COURT FILE NO.:CR-20-50000340-0000

DATE: 20211210

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GIANLUCA SALVATI & PAOLO JUNIOR SACCO

Defendants

Paul Zambonini, for the Crown

Hubert Gonzalez, for Gianluca Salvati

Jeffrey Halberstadt for Paolo Junior Sacco

HEARD: November 8, 9, 10, 12, 15, 16, 2021

REASONS FOR JUDGMENT

Schabas J.:

[1] The Accused Gianluca Salvati (“Salvati”) and Paolo Junior Sacco (“Sacco”) are charged with a range of firearms, driving and drug offences allegedly committed between August, 19 and 22, 2019. There are two separate incidents that were the subject of evidence. The first incident, in the early morning hours of August 19, involved only Mr. Salvati, while the second incident, or series of events on August 20 and 21, implicates both accused.

The August 19, 2021 events involving Salvati

Yuanna Ricketts’ initial evidence and the Crown’s application under s. 9(2) of the Canada Evidence Act

[2] In the early morning hours of August 19, 2019, Yuanna Ricketts returned with a friend to the apartment where she lived with her aunt on Eglinton Avenue West. She and her friend had been drinking that evening.

[3] Around 1:30 AM, Ms. Ricketts’ ex-boyfriend, the accused Gianluca Salvati, came briefly to her apartment. His visit to the building was seen on videotape from cameras in the lobby, entrance and parking lot. In the parking lot, Mr. Salvati is seen arriving and leaving as a passenger in a white Honda Civic. Outside the car, he is observed carrying a black satchel across his shoulder.

[4] Video footage also shows Ms. Ricketts and her friend leaving the building shortly after Mr. Salvati’s brief visit, and getting into a white SUV. In the parking lot, the Honda Civic is seen circling and eventually leaving while Ms. Ricketts and her friend talk to someone in another car before driving away themselves. The white Honda Civic then returns briefly and drives away.

[5] Ms. Ricketts went with her friend to a nearby McDonald’s restaurant where video footage shows her ordering food at the drive-through a little after 2:00 AM. She paid for the food but was then asked to park as the order was large and she would have to wait.

[6] At that point, while waiting, the video footage shows the white Honda Civic pulling up behind Ms. Ricketts’ car. Mr. Salvati is seen getting out of the driver’s seat of the car, with his satchel. His hand is in the satchel, and he goes towards the driver’s side of Ms. Ricketts’ car. Due to the camera position, the video footage does not show him actually speaking to Ms. Ricketts, but she said Mr. Salvati was upset and asked her to wind down the window or to get out. He may have tried to open the car door. She described him as ranting and very angry. She testified that she wasn’t sure why, although there was later some suggestion that Mr. Salvati was angry over something she had allegedly broken.

[7] The encounter was very brief. Ms. Ricketts testified that she didn’t want a confrontation, was scared and didn’t want there to be any fighting. She did not roll down her window or get out of the car. The video evidence shows Ms. Ricketts’ car reversing but it is unable to move due to the position of the white Honda Civic behind it. As this happened, Mr. Salvati returned to his car and drove away. Ms. Ricketts said she feared for her safety and the safety of her friend and of those in her home, including her friend’s child who was at the apartment. Ms. Ricketts also described her friend as very upset and worried.

[8] Ms. Ricketts said that she then called the police because she was afraid to go back home and because she thought she had seen something. When pressed by the Crown as to what she had seen she said she thought Mr. Salvati might have had a weapon or something to hurt her. When asked what kind of weapon, Ms. Ricketts said she did not know.

[9] Ms. Ricketts initially testified that she had no memory of seeing a handgun, or expressed uncertainty as to what she had seen, avoiding using the word “gun” or “handgun,” or that anything had been pointed at her by Mr. Salvati, even though during a 911 call shortly after the incident, a recording of which was played for her during her testimony, she had said that Mr. Salvati had pointed a gun at her in the parking lot, a statement repeated in more detail during her interview with Officer Jeff Reid who came to the scene immediately after the incident.

[10] Ms Ricketts confirmed she had made the statements recorded on the 911 call and the statements reduced to writing in Officer Reid’s notes. In those interactions, Ms. Ricketts had said, clearly, that she had seen Mr. Salvati with a gun, which she described, and that he had pointed it at her and threatened her. She confirmed as well that she tried to tell the truth at the time and that she tried to explain, to the best of her knowledge, what happened at the time.

[11] As the Crown put it, Ms. Ricketts’ initial evidence teetered between saying the incident did not happen or that she did not have a memory of it. At the Crown’s request, a voir dire was held to determine whether the Crown could cross-examine Ms. Ricketts on her prior statements pursuant to s. 9(2) of the Canada Evidence Act (CEA). The prior statements included the 911 call, the statement provided to the officer at the McDonald’s immediately after the incident, which was proven by Officer Reid, and phone records containing communications – texts and snapchats - between Ms. Ricketts and Mr. Salvati from the time of the incident which also suggested Ms. Ricketts had seen Mr. Salvati with a gun that night.

[12] Ms. Ricketts had also initially testified that she did not know Mr. Salvati’s first name, and did not even want to state his surname, even though she had been in a relationship with him for almost two years and the records of text messages showed that she knew him by the name “Luca.”

