IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and Festival Property Ltd., 2020 BCSC 880

Date: 20200611

Docket: S157799

Registry: Vancouver

Civil Forfeiture Action 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 B lock 5 Section 1 Nanaimo District Plan 2009 (the “NHAMC Clubhouse”) and the contents of the NHAMC Clubhouse, including but not limited to various articles of clothing,

bar equipment and supplies, including all alcohol, $10,642.17 in Canadian currency,

and $278.00 in United States currency

Between:

Director of Civil Forfeiture

Plaintiff

And

Angel Acres Recreation and Festival Property Ltd.,

and All Others Interested in the Property

Defendants

- and -

Docket: S128066 Registry: Vancouver

Civil Forfeiture Action in Rem Against

The Lands and Structures situated at 3598 East Georgia Street, Vancouver,

British Columbia and having a Legal Description of Parcel Identifier 006-718-230, Lot 16, Block 88, Plan VAP2813, Part Sl/2, District Lot THSL, New Westminster Land District, as appropriate and the Proceeds therefrom (the “East End

HAMC Clubhouse”) and the Lands and Structures situated at 837

Ellis Street, Kelowna, British Columbia and having a Legal Description of

Parcel Identifier 004-212-690, Lot 14, Block 8, District Lot 9, Osoyoos Division,

Yale District, Plan 1306, as appropriate and the Proceeds therefrom (the “Kelowna HAMC Clubhouse”) (collectively, the “Properties”)

Between:

Director of Civil Forfeiture

Plaintiff

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The Owners and All Other Interested in the Properties, in Particular Ronald Barry Cameron, John Peter Bryce, Mitchell Kenneth Riley, Michael Mitchell, Stanley Thomas Gillis, Kim Blake Harmer, Hans Frederick Kurth, Joseph Bruce Skreptak, Lester Jones, Richard Christian Goldammer, Robert Leonard Thomas, Norman Robert Cocks, Michal Zdenek Zikmund also known as Michal Zikmund, Brian Montgomery Oldham,

Greg Steven Holomay also known as Grey Steven Holomay

and Damiano Di Popolo

Defendants

Corrected Judgment: The text of the judgment was corrected on the front pages on

July 29, 2020.

Before: The Honourable Mr. Justice Davies

Reasons for Judgment

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Table of Contents

(Part I – Liability)

3.Canadian expansion: Nova Scotia, Alberta, Saskatchewan and Manitoba 42

D.The organizational structure and governance of the Hells Angels on a local,

F.The Director’s allegations concerning the use of profits from criminal activity

H.Symbols and paraphernalia associated with the Hells Angels including their meaning, ownership and use in the context of the Director’s allegations

I.The criminal history and activities of the Hells Angels including criminal

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K.Common characteristics of Hells Angels clubhouses in general and of the

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2.Alleged “Removal of Probative Evidence” from the East End and Kelowna

D.Does admissible evidence adduced by the Director establish that the Hells

1.Access to a criminal network through: established geographic coverage; trustworthy criminal collaborators; compliant criminal subordinates; and, a

c)Members’ policing of unauthorized use of reputation by non-members231

E.Conclusion: “Has the Director established that the Hells Angels is a worldwide

F.Has the Director proven on a balance of probabilities that the Clubhouses

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H.Has the Director proven on a balance of probabilities that the Clubhouses will

I.Has the Director proven on a balance of probabilities that the contents of the Nanaimo Clubhouse will likely in future be used as instruments of unlawful

B.Are the “past use” instrument of unlawful activity provisions of the Act ultra

C.Are the “future use” instrument of unlawful activity provisions of the Act ultra

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[1]The Director of Civil Forfeiture seeks to have the clubhouses of three chapters of the Hells Angels Motorcycle Club in British Columbia forfeited under the provisions of the Civil Forfeiture Act, S.B.C. 2005, c. 29 [the Act].

[2]I will refer to the Hells Angels Motorcycle Club as “the Hells Angels”.

[3]The Director commenced proceedings seeking the forfeiture of the Nanaimo Hells Angels Clubhouse in November 2007.

[4]In virtually identical proceedings commenced in November 2012, the Director sought the forfeiture of the East End Hells Angels Clubhouse (located in Vancouver) and the Kelowna Hells Angels Clubhouse.

[5]I will refer to the three clubhouses collectively as “the Clubhouses”, and where necessary, individually as the “Nanaimo Clubhouse”, the “East End Clubhouse” or the “Kelowna Clubhouse”.

[6]When the Director commenced proceedings seeking the forfeiture of the Clubhouses he alleged that the Clubhouses should be forfeited because they each:

1)were acquired directly or indirectly from proceeds of unlawful activity;

2)had, in the past, been used as instruments of unlawful activity; and

3)will, in the future, likely be used as instruments of unlawful activity.

[7]In August 2015 the Director fundamentally narrowed the basis upon which forfeiture of the Clubhouses was sought by amending his pleadings to seek forfeiture of the Clubhouses based only upon the allegation that the Clubhouses will, in the future, likely be used as instruments of unlawful activity.

[8]That sole allegation narrowed the issues that must now be decided in these proceedings.

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[9]However, as I will later discuss in more detail, the Director’s abandonment of the past use allegations did not significantly alter the evidentiary basis upon which the Director continues to seek the forfeiture of the Clubhouses.

[10]That is so because of the Director’s reliance on the maxim “the past is the best predictor of the future” as the foundation for his future use allegations.

[11]When the Director amended his pleadings to pursue only the future use allegations in August 2015, the proceeding seeking the forfeiture of the Nanaimo Clubhouse and the proceeding seeking forfeiture of the East End and Kelowna Clubhouses were joined for all purposes including for trial on common evidence.

[12]The Director’s allegations that the Clubhouses will in the future likely be used as instruments of unlawful activity is premised upon what I will characterize as three essential propositions. Those are that:

1)The Hells Angels is a “worldwide criminal organization” in the sense that the primary purpose of the Hells Angels is to enable and empower its members to engage in serious crime for financial gain while minimizing the risk of detection by law enforcement and prosecution;

2)The Clubhouses play an important role in enabling and empowering members of the Hells Angels to engage in serious crime for financial gain while minimizing the risk of detection by law enforcement and prosecution by acting as local bases of operation as: “safe houses”; “intelligence hubs” and “planted flags”; and

3)It is the shifting membership of the Hells Angels as a criminal organization more than the identity or actions of any of the specific defendants in these proceedings that make it likely that the Clubhouses will in future be used as instruments of unlawful activity.

[13]I will address each of those propositions in detail when considering the

Director’s pleadings and submissions in the context of the provisions of the Act, the admissible evidence adduced at trial, the burden of proof that applies in these in rem

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forfeiture proceedings, and the defendants’ submissions in response to the Director’s claims.

ISSUES

[14]The defendants have defended these forfeiture proceedings on the basis that the Director has failed to meet the burden of proving that the Clubhouses are in the future likely to be used as instruments of unlawful activity.

[15]That defence is based upon assertions that:

1)The Director relies upon an overly broad interpretation of the provisions of the Act in seeking the forfeiture of the Clubhouses as instruments of unlawful activity;

2)The Director’s allegations about the nature of the Hells Angels as a worldwide criminal organization are unsubstantiated;

3)The Director’s allegations concerning the likely future use of the Clubhouses are speculative;

4)There is little evidence of the past use of any of the Clubhouses by any member of the Hells Angels for any unlawful activity and the scant evidence that has been adduced is both unreliable and dated; and

5)There is no evidence of any past use of the Clubhouses for unlawful activity by any of the present defendants.

[16]The defendants have also filed counterclaims in which they challenge the constitutionality of the instruments of unlawful activity provisions of the Act on the basis that those provisions are ultra vires the legislative authority of the Province of British Columbia.

[17]By reason of late amendments made at the close of the Director’s case the defendants’ counterclaims now call into issue the constitutionality of not only the future use provisions of the Act but also the past use provisions which the Director abandoned in August 2015.

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[18]The Director did not oppose those late amendments except to the extent of reserving the right to argue that the defendants do not have standing to challenge the past use provisions of the Act because those provisions are no longer relied upon by the Director as a legal basis for forfeiture.

[19]The first issue to be decided in these proceedings is whether the Director has proven on a balance of probabilities that one or more of the Clubhouses is in the future likely to be used as an instrument of unlawful activity.

[20]Regardless of the outcome, the following constitutional issues raised by the defendants’ counterclaim must then be decided:

1)Do the defendants have standing to challenge the past instrument of unlawful activity provisions of the Act?

2)If the defendants do have standing, are the past and future instrument of unlawful activity provisions of the Act ultra vires the Province of British Columbia?

3)If the defendants do not have standing to challenge the past use provisions of the Act, are the future instrument of unlawful activity provisions of the Act ultra vires the Province of British Columbia.

[21]In determining whether the Director has proven that one or more of the Clubhouses is in the future likely to be used as an instrument of unlawful activity I will first address:

1)The statutory framework and relevant provisions of the Act (including issues of burdens of proof).

2)The history of the pleadings and the conduct of these proceedings to the extent necessary to address both costs and standing issues that must be decided.

3)The history of the Hells Angels from its origins in the United States and its expansion into Canada and British Columbia.

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4)The organizational structure of the Hells Angels on worldwide, national, regional and local bases.

5)The “World Rules” of the Hells Angels as well as relevant national, regional and local rules, both written and unwritten.

6)The Director’s allegations concerning the use of profits from criminal activity by the Hells Angels including allegations concerning “Defence Funds”.

7)The membership structure of local chapters of the Hells Angels and the process of becoming or ceasing to be a member of the Hells Angels.

8)Symbols and paraphernalia associated with the Hells Angels including their meaning, ownership and use in the context of the Director’s allegations concerning the “power of the patch”.

9)The criminal history and activities of the Hells Angels including the criminal convictions of Hells Angels’ members in British Columbia.

10)Common characteristics of Hells Angels’ clubhouses in general and of the Nanaimo Clubhouse, East End Clubhouse and Kelowna Clubhouse in particular.

[22]In doing so I will, amongst other evidence adduced by the Director, specifically address: evidence from an expert witness, retired Ontario Provincial Police officer Mr. Len Isnor; evidence concerning various searches of the Clubhouses and other Hells Angels’ clubhouses arising from police investigations; evidence from authorized inspections of the Clubhouses by Mr. Isnor; wiretap evidence obtained in the course of police investigations of individuals who were at one time members or associates of the East End and Kelowna chapters of the Hells Angels (including consideration of the extent to which that evidence is admissible and for what purposes); the viva voce evidence of Mr. David Atwell, a one-time member of the Hells Angels in Toronto, Ontario who became a police informant and agent; and, the viva voce evidence of Mr. Michael Plante, a former associate of the

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East End chapter of the Hells Angels who also became a police informant and agent.

[23]After determining whether the Director has met the burden of proving that one or more of the Clubhouses is in the future likely to be used as an instrument of unlawful activity I will then address the constitutional issues arising from the defendants’ counterclaims.

DISCUSSION

[24]Before proceeding to my consideration of the issues I have identified I have decided to briefly review the difference between the making of allegations and the proof of those allegations.

[25]I do so for two reasons:

1)This litigation has received a great deal of public attention over the many years that it has been before the Court because of the reputation of the Hells Angels; and

2)The issues in this case are novel to the extent that forfeiture of the Clubhouses is not sought by the Director because of the commission of a specific criminal offence (or offences) by any of the defendants. Rather, forfeiture is sought based upon allegations that since the Hells Angels is and will continue to be a worldwide criminal organization, the Clubhouses will likely be used by the Hells Angels in the future to enable those criminal purposes.

[26]It is fundamental to the fair determination of disputed issues in any litigation that such determination be based only upon admissible evidence. Allegations frame the issues to be decided but do not determine the result.

[27]Allegations that are not proven by admissible evidence are of no consequence. Similarly, theories advanced by parties in any litigation will only assist in the determination of issues if they are substantiated by admissible evidence.

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[28]In this case the Director has the burden of proving his allegation that it is more likely than not that one or more of the Clubhouses will in the future likely be used as an instrument of unlawful activity.

[29]That allegation must be proven by admissible evidence.

A.The structure and relevant provisions of the Civil Forfeiture Act

[30]The Act pursuant to which the Director seeks the forfeiture of the Clubhouses establishes a comprehensive regime by which the Director is empowered by s. 22(3) of the Act to, among other things:

1)Collect information and manage the use and disclosure of information for the purposes of the Act and, on the basis of the information collected, determine if proceedings should be commenced under the Act;

2)Commence and conduct proceedings under the Act; and

3)Manage the distribution of proceeds from property, an interest in property (or a portion of an interest in property) forfeited to the government under the Act.

[31]I will now discuss those provisions of the Act that are engaged in these proceedings.

1.Sections 15.01(2), 16 and 18

[32]Sections 15.01(2) and 16 are of fundamental importance to the procedural and substantive operation of the Act.

[33]Section 15.01(2) provides that all proceedings under Parts 2 and 3 of the Act (under which these proceedings are brought) are in rem and not in personam.

[34]Section 16 provides that findings of fact in proceedings under Parts 2 and 3 of the Act and the discharge of any presumptions are to be based upon the balance of probabilities.

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[35]In addition, although s. 16 establishes that the Director’s burden of proving allegations is on the civil balance of probabilities standard, s. 18 of the Act also provides that:

…an unlawful activity may be found to have occurred even if

(a)no person has been charged with an offence that constitutes the unlawful activity; or

(b)a person charged with an offence that constitutes the unlawful activity was acquitted of all charges in proceedings before a criminal court or the charges are withdrawn or stayed or otherwise do not proceed.

[36]Section 18 is important to the determination of the issues raised in these proceedings because notwithstanding that the Director’s allegations about the use of the Clubhouses by members of the Hells Angels for unlawful activity are in many cases based upon alleged criminal acts which have never been charged or proven, the burden of proof to be met by the Director in relation to those alleged uncharged criminal acts is that of proof on a balance of probabilities rather than proof beyond a reasonable doubt, which is (or would have been) the burden upon the Crown when, or if, seeking a conviction for criminal offences.

[37]Also, because these forfeiture proceedings are in rem rather than in personam no relief (or punishment) is sought against any member of the Hells Angels for any unlawful acts allegedly committed by them.

[38]That is so because, in theory, the in rem nature of civil forfeiture proceedings means that the proceedings are only “against or about a thing” with, in this case, that “thing” being one or more of the Clubhouses.

[39]One difficulty with the distinction between in rem and in personam proceedings in cases of civil forfeiture (and a significant issue raised by the defendants’ counterclaims) is that while these forfeiture proceedings cannot result in any of the defendants being found or held personally liable for any alleged unlawful action, that same alleged unlawful action could result in the loss of their ownership of otherwise legally held property without proof beyond a reasonable doubt of the criminality of their actions or (as alleged by the Director in this case) the allegedly

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criminal acts of past, present or future members of the Hells Angels who are not defendants.

[40]In other words, while the instruments (in this case the Clubhouses) are inanimate, lawfully owned properties, those same properties could become subject to forfeiture as an instrument of unlawful activity by reason of the unlawful actions of those who are not now, or never were, owners of the property. The unlawful actions of those who commit the offence do not result in criminal sanction by which unlawful conduct is punished by attribution of blameworthiness but rather in a genre of punishment (forfeiture) without attribution of blame.

[41]That anomaly was recognized by our Court of Appeal in British Columbia (Director of Civil Forfeiture) v. Lloydsmith, 2014 BCCA 72 [Lloydsmith] in which the Director sought the forfeiture of property owned by Mr. Lloydsmith in circumstances where, notwithstanding he had been investigated by the police for alleged illegal activity, (including the growing of marihuana on the property of which forfeiture was sought), Mr. Lloydsmith had never been charged with or convicted of a criminal offence.

[42]In dismissing the Director’s appeal of an order allowing bifurcation of the civil forfeiture proceedings to allow the determination of alleged Charter breaches in advance of the trial rather than as a part of the trial Saunders J.A. for the Court wrote at para. 13:

[13]… Having to maintain a costly defence is a risk every person in the community is vulnerable to. There is, however, an extra element in the civil forfeiture cases, and that is the jeopardy faced by a civilian, at risk of losing a great deal and at risk of being labelled for criminal behaviour. This jeopardy arises from evidence gained by police using their special authority but without the case ever having fed into the criminal proceedings stream, with the defendant now caught in a proceeding that requires presentation for cross-examination at an examination for discovery. … [My emphasis.]

[43]The Court of Appeal’s recognition that forfeiture proceedings pose the risk of “being labelled for criminal behaviour” states the obvious. I have, in the past during some of the many interlocutory proceedings over which I have presided in this case, observed that these forfeiture proceedings are quasi-criminal in effect.

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[44]I remain of that view.

[45]In those circumstances, while the standard of proof required of the Director to establish forfeiture is statutorily mandated to be the civil standard of proof on a balance of probabilities, the evidence adduced to meet that burden must be compelling to accord with the stakes involved.

2.Section 3

[46]Section 3 of the Act, which establishes the bases upon which the Director may seek the forfeiture of property, provides:

3 (1) The director may apply to the court for an order forfeiting to the government

(a)the whole of an interest in property that is proceeds of unlawful activity,

or

(b)the portion of an interest in property that is proceeds of unlawful activity.

(2)The director may apply to the court for an order forfeiting to the government property that is an instrument of unlawful activity.

(3)An application for a forfeiture order under this section applies only with respect to property or an interest in property located in British Columbia.

[47]By reason of the fundamental changes to the Director’s pleadings in August

2015 to which I have earlier referred, the proceeds of unlawful activity provisions of s. 3(1) of the Act are no longer relied upon as a basis for the forfeiture of the Clubhouses.

[48]Those “proceeds” provisions are, however, historically relevant to the conduct of these proceedings because they were relied upon by the Director in 2007 as one of the bases upon which he sought and obtained an Interim Preservation Order (“IPO”) over the Nanaimo Clubhouse under the provisions of Part 3 of the Act. The Director has been in possession of the Nanaimo Clubhouse (and some of its contents that I will later address) since 2007.

3.Definitions under s. 1

[49]Three definitions under s. 1 of the Act are specifically engaged by the provisions of s. 3(2) of the Act upon which the Director continues to rely. Those are the definitions of: “property”; “unlawful activity”; and “instrument of unlawful activity”.

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[50]“Property” is defined to mean “a parcel of real property or tangible or intangible property and, for greater certainty, includes cash”.

[51]The Clubhouses all constitute property as defined by the Act.

[52]In addition to the Clubhouses the Director continues to seek the forfeiture of some contents that were in the Nanaimo Clubhouse when it was seized by the Director pursuant to the IPO in 2007. Those contents include certain Hells Angels’ paraphernalia that remain in the possession of the Director.

[53]Those contents also constitute property as defined by the Act.

[54]“Unlawful activity” is defined by s. 1 of the Act to mean:

…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;

(b)if an act or omission occurs in another province of Canada, the act or omission, at the time of occurrence,

(i)is an offence under an Act of Canada or the other province, as applicable, and

(ii)would be an offence in British Columbia, if the act or omission had occurred in British Columbia;

(c)if an act or omission occurs in a jurisdiction outside of Canada, the act or omission, at the time of occurrence,

(i)is an offence under an Act of the jurisdiction, and

(ii)would be an offence in British Columbia, if the act or omission had occurred in British Columbia,

but does not include an act or omission that is an offence

(d)under a regulation of a corporation, or

(e)under an enactment of any jurisdiction if the enactment or the jurisdiction is prescribed under this Act.

[55]“Instrument of unlawful activity” is defined to include any of the following:

(a)property that has [in the past] been used to engage in unlawful activity that, in turn,

(i)resulted in or was likely to result in the acquisition of property or an interest in property, or

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(ii)caused or was likely to cause serious bodily harm to a person;

(b)property that is likely to be used [in the future] to engage in unlawful activity that may

(i)result in the acquisition of property or an interest in property, or

(ii)cause serious bodily harm to a person…

[56]Although the Director now relies only upon the forward looking future use aspect of that definition, the past use provisions remain relevant to the extent that they were also relied upon by the Director in 2007 as one of the bases upon which he sought and obtained the IPO over the Nanaimo Clubhouse.

[57]Those past use provisions are also relevant because of the Director’s reliance upon alleged past unlawful acts involving the use of the Clubhouses as “predictors” of their future unlawful use as well as by reason of the defendants’ challenge to the constitutionality of both the past and future use provisions of the Act.

[58]Later in these reasons I will discuss important issues of statutory interpretation that arise in respect of the “instrument of unlawful activity” definition in s. 1 of the Act, which greatly impact the issues to be decided.

4.Sections 2(1), 4(2), 5(2), 6 (1), 13(1) and 35(1)

[59]Section 2(1) provides that the Act applies to unlawful activity occurring on or before that section came into force, that being on November 24, 2005.

[60]Section 4(2) provides:

4 (2) In proceedings commenced under section 3 (2), the director must name as a party

(a)a person who is a registered owner of the property that is the subject of the application for forfeiture, and

(b)a person who the director has reason to believe is an unregistered owner of the property that is the subject of the application for forfeiture.

[61]Those provisions are of some historical significance in this case because the Director had, at one time, joined as defendants all persons whom he then believed

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to be members of the Hells Angels chapter to which each of the Clubhouses belonged.

[62]Many of those persons did not defend the proceedings or participate in any way; others became parties of record but did not participate in discovery or other pre-trial proceedings and later withdrew from participation as parties; and, others disclaimed any interest in the Clubhouses.

[63]One of the parties that was at one time named by the Director as a defendant was the Hells Angels Motorcycle Corporation of Oakland, California, which was joined as a defendant because of its proprietary interest in some of the paraphernalia that comprises some of the contents of the Nanaimo Clubhouse of which forfeiture is sought.

[64]The Hells Angels Motorcycle Corporation did not participate in the Nanaimo Clubhouse proceedings after being joined and has since been removed as a defendant.

[65]Section 5(2) of the Act provides that (subject to s. 6) if (as in this case) proceedings are commenced under s. 3(2) (the instrument of unlawful activity provisions of the Act), the court “must make an order forfeiting to the government property that the court finds is an instrument of unlawful activity”.

[66]Section 6 of the Act to which s. 5(2) is subject, contains “Relief from Forfeiture” provisions, the relevant aspects of which are found in s. 6(1). They provide:

6 (1) If a court determines that the forfeiture of property or the whole or a portion of an interest in property under this Act is clearly not in the interests of justice, the court may do any of the following:

(a)refuse to issue a forfeiture order;

(b)limit the application of the forfeiture order;

(c)put conditions on the forfeiture order.

[67]Those relief from forfeiture provisions will be engaged if I determine that the Director has established that one or more of the Clubhouses must be forfeited because it is likely to be used in the future as an instrument of unlawful activity.

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[68]Section 13(1) of the Act provides:

13 (1) Subject to subsection (3), if a court finds

(a)that property is an instrument of unlawful activity, and

(b)that a person is an uninvolved interest holder with respect to that property,

the court must make the orders necessary to protect the interest in the property held by the uninvolved interest holder.

[69]That section is relevant because there is a mortgage on the Kelowna Clubhouse held by an uninvolved interest holder whose interests must be protected in respect of any forfeiture order that may be made regarding the Kelowna Clubhouse.

[70]There are no uninvolved interest holders involved in respect of the Nanaimo or East End Clubhouses.

[71]Section 35(1) of the Act provides:

35 (1) The time limit for the director commencing an action, a petition proceeding or a requisition proceeding under this Act is 10 years from the date on which the unlawful activity occurred.

[72]That provision is engaged in these proceedings in respect of a past unlawful act committed by a former member of the East End chapter of the Hells Angels in 1997 concerning the use of the East End Clubhouse. That activity occurred 15 years before the Director commenced proceedings in 2012 seeking the forfeiture of the East End Clubhouse.

B.The history of these proceedings

[73]Although the Director has, since August 2015, sought the forfeiture of the Clubhouses only upon the basis that they are likely to be used in the future as instruments of unlawful activity, the Director’s previous pleadings that advanced multi-faceted bases upon which he sought forfeiture and the defendants’ responses to those pleadings remain relevant to:

1)outstanding costs issues; and,

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2)the defendants’ standing to challenge the constitutional validity of the past (as opposed to only the future) instrument of unlawful activity provisions that were relied upon by the Director from 2007 until August 2015.

[74]For those reasons I will briefly review the history of the conduct of these proceedings to the extent necessary to address those substantive issues.

[75]In November 2007 the Director applied for and obtained the IPO over the Nanaimo Clubhouse and those of its contents that are still in issue.

[76]The Director’s application for that IPO was based upon information provided by the police obtained during a multi-year investigation titled Project Halo by a Combined Forces Special Enforcement Unit into various alleged criminal activities of the Hells Angels in Nanaimo. That investigation included, amongst other things, a large volume of intercepted telephone calls obtained pursuant to authorizations granted under Part VI of the Criminal Code of Canada, R.S.C. 1985 c. C-46 [the Code].

[77]The evidence establishes that on September 25, 2007 after the Crown determined not to pursue any criminal charges against any of the targets of Project Halo, the police submitted an 80-page referral to the Civil Forfeiture Office (the “CFO”) for possible civil forfeiture action.

[78]On November 8, 2007 the Director commenced proceedings under the Act seeking the forfeiture of the Nanaimo Clubhouse and on that same date also applied for and obtained the IPO.

[79]The Director’s pleadings and affidavit evidence adduced in support of the application for an IPO were based solely upon the information obtained from the police in the Project Halo referral and included information about a search of the Nanaimo Clubhouse that had been authorized during the Project Halo criminal investigations.

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[80]Amongst other things, the Director’s first pleadings and evidence relied upon in that application for an IPO referred to the search as having discovered the operation of an illegal “booze can” in the Nanaimo Clubhouse, the existence of improperly stored weapons and “evidence of participation by the members of the

Nanaimo chapter of the Hells Angels in a variety of criminal activities at the [Nanaimo] Clubhouse.”

[81]The Director’s first Statement of Claim asserted at paras. 18 to 24 that:

18.The Plaintiff says that the Defendants have caused or allowed the Victoria Road Property to serve as the clubhouse for the NHAMC [Nanaimo Hells Angels Motorcycle Club]. The NHAMC is a local chapter of its parent organization, the HAMC, and as such is a full member and participant in its activities.

19.The Plaintiff says that the HAMC is an organization comprised of three or more persons in Canada which has as one of its main purposes the facilitation or commission of serious offences that, if committed, would likely result in the direct or indirect receipt of material benefits by some or all of the persons who comprise the organization. As a result, the Plaintiff says that the HAMC is a criminal organization as defined in s. 467.1 of the Criminal Code of Canada

(“CCC”).

20.The Plaintiff says that some or all of the offences discussed above may have been committed either for individual benefit or for the benefit of the HAMC or some portion thereof as a criminal organization.

21.During the Search, police noted that the Victoria Road Property had been specifically modified and fortified in a number of ways to serve as a clubhouse for the HAMC. In addition, its exterior is clearly marked to show it is the local clubhouse of the NHAMC.

22.A clubhouse is an important instrument for the unlawful activities of the HAMC and its individual chapters. Specifically, the Plaintiff says that the Victoria Road Property has facilitated and will likely continue to facilitate the unlawful activities of the HAMC by:

a.serving as a symbol to the HAMC and rival criminal organization in, the area of the NHAMC’s presence and domination over the local area in order to facilitate the commission of unlawful activities on behalf of the organization or its individual members;

b.providing the NHAMC with a base of operations that is a safe place to conspire about the commission of unlawful activities on behalf of the organization or its individual members;

c.allowing the NHAMC to commit unlawful activities in secrecy, including offences that confer a material benefit to its members or cause serious bodily harm to others.

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Conclusion

23.The Plaintiff says that the Victoria Road Property and the Contents have been integral to the ability of various persons or the HAMC as a criminal organization to commit or facilitate the commission of offences contrary to a variety of statutes and regulations either on their own behalf or on behalf of a criminal organization, and is therefore an instrument of unlawful activity.

24.Further and in the alternative, the Plaintiff says that the Victoria Road Property and the Contents are likely to be integral to the ability of various persons or the HAMC as a criminal organization to commit or facilitate the commission of offences contrary to a variety of statutes and regulations either on their own behalf or on behalf of a criminal organization, and is therefore an instrument of unlawful activity.

[82]In support of his application for the IPO the Director also adduced the expert evidence of two police officers who, amongst other things, opined that the Hells Angels is a criminal organization in Canada and British Columbia.

[83]The IPO was granted by D. Smith J. (as she then was) without notice to the defendants. It allowed the Director to take possession of the Nanaimo Clubhouse with the assistance of the police.

[84]As a consequence of the IPO the Director seized not only the Nanaimo Clubhouse and its contents, including documents, but also paraphernalia belonging to some members of the Hells Angels Nanaimo chapter. The Director also seized three motorcycles owned by three individual members.

[85]After the execution of the IPO the defendants were served with the pleadings, the IPO, and the affidavits relied upon by the Director.

[86]Many interlocutory applications ensued, including applications by the

Director (opposed by the defendants) to obtain disclosure of information garnered by the police from wiretap intercepts that had been authorized under Part VI of the Code as part of the Project Halo investigation.

[87]Those issues were eventually resolved after decisions by this Court and by the Court of Appeal relating to that disclosure application. Those decisions resulted in orders that included steps to protect the privacy interests of some of those persons whose communications had been intercepted.

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[88]In January 2008 the Director amended his Statement of Claim to particularize the contents of the Nanaimo Clubhouse of which forfeiture was sought including: the three motorcycles of the individual members that had been in the Nanaimo Clubhouse garage at the time of the execution of the IPO; cash; liquor; and, paraphernalia found on the premises.

[89]In May 2008 and continuing sporadically thereafter into late September 2008 the defendants applied to set aside the IPO. At the same time the Director applied to have the IPO extended as a continuing preservation order pending the trial of the Nanaimo Clubhouse proceedings.

[90]Prior to those competing applications being heard the definition of

“instrument of unlawful activity” in s. 1 of the Act that had been in force when the IPO was granted was amended.

[91]When the IPO was applied for and granted in November 2007 an

“instrument of unlawful activity” was 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.

[92]On April 18, 2008 the definition was amended to provide (as it still does)

that:

“instrument of unlawful activity” means property that

(a)has been used to engage in unlawful activity that, in turn,

(i)resulted in or was likely to result in the acquisition of property or an interest in property, or

(ii)caused or was likely to cause serious bodily harm to a person, or

(b)is likely to be used to engage in unlawful activity that may

(i)result in the acquisition of property or an interest in property, or

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(ii)cause serious bodily harm to a person; [Emphasis added.]

[93]On March 11, 2009 in Reasons for Judgment indexed as British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreations and Festival Property Ltd., 2009 BCSC 322 I ordered the continuation of the IPO over the Nanaimo Clubhouse and its contents (other than the three motorcycles) on a Continuing Preservation Order (the “CPO”) on terms set forth in that judgment.

[94]In relation to the amendments to the “instrument of unlawful activity” definition under the Act I stated at paras. 201 to 207 that:

[201]… a definition that was once broad is now made even broader

by introducing the concept of foresight of consequences as a means of linking alleged past unlawful acts to the prohibited results, rather than requiring proof of actual causation.

[202]However, in respect of these three motorcycles, there is no evidence that any of the motorcycles were ever used to engage in any unlawful activity and I am not prepared to find that the generic opinion evidence adduced by the Director is sufficient to establish a “serious question to be tried” with respect to any alleged past unlawful use of these specific motorcycles when, if such evidence exists, the Director had more than six months to obtain and adduce it.

