Director of Civil Forfeiture Plaintiff v. Angel Acres Recreation and Festival Property Ltd., Richard Phillips, Lloyd Stennes, Robert Widdifield, Raymond Bradley, 2011 BCSC 198

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and Festival Property Ltd., 2011 BCSC 198 Date: 20100218 Docket: 07 4460 Registry: Victoria An Action under the Civil Forfeiture Act In Rem Against: The Land and Structures situated at 805 Victoria Road, Nanaimo British Columbia, and having a legal description of PID 004-954-581, Lot 7, Block 5,

Section 1, Nanaimo District, Plan 2009; PID 006-637-167, Lot 8, Block 5,

Section 1, Nanaimo District, Plan 2009; PID 006-637-175 Lot 9, Block 5,

Section 1, Nanaimo District, Plan 2009; PID 006-637-191, Lot 10, Block 5,

Section 1, Nanaimo District, Plan 2009; (The “Victoria Road Property”) and the Contents of the Victoria Road Property including but not limited to various articles of clothing (“Support Wear”), Bar Equipment and Supplies, including all Alcohol, $10,642.17 in Canadian Currency, $278.00 in United States Currency, a 2006 Harley Davidson with License Plate #K95059, a 2004 Harley Davidson with License Plate #E66920, and a 2003 Harley Davidson with License Plate #K48229 Between: Director of Civil Forfeiture Plaintiff And Angel Acres Recreation and Festival Property Ltd., Richard Phillips, Lloyd Stennes, Robert Widdifield, Raymond Bradley Cunningham, Lawrence Dean Bergstrom and Gordon Keith Jones Defendants Before: The Honourable Mr.

Justice Pearlman Reasons for Judgment Counsel for the Plaintiff: Robert.G. Payne & Peter Ameerali Counsel for the Defendants: Peter C.M. Freeman, Q.C. Place and Date of Hearing: Victoria, B.C. February 3, 2011 Place and Date of Judgment: Victoria, B.C. February 18, 2011 INTRODUCTION [ 1 ] In this action, the plaintiff, the Director of Civil Forfeiture, claims that the clubhouse of the Nanaimo

chapter of the Hells Angels Motorcycle Club (“NHAMC”) located at 805 Victoria Road in Nanaimo, British Columbia, is an instrument of unlawful activity and seeks its forfeiture. The plaintiff alleges that the clubhouse has been used and is likely to be used in future to facilitate the commission of unlawful activities, including criminal activities undertaken for the benefit or at the direction of a criminal organization.

The plaintiff also seeks the forfeiture of some of the contents of the clubhouse. [ 2 ] Between 2001 and 2003, the Vancouver Island Division of the RCMP’s Combined Forces Special Enforcement Unit conducted an investigation of the NHAMC, which included judicially authorized interceptions of private telecommunications. That investigation, known as Project HALO, resulted in the production of a Report to Crown Counsel (“RTCC”) recommending charges against members or persons associated with the NHAMC.

No charges were laid as a result of the investigation. [ 3 ] On this application, the Director of Civil Forfeiture applies pursuant to Rule 7-1(18) of the Supreme Court Civil Rules for disclosure by the RCMP of the RTCC and all documents referred to in the RTCC including any recordings, transcripts or analysis of intercepted telecommunications. According to counsel for the Director, the wiretaps include conversations involving many of the personal defendants in this action, as well as non-parties, only some of whose identities are known to the plaintiff.

Pursuant to the wiretap authorizations, the RCMP intercepted the private communications of at least 47 individuals, including the personal defendants. [ 4 ] The Director submits that the evidence contained in the RTCC is relevant to demonstrating that members of the NHAMC are participants in a criminal organization, that particular unlawful activities have occurred, and that the clubhouse facilitated or was intended to facilitate some of those unlawful activities. [ 5 ] Gary Shenk, a police officer who participated in the Project HALO investigation, describes the RTCC in these terms at para.

