑stained. While his methodical after‑the‑fact
conduct (like his actions leading up to and at the scene of the murders) was
probative of his involvement in a conspiracy, the same cannot be said in
relation to the murder charges.

[158]

The
question on appeal, however, is not whether each and every inference drawn by
the trial judge is the only inference that could be drawn from the evidence. It
is, rather, as this Court stated in
Duong
, whether the critical
inference essential to guilt was properly drawn:

[64]

In reviewing inferences drawn from circumstantial
evidence, the evidence must be assessed cumulatively and not in a piecemeal
fashion:
R. v. Tahirsylaj
,
2015 BCCA 7

at paras.
29
, 38. Thus, although individual pieces of
circumstantial evidence may be reasonably or rationally explained away, the
ultimate question is whether, on the whole of the evidence, the Crown has
proven that the accuseds guilt is the only reasonable inference:
Tahirsylaj
at para.
38
. Individual items of
evidence are links in the chain of ultimate proof and must not be examined
separately and in isolation: [
R. v. Uhrig
, 2012 ONCA 470]

at para.
13
, citing
R. v. Morin
,
[1988] 2 S.C.R. 346
at
361
.

[159]

In this case, the ultimate question was whether Mr. Haevischer
jointly and actively participated in the murders. The inference he destroyed
evidence after the fact with a view toward concealing that participation was
inessential to the chain of proof. Here, as in
R. v. Feil
, 2012 BCCA 110,
and
R. v. Purchase
, 2015 BCCA 211, the trial judges error is of the
first type described in
White (2011)
: it is an error that appears
significant in isolation but is insignificant in context because it only
related to a minor aspect of the case that could not have had any effect on the
outcome. This type of error is described in
R. v. Alexander
, 2015 BCCA
484 at para. 68, as an error that is harmless on its face or in its
effect.

[160]

In its factum, the Crown urges us to apply the curative proviso
of s. 686(1)(b)(iii) if we find the judge erred in assessing Mr. Haevischers
after‑the‑fact conduct. Disregarding the evidence of after‑the‑fact
conduct in relation to the murder charge, in our view, does not undermine any
inferences crucial to Mr. Haevischers guilt. No substantial wrong or
miscarriage of justice arose from the consideration of that conduct. In our
opinion the curative proviso of s. 686(1)(b)(iii) is applicable.

(d)
Did the Judge Err
by Filling in the Blanks

(i) Positions of the Parties

[161]

The
third error alleged by the appellant Haevischer in relation to the inferences
drawn by the judge is of the sort described by Cromwell J. in
Villaroman
as follows:

[26]       There is a
special concern inherent in the inferential reasoning from circumstantial
evidence. The concern is that the jury may unconsciously fill in the blanks
or bridge gaps in the evidence to support the inference that the Crown invites
it to draw. Baron Alderson referred to this risk in
Hodges Case
[(1838),
2 Lewin 227, 168 E.R. 1136]. He noted the jury may look for  and often
slightly . . . distort the facts to make them fit the inference that they are
invited to draw: p. 1137. Or, as his remarks are recorded in another
report, the danger is that the mind may take a pleasure in adapting
circumstances to one another, and even straining them a little, if need be, to
force them to form parts of one connected whole: W. Wills,
Wills
Principles of Circumstantial Evidence
(7th ed. 1937), at p. 45; cited
by Laskin J. in
John
[
v. The Queen
, [1971] S.C.R. 781],
dissenting but not on this point, at p. 813.

[162]

Mr. Haevischer says the trial judge fell into error by
unconsciously filling in blanks and bridging gaps in the evidence to support
the inference the Crown invited her to draw: Mr. Haevischer was a member
of the conspiracy to murder Mr. Lal.

[163]

The
Crown argued the only rational inference from all of the evidence is that Mr. Haevischer
had been informed of the plan to murder Mr. Lal by the time he arrived at
suite 1505. The judge addressed that critical question by weighing the
following facts at paras. 62527 of the Trial Reasons:

a)

Mr. Haevischer
was a tattooed member of the gang with all of the obligations of loyalty that
entailed;

b)

he had the same
interest in protecting the gangs drug turf and its reputation as did the other
members of the group;

c)

he kept
guns and ammunition in his apartment, and he was involved in acts of violence
incidental to the drug trade;

d)

he had a
significant association with Mr. Johnston, his gang mentor, with whom he
was personally very close, like a brother;

e)

Mr. Johnston
and Person X, key participants in the conspiracy, went to the Stanley to
enlist the help of Mr. Haevischer on the day of the murders, apparently
without any notice to him; and

f)

by
doing so, Mr. Johnston displayed considerable confidence that he would
assist without any hesitation, and Mr. Haevischer did so.

[164]

Mr. Haevischer says some bridging of gaps is necessary to
move from these facts to the inference he was a party to the conspiracy to
murder. He says the simple fact he might have had the same motive to kill Mr. Lal
as Mr. Johnston and Person X is not proof they told him the plan
involved a murder. Proof he had a broad shared motive is not proof the plan to
kill was communicated to him. His significant association with Mr. Johnston
is of no help in answering the question of whether Mr. Johnston told him
of the plan to commit a murder. Finally, it is only by filling in the blanks
that the judge concluded the purpose of the visit was to enlist the help of
Haevischer and Mr. Johnston displayed considerable confidence that Mr. Haevischer
would assist without any hesitation.

[165]

The judge placed weight upon the careful cleaning of guns and
bullets that occurred at Mr. Haevischers apartment and the fact he
changed his clothes and wore gloves as evidence he knew he was being enlisted
to commit a crime involving violence. Mr. Haevischer says the nature of
the activities of the gang was such that he could have been enlisted to commit
all manner of crimes involving guns but not necessarily violence. Only by
bridging gaps and filling in blanks was it possible to conclude the prospect of
violence entailed murder.

[166]

The judge found Mr. Johnston and Person X turned up at Mr. Haevischers
apartment without any apparent notice. There was no evidence from K.M. about
conversation in the apartment. If Mr. Haevischer entered a conspiracy to
commit murder, he must have done so between the time the others arrived at his
apartment and when the trio arrived at the Balmoral. However, there was no
evidence of conversation in the apartment and no evidence of conversation in
the car. An inference of his involvement in a conspiracy can only be drawn from
his actions, and Mr. Haevischer argues they are consistent with a
conspiracy to commit any number of violent offences.

[167]

The judge placed weight upon the fact the plan to rob and murder Mr. Lal
in an apartment building was fraught with risks, including the risk of an
armed standoff. Mr. Haevischer says there was no basis to conclude what
the men anticipated, or what they considered likely to occur. He argues the
judges comments suggest the members of the conspiracy had an agreement to deal
violently with anyone they encountered in apartment 1505. Mr. Haevischer
argues that was not the conspiracy the Crown alleged or attempted to prove.

[168]

The
judge concluded:

[630]     [T]he question is
whether Mr. Johnston would enlist his close friend and associate for such
a venture without telling him what the venture entailed. The suggestion that he
would keep Mr. Haevischer in ignorance of the plan begs the question why Mr. Johnston
and Person X enlisted his help at all. It is difficult to think of any reason
for Mr. Haevischers enlistment other than his assistance to execute a
plan involving multiple unknowns. To keep Mr. Haevischer in ignorance of
the plan would surely have placed him, and the others, in harms way. To seek Mr. Haevischers
assistance, yet keep him in ignorance of the plan to kill Mr. Lal, would
be antithetical to the close personal and professional association between the
two men. Had Mr. Johnston wanted, for some reason, to shield Mr. Haevischer
from the full force of the plan, he would not have enlisted him at all.

[169]

Mr. Haevischer argues there are reasons why Mr. Johnston
and Person X would enlist Mr. Haevischers help without telling him
the true nature of the plan. For example, the possibility that if they told him
the plan he might refuse to participate. While it was necessary he understand
the role he was to play, he argues he could have been enlisted to fulfill a
role such as a lookout without knowing the full plan.

[170]

Mr. Haevischer claims not to understand the proposition that
keeping him in ignorance of the plan would have placed him, and the others, in
harms way, arguing the suggestion imputes a level of rational forethought
inconsistent with everything Mr. Johnston and Person X planned to do
that day.

[171]

The appellant takes greatest exception to the judges view that
keeping him in ignorance of the plan to kill Mr. Lal would be
antithetical to the close personal and professional association between the
two men. He concedes the judges conclusion might be tenable if the Crown had
managed to prove Mr. Johnston always told Mr. Haevischer the full
details of his plans. That was not the evidence.

[172]

The
judge observed:

[631]    On Mr. Haevischers
part, one must ask whether it is reasonable to infer that he would accompany Mr. Johnston,
his close [Red Scorpions] associate, on a venture involving cleaned and loaded
guns, wearing clothing designed to conceal his identity and heading to a large
residential apartment complex without asking what the venture entailed and the
dangers he should expect to face at the Balmoral. Mr. Haevischer was no
underling of Mr. Johnston; he was a tattooed member of the [Red Scorpions]
with his own guns, his own drug lines and considerable history with the [Red
Scorpions].

[173]

Mr. Haevischer says the answer to the question posed by the
judge is this: the irrational thinking that would have led Mr. Haevischer
to participate in the event at all is exactly the same irrational thinking that
would lead him to participate without knowing the full plan.

[174]

The Crown denies the judge filled in blanks and bridged gaps in
the evidence in order to conclude that Mr. Haevischer became a member of
the conspiracy to murder Mr. Lal. Neither Mr. Johnston nor Mr. Haevischer
challenged the existence of some sort of plan against Mr. Lal. By the time
the judge came to consider the question of Mr. Haevischers membership in
the conspiracy, she had already accepted evidence that a conspiracy to murder Mr. Lal
existed before October 19, 2007, and Mr. Johnston was a member of the
conspiracy. Direct evidence was not necessary in order to prove Mr. Haevischer
was a co‑conspirator. Membership in a conspiracy may be inferred from
evidence of conduct that assists the unlawful objective: Trial Reasons at para. 578,
citing
R. v. J.F.
, 2013 SCC 12 at para. 53.

[175]

In drawing the inference Mr. Haevischer became a member of
the conspiracy to murder Mr. Lal before he entered Mr. Lals suite,
the judge looked to Mr. Haevischers actions as a whole, before, during
and after the achievement of the unlawful objective.

[176]

The Crown says the judge rejected as implausible the notion Mr. Johnston
would not have told his close friend about the plan. It made no sense that Mr. Haevischer
would accompany the two others without asking what they were about to do and
what dangers he should expect to face. It was not in accord with common sense
to infer Mr. Haevischer was enlisted to come along without playing any
active role. The gang had a reputation for using violence and intimidation to
advance and expand its drug trafficking business. The group motive ascribed to
the murder of Mr. Lal was to the end of advancing both the gangs business
and reputational interests. Mr. Haevischer himself was involved in acts
of violence incidental to the drug trade.

[177]

The Crown says the appellant Haevischer takes a piecemeal
approach to this evidence. While it is true the simple fact Mr. Haevischer
might have had the same motive as Mr. Johnston to kill Mr. Lal is not
proof they told him the plan involved a murder, it is a factor that can be
weighed in determining what inferences to draw. It was not an error of law to give
some weight to that evidence.

[178]

The Crown submits the fact that a piece of circumstantial
evidence does not in and of itself prove the fact in issue is not the end of
the question. The trial judge did not conclude Mr. Haevischer knew of and
agreed to participate in the conspiracy simply because he and Mr. Johnston
had a close relationship. In contrast to Mr. Haevischers piecemeal
approach, the judge properly considered as a whole the evidence concerning Mr. Haevischers
words and actions in drawing the inference Mr. Haevischer knew of the plan
and agreed to participate in it. The Crown argues absence of direct evidence
concerning their objective that afternoon does not detract from the
availability of the inference; on the totality of the evidence, Mr. Haevischer
joined the conspiracy:
Widdifield
at para. 36.

[179]

The Crown says the judge was not filling in gaps by referencing aspects
of the evidence such as the group motive and the close association between Mr. Haevischer
and Mr. Johnston. She was carrying out the task the law of circumstantial
evidence imposes upon her. That is, she carried out a close analysis of all the
evidence and drew inferences she was entitled to draw.

[180]

In short, the Crown submits, the argument here
resembles that rejected in
Vickers
in the following terms:

[29]       Mr. Vickers
argument falls into the error of taking pieces of evidence in isolation and arguing
that certain inferences should not be drawn from them. The proper approach,
however, is to examine the totality of the evidence. In large measure, his
argument reargues his case at trial. He contends that the judge should have
found facts different from those he found or drawn inferences other than those
he drew. In doing this he does not point to any palpable and overriding error.
Indeed, after acknowledging that the judge was entitled to reject his evidence,
he attempts to buttress his argument by impliedly arguing that the judge was
wrong to do so.

(ii) Discussion

[181]

Insofar as the conspiracy charge against Mr. Haevischer is
concerned, it cannot be said the trial judge failed to consider inferences
inconsistent with guilt. She clearly addressed and discounted both the
inference Mr. Haevischer was told nothing of the plan and the inference he
was told only of the plan to rob Mr. Lal of his drugs and money.

[182]

In our view, the Crown correctly asserts the allegation the judge
bridged the gaps or filled in the blanks is essentially a challenge to the
inferences drawn (or rejected) by the trial judge. It requires us to ask
whether the trier of fact, acting judicially, could reasonably be satisfied the
accuseds guilt was the only reasonable conclusion available on the totality of
the evidence.

[183]

There was evidence in support of all of the findings set out at paras. 62527
of the Trial Reasons upon which the inference Mr. Haevischer was a party
to the conspiracy was based. None of those findings is challenged. They include
findings with respect to Mr. Haevischers membership in and fealty to the
gang, his interest in the gangs objectives, his regular involvement in
violence, and his close association with Mr. Johnston. All were reasonably
relied upon by the trial judge in inferring Mr. Johnston went to Mr. Haevischers
apartment with a view toward enlisting him in a conspiracy and did so
successfully. The judge, in our opinion, could reasonably be satisfied his
commission of the offence charged on Count 7 was the only reasonable
conclusion available on the totality of the evidence.

[184]

We do not accede to the argument the judge erred by overlooking
or misapprehending the evidence Mr. Johnston was an inveterate liar when
she concluded he must have been forthright with Mr. Haevischer about the
plan to murder Mr. Lal. The evidence was that there was a particularly
close relationship between Mr. Haevischer and Mr. Johnston; they were
like brothers. Evidence Mr. Johnston lied to others and that gang
members are generally treacherous does not detract from the evidence upon which
the judge relied in finding Mr. Johnston would not have enlisted Mr. Haevischer
on this particularly dangerous job without telling him what was planned. We see
no error in the judges application of common sense and reason in addressing
the question of Mr. Haevischers knowing participation in the murder
conspiracy.

[185]

In particular, we do not accede to the argument that the judge
ought not to have drawn inferences consistent with reason and common sense
because those who commit mass murder are not amenable to reason. It is an
argument, in effect, that no inferences can be drawn in relation to horrific
crimes. It is at odds with the extensive record of the purposive and
intentional (although violent and criminal) conduct of the gang implicated in
these murders.

Did the Trial Judge Err
in Her Application of the Principles of Party Liability in Finding Mr. Haevischer
Guilty of First Degree Murder?

(a)
Did the Judge Err
in Law in Relation to Party Liability?

(i) Positions of the Parties

[186]

The appellant contends the trial judge erred in finding him
guilty as a principal to the offence of murder pursuant to s. 21(1)(a) of
the
Criminal Code
and submits her conclusion, in the alternative, he was
guilty as an aider or abettor pursuant to s. 21(1)(b) or (c) of the
Criminal
Code
, was equally faulty.

[187]

The
relevant provision reads as follows:

21. (1) Every one is a party
to an offence who

(a) actually commits it;

(b) does or omits to do anything
for the purpose of aiding any person to commit it; or

(c) abets any
person in committing it.

[188]

The appellant contends the trial judge was required to set out in
her reasons the basis upon which she found the Crown had proved all elements of
each of the six separate counts of murder. He says she did not do so and, in
particular, she failed to explain how she found the Crown proved the critical
element of intent.

[189]

Further,
he says the judge erred in law in considering the law to be indifferent to
whether the accused personally committed the offence as a principal or aided or
abetted another in committing the offence, and in seeing no need to distinguish
between the possible routes to a conviction under s. 21(1). The judge
wrote:

[665]    Section 21(1) is
designed to prevent the acquittal of an accused who was either a principal or
an aider/abettor, but whose precise role in the killings is unclear. Both forms
of participation are not only equally culpable, but are to be treated as one
single mode of incurring criminal liability:
Thatcher
, at para. 72.
Thus, where evidence of concerted action in the commission of the offence
exists, it is open to the Court to convict all of the accused either as
principals or as aiders or abettors pursuant to s. 21(1), even though the
extent of the individual participation in the violence is unclear:
R. v.
Wood
(1989), 51 C.C.C. (3d) 201 (Ont. C.A.) at 220; see also
R. v.
Suzack
(2000), 141 C.C.C. (3d) 449 (Ont. C.A.) at para. 152.

