Cody Haevischer is on trial along with Matthew Johnston for the executions of six men who were found shot in a highrise apartment unit in Surrey, B.C., in October 2007. Both are charged with conspiracy to commit murder and six counts of first-degree murder.
Haevischer's lawyer argued prosecutors failed to produce any evidence to support the conspiracy charge against his client, regardless of whether the judge eventually believes he took part in the actual murders.
But B.C. Supreme Court Judge Catherine Wedge rejected the application Wednesday, ruling the Crown had produced some circumstantial evidence that could support the conspiracy charge.
"Taken as a whole, I conclude that the evidence is reasonably capable of supporting the inference that Mr. Haevischer had knowledge of the conspiracy before the murders occurred," said Wedge, as Haevischer and Johnston watched by video.
"It may not be the only inference that can be drawn. It may not be a strong inference. But it is reasonably available on the evidence."
The test for allowing the charge to proceed at this stage is the same as at a preliminary inquiry: there must be at least some evidence that, if believed, could reasonably lead to a conviction. It is a far lower standard than for a guilty verdict, which must be proved beyond a reasonable doubt.
The Crown's theory is that the leaders of the Red Scorpions gang plotted to kill a rival drug trafficker named Corey Lal. The Crown alleges Haevischer, Johnston and a third man known as Person X then carried out the task, killing not just Lal but also five others to eliminate potential witnesses.
Evidence presented at the trial has focused on several meetings among Red Scorpions members in the lead-up to the killings in which they discussed the plan to kill Lal, though no one has suggested Haevischer was involved in any of those discussions.
Instead, the Crown argues Haevischer was brought into the conspiracy at the last minute.
The trial has heard evidence that Johnston and Person X arrived at Haevischer's apartment on the afternoon of the murders. Once there, the Crown alleges, Johnston and Person X cleaned guns and bullets and then all three men went to Lal's apartment.
The Crown says Johnston must have told Haevischer about the plan at some point before the murders, likely as the trio drove to the murder scene wearing hoodies, gloves and carrying two handguns.
Defence lawyers are currently making a number of applications before revealing whether they intend to call any evidence of their own.
Gang leader Michael Le pleaded guilty to conspiracy midway through the trial and testified against Haevischer and Johnston. Le was sentenced to 12 years, though he will be eligible to apply for parole by the end of the year.
Person X has already pleaded guilty to second-degree murder.
Jamie 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.
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, neither of whom had any connection to gangs or drugs.
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