R. v. Tsigirlash, 2015 ONSC 4011
CITATION: R. v. Tsigirlash, 2015 ONSC 4011
COURT FILE NO.: 1965/13
DATE: 2015-06-22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. George Tsigirlash
BEFORE: Mr Justice Ramsay
COUNSEL: Mr Thomas Jacob for the Crown; Mr Geoffrey Hadfield for the defence
HEARD: April 20, 27-30, May 4, 25, June 15-19, 2015
ENDORSEMENT
[1] The Crown having withdrawn count 2, the accused is charged with 43 counts of possession of stolen property and three counts of fraud.
[2] The accused George Tsigirlash is the principal of Auto Enterprises Inc., a salvage yard, repair shop and seller of car parts located at 620 Lincoln Avenue in Niagara-on-the-Lake. He also is said to have stored inventory on properties owned by Anthony Kucan at 25 Niagara Stone Road and on the nearby lot of Seneca Steel at 7 Niagara Stone Road.
[3] On May 12, 2011 a stolen truck was tracked by its own GPS device going directly from the site of the theft in Brampton to the accused person’s shop at 620 Lincoln. The next day the police got a search warrant and seized the vehicle. They commenced an investigation that resulted in the execution of search warrants at the three mentioned properties from June 21 to June 24, 2011.
[4] The main yard at 620 Lincoln Avenue is a large scrap yard with an office building and a Quonset hut, next to Mr Tsigirlash’s residence. A significant number of stolen parts were found, as were documents that were linked to other vehicles of interest. At 25 Niagara Stone Road, there is a building with an office bearing the sign “Auto Enterprises Inc.” The building contains a workshop that did not appear to be in use. In general, the police found a significant number of parts from expensive vehicles that appear to have been cleanly cut into pieces, as opposed to being smashed in an accident. There were several chopped and stripped cars on the Kucan lot. That is, quarters or eighths of a unibody were found thrown into the high grass at the rear, more private end of the property. There were a number of doors and windshields that had been crammed into three transport trailers. In the front part of the yard there were a number of vehicles, generally older, and wrecks that were legitimate.
[5] During the execution of the search warrant the police found a vehicle at 620 Lincoln Avenue that had not been stolen, but that had donated its VIN to a stolen vehicle (count 4). They also found a stolen Honda CRV at 620 Lincoln (count 10), two stolen vehicles at Seneca Steel (counts 13 and 14) and a stolen transport trailer (count 15) and pickup truck (count 16) at the Kucan property.
[6] Motor vehicles are assigned unique Vehicle Identification Numbers – VINs, often conveniently if redundantly called VIN numbers. The public VIN is usually attached to the fore end of the dashboard, fixed in a position to be seen by looking aft through the windshield. There is usually a federal certificate bearing the VIN and other information on the door or door post. The certificate cannot be removed without damaging it. There are also secondary VINs and other identifiers located in various secret places in some vehicles. The secondary VIN is the same number as the public VIN. The manufacturers do not share the location of these numbers with the public. Trained police officers have access to these VINs and their presence or absence can provide evidence of a car’s or a part’s provenance. In the case at bar, the presence of secondary VINs is a feature of the evidence on many of the counts.
[7] Mr Tsigirlash testified. He is 46 years old. He got his start in Canada working for companies that did body work. In year 2000 he bought the salvage yard, which was empty at the time. Over the years, he acquired vehicles and parts from auctions, insurance companies, body shops and consumers. When he buys a car or a part he enters it into his computerized inventory. In cross-examination he clarified that his employees enter the merchandise into inventory. Then if a customer, who might be a consumer, a car dealership or a body shop, wants a part, he knows whether he has it to sell. He might also obtain a part for a customer.
[8] Any part might be worth money. A salvage yard may look like a pile of disorganized junk, but it is not junk to him. For example, a damaged car door might have a handle or a window operating mechanism that could bring a not insignificant price. He showed me photographs recently taken of the yard. He emphasized that it was in better shape when he ran it. He has been excluded from the property by the terms of his bail. Only recently I lifted that condition so that he could prepare for trial. He assures me that the property was more organized in appearance when he was in business. I accept that. I also accept the proposition that what appears to the outsider to be a large number of apparently worthless items is not evidence of receiving stolen property. The items are not worthless, and by necessity a salvage yard looks like a junk pile to the outsider to a certain extent. I actually thought that the yard was fairly well laid out in any event. Mr Grace from the Regional Police confirmed that Auto Enterprises was always compliant with the requirement to keep parts behind a fence and not to pile things so high that they might fall over.