[13] I granted the Crown’s application under s. 9(2) of the CEA to permit cross-examination of Ms. Ricketts on her prior statements which were, in my view, inconsistent with her testimony. The situation in this case is similar to that in R. v. McInroy, 1978 175 (SCC), [1979] 1 SCR 588, in which a witness also claimed not to recollect an event with the accused. As in that case, I did not accept that Ms. Ricketts was being truthful in her lack of recall or her claimed uncertainty as to what she had seen when she had, at the time, given a detailed account of an event that frightened her. Arguably, Ms. Ricketts’ initial testimony, in recalling some things, but not others which would help the prosecution, made her an adverse witness as was the case in R. v. Vivar, 2004 34315 at para. 10, although the Crown did not seek a finding of adversity under s. 9(1) of the CEA.

[14] As Officer Reid testified, Ms. Ricketts was distraught, “absolutely petrified”, and did not stop shaking during the entire time she gave her statement to him. In her evidence at trial she agreed that the event in question was traumatic and that she did not want to remember it. She made it quite clear she did not wish to testify and she had moved on with her life.

[15] As in R. v. Dayes, 2014 ONCA 614 at para. 31, I permitted the Crown to cross-examine Ms. Ricketts on her prior statements and on why she was not able to recollect matters at trial, in particular to pursue the theory that she continues to be afraid of Mr. Salvati.

The fuller account of what happened on August 19, 2019

[16] The cross-examination of Ms. Ricketts by the Crown brought out a more detailed account of what happened at the McDonald’s.

[17] The Crown took Ms. Ricketts through the recording of her 911 call and the notes of what she told the officer following the incident. Ms. Ricketts did not dispute the accuracy of any of what she said on the 911 call or was noted to have said to Officer Reid that evening. Indeed she adopted everything in the statements as true except that she said she believed that the gun “could have been something else.”

[18] As Ms. Ricketts described, and the video footage shows, at the McDonald’s restaurant Mr. Salvati first pulled up in the white Honda Civic and blocked Ms. Ricketts’ car. He then left the driver’s seat of his vehicle and went to the driver door of Ricketts car and spoke to her. He was carrying his satchel. His hand was in the satchel bag and Ms. Ricketts said she believed his hand was on a gun. As she said to the 911 operator, “he came to my car and he was pulling out a gun on me.” Mr. Salvati threatened to hurt her and said he was going to “shoot up” her door, meaning the door to the apartment where Ms. Ricketts lived with her aunt.

[19] In her statement to Officer Reid, Ms. Ricketts said that Mr. Salvati was “reaching in his bag and I pulled back in reverse so he moved back and got back into the car.” Later in her statement she repeated what happened, that Mr. Salvati “walked over to my window and that’s when he had his hand in his bag and I was scared so I started reversing and he ran back to his car and moved it and that’s when I moved my car over to beside the walkway.” Ms. Ricketts said that when Mr. Salvati came up to her window he was threatening and intimidating, very aggressive, and tried to open her door with one hand in his satchel.

[20] After Mr. Salvati returned to the driver’s seat of his car and drove away, Ms. Ricketts was able to back up her car and she moved it next to the building. The video footage then shows the Honda Civic reappearing. It pulled up next to Ms. Ricketts’ car, on the right-hand side. At that point, Mr. Salvati, who was in the driver’s seat of the Honda Civic, lowered his window and, according to what Ms. Ricketts told Officer Reid, pointed a gun at her “while threatening me and telling me to go home.” Ms. Ricketts’ friend is then seen leaving the passenger side of the car and walking away, and Mr. Salvati drove away. This occurred at 2:08 AM.

[21] In her statement to Officer Reid, Ms. Ricketts said that Mr. Salvati “pulled up to the passenger side of my car and was pointing something black at me, a gun, while threatening me and telling me to go home.” Later in the statement she said he was pointing the gun “right at me acting like a tough guy and his friend is in the passenger seat telling him to calm down.” “I’m sick of this shit”, she told the officer. Later, in cross-examination by defence counsel, Ms. Ricketts confirmed that Mr. Salvati pointed something she believed was a gun at her, which was in his right hand while his left hand was on the steering wheel.

[22] Within a few minutes of these incidents, Ms. Ricketts called 911, but apparently hung up. The Toronto Police called her back immediately and Ms. Ricketts said that her ex-boyfriend came to her car “and was pulling out a gun on me.” She told the police where she was and when asked where the man was she said “he left and said he was going to go shoot up my door.” Ms. Ricketts gave his surname as Salvati but said that his first name was “Roberto”, which is Mr. Salvati’s brother’s name. She described Mr. Salvati and said that he was driving a white Honda Civic. She confirmed that he had a “handgun.”

[23] It is not clear why Ms. Ricketts gave the name “Roberto.” Perhaps she was afraid. But nothing turns on it. She gave Mr. Salvati’s name to Officer Reid, and it is clear from her testimony, and the videos, that the accused Gianluca Salvati was the person driving the Honda Civic who approached Ms. Ricketts at the McDonald’s.

[24] Officer Reid and another officer came to the McDonald’s shortly after 2:17 AM. Officer Reid conducted an interview with Ms. Ricketts between 2:56 AM and 3:32 AM. The narrative provided by Ms. Ricketts to Officer Reid is entirely consistent with the video evidence of the encounters.

