r v. NICK TSIRMBAS, 2011 QCCQ 12203

Director of Criminal and Penal Prosecution c. Tsirmbas 2011 QCCQ 12203 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL CITY OF MONTREAL CRIMINAL AND PENAL DIVISION No: 500-61-263368-095 DATE : June 21, 2011 PRESIDING : MADAM SUZANNE BOUSQUET PRESIDING JUSTICE OF THE PEACE DIRECTOR OF CRIMINAL AND PENAL PROSECUTION Prosecutor v.

NICK TSIRMBAS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On the evening of August 17, 2007, while driving to a shopping center with four children in her car, a woman runs out of gas on highway 40 in the Montreal West-Island. She immediately calls her husband (the defendant), a taxi driver, for help.

Minutes later, he arrives in his taxicab, parks behind his wife's car on the shoulder of the road, and proceeds to fill her gas tank with gasoline that he brought along with him. [ 2 ] Is the defendant's action liable to endanger human life and safety or property ? This is the question that the Court must answer, while taking into consideration the fact that witnesses disagree entirely on how things happened that night. THE PROSECUTION'S EVIDENCE [ 3 ] Two witnesses testified for the prosecution : Mr.

Alain Crevier, driver of a tow truck sent on the premises to remove the first car off the highway, and constable Hélène Lussier, the police officer who intervened and gave the defendant, Mr. Nick Tsirmbas, a ticket for violation of

article 327 of the Highway Safety Code , R.S.Q., c. C-24.2. The testimony of Mr. Alain Crevier [ 4 ] On the evening of August 17, 2007, Mr. Crevier is on duty. He is the driver of a tow truck owned by Remorquage West-Island, a company authorized by contract with the Ministère des Transports du Québec (the MTQ) to tow vehicles on highway 40 . [ 5 ] At about 20:25, he receives a call from the MTQ and the Sûreté du Québec (SQ) concerning a car stalled on the right side shoulder on highway 40 westbound, at the level of Parkway. He drives over and parks his truck directly in front of the vehicle, a Volvo. This is a three-lane highway and the shoulder is just wide enough for his truck.

[ 6 ] According to internal rules, the driver must stay in his tow truck and cannot start lifting the vehicle until an SQ officer or an MTQ patrolman arrives on the premises and closes the adjacent lane. When the MTQ truck arrives 10 minutes later, he informs the woman driver that he must move her car away and bring it to the next exit. The MTQ pick-up truck is then parked on the shoulder, behind the stalled vehicle. [ 7 ] According to his testimony, the driver tells him that she doesn't have enough money to pay for the towing, that she has run out of gas, and that her husband is on his way with gasoline.

She then becomes agitated. He tells her that he has no other choice but to tow her car off the highway, and that he will call the police if she refuses, which he does. [ 8 ] He then confers with the MTQ truck driver and they decide to wait a few more minutes, time enough for him to smoke a cigarette. After five to ten minutes, the MTQ truck driver tells him that he must tow the car away. [ 9 ] Before he can get all his equipment out of his truck, a taxicab arrives and parks behind the stalled Volvo.

He then sees the taxi driver, the defendant, approach the Volvo and pour gasoline from a windshield washer jug into a smaller water bottle and then into the car's gas tank. In the process, some gasoline leaks on the ground. [ 10 ] Meanwhile, the MTQ truck has moved onto the right lane to block the incoming traffic. Because the gas tank is on the driver's side of the Volvo, the defendant's body protrudes dangerously into this lane as he is pouring. According to Mr.

Crevier's testimony, if the MTQ pick-up truck had not been there, there could have been an accident. [ 11 ] "And then the police arrive" , he declares. [ 12 ] When questioned by the defendant, the witness answers that the woman had already left when the police arrived. On the premises were the defendant, the driver of the MTQ truck and himself. [ 13 ] Furthermore, the witness remembers the woman driving off in her husband's car, and does not recall towing her car after all.

The testimony of Officer Hélène Lussier, Sûreté du Québec [ 14 ] On August 17, 2007, while officer Lussier is on duty patrolling Highway 40 with officer Luc Lapointe, she receives a call concerning a car driver who refuses to be towed away. [ 15 ] When she arrives on site, at 20:48, a tow truck is parked on the shoulder of the highway, in front of a Volvo.