[9] Mr Tsigirlash also sold salvaged vehicles until 2005, when he lost his licence to do so. After that, if a customer wanted a car, he would refer the customer to another dealer. Mr Tsigirlash might help the customer find a salvage vehicle online and then the dealer, who might be MK Auto Sales or Grant Vinocur, would procure the vehicle, sell it to the customer and help the customer import it. Then Mr Tsigirlash would repair it and the customer could license it and put it on the road.
[10] The yard was broadly organized into sections for cars of different origins (Japan, Europe and North America) and trucks and truck parts. There was a transmission rack and a place to store engines. The odd engine stored outdoors would be a damaged engine. The ones that were fit to install were kept in a shed.
[11] As he went through the photos Mr Tsigirlash identified various seemingly unidentifiable cars and parts with precision. He struck me as not only knowledgeable, but astute when it comes to used and damaged cars, trucks and parts. He seemed to know what was on his lot in a great deal of detail.
[12] Mr Tsigirlash provided a list of about 14 employees of Auto Enterprises, including several mechanics and a car painter and body man, in addition to sales staff. One of them, Roland Zabrita, came in as a contractor in 2008. Mr Tsigirlash took him on to help him with his immigration problems and because he was a good car painter. Zabrita had leeway to do his own deals, especially in 2010, at which point Mr Tsigirlash devoted most of his time to renovating the Russian church’s new property. He was leaving the business largely in the hands of the staff, who knew their jobs. Zabrita had parts to store and he used the Kucan property for that. Zabrita also arranged for jobs to be done by other shops when Auto Enterprises was busy. Roland knew a lot about parts. Unfortunately, he was also stealing parts from Auto Enterprises. Roland disappeared without notice, presumably to go back to Moldova, in spring 2011. CBRA officials confirmed to me that Zabrita’s request to extend his visitor’s visa was denied on October 10, 2010.
[13] Mr Tsigirlash testified that he had done a lot of business with Rajesh Chumber. From 2007 or so, he was in and out of Auto Enterprises almost every day. By the spring of 2010, however, he was banned from the property unless Mr Tsigirlash was there because he was suspected of stealing parts. He also had a habit of short changing them on purchases, asking for a few days to pay a balance of, say $500, and then not coming up with the money. Raj bought and sold parts and also used Auto Enterprises as a broker to import cars and repair them. Raj also arranged for his other contacts to fix cars when Auto Enterprises was too busy.
[14] As to the Kucan property at 25 Niagara Stone Road, Mr Tsigirlash testified that in 2005 he spoke to Mr Kucan about buying the property. He agreed to pay $3,000 a month to lease the property for three years, at which point a selling price would be agreed and the lease payments would be deducted from it. After three years they were unable to agree on a purchase price. On advice of his lawyer, he never went back to the property again. He never used it again after 2008. Based on evidence of Mr Kucan at the preliminary inquiry, which was put in by the defence, it seems that for 2006 to 2009 Mr Kucan thought that Tsigirlash owed him $500 a month for something to do with rental of the property. According to Mr Tsigirlash, it was Roland Zabrita who used that yard for storage. The key fobs found at 620 Lincoln that are belong to the same cars as parts found at 25 Niagara Stone are kept in a big cardboard box to which anyone in the shop has access. Mr Tsigirlash explained that he put a caution on the Kucan property two weeks ago to protect his property interest arising out of the lease payments, which were not just lease payments but also down payments on a purchase price. He also has property on the site in the form of a dismantled building.
[15] Mr Tsigirlash testified that he knows nothing about the car parts found at 25 Niagara Stone Road (counts 18-23, 25, 27, 30, 32, 33, 35-39, 41, 46) or the truck and van found at Seneca Steel, 7 Niagara Stone Road (counts 13 and 14). The engines and stolen car parts found at 620 Lincoln Avenue (counts 24, 26, 28, 29, 31, 34, 40, 42-45 and 47) must be some of the parts that Roland Zabrita used to dump here and there. Mr Tsigirlash testified that he knows nothing about them and had nothing to do with them.
[16] Danny Vrbacek was the manager of Auto Enterprises. He started work there in 2009. Mr Vrbacek confirmed Mr Tsigirlash’s evidence about the way the company operated and the role and activities of Zabrita and Chumber. He said that Tsigirlash pulled back from the day to day operations in 2010. He said that he, Vrbacek, had nothing to do with the Kucan property. He also identified receipts from Drew Collision for work done on four vehicles. He said that he got those receipts from Chumber when Chumber arranged for work to be done by Drew on the vehicles associated with counts 5, 6, 8 and 11.
