Criminal Law

How a vastly unpopular judgment is just and fair: Dale

By AdvocateDaily.com Staff

The stay of proceedings in the Surrey Six massacre evoked public outrage but it is a “just and necessary judgment" in a case that came to be defined by confidential informants, police misconduct and trial fairness, Toronto criminal and civil litigator Laurelly Dale writes in The Lawyer’s Daily.

“The public should brace themselves for more outrage. This is not the last that we’ve heard of the Surrey Six,” she says.

On Dec. 1, 2017, Justice Kathleen Ker of the B.C. Supreme Court ordered that the conspiracy and murder charges against one of the accused be stayed, Dale notes.

“This is one of the most drastic remedies in a criminal proceeding. Not only was this ordered in an extraordinary case, but the reasons for the stay were not published, contrary to the open court principle,” she says.

“A unique issue arose when defence counsel came into possession of privileged information pertaining to a confidential informant. This is likely what the judgment turned on," Dale writes.

"Justice Ker found that the Crown was unable to call ‘Person X.’ As a result of this and other privileged information, the defence was unable to use this information, infringing [the accused’s] s. 7 Charter trial fairness rights in the name of protecting Crown privilege (protection of witnesses.)”

Dale, principal of Dale Legal Firm, describes the Surrey Six case as the nerve centre for a myriad of gang-related events.

“Six people were killed in a highrise apartment on Oct. 19, 2007. Two were innocent bystanders. In August 2011, Jonathon Bacon was shot to death outside the Grand Hotel in Kelowna,” she says.

“Five others were wounded including one woman who became paralyzed. Jonathon Barber was shot to death in May 2008 in a case of mistaken identity, believed to be Jamie Bacon. In 2008, police warned the public to stay away from the remaining brothers because of the gang war. In 2009 a second assassination attempt was made on Jamie Bacon. These do not encompass the detailed history and collateral damage of the gang wars.”

Two men were convicted in 2014 of six counts of first-degree murder and one count of conspiracy for their alleged role as the shooters in the Surrey Six, Dale says.

“To further complicate matters, [these men] previously argued for a stay of proceedings due to misconduct of the investigators, including officers who had sex with witnesses and lied to their superiors,” she says.

Both will apply for production of the documents that led to the stay being recently granted for the accused. It is certainly possible that they will obtain the same extraordinary remedy as he did in December 2017, Dale adds.

She quotes former chief justice Beverley McLachlin who stated: “No one has the right to a particular verdict but only to a fair trial on the evidence.” (Criminal Lawyers’ Association G. Arthur Martin Medal acceptance speech Oct. 28, 2017.)

Dale says this was said in response to the myth that all sexual assault complainants should automatically be believed.

“Just as a sexual assault complainant is not entitled to a certain verdict, the public interest in the Surrey Six case does not trump Charter and informant protection,” Dale says. “The open court principle is of such significance that it has been enshrined in s. 2(b) of our Charter, as well as provincial legislation.”

Dale points to how B.C. Premier John Horgan told the CBC that the recent judgment is a “setback for all of us.”

But she notes that the media reports around the case are “confusing,” and try to appease the public while at the same time reiterating principles of the rule of law.

“The best example is the report of CBC’s Ian Hanomansing dated Dec. 21, 2017,” she says. “The headline demands an explanation for the stay. Three legal experts were interviewed for the article, each agreeing that the publication ban and stay of proceedings were unusual. It is not apparent whether they were asked if, on a balancing of factors, trial fairness and confidential informant privilege should be set aside in the name of the open court principle. They were not asked to comment on the stay itself.

“The article examines the principles of trial fairness, protection of confidential informant privilege and even refers to the prevention of wrongful conviction. Is the point of the article to implore Justice Ker to release the full judgment at the expense of these fundamental principles? What amount of information would satisfy this demand while protecting those factors? Is this even possible?”

Dale says that what is lost in these articles is the fact that the accused has now spent more than eight years in pre-trial custody and is still detained awaiting trial on other charges.

“He is not a free man on the loose in B.C. A stay can only be granted in the clearest of cases, where the integrity of the justice system is implicated,” she says. “A stay was granted to preserve trial fairness and informant privilege.”

Dale says it “fits the bill of preserving the integrity of the justice system.”

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