Convicted Hells Angels to get seized 'death head' items back
Hells Angels are seen stopped by police in this file photo. (CTV)
The Canadian Press
Published Monday, December 3, 2012 1:32PM EST
TORONTO -- The Ontario government must return a raft of seized items bearing the Hells Angels' 'death head' insignia to the bikers, an Ontario judge has ruled in a decision welcomed as important for property rights.
The judge made her ruling because she found there was no relation between criminal acts committed by club members and the paraphernalia, which includes black leather vests, belt buckles, gold and diamond jewelry, and other clothing bearing the logo.
"While membership in the club was clearly used to commit the offences, membership cannot be equated with the symbols of membership," Ontario Superior Court Justice Maureen Forestell said in her judgment.
"There was a rule that members were not permitted to wear (the Hells Angels) insignia when committing offences."
Lawyer Craig Bottomley, who represented the bikers, said Monday that last week's ruling was important to counter "creative efforts" in recent years by prosecutors to use legal powers to try to grab property on the basis it is crime-related.
"There needs to be decisions like this one to set out the limits of where those powers end," Bottomley said in an interview.
"They can't just have airy-fairy applications of these powers for people who you think are bad, and then go and take their property away without having to prove they committed an offence with the property."
Police seized the items in question in April 2007 during raids on the Hells Angels clubhouse in Toronto and on the homes of several bikers.
Although acquitted of being members in a criminal organization, nine bikers were convicted about 18 months later of a range of drug-related offences.
The Crown then argued the seized items should automatically be forfeited to the province under a section of the Controlled Drugs and Substances Act.
Simply having the Hells Angels logo, trademarked by the Hells Angels Motorcycle Corp., on the materials makes them "offence-related property," the Crown said.
In effect, the government argued, the actual use of the items did not matter, but that the "symbolism of membership" was significant.
For their part, the bikers argued symbolism was not enough to warrant automatic forfeiture.
The judge agreed.
"This is not a case where any item bearing a symbol of membership was used to extort or intimidate," Forestell said.
Being a known biker carried sufficient weight that a member didn't need to sport their logo, something only full club members are allowed to wear.
Forestell did rule earlier this year the bikers' clubhouse must be forfeited to the Crown as an offence-related property because it was used as a safe haven for criminal activity.