Third Cdn Judge Declares HAMC A Criminal Org
Greg Carr
Neal Hall
Vancouver Sun
Saturday, November 24, 2007
A B.C. Supreme Court judge who ordered the seizure of the Nanaimo clubhouse
of the Hells Angels referred to the motorcycle club as a criminal
organization, according to a recently released court judgment.
Justice Daphne Smith last Nov. 8 approved an application to seize the
clubhouse under B.C.'s Civil Forfeiture Act at an in camera hearing --
excluding the public and the media, and without giving notice to the Nanaimo
chapter of the Hells Angels -- because of personal safety concerns for those
carrying out the order.
"The potential for an armed and violent resistance to the execution of the
order was considered to be real," Smith said in her written ruling, released
this week.
Another concern, the judge noted, was the preservation of the property
before the seizure order was executed on Nov. 9 by dozens of heavily armed
RCMP officers.
"The basis for public and personal safety concerns," she said, "included the
criminal nature of the organization, which is a chapter of the larger Hells
Angels Motorcycle Club (HAMC) criminal organization in Canada."
Smith said other concerns raised were "the fortification of the property,
the weapons seized during the execution of a search warrant at the property
on Dec. 12, 2003 ('Project Halo') and the conviction and/or involvement of
members of the [Nanaimo Hells Angels chapter] in a number of violent crimes
including assaults on police officers."
Past searches of Hells Angels clubhouses, including the earlier raid on the
Nanaimo clubhouse, resulted in the discovery of "restricted weapons, gang
regalia, drug accounting tools and records and various other instruments of
unlawful activity," the judge wrote.
Smith also considered the affidavit evidence of Det. Mark Loader of the
Ontario Provincial Police, Biker Enforcement Unit; of RCMP Insp. Robert
Turnball of the Organized Crime Agency of B.C. who is now seconded to the
Combined Forces Special Enforcement Unit (CFSEU) of B.C.; and Andy Richards
of the CFSEU-BC, who was personally involved in the execution of four search
warrants on three separate Hells Angels clubhouses in B.C., and who is an
expert on the history and structure of the Hells Angels.
The biker cops all agreed the Hells Angels "was held to be a criminal
organization" within the definition of Section 467.12(1) of the Criminal
Code.
It was also alleged the Hells Angels are "involved in a wide variety of
criminal activities, the most lucrative of which is drug-trafficking. Many
members and/or associates have been convicted for the offences of illicit
drug importation, exportation, distribution and manufacturing, and
trafficking."
The full text of the judgment is on the Internet at: http://www.
SC/07/16/2007BCSC1648.htm.
© The Vancouver Sun 2007
http://www.canada.com/vancouversun/news/story.html?id=45c2fd90-d7d7-48ef-8e82-d251b63f5284
HA
is involved with
extortion, homicide, kidnapping, prostitution, meth and cocaine
dealing, rape, armed robbery and motorcycle theft and child
pornography
as well as phoney currency and witness intimidation and obstruction of
justice. They have been known to bribe and scare law enforcement
officers and judges into doing their bidding. These ppl must be
rooted
out of the Cdn justice system. Two judges have actually done their
job
and declared HAMC a criminal org and the Victoria Times-Colonist is
calling for it to be banned as a terrorist org.
The White Rock chapter Sgt.Of Arms, Villy Roy Lynnerup, recently was
arrested for trying to board an airplane at YVR
with a loaded firearm. Was probably going to crash the plane into the
Downtown courthouse or hold the passengers hostage in exchange for
the
release of Moms Boucher and all imprisoned full patch members. All
the
Hell's Angels, their supporters, associates etc. should be imprisoned
for twenty years
their children put in foster care and their assets seized.
Ppl are trying to get HAMC listed as a terrorist org. If you support this
then write letters to editors of local newspapers and your local MP.
As well John Les the solicitor-general of BC has advocated banning
the wearing of gang colours such as biker patches in bars. Since HA
is
known to frequent the College Place and the Cecil and has links to
various bars in BC that would be an improvement. The gang has a
history of intimidating
bartenders, infiltrating unions involved in the bar industry, beating
and killing strippers and beating customers to death at random for no
reason. Contact your MLA as well as the local media and tell them you
want this implemented sooner rather than later.