[203]That does not, however, end the inquiry since I must also determine whether the Director has established a “serious question to be tried” concerning the prospective use of these three motorcycles as “instruments of unlawful activity.”

[204]Of specific import to that issue is the present inclusion of the word “may” in place of the phrase “is intended to” in clause (b) of the amended definition of “instrument of unlawful activity” in s. 1 of the Act.

[205]Because of those amendments the Director is now only required to raise a serious question to be tried as to whether the three motorcycles are, in future, “likely to be used to engage in unlawful activity” that “may” result in the acquisition of property or an interest in property or cause serious bodily harm to a person. The Director is no longer required to establish the actual intention of the owners of those motorcycles is either to acquire property or cause harm.

[206]Notwithstanding that very low threshold test, I have, however, concluded that the evidence filed on this application does not establish a

“serious question to be tried” concerning the prospective use of these three specific motorcycles as “instruments of unlawful activity” under the Act.

[207]I reach that conclusion because I cannot, on the basis of the evidence adduced, find anything that differentiates these three motorcycles from any other Harley Davidson motorcycles owned by any other members of the HAMC [Hells Angels Motorcycle Club] or the NHAMC [Nanaimo Hells

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Angels Motorcycle Club] in British Columbia. The evidence adduced by the Director is simply too lacking in specificity to mandate the seizure of these three motorcycles.

[95]An appeal by the defendants of my decision to allow the continuation of the IPO over the Nanaimo Clubhouse and its contents (other than the motorcycles) pursuant to the CPO was dismissed.

[96]As a result the Director has remained in exclusive possession of the Nanaimo Clubhouse and those contents that remain subject to the CPO since March 11, 2009.

[97]Following the granting of the CPO and the dismissal of the appeal of that decision in 2011 the Director again amended his pleadings (now constituted as a Notice of Civil Claim under the then newly enacted Rules of Court rather than as a Statement of Claim). In his amended pleadings the Director continued to seek the forfeiture of the Nanaimo Clubhouse and its contents including two of the three motorcycles that had been released from the original IPO.

[98]The Director also then joined the Hells Angels Motorcycle Corporation as a defendant based upon allegations concerning trademark licensing of property by the Corporation to members of the Hells Angels. As I have previously noted, the Corporation did not enter a defence to any of those claims and has left the defence to the forfeiture of such paraphernalia to the present defendants.

[99]The Director’s 2011 amendments also included the joinder of a number of personal defendants on the basis that, as members of the Nanaimo chapter of the Hells Angels, they had an interest in the Nanaimo Clubhouse either as shareholders of its registered owner, the defendant Angel Acres Recreation and Festival Property, or as unregistered owners of some or all of the contents of the Clubhouse. All of those defendants eventually ceased to be parties either by disclaiming any interest in the Clubhouse or its contents or by otherwise not defending the Director’s claims.

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[100]The Director’s 2011 amendments to his Notice of Civil Claim also included the following amendments to (or clarification of) his earlier claims:

1)Paragraph 4 which now alleged:

4.The HAMC is affiliated with several other motorcycle clubs which have similar purposes to its own. Some members of these clubs and other individuals who aspire to become members of the HAMC contribute to or participate in the commission of serious offences for the benefit of and/or at the direction of members of the HAMC.

2)Paragraph 22 which now alleged:

22.Each of the activities described in paragraphs 17-21 were committed:

a.for the benefit of one or more of the individuals directly involved in each specific activity;

b.for the purpose of enhancing the ability of a criminal organization, including all or some portion of the HAMC to commit indictable offences;

c.for the benefit of, at the direction of or in association with a criminal organization, including all or some portion of the HAMC,

3)Paragraphs 23 and 24 which now alleged:

23.Proceeds of some or all of the above described unlawful activities have been applied to maintain, improve, preserve rights to or prevent the accrual of debt in relation to the NHAMC Clubhouse,

24.If the NHAMC Clubhouse remains owned by Angel Acres and/or accessible or in the possession of members of the NHAMC, it is likely to be used to engage in and/or facilitate unlawful activities similar or related to those described above. Those activities would be intended to or may in fact result in the acquisition of property, and/or serious bodily harm to a person.

[Underlining in original.]

4)Paragraphs 18 and 19 which now alleged:

18.Since the NHAMC Clubhouse was seized in the course of this action, members of the NHAMC have continued to engage in

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unlawful activities intended or likely to result in the acquisition of property or serious bodily harm to a person, including:

a.an extortion and assault of James Horsland by or at the direction of members and/or associates of the NHAMC in Nanaimo BC on an unknown date in 2010;

b.fraud, both over and under $5,000, by or at the direction of members and/or associates of the NHAMC in Nanaimo BC and other locations on Vancouver Island on unknown date between November 2007 and the present; and

c.possession of stolen Property by or at the direction of members and/or associates of the NHAMC in Nanaimo BC and other locations on Vancouver Island on unknown date between November 2007 and the present.

19.If any of the defendants had been in possession and control of the NHAMC Clubhouse at the time those offences occurred, the NHAMC Clubhouse and some or all of the Contents would likely have been used to engage in or facilitate those activities.

[Underlining in original.]

[101]Those amendments remain significant to the extent that they embodied, at least to some extent, the Director’s present allegations concerning forfeiture based upon the likelihood of the future use of the Nanaimo Clubhouse as an instrument of unlawful activity.

[102]In 2013 the defendants applied to strike the Director’s amended pleadings including paras. 18 and 19.

[103]In resisting that application the Director submitted that because the Act provides for the forfeiture of property that is likely in the future to be used to engage in unlawful activity, the commission of any past unlawful activity by members of the Hells Angels was relevant whether or not it occurred at the Nanaimo Clubhouse either before or after it was seized by the Director under the IPO.

[104]In Reasons for Judgment indexed as British Columbia (Director of Civil Forfeiture) v. Hells Angels Motorcycle Corporation, 2013 BCSC 1003 I determined that the amended paras. 18 and 19 must be struck as disclosing no cause of action under the Act and as being irrelevant to the in rem issue to be decided.

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[105]In doing so I wrote at para. 97 (1) to (4):

1)As I have previously discussed at length, the necessary causal nexus between an alleged unlawful act and the use of the property sought to be forfeited as an instrument of unlawful activity requires that the specific unlawful activity alleged be pleaded. Only the three crimes alleged in paragraph 18(a), (b) and (c) meet that requirement and there could be no possible causal nexus between those crimes and the NHAMC Clubhouse.

2)The allegation in paragraph 19 that the NHAMC Clubhouse and its Contents would have been used as an instrument of unlawful activity, had it not been seized, discloses no reasonable cause of action. It amounts to nothing more than a plea that the NHAMC is a criminal organization.

3)To the extent that the Director seeks to rely on the three crimes pleaded in paragraph 18 and other unidentified unlawful activity as the basis of a claim to the forfeiture of property that might be acquired in future by members of the NHAMC, such allegations fail to disclose a cause of action, because an in rem forfeiture proceeding requires the identification of the property of which forfeiture is sought.

4)The unspecified unlawful activity alleged to have been committed “by or at the direction of members and/or associates of the NHAMC,” as pleaded in paragraphs 18 and 19, wholly fails the requirement that the pleadings define the issues of law and fact to be determined by the Court and makes it impossible for the defendants to know the case they must meet.

[106]The Director did not appeal that decision.

[107]The remainder of the Director’s 2011 amendments that I did not order to be struck gave rise to continuing applications by the defendants for particulars of those crimes allegedly committed by members of the Nanaimo chapter of the Hells Angels that the Director alleged had involved the use of the Nanaimo Clubhouse.

[108]Those demands for particulars and the Director’s responses resulted in numerous applications for further particulars and discovery of documents that required many further interlocutory hearings.

[109]I need not detail the substance of those demands for particulars or applications for document discovery. Suffice to say that for the year following the

Director’s filing of the 2011 amendments and also well after the Director commenced the proceedings seeking the forfeiture of the East End and Kelowna Clubhouses in 2012, the defendants in both proceedings continued to seek to have the Director

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particularize the criminal acts of the defendants upon which he relied in alleging that the Clubhouses had been used as instruments of unlawful activity.

[110]It is fair to say that the Director’s allegations of past unlawful use of the Clubhouses were so all encompassing and far reaching both in time and scope and involved so many alleged perpetrators of alleged crimes (both charged and uncharged and whether or not a conviction had been entered) that, even assuming that relevant evidence concerning those alleged unlawful acts continued to be available, the trial of these proceedings could never have been heard without many months and possibly years of evidence.

[111]In addition to those ongoing particulars and document discovery disputes, in 2012 the defendants in the Nanaimo proceedings applied for the disclosure of wiretap information from the RCMP obtained during the Project Halo investigation that had led to the Director commencing the Nanaimo Clubhouse proceedings.

[112]My order requiring that disclosure on specified terms led to an appeal by the Director to the British Columbia Court of Appeal that was, however, not heard by that Court because of jurisdictional issues. That subsequently resulted in an application by the Director for leave to appeal the disclosure order to the Supreme Court of Canada. While those appeal proceedings were ongoing I stayed the disclosure orders pending the results of the appeals.

[113]After the East End and Kelowna Clubhouse proceedings were commenced in 2012, I was appointed to be the case management judge for that proceeding as well as for the Nanaimo Clubhouse proceeding.

[114]The defendants in both proceedings then applied to have their counterclaims heard prior to the hearing of the Director’s forfeiture claims. I refused that application.

[115]It was against that ever changing procedural background and logistical quagmire (the outstanding Supreme Court of Canada leave application and the ongoing delay in both forfeiture proceedings) that in late 2014 or early 2015 the

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Director engaged outside counsel in place of in-house counsel to pursue his outstanding claims for the forfeiture of the Clubhouses.

[116]The Director then abandoned his appeal of the disclosure order and also abandoned all claims for forfeiture of the Clubhouses based upon the proceeds of unlawful activity and the past instruments of unlawful activity allegations that he had advanced since 2007.

[117]The Director’s determination to abandon those proceeds and past use forfeiture claims required leave of the Court due to the many iterations of the Director’s claims that had been advanced in previous amendments.

[118]On that leave application counsel for the Director submitted that the purpose of the amendments, as well as the abandonment of the disclosure order appeal, was to “streamline” the proceedings by removing allegations of unlawful activity by any individuals in circumstances where that activity had not been the subject of both charge and conviction.

[119]The defendants opposed the application to amend the pleadings on the bases that the amendments: disclosed no reasonable claim; offended the rules in respect of the pleadings of material facts and particulars; and, amounted to an abuse of process.

[120]The defendants in the Nanaimo Clubhouse proceedings also sought an order returning the Nanaimo Clubhouse to the defendant, Angel Acres Recreation and Festival Property Ltd. as a condition of granting leave to amend the Director’s pleadings to abandon his previous past use and proceeds allegations.

[121]In the alternative, the defendants in both proceedings sought an order that the Director pay the defendants on a special costs basis all unnecessary costs incurred by them in defending both the Nanaimo Clubhouse proceedings and the East End and Kelowna Clubhouse proceedings to the date of the amendments.

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[122]In allowing the Director’s application to again amend his pleadings, in Reasons for Judgment indexed as British Columbia (Director of Civil Forfeiture) v. Violette, 2015 BCSC 1372 [Violette], I concluded that:

1)The defendants’ submission that the pleadings did not disclose a cause of action was in substance the same as the constitutional argument advanced in their counterclaims that, as I had earlier ruled, should not be determined without a full evidentiary record. See Violette at paras. 68 and 69.

2)The defendants’ submission that the amendments offended the rules concerning the pleading of material facts and provisions of particulars should not preclude the granting of leave to amend because, due to the complexity of the particulars issues raised, any deficiency of the pleadings in the claim advanced in the proposed amendments could be addressed by further amendment or the provision of necessary particulars. See Violette at paras. 79 to 81.

3)The defendants’ submissions that the amendments amounted to an abuse of process because, among other things, for almost eight years the Nanaimo Clubhouse had been the subject of the IPO and the CPO based upon the past use allegations arising from the Project Halo investigation did not lead me to conclude that the amendments should be denied on that basis because:

(a)the Act was relatively new legislation when the Nanaimo Clubhouse proceedings were commenced;

(b)complex wiretap issues had complicated the proceedings;

(c)the filing of the counterclaims in both proceedings after the commencement of the East End and Kelowna Clubhouse proceedings had further complicated the proceedings;

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(d)the intersection of the subject matter of civil forfeiture litigation with substantive and constitutional issues of criminal law and the vigorous defences mounted by the defendants had all contributed to the costliness of the proceedings as well as delays in substantive resolution; and

(e)I could not conclude that the amendments were sought for any purpose other than the stated one of “streamlining” the proceedings. See Violette at paras. 93 to 97.

4)The amendments would significantly limit the ambit of both documentary and oral discovery as well as the extent of relevant evidence at trial when compared to the Director’s previous and existing pleadings. See Violette at paras. 98 to 99.

5)The appropriate remedy for any past prejudice suffered by the defendants arising from the amendments was an order that compensated the defendants for their costs unnecessarily incurred in defending the abandoned allegations. See Violette at para. 100.

6)A special costs order payable forthwith was not appropriate because I found no conduct by the Director either within or outside of the litigation that was deserving of rebuke. See Violette at paras. 101 to 102.

7)The appropriate order for costs was an order for costs assessed on Scale C payable by the Director to the defendants in any event of the cause (but not forthwith) for those applications (as particularized by me) that I considered to have been rendered unnecessary by reason of the amendments. See Violette at paras. 103 to 107.

[123]In making those orders I did not order that the costs payable by the Director would include costs related to the making of the IPO in the Nanaimo Clubhouse proceedings or the defendants’ application to set aside that IPO. I also did not accede to the defendants’ application to return the Nanaimo Clubhouse and its

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contents to the control of the defendant Angel Acres Recreation and Festival Property Ltd. See Violette at paras. 107 to 112.

[124]I further ordered that the costs of the Director’s application to amend his

Notice of Civil Claim to abandon the previous proceeds and past use allegations would be costs in the cause at a scale to be determined at the conclusion of this trial.

[125]Although I concluded (as noted in sub-para. 122(4) above), that the amendments would significantly limit the ambit of documentary and oral discovery as well as the extent of evidence to be adduced at trial, I must now observe that the Director’s stated intention of streamlining these proceedings by the amendments was in reality at best only partially achieved.

[126]That is so because the Director’s reliance on the maxim “the past is the best predictor of the future” resulted in evidence related to alleged past unlawful acts, which had previously been the subject of applications for particulars, being adduced at trial without particularization even when the unlawful alleged acts did not result in convictions. I refer specifically in that regard to the evidence of the Director’s witness Michael Plante who testified not only about matters in which charges were laid and convictions were entered but also at great length about alleged disreputable and unlawful conduct by former members of the East End chapter of the Hells Angels for which no charges were ever laid.

[127]Also, the alleged past unlawful activity by not only members of the Nanaimo, East End and Kelowna chapters of the Hells Angels but also of other chapters of the Hells Angels was adduced by the Director through the witness David Atwell. Similar evidence was sought to be adduced by the Director through Mr. Isnor, an expert witness whose testimony and report were the subject of a lengthy voir dire that resulted in the exclusion of much of his evidence.

[128]In addition to the complex evidentiary issues that continued to arise from the abandoned past use allegations, procedural wrangling also continued after leave to allow the amendments was granted.

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[129]Further interlocutory proceedings after the 2015 amendments included the following applications:

1)In early 2016 the defendants in the Nanaimo Clubhouse proceedings applied for an order to set aside the CPO on the basis that the evidence that had been relied upon by the Director to obtain the IPO in 2007 was no longer capable of meeting the required evidentiary standard to obtain an IPO or CPO when allegations of past use and proceeds were excised from the evidence previously relied upon by the Director. In Reasons for Judgment indexed as British Columbia (Director of Civil Forfeiture) v. Hells Angels Motorcycle Corporation, 2016 BCSC 166 I dismissed that application. In doing so I found that the remaining admissible evidence was sufficient to meet the very low

“serious issue to be tried” threshold under s. 8(5) of the Act with respect to the future use allegation and sustain the continuation of the CPO. That decision remains relevant to the standing issue that I must now resolve in respect of the defendants’ counterclaim.

2)In July 2016 the defendants brought applications seeking to have stated cases set and heard with respect to whether, if the East End and Kelowna Clubhouses (over which no IPOs had been sought by the Director) were to be sold, would the proceeds be an instrument of unlawful activity under the Act?

3)The Director cross-applied for an IPO over the East End and the Kelowna Clubhouses and brought applications compelling lists of documents from those defendants who had not yet provided lists and amended lists from those who had.

[130]I rejected the defendants’ application for a stated case primarily because the assumptions upon which it was to be based were hypothetical and would neither advance the litigation nor save expense for the parties or the Court.

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[131]I also concluded that it would not be clearly in the interests of justice under s. 8(5) of the Act to make all of the IPO orders over the East End and Kelowna Clubhouses sought by the Director. I did, however, make orders to preserve the value of the Clubhouses in the event that the Director’s claims to forfeiture were successful without unduly interfering with the defendants’ rights of ownership pending resolution of this litigation. In addition to those orders I made orders concerning the listing and discovery of some, but not all, of the documents sought by the Director.

[132]Issues concerning the extent to which the defendants had complied with their discovery obligations as well as issues concerning the ambit of oral discovery of not only the defendants but also the Director later arose and required further case management orders but did not preclude this trial from eventually proceeding in April 2018 and concluding (after many scheduling interruptions) in April 2019.

[133]After the amendments in August of 2015 by which the Director abandoned the previous proceeds and past use allegations upon which he sought the forfeiture of the Clubhouses no further substantive amendments were made to the Director’s pleadings.

[134]Although the styles of cause in both proceedings were from time to time amended by the removal of some of the defendants because they disclaimed any interest in the Clubhouses, were no longer members of the Hells Angels, or in the case of the previous defendant, David Francis Giles, because he had died before this trial commenced, there were also no substantive amendments to the defendants’ pleadings after they filed responses to the Director’s 2015 amendments prior to the close of evidence in the Director’s case at trial.

[135]However, as I have previously noted, the defendants then amended their counterclaim to challenge the constitutionality of the past instrument of unlawful activity provisions of the Act, in addition to the future use provisions.

[136]As I have also noted those counterclaim amendments were not opposed by the Director except with respect to issues of standing to challenge the past use

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provisions that were no longer relied upon by the Director as a legal basis for forfeiture.

C.The history of the Hells Angels

[137]The Director relies upon the allegation that the Hells Angels is a worldwide organization that “has as its primary purpose the enabling and empowerment of its members to engage in serious crime for financial gain while minimizing the risk of detection by law enforcement and prosecution by the Crown” as the foundation for his claim to the forfeiture of the Clubhouses as future instruments of unlawful activity.

[138]The Director also submits that it is not only the commission of criminal offences by past or present members of the three chapters of the Hells Angels whose Clubhouses are in issue that establish the likelihood of future criminal activity involving the further use of those Clubhouses as instruments of unlawful activity but also the likely criminal offending of future as yet unknown members of those chapters.

[139]Those allegations focus upon the alleged criminal history of the Hells Angels as an evolving multi-national organization that started in California in the 1950s and eventually expanded into Europe and Asia as well as into Canada including into British Columbia.

[140]The Director alleges that it is that history which has earned the Hells Angels a reputation for violence and intimidation that allows the Hells Angels to continue to facilitate the commission of serious crime for financial gain. In the Director’s submission, individual membership in the organization is thus less significant than the perpetuation of the Hells Angels reputation or “brand” as a violent criminal organization.

[141]Those allegations have thus lead the Director to submit that even though membership in the chapters of the Hells Angels will change over time, the primary purpose of the organization will continue to be the facilitation of criminal activity for

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its evolving membership and that the Clubhouses will continue to be used as instruments of unlawful activity by:

1)Serving as symbols or as “planted flags” to rival organizations, law enforcement and the general public of the Hells Angels’ presence and influence in the relevant local area to facilitate the commission of unlawful activities;

2)Providing members with a base of operations or “safe houses” in which to conspire with one another or instruct others about the commission of unlawful activities and/or allow members to commit unlawful activities in secret;

3)Providing an environment in which to recruit potential Hells Angels members, associates or allies; and

4)Providing a location or “intelligence hub” in which to store information to facilitate the further commission of unlawful activities.

[142]The Director relied upon the expert report and viva voce evidence of

Mr. Isnor, a now retired Ontario Provincial Police officer, to provide evidence of the history of the Hells Angels and their organizational structure; the characteristics of the Hells Angels as an alleged criminal organization; and, the role of clubhouses in the organization.

[143]In Reasons for Judgment delivered after a lengthy voir dire I ruled that much of Mr. Isnor’s proposed expert report was inadmissible. Those reasons are indexed as British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and Festival Property Ltd., 2019 BCSC 275 (the “Expert Evidence Reasons”).

[144]One part of Mr. Isnor’s report and testimony that I did, however, find to be admissible concerned his evidence relating to the history of the Hells Angels.

[145]According to Mr. Isnor it is most likely that in March 1948 some members of an existing motorcycle club with a somewhat disreputable past formed their own

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motorcycle club which they named the Hells Angels after a World War II bomber squadron.

[146]The original location for the first chapter of the Hells Angels was in the San Bernardino-Bloomington area of southern California. Although that chapter still exists the Hells Angels have since declared the Oakland chapter to be the “mother chapter”.

[147]Although the Hells Angels as an organization primarily consists of its

members in many chapters (most of which are unincorporated associations) there is, also, as I have previously noted, a Hells Angels Motorcycle Corporation.

[148]The Hells Angels Motorcycle Corporation is located in Oakland, California. It is a not-for-profit entity with no issued shares. Its only assets are various Hells Angels trademarks of which it is the registered owner. Its main purpose is to protect those trademarks.

[149]Later in these reasons I will discuss the “World Rules” of the Hells Angels which include a section entitled “Corporation Rules” that, among other things, governs the relationship between the members and chapters of the Hells Angels and the Hells Angels Motorcycle Corporation.

[150]A chapter of the Hells Angels is also referred to as a “charter”. A chapter exists because its formation is recognized by the Hells Angels as an umbrella organization and a charter for that chapter is authorized by the Hells Angels Motorcycle Corporation. I will accordingly use the terms chapter and charter interchangeably in these reasons to describe the individual local chapters or charters of the Hells Angels.

[151]In the 1950s some loosely organized groups of members of Hells Angels in the Oakland area got together, became more organized, and began to develop rules.

[152]By 1961 there were three chapters of the Hells Angels in California.

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[153]In July 1961 the Hells Angels first expanded internationally by granting a charter to a chapter in Auckland, New Zealand. Expansion slowly continued throughout the 1960s primarily in California but eventually also into the mid-western and north-eastern United Sates.

[154]The first European expansion was marked by the opening of a chapter in London, England in 1969.

[155]Over those years the symbol by which the Hells Angels identified themselves also evolved and by 1969 was a detailed skull with an aviator’s cap that became known as the “Death Head” worn on the back of vests or jackets.

[156]That insignia, together with other insignia located on the back of those jackets or vests, indicating the location of the chapter to which a member belongs, became known as the “colours” of the Hells Angels. The jacket or vest upon which the colours were worn became known as the member’s “patch”. At times the descriptors “colours” or “patch” are synonymously used to refer to the jackets or vests upon which the insignia are worn.

[157]By 1987 the Death Head insignia further evolved to include the sewn up mouth that is still used today by members of the Hells Angels.

[158]As of March 31, 2016, the date of Mr. Isnor’s report, there were 462 chapters of the Hells Angels in 56 countries worldwide with an estimated membership of over 6,000 individuals.

1.Canadian expansion: Quebec

[159]Major international expansion continued in the 1970s including expansion into Canada in Quebec in 1977. The Hells Angels expanded there by taking over an existing motorcycle club in Montreal. Since then the Hells Angels have opened six additional chapters in Quebec.

[160]One of those six was a “Nomads” chapter that was opened in 1995 but closed in 2001.

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[161]Only one Nomads chapter may exist in any jurisdiction in which the Hells Angels have a presence.

[162]Unlike all other chapters of the Hells Angels, Nomads chapters are not required to have a clubhouse.

[163]In 2009 all then existing chapters of the Hells Angels in Quebec were

“frozen” because they had insufficient membership to allow their continuation.

However, between 2015 and March 2016 three of those Quebec chapters re- opened.

2.Canadian expansion: British Columbia

[164]On July 23, 1983 the Hells Angels opened three new chapters in British

Columbia. They did so by “patching over” the Vancouver, White Rock and Nanaimo chapters of the Satan’s Angels Motorcycle Club. A “patch over” occurs when sufficient members of an existing motorcycle club decide to join the Hells Angels by forming a new chapter of the Hells Angels and ceasing to be members of their previous club.

[165]On December 22, 1983 the Hells Angels opened the East End chapter as a fourth chapter in British Columbia.

[166]Since 1983 the Hells Angels have opened chapters in British Columbia in Haney (1987), Mission City (1999), Kelowna (2007), West Point (2012), and Hard Side (2017). A British Columbia Nomads chapter was also opened in 1988.

3.Canadian expansion: Nova Scotia, Alberta, Saskatchewan and Manitoba

[167]On December 5, 1984 the Hells Angels opened a chapter in Halifax, Nova Scotia by patching over the Thirteenth Tribe Motorcycle Club. That chapter was, however, closed in 2001.

[168]On July 23, 1997 the Hells Angels opened two new chapters in Calgary and

Edmonton from members of the King’s Crew and Grim Reapers Motorcycle Clubs respectively. Since July 1997 the Hells Angels have opened three new chapters in

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Alberta. One (called the Alberta Nomads chapter) is in Red Deer and there are also now additional chapters in each of Calgary and Edmonton.

[169]On September 7, 1998 the Hells Angels opened a chapter in Saskatoon, Saskatchewan from members of the Rebels Motorcycle Club.

[170]On September 7, 2001 the Hells Angels opened a second Saskatchewan chapter in Regina.

[171]On December 20, 2000 the Hells Angels opened a Manitoba chapter in Winnipeg by taking over an existing club called the Los Bravos Motorcycle Club.

4.Canadian expansion: Ontario

[172]On December 29, 2000 the Hells Angels opened ten new chapters in Ontario in Woodbridge, Windsor, Toronto (Downtown), East Toronto, Simcoe County, Oshawa, Ottawa (a Nomads chapter), Kitchener and Keswick. In January of 2001 the Hells Angels also opened an 11th chapter in Thunder Bay.

[173]All of those first 11 Ontario chapters were patched over from existing motorcycle clubs.

[174]Between February 3, 2001 and July 28, 2003 the Hells Angels opened five additional chapters in Ontario in North Toronto, Niagara, Hamilton, Sudbury and London.

[175]In 2008 the Sudbury and Thunder Bay chapters were frozen because their membership fell below the required six members “on the street” and in 2010 the Niagara chapter was also closed for that reason.

[176]“On the street” refers to members who are not incarcerated. Members who are incarcerated (known as the “Big House Crew”) do not cease being members of the Hells Angels unless steps are taken by their chapter to have them removed as members. However, while incarcerated those members do not form a part of the membership of a chapter for the purpose of maintaining that chapter’s “on the street” status.

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[177]On December 29, 2015 the Niagara chapter re-opened after the transfer of sufficient members from another chapter in Ontario.

[178]As of March 31, 2016 there were 34 active Hells Angels chapters in Canada and three chapters that were frozen due to not having six members “on the street”.

D.The organizational structure and governance of the Hells Angels on a local, regional, national, and worldwide basis

[179]As I have earlier noted the expansion of the Hells Angels into a new jurisdiction arises in some cases by the patching over of existing motorcycle clubs. That was mostly the case in Canada including in British Columbia in 1983 when former Satan’s Angels members chose to become Hells Angels members.

[180]Expansion by patching over is usually followed by internal expansion in the jurisdiction in which the organization has then established a presence.

[181]The organizational structure of the Hells Angels at the chapter, regional, national and world level is of significance not only to the Director’s allegation that the

Hells Angels is a worldwide criminal organization but also to the extent that it informs the question of whether individual chapters (in this case the Nanaimo, East End or Kelowna chapters) may or may not participate in alleged unlawful activity and, if so, make use of their respective Clubhouses in so doing.

1.Local governance

[182]The creation of a new chapter of the Hells Angels always requires organizational approval, in that new chapters must be approved first at a local or regional level, secondly at a national level, and thirdly at the world level.

[183]While that approval process would tend to indicate a top down dictatorial or monolithic organizational structure, the evidence in this case satisfies me that the Hells Angels and its various chapters are far more loosely organized.

[184]While hierarchical approval for a chapter to exist is necessary the evidence establishes that generally speaking, organizational approval flows “from the ground up”.

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[185]In British Columbia, if an existing chapter wishes to separate into different chapters (as was the case with the Kelowna chapter that was formed from some existing members of the East End chapter in 2007), the members leaving the existing chapter first agree to do so and then seek the approval (which they would anticipate receiving) of other members of the existing chapter. Next, they seek the approval of the other chapters in British Columbia. The British Columbia chapters then seek approval of the Western Canada region (again anticipating approval) before seeking approval at the national and world levels, after which the new chapter will receive its charter.

[186]That same process occurs in other jurisdictions.

[187]After a new chapter receives its charter it will be entitled to representation at all levels of the organization unless it is frozen.

[188]In some cases, in order to prevent a chapter from becoming frozen, members of other chapters in the jurisdiction will from time to time become members of the chapter whose membership is diminished by incarceration or for other reasons.

[189]The “ground up” basis for the formation of new chapters is reflective of the relative independence of each chapter within the larger organization. Although meetings of the organization above the chapter level are frequent and attendance of representatives of chapters or regions at those meetings is expected, I find that hierarchical control is not a primary organizing feature of the Hells Angels as a worldwide organization.

[190]When a new charter is recognized as a chapter by the Hells Angels a certificate is issued by the Hells Angels Motorcycle Corporation that provides that the chapter must abide by the rules and regulations of the Hells Angels.

[191]Each member of the new chapter is entitled to vote on any issues involving the chapter and has all the rights and obligations of a member of the Hells Angels.

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[192]Each chapter has members that serve in positions of authority within the chapter as elected by the chapter’s members. Generally speaking those positions will include any or all of: a president; a vice-president; a secretary; a treasurer; a road captain; and, a sergeant-at-arms.

[193]Important decisions, such as the making of chapter rules, the acceptance of candidates to higher levels of participation in the affairs of the chapter, the promotion of candidates to “full” membership in the chapter or the expulsion of an existing member, must be unanimously agreed upon by all members of the chapter.

[194]Although that level of equality and the requirement for unanimity in important decision making exists at the membership level, equality of participation in the affairs or governance of a chapter does not exist until an individual becomes a member.

Membership can only be attained by a candidate by receiving the unanimous approval of all existing members of the chapter.

[195]Although members of the Hells Angels are at times identified by media outlets or law enforcement as “full patch Hells Angels” (suggesting the existence of lower or inferior levels of membership in a chapter or within the organization as a whole) there are, in fact, no superior or inferior levels of membership once membership in a chapter is attained.

[196]Every individual who attains membership status is entitled from that day forward, unless later expelled by unanimous vote, to wear the colours and patch associated with that chapter as a member of the Hells Angels.

