ONTARIO
SUPERIOR COURT OF JUSTICE
**COURT FILE NO.:**13-4-0000304-0000
DATE: 20140213
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RICARDO TARDITTI
Defendant
Frank Schembri, for the Crown
Nyron Dwyer, for the Defendant
HEARD: January 6, 7 and 8, 2014
molloy j.:
REASONS FOR JUDGMENT
A. INTRODUCTION
[1] Ricardo Tarditti is charged with possession of cocaine for the purposes of trafficking and possession of a loaded restricted firearm. The charges were laid after police officers arrested Mr. Tarditti and three companions after seeing them drinking alcohol and smoking marijuana in the parking lot of a strip mall. Just before his arrest, Mr. Tarditti was observed throwing (or placing) a shoulder bag under a car in an attempt to hide it from police. That bag contained a loaded semi-automatic handgun. Upon his arrest, Mr. Tarditti was searched and police found in his pocket a baggie containing 4.13 gm of crack cocaine, broken into smaller chunks.
[2] Mr. Tarditti testified in his own defence. He admitted that at the time of his arrest he had 4.13 grams of crack cocaine in his pocket, which he was intending to sell. He also admitted throwing a Gucci shoulder bag under the car to hide it from police. However, he testified that he had been holding the bag for his cousin and believed that it contained drugs. He disavowed any knowledge of the gun. His cousin, Tristan Bella, testified to essentially the same effect.
[3] Clearly, Mr. Tarditti is guilty of possession of cocaine for the purposes of trafficking. On the firearm charge, two questions arise:
(i) Did Mr. Tarditti have actual knowledge that there was a gun in the bag?
(ii) Even if I believe Mr. Tarditti’s testimony that he thought the Gucci bag contained drugs, is he nevertheless guilty of possession of the gun, based on wilful blindness?
[4] For the reasons set out below, I do not believe the defence evidence about the gun belonging to Mr. Bella, nor does that evidence cause me to have a reasonable doubt. Based on the whole of the evidence, I am satisfied beyond a reasonable doubt that Mr. Tarditti had actual knowledge of the gun. Had I not come to that conclusion, I would have found the Crown’s alternative wilful blindness argument to be a compelling one. However, since this is not essential to my verdict, I make no findings on it.
B. THE FACTS
Undisputed Evidence
[5] There is no dispute in the evidence with respect to the events leading up to the arrest of Mr. Tarditti and the circumstances of the arrest itself. The only difference between the evidence of the police officers and the defence witnesses is with respect to the manner in which the Gucci bag wound up under the car, specifically whether it was “put” there by Mr. Tarditti (as testified to by P.C. Robinson), or “thrown” there (as stated by Mr. Tarditti).
[6] Late in the afternoon of June 15, 2012, Ricardo Tarditti headed out in his Jeep Patriot to spend some time with friends and get a haircut. With him were his friend, Shaquille Doherty, and his cousin, Tristan Bella. They went to a plaza at Pharmacy and Lawrence, specifically to a barbershop there named Hair Technician (a frequent hangout for the group). Along the way, they picked up some beer. The custom at this barbershop is that no appointments are taken. Customers arrive and put their names on a waiting list, and then socialize with each other until a barber is ready for them. At the barbershop, these three young men met another friend, Mohamed Ahmed. All four of them went to the back parking lot where the Jeep was parked and stood around beside the Jeep, chatting, smoking marijuana, and drinking cans of Heineken beer.
[7] Unfortunately for them, three Toronto police officers attached to Toronto’s Major Crime Unit had been working in the area that day and they were hungry. They decided to take a break and get something to eat at a restaurant located in the same strip plaza as the Hair Technician barbershop. The officers were in plain clothes and driving an unmarked car. They drove into the rear parking lot at about 7:30. It was a warm evening and the windows of their car were rolled down. They smelled marijuana and saw the four young men next to the Jeep passing around what looked to be a marijuana cigarette and drinking beer. The officers then had a discussion. They considered briefly whether or not to ignore this openly illegal behavior and just go to the restaurant, because they were hungry. They decided instead to arrest the four men and walked towards the Jeep. They had Toronto police shields on chains around their necks, but otherwise were in plain clothing.
