Court File and Parties
Court File No.: Central East - Newmarket 12-05102 Date: 2014-09-04 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
Heard: In Writing
Sentencing
Released on September 4, 2014
BOURQUE J.:
Overview
[1] The defendant has pled guilty to a charge of possession of a firearm in contravention of a firearms prohibition order under sec 109 CC. The order for prohibition was made in 2003, being a lifetime order after a finding of guilt and sentence of 3 years imprisonment for conspiring to traffic in a scheduled substance under the Controlled Drugs and Substances Act ("CDSA").
[2] The defendant in May of 2011, went on a tour of Europe with some of his friends and associates. While in Poland, he decided, along with several of his friends to go to a gun range and while there, took temporary possession of an automatic weapon, and fired it on the range for several seconds. He then, along with his friends, posed for a picture or two, each holding one or more of the firearms.
[3] The discovery of the offence was by happenstance when police seized a USB device with moving and still pictures on it, showing these events at the firing range. The information was laid against the defendant over a year after these events.
Crown Evidence
[4] The Crown tendered evidence in aggravation of the offence. As set out in Ruby on Sentencing (8th ed., pgs 106-114) any aggravating factors on sentencing to be proffered by the Crown must be proved upon the basis of proof beyond a reasonable doubt. Any mitigating factors proffered by the defence must be proven on a balance of probabilities. The rules of evidence on a sentencing hearing are relaxed, and as per sec 724 (1) of the Criminal Code, evidence on a sentencing can come from the trial, information disclosed at the sentencing hearing and facts agreed upon by Crown and defence. Such information can include hearsay information (723(5)). The procedures for finding facts for sentencing purposes must be fair, and the information tendered must be accurate and reliable. Hearsay evidence must be both credible and trustworthy. Expert evidence is receivable, but it must be handled cautiously. The Crown must prove aggravating factors beyond a reasonable doubt, not through hypothetical theorizing.
[5] In a previous ruling, I struck subpoenas to 3 individuals who had been with the defendant at the time of the offence. My reasons are set out in that ruling.
[6] The Crown tendered evidence of Officer Andrew Cook. He has been investigating the defendant and been supervising surveillance of the defendant for about a year. The surveillance concerns the defendant's connections to the Hells Angels. As a result of this high level of surveillance, this present charge is the only charge laid against this defendant. As part of their investigation a USB device was seized from a safe deposit box owned by someone other than the defendant. The USB contained various pictures and videos of the defendant (and others) taken during a trip to Europe in 2011. The most important item is a video taken of the defendant and 4 other Hells Angels members at a commercial shooting range in Poland. The video (just over 2 minutes) shows them under the control of a shooting range worker, all firing at targets in the range for about 5 seconds. The defendant and the others appear to be using automatic rifles and are firing in the automatic mode. Of note is the fact that these appears to be just a social activity. There is no indication that this defendant and his associates are doing anything other than what other users of this range would do. While they were all wearing various items of clothing with patches which indicated that they were affiliated with Hells Angels, the activity, (other than the defendant's prohibition order) was not in any way illegal. There was no evidence presented that the activity was in furtherance of some other illegal activity. In fact most of the pictures are typical tourist pictures. There were several pictures of the defendant with other Hells Angels posing for pictures at various social events and locations.
[7] Initially, when this matter came before me for sentencing on January 27, 2014, the Crown indicated that on the return date, he would be tendering expert evidence to show that Hells Angels is a criminal organization. On the resumption of this matter on August 13, 2014, the Crown stated he would not call such evidence and therefore did not invite me to make such a ruling. He did however insist that on sentencing I should still take into account his membership in this organization as an aggravating factor and I should be mindful of the decision of Fuerst, J, in R. v. Lindsay et. al [2011] O.T.C. 583. He specifically does not ask me to make a finding (as did Justice Fuerst) that he was acting during this offence in the same manner that is using their association to further a criminal enterprise. He concedes that in the circumstances of this case, there is nothing to indicate that this activity on this occasion (while illegal for him) was anything other than social.