[197]All others who may be associated with a chapter at a level less than membership (a process known as being “on the program”) do not have those rights. Before a candidate for membership who is on the program becomes a member he is only entitled to wear limited paraphernalia and insignias associated with the level of candidacy that he has reached. Those rules are strictly enforced.

[198]I will discuss the various levels of candidacy “on the program” later in these reasons when addressing the Director’s allegations that the chapter Clubhouses are used (through recruitment) to contribute to the changing membership of a chapter

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and perpetuate offending for the benefit of the Hells Angels as a worldwide criminal organization.

[199]After becoming a member, each member of a Hells Angels’ chapter has continuing obligations that he must fulfill. Among those obligations are: observance of the World Rules as well as, national, regional and chapter rules; payment of dues; participation in scheduled “shifts” at the chapter clubhouse so that it is always occupied by a member or a trusted candidate on the program; participation in motorcycle “runs” organized by the chapter or at the regional level; and, attendance at members only weekly chapter meetings.

2.Regional governance

[200]The Director adduced the evidence of Rick Ciarniello, a prominent long time member of the Hells Angels in British Columbia, who testified about meetings of the Hells Angels held at the local, regional, national and world levels of the organization.

[201]Mr. Ciarniello became a member of the Vancouver chapter of the Hells Angels when the Hells Angels first established their presence in British Columbia in

1983. Before that he was a member of the Satan’s Angels. For many years he has been the president of the Vancouver chapter of the Hells Angels.

[202]Mr. Ciarniello testified under subpoena. He also provided copies of many minutes he prepared or distributed for regional, national and world meetings of the Hells Angels over many years. The evidence establishes that he provided that documentation to assist the defendants in complying with specific document production orders that were made because of allegations advanced by the Director in support of his claims that the Hells Angels is a worldwide criminal organization.

[203]The evidence establishes that although Mr. Ciarniello provided information and documentation required by those orders he only did so after a motion was presented by an Austrian Hells Angels representative at a world meeting and approved at that meeting permitting Mr. Ciarniello to do so.

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[204]Mr. Ciarniello testified that he believed such permission was necessary because neither he nor his chapter is a party to this litigation and because the documentation of which disclosure by the defendants was ordered was stored on his personal computer and was comprised of information that he had obtained or generated in his various Hells Angels representational roles over many years.

[205]Counsel for the Director was critical of Mr. Ciarniello’s disclosure in his closing submissions. He asserted that Mr. Ciarniello was not fully forthcoming with the production of all relevant documents that the Director claims likely exist in

Mr. Ciarniello’s possession and that he was otherwise less than honest in respect of his production of documentation.

[206]As to that assertion I make the following observations:

1)No suggestion of selective production by Mr. Ciarniello was ever put to him by counsel for the Director; and

2)No application was made by the Director to have Mr. Ciarniello declared to be an adverse or hostile witness as occurred with Robert Widdifield, a former member of the Nanaimo Hells Angels and a former defendant in the Nanaimo Clubhouse proceedings, who was also subpoenaed as a witness by the Director.

[207]Mr. Ciarniello’s interests as a member of the Hells Angels for many years are obviously aligned with those of the defendants.

[208]Although I am concerned that Mr. Ciarniello considered that he needed approval of a world meeting of the Hells Angels to authorize his co-operation with the defendants to provide documentation they were compelled to produce in this litigation, the fact that he is not a party to this litigation and his belief that the Hells Angels as an organization has been unfairly targeted by law enforcement for many years both likely underlie and explain Mr. Ciarniello’s reluctance to produce documents from his personal files.

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[209]Having considered that reluctance in the context of the antipathy of the Hells Angels as an organization towards law enforcement but also in the context of the totality of the evidence in this litigation, including Mr. Ciarniello’s testimony both in direct and cross-examination, I have concluded that Mr. Ciarniello was a straightforward witness whose interests and reluctance to produce personally held documents to the defendants to enable them to comply with their discovery obligations did not compromise his testimony.

[210]I do not find that Mr. Ciarniello’s disclosure of documents requested by the defendants was incomplete or that he was a participant in any failure by the defendants to disclose specific documents.

[211]Mr. Ciarniello’s compelled testimony and the documentary evidence produced from his files provided valuable insight into the organizational structure of the Hells Angels at all levels.

[212]Mr. Ciarniello’s testimony provided evidence concerning but not limited to: decision-making processes employed by the organization; the uses of dues paid by the members; the Director’s allegations about the existence of a “Defence Fund” for defending Hells Angels members accused of criminal activity; and, the making, content and distribution of the Hells Angels’ “World Rules” as well as the existence and substance of subsidiary rules at the regional and chapter levels.

[213]Mr. Ciarniello testified that the British Columbia chapters of the Hells Angels were first organized within Canada as one of two Canadian regions with the other being Quebec. Eventually, with the expansion of the Hells Angels into other provinces, reorganization occurred so that the British Columbia chapters as well as those in Alberta, Saskatchewan and Manitoba were designated as being in the Western Canada region. Ontario was then designated as the Central Canada region while Quebec and New Brunswick were designated as the Eastern Canada region.

[214]Since at least the 1990s Mr. Ciarniello has been his chapter’s representative in British Columbia. He is also the recording secretary for the Western Canada region’s meetings.

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[215]Mr. Ciarniello testified that his note-taking for Western Canada meetings is not verbatim. It is done on a template to record what topics were discussed so that the other representatives of British Columbia chapters who attend Western Canada meetings will be reminded of what was discussed so that they can inform their chapters or, where necessary, gather the votes of the members of their chapters on issues where votes are required. He distributes his meeting notes on a USB stick to each chapter in the Western Canada region.

[216]Meetings of representatives of the Hells Angels Western Canada region are held regularly and are usually about two hours long. They occur at various clubhouses in the region as decided upon by the representatives of the chapters. They are hosted by members of the chapter where the meeting occurs.

[217]Mr. Ciarniello further testified that if a charter is not represented at a Western Canada regional meeting without acceptable excuse it can be fined for not attending. The fine is to help to defray the costs of such meetings that are generally funded by the chapter hosting the meeting.

[218]Mr. Ciarniello’s testimony and my review of the minutes of Western Canada meetings adduced in evidence establishes that, amongst other things, matters of discussion at those meetings include: approval for fundraisers; approval of “specific support wear”; appeals for funding support for incarcerated members of the Big House Crew or for their families; appeals for the support of members facing prosecution and members of the Big House Crew as well as encouragement to communicate with incarcerated members; rival or supportive motorcycle clubs that may have been sighted in the region or elsewhere; the progress of arrests and legal proceedings against members; circulation of information about persons wanting to be “on the program” with individual chapters; new associates and members; planning for local or regional rides; planning for social events; observations of possible trademark infringement that might be referred to the Hells Angels Motorcycle Corporation for action; dues or fines that might be owed by members or chapters; expansion; retirements and expulsions of members; and, circulation of Big House Crew lists.

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[219]In the Western Canada meeting minutes adduced into evidence there was often discussion about criminal charges faced by members of various chapters from time to time and the progress of such charges or the fact that some members were on bail or other conditions that prohibited contact by other members with them. There was, however, never any recording of a discussion concerning any future criminal activity by members or associates or chapters.

[220]I am satisfied that for the most part the Western Canada meetings are not administrative in the sense of having any authority to impose decisions reached by representatives at those meetings upon other members or chapters in the region.

The meetings consist primarily of an exchange of information that might affect the interests of one or more chapters in the region or their members. Any decisions that might affect the interests of all chapters in the region including, for example, the implementation of a regional rule, require the approval of all chapters of the region where the rule of “one member – one vote” determines whether such approval will be forthcoming.

3.National meetings and governance

[221]Representatives of the three Canadian regions meet regularly at national

“Canada meetings” at which attendance by a representative of a chapter from each province in each region is required. Any other Canadian member of the Hells Angels may also attend a national meeting if they wish to do so. Mr. Ciarniello testified that Canada meetings generally last about one hour or less.

[222]As with Western Canada regional meetings the Canadian national meetings are hosted by a chapter nominated for that purpose. Minutes are usually kept by Mr. Ciarniello as the national secretary and Western Canada representative but may from time to time be kept by the Eastern Canada representative. When those minutes are prepared they are again not verbatim records. They are prepared on a topic by topic basis as a reminder to all attendees as to what was discussed. More detailed note-taking concerning matters affecting each region or a specific chapter is supposed to be taken by representatives.

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[223]Mr. Ciarniello’s meeting notes are distributed by a USB stick to all who attend the national meeting. Further distribution to chapters within each region is the responsibility of representatives in attendance.

[224]Mr. Ciarniello’s evidence and the minutes of the Canada meetings that were adduced in evidence reflect discussion of issues similar to those addressed at Western Canada meetings. The purpose of the meetings at the national level is also primarily informational rather than administrative.

4.World meetings and governance

[225]World meetings of the Hells Angels are held twice yearly and may be held in Europe, the Americas or in other areas in which the Hells Angels have chapters.

[226]At the world level each of the three Canadian regions is entitled to representation as if they were a separate jurisdiction.

[227]Attendance at the world meetings is not limited to representatives appointed for that purpose. Any member of the Hells Angels from any chapter in the world may attend a world meeting.

[228]At world meetings each represented region or country can, among other things: raise matters for consideration; bring and vote on motions affecting the Hells Angels as a worldwide organization; and, propose and/or vote on any proposed amendments or additions to the World Rules that govern the conduct of all members of the Hells Angels worldwide.

[229]Since the 1990s Mr. Ciarniello has attended all but one world meeting as the Western Canada representative.

[230]Minutes for world meetings are generated by a “scribe”, reviewed by representatives from various countries and saved to a flash drive produced about two days after a meeting.

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[231]Mr. Ciarniello testified in direct examination about note-taking at a world meeting as follows:

AThe scribe takes the minutes. But he has some people to help him to try to put it into -- to type it and that sort of thing. And to discuss what was the best way of putting his words into understandable terms for everybody.

QYou mentioned a moment ago about some differences of opinion as to what might have been discussed at a meeting.

ANot what was discussed. About how to evaluate what was discussed. Sometimes I read it and I say well, I don't remember it that way.

[232]As to the content of those minutes he also testified that:

Q… And just in terms of your own personal practice, do you review that document to see if it accords with your recollection of what was discussed at the meeting?

ABecause I sit at the meeting, a lot of that stuff is just somebody wanting to talk and really not too many people paying attention. There are some interesting subjects which I do pay attention and give my opinion because I was the person there that heard it all, both sides of an argument, for instance, and able to explain to my representatives when I get back here my opinion of what was going on.

[233]Mr. Ciarniello also testified that at world meetings a charter that wishes to have a motion passed by the Hells Angels at the world level can present that motion for discussion by all representatives at a world meeting. Each region represented at the meeting will then take the motion back to their region where it will be voted upon by all members of all charters. Those votes will be tallied and the votes presented at the next world meeting. If two-thirds of the members who vote approve the motion it will pass. If not, it will fail.

[234]The evidence establishes that topics of discussion at world meetings often include: court proceedings including proceedings related to organized crime allegations; respect for the territories in which members from other areas may be visiting by notifying the territory of the intended visit; other motorcycle clubs that may be starting up in a territory or entering a territory as well as possible new supportive clubs or prospect clubs that may be formed in some territories; the maintenance of standards; the possible existence of “snitches” and investigations into those possibilities; fundraising for individual members’ criminal defences or to prevent the

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extradition of individual members; uniform usage of the terms “left” and “out” respectively for members who have retired or have been expelled; and, updates on each region’s membership numbers as well as the number of persons on the program.

[235]There is also evidence that at times documents are disseminated and discussed at world meetings that originate from legal proceedings or law enforcement or are marked as being confidential. More specifically:

1)at a December 2010 world meeting a document that appears to have emanated from secret grand jury proceedings concerning a Hells Angels member accused of crimes in Nevada was disseminated; and

2)at a November 2013 world meeting a 227-page document that appears on its face to be the work product of Europol entitled “The Hells Angels MC A Criminal Organization” marked EU RESTRICTED was discussed and disseminated.

E.World, national, regional and chapter rules

[236]Among other things that require approval at world meetings are any changes or additions to the World Rules which govern membership in the Hells Angels.

[237]The World Rules are important not only to individual members but also to the overall governance of the organization. That is so because although each country can pass national rules, those national rules cannot be inconsistent with the World Rules.

[238]Similarly, while a region within a country (if there are more than one as is the case with Canada) may pass regional rules, those rules must not be inconsistent with either the World Rules or national rules. In addition, if a chapter adopts its own rules those rules must not be inconsistent with the World Rules, national rules and regional rules.

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1.The World Rules

[239]A copy of the current “World Rules of the Hells Angels” is provided to each chapter of the Hells Angels every five years. In the intervening years updates with any new rules are provided by “stickers” for insertion into the existing rules book.

[240]The latest copy of the World Rules in evidence in this proceeding is the 2012 version obtained by the police during a search of the Kelowna Clubhouse in August 2012 during the RCMP investigation known as Project E-Predicate that gave rise to criminal drug trafficking and conspiracy charges against two members of the Kelowna chapter of the Hells Angels.

[241]That investigation was the subject of a referral from the RCMP to the CFO in November 2012 that was the genesis of the Director’s claims for the forfeiture of the

Kelowna Clubhouse.

[242]The version of the World Rules in evidence consists of a book consisting of more than 40 pages.

[243]Only some World Rules are relevant to the issues in this case. I will record those relevant rules but will not repeat those that are found in more than one section.

[244]The book containing the World Rules is divided into various sections that contain the following relevant rules:

1)“The Book” in which the following is stated:

∙The Hells Angels Motorcycle Club World 2012 Rule Book makes all other past World Rules and sets of World Rules obsolete.

…

∙The World Rules must always be followed, but any country, state or charter can make their own stricter rules.

…

∙New motions will be categorized before the Membership vote on them and then if past provided in a suitable format to all National Secretaries to pass on to all charters.

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2)“Preface and Objectives” in which the following is stated:

PREFACE

Hells Angels Motorcycle Club World must follow the World Rules listed in this book and also abide the Hells Angels Motorcycle Corporation rules and directions, as these protect our name, logo and trademark. In addition the Members of the Club are answerable to their own countries current laws and rules.

It is the responsibility of every Hells Angels Member to acquaint themselves with this set of rules.

OBJECTIVES

Hells Angels MC World is a Motorcycle Club, where the Members are a Brotherhood with a common interest in motorcycles and motorcycling.

The Hells Angels Motorcycle Club is non political and does not condone any unlawful or illegal activity.

3)“Constitutional Rules” in which the following is stated:

1.All Members and Prospects must ride a motorcycle no less than 750 cubic centimeters.

2.One man - One vote.

3.Only Hells Angels will possess Hells Angels Paraphernalia. (No ex-Member or Prospect is allowed to keep any type of club property or indicia.)

4.Members can have only one set of patches at a time. (Racing patch exception)

5.Members must wear the same computer design style patch.

6.To form a charter there must be a minimum of six Members on the street.

7.Disputes that become physical shall be fair and reflect our belief in brotherhood (no weapons shall be used by either man). Alleged use of a weapon must be presented at an appropriate meeting and is subject to remedial measures that may include expulsion from the club.

8.Behavior unbecoming of a Hells Angel shall be cause for immediate expulsion from the club. Examples include; lying, stealing or misuse of a Member’s or Prospect's property, or woman.

9.No undesirables in the club!

For example: no snitches, junkies, cops or ex-cops, etc. Membership shall be limited to men who are not and have never chosen to belong to, or worked with any law

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enforcement agency or authority which, has the power of arrest or incarceration.

10.No individual Member or Prospect shall belong to any other motorcycle club.

11.If any Member is found to be using a needle to inject narcotics into his body or causes narcotics to be injected into his body, the moment that this fact is known that Member is immediately out of the club, regardless of the fact that he is dead or alive (except for medical or non-recreational purposes).

12.No use of heroin.

13.Charter autonomy is a basic right but cannot supersede any World Rule.

[Italics in original.]

4)“Prohibitive Rules” in which, among other things, the following is stated:

1.No more items with lightning bolts or swastikas to be manufactured, worn, sold or displayed. This covers bike paint jobs, tattoos, T-shirts or clothing of any type, jewelry, posters, flyers, Member’s signatures, plaques & pictures. The ONLY exceptions allowed are EXISTING headstones, plaques, flags and tattoos.

…

4.No HAMC charter, HAMC Member, or HAMC Prospect be allowed to market anything bearing the name Hells Angels and/or our Death Head logo without proper licensing by the corporation.

Penalty: US $200 fine for violation to be paid to the Corporation.

…

6.No more support T-shirts with HELLS or ANGELS on it to be sold to the public.

7.ALL support gear (shirts, hats, rings, key chains, anything)

MUST say “support” with the number 81 and must NOT have indicia that closely resembles our own (i.e. rockers, Death Heads and lay out)

Penalty: US $500 fine paid to regional treasury.

…

9.To amend the no heroin rule to include the freebasing of addictive chemical compounds such as cocaine, meth, crack and similar chemical compounds.

Penalty: Existing penalty remains the same “OUT”

10.Immediately cease manufacture, sells, wearing of, and display of or items, not limited to T-shirts, stickers, patches, banners,

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tattoos, stencils, graffiti etc. displaying any derogatory acronyms, symbols, logos or depictions towards any other organizations on our person, patches, motorcycles, clubhouses etc.

Penalty: US $500 per instance and Member(s) or charters) to be held accountable for such action.

11.That Members must stop wearing patches, that endangers the Club and which has nothing to do with our Club. All flashers old and new to be cleared on country level.

Penalty: US $500 fine to the charter and to be brought to the World Meeting if necessary.

12.Only side rockers from countries which already have HAMC charters can be worn.

Penalty: U$ $500 to charter and to be brought up on a World Meeting if necessary.

Exceptions: To be brought up on a World Meeting.

5)“Standard Rules” in which, among other things, the following is stated:

1.All countries and Members will adhere to our tradition of 10 year Members and older having the privilege and retaining the right exclusively to wear belt buckles portraying both the name HELLS ANGELS and the DEATH HEAD.

…

3.All charters to respect all Hells Angels support items to help keep our support worldwide.

…

8.There will be nothing on the back of the patch except the colors, which is HELLS ANGELS, DEATH HEAD, MC. and

COUNTRY/STATE/CHARTER.

9.If a Member leaves the Club and he comes back, his time

starts over again.

…

11.All Members must show that they are Members when seen from the front. Example: HA-pins, HA front flashes or other front flashes that shows that one is a Member.

Penalty: Member to be dealt with by charter or country.

12.If a Member is OUT, the charter he used to belong to must send a recent picture of him to all World charters. Penalty: To be decided on a World Meeting,

6)“Organizational Rules” in which, among other things, the following is stated:

1.There will he at least one (1) Member from every HAMC charter & Prospect charter at all World Runs.

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Penalty: US $I000 donation to be paid to the host country.

Extenuating circumstances will be considered.

2.Each country to have at least 2 representatives at all World Meetings.

Penalty: Fine for missing World Meeting will he US $2000 funds to he paid to the host country by the next World Meeting, if only one country representative is present Exceptions must be appealed with an acceptable reason by the next world meeting

…

6.To simplify Wold Meetings, country representatives are to give the agreed media to the Meeting Secretary containing that representative's World business and motions only. All other update information they may have such as addresses and phone numbers is to be passed out on disk to the other National Secretaries. Common programs such as Microsoft Word & Excel are to he used for this.

…

8.When paying expenses for World Runs, monies being sent are to be collected from each charter by the country they are in and then sent to the hosting country all together with a list identifying each charters payment.

9.The costs to organize one of the World Meetings each year should be covered by all World Members and Prospects. …

10.To have all left over money and fines (after bills) from World Runs to roll over to the next World Run (not kept for that countries Defence Fund).

Penalty: To be discussed at the World Meeting.

…

13.The World Run will be held in the USA every five years without contention. It can be held earlier that five year but no later. …

14.That we have World Runs held in countries that are accessible to most Members.

7)“Internet Rules” in which the following, among other things, is stated:

1.All HAMC internet web sites must conform to adopted guidelines (see appendix C and be approved by HAMC World Vote.

2.Charters are allowed to put our Death Heads on our web sites. But ONLY the Universal Death Head worn on our backs.

3.That all charters are to have an operative E-mail account. Penalty: US 200 payable to their respective countries.

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4.The information allowed on web sites is to be restricted to non- sensitive and which does not endanger the safety of HAMC Members.

Penalty: To be decided by a World Meeting.

5.Do not put official World Run photos on Internet sites. Do not put party photos or pictures of Brothers on Internet sites without those Brothers permission. …

...

8.No Member is allowed to use The images that show our name or designs on any of the ‘‘public” sites as named above, as well as others that may appear in the future (My Space. Facebook. YouTube and similar sites).

8)“Corporation Rules” in which, among other things, the following is stated:

1.To pay US $20 per member worldwide to cover the cost of the trademark bill. The US $20 would be due March 1 every year. If more monies are needed, a special request would be made. Penalty: Not paying by March 1 would be 100% penalty of the original amount.

2.Adopt a Hells Angels property agreement.

3.No HAMC charter. HAMC member, or HAMC prospect be allowed to market anything bearing the name Hells Angels and/or our Death Head logo without proper licensing by the Corporation. …

9)“Prospect Rules” in which, among other things, the following is stated:

1.New Prospect countries representatives must be available at World Meetings.

Penalty: Fine for missing the WM will be US $2000. Funds to be paid to the host country by the next World Meeting, if only one country representative is present. Extenuating circumstances will be considered.

2.There must be at least (1) one Member from every Prospect charter at ALL World Runs. …

…

5.Prospects must not use the words Hells Angels or Death Heads on Christmas or Anniversary cards.

6.Prospects cannot give gifts with the words Hells Angels or Death Heads on without a HAMC charter's permission.

7.Before being voted on for full membership everyone must do a minimum of 12 months Prospect period. …

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8.All new clubs must do a minimum 12 months Prospect period before being voted on for full membership as a charter.

Penalty: HAMC World would not recognize any such charter. In effect they would not be entitled to wear the name Hells Angels. Those responsible for voting in such charter would be dealt with at the discretion of a World Meeting

Exceptions: If exceptional circumstances came up all details would have to be put in front of and explained to a World Meeting, a World motion presented and a World Vote taken.

10)“Traditions” in which, among other things, the following is stated:

Traditions are beliefs or customs passed on from one generation to the next, often verbally, that is undocumented but are understood to be respected and followed.

1.Old patches are destroyed by burning.

2.No use of another country's or charters Death Heads, side rockers, front flashes etc. without their permission.

3.If you wear your charter tag. your own charter pin, a world pin. And/or an officer tag. it should he on the left breast.

4.Belt buckles with the words HELLS ANGELS and a DEATH HEAD are to be worn only by Members who have at least 10 years in the Club.

5.Belt buckles with the words HELLS ANGELS and an Enamel DEATH HEAD are to he worn only by Members who have at least 20 years in the Club.

6.Only Members can ride a motorcycle with Hells Angels insignia, except in extenuating circumstances.

7.Suicide is unacceptable and is considered conduct unbecoming of a Hells Angel.

8.All side view Death Head pins and patches should face the same way as our back patch, except in the case of opposing pins or patches.

9.If a Member loses any club item(s) there should be a US $100 penalty per item, collected at the charters discretion.

10.No charter should sell any anniversary dated items like pins, belt buckles, etc. to individual Members.

11.No Member should possess anniversary jewelry which he is not entitled to wear.

12.If we bury a Member we bury our own. whenever possible.

13.You must be in a charter for 1 year before you transfer to a different charter, regardless of how many charters you have transferred to or from.

14.A transfer must be approved by both charters involved.

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15.Patches and rockers should be in English alphabet only. [Quoted as written.]

2.National Rules

[245]“Guidelines for Canada” have also been adopted by all chapters in Canada. A version of those guidelines that was entered into evidence provides that:

1.All members must own a Harley-Davidson motorcycle.

2.All Charters are required to have a road date.

3.After road date, a member is allowed a 30 day break down period during the riding season.

4.A member may only have one patch. Riding suit for drag racers accepted.

5.Charters are required to have a minimum of six members. (On the street.)

6.Going from official hangaround to Prospect or Prospect to member requires 100 % of Charter membership.

7.There is one year probation on all new Charters or members.

8.New Charters or Prospect Charters in a Province require a Province vote only. New Charters or Prospect Charters in a new Province require a Canada vote.

9.Charter splits require approval of all Charters in the province or a 66% majority if deadlocked. (Per - one man one vote.)

10.86 rule.

11.All contact or use of heroin is strictly forbidden.

12.Use of needles for pleasure is strictly forbidden.

13.No dealings of any kind that will reflect badly on the club.

14.No rapes.

15.At club functions there is to be no shooting off of firearms or setting off of fireworks.

16.A member may get a Hells Angels tattoo after one year.

17.A member may get a Hells Angels full back patch tattoo after five years.

18.A member retired in bad standing or kicked out must get his Hells Angels tattoos covered or removed.

19.A member retired in good standing must get his Hells Angels tattoos dated out.

20.Any member, Prospect or hangaround who leaves the club and later wants to return to the club must go hack to his original Charter.

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21.New members cannot transfer from his original Charter until after his first year.

22.Membership transfers from one Charter to another must have the blessing of both Charters.

23.Members who come into existing Hells Angels Charters must wait until they are a member for one year before attending Officer Meetings, New Charters must have Officers at the meetings.

[Quoted as written.]

[246]An additional rule has been adopted by all of the chapters in Canada that mandates that no member may have a Death Head tattoo that is visible on their hands, neck, face or head until they have been a member of the Hells Angels for at least five years and that any such tattoo must be covered up when a member leaves the chapter whether voluntarily, or involuntarily by expulsion.

[247]In February 2018 the Canadian Guidelines were further amended to provide that members may not use or come into contact with fentanyl or carfentanyl. Concerning that rule Mr. Ciarniello testified:

AThere was a motion made to make the use of those two drugs absolutely illegal for any Hells Angel to have anything to do with, same as heroin.

QIs that a -- would that have been a motion for a Canada rule?

A Yes.

Q Has that issue been -- has it come to a resolution at this stage?

AYes. The reason is people are dying like flies from that stuff, and we were getting blamed for it. And you know, without -- I mean, it wasn't that we were doing it. It was just that we were getting blamed for it.

And we wanted to make sure that we didn't have anything to do with that stuff.

3.Regional Rules

[248]Mr. Ciarniello’s evidence establishes that the chapters in the Western

Canada region have adopted more specific rules that impose fines for the loss by members of sanctioned Hells Angels paraphernalia that only members are allowed to wear as well as a rule that any individual who wants to be on the program in a chapter must be known to at least one member of the charter for at least five years.

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F.The Director’s allegations concerning the use of profits from criminal activity by the Hells Angels and the purpose of “Defence Funds”

[249]One matter that requires specific consideration arising from the Hells Angels World Rules was the subject of interlocutory applications by the Director for document discovery and eventually resulted in orders for the disclosure and production by the defendants of the minutes of World, Canada and Western Canada meetings. It concerns the Director’s allegations about the existence and purpose of a Hells Angels’ “Defence Fund”.

[250]Those disclosure and production issues and resulting orders arose, at least in part, because of the reference to a “Defence Fund” in item 10 of the Organizational Rules of the Hells Angels World Rules as set out above.

[251]The Director’s submissions that gave rise to those disclosure orders included the assertion that a defence fund is maintained by the Hells Angels to enable its members to defend prosecutions brought against them for criminal acts performed for the benefit of the Hells Angels as a criminal organization.

[252]I am satisfied that, at least in part, those allegations emanated from such assertions in Mr. Isnor’s report to which I earlier referred.

[253]In that report Mr. Isnor stated that every member of the Hells Angels is required to pay a percentage of the gross profits of criminal activities to the Hells Angels.

[254]Proof of that assertion would constitute compelling circumstantial evidence that criminal offences are committed by individual members of the Hells Angels for the benefit of the chapter of which they are members or for the benefit of the organization as a whole, as well as evidentiary support for the Director’s allegations that the Hells Angels is at all levels a criminal organization.

[255]In the Expert Evidence Reasons I ruled upon the admissibility of the two reports authored by Mr. Isnor that the Director sought to have admitted as expert

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evidence. In doing so I considered not only the contents of both reports but also Mr. Isnor’s viva voce evidence adduced on the lengthy voir dire.

[256]To avoid the necessity of again adducing Mr. Isnor’s evidence at trial, all counsel agreed that, to the extent that I ruled Mr. Isnor’s reports to be admissible as expert evidence, these portions are admitted as evidence at trial. Counsel also agreed that, to the extent that Mr. Isnor’s viva voce evidence on the voir dire was consistent with my judgment and rulings, it is also admissible as if adduced as evidence in the trial.

[257]In the Expert Evidence Reasons at paras. 158 to 173 I addressed

Mr. Isnor’s assertion that every member of the Hells Angels who commits a criminal offence must give a percentage of the gross profits to the Hells Angels. I wrote:

[158]The one exception to my conclusion that issues of partiality should be addressed on an issue specific basis at the gatekeeping stage rather than at the threshold stage is Mr. Isnor’s statement at sub-section 11.3.15 of his initial opinion that:

An HA member must give the HA a percentage of his gross from criminal activities.

[159]That assertion is fundamental to Mr. Isnor’s opinion that the main purpose or one of the main purposes of the Hells Angels Motorcycle Club is the commission and facilitation of serious criminal offences.

[160]In its breadth that conclusion makes the whole of the organization rather than its individual chapters or its individual members active and knowing participants is that alleged main purpose. As such, it is also a foundational component of Mr. Isnor’s opinions concerning the role of the clubhouses as “essential elements” in the promotion, protection and facilitation of the organization [and its purposes].

[161]The only source cited by Mr. Isnor for what I will call his “taxing assertion” at sub-section 11.3.15 is a September 12, 2013 de-briefing of Robert Smith a Ventura Hells Angels member who was asked in that interview whether “a HA members (sic) has to contribute any of his profits from his illegal activities to the HA”.

[162]Mr. Isnor stated in a footnote that Mr. Smith had replied:

Yes, a member who is involved in illegal activity is supposed to “chip in” or “kick up” money to the club. The amount is never talked about. It’s not brought up like in an open forum. Members will make donations, like to the BHC [Big House Crew].” Members are supposed to “kick-up” as it’s the criminal activities that bring heat on the club.

[163]To the extent that Mr. Isnor relied on such hearsay evidence from an informant as support for the opinion stated in sub-section 11.3.15 I

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find that he materially and substantively overstated the content and import of the statement.

[164]More specifically:

1)The assertion by Mr. Isnor that a member of the organization “must give a percentage of his gross profits” from criminal activities mischaracterizes the statement of the informant he relied upon because the language used by the informant is that the member is

“supposed to chip in or kick up money to the club”;

2)The statement by the informant also does not state that a

“percentage of his gross from criminal activities must” be given to the club;

3)Mr. Isnor’s positive assertion that there is a percentage of gross from criminal activities that must be given to the club is undermined by the informant’s statements that “this is never talked about” and “its not brought up in open forum; and,

4)The assertion that a percentage of gross must be given to the club is further undermined by the informant’s statement that “members will make donations”.

[165]In addition to that misleading characterization of the statement by the informant, of even greater concern is the fact that in making that assertion Mr. Isnor did not identify a contradictory statement given by another informant, Mr. David Atwell.

[166]In an interview of Mr. Atwell at which Mr. Isnor was present on September 18, 2011 the interviewing officer asked Mr. Atwell about whether a portion of money from illegal activities ever made it “back to the club”.