Behind this Volvo is a taxi, and an MTQ truck is in the right lane alongside the Volvo, with its arrow turned on to deviate traffic. [ 16 ] As she arrives, she sees the defendant holding a transparent water jug and pouring gasoline from a small water bottle into the Volvo's gas tank, from the driver's side of the car.

She considers this action to be very dangerous because he is standing directly on the white line of the shoulder and, as he is bending to pour the gasoline, his backside sticks out into the right lane. [ 17 ] She then sees him quickly pull the water bottle out of the gas tank opening, put it into a plastic bag with the jug, and drop the bag in the trunk of the taxi. [ 18 ] The MTQ truck moves backwards on the right lane, allowing her to park on the shoulder behind the taxi. She turns on her flashing lights, gets out of her vehicle, confronts the man and tells him that what he is doing is dangerous.

While they discuss, the woman drives off in her own car.

[ 19 ] She then asks the defendant to open the trunk of his taxi and notices that the bottles smell distinctly of gasoline. [ 20 ] She adds that, at this time in the evening, rush hour is over and traffic is fluid. There are merging vehicles coming constantly from highway 13 onto this stretch of the 40 West at a speed of 100 km/hr to 110 km/hr, making the defendant's maneuver very dangerous.

Not only was he putting his own life in jeopardy, but also the security of all persons on the road, including his wife, his children and the two truck drivers. [ 21 ] She adds that when a driver runs out of gas on a highway, he must stay inside his car and wait for help. There are cameras everywhere in this area on the 40 West, MTQ trucks are constantly on patrol, and tow trucks arrive promptly. [ 22 ] When questioned by the defendant, officer Lussier adds that the woman was still on site in her car when she arrived.

Furthermore, she could tell that the defendant and his wife were having an argument and she could hear a child screaming or crying. [ 23 ] Officer Lussier's report was submitted in evidence under P-1, countersigned by officer Luc Lapointe. THE DEFENDANT'S EVIDENCE [ 24 ] Straightaway, Mr. Tsirmbas declares that there is no truth whatsoever to Mr. Crevier and officer Lussier's testimonies. The events did not at all happen as they suggest. [ 25 ] In a nutshell, Mr.

Tsirmbas admits that he brought his wife some gasoline, but he claims to have brought it in a standardized red container, and poured it into her gas tank from the right side of the car. He adds that his wife was then able to leave in her own car well before officer Lussier arrived. [ 26 ] According to his testimony, this is how things really happened : On the evening of August 17, 2007, he is in line waiting to pick up a client at Dorval airport when his wife calls him to say that she is stuck on highway 40 with four children in her car, and she thinks that she may have run out of gas.

He explains to her that, by law, all stalled cars must be towed off the highway. He then calls 9-1-1 and asks for a police car to be sent over and help her. [ 27 ] While he's talking to his wife, he hears a conversation that she is having with a tow truck driver. This man is telling his wife that, for 200 $, he can get her gasoline from a nearby service station.

She answers that he must tow her car to the next exit, but the driver insists that he will get her gas. [ 28 ] Sensing that this man is taking advantage of his wife, he tells the client that he has just picked up that he cannot drive him and that he must leave. [ 29 ] Assuming that his wife needs gasoline, he then goes to an Esso service station in Dorval, buys a standard red container, fills it up with gasoline and then drives off to help his wife. [ 30 ] When he arrives, he parks his taxi on the shoulder of the road, behind his wife's car, and then proceeds to fill the gas tank, using the container nozzle, from the passenger's side of the car.

He states that gas tanks on 850 Volvos are on the right side. [ 31 ] According to the defendant, when officer Lussier arrives, his wife has already left in her own car, three minutes earlier, with the children. She could not have left in the defendant's car, seeing it is a taxicab. Obviously, the testimony of the tow truck driver is incorrect. [ 32 ] The defendant is in his taxi, with his seatbelt buckled in, about to leave. Officer Lussier jumps at him, tells him that what he is doing

is very dangerous, poking him four times in the chest. He asks her to stop, or else he will call the police, to which she adds: "La police ne vient pas. La police est ici . " [ 33 ] Furthermore, Mr. Tsirmbas claims that officer Lussier never opened the trunk of his car. [ 34 ] He thought that officer Lussier was giving him a ticket for carrying dangerous material.

As to carrying gas in a windshield water bottle, he adds : "This is impossible because nobody in Quebec is allowed to sell gasoline unless it's in the proper container" . [ 35 ] When questioned by the prosecutor, he adds that he never talked to the tow truck driver upon his arrival, nor did he ask him to tow his wife's car. He does not remember clearly if an MTQ truck was on site. THE SUBMISSIONS OF THE PARTIES [ 36 ] Mr. Tsirmbas argues that he did not endanger his own life or anyone else's, because the gas tank was filled from the right side of the car.

