British Columbia (Director Of Civil Forfeiture) v. Hells Angels Motorcycle Corporation: Orders Unsealing Wiretap Affidavits Outside Appellate Jurisdiction Of Provincial Courts Of Appeal

It is trite to say that the civil court rules and legislation govern civil proceedings. But what if, during the course of a civil proceeding, an order is made under a provision of the Criminal Code of Canada, c. C-46, for which there is no right of appeal to a provincial court of appeal? Should an appeal of such an order be governed by civil procedure or the procedure under the Criminal Code? In other words, does the civil nature of the proceeding govern, and therefore the ordinary civil appeals procedure apply, or are the parties limited to seeking leave to appeal to the Supreme Court of Canada?

The British Columbia Court of Appeal faced this unique procedural question in British Columbia (Director of Civil Forfeiture) v. Hells Angels Motorcycle Corporation, 2014 BCCA 330. In a 2-1 decision, the Court held that an order made under s. 187(1.3) of the Criminal Code can only be appealed pursuant to the provisions in the Criminal Code. Therefore, a provincial court of appeal lacks jurisdiction to hear an appeal of such an order made in the course of civil proceedings.

Background

Following a police investigation into the activities of the Nanaimo, British Columbia chapter of the Hells Angels Motorcycle Club, the Director of Civil Forfeiture commenced an action under the Civil Forfeiture Act, S.B.C. 2005, c. 29, seeking forfeiture of certain chattels and real property from the Club and related entities and individuals. In this action, the Director intended to rely upon wiretap evidence obtained during the police investigation.

In addition to the wiretap evidence, the defendants sought production of the affidavits relied upon when the police obtained judicial authorization for a wiretap. However, the wiretap affidavits were placed in a sealed packed at the Supreme Court of British Columbia, pursuant to s. 187(1) of the Criminal Code. Under s. 187(1.3), a judge can order that the information contained in the "packet" be unsealed, subject to the vetting requirements in ss. 187(4)-(7).

The defendants brought an application for production of documents not in the possession of a party under the Supreme Court Civil Rules, B.C. Reg. 168/2009. The application judge allowed the application, and ordered the packets be unsealed and redacted copies of the affidavits be provided to the defendants. The Director filed an appeal with the British Columbia Court of Appeal and an application for leave to appeal to the Supreme Court of Canada (subsequently...