Canada: British Columbia (Police Complaint Commissioner) v The Abbotsford Police Department: Determining Whether An Appeal Is Civil Or Criminal In Nature

The British Columbia Court of Appeal in British Columbia (Police Complaint Commissioner) v The Abbotsford Police Department, quashed an appeal of an order that directed sealed materials relating to confidential informants be returned back to police departments. In doing so, the court had to determine whether the appeal was civil or criminal in nature, and provided an overview of the law determining the nature and character of appeals. Since the appeal was found to be in criminal in nature, the court lacked the jurisdiction to hear the appeal, as the Criminal Code does not provide for interlocutory appeals.

The court added that, in the alternative, the appeal was denied on the grounds that informer privilege cannot be balanced against other policy considerations or goals to expand the circle of privilege.

Determining the Nature and Character of Appeals: Civil or Criminal?

The British Columbia Court of Appeal affirmed the legal test for determining the nature and character of appeals. The court said:

[52]    Counsel also seem to agree that the following passage from E.G. Ewaschuk, Criminal Pleadings and Practice in Canada (2nd ed., looseleaf) correctly states the law:

An appeal is either civil or criminal in nature. The nature and character of the appeal is not determined by the result of the proceedings being appealed from but, rather, by the nature of the law upon which the proceedings are based. The test is whether the proceedings being appealed are criminal or civil in nature and founded on the federal criminal law power, or whether the proceedings are civil in nature and founded on provincial legislative powers. [At 23–4; emphasis added.]

This passage has been approved by this court: see R. v. Ciancio 2006 BCCA 311 (CanLII) at para. 18; R. v. Sandhu 2012 BCCA 73 (CanLII) at para. 18; Hells Angels at para. 144.

While the respondent Abbotsford Police Department submitted that the "law upon which the proceedings are based" was criminal law, the appellant Police Complaint Commissioner submitted that the application below was civil since it was founded on Rule 8-1 of British Columbia's Civil Rules. The court did not accept the appellant's "rather literal" view, which would have, per Director of Civil Forfeiture v Hells Angels Motorcycle Corporation, elevated form over substance:

[59]        From the foregoing, I take two propositions. First, even if the application had been brought in a civil action, that fact would not have been determinative, as doing so would elevate form over substance. Second, the Code creates a comprehensive regime for the sealing and unsealing of packets. Once a packet has been sealed in connection with an authorization given under Part VI of the Code, only those judges specifically permitted by the Code, in the circumstances delineated by the Code, may unseal the packet, and only for the purposes implicit or expressed in the Code[...]

Noting that the sealing orders and applications for disclosure were first made in a criminal proceeding, the court found that the application was criminal in nature and thus denied the appeal for lack of jurisdiction:

[67]        Unlike CBC, the case at bar of course involves the privilege that protects confidential informants – an objective that will not end when Cst. A.B. and any other persons also charged, have been tried. It cannot be said that the unsealing of the packets will not "affect" sealing orders made in criminal proceedings for the protection of informants or, equally important, the informants themselves (who with the Crown are the beneficiaries of the secrecy rule). The application for disclosure to Sgt. Mullin was first made in the criminal proceeding of R. v. A.B. and in my opinion has, like the "matter" in Angel Acres, not lost its criminal character by reason of the change in the style of cause or the PCC's invocation of the Civil Rules and the inherent jurisdiction of the Supreme Court of British Columbia.


[69]        In the result, I conclude that although the PCC purported to frame his application as civil in nature, an application to obtain access to a packet that has been sealed in a criminal proceeding must, in the context of the law as it now stands, be treated as criminal in nature. It follows that the order made by the Associate Chief Justice on March 11, 2015 was also criminal and that no appeal to this court is available. On this basis, I would quash the appeal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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