[25] When asked to describe the gun, Ms. Ricketts told Officer Reid it was “black and metal and he was pointing it at me all angry to intimidate me. I know what a gun looks like, obviously I’ve seen them in movies.” Officer Reid asked if it was a handgun or “one hand” or a “machine gun”. Ms. Ricketts answered: “I don’t even want to say that word, yea, one hand, compact, not a machine gun, I just want to be done and I’m so scared.” As the officer testified, and his notes confirmed, Ms. Ricketts appeared petrified and was shaking throughout the interview.

[26] Ms. Ricketts also described the white Honda Civic which she said belonged to Mr. Salvati’s sister, Natalie Salvati.

[27] In response to questioning by the Crown, Ms. Ricketts suggested her memory of what she said to the officer wasn’t strong, stating that she was speaking “after I had some drinks.” This was pursued in cross-examination by Mr. Salvati’s counsel who sought details of how much Ms. Ricketts had drunk that evening. Over the course of the evening, from between 5:00 PM or 6:00 PM and her return to the apartment with her friend at about 1:00 AM, Ms. Ricketts claimed she had as many as 10 shots of alcohol – vodka, rum, tequila and cognac. She also said she smoked some marijuana that evening.

[28] In my view, consuming this amount of alcohol would have made Ms. Ricketts seriously and noticeably impaired, and I do not accept her evidence on this point. On the video footage she shows no signs of impairment walking or in her car. She drove without incident, and the police officer made no observations indicating any concerns about impairment. On the 911 call Ms. Ricketts spoke clearly and coherently, and her speech was not slurred. In my view, Ms. Ricketts raised her drinking in-chief, and exaggerated the amount she had consumed in cross-examination, because she fears Mr. Salvati and wished to undermine her evidence so that she is not responsible for his conviction.

[29] Following the 911 call another police car which had been heading to the scene saw a white Honda Civic nearby at about 2:19 AM. The police attempted to stop the car as it left a parking area at about 2:25 AM. The Honda Civic sped away and a high-speed chase ensued for about 3 minutes, at speeds of up to 120 kilometres per hour on city streets. The chase was recorded on the police car’s windshield camera, and the Honda Civic can be seen going very fast and, at times, driving on the wrong side of the road. The chase was ultimately called off due to safety concerns.

[30] The officer who testified about the chase could not identify the driver or occupants of the Honda Civic, or the licence plate. However, texts shortly after the event from Mr. Salvati confirm that he was in the car fleeing the police.

[31] When Mr. Salvati was arrested in his home at 180 Rosethorn Avenue on July 21, 2019, two mobile phones were discovered under the bed in a bedroom in the basement. Using specialized software, the police were able to extract information confirming that these phones were used by Mr. Salvati at the time.

[32] The phones showed communications between Ms. Ricketts and Mr. Salvati, including many attempts by Mr. Salvati to contact Ms. Ricketts by telephone around 2:00 AM. Further, a text message sent from one of Mr. Salvati’s phone to Ms. Ricketts at 2:45 AM, just after the car chase, said “Police got Luca with a gun”. Twenty-four seconds later there is a text from Mr. Salvati’s phone to Ms. Ricketts saying “It’s chizzil”. This was not explained, but it can be inferred that it was an attempt by Mr. Salvati to make Ms. Ricketts think that he had been arrested and that the message was coming from someone named Chizzil, who is listed as a contact in Mr. Salvati’s phone. If so, these “Chizzil messages” worked, as snapchat messages found on the other phone indicate that Ms. Ricketts thought Mr. Salvati had been arrested. Ms. Ricketts also decided to return to her apartment that night and tried to contact Toronto jails to find out where Mr. Salvati was being held in custody.

[33] Two minutes after the “Chizzil messages”, at 2:48 AM, a text message was sent from Mr. Salvati’s phone to another number saying, “I just got into a 20min car chase with feds.” The term “feds” is slang for police. There is no more mention of “Chizzil.” A series of text messages after the chase include someone calling the person using the phone “Luca”, providing further evidence to conclude that Gianluca Salvati sent the “Chizzil messages.”

[34] The second phone seized from Mr. Salvati contained a series of “snapchat” messages between Ms. Ricketts, using the name ‘Yuannagiovanni7”, and Mr. Salvati, which are consistent with the events. This includes Ms. Ricketts sending messages to Mr. Salvati, which she seems to think are being received by Chizzil as she talks about Mr. Salvati in the third person. Ms. Ricketts says, for example, that she “called the feds”, and said “Fuck u and ur friend he always wanna pull guns on me and threaten me fuck u both. It’s your fault He got himself knocked.” The term “knocked” is slang for arrested.

[35] The defence argues that the dates and times on the phones are not reliable. I do not agree. There is evidence that the times come from the service providers. The times on the messages coincide with and are supported by other evidence of what happened in the early morning hours of August 19, 2019, including the video surveillance evidence from the apartment building, the McDonald’s, and the police camera documenting the pursuit of the white Honda Civic.

[36] In my view the communications from Mr. Salvati regarding being “caught with a gun” support the conclusion that he was carrying a gun that evening and that he fled the police that night.