[190]

The
trial judge began her analysis of party liability by stating the Crowns theory
of liability, and by offering a general statement about the nature of party
liability:

[663]    The Crown in the present case submits that the
circumstantial evidence establishes that Mr. Haevischer and Mr. Johnston,
along with Person X, pursuing the objective of the conspiracy to murder Corey
Lal, forced their way into suite 1505 and jointly participated in
confining and killing the six victims.

[664]    It is the Crowns
primary position that Mr. Haevischer and Mr. Johnston are liable for
the six counts of first degree murder as co‑principals under s. 21(1)(a).
However, as observed by Dickson C.J.C. in
R. v. Thatcher
, [1987] 1
S.C.R. 652 at para. 73, the law is indifferent whether the accused personally
committed the offence as a principal or aided or abetted another in committing
the offence, so long as the Court is satisfied beyond a reasonable doubt that
the accused did one or the other.

[191]

The appellant says this analysis of
Thatcher
is not
entirely accurate. He says the focus in
Thatcher
was on the question of
whether s. 21 precludes a requirement of jury unanimity as to the
particular nature of the accused's participation in the offence charged. The Court
held jurors should not be required to make a choice on a subject which is a
matter of legal indifference. However, when an accused is tried by a judge
alone, the appellant submits, the matter is not one of indifference; the judge
has an obligation to deliver reasons that justify and explain the result ...
and enhance meaningful appellate review:
R. v. Sheppard
, 2002 SCC 26
at paras. 2425.

(ii) Discussion

[192]

In our view, the criticism of the judge on this ground is
unfounded. First, as the Crown points out, the judge gave extensive reasons for
finding Mr. Haevischer and Mr. Johnston guilty of first‑degree
murder of all six victims. The plan to kill one became a plan to kill six in
order to eliminate witnesses. The killings were considered and deliberate, if
only for a brief period before they were carried out.

[193]

Further,
however, the legal proposition upon which the appellants claim is founded has
been recently advanced in very similar terms and rejected by this
Court. In
Russell
,
Newbury J.A., writing for the Court, said at paras.
5758:

[57]      The appellants say the trial judge erred in
adopting the principle expressed in
R. v. Haevischer
to the effect that
the law is indifferent whether the accused personally committed the offence as
a principal or aided or abetted another in committing the offence, so long as
the court is satisfied beyond a reasonable doubt that the accused did one or
the other. (At para. 664, citing
R. v. Thatcher
[1987] 1 S.C.R.
652 at 694.) Counsel contends that the issue addressed in
Thatcher
was
jury unanimity. The Supreme Court of Canada decided that it was open to a jury
to be divided as to whether an accused committed the crime personally or aided
another in committing it. In the appellants' submission, however, the same rule
does not apply in a trial before a judge alone.

[58]      Counsel say this
distinction is significant in a judge-alone trial because the judge has an
obligation to deliver reasons which justify and explain the result ... and
enhance meaningful appellate review. (See
R. v. Sheppard
2002 SCC 26 at
paras. 24-5.) With respect, I do not read
Thatche
r as being limited
to jury trials. To the contrary, I read Chief Justice Dickson's
comments at 694 as establishing a more general principle:

... s. 21 has been designed to alleviate the necessity
for the Crown choosing between two different forms of participation in a
criminal offence. The law stipulates that both forms of participation are not
[only] equally culpable, but should be treated as one single mode of incurring
criminal liability. The Crown is not under a duty to separate the different
forms of participation in a criminal offence into different counts. Obviously,
if the charge against Thatcher had been separated into different counts, he
might well have been acquitted on each count notwithstanding that each and
every juror was certain beyond a reasonable doubt either that Thatcher
personally killed his ex-wife or that he aided and abetted someone else who
killed his ex-wife. This is precisely what s. 21 is designed to prevent.

[194]

Similarly, in
R. v. Suzack
(2000), 141 C.C.C.
(3d) 449 (Ont. C.A.), which was cited by the trial judge, Doherty J.A.
wrote at para. 152:

It is beyond question that where
two persons, each with the requisite intent, act in concert in the commission
of a crime, they are both guilty of that crime. Their liability may fall under
one or more of the provisions of s. 21(1) of the
Criminal Code
:
R.
v. Sparrow
, (1979), 51 C.C.C. (2d) 443 (Ont. C.A.) at 457‑58.

[195]

The judge did not misinterpret
Thatcher
or misapprehend
the principle of law stated therein. She correctly stated the law and correctly
applied it to find each appellant guilty either as a co‑principal or as
an aider or abettor even though the extent of the individual participation of
each is unclear.

[196]

In short, in our view there is no basis upon which we can
conclude the trial judge erroneously described the law with respect to
liability as a principal or as an aider or abettor.

(b) Did the Judge Err in
Finding Mr. Haevischer Liable as a Principal Under s. 21(1)(a)
?

(i) Positions of the Parties

[197]

The
appellant Haevischer, relying on this Courts decision in
R. v. Podolski
,
2018 BCCA 96 (which, in turn, cites
R. v. Martineau
, [1990] 2
S.C.R. 633), says the onus upon the Crown in the murder case requires it
to prove beyond a reasonable doubt he had the subjective foresight that his
participation in the events of October 19 would cause the death of six separate
victims. He contends the Crown did not allege or tender any evidence to prove
any broader intent than the conspiracy to commit the murder of one person, Mr. Lal.
That intent was described by the judge as follows:

[690]    Mr. Johnston and Mr. Haevischer,
together with Person X, were members of a conspiracy to murder Mr. Lal.
The common purpose of the three men was to gain access to suite 1505 and
kill Mr. Lal. They achieved that purpose.

[198]

He submits the Crown failed to prove his intent to kill Mr. Lal
survived the change in circumstances encountered upon entering the suite. (He
cautions that the fact Mr. Lal was killed some time after the men entered
the apartment is not such proof).

[199]

The
critical findings of intent are in the following passages:

[702]    The evidence concerning the timing of events and the
scene the killers left behind leaves little doubt that the three [Red
Scorpions] associates jointly and actively participated in the murders, and did
so with the necessary intent.

[703]    Although there need only
be evidence of joint participation, there is also strong evidence of common
purpose. The two accused and Person X were acting in concert to kill Mr. Lal
as members of a conspiracy to that end. They arrived at the suite with that common
purpose. Both Mr. Haevischer and Mr. Johnston had the subjective
intent to murder Mr. Lal, and they achieved that objective. They had the
same self-interest in killing the other five victims to eliminate witnesses to
their involvement in the murder of Mr. Lal.

[200]

In the final sentence of this passage, the judge finds Mr. Haevischer
and Mr. Johnston had a motive for the killings: to eliminate witnesses.
The appellant suggests the judge did not address the basis on which she
concluded Mr. Haevischer acted pursuant to that motive; having a motive
and acting on it are different things.

[201]

Mr. Haevischer argues nothing done in the apartment was
necessarily done for the sole purpose of the killings, except the killings. For
example, he says, making everyone present lie down on the floor is as
consistent with a robbery as it is with a plan to murder. If all Mr. Haevischer
did was make the victims lie on the floor to facilitate a robbery, while the
other two men decided to shoot them, he is not a co‑principal to a murder.
The appellant submits the Crown did not prove how Mr. Haevischers intent
expanded from the alleged agreement to kill one person, to an actual intent to
kill six.

[202]

In response, the Crown says the judge explained in detail her
reasons for finding the three men were acting in concert guided by a group
motive to achieve the goals of the gang. Her conclusions were largely drawn
from a careful and thorough examination of all the evidence available with
respect to what happened in suite 1505 from 2:30 p.m. until 2:45 p.m.
on October 19, 2007.

[203]

The trial judge expressly rejected the contention Mr. Haevischer
did not enter the suite. She found when Mr. Haevischer, Mr. Johnston
and Person X arrived at the suite, they took and maintained control of
four individuals then present, and they must have done so for the 10‑minute
interval preceding the arrival of Mr. Narong and the ensnarement of Mr. Mohan.
The victims were separated into two groups, and they were in submissive
positions prior to their deaths: face down with their arms by or above their
heads. She inferred the victims had been commanded by the perpetrators to
assume these positions. The apartment and victims were searched, and money and
cell phones were taken. The number and direction of the shots fired, the fact
two weapons were used, and the positions of the victims suggested all six
victims were shot at the same time and there were two shooters. The judge
concluded it defied common sense to say the non‑shooter would have stood
around and done nothing while his two companions took control of a situation
that began with four victims and expanded to include six victims over a ten‑minute
period.

[204]

In
the circumstances, she concluded the only reasonable inference was the non‑shooter
actively participated in the confinement of the six victims and their
subsequent murders. She explained how she found Mr. Haevischer to have the
mens rea
for murder under s. 21(1)(a):

[701]     It is not plausible to suggest (as do both
accused) that one of the three [Red Scorpions] associates could -- or would --
stand by and do nothing while the victims in the suite were being kept under
control, unexpected witnesses were arriving, and the risk of yet other
unsuspecting persons stumbling onto the scene remained a significant possibility.

[702]    The evidence concerning
the timing of events and the scene the killers left behind leaves little doubt
that the three [Red Scorpions] associates jointly and actively participated in
the murders, and did so with the necessary intent.

[205]

The Crown places some weight upon the judges analysis of
planning and deliberation and whether first degree murder had been made out
under s. 231(2). She concluded once Mr. Haevischer and his companions
entered suite 1505 and encountered individuals other than Mr. Lal,
they were immediately faced with a stark choice: either abandon the plan to
kill Mr. Lal or proceed with that plan and deal with the other three
persons who would become eyewitnesses to the killing: Trial Reasons at para. 712.

[206]

The
Crown notes the judge explicitly found the crime scene evidence to be
consistent with a plan to kill and inconsistent with a plan to commit robbery
or some other offence. She drew what she considered to be an inescapable
inference from this physical evidence:

[714]    None of the victims was a physical threat to the
perpetrators; all six were lying defenceless on the floor. Once the victims
were in submissive positions, the perpetrators could easily have left the suite
without killing them. They decided against that option. Instead, they shot each
of the victims. The crime scene evidence indicates that the shootings were
calculated and deliberate executions, carried out after real consideration, not
the random or scattered shots of a panicked shooter reacting impulsively to an
unexpected situation.

[715]    The inescapable inference is that the other five
persons in the suite were killed because they could identify the killers of Mr. Lal.

[716]    The decision was one
based on necessity and self-preservation, taken in order to achieve the
original plan -- one conceived with thought and deliberation  of killing Mr. Lal.
The decision to kill all six was not the original plan, but it became the plan.
The perpetrators made a decision, with time to assess their situation, to
proceed with the plan to kill Mr. Lal, and to execute the other five
people in the suite to avoid getting caught.

(ii) Discussion

[207]

We can see no error in the trial judges conclusion the physical
evidence in this case was consistent only with the domination and execution of
six victims carried out in concert by individuals who had conspired to kill one
person and then shared a group motive in killing the witnesses to that murder.
In the words this Court used in
Robinson
,
it is not open to us to conceive of inferences or explanations that are not
reasonable possibilities, nor to attempt to revive evidence or inferences the
trial judge reasonably rejected. If the appellant is to succeed, an inference
other than guilt must be reasonable given the evidence and the absence of
evidence, assessed logically, and in light of human experience and common
sense. That standard is not met in this appeal.

(c)
Did the Judge Err
in Finding Mr. Haevischer Liable as an Aider or Abettor?

(i) Positions of the Parties

[208]

Mr. Haevischer
submits, to support a conviction as an aider or abettor, the Crown must prove
the accused actually did something for the purpose of aiding or abetting; it is
not enough to show the accuseds actions only had the effect of aiding or
abetting. In
R. v. Helsdon
, 2007 ONCA 54, Associate Chief Justice OConnor
described the
mens rea
needed to support a conviction as an aider:

[28]       The starting point
for determining the
mens rea
required for s. 21(b) is the language
of the paragraph. The language of para. (b) is very specific. It requires
that an accused do or omit to do something for
the purpose of aiding another
to commit an offence
. On the face of it, a requirement that an accused do
something for the purpose of achieving a prohibited result imposes a very high
degree of subjective
mens rea
. Purpose under s. 21(b) is
synonymous with intention:
R. v. Hibbert
(1995), 99 C.C.C. (3d) 193
(S.C.C.). While the
Criminal Code
does not contain a definition of
either purpose or intention, the normal meaning of those words suggests
that a person must subjectively advert to a specific objective and that he or
she, therefore, must have knowledge of the facts that constitute that
objective.

[Emphasis in original.]

[209]

In
her review of the principles relating to aiding and abetting, the trial judge
referred to the judgment of Justice Charron in
R. v. Briscoe
, 2010
SCC 13, in which, at paras. 1417, Charron J. identified key
considerations where the Crown alleges either aiding or abetting. Certain
elements of the offence of aiding and abetting murder were described as
follows:

[18]  Doherty J.A., in
referring to this Courts decision in
R. v. Kirkness
, [1990] 3 S.C.R.
74, rightly states that the aider to a murder must have known that the
perpetrator had the intent required for murder. While some of the language in
Kirkness
may be read as requiring that the aider share the murderers intention to kill
the victim, the case must now be read in the light of the  analysis in
Hibbert
.
The perpetrators intention to kill the victim must be known to the aider or
abettor; it need not be shared.
Kirkness
should not be interpreted as
requiring that the aider and abettor of a murder have the same
mens rea
as the actual killer. It is sufficient that he or she, armed with
knowledge
of the perpetrators intention to commit the crime, acts with the intention of
assisting the perpetrator in its commission. It is only in this sense that it
can be said that the aider and abettor must intend that the principal offence
be committed.

[210]

In order to secure a conviction against Mr. Haevischer as an
aider, the Crown had to prove he did something for the purpose of assisting the
shooters, knowing they intended to kill the six victims. The appellant says the
trial judge did not adequately address these questions.

[211]

The
judges analysis on the application of s. 21(1)(a) and (b) is set out
in this extract from the Trial Reasons:

[706]     [I]f I am wrong in my conclusion that each of Mr. Johnston
and Mr. Haevischer was a principal in the murders, I am satisfied that the
evidence outlined above amply establishes that one of them was a principal in
the murders as a shooter, and that the other was at the very least an aider or
abettor to the shooters. The non-shooter, as aider or abettor, possessed the
requisite intent and actively assisted the shooters from the time the first
victims were confined until all six were executed. As such, he was a
significant contributing cause of the six deaths as required for second degree
murder.

[707]    To be clear, my alternative
conclusion does not rest on a different characterization of the facts relating
to the non-shooter. I do not suggest that the conduct of the non-shooter as an
aider or abettor is any different factually from the conduct I have concluded
renders him a co-principal. If I am wrong in law to conclude that the conduct
of the non-shooter renders him a principal under subsection (a) of s. 21(1),
then, in the alternative, it renders him an aider or abettor under subsection
(b) or (c). As discussed, s. 21(1) is designed to prevent the acquittal of
an accused who is either a perpetrator or an aider/abettor, but whose precise
role in the killings is unclear. Both forms of participation are treated as one
single mode of criminal liability:
Thatcher
, at para. 72; [
R. v.
Rojas
, 2006 BCCA 193], at para. 65.

[212]

The appellant contends the judges analysis of his liability as
an aider or abettor suffers the same flaw as the analysis of his liability as a
co‑principal: there is no analysis of the basis on which it can be safely
concluded he knew the shooters intended to kill the victims. He says it is not
enough that something he did assisted the shooters; the Crown had to prove he
did so for the purpose of aiding them, knowing they intended to shoot the six
victims.

[213]

The Crown says the judge explained the same factual matrix that
grounded the conviction as a principal grounded her finding of liability for
the non‑shooter (whoever he was) as an aider or abettor. A stark choice
was made to kill all of the victims once the perpetrators were inside suite 1505.
It is not plausible the non‑shooter simply stood by and did nothing. The
only plausible explanation, inferred from all of the evidence, is the three
men, acting in concert, were co‑principals or the non‑shooter
assisted by corralling and confining the victims.

[214]

In
response to the argument the Crown failed to prove the appellant assisted the
shooters
knowing they intended to shoot the victims
, the Crown says it
is reasonable to infer when the victims are lined up in prone positions such
that they can be shot execution‑style in the back of their heads, the
person assisting is well aware of what is about to happen. In
Podolski
,
this Court approved the judges instruction the jurors could rely on the common
sense inference  a sane and sober person intends the natural and probable
consequences of his voluntary actions  to find the conduct of an accused would
naturally aid and abet the principal offender and the accused therefore knew
and intended that his conduct would aid or abet the principal offender: at para. 237.
The Court further held:

[258]    If the jurors accepted
some or all of this evidence, it would have been open to them to find the
requisite murderous intent was proved. In this regard, we note that direct
evidence is not required to establish intent; indeed, it is rarely available.
As a result, the common sense inference is a standard jury instruction on the
element of intent in most jury charges. Absent evidence to the contrary, intent
may be inferred from an accuseds conduct by an application of the common sense
inference:
R. v. Oluwa
(1996), 107 C.C.C. (3d) 236 at paras. 87-88
(B.C.C.A.).

