R. v. Lucchese, 2015 ONSC 1444
COURT FILE NO.: 366/14
DATE: 20150304
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
PETER LUCCHESE
Appellant
S. Latimer, for the Respondent
P. Calarco, for the Appellant
HEARD: February 17, 2015
[On appeal from the judgment of Brown, J.
dated June 12, 2014]
MILLER, J.
[1] Peter Lucchese was, on June 12, 2014, found guilty of an assault of Rachel Nolan on June 25, 2013. He was sentenced to a conditional discharge with 12 months’ probation; a condition of his probation was that he have no weapons in his possession. He was also given a firearms prohibition, pursuant to s. 110 of the Criminal Code, for a period of five years. Mr. Lucchese appeals his sentence insofar as it prohibits him from possessing firearms and ammunition. He seeks to introduce fresh evidence on the appeal. Mr. Lucchese takes the position that the learned trial judge applied the wrong test in determining that a weapons prohibition was appropriate in all of the circumstances; and further, that had the trial judge been fully informed with respect to Mr. Lucchese’s use of firearms, the imposition of a weapons condition and firearms prohibition would have been clearly inappropriate.
[2] The Crown submits that the fresh evidence is not admissible pursuant to the test in R. v. Palmer 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 but does not strenuously oppose its admission pursuant to the residual discretion of the appellate court. The Crown takes the position that the proper test was applied by the trial judge in arriving at the conclusion that the imposition of a weapons condition and firearms prohibition were inappropriate in all of the circumstances. The Crown takes the position that even had the trial judge been fully apprised of Mr. Lucchese’s circumstances at the time of sentencing, the sentence imposed was not unreasonable and remains appropriate even in light of the fresh evidence.
The Trial and Sentencing
[3] Mr. Lucchese was driving a motor vehicle on Lakeshore Drive in Mississauga June 25, 2013. The trial judge found that he drove in front of a motorcycle driven by John McDonald on which Rachel Nolan was a passenger. Mr. Lucchese slammed on his brakes, as well as swerving in to the lane in front of the motorcycle. He then stopped his vehicle. Mr. McDonald stopped and got off his motorcycle then came up to the Lucchese vehicle it and kicked it.
[4] Mr. McDonald testified at trial but his evidence was rejected on the basis that he was not a credible witness. He denied kicking the vehicle driven by Mr. Lucchese after being cut off by Mr. Lucchese when driving. Ms. Nolan testified that Mr. McDonald did kick the Appellant’s vehicle. The kicking was found to have been done when Mr. McDonald became annoyed by the Appellant’s driving.
[5] Mr. Lucchese then exited his vehicle and had his hands raised. He pushed at the passenger (Ms. Nolan) and made contact with her. The motorcycle also fell over. The trial judge was not able to find that this contact destabilized the motorcycle, but did find that this was contact on Ms. Nolan without her consent. He found that on Mr. Lucchese’s own evidence, he admitted “possible touching or pushing Ms. Nolan.”
[6] After the motorcycle was pushed or fell over, Ms. Nolan then assaulted Mr. Lucchese by shoving him.
[7] There is no dispute as to the findings of fact made by the trial judge.
[8] On sentencing, Crown counsel described it as “an assault on a low end” and submitted that a suspended sentence was appropriate, and the range of sentence was from a discharge to a suspended sentence. The Crown sought 18 months’ probation and noted that a s. 110 order may be appropriate as assault was a secondary designated offence, but asked the court to consider whether such an order was appropriate and also whether a no weapons term of probation was appropriate.
[9] Defence counsel sought an absolute discharge. He described Mr. Lucchese as an “avid sportsman” who went for target practice but did not shoot competitively. He had a number of firearms and could have some difficulties with the firearms registry as a result of the finding of guilt, but no further information was supplied to the sentencing judge.
[10] The trial judge agreed that this was a low level assault which consisted of a push. He held that there was a need for anger management and wished he could have imposed such a term on the complainants, but could not. He described all of the participants in the incident as “behaving badly”. He granted a conditional discharge with 12 months’ probation and imposed a s. 110 order stating that he did not think it was in the public interest for the Appellant to have firearms.
[11] In his Reasons for Sentence, the trial judge specified several conditions of probation, including a non-contact condition in relation to Mr. McDonald and Ms Nolan. He did not specify that Mr. Lucchese was not to possess weapons as a condition of probation, however, that condition appeared in the actual probation order signed by the trial judge. Mr. Lucchese does contend that the order made was unlawful. He takes the position that the firearms condition of probation and the s.110 prohibition order were inappropriate, particularly in light of the fresh evidence.
