Court File and Parties

Court File No.: Central East - Newmarket 12-05102 Date: 2014-01-27 Ontario Court of Justice

Between: Her Majesty the Queen — and — Eugenio Reda

Before: Justice P.N. Bourque

Counsel:

• Mr. Frost for the Crown
• Mr. DeRubeis for the accused, Eugenio Reda
• Mr. C. Galluzzo for the Witnesses Jason Chapple, Angelo Paggliariccia and Nicola Marchese

Ruling

Application to Quash Subpoena

Released on January 27, 2014

Overview

[1] On September 16, 2013, the defendant pled guilty before me of the offence of possessing a firearm while prohibited from doing so, by reason of an Order under section 109 of the Criminal Code.

[2] The matter has come up for sentencing today, January 27, 2014.

[3] At the time of the taking of that plea of guilty, the facts were read in by the Crown which were accepted by the defence, and I made a finding of guilt. The facts can be briefly stated as follows:

[4] On March 27, 2013 at Newmarket, Ontario, in the Superior Court, the defendant was found guilty of conspiracy to traffic a substance under section 465(1) of the Criminal Code and section 5(1) of the Controlled Drugs and Substances Act. He was sentenced to a total of imprisonment of three years, and in addition, was given a lifetime ban of firearm possession under section 109 of the Criminal Code.

[5] As part of the facts that were read in at that time, it was stated that the defendant is a member of the Hells Angels Motorcycle Club. It was also admitted that he was in Poland at a firing range where he was in possession of a firearm in contravention of the firearm ban. He was in the company of other Hells Angels members, one of which was a Jason Chapple, who is admitted as his long-time friend, and other persons there were an Angelo Paggliariccia and a Nicola Marchese. There has been a pre-sentence report filed, which contains confirmation of the defendant's admission as being a member of the Hells Angels Motorcycle Club and that he has travelled to Europe, mostly in the summer months, for Hells Angels Motorcycle Club events.

[6] The pre-sentence report also discusses that Jason Chapple is a member of the Hells Angels Motorcycle Club and the defendant is a business partner with the said Jason Chapple.

[7] The Crown has subpoenaed to give evidence on this sentencing hearing, Jason Chapple, Angelo Paggliariccia and Nicola Marchese. All of those persons have retained counsel, who ask me to quash the subpoenas.

[8] The defendant, Eugenio Reda, supports the application to quash. The Crown wishes to have these persons give evidence.

[9] The Crown cites one of the grounds for calling these particular witnesses, the provisions of section 718.2(a)(iv) of the Criminal Code which states:

718.2 The court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

[10] The decision of R. v. Mileki, 2008 ONCJ 401, a decision of the Ontario Court of Justice is accepted by both the Crown and defence in this application, as a correct statement of the law as it relates to the quashing of a subpoena to a witness. The justice states in one of the paragraphs:

My power to excuse witnesses under section 100(2) of the Criminal Code relates to my duty to make determinations about the admissibility of evidence and also my power to protect and control the processes of the Court…the jurisprudence indicates that, in these circumstances, the litigants seeking to subpoena the witness must show how the proposed witness is likely to give material evidence in the proceeding…where the right to call a witness is challenged, it is not sufficient for the party proposing to call the witness to merely allege that the witness can give material evidence but rather, the onus is on the accused in this case to establish that it is likely that the witness can give material evidence…put another way, means probably have evidence material to the issues raised.

[11] It is the allegation of the Crown that the defendant in this matter in breaching the terms of section 109 was doing so in association with a criminal organization, namely Hells Angels. The Crown admits that it has no statements from either of these three witnesses, and other than the fact that these proposed witnesses are members or proposed members of the Hells Angels Motorcycle Club and that one of the witnesses is an old friend and business associate of the defendant, he has no other knowledge as to exactly what evidence that any of these witnesses would give which extends the evidence already accepted that these persons are related to the Hells Angels Motorcycle Club, and indeed, were present at the firing range wearing certain Hells Angels regalia when the defendant possessed a firearm and committed this offence.

[12] The Crown in his submissions indicated that he wishes to examine, especially Mr. Chapple, on a very wide range of issues dealing with essentially his relations with the defendant for the past 10 or so years, his relations with the defendant in their association as Hells Angels, and with regard to statements in the pre-sentence report, that Mr. Chapple is a business associate with the defendant.

[13] This evidence sought by the Crown is in a larger context where the Crown also wishes to assert further expert testimony as to the nature of the Hells Angels Motorcycle Club and the fact that it has been held in most judicial proceedings to be a criminal organization. I did not get from the Crown that he wished to deal with any specific illegal actions of this particular defendant or Mr. Chapple, but it may be his purpose to inquire into that.