(ii) Discussion

[215]

Given our conclusion with respect to the finding Mr. Haevischer
was a principal to the offence, it is unnecessary to address the argument the
judge erred when she concluded, in the alternative, he was at the very least
an aider or abettor. We can see no cause to interfere with the judges
conclusion Mr. Haevischer, Mr. Johnston and Person X dominated
the victims and collectively put them in the positions in which they were
murdered. As the conclusion Mr. Haevischer was an aider and abettor did
not rest upon conduct of the non‑shooter as an aider or abettor [that]
is any different factually from the conduct [that] renders him a co‑principal,
no distinct ground of appeal can succeed under this head.

Did the Trial Judge Err
in Favouring Inferences Urged by the Crown, Rather Than Those Suggested by Mr. Johnston?

(a)
Positions of the
Parties

[216]

Mr. Johnston raises two distinct arguments on appeal. First,
he contends the trial judge erred in preferring inferences sought by the Crown
over competing inferences of equal strength. His second argument, which relates
to the manner in which the judge addressed the scope of the exclusion of Person Xs
evidence, is addressed below.

[217]

Mr. Johnston takes issue primarily with one key inference
drawn by the trial judge: he was in suite 1505 when the shootings
occurred. He argues this was an inference drawn from Person Ys evidence
regarding two intercepted conversations that occurred while Person Y was
acting as a police agent: one on February 17, 2008, and another on March 23,
2008. He says his statements in the intercepts, taken at their highest,
supported an inference he was aware of a plan to rob Mr. Lal, but not a
plan to murder him, and the statements do not support the inference he was in
the room at the time of the offences.

[218]

Appreciation of this submission requires a brief review of the
evidence with respect to the intercepts. As we have noted, recordings and
transcripts of intercepted conversations between Person Y and Mr. Johnston
were introduced at trial. Person Y testified with respect to the recorded
conversations to the effect Mr. Johnston used gestures to answer some of
the questions put to him, evidently reluctant to speak openly with respect to
the killings. The evidence is reviewed in detail at paras. 42662 of the Trial
Reasons and summarized at para. 39 above. We repeat the material evidence
below.

[219]

On
March 23, 2008, Mr. Johnston is recorded as saying, in response to
the question why guns were used in Mr. Lals apartment:

I dont know. I dont know the
whole story. I dont know the plan. All I know is I was told to do somethin,
and this person was supposed to do this, and like I did what I had to do.

[220]

Person Y testified to the hand gestures Mr. Johnston
used during the above exchange. When Mr. Johnston said he was told to do
somethin, he pointed toward his eyes. Person Y said this meant Mr. Johnstons
job had been to keep point or be on the lookout. When Mr. Johnston
referred to the other person doing this, he made a gun gesture with cocked
thumb and forefinger and middle fingers extended.

[221]

In
the face of persistent questions by Person Y, angry his gun had been left
in the apartment, Mr. Johnston is recorded saying:

I watched  I watched him do this
on. Both of them.

[222]

Person Y testified when Mr. Johnston said he watched
them do this, he made a gun gesture shooting downwards with thumb cocked and
forefinger and middle finger extended.

[223]

Still
later in the intercepted discussion, Mr. Johnston is recorded saying:

I was just told to get this and
everybody else like

[224]

Person Y testified when Mr. Johnston said he was told
to get this, he rubbed his fingers together to indicate money. When he said
everybody else like, Mr. Johnston again made the gun gesture.

[225]

The trial judge held the recorded statements and the accompanying
gestures support[] the inference Mr. Johnston saw the killings as they
occurred, and was therefore present at the scene at that time. The trial judge
also took from these comments that Mr. Johnston was aware the plan
involved the shooting of someone.

[226]

Mr. Johnston says when the judge found he, Mr. Haevischer
and Person X jointly and actively participated in the murders, she was
clearly placing considerable weight on the inference Mr. Johnston was in
the suite at the time the shooting occurred. Specifically, given her view the
decision to kill witnesses was not the original plan, but became the plan at
some point, Mr. Johnston says the trial judge must have inferred he was in
the room when the plan changed.

[227]

Similarly, her conclusion, in the alternative, with respect to
aiding and abetting, was founded upon the inference whichever of the three
perpetrators was not a shooter actively assisted the shooters from the time
the first victims were confined until all six were executed.

[228]

In closing submissions, counsel for Mr. Johnston argued an
alternate inference could be drawn from the evidence as a whole: Mr. Johnston
was part of a plan to rob, not kill, Mr. Lal; and the gesture described by
Person Y was open to an alternate interpretation  Mr. Johnston was
describing the use of Windex to clean the firearms in Mr. Haevischers
apartment in the hours before the killing. The cleaning of the guns had been
discussed in the prior intercepted discussion on February 17, 2008.

[229]

The judge rejected this argument because a gesture had not been
used when cleaning guns with Windex had been discussed in February: Trial
Reasons at para. 461. Mr. Johnston was apparently less reticent to
discuss that topic than the circumstances surrounding the killings. Further,
Person Ys interpretation of the gesture as a gun firing downward was not
challenged in cross‑examination.

[230]

Mr. Johnston says rejection of the argument the gesture in
question was intended to describe cleaning the guns should not have led to the
inference Mr. Johnston was in the room at the time of the killings. He
says the downward gun hand gesture was as consistent with a description of
confinement at gunpoint as it was with Mr. Johnston having observed the
shooting, and he was recorded as telling Person Y more than once he was
not in the room.

[231]

He contends the judge did not address possibilities other than
the interpretations of the gestures described by Person Y consistent with
his guilt. Further, he says the judge erred in focusing upon what Mr. Johnston
did not say (it was a robbery that went horribly wrong), rather than what he
did say, specifically his numerous denials he was in the room. In effect, he
contends, the judge fell into the error identified in
Villaroman
by
filling in the gaps in the evidence and preferring the inference invited by
the Crown to other plausible theories.

[232]

Mr. Johnston says there was ample evidence before the Court,
in the intercepts, to support the alternate plausible inference he was not in
the room at the time of the shooting, and was not aware of all of the details
of the plan. He says this plausible theory grounded in the evidence was not
addressed by the judge.

[233]

The clearest reference to Mr. Johnston not being present at
the time of the shootings came in the second recorded conversation between Mr. Johnston
and Person Y, on March 23, 2018, reproduced, in part, above. Person Y
pressed Mr. Johnston about details of the shootings. Mr. Johnston
said unequivocally he did not have a firearm, and he did not know who used
which of the two firearms used in the killings. He also told Person Y, in
response to a question about why guns were used at all: I dont know. I dont
know the whole story. I dont know the plan.

[234]

In
response to Person Y asking him why Person X asked him for his
firearm, Mr. Johnston said he had no answers to Person Ys questions.
Finally, Person Y pointedly asked Mr. Johnston why the shooting
happened at all, and whether it was because Person X panicked:

Y          Like, dude, how did it end upend up being
six people?  DiddiddiddidDid [Person X] panic? Is that what happened?

MJ       I wasnt inside
(ph), man. TheYou know that. Youand [Person X] has already told you

[235]

This last statement, Person X has already told you,
suggests Person X had previously advised Person Y that Mr. Johnston
was not inside the suite at the time of the killings. Mr. Johnston says
this statement is consistent with a willsay statement of October 24, 2011,
describing Person Xs evidence.

[236]

Mr. Johnston
also implied in a conversation on February 17, 2008, that he was not in
the suite at the time of the shootings. At several points, Person Y
expressed outrage over the fact his DNA was recovered from one of the firearms
used in the offence. Mr. Johnston denied knowing what happened to the
firearms after the offence:

Y          Okay but where
what where was the gun left? Did you see okay [Person X].

MJ       I dont know. I really dont know. You have to
talk to him.

Y          Okay but he told me they boiled them dude.
Did you see him boil my the gun?

MJ       No. I dont know anything about it man.

Y          Okay this is the thing though man. That
mother-fucker got a gun from me man right  before he went, alright? I I didnt
know he was gonna use the fuckin thing number one. Number two fuckin uh uh he
told me he it was bur [
sic
] that he that he boiled. I I never even heard
of that shit in the first fuckin place, man, you were with him. If you didnt
see fuckin uh hows that gonna make sense man. They want to get my DNA man, to
put it on  (indiscernable). Dont fuckin lie to me then alright. Would he have
told his girlfriend about that shit?

MJ       I dont think so.
Last thing I want to do is talk about something I know nothing about
whatsoever.

[237]

Person Y agreed in cross‑examination Person X
told him he had boiled the guns in the suite. There was some physical evidence
this had occurred. In light of this evidence, Mr. Johnston argues his
professed ignorance of what happened inside the suite (in the recorded February
conversation) is supportive of the inference he was not inside the suite at the
time of the shootings.

[238]

He says the trial judge failed to resolve these contradictions in
the intercepts. He argues the trial judge was obliged to consider the evidence
as a whole, and in particular, whether the Crown had disproven other rational
inferences that were, in this case, clearly before her in the form of his own
recorded statements. Mr. Johnstons words I dont know the plan in
particular were supportive of the theory he did not know of the plan to murder Mr. Lal.

[239]

In response, the Crown says this ground of appeal amounts to a
disagreement with the judge over two specific inferences she drew. In advancing
the argument, the Crown submits, the appellant engages in a piecemeal
examination of the circumstantial evidence (looking at particular responses to
questions asked of him by Person Y), contrary to law:
Vickers
at para. 29;
Bransford
at para. 56. Further, he wrongly seeks to have inferences
inconsistent with guilt (his absence from the room at the time of the killings)
drawn from evidence the trial judge implicitly, but necessarily, rejected in
making her findings of fact.

(b) Discussion

[240]

We do not accede to the argument the trial judge did not consider
inferences other than those consistent with the guilt of Mr. Johnston. In
light of all of the evidence consistent with Mr. Johnston being a party to
the conspiracy to murder Mr. Lal, it was open to the judge to conclude
there was no logical inference other than that which she drew. There was
evidence Mr. Johnston was conscripted by Mr. Bacon to murder Mr. Lal,
and at the time he was conscripted the plan was to go to Mr. Lals stash
house, take all his money and drugs, and kill him. The planning, preparation
and execution of the plan, described in detail by the trial judge, was
consistent with the existence of such a conspiracy.

[241]

Mr. Johnstons statements I dont know the whole story and
I don't know the plan when asked why Mr. Lal was shot in his apartment
rather than being strangled, were followed immediately by a confession of what Mr. Johnston
did
know: All I know is I was told to do somethin', and this person was
supposed to do this, and like I did what I had to do.

[242]

Person Y testified these words were accompanied by gestures:
first, Mr. Johnston pointed to his eyes, indication he was supposed to
keep watch, and, then, when he referred to the others doing this, he made a
gesture indicating the use of a gun.

[243]

Taken as a whole, the statement does not undermine the conclusion
the only reasonable inference that could be drawn was Mr. Johnston was
part of the conspiracy to murder Mr. Lal.

[244]

While we do not agree with the appellants argument that the
conclusion he was in the room at the time of the murders was essential to his
murder conviction, we see no reason to disturb the trial judges conclusion he
was, in fact, in the room. First, her inference Mr. Johnston and Person X
recruited Mr. Haevischer to assist because this was a three‑person
job was reasonable. It was consistent with the common sense assumption three
individuals would not prepare as these three did, only to have one remain
outside the apartment when their presence inside might be necessary.

[245]

Further, and more importantly in our view, there is no basis to
disturb the trial judges conclusion Mr. Johnston told Person Y he
saw the victims executed. The trial judge gave cogent reasons for dismissing
the argument the words and gestures described by Person Y were in
reference to the guns being cleaned in Mr. Haevischers apartment. That
theory was not suggested to Person Y.

[246]

The suggestion Mr. Johnstons statement to Person Y was
only an admission to having seen guns used to intimidate and dominate the
victims was neither put to Person Y nor argued at trial. It is inconsistent
with the evidence of Person Y, who described the gesture made by Mr. Johnston
as depicting persons shooting downward. He did not describe the guns simply
being brandished to threaten the victims. He testified that as Mr. Johnston
said I watched them do this he made a gesture. Crown counsel asked, Okay.
What's the gesture that you just showed? He answered, Like shooting down.

[247]

That
expression was repeated later, in the following exchange:

Q.        And then over on the top of page 167 [of the
transcript of the intercept], he says: I watched -- I watched him do this on
both of them. Which --

A          I watched them do this, like this. And he
says both of them and he was referring to Blake and [Person X].

Q         Okay. What's the gesture that you just showed?

A          Like shooting down.

Q         Okay. Can -- can you stand up and show that?
Because I don't think anyone could see. So the --

A          Like this.

Q         -- the thumb cocked with the forefinger --
sorry, the pointer finger and the middle finger --

A          Yeah, like -- like --

Q         -- in a gun gesture?

A          -- like shooting --

Q         Downwards?

A          Yes.

[248]

The
trial judge noted of Person Ys testimony with respect to the gestures, at
para. 457:

He was precise and clear in
the demonstrations he gave of them, particularly with respect to the gun
gestures. Person Y was adamant that what he saw in the stairwell was
Mr. Johnston
on each of the three occasions mimicking the shooting of a gun as he spoke of
what was to occur, and had occurred, at the murder scene
. I accept his
evidence about the gestures.

[Emphasis added.]

[249]

Having accepted the testimony that Mr. Johnston admitted to
Person Y he saw the shootings, it was unnecessary for the judge to
discount expressly the possibility Mr. Johnston might not have entered the
room and might not have been present when the decision was made to kill all of
the witnesses.

[250]

While
the conclusion Mr. Johnston was aware of the plan and participated in the
conspiracy was an inference, the finding he was in the room when the killings
occurred was a finding of fact founded upon the acceptance of the evidence of
Person Y that Mr. Johnston made admissions clearly establishing his
presence when the killings occurred. The trial judge concluded:

[462]    Considered as a whole, Mr. Johnstons
comments to Person Y on the night of the murders and during the scenarios
are an acknowledgment that he was aware of a plan, one which involved a
shooting, and that he had a specific role to play in it; that he was present
for the cleaning of the guns in preparation of carrying out the plan; that he
was present at the crime scene during the murders; and that he provided
assistance in the carrying out of the plan.

[251]

In our view, there is no palpable and overriding error or
misapprehension of the evidence that would permit us to interfere with the
judges fact‑finding. The finding Mr. Johnston was in the apartment
at the time of the killings is a complete answer to the argument some inference
other than that should have been drawn from his statements to Person Y.

Did the Trial Judge Err by Failing to Address the
Scope of the Exclusion of Person Xs Evidence, Causing Particular Harm to Mr. Johnston?

[252]

As his second individual ground of appeal, Mr. Johnston
expands upon the joint argument the appellants were wrongly excluded from part
of the proceedings, arguing he suffered particular prejudice as a result of the
order excluding the evidence of Person X without an opportunity to make
submissions on the order. We have dealt earlier with the argument of both
appellants that their exclusion was a breach of their right, protected by
s. 650 of the
Criminal Code
, to be present in court during the whole
of the trial. Here, Mr. Johnston focuses in particular on the detrimental
impact of his exclusion on fair trial interests

(a)
Positions of the
Parties

[253]

Mr. Johnston says the trial judge failed to adequately
safeguard his fair trial rights because his counsel had no opportunity to make
submissions on the scope of the exclusion of Person Xs evidence.

[254]

The judge held Mr. Johnston was present in the room,
actively participating either as a co‑perpetrator, or as an aider and
abettor, at the time of the shootings. The judge made this finding despite the
fact she was aware, based on materials filed by Crown in open court (and
presumably based on her knowledge of Person Xs anticipated evidence at
the
Basi
hearing), that Person X was expected to testify that Mr. Johnston
was outside of the room at the time the shootings occurred. While acknowledging
Person Xs anticipated evidence would have hurt his case on key issues, Mr. Johnston
argues that Person Xs evidence that he was not present at the time of the
shootings would have been helpful.

[255]

Mr. Johnston was excluded from all stages of the hearing
leading to the exclusion of Person Xs evidence. He was not privy to the arguments
made, if any, in relation to the scope of the judges exclusionary order. He is
unaware of the reasons for the judges finding that Person Xs evidence
was inadmissible at trial. He now says certain material questions were not
addressed when the order was made excluding the evidence of Person X:

a)

What uses could
be put to Person Xs evidence?

b)

Should defence
counsel be permitted to refer to the evidence in cross‑examination?

c)

Could the
evidence be put to any potential use by the defence?