[8] The Jeep had been backed into the parking space. The four young men were lined up along the passenger side with Mr. Tarditti closest to the back end of the Jeep. They were enjoying their beer and marijuana and did not immediately notice the officers walking towards them. However, as the officers got closer to the Jeep, the four men realized who they were. As the police officers approached, they saw Mr. Tarditti throwing a cigarette over his shoulder towards a fence and ravine area. Mr. Tarditti also dropped his can of beer. He was wearing a shoulder bag, with the strap over his left shoulder and across his chest, and the bag on his right side. He shrugged the strap over his head, bent over, and put the bag under the rear end of the Jeep.
[9] The four men were advised they were under arrest for possession of marijuana. The officers realized they might also charge them with consumption of alcohol in a public place. Officer Robinson went directly to Mr. Tarditti. He placed him under arrest, cuffed him, and left him with Officer D’Souza. Officer Robinson then dealt with Tristan Bella and during a pat-down search of him located a baggie containing marijuana in the pocket of his shorts. Officer D’Souza searched Mr. Tarditti and found a baggie containing 4.13 gm of crack cocaine in his pants pocket. Mr. Ahmed was searched and nothing was found. Mr. Doherty had a baggie in his pocket with a small amount (.27 gm) of what appeared to be crack cocaine.
[10] Officer Robinson then reached under the car to the area where he had seen Mr. Tarditti place the Gucci bag. He said the bag was standing upright under the Jeep, with the top scrunched down a bit. He removed it, noticed it was a “bit heavy,” opened the top zipper, and saw that it contained a gun. He said he was surprised to find a gun, as he expected the bag would contain drugs.
Defence Evidence
[11] Ricardo Tarditti was 21 years old at the time of this incident. Mr. Tarditti testified that when he picked up his cousin, Tristan Bella, earlier that day, Mr. Bell had the Gucci bag with him. He said that he and the other three young men had been drinking beer and smoking marijuana in the parking lot for about 15-20 minutes before the police arrived. Mr. Tarditti said that after a short while Mr. Bella asked to hold his bag while he went to the bathroom in the barbershop “to do Number 2.” Mr. Tarditti took the bag and put it over his shoulder, the same way his cousin had been wearing it. He said his cousin had returned only about two minutes before the police arrived and was rolling a joint, so he had not yet given him back the bag.
[12] Mr. Tarditti said he believed the Gucci bag contained drugs, probably marijuana or crack, and possibly also a digital scale. However, he did not look inside the bag. He said the bag did not seem to be particularly heavy to him. He knew his cousin to be a drug dealer, in amounts, possibly as much as a quarter pound, but not as much as a kilogram. He said he knew his cousin used this bag to carry his drugs, that he had seen drugs in it half dozen times before and had never seen him use the bag for any other purpose. Mr. Tarditti denied any knowledge of a gun being in the bag or of his cousin having a gun.
[13] Mr. Tarditti testified that as he realized police officers were approaching, he threw his marijuana cigarette away and dropped the can of bear he was holding. He said his cousin said rapidly and in a low voice, “Drop the bag, drop the bag, drop the bag.” He believed the bag might hold more drugs than he had in his pocket. He therefore quickly threw the bag under the car. He then put his hand into his pocket to get the crack cocaine, but it was blocked by a roll of money and he did not have time to get it out before the police officer was there.
[14] Tristan Bell was 22 years old at the time of this offence. He had known Mr. Tarditti for over 10 years, because their stepfathers were brothers, and considered him to be a close family member. He testified that the Gucci bag and the gun belonged to him. He said that it was not a real Gucci bag, but rather an imitation that he bought at a flea market. He acknowledged being a drug dealer and said he dealt in marijuana and cocaine. He said the usual amount of drugs he would have in the bag would be one ounce of marijuana and ¼ ounce of cocaine. He agreed that he would never have a kilo of drugs, saying that he would not walk around with that amount. He agreed that two pounds of drugs would be an unusual amount for him, or anyone.
[15] Mr. Bella said the only thing in the bag that evening was the gun. He said he had some trouble on the street and bought the gun from a guy in Regent Park for protection. He said he did not tell his cousin about the gun because it was “not something to advertise.”
[16] Mr. Bella testified that after he had a couple of beers and smoked a joint outside with his companions, he told his cousin Mr. Tarditti that he “needed to go do a Number 2” and that he gave Mr. Tarditti his bag to hold, explaining “we trust each other like that.” He said he did not tell Mr. Tarditti what was in it because he was coming right back. He said he did not take it with him because he was “doing a number 2” and it would be “a hassle.” On cross-examination, he said he also did not want to take the gun into the barbershop. When asked what he would do with it when he was getting his hair cut, he said he would have left it in the bushes outside. When asked why he would not have left the bag in the bushes when he went to the bathroom, he responded that the plan about the bushes was only for when both he and his cousin would be inside the barbershop. Mr. Bella acknowledged that the barbershop bathroom was a single room with one toilet. He agreed that inconvenience was the only reason not to take the bag with the gun with him. When asked why he would not take the gun with him for protection, he said he felt safe in the barbershop because he went there frequently.