The Fresh Evidence
[12] The criteria for the admission of fresh evidence on an appeal were set out in the Supreme Court of Canada decision in R. v. Palmer 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[13] In R. v. Levesque 2000 SCC 47, [2000] S.C.J. No. 47 the Court reviewed the Palmer criteria, approving, at paragraph 14, the comments of Doherty, J.A. in R. v. M. (P.S.) (1992), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.), at p. 410:
The last three criteria are conditions precedent to the admission of evidence on appeal. Indeed, the second and third form part of the broader qualitative analysis required by the fourth consideration. The first criterion, due diligence, is not a condition precedent to the admissibility of "fresh" evidence in criminal appeals, but is a factor to be considered in deciding whether the interests of justice warrant the admission of the evidence: McMartin v. The Queen, supra, at pp. 148-50; R. v. Palmer, supra, at p. 205.
[14] At paragraph 19 of Levesque the Supreme Court held that the criteria are to be applied in a sentence appeal on the same basis as in an appeal against conviction:
Failure to satisfy the first criterion, due diligence, is not always fatal. As Major J. said in Warsing, supra, at para. 51:
It is desirable that due diligence remain only one factor and its absence, particularly in criminal cases, should be assessed in light of other circumstances. If the evidence is compelling and the interests of justice require that it be admitted then the failure to meet the test should yield to permit its admission.
This passage clearly shows that the due diligence criterion must be applied flexibly. In my view, it is not necessary to make it more flexible in the context of appeals from sentence. While due diligence is not a necessary prerequisite for the admission of fresh evidence on appeal, it is an important factor that must be taken into account in determining whether it is in the interests of justice to admit or exclude fresh evidence. As Doherty J.A. said in M. (P.S.), supra, at p. 411:
While the failure to exercise due diligence is not determinative, it cannot be ignored in deciding whether to admit "fresh" evidence. The interests of justice referred to in s. 683 of the Criminal Code encompass not only an accused's interest in having his or her guilt determined upon all of the available evidence, but also the integrity of the criminal process. Finality and order are essential to that integrity. The criminal justice system is arranged so that the trial will provide the opportunity to the parties to present their respective cases and the appeal will provide the opportunity to challenge the correctness of what happened at the trial. Section 683(1)(d) of the Code recognizes that the appellate function can be expanded in exceptional cases, but it cannot be that the appellate process should be used routinely to augment the trial record. Were it otherwise, the finality of the trial process would be lost and cases would be retried on appeal whenever more evidence was secured by a party prior to the hearing of the appeal. For this reason, the exceptional nature of the admission of "fresh" evidence on appeal has been stressed: McMartin v. The Queen, supra, at p. 148.
The due diligence criterion is designed to preserve the integrity of the process and it must be accorded due weight in assessing the admissibility of "fresh" evidence on appeal.
In my view, these considerations are equally relevant in the context of an appeal from sentence. Accordingly, due diligence in producing fresh evidence is a factor that must be taken into account in an appeal from sentence, on the same basis as the other three criteria set out in Palmer.
[15] The Court went on to indicate at paragraph 30:
The criteria concerning the admission of fresh evidence on appeal do not relate to the sources and types of evidence and do not demand that the strict rules of a trial apply to fresh evidence proffered on an appeal from a sentence. To be admissible, the fresh evidence need only be relevant and credible and, when taken with the other evidence adduced at trial, be expected to have affected the result.
[16] The fresh evidence proffered here consists of an affidavit and attached documentation showing that Mr. Lucchese has indeed been involved in shooting competitions for four or five years in Canada and internationally and has in fact done quite well at several of them. The evidence shows that Mr. Lucchese belongs to three different gun clubs and has taken extensive training in firearms safety. The evidence also lists the 14 firearms currently owned by Mr. Lucchese, 8 of which are restricted firearms. For all of the firearms Mr. Lucchese has the necessary licences and permits. The affidavit indicates the approximate value of the firearms, ammunition a gun safe and “miscellaneous accessories and gear” as being $18,700 and Mr. Lucchese’s opinion that he would be unable to recoup anything close to the replacement value of the firearms were he required to sell them. In addition Mr. Lucchese is a member of the International Practical Shooting Federation; the Canadian Shooting Sports Association and the Canadian Firearms Institute.
[17] Mr. Lucchese holds an authorisation to transport restricted or prohibited firearms to all approved restricted shooting ranges in Ontario. The authorisation specifies that “Firearms may only be loaded while actively engaged in target practice or a target shooting competition.”