13 of his affidavit: The RTCC for Project HALO contains a narrative

summary of the individual investigations undertaken within Project HALO. TheRTCC for Project HALO refers to specific evidence gathered in relation to the list of offences investigated. The RTCC for ProjectHALO includes specific references to surveillance reports, confidential informant evidence and evidence gathered pursuant to theAuthorizations. The RTCC for Project HALO also includes full copies, excerpts and synopses of various documents. If a full document,or excerpt, or synopsis is attached to the RTCC, or referred to in the RTCC, it is because that document, excerpt or synopsis containsevidence relating directly to one of the charges recommended in the RTCC. [6] Section 8(2)(

c) of the Privacy Act, R.S.C. 1985, c. P-21, permits the RCMP to release personal information held in itspossession, including intercepted telecommunications, for the purpose of complying with a court order. [7] The RCMP does not object to production of the RTCC pursuant to an order of the court. [8] At the conclusion of the hearing of this matter, I gave brief oral reasons in which I held that the RTCC met the threshold ofrelevance for an order under Rule 7-1(18) and that it should be produced.

I reserved judgment on the form of the order for production. [9] Here, the wiretap evidence includes intercepted telecommunications of the defendants and non-parties. The court mustbalance the competing interests of disclosure and the privacy of both the defendants and non-parties whose interests may be adverselyaffected by the disclosure of the RTCC: M(A.) v.

Ryan, (SCC), [1997] 1 S.C.R. 157 at para. 37. [10] Before a court denies disclosure, it “should be satisfied that (1) the probative value of the information contained in thedocument is slight; and (2) production would cause such embarrassment or adverse effect that it would be unjust to require production”:Willard v.

Mitchell, 2010 BCSC 1438 at para. 29. [11] Where, as here, the court concludes that the records should be disclosed, “the court should consider qualifying the disclosureby imposing limits aimed at permitting the opponent to have the access justice requires while preserving the confidential nature of thedocuments to the greatest degree possible”: M(A.) v. Ryan at para. 37. POSITIONS OF THE PARTIES [12] The plaintiff seeks an order for production of the RTCC in the form approved by the Court of Appeal in Wong v. Antunes,2009 BCCA 278.

Under that form of order, the RCMP would examine the documents and determine which documents, or portions ofdocuments, should not be disclosed because they could reveal privileged communications between the RCMP and the Crown, or becausetheir disclosure would be contrary to the public interest; for example, by revealing the identity of confidential informants or sensitivepolice investigative techniques. The RCMP would then copy the documents to be produced and provide them to the solicitor for theDirector.

Within seven days of receiving those documents, the solicitor for the Director would provide copies to the solicitors for thedefendants. Any party, the RCMP, and the Attorney General of British Columbia would then be at liberty to apply to the court todetermine which documents are required to be produced pursuant to the order. [13] In Wong, the applicants sought production of police documents in the possession of the defendant that the defendant obtainedthrough the disclosure process in ongoing criminal proceedings brought against him.

The order proposed by the Attorney General, andapproved by the court in Wong, recognized the public interest in maintaining the confidentiality of communications between the policeand the Crown as a class while leaving the parties with liberty to apply as to whether particular documents or classes of documentsshould be disclosed.

As the court held in Wong at para. 26, “the form of order suggested by the Attorney General balances the plaintiff’sneed to obtain information in the police file with the Crown’s need to preserve the integrity of the criminal prosecution.” [14] This case does not raise to the same degree as did Wong the concern that disclosure may impair future criminal proceedingsbecause no charges were laid as a result of Project HALO.

Wong is also distinguishable on its facts insofar as neither the Director nor thedefendants possess any of the records sought on this application. [15] The Director submits that the RCMP has already reviewed the wiretaps and has included in the RTCC only those portions ofthe intercepted telecommunications containing evidence relevant to the charges recommended for identified offences. The Director saysthat in these circumstances a review of the RTCC and supporting documents by the defendants’ solicitor for privacy or privilege beforethe records are produced to the plaintiff is unnecessary.

The Director also submits that the defendants have not provided any evidencethat the records may contain intercepted communications for which the defendants might claim privilege, or irrelevant privatecommunications that ought not to be produced.

