Keywords: Civil forfeiture; appeal jurisdiction; wiretap; right to appeal decision to unseal secret packet.
Synopsis: Pursuant to a 2001 criminal investigation of a motorcycle club, police were granted three wiretap authorizations. Using those authorizations, wiretap evidence was gathered. Charges were initially laid and then later stayed because the Crown had insufficient admissible evidence to proceed. As part of the wiretap authorization, supporting affidavits were kept secret and under seal by the court pursuant to s.187 of the Criminal Code. Section 187 specifies the sealed contents that support the wiretap authorization must be kept where the public has no access, and the contents “shall not be dealt with except in accordance with subsections (1.2) to (1.5)” of the Code. Six years later the B.C. Director of Civil Forfeiture commenced a civil action under the B.C. Civil Forfeiture Act, seeking forfeiture of a clubhouse and other property associated with the club. The property is alleged to be proceeds (or an instrument) of unlawful activity under s.3 of the Act. As part of its case, the Director intended to tender evidence gathered pursuant to the 2001 wiretaps. To challenge their admissibility, the Respondents applied and were granted an order by Davies, J. giving them access to the sealed affidavits in support of the wiretaps. The Director appealed the decision to the B.C.C.A and argued the judge erred in his application of the legal test that governs when a wiretap packet can be unsealed for a non-accused person. The Respondents countered with a preliminary objection and argued the C.A. lacked jurisdiction to hear the appeal since the order was made pursuant to criminal procedure providing no right of appeal to an intermediate appellate court (see Michaud v. Quebec,  3 SCR 3 at para. 14).
Importance: The majority (Frankel, J.A. and Willcock J.A.) held the procedure to open a sealed packet pursuant to s.187 of the Code is exclusive to criminal procedure and does not transform even when brought via an application in a civil action. Justice Frankel explained:
“I cannot accept that an order granting or refusing an application to open a packet will sometimes be criminal and sometimes be civil…While such an application may be brought for a purpose relating to a civil action and before a judge who is otherwise involved in that action, it is not a step in that action. To put it colloquially, when Davies J. was dealing with the application to open the packets he was wearing a criminal hat, not a civil one” (at paras. 166-167). The majority noted that Parliament has not provided for a right of appeal (in the Code or otherwise) empowering an intermediate appellate court to review a decision to unseal a packet pursuant to s.187 of the Code. Appeal lies directly to the Supreme Court of Canada by leave pursuant to s. 40(1) of the Supreme Court Act. As a result the notice of appeal and application for leave at the Court of Appeal was quashed for want of jurisdiction and certain substantive issues left unaddressed. Mr. Justice Chiasson dissented and would have dismissed the appeal. His view was the application commenced in a civil action, remained civil, and was not transformed into a criminal proceeding because the order came pursuant to s.187(1.3) of the Code (at para. 61). As such, an appeal as of right exists to challenge the decision of Davies, J. and the Court of Appeal is the proper forum pursuant to s. 6 of the Court of Appeal Act (at paras. 62). This result did not conflict with Michaud and Davies J. was entitled to exercise his discretion to order the packets unsealed (at para. 78). Chiasson J.A. affirmed the decision of Davies J. stating:
“In my view, the packets should be unsealed because the Director, a state authority, seeks to use evidence gathered by the authorizations against the respondents. Subject to the needs of confidentiality, which are well protected in the judge’s present, preliminary order, the respondents are entitled to information to enable them to assess whether they can challenge the admissibility of state-gathered evidence that will be used against them” (at para. 75).
Counsel for Appellant: Dirk Ryneveld, Q.C. and Peter Ameerali (Ministry of Justice, Victoria)
Counsel for Respondent Angel Acres: Peter Freeman, Q.C. and John Adams (Cook, Roberts LLP, Victoria)
Counsel for Respondent Attorney General of B.C.: R.G. Garson and Peter Hogg(Ministry of Justice, Vancouver)
- On November 11, 2013 the appeal was adjourned sine die by the Chief Justice at the S.C.C pending this decision of the B.C.C.A.
(S.C.C File No. 35134)
- Peter Freeman, Q.C., and John Adams of Cook Roberts LLP are counsel of record in the S.C.C, & Eugene Meehan & Marie-France Major their S.C.C agents.