[18] There is a certificate indicating Mr. Lucchese has completed the anger management course as required by the terms of his probation.
[19] The evidence that existed at the time of sentencing clearly does not meet the due diligence criteria, as it could have been adduced at trial. It appears that counsel for Mr. Lucchese misspoke or was misinformed when he advised the sentencing judge that Mr. Lucchese did not shoot competitively. While I note that when Mr. Lucchese addressed the sentencing judge before sentencing he said nothing to correct his lawyer’s error in respect of the competitive shooting, I am satisfied that the sentencing judge did not have the correct information in regards to Mr. Lucchese being a competitive shooter, and that this evidence is admissible in the interests of justice although the due diligence criteria was not met.
[20] In respect of the fresh evidence regarding Mr. Lucchese’s membership in gun clubs, his training and record for firearms safety and the value of the various firearms, this evidence clearly does not meet the due diligence criteria, but I am nonetheless prepared to consider it with respect to whether the sentence imposed was reasonable in all of the circumstances.
[21] Additional fresh evidence with respect to Mr. Lucchese’s completion of the Anger Management course he was required to attend as a condition of his probation is not subject to the due diligence criteria as it relates to evidence generated following the passing of sentence. I am satisfied it is relevant to the issue before me.
The Test to be Applied for a s.110 Order to be Made
[22] S.110 of the Criminal Code provides that:
(1) Where a person is discharged under section 730, of
o (a) an offence, other than an offence referred to in any of paragraphs 109(1)(a), (b) and (c), in the commission of which violence against a person was used, threatened or attempted, …
the court that sentences the person or directs that the person be discharged, as the case may be, shall, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, consider whether it is desirable, in the interests of the safety of the person or of any other person, to make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, and where the court decides that it is so desirable, the court shall so order.
[23] The trial judge here found that it was “not in the public interest” for Mr. Lucchese to have firearms and so made the s.110 order.
[24] There is no issue that the facts found in support of the finding of guilt against Mr. Lucchese establish that it was an offence in the commission of which violence against a person was used, and therefore consideration of the imposition of a s.110 order was open to the trial judge.
[25] The Crown takes the position that the language used by the trial judge “in the public interest” is consistent with the test in s.110 that a prohibition order be desirable in the interests of the safety of any person.
[26] Mr. Lucchese takes the position that the Court should be guided by the decisions in R. v. Melchionna [2005] O.J. No. 561 (S.C.J.) where despite the seriousness of offence (an assault causing bodily harm where a hammer was used and the victim sustained a skull fracture) the summary conviction appeal court permitted an exception for hunting for a s.110 order imposed at trial; in R. v. Day [2006] O.J. No. 3187(S.C.J.) where the appeal judge, upon reviewing conflicting authorities from various provinces determined that for a s.117.05 application “the appropriate test is whether there are legitimate concerns the person lacks the responsibility and discipline the law requires of gun owners.”; R. v Barnes [2011] O.J. No. 4056(O.C.J.) in which that test was applied on a Crown application for forfeiture of firearms pursuant to ss.117.05 and s.491 of the Criminal Code and no forfeiture order was made because the accused was found to be a licenced gun owner and collector for 50 years known for his careful compliance with firearms safety; and, R. v. Crocker [1995] A.J. No. 1051 where the trial judge declined to impose a firearms prohibition for “a unique case of a very talented and responsible gun collector failing to report modifications made to weapons after their registration.”
[27] It is not clear to me what jurisdiction the appeal judge had in Melchionna to provide an exception to the s.110 order where the accused was simply described as “enjoying hunting”. S.113 of the Criminal Code provides for exceptions to be made in the limited circumstances where:
(a) the person needs a firearm or restricted weapon to hunt or trap in order to sustain the person or the person’s family, or
(b) a prohibition order against the person would constitute a virtual prohibition against employment in the only vocation open to the person.
[28] Both Day and Barnes involve a different test for a forfeiture order where the subject’s resulting deprivation of the firearms would be permanent.
[29] Crocker is clearly distinguishable on its facts.
[30] In R. v. Sykes [2007] O.J. No. 3531 (S.C.J.) the summary conviction appeal court found that actions committed in a rage were an appropriate consideration in respect of the imposition of a s.110 firearms prohibition.
[31] I am satisfied that the trial judge, in specifically adverting to the circumstances of the offence as a “road rage” incident in which Mr. Lucchese let his temper “get out of control” and to Mr. Lucchese’s similar demeanour in the witness box, finding that he was “capable of blowing a fuse” based his decision to impose the s.110 firearms prohibition on the proper consideration of public safety – the safety of any person.
