B.C. case highlights differences between ‘con code’ and law’s limited understanding of jail justice

Law360 Canada (December 9, 2025, 11:32 AM EST) --

John L. Hill

Canadian courts often invoke the Charter of Rights and Freedoms when evaluating the actions of police, prosecutors and trial judges. Section 7, guaranteeing “life, liberty and security of the person,” forms the core of our constitutional framework. However, the protection it offers does not always reach those who need it most. For incarcerated individuals, “security of the person” is frequently governed not by Canadian law but by a parallel, informal and sometimes deadly system: the inmate code, or “con code.” The case of R. v. Haevischer, 2025 BCSC 2409 highlights the gap between the lived reality inside prisons and the law’s limited understanding of danger, coercion and survival.

Cody Rae Haevischer, long associated with the Red Scorpions gang, appeared in the British Columbia Supreme Court in 2025 as part of a sprawling evidentiary hearing examining police misconduct and oppressive pretrial conditions arising from the notorious “Surrey Six” homicides. During Crown cross-examination, he refused to answer questions that would require him to identify, or even indirectly implicate, another inmate. He explained his refusal with stark clarity: as “a general population inmate … naming names or cooperating in any way, I’ll be viewed as a rat and put my life in immediate danger.” Violating the con code, he said, “would cost me my life.”

His description was accurate. The inmate code operates with a brutal, extralegal effectiveness unmatched by any formal mechanism of punishment. It dictates that anyone who cooperates with law enforcement, testifies against another prisoner or is even perceived as providing information becomes a target for violence. In many institutions, “ratting” is punishable by beating, stabbing or murder. Correctional staff, lawyers and judges rarely witness these events directly, but prisoners live under their shadow every day. The code functions as a form of governance separate from, and largely indifferent to, the protections promised by s. 7.

However, when Haevischer invoked this reality to justify his refusal to answer questions, the court dismissed it. Justice Martha Devlin explained that the defence of duress requires a “threat.” She took that to mean explicit words or actions intended to force the accused to break the law. She held that generalized fear or cultural expectations in prison are not sufficient. Because no one had conveyed a specific threat to Haevischer, the court determined there was “no air of reality” to duress. With duress dismissed, contempt of court was a natural consequence.

This doctrinal reasoning is legally sound but morally fragile. In law, a threat must be communicated; in prison, threats often operate without explicit communication. Violence is not announced; it is understood. A prisoner labelled a rat does not wait for a warning before the attack occurs. The con code operates through collective enforcement, anonymity and the certainty of retaliation. There is no limitation date. Its power lies precisely in the fact that no individual must ever speak a word. The danger exists whether or not someone says, “I will kill you.”

Section 7 requires Canadian law to protect the right to life and security of the person unless deprivation occurs “in accordance with the principles of fundamental justice.” However, when courts argue that only explicit threats matter, they disconnect s. 7 from the actual experiences of those most vulnerable to violence. The result is a narrowing of constitutional protection for inmates. The Charter’s guarantee becomes conditional on violence being formally communicated rather than being real.

This doctrinal gap is especially evident in cases like Haevischer’s, where the court stresses that he could have pursued “safe avenues of escape,” such as publication bans, in camera testimony, protective custody or intervention by correctional authorities. Legally, these options carry weight; practically, they are illusory. Protective custody often results in prolonged isolation, which itself can cause severe psychological harm. Segregation may shield inmates but also exposes them to stigma, instability and new dangers. Additionally, publication bans cannot prevent prisoners from using internal rumour networks, coded messages and informal intelligence-sharing practices that dominate prison life. To view these options as genuine “alternatives” reflects a complete misunderstanding of the carceral environment.

The law’s failure to acknowledge this reality creates a structural problem: it punishes prisoners for following the only legal system that truly governs their daily survival. When the court rejected Haevischer’s explanation, it supported a view of s. 7 where constitutional protections are effectively delayed at the prison gate. The Charter applies, but only on terms that ignore the key aspect of incarceration: that for prisoners, “security of the person” is controlled by those around them, not the state.

There is a greater irony. Courts have consistently taken judicial notice of the dangers faced by cooperating witnesses in custody (Gill v. Canada (Deputy Commissioner, Pacific Region, Correctional Services), [1988] 3 F.C. 361; R. v. McLellan, 2016 ONSC 3397; R. v. Sam and Tom, 2006 BCPC 437). Publication bans, witness protection programs and separate units exist precisely because the risk is real. Yet, when Haevischer tried to apply this understanding to his own case, the court decided that the inmate code was legally irrelevant. What the system recognizes as dangerous in theory becomes harmless when an actual inmate cites it in a real courtroom.

The deeper issue is that Canadian law views prisons as controlled, regulated environments, when in reality, they contain a parallel ecosystem of governance outside state oversight. Section 7 cannot safeguard inmates if courts persist in analyzing their fears as if they were citizens in the free world. For prisoners, refusing to answer a question in court might be the only rational way to protect their lives and personal security. The Charter should recognize that reality rather than ignore it.

Until courts recognize that the con code, not judicial doctrine, defines the actual boundaries of life, liberty and security inside Canadian prisons, s. 7 will remain an unfulfilled promise for those who need its protection most.

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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