Accordingly, the Director submits that the defendants have failed to establish any basisfor a Halliday order, rather than a Wong order. [16] Counsel for the defendants submits that he is unable to present any affidavit evidence in support of his assertion that thedocuments may contain privileged information, or engage particular privacy interests of either the defendants or non-parties because hehas not seen the materials.

The defendants contend that the order sought by the Director fails to adequately protect the privacy interestsof both the defendants and non-parties who were the subject of electronic surveillance. [17] Counsel for the defendants argues that because the Director has already consented to a form of Halliday order regardingdocuments found in the clubhouse during the police raid, and because similar privacy concerns exist here, the court should make anorder on terms similar to the Minutes of Settlement attached as

Schedule 2 to the Reasons for Judgment of Davies J. in British Columbia(Director of Civil Forfeiture) v. Angel Acres Recreation and Festival Property Ltd., 2009 BCSC 322. There, the Minutes of Settlementprovide for the defendants’ solicitor to review the documents located in the clubhouse, to identify those for which a claim to privilegefrom production is asserted, and to segregate the privileged documents from the non-privileged documents.

Once the privilegeddocuments have been segregated, the Minutes of Settlement provide for the plaintiff’s solicitor to review all of the documents, except forthe privileged documents, and to identify and list those documents that may constitute “instruments of unlawful activity” within themeaning of the Civil Forfeiture Act, S.B.C. 2005, c. 29.

[ 18 ] The Minutes of Settlement concern documents in the possession and control of the defendants and over which the defendants claimed solicitor and client privilege. Here, the RTCC is held by the RCMP, which is not a party of record in this action. Neither the plaintiff nor the defendants have seen the RTCC. The defendants’ submissions with respect to the RTCC focus primarily on the privacy interests of the defendants and of persons who are not parties to this action but whose privacy interests may be affected by disclosure of the RTCC.

Although the defendants suggest that the RTCC and supporting documents may include privileged communications of the defendants, they have made no particular claim of privilege with respect to the contents the intercepted telecommunications referred to in the RTCC. [ 19 ] The defendants also submit that Rule 7-1(18) is no longer a complete code for the production of documents in the possession or control of persons who are not parties to an action and that notice should be given to the non-parties who were subjects of the intercepted telecommunications before the RTCC is disclosed to the Director.

DISCUSSION No Notice Required to Subjects of Wiretap who are not Parties. [ 20 ] The Director first brought this application pursuant to the former Rule 26(11) of the Supreme Court Rules . I held that persons whose identities were known to the Director, including those persons who were the targets of the investigation and the objects of the intercepts, and persons who were not the targets of the investigation but whose communications were specifically authorized to be intercepted, were persons who might be affected by the order sought.

I found that these persons whose conversations had been intercepted had privacy interests deserving of protection, and that the former Rule 44(5) required that they be served with the motion and supporting affidavits. On that basis, I adjourned the Director's application pending service of the materials on the non-parties. The Director appealed that decision. [ 21 ] In British Columbia Director of Civil Forfeiture v.

Angel Acres Recreation and Festival Property Ltd. , 2009 BCCA 124 (“ Angel Acres” ) at para. 14 , the Court of Appeal held that the former Rule 26(11) of the Supreme Court Rules was a complete code relating to the production of relevant material in the possession or control of a non-party and, as a specific rule dealing with the subject of production, the provisions for service in Rule 26(11) had primacy over the general provisions for service contained in the former Rule 44(5). [ 22 ] Rule 26(11) provided:

(11) Where a document is in the possession or control of the person who is not a party, the court, on notice to the person and all other parties, may order production and inspection of the document or preparation of a certified copy that may be used instead of the original. An order under R. 41 (16) in respect of an order under this subrule may be made if that order is endorsed with an acknowledgment by the person in possession or control of that document that the person has no objection to the terms of the proposed order. [ 23 ] Rule 44(5) provided:

(5) Unless these rules provide otherwise, the applicant must deliver to each party of record and must serve on each other person, other than a party, who may be affected by the order sought (

a) a copy of the notice of motion, (

b) a copy of each affidavit in support of the application that has not already been filed and served, and (

c) any notice that the applicant is required to give under Rule 18A (6). [ 24 ] Rule 44(5) was replaced by Rule 8-1(7), which provides:

(7) The applicant must serve the following, in accordance with subrule (8), on each of the parties of record and on every other person who may be affected by the orders sought: (

a) a copy of the filed notice of application; (

b) a copy of each of the filed affidavits and documents, referred to in the notice of application under subrule (4) (d), that has not already been served on that person; (

c) if the application is brought under Rule 9-7, any notice that the applicant is required to give under Rule 9-7 (9). [ 25 ] In Angel Acres at para. 13, the court held that the words “unless these rules provide otherwise” in Rule 44(5) limited the general application of Rule 44(5).