Criminal Record
[8] The defendant has a criminal record for the following offences, one of which is more than 10 years old:
| Date | Offence | Sentence |
|---|---|---|
| July 18, 2000 | Breach of recognizance | $800.00 fine |
| March 27, 2003 | Conspiracy to traffic in a scheduled substance | 3 years imprisonment |
Pre-Sentence Report
[9] A pre-sentence report was obtained and filed. It is on balance a largely positive report. He has a positive family history. He has sole custody of his daughter, who resides at home and is going to college and works part-time. She states that she was raised by the defendant, and has a close relationship with him and her stepmother and two siblings.
[10] He has remarried and has two children in a stable relationship. He is described as a devoted family man, a good husband and provider. His wife has been present in court with him on these hearings. She is described as a person with no criminal record and maintains responsible employment outside the home.
[11] The defendant is a member of Hell's Angels. He freely admits it, but he does not admit to any criminal activity in that organization. I do not know if his previous conviction in 2003 was in any way related to him being a member of Hell's Angels.
[12] His family does not object to this activity. His wife describes his friends in the motorcycle club as "a good group of people".
[13] York Regional Police Officer Stefancic knows the defendant as president of the Woodbridge chapter of Hell's Angels and describes him as "polite, peaceful and is not involved in negative attention".
[14] It is interesting to note the probation officer's comments at page 6 of her report where she appears to point out the potential positive benefits of a membership in Hell's Angels:
Despite the subject's involvement in the criminal justice system, he presents as having strong ties to this family, employment and companions. The subject's active involvement in Hell's Angels Motorcycle Club provides him with ties to his community, companions and their leisure activities...
[15] I also note that the probation officer did not recommend that the defendant be prohibited from associating with the Hell's Angels Motorcycle Club as it "would severely impact his employment, companions and certain leisure activities". I cite these comments, not because I subscribe to the view that the Hell's Angels Motorcycle Club is some sort of benevolent organization (they are definitely not) but to point out some of the difficulties in arriving at an appropriate assessment of this particular individual. I do not doubt the good impression that friends and family and others have of this man, but I am aware that he is associated with an organization which has been labeled as "Criminal".
[16] The defendant in the report is described as having no drug or alcohol issues.
[17] The report states that the defendant is self-employed in a plumbing business. The report cites the defendant's wife as confirming his business and states that she was a bookkeeper in the business. The Crown denies that the defendant is employed but offered no other evidence of this. I accept on the balance of probabilities that the defendant is self-employed. If he has some illegal sources of income, the Crown has not established that fact.
[18] Previous periods of parole had no issues. The parole officer stated that while being on parole for two years from 2004 to 2006, the defendant reported twice per month in person "without incident". The parole officer described the subject's house and family as welcoming".
Crown Position
[19] The Crown seeks a period of incarceration of 1 year and a probation order with a term that the defendant not have any association with any members of Hell's Angels Motorcycle Club.
Defence Position
[20] The defence seeks a sentence of a fine.
The Law
[21] Section 117.01 provides that any person who possesses a firearm "while the person is prohibited from doing so by any order made under this Act…(3)(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years", or "(b) is guilty of an offence punishable on summary conviction".
[22] The Crown has proceeded by indictment. There is no minimum sentence. A sentence of a conditional sentence of imprisonment is not precluded. A discharge is not precluded, and neither is a fine.
[23] To put it quite frankly, the range of sentence for these offences in the various circumstances in which they occur, could not be wider. There is a large category of cases where the possession of the firearm is in the context of the commission (or attempted commission) of a further criminal offence, for which the possession of the firearm is an integral part. The actual criminal offence attracts the larger part of the sentence and the breach is usually given a six month to 18 month consecutive sentence.[1]
[24] The Crown has provided to me several cases in support of his contention that in these circumstances, I should impose a sentence of one year in jail and a further term of probation and one of the terms should be that he not have any affiliations with the Hell's Angels organization or any persons known to be part of that organization. In my opinion, all the cases cited by the Crown contain in them elements which make them much more serious than the case before me.