[17] Mr. Bella said he returned to the others after no more than five minutes and within one minute of that saw the car with the police officers enter the lot. He thought nothing of it initially, but as the three officers approached realized they were police and told Mr. Tarditti under his breath to “drop the bag.”
[18] After the police seized the firearm, all of the individuals under arrest were told they were being charged with possession of the firearm. It was P.C. Robinson who told Mr. Bella of the charges against him (possession of marijuana and possession of a firearm) and advised him of his rights. At that point, Mr. Bella asked if he could speak to the officer privately. Officer Robinson took him a short distance away. Mr. Bella then stated, “The gun is not mine. It is his, the guy in the red shirt.” This was a reference to Mr. Tarditti. Mr. Bella acknowledged on cross-examination that he had made this statement to the police. He agreed that he was trying to distance himself from the gun and from his cousin. He said it was because he and his girlfriend had a child born prematurely in March, who spent a month on life support, and still had health issues. He said that he cast the blame on his cousin in a panic, because all he could think of was his infant son. When asked why he would say it was his cousin’s gun if that was not true, he said he “wasn’t thinking straight.” At the suggestion that he might logically have blamed one of the two guys he was not close to instead of his cousin, he said that if he said that about guys he hardly knew, he would be dead.
[19] Two months after his arrest in June 2012, the charges against Mr. Bella were withdrawn. During the intervening year and a half, he said nothing about the gun being his. He claimed that he only found out about Mr. Tarditti’s trial date within the past month and that he spoke to his lawyer about testifying because he wanted to “clean his conscience.” He denied having spoken to family members about it, stating they aren’t speaking to him.
C. CREDIBILITY FINDINGS
Tristan Bella
[20] I do not believe Tristan Bella’s evidence. He is a demonstrated and admitted liar. He told the police at the scene in 2011 that the gun belonged to Mr. Tarditti. The charges against him were dropped in the summer of 2012. He still waited another one and a half years before coming forward at this trial and changing his story completely. Either he lied to the police in 2011 and allowed his cousin to take the responsibility all of that intervening time, or he lied at trial to support his cousin, having already escaped responsibility himself. Either way, he is a completely unreliable witness.
[21] I reject Mr. Bella’s evidence at trial, not merely because it is unreliable, but because I find it to be untruthful. Mr. Bella’s story is completely implausible. I note, in particular, the following:
(i) Mr. Bella claimed to be carrying the gun for protection. Yet, on his evidence, he kept it close to him while standing in a parking lot with three friends, and left it behind when going by himself into the plaza barber shop bathroom.
(ii) He claimed he did not want to bring the gun into the barber shop because it was a public place, yet he was carrying it around in public all that evening.
(iii) He said that he did not need the gun for protection in the barber shop because he felt safe there, explaining that he went there all the time and hung out there. Surely, if Mr. Bella had real enemies who were out to make trouble for him, a place where he is known to hang out on a regular basis would be the antithesis of a “safe” place for him to be alone.
(iv) He claimed that it was “inconvenient” to take the gun to the bathroom with him. This bathroom was a single room with a toilet and sink and a door that locked. The Gucci bag was a small shoulder bag. Even with the gun and ammunition in it, it could not have weighed more than about two kilograms. There can be nothing particularly “inconvenient” about taking a purse to the bathroom in these circumstances.
(v) Mr. Bella’s explanation that it was particularly inconvenient because he needed to do “Number 2” is nonsensical.
(vi) If Mr. Bella did own the gun himself and was trying to pin it on somebody else, I would expect him to blame somebody other than Mr. Tarditti, with whom he said he had a close relationship since he was a child and considered to be like family. Although he said he at first that he could not blame someone he barely knew because he would be “dead,” he later conceded that he was not afraid of either of the other two men present and that it was more a question of “politics” and not wanting “problems between [them].”