The defendants submit that the elimination of the phrase “unless these rules provide otherwise” from Rule 8-1(7) means that Rule 7-1(18) is no longer a complete code for the production of documents in the possession or control of persons who are not parties to the action. [ 26 ] At the conclusion of the hearing of this application, I held that Rule 7-1(18) remains a complete code for the production of documents in the possession or control of persons who are not parties to the action. [ 27 ] Rule 7-1(18) provides:

(18) If a document is in the possession or control of a person who is not a party of record, the court, on an application under Rule 8-1 brought on notice to the person and the parties of record , may make an order for one or both of the following: (

a) production, inspection and copying of the document;

(

b) preparation of a certified copy that may be used instead of the original. (emphasis added) [28] Rule 8-1(2)(

e) provides:

(2) To apply for an order from the court other than at trial or at the hearing of the petition, a party must do the following: ... (

e) in the case of an application for which a procedure is provided for by these Supreme Court Civil Rules, apply in accordance with thatprocedure;.... [29] The procedure provided under Rule 7-1(18) requires the application to be brought on notice to the person in possession orcontrol of the documents and the parties of record. Accordingly, Rule 8-1(7), which provides for service “on every other person whomay be affected by the order sought,” does not apply.

Rule 7-1(18) governs this application. [30] Although the Director is not required to give notice of this application to persons who are not parties of record, the court'sorder must nonetheless strike a balance between the interests of the administration of justice in the disclosure of relevant evidence andthe privacy interests of the persons whose communications were intercepted during the Project HALO investigation. [31] I have previously concluded that the contents of the RTCC are likely relevant and highly probative of matters in issue in thisaction.

Therefore, notwithstanding the privacy interests at stake, the records sought by the Director are producible: Gorse v. Straker,2010 BCSC 119 at para. 34. The real question is the form of the order in light of the privacy interests of both the defendants and thepersons who are not parties to the action but were the subjects of the wiretaps. The Form of the Order [32] A Halliday order will be made where “there is a likelihood that a Jones order will ... result in the inappropriate production anddisclosure of irrelevant or privileged documents”: Gorse at para. 8.

A Halliday order permits counsel, where the proper administrationof justice so requires, to review the documents sought for privileged communications or embarrassing and irrelevant privateinformation. In Hope v.

Brown (1990), (BC SC), 52 B.C.L.R. (2d) 234 (S.C.), where the defendant applied fordisclosure of records in the hands of the plaintiff’s physicians, the court made a Halliday order to ensure that the plaintiff retainedcontrol over what should be disclosed in order to protect the plaintiff’s interests of discovery, privacy and privilege. [33] In this case, the Director contends that the defendants are not entitled to a Halliday order because they have failed to provideany evidence of potential privacy issues.

In Gorse at para. 10, the court held that the threshold for making a Halliday order rather than aJones order is low, but that some admissible evidence is necessary to meet that threshold. [34] In Smith (Guardian ad litem of) v. Funk, 2002 BCSC 747, the court said this respecting the threshold at para. 45: In my view, the onus upon a respondent to show that a Halliday order should be preferred to a Jones v. Nelson order is not a heavy oneand it can be discharged by reference to facts other than the direct statement of a witness upon oath.

Whether that onus is discharged willdepend upon the breadth of the description of the documents sought. It will depend on the nature of the documents sought. It willdepend upon whether the respondent can be expected to know, or find out, what is in the documents. It will depend on whether thedocuments were created pre-accident or post-accident. It will, in short, be dependant upon a lot of things, the least of which may be thebare assertion by a respondent that he or she believes that there may be privileged or irrelevant or private material contained in thedocuments. [35] In Willard v.