VPD is appealing again for info about the homicide of Maria Yvette
Monzon who was shot dead on the westside of Vancouver. She was killed
by HA but the police have never stated that. There is a reward.
Colleen Reiter (Ryder?) of Surrey was killed by HAMC but the RCMP refuse to
confirm this.
The court ruling:
IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation:
Director of Civil Forfeiture v. Angel Acres,
2007 BCSC 1648
Date: 20071113
Docket: 07 4460
Registry: Victoria
An Action Under the Civil Forfeiture Act In Rem Against:
The Land and Structures situated at 805 Victoria Road, Nanaimo
British Columbia, and having a legal description of PID 004-954-581,
Lot 7, Block 5, Section 1, Nanaimo District, Plan 2009; PID 006-637-167,
Lot 8, Block 5, Section 1, Nanaimo District, Plan 2009, PID 006-637-175,
Lot 9, Block 5, Section 1, Nanaimo District, Plan 2009; PID 006-637-191,
Lot 10, Block 5, Section 1, Nanaimo District, Plan 2009 (the "Victoria
Road Property") and the contents of the Victoria Road Property
Between:
Director of Civil Forfeiture
Plaintiff
And:
Angel Acres Recreation and Festival Property Ltd.,
Richard Phillips, Lloyd Stennes, Robert Widdifield
Defendants
Before: The Honourable Madam Justice D. Smith
Reasons for Judgment
Counsel for the Plaintiff Attorney
General of British Columbia
T. Leadem, Q.C. and
P. Ameerali
Date and Place of Trial/Hearing:
November 8, 2007,
Victoria, B.C.
I. Overview
[1] On November 8, 2007, the Director of Civil Forfeiture
(the "Director") was granted an interim preservation order (the "order")
pursuant to s. 8 of the Civil Forfeiture Act, S.B.C. 2005, c. 29 (the
"Act"). The order authorized the Director to seize, restrain and take
immediate possession of a commercial property and its contents (the
"property") commonly known as the Nanaimo Hells Angels Motorcycle Club (the
"NHAMC") clubhouse (the "NHAMC clubhouse").
[2] The NHAMC clubhouse is located in a residential
neighbourhood but is zoned for commercial use. Access to the property is
controlled by members of the NHAMC but is not exclusive to members or
associates. There is no evidence that anyone lives at the property on a
regular basis.
[3] The action in which the order was granted is an in rem
proceeding that seeks forfeiture of the property to the provincial
government on the grounds that it was acquired as a result of unlawful
activity or is an instrument of unlawful activity. Preservation of the
property is essential for the action to remain viable.
[4] Pursuant to s. 9 of the Act, the application for a s. 8
interim preservation order was heard without notice to the corporate
defendant, Angel Acres Recreation and Festival Property Ltd. ("Angel
Acres"), and to the individual defendants, who are the directors of the
corporate defendant. Angel Acres is the registered owner of the land and
premises upon which the NHAMC clubhouse it situated. Section 9 limits the
duration of a without-notice order to no more than 30 days.
[5] The hearing of the s. 8 application was conducted in
camera or in private. Pursuant to Rule 52(9) of the Rules of Court, the
Court may direct an application to be heard in private for special reasons:
Except in cases of urgency, an application shall be heard in a place open to
the public when the application is made, unless the court, in the case of a
particular application, directs that for special reasons the application
ought to be dealt with in private.
[6] The recording of the hearing, the materials in support of
the application for an in camera hearing and the application for an interim
preservation order, and the order granted were sealed until the order was
executed. The order was executed on November 9, 2007.
[7] These reasons address the procedure employed and the
basis for granting the order.
II. The Procedure
[8] At the request of counsel for the Director, the Court
entered into an in camera hearing to determine if the application for an
interim preservation order should be heard in camera or in open court. The
pleadings and materials in support of the applications for an in camera
hearing and interim preservation order were filed at the outset of the
hearing.
[9] The affidavit material filed in support of the
application for an in camera hearing addressed concerns for public safety,
the personal safety of individuals who might be acting pursuant to the
interim preservation order, and concerns for preservation of the property
during the hearing of the interim application if notice of the action,
applications and any resulting orders made were given to the defendants, or
to any members of the NHAMC or their associates in advance of the order
being executed.