Furthermore, he did not carry gasoline in a windshield washer jug. "Why would I call 9-1-1 myself" , he adds, "ask the SQ to go and help my wife, and then deliberately make trouble once I arrive on the scene ?" [ 37 ] All he did was come to his family's rescue, because his wife was being bullied and taken advantage of by a tow truck driver. He assumes that Mr.

Crevier's plan was to give 120 $ to his employer and keep the other 80 $ for himself. [ 38 ] He also claims that his wife had already left the scene when officer Lussier arrived, and that she never saw the events that she describes in her testimony and in her report.

He adds that, because of their confrontation and the way she treated him on August 17, 2007, officer Lussier is in a power position and is before this Court solely to protect her side of the story. [ 39 ] Finally, he argues that the prosecutor's evidence is "the result of collaboration between a police officer and a tow truck driver basically trying to protect themselves because they believe that I will take this matter further, which I will not do . " [ 40 ] The prosecutor, on the other hand, asks the Court to consider the versions of Mr. Crevier and officer Lussier. She argues that Mr.

Crevier is a credible and independent witness, who has nothing to gain in this story. Furthermore, the conversation that Mr. Tsirmbas recalls having heard through his wife's earpiece is hearsay and therefore not admissible. [ 41 ] There is also no corroboration to Mr. Tsirmbas' testimony, no witness, nor any picture showing that the gas tank of his wife's car is on the right side. [ 42 ] As to officer Lussier, the prosecutor argues that she only accomplished her duty. This event, on a whole, is far from being exceptional. Having rightly concluded that Mr.

Tsirmbas was acting dangerously and thereby committing an offence, officer Lussier gave him a statement of offence. [ 43 ] She also argues that there is sufficient evidence to conclude that the defendant's actions were indeed liable to endanger lives, including his own. ANALYSIS [ 44 ] Mr. Tsirmbas is accused of violating

article 327 of the Highway Safety Code ; this offence reads as follows : 327. Any rate of speed or any action that can endanger human life and safety or property is prohibited.

In addition to public highways, this

section applies on highways under the administration of or maintained by the Ministère desRessources naturelles et de la Faune, on private roads open to public vehicular traffic, as well as on land occupied by shopping centresand other land where public traffic is allowed. [45] As described by the defendant, the events that occurred on August 17, 2007 do not constitute a careless act. As described by theprosecution, they do. [46] When confronted with two opposite versions, the Court must not decide whether to believe the defendant's evidence or theprosecutor's evidence.

Instead, it must rely on the rule established by the Supreme Court of Canada in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 : First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [47] When assessing the credibility of a defendant, the Court must, however, take into account the evidence as a whole, as establishedby the Supreme Court of Canada in R. v. L. (D.O.), (SCC), [1993] 4 S.C.R. 419 : The trial judge applied the proper test for weighing the evidence.

Whether an account given by an accused might reasonably be true isnot the proper test of whether the Crown's evidence should be rejected. It is simply one factor in assessing the overall impact of theevidence as a whole. The only question for the trier of fact at the end of the trial is whether or not, on the whole of the evidence, theCrown has proved its case beyond a reasonable doubt. If it has, the accused must be convicted. If there is a reasonable doubt, theaccused must be acquitted. [48] Does the Court believe Mr. Tsirmbas' testimony ?

Or, is the Court left with a reasonable doubt, considering the evidence as awhole ? [49] Although the defendant adamantly claims that he is a victim of fabrication, the Court disregards his testimony. [50] Firstly, the time frame that he proposes for the sequence of events is not realistic. He alleges that he heard Mr. Crevier say to hiswife that he was not going to tow her car, but rather buy gasoline for her and charge her a fee of 200 $. [51] In his testimony, Mr.

Crevier states that he had a conversation with the defendant's wife and explained to her that the towingwould cost more than the 90 $ that she had on her. Perhaps Mr. Tsirmbas misunderstood this conversation, but whatever the case maybe, he arrived on the scene almost immediately with gasoline. And yet, what he tells us that he did after hearing this conversationcertainly required more than the five to ten minutes it took Mr.