Mitchell at para. 34, the court, referring to Gorse, stated: ... the decision whether to make a Halliday order must be evidence based, though the evidentiary burden is not an onerous one. Theevidence necessary to support a conclusion that the particular records are irrelevant will vary according to the content of the pleadingsand the nature of the record.

Macaulay J. stated that the party alleging the adverse impact on his or her privacy interest should ordinarilyswear an affidavit setting out, at least in general terms, the nature of the privacy interest, though this is not an absolute requirement solong as there is other admissible evidence on the point.

The evidence need not disclosure all the details of the privacy interest but must besufficient to reasonably identify the nature of the interest and why it appears to be unrelated to any material issue in the litigation. [36] In Gorse, the court explained the difference between Jones and Halliday orders at paras. 17 - 20: [17] In Jones, the plaintiff obtained an order in Chambers for the production of hospital records. The terms of the order directed thehospital to deliver certified copies to the solicitor for the plaintiff who was to deliver copies of the records to the solicitor for thedefendant.

It is apparent that the court, at 110-11, relying on a passage in Dufault, at 678, to the effect that confidentiality is “not aground for refusing to make the order also applicable to the defendants”, considered it more in line with the objective of the Rules,namely the securing of a “just, speedy and inexpensive determination of every proceeding on its merits”, to make a single productionorder in favour of both parties. Justice Seaton, for the court, noted that the Jones format would likely be limited to cases of the typebefore the court on that occasion (at 113).

Jones did not involve any consideration of privacy or privilege. [18] In Halliday, the court also dealt with the production of hospital records, albeit on the application of the third party insurer, ICBC,but was directly concerned with the mechanics of protecting claims of litigation privilege. Justice Lambert, at 198, suggested a “set ofmechanics” that he hoped would “be susceptible to adaptation in varying circumstances.” [19] From this flowed the common Halliday order.

If the defendant or third party brings the application, a Halliday order providesthat the records first go to the plaintiff’s counsel who determines whether to advance any claim of privilege. The mechanics went a step

further. Justice Lambert also contemplated that plaintiff’s counsel would raise “any claim that a document should not be producedbecause it does not relate to any matter in question in the action within the meaning of the Peruvian Guano case” (at 199). Thedocuments are then appropriately listed and the list, together with certified copies of all other documents, are delivered to counsel for theother parties.

In that way, any issues as to the validity of claims for privilege or lack of relevance under the Peruvian Guano test can beaddressed under R. 26 and the Rules generally. [20] Justice Lambert explained his reasoning at 200, in part, as follows: I have suggested that the order should permit decisions with respect to relevance, within the meaning of the Peruvian Guano case, to bemade in the first instance by the patient-litigant, subject to being disputed by adverse parties.

I have done so because it permits thepatient-litigant to avoid disclosing embarrassing or confidential material that is completely irrelevant or that can be made completelyirrelevant, if he wishes, by amending his pleadings before the time for delivery of the documents to adverse parties.

The importance for present purposes is that the mechanics, and the Halliday orders that are now in widespread use, recognize theimportant role of plaintiff’s counsel in determining issues of relevance and privilege. [37] Macaulay J. went on to describe the task of striking the right balance between the proper administration of justice and privacyconsiderations in the context of an application for the production of medical records in Gorse at paras. 24 - 30: [24] When a Halliday order is made, so long as counsel fulfills his or her obligations, there is, apart from the minimal delayassociated with the two-step process, no prejudice to the opposing party’s discovery rights.

If the opposing party feels that relevantinformation may not have been disclosed, he or she can still apply to the court to make a determination, as with other disclosureconcerns. Further, as suggested in Halliday, at 200, any abuse of the order by overextending claims of privilege or unduly restrictingrelevance can be dealt with in a costs order. [25] In my view, privacy considerations add to the justification for making Halliday orders for the production of medical and someother types of records.