[37] I also conclude that Ms. Ricketts’ statements on the 911 call and to Officer Reid are reliable. She was coherent and consistent in what she said, and her description of events was corroborated by the video surveillance evidence, the text and snapchat messages, and provide an explanation for Mr. Salvati’s flight from the police. Ms. Ricketts’ statements are necessary to establish what happened between her and Mr. Salvati on August 19, 2019. To the very limited extent that she was not willing to confirm those statements at trial, this was due to fear of the accused. In my view, Ms. Ricketts’ statements made on the 911 call and in her interview can and should be admitted for the truth of their contents. They are reliable, have been almost entirely adopted by her and she has been subject to cross-examination on them. The statements are necessary in light of Ms. Ricketts’ reluctance to provide full and frank testimony at trial. As the Crown stated in closing argument, the truth cannot be held hostage in these circumstances. See generally, R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 SCR 740.

[38] Further, I find Ms. Ricketts’ evidence compelling. Although, as she acknowledged, it was dark at the time, there were lights in the area and she was clear in her statements that she saw a handgun, a fact supported by Mr. Salvati’s text messages attempting to cause Ms. Ricketts to believe he had been arrested with his gun. The defence argues that Ms. Ricketts may have been influenced by her friend who was with her that evening and who was in the McDonald’s when she gave the statement, but there is no evidence to support that conclusion. Moreover, as I discuss later in these Reasons, Ms. Ricketts’ description of the gun is consistent with the gun seen in Mr. Salvati’s possession in a car on the night of August 20-21, 2019 which was seized from that car on August 22, 2019 after Mr. Salvati’s arrest.

The events of August 20 and 21, 2019 and the search of 180 Rosethorn Ave

[39] On August 21, 2019, at 11:34 AM, the police executed a search warrant at 180 Rosethorn Avenue in Toronto, looking for Mr. Salvati and the gun that had been reported in his possession by Ms. Ricketts.

[40] The house had been under surveillance since about 5:00 AM that day. The white Honda Civic belonging to Natalie Salvati was parked in front of the house. At about 6:43 AM a red Lincoln arrived and parked in front of the house. A man, subsequently identified as the accused Paolo Junior Sacco, was in the passenger seat. The driver was later identified as Alison Kohne. Mr. Sacco went into 180 Rosethorn Avenue for a few minutes and then returned to the Lincoln. At about 6:53 AM a woman was observed in the driver’s seat of the Honda Civic who was later identified as Natalie Salvati. Mr. Sacco left the Lincoln and had a conversation with Ms. Salvati while she was in the car. After three or four minutes Mr. Sacco returned to the Lincoln. The Honda Civic driven by Ms. Salvati drove away. Another man, who was not identified, then came out of 180 Rosethorn Avenue and got into the back seat of the Lincoln which drove away at about 7:04 AM.

[41] At about 10:00 AM the Lincoln returned to the house, driven by Ms. Kohne, and was parked outside. Ms. Kohne and the other occupant of the car, Mr. Sacco, went inside 180 Rosethorn Avenue. A few minutes later, Mr. Sacco came back out and sat in the passenger seat of the Lincoln for a few minutes before returning to the house.

[42] Because of the concern about a firearm, the initial search of the house at 11:34 AM was conducted by the Emergency Task Force (ETF), who forced open the front door and threw a “flash bang” into the hallway which made a very loud noise. Detective Cash, the officer in charge of the investigation, was outside the house and saw, immediately after the loud noise, 2 white baggies flying through the air and land on the front lawn. Looking up, she saw a window being closed on the second floor of the house, which is the area where the bags had come from. The baggies were also observed on the lawn by Officer Heineman, who assisted with the search. It was later determined that one bag weighing 0.71 grams contained cocaine and phenacetin. Phenacetin is not a controlled drug; it is a “cutting agent” for cocaine. The other bag weighed 3.86 grams and contained phenacetin.

[43] Ms. Kohne and Mr. Sacco were found in the room with the window observed by Detective Cash. Mr. Sacco attempted to distance himself from the red Lincoln when arrested. He claimed to have walked to the house and became upset when the officer said they had seen him arrive in the car. Ms. Kohne said the keys to the car were in her purse and that it was a rented car. However, the keys were not in her purse. They were placed under arrest for possession of cocaine based on the baggies that had been thrown out the window when the search began. Ms. Kohne began to cry and Mr. Sacco said it was “bullshit.” Later, when photos were taken of the bedroom window by the police, the window was opened and the key to the Lincoln was found on the ledge outside the window.

[44] The Lincoln was then sealed and towed to a police garage until a search warrant could be obtained for it, which was executed on August 22, 2019. A loaded Smith & Wesson handgun was found in the glove compartment. At that time, each of Ms. Kohne, Mr. Sacco and Mr. Salvati were charged with offences related to possession of the gun.

[45] Mr. Salvati was found in the basement of 180 Rosethorn Avenue. Although he was found in an area at the bottom of the basement stairs, there was a bedroom in the basement. Mr. Salvati was not fully dressed when arrested and police were directed to his clothes in a drawer in the basement bedroom. A black satchel, matching that seen in the videos, was found in the bedroom and seized. In it were two clear plastic bags. Subsequent testing confirmed that one bag contained cocaine and the other contained a mixture of cocaine and phenacetin. The two bags weighed 14.5 grams and 12.92 grams. A bundle of cash, $345.00, was found on top of the satchel.