[25] In R v. Maddigan 2009 ONCA 269, the possession of the weapon involved a transfer of a weapon and putting it into circulation. The offences were possession of a prohibited firearm with ammunition, transportation of prohibited firearm, possession of a prohibited weapon, a drug offence and possession of a firearm while prohibited. I appreciate that the 117.1 offence was made consecutive, but it involved the extra ingredient of putting an illegal firearm into circulation in Canada to those who would make use of it.
[26] In R. v. Rattray, 2008 ONCA 74, the charge involved purchasing a rifle from the U.S. (not an illegal transaction there but for the defendant's firearms prohibition in Canada) and bringing it into Canada where it was discovered by a trespasser to a barn. The Court of Appeal did not deal with the matter of sentence, only a matter of the jurisdiction of the Canadian court to prosecute where the offence happened in another jurisdiction (and was not a crime in that jurisdiction). The court of appeal commented on the seriousness of the facts in that matter:
. . . This weapon found its way to Canada and, but for the happenstance curiosity of a trespasser, would in all likelihood have ended up on the streets of one of our cities. The carnage that has resulted in our cities by the use of illegal weapons is well-known and of grave concern to Canadians everywhere.[2]
[27] There are also the "Gun Range" cases where the defendant goes to a gun range and for a short time uses a firearm in the facility and leaves as he came, not in possession of a firearm. There is no indication that there is any nefarious purpose in the possession of the weapon for a short period of time, other than its entertainment value. In such a scenario, Chisvin J. granted an absolute discharge.[3] That is the only case which has some cogent similarities to this case.
[28] In coming to a determination of the appropriate sentence in this case, I take into account the following:
1. The defendant breached the prohibition in what I would describe as a very unique set of circumstances which involved:
(a) having the firearm in his hands for a very short period of time, minutes at best;
(b) the possession of the firearm was not for any illegal purpose, that is to say it was not in furtherance of any criminal purpose, for the defendant or indeed for the Hell's Angels Motorcycle Club;
(c) the offence did not involve putting an illegal weapon into circulation and certainly not into circulation in this country;
(d) the offence while breach of a court order in this country occurred in another country, and could not be said to further any ancillary unlawful conduct in this country
2. The defendant's criminal record while involving one very serious offence, is dated, and is now over 10 years old;
3. Except for the link to Hell's Angels, the defendant's personal and family life appear to be exemplary;
4. The defendant pled guilty and that is a sign of remorse;
5. The link to Hell's Angels is real and is a factor that I take into account although I find this link to this offence to be much less of a factor than any of the cases cited to me and nothing like the fact scenario in R. v. Lindsay et. al;
6. The defendant has been on a judicial interim release order for over two years which has included stringent restraints on his liberty including a curfew. He has spent two days in pre-trial custody;
7. The defendant performed satisfactorily while on parole in 2004 to 2006; and,
8. The unique circumstances of this offence, in my opinion could and should lead to a disposition more tailored to the individual offender rather than general deterrence.
Conclusion
[29] I do not think that in all of these circumstances that any form of discharge would be appropriate. The previous conviction which generated a 3 year sentence and lifetime firearms ban would preclude a discharge for this offence.
[30] For all of the factors noted above, I also do not feel that a sentence of imprisonment is appropriate to the facts of this case.
[31] I believe that a fine is a fit sentence for this offence and this offender. It should be an amount that would be a punishment to this person and not just a token which could be perceived as some type of license to breach orders of the court, which are designed to preserve the public peace for the citizens of this country.
[32] I fine the defendant the sum of $3,000.00. The victim fine surcharge as of the time of the offence will apply. I will give the defendant 6 months within which to pay the fine.
I have considered whether I should impose an order prohibiting this defendant from associating with any known members of Hell's Angels Motorcycle Club. I choose not to do so as this infraction is not linked to any other criminal activity of Hell's Angels.
Signed: "Justice P.N. Bourque"
Released: September 4, 2014
Footnotes
[1] See R. v. Lambert, 2011 ONSC 3906; R. v. Newell, [2012] O.J. No. 4014; R. v. Hector, [2014] O.J. No. 1617; R. v. Williams, [2007] O.J. No. 1354.
[2] Supra, at paragraph 33.
[3] R. v. Scolieri, (unreported), (Newmarket Ontario Court of Justice, November 15, 2012).