[256]

Mr. Johnston now contends he should have been given the
opportunity to know about, and express a position on, any proposed remedies
flowing from the findings that led to the exclusion of the evidence of Person X.
It is of note that he did not express concerns with respect to the blanket
exclusion of the evidence of Person X at trial.

[257]

In response, the Crown says:

a)

the trial judge
fully and fairly considered Mr. Johnstons interests in a fair trial in
the course of the
in camera
hearings, where
Amici
spoke to the
interests of the accused;

b)

the evidence of
Person X would have unequivocally implicated Mr. Johnston; and

c)

the fact
his counsel did not take issue with the exclusion of Person Xs testimony
at trial reflects the fact the exclusion was a windfall rather than prejudicial
to Mr. Johnston.

[258]

Insofar
as Person Xs anticipated evidence is concerned, the Crown says:

[73]      Person X was expected to testify that Bacon
directed him to kill Corey Lal, and that part of Johnstons role was to
make sure that happened. While Haevischer, Johnston and Person X waited for the
door-knocker in a suite on the 12
th
floor of the Balmoral,
Johnston and Person X discussed stealing from and killing Lal. All three
entered the suite for that purpose. All three rushed into suite 1505 and
forced the occupants to the ground. Johnston ransacked the apartment and
collected money and phones from the victims and put them in bags. Johnston
chased Mr. Narong after Narong tried to escape, and forced Mr. Narong
down beside the two other people whom Haevischer was holding at gunpoint. They
decided to kill all five people  Johnston told Person X and Haevischer to do
it and that Johnston would have the elevator waiting for them. Johnston
returned with Christopher Mohan, a neighbour, accusing him of being their
friend despite Mr. Mohans pleas otherwise. Johnston forced Mr. Mohan
down beside the other two people Person X was holding at gunpoint. Johnston
then left the room to assist escape by calling the elevator, while the other
two men shot the victims in the back of the head.

[74]      Person X would have confirmed what mattered for
culpability. What mattered to the judge in finding culpability for
second-degree murder was active participation in the murders with the requisite
intent and a common purpose, up until all six victims were executed, as shown
by the timing and crime scene: RJ, 701-706. What mattered to the judge in
finding culpability for first-degree murder was that: either the perpetrators
had time in the suite to decide, and did decide, to proceed with the plan to
kill Mr. Lal and to kill the other five people to avoid getting caught:
RJ, 711-716; or alternatively, the nonshooter caused the deaths in the course
of an unlawful confinement by being instrumental in managing the scene
dealing with unexpected arrivals and preventing eyewitnesses from escaping the
scene: RJ, 723-726.

[75]      Accepting that
Person X would likely have given evidence that Johnston did not see the
killings as they occurred (RJ, 459), it could not have assisted the appellant.
Whether Johnston was in the room at the exact moment of the shootings or left
just before the trigger was pulled is a factual distinction that could not have
made a legal difference.

[Internal citations omitted.]

(b) Discussion

[259]

The submission the appellant should have been afforded an
opportunity to address the second stage of the
Basi
hearing at which the
court addressed the consequences arising from threatened breach of informer
privilege is addressed elsewhere in these reasons. That argument focuses upon
the fact the appellant was unaware of evidence that might have usefully been
used to cross‑examine witnesses other than Person X. In our view,
the Crown is correct to say the appellant, knowing the evidence of Person X
was likely to implicate him in the conspiracy and murders, properly regarded
its exclusion as a windfall and for that reason was content to have it
excluded. Mr. Johnston did not raise any issue with the trial judge in
respect of the exclusion of the entirety of the evidence of Person X, and,
in our view, trial fairness was not adversely affected by its exclusion for all
purposes.

Did the Crown Fail to Meet Its Disclosure
Obligations to the Appellants?

(a) Background

[260]

The appellants and the
Amici
apply to adduce fresh
evidence on appeal that consists of material they say the Crown failed to
disclose at trial. The appellants and
Amici
submit this was in breach of
the Crowns duty to disclose all relevant, non‑privileged material in its
possession or control:
R. v. Stinchcombe
, [1991] 3 S.C.R. 326.
The applications relate to two categories of information: (a) information that
a former police officer who was involved in the Surrey Six investigation, Derek
Brassington, provided in an interview with the Ontario Provincial Police
(OPP) as part of a plea agreement to criminal charges resulting from his
conduct during the investigation (the Brassington Interview); and (b) information
relating to the application and acceptance of Person Y into the witness
protection program (WPP). The
Amici
s sealed application relates only
to the information in category (b), as they had access to less redacted
documents relating to Person Y that were not available to the appellants.

[261]

In response to both applications, the Crown applies to adduce
supplemental fresh evidence attached as exhibits to affidavit #1 of Laura Munday.
The sole purpose of adducing this evidence is to assist the Court in
determining whether the appellants fresh evidence should be admitted. The
Crown also seeks to supplement the
Amici
s sealed fresh evidence
application with its own fresh evidence, attached as exhibits to affidavit #2
of Laura Munday (filed under seal).

[262]

We will first set out the legal principles governing the
applications to adduce fresh evidence on appeal, the Crowns duty to disclose,
and the remedy for a breach of that duty. Then, we will address the appellants
arguments on whether the Crown breached its disclosure obligation regarding the
Brassington Interview. Finally, we will address both the appellants and the
Amici
s
submissions on the Crowns failure to disclose WPP documents relating to Person Y.

(b) Legal Principles

[263]

The Courts statutory authority to admit fresh evidence on appeal
is found in s. 683(1) of the
Criminal Code
, which permits a court
of appeal to receive evidence for the purposes of an appeal where it considers
it in the interests of justice to do so.

[264]

Courts assess whether it is in the interests of justice to admit
fresh evidence on appeal differently depending on the circumstances in which
the information was obtained and the issue to which the information relates.
Where the issue is the admission of fresh evidence discovered after the Crown
has breached its duty to disclose, the principles applied are those established
in
R. v. Dixon
, [1998] 1 S.C.R. 244; otherwise, the evidence is assessed
under the test set out in
Palmer v. The Queen
, [1980] 1 S.C.R. 759
at 775:
R. v. Taillefer
, 2003 SCC 70 at paras. 7377.

[265]

The
Palmer
test sets out four principles to guide the courts discretion as
to whether to admit fresh evidence on appeal:

a)

the evidence
should generally not be admitted if, by due diligence, it could have been
adduced at trial. This general principle will not be applied as strictly in a
criminal case as in civil cases, particularly where the evidence is compelling
and it is in the interests of justice to admit it:
R. v. Lévesque
,

2000
SCC 47 at paras. 1415;

b)

the evidence
must be relevant in the sense that it bears upon a decisive or potentially
decisive issue in the trial;

c)

the
evidence must be credible in the sense that it is reasonably capable of belief;
and,

d)

the evidence
must be such that, if believed, it could reasonably, when taken with the other
evidence adduced at trial, be expected to have affected the result.

The overriding consideration for the court, in accordance
with the language in the
Criminal Code
, is the interests of justice:
Lévesque
at para. 14.

[266]

The
Dixon
test applies when the information on which the
defence relies was improperly withheld from them at trial in breach of the
Crowns
Stinchcombe
duty to disclose all relevant, non‑privileged
material in its possession or control. Relevance means the material could
reasonably be of some use to the defence in meeting the Crowns case, advancing
a defence, or otherwise making a decision that may affect the conduct of the
defence:
R. v. Egger
, [1993] 2 S.C.R. 451 at 467.

[267]

Where the defence is successful in showing a breach of
Stinchcombe
disclosure obligations, a new trial does not necessarily follow. To obtain
a new trial as a remedy under s. 24(1) of the
Canadian Charter of
Rights and Freedoms
, the defence must show that the non‑disclosure
impaired the accuseds right to make full answer and defence, a principle of
fundamental justice under s. 7 of the
Charter
. The defence can
discharge this burden by demonstrating there is a reasonable possibility the
non‑disclosure affected the outcome at trial
or
the overall
fairness of the trial process:
Dixon
at para. 34.

[268]

Under the first prong of the test, a new trial will be ordered
where there is a reasonable possibility that the evidence
could
have
made a difference to the trial outcome, not whether it
would
have:
R.
v. Illes
, 2008 SCC 57 at para. 25. The accused is not required to
demonstrate that it is probable or certain that the undisclosed evidence would
have affected the result:
Taillefer
at para. 81. To answer this
question, the court must assess whether the trier of fact might have had a
reasonable doubt as to the accuseds guilt had the undisclosed information been
available, having regard to the evidence in its entirety but without conducting
an item‑by‑item assessment of the undisclosed evidence:
Taillefer
at para. 82.

[269]

If the undisclosed information does not affect the reliability of
the verdict, the court will move on to consider the second prong of the
Dixon
test: whether there is a reasonable possibility that the overall fairness
of the trial was impaired as a result of the non‑disclosure. This stage
considers whether realistic  not speculative  opportunities to explore
possible uses of the undisclosed information were closed to the defence as a
result of the non‑disclosure:
Dixon
at paras. 34, 36.
The defence can meet this burden by showing that the evidence could reasonably
have been used to impeach the credibility of a Crown witness, to assist the
defence in pre trial investigations and preparations, or in its tactical
decisions at trial:
Illes
at para. 27. The diligence of defence
counsel in pursuing disclosure from the Crown is a relevant consideration in
assessing the overall fairness of the trial process and whether the remedy of a
new trial is warranted:
Dixon
at paras. 3738.

(c) The Brassington Interview

[270]

The appellants base their arguments with respect to this category
of information on the following fresh evidence, which was disclosed to them
following the entry of their convictions:

a)

a Memorandum of
Agreement dated January 15, 2019, between Mr. Brassington and the special
prosecutor in charge of his prosecution in the Supreme Court of British
Columbia agreeing, among other things, that Mr. Brassington will provide
a truthful statement under oath to members of the [OPP] concerning his
knowledge of all matters pertaining to the [charges, including breach of trust
and obstruction of justice, in the indictment under which he was charged in the
Supreme Court of British Columbia]. (The content of this statement would
become the Brassington Interview.) In essence, Mr. Brassington agreed to
be truthful in his statement as a term of the Crowns agreement to a joint
submission on sentence; and

b)

a transcript of
the Brassington Interview, which Mr. Brassington gave under affirmation in
January 2019 to members of the OPP as a condition of his plea agreement.

[271]

In response, the Crown relies on exhibits K and L of
affidavit #1 of Laura Munday, which contain statements K.M. gave to the
OPP on June 13, 2011 and April 26, 2010, respectively.

[272]

It is important context for the appellants arguments to note
that Mr. Brassingtons charges related in part to a relationship he had
with a protected witness in the Surrey Six investigation. The relationship was
sexual, but also involved an emotional connection as Mr. Brassington felt
he had fallen in love with the protected witness. During this relationship, Mr. Brassington
was an RCMP sergeant in charge of managing her as a witness (see
R. v.
Brassington
, 2019 BCSC 265 at paras. 58).

[273]

The
particular portions of the Brassington Interview on which the appellants rely
include a statement by Mr. Brassington that he had no doubt that shady
stuff happened with [K.M. and her police handlers], in part because of what
Cpl. Paul Dadwal, who was K.M.s primary handler for some time, had told
him when they met at a Cactus Club restaurant in South Surrey after Mr. Brassington
had been suspended from duty. He elaborated on the content of the shady
stuff:

And so whatever the hell they
did with [K.M.], and I suspect that it was just a massive amount of drinking
and partying and things like this truth or dare, because at some point I was
told, and I dont know if it was by [the protected witness] or by [Sgt. Dave
Attew] or byI believe it was by Paul Dadwal though, that they had done the
truth or dare game with [K.M.] [redacted] as well.

[274]

Later
in his Interview, Mr. Brassington explained that Cpl. Dadwal had
contacted him to meet at the Cactus Club to support him after he had been
suspended or was on medical leave. He said Cpl. Dadwal explained that:

the same thing happened to him with [K.M.] that happened to
me and [the protected witness], that she was falling for him. He recognized
that she was falling for him. Some shady stuff happened he says [redacted] with
her, and she was calling him at all hours of the night and it got to the point
where his wife eventually said Paul, its either me or [K.M.], whats it going
to be. So Paul Dadwal then went to [Supt.] John Robin and said you
got to get me out. I cant deal with this. But Ross Joaquin was involved with
that, Paul Johnston was involved in that. And John Robin certainly had
knowledge of that. Despite all of that they still rolled me into [handling the
protected witness] after all of that had occurred.

That pisses me off that that was
exploited, if you will. And especially on the heels of what happened with Paul
Dadwal and [K.M.], that John Robin knew aboutPaul told him point blank, he
went to John Robin and told him that she is falling for me and I need to get out
because its wrecking my house life.

(i) The Appellants Arguments

[275]

The appellants argue the information in the Brassington Interview
is relevant and should have been disclosed before trial because it relates to
misconduct by the three police officers who were in charge of handling K.M.,
who was one of the Crowns key witnesses at trial. In particular, the
appellants urge us to infer from Mr. Brassingtons statement that the
same thing happened to [Cpl. Dadwal] with [K.M.] that happened to [Mr. Brassington]
and [the protected witness] that Cpl. Dadwal confessed to a relationship
at some shady level, namely, a sexual relationship, with K.M. Further,
senior RCMP officers were aware of this misconduct but failed to act. The
appellants also interpret the reference to playing truth or dare to refer to
a sexual game K.M. played with her police handlers.

[276]

The appellants argue both prongs of the
Dixon
test are
engaged as a result of this non‑disclosure. With respect to the first
prong, the appellants submit the trial outcome could have been affected had
this information been known because it was relevant to the credibility of K.M.,
who was key to the Crowns case. K.M.s evidence linked the appellants to guns
and to the events that occurred in the hours before and after the killings. Had
the defence possessed information about K.M.s alleged relationship with Cpl. Dadwal,
they would have used it in their cross‑examination, and, depending on her
response, the judge may not have given much (or any) weight to K.M.s evidence
or may have been less willing to overlook inconsistencies in her evidence.
This, they say, puts the verdicts in question.

[277]

At the second prong of the
Dixon
test, the appellants
argue the undisclosed information impacted trial fairness because they would
have used the information in the Brassington Interview to impeach K.M.s
credibility. They may also have asked the judge to exercise her inherent
jurisdiction to call witnesses such as Cpl. Dadwal or Supt. Robin if
the Crown declined to call them. With respect to pre‑trial investigations
and preparations, the appellants say they would have ensured they had received
sufficient information to identify all occasions on which K.M. and Cpl. Dadwal
had any sort of interaction.

[278]

Finally, the appellants argue the new information in the
Brassington Interview was relevant to the
Vukelich
hearing on the abuse
of process applications because it reveals further police misconduct.

(ii) The Respondents Arguments

[279]

The Crown argues that because the Brassington Interview did not
exist until 2019, several years after the trial had ended, the question of its
admissibility must be resolved under the
Palmer
test, rather than the
Dixon
test. In any event, the Crown submits the information in the Brassington Interview
is not admissible under either test because it cannot reasonably be expected to
have affected the result at trial (failing to satisfy the
Palmer
test),
and there is no reasonable possibility that the non‑disclosure could have
affected the trial outcome or the fairness of the trial process (failing to
satisfy the
Dixon
test).

[280]

The Crown raises the following points in support of its position:

a)

the Brassington
Interview is inadmissible hearsay evidence;

b)

the allegations
the appellants rely on are unreliable and vague;

c)

the
appellants had disclosure at trial showing K.M. repeatedly denied witnessing
inappropriate police conduct;

d)

the appellants
cross‑examined K.M. about late night phone calls with Cpl. Dadwal,
drinking and dancing with police, and sexual text and phone conversations
between K.M. and police;

e)

the judge had
many reasons for accepting K.M.s evidence, including the fact it was
corroborated by independent evidence, and she rejected the defence argument
that K.M. was too close to the police; and

f)

the
judge convicted the appellants on the basis of a broad spectrum of
circumstantial evidence of which K.M.s testimony formed only one part.

(iii) Discussion

[281]

We begin with two preliminary matters raised by the Crown. First,
in our view, the information in the Brassington Interview properly falls to be
analyzed under the
Dixon
test, not the
Palmer
test. The relevant
time to consider in determining which test applies is when the police (or the
Crown, as the case may be) came into possession of the information the
appellants say ought to have been disclosed.

[282]

In this case, the information the appellants say ought to have
been disclosed is the alleged shady relationship between K.M. and her police
handlers, particularly Cpl. Dadwal, and the knowledge of senior RCMP
officers of this shady activity. It is the information discussed in the
Brassington Interview, rather than the statement itself, that is the subject of
the alleged non‑disclosure. This information relates to the handling of
K.M. as a witness
before trial
. At the latest, it would have been in the
hands of the police when the conversation between Mr. Brassington and Cpl. Dadwal
occurred. Although the exact timing of the conversation is uncertain, Mr. Brassington
says it took place around the time he was suspended from the RCMP. His
suspension occurred in the spring of 2010, well before the trial.