Similar fact evidence across counts
[17] I propose to use evidence across counts as similar fact evidence on the issue of whether the accused knew that an item in his possession was stolen. It is easier to possess a small amount of stolen property unknowingly than a large amount. Evidence of possession of large amounts of stolen property could make it more probable that the accused knew that the inventory he had consisted of stolen property. Using the evidence across counts for that purpose would provide evidence that is sufficiently probative to outweigh its prejudicial effect. It is relevant and probative without resort to propensity reasoning. The acts that are the subject matter of the evidence are sufficiently similar to be probative of knowledge. In possession of stolen property cases, other acts of possession of stolen property are a classic use of similar fact evidence on the issue of knowledge.
Count 1 – Kuldip Gadri’s Freightliner
[18] On count 1 the accused is charged with possession of a stolen Freightliner transport tractor. Kuldip Gadri owns this vehicle. He parked it in the yard in Mississauga in the evening of May 12, 2011. He returned a short time later to find that it was missing. He called the company for whom he was driving, and they tracked it with GPS to the Auto Enterprise yard at 620 Lincoln. It went straight there, arriving shortly before midnight. The next day the police got a search warrant and seized the truck. Its ignition had been removed and replaced with a new one. The new key was still in the truck. According to Mr Gadri’s son Manny, the ignition was hanging down. From the photograph in evidence it is not evident that the ignition actually is hanging down. Mr Tsigirlash acknowledged that it was, but said that ignition problems are common in Freightliners. The GPS monitor had been smashed, but that did not stop the GPS from transmitting. The accused says that Rajesh Chumber delivered the truck to him for repair. He did not know that it had been stolen. Rajesh Chumber denied this. Mr Tsigirlash’s telephone records show that Chumber made several calls to him that evening, particularly around the time of the truck’s arrival at 620 Lincoln.
[19] Mr Tsigirlash testified that on May 12, 2011 Chumber called him several times about a Freightliner that he was having delivered to Auto Enterprises for repairs. Vrbacek said that Raj told him about the repairs, too. The truck needed a new clutch, a used transmission and repairs to a leaking seal on the rear axle. The telephone records show several calls from Chumber to Tsigirlash on the evening that the truck was stolen, ending shortly after midnight. Mr Tsigirlash says that he was having dinner and a swim at his club. Chumber kept pestering him to come to the yard to open the gate and put the truck on the lot. Finally, did that and let Chumber know by telephone. He says that he did not know that the truck had been stolen until the police came the next day.
[20] By agreement, the defence called Chumber’s girlfriend during the Crown’s case, to save the couple an extra trip from Toronto. The girlfriend, Vadawig Thakoordeen, testified that Mr Chumber had bought a number of vehicles through her and for her. In essence, she was helping him with his business, which involved buying and selling cars and trucks. To me, the main point of her evidence was to support the contention that Mr Chumber was knowledgeable in the matter of buying and selling salvage vehicles. She succeeded in making this point as far as I am concerned.
[21] The defence also called Gurmail Nerman, a Mississauga businessman. His evidence for the Crown was aimed at count 15, but it ended up having relevance to the other counts, especially count 1. On count 15 Mr Nerman deposed by affidavit that the trailer found at the Kucan property had been stolen from him. In cross-examination we found out that he bought the trailer from Rajesh Chumber. He bought a Peterbilt truck from Chumber, too. The trailer, the Peterbilt and two other trailers were all stolen from Nerman’s company, Stream Logistics. The Peterbilt ended up in an accident in Maine in 2011, according to CARFAX. It is not too much of a leap to think that Chumber sold vehicles and then, knowing where they were, he stole them back. It adds credence to the theory that Chumber stole Kuldip Gadri’s Freightliner.
Count 3 – Ryder Truck Rental’s Freightliner cab
[22] On count 3, Constable Keith Gauthier testified that on February 28, 2012 he examined a white 2007 Freightliner, registered to Mizanur Rahman under VIN 1FUJA6CK87LX74841. Mr Rahman brought the vehicle in at the request of the police. Records of Copart, a vehicle salvager and recycler, show that the vehicle with that VIN was an Indiana wreck imported from Albany NY and sold to MK Auto Sales of St Catharines on August 25, 2008. On Mr Rahman’s truck, the public VINs were missing but the secondary VIN on the chassis matched the registration. The cab, however, had a different secondary VIN, 1FUJA6CKX4LN60753, which belongs to a truck that had been stolen from Ryder Truck Rental in Niagara. Rajesh Chumber sold the truck to Mr Rahman in June 2011. Chumber testified that he bought it from the accused. At that time, it needed a new hood and some minor parts. The accused did this work and then sold him the vehicle repaired, fit and registered in Mr Chumber’s girlfriend’s name. Two days after the vehicle was registered to Mr Chumber’s girlfriend, Mr Chumber sold it to Mr Rahman.