After Mr. Atwell responded that his dues were paid form his criminal activity, the following exchange then occurred:

ATWELL: That – that amount of product but also ten percent of their profit. But John NEAL never worked in that way.

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[167]Mr. Isnor’s “taxing assertion” in sub-section 11.3.15, including his failure to reference the contradictory statement by Mr. Atwell, was the subject of extensive cross-examination.

[168]Most significant to the issues in this case arising from Mr. Isnor’s testimony during that cross-examination is the fact that the assertion in sub-section 11.13.15 was made in the context of a discussion of the characteristic of all Hells Angels Motorcycle Clubs chapters (and thus the Nanaimo, Kelowna and East End chapters whose clubhouses are at issue in these proceedings) and all of their members.

[169]The following excerpts from Mr. Isnor’s testimony are illustrative of the extent that Mr. Isnor was prepared to defend his opinions:

1)On the issue of the single source identified in support of the

“blanket” proposition advanced by Mr. Isnor:

Q … But right now I am saying to you that all you've provided to the court in support of that proposition is this one debriefing of this one member in California; right?

A In that specific, but as I say, there's -- at the beginning of my report, I say these are not limited to just these points. I have all kinds of them. I could give you all kinds of examples.

Q Now, but you know that that's, in fact, not a true statement across the board in all chapters of the Hells Angels, don't you?

A Yeah. To be fair on that, yes. As the Hells Angels have adjusted through the years, some chapters no longer do that, you're correct. But at one time, most of them did.

Q So to be fair, sir, to have been fair to this court, why wouldn't you have said that instead of what you said in 11.3.5.15?

A I think I make that statement clear on many areas in this report where I say that the Hells Angels have made adjustments as they go along, as they get disclosure from our investigations, that they have adjusted. And that's one of the adjustments that some chapters are doing.

[Transcript December 3, 2018 page 77]

2)On whether he was prepared to concede that his blanket assertion was “no longer true”:

Q Right. So you're prepared to concede to this court now that it's no longer true that an HA member in every chapter in the world must give the HA percentage of his gross from criminal activities?

A No.

Q You concede that now; right?

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ANo. All I can say is: My knowledge is that they give a percentage. I understand that it's a possibility that they've changed it, and they've done all those adjustments. But I have no evidence to tell you that they have changed that. So, in other words, is it a possibility that they've changed? It could be but the only evidence that I have, they still pay a percentage and it's usually 10 percent to the club.

[Transcript December 3, 2018 pages 77-78]

3)After counsel read Mr. Atwell’s statement to Mr. Isnor:

Q So, sir, isn't this pretty clear recitation of the bold presentation that you have at 11.3.5.15 that HA member must give the HA percentage of his gross from criminal activity when Mr. Atwell said that didn't happen in his club, it may have happened elsewhere?

A No, I don't think that's what it said.

Q Well, I just -- what did I miss?

A Well, he said -- he basically said -- he sort of beat around it. Like, it's an honour system. They're supposed to do it in regards to what percentage to do. Who knows what each member's making? Nobody knows specifically. So it's sort of an honour system.

He basically says that he was by kicking in on the parties and things like that, and he says that Juicy doing -- I'm sorry -- Juicy – Mark Bahman was doing it. So I don't think he comes out and says, no, like you say that.

I think he's saying, it was done, but on the honour system, I tried to stay away from doing it. But he kicked in --

Q Well, sir --

A-- but he says that he did kick in for tickets and things like that, so he did do it indirectly.

QWell, sir, in paragraph 11.3.5.15, you're not talking about, you know, being generous at the bar or the restaurant or whatnot. You say:

--must give the HA a percentage of his gross from criminal activities.

And he has categorically said that that's not the case for the chapter that he was involved in; right?

A And I disagree.

QWell, sir, then, what do you disagree with when Det. Wolfe is saying, look at, I'm trying to get a little more? He says:

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So let's -- like, you do a kilo deal and you profit at, let's say, 5,000, yourself personally.

Atwell:

Yes.

Wolfe:

Did any -- besides paying dues or anything, was there any part of that money that was given then to the club, saying that, hey, I've made some money over and above all my dues, that I'm giving you this as a tribute to the club or something along those lines?

He says no. What's equivocal or ambiguous about that in your mind?

AI think he says no. And then if you continue on into the question:

And that's where John Neal was smart. He never operated the club like that, and Doug Hoyle does.

And Doug Hoyle was the boss most of the time that he was there. John Neal was only a boss for a short period of time. You know, you will bring a kilo or a pound to the table and you divide it up, and then every member was obligated to sell bring back not only the money but the items -- so he doesn't say no, right out. He's basically going on by saying that, yeah, something does come back to the club.

QYou will agree that at least he's saying that when John Neal was there, they didn't do that; right?

AWell, it's a possibility. John Neal wasn't a president very long, and then Project Tandem comes down and - - or sorry -- Project Develop comes down and he goes to jail; so it's hard to say.

[Transcript December 3, 2018 pages 81 to 83]

4)On the issue of whether it would have been appropriate to include the Atwell statement in the footnote to the impugned blanket opinion:

Q And you don't think it would have been appropriate for you to -- in footnote 114, to reference the Atwell interview that you conducted, personally? You don't think that would have been a helpful thing for the court?

A I don't read that out of that, sir. I'm sorry, I don't.

Q You don't what?

A I don't read that in there. I'm still not convinced from that statement that a percentage is not coming from the Toronto chapter back to the club.

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QBut you see, my point is what your duty to the court is. Your duty to the court is to not cherry-pick. You understand that? Do you understand that concept? Not to cherry-pick the evidence that suits your theory? Do you understand that?

QWell, sir, what it means to me and what it means to this court is that you're required to disclose everything that you know that bears on the subject; the good, the bad, and the ugly, not just the parts that support your theory. Do you understand that?

AWell, I don't think that doesn't support my theory.

Q But do you understand that that's your duty?

AYes. If that did not support my duty, I would -- I'd do that. But I don't believe that that's what it does.

QSo you don't think that a direct question by a fellow police officer in an interview that you conducted in 2011 on the very question that is as addressed in 11.3.5.15 didn't deserve a footnote?

A No, sir it doesn't.

[Transcript December 3, 2018 pages 83 to 85]

[170]Mr. Isnor’s refusal to acknowledge the relevance of Mr. Atwell’s evidence and the extent to which it contradicted the assertions he drew from Mr. Smith’s statement gives rise to issues beyond his blanket assertion that every chapter and member of the Hells Angels Motorcycle

Club as a world wide criminal organization is required to “give a percentage of his gross from criminal activities” to the Hells Angels.

[171]His selectivity in choosing a source to support an opinion that he admitted was not factually correct when he was confronted with it (because of purported unspecified adjustments) and his prevarication on the issue in the face of directly contradictory evidence does not give me confidence in Mr. Isnor’s understanding of his duty to the court as an expert.

[172]His evidence on this issue also causes me grave concern about his willingness to discharge his duty fairly and impartially.

[173]I consider that even at the threshold stage Mr. Isnor’s selectivity and his evidence in defending [it] to be so untrustworthy this it is fatal to any acceptance of his assertion on the issue of the “taxing” of criminal activity and must be rejected.

[My emphasis.]

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[258]The Director did not adduce any evidence at trial to substantiate Mr. Isnor’s discredited “taxing” assertions.

[259]I find that the Director has not proven that a member of the Hells Angels must give a percentage of his “gross from criminal activities” either to his chapter or to the Hells Angels as an organization.

[260]Mr. Ciarniello was examined at some length on the purposes of various funds maintained by chapters of the Hells Angels as well as the purposes for which dues are paid.

[261]On the issue of the existence of a defence fund in British Columbia allegedly used to pay for the defence of Hells Angels members prosecuted for criminal activity, the totality of the evidence establishes to my satisfaction that:

1)Dues and fees are collected from members by chapters of the Hells Angels that are used for administrative and social purposes as well as to fund travel and other expenses associated with the attendance of chapter or regional representatives at regional, national and world meetings.

2)Many chapters or individual members of chapters solicit funds from their members or chapters in the region (and occasionally more globally) to assist in the defence of some member or members of their own chapter or other chapters who are being prosecuted for alleged criminal actions. Contribution is voluntary.

3)Some chapters or individual members also at times seek donations to assist the families of members who are either being prosecuted or are incarcerated. Contribution in such cases is also voluntary.

4)At times contributions for incarcerated members or their families are raised at social events dedicated to that purpose, from raffles of authorized Hells Angels paraphernalia to other members who are entitled to wear such items, and/or from the sale of authorized support

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wear to persons who support the Hells Angels but are not entitled to wear Hells Angels paraphernalia.

5)One specific defence fund (to which all members of each chapter in

Western Canada as well as some who are “on the program” are expected to contribute either by assessment or as part of their dues) exists in the Western Canada region. At least one other motorcycle club (The Devil’s Army) also contributes to that fund.

6)That defence fund is now called the Western Canada Freedom of Association Society (“WCFAS”) fund and was previously called the

“C-95 fund” because of opposition by the Hells Angels to the criminal organization provisions of Bill C-95.

7)Payments into the WCFAS fund come from not only the expected donations by members of the Western Canada chapters of the Hells Angels but can also come from fines levied against a chapter for missing a Western Canada meeting without an acceptable reason.

8)Unless there is specific approval by the custodians of the WCFAS fund (one of whom is Mr. Ciarniello), monies are not made available from that fund for the defence of a member of the Hells Angels alleged to have committed a criminal or other offence.

9)Monies from the WCFAS fund are only made available to defend those cases in which the Hells Angels member is, in the view of the custodians of the fund, being targeted or is at risk as a member of the Hells Angels rather than as an individual.

10)If a request for support from the fund is made Mr. Ciarniello will investigate “to make sure this is a club issue, not a member issue”.

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[262]Mr. Ciarniello gave the following as examples of the approved use of monies from the WCFAS defence fund:

1)A tax case in Federal Court in which he said the police were using the Canada Revenue Agency to gather information on Hells Angels members that the police could not get themselves.

2)A case in Winnipeg in which he believed the members of a chapter there were being discriminated against for wearing their patch in public.

3)A case in Saskatchewan where members were being kept out of restaurants and bars.

4)A case in Alberta, funded over Mr. Ciarniello’s objections (because he thought charges would be stayed as similar charges had previously been stayed), in which a member was charged with mischief for wearing his colours in a bar. The charge was stayed after a contribution to the member’s defence had been made from the fund.

5)A “clubhouse dispute like this one [referring to this litigation]” in

Manitoba.

6)A case concerning Manitoba legislation deeming the Hells Angels to be a criminal organization.

7)A case brought by Mr. Ciarniello as a plaintiff to determine whether the Ontario decision in R. v. Lindsay, [2005] O.J. No. 2870 (QL) that found the Hells Angels in Ontario to be a criminal organization would affect him as a Hells Angels member in British Columbia.

[263]Mr. Ciarniello also provided examples of requests for funding from the WCFAS fund that were made but not approved because he and the other custodians concluded that the matter involved a member issue rather than a club issue.

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[264]Those examples included:

1)The defence of a mischief charge that was not approved because it arose from personal poor judgment and behaviour of the member charged rather than because he was a Hells Angel.

2)The deportation of a member of the Hells Angels that was not approved because the deportation did not arise because he was a Hells Angel.

3)A case involving the dismissal of a deceased member’s wife from her employment in Alberta because her husband had been a member of the Hells Angels.

[265]I find that the Director has failed to prove that a defence fund is maintained by the Hells Angels for the purpose of defending members who have committed criminal offences. Although members in British Columbia contribute to the WCFAS fund, monies from the fund are only made available to defend members who, in the view of the custodians of the fund, are targeted or at risk because of their membership in the Hells Angels.

G.The membership structure of local chapters of the Hells Angels and the process of becoming or ceasing to be a member of the Hells Angels

[266]I have previously referred to the difference in the rights and obligations of those who are members of a chapter of the Hells Angels and those who are on the program with the goal of becoming members.

[267]Those differences as well as the existence of means by which a chapter may continue to exist notwithstanding changes in membership are relevant to the

Director’s allegation that the Clubhouses are likely to be used in the future as instruments of unlawful activity whether or not the present members of those chapters remain as members.

[268]That allegation posits that an organic and evolving membership of the Hells Angels exists with a continuing purpose of committing criminal offences for the

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benefit of the organization and will continue into the future and be enabled by the use of the Clubhouses.

[269]Being on the program consists of stages through which a prospective member must pass before he can be accepted for membership in a chapter as a Hells Angel. Progress through each of those stages is governed by chapter traditions but also by the World Rules as well as national, regional and specific chapter rules.

[270]Because there may be some minor differences in the process of becoming a member in different countries or provinces that are not relevant to the issues in this case I will address only the stages and processes of the three chapters whose Clubhouses are at issue.

[271]Before an individual who has expressed an interest in becoming a Hells Angel comes to be formally on the program he will generally be referred to as a “friend” or an “official friend”. Photographs of that individual will be taken and circulated to other charters to see if there are any concerns with the individual. That occurred in the case of Michael Plante when he became an official friend of the East End chapter.

[272]Mr. Plante eventually became a police agent and informant and testified against members of the East End chapter in criminal proceedings. He also testified in these proceedings.

[273]To reach the first formal stage of being on the program, the official friend must then be unanimously approved by the members of the chapter to become a

“hangaround”. As I have previously noted it is a Western Canada rule that before entering the program as a hangaround that person must have been known by at least one member of the chapter for at least five years.

[274]Before a person is approved to be on the program as a hangaround another photograph of him will be taken and circulated to other charters in the region to again determine if any member has a problem with the individual joining the program.

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[275]A hangaround can become a “prospect” in the second formal stage of the program if he has been a hangaround for at least one year and is accepted as a prospect by the unanimous vote of the members of the chapter.

[276]After a year a prospect can then become a member if he is approved by unanimous vote of the existing members of the chapter.

[277]After becoming a member of a chapter that new member has the right to full participation in all affairs of the charter and in the Hells Angels at all levels of the organization. He also has the right to wear the Hells Angels paraphernalia exclusively worn by members identifying their status as members. In addition, he has the right to obtain tattoos that identify him as a member of the Hells Angels.

[278]Once a Hells Angel becomes a member of a chapter he will retain his membership unless or until he chooses to retire or is expelled.

[279]A member who has chosen to retire is designated as having “left” meaning that the member left the club in good standing. The fact of his having left the chapter in good standing will be circulated to other chapters.

[280]A member who is expelled is said to be “out” so that other Hells Angels members will know that the member left the Hells Angels in bad standing. A member can only be expelled by unanimous vote of the remaining members of the chapter of which he was a member. A chapter which expels a member must, within one year, circulate a recent picture of the expelled member to all other chapters of the Hells Angels worldwide.

[281]An alternative short of the expulsion of a member entails putting that member’s status as a Hells Angel “in the box” so that the member’s status is suspended but not terminated. That may occur for whatever period of time the chapter unanimously agrees is appropriate for behavior that is considered to be detrimental to the chapter but not bad enough for expulsion.

[282]As I have previously noted, if a member is incarcerated, unless he is expelled from membership in the Hells Angels he will still be a member of his

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chapter but his obligations (for example, with respect to the payment of dues) will be suspended until he returns.

[283]The evidence establishes that it is unlikely that a member will be expelled for committing a crime unless that crime involves or includes actions by the member that the chapter unanimously considers to be a breach of the written or unwritten rules of the Hells Angels; is “conduct unbecoming a Hells Angel”; or, is otherwise considered to be contrary to the interests of the Hells Angels.

[284]Examples of the basis for such expulsions include trying to place blame on a fellow Hells Angels member rather than accepting personal responsibility as well as co-operating with prosecutors.

[285]If he has not been expelled from membership by his chapter, when a member is no longer incarcerated, he will return to full participation in his chapter’s affairs with all of the rights and obligations of membership as a Hells Angel.

H.Symbols and paraphernalia associated with the Hells Angels including their meaning, ownership and use in the context of the

Director’s allegations concerning the “power of the patch”

[286]The Hells Angels Motorcycle Corporation holds various Hells Angels trademarks that are vigorously protected. It also owns Hells Angels paraphernalia that members are allowed to use and must account for or return if they cease to be members of a chapter.

[287]Two trademarks owned by the Hells Angels Motorcycle Corporation are:

1)the Death Head logo, the stylized skull wearing an aviator’s hat which is the primary identifying symbol of the Hells Angels; and

2)the name “Hells Angels”.

[288]The Hells Angels Motorcycle Corporation licences its trademarks to each chapter by a written agreement as required by the World Rules.

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[289]Individual members of each chapter must also sign licensing agreements which provide that any trademarked items they are permitted to use belong to the Corporation, not the individual or the chapter to which they were licenced.

[290]The Hells Angels Motorcycle Corporation does not knowingly sell any of its items bearing its registered trademarks to the public. It also forbids any member of the Hells Angels from posting its trademarks on social media to prevent unauthorized copying.

[291]The many minutes of meetings at the regional, national and world level adduced in evidence are replete with concerns related to the unauthorized possession of trademarked items by those who are not Hells Angels members. Unauthorized possession may result in referral to the Corporation for legal action.

[292]The loss of any trademarked items by a Hells Angels member will also have serious consequences for that member who must take all necessary steps to regain its possession. I will later discuss an example of this when discussing the testimony of Mr. Plante.

[293]Symbols of the Hells Angels are used to identify not only membership in a specific chapter of the Hells Angels but also participation in the affairs of the chapter by those who are on the program at the hangaround and prospect stages.

[294]In British Columbia, a member’s patch or colours will consist of “flashers” or “rockers” comprised of:

1)On the front, a small “Hells Angels” flasher over the right breast and another small flasher with the name of the chapter to which the member belongs over the left breast, both in red lettering on white backgrounds; and

2)On the back, a large “Hells Angels” top rocker in a downward facing arc with a large Death Head flasher in the centre, a small “MC” flasher next to the Death Head flasher and a large “British Columbia” bottom

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rocker below, all of which are also in red lettering on white backgrounds.

[295]Individuals who are on the program wear a modified version of a member’s patch that corresponds to their status as hangarounds or prospects.

[296]Hangarounds wear only the chapter name on a front flasher and nothing on the back of their vest.

[297]Prospects wear the chapter’s name on a front flasher and an additional front flasher which states “Prospect” in white lettering on a red background but has no “Hells Angels” flasher. On the back there are only a British Columbia bottom rocker and an MC flasher. There is no “Hells Angels” top rocker and no Death Head flasher.

[298]The evidence establishes that when a former member retires or is expelled by his chapter, in addition to other trademarked items he has been entitled to possess, he must return his colours which the chapter destroys usually by burning them.

[299]The evidence also establishes that the Hells Angels as an organization are highly protective of not only their trademarked items and symbols but also of the composition of their colours. The colours worn by other motorcycle clubs are

“policed” by the Hells Angels to ensure they do not appear too similar to those of the

Hells Angels.

[300]Minutes of a regional meeting from March 2008 record consideration of possible configurations proposed by a start-up motorcycle club seeking approval from the Hells Angels for their intended colours to “prevent an altercation” or “head- butting” at some later date.

[301]The trademark protection of Hells Angels symbols extends not only to the vests or other items of clothing used by members to identify themselves as Hells Angels.

[302]Paraphernalia adorned with trademarked symbols cannot be sold to or worn by anyone who is not a member of the Hells Angels.

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[303]The use of tattoos, like the wearing of colours and other paraphernalia that bear Hells Angels trademarks, is similarly restricted to members of the Hells Angels.

[304]Former Nanaimo Clubhouse defendant Fred Widdifield intimated in examination for discovery that it would be foolish for a non-member to get a Hells Angels tattoo and the defendant John Bryce Sr., a member of the East End chapter, testified on discovery that if a non-member had obtained one he would be talked to and told to cover it up.

[305]Also, as I have previously noted, the Hells Angels’ Guidelines for Canada stipulate that when a member retires he must modify his tattoos by having them “dated” out to indicate when the former member left the Hells Angels. If a member is expelled he is required to have any Hells Angels tattoos removed or covered so they are no longer identifiable as Hells Angels tattoos.

[306]Many Hells Angels’ chapters also sell products known as “support wear” or “support gear” to non-members.

[307]Support wear is usually sold to: support the chapter’s operational financial needs; obtain funds for donation to members who may need financial support for their defence of criminal charges; support a member or members who are incarcerated; or support the families of incarcerated members.

[308]Support wear consists of items of clothing or other paraphernalia that is in some way associated to the Hells Angels as an organization but does not use any Hells Angels trademarked symbols.

[309]Although support wear cannot display trademarked symbols of the Hells Angels it can, for example, use the numbers “8” and “1” as a shorthand for the eighth and first letters of the alphabet which connote “HA”, or “red and white” being shorthand for the colour combinations used on Hells Angels patches. Use of such shorthand will usually be accompanied by phraseology indicating the wearer’s support of a specific chapter.

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[310]Support wear is often purchased by individuals who seek to eventually get on the program with a chapter because it reflects association with or support for that specific chapter of the Hells Angels.

I.The criminal history and activities of the Hells Angels including criminal convictions of Hells Angels members and associates in British Columbia

[311]The Director relies upon the criminal activity and many criminal convictions of members and associates of the Hells Angels for their commission of serious criminal offences in British Columbia and elsewhere as circumstantial evidence in support of an inference that the primary purpose of the Hells Angels is to enable and empower its members to engage in serious crime for financial gain.

[312]Based in large part upon that inference the Director asserts that since each chapter must have a clubhouse the further inference to be drawn is that the Clubhouses of which forfeiture is sought have in the past been used in the commission of or to facilitate that unlawful activity and will accordingly likely be similarly used in the future.

[313]In support of his submissions and the inferences he says should be drawn the Director adduced a substantial body of evidence that included:

1)Certificates of conviction by courts in British Columbia in relation to members or associates of the Nanaimo, East End and Kelowna chapters of the Hells Angels whose Clubhouses are in issue;

2)Mr. Isnor’s evidence to the extent that it is admissible;

3)The testimony of the informants David Atwell and Michael Plante; and

4)Transcripts of intercepted communications were obtained during investigations of those Hells Angels members and associates who were convicted of criminal offences together with the testimony of witnesses about the content of those intercepted communications.

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1.Certificates of conviction

[314]A certificate of conviction conclusively proves that the person convicted committed the offence for which he was charged. It establishes either that the Crown proved beyond a reasonable doubt each essential element of the offence for which the conviction was entered or that the accused admitted to having committed each of the essential elements of the offence charged.

[315]The following paragraphs record the evidence adduced by the Director concerning:

1)The number of individuals identified as being members or associates of each chapter of the Hells Angels whose Clubhouse is in issue with some overlap in the association of members to chapters because (as previously noted) the Kelowna chapter was formed by and from former members of the East End chapter;

2)The certificates of conviction that were entered in relation to those who were members of or associated with each chapter; and

3)In some cases, additional particulars concerning the crimes committed by those who were convicted.

The East End chapter convictions

[316]The Director has identified 25 individuals who have at various times been members of the East End chapter of the Hells Angels.

[317]As of the date of trial there were also two hangarounds and one prospect on the program with the East End chapter.

[318]Certificates of conviction have been entered in respect of crimes committed between November 1995 and October 2008 by eight individuals while they were either members or associates of the East End chapter.

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[319]More specifically:

1)The defendant Ronald Cameron, who became a member of the East

End chapter in July 1988 and is still a member, was convicted on April 10, 2010 of unlawfully possessing a controlled substance contrary to s. 4(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 [CDSA] on October 24, 2008.

2)The former defendant Jean Violette, who became a member of the East End chapter between April and May 2004 and is still a member was convicted on November 13, 2009 of:

a.Extorting Glen Louie in January 2005 contrary to s. 346(1.1)(b) of the Code; and

b.Possessing two loaded prohibited firearms together with readily accessible ammunition on July 15, 2005 without being the holder of an authorization or licence contrary to s. 95(1) of the Code.

3)John Punko, who became a member of the East End chapter in January 2004 and remained a member until at least 2014, was convicted on August 10, 2010 of:

a.Conspiracy to produce and traffic in methamphetamine between April 1, 2004 and June 3, 2005 contrary to s. 465(1)(c) of the Code;

b.Trafficking in cocaine on November 19, 2004 contrary to s. 5(1) of the CDSA; and

c.Possessing the proceeds of crime derived between April 1, 2004 and June 3, 2005 contrary to s. 354(1)(a) of the Code.

4)Ronaldo Lising, who was a member of the East End chapter from January 1998 to October of 2004 (when he then became a member of

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the Nomads (British Columbia) chapter of which he is still a member), was convicted on July 16, 2001 of the following offences committed while he was on the program with the East End chapter:

a.Conspiracy to traffic in cocaine between November 1, 1995 and April 30, 1997 contrary to s. 465(1)(c) of the Code;

b.Trafficking in cocaine between July 1, 1996 and April 30, 1997 contrary to s. 4 of the Narcotic Control Act, R.S.C. 1985, c. N-1;

c.Possessing the proceeds of crime (trafficking in cocaine) between July 1, 1996 and April 30, 1997 in excess of $1,000 contrary to s. 19.1 of the Narcotic Control Act;

d.Possessing cocaine in March 1997 contrary to s. 3 of the Narcotic Control Act; and

e.Possessing ecstasy in March 1997 contrary to s. 49 of the Food and Drug Act, R.S.C. 1985, c. F-27.

After he became a member of the East End chapter in 2001 Mr. Lising was convicted on July 3, 2007 of unlawfully possessing methamphetamine for the purpose of trafficking on September 7, 2004 contrary to s. 5(2) of the CDSA.

After he became a member of the Nomads (British Columbia) chapter of the Hells Angels Mr. Lising was convicted of the following offences committed by him while he was a member of that chapter:

a.on July 16, 2007 of an assault committed on May 15, 2005 contrary to s. 266 of the Code; and

b.on April 14, 2008 of criminal contempt of court arising from his refusal to testify against the former defendant David Giles and two others although duly subpoenaed.

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5)Francisco Pires was a member of the East End chapter from July 1997 to 2007 after which he became a member of the Nomads (British Columbia) chapter. While on the program for the East End chapter Mr. Pires was (along with Mr. Lising) convicted on July 16, 2001 of:

a.Conspiracy to traffic in cocaine between November 1, 1995 and April 30, 1997 contrary to s. 465(1)(c) of the Code;

b.Trafficking in cocaine between July 1, 1996 and April 30, 1997 contrary to s. 4 of the Narcotic Control Act; and

c.Possessing the proceeds of crime (trafficking in cocaine) between July 1, 1996 and April 30, 1997 in excess of $1,000 contrary to s. 19.1 of the Narcotic Control Act.

6)Randall Potts was a member of the East End chapter from October 2004 until he retired in early 2013. Before he became a member of the East End chapter Mr. Potts was convicted:

a.on June 28, 1997 of committing an assault contrary to s. 266 of the Code; and

b.on January 4, 1999 of possession of property in excess of $5,000 knowing it was obtained by commission of an offence contrary to s. 355(a) of the Code.

After he became a member of the East End chapter in October 2004 Mr. Potts was convicted:

a.on April 14, 2008 of criminal contempt of court for refusing to testify in the same proceedings against Mr. Giles in which Mr. Lising was also convicted of criminal contempt;

b.on July 29, 2009 of:

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(i)Making or possessing or having under his care or control between October 1, 2004 and April 1, 2005 an explosive substance intending to endanger life or cause serious damage to property or to enable another person to do so contrary to s. 81(1)(d) of the Code;

(ii)Possessing between October 1, 2004 and April 1, 2005 two loaded restricted firearms and one prohibited firearm with readily accessible ammunition without being a holder of licences or authorizations and registration certificates contrary to s. 95(1) of the Code;

(iii)Possessing six firearms between October 1, 2004 and April 1, 2005 knowing that he was not the holder of licences under which he could possess those six firearms and registration certificates for the firearms contrary to

s.92(1) of the Code;

(iv)Possessing five prohibited devices (one magazine and four suppressors) for five firearms between October 1, 2004 and April 1, 2005 knowing that he was not the holder of licences under which he could possess those devices contrary to s. 92(2) of the Code.

c. on January 14, 2011 of:

(i)Conspiracy to produce and traffic in methamphetamine between March 1, 2004 and June 3, 2005 contrary to

s.465(1)(c) of the Code;

(ii)Trafficking in cocaine on September 30, 2004 contrary to

s.5(1) of the CDSA;

(iii)Trafficking in cocaine on October 24, 2004 contrary to

s.5(1) of the CDSA; and

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(iv)Possessing the proceeds of crime (trafficking in controlled substances) between March 1, 2004 and June 3, 2005 contrary to s. 354(1)(a) of the Code.

7)Juel Stanton was a member of the East End chapter on September 12, 2002 when he was convicted of resisting or obstructing a police officer on August 19, 2001 contrary to s. 129(a) of the Code.

8)Jonathan Bryce Jr. is the son of East End chapter member Jonathan Bryce Sr. who is a defendant in this litigation. He is also the nephew of

aformer member, Louie Robinson, who retired in 2006 from the East End chapter after transferring into that chapter in 1984. Jonathan Bryce Jr. was on the program with the East End chapter from January 21, 2005 until he left the program in April 2013. He never became a member. On July 31, 2009 Jonathan Bryce Jr. was convicted of the following offences committed by him shortly before he joined the program as a hangaround:

a.Trafficking in cocaine on November 13, 2004 contrary to s. 5(1) of the CDSA;

b.Trafficking in cocaine on November 15, 2004 contrary to s. 5(1) of the CDSA;

c.Trafficking in cocaine on November 16, 2004 contrary to s. 5(1) of the CDSA;

d.Trafficking in cocaine on January 14, 2005 contrary to s. 5(1) of the CDSA; and

e.Possession of property or proceeds of property in excess of $5,000 in January 2005 knowing that all or part of the property was obtained or derived directly or indirectly from the commission of an indictable offence (trafficking) contrary to s. 354(1)(a) of the Code.

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[320]The Director has identified 14 individuals who have at various times been members of the Kelowna chapter of the Hells Angels or are now on the program with that chapter. Seven of those individuals are members who transferred from the East End chapter on June 13, 2007 when the Kelowna chapter received its charter.

[321]The Kelowna chapter presently has nine members, one of whose membership is “in the box” due to his drug addiction. As of the date of trial there were two hangarounds and one prospect on the program with the Kelowna chapter.

[322]Certificates of conviction have been entered in respect of offences committed by five individuals from July 2005 to August 2012 while they were members of either the East End or Kelowna chapters of the Hells Angels.

[323]More specifically:

1)David Giles was a member of a Nova Scotia chapter of the Hells Angels before he transferred to the East End chapter at some time between 1997 and 2000. He transferred to the Kelowna chapter when it was formed in 2007. Mr. Giles was convicted on March 31, 2007 of the following offences committed while a member of the Kelowna chapter:

a.Conspiracy to import cocaine between November 1, 2011 and August 26, 2012 contrary to s. 465(1)(c) of the Code;

b.Conspiracy to traffic in cocaine between November 1, 2011 and August 26, 2012 contrary to s. 465(1)(c) of the Code; and

c.Possessing cocaine for the purpose of trafficking on August 26, 2012 contrary to s. 5(2) of the CDSA.

Mr. Giles was a defendant in this litigation until he died on July 1, 2017 while incarcerated for his offending.