The reasoning in this regard may be followed through various decisions since Halliday, up to and including theSupreme Court decision in Keller v. Poulin (16 September 2009), Nanaimo S41497 (S.C.). [26] In Hope v. Brown (1990), (BC SC), 52 B.C.L.R. (2d) 234 at 238, 45 C.P.C. (2d) 22, Master Horn noted thata Halliday order protects the three interests of discovery, privacy, and privilege, while a Jones order only protects the interest ofdiscovery. See also Smith (Guardian ad litem of) v. Funk, 2002 BCSC 747, 2 B.C.L.R. (4th) 391 at para. 40; Grewal v. Hospedales,2003 BCSC 1624, 26 B.C.L.R. (4th) 70 at para. 18, D.

Smith J; and Keller at para. 2. [27] Master Horn’s reference to privacy must be viewed in context. Dufault requires the production of documents that are relevant asdefined in Peruvian Guano even if private. In other words, the private nature of the document does not render it irrelevant. The subjectmatter, regardless of privacy considerations, determines relevance. [28] If, however, an irrelevant, private document is produced, even inadvertently, the potential embarrassment and harm is great.

Thatis the important consideration that Master Horn implicitly identified in Hope. [29] Of course, discovery of documents is also extremely important. The proper and efficient administration of justice requires that adefendant be able to prepare a full and complete defence. It also assists the court in getting to the truth in order to render a just verdict.There can be no challenge to these propositions. See Frenette v. Metropolitan Life Insurance Co., (SCC), [1992] 1S.C.R. 647 at 666, 89 D.L.R. (4th) 653; M. (A.) v. Ryan, (SCC), [1997] 1 S.C.R. 157, 143 D.L.R. (4th) 1 at para. 38;and finally, Amador v.

Mo, [2000] B.C.J. No. 2256 at para. 10 (S.C.). [30] The potential collision between the need to protect privacy interests in irrelevant materials, on the one hand, and to ensureadequate discovery as a facet of the proper administration of justice, on the other, requires a balancing: see Frenette at 666, and M. (A.)at para. 10.

The Supreme Court judgment in Grewal refers to both these passages (at paras. 23 and 25 respectively). [38] In Gorse at paras. 36 and 37, the court held that a Halliday order should not be granted simply because disclosure will triggerthe privacy interests of a non-party, but that such an order is appropriate where the documents sought contain a relevant producibleinformation as well as irrelevant private information. [39] In McGarva v. British Columbia, 2003 BCSC 909, the court considered an order for the disclosure of information containedin child protection files held by the Crown.

In the circumstances of that case, Gray J. described the task of the court on an applicationfor production of documents containing private information of non-parties in these terms at para. 29: (

a) If the evidence is adequate to enable the balancing of the interests, the court may order the Crown to produce names and addressesand documents; (

b) If the evidence is insufficient to enable the balancing of the interests, the court may order the Crown to provide further evidence,either following the two-step procedure or specifically requesting some information; and (

c) Where the court concludes that the request is merely a "fishing expedition", the court will dismiss the application. [40] In McGarva, the court outlined a two-step procedure. First, the documents would be produced for inspection by a judge ormaster who would review the documents for relevance, keeping the privacy interests in mind, and would then direct the disclosure ofthose documents that the judge or master considered to be relevant. At the second stage, after the parties had an opportunity to reviewthe documents, they were at liberty to make applications for further disclosure.

The two-step procedure approved by the court inMcGarva contemplated that the non-parties’ privacy interests might be outweighed by the interest in investigating possible relevantevidence.

[41] I am not persuaded that the two-step process described in McGarva is required in this case. I have found that the RTCCcontains evidence that is relevant and is likely highly probative of the issues in this action. The request for production of wiretapevidence is limited to those portions of the wiretap identified by the RCMP as providing support for the specific charges recommendedin the RTCC. While the RTCC may also contain private information, insofar as the content of the RTCC properly relates to matters inissue, it is producible: Gorse at para. 34.

This is not a case where the probative value of the RTCC is so slight that the privacy interestsof the parties or non-parties and the potential adverse affect on those persons outweighs the need for disclosure. [42] Counsel for the defendants has not adduced any evidence in support of his assertion that disclosure of the RTCC may result ina breach of privileged communications between the defendants and their solicitors. Although Mr.