[283]

Second, we note the Crown objects to the admission of the
Brassington Interview as fresh evidence on the basis it is inadmissible hearsay
when tendered through the affidavit of Ms. Ma, a legal assistant to the
appellants counsel. Ms. Ma does not have personal knowledge of the truth
of the contents of the Interview. The Crown relies on
R. v. OBrien
,
[1978] 1 S.C.R. 591 at 602;
R. v. Teneycke
(1996), 108
C.C.C. (3d) 53 at para. 18 (B.C.C.A.); and
R. v. Dell
(2005), 194
C.C.C. (3d) 321 (Ont. C.A.) at paras. 8586, leave to
appeal refd [2005] S.C.C.A. No. 524, in support of this argument.
However, these cases refer to evidence that was required to meet the
Palmer
test for admissibility as fresh evidence, not to information not disclosed to
the defence.

[284]

The appellants did not address this issue in their factums or
their oral submissions. We find it unnecessary to resolve this admissibility
question because even if the Brassington Interview were admissible, we conclude
the appellants have failed to demonstrate a breach of the Crowns disclosure
obligations or that the
Dixon
test is met.

Have the Appellants Demonstrated a Breach of the
Duty to Disclose?

[285]

The onus is on the appellants to demonstrate on a balance of
probabilities that the Crown breached its disclosure obligations. As already
noted, they rely on the Brassington Interview as evidence of the existence of a
shady relationship between K.M. and her police handlers, particularly Cpl. Dadwal,
and as evidence that senior RCMP officers had knowledge of this shady
activity.

[286]

It is common ground the police have a duty to provide to the
Crown all relevant material in their possession:
R. v. McNeil
, 2009 SCC 3
at paras. 2324. This relevant material includes the fruits of the
investigation, meaning the information in the police investigative files, and
any other information that is obviously relevant to the accuseds case:
R.
v. Gubbins
, 2018 SCC 44 at paras. 2123. For example, records of
serious misconduct by police officers involved in the investigation of the
accused are obviously relevant when the misconduct is related to the
investigation or could reasonably impact the case against the accused:
McNeil
at paras. 15, 5459.

[287]

We agree that police misconduct in the handling of a witness is
obviously relevant to the accuseds case. Accordingly, the police are
required to disclose any such information to the Crown, and the Crown in turn
to the defence. However, we do not agree that the Brassington Interview
establishes the police had information about misconduct in the handling of K.M.
that was improperly withheld from the Crown, and in turn, improperly withheld
from the defence.

[288]

First, we do not accept that the Brassington Interview
establishes a confession by Cpl. Dadwal that he had a sexual
relationship with K.M. Read in isolation, and with knowledge of the sexual
relationship Mr. Brassington had with the protected witness, his
statement, the same thing happened to [Cpl. Dadwal] with [K.M.] that
happened to me and [the protected witness], could imply a sexual relationship
between K.M. and Cpl. Dadwal. However, when this statement is read in
context, the more reasonable interpretation is that Mr. Brassington was describing
an emotional dependence on the part of K.M. as a result of the investigations

moving
witnesses strategy. This is supported by Mr. Brassingtons repeated
statement that K.M. was falling for Cpl. Dadwal and was calling him at
all hours. In any event, Mr. Brassingtons understanding or belief about
the nature of the relationship between K.M. and Cpl. Dadwal as discussed
in his Interview is hearsay.

[289]

Even absent a sexual relationship, a witnesss close personal
relationship with or emotional dependence on an investigating officer may well
be relevant to the accuseds case, as it may impact the witnesss credibility
and motive to testify. However, the defence received  and relied on at trial
significant disclosure about the nature of the relationship between K.M. and
her police handlers, including Cpl. Dadwal. This will be discussed later
in these reasons when considering whether the appellants have demonstrated a
reasonable possibility that either the verdict or trial fairness could have
been impacted by the alleged non‑disclosure.

[290]

Given our findings with respect to the confession Cpl. Dadwal
allegedly made to Mr. Brassington, we also conclude the appellants have
not proved that senior RCMP officers knew of misconduct in the nature of a
sexual relationship between K.M. and Cpl. Dadwal and failed to address it.
Any allegations of this nature in the Brassington Interview are hearsay, as Mr. Brassington
did not have personal knowledge of what Cpl. Dadwal said to Supt. Robin,
or of what Supt. Robin understood from that conversation.

[291]

The appellants also rely on the Brassington Interview as evidence
of shady behaviour by the police in their handling of K.M. as a witness
generally. In particular, Mr. Brassington stated that he believed the
shady stuff was likely just a massive amount of drinking and partying and
things like this truth or dare. Earlier in his statement, Mr. Brassington
confirmed that another officer, who was also criminally charged in relation to
his misconduct in the handling of the protected witness (but the charge was
subsequently stayed), asked the protected witness to masturbate in front of him
during truth or dare. Mr. Brassington did not recall who told him
officers had played truth or dare with K.M.  first he said it could have been the
protected witness or Dave Attew, then he said he believed it was Cpl. Dadwal.

[292]

The information Mr. Brassington related is not sufficiently
clear and reliable to support a finding on a balance of probabilities that
undisclosed misconduct occurred in the handling of K.M. The words he used to
discuss the shady stuff indicate he was speculating about what may have
occurred, using language like whatever the hell they did with [K.M.] and stating
he suspect[s] it involved drinking, partying, and things like the truth or
dare game. Mr. Brassington could not recall who told him about the truth
or dare game, but it is clear that he did not have personal knowledge of it, or
any of what occurred in the handling of K.M. Mr. Brassington and K.M. had
never met.

[293]

Furthermore, the appellants did receive disclosure from the Crown
about K.M. drinking and partying with police officers. There is no indication
that the shady stuff Mr. Brassington suspected occurred with K.M. was
anything different than the conduct disclosed to the appellants. Again, this
disclosed information will be discussed below.

[294]

We conclude the appellants have not established that the Crown
breached its
Stinchcombe
disclosure obligations. Mr. Brassington
did not have personal knowledge of any of the information he related, and in
any event, the language he used in the Brassington Interview, read in context,
does not give rise to a compelling enough inference that undisclosed misconduct
occurred in the handling of K.M. The Interview contains second‑hand
information discussed almost a decade after it allegedly took place. This
information does not prove a breach of disclosure on a balance of
probabilities.

[295]

Although we need not address whether the
Dixon
test is
satisfied given this conclusion, we will do so as we received full submissions
on the issue and it is an important aspect of the appellants arguments.

Is There a Reasonable Possibility That Non‑disclosure
Could Have Affected the Trial Outcome or the Fairness of the Trial Process?

[296]

Even if the appellants had succeeded in establishing a breach of
their right to disclosure of the Brassington Interview, they have not persuaded
us that a new trial would be an appropriate remedy under s. 24(1) of the
Charter
.
Before addressing the trial fairness branch, the
Dixon
test typically
considers whether the undisclosed information could have affected the verdict.
But because the appellants argument about the validity of the verdict relates
to K.M.s credibility, we consider it appropriate to first consider the trial
fairness branch. In assessing the trial fairness branch of
Dixon
, we
will canvas the ways the defence attacked K.M.s evidence at trial, which
informs whether the undisclosed information could have raised a reasonable
doubt in the circumstances before the trial judge.

[297]

For two reasons, we do not accept the appellants argument that
there is a reasonable possibility the information in the Brassington Interview
could have impacted trial fairness. First, as we alluded to above, the
appellants received disclosure about the nature of the relationship between
K.M. and her police handlers, including Cpl. Dadwal, in which she
repeatedly denied witnessing inappropriate police conduct and denied having a
relationship with Cpl. Dadwal. Second, the appellants cross‑examined
K.M. at trial about her relationship with her police handlers.

[298]

The two statements K.M. gave to OPP officers in 2010 and 2011
during their investigation of the police misconduct in the Surrey Six
investigation were disclosed to the appellants. In her first statement, K.M.
informed the interviewer that her initial contact with the RCMP was through
Cpl. Dadwal. He was the primary officer who spoke to her about becoming
involved with the RCMP after she was arrested by the RCMP for unrelated
offences. K.M. also named a number of other officers who assisted in her
handling once she signed on, and explained that Cpl. Dadwal mostly did
interviews and stuff during the Surrey Six investigation.

[299]

When K.M. was explicitly asked whether anything inappropriate
had happened between her and any of the RCMP members as had happened between Mr. Brassington
and the protected witness, or that would be inappropriate given her position as
a witness, she said, No. When she was asked about a blog post that indicated
she may have been involved with Cpl. Dadwal, she explained that people had
assumed she was the girlfriend of a member of the Red Scorpions who had been
involved with an officer. K.M. was angry that people were talking about her
that way and said, theres never  been anything weird or fucked up. She
added that she did not want to fuck up this case and that she was not a dumb
ass like that other girl.

[300]

In her second interview with the OPP, K.M. was specifically asked
to discuss her experiences with Cpl. Paul Johnston and Cst. Danny Michaud.
At some points in the interview, K.M. used the initials PJ to refer to Cpl. Johnston.
At other points, she used the first name Paul, which is also the first name
of Cpl. Dadwal.

[301]

K.M. was asked how many times she was looked after by Paul and
Danny and just them, and she responded that it was two to three times. When
asked when those times were, she was not sure of the exact dates, but noted she
had not seen Paul since  all that stuff came out about the other cops fucking
that girl.

[302]

The OPP interviewer asked K.M. about her activities with the
officers. She mentioned going to a hockey game in another city. She was asked
whether she went to a hockey game with Danny and Paul more than once, and she replied,
No. When asked about the weekend they went to the hockey game, K.M. said the
officers had come out to visit because she was having a rough time. Somebody
would come out to see her every three or four months. After the hockey game,
she went out for drinks with PJ and Danny but the officers did not stay long
and left before she did. She could not remember details, and it was kind of a
blackout night.

[303]

K.M. could not remember many other details of the trip because
she had an issue with drinking. She was asked about a text message she sent
to Paul the day after the game that said, I knew I was fucked up but I
didnt realize how really fucked up I am. It was good to see you, thank you so
much. Dannys pretty cool too ha ha. She said the text was about her mental state
in general and not about what had happened the night before.

[304]

K.M. was asked yet again about whether anything inappropriate had
happened with any of the officers, and she said No. She elaborated, saying
she did not think she would even be half as good as [she is] right now if it
wasnt for them, that she missed Paul a lot because he was really kind and
made her feel like she could do this, and that they were her only support
team because she lost everything.

[305]

The Crown disclosed these statements to the defence (in December 2011
and April 2013) before the trial. K.M.s interviews with the OPP came up
during her cross‑examination, but the defence did not make much use of
them other than to question her about the night of the hockey game she discussed
in her second OPP statement.

[306]

We have considered the appellants submission that cross‑examination
is unpredictable and one can never know what witnesses will say when questions
are put to them in different ways. However, given K.M.s repeated denial of any
inappropriate relationship between herself and Cpl. Dadwal or any of the
other officers in her interviews with the OPP (and the non‑specific
suggestion of impropriety in the fresh evidence), there is no reasonable
possibility that putting those suggestions to her in cross‑examination at
trial could have resulted in any different answer.

[307]

During the extensive cross-examination of K.M. at trial, she was
questioned about late night phone calls with Cpl. Dadwal, drinking and
dancing with the police, and text and telephone communications between K.M. and
the police that contained some sexual banter. Counsel put to her a 15‑tabbed
volume of transcripts of text messages and phone conversations she had with
various police officers. While the appellants say the police lost some of the
text messages and/or telephone records, K.M.s testimony on the topic of texts
and calls did not reflect a sexual relationship with Cpl. Dadwal. In
addition, given the close relationship K.M. had with the police, counsel submitted
to the trial judge that she should view K.M.s evidence with extreme
skepticism as she stands firmly in the corner of the prosecution: Trial
Reasons at para. 498.

[308]

With all this in mind, there is no reasonable possibility that
the overall fairness of the trial process could have been impacted by the
information in the Brassington Interview. The appellants were provided
disclosure about shady stuff that occurred and the close relationship between
K.M. and the police. They thoroughly pursued this line of inquiry in her cross‑examination.
No realistic opportunities to explore uses of the information were closed to
the defence as a result of non‑disclosure.

[309]

Finally, having regard to the evidence in its entirety, we
conclude there is no reasonable possibility that the non‑disclosure could
have affected the outcome at trial. We agree K.M.s evidence, and therefore her
credibility, was very important to the Crowns case. However, the trial judge
accepted K.M.s evidence despite the appellants thorough attack on her
credibility, rejecting the argument that she was too close to the police and noting
that material aspects of her testimony were confirmed by independent evidence:
Trial Reasons at paras. 482508.

[310]

Accordingly, even had we found the Crown breached its duty to
disclose the information discussed in the Brassington Interview, we would not
have ordered a new trial: the appellants have not persuaded us that any such
non‑disclosure could have impaired their right to make full answer and
defence.

[311]

In light of our conclusion, as explained later in these reasons,
that a hearing of the stay applications is required, it is unnecessary to
address the appellants further argument that the information in the
Brassington Interview was directly relevant to the
Vukelich
hearing as
being further evidence of police misconduct.

(d) Person Ys WPP Status

[312]

As we explain earlier in these reasons, Person Y is a former
member of the Red Scorpions who acted as a police agent during the Surrey Six
investigation. He subsequently pleaded guilty to two unrelated first degree
murders in April 2010, for which he is serving a life sentence with no parole
eligibility until 2035. His evidence at trial, given between March 10 and April
1, 2014, was important in implicating the appellants in the murders. He was
treated as an unsavoury witness by the trial judge, who conducted a careful
review of his credibility and reliability: Trial Reasons at paras. 46681.

[313]

In the fall of 2018, this Court heard a disclosure application
made by the appellant Johnston, and supported by the appellant Haevischer, for
Person Ys WPP records. Although the Crown disputed the relevance of the
documents, it disclosed the information in its possession relating to Person Y
seeking and being afforded entry into the WPP, redacted for privilege, in
response to the applications. Those materials are the subject of this part of
the appellants fresh evidence application. The Court dismissed the appellants
application for further disclosure in reasons indexed as
R. v. Johnston
,

2019 BCCA 107.

[314]

The appellants proposed fresh evidence relating to Person Ys
WPP status is the following:

a)

evidence
described as correspondence of Supt. Robin between May 2013 and
April 2014 relating to Person Y, disclosed to the appellants in October
2018; and

b)

email exchanges
between the Integrated Witness Protection Section of the RCMP and the
Correctional Service of Canada (CSC) regarding Person Ys entry into the
WPP shortly after his testimony at the appellants trial, disclosed to the
appellants in December 2017.

[315]

In response, the Crown relies on various exhibits appended to
affidavit #1 of Laura Munday. The exhibits include redacted documents
disclosed to the appellants on dates ranging from September 2010 to
February 2016 and various letters between counsel. The information is
intended to provide the Court with an understanding of what had been disclosed
to the appellants before and during the trial.

[316]

Also relevant to this issue is Category 5 of the fresh
evidence filed by the
Amici
and the Crowns responsive evidence, which
is contained in the sealed affidavit #2 of Laura Munday.

[317]

We will provide an overview of this evidence and refer to it as
required in our analysis.

(i) Information Disclosed to the Appellants Before
or During the Trial

[318]

As a justice system collaborator, Person Y faces heightened
security concerns in prison:
Johnston
at para. 114. Information
disclosed in April 2012 shows that Person Y had been moved between the
custody of the CSC and the RCMP due to difficulties with being recognized and
threatened while in CSC custody. For his safety, Person Y had been
required to enter segregation in CSC custody. Through his counsel, he expressed
concerns about returning to segregation upon his return to CSC custody and its
effects on his health.

[319]

Information disclosed on March 7, 2014, before Person Y
testified, reveals his cooperation depended on having placement in CSC that did
not require him to be in worse conditions than the average inmate due to his
cooperation.

(ii) Newly Disclosed Information Provided to the
Appellants

[320]

The newly disclosed information indicates that in July 2010,
Person Y told CSC officials and the police he would become an
uncooperative witness if he were involuntarily transferred to another
institution or placed in segregation for protective purposes. The information
further shows that in October 2010, Crown counsel responsible for the
prosecution believed that if Person Y were placed in segregation, his
ability to provide meaningful evidence as a witness would be jeopardized by the
deterioration of his mental state.

[321]

Correspondence from Supt. Robin indicates he had begun the
process of applying for a witnesss admission to some sort of program in May 2013.
Although the document is heavily redacted, the appellants suggest the
correspondence related to the admission of Person Y to the WPP, and the
Crown appears to accept this suggestion. Further correspondence from Supt. Robin
in September 2013 indicates he had been told by Person Y and his
counsel that Person Ys cooperation would be unlikely to continue if
segregation were considered as a protection option.

