2024 QCCQ 388, 2024 QCCQ 388

Director of Criminal and Penal Prosecutions c. Giuliano 2024 QCCQ 388 QUEBEC COURT CANADA PROVINCE OF QUÉBEC DISTRICT OF ST-FRANÇOIS « Criminal and penal division » N o : 450-61-078810-230 450-61-078811-238 DATE : January 22th, 2024 ______________________________________________________________________ BEFORE MADAM TANYA LAROCQUE, JUSTICE OF THE PEACE AND JUDGE ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Prosecutor c.

ANTONIO GIULIANO Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] A police car is stopped at Km 113 on the shoulder of highway 10 with his left tires encroaching the right lane by 15 cm. The flashing lights and arrow of the officer’s patrol car are activated. The officer looks in his rearview mirror before getting out of his car when he sees a black Wrangler Jeep approaching in the left lane. He sees the Jeep move to the right lane before passing him.

His patrol car shakes when the jeep passes him while still in the right lane. He notes that the Jeep’s left tires are very close to the central white line at that moment. The officer estimates the Jeep was about one meter away from the patrol car when passing him and that he could not have opened his car door without hitting the Jeep. [ 2 ] The officer notes the Jeep has a green license plate and heads off to intercept it. He never loses sight of the jeep and intercepts it at km 118.

The driver is identified as the defendant. [ 3 ] The defendant is accused of not having moved over [1] . [ 4 ] If an emergency vehicle is stopped on the shoulder or on a lane contiguous to the lane in which the driver of the road vehicle is travelling, the driver has two cumulative obligations, he must, in the following order : 1) Reduce speed to avoid endangering human life or safety or any property that is on the shoulder or in that other lane ; 2) Change lanes, if there is another lane for travelling in the same direction and after making sure it can be done safely, so as to leave one free lane between the vehicle and the stopped vehicle or, otherwise, put as much distance as possible between the vehicle and the stopped vehicle while remaining in the same lane.

Reduce speed [ 5 ] The reduction of the speed must be adapted to the space needed for the safety corridor [2] . The bigger the corridor, the less the speed must be reduced. The smaller the safety corridor, the more the speed must be reduced. [ 6 ] In both cases, the reduction of the speed must be sufficient to avoid endangering human life or safety or any property.

Therefore, the court must evaluate the facts brought forth to determine if the speed was sufficient. [ 7 ] The defendant does not look at his speedometer during the events but estimates his speed at 100 km/h and reduces that speed to 95 km/h when passing the officer.

The defendant’s testimony concerning his speed is unreliable since he is guessing the speed at which he passes the officer. [ 8 ] The defendant’s girlfriend also testifies on the events but did not mention the speed at which they were traveling. [ 9 ] The only fact which the Court can rely on concerning the defendant’s speed is the shaking of the officer’s car which would only occur if a vehicle passed to fast and to close to the patrol car. [ 10 ] Therefore, the court finds that the defendant did not reduce his speed enough to avoid endangering human life or safety of property.

Change lanes [ 11 ] The Court faces contradictory versions concerning the changing of lanes. The officer says the defendant stayed in the right- hand lane and the defendant states driving in the left-hand lane when passing the officer. [ 12 ] In regulatory matters, the Supreme Court sets out the procedure to be followed in matters of contradictory evidence [3] .

It's not a matter of choosing one version over another, but of determining whether or not the Court believes the defendant, whether his version raises a reasonable doubt and whether the prosecution's case demonstrates guilt beyond a reasonable doubt. [ 13 ] The court does not believe the defendant. His version of the facts contains contradictions, inconsistencies and improbabilities rendering his testimony unreliable and not credible. Furthermore, no reasonable doubt arises from h is version and the testimony of his girlfriend is not credible.

The whole proof shows the defendant’s guilt beyond a reasonable doubt. [ 14 ] A testimony is evaluated globally, but a particular element can lead the judge to believe or not to believe a witness [4] . [ 15 ] The defendant sees the flashing lights of the patrol car from 100-150 yard away. There is another car in front of him that moves to the left lane. He does the same. He drives past the officer and looks over and did not see anything unusual. He moves back to the right lane well after passing the officer.

Nine or ten minutes later, the officer intercepts him at the Orford exit. [ 16 ] It is unrealistic to believe that it took the defendant nine to ten minutes to travel 5 km at a speed estimated at more than 95 km/h before being pulled over by the officer. The math just doesn’t add up. [ 17 ] The defendant describes his Jeep which corroborates the exact description given by the officer. The defendant states that another Jeep like his did the maneuvers seen by the officer.

The court had to ask clarifications on the subject only to learn that the defendant is speculating and that he did not actually see another Jeep in the vicinity. This hypothesis cannot raise a reasonable doubt and affects the credibility of the defendant. [ 18 ] The cross-examination of the defendant reveals that he spontaneously told the officer that he « did not see him » (the officer). He also spontaneously tells the officer that he was driving on the two lanes when he past him (the officer). This statement corroborates the officer’s observations.

The court does not retain the defendant’s hypothesis to the effect that the officer misunderstood him because the officer’s English was not good. The officer was not cross-examined on this subject and therefore this assumption does not raise a reasonable doubt. [ 19 ] The defendant specifies in cross examination that the distance between his car and the patrol car was ten, fifteen to eighteen feet. This account is unprecise and unrealistic given the placement of the patrol car.

The measurements given by the defendant (10-18 feet) gives a margin of eight feet which would put the defendant on the left-hand shoulder of the highway since the officer’s car is encroaching the right lane. [ 20 ] The testimony of the defendant’s girlfriend is unreliable and not credible. Suggestive questions are asked to her and her answers mimicked the defendant’s testimony almost word for word. Therefore, the Court cannot retain her testimony. [ 21 ] The fact that the officer did not see a passenger in the Jeep and did not see the license plate number does not affect the credibility of the officer.

Noting the exact license plate number of a car that whisks by is not an easy task and is merely impossible. The courts do not ask this of the officers in order to identify a vehicle. A description of the vehicle is sufficient, especially when that vehicle is not lost from the officer’s sight. [ 22 ] THEREFORE, the proof demonstrates that the infraction is committed beyond a reasonable doubt. Driving a vehicle without his insurance documents [ 23 ] The defendant is also accused of driving without having with him his certificate of insurance [5] .

The defendant admitted committing this infraction and will be declared guilty accordingly. FOR THESE REASONS, THE COURT : [ 24 ] DECLARES the defendant guilty of the infractions. [ 25 ] CONDEMS the defendant to pay a fine of 200 $ with costs in the next sixty days of the present judgment in the case file 450-61-078810-230. [ 26 ] CONDEMS the defendant to pay a fine of 30 $ with costs in the next sixty days of the present judgment in the case file 450-61-078811-238. __________________________________ TANYA LAROCQUE JUSTICE OF THE PEACE and JUDGE

Me Marie-Christine Simard Attorney for the prosecution The defendant is not assisted by an attorney Date of hearing: January 10 th 2024