Members of the Hells Angels have lost a court challenge against the director of civil forfeiture and the attorneys general of Canada and British Columbia.
The bikers' judicial-review petition came before B.C. Supreme Court because the director of civil forfeiture is seeking to seize their clubhouses in Nanaimo, East Vancouver, and Kelowna in two separate court cases.
In responding to the application, the director, Phil Tawtel, claimed that each property is an "instrument of unlawful activity".
He alleged that this is because they're likely to be used in the future in ways that may "result in the acquisition of an interest in property and/or cause serious bodily harm to persons".
The petitioners—Angel Acres Recreation and Festival Property Ltd., Mitchell Kenneth Riley, John Peter Bryce, Stanley Thomas Gillis, Kim Blake Harmer and Ronald Barry Cameron, Richard Goldammer and Damiano Di Popolo—argued that it was outside the power of the B.C. legislature to include a section about "instruments of unlawful activity" in the Civil Forfeiture Act.
Lawyers representing the Hells Angels, including Joe Arvay and Greg DelBigio, sought an order that the director had no authority to collect information from the RCMP or to launch a court case based on that information.
The director of civil forfeiture, on the other hand, argued that a 1983 information-sharing agreement between the provincial and federal governments authorized the RCMP to disclose the information.
Justice Barry Davies upheld the director's argument, ruling that section 22 of the Civil Forfeiture Act allows the director to receive information from the RCMP.
The bikers also sought unsuccessfully to obtain an order that the civil forfeiture office had no authority to assign a program manager position to the RCMP's operational support group dealing with federal serious and organized crime.
Davies, however, ruled that it was "lawfully authorized" for the director to enter into a memorandum of understanding with the RCMP to create this position.
The judge added this caveat: "I am also satisfied that, in some circumstances, the relationship between the police and the CFO with the attendant possibility of conflict arising from the intersection of criminal law substance and procedure and civil forfeiture law substance and procedure may require not only evidentiary oversight by the Court but also engage Charter scrutiny."
He refused to issue an order halting the legal proceedings in director's two legal cases aiming to seize the clubhouses.
Information about the Nanaimo clubhouse has been in the possession of the director for almost 12 years, according to the decision. This included wiretap communications intercepted as a result of a police investigation called Project Halo.
In 2012, information was passed along to the director concerning the Hells Angels clubhouses in East Vancouver and Kelowna arising from police investigations called E-Pandora and E-Predicate.
"Many lists of documents have been delivered by the Director over the many years during which the litigation was ongoing and as the pleadings evolved," Davies wrote. "I understand that the Director has listed over 6,500 documents."
Davies noted that police—sometimes in conjunction with Crown counsel—will refer a matter to the civil forfeiture office rather than pursing criminal charges.
Civil forfeiture has a less onerous burden of proof, and also "potentially less onerous disclosure obligations than those that govern disclosure by the Crown in criminal proceedings".
"Selective disclosure by either the police or the Director to a defendant could not only compromise the ability of that defendant to substantively defend a civil forfeiture action but also preclude the defendant from knowing the existence of potential Charter breaches that could impact the conduct of the forfeiture litigation," the judge wrote.