[46] Found under the bed in the bedroom were the two mobile phones discussed earlier. The contents of the second phone showed numerous text messages beginning on August 8, 2019 and continuing to the early morning hours of August 21, 2019 with a variety of people that is consistent with drug trafficking. Many of the texts involve arrangements to meet and to engage in unnamed transactions. A small number are more explicit, stating, for example, “OK give me two grams for 150”, “240 for the soft 3.5” “or 200 for hard”, “Hello I need ball of soft cash by 5 530 please reply”, “He need 250 now”, “Can you do like a 50 of soft for me”, “140 half ball so raw”. One incoming text says “Luca” and one outgoing text to “brother” refers to “Yuanna.” Just after midnight on August 21, 2019, outgoing texts state “I got some bling soft 220 a ball” and “Or the hard 2bills.”

[47] Ms. Kohne provided a videotaped statement on August 22, 2019 and another statement four months later, on December 21, 2019, when accompanied by counsel.

[48] Like Ms. Ricketts, Ms. Kohne was a reluctant witness at trial. In her initial testimony she claimed not to remember key events over something that was “super-traumatizing” for her. In particular, she claimed not to remember seeing Mr. Salvati with a gun, despite having told the police following her arrest that she had seen a gun, and saying that again in her subsequent statement.

[49] Pursuant to s. 9(2) of the CEA, on essentially the same basis as with Ms. Ricketts, I permitted the Crown to cross-examine Ms. Kohne on the inconsistencies between her initial testimony and the statements she made to the police. She did not dispute what she told the police, and she agreed that she tried to tell the truth to the police based on her recollection at the time. She agreed that the statements jogged her memory; however, she claimed to have no memory of the gun, saying that she had been drinking heavily, that she was afraid, did not want anything to do with the matter, and that she “was in the wrong place at the wrong time.”

[50] Under cross-examination by the Crown, Ms. Kohne adopted her statements as being her truthful evidence of what happened with Mr. Salvati and Mr. Sacco on August 20, 2019.

[51] In my view, having observed portions of Ms. Kohne’s videotaped statements and her testimony at trial, her statements are reliable and reflect her truthful recollection of events on the evening of August 20, 2019 and the morning of August 21, 2019. Although she may have been drinking and may have consumed drugs in the 12 to 24 hours prior to her arrest, she was able to drive that evening and was observed driving on the morning of August 21, 2019 in a car, the red Lincoln, which she had the ability to rent the previous day. There was no suggestion from the observations of her by the police before or after her arrest that she was intoxicated. Based on photographs and her own testimony, Ms. Kohne was sleeping prior to the search. Her videotaped statement on August 22, 2019 was given approximately 24 hours after her arrest. Detective Cash stated that Ms. Kohne was tired and upset, as she appeared to be on the video, but she was coherent and not intoxicated.

[52] In the statement given following her arrest, when told that the police had found a black, loaded gun in her car, Ms. Kohne said it belonged to “Luca.” She said Mr. Salvati had sat in both the back and front seat of her car, and that she saw the gun in Mr. Salvati’s “side bag” or a “little black bag”, when he opened it.

[53] Four months later, on December 21, 2019, in a cautioned, involuntary statement, Ms. Kohne provided a more detailed account. She said that on the evening of August 20, 2019, she was with her then boyfriend, Mr. Sacco, who said that “Luca” needed a ride. On the way to picking up Mr. Salvati, Ms. Kohne said that Mr. Sacco told her that the police were looking for Luca because he had pulled a gun on his girlfriend. Ms Kohne said this made her nervous. When they picked up Mr. Salvati she said that he got in the back seat behind the driver’s seat with his side bag, and that he then took the gun out and put it on the seat beside him, behind the passenger seat. Later that night Ms. Kohne said she heard Mr. Salvati on the phone talking about the gun, saying that he was aware that the police were looking for him and that he needed to get rid of the gun.

[54] At the trial, Ms. Kohne agreed with another portion of her interview in which she said that they drove around with Mr. Salvati after picking him up. At one point she and Mr. Sacco went to Mr. Sacco’s house to use the washroom, leaving Mr. Salvati in the car alone for a couple of minutes. When she came back the gun was no longer on the seat and Mr. Salvati had moved to the other side of the back seat.

[55] Counsel for Mr. Salvati argues that the two statements Ms. Kohne gave are inconsistent and unreliable. He notes that following her arrest Ms. Kohne said Mr. Salvati sat in both the front and back seats and that she said she saw the gun when he opened his bag but that it stayed in the bag. There was no mention of him discussing the gun in her first interview. However, in her statement in December 2019 Ms. Kohne did not say he was ever in the front seat and she described the gun as having been removed from the bag and placed on the rear seat.

[56] Having viewed the excerpts from Ms. Kohne’s statements provided to the Court, these differences do not make her evidence unreliable on the issue of whether Mr. Salvati was in possession of a gun that evening, or that it was in the car. Ms. Kohne’s comment about Mr. Salvati being in the front seat was made in the same breath as saying he was in the back seat when she was clearly tired and not forthcoming. She said very little in her responses to questions on August 22, 2019. On December 21, 2019 her description of the events was fuller, but she was asked more. In both statements she described, repeatedly, seeing Mr. Salvati with a gun, and testified that her statements to the police were true and she had no reason to lie.

