Court of Appeal for Ontario

CITATION: R. v. Lucchese, 2015 ONCA 899

DATE: 20151217

DOCKET: C60172

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Peter Lucchese

Appellant

Edward L. Burlew, for the appellant

Hannah Freeman, for the respondent

Heard and released orally: December 11, 2015

On appeal from the decision given by Justice Miller of the Superior Court of Justice, dated April 4, 2015.

ENDORSEMENT

[1] We would grant leave to appeal. The trial judge did not have the benefit of much of the evidence relevant to the suitability of the firearms prohibition orders. The summary conviction appeal court had the evidence and upheld the orders made at trial.

[2] In the unusual and unique circumstances of this case, we are satisfied that there was no evidence upon which the order could properly be made. We emphasize the following: 1) the assault was very minor and the appellant received a conditional discharge; 2) the appellant has no record; 3) no weapon was involved; 4) the incident was an isolated one involving an altercation with strangers on a roadway; 5) the appellant uses his firearms exclusively for competitive shooting, is very alive to and well-schooled in all matters relating to the safe use of firearms; and 6) there is no suggestion that the appellant has not always fully complied with all of the restrictions relating to the possession, transfer and use of firearms.

[3] We accept that the appellant has manifested some anger control issues. He has, however, addressed those issues by taking an anger management course. We note as well that his anger control problems have not manifested themselves in any prior criminal conduct much less conduct involving a firearm.

[4] We also consider that in view of the appellant’s long-time participation in competitive shooting and the requirement that he dispose of all of his weapons when the prohibition order was made, that the order proved particularly punitive in the appellant’s unique circumstances.

[5] We allow the appeal, delete the s. 110 prohibition order and delete the term from the probation order prohibiting the possession of weapons. Otherwise, the sentence stands.

“Doherty J.A.”

“S.E. Pepall J.A.”

“M. Tulloch J.A.”