Director of Civil Forfeiture v. Hells Angels Motorcycle Corporation, 2014 BCCA 330 – Director Must Disclose Wiretap Surveillance Information

The Director of Civil Forfeiture sought to appeal a Supreme Court Chambers judge’s decision to “unseal” various affidavits used to obtain authorizations for wiretap surveillance of the Nanaimo Hells Angels. Although the fruits of the surveillance had initially been used to lay criminal charges, those charges were later stayed, and the Civil Forfeiture Office sought to rely on the same information in support of a bid to seize the Hells Angels clubhouse in Nanaimo.

The Court of Appeal, in a two-to-one decision, concluded that the wiretap surveillance was authorized as part of the criminal process. The unsealing process was therefore governed by Part VI of the Criminal Code, which provided no avenue of appeal from a Supreme Court judge’s decision. The Court of Appeal was therefore not able to entertain the Director’s appeal and the unsealing order remained undisturbed.

Mr. Justice Chaisson, in a dissenting opinion, argued that the Court had jurisdiction to consider the appeal, but nevertheless concluded that the Chambers Judge’s decision was correct and that the wiretap authorization documents should be unsealed.

Disclosure of the relevant documents to the Hells Angels could pave the way for some novel Charter arguments in the context of the ongoing litigation over the Nanaimo clubhouse. British Columbia courts have already found that unreasonable searches in the civil forfeiture context engage “exactly the same Charter principles” as criminal law, and the use of wiretap surveillance would appear to be no exception.

Decided by the BC Court of Appeal on August 20, 2014.
Click here for the full text of the decision.

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