[23] The CARFAX report, however, shows that the truck Mr Chumber bought had a lot more wrong with it than a missing hood. It was heavily damaged and needed a new cab. He says Auto Enterprises installed it. The defence says that they did not.
[24] Mr Tsigirlash testified that his wife’s brother, Yuri Oursou, bought a Freightliner for Vladimir Starov. Vladimir Starov worked for Auto Enterprises as a driver starting in 2008. The Freightliner came from the Copart auction. Vladimir paid Auto Enterprises $3,100 to have the truck towed from the auction yard. A wire transfer supports the payment of this amount by Starov. According to Mr Tsigirlash, Starov was not happy with the truck. He wanted to sell it. Raj Chumber was interested in buying it. Through his girlfriend, Vadawig Thakoordeen, Raj paid $10,000 for the truck, as is documented in a receipt. Auto Enterprises did not repair the vehicle. Raj took it. The stolen cab must have been added after the truck left Auto Enterprises.
Count 4 – Ferenc Nagy’s Ford Explorer
[25] On count 4, the accused is charged with possession of a stolen 2003 Ford Explorer belonging to Ferenc Nagy. During the execution of the search warrant the police found a 2002 Ford Explorer on the lot at 620 Lincoln Avenue. It was not stolen property. It was registered to George Tsigirlash. But its public VIN was missing. On September 23, 2011 the police asked Ferenc Nagy to bring in his 2003 Ford Explorer, to which the missing VIN was associated in MTO registration records. On inspection, and discovery of the secondary VIN and Ministry records, Mr Nagy’s Explorer turned out to be a vehicle that had been stolen some years earlier. The Crown’s theory is that the accused must have had Mr Nagy’s Explorer in his possession at some time in order to tamper with its registration.
[26] Mr Tsigirlash says that he bought the 2002 Explorer and sold it to Gabor Holod. This was in January of 2005, at which point Auto Enterprises was still licensed to sell vehicles. Tsigirlash bought the vehicle at Copart, imported it and delivered it to Holod. The vehicle never entered Auto Enterprises’ property. Holod used the vehicle for parts and then brought back the leftovers. Tsigirlash had the vehicle registered to himself. It was still there when the police searched 620 Lincoln. The missing doorposts and VIN placard must have stayed with Holod.
[27] Holod’s mother-in-law, called by the defence, confirmed that Holod bought, fixed and sold a 2003 Explorer. The vehicle was registered to her for a time.
Count 5 – Myla Iankova’s BMW
[28] On count 5, a charge of possession of stolen property contrary to s. 355 (b) of the Code, Myla Iankova testified that her brother bought her a 2008 BMW 328is. He imported a damaged car from the United States, had it repaired and registered it to her, for all of which she paid at least $10,000.
[29] Roman Iankov, her brother, testified that he knew George Tsigirlash and he bought a number of accident vehicles over the years and had George repair them. He bought this particular vehicle from the United States on the Internet, after getting advice from George. He imported it and took it to George for repair. He received it from George, registered it and delivered it to his sister. Neither Myla nor George ever had any further significant work done on the vehicle.
[30] On January 17, 2012 Constable D’Angelo of the Toronto Police Service examined the vehicle. Myla brought it in at the request of the police. The vehicle bore the public VIN WBAVG935X8K035599 on the dash and on the federal certificate on the door post. Both were authentic. However, a part of the vehicle bore a secondary VIN, WBAVB73538P101632, which belonged to another vehicle. The part was disclosed to the defence and identified on the record. I have refrained from naming it in these reasons to avoid the necessity of editing them for publication.
[31] The vehicle to which the stolen part belonged was reported stolen in Longueil QC on March 28, 2010. The value of the stolen part does not exceed $5,000. After the theft the part became the property of La Capitale Insurance. The police returned the car to Ms Iankova, who still drives it. The terms of her settlement with La Capitale were not before me. The trunk lid from the Quebec vehicle was found at the Kucan property, 25 Niagara Stone Road.
[32] Mr Tsigirlash testified that Roman Iankov is a good friend and customer. Auto Enterprises often repaired Roman’s limousines if they got damaged in his business. Roman wanted to buy a car for Mila. Tsigirlash found him one in the US and brought it over. Auto Enterprises then repaired the car. He did not repair it himself, but he knows from the insurance company estimate that among the various things that needed fixed, the stolen part was not listed, either on the estimate or on Auto Enterprises’ receipt. He was very surprised to hear from the police that the part in question had been stolen. His examination of the vehicle in 2015 led him to the opinion that the part was original equipment. An independent mechanic, looking at the photos taken by Mr Tsigirlash’s investigator, was of the same opinion. Only when the mechanic took the vehicle apart did he discover that the part was not original. Mr Tsigirlash does not know how the part came to be installed on Mila’s BMW. Nobody at the shop remembers. He asked everybody. That evidence is admissible as an exception to the hearsay rule as a negative answer to a general inquiry, for example, as when a police officer testifies that he has checked with all the hospitals in the city and none of them has a certain person as a patient.