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2)The defendant Bryan Oldham became a member of the Vancouver chapter of the Hells Angels in 2004 before he became a member of the Kelowna chapter when it was formed in 2007. He is still a member of the Kelowna chapter. On April 13, 2007 Mr. Oldham, along with

Mr. Giles, was convicted of possessing cocaine on August 26, 2012 contrary to s. 5(2) of the CDSA.

3)The defendant Robert Thomas became a member of the East End chapter on May 17, 2005 and transferred to the Kelowna chapter when it was formed in 2007. While he was a member of the East End chapter he was convicted on October 18, 2006 of:

a.Possessing an unloaded prohibited or restricted firearm with readily accessible ammunition (in Kelowna) on July 15, 2005 without being the holder of authorizations and registration certificates contrary to s. 95(1) of the Code; and

b.Possession of stolen property valued under $5,000 (in Kelowna) on July 15, 2005 contrary to s. 355(b) of the Code.

Mr. Thomas also pleaded guilty on January 30, 2014 to the offence of manslaughter committed by him on June 12, 2011 contrary to s. 236 of the Code while he was a member of the Kelowna chapter. He was expelled from membership in the Hells Angels sometime prior to December 2014.

4)The defendant Norman Cocks became a member of the East End chapter in March 2007 and transferred to the Kelowna chapter on June 13, 2007. Mr. Cocks pleaded guilty on January 30, 2014 to the offence of manslaughter committed by him together with Mr. Thomas on June 12, 2011 contrary to s. 236 of the Code. He is still a member of the Kelowna chapter.

5)The defendant Bruce Skreptak became a member of the East End chapter in July 2004 and transferred to the Kelowna chapter when it

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was established on June 13, 2007. On June 18, 2013 Mr. Skreptak was convicted of aggravated assault contrary to s. 268 of the Code committed by him on November 1, 2010. On January 13, 2015 Mr. Skreptak was convicted of the following firearms and related offences committed by him on November 25, 2010:

a.Possession of an unloaded prohibited firearm (a 12- gauge pump action shotgun) together with readily available ammunition without being the holder of an authorization or a licence or a registration for the firearm contrary to s. 95(1) of the Code;

b.Possession of a loaded restricted firearm or an unloaded restricted firearm (a 9 mm pistol) together with readily available ammunition without being the holder of an authorization or a licence or a registration for the firearm contrary to s. 95(1) of the Code;

c.Possession of a loaded prohibited firearm or an unloaded prohibited firearm (a .38 special revolver) together with readily available ammunition without being the holder of an authorization or a licence or a registration for the firearm contrary to s. 95(1) of the Code;

d.Possession of a loaded restricted firearm or an unloaded restricted firearm (a semi automatic pistol) together with readily available ammunition without being the holder of an authorization or a licence or a registration for the firearm contrary to s. 95(1) of the Code;

e.Being an occupant of a motor vehicle in which he knew there were firearms without reasonable grounds to believe that any occupant of the vehicle was the holder of authorizations or

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licences under which that occupant could possess those firearms contrary to s. 94(1)(b)(ii) of the Code;

f.Possession of a prohibited device (a cartridge magazine with capacity of 17 cartridges) without being the holder of an authorization or a licence under which he may possess it contrary to s. 91(2) of the Code;

g.Being an occupant of a motor vehicle in which he knew there was a prohibited device (a cartridge magazine with capacity of 17 cartridges) without reasonable grounds to believe that any occupant of the vehicle was the holder of authorizations or licences under which that occupant could transport that prohibited weapon contrary to s. 94(1)(b)(ii) of the Code;

h.Possession of a firearm (a Glock 9 mm pistol) knowing that the serial number on it had been altered, defaced or removed contrary to s. 108(1)(b) of the Code; and

i.Carrying or having in his possession weapons (firearms, ammunition, bear spray, knives, a hockey stick and a baseball bat) for a purpose dangerous to the public peace or for the purpose of committing an offence contrary to s. 88(1) of the Code.

The Nanaimo chapter convictions

[324]The Director has identified sixteen individuals who have at various times been members of the Nanaimo chapter of the Hells Angels or are now prospective members.

[325]The Nanaimo chapter presently has fourteen members. As of the date of trial there was one hangaround and one prospect on the program with the Nanaimo chapter.

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[326]Certificates of conviction have been entered in respect of crimes committed by two individuals between February 1, 2010 and October 27, 2010 while they were members of the Nanaimo chapter of the Hells Angels.

[327]More specifically,

1)on December 16, 2014 Fred Widdifield, a former defendant who was a founding member of the Nanaimo chapter in 1983 and who remained a member until he retired in June 2014, was convicted of committing extortion between February 1, 2010 and October 27, 2010 contrary to s. 346(1.1)(b) of the Code; and

2)on May 20, 2014 Rajinder Sandhu, who became a member of the Nanaimo chapter on May 1, 2007 and was expelled as a member by December 2014, was (along with Mr. Widdifield) convicted of committing extortion between February 1, 2010 and October 27, 2010 contrary to s. 346(1.1)(b) of the Code.

[328]The offences committed by Mr. Widdifield and Mr. Sandhu for which certificates of conviction were entered into evidence were committed while the Nanaimo Clubhouse was in the possession of the Director.

2.Mr. Isnor’s evidence

[329]In reports that the Director sought to have adduced as expert evidence in support of his position that the Hells Angels is a criminal organization as defined by the Code, Mr. Isnor referred to instances of crimes he says were committed by members of the Hells Angels in many countries over a period of many years.

[330]For reasons expressed in detail in the Expert Evidence Reasons I have not accepted Mr. Isnor’s opinion. Among my reasons were my conclusions concerning Mr. Isnor’s bias in favor of the Director and against the defendants. I also found that much of the hearsay evidence the Director sought to adduce as proof of the facts stated by Mr. Isnor was not admissible for that purpose.

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[331]One aspect of the hearsay evidence contained in Mr. Isnor’s reports that I did admit as evidence upon which he based his opinions but not as proof of the hearsay facts stated concerned the results of police investigations in Canada he recorded in s. 16 of his opinion.

[332]I did so because although Mr. Isnor did not identify the source of all of the information detailing arrests made by the police, convictions of those who were investigated or the sentences received by those convicted, I was satisfied that much of the information, which is verifiable by public court records, was sufficiently reliable to be admissible as evidence upon which Mr. Isnor based his opinions but not admissible at trial as evidence of the truth of the facts upon which he relied.

[333]To the extent that Mr. Isnor reported on the criminal convictions of those members and associates of the East End, Kelowna and Nanaimo chapters for which certificates have been entered, his reference to those convictions was admitted both for that purpose and as truth of the facts stated.

[334]I have again considered the hearsay evidence relied upon by Mr. Isnor in

s. 16 of his opinion and have concluded that in addition to the convictions of British Columbia members and associates of the Hells Angels that can be admitted as proof of the truth of facts he stated, I can also safely admit as evidence at trial those convictions to which he referred involving members and associates of the Hells Angels in Ontario.

[335]I have reached that conclusion because Mr. Isnor was involved in some of the investigations as either an investigator or a supervisor and, as such, has either first hand knowledge of those investigations or at least verifiable institutional knowledge as a member of the Ontario Provincial Police. In those circumstances, the hearsay dangers inherent in such evidence are reduced to such an extent that I am satisfied that I can rely upon Mr. Isnor’s recording of convictions of Hells Angels members and associates in Ontario as if they had been adduced by way of certificates of conviction.

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[336]Where it is possible to do so I will refer to those convictions in relation to the name given to the Ontario Provincial Police investigation out of which they arose.

[337]The convictions of Hells Angels members and associates in Ontario that were referred to by Mr. Isnor that I accept as proven are:

1)In 2003 as a result of Project Overland, a member of the Thunder Bay chapter of the Hells Angels was convicted of: conspiracy to traffic in cocaine; participation in a criminal organization; and, possession of a prohibited weapon. A hangaround on the program with the Thunder Bay chapter pleaded guilty to: trafficking in cocaine; conspiracy to traffic in cocaine; participation in a criminal organization; and, proceeds of crime charges.

2)In 2003 after an unnamed police investigation, a member of the Keswick chapter was convicted of two counts of trafficking in a scheduled substance.

3)In 2003, as a result of Project Dante, two members of the Nomads (Ontario) chapter were convicted of conspiracy to traffic in a Schedule I substance and conspiracy to traffic in a Schedule II substance, and a member of the Simcoe County chapter was convicted of conspiracy to traffic in a Schedule I substance.

4)In 2004, as a result of an unnamed investigation, a member of the North Toronto chapter was convicted of participation in an attempted murder in a shooting that year.

5)After Project Husky that began in 2004, four members of the Thunder Bay chapter of the Hells Angels were eventually convicted of various offences. One member was convicted of: possession of a firearm knowing that its possession was unauthorized; possession of a prohibited or restricted firearm with ammunition; possession of a Schedule II substance; conspiracy to commit an indictable offence; and, possession of property obtained by crime under $5,000. A second

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member was convicted of: trafficking in a Schedule I substance; possession of a Schedule I substance; conspiracy to assault causing bodily harm; and, disobeying a court order. A third member was convicted of: possession of a Schedule I substance; conspiracy to assault causing bodily harm; possession of property obtained by crime under $5,000; and, disobeying a court order. The fourth member was convicted of: conspiracy to commit trafficking in a Schedule I substance; conspiracy to commit possession of a Schedule I substance for the purpose of trafficking; conspiracy to obstruct justice; and, disobeying a court order.

6)In 2005, as a result of Project Four, a member of the London chapter was convicted of conspiracy to traffic in a scheduled substance and possession of a scheduled substance for the purpose of trafficking.

7)In 2005, as a result of Project Tandem that included the use of a member of the Oshawa chapter as a police agent and in which Mr. Isnor was directly involved, two members and one prospect with the Niagara chapter were convicted of various trafficking, firearms, criminal organization and possession of property obtained by crime charges. Three members of the Simcoe County chapter were convicted of various trafficking, firearms, criminal organization and possession of property obtained by crime charges. One member of the East Toronto chapter was convicted of trafficking in a Schedule II substance. One member and one prospect of the Windsor chapter were convicted of trafficking in scheduled substances. Three members of the Oshawa chapter were convicted of trafficking in scheduled substances. One other member of the Oshawa chapter was convicted of trafficking in a Schedule II substance, possession of a prohibited or restricted firearm with ammunition and unauthorized possession of a prohibited device or ammunition.

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8)Also in 2005 arising out of Project Develop that included the use of David Atwell as a police agent and whose evidence was adduced by the Director in this trial:

a.ten members of the Downtown Toronto chapter were convicted of various trafficking and conspiracy to traffic in scheduled substances, possession of proceeds of crime, possession of property obtained by crime and firearms charges;

b.two members of the Simcoe County chapter were convicted of trafficking in scheduled substances, one member of the Simcoe county was convicted of intimidation, and three members were convicted of breaches of recognizance orders;

c.one member of the London chapter was convicted of: trafficking in a Schedule I substance; possession of a firearm knowing its possession was unauthorized; unauthorized possession of a prohibited device or ammunition; and, commission of an offence (trafficking) for a criminal organization;

d.one member of the Woodbridge chapter was convicted of trafficking in a Schedule I substance and commission of an offence (trafficking) for a criminal organization; and

e.one member of the Keswick chapter was convicted of trafficking in a Schedule I substance and possession of property obtained by crime over $5,000.

9)In 2007 following Project Beckingham, a member of the Nomads chapter was convicted of instructing the commission of an offence for a criminal organization and conspiracy to commit an indictable offence. A hangaround on the program with that chapter was convicted of instructing the commission of an offence for a criminal organization and conspiracy to commit an indictable offence as well as assault causing bodily harm.

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10)In 2009, as a result of Project Manchester, one member of the Hamilton chapter of the Hells Angels was convicted of: possession of a prohibited or restricted firearm with ammunition; trafficking in a Schedule I substance; and, possession of property obtained by crime under $5,000. A second member of the Hamilton chapter was convicted of: instructing the commission of an offence for a criminal organization; trafficking in a scheduled substance; and, possession of property obtained by crime under $5,000. A member of the Niagara chapter was convicted of trafficking in a scheduled substance and, possession of property obtained by crime under $5,000.

11)In 2011 following Project Longridge, a member of the Kitchener chapter of the Hells Angels was convicted of trafficking in narcotics.

3.Testimony of the informants David Atwell and Michael Plante

[338]The Director places much reliance upon the testimony of David Atwell and Michael Plante in support of his allegations that the Hells Angels is a worldwide criminal organization and that the Clubhouses have in the past been used and will also in the future likely be used as instruments of unlawful activity.

[339]Both witnesses were police agents who were paid to testify for the Crown in criminal proceedings brought against members and associates of the Hells Angels.

[340]David Atwell was paid more than $500,000 by the Ontario Provincial Police for his work as a police agent in the Project Develop investigation that began in 2005. Those funds included payment for his testimony against members and associates of several chapters in Ontario.

[341]Project Develop and Mr. Atwell’s testimony resulted in the conviction of ten members of the Downtown Toronto chapter of the Hells Angels, of which Mr. Atwell was a member, and also resulted in the conviction of members of other chapters of the Hells Angels.

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[342]The crimes in respect of which convictions were entered were primarily drug trafficking and proceeds of crime offences but also included some firearms offences.

[343]Mr. Atwell, who is in a witness protection program, was paid $75,000 by the Director for his testimony in this trial.

[344]Michael Plante was paid $1,000,000 by the RCMP to testify against members of the East End chapter of the Hells Angels in criminal proceedings arising from the Project E-Pandora investigation.

[345]Members and associates of the East End chapter who were convicted of offences as a consequence of that investigation and Mr. Plante’s testimony over many weeks of trial before a judge of this Court sitting with a jury included: John Punko, Randall Potts, Jonathan Bryce Jr., Jean Violette and Ronaldo Lising as particularized in certificates of conviction for offences committed in 2004 and 2005 referred to earlier.

[346]Mr. Plante, who is also in a witness protection program, was paid $87,340 by the Director for his testimony in this trial.

[347]The defendants submit that as paid witnesses as well as witnesses who have previously committed criminal acts (both in their roles as informants and police agents as well as before they became such), I should consider both Mr. Atwell and Mr. Plante to be “unsavoury witnesses” as described by the Supreme Court of Canada in R. v. Vetrovec, [1982] 1 S.C.R. 811 [Vetrovec].

[348]In making that submission the defendants rely upon the majority decision of the Supreme Court of Canada in R. v. Khela, 2009 SCC 4 about the concerns that arise when the possible conviction of an accused person rests upon the testimony of a single witness of doubtful credibility. In Khela, at para. 3 Fish J. wrote:

[3]It is therefore of the utmost importance, in a trial by judge and jury, for the jury to understand when and why it is unsafe to find an accused guilty on the unsupported evidence of witnesses who are “unsavoury”, “untrustworthy”, “unreliable”, or “tainted”. For present purposes, I use these terms interchangeably. And I mean to include all witnesses who, because of their amoral character, criminal lifestyle, past dishonesty or interest in the

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outcome of the trial, cannot be trusted to tell the truth — even when they have expressly undertaken by oath or affirmation to do so.

[349]Although Vetrovec and Khela were concerned with the testimony of witnesses of unsavoury character in criminal proceedings, similar concerns can arise in civil proceedings where the truth-seeking process can also be negatively impacted if evidence proffered by disreputable witnesses who may be motivated to prevaricate is not subjected to careful scrutiny.

[350]In Simon (Guardian ad Litem of) v. Portsmith, 2010 BCSC 134 at para. 58, Joyce J. wrote:

[58]… The applicability of the “Vetrovec” warning in non-criminal cases was discussed in Fetherston v. College of Veterinarians of Ontario, [1999] O.J. No. 370 (Ont. C.J.), a case concerning disciplinary proceedings before the Ontario College of Veterinarians at which evidence was given by an accomplice by the name of Terpevich. At para. 9, Campbell J. discussed the Vetrovec principle as follows:

…Having regard to the importance of Terpevich, a classic Vetrovec accomplice, it would have been better had the tribunal directed itself explicitly to the dangers of relying on his evidence in the absence of independent confirmatory evidence. R. v. Vetrovec (1982), 67 C.C.C.

(2d) 1 repeats a common sense principle of evidence, not confined to criminal law. It applies in this case where the evidence of the accomplice was so central to proof of guilt, where the accomplice was so unsavoury, had made an American plea bargain to deliver the appellant, and was during much of the material period high 95% of the time on either Oxycocet, heroin, or cocaine.

[351]I agree that the dangers of relying upon the uncorroborated evidence of unsavoury witnesses is a common sense principle not confined to criminal law.

[352]I am also satisfied that where a disreputable witness is paid to testify on behalf of a litigant – even if that payment is not dependent upon the outcome of the litigation – there are dangers inherent in the acceptance of purchased testimony without subjecting it to careful scrutiny.

[353]I say that notwithstanding the existence of contractual terms in a witness’s agreement to testify that he tell the truth. I view that as a form of oath helping that does not necessarily enhance the reliability of the testimony of that witness.

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[354]I similarly attach little or no weight on the fact that, as submitted by the Director, the testimony of Mr. Atwell and Mr. Plante may have played a part – significant though it may have been – in obtaining convictions of Hells Angels members as an indication that their evidence should be considered to be truthful and reliable.

[355]Those convictions were obtained as a consequence of not only informant testimony but also lengthy police investigations. The extent to which Mr. Atwell and Mr. Plante’s respective testimony was corroborated by other evidence that was accepted by the triers of fact in those cases cannot now be known.

[356]As stated by the Ontario Court of Appeal in R. v. Mallory, 2007 ONCA 46 at paras. 297 to 298, in discussing the evidence of an informant:

[297]In our view, the Crown should not have been permitted to elicit evidence that information supplied by Winn in other cases had resulted in convictions. These questions were not just intended to inform the jury about

Winn’s status as a jailhouse informant, nor could these questions be justified as merely “poorly worded” or an “error in style”, as argued by the

Crown on appeal. Rather, the effect of the questions and answers was to suggest that, since Winn’s information was credible, truthful and accepted in other cases, so it must be credible in this case.

[298]Whether a judge or jury in another case accepted Winn’s information

as credible was irrelevant to the credibility of his information in this case. It was inadmissible.

[My emphasis.]

[357]It is, however, important to note that notwithstanding the care which must be taken in approaching the evidence of both disreputable and paid witnesses, Khela establishes that the existence of corroborative evidence is not a pre-condition to the admissibility or acceptance of the evidence of such a witness in whole or in part. What is required is the consideration of the witnesses’ evidence in the context of the entirety of the evidence in the case – both confirmatory and non-confirmatory – bearing in mind the careful scrutiny with which it should be approached, especially on issues of central importance.

[358]In this case, that scrutiny is most important when considering the evidence of both Mr. Atwell and Mr. Plante that bears directly upon the Director’s allegations

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concerning the alleged role of clubhouses in the criminal activities of the Hells Angels.

[359]With those considerations in mind I will next discuss the evidence of David Atwell followed by a discussion of that of Michael Plante.

4.David Atwell

[360]David Atwell joined the Hells Angels in late 1999 or early 2000 when the Hells Angels expanded into Ontario. Prior to that he was a “striker” with the Para

Dice Riders, a motorcycle club which had its clubhouse at 498 Eastern Avenue in Toronto.

[361]Mr. Atwell described a striker as someone members of the club invite to join the club with a view to becoming a member after six months if he was accepted by all of the members.

[362]In the late 1980s Mr. Atwell had been involved in electronic surveillance work with a private company. He had also worked as a bouncer at a bar in Scarborough, Ontario where he became friendly with members of motorcycle clubs who frequented that bar.

[363]Mr. Atwell moved to Vancouver from 1989 to 1993, but then returned to Toronto and began to work for a security company. He then re-connected with some of his old motorcycle club acquaintances and would at times attend the Para Dice Riders’ clubhouse as a guest. At one time he also did a “sweep” of that clubhouse for electronic surveillance equipment.

[364]In 1999 Mr. Atwell bought a motorcycle and began going on rides with some members of the Para Dice Riders. That eventually led to an invitation to join the club as well as his acceptance as a striker which came with a key to the clubhouse. He described his role as a striker as being “to be at the beck and call of every member to do any tasks, menial or otherwise, for the member”. He testified that he was then working as a private investigator and did not want to be involved in criminality.

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[365]In his testimony in examination in chief Mr. Atwell said that “there was not a lot of overt criminality” with the Para Dice Riders and in other ways sought to distance the characteristics of that club from those of the Hells Angels. He also sought to downplay his own involvement in criminal activity before he became a member of the Hells Angels.

[366]In cross-examination, however, Mr. Atwell acknowledged that some of the members of the club with whom he was associating and who were also his sponsors were dealing drugs and that he himself was buying and using, but not selling, cocaine.

[367]Mr. Atwell did not progress to membership status with the Para Dice Riders after joining the club in 1999 because some of its members decided that they would patch over to become a chapter of the Hells Angels in Ontario.

[368]Concerning his decision to join the Hells Angels, Mr. Atwell testified that as a striker he was not involved in the decisions made by those members of the Para Dice Riders who decided to form a chapter of the Hells Angels.

[369]He testified that he was, however, given the option of either joining the Hells Angels as a prospect with the new Downtown Toronto chapter or remaining as a striker with those members of the Para Dice Riders who were not going to be part of the patch over.

[370]Mr. Atwell testified that he was concerned about becoming a Hells Angel and had a meeting or meetings with his sponsors at which he asked questions about the change. He testified that he asked whether, as a member of the Hells Angels, he would be required to give 10% of his earnings to the Hells Angels and whether, to become a member, he would be required to kill someone. He testified that the answer to both questions was “no” and that he was told that nothing would change but the patch on his back.

[371]Mr. Atwell testified that he ultimately decided to become a prospect with the Hells Angels because his friends in the Para Dice Riders were joining the Hells Angels and because he was told nothing would change.

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[372]Mr. Atwell testified that in December 1999 about 150 to 200 members of various Ontario motorcycle clubs that had decided to become Hells Angels travelled by bus to Sorel, Quebec where they were welcomed by Hells Angels members from chapters in Quebec, British Columbia, Winnipeg and Halifax.

[373]He testified that three weeks before going to Sorel all of the members of those Ontario clubs who were joining the Hells Angels had handed in their existing club identification crests and patches and wore no identification. They then returned from Quebec with Hells Angels’ crests on their backs.

[374]After joining the Hells Angels Downtown Toronto chapter as a prospect,

Mr. Atwell later became a member of that chapter in June or July 2000. He remained a member until April 4, 2007 when his role as a police agent came to an end with the arrest of many of his former confederates.

[375]After the Downtown Toronto chapter was formed those members of the Para Dice Riders who decided to join the Hells Angels purchased the former Para Dice Riders’ clubhouse from those members who had not become Hells Angels. That clubhouse then became the Downtown Toronto chapter’s clubhouse.

[376]Mr. Atwell described the exterior of the former Para Dice Riders’ clubhouse as follows:

A…It was a brick structure with a front door and a back door. The windows on the main level were bricked in. There was one window on the second floor that had a cage, like almost like a harder chicken wire, if you will, riveted to the frame.

There were five or six pillars approximately 30 feet from the clubhouse but not on the sidewalk that went about 2 metres into the ground. There was cement and rebar that had -- that had been installed. The doors, front and back, had -- they were metal. One had a peep-hole, the front door. The door dead bolts. It had one regular latch-type dead bolt and two keyed dead bolts that went quite far into a metal door frame.

There were cameras pointing down from above the front door with a monitor inside to see who was at the front door. There were cameras that were mounted on the neighbouring buildings to see -- so the field of view, Your Honour, was the front of the clubhouse from the

--sort of like curb appeal, sidewalk looking in. The back yard had cameras, and the back yard had a gate -- a motorized -- motorized

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sliding gate that was 12, 14 feet high. The fence was bylaw-compliant, 6 feet high on either side.

[377]He also testified about other measures that he said were designed to prevent police entry by use of a battering ram and cameras with feeds to interior monitors to record activity near the clubhouse.

[378]Under cross-examination Mr. Atwell acknowledged that the pillars as well as the other security measures he described had all been part of the clubhouse when it was owned and used by the Para Dice Riders and that any improvement to the surveillance cameras after it became a Hells Angels’ clubhouse came about because of changes in technology and had “nothing to do with the Hells Angels per se”. Mr. Atwell also acknowledged that the pillars were covered with vegetation and appeared as “flower pots”.

[379]In describing the interior of the clubhouse Mr. Atwell testified that it was a two-storey building that was formerly a garage. On the main floor was a common area with couches and a big table as well as a kitchen with a fridge, stove and dishwasher. It had a large screen TV on the wall and a landline telephone.

[380]He testified that the back of the main floor was for members only and consisted of two rooms, one of which was a bedroom and the other, an office. Both rooms were behind a heavy metal door. He also described a backyard, some of which was canopy-covered with a barbeque and some weights. He testified that the upstairs had a common area with couches and a pool table as well as a large custom-built table like a boardroom table with a Death Head insignia engraved into it, and a very large bar area. The upstairs also had a balcony and patio area with exterior stairs.

[381]Mr. Atwell testified that the walls were adorned with Hells Angels photographs, trophies, awards, plaques and pictures of the members of various chapters around the world sent by those chapters so “everyone knew who everyone was”.

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[382]Mr. Atwell also testified about the weekly chapter meetings for members only that he called “church” nights. He said:

QMr. Atwell, can you -- who was permitted to be present for those church meetings?

AOn church night, Your Honour, as Hells Angels we learned, or I learned -- we learned from other chapters across Canada in other areas and regions that a church night could be more than just a mandatory component of being a member of that organization where it's almost like a chore or an obligation; god, I've got to go to church again.

We had a dinner or a barbecue beforehand, or the members would eat and we would have a really nice meal where the prospects, hang-arounds. Thank God had a good mom and dad, I guess, and they taught them how to cook. We had some really good meals. Anyone could come to those. Friends of the club. Associates of the club. Especially in the summertime, Your Honour, we had a good presence, turnout. And it was paid for by the club; part of our dues.

During the meeting it's members only. So everyone would be asked to exit the clubhouse, and on a nice summer night you would spend it in the back yard area big enough for 50 people or so easy.

Picnic tables and so on. If it was a cold, dreary winter night, off they would go, and it wouldn't be a good turnout anyways.

Any electronic devices were removed from the members by the sergeant-at-arms or a more senior prospect, kept in a box. So whoever was closest to that box, Your Honour, sergeant-at-arms would call the meeting to order by escorting or encouraging, motivating non-members to leave. The clubhouse would then be pretty much comprised of hang-arounds, prospects and members.

During the last few years as a member, Your Honour, we allowed -- the club allowed hang-arounds and prospects to be in at the first part of the meeting. Do you have anything to report. Do you need anything from us. Is the fridge working. Do you need any -- need to call a plumber. Is everyone drinking the right amount of Miller Light. Do we need more Molsons. That sort of stuff. Very -- it would be housekeeping stuff.

Then they were asked to leave, prospects and hang-arounds, and then it was members only in the church meeting.

[383]Concerning the content of those weekly meetings Mr. Atwell testified in examination in chief as follows:

QAnd when you were present for those church meetings at the downtown Toronto chapter, what types of information would you have seen?

AChurch meetings consist of once everyone is fed and watered and we just have the members, it’s usually the vice president or the president,

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your Honour, who would chair the meeting, call the order, and the first item would be dues and attendance. The next item would be old business. It would be so and so got arrested. So and so is out on bail. Members of other chapters or my own chapter.

The parties, of course. This party is coming up and this party was a success. This party was a failure. Planning runs, Your Honour. We’re going to go to the east coast and everyone is going to chip in an extra $20 so we can get a nice hotel in Halifax or wherever we’re going to PEI.

And then it would be new business, which the secretary would read emails from other chapters and other regions updating on who has now been arrested and who isn't getting bail. Then it would usually go around the room, Your Honour, where the vice president would say, okay, we are going to go around the room -- everyone is in a semicircle, if you will, or a circle around the outside of the clubhouse walls, the perimeter walls on the inside there, and guys could say I haven't seen so and so around as a prospect, where has he been. And someone else would jump in.

Every member would get a turn saying their piece, and then the meeting was adjourned and we would plan our next church meeting where the president or whoever was chairing, Your Honour, would hold up a few fingers showing the next week's day. So five fingers would be Friday, four Thursday, three would be a Wednesday, two fingers Tuesday, and one finger of course would be a Monday.

[384]Mr. Atwell testified that he lost his job working in security and as a private investigator while he was still a Hells Angels prospect when his employer learned that he was with the Hells Angels. He said that a member of his chapter who had been one of his friends with the Para Dice Riders and whom he had followed to the Hells Angels then offered him two bars from which to sell cocaine. He testified that prior to that his criminal offending had been limited to a “couple of assaults, and some drug use”.

[385]Mr. Atwell’s testimony blaming his new association with the Hells Angels for the loss of his job is indicative of a pattern in his evidence in which he asserted differences between the Para Dice Riders and the Hells Angels concerning the criminality of each organization.

[386]My consideration of the whole of his evidence and most specifically the criminal activities of those former members of the Para Dice Riders who were his sponsors and friends with whom he joined the Hells Angels satisfies me that Mr. Atwell’s testimony about those differences suffers from reconstruction.

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[387]That reconstruction allows Mr. Atwell to attribute his own criminal activity to circumstances he could not control and the actions of others while downplaying or minimizing his own involvement in criminal activity over a period of many years.

[388]Mr. Atwell testified that he sold drugs from the two bars he was “given” by his benefactor until he was arrested in 2002 after selling a “pound of pot and 99 Percocet” to an undercover officer.

[389]He testified that before he was arrested in 2002 he had served as a road captain for his chapter in arranging rides and accommodations. He had also served as one of two secretary-treasurers responsible for collecting dues and later served as the chapter’s sergeant-at-arms, responsible for maintaining order at meetings and imposing fines where necessary as well as resolving disputes or disagreements amongst members.

[390]Mr. Atwell testified that he also helped a member of his chapter and one from another chapter set up a “friend club” called the “Redline” as a club where individuals who had “not met the mustard” of becoming a Hells Angel could go rather than to the “competition” meaning, in that context, the “Outlaws” motorcycle club.

[391]According to Mr. Atwell many members of various Hells Angels chapters, including his own, were arrested and convicted or pleaded guilty to drug trafficking charges arising from the police investigation in which he had been arrested, which he called “Project Shirley”.

[392]Concerning his own arrest, Mr. Atwell testified that the charges were eventually stayed. He testified that:

…My charges were stayed. I didn't get a chance to plea. I didn't get a chance to do time. I spent the weekend in jail and was released on bail. Court stipulation said I couldn't hang around with the club, club members, guys with criminal records. I couldn't drink in the bar. I would have to live at my father's house. …

[393]Mr. Atwell testified that when his “stipulations” were over he returned to his chapter. He did not testify as to why he returned to the club after his criminal charges were stayed.

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[394]When he returned to the Downtown Toronto chapter of the Hells Angels he was again elected to be its sergeant-at-arms.

[395]Mr. Atwell became an informant and eventually a police agent in 2005.

[396]Why Mr. Atwell became a police agent is not altogether clear. When he was approached by the police he was not at the time facing criminal charges or a long prison sentence. He testified that his life was “out of control” but also testified that he did not know what he would be getting into as an informant or police agent.

[397]Although Mr. Atwell acknowledged that he was eventually paid $450,000

“plus other weekly payments” for his work as an agent he also testified that he was not aware how much he would be paid when he agreed to become an informant.