Ricardo Tarditti
[22] I also reject the evidence of Mr. Tarditti. I do not find him to be a credible witness. I am troubled by the following details in his evidence:
(i) Mr. Tarditti testified that he expected the bag would contain only a small amount of drugs and perhaps a digital scale. This does not fit with the much more considerable heft and feel of a firearm and ammunition in the bag, which together weighed about 1.3 kilograms.
(ii) Mr. Tarditti’s claim that he did not notice the weight is not plausible given the manner in which he decided to hold onto it, which was to put it over his head, with the strap across his chest. Mr. Tarditti was well-familiar with what drugs would weigh. I would have expected the greater weight of this bag to have been immediately apparent to him. P.C. Robinson, who retrieved the bag from under the car, also thought it would contain drugs and was surprised by its weight when he picked it up.
(iii) P.C. Robinson testified that he saw Mr. Tarditti bend over and place the bag under the car. When he retrieved the bag, it was standing upright, with the top wedged down from the undercarriage of the car. That is more consistent with the bag having been placed there with the intent of later retrieving it, than with Mr. Tarditti’s evidence that he threw the bag under the car in a panic at the urging of Mr. Bella.
(iv) Mr. Tarditti chose to rid himself of the Gucci bag before throwing away the sizeable amount of crack cocaine in his own pocket. That seems inconsistent with his stated belief that there was likely only a small amount of drugs in the bag. (However, I do recognize that this would have been a split second decision and if his cousin was urging him to throw the bag that might have affected his decision.)
(v) Mr. Tarditti claimed that he did not have time to throw away the cocaine in his pocket because there was a roll of bills on top of it. However, according to the evidence of P.C. D’Souza, who searched Mr. Tarditti at the scene, the money was in his left pants pocket and the cocaine was in his right pants pocket.
[23] I was struck at trial by the exact language used by Mr. Bella and Mr. Tarditti in describing Mr. Bella’s departure for the bathroom. Mr. Tarditti testified that Mr. Bella asked him to hold the bag because he wanted “to go do a number 2.” Mr. Bella testified that he gave the bag to Mr. Tarditti and said he needed “to go do a number 2.” I very much doubt that this is the actual language these two men would have used when speaking to each other on that evening in June 2011. The fact that they both reported at trial in January 2014 that they recalled having discussed Mr. Bella’s need “to do number 2” smacks to me of collusion. This is a story they rehearsed together to tell at trial.
D. CONCLUSION
[24] I do not believe any of the defence evidence as to Mr. Bella owning the gun and Mr. Tarditti holding the Gucci bag for him without knowing the gun was in it. I find this evidence to have been concocted in an attempt to have both Mr. Bella and Mr. Tarditti avoid responsibility for the gun. Further, there is nothing about this evidence that causes me to have a reasonable doubt as to Mr. Tarditti’s knowledge that there was a gun in the Gucci bag.
[25] Mr. Tarditti was the only one of the four men who was carrying a substantial quantity of drugs. By his own admission, he planned to traffic those drugs later in the evening. He had the Gucci bag securely on his person at the time the police arrived on the scene. He chose to stash the bag before he even threw away the drugs in his pocket. I am satisfied beyond a reasonable doubt that he actually knew the gun was in that bag and that he was exercising control over it. As such, he had possession of the gun. It is admitted that: this was a real firearm; it was a restricted weapon; and Mr. Tarditti had no licence or permit to have it. It is clear on the evidence that it was loaded, its serial number had been defaced, and that it was being carried in a closed bag in public. I therefore find all of the essential elements of the following offences have been established beyond a reasonable doubt:
• Count 1: possession of a loaded restricted firearm (s. 95(1))
• Count 2: possession of a firearm knowing he was without a licence (s. 92(1))
• Count 3: possession of a firearm without a licence (s. 91(1))
• Count 4: possession of a firearm with defaced serial number (s. 108(1))
• Count 5: carrying concealed weapon
[26] In his evidence, Mr. Tarditti admitted he was in possession of cocaine and that he intended to sell it later that evening. He is therefore guilty of possession for the purposes of trafficking as charged under Count 6. The parties agree that Count 7 (simple possession of cocaine) is subsumed under Count 6 and should be stayed under the principles established in R. v. Kienapple. In my view, Counts 2 and 3 fall into the same category and they are also stayed.
MOLLOY J.
Released: February 13, 2014
COURT FILE NO.: 13-4-0000304-0000
DATE: 20140213
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
RICARDO TARDITTI
Defendant
REASONS FOR JUDGMENT
MOLLOY J.
Released: February 13, 2014