[33] The defence retained Joe D’Amelio of Peninsula Collision to inspect the part in preparation for the trial. It was not apparent to him that it was an added part from the photographs or even on gross examination. When he dismantled the front end, however, he determined that it was, in fact, an added part. Whoever added it did a very good job.
[34] Another interesting feature of Mr D’Amelio’s evidence was that he did routine business with Auto Enterprises as well. He produced the work orders from Auto Enterprises to his company over the period 2008 to 2010. It is recorded that as late as September 2010 Mr Tsigirlash was personally disputing $450 worth of charges. So he had not pulled back from day to day operations entirely.
Three charges of fraud, with associated charges of possession of stolen property
Slavic Lenyk – possession count 6, fraud count 7
[35] Slavic Lenyk testified that he has known the accused for some time. In the summer of 2009 he let it be known that he was looking for a heavy duty pickup truck to start a snow ploughing business. Lenyk’s father does business with Mr Tsigirlash. Mr Tsigirlash arranged for the importation of a gasoline powered Ford truck from New York State. Mr Lenyk signed the customs forms at the border on October 30, 2009. The form bears VIN 1FTWW33S03AE87333. Mr Lenyk did not note the VIN at the time. He did not want this truck, however. It was heavily damaged and it was not diesel powered. On or about December 9 Mr Lenyk took delivery of a diesel powered Ford F350 that bore the same VIN. By agreement, Tsigirlash accepted payment in the form of a reduction of $10,500 that he owed Lenyk’s father on a loan, which Lenyk then re-paid his father. There would have been tax, as well. Tsigirlash delivered the truck and registration in Lenyk’s name.
[36] On February 24, 2011 Mr Lenyk took the truck to Constable D’Angelo at the request of the police. Constable D’Angelo examined it and found that the public VIN under which the truck was registered to Lenyk was glued on, not riveted on, and the federal certificate had been tampered with. The secondary VIN, 1FTWW33P93ED25028, showed that the truck was the property of Thomas McQueen. Mr McQueen had left the truck in a parking lot in Scarborough on September 16, 2009 and during that weekend it was stolen. At the time it had towing equipment that Mr McQueen had installed himself. He later recognized the remnants of his installation and identified the truck without any trouble.
[37] The police seized the truck from Mr Lenyk and returned it to Thomas McQueen. Mr McQueen’s towing equipment was never found. He had paid $24,000 for it.
[38] Mr Tsigirlash testified that Slavik Lenyk’s father did a lot of business with him and Tsigirlash owed him about $11,000. In exchange for that debt, in 2009 Mr Lenyk senior wanted to buy a heavy duty pickup truck for his son. He asked Mr Tsigirlash to import one for him. Tsigirlash found one on line. Slavik Lenyk imported the truck himself and brought it to Auto Enterprises for repair. It was a salvage vehicle with a gasoline engine. Raj sent it to Drew Collision for repairs, including installing a diesel engine and transmission. The truck came back to Auto Enterprises with the diesel engine installed. The old engine accompanied it. It was then delivered to young Lenyk. Mr Tsigirlash knew nothing about stolen parts being installed. He did not know that he had delivered Mr McQueen’s truck and engine to Slavik Lenyk. Vrbacek identified the receipt from Drew Collision.
Marcin Gzowski – possession count 8, fraud count 9
[39] Marcin Gzowski imported a 2006 Ram truck from the United States in 2009. He took it to Auto Enterprises for repair. It had been in a rollover accident. It remained at Mr Tsigirlash’s yard for about three months. Mr Gzowski picked up the repaired vehicle. He paid about $5,000 or $6,000 for the repair. At the request of the police he took it in for examination. On February 24 and 28 and March 1, 2011 Det. D’Angelo examined the vehicle. Some component numbers came back to a 2005 Ram 1500 that had been stolen in Thornhill. The public VIN, 1D7KS287C765126250 was real and matched a secondary VIN on the frame. It was the VIN registered to Mr Gzowski. However, a secondary VIN on the cab, 3D7KS28C16G176207, identified the cab as the property of Zbigniew Strama, whose vehicle had been stolen in Peel Region on March 14, 2009. The frame of Mr Strama’s vehicle, identified by the secondary VIN, was found in the yard at 620 Lincoln on June 21, 2011. To get his truck back Mr Gzowski had to pay Strama’s insurer somewhere in the neighbourhood of $8,000 to $10,000.