[322]

Finally, the affidavit of Cpl. Eric Boucher, sworn on
February 6, 2014, was provided to the appellants in a redacted form on
February 11, 2016, and is appended to affidavit #1 of Laura Munday.
The Boucher affidavit was sworn in support of an application for a Transfer of
Prisoner Order for Person Y (also referred to as a spring order) to
allow him to be kept in RCMP custody until the end of his testimony in April
2014, at which point he would be transferred to a new institution. The
affidavit reflects that, as a result of two previous spring orders, Person Y
had been held in the custody of the RCMP from August 2013 to February 2014 in
conditions reasonably close to the conditions he would experience with CSC. These
orders were obtained because Person Ys physical and mental health were
deteriorating in CSC custody, where he had been living in virtual
segregation.

[323]

Person Y ultimately obtained WPP status for his safety and
protection shortly after he finished testifying.

[324]

We will refer to this body of proposed fresh evidence as the WPP
information.

(iii) Sealed Information Adduced by the Amici and
the Crown

[325]

The
Amici
s fresh evidence contains less‑redacted
versions of the documents than those relied on by the appellants, disclosed to
the
Amici
in March 2020.

[326]

The unredacted Boucher affidavit indicates that when he testified,
Person Y was in the process of entering the WPP. [Sentence removed.]

[327]

[Paragraph removed.]

[328]

[Paragraph removed.]

[329]

[Paragraph removed.]

(iv) The Appellants Arguments

[330]

The appellants argue Person Ys entry to the WPP constituted
an undisclosed benefit to Person Y, and therefore should have been
disclosed. They submit his consideration for entry to the WPP tended to
contradict his evidence and provided a motive for Person Y to gain favour
with the police, who were working to place him in the WPP, and was therefore
relevant to his credibility.

[331]

The appellants submit there is a reasonable possibility the
undisclosed WPP information could have impacted the trial outcome or the
overall fairness of the trial process. Person Ys evidence was crucial to
the Crowns case and his credibility was squarely at issue, particularly as a
Vetrovec
witness. Therefore, the appellants say, [a]nything that called into
question his credibility [has] the potential to affect the outcome of the
trial. The WPP information contradicts Person Ys evidence about his
future in the correctional system. This and the benefit he received from entry
to the WPP both call into question his credibility, and thus the trial outcome.

[332]

Under the second prong of
Dixon
, the appellants say the
failure to disclose the WPP information prevented them from attempting to impeach
Person Ys credibility by confronting him with that information. In
addition, it limited their ability to apply for further information or
challenge the Crowns privilege claims in the documents.

(v) The Amicis Arguments

[333]

The
Amici
s arguments are similar to those of the
appellants. They submit the protective measures and custodial arrangements
available to Person Y through his entry to the WPP may be considered
benefits, which may bear on the witnesss motives and state of mind while
testifying. In particular, Person Y may have been motivated to ingratiate
himself with the police and prosecution by providing favourable evidence:
R.
v. Pascal
, 2020 ONCA 287, leave to appeal refd [2020] S.C.C.A. No. 214.

[334]

The
Amici
submit these benefits could have left a reasonable
doubt with the judge due to their relevance to Person Ys credibility,
which was central to the verdict. Further, the undisclosed information could
have been used to impeach Person Y on his evidence about his conditions of
confinement. Finally, the
Amici
support the appellants argument that
the non‑disclosure prevented them from challenging the Crowns privilege
claims.

(vi) The Respondents Arguments

[335]

The Crown submits this Courts decision in
Johnston
is
determinative of these issues. In dismissing the disclosure application, the
Court in
Johnston
found there was no reasonable possibility the WPP
information could have affected the trial outcome or the fairness of the trial
process:
Johnston
at para. 125. The Crown urges us to adopt the
same analysis with respect to the non‑disclosure of the WPP information
on these appeals.

[336]

The Crown says
Johnston
also disposes of the
Amici
s
arguments. [Sentence removed.]

(vii) Discussion

[337]

The Crown accepts the appellants and the
Amici
have
established a breach of
Stinchcombe
disclosure from its failure to
disclose the steps taken and decisions made respecting Person Ys future
custodial arrangements (subject to privilege claims). The Crown accepts this
Courts conclusion in
Johnston
that, due to the possibility of Person Y
viewing his enrollment in the WPP as a benefit (even if the Crown did not), WPP
information dealing with promises made to Person Y about the WPP, and any
of his demands regarding the same, came within the scope of the Crowns
disclosure obligations under
Stinchcombe
: at paras. 10304.

[338]

Accordingly, the issue on these appeals is whether the appellants
and the
Amici
have established that this breach of the appellants right
to disclosure also breached their s. 7 right to make full answer and
defence. Although
Johnston
dealt with a somewhat different issue, we
agree with the Crown that the Courts reasons for dismissing the appellants
disclosure application apply equally to the non‑disclosure issue raised on
these appeals.

[339]

The Court in
Johnston
had to decide whether to order
disclosure of all materials and information relating to Person Y and the
WPP. As we noted above, the Crown disclosed the disputed information, subject
to privilege claims, during the course of that application. Although challenges
to those privilege claims were also before this Court, the division found it
unnecessary to address that issue because of its conclusion that the documents
failed to meet the threshold relevance test necessary to order disclosure in
the course of an appeal.

[340]

To assess relevance, Justice Griffin, writing for the Court
in
Johnston
, considered whether there was a reasonable possibility the
records might assist the appellant in prosecuting an appeal: at para. 80.
This question is to be assessed in the context of the possible uses of the
information to support the grounds of appeal in that particular proceeding.
Given that the proposed use of the information was to support a fresh evidence
application under the
Dixon
test, the question before the division in
Johnston
was whether there was a reasonable possibility the disclosure would assist the
appellants in arguing the
Dixon
test was met: at paras. 8182.

[341]

As we have already noted, Griffin J.A. concluded there was a
reasonable possibility the records would assist the appellants in showing a
breach of the Crowns duty to disclose at trial, which the Crown now accepts on
this appeal. However, this was only the first step in the necessary analysis
since, to be successful on the
Dixon
test, the appellants would also
have to show the non‑disclosure could have affected the trial outcome or
trial fairness: at para. 105. It is the Courts conclusions in this
respect that are particularly relevant to the issues before us on these appeals.

[342]

As
in their disclosure application, the appellants focus on the following
paragraphs of the trial judges assessment of Person Ys credibility in
which she discussed the relevance of Person Ys evidence regarding his
conditions of confinement to his motives to testify to (a) earn a profit and
(b) have revenge on his former Red Scorpions associates:

[477]    While [the amount the RCMP paid to Person Y is]
unquestionably a very significant total sum, whether these financial benefits
would influence or shape Person Ys evidence in favour of the Crown must
be considered in context. First, none of it was paid to him as an incentive to
tell the police about his involvement in the murders. Much of the payment was
for his work as a police agent  following his own decision to cooperate.
Second, Person Y acknowledged earning substantial sums as a criminal in
the drug business so the benefits must be considered comparatively.
Third,
and most importantly, it is unlikely that even the amount of money Person Y
received can be considered a substantial benefit when serving 25 years to
life of hard time.
When it was put to Person Y in cross-examination
that his cooperation was motivated at least in part by profit, his response was
as follows:

Let me tell
you this, there is no money that can pay me for the -- for -- for the -- the
difference and from the time, and I have the -- the situation of being an agent
in prison. Im sentenced to 25-to-life and Im --
my time compared to any --
any gangster going in for 25-to-life, is apples and oranges now. Im not
sentenced to be -- to be subject to 24-hours verbal abuse and attacks and
having this living -- living with the end of the -- in the -- in segregation at
the very end alone because I cant go anywhere else because Im less than a
child molester so Im -- so if -- if youre talking about that type of paid
for, you cant pay for those things.
Money doesnt come into it.

[Transcript, March 27, 2014,
p. 28]

[479]
Person Y had
no motive to falsify his evidence. He freely acknowledged his disdain for Mr. Johnston
as a person, but he had nothing to gain by implicating either accused.
Counsel for Mr. Haevischer observed in his final submissions that Person Y
did not appear to have a bias in favour of the Crowns case; and that if he had
any bias, it was against his former boss, Mr. Bacon.
It was suggested
to Person Y in cross-examination that his cooperation was driven by his
hatred for Mr. Bacon, and that the accused were simply collateral damage
in his desire to seek revenge against Mr. Bacon. Person Ys response put
that suggestion in perspective
:

Q Your motive is not justice, your
motive is revenge.

A Revenge?

Q Just like you --

A You think --
what would
revenge mean for me, man? Im in prison. Im never leaving solitary confinement
or protective -- super-duper protective custody.
Revenge?

Q Yeah.

A Revenge is
nothing man. You think I care about revenge? Thats -- what does that get me?
Nothing. I care about just dealing with my conscience, man. I could care less
about your little revenge. Oh, I -- I hate more -- I get more intense about
politics, about what is going on with the -- whats going on in the U.S. in
politics than I do worried about Jamie Bacon or Matt Johnston or Blake Cody
Haevischer, believe -- they -- they dont even make my list. I dont care. This
is justice, but revenge, sorry, sir, I -- I dont carry that in my heart and
that means nothing to me. Revenge -- the revenge --
technically they have
the last laugh, even when they get found guilty, because they get -- they get
to go into a system with open arms, so theyre gangsters for six homicides,
theyre big tough gangsters and they didnt rat, so whats revenge? And then I
will sit in a hole for the rest of my life.
No, Im doing this because I
made a commitment to do this and this is the one right thing Im doing in my
life, period.

[Transcript,
April 1, 2014, pp. 60-61]

[Emphasis added.]

[343]

Like the division of this Court in
Johnston
, we conclude
there is no reasonable possibility the undisclosed WPP information could have
affected the trial verdict. A fair reading of Person Ys evidence,
considered in the context of all the other evidence before the trial judge and
her reasons for accepting Person Ys evidence, leads us to this conclusion.

[344]

First, we agree with this Courts conclusion in
Johnston
that
the undisclosed WPP information does not directly contradict Person Ys
evidence in the manner the appellants suggest. As Griffin J.A. explained,
Person Ys testimony was not a bare assertion that he would spend the rest
of his life in solitary confinement due to his cooperation with the RCMP: at para. 113.
Instead, his evidence spoke to the fact it was against his interests to
cooperate with the police because he would be labelled a rat by other inmates
and require extra protection. Had he refused to cooperate, he would not face
those threats or require additional protection.

[345]

In our view, Person Ys evidence that he would be serving
his sentence in a hole or placed in solitary confinement or super‑duper
protective custody was consistent with his experience at that time in serving
his sentence. By April 2014, he had spent much of his placement in CSC in
solitary confinement or had been in RCMP custody. At times he lacked companionship
and basic amenities like daylight and exercise for at least one hour per day.
Further, his application to the WPP, which was in the works, was not complete
at the time of his testimony.

[346]

Second, even if Person Ys evidence could be read in the
manner the appellants suggest, the newly disclosed WPP information does not
materially change the
reason
the judge relied on the impugned testimony
in her assessment of Person Ys credibility. She concluded it was
unrealistic to contend the money Person Y received or the potential for
revenge against the Red Scorpions motivated his decision to testify against the
appellants given that he was serving 25 years to life of hard time made
worse by his cooperation. The undisclosed information does not undermine the judges
conclusion that the financial incentives or opportunity for revenge would be
outweighed by the hard time Person Y knew he would face in order to keep
him safe as a result of his cooperation. As Griffin J.A. explained in
Johnston
,
there is no reasonable basis to suggest a promise that Person Y would be
enrolled in the WPP, as a means of trying to keep him safe in prison, would
have provided him with an expectation that he would be better off in custody
than he would have been if he had not been a cooperating witness: at para. 117.

[347]

Third,
the trial judge explained the multiple factors she considered in assessing
Person Ys credibility. The paragraphs on which the appellants rely form
only a part of that assessment.

Justice Griffin summarized the factors
the trial judge took into account in assessing Person Ys credibility and
reliability at paragraph 24 of
Johnston
as follows:

a)

Person Y
had a history of serious and horrific violent criminal behaviour which led him
to describe himself as a monster and a despicable human being. The trial
judge also found this to make him somewhat unique as a
Vetrovec
witness,
in terms of his degree of self-awareness;

b)

he went to
police of his own volition, and his cooperation was not the result of an arrest
for his part in the offences. Notably, he volunteered that he gave his Glock
semi-automatic handgun to Person X prior to the police telling him that they
discovered a Glock bearing his DNA at the crime scene;

c)

he had the
opportunity to evade Canadian law enforcement as he spent periods of time in
South America in 2009. When he returned to Canada from South America in April
2010, he had been living free in Brazil and beyond the reach of Canadian law
enforcement. He could have walked away from any commitments made to the police
about his guilty pleas and testimony;

d)

he
provided information with the understanding that, as a consequence of providing
his statements, he would be charged with two counts of first degree murder for
crimes separate from the Surrey Six murders;

e)

Person Y
made no plea agreement with the Crown that would, in return for his testimony,
affect his period of imprisonment. He entered his guilty pleas knowing that, as
a former police agent and current justice system cooperator, he was facing 25
years of very hard time in prison;

f)

the
RCMP paid significant monies to Person Y for his work as an agent, including
over $475,000 plus an ongoing payment for incidental and canteen expenses in
jail, as well as his legal expenses of $472,627. However, the trial judge did
not find these payments to influence or shape Person Ys evidence in favour of
the Crown because: (i) none of it was paid as an incentive to tell police about
his involvement in the murders; (ii) one must consider the benefits
comparatively, as Person Y acknowledged earning substantial sums as a criminal
in the drug business; and (iii) it was unlikely the money constituted a
substantial benefit when serving 25 years to life of hard time;

g)

during his
nearly ten days under cross-examination, Person Y did not attempt to minimize
his past criminal activities or his role in the conspiracy to kill Mr. Lal;

h)

when
uncertain about aspects of his evidence, Person Y declined to implicate the
appellants;

i)

Person
Y had no motive to falsify his evidence; and

j)

independent evidence corroborated Person Ys evidence in many respects.

[348]

Considering all the evidence before her, the trial judge
concluded Person Ys actions spoke for him and answered many of the
credibility concerns raised by the appellants: Trial Reasons at para. 481.
Of particular note is the fact Person Y made his decision to cooperate
with the police on the Surrey Six investigation
before
any issues about
his custodial conditions arose, as he was not in custody at the time and had
not pleaded guilty to, or been charged with, any offences. In this context,
there is no reasonable possibility that if the trial judge had the undisclosed
WPP information before her, the result at trial could have been different. This
conclusion applies with respect to the fresh evidence adduced by both the
appellants and the
Amici
.

[349]

Under the second prong of
Dixon
, we are not persuaded
there is a reasonable possibility the failure to disclose the WPP information
could have affected the overall fairness of the trial.

[350]

We agree with the conclusion in
Johnston
that the
undisclosed WPP information could not reasonably be expected to have made a
difference to the appellants ability to impeach Person Ys credibility.
This is in part because of our conclusion above that Person Ys evidence
was not necessarily inconsistent with the undisclosed WPP information, and in
part because  as Griffin J.A. explained in
Johnston
 Person Y
was testifying to his belief or expectation about his future prison conditions,
which would be difficult to impeach: at para. 115. This is particularly so
as correspondence from Person Ys counsel indicates he believed the RCMP
had failed on multiple occasions to respect their promises with respect to Person Ys
confinement conditions.

[351]

We also agree with the Court in
Johnston
that if the
appellants had wished to challenge Person Ys evidence about his custodial
conditions, they could have done so using information disclosed to them,
including the fact he had been promised similar treatment and privileges as
other inmates as a condition of cooperation: at para. 118. [Sentence
removed.]

[352]

We further disagree that the lack of disclosure prevented the
appellants from applying for further information about Person Ys
custodial circumstances or challenging the Crowns privilege claims. Although
we accept that in some circumstances, later disclosure can shed light on areas
that seemed less important without knowledge of that additional information,
this is not such a case. The appellants knew Person Y had been promised a
certain standard of care within the RCMP and the CSC as a condition of
testifying. They also knew Person Y had gone between RCMP and CSC custody
and that the Crown viewed these movements as being irrelevant and privileged.
The appellants were not prevented from cross‑examining Person Y
about this information. The WPP information does not meaningfully change any of
the information available to the appellants before Person Ys testimony.

[353]

Even if the appellants had applied for further disclosure or
challenged the privilege claims on the basis of the WPP information and the
sealed evidence before us on this application, we conclude it would not have
made a difference to the appellants conduct at trial. [Two sentences removed.]

[354]

We agree with Griffin J.A.s finding that the information
was at best minor and tangential to Person Ys credibility:
Johnston
at
para. 123.