[398]He also said “the figure was not instrumental or a deciding factor at all” and that when he learned what he would be paid he was “surprised at the amount” and thought “this is too good to be true”.

[399]I am satisfied that Mr. Atwell’s evidence as to why he became an informant was based on a reconstruction of his reasons for doing so to make his decision appear to be more altruistic and less self-serving than it was.

[400]I am also satisfied that, at least in part, that reconstruction and minimization of the role that substantial payments had in his decision was intended to promote belief in the honesty of his testimony in this litigation in which he again agreed to testify in return for the payment of money.

[401]I say that because in cross-examination on the issue of why he became an informant if it was indeed to “get out of the life”, Mr. Atwell agreed that he could have then left the club without any consequences by simply handing in his patch.

[402]Mr. Atwell testified in considerable detail as to what he was told to do by his police handlers after he became an agent. He identified those members whom he was told to target by selling drugs to them and testified about how and when he reported to the police.

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[403]The specifics of the many drug transactions instigated by Mr. Atwell on the instructions of the police are of little significance to the issues to be determined in this case.

[404]What is of significance is Mr. Atwell’s testimony concerning the extent to which his drug transactions initiated at the direction of the police involved the Downtown Toronto chapter clubhouse or other Hells Angels clubhouses in Ontario.

[405]Given the importance of that topic to the central issue in this case – the alleged role of the chapter clubhouse in the criminal activities of the Hells Angels – it is necessary to consider in some detail Mr. Atwell’s evidence on that issue in both direct and cross-examination.

[406]Before doing so it is also important to note that in cross-examination

Mr. Atwell was confronted by counsel for the defendants with the contents of a book, The Hard Way Out: My Life with the Hells Angels and Why I Turned Against Them (Harper Collins, 2017), which on the front cover states “written by Dave Atwell with Jerry Langdon”.

[407]Mr. Atwell was also confronted in cross-examination with evidence given by him at a preliminary inquiry in the matter of R. v. Bahman in June 2008.

[408]Mr. Atwell refused to acknowledge that he was the author of many

statements in The Hard Way Out. He testified that he had not written the book and had not read it “because it was a part of my life I left in the past”.

[409]He said that he and Mr. Langdon never met and that he answered questions that Mr. Langdon had asked him by electronic communications over a period of time. He said he did not keep those communications.

[410]Although the book was written in the first person Mr. Atwell testified that was only an artistic device used by Mr. Langdon, not a recording of Mr. Atwell’s own words.

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[411]Mr. Atwell testified that he had received one-half of a signing fee of $25,000 and-one half of two payments totalling $18,000 for the book. The other half of all payments was made to Mr. Langdon.

[412]Mr. Atwell refused to acknowledge many of the words attributed to him by Mr. Langdon and continually objected to counsel referring to the book as “your book”. He asserted that the words used in the book were not his words. He did so not only to challenge the veracity of statements made in the book, but also to deflect questions about his testimony in chief that was contradicted by some of the statements attributed to him in the book.

[413]Although many of those contradictions or apparent contradictions – such as why he became a police agent – are relevant only to Mr. Atwell’s credibility rather than to the substantive issues in this case, those that do concern substantive issues are important both to my assessment of Mr. Atwell’s credibility and to my determination of the Director’s allegations concerning the use of chapter clubhouses for criminal purposes.

[414]Before turning to the substantive contradictions in his testimony concerning the use of the Downtown Toronto chapter clubhouse in criminal activity I will first address the submissions made by the Director concerning the defendants’ use of not only The Hard Way Out as a means of impeaching Mr. Atwell’s credibility but also the use of the transcript of Mr. Atwell’s preliminary inquiry testimony.

[415]The Director submits that counsel for the defendants’ attempts to undermine Mr. Atwell’s credibility by reason of allegedly inconsistent prior statements must fail due to non-compliance with the provisions of ss. 13 and 14 of the Evidence Act, R.S.B.C. 1996, c. 124 because:

1)Mr. Atwell did not admit making the statements recorded in the book or in the transcript and the defendants have not proven that he did make these statements; and

2)The transcript was never put to Mr. Atwell.

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[416]The provisions of the Evidence Act relied upon by the Director state:

Cross examination of witnesses as to previous statements in writing

13 (1) Subject to subsection (2), a witness may be cross examined as to previous statements made by that witness in writing, or reduced into writing, relative to the subject matter of the proceedings, without the writing being shown to that witness.

(2)If it is intended to contradict the witness by the writing referred to in subsection (1), the attention of the witness must, before the contradictory proof can be given, be called to those parts of the writing that are to be used for contradicting the witness.

(3)At any time during the proceedings, the judge or person presiding over the proceedings may

(a)require the production of the writing referred to in this section for his or her inspection, and

(b)after that, make use of the writing for the proceedings as he or she thinks fit.

Proof of prior inconsistent statement made by witness

14 (1) Subject to subsection (2), if a witness, in cross examination as to a former statement made by the witness relative to the subject matter of the proceedings and inconsistent with the present testimony of the witness, does not distinctly admit to making the statement, proof may be given that the witness did in fact make that statement.

(2)Before giving the proof referred to in subsection (1),

(a)the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and

(b)the witness must be asked whether or not the witness made the statement.

[417]Concerning the transcript of the preliminary inquiry, the Director submits that although under s. 13(1) of the Evidence Act counsel for the defendants was permitted to cross-examine Mr. Atwell as to the substance of the preliminary inquiry without showing the transcript to Mr. Atwell, he could not “contradict the witness by the writing” before calling his attention to “those parts of the writing that are to be used for contradicting the witness” as required by s. 13(2).

[418]Although the parts of the transcript on which Mr. Atwell was cross-examined were not entered into evidence to prove that the statements were made, the statements in the transcript were quoted directly from it by counsel for the defendants without objection as to accuracy by counsel for the Director. I have no

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doubt that counsel for the defendants was accurate in his reading of the evidence from the preliminary inquiry.

[419]To put the Director’s submissions into perspective it is necessary to observe that Mr. Atwell testified by way of video from an unknown location.

[420]Although Mr. Atwell did not specifically recall testifying at the preliminary inquiry he did not disagree with having done so and further stated that he would have answered truthfully at the time.

[421]In addition, while Mr. Arvay did not always ask Mr. Atwell if he was asked the question and gave the answer, I am satisfied that in the context of the questioning, in light of Mr. Atwell’s responses to questions about his testimony at that inquiry, any failure by counsel to invoke a “were you asked that question and did you give that answer” mantra is insignificant.

[422]After considering the totality of Mr. Atwell’s cross-examination I am satisfied that the Director’s submissions related to any non-compliance with the provisions of the Evidence Act concerning the use of the preliminary inquiry transcript at most amount to minimal procedural irregularities that are not substantively meritorious.

[423]The Director’s submissions concerning cross-examination on the statements attributed to Mr. Atwell in The Hard Way Out are more substantive because

Mr. Atwell denied being the author of the book and the defendants did not call

Mr. Langdon to prove that the statements recorded by him were made by Mr. Atwell.

[424]That does not, however, preclude use of the statements in challenging or assessing Mr. Atwell’s credibility.

[425]To the extent that Mr. Atwell agreed with a statement in the book in whole or in part such adoption constitutes admissible evidence. There are also circumstantial indicia of trustworthiness in attributing some statements to Mr. Atwell notwithstanding his denials including, most importantly, his testimony that he answered all questions that were asked of him by Mr. Langdon honestly.

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[426]In that regard, Mr. Atwell testified:

QThe inside cover of the Book after the first page it says The Hard Way Out; correct? The second page again says the same title and identifies you as the author with Jerry Langton. Do you see that?

A I see the second page, yes.

QDo you take -- do you take issue with the publisher identifying you as the author?

A I don't take issue with anything in this book.

Q All right. Including that you've been identified as the author?

AI don't take issue with anything that could be in the book. It's based on questions that Jerry asked me over a period of time. I answered them honestly, and he did his research honestly from what he told me.

[My emphasis.]

[427]With those observations in mind I turn to my consideration of statements in the book and in the preliminary inquiry transcript that differ from Mr. Atwell’s testimony in this trial concerning the use of the Downtown Toronto clubhouse in criminal activity.

[428]Concerning how that clubhouse was used to arrange drug transactions Mr. Atwell testified in direct examination:

A… There were several times when a member would motion to their nose, point to their nose, meaning cocaine, write a number on a piece of paper, could be 35, could be 30, which would represent the price for that cocaine, which would usually be a kilo.

There were times that I would take that piece of paper, cross out the 35 and put a 10. They would cross that out and put a 20. There was times when individuals would put a 26 on a piece of paper and make the motion of an okay sign, almost like a joint, Your Honour. I don't presume anyone in the courthouse would know any of this, but this would be symbolizing a marijuana cigarette or a joint. 26 means 2,600 pounds.

That letter was burnt. There's a lot of covert conversations in the clubhouse that took place. I remember under the direction of the police asking Warren Campbell and Sean Robinson, two members, to arrange purchase of cocaine. That happened in the clubhouse…

[429]Later in his direct examination Mr. Atwell also testified:

QAnd while you were present at church meetings with the members of the downtown Toronto chapter of the Hells Angels at their clubhouse,

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what types of -- what modes of communication did you use for those church meetings?

AThe finger gestures. We would use a white marker board. At the beginning when I started hanging around the club as a striker it was a chalk board. Handwritten notes, Your Honour.

QAnd why were those different modes of communication used, Mr. Atwell? Why did you use those modes of communication?

AI personally used those modes of communication, Your Honour, because I didn't want what I was trying to communicate intercepted by the police.

QAnd earlier today you discussed writing down certain notes. Do you recall that, Mr. Atwell?

A Yes.

Q And what would you do with those notes after you wrote on them?

AThey were on smaller pieces of paper so it was easy to rip them up and to burn them in an ashtray, or go outside and throw it in the fire pit or the barbecue.

…

QAnd a few moments ago we discussed some of the notes you had written down and then ripped up and burnt. What had you written on those notes?

AAs a police agent I was instructed to buy cocaine from certain members. During our church meetings it's mandatory or preferred, unless you wanted to get a volley of fines for not showing up to these meetings. Everyone is there.

So the police had selected targets for me, if you will, or individuals to purchase cocaine from, or hash or marijuana. And it's a preferred method of communication. I don't verbally or through an audio, you know, so that it could be picked up on audio like a bug, ask for coke.

So I would write down on a piece of paper to individuals that were targeted to the police, Mark Bahman, Jacob Neal, Joseph Halak, Douglas Myles, David Blackwell. These individuals are members of the Hells Angels downtown Toronto that I was asked to -- by my police handlers to drug smuggle. So I would write it down on a piece of paper, one K, one key. Or I go like this, Your Honour, referring to starting a car or unlocking a key, a key, using a key, a key of cocaine. A key of this, point to my nose.

And those notes were ripped up and destroyed by either myself or the individual I was speaking to. And we would always arrange to meet somewhere else to speak freely, but it all started at the clubhouse.

[430]Mr. Atwell did not provide the times or dates of any specific drug transaction. For example, at one time in his testimony he stated “I know that the drugs that I

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purchased during Project Develop the mechanism of all those deals happened at the clubhouse”.

[431]Mr. Atwell’s reference to the use of hand signals and burning papers

concerning drug purchases was also not specific as to any particular transaction and did not identify the participants.

[432]Mr. Atwell did provide some particulars of a GHB transaction with a

Mr. Drecic that he said started with a discussion of the possibility of such a transaction at a party at the Woodbridge clubhouse and later led to more specific discussions that also occurred at that clubhouse. He also said that further discussions occurred at Mr. Drecic’s home and that the drugs were picked up in a parking lot in Mississauga after someone from Mr. Drecic’s end of the transaction met Mr. Atwell at the Downtown Toronto chapter clubhouse. Mr. Atwell could not recall in what year the transaction occurred.

[433]Mr. Atwell also testified that he had seen members doing cocaine in the clubhouse and that he himself had done cocaine there.

[434]In cross-examination on the use of the clubhouse generally and more specifically on the issue of the use of the clubhouse in criminal activities, the following exchange occurred:

QLet's talk about the clubhouse if we can, Mr. Atwell.

A Sure.

QSo I take it that the clubhouses, in addition to being used for the weekly meetings, was truly a place where members would come and socialize, watch hockey games, play poker, play pool, that kind of thing?

A Yes.

QRight. And it was also to some -- for some of the members a refuge of sort. If they were in trouble at home or with their wife, they had a place to go; right?

A Yes.

QIt was also for some members a place to maybe meet up with their girlfriends without their — wanting their wives to know, something like that?

A Could be.

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QAll right. And then in terms of the church meetings, if you want to call them that, as I understand what often happened was, first of all, there would be a nice dinner?

A Yes. Yes, there would.

QAnd you said that pagers and phones would be left outside the actual meeting room?

A Yes.

QThat was the standard practice?

A Yes.

QAll right. And then the meeting would start, and I think you might say it would be conducted the same as any other organization, be it the Boy Scouts or a corporation? Words to that effect?

A Yes. Yeah, very similar, yeah.

QRight. And then the secretary or the treasurer would collect the dues?

A Yes.

QRight. And there would be a discussion of old business and new business; right?

A Yes.

QAnd the topics tended to be on the pretty boring and trivial and benign side; is that fair to say?

AI can only speak to -- for myself, My Lord. Sometimes they were very trivial. Things that go on in Norway or wherever had no interest to us. No interest to me.

QAnd kind of the day-to-day stuff. A member would say I got a ticket one day. Another would say I met Banditos in a bar. Another would say my bike is in the shop. Another would say they had these planned rides. That sort of thing would happen at the meeting; right?

A Yes, that was some of the content for sure.

QBut what never happened at the meetings, because there was a strict rule about it, was that there was never any discussion of criminal activities discussed at the meetings. So let me do that again because that was a badly framed question.

There was no criminal activity ever discussed at a church meeting; isn't that true?

ANo, that's not true. You're right in your first part that there was a rule we shouldn't talk about it. But, you know, it would get -- criminal activity would get leaked in to a meeting. There were minutes taken at these meetings. I'm sorry, I don't have them in front of me. Everything you spoke of was spoken about at meetings and it was conducted similar to the Boy Scouts.

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[435]As indicated in that excerpt Mr. Atwell did not agree with the suggestion by counsel for the defendants that what never happened at those meetings was discussion about criminal activity because there was a strict rule against it.

[436]Counsel then confronted Mr. Atwell with the following passages from The Hard Way Out:

Q First full paragraph:

From Fish Joy, it was a short drive or ride west to the "office." Located at the corner of Kennedy Road and Shropshire Drive in the heart of Scarborough's Dorset Park neighbourhood, a bar called Country Bebop's was our meeting place.

…

We never did any business in the clubhouse, which was farther downtown, on Eastern Avenue, because we knew anybody could be listening there. And if the wrong people overheard the wrong thing, we could lose the clubhouse. Instead, we did it in a place we knew was ours alone.

[437]He was then asked whether the passages accurately reflected his views and the following exchange occurred:

Q Does this accurately describe your views?

AWell, the Fish Joy is a restaurant. Bishop’s is a bar.

Q All right.

A That's all I can say about that paragraph.

QWell, obviously I want you to say more about that paragraph. Are you disputing the accuracy of that paragraph?

AI think it's too vague. Who are "we"? Who are "they"? I don't know. I never read the book, My Lord.

Q Well, you're reading it now, sir.

AI'm reading a paragraph of the book. Q Right.

A Hardly content of a --

QAnd I'm asking you to -- I'm asking you about this paragraph. Is that paragraph accurate?

A Who are "they"? Who are "we"?

QWell, I don't know where the word "they" is. I'm looking for it. Is there a word "they" there that is confusing?

ANo, the word "we" is though. "We never did any business." Who is "we"? I didn't write this.

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QWe understand you didn't write it. The person who was writing it attributed the "we" to you and other members of the Hells Angels.

A How do you know --

QIs it correct that you and other members of the Hells Angels as long as you were there never did any business in the clubhouse?

ANo disrespect, My Lord, I can't answer to any of that. I don't know who "we" is. I know that the Fish Joy is a restaurant I attended. It had great food.

[438]That exchange illustrates the extent to which Mr. Atwell was prepared to go to distance himself from words attributed to him by Mr. Langdon that were inconsistent with his direct evidence.

[439]Mr. Atwell was next confronted with another passage from the book which

stated:

…So it was made clear us to us that the club was not to know about any illegal activities, the clubhouse was no place to commit crimes, and if you got caught doing something, it was your own thing, not the club’s.

[440]When asked whether that was correct, Mr. Atwell was again evasive in responding, which prompted the following exchange:

AIt was made clear to us that the club was not to know about illegal activities. I'm not wishy-washy, My Lord. I don't know. Can you ask me something a little more specific, Mr. Arvay.

QWell, Mr. Atwell, I'm trying to simply ask you whether the paragraph that I just read to you is accurate in the sense that you were told as a member of the Hells Angels that the clubhouse was no place to commit crimes. Is that fair?

AYes, yes, as when -- as we got to become more familiar with Hells Angels policies or rules or, the way of doing things, yes. And I can't remember if there was a member from Quebec told us, but it was discussed at a church meeting. And things like this, different rules would come along that aren't really the rules, the 23 rules or the 13 rules that I have seen, both of them.

Q But it's --

AThere was also a rule that you couldn't commit crimes with your Hells Angels crests or patches or rings on.

Q Right.

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[441]Mr. Atwell was then confronted with his testimony at the preliminary inquiry as follows:

QNow, in a church meeting, Mr. Atwell, have you ever experienced in a church meeting questions about criminal activity being presented on a chalkboard or piece of paper that is later burned or otherwise destroyed?

AThere were a lot of communications that went on on a piece of paper, not so much a chalkboard because it's hard to write and erase, but on a whiteboard and a piece of paper mostly, My Lord, yeah.

QSo the answer to that question is yes?

A Yes.

QSo, Mr. Atwell, do you remember testifying in a preliminary inquiry in the matter of Regina v. Bahman in June of 2008? Do you remember?

A No. No.

QIf I suggest to you that you attended as a witness in Toronto at a preliminary inquiry on June 24th, 2008, I take it you wouldn't disagree with me?

A No.

QI'm going to read you a question and answer you gave at that time. And the questioner was Mr. Irving. Do you remember Mr. Irving?

A No.

Q And Mr. Irving says this:

QIn a church meeting, have you ever experienced in a church meeting questions about criminal activity being presented on a chalkboard or a piece of paper that is later burned or otherwise destroyed?

A During a church meeting?

QYeah.

A No.

Do you recall that question?

A No, I don't.

Q Would you have answered that question truthfully at the time?

A Yes.

Q You were under oath at the time?

A Yes, I was, for sure, yeah.

QSo appreciate that what you said in 2008 was -- I take it your memory was much sharper and clearer than it is today?

A Of those events, yes.

Q You had extensive notes to assist you in your testimony at that time?

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A Yes.

QAll right. So would you accept, sir, that when you answered today the questions about criminal activity being presented on a chalkboard or, as you say, a piece of paper that is later burned and otherwise destroyed, your answer today was false?

AIf I may, Your Honour, the content -- the context of the question was different today as at a church meeting or during a church meeting. At a church meeting, every member is there during a church meeting when it's called to order. So I may have misunderstood the fine line between everyone is at a church meeting, Your Honour, and actually during a church meeting.

Q And what is the distinction you're drawing?

AWell, during a church meeting, it's called to order and everyone is sitting in the church meeting. After the church meeting, everyone is sill at the clubhouse but the meeting is no longer -- I guess lack of a better term, is adjourned.

QSo are you saying during the church meeting there would be no discussions about criminal activity, but after the church meeting there would be? Is that the distinction you're drawing?

AYes.

[442]I find Mr. Atwell’s attempt to draw a distinction between his testimony at trial and his sworn testimony at the preliminary inquiry to be at best evasive and at worst deceitful.

[443]After considering the totality of Mr. Atwell’s testimony in the context of the evidence as a whole I find his testimony concerning the criminal activity of those members and associates of the Hells Angels in Ontario in which he was directly involved as a police agent to be generally reliable and corroborated by Mr. Isnor’s recording of the many convictions that arose as a consequence of Project Develop to which I earlier referred.

[444]I also, however, find that Mr. Atwell’s evidence concerning the involvement of Hells Angels clubhouses in relation to criminal conduct to be exaggerated, lacking in specificity and unreliable.

[445]I find that although some members of the Hells Angels, including Mr. Atwell, may have engaged in the use of gestures and the writing of information on small pieces of paper that were later torn up or burned to initiate a transaction, their doing so in a clubhouse was known to be unacceptable. To that extent those engaged in

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the practice of such communication in a clubhouse did so for their personal profit and did so contrary to the rules of the Hells Angels. They did not do so for the benefit of or at the direction of their chapter or the Hells Angels as an organization.

[446]I also find that even if from time to time surreptitious communications concerning an illegal transaction were initiated inside a clubhouse they were then moved off-site to preclude detection by uninvolved members of the charter.

[447]That conclusion derives in part from Mr. Atwell’s testimony that:

AYeah, you do a walk and talk, I guess, My Lord. If you meet at the clubhouse with someone you're doing business with, you step outside the clubhouse sometimes. It's not a hard and fast rule. It depends who is around. If there is no one around, sure, you will have a meeting at the clubhouse. I've walked in on meetings myself. The clubhouse is there and these rules are there. If you don't get caught breaking the rules you can probably keep your membership.

Bebop's was a place that was a common place for certain Hells Angels members to hang out, but certain Hells Angels members wouldn't go near the place because of the surveillance that was on Bebop's.

QAnd if you do get caught breaking the rules you can lose your membership; right?

AYes.

[My emphasis]

5.Michael Plante

[448]Michael Plante, who was also called as a paid witness by the Director had, like Mr. Atwell, been an informant and a police agent. Mr. Plante testified for over four days at trial during which his testimony related primarily to the criminal activities of many former members and associates of the East End chapter of the Hells Angels.

Background to involvement with the East End chapter

[449]Michael Plante came to be an associate of the East End chapter of the Hells Angels through a relationship that he developed over time with Lloyd (Louie) Robinson, one of the founding members of that chapter who retired as a member in 2006.

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[450]Mr. Plante was working at a bar in Vancouver between 1987 and 1991 when he first saw Mr. Robinson. He knew at the time that Mr. Robinson was a member of the Hells Angels but he did not actually meet him until 1993.

[451]In 1993 Mr. Plante was introduced to Mr. Robinson by his friend Randall Potts. After being introduced to Mr. Robinson Mr. Plante did not, however, again see either Mr. Robinson or Mr. Potts until 2001.

[452]In late 2001 while Mr. Plante was working as a bouncer at the Marble Arch in downtown Vancouver Mr. Robinson and Mr. Potts came in. They talked and Mr. Plante and Mr. Potts exchanged phone numbers.

[453]Mr. Plante testified that the next day Mr. Potts called him and requested that he get some steroids for Mr. Robinson. Mr. Plante said that he did so and also said that four days later Mr. Robinson came into the Marble Arch where Mr. Plante injected him with testosterone. After that, for about two weeks, Mr. Plante worked out with Mr. Robinson at a local gym.

Involvement with Louie Robinson at the East End Clubhouse

[454]Eventually Mr. Robinson suggested that they should work out at the East End Clubhouse and they began to do so.

[455]Mr. Plante testified that over the next two or three months he worked out with Mr. Robinson at the East End Clubhouse every day and that for the four years after that they worked out there every Monday.

[456]Mr. Plante testified that his further involvement with Mr. Robinson included driving Mr. Robinson’s son to and from work and to the gym. He also testified that Mr. Robinson got him a job at the Cecil Hotel as a bouncer in a strip club. He said that in 2003 he drove Mr. Robinson’s son to a hotel in Penticton “to hide him out”.

[457]Later in his testimony Mr. Plante said that one time Mr. Robinson asked him to go to Montreal to get what Mr. Plante suggested were “alibi statements” signed in a matter involving Mr. Robinson’s son. Mr. Plante said that he did so. He said that

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when Mr. Robinson made that request he made it at the East End Clubhouse where he whispered it into his ear.

[458]Although he did not testify about the content of any other communications he had with Mr. Robinson, Mr. Plante said that Mr. Robinson would frequently make requests in writing on a piece of paper, that he would respond on the paper and Mr. Robinson would then have him burn the paper. He said that those communications also occurred at the East End Clubhouse.

[459]Mr. Plante also testified about an incident in 2002 involving an individual who was a prospect of the Nomads (British Columbia) chapter. He said he overheard that person in a bar comparing the East End program and the Nomads program in words that were derogatory of the East End program.

[460]Mr. Plante testified that he told Mr. Potts (who was then on the program with the East End chapter as an official friend) about the conversation and “the matter escalated”.

[461]Mr. Plante testified that when he told Mr. Robinson about the incident

Mr. Robinson told a prospect named Scott to “find out what happened and take care of it” while keeping Mr. Plante’s name out of it. He testified that the next night the prospect Scott showed up at the Cecil with the Nomads prospect he had overheard. Both were wearing their vests and looking for him. Mr. Plante left.

[462]Mr. Plante testified that while he was at the East End Clubhouse the next day Mr. Robinson asked him what had happened at the Cecil. Mr. Plante told Mr. Robinson that he thought he should not come around anymore.

[463]He testified that Mr. Robinson “freaked out”, screamed Scott’s name and told him to come downstairs. Mr. Plante then testified:

Q What happened then?

AHe went from the gym, he walked straight down through the bar. Scott was coming downstairs with a protein shake in his hand. Mr. Robinson yelled, I told you to keep his name out of it, and he slapped Scott out.

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[464]Mr. Plante testified that about three weeks later, he met with Caine Munoz (the person to whom the Nomads prospect had made the derogatory comment) at a restaurant who told him that the Nomads prospect was about to get his patch and that the matter had to be cleared up. Mr. Munoz then told Mr. Plante that he did not remember the derogatory comments being made. Mr. Plante responded that he had heard what was said.

[465]Mr. Plante again talked to Mr. Robinson about what had happened after which Mr. Robinson involved the defendant John Bryce Sr., the president of the East End chapter. After Mr. Plante repeated to Mr. Bryce Sr. what he had overheard he said he was told to have Mr. Munoz attend at the East End Clubhouse.

[466]When Mr. Munoz came to the Clubhouse he had a discussion with

Mr. Robinson, Mr. Bryce Sr. and David Giles, another member of the East End chapter, in the presence of Mr. Plante. Mr. Plante testified that Mr. Munoz told Mr. Giles that what he had heard was what Mr. Plante had stated.

[467]Mr. Plante testified that the next day a meeting, which Mr. Potts told him to attend, occurred at the East End Clubhouse involving members of the East End and Nomads chapters.

[468]Eventually all of the individuals who had been involved in the matter were separately brought into that meeting. Mr. Plante testified that when he told the group what he had heard he was confronted by a Nomads member with an unintelligible tape-recording of his discussions with Mr. Munoz at the restaurant.

[469]Mr. Plante testified that he then left the meeting and went to sit upstairs with the Nomads prospect whose conversation he had overheard. He said that

Mr. Munoz then went into the meeting.

[470]He testified that he overheard Mr. Munoz say that the Nomads prospect had not said what Mr. Plante had reported. He testified that Ronaldo Lising, who was then a member of the East End chapter, took Mr. Munoz to the door of the Clubhouse and told him never to come back and that “he should never lie to an East

End Hells Angel”.

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[471]Those events did not preclude Mr. Plante from continuing his involvement with the East End chapter.

Involvement with Randall Potts

[472]Mr. Plante testified about an event surrounding Mr. Potts being “punched out” and having his hangaround vest, Clubhouse keys and his truck stolen after a night of heavy drinking.

[473]Mr. Plante testified that when Mr. Potts came to the East End Clubhouse the next Monday with a black eye while Mr. Plante was working out with Mr. Robinson, Mr. Robinson told Mr. Plante to go upstairs and that he then heard Mr. Robinson yelling at Mr. Potts. He said he also heard a loud slap that he described as the same sound he had heard when Mr. Robinson had previously slapped the prospect Scott.

[474]Mr. Plante testified that after that a “special church meeting” was held which Mr. Potts had to attend. He testified that after the meeting was finished he heard Chico Pires take Mr. Potts into the back room and tell him “it’ll be fine just take care of it; get rid of him and it’ll be fine”. As I will later discuss, that hearsay evidence is only admissible to prove that it was overheard by Mr. Plante and to explain what then happened.

[475]Mr. Plante testified that Mr. Potts told him that he had been instructed to get rid of the person who had punched him out in order to get his flasher (vest) back. That hearsay evidence is again admissible only to prove it was said and to explain Mr. Plante’s next actions.

[476]Mr. Plante testified that Mr. Potts asked him to come with him to help to get his vest back and that he agreed to do so. He testified that he and Mr. Potts then stood outside the person’s home, both of them carrying firearms with silencers

“roughly every night for the next month in the intent of shooting him”.

[477]Mr. Plante further testified, however, that nothing happened; the person “just went away”. Mr. Plante then gave the weapon (a .45 handgun with a silencer) that he had been given by Mr. Potts back to him.

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[478]In addition to the two incidents about which he testified concerning

Mr. Robinson’s slapping Scott and Mr. Potts, Mr. Plante later testified that he also saw Mr. Robinson slap Kelly Schofield, a Hells Angels member, one night in the East End Clubhouse after an argument.

[479]Mr. Plante testified that during the time he was associating with him at the East End chapter Mr. Potts never had a job and never talked about work. He further testified about a time when Mr. Potts (who was then on the program), told him that if he was serious about being a “part of this” he should spend more time at the East

End Clubhouse because others viewed him only as Mr. Robinson’s friend.

[480]Mr. Plante testified that he subsequently began to spend more time at the East End Clubhouse. He also said that Mr. Potts told him to get a pager so that he could be contacted. Mr. Plante said that when Mr. Potts paged his telephone number to Mr. Plante it meant to call him and when he paged “55” for (East End) it meant to meet at the East End Clubhouse.

[481]Mr. Plante testified that when they met at the East End Clubhouse it was mostly to talk about “cooking and selling methamphetamine” but he gave no details about those discussions. He also stated that by the spring of 2003 he had thrown his pager away and upgraded to a phone.

[482]Mr. Plante testified that after he started coming around the East End Clubhouse more he started doing “security” at church meetings which involved standing on a balcony outside. He said he was told by Jean Violette, who was then a prospect, to “look for police and Bandidos”.

[483]Mr. Plante subsequently began to associate more with John Punko, who, like Mr. Violette, was at the time also a prospect on the program with the East End chapter. Mr. Plante testified that Mr. Violette did not have a job but that Mr. Punko was employed at the time.

[484]Mr. Plante further testified that he went on a number of organized motorcycle rides with the East End chapter. He testified that because he did not own

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or ride a motorcycle he drove a truck following the group in case anyone broke down or needed anything.

Becoming a police informant and agent

[485]In July 2003 Mr. Plante was arrested for his involvement in a collection in which the debtor was badly beaten by someone other than Mr. Plante. That crime is only relevant as background information concerning how and when Mr. Plante became a police informant and then a police agent.

[486]Mr. Plante testified that he was in jail for 11 days after his arrest and that while he was incarcerated he had a discussion with two RCMP officers.

[487]Concerning those discussions, Mr. Plante testified that he told the officers that he wanted to infiltrate the East End Hells Angels and was prepared to work with the police in doing so. He testified that the police then gave him a pager number to memorize.