[40] Mr Tsigirlash testified that Marcin Gzowski was looking for a truck. Tsigirlash directed him to a US dealer and Gzowski bought and imported the vehicle. Danny Vrbacek, Mr Tsigirlash’s manager, got Raj to arrange for repairs. Raj had the vehicle repaired by Drew Collision. The vehicle came back repaired. The damaged parts accompanied it, but not, apparently, the cab. Mr Tsigirlash did not know that the body (the cab and box) had been replaced with the cab and box from Zbigniew Strama’s stolen Dodge Ram. Neither did Vrbacek.
Nouha Asswad – possession count 11, fraud count 12
[41] Nouha Asswad and her husband Abdulraham Marouse, known to Mr Tsigirlash as Abdul, bought a 2008 Lexus RX 350 from the accused for $20,000 on September 7, 2010. It was registered in Ms Asswad’s name with VIN 2T2HK31U58C092137. The registered VIN and the engine belonged to a wrecked vehicle from Pennsylvania. The hatch that belonged to the wrecked vehicle was found on the Kucan lot on June 21, 2011. On June 21, 2011 the police seized the car from Ms Asswad and examined it. It bore the public VIN from the wrecked car. A VIN on the rear hatch, 2T2GK31U57C022518, identified the rear hatch as the property of Stanley Woo, whose 2008 Lexus RX 350 was stolen from Niagara Region May 22, 2010. Other serial numbers identified the vehicle itself as a 2007 Lexus RX 350 that was stolen from Robyn Thompson in Burlington on July 30, 2008. In summary, Nouha Asswad had bought Robyn Thompson’s 2007 Lexus with a rear hatch from Stanley Woo’s 2008 Lexus and an engine and public VIN plate from the Pennsylvania wreck.
[42] Mr Tsigirlash testified that Denario Osenevis, a regular customer and fellow Moldovan, wanted to buy a Lexus. Mr Tsigirlash found one and Osenevis bought and imported it. It sat in the lot for a year unrepaired. Abdul Mahrouse expressed interest in buying it. Danny Vrbacek and Raj Chumber sent it for repairs to Drew Collision. Abdul paid Denario for the car and Auto Enterprises for the repairs. Mr Tsigirlash did not know that it had been repaired with stolen parts. He did not say so specifically, but it is implied in his evidence that he did not know that Danny kept the original wrecked hatch at the Kucan lot, or if he did, he did not make the connection to any impropriety.
Count 10 – The stolen CRV found at 620 Lincoln
[43] A 2009 Honda CRV belonging to Ashley Santos was found at 620 Lincoln Avenue during the execution of the search warrant. It had been stolen in Peel Region on May 19, 2010. Its public and doorpost VINs were associated with a salvage car from which Frank Serravale of Copart sold the doorpost and rocker panel to Mr Tsigirlash.
[44] Mr Tsigirlash testified that Roland Zabrita was doing one of his own jobs and needed parts from a Honda CRV. Tsigirlash found parts at Thorold Auto Parts in the form of a CRV carcass. He bought it. Roland left his CRV in the compound when he left Canada. The police found it. Mr Tsigirlash does not know why the VIN from the Thorold carcass was found in Roland’s CRV. Nor does it make sense to him why Roland would have installed it. With that VIN, which came from a vehicle branded “irreparable” the car could never be registered for the road in Canada. He can only speculate that it could possibly be sent overseas. But he does not know.
Stolen vehicles and trailer found at the Kucan and Seneca Steel properties – counts 13, 14, 15 and 16
[45] On count 13, a 2010 Honda Odyssey was found at Seneca Steel during the execution of the search warrant. It belonged to Zosito Ocapan, from whom it had been stolen in Peel Region on October 21, 2010. The public VIN had been replaced with a VIN from a US salvage vehicle. The customs form and the salvage form for that vehicle were found at 620 Lincoln Avenue. The salvage form, filled out by the seller, listed the buyer as “Auto Enterprises Inc.” but the name had been crudely overwritten. In Constable Marynuik’s experience, this would prevent the vehicle from being associated with the buyer in a computer search of Canadian records.
[46] As to count 13, the Honda Odyssey, Mr Tsigirlash says when the car came in, Mr Gzowski, who had bought it, did not like it. He spoke directly to Roland Zabrita, who bought the car from him. What happened to the car after that, Mr Tsigirlash does not know. He was shown the altered salvage certificate and was of the opinion that it would not have the effect claimed by Constable Marynuik. As to the fact that the car’s file was found in the office at 620 Lincoln, Mr Tsigirlash explained that Roland kept papers there, too.