[57] When confronted with the differences in her statements, Ms. Kohne became upset and angry, noting that she was a “drunken drug addict” and said she was not a “reliable witness.” Like Ms. Ricketts, Ms. Kohne appeared frightened when testifying.

[58] However, there is more. In cross-examination by Mr. Salvati’s counsel, Ms. Kohne was shown photographs of herself sleeping in the bed at 180 Rosethorn Avenue, and a photograph of the gun in her lap pointing between her legs when in the driver’s seat of the Lincoln. Ms. Kohne was also shown photographs of herself on the front porch of 180 Rosethorn Avenue which appear to have been taken by a security camera above the front door. In light of the fact that she had only just obtained the Lincoln, and the only time she was in 180 Rosethorn Avenue was on August 21, 2019, the photograph of her sleeping would have been taken that morning and the one with the gun in her lap on that day or the previous evening as she was in the Lincoln and wearing the same clothes as when photographed sleeping.

[59] Ms. Kohne was very upset by these photographs. She claimed she did not know anything about them and would not allow anyone to do this to her. She described the photo with the gun as “disgusting” and suggested that she may have been “passed out in the car at the time”, noting that whoever had taken the photographs had also taken the picture of her sleeping in the bedroom. Only her lap was visible in the photo with the gun.

[60] No explanation was provided as to who had taken the photographs. They were put to Ms. Kohne by Mr. Salvati’s counsel. He submits that Ms. Kohne participated in the photo of her with the gun between her legs, and that the photo may even be a “selfie” taken by her, although that was never suggested to her in cross-examination. Indeed, in the cross-examination of Ms. Kohne, there was some basis to conclude that she was aware of the photo of the gun between her legs.

[61] The photo was not, however, found on Mr. Salvati’s phone. The existence of the other photo of her sleeping in the room where she was found with Mr. Sacco, with whom she was with throughout the evening of August 20, 2019 and the morning of August 21, 2019 and who occupied the front passenger seat of the Lincoln when Mr. Salvati was in the back seat, suggests that Mr. Sacco took the photos.

[62] Whether Ms Kohne was complicit in the photograph of the handgun in her lap in the car or not, and regardless of who took it, the photo confirms that the handgun was indeed in Ms. Kohne’s car on the night of August 20-21, 2019, that it was removed from Mr. Salvati’s satchel, and that this would have been known to Mr. Sacco who was also in the car and who was aware that Mr. Salvati had a gun.

[63] In sum, while Ms. Kohne was a reluctant and frightened witness, and may have engaged in conduct she does not wish to admit, I am satisfied that her evidence, and in particular her statements to the police in which she said she saw Mr. Salvati with a gun in her car on the night of August 20-21, 2019, are reliable. Further, to the limited extent she did not explicitly confirm her statements in her testimony, those prior statements are necessary to address the issues raised in this case, and are admissible for the truth of their contents.

Admissions

[64] It is admitted that neither Mr. Salvati nor Mr. Sacco were licensed or registered to possess the firearm seized from the Lincoln, which was a loaded prohibited firearm.

[65] It is also admitted that Mr. Sacco and Mr. Salvati were, in August 2019, bound by orders under s. 109 of the Criminal Code prohibiting them from possessing a firearm made on May 31, 2016. Mr. Salvati admits that he was bound by an order under s. 110 of the Criminal Code prohibiting him from possessing a firearm made on April 25, 2019, together with probation orders made on the same date prohibiting the possession of any weapons as defined by the Criminal Code, and requiring him to “keep the peace and be of good behaviour.”

[66] Mr. Salvati was also bound by a driving prohibition order made on December 3, 2017, as well as probation orders made on the same date prohibiting him from being in the driver’s seat of a motor vehicle and requiring him to “keep the peace and be of good behaviour.”

Charges against Salvati

[67] Many of the Counts in the Indictment overlap such that multiple convictions on certain Counts will be barred by the rule in Kienapple v. The Queen, 1974 14 (SCC), [1975] 1 SCR 729. However, although raised, I have so far been given limited direction, and received no argument, on that issue. Accordingly, I will make findings on each charge and then consider submissions as to which charges should have convictions entered and which should be stayed.

[68] Dealing first with possession of a firearm, I am satisfied beyond a reasonable doubt that Mr. Salvati, on or about August 19, 20 and 21, 2019, did possess without lawful excuse a prohibited weapon, the Smith & Wesson firearm seized from the Lincoln parked in front of 180 Rosethorn Avenue, while knowingly not being the holder of a licence permitting such possession or being the holder of a registration certificate for the firearm. The evidence of both Ms. Ricketts and Ms. Kohne is consistent and persuasive that Mr. Salvati had possession and control of the handgun on or about those dates.

[69] Further, I am satisfied beyond a reasonable doubt that Mr. Salvati placed the gun on the seat of Ms. Kohne’s car and also either placed it, or permitted it to be placed, on Ms. Kohne’s lap. The gun was loaded when seized from the glove compartment. Having regard to Mr. Salvati’s control of the gun, it was either placed there by him, or he directed Mr. Sacco to place it there, and in my view the only rational inference is that it would have been loaded when placed there on the night of August 20, 2019 or during the morning hours of August 21, 2019. This also supports a finding that Mr. Salvati did not take reasonable precautions for the safety of other persons with the firearm. See, generally, R. v. Smith, 2016 ONCA 25 at paras. 81-82.