The Reasonableness of the Sentence
[32] Mr. Lucchese takes the position that the order pursuant to s.110 and the “no weapons” condition of probation are unreasonable in light of the fresh evidence.
[33] Mr. Lucchese takes the position that a condition of probation must be reasonably related to the rehabilitation of the offender and his or her reintegration into society. For this proposition he relies on the Ontario Court of Appeal decision in R. v. Caja and Billings [1977] O.J. No. 753 and the Supreme Court of Canada decision in R. v. Proulx 2000 SCC 5, [2000] S.C.J. No. 6.
[34] In Caja and Billings the Court of Appeal deleted certain conditions of probation which it found were not “required to secure the good conduct of the appellants and for preventing a repetition of other offences.”
[35] In Proulx the Supreme Court distinguished probation orders from conditional sentences at paragraph 23 by indicating that probation is primarily a rehabilitative sentencing tool whereas Parliament intended a conditional sentence to address both punitive and rehabilitative objectives. At paragraph 26 the Court noted that: “s. 732.1(3)(h) provides that the court may impose such other reasonable conditions of probation "for protecting society and for facilitating the offender's successful reintegration into the community".”
[36] s.732.1(3)(d) specifically authorises a condition of probation that requires an offender to abstain from owning, possessing or carrying a weapon.
[37] I am also satisfied that a “no weapons” condition of probation appropriately addresses the legislative objective to protect society set out in s. 732.1(3)(h) and recognized by the Court in Proulx.
[38] The “no weapons” condition attached to probation corresponds (for a shorter time period) with the s.110 order. It is also broader than the firearms prohibition in that it encompasses other weapons as defined by the Criminal Code in s. 2.
[39] I am satisfied that a “no weapons” condition of probation was available to the trial judge.
[40] I have considered the reasonableness of the “no weapons” condition of probation and the s.110 order in light of the fresh evidence.
[41] It is apparent that Mr. Lucchese uses his firearms and ammunition for competitive shooting if not exclusively so. The “no weapons” condition of probation and the s.110 order will prevent him from engaging in that activity as well as the target practice that the trial judge was aware of.
[42] These orders will also require Mr. Lucchese to transfer or surrender to police those items in his possession which would bring him in breach of the orders. I accept that if he has to surrender for forfeit the firearms and ammunition currently in his possession he will suffer a financial loss. However, he may transfer the firearms and ammunition to any individual who has the necessary authorisations to possess such items, and, in the case of the restricted firearms, to anyone approved by the chief firearms officer pursuant to s.28 of the Firearms Act.
[43] It is apparent that Mr. Lucchese has extensive training in the safe handling of firearms.
[44] The fresh evidence also shows the number and nature of firearms available to Mr. Lucchese and for which he has the necessary authorisations to transport between his home and the various shooting venues he attends.
[45] While the evidence shows that Mr. Lucchese completed the Anger Management course required as a condition of his probation, there is nothing to show what benefit (if any) Mr. Lucchese perceives that he received by attending that course. There is no evidence to show how, if at all, he has addressed the concerns raised by the trial judge in regards to the control of his temper and the danger the trial judge found that he poses, as a result, to the public at large.
[46] While I am confident that Mr. Lucchese knows how to safely handle firearms, it is his temper, and his actions taken while not in control of his temper, demonstrated by the circumstances of the offence as well as his conduct, before the trial judge, in the courtroom, which are concerning.
[47] In all of the circumstances including all of the fresh evidence, I am satisfied that the orders made by the trial judge were and are desirable in the interests of safety of other persons, for protecting society, and were and are reasonable.
[48] The appeal is dismissed except as follows.
[49] Both orders were stayed pending release of my decision. I am mindful that Mr. Lucchese will need some time in order to comply with the orders by transferring or surrendering his firearms and ammunition. I am prepared to permit Mr. Lucchese 30 days, from the date of this order, before he must surrender to police any firearms or ammunition still in his possession.
[50] Mr. Lucchese has 30 days from the date of the release of this decision within which to arrange for the lawful transfer of his firearms, pursuant to the provisions of the Firearms Act.
MILLER, J.
Released: March 4, 2015
R. v. Lucchese, 2015 ONSC 1444
COURT FILE NO.: 366/14
DATE: 20150304
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
HER MAJESTY THE QUEEN
– and –
PETER LUCCHESE
REASONS FOR JUDGMENT
MILLER, J.
Released: March 4, 2015