[355]

Finally, the circumstances of this case are unlike those in
Pascal
. In
Pascal
, the appellant applied to adduce fresh evidence
showing that one of the Crowns witnesses had an undisclosed criminal record
and outstanding criminal charges when she testified at his trial. Her evidence
changed significantly between her initial police statement and her second
police statement given over a year later, which she adopted in her testimony at
the appellants trial. The criminal charges were laid in the time between her
first and second statements. The trial judge relied on the change in her
statement to accept the complainants testimony over the appellants.

[356]

In the case at bar, Person Y had already pleaded guilty to
the two murders in question and was serving his sentence when he testified at
the appellants trial. Before his evidence began, the appellants had disclosure
showing Person Y was promised, as a condition of his testimony, custodial
conditions similar to those provided to the average inmate. [Sentence removed.]
In these circumstances, and given all the other reasons the trial judge gave in
assessing his credibility, there is no reasonable possibility that the
suggestion Person Y altered his evidence to curry favour with the
prosecution to assist him in gaining entry to the WPP could have raised a
reasonable doubt or affected the fairness of the trial.

[357]

We note the standard applied in
Johnston
was an even lower
standard than the already low reasonable possibility standard set out in
Dixon
,
since the question in
Johnston
was whether there was a reasonable
possibility the information would assist in meeting the
Dixon
test, not
whether
Dixon
itself was met:
Johnston
at para. 83. In the
opinion of the Court in
Johnston
, there was no reasonable possibility
the undisclosed information would assist in meeting the
Dixon
test. For
similar reasons, we conclude the appellants have failed to demonstrate a
reasonable possibility that the WPP information, sealed and unsealed, could
have affected the trial verdict or trial fairness.

(e) Conclusion on Non‑Disclosure Issues

[358]

For the reasons explained in this part, we do not give effect to
either ground five of Johnstons amended notice of appeal that the defence was
denied basic disclosure, or to the fresh evidence application in which the
appellants seek to adduce evidence of the content of the Brassington Interview
and the WPP information. We also dismiss the
Amici
s application to
adduce the fresh evidence contained in Category 5 of its fresh evidence
application. The Crowns fresh evidence is admitted to the extent it was
considered in addressing the appellants fresh evidence and the
Amici
s
fresh evidence in Category 5.

Did the Trial Judge Err in Dismissing the
Applications for a Stay of Proceedings in the Absence of an Evidentiary Hearing
on the Allegations of Abuse of Process?

(a) Background

[359]

The appellants assert the judge erred in summarily dismissing
their applications for a stay of proceedings for abuse of process without
holding an evidentiary hearing. The
Amici
support the appellants
position, relying on confidential information not known to the appellants.

[360]

The
Amici
also apply to adduce fresh evidence, being
Categories 14 of the
Amici
s

fresh evidence application, to
supplement their submissions on this issue. In response, the Crown adduces
additional fresh evidence attached as exhibits to the sealed affidavit #2
of Laura Munday, solely for the purpose of determining the admissibility of the
fresh evidence sought to be adduced by the
Amici
.

[361]

It will be recalled from the introductory section of these
reasons that the trial judge, in her Open
Vukelich
Ruling and Sealed
Vukelich
Ruling, granted the Crowns application to summarily dismiss the appellants
applications for a stay of proceedings as a result of abuse of process. In her
rulings, the judge found police misconduct in the investigation, and the
inhumane conditions in which the appellants were kept while on remand, amounted
to abuses of process. Although she found that stages one and two of the
Babos
test were met, she concluded a stay would be a disproportionate remedy in
light of the seriousness of the offences and the communitys interest in the
entry of the appellants convictions.

[362]

The appellants and the
Amici
challenge the judges Open
and Sealed
Vukelich
Rulings, respectively. Before addressing the
arguments, we will set out the applicable legal principles.

(b) Legal Principles

(i) Abuse of Process

[363]

The appellants claimed abuse of process under both the common law
and s. 7 of the
Charter
. Unless the impugned conduct does not
engage the
Charter
, common law abuse of process is subsumed by the
Charter
:
R. v. OConnor
, [1995] 4 S.C.R. 411 at paras. 7071.

[364]

In
R. v. Jewitt
, [1985] 2 S.C.R. 128, the Supreme Court of
Canada affirmed the authority of trial judges to enter a stay of proceedings as
a remedy for abuse of process. Chief Justice Dickson adopted the test
in
R. v. Young
, [1984] 40 C.R. (3d) 289 (Ont. C.A.),
holding that judges have the discretion to stay proceedings where compelling
an accused to stand trial would violate those fundamental principles of justice
which underlie the communitys sense of fair play and decency and to prevent
the abuse of a courts process through oppressive or vexatious proceedings,
with the caveat that this power may only be exercised in the clearest of
cases:
Jewitt
at 13637.

[365]

The
abuse of process doctrine has developed as a means by which to dissociate the
courts from unacceptable conduct of investigatory and prosecutorial agencies in
a variety of contexts where the conduct may offend the communitys sense of
fair play and decency. It recognizes that while society depends on police to actively
protect us from the immense social and personal cost of crime, there are
inherent limits on the states power to manipulate people and events for the
purpose of  obtaining convictions:
R. v. Mack
, [1988] 2 S.C.R. 903
at 94041. As Justice Lamer (as he then was) explained in
Mack
at 93839:

[C]entral to our judicial
system is the belief that the integrity of the court must be maintained. This
is a basic principle upon which many other principles and rules depend. If the
court is unable to preserve its own dignity by upholding values that our
society views as essential, we will not long have a legal system which can
pride itself on its commitment to justice and truth and which commands the
respect of the community it serves. It is a deeply ingrained value in our
democratic system that the ends do not justify the means. In particular, evidence
or convictions may, at times, be obtained at too high a price. This proposition
explains why as a society we insist on respect for individual rights and
procedural guarantees in the criminal justice system.

[366]

In
Babos
, the Supreme Court of Canada set out the legal
principles pertaining to the abuse of process doctrine, and when a judicial
stay of proceedings may be ordered as a remedy for such abuse. Justice Moldaver,
for the majority, affirmed the two categories of abuse of process cases in
which a stay of proceedings may be warranted. The first relates to state
conduct compromising the accuseds trial fairness (the main category); the
second relates to state conduct that does not threaten trial fairness, but
nonetheless risks undermining the integrity of the judicial process by engaging
in conduct that offends societal notions of fair play and decency (the
residual category). It was common ground at trial that the abuse in question
fell into the residual category.

[367]

Regardless of the category into which the conduct falls, the test
for determining whether a stay of proceedings is warranted involves assessing
the following criteria:

a)

there must be
prejudice to the accuseds 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;

b)

there must be no
alternative remedy capable of redressing the prejudice; and

c)

where
the first two criteria are not determinative, the court must balance the
interests in favour of granting a stay (including denouncing misconduct and
preserving the integrity of the justice system) against the societal interest
in having a final decision on the merits.

(
Babos
at para. 32.)

[368]

Justice Moldaver emphasized the need in residual category
cases to assess these criteria in relation to the impact on the integrity of
the justice system, rather than as redress for past harm done to the specific
accused before the court:
Babos
at paras. 3839. In this category
of cases, the balancing stage is particularly important as either option is
likely to result in some form of prejudice to the integrity of the justice
system, either by staying the proceedings or continuing them despite the
misconduct. The elements the court must consider in the balancing exercise are:

a)

the nature and
seriousness of the impugned conduct;

b)

whether the
conduct is isolated or systemic and ongoing;

c)

the
circumstances of the accused;

d)

the charges the
accused faces; and

e)

the
interests of society in having the charges disposed of on the merits.

(
Babos
at para. 41.)

[369]

The drastic nature of the remedy of a stay of proceedings  which
permanently halts the prosecution, frustrates the truth‑seeking function
of the trial, and deprives the public of the opportunity to see justice done on
the merits  means that it will be ordered rarely and only in the clearest of
cases:
Babos
at paras. 3031, 44. Nevertheless, the more
egregious the conduct in question and the more it shocks the communitys
conscience and/or offends the communitys sense of fair play and decency, the
more likely a stay of proceedings will be required to avoid judicial
condonation of the impugned conduct:
Babos
at para. 41.

(ii)
[Heading Removed]

[370]

[Paragraph removed.]

[371]

[Paragraph removed.]

(iii) The Vukelich Threshold

[372]

The
Vukelich
application, as it has come to be known,
allows a party to apply to the court to dismiss, on a summary basis, an
application for an evidentiary hearing. This process is grounded in the fact
there is no automatic right to a
voir dire
in a criminal trial. Rather,
the appropriate procedure to follow in a particular case is a matter to be
decided by the trial judge in accordance with their trial management powers.

[373]

Vukelich
described the applicable threshold as being a
question of whether a full hearing would assist the proper trial of the real
issues or whether the grounds put forward in the application disclose any
basis for the judge to issue the remedy sought: at para. 26. More
recently, the Supreme Court of Canada has articulated this standard as
requiring an application to have a reasonable prospect of success or of
assisting in determining the issues before the court:
R. v. Pires
, 2005
SCC 66 at para. 35;
R. v. Cody
, 2017 SCC 31 at para. 38. This
assessment is based on an assumption that the allegations advanced in the
proposed application could be proven:
R. v. Frederickson
, 2018 BCCA 2
at para. 26.

[374]

The Crown and the appellants agree the fundamental question
before the judge on a
Vukelich
application concerning abuse of process
is whether a hearing would assist in determining the issues before the court,
namely, whether there has been an abuse of process warranting a stay.

(iv) Standard of Review of the Vukelich Rulings

[375]

The decision to decline to order a full evidentiary hearing is
discretionary and is owed deference unless the discretion has not been
exercised judicially. This is a high threshold, but may be met, for example,
where the discretion is exercised on the basis of an incorrect legal
conclusion:
R. v. M.B.
, 2016 BCCA 476 at paras. 4648, 107;
R. v. Vickerson
, 2018 BCCA 39 at para. 60.

(c) Positions of the Parties on the Open
Vukelich
Ruling

(i) The Appellants Arguments

[376]

The appellants essential argument or basic complaint, as they
set out in their joint factum, is the judge applied too strict a test under
Vukelich
in assessing whether an evidentiary hearing should be ordered. They develop
this argument with reference to errors they allege regarding the judges
application of the test for abuse of process set out in
Babos
.

[377]

The appellants argue the trial judge should have ended her
Vukelich
inquiry and ordered a full hearing upon determining the appellants conditions
of confinement and the misconduct of the investigating officers could amount to
abuses of process. They submit an evidentiary hearing should follow in any
circumstance where the accused shows a basis for demonstrating that the
impugned conduct is offensive to societal notions of fair play and decency.
This is because the full extent and impact of the conduct, which cannot be
known without a full hearing, is relevant to assessing each of the remaining
stages of the
Babos
test, which involves a weighing and balancing
exercise. To carry out that balancing exercise without providing the appellants
an opportunity to demonstrate the full scope of the abuse is not only
fundamentally unfair, but an error in principle.

[378]

The appellants contend the judge erred in failing to take their
case at its highest because she could not have truly done so without
considering their entire case as presented by evidence. Absent a full hearing,
the appellants were prejudiced in meeting stage one of
Babos
because the
Crown controlled information about the extent of the police misconduct and they
were precluded from presenting their own evidence or expert evidence about the
impact of their mistreatment in custody.

[379]

At stage three of
Babos
, the appellants argue the court
cannot balance the factors outlined by Moldaver J. absent determinative
factual findings with respect to the true seriousness of the conduct, whether
the conduct is systemic, and the circumstances of the accused. The full impact
of these criteriaand in particular, the ongoing impacts on the appellants of
the conditions of confinementcould not be understood merely by accepting the
appellants submissions at their highest; the judge needed to hear evidence to
properly assess the weight of these factors.

(ii) The Respondents Arguments

[380]

The Crown submits the appellants have failed to discharge their
onus of demonstrating a reasonable basis on which their stay applications could
be granted, or that an evidentiary hearing would assist the judge in assessing
the merits of their application. The judge had a comprehensive understanding of
the proposed facts and arguments and took them at their highest. However, she
determined the circumstances of the crimes the appellants committed were so
serious that the factors militating against a stay outweighed the factors in
favour of granting one. She exercised her discretion judicially in dismissing
their application, so this Court has no reason to intervene.

[381]

Further, the Crown submits, a stay of proceedings could never
reasonably be granted for the alleged abuse of process in the circumstances of
this case given the horrific nature of the offences.

[382]

As indicated earlier in these reasons, we conclude that errors made
in the Sealed
Vukelich
Ruling require a new abuse of process hearing. It
is therefore unnecessary to discretely address the appellants arguments on the
open hearing. We will address the appellants submissions on whether the judge
applied too strict a test on the
Vukelich
application together with our
analysis of the
Amici
s submissions on the Sealed
Vukelich
Ruling.

(d) Positions of the Parties on the Sealed
Vukelich
Ruling and Sealed Fresh Evidence

(i) The Amicis Arguments

[383]

The
Amici
present arguments on two separate records: one
on the record before the judge on the closed
Vukelich
application; and
the other based on an enhanced record that includes fresh evidence obtained
from the
Bacon
proceedings, assuming its admission on appeal.

[384]

The
Amici
argue that even without the fresh evidence, the
errors in the judges Sealed
Vukelich
Ruling, considered separately or
cumulatively with the errors in her Open
Vukelich
Ruling, require an
evidentiary hearing to determine whether this is one of those rarest of cases
where a stay of proceedings is the only appropriate remedy for the abuse of
process in question. In summarily dismissing the applications for a stay of
proceedings for abuse of process, the
Amici
allege the judge erred by:

a)

drawing
inferences in favour of the Crown rather than inferences available to support
the stay application;

b)

[clause removed];
and

c)

concluding
there was no reasonable possibility a stay would be entered in the
circumstances.

[385]

The
Amici
submit the judge erred by engaging in a fact‑finding
exercise based on the record before her on the
Vukelich
application.
Rather than taking the case at its highest by accepting the inferences most
favourable to the appellants, she preferred inferences that favoured the
Crowns position. The
Amici
submit the judge imposed too high a burden
by effectively requiring them to demonstrate that the inferences they put
forward were the only inferences available. Instead, she should have ordered a
hearing to resolve the conflicts in the evidence.

[386]

[Paragraph removed.]

[387]

Finally, the
Amici
argue the judges balancing analysis at
stage three of
Babos
was based on impermissible factual findings that
led her to conclude the misconduct was based on isolated events and not part of
a larger investigative strategy. [Sentence removed.] Accordingly, the judge
erred in concluding the balance favoured entering the convictions because of
the gravity of the offences and the applications had no reasonable prospect of
success.

[388]

The
Amici
submit the enhanced record supports the need
for an evidentiary hearing. [Two sentences removed.] This conduct is relevant
to stage three of
Babos
, and there must be an evidentiary hearing to
determine the issue.

(ii) The Respondents Arguments

[389]

The Crown submits the judge did not engage in an impermissible
fact‑finding exercise. Instead, she took the facts alleged by the
Amici
at their highest, and properly determined what inferences could and could not
reasonably be drawn from them. The Crown says it is not the law that the judge
had to draw the inferences most favourable to the
Amici
. Accepting this
proposition would render the
Vukelich
hearing ineffective as a filtering
mechanism. A judge is not required to draw inferences unavailable on the
underlying facts.

[390]

Further, the Crown contends the
Amici
do not argue that
the inferences the judge drew were unreasonable or not reasonably supported by
the facts. It is for the trial judge to assess whether alternative inferences
are merely possible or whether they rise to the level of being reasonable:
R.
v. Nguyen
, 2020 BCCA 166 at paras. 2324.

[391]

[Paragraph removed.]

[392]

Finally, the Crown argues that even if the judge erred as
contended, there is still no reasonable likelihood that a stay of proceedings
would be granted after a full evidentiary hearing given the horrific nature of
the crimes. [Sentence removed.]

[393]

[Paragraph removed.]

(e) Discussion

[394]

We disagree with the appellants that the judge failed to take
their case at its highest in her Open
Vukelich
Ruling. She properly took
the facts advanced by the appellants to be true, and proceeded with her
analysis on that basis. This differs from her conclusion on the
Amici
s

arguments. As explained below, we conclude the trial judge erred in her analysis
in the Sealed
Vukelich
Ruling, and ultimately in her conclusion that it
was unnecessary to have a hearing on whether a stay of proceedings should be
granted as a remedy for abuse of process. Accordingly, a new hearing is
required on this issue.

(i) The Trial Judge Erred by Engaging in a Fact‑finding
Exercise Instead of Taking the Amicis Submissions at Their Highest

[395]

In our view, the trial judge erred by weighing the evidence,
drawing inferences, and finding facts on the limited record before her  an
exercise that demonstrates the applications were not appropriately decided on a
Vukelich
application. As a result, she made a related error in finding
that an evidentiary hearing would not assist in resolving the issues before the
court.