[70] Accordingly, I find that the evidence establishes that Mr. Salvati is guilty on Counts 13 to 18, 20 and 25 of the Indictment, dealing with possession of firearms under ss. 86(3)(a), 91(3)(a), 92(3), and 95(2)(a) of the Criminal Code. As Mr. Salvati was also knowingly in a car with the handgun, he is also guilty of Count 19 pursuant to s. 94(2)(a) of the Criminal Code.

[71] In addition, as Mr. Salvati was in possession of the weapon on August 19, 2019 in breach of a probation order prohibiting him from possessing a weapon, he is also guilty under Count 6.

[72] For the same reasons, Mr. Salvati is guilty of Counts 21 to 24 which allege breaches of the firearms prohibition orders made under ss. 109 and 110 of the Criminal Code.

[73] Turning to the first three Counts, dealing with the encounter with Ms. Ricketts at the McDonald’s on the night of August 19, 2019, I am satisfied beyond a reasonable doubt that Mr. Salvati did, without lawful excuse, point the handgun at Ms. Ricketts, and I find him guilty under Count 1 contrary to s. 87(2)(a) of the Criminal Code. Notwithstanding her fear of Mr. Salvati, or perhaps because of it, Ms. Ricketts’ statements at the time were cogent and consistent and supported by video and other evidence. They reflect what happened at the McDonald’s.

[74] I also conclude that by first holding the gun when demanding Ms. Ricketts get out of the car and, later, by pointing it at her, Mr. Salvati threatened to use the gun on her and did thereby commit an assault on Ms. Ricketts, making him guilty of an offence under s. 267(a) of the Criminal Code as charged under Count 3.

[75] Count 2 alleges that Mr. Salvati, by word of mouth, threatened to cause Ms. Ricketts bodily harm contrary to s. 264.1(2)(a) of the Criminal Code. The only specific statement Ms. Ricketts said Mr. Salvati made was that he told her to go home and that he was going to shoot up her door. While not directed, directly, at Ms. Ricketts, I am satisfied beyond a reasonable doubt that the threat was intended to cause Ms. Ricketts to fear for her safety. Mr. Salvati’s anger was directed at Ms. Ricketts, and in the circumstances of him approaching her car door and by telling her to go home and that he’d shoot up her door, Ms. Ricketts reasonably perceived it as a threat to herself. That fear was also clearly evident when giving her statement to the police. Accordingly, I also find Mr. Salvati guilty on Count 3.

[76] The video evidence clearly establishes, and it is not disputed, that Mr. Salvati operated a motor vehicle on August 19, 2019, in breach of a probation order that prohibited him from being in the driver’s seat of a car, under Count 7, and while prohibited from driving contrary to s. 320.19(5)(a) of the Criminal Code under Count 8 of the Indictment. Counts 9 and 10 are identical to Count 8, alleging that Mr. Salvati drove while prohibited on August 19, 2019, contrary to s. 320.19(5)(a) of the Criminal Code. The evidence of Mr. Salvati driving a car stems from the incidents at the McDonald’s which took place in very quick succession. He is seen driving the car three times, although the second and third sighting may be one continuous course of conduct. I am concerned that it may not be appropriate to find him guilty of the same offence three times. I therefore only find him guilty under Count 8, and will entertain submissions as to whether he can or should be found guilty under Counts 9 and 10.

[77] Counts 4 and 5 arise from the police chase, alleging that Mr. Salvati failed to stop while being pursued and that he engaged in dangerous driving, contrary to s. 320.19(5)(a) of the Criminal Code. However, there is insufficient evidence to conclude that Mr. Salvati was driving the car at that time. Although just a short time earlier he had been seen driving the Honda Civic, shortly before that Mr. Salvati had been seen in the passenger seat with someone else driving. The whereabouts of the car is unknown for several minutes between the events at the McDonald’s and the pursuit of the car. The drivers may have changed again. As the police could not identify who was driving, I have a reasonable doubt as to whether Mr. Salvati was driving when the car failed to stop and was pursued by the police. Counts 4 and 5 are not proven and Mr. Salvati is found not guilty on them.

[78] In Counts 35 and 36 Mr. Salvati is charged with possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, and with possession of money that was the proceeds of crime contrary to s. 355(a) of the Criminal Code.

[79] I am satisfied beyond a reasonable doubt that Mr. Salvati possessed the two bags containing cocaine found in the basement of 180 Rosethorn Avenue. The drugs were found in his satchel in a bedroom that contained his clothes. He was nearby. No expert was called to speak to the quantity of the drugs being consistent with possession for trafficking purposes rather than personal use; however, based on the totality of the evidence I am satisfied beyond a reasonable doubt that he possessed those drugs for the purpose of trafficking. The evidence includes the text messages consistent with drug dealing right up to the early hours of August 21, 2019, when Mr. Salvati was offering to sell drugs and had those drugs in his possession. One of the bags contained phenacetin, which is a cutting agent used by drug dealers. The combined quantity possessed by Mr. Salvati was over 27 grams, which may be contrasted with approximately 4.6 grams found in the bags thrown out of the second floor window, of which only 0.71grams was cocaine, in one bag. The cumulative effect of all of this circumstantial evidence is, in my view, sufficient to satisfy the criminal standard of proof for possession for the purpose of trafficking: see R. v. Smith, 2016 ONCA 25 at paras. 80-81. Accordingly, I find Mr. Salvati guilty on Count 35.