Freeman has not seen the documentssought by the Director on this application, his clients, in December 2007, did receive notification of the interception of theirtelecommunications and copies of the wiretap authorizations.

If the defendants were concerned that the wiretaps were likely to haveintercepted privileged communications, one would have expected them to adduce some evidence to support that assertion. [43] Nor have the defendants proffered any evidence to particularize the nature of their privacy concerns. [44] As counsel for the Director submits, insofar as the privacy interests of non-parties are concerned, a Halliday order wouldafford the non-parties no more protection than the form of order proposed by the Director.

The non-parties have the same interest inshielding their privacy from unnecessary disclosure to either the defendants or the plaintiff. [45] I am advised that the RTCC contains approximately 200 pages of narrative text, and that the wiretap evidence referred to inthe RTCC includes several thousand pages of material. If the court were to review all of the documents for privacy interests, the resultwould be a lengthy delay in production.

In the absence of any evidence that the records are likely to contain highly embarrassing orintensely private information, judicial screening of these documents would unnecessarily hinder the timely conduct of this litigation:Gorse at para. 35. [46] While it is possible that the RTCC includes some private and irrelevant information, terms may be included in the orderproposed by the Director that will strike the necessary balance between disclosure and protection of the privacy interests of thedefendants and non-parties. [47] In Angel Acres, the Court of Appeal provided two examples of protective mechanisms available in this case at paras. 15 - 16: [15] I hasten to add that this does not mean that privacy interests of those who are not parties to particular litigation are to bedisregarded.

As powerfully urged by learned counsel for the respondents, these sorts of interests are significant interests to be properlyconsidered by a court dealing with an application such as the present one. As was made clear by the Supreme Court of Canada in M.(A.),the interests of third parties in keeping sensitive matters from general disclosure should be solicitously protected. A generally applicableprinciple that fosters this objective is to be discerned from the decision of this Court in Hunt v.

T&N plc (1995), (BCCA), 4 B.C.L.R. (3d) 110, [1995] 5 W.W.R. 518 (C.A.), wherein it was held that a party obtaining discovery of material has anobligation to limit the use of such material to the proceedings in which the material is obtained. Use beyond the parameters of thespecific litigation is only to be sanctioned by permission of the court or of the party from whom discovery has been obtained. In my viewthat is a significant safeguard of privacy interests.

There is no reason why that principle would not be applicable here to materialsobtained by the Director pursuant to an order made under R. 26(11). [16] A helpful methodology that will be applicable in some cases to the treatment of materials obtained pursuant to an order under R.26(11) is illustrated by the decision of Esson C.J.S.C. (as he then was) in the case of Farren v. Finnan, [1994] B.C.J. No. 2711 (S.C.). There the personnel file of a member of the RCMP, a defendant in the action, was sought from the RCMP.

Esson C.J.S.C. upheld anorder made by a master for disclosure, but went on to make this direction in sustaining the order for disclosure: [5] I therefore dismiss the appeal but, in view of the possibility that there is some substance to the suggestion that these records areparticularly sensitive and potentially prejudicial in matters affecting the public interest, I will make it a term of the order that, in respectof any particular document or documents, the defendants will be at liberty to apply for an order relieving them from disclosure orpermitting deletions.

I make it a further term of the order that the plaintiff and his solicitors not disclose any of these documents, or makedisclosure of their contents, other than that which is necessary for the conduct of the action. [48] In P. (D.E.) v.

P. (N.J.) (1997), 38 B.C.L.R. (3d) 65 (S.C.), Drost J. varied an order made by Master Donaldson for theproduction by the RCMP of files containing information concerning previous investigations of sexual assaults allegedly committed bythe defendant teacher, and private information about non-parties who were witnesses, possible victims, or persons to whom allegations ofsexual assault were reported. The court held, at para. 39, that society’s interest in the correct disposal of the litigation outweighed anyprivacy interest of those persons.