[396]

[Paragraph removed.]

[397]

Although she purported to take the
Amici
s arguments at
their highest, the trial judge accepted the Crowns argument that the materials
available on the
Vukelich
hearing did not support the
Amici
s
theory. [Two sentences removed.]

[398]

We agree with the
Amici
s submission that the trial judge
erred in her application of the
Vukelich
test by failing to assume the
truth of the facts sought to be proved and instead, without a complete
evidentiary record, interpreted evidence in favour of the Crowns position. In
so doing, she failed to take the
Amici
s submissions at their highest. [One
sentence and five clauses removed.]

[399]

[Paragraph removed.]

[400]

[Paragraph removed.]

[401]

This error is not, as the Crown submits, a palpable and
overriding factual error, but a failure by the judge to judicially exercise her
discretion under
Vukelich
. The gatekeeping function of the trial judge
in this case was not meant to determine factual controversies without an
evidentiary hearing. The judge had thousands of pages of documents before her
on the
Vukelich
application. Indeed, in this case, the application could
properly be characterized as a modified evidentiary hearing based on
documentary evidence and submissions, but without
viva voce
evidence.

[402]

We disagree that the circumstances of this case are analogous to
those in
Nguyen
.
Nguyen
was an appeal from an order made after trial,
where the judges findings of the facts, and the inferences to be drawn from
them, were based on a full evidentiary record. Here, the judges error was in
making findings about the appropriate inferences to be drawn on the limited
record before her on the
Vukelich
application, rather than permitting
the defence to develop their case by adducing all the relevant evidence. Only
then could the factual controversies be properly resolved.

[403]

On
a
Vukelich
application, the judge should assume the facts the applicant
seeks
to prove
as true and assess whether those facts, assuming they are
ultimately proven, are legally capable of supporting the remedy sought. If the
remedy could not flow from the facts alleged, the judge may exercise their
discretion not to hold an evidentiary hearing:
R. v. Armstrong
, 2010
BCSC 1041 at para. 29, affd 2012 BCCA 242, leave to appeal refd
[2012] S.C.C.A. No. 352. Here, the judge did not assume the facts the appellants
sought to prove
as true. Instead, she made findings of fact at a
preliminary stage using an incomplete evidentiary record. She did what Justice Schultes
warned against in
R. v. Gill
, 2018 BCSC 661 at para. 24, by
deciding the merits of the proposed application:

[24]      One thing the court
must be careful not to do when deciding a
Vukelich
hearing is to
inadvertently decide the actual merits of the proposed application. The only
question for me at this stage is whether there are facts alleged, either in the
notice or counsel's submissions, that if found in the defence's favour could
support one of the remedies being sought. If there are such facts, the
application should proceed to the next stage of a full hearing.

[404]

In sum, where there are factual controversies
(and the facts the defence seeks to prove could support the remedy sought), the
refusal to hold an evidentiary hearing is an error as it prematurely denies the
defence the opportunity to demonstrate why their interpretation of the evidence
should be preferred.
This is particularly so when the defence
allegations are such that they can likely only be established through cross‑examination.
This does not mean the defence is entitled to put forward entirely speculative
allegations of abuse and claim that they can only be proven in cross‑examination.
However, where there is a reasonable basis for the allegation, the judge should
permit the defence to pursue it. In our view, the
Amici
identified
sufficiently reasonable interpretations and plausible inferences to justify an
inquiry, and the trial judge erred by refusing to permit that inquiry.

(ii) The Trial Judge Erred by Imposing Too High a
Threshold on the Vukelich Application

[405]

In light of the cumulative bases advanced by the appellants and
the
Amici
for a stay of proceedings, we conclude the judge erred by
requiring too high a standard to permit an evidentiary hearing. We emphasize
that the applicable threshold is a low one:
Frederickson
at para. 33
.
The appellants and the
Amici
had provided, with reasonable
particularity, the serious grounds upon which the stay applications were made
namely, the police misconduct in the investigation (systemic or otherwise) and
the abuse relating to the appellants time in remand. Based on the record
before the judge and in light of the required balancing at stage three of
Babos
,
together with inferences available on the documents and submissions put before
the judge, taken at their highest, we conclude the appellants and the
Amici
met the threshold of showing a full hearing
would assist
in determining
whether the abuse of process warranted a stay.

[406]

The
Vukelich
hearing was introduced as an expedient
process designed 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:
R. v. Tse
,

2008
BCSC 867 at para. 18. Similarly,
Vukelich
applications have been
used to screen other applications that have no reasonable prospect of success,
including applications for a stay of proceedings based on an alleged abuse of
process:
Trans Mountain Pipeline ULC v. Mivasair
, 2020 BCCA 255 at paras. 5052.

[407]

Vukelich
applications were never intended as a tool by
which to prevent legitimate investigation of alleged
Charter
breaches
or to be a protracted pre‑hearing examination of the minutiae of the
accuseds application:
Tse
at paras. 2122. Extensive submissions
concerning the ultimate merits of an application at the
Vukelich
hearing
stage without the full evidentiary foundation have the potential to unduly
limit the ambit of the inquiry that should be undertaken, resulting in an
injustice:
Tse
at para. 24. Ironically, this can sometimes lead to circumstances
in which
Vukelich
applications unnecessarily extend the length of the
courts inquiry into the issue, contrary to the goal of minimizing delay and
improving efficiency in the conduct of legitimate applications and motions.

[408]

The
Vukelich
application is a type of shortcut
sanctioned by the court where the circumstances clearly show the inquiry will
not assist the court in resolving the issues before it. For example,
Vukelich
itself dealt with a
Garofoli
application, named after
R. v. Garofoli
,
[1990] 2 S.C.R. 1421, challenging the validity of a wiretap authorization under
s. 8 of the
Charter
. In applying the
Garofoli
test, the
court can consider facts that are deleted from or added to the relevant
material in support of the wiretap authorization. If the impugned information
is removed from the material and there is still sufficient information to
support the issuance of the wiretap, then it is clear that embarking on a
hearing to determine whether to remove the offending information does not
assist in the trial of the real issues.

[409]

Here, the circumstances were not so clear. In our view, the
judges determination that the applications stood to be resolved by a balancing
of factors at stage three of
Babos
supports the conclusion that the low
Vukelich
threshold was met. By this point, the judge had determined that stages one
and two of the
Babos
test were made out on the face of the proposed
defence applicationnamely, that the police misconduct would shock the
communitys conscience and/or was offensive to societal notions of fair play
and decency, the integrity of the justice system would be prejudiced by
continuing the proceedings, and no remedy short of a stay was capable of
redressing the prejudice. Clearly, these applications were not frivolous, and
there was a reasonable basis on which to find that a stay of proceedings could
be warranted. As noted, the balancing undertaken by the trial judge at stage
three purported to determine the ultimate issue, but without all of the
evidence. In the circumstances of this case, the appellants were, in fairness,
entitled to present evidence to allow the court to fully weigh the relevant
factors at each stage of the
Babos
test to determine the appropriate
disposition.

[410]

As the judge failed to exercise her discretion judicially by
misapplying the
Vukelich
principles, no deference is owed to her
decision not to hold an evidentiary hearing. We conclude, on the record before
the trial judge and the submissions of counsel, there is a reasonable
likelihood that an evidentiary hearing would assist in determining whether a
stay of proceedings is an appropriate remedy for the state misconduct in
question.

(iii)
[Heading Removed]

[411]

[Paragraph removed.]

[412]

[Paragraph removed.]

[413]

[Paragraph removed.]

(iv) The Amicis Fresh Evidence Application

[414]

The
Amici
s proposed fresh evidence (as it relates to this
issue) falls into the following four categories:

a)

Category 1
 [clause removed];

b)

Category 2
 [clause removed];

c)

Category 3
 [clause removed]; and

d)

Category 4
[clause removed].

[415]

Given our conclusion that a new hearing is required, it is not
strictly necessary to consider the fresh evidence adduced on this issue. That
evidence, if counsel so chooses, may be put before the judge who hears the
appellants applications. However, a few examples from Categories 1 and 2
suffice to show it could be open to a judge to make different findings about
the extent of the misconduct. The findings would depend on the judges
assessment of the evidence and the credibility and reliability of the
witnesses. The Crown concedes the relevance of all the fresh evidence and does
not dispute due diligence with respect to certain evidence in Categories 1
and 2. In our view, the fresh evidence in Categories 1 and 2
establishes there was conflicting evidence about key facts relevant to the
Amici
s
argument, the resolution of which requires an evidentiary hearing.

[416]

[Paragraph removed.]

[417]

[Paragraph removed.]

[418]

[Paragraph removed.]

[419]

[Paragraph removed.]

[420]

[Paragraph removed.]

[421]

For these reasons, the evidence discussed from Categories 1 and 2
is, under the
Palmer
test, reasonably capable of affecting the result of
the
Vukelich
application. This supports our conclusion that an
evidentiary hearing is required to determine the seriousness of the abuse of
process and whether a stay would be an appropriate remedy. Further, even had
the judge not erred as described, the fresh evidence alone justifies an
evidentiary hearing.

(v) There Are No Categories of Offences for Which a
Stay of Proceedings Can Never Be an Appropriate Remedy for an Abuse of Process

[422]

We must also reject the Crowns repeated submission 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. To repeat Lamer J.s
comment in
Mack
, while society depends on police to actively protect us
from the immense social and personal cost of crime, there are inherent
limits on the states power to manipulate people and events for the purpose
of  obtaining convictions: at 94041.

[423]

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. Accordingly, there is no category of offence
that is beyond the ambit of the abuse of process doctrine.

[424]

In any event, we do not see the outcome of the balancing in the
third stage of
Babos
as inevitable. The abuses of process accepted by
the judge in her
Vukelich
Rulings included very serious allegations of
police misconduct and improper cooperation between the RCMP and CSC to keep the
appellants in horrific pretrial conditions to attempt to weaken their state of
mind and get them to crack. The horrific nature of the offences does not
preclude a stay of proceedings regardless of the severity of the abuse
ultimately established on the evidence.

(vi)
[Heading Removed]

[425]

[Paragraph removed.]

[426]

[Paragraph removed.]

[427]

[Paragraph removed.]

(vii) Conclusion

[428]

It follows from this analysis that we sustain the argument that
the judge erred by concluding there was no reasonable prospect an evidentiary
hearing would assist in the determination of the issue. Having weighed the
evidence and drawn inferences that favoured the Crown, the judges application
of the
Babos
test was flawed. Having found in favour of the
Amici
at stages one and two of
Babos
, her finding at stage three was distorted
by the absence of an evidentiary record demonstrating the true nature and scope
of the police misconduct alleged. The balancing could not properly be carried
out without having resolved factual controversies about the full extent of the
misconduct in question. In any event, the appellants applications were
supported by sufficient information to show a reasonable prospect of success,
and it should not have been decided using a summary procedure. Even if the
judge had not erred, the fresh evidence tendered by the
Amici
would
justify holding an evidentiary hearing.

[429]

We conclude the judge erred in granting the Crowns
Vukelich
application
and summarily dismissing the applications for a stay of proceedings.

This Courts Jurisdiction to Remit the Matter for a
Hearing on the Issue of Abuse of Process

[430]

Having
concluded the trial judge erred in granting the Crowns
Vukelich
application, the question arises as to our jurisdiction to remit the matter to
the trial court for a hearing to determine whether a stay of proceedings should
issue as a remedy for abuse of process.
R. v. Pearson
, [1998] 3 S.C.R.
620, provides authority for our jurisdiction to make such an order under
s. 686(1), (2), and (8) of the
Criminal Code
, which provides, in
relevant part:

686 (1)
On the hearing
of an appeal against a conviction or against a verdict that the appellant is
unfit to stand trial or not criminally responsible on account of mental
disorder, the court of appeal

(a)
may allow the appeal where it is of the opinion that

(i)
the verdict should be
set aside on the ground that it is unreasonable or cannot be supported by the
evidence,

(ii)
the judgment of the
trial court should be set aside on the ground of a wrong decision on a question
of law, or

(iii)
on any ground there
was a miscarriage of justice;

(b)
may dismiss the appeal where

(i)
the court is of the
opinion that the appellant, although he was not properly convicted on a count
or part of the indictment, was properly convicted on another count or part of
the indictment,

(ii)
the appeal is not
decided in favour of the appellant on any ground mentioned in paragraph (a),

(iii)
notwithstanding that
the court is of the opinion that on any ground mentioned in subparagraph
(a)(ii) the appeal might be decided in favour of the appellant, it is of the
opinion that no substantial wrong or miscarriage of justice has occurred, or

(iv)
notwithstanding any
procedural irregularity at trial, the trial court had jurisdiction over the
class of offence of which the appellant was convicted and the court of appeal
is of the opinion that the appellant suffered no prejudice thereby;

(c)
may refuse to allow the
appeal where it is of the opinion that the trial court arrived at a wrong
conclusion respecting the effect of a special verdict, may order the conclusion
to be recorded that appears to the court to be required by the verdict and may
pass a sentence that is warranted in law in substitution for the sentence
passed by the trial court; or

(d)
may set aside a
conviction and find the appellant unfit to stand trial or not criminally
responsible on account of mental disorder and may exercise any of the powers of
the trial court conferred by or referred to in section 672.45 in any manner
deemed appropriate to the court of appeal in the circumstances.

(2)
Where a court of
appeal allows an appeal under paragraph (1)(a), it shall quash the conviction
and

(a)
direct a judgment or
verdict of acquittal to be entered; or

(b)
order a new trial.

(8)
Where a court of
appeal exercises any of the powers conferred by subsection (2), (4), (6) or
(7), it may make any order, in addition, that justice requires.

[431]

Pearson
also involved an application for a stay of proceedings following a finding of
guilt based on an abuse of process, but in the context of entrapment which
affected the appellants trial fairness rights rather than the residual abuse
of process category. Mr. Pearson was convicted of drug trafficking
offences after the trial judge rejected his entrapment argument. The Quebec
Court of Appeal allowed his appeal in part, ordering a new trial limited to the
issue of entrapment on the basis that the Crown failed to disclose information
relevant only to that aspect of his case. The Supreme Court of Canada agreed
the appeal court had the authority to make such an order under s. 686(8)
of the
Code
:

13        In such circumstances [where the guilt of the
accused is not in question], it is unnecessary and wasteful to reopen the issue
of the appellants guilt or innocence on the substantive charges in a new trial.
Such a result is not mandated by any fundamental right protected by the
Canadian
Charter of Rights and Freedoms
.
Under s. 686(8) of the
Criminal
Code
of Canada, a court of appeal has the power to make an ancillary order
limiting the scope of a new trial under s. 686(2) when justice requires
that order. In our view, given the unique nature of an entrapment proceeding
after a verdict of guilty, s. 686(8) provides broad enough statutory
authority on which to rest the direction by an appeal court of an entrapment
proceeding.

16        A court of appeal
which orders a new trial limited to the issue of entrapment exercises its statutory
jurisdiction under s. 686 of the
Criminal Code
in the following
manner: where an accused successfully impugns the finding of no entrapment at
his or her first entrapment hearing, the court of appeal allows an appeal
against conviction, in accordance with the wording of s. 686(1). Then,
pursuant to s. 686(2), the court of appeal quashes the conviction and
orders a new trial. However,
the quashing of the formal order of
conviction does not, without more, entail the quashing of the underlying
verdict of guilt
. In most successful appeals against conviction, the court
of appeal which quashes the conviction will also overturn the finding of guilt;
however, the latter is not a legally necessary consequence of the former.
Under
s. 686(8), the court of appeal retains the jurisdiction to make an
additional order to the effect that, although the formal order of conviction
is quashed, the verdict of guilt is affirmed, and the new trial is to be
limited to the post-verdict entrapment motion.

[Emphasis added.]

[432]

The jurisdictional issue in this case is very similar to that in
Pearson
,

as entrapment is also a form of abuse of process for which a stay of
proceedings is an appropriate remedy: see also
R. v. Imola
, 2019 ONCA 556.
Accordingly, we apply the reasoning in that case to the circumstances before
us.

Disposition

[433]

The appellants application to adduce fresh evidence is
dismissed. The
Amici
s application to adduce the evidence contained in
Category 5 of its fresh evidence application is dismissed. The
Amici
s
fresh evidence application is granted to the extent of the indicated portions
of Categories 1 and 2. As stated earlier in these reasons, it is
unnecessary to address the remainder of the
Amici
s fresh evidence
application. The Crowns application to adduce fresh evidence is allowed to the
extent it is used to address the appellants and the
Amici
s fresh
evidence applications.

[434]

Pursuant
to s. 686(1), (2), and (8) of the
Code
, we 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 the matter to the trial court for an
evidentiary hearing on the applications for a stay of proceedings for abuse of
process.

The Honourable Mr. Justice Tysoe

The Honourable Madam Justice MacKenzie

The Honourable Mr. Justice Willcock