[488]Mr. Plante testified that after he got out of jail he paged the police officers and they met in Queen’s Park in New Westminster. After that meeting and another one the next day it was agreed that he would work for the police as an informant for payment of $2,000 per month.

[489]After agreeing to be an informant Mr. Plante continued his relationships with Mr. Robinson and Mr. Potts and attended at the East End Clubhouse as he had done before being arrested.

[490]Not too long after he got out of jail Mr. Plante became involved with

Mr. Potts “for about three months” in the sale of methamphetamine to Sam Ayach who was an acquaintance of Mr. Plante. The methamphetamine was produced (or “cooked”) by “Skinny Curtis”, another individual Mr. Plante introduced to Mr. Potts.

[491]In late 2003 or early 2004, after he had been an informant for about six months Mr. Plante agreed to become a police agent.

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[492]When he became an agent Mr. Plante signed an agreement with the RCMP. In cross-examination Mr. Plante called that agreement an “LOA”.

[493]Mr. Plante testified that he was paid $2,000 per month for “maybe six months” and that the amount then went up to $4,000. In the three months before January 2005, the amount had risen to $10,000 per month. He did not declare income tax on those monies.

Involvement with John Punko

[494]Mr. Plante testified that on New Year’s Eve of 2003 he met Ryan Renaud, another methamphetamine “cook” whom he knew from a gym. Mr. Renaud told Mr. Plante he had been “ripped off” for $75,000 by “Fat Juan”, the supplier of a bad barrel of ephedrine.

[495]Although, as I have previously noted, Mr. Plante testified that Mr. Punko had a job while he was a prospect on the program with the East End chapter, Mr. Plante also testified that in the three months before Mr. Punko became a member of the chapter he was off work and on disability because of his addictions. He also testified that after Mr. Punko became a member of the East End chapter in 2004 he was never again employed.

[496]Mr. Plante testified that after Mr. Punko had become a member of the East End chapter he told Mr. Punko about Mr. Renaud’s loss with the bad barrel of ephedrine.

[497]He testified that after he told Mr. Punko about those events, a meeting, that was to include Mr. Plante, Mr. Punko, Mr. Renaud, Fat Juan and Fat Juan’s partner, was to be held in the food court in Metrotown Mall in Burnaby. Mr. Punko was, however, late in coming to the meeting.

[498]According to Mr. Plante the meeting did not go well. He said he saw about 20 members of the “South Slope Gang” (one of whom he recognized as a gang member he referred to as “Damion”) sitting nearby in the food court. He also said that Fat Juan and his partner stated that nothing was going to be done about the bad ephedrine.

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[499]Mr. Plante testified that when Mr. Punko arrived, Damion and other members of the South Slope Gang got up and left the food court area. He further testified that when they were all outside Mr. Punko asked what was going on.

Mr. Plante testified that Damion said “John if I had known it was you guys I wouldn’t have gotten involved”.

Limitations on the admissibility and use of hearsay evidence

[500]The hearsay statement attributed to Damion by Mr. Plante as well as the hearsay statements made by Mr. Renaud about the bad ephedrine that he related to a $75,000 purchase from Fat Juan require consideration of the principles engaged when out of court statements by a non-party are sought to be adduced in evidence.

[501]The same concerns arise with respect to other out of court statements attributed by Mr. Plante to members and associates of the Hells Angels who are not defendants in these proceedings.

[502]Fundamental concerns arise with the admissibility of such hearsay statements depending upon the purpose for which the party adducing the statement seeks to have it admitted.

[503]If the party seeks to have the statement admitted to prove the truth of its contents the hearsay statement is presumptively inadmissible.

[504]If, however, the party adducing the statement seeks to have it admitted for a purpose other than as proof of the truth of its contents it may be admissible for a limited non-hearsay purpose.

[505]Those distinctions are important in this case.

[506]That is so because the Director adduced many out of court statements that Mr. Plante said were made by members and associates of the East End chapter of the Hells Angels who are not parties to this litigation. In some cases those statements were audiotaped by Mr. Plante using a surreptitious recording device and were adduced in evidence during Mr. Plante’s lengthy testimony.

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[507]The existence of audiotaped evidence for the most part removes concerns that could otherwise arise related to the accuracy of Mr. Plante’s recollection of events that in most cases transpired more than 15 years ago.

[508]The existence of audiotaped evidence does not, however, remove concerns inherent in the fact that the audiotaped evidence still consists of out of court statements made by a non-party.

[509]As with out of court statements by non-parties that are not recorded, the issue that arises is whether the party adducing the evidence (in this case the Director) seeks to have the statement admitted for the inadmissible hearsay purpose of proving the truth of the contents of the statement or admitted for a limited permissible non-hearsay purpose.

[510]Those issues were the subject of many evidentiary rulings at trial, the results of which can be summarized as follows:

1)Statements attributed to non-parties (whether they are recorded or not) are not admissible to prove the truth of the content of those statements unless they are specifically admitted for that purpose as an exception to the rule against hearsay; and

2)Statements attributed to non-parties are admissible for the non- hearsay purpose of proving that they were said by the non-party and also, in some cases, to explain actions taken by the witness as a consequence of the statement made by the non-party.

[511]Those rulings govern the admissibility of all of the out of court statements of non-parties adduced by the Director through the testimony of Mr. Plante to which I have referred or to which I will in future refer unless I specifically state to the contrary in these reasons.

[512]Those rulings also govern the admissibility of out of court statements made by David Giles to undercover operators during the E-Predicate investigation that I will discuss later in these reasons. That is so because although Mr. Giles was a

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member of the Kelowna chapter of the Hells Angels when he made those statements and was once a party in this litigation he is now deceased so that out of court statements attributed to him are subject to the same considerations as those of other non-parties.

[513]Notwithstanding those rulings, due to submissions made by counsel for the Director in his final submissions, it is again necessary to address hearsay concerns as they relate to some rulings made during the trial.

[514]This is so because although the Director does not now seek to have specific out of court statements by non-parties admitted to prove their truth, he does submit that:

1)Some out of court statements attributed to Mr. Punko and Mr. Lising in their conversations with Mr. Plante as a potential recruit that I will later discuss are admissible and probative of “the nature of the Hells

Angels”; and

2)Some out of court statements attributed to Mr. Giles (as well as some attributed to Brian Oldham) are admissible and probative of “the way in which members of the Hells Angels can and do market their membership in the Hells Angels as a guarantee that they are reliable and sophisticated criminals who have access through their membership to a network of equally reliable partners (fellow members) and subordinates (persons on the program)”.

[515]I will consider those submissions in detail when the specific statements relied upon by the Director for those purposes arise for consideration and determination.

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[516]However, as to the hearsay evidence adduced by the Director though the testimony of Mr. Plante concerning the Metrotown Mall food court meeting, I find that:

1)The out of court statements made by Mr. Renaud to Mr. Plante about the bad ephedrine are not admissible as proof that the ephedrine was bad, that it was sold to Mr. Renaud by Fat Juan or that it had cost $75,000. Those statements are only admissible to explain the actions taken by Mr. Plante in involving Mr. Punko in the attempt to recover the loss from Fat Juan after hearing what Mr. Renaud had said.

2)The words “John if I had known it was you guys I wouldn’t have gotten involved” attributed by Mr. Plante to Damion are not admissible as evidence that the words spoken were true. They are, however, admissible for the non-hearsay purpose of proving that they were said in the circumstances when they were said.

3)Those words, together with the actions of Damion and the others in leaving the food court when Mr. Punko arrived, are admissible as circumstantial evidence tending to support an inference that as a Hells Angels member Mr. Punko commanded respect from a leader of another alleged criminal group.

[517]Mr. Plante testified that after the aborted meeting with Fat Juan he ultimately told Mr. Punko that more money could be made cooking methamphetamine with his friend Mr. Renaud than by collecting money from Fat Juan.

[518]To fund his share of the start-up costs for that new venture Mr. Plante testified that Mr. Punko told him to steal some methamphetamine and cocaine from Mr. Potts that he knew Mr. Plante was holding for Mr. Potts. Mr. Plante testified that he then stole a kilogram each of both methamphetamine and cocaine from Mr. Potts and sold it for Mr. Punko as instructed.

[519]Mr. Plante testified that Mr. Renaud then cooked methamphetamine for

Mr. Plante and Mr. Punko several times.

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[520]Mr. Plante further testified that after the first methamphetamine was cooked by Mr. Renaud he sold it to Mr. Ayach to distribute for Mr. Punko, Mr. Renaud and himself.

[521]He also, however, testified that after that first batch, because Mr. Ayach was still selling product produced by Skinny Curtis for Mr. Potts, Mr. Ayach could then only take one half of the product produced by Mr. Renaud.

[522]Consequently Mr. Renaud began to sell the product he produced directly to others on behalf of Mr. Punko, Mr. Plante and himself.

[523]Mr. Plante next testified that all of his sales of methamphetamine to

Mr. Ayach, both for Mr. Potts and also for himself and Mr. Punko, came to an end when Mr. Ayach was arrested for trafficking.

[524]He further testified that when that occurred he went to the courthouse to pay Mr. Ayach’s lawyer using money supplied to him by his police handlers.

[525]Mr. Plante testified that while doing so he met with an individual he referred to as “Ponytail Rick” whom he knew to be a methamphetamine cook and dealer. He said that Ponytail Rick told him he had some dynamite for sale.

[526]Mr. Plante testified that he told Mr. Punko about his conversation with Ponytail Rick and the dynamite. He surreptitiously recorded that conversation with Mr. Punko as requested by his handlers.

[527]The Director adduced the contents of that audiotaped conversation and others between Mr. Punko and Mr. Plante as well as conversations between

Mr. Plante and Mr. Lising. In final submissions the Director submitted that although those hearsay statements are not admissible to prove the truth of their contents they are admissible and probative of the “nature of the Hells Angels” because they were made to Mr. Plante as a potential recruit.

[528]Due to the compendious nature of those submissions and the volume of evidence put in issue by the Director in making that submission I will discuss the

Director’s “nature of the Hells Angels” submissions cumulatively and in detail later in

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these reasons after I have first recorded all of the out of court statements made by Mr. Punko and by Mr. Lising upon which the Director relies in making those submissions.

[529]Mr. Plante testified that when he told Mr. Punko about the dynamite, Mr. Punko appeared to express interest in it.

[530]The audiotape of the conversation records that after Mr. Plante asked “What would we use it for?” Mr. Punko’s responses included: “you never know… we’re in a bike club…we’re the Hells Angels …it’s a vicious bike club” and “Ride a bike, go to the cop shop…pull.”

[531]Mr. Plante testified that when he made the last comment Mr. Punko made a hissing sound like lighting a fuse.

[532]The audiotape also records that after Mr. Plante then asked “Where would we put it though?” Mr. Punko’s responses included the following statements: “I would put it. I don’t know just f…n hold it” and “It’s on a verge of war happening ya know? Borderline war happening right now.”

[533]Mr. Plante testified that no dynamite was ever purchased.

[534]The Director also adduced an audiotaped conversation, amongst Mr. Plante, Mr. Punko and Mr. Renaud which concerned upon Mr. Renaud’s knowledge of and dealings with the leader of the “UN Gang”.

[535]Like the aforementioned dynamite conversation the Director relies upon that conversation in support of his submissions that the out of court statements made by Mr. Punko in that tape are admissible as being probative of the “nature of the Hells Angels”.

[536]In that conversation about the UN Gang and rumours about a confrontation with the Mission chapter of the Hells Angels as well as conversation about the UN Gang’s relations with the Hells Angels generally, Mr. Punko is recorded as saying, amongst other things, that: “Those guys are clowns”; “Haney’s [referring to the Haney chapter of the Hells Angels] vicious”; “If they [referring to members of the UN

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Gang] are at Brandi’s they’re going to get pounded out”; “They know it’s the Hells Angels…in B.C.”; “There should be no other gangs popping up”; and, “What are you doing bringing a gang into our town.”

[537]The Director also adduced evidence of a conversation in May 2004 amongst Mr. Plante, Mr. Punko and others concerning money owed by a Mr. Gill. The conversation included a concern expressed by Mr. Punko that Mr. Gill had involved the police in the matter of monies owed by Mr. Gill.

[538]The audiotape of that conversation included a statement made at his home by Mr. Punko that the person to whom Mr. Gill owed the debt wanted Mr. Plante and another person to find out where Mr. Gill’s parents lived and “rip it apart” to show that “we’re not afraid of the cops” and to “back him right down”.

[539]Mr. Plante testified that he agreed to do that and that he did go to Mr. Gill’s parents’ house but did nothing to it.

[540]A certificate of conviction to which I earlier referred establishes that in 2016 Mr. Punko was convicted of counselling Mr. Plante to commit mischief in relation to Mr. Gill.

Involvement with Ronaldo Lising

[541]Mr. Plante testified about a $250,000 debt about which an acquaintance whom he had known for some years approached him about collecting. He said that occurred after Mr. Plante told his acquaintance that he was “going around the club”.

[542]Mr. Plante testified that he “took the collection to Mr. Punko” who then involved Ronaldo Lising in the collection of the $250,000 debt.

[543]Mr. Plante stated that after Mr. Punko involved Mr. Lising in the collection Mr. Plante went to Kelowna with Mr. Lising.

[544]Mr. Plante testified that the trip to Kelowna came about when he went to the East End Clubhouse one evening while Mr. Lising was working out with another member. He said that Mr. Lising told him he and Mr. Punko were going to Kelowna

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that night to get the money. However, when Mr. Punko did not then come to the Clubhouse Mr. Lising told Mr. Plante to come with him instead.

[545]The Director adduced voluminous audiotaped recordings of intercepted conversations between Mr. Plante and Mr. Lising that occurred during their drive to Kelowna.

[546]As with the recordings of Mr. Plante’s taped conversations with Mr. Punko, the intercepts consist of the out of court statements of a member of the Hells Angels who has never been a defendant in this case.

[547]Some of the statements that comprise part of that voluminous collection of intercepted communications are relied upon by the Director in support of his submissions that those out of court statements made by Mr. Lising are, like those made by Mr. Punko in the “dynamite” and “UN Gang” conversations, admissible as being probative of the nature of the Hells Angels because they were made to

Mr. Plante as a potential recruit.

[548]Due to the volume of the intercepted communications recorded on that trip to Kelowna and also to the fact that many statements were of little or no substantive relevance to the issues to be decided in this forfeiture litigation, I will only record the gist of those statements made by Mr. Lising upon which the Director relies in making his “nature of the Hells Angels” submissions.

[549]The statements made by Mr. Lising in the taped conversations upon which the Director relies relate to what the Director has grouped in his final submissions under the headings “glorification of violence” and “opportunities for the patch”.

[550]Under the heading “glorification of violence” the Director relies upon

Mr. Lising’s out of court recorded statements that:

1)He (Mr. Lising) liked Mr. Punko when he got drunk because then he and Mr. Lising would get into fights and Mr. Punko would “punch someone out”.

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2)A member of the Hells Angels had been kicked out because he had refused to fight a member who wanted to fight him, which Mr. Lising considered to be “dishonourable conduct” because “being a coward reflects badly on the club”.

3)One of the founding members of the Kelowna chapter, whom Mr. Lising considered to now be “washed up”, used to be a good member because he wanted to go to Europe to “punch out Bandidos” and also because he “got into a fight one day (with Bandidos) and punched them out”.

4)When he had heard that the Bandidos were going to open a chapter in Calgary and that some Hells Angels members wanted to talk about it, Mr. Lising instead favoured a hard approach. He is recorded as saying:

I ain’t got no time to be soft. Then people would be walkin’ all over me, you know. I wanna deal with the fifteen guys now, not a hundred and fifty later. You can’t deal with that later. The, fifteen guys no [f…] problem. Five of us beat them up. Five and, me and five of my friends will handle that. I can take that. A hundred and fifty, fifty guys, it’s a different story man. We’re gonna have to sit down and talk.

5)No one should sit down and talk to the UN gang and that: “they’re not welcome in this province”…“If you see them you’re going to take care of them” … “anyone who hangs out with them is gonna be treated in the same f…n way. Hells Angel or not. See who f…n stands up. They do we pound em”.

[551]In considering Mr. Lising’s statements upon which the Director relies under that heading, it is noteworthy that they were made at a time about six months before Mr. Lising, along with three of his fellow members, left the East End chapter of the Hells Angels to join the Nomads (British Columbia) chapter.

[552]I make that observation because it is obvious from Mr. Lising’s conversation with Mr. Plante that he had little respect for those members of the East End chapter who did not share his views. He spoke disparagingly about Mr. Punko (other than when he was drunk and liked to fight) and Mr. Potts (with both of whom Mr. Plante

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was engaged in drug dealing) as well as some former East End members who subsequently became founding members of the Kelowna chapter in 2007.

[553]Under the heading “opportunities of the patch” the Director relies upon

Mr. Lising’s recorded statements that: “The Hells Angels make money”… “patch only comes when you knock on someone’s door”.

Are statements made by John Punko and Ronaldo Lising to Michael Plante admissible as being probative of the “nature of the Hells Angels”?

[554]I will next address the substance of the argument that the statements by Mr. Punko and Mr. Lising to which I have referred are admissible as being probative of the “nature of the Hells Angels” because they were made to Mr. Plante as a potential recruit.

[555]I will do so by reference to the Director’s written submissions because of the emphasis placed by the Director on those arguments in both oral and written submissions.

[556]The Director prefaced his detailed submissions and analysis under the heading “Non-Hearsay Uses” with the following statement:

The Director relies on eight extracts of audio recordings from E-Pandora, two involving Mr Punko and six involving Mr Lising. The Director does not tender these statements to prove any assertions of fact that are express or implied in the statements. The Director tenders these statements as illustrations or examples of the manner in which two members of the East End spoke about the Hells Angels to a potential recruit.

Simply put, it is probative of the nature of the Hells Angels that Messrs Punko and Lising do not talk to Mr Plante about motorcycles. They do not tell him that joining the Hells Angels would afford him opportunities to ride and talk about motorcycles with fellow motorcycle enthusiasts. Rather, they tell him stories that glorify violence on the part of Hells Angels members, including violence against the Bandidos Motorcycle Club and the UN group. Mr Punko describes the Hells Angels as a "vicious bike club”. Mr Lising tells Mr Plante that membership in the Hells Angels would afford him opportunities to make money.

The Director does not tender these statements to prove any assertions of fact that are express or implied in the statements. The Director does not rely on any of these statements to prove, for example, the truth of Mr Punko’s express assertion that the Hells Angels is a “vicious bike club”. The Director also does not rely on any of these statements to prove, for

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example, the truth of Mr Punko’s implied assertion that the Hells Angels is a

“gang” (which is implied in his statement that “There should be no other ...

gangs poppin’ up around”). The statements are tendered for the limited and non-hearsay purpose of showing the manner in which two members of the East End Chapter spoke about the Hells Angels to a potential recruit, which is probative of the nature of the Hells Angels.

[My emphasis.]

[557]As to his more specific submissions concerning the audiotaped statements of Mr. Punko derived from the conversations about the dynamite, the Director submitted:

Again the Director does not tender this statement to prove the Hells Angels is in fact a vicious bike club, may want to use dynamite or may have been at war. The probative value of these statements lies in the mere fact that they were said by a member of the Hells Angels to a prospective recruit. This is the manner in which Mr Punko presented the Hells Angels to Mr Plante: not as a group of motorcycle aficionados but a vicious group that must be prepared to do violence to the police and others. This is the image a member sought to convey to a prospective recruit.

[My emphasis.]

[558]Concerning Mr. Punko’s statement about the UN Gang, the Director submitted:

Again, the Director does not tender this statement to prove the Haney chapter is in fact vicious, or the implied assertion (in Mr Punko’s reference to “other... gangs”) that the Hells Angels is a gang. The probative value of these statements lies in the mere fact that they were said by a member of the Hells Angels to a prospective recruit. Mr Punko was not telling Mr Plante about his love of motorcycles. Mr Punko was telling Mr Plante that the Hells Angels is a “gang” and arguing that it should be prepared to do violence to other “gangs”. It reveals something about the Hells Angels that this is Mr Punko’s ‘pitch’ to Mr Plante, even if the statements themselves are not admissible for the truth of their contents (i.e., as evidence that the Hells Angels is in fact a “gang”).

[My emphasis.]

[559]As to his more specific submissions concerning the comments made by Mr. Lising to Mr. Plante that he has characterized as “glorification of violence”, the Director submitted:

The Director does not tender these statements to prove that a member did in fact refuse to fight, Mr Punko did in fact have a tendency to fight after drinking or that a different member did in fact fight Bandidos. The probative value of these statements lies in the mere fact that they were said by a

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member of the Hells Angels to a prospective recruit. Mr Lising was not telling Mr Plante about how enthusiastic his fellow members were about motorcycles. He was telling Mr Plante about how violent they are, and suggesting they should be violent towards other groups.

[My emphasis.]

[560]Finally, in his submissions concerning comments made by Mr. Lising that he characterized as “opportunities of the patch”, the Director submitted:

The significance of this passage is in Mr Lising’s statement that membership in the Hells Angels affords “a lot of opportunity”. The Court should infer, given Mr Lising’s statement a moment earlier that the “Hells Angels make money”, that Mr Lising meant that membership in the Hells Angels affords a lot of opportunity to make money.

Again, the Director does not tender this statement to prove that membership in the Hells Angels does in fact afford opportunity to make money. The probative value lies in the fact that Mr Lising said this to Mr Plante. Mr Lising did not say that membership in the Hells Angels affords a lot of opportunity to ride and talk about motorcycles with like- minded men.

[My Emphasis.]

[561]In those submissions the Director repeatedly and correctly states that the out of court hearsay statements by Mr. Punko and Mr. Lising upon which he relies are not admissible to prove the truth of the content of any of those statements.

[562]The Director also correctly asserts that the statements upon which he relies are admissible for the non-hearsay purposes of establishing that they were said and that they were said in the context of discussions with a potential recruit.

[563]To that extent they are admissible to prove that what those two members of the East End chapter spoke about to Mr. Plante were potential acts of violence and the opportunity to make money as a member of the Hells Angels and did not include any mention of motorcycles.

[564]I do not, however, accept that the statements upon which the Director relies are also admissible as non-hearsay statements that are probative of the nature of the Hells Angels.

[565]When the Director says that the statements are admissible as probative of the nature of the Hells Angels he is in fact seeking to have the statements admitted

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for their truth. To acknowledge that Mr. Punko’s statement that the Hells Angels is a vicious bike club is not admissible to prove that fact and then say that the same statement is probative of the nature of the Hells Angels (as a vicious biker club) because it was said to Mr. Plante as a potential recruit is an argument based upon semantics rather than substance.

[566]I say that because to be probative of the nature of the Hells Angels as submitted by the Director, the content of the out of court statements would have to be admitted not simply as the declarants’ statements to a potential recruit but rather, for their truth.

[567]In the result, an out of court hearsay statement that the Director acknowledges cannot be admitted for its truth would be transformed into a non- hearsay statement admissible to prove that which the Director acknowledges cannot be proven by that hearsay evidence.

[568]I accordingly reject the Director’s submissions that the statements made by

Mr. Punko and Mr. Lising to Mr. Plante upon which the Director relies are admissible to prove the nature of the Hells Angels.

[569]I find that the statements relied upon by the Director are only admissible for the non-hearsay purpose of proving that they were said by Mr. Punko and Mr. Lising to a potential recruit in the circumstances in which they were said.

[570]They are only probative of how two members of one chapter presented their views of the Hells Angels to that potential recruit.

Further involvement with Messrs. Potts and Punko

[571]Mr. Plante testified that after the drive to Kelowna with Mr. Lising he continued to be involved in methamphetamine dealing with Mr. Potts and Mr. Punko.

[572]He reiterated that in his dealings with Mr. Potts he still used the telephone and usually discussed that methamphetamine dealing in the East End Clubhouse. He also said that “several times” he took proceeds from drug sales to Mr. Potts,

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which he handed to him at the East End Clubhouse. He did not, however, provide any details about any such occurrences.

[573]Mr. Plante also testified that unlike his criminal dealings with Mr. Potts his dealings with Mr. Punko were in person and “mostly” at Mr. Punko’s house, and that he never gave Mr. Punko the proceeds of any drug dealing at the East End Clubhouse. He did, however, also state that the “odd one was at the clubhouse”.

[574]Mr. Plante did not provide any details about any of those “odd ones…” other than with respect to one occasion on which he said Mr. Renaud had provided him a note with a breakdown of how he had split money up and that he handed that note to Mr. Punko at the East End Clubhouse and “explained to him what Mr. Renaud had told him”.

[575]Mr. Plante testified that Mr. Punko read the note in front of him and did not ask any questions but did say “good” and asked “we have it all?” Mr. Plante testified that he told Mr. Punko “yeah we have it all”.

[576]No audiotape evidence was adduced by the Director to corroborate any hearsay discussions between Mr. Plante and either Mr. Punko or Mr. Potts that Mr. Plante said occurred at the East End Clubhouse. That is so notwithstanding that the evidence establishes that on at least some occasions Mr. Plante wore a surreptitious recording device in the East End Clubhouse.

[577]Mr. Plante also testified that after the drive to Kelowna he eventually told Mr. Lising about his dealings in methamphetamine with Mr. Potts and Mr. Punko and that he subsequently sold Mr. Lising a kilogram of methamphetamine.

[578]Although Mr. Plante testified that he had discussions with Mr. Lising in the East End Clubhouse he did not testify that any such discussions were about anything illegal. He also testified that no discussion with Mr. Lising about his dealings with Mr. Potts and Mr. Punko took place in the East End Clubhouse.

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[579]A certificate of conviction to which I earlier referenced establishes that on July 3, 2007 Mr. Lising was convicted of possession of methamphetamine for the purpose of trafficking on September 7, 2004.

Becoming an “official friend” of the East End chapter

[580]Mr. Plante testified that in September 2004 (when he had been a police agent for about nine months) his status with the East End chapter changed when David Giles asked him to express his intentions to the members at a “church meeting”.

[581]He said that he then told the members that he wanted to be a part of the organization and that after the meeting his picture was taken and he became an

“official friend” of the East End chapter. He said he was not asked about motorcycles.

[582]Mr. Plante testified that as an official friend he was given a key; could then come and go at anytime; and, had “free rein” of the East End Clubhouse.

[583]He testified that his tasks as an official friend (shared at the time with two other new official friends, Norm Cocks and Jonathan Bryce Jr.), included: regular shifts at the East End Clubhouse; cleaning and stocking and making sure the Clubhouse was well looked after; shopping and making sure the bar was well stocked; doing security at “church” meetings; and, burning the shredded minutes of meetings in a barrel outside the Clubhouse.

[584]Mr. Plante also testified that all members of the East End chapter as well as those on the program were required to stay overnight in the East End Clubhouse on a set schedule and that, if called upon by a member, those who were on the program would have to do the shift for that member.

[585]He said he was instructed as to who could be let into the East End

Clubhouse (that being members and associates of the Hells Angels) and that when a person seeking entry buzzed an intercom on a front gate to the property he would let them in if they identified themselves as Hells Angels members or associates.

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[586]He also testified that shortly after he had become an official friend Mr. Potts was made a member of the East End chapter and that his dealings in methamphetamine with Mr. Potts continued.

[587]Mr. Plante testified that in about October 2004 after Mr. Potts had become a member he phoned Mr. Plante to tell him that Mr. Pott’s girlfriend’s home had been raided by the RCMP. He asked Mr. Plante to come to her home.

[588]Mr. Plante testified that when he arrived there Mr. Potts asked him to go to Mr. Pott’s parents’ house to retrieve a bag full of guns.

[589]When that conversation occurred Mr. Plante was wearing a surreptitious recording device.

[590]The Director adduced an audiotape of that conversation as well as a tape of a subsequent conversation amongst Mr. Plante and his RCMP handlers about what to do. The audiotaped conversations are only admissible as evidence that the words were spoken and what Mr. Plante did as a consequence of his discussions with Mr. Potts and his handlers.

[591]After discussing the issue with his handlers Mr. Plante purchased a hockey bag at a sports store. He testified that his handlers came by to see the empty bag in the back of his truck before he went to the mobile home where Mr. Potts’ mother lived.

[592]He testified that when he got there he told Mr. Potts’ stepfather that he was there to pick up the guns and was led by him to the back of the mobile home. He said that underneath the mobile home were a couple of bags with weapons (some of which were wet) inside. He said he put the bags in the hockey bag and put the hockey bag in his truck.

[593]Although he did not testify that the RCMP retrieved the bag the totality of the evidence establishes to my satisfaction that Mr. Plante did not do anything with the weapons other than retrieve them and put them in the hockey bag.

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[594]Mr. Plante identified the weapons that he put into the bag from police photographs that were entered into evidence. The weapons included: rifles, a machine gun with a silencer, a box of grenades that were wet and damp, as well as handguns. The handguns included the one Mr. Plante said had been given to him by Mr. Potts when he and Mr. Potts were attempting to retrieve Mr. Potts’ hangaround vest.

[595]Mr. Plante testified that after retrieving the guns he believed he told

Mr. Potts that he had hid them. The Director did not adduce any audiotape evidence of that conversation.

[596]Mr. Plante further testified that Mr. Potts never subsequently asked for the weapons. He did, however, testify that Mr. Punko once told him that he “wanted to try the grenades”. That unrecorded hearsay statement is only admissible as having been said by Mr. Punko and for no other purpose.

[597]A certificate of conviction to which I earlier referred establishes that

Mr. Potts was convicted between October 1, 2004 and April 1, 2005 of: making or possessing explosives; possessing prohibited or restricted firearms with readily accessible ammunition without being the holder of a registration certificate; possessing a firearm without a licence; and, possessing a prohibited weapon, restricted weapon, prohibited device or prohibited ammunition without a licence.

[598]Mr. Plante next testified about an incident that he said occurred at Brandi’s nightclub sometime after he had become an official friend of the East End chapter.

[599]He said that one Friday night while he was in the nightclub he was “punched out” by a member of the UN Gang. He said a fight ensued and that when the fight went outside he got “jumped again”.

[600]Mr. Plante also testified that Mr. Lising (who was then a member of the Nomads (British Columbia) chapter) was present when the fight started outside but went back into the nightclub.

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[601]Mr. Plante testified that he could not believe that Mr. Lising had “left me outside by myself”. He said he called his handlers but did not get a call from them. He testified that he decided he had “had enough”, turned his phone off, disappeared and went “MIA” for about two days during which he unacceptably missed a church meeting.

[602]Mr. Plante testified that when he turned his phone back on he had calls from the police and from all members of the East End chapter. He said that he first went to see the police and then decided to go back to being an agent. He said he next went to Mr. Punko’s residence. He said Mr. Punko was upset with him because he had disappeared without telling anyone.

[603]Mr. Plante testified that he then went to the East End Clubhouse on Monday morning and talked to Mr. Robinson and also later talked to the defendant Mitchell

Riley about what had happened. He testified that a “special church meeting” was held the following Thursday at which he was summoned inside and asked questions by the members about what had happened.

[604]He testified that after that meeting he met with Mr. Potts and Mr. Giles, who was then still an East End chapter member, who told Mr. Plante and Mr. Potts to “go find the gentleman who beat him up and take care of it”.

[605]That alleged out of court hearsay statement attributed to Mr. Giles is not admissible for any purpose other than that it was said when it was said. The Director did not, however, lead any evidence about what, if anything, Mr. Plante or Mr. Potts did after the meeting.

Involvement with Jonathan Bryce Jr.