[14] The Crown wishes to have as much information as it can glean from these witnesses to assist in his application to have the defendant sentenced to a period of imprisonment of up to two years and to have a period of probation with terms including that he not associate with the subpoenaed witnesses or perhaps associate with any members of the Hells Angels Motorcycle Club.

[15] It is the submission of the defendant and the solicitor for the proposed witnesses that this is nothing more than a fishing expedition.

[16] They point out that the following facts are clearly admitted about the offence:

1. The offence happened in Poland on May 31, 2011 at a licensed firing range;
2. That the defendant possessed and operated firearms at that location in contravention of the legal prohibition that he do so;
3. That the defendant was wearing Hells Angels identifiable clothing as were Mr. Chapple and the two other proposed witnesses;
4. The defendant is a member of Hells Angels and has been for many years and continues to be a member;
5. Any pictures that the Crown has showing the event are admissible in the sentencing hearing and can be viewed by me to show any and all of the actions and perhaps sounds of the parties in the course of the commission of this offence;
6. It is implicit, I believe, in the admissions of the defence, that in the commission of the offence, the defendant was doing so as part of being in association with the Hells Angels organization;
7. There is no admission from the defendant that the Hells Angels Motorcycle Club is a criminal organization.

[17] The Crown cites in support of his application the decision of R. v. Violette, 2013 BCCA 31, a decision dated January 25, 2013. The British Columbia Court of Appeal in that decision affirmed that where a defendant was convicted of certain violent offences but was acquitted of the specific offence of committing the crime for the benefit of at the direction of or an association with a criminal organization, that the presiding judge can still use the evidence in the trial linking him to this group as part of the sentencing factors. Specifically, the offence that he was acquitted of was under section 467.12(1) of the Criminal Code.

[18] The Crown suggests that therefore, even though this particular defendant has not been found guilty of nor charged with any offence under section 467.12(1), that the Crown is free to still call evidence so that it can rely upon section 718.2(a)(iv) of the Criminal Code. I agree with the Crown. Section 724(3) was cited in that case and is relevant to that consideration. In my opinion, in this case to be decided is the degree to which any of these proposed witnesses could provide further evidence on the facts of this offence, which have not already been admitted or disclosed by the exhibits to the sentencing. In addition, I must also weigh whether what is proposed by the Crown would go significantly beyond any of the facts of this particular offence, and a general "fishing expedition" into the life of this defendant in the past several years.

[19] In my opinion, the decision in Violette is a decision where the total factors of the offences, which were revealed at trial, were very closely related to the particular offence. The activities of the supposed group of individuals on that day on May 31, 2011 were not in and of themselves generally illegal. The defendant's participation in those events was illegal for him as he was prohibited from possessing a firearm. In Violette, the circumstances of the offence were the attendance by a group of people to inflict and assault upon another.

Conclusion

[20] At the end of the day, I must weigh all of these factors and take into account Justice Lane's statements in that the sentencing judge must protect and control the processes of the Court. Quite frankly, I do not see how the evidence of these three individuals would go at all beyond the already admitted facts, unless the examination by the Crown turned into a general and perhaps far reaching inquiry about any and all relations they may have had with the defendant and any and all activities of a group known as Hells Angels. The fact that we have no information as to what these individuals may say further gives me pause as I am not really in a position, beyond those known facts, to assess as to whether any of these witnesses can give material evidence. The Crown alleges that because Mr. Chapple in the pre-sentence report has some reference to be in business with the defendant that would allow him to open up and examine on those issues. Quite frankly, it is up to the person asserting the facts in a pre-sentence report to prove them.

[21] The Crown may refuse to accept the allegation in the pre-sentence report that the defendant is in legitimate business activities. It would then be up to the defendant to call evidence to support that allegation.

[22] In coming to a conclusion in this matter, I am aware that the Crown can bring application based on the facts which have been admitted on this finding of guilt and sentencing hearing to give expert evidence concerning the activities of the Hells Angels Motorcycle Club, and indeed, can give evidence where the things seen in the video may have some other and important significance for which this sentencing judge should take note. That is a much different situation as I assume the Crown has served upon the defendant the report qualifications of the expert and there will be a process as to whether that evidence will be received and in what form. I am also mindful that it is the Crown who bears the burden to "establish that it is likely that the witnesses can give material evidence". While a sentencing hearing can touch many areas of a person's life, to allow any acquaintance of the defendant to talk about the defendant and his associations without any specifics of what he is going to talk about could lead to an evidentiary "free for all" without any clear idea of where it may end.

[23] It is therefore my ruling that the subpoenas for the three named individuals will be quashed and they will not be compelled to testify in these proceedings.

Signed: "Justice P.N. Bourque"

Released: January 27, 2014