Cody Haevischer and Matthew Johnston are each charged with six counts of first-degree murder and one count of conspiracy to commit murder, and their trial has heard from dozens of witnesses, including former gang members.
But despite months of testimony and more than 200 exhibits, Haevischer's defence lawyer said the Crown has failed to produce any evidence to prove Haevischer was involved in planning anything.
"This evidence does not support an inference that Mr. Haevischer had any knowledge about the plan," lawyer Simon Buck told a B.C. Supreme Court judge on Friday.
The Crown's theory is that the two leaders of the Red Scorpions gang, Michael Le and Jamie Bacon, ordered a hit on a rival drug trafficker named Corey Lal in October 2007.
They sent Haevischer, Johnston and a third man known only as Person X to Lal's apartment in Surrey, B.C., the Crown alleges, where they killed not only Lal but five others to eliminate potential witnesses.
The trial has heard from former gang members — including Le, who pleaded guilty midway through the trial — who described at least three meetings during which Lal's murder was planned.
But Buck said none of the testimony suggested Haevischer was involved in any of those meetings. He pointed to testimony that alleged on the day of the murders, Johnston and Person X showed up at Haevischer's apartment, unplanned and unannounced, to pick him up.
Even if the judge concludes Haevischer was involved in the actual murders — which Buck says his client does not admit — he said there is no evidence to prove Haevischer knew about the plot in advance.
"There must be evidence of a meeting of the minds to achieve a criminal objective," said Buck.
Crown counsel Mark Levitz described Haevischer as a "late conspirator."
Levitz said Haevischer became involved after Johnston and Person X arrived at his apartment on the afternoon of the murders.
When the three left in a BMW with two loaded handguns, Levitz told the court, Haevischer must have known what was going to happen. Levitz suggested Johnston likely would have told Haevischer, his best friend, about the plan on the way to the murder scene.
"Where all these Red Scorpion members went armed with guns and where they actually killed Corey Lal, the object of the conspiracy, that's some evidence from which it can be inferred that Cody Haevischer was one of the conspirators, albeit at a late date."
If the judge concludes there is at least some evidence that, if true, could possibly lead a reasonable jury or judge to convict, the trial would proceed with the conspiracy charge intact. At this stage, the Crown faces a far lower standard than for a conviction, which must be proved beyond a reasonable doubt.
Buck's application wouldn't affect the murder charges against Haevischer or the murder and conspiracy charges against Johnston.
A decision is expected next week.
Friday's application to toss the conspiracy charge came several days after the Crown finished presenting evidence.
Defence lawyers are expected to make several applications before announcing whether they plan to call any evidence of their own.
The victims in the case included Lal, Lal's brother Michael, Eddie Narong and Ryan Bartolomeo. Also killed were fireplace repairman Ed Schellenberg, 55, and building resident Chris Mohan, 22, who were both in the wrong place at the wrong time.
Person X has already pleaded guilty to second-degree murder.
Bacon, the alleged co-leader of the gang, is also charged with conspiracy and one count of first-degree murder and will be tried separately.
Another man, Sophon Sek, is awaiting trial for manslaughter.
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