[10] The basis for public and personal safety concerns included
the criminal nature of the organization (which is a chapter of the larger
Hells Angels Motorcycle Club (the "HAMC") criminal organization in Canada),
the fortification of the property, the weapons seized during the execution
of a search warrant at the property on December 12, 2003 ("Project Halo"),
and the conviction and/or involvement of members of the NHAMC in a number of
violent crimes including assaults on police officers. Past searches of
other HAMC clubhouses, including the earlier search of the NHAMC clubhouse,
have resulted in the discovery of restricted weapons, gang regalia, drug
accounting tools and records, and various other instruments of unlawful
activity. The potential for an armed and violent resistance to the
execution of the order was considered to be real.
[11] The affidavit material also addressed the potential jeopardy
of defeating the objective of the in rem litigation through wastage of the
assets, fraudulent conveyance and preference, and removal of the contents of
the NHAMC clubhouse if the defendants and other members and associates of
the NHAMC became aware of the application in advance of the execution of the
order.
[12] The Dagenais/Mentuck test (see Dagenais v. Canadian
Broadcasting Corp., [1994] 3 S.C.R. 835; and R. v. Mentuck, [2001] 3 S.C.R.
442, 2001 SCC 76), restricts an order that amounts to a publication ban to
circumstances where:
(a) such an order is necessary in order to prevent a serious risk to
the proper administration of justice because reasonably alternative measures
will not prevent the risk; and
(b) the salutary effects of the publication ban outweigh the
deleterious effects on the rights and interests of the parties and the
public, including the effects on the right to free expression, the right of
the individual to a fair and public trial, and the efficacy of the
administration of justice.
[13] Application of the Dagenais/Mentuck test to discretionary
judicial decisions that limit freedom of expression requires an examination
of the risk in question and a weighing of the positive effects against the
negative effects of what amounts to a publication ban on the rights and
interests of the parties and the public.
[14] Based on the material filed, I was satisfied that special
circumstances existed for hearing the application for an interim
preservation order in private. In my view, there was a potential risk to
public and personal safety, as well as a need to ensure preservation of the
property in order to maintain the action. I was also satisfied that an
order sealing the court file until the execution of the order was required
in order to avoid the dangers that might have posed a serious threat to the
administration of justice in this case.
[15] In order to balance the necessity for the making of the
restrictive publication orders with the right of the public to be advised of
the court proceedings and the right of the defendants to a fair trial, the
sealing order was made time-limited. A further term of the order permits
the defendants to apply to set aside the order on two days' notice. Also
included are terms recommended in Celanese Canada v. Murray Demolition,
[2006] 2 S.C.R. 189, 2006 SCC 36, for inclusion in an Anton Piller order.
Those terms provide some protection to the defendants for court-ordered
actions that are akin to a private search warrant.
[16] In that regard, the order provides for the appointment of an
independent supervising solicitor (the "ISS") to oversee the execution of
the order. The ISS is required to: (i) identify himself and his
relationship to the order and to any of the defendants present at the time
the order is executed; (ii) explain the meaning and effect of the order in
plain language; (iii) advise the defendants of their right to obtain legal
advice and that if they choose to do so, the plaintiff may not enter the
property for a period of up to two hours; (iv) advise the defendants of
their right to claim solicitor-client privilege and privilege against
self-incrimination against any items that may be seized; and, (v) advise the
defendants that if they disobey the order, they may be found guilty of
contempt of court and may be fined or sent to prison.
[17] Upon entering the property, the ISS is authorized to accept
any documents or materials over which the defendants may wish to assert
privilege, and any computers at the property, and to secure those items in
the possession of his law firm. Within 14 days of the order being executed,
the ISS is required to prepare and deliver to the parties a list of those
materials in his possession and their description, without revealing
information that is or could potentially be privileged. Within 21 days of
the order being executed, the ISS is required to present to the court a
report documenting his actions and providing a list and description of the
items that are in the possession of his law firm, and over which the
defendants had asserted a claim of privilege.
[18] I turn now to the provisions of the Act.
III. The Civil Forfeiture Act
[19] The Act was enacted in 2005 and parallels the Ontario Civil
Remedies Act, 2001, S.O. 2001, c. 28. The objective of the Act is to impose
civil consequences for property that is found to have been acquired as a
result of, or to have been used in the course of, unlawful activity by
making such property the subject of a forfeiture order to the government.