However, in order to balance those privacy interests with the public interest in the properadministration of justice, the court, at para. 41, ordered that: (

a) no one other than counsel for the parties may inspect the documents produced by the RCMP, without leave of the court; (

b) no person who inspects the documents may disclose their contents to anyone other than a party to this action, save with leave of thiscourt; and (

c) no person who inspects the documents or is informed of their contents shall make use of the information obtained thereby, save forthe purpose of this action. [49] For the same purpose, the order I make on this application will include similar terms. DECISION [50] In order to balance the interest of the administration of justice in the production of evidence relevant to the matters in issue inthis action, the interests of the police and the Crown, and the privacy interests of the defendants and non-parties, there will be an order

that: 1. The Officer in Charge of the Vancouver Island Combined Forces Special Enforcement Unit, or his delegate ("the Police") be authorized and directed to, within 21 days of receipt of a copy of this Order, find the Report to Crown Counsel (RTCC) and all documents referred to therein as defined in the Supreme Court Rules, including any recordings, transcripts or analyses of intercepted telecommunications in the possession or control of the Police relating to Project HALO and in particular OCABC file no. 2001-018; 2.

The Police shall examine the said documents when found, and determine which documents or portions of documents may not be produced because they are: a. any correspondence or communications between the Police and Crown Counsel, or between the Police and solicitors advising them, for the purpose of giving or receiving legal advice; b. documents which it would be contrary to the public interest to produce, and in particular documents which if disclosed: i. could reveal correspondence or communications between the Police and Crown Counsel other than those referred to in subparagraph (a); ii. could prejudice the conduct of a criminal prosecution which is anticipated or has been commenced but not finally concluded, where the dominant purpose for the creation of the documents is that prosecution (not including reports, photographs, videotapes or other records of or relating to the Incident created by or for the Police on their attendance at the scene of the Incident or as a contemporaneous record of such attendance); iii. could harm an ongoing statutory investigation or ongoing internal Police investigation; iv. could reveal the identity of a confidential human source or compromises the safety or security of the source; v. could reveal sensitive police investigation techniques; or vi. could harm international relations, national defence or security or federal provincial relations; c. protected from production by the Youth Criminal Justice Act (Canada), or by any other applicable statute; 3.

The Police shall excise or remove those portions of the documents described in paragraph 2 from copies disclosed in accordance with this order; 4. The Police shall copy the documents which satisfy the criteria for production referred to in paragraph 1 or such portions of the documents as satisfy the criteria for production referred to in paragraph 1 without disclosing information that would fall within paragraph 2; 5. The Police shall make the copies available to the solicitor for the Applicant for inspection or collection at a location convenient to the Police; 6.

Upon approval of this order by the solicitor for the Applicant and the solicitor for the Defendants, the solicitor for the Applicant shall forthwith enter this order and deliver a copy to the Police and the solicitors for the parties herein; 7. Any reasonable costs incurred by the Police for the retrieval, production, inspection, copying and delivery of the said documents shall be paid forthwith by the solicitor for the party requesting such retrieval, production, inspection and delivery of the said records; 8.

Within seven days after receipt by the solicitor for the Applicant of the said documents from the Police pursuant to this Order, such solicitor shall provide each of the solicitors for the parties herein with a copy thereof and the solicitors for the parties herein shall be at liberty to examine the copies of the documents received by the solicitor for the Applicant from the Police; 9. Any party, the Police, and the Attorney General of British Columbia, shall have liberty to apply to the Court to determine which, if any, documents are required to be produced pursuant to this order. 10. a.

No one other than counsel for the parties may inspect the documents produced by the Police, without leave of the court; b. No person who inspects the documents shall disclose their contents to anyone other than a party to this action, save with leave of this court; and c. No person who inspects the documents or is informed of their contents shall make use of the information obtained thereby, save for the purpose of this action. 11. The parties are at liberty to apply for further orders relieving them from disclosure or permitting deletion of particular documents, or portions of particular documents. 12.

No party shall disclose any of the documents, or make disclosure of their contents other than that which is necessary for the conduct of the action. [ 51 ] I will remain seized of this matter to hear any further applications respecting the production or disclosure of the contents of the RTCC or the documents referred to in the RTCC. “PEARLMAN J.”