[606]Mr. Plante next testified about his involvement in cocaine trafficking with Jonathan Bryce Jr.

[607]Mr. Plante testified that he had developed a friendship with Mr. Bryce Jr. when they were both on the program as official friends. Mr. Plante also testified that he eventually became involved in purchasing cocaine from Mr. Bryce Jr. when

Mr. Plante asked him if he could buy cocaine from him.

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[608]Mr. Plante testified that those initial discussions about purchasing cocaine occurred at the East End Clubhouse and that he subsequently bought two kilograms of cocaine from Mr. Bryce Jr. in two separate transactions.

[609]Mr. Plante said that in the first of those transactions Mr. Bryce Jr. brought the cocaine to the East End Clubhouse on a night when Mr. Plante was working and that when he gave Mr. Plante the cocaine Mr. Plante paid him for it inside the East End Clubhouse.

[610]Mr. Plante said that the second transaction occurred the next day in the same way with the exchange of drugs for money also taking place at the East End Clubhouse.

[611]No audiotaped recordings of those events which were initiated by Mr. Plante and which he said occurred in the East End Clubhouse were adduced by the Director.

[612]The Director did, however, adduce an audiotape of a surreptitiously recorded conversation in the East End Clubhouse between Mr. Plante and Mr. Potts that Mr. Plante testified occurred when Mr. Bryce Jr. brought cocaine to the Clubhouse and interrupted Mr. Potts and Mr. Plante while they were in the gym.

[613]The tape of that conversation records a discussion between Mr. Plante and Mr. Potts about the purchase price and sale price of cocaine which inferentially, at least, tends to corroborate Mr. Plante’s testimony that they were discussing cocaine delivered by Mr. Bryce Jr. to the East End Clubhouse.

[614]The tape does not, however, record any payment having then been made by Mr. Plante to Mr. Bryce Jr. in the East End Clubhouse in exchange for the kilogram of cocaine as Mr. Plante testified had occurred.

[615]A certificate of conviction which I earlier referenced establishes that

Mr. Bryce Jr. was convicted on April 10, 2007 of four counts of trafficking in cocaine in November 2004 and January 2005 and one count of possession of the proceeds of crime in January 2005.

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[616]Mr. Plante next testified about events that lead to Jean Violette being convicted of extortion.

[617]He testified that in the winter of 2004 Glen Louie, who was originally a friend of Mr. Bryce Jr., began to come around the East End Clubhouse and developed friendships with Mr. Punko and Mr. Violette.

[618]Mr. Plante testified that he received a telephone call from Mr. Violette asking him to come to the East End Clubhouse and that Mr. Violette told him that Mr. Louie had been going into residential areas, breaking into houses of cocaine dealers and saying he was with the East End Hells Angels.

[619]Mr. Plante also testified that Mr. Violette told him that “we have to take care of it…he’d already talked to John Bryce Sr. (the president of the chapter) and that was it”.

[620]Mr. Plante testified that he and Mr. Violette arranged to meet Mr. Louie on Burnaby Mountain and drove there with Mr. Bryce Jr.

[621]He next described an altercation in which Mr. Violette yelled at Mr. Louie and punched him. Mr. Plante testified that while he was pulling them apart Mr. Bryce Jr. was kicking Mr. Louie “but actually kicking me”. He said when it was over “we yelled at him and we left” and returned to the East End Clubhouse.

[622]Mr. Plante was wearing a surreptitious recording device during the assault on Mr. Louie. The audiotape recording adduced by the Director largely verified Mr. Plante’s account of the assault and also Mr. Plante’s testimony that Mr. Louie had not been wearing a “support East End” belt buckle that they were looking for.

[623]Mr. Plante testified that he quit the program when, in January 2005 shortly after the incident with Mr. Louie, Mr. Bryce Jr. was made a hangaround at a chapter meeting and Mr. Plante, who believed he would also be elevated to that status that same night, was not admitted as a hangaround.

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[624]Mr. Plante testified that he was “pretty burned out. I had enough” and told his handlers he was quitting.

[625]Mr. Plante testified that after that he never went back to the East End Clubhouse.

[626]By that time he had been paid about $200,000 for his role as a police agent.

[627]Mr. Plante subsequently testified against many of the members and associates of the East End chapter of the Hells Angels in criminal trials over a number of years.

Cross-examination of Michael Plante

[628]In cross-examination Mr. Plante testified that he was paid $500,000 for his testimony in the criminal proceedings against the East End Hells Angels in August 2005 and was paid $500,000 in 2012 after all matters arising from his role as an agent had concluded.

[629]Mr. Plante did not pay tax on any of those monies. He also admitted that as an agent he deliberately determined to betray people who were genuinely his friends in return for payment and that he had become a good liar.

[630]In cross-examination Mr. Plante also testified that:

1)He supplied Percocets to Mr. Potts and Mr. Punko both of whom were very addicted to them, and the police encouraged him to do so.

2)Mr. Punko and Mr. Potts did not get along well. They kept secrets from one another because they “each wanted to do their own thing”.

3)There were deceptive dealings between Mr. Punko and Mr. Potts including the theft of the cocaine by Mr. Plante from Mr. Potts for Mr. Punko to start the methamphetamine cook.

4)The RCMP gave him $26,000 to pay Mr. Potts back for the stolen cocaine because Mr. Punko “left me hanging”.

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5)In addition to Mr. Punko and Mr. Potts other guys in the East End chapter did not get along – they were just like any group of people in that way.

6)Mr. Punko spent a lot of time at his home and was unreliable after he became a member.

7)The listening device given to him by the police was not always on when it was with him.

[631]Concerning the wearing of a listening device in the East End Clubhouse, Mr. Plante testified:

QWhen you were in the East End clubhouse and while you were an agent did you ever wear the device and have it on?

A Yes.

Q But not always; right?

ANo, because on the LOA there were targets. Q M'mm-hmm.

ASo in the beginning it was pretty limited to just those targets. I believe maybe there was four names on the LOA. And then as we continued on they just wrote everybody in.

Q Right.

ASo in the beginning yes, okay, I would say yeah, so and so is here, okay, turn it on, and if someone else came in that wasn't there I would get direction to turn it off. But then near the end, end of 2004, 2005, it was on all the time.

[632]He also testified that the police encouraged him to be a criminal and paid him to be a criminal and never prosecuted him for being a criminal.

[633]The defendants did not cross-examine Mr. Plante on the substance of any of the offences about which he testified or his interaction with the members and associates of the Hells Angels about which he testified.

[634]Mr. DelBigio did, however, challenge the veracity of Mr. Plante’s testimony by confronting him with his:

1)Betrayal of his friends for money;

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2)Continuation of that betrayal in these proceedings for more money;

3)Admission that as an agent he had to be a good liar; and

4)Acknowledgment that where there are no recordings of his interactions with those against whom he testified there is only his word about events he said occurred and about when and where such events occurred.

[635]Mr. Plante was a polite and for the most part responsive witness. Although early in his direct examination he had a tendency to volunteer potentially prejudicial information about the Hells Angels that was not directly sought by counsel for the Director, he ceased doing so when told to answer only the questions asked. Unlike Mr. Atwell, Mr. Plante was also forthright in responding to questions on cross- examination.

[636]After considering the totality of Mr. Plante’s evidence in the context of not only his direct and cross-examination but also of the evidence as a whole, I have concluded that although he testified about events that occurred at least 14 years ago his testimony in relation to significant substantive events can be considered to be reliable when the audiotape evidence adduced offers independent contemporaneous confirmation of his testimony.

[637]I am less convinced of the reliability of Mr. Plante’s evidence about the frequency and extent to which he says discussions occurred in the East End Clubhouse relating to the illegal activities in which he engaged with Mr. Potts as well as “on occasion” with Mr. Punko or that they occurred there at all with Mr. Lising.

[638]It is at best surprising, given that Mr. Plante was the instigator of that illegal activity at the behest of the police and wore a listening device in the

East End Clubhouse, that he did not record any of those discussions about which he provided little or no detail in his testimony.

[639]Also, although he did record the discussions with Mr. Potts in the gym that he stated occurred after Mr. Bryce Jr. had delivered the cocaine to the East End

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Clubhouse, Mr. Plante’s testimony that he paid for the cocaine in the East End Clubhouse when it was delivered is not confirmed by that recording other than by inference. That is surprising given the fact that he was obviously wearing a surreptitious recording device when he said that the cocaine was delivered at the East End Clubhouse and that money was exchanged for it there.

[640]I am accordingly satisfied that due to:

1)Mr. Plante’s interest in this litigation and the previous criminal litigation as a paid witness;

2)The fact that the East End Clubhouse was not the subject of the police investigation into the illegal activities of the Hells Angels in which

Mr. Plante was involved as an agent in 2003, 2004 and early 2005 so that the location where unlawful activity of the targets occurred was at that time of far less interest to both the police and Mr. Plante than is now the case;

3)The time that has elapsed since those events about which he testified involving the use of the East End Clubhouse and the dearth of confirmatory evidence in circumstances where, as an agent, Mr. Plante often wore a listening device in the Clubhouse and when near the end of 2004 and in 2005, it was “on all the time”; and

4)The lack of detail that Mr. Plante provided about activity that he said occurred at or involved the Clubhouse,

I must consider Mr. Plante’s testimony about the extent to which he says the Clubhouse was involved in illegal activity with great caution.

[641]I also find that, as with the testimony of Mr. Atwell concerning the involvement of the Hells Angels Downtown Toronto chapter’s clubhouse in illegal activity by the members of that chapter, to the extent that Mr. Plante’s evidence about the involvement of the East End Clubhouse in the illegal transactions of the members and associates of the East End chapter is reliable, any such involvement

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was contrary to rules of the Hells Angels as an organization and did not involve members other than those with whom Mr. Plante was engaging in drug trafficking.

J)Intercepted communications from the Project E-Predicate investigation

[642]The Director adduced audiotape evidence arising from an RCMP investigation entitled Project E-Predicate that targeted David Giles (who was at the time of that investigation a member of the Kelowna chapter of the Hells Angels) and others.

[643]Project E-Predicate included an elaborate sting operation that resulted in the conviction of Mr. Giles for conspiracy to import cocaine, conspiracy to traffic in cocaine, and possession of cocaine for the purpose of trafficking as well as the conviction of Bryan Oldham (who was also a member of the Kelowna chapter) for possession of cocaine.

[644]The audiotaped evidence from Project E-Predicate relied upon by the Director was adduced through the testimony of RCMP undercover operators involved in the sting operation. Their identity is protected by publication bans ordered by Ross J. during the Project E-Predicate criminal proceedings (reported as R. v. Giles, 2016 BCSC 1800 [Giles]). Those bans were continued by me in this proceeding.

[645]Given the emphasis that the Director puts on the audiotaped statements made by Mr. Giles during the Project E-Predicate investigation, it is again necessary to record, as I repeatedly said during the trial and reiterated above, that unless I specifically state both that an out of court statement by a non-party was made and that what was said by the non-party was true, any such out of court statement is not admitted for its truth.

[646]Those hearsay issues were canvassed in depth when, during this trial, the Director first adduced audiotaped statements made by Mr. Giles to the undercover operators during Project E-Predicate. Those statements were admissible against Mr. Giles in the criminal proceedings against him because he was a defendant in

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those proceedings. However, Mr. Giles died while incarcerated for that offending with the result that he ceased to be a defendant in this litigation.

[647]Accordingly, statements made by Mr. Giles to the undercover operators that were admissible against him as a party in the criminal proceedings constitute inadmissible hearsay statements by a non-party in these proceedings.

[648]The Director thus applied to have Mr. Giles’ audiotaped statements admitted in this trial for the truth of their contents pursuant to the principled exception to the hearsay rule as recently formulated by the Supreme Court of Canada in R. v. Bradshaw, 2017 SCC 35.

[649]On that application I ruled that although the necessity component of the principled exception rule had, by reason of Mr. Giles’ death, been met, I was not satisfied that the audiotaped statements were sufficiently reliable to overcome the dangers arising from the inability to test his statements by cross-examination.

[650]I reached that conclusion, in part, because the entirety of the interaction between the undercover operators and Mr. Giles involved fictional circumstances in which one of the goals of the police was to have Mr. Giles recruit members of the Hells Angels to join in a conspiracy to traffic in cocaine for profit as a criminal organization. At the same time, Mr. Giles’ goal was to convince the supposed drug lord with whom he thought he was dealing that he and his co-accused, Mr. Van Kalkeren, could be trusted to carry out their end of the fictional transaction.

[651]Mr. Giles was broke and brought nothing to the bargaining table with the undercover operators other than being a member of the Hells Angels. In those circumstances he would have been motivated by the prospect of profits not only to exaggerate his ability to ensure and protect the successful importation and distribution of the fictional cocaine but also to exaggerate his ability to bring other members of the Hells Angels into the operation with him.

[652]I reached that conclusion, in further part, due to Ross J.’s consideration of the credence that could be placed upon statements made by Mr. Giles to the

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undercover operators even when he was alive and a defendant in the criminal proceeding against him.

[653]In Giles at para. 614 Ross J. stated:

[614]In my view, statements made by Mr. Giles and Mr. Van Kalkeren to the UCOs about the participation of others in the venture must be viewed with caution. It is clear that throughout the dealings with the UCOs, both Mr. Giles and Mr. Van Kalkeren were extremely anxious; first, for an agreement to be concluded, and then for the venture to proceed. In my view, much of what they told the UCOs was intended to be persuasive and must be viewed in that light.

[654]In the same vein she also found at para. 620 that:

[620]What I take from these inconsistencies is that representations by Mr. Giles and Mr. Van Kalkeren about the participation of others must be viewed with caution, given their motivation to exaggerate the stability and state of preparedness of their organization, and what I have found to be instances of misrepresentation and exaggeration to the UCOs.

[655]I accordingly ruled that statements made by Mr. Giles to the undercover operators in Project E-Predicate were only admissible as evidence that they had been made.

[656]As I have earlier noted, although he does not now submit that the Project E-Predicate recordings are admissible for the truth of the statements made to the undercover operators by either Mr. Giles or Mr. Oldham, the Director submitted in final argument that the statements are “probative because they show how members of the Hells Angels talk to and interact with potential criminal collaborators”.

[657]In making that submission the Director asserted that:

Simply put, the statements are probative because they illustrate the way in which members of the Hells Angels can and sometimes do market their membership in the Hells Angels as a guarantee that they are reliable and sophisticated criminals who have access, through their membership, to a network of equally reliable partners (fellow members) and subordinates (persons on the program). [My emphasis.]

[658]To the extent that the Director limits his submissions as to the probative value of the statements to the fact that they were being used by their two makers as what the Director characterizes as a means of marketing themselves as members of

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the Hells Angels, the Director’s submissions are consistent with the permissible non- hearsay uses that can be made of out of court statements.

[659]Those submissions do not suggest an impermissible use of hearsay statements. That would have been the case if the Director had submitted that the capabilities “marketed” by Mr. Giles to the undercover operators (access to a criminal support network and subordinates; criminal bona fides; precedence over and respect from other criminal groups) were admissible as being probative of the nature of the Hells Angels or of the Hells Angels in fact having the characteristics or capabilities marketed by Mr. Giles.

[660]It is accordingly not necessary to review the various statements adduced by the Director to support his submission that Mr. Giles (and Mr. Oldham) marketed membership in the Hells Angels to the undercover agents in the ways and for the purposes submitted by the Director.

[661]I must, however, make two observations about the statements made by Mr. Giles and relied upon by the Director.

[662]Firstly, as noted by Ross J. in Giles and as is obvious from the nature of the sting operation and Mr. Giles’ admitted impecuniosity, Mr. Giles was motivated to exaggerate the capabilities he marketed.

[663]Secondly, and more importantly given the forfeiture issues that must be determined in this case, there was no evidence adduced by the Director in respect of the Project E-Predicate investigation that implicated the Kelowna Clubhouse or any Hells Angels clubhouse in the offences for which Mr. Giles and Mr. Oldham were convicted.

K.Common characteristics of Hells Angels clubhouses in general and of the Nanaimo, East End and Kelowna Clubhouses in particular.

[664]The evidence establishes that each of the Clubhouses of which forfeiture is sought has been subject to at least one search by the police during their

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investigation of crimes allegedly committed by members or associates of the chapter of the Hells Angels under investigation.

[665]More specifically:

1)The Nanaimo Clubhouse was searched in 2003 as part of the Project Halo investigation that was the genesis of the Director’s forfeiture proceeding in 2007;

2)The East End Clubhouse was searched in 2005 as part of the Project E-Pandora investigation in which, as discussed above, Mr. Plante was an informant and police agent; and

3)The Kelowna Clubhouse was also searched in 2005 as part of the Project E-Pandora investigation and was again searched in 2012 as part of the Project E-Predicate investigation based upon the RCMP’s elaborate cocaine sting operation that resulted in the convictions of Mr. Giles and Mr. Oldham.

[666]In addition to those searches seeking to obtain evidence of the offences then being investigated by the police each of the Clubhouses has also been subject to additional investigative searches for purposes directly related to this litigation.

[667]More specifically:

1)In November 2007 when the Director obtained the IPO under the Act he entered into the Nanaimo Clubhouse with the assistance of the police to secure the Nanaimo Clubhouse and its contents for the purposes of this litigation. In January 2016 the Director granted

Mr. Isnor access to the Nanaimo Clubhouse to enable him to inspect it;

2)In January 2016 pursuant to a consent order in these proceedings Mr. Isnor was granted access to the East End Clubhouse to accommodate an inspection of it by him; and

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3)In January 2016 pursuant to that same consent order Mr. Isnor was granted access to the Kelowna Clubhouse to accommodate his inspection of it.

[668]Mr. Isnor’s report of March 31, 2016 provides his description of his inspections of the three Clubhouses as well as almost 400 photographs of their respective exteriors and interiors.

[669]In addition to Mr. Isnor’s descriptive and photographic evidence concerning his inspections of the Clubhouses the Director also adduced:

1)The affidavit of a retired police officer, Robert Turnbull, that recorded his observations of the exterior and interior of the Nanaimo Clubhouse at the time of the police Project Halo search of it on December 13, 2003; some details about what was seized; and, some photographs of those items that were seized.

2)Mr. Plante’s testimony related to his observations of the interior and exterior of the East End Clubhouse between 2001 and 2005 prior to the police search carried out in 2005.

3)The affidavit of an RCMP officer, Jennifer Johnston, that records her observations of the interior and exterior of the East End Clubhouse during the execution of the Project E-Pandora search warrant on July 15, 2005. Her affidavit also includes: many photographs of the interior and exterior of the East End Clubhouse that she identified as part of what she observed at the time; descriptions of some items seized; photographs of some of those items; and, descriptions of some items seized from the Kelowna Clubhouse as well as some photographs of those items when it was searched that same day.

4)The testimony of Sergio DaSilva, an officer with the Organized Crime Agency of British Columbia (and formerly an RCMP officer), concerning his observations and conduct during the execution by the police of the Project E-Predicate search warrant at the Kelowna

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Clubhouse on August 12, 2012 and his identification of a number of photographs that he said accurately depicted the interior and exterior of the Kelowna Clubhouse at the time of that search.

5)Excerpts from the examinations for discovery of some of the defendants as well as Notices to Admit concerning, among other things: the location and ownership of the Clubhouses; details related to the construction, security features and physical appearance of both the interiors and exteriors of some the Clubhouses; and, evidence related to the contents of some of the Clubhouses.

[670]The Director also adduced evidence concerning the characteristics of some chapter clubhouses in Ontario that he submits is relevant to the allegation that the three British Columbia Clubhouses of which forfeiture is sought are integral to the functioning of the Hells Angels as a criminal organization.

[671]Evidence adduced by the Director about the characteristics of some Ontario clubhouses included:

1)The testimony of Mr. Atwell that I have previously discussed concerning the physical and other characteristics of the Downtown Toronto chapter of the Hells Angels.

2)The affidavit of Randy Tutton, a Detective Constable with the Ontario Provincial Police, concerning a search of the Hells Angels Oshawa chapter clubhouse on January 13, 2017.

3)The affidavit of Jason Bassi, a Detective Sergeant with the Niagara Regional Police Service, concerning a police search of the Hells Angels Hamilton chapter clubhouse on December 15, 2009; a police search of the Hells Angels Niagara chapter clubhouse on September 28, 2006; and his assistance in the execution of a civil forfeiture preservation order with respect to that Niagara chapter clubhouse on June 1, 2009.

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4)The affidavit of Mr. Bassi concerning his observations of the exteriors of: the Hells Angels Kitchener chapter clubhouse (observed between 2005 and 2011), the Windsor chapter clubhouse (observed in 2006, 2008, 2011 and 2011); and, the London chapter clubhouse (observed on multiple occasions before that clubhouse was restrained under the provisions of the Civil Remedies Act, 2001, S.O. 2001, c. 28 [the Ontario CRA]).

5)Mr. Isnor’s evidence of his observations of some Ontario clubhouses.

[672]I will next discuss the evidence adduced by the Director concerning the characteristics of the Clubhouses and, to the extent necessary, the various Ontario clubhouses, by reference to: the ownership of the Clubhouses; the common external features of the Clubhouse as well as any significant differences amongst them; the security systems in place at each of the Clubhouses; the common interior features of each Clubhouse; and, the contents of each Clubhouse observed during searches and inspections, or in respect of which admissions have been filed.

1.Acquisition, ownership and location of the Clubhouses

[673]Although the legal ownership of each of the Clubhouses is somewhat different the evidence establishes that the membership of the Hells Angels chapter that occupies and uses each Clubhouse is its de facto beneficial owner.

[674]The evidence also establishes that legal ownership of the title to each Clubhouse is held for the collective benefit, as well as the exclusive use and occupancy, of that chapter of the Hells Angels and its invited associates and guests.

[675]The evidence further establishes that when (as is the case with both the East End and Kelowna Clubhouses) a member or members are the registered titleholders of the land on which the Clubhouse is situated they hold such title as bare trustees and will never claim any interest in the Clubhouse if they are no longer members of the Hells Angels.

2020 BCSC 880 (*)

British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and

[676]The Nanaimo Clubhouse is located at 805 Victoria Road in an industrial area of Nanaimo. The lands on which it is situated are owned by the defendant Angel Acres Recreation and Festival Property Ltd., which purchased the property in September 1986 and has held title to the lands on which it is situated since then.

[677]The directors, officers and shareholders of Angel Acres Recreation and Festival Property Ltd. have always been and are now current members of the Nanaimo chapter of the Hells Angels. Only members of the chapter are eligible to serve as directors or officers or to hold shares in the company.

[678]The East End Clubhouse is located at 3598 Georgia Street in a residential area of Vancouver. The property on which it is situated was acquired by Michael Mitchell in February 1987. Six members of the East End chapter, one hangaround and one other person contributed to its purchase. Those contributions were never repaid.

[679]Title to the East End Clubhouse property was initially registered in

Mr. Mitchell’s name because he did not own a home and it was believed that it would be easier for him than for other members to obtain a mortgage.

[680]After the East End Clubhouse property was acquired the existing home on it was demolished and the present Clubhouse was built using mortgage financing obtained by Mr. Mitchell. Construction of the East End Clubhouse was completed in September 1987.

[681]In July 1987 before construction was completed Mr. Mitchell transferred a portion of his interest to the defendant Mitchell Riley and to another chapter member, Robert Pearson, to ensure that the property would remain the property of the East End chapter if anything happened to Mr. Mitchell.

[682]In December 1994 when Mr. Pearson retired from the club he transferred his interest in the property to Mr. Mitchell and Mr. Riley.

[683]Mr. Mitchell died in 2015 after this litigation was commenced leaving

Mr. Riley as the sole surviving registered owner. Mr. Riley has not changed the title

2020 BCSC 880 (*)

British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and

to remove Mr. Mitchell as a registered owner because he is concerned about the possibility that taxes may have to be paid if he does.

[684]Mr. Riley testified on examination for discovery that when he retires from the East End chapter the East End Clubhouse will continue to be used as the chapter’s Clubhouse.

[685]The defendants Jonathan Bryce Sr. and Kim Harmer also testified on discovery that they consider the Clubhouse to belong to the East End chapter and do not plan to make any claim for a share of it when they retire. Mr. Harmer also testified that he knows of no such claim to any clubhouse ever having been made by any former member of the Hells Angels.

[686]The Kelowna Clubhouse is located at 837 Ellis Street in a residential area of Kelowna. The Clubhouse and the property on which it is situated were purchased in January 2000 by the defendant Richard Goldammer as well as by a former member, Hans Kurth. They purchased the property before the Kelowna chapter was founded in 2007. Although Mr. Kurth is no longer a member of the Kelowna chapter he remains on title as a registered owner.

[687]A mortgage of the Kelowna Clubhouse property is held by the Bank of Montreal. That mortgage interest is not subject to forfeiture.

2.External features of the Clubhouses

[688]Each of the Clubhouses is situated on fenced and gated properties. The fences are made of a combination of wooden slats, wire and/or hedging which impedes or precludes seeing into the properties from the street.

[689]The perimeter fencing of the Kelowna Clubhouse property was installed after it was acquired in 2000 by the future members of the Kelowna chapter. The Nanaimo Clubhouse has barbed wire attached to the top of its perimeter wooden fence.

2020 BCSC 880 (*)

British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and

[690]The Clubhouses are all two-storey buildings. The Kelowna Clubhouse property also has an outbuilding behind the main Clubhouse. Both the East End and Nanaimo Clubhouses have attached garages.

[691]The front doors of each of the Clubhouses are made of metal and open outwards. It was not possible for the police to enter the Kelowna or the East End Clubhouse through their front doors to execute warrants for their searches of those Clubhouses.

[692]The windows on the ground floor of the East End Clubhouse are made of bullet proof glass. They were built into the walls when constructed so that repair of a window cannot be effected without tearing down the wall in which it is situated. There are no windows on the ground floor of the Nanaimo Clubhouse. Some of the windows of the Kelowna Clubhouse are made of glass blocks.

[693]Before it was seized by the Director under the IPO in November 2007 the Nanaimo Clubhouse property had exterior signage that included a Death Head logo in the centre of signs mounted on posts as well as on the garage door with the words “Hells Angels” and “Nanaimo” on them.

[694]There is no signage on the exteriors of either the East End or the Kelowna Clubhouses or any other indication that they are property of the Hells Angels.

[695]Evidence adduced by the Director concerning some Ontario clubhouses establishes that the Downtown Toronto chapter clubhouse as well as the Hamilton, Kitchener, Windsor, London and Niagara clubhouses all feature metal doors, cinder block entrances and opaque perimeter fencing.

[696]When observed or inspected, most, if not all, of the exteriors of those Ontario clubhouses were painted in red and white colours identifying them as being the property of the Hells Angels. They also featured Hells Angels signage on the exterior of the buildings.

2020 BCSC 880 (*)

British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and

[697]To that extent, the Ontario clubhouses in respect of which the Director chose to adduce evidence are more akin in exterior appearance and signage to the Nanaimo Clubhouse than to either the Kelowna or East End Clubhouse.

[698]Mr. Isnor wrote in his opinion that unlike the Nanaimo Clubhouse the East End and Kelowna Clubhouses are similar to other more contemporary Hells Angels clubhouses that have evolved over the years to not have identifying signage or markings. Although he posited that such evolution was a reaction to forfeiture proceedings that opinion was provided without empirical support.

[699]Although forfeiture proceedings may be a cause of the change to a less obvious presence of the Hells Angels in a specific location, what is more significant is that the more contemporary clubhouses do not deliberately stand out in the community.

3.Security systems

[700]Each of the Clubhouses is equipped with a security system with outside video cameras connected by closed circuit to internal monitors.

[701]The Nanaimo Clubhouse has eight video cameras mounted in various areas of the exterior of the Clubhouse or on poles erected on the Clubhouse property, all pointing in different directions.

[702]Mr. Turnbull deposed in his affidavit that at the time of the police search of the Nanaimo Clubhouse in 2003 there were at least 15 closed circuit monitors in the Clubhouse connected to external cameras. He deposed that of those monitors five were located next to a television in the common area on the ground floor located behind the bar area; one was located in the storeroom/kitchen area on the ground floor; and, two were located in the boardroom on the second floor.

[703]Mr. Turnbull also deposed that in 2003 most of the closed circuit security monitors had clear images.

2020 BCSC 880 (*)

British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and

[704]When the Nanaimo Clubhouse was seized by the Director in 2007 there were only six internal closed circuit monitors. All were situated in the bar area on the ground floor.

[705]The East End chapter has also installed a security alarm system with a number of exterior cameras connected to closed circuit monitors inside the East End Clubhouse.

[706]The system is comprised of at least five exterior video cameras, four of which are located on exterior parts of the building and one of which is on a lamppost. Internally, the system has six monitors in the main floor bar area; one in the gym; one in the second floor office; and six in the second floor sitting area.

[707]The Kelowna chapter has also installed a security system consisting of exterior cameras connected to closed circuit monitors in the main floor of the Clubhouse.

[708]The Ontario clubhouses in respect of which the Director has chosen to adduce evidence all have exterior cameras.

[709]The interior of those Ontario clubhouses that were inspected by the various police deponents who filed affidavits, as well as the Downtown Toronto chapter about which Mr. Atwell testified, all have internal closed circuit monitors that are attached to external cameras.

4.Interior features of the Clubhouses

[710]Not surprisingly, the internal features of the Clubhouses are very similar not only to one another but also to those Ontario clubhouses described by witnesses or deponents who entered and observed by them.

[711]It is not necessary to discuss the architectural details that may differentiate the interior features of each of the Clubhouses because, like any building, the location, size or configuration of a specific room or feature will differ depending on the internal space available and the number of floors that a building may have.

2020 BCSC 880 (*)

British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and

Configuration and content will also vary if the property upon which that Clubhouse is situated has more than one building.

[712]The evidence establishes that it is common for a Hells Angels clubhouse to have: a kitchen with a large commercial refrigerator, dishwasher and often an ice making machine; a large bar and entertainment area with a well stocked bar, bar stools, chairs, couches, televisions (in addition to security monitors), bar and end tables as well as “boardroom-type” tables and chairs and, in some cases, pool tables; an office area; one or more bedrooms; one or more bathrooms; a garage and workshop; a workout room/gym; a locker area; and, a number of storage areas or rooms for food, supplies, liquor, Hells Angels paraphernalia and support wear.

[713]All of the Clubhouses also have a “members only” area set off from the main entertainment area (and usually upstairs from it) that can be chained or gated off to restrict entry when being used for members only weekly meetings. The members only area may have a boardroom-type table or other sitting areas as well as access to the chapter office.

[714]The Nanaimo Clubhouse also had a functioning hot tub and a sauna when it was seized by the Director pursuant to the IPO in November 2007.

5.Contents of the Clubhouses

[715]As with the interiors of each of the Clubhouses, as well as those of the Ontario clubhouses in respect of which the Director has adduced evidence, there is great similarity in what comprises the contents of Hells Angels chapter clubhouses.

[716]The totality of the evidence and admissions of fact establish that each of the Clubhouses has: plaques and memorabilia on its walls that celebrate the anniversaries or years of existence of many Hells Angels chapters throughout the world; photographs of members of various chapters who have died; photographs of various chapters showing their membership (although those may now more often be stored on a computer rather than in a filing cabinet or box); contact sheets with telephone numbers of members (although these may now also be more frequently stored in a computer); photographs of persons on the program with various

2020 BCSC 880 (*)

British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and