Crevier to smoke a cigarette : he explained to a client that he had to drophim off, left the airport, drove to a service station in Dorval, bought a container, filled it up with gasoline and paid, and then drove fromthe service station in Dorval all the way to highway 40. [52] Secondly, he has no proof of purchase to show that he bought a standard red container to carry the gasoline, although he claimshaving bought it only minutes before. He simply states that no one in Quebec will sell you gasoline unless it's in a proper container.

Thisstatement is not very convincing, since self-service is now the norm in all service stations. [53] Thirdly, Mr. Tsirmbas alleges that the tow truck driver was trying to take advantage of his wife and children and that he came to

their rescue. If it was so urgent to come to his family's help, and if he wasn't even certain, according to his own testimony, that the gas tank was empty, why did he not head directly to highway 40 ? Why did he stop on his way, considering that, according once again to his own testimony, there was a service station at the next exit off highway 40.

Furthermore, the Court finds it very difficult to understand why he did not utter a single word of disapproval or discontent to the tow truck driver. [ 54 ] Fourthly, he claims that the gas tank on his wife's Volvo is on the right side, but he brings no picture, no manual, and no witness to corroborate this fact. According to his testimony, he thought that officer Lussier was charging him with carrying dangerous material.

However, the evidence was disclosed to him on October 5 th , 2010, and for months, he has known the exact facts that are held against him, as described in the "Rapport d'infraction" : " A" (The defendant) mari de la conductrice de la Volvo arrive sur les lieux avec de l'essence dans une cruche d'eau transparente qu'il transvide dans une petite bouteille d'eau pour mettre de l'essence dans la Volvo. Action très dangereuse du fait que "A" verse l'essence du côté gauche de la Volvo qui est très près de la voie droite.

Trafic très dense et vitesse 100 à 110. 8419 (Officer Lussier) explique à "A" qu'il n'a pas le droit de faire ce qu'il a fait car très dangereux sur une autoroute. [ 55 ] Fifthly, if his wife had already left when officers Lussier and Lapointe arrived on the scene, and he himself was already buckled up and ready to go, why would officer Lussier jump out of her car "like a raving lunatic" and poke him in the chest, telling him that he was doing something dangerous.

If, as he claims, she did not see him filling his wife's car with gasoline, why would she, an experienced police officer, react in such a manner, if all there was to see was a taxicab driving off the shoulder of highway 40 ? [ 56 ] Not only does the Court dismiss the conspiracy and collaboration theory raised by the defendant, but finds it completely implausible and ludicrous. The Court fails to understand how and why four different people would make up such a story. Because, in addition to Mr. Crevier and officer Lussier, a second policeman saw Mr.

Tsirmbas pouring gasoline from a water bottle into the left side of the Volvo : officer Luc Lapointe, whose name appears as a witness on the Offence Report and on its Supplement. He also would be lying. Furthermore, the MTQ truck driver would also have to be part of this conspiracy. If not, would he not report to proper authorities this tow truck driver flagrantly violating his employer's contract with the MTQ. [ 57 ] For all theses reasons, the Court dismisses the defendant's testimony. [ 58 ] This being said, the Court finds Mr. Crevier and officer Lussier to be thoroughly credible witnesses.

They testified simply, convincingly, describing actions that they both sincerely considered to be dangerous. [ 59 ] They do disagree on one fact, and that is when Mr. Crevier states that the woman driver left in her husband's car. Obviously, he is mistaken ; she could not drive off in a taxi. This difference in their testimony only convinces the Court that they did not collaborate in making up a story, as the defendant claims.

Otherwise, their facts would certainly add up. [ 60 ] The Court is convinced beyond doubt that facts did indeed happen as these two witnesses described them and concurs with their conclusion. When he was bending on the driver's side of his wife's car, dangerously close to passing cars in the right lane behind him, Mr.

Tsirmbas was endangering human life and safety. [ 61 ] That he was pouring this gasoline from a windshield washer jug and a water bottle made his action even more dangerous. [ 62 ] FOR THESE REASONS, THE COURT : [ 63 ] FINDS THE DEFENDANT guilty of the offence held against him ; [ 64 ] CONDEMNS THE DEFENDANT to pay the minimal fine of 300 $ plus costs ; and

[ 65 ] GRANTS THE DEFENDANT a delay of three months to pay. __________________________________ SUZANNE BOUSQUET, Presiding Justice of the Peace Me Anik Archambault For the prosecutor Mr. Nick Tsirmbas Representing himself Date of hearing : May 26, 2011