[47] On count 14, a 2011 Chevrolet Silverado was found at Seneca Steel during the execution of the search warrant. It belonged to Leggat Chev from whom it had been stolen between September 16 and November 23, 2010. The public VIN had been replaced with the VIN of a 2008 Chevrolet that had been imported from Texas as a salvage vehicle. The customs form was found at 620 Lincoln as was the front end of that vehicle.
[48] Mr Tsigirlash testified that Ray Columbus, a regular customer, wanted to buy a pickup truck. Mr Tsigirlash referred him to a dealer in the US and Ray imported the vehicle. It turned out to be a two wheel drive, but Ray wanted a four wheel drive, so he wanted to get rid of it. Roland bought the truck from Ray. Roland took possession of the vehicle and Mr Tsigirlash had nothing more to do with it.
[49] On count 15, a transport trailer was found at the Kucan property during the execution of the search warrant. Its public VIN was missing. On September 11, 2011 Det. Boyd examined the trailer and found the secondary VIN, 2B935AD2651004833. The VIN identified the trailer as a 2005 BWS trailer that had been stolen from Stream Express, Gurmail Nerman’s company, in Milton between July 31 and August 1, 2010. Mr Tsigirlash said that he knows nothing about this trailer.
[50] On count 16, a 2005 Nissan Titan was found at the Kucan property during the execution of the search warrant. It belonged to Jozsef Berki, from whom it had been stolen in Toronto on June 25, 2010. It had a public VIN attached to it that came from a 2003 Pathfinder registered to Auto Enterprises Inc. that was found at 620 Lincoln Avenue. Mr Tsigirlash said that he know nothing about this vehicle, either. Mr Vrbancek testified that he had seen Zabrita driving around the Titan as well as the Honda CRV on count 10, with garage plates.
Count 17 – the Mini Cooper part
[51] On count 17, a stolen part from a 2009 Mini Cooper was found at the Kucan property. Mr Tsigirlash knows nothing about this vehicle or this part, or even what the part is. The part was not disclosed to the defence.
Possession of stolen parts – counts 18 - 47
[52] The basic evidence on the remaining counts is not controversial and may be summarized in table form. The table is appended to this endorsement. Parts from 18 stolen motor vehicles were found at the Kucan property, 25 Niagara Stone Road. Parts from 12 stolen motor vehicles were found at 620 Lincoln Avenue.
The link between 620 Lincoln Avenue and the Kucan and Seneca Steel properties
[53] The Seneca Steel location is linked to 620 Lincoln Avenue by the following:
a. The stolen 2010 Honda Odyssey in count 13 was found at Seneca Steel. The public VIN came from a 2008 Honda Odyssey that had been imported from the United States. The US salvage certificate with Auto Enterprises Inc.’s name on it, slightly overwritten, was found in the office at 620 Lincoln.
b. The stolen 2011 Chevrolet Silverado in count 14 was found at Seneca Steel. It had a public VIN attached to it that came from a 2008 Chev truck. Documents associated with the 2008 Chev were found in the office at 620 Lincoln.
[54] The Kucan property is linked to 620 Lincoln Avenue by the following:
a. On count 5, the trunk lid of the vehicle stolen from Quebec, the other component of which was installed into Mila Iankova’s BMW that was sold from 620 Lincoln, was found at the Kucan property.
b. The stolen Lexus in count 12 that was sold to Nouha Asswad from 620 Lincoln bore the VIN of a Pennsylvania salvage vehicle. The rear hatch from the Pennsylvania vehicle was found at 25 Niagara Stone Road.
c. The stolen Titan in count 16 was found at 25 Niagara Stone Road, with a public VIN attached to it that came from a 2003 Pathfinder found at 620 Lincoln Avenue, and registered to Auto Enterprises Inc.
d. On count 23, a key fob was found on the counter in the office at 620 Lincoln Avenue. It was associated with the BMW quarter frame found at the Kucan property that came from Town and Country BMW’s vehicle.
e. On count 24, a key fob was found on the counter in the office at 620 Lincoln Avenue. It was associated with Hashem Mirjabaris’ BMW doors found at the Kucan property.
f. On count 34, the tailgate from Paolo Dilucia’s Mercedes was found at the Kucan property. An interior panel from the vehicle was found at 620 Lincoln.
g. On count 39, the trunk lid from Bela Pinhasov’s Mercedes was found at the Kucan property. The transmission and some interior parts from the vehicle were found at 620 Lincoln.
h. On count 45, the body of Cynthia Morley’s Pontiac was found at the Kucan property. The engine was found at 620 Lincoln Avenue.
i. On count 47, the doors from Shan Xiang’s Toyota were found at the Kucan property. The engine was found at 620 Lincoln.
