A recent ruling ordering Hells Angels club paraphernalia seized by police during raids to be returned is important because it confirms there must be a relationship between property and crime before forfeiture powers can be used, says Toronto criminal lawyer Theo Sarantis.
“The mere possibility that an item of property can be used to further the offence is not sufficient,” says Sarantis, an associate with Hicks Adams LLP. “Although in this case there was the temptation to declare the property being related to an offence because of the association of the property by virtue of the Hells Angels emblem, the decision confirms that on its own, that is not sufficient.”
The decision comes 18 months after a trial in which members of the downtown Toronto Angels’ chapter were found not guilty of being members of a criminal organization, even though they were convicted of other criminal charges, including conspiracy to traffic cocaine and the date rape drug GHB, the Toronto Star reports. Read Toronto Star
Gold rings and diamond-encrusted belt buckles were seized by police, along with club pins, vests, calendars, bumper stickers, T-shirts, toques and a hand-carved grandfather clock, the Star reports.
Each of the items bore the trademarked “death head” emblem of the biker club, which can only be sported or owned by full members, the report continues, noting the Crown argued that all items with the distinctive winged skull emblem were “offence-related property” with the power to intimidate.
In her ruling, Judge Maureen Forestell says that the bikers don’t need special jewelry or clothing in order to commit crimes. In fact, she writes, there’s a club rule that calls upon members to not wear club emblems when breaking the law. Read R v. Myles
“The evidence … disclosed, and I find, that there was a rule that members were not permitted to wear HAMC (Hells Angels Motorcycle Club) insignia when committing offences,” she writes.
Sarantis says, “In dealing with the question of whether the property was offence-related property, Justice Forestell found that it was not as she could not conclude beyond a reasonable doubt that the items were intended to be used to commit offences and that because the items had legitimate purposes on their own, the fact that they had the Hells Angels emblem on them did not satisfy her that they were intended to advance a criminal purpose.
“Of relevance in this decision was evidence that Hells Angels members were not allowed to wear the emblem when committing offences, and further that none of the property in this case related to offenders found guilty of being in a criminal organization.”
Sarantis says the law must be respected, regardless of the Angels’ reputation.
“However unpopular the group may be, they are allowed to own property and adorn that property with their emblem so long as that property is not intended to be used in a criminal offence,” he says. “As stated by counsel for the citizens, it’s a rule that is important to citizens generally, given the broad powers of forfeiture available to prosecutors.”