[80] Mr. Salvati was also found with $345.00 in cash. While not an insignificant sum, it is not an unduly large amount of cash either, and I cannot conclude, beyond a reasonable doubt, that this money was the proceeds of crime, specifically drug dealing, as opposed to being from some other source. Accordingly, I find Mr. Salvati not guilty under Count 36.

[81] Counts 11 and 12 allege breaches of probation orders to keep the peace and be of good behaviour on or about August 21, 2019. As Mr. Salvati has been found to have committed criminal offences on August 21, 2019 he is in breach of those orders and I find him guilty on those Counts.

Charges against Sacco

[82] Mr. Sacco is charged with a number of Counts alleging that he unlawfully possessed the firearm, and that he stored it in a careless manner, contrary to ss. 86(3)(a), 91(3)(a), 92(3) and 95(2)(a) of the Criminal Code (Counts 26 – 31, 33 and 34). I am not satisfied that the evidence establishes that Mr. Sacco possessed the handgun. There is no evidence that he held it or possessed it himself, or that he had any control over the gun, nor that he stored the gun. These are essential elements of the Counts which have not been established.

[83] I have considered the Crown’s theory that Mr. Sacco put the gun in the glove compartment of the Lincoln, perhaps when he went out to the car alone during the morning of August 21, 2019 and that it was for that reason that he hid the key to the Lincoln on the window ledge and attempted to distance himself from the car upon arrest. But there is also evidence that Mr. Salvati was left alone in the car earlier and it is plausible that he put the gun in the glove compartment, as Ms. Kohne said she did not see the gun after Mr. Salvati was left alone in the car. Further, the Lincoln contained remnants of plastic bags consistent with drug use, which was another reason for Mr. Sacco to have hidden the key and to disassociate himself from the car.

[84] Count 32, however, charges Mr. Sacco with occupying a motor vehicle knowing that there was a prohibited weapon in the car contrary to s. 94(2)(a) of the Criminal Code. I am satisfied beyond a reasonable doubt that this offence is proven. Mr. Sacco warned Ms. Kohne that Mr. Salvati had a gun even before they picked him up during the evening of August 20, 2019. Mr. Sacco would have seen what Ms. Kohne saw of Mr. Salvati displaying the gun on the seat of the car and heard the conversations in which Mr. Salvati was saying he had to get rid of the gun. Furthermore, the photograph of the gun on Ms. Kohne’s lap in the car was likely taken by Mr. Sacco, and the incident would have at least occurred with his knowledge when he was in the car, as he was with Ms. Kohne during this period of time. Control of the weapon is not required for this offence: R. v. Anderson-Wilson, 2010 ONSC 489 at para. 68; R. v. Swaby (2001), 2001 2829 (ON CA), 54 OR (3d) 577 (CA) at paras. 17-20. Accordingly, I am satisfied beyond a reasonable doubt that Mr. Sacco was in the car knowing there was a prohibited firearm in the car, and I find Mr. Sacco guilty under Count 32.

[85] This leaves Count 37, which charges Mr. Sacco with possession of cocaine for the purpose of trafficking. On this charge, I am satisfied beyond a reasonable doubt that the bags of cocaine were in Mr. Sacco’s possession. While it is quite possible the drugs belonged to Ms. Kohne, as she acknowledged she had bought and been taking drugs over the previous few days, she was with Mr. Sacco during that time period. As noted, the Lincoln, which Ms. Kohne said she had just rented, contained scraps of plastic bags suggesting drug use in the car, which would likely have included Mr. Sacco. Ms. Kohne testified that she went straight to sleep when she arrived at 180 Rosethorn Avenue, and there is a photograph of her sleeping there. She denied throwing the drugs out the window and had no knowledge of the key to the Lincoln being placed on the window ledge. Mr. Sacco’s quick reaction to the police when they conducted the search, remarking on the loud noise, and his attempt to distance himself from the car by lying about how he got to the house, leads me to conclude that he was the one who hid the key, and that he would also have had the presence of mind, and opportunity, to have thrown the cocaine out the window. Whether it was Ms. Kohne’s cocaine or not, Mr. Sacco had possession of it at that time.

[86] There is, however, insufficient evidence to support a conclusion that the drugs thrown out the window were possessed for the purpose of trafficking. The amount was small and there was no evidence suggesting Mr. Sacco is a drug dealer, as there was for Mr. Salvati. Accordingly, I find him not guilty under Count 37, but find him guilty of the included offence of possession of cocaine under s. 4(1) of the Controlled Drugs and Substances Act.

Conclusion

[87] In light of my findings, I will hear submissions from counsel on Counts 9 and 10, and on the Kienapple issues to determine the Counts on which convictions should be entered.

Paul B. Schabas J.

Released: December 10, 2021

COURT FILE NO.:CR-20-50000340-0000

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

GIANLUCA SALVATI & PAOLO JUNIOR SACCO

REASONS FOR JUDGMENT

Paul B. Schabas J.

Released: December 10, 2021