[55] The position of the defence is that Mr Tsigirlash did not know that any of the items in question had been stolen and that he had no measure of control over the items at the Kucan property and the Seneca Steel property. Furthermore, as to count 1, Chumber duped him into receiving the truck for repairs. As to count 3, Starov left the damaged truck on Auto Enterprise’s lot until Chumber bought it, took it away and had it fixed. On counts 4, Holod, the customer, took the 2002 Explorer parts vehicle, used it and then returned the parts to Auto Enterprise. Holod must have taken the missing VINS that ended up on the stolen 2003 Explorer that was found in Ferenc Nagy’s possession. On count 5, Mr Tsigirlash just does not know how the stolen part got onto Myla Iankova’s BMW. On counts 6 and 7, Raj sent Lenyk’s wreck to Drew Collision for repairs. They must have swapped it out with McQueen’s stolen truck. On counts 8 and 9, Raj sent the truck to Drew Collision for repairs. They must have done the body swap with Mr Strama’s stolen Dodge Ram. On count 10, Zabrita bought the parts from Thorold. He must have put them onto the CRV that was found at 620 Lincoln. On counts 11 and 12, Danny and Raj sent the vehicle to Drew collision for repairs. They must have repaired it with the stolen parts that were found.
[56] Roland Zabrita was responsible for the vehicles in counts 13 and 14. As to counts 15 and 16, these items were found at the Kucan property and the accused knew nothing about them. He had neither control nor knowledge of these items or the stolen parts found there or at Seneca Steel.
[57] As to the stolen parts found at 620 Lincoln, they must have been Roland Zabrita’s.
[58] So on the defence evidence, Chumber explains counts 1, 3, 5, 6 - 7, 8 - 9, and 11 - 12. Zabrita explains counts 10 and 13 and all counts involving the Kucan property and, arguably, the Seneca Steel property, as well as the counts involving stolen parts found at 620 Lincoln. The customer, Holod, explains count 4. The accused does not need to explain anything. But these are the explanations that he offers.
Analysis
Count 1
[59] I start with count 1, the caper that started all the trouble for Mr Tsigirlash. I found Rajesh Chumber to be an unsatisfactory witness. His testimony was evasive and confusing, I think deliberately so. He has reason to lie. I would not rely on his evidence where it is not corroborated. I accept the defence contention that Chumber stole the Freightliner. The timing and circumstances of the telephone calls to Tsigirlash on May 11 and 12, 2011, together with the evidence of Gurmail Nerman, make that much obvious to me. That, of course, is not necessarily inconsistent with the guilt of the accused. This was not a joy ride. Someone stole a transport tractor and drove it straight to the yard. A thief would not take the truck to a legitimate repair shop to hide it by duping the repairman. He would have to tell a legitimate mechanic what repairs were needed. This truck did not need repairs. I am not sure how obvious the damage to the ignition was, but the GPS was smashed, and this is an obvious indicium of theft. This truck needed to be taken to a receiver of stolen goods, not a legitimate repair shop. The vehicle needed to be “re-VINned” not repaired. The objective facts are inconsistent with Tsigirlash’s and Vrbacek’s accounts. Chumber stole the truck and he took it straight to Tsigirlash. He incessantly telephoned no one but Mr Tsigirlash. He did not telephone Vrbacek, who had a key, or Rodica Tsigirlash, who had a key. He telephoned George. Of course the accused knew that this truck had just been stolen.
[60] I think Tsigirlash and Vrbacek lied about this transaction and that colours my view of their credibility in general. As far as Tsigirlash is concerned, there is more reason to worry. He produced a forged receipt that is relevant to count 11. During criminal proceedings against his company in 2005, he admitted uttering forged Florida salvage certificates to get five vehicles registered in Ontario. None of this gives me confidence in his truthfulness.
[61] What did impress me in Tsigirlash’s testimony is his familiarity with whatever is on his lot, his knowledge about cars, trucks and parts and how to make money from them and his attention to detail. I have no doubt that Mr Tsigirlash knew everything that was going on at Auto Enterprises. His employees and contractors were not on frolics of their own. If it happened at Auto Enterprises, the boss knew, whether it was repairs or a sale that happened there. Again, on May 12, 2011, Raj Chumber was looking frantically for George Tsigirlash, not Roland Zabritta or Danny Vrbacek.
[62] In my assessment, the circumstantial evidence that Mr Tsigirlash was deliberately running a stolen car