Proceeds from the recovery of the forfeited property are targeted for the
benefit of the victims of unlawful activity.
[20] An "unlawful activity" is defined in s. 1 of the Act as:
... an act or omission described in one of the following paragraphs:
(a) if an act or omission occurs in British Columbia, the act or
omission, at the time of occurrence, is an offence under an Act of Canada or
British Columbia.
[21] An "instrument of unlawful activity" is defined as property
that:
(a) has been used to engage in unlawful activity that, in turn,
(i) resulted in the acquisition of property or an interest in
property, or
(ii) caused serious bodily harm to a person, or
(b) is likely to be used to engage in unlawful activity that is
intended to
(i) result in the acquisition of property or an interest in
property, or
(ii) cause serious bodily harm to a person.
[22] "[P]roceeds of unlawful activity" is defined as including:
(a) the whole or a portion of an interest in property if the whole or
the portion of the interest, as the case may be, is acquired directly or
indirectly as a result of unlawful activity.
[23] Section 2(1) provides for the retrospective application of
the Act to unlawful activity or proceeds of unlawful activity that occurred
before, on or after the date the Act came into force.
[24] Section 3 authorizes the Director to apply for an order that
property acquired from proceeds of unlawful activity or that is an
instrument of unlawful activity forfeited to the government.
[25] Section 8 authorizes the Director to apply for an interim
preservation order. Section 8(5) outlines the test to be met for the
granting of that order:
Unless it is not in the interests of justice, the court must make an interim
preservation order applied for under this section if the court is satisfied
that there are reasonable grounds to believe that
(a) the whole or the portion of the interest in property that is the
basis of the application under subsection (1) is proceeds of unlawful
activity, or
(b) the property that is the basis of the application under
subsection (2) is an instrument of unlawful activity.
[26] The standard of proof in s. 8(5) is "reasonable grounds to
believe".
[27] In the criminal context, the standard of "reasonable grounds
to believe" has been described as equivalent to the standard of "reasonable
and probable grounds" required for a lawful arrest. It also has been
alternatively described as "reasonable grounds", "reasonable belief",
"probable cause", and "reasonable probability" (see R. v. Caslake, [1998] 1
S.C.R. 51 at ¶20).
[28] The standard has both a subjective and an objective
component. The individual taking the action must subjectively believe that
he or she has reasonable grounds to do so, and also must have objectively
justifiable grounds that "a reasonable person, standing in the shoes of [the
individual taking the action] would have believed that reasonable and
probable grounds existed to [take the action]" (R. v. Storrey, [1990] 1
S.C.R. 241 at ¶16). The standard does not require a prima facie threshold
be met but does require more than mere suspicion or possibility. It is the
cumulative effect of the evidence (Storrey at ¶18) or the totality of the
circumstances (R. v. Debot, [1989] 2 S.C.R. 1140 at ¶53) that must be
weighed in determining if the standard of "reasonable grounds to believe"
has been met.
[29] Section 16 provides that "[f]indings of fact in proceedings
under this Act and the discharge of any presumption are to be made on the
balance of probabilities".
[30] Section 17 provides for proof of unlawful activity by a
conviction, a finding of guilt by a court, or a finding of not criminally
responsible on account of a mental disorder in respect of an offence that
constitutes an unlawful activity. Section 18 extends the finding of
unlawful activity to circumstances where no charge has been laid for an
offence that constitutes an unlawful activity or where there has been an
acquittal, withdrawal or stay of a charge for an offence that constitutes
the unlawful activity.
IV. The Property
[31] The Act defines property as "a parcel of real property or
tangible or intangible personal property and, for greater certainty,
includes cash".
[32] The Director asserts that the property is an instrument of
unlawful activity as it is used to engage in unlawful activity. In his
opinion, the NHAMC clubhouse is used to promote and facilitate both social
and criminal activities for the benefit of its members, prospects,
hang-arounds and associates.
[33] His opinion is derived from the affidavit evidence of:
(a) Detective Constable Mark Loader of the Ontario Provincial Police
("OPP") assigned to the Organized Crime Section, Biker Enforcement Unit
("BEU") of the OPP, who has participated in the execution of search warrants
at five HAMC clubhouses in Ontario, and who was qualified to give expert
opinion evidence on the historical overview of the HAMC, the international
and domestic face of the HAMC, the characteristics defining an Outlaw
Motorcycle Gang ("OMG") and the HAMC, the HAMC clubhouses, the HAMC
reputation for violence, the NHAMC and the expert evidence led in R. v.
Lindsay, [2005] O.J. No. 2870 in which Fuerst J. made a finding that the
HAMC was a criminal organization within the meaning of s. 467.12(1) of the
Criminal Code;
(b) RCMP Inspector Robert Turnball who was a supervisor and
investigator in the Organized Crime Agency of British Columbia (the
"OCA-BC") and is now a seconded member to the Combined Forces Special
Enforcement Unit of British Columbia ("CFSEU-BC") and who was qualified to
provide expert opinion evidence on OMG's, the HAMC in B.C., and the NHAMC;
(c) police officer Gregory Johnson of the Central Saanich Police
Service and seconded member to CFSEU-BC since April 2007, who provided an
overview of the NHAMC, its members and associates, its property, its
unlawful activities as recounted by reliable informants, and its interaction
with other HAMCs and members; and,
(d) police officer Andrew Richards who was also seconded to CFSEU-BC
since April 2004, was personally involved in the execution of four search
warrants on three separate HAMC clubhouses in B.C., and who was qualified to
provide expert opinion evidence on the history and structure of the HAMC in
B.C.
[34] CFSEU-BC is an integrated policing agency comprised of
members from municipal police agencies, the precursor investigative agency
OCA-BC and the RCMP. The purpose of CFSEU-BC is to investigate, disrupt and
suppress organized crime groups.
[35] The above-noted individuals provided the following evidence:
(a) The NHAMC is the Nanaimo chapter of the HAMC which was held to be
a criminal organization within the meaning of s. 467.12(1) of the Criminal
Code (see Lindsay). The NHAMC functions similarly to other chapters of the
HAMC which are found throughout Canada and the world;
(b) The HAMC is involved in a wide variety of criminal activities,
the most lucrative of which is drug trafficking. Many members and/or
associates have been convicted for the offences of illicit drug importation,
exportation, distribution and manufacturing, and trafficking. Additional
convictions of murder, theft, possession of stolen merchandise, extortion,
firearms possession and money laundering have been registered against
HAMC-associated persons;
(c) The HAMC cultivates a reputation for violence in order to
facilitate its criminal activities and protect its turf or franchise from
encroachment by other individuals involved in criminal activities;
(d) The NHAMC clubhouse displays identifying features of the HAMC
that include: being painted in the customary "Red and White" colours that
are common to other HAMC clubhouses, displaying a sign on the outside of the
clubhouse that includes the words "Hells Angels" and a logo of a "flying
death head" that is associated with and trademarked by the HAMC, displaying
a large "flying death's head" logo onto the garage door of the clubhouse
with the words "Hells Angels Nanaimo" painted around it, posting a sign near
a parking area with a parking symbol on it that states "Hells Angels Only",
and engraving the knocker on the front door of the clubhouse with the words
"Hells Angels Nanaimo";
(e) The NHAMC clubhouse has hosted parties that have been attended by
individuals from a number of HAMC chapters, which assists the NHAMC to
facilitate the commission of criminal activities by allowing members to
create criminal networks; and
(f) The NHAMC was searched, videotaped and photographed during the
execution of a search warrant on December 12, 2003 (Project Halo), during
which it was observed:
(i) there were no windows on the ground floor level outside of the
fenced compound and therefore no view into the clubhouse proper from the
outside;
(ii) the front door was heavily constructed and had a dead bolt, a
numeric key pad and a door bell;
(iii) the clubhouse was equipped with a video-monitored security
system that included at least eight video cameras mounted outside the
clubhouse;
(iv) the mounted cameras appeared to feed numerous video security
monitors located throughout the inside of the clubhouse;
(v) displayed on the inside of the main front entrance and exit door
was a sign that read "What you do here, what you see here, what you hear
here, let it stay here"
(Greg Carr note: They probably stole it from a church run AA meeting :-)
and "Hells Angels Nanaimo";
(vi) both the front and rear entrance doors were heavily constructed
and there was wire mesh fencing around the south side and rear of the
building;
(vii) the central common area of the main floor included a bar, with
signage pertaining to the HAMC throughout the room. An electronic audio
listening device detector was located in the bar area. The bar had many
features of a licensed establishment set up for the sale and consumption of
alcohol even though NHAMC is not licensed under the Liquor Control and
Licensing Act, R.S.B.C. 1996, c. 267 or any other act or regulation
governing the sale of liquor;
(viii) the kitchen area included storage shelves and a liquor cabinet
that contained a large amount of liquor;
(ix) a boardroom on the second floor, with apparent access limited to
members only, contained two video monitors, numerous examples of Hells
Angels regalia, a computer, a file cabinet and a shredder;
(x) during Project Halo, a number of unregistered shotguns were
seized from an unlocked gun case in the boardroom closet and a .25 calibre
restricted handgun was located in an insecure main floor locker with two
boxes of ammunition. Documentation in the locker was in the name of a then
member of the NHAMC; and
(xi) two bedrooms and a storage closet were located on the third
floor. The bedrooms appeared unoccupied and the storage closet contained
"Red and White" Hells Angels support clothing.
[36] Detective Constable Loader confirms that in his opinion the
HAMC is a criminal organization and that the NHAMC has all of the same
characteristics as the larger HAMC. He attested that the central purpose of
a HAMC clubhouse, including that of the NHAMC clubhouse, is the planning of
criminal activity in secrecy. He reports that the existence of a HAMC
clubhouse in a particular geographical area is a signal that the HAMC has
marked their turf and gained territorial control over criminal activity in
that area.
[37] After reviewing the affidavits of Inspector Turnball and
Officer Johnson, Detective Loader commented that "the HA clubhouse in
Nanaimo promotes and facilitates both social and criminal activities for the
benefit of its members, prospects, hang-arounds and associates". He based
his opinion on NHAMC's heavy fortifications to protect its premises from
entry by police and/or rival gangs, its series of video cameras that feed
into televisions located within the clubhouse, the extent to which it
attempts to control and guard conversations overheard and/or observations
made by persons attending the clubhouse, the storage of illegal firearms for
illicit purposes, and its use of HAMC regalia (colours) when travelling from
bar to bar and participating in "bike runs" and "bike events" in order to
mark their "turf" and announce their presence within a community.
[38] Inspector Turnball has been directly involved in
investigations of members and associates of the NHAMC clubhouse over the
course of his 27-year policing career. He was also involved in Project Halo
during which he participated in the execution of the search warrant on the
NHAMC clubhouse on December 12, 2003.
[39] In his affidavit of November 5, 2007, Inspector Turnball
deposes at ¶15:
I believe the Clubhouse has been modified to suit the specific purposes of
the NHAMC. Those purposes include maintaining a high level of secrecy over
things that occur within the Clubhouse and providing security over the
Clubhouse and the surrounding area. The fortifications which include
reinforced exterior doors, wire meshed fencing around one side and rear of
the Clubhouse, the lack of windows on the ground level outside the fenced
area and video monitoring equipment, assist in preventing the forcible entry
of the premises by law enforcement personnel. It is also my belief that
similar modifications have been observed by other law enforcement agencies
when they have entered HAMC clubhouses at other locations in Canada.
[40] In his opinion, the NHAMC clubhouse provides a protected
environment in which the NHAMC can operate as an instrument of unlawful
activity without interference by the police.
[41] Officer Johnson was also involved in Project Halo and has
knowledge of the NHAMC clubhouse and membership. In his opinion, the NHAMC
clubhouse operates as a place where criminal planning is conducted in
secrecy during weekly "church meetings" that are attended by full patch
members. He deposes that all three individual defendants are currently
members of the NHAMC and states that other members and associates of the
NHAMC have been arrested for possession and production of a controlled
substance, possession of a restricted weapon and conspiracy to traffic in
cocaine.
[42] In particular, he has knowledge of several assault incidents
involving members or associates of the NHAMC. He attests to an assault in
secrecy at the NHAMC clubhouse in September 2002. The victim was a NHAMC
member who, in the course of being expelled from the NHAMC, was seriously
beaten and required admittance to the local hospital for treatment of his
injuries. In that instance, the NHAMC clubhouse was used as a safe place to
conduct the assault upon the victim in secrecy. Officer Johnson also
advised of an August 2000 investigation into an assault of a victim by four
associates of the NHAMC. Members of the NHAMC later threatened the victim,
who declined to make a formal complaint. Officer Johnson was aware of a
further incident that occurred in October 2001. Members of the Nanaimo RCMP
attended a complaint at a local hotel where a victim reported that a male
wearing full Hells Angels colours had threatened him by pointing a handgun
at him. The victim was too frightened to pursue charges.
[43] In summary, Officer Johnson concludes at ¶52-55 of his
affidavit of November 5, 2007:
¶52 Based on the information I have received through my extensive
review of police investigation reports and records as well as my own
observations, some of which I have recorded in this affidavit, I believe
that the HAMC is a nationwide criminal organization, and that the NHAMC is a
full participant in the unlawful activities of that organization. I believe
that Angel Acres Ltd has allowed and continues to allow the NHAMC to use the
Clubhouse to facilitate the unlawful activities of the HAMC in Nanaimo and
elsewhere, both in the planning and operation stages.
¶53 I further believe that individual members of the NHAMC have in the
past used the Clubhouse to facilitate the planning and commission of
unlawful activities both in Nanaimo and elsewhere. I believe that the
members of the NHAMC are likely to continue using the Clubhouse in that
fashion as long as it is available to them to do so.
¶54 In addition, I believe that Angel Acres Ltd and the NHAMC have
allowed unlawful activities, including but not limited to the possession of
controlled substances, assaults, the possession of restricted weapons and
the continuous operation of a booze can [selling liquor without a commercial
liquor license], to occur on the premises. I believe that such unlawful
activities will continue to be allowed on the premises so long as the
Clubhouse is available for that use.
¶55 The Clubhouse has been used in substantially similar fashions by
successive OMG's for over 30 years. The building and the people and
organizations who use it have consistently been the subject of numerous
police investigations, some of which have led to arrests and criminal
charges.
[44] Officer Richards echoed this opinion at ¶17 of his November
5, 2007 affidavit, where he expressed the belief that "the Hells Angels have
been historically recognized by other organized criminal groups as one of
the most powerful criminal groups in the Province of British Columbia".
VI. Discussion
[45] I am satisfied the evidence filed in support of the order is
more than sufficient to establish reasonable grounds to believe that the
property is being used as an instrument of unlawful activity. That unlawful
activity includes the planning of criminal activities, the assault of
victims in secrecy, and the storage of illegal weapons and controlled
substances.
[46] The evidence establishes the Director subjectively believes
the property is being used as an instrument for unlawful activity. The
evidence of Detective Constable Loader, Inspector Turnball, and Officers
Johnson and Richards provides the objectively justifiable grounds to support
that subjective belief.
[47] In the face of these findings, s. 8(5) of the Act requires
the Court to grant the Director an interim preservation order of the
property. In the circumstances of this case, there is no evidence to
support the exercise of the limited judicial discretion under s. 8(5) to
decline to make such an order.
[48] The province's authority to implement the Act is grounded in
the division of powers allocated to the provinces under s. 92(13) of the
Constitution Act, 1867. The Canadian Charter of Rights and Freedoms does
not guarantee property rights (except as provided for in s. 35). Therefore,
in balancing the property rights of parties with government's responsibility
to safeguard the public interest by preventing unlawful activity, the Court
must be vigilant in ensuring that the evidence relied upon to support the
extraordinary measure authorized by s. 8(5) of the Act is reliable. Mere
assertions, or the taking of judicial notice of commonly accepted or known
behaviour patterns of certain individuals or groups, are not, in my view,
sufficient to establish the requisite "reasonable grounds to believe".
[49] In this case, the direct and indirect evidence filed in
support of the application established the reasonable grounds to believe
that the NHAMC clubhouse was being used to engage in unlawful activity.
Accordingly, the granting of the order was "in the interests of justice" and
also measured through its limiting terms to ensure the defendants' rights to
a fair trial are maintained.
"D. Smith J."
--
Read and obey the Bible. Yu'shua died on the cross for our sins, He rose
again and walked the earth. We are awaiting the Third Coming aka The Day Of
Judgment.
Sheep are extremely fluffy.
http://www.youtube.com/watch?v=d4NEbU_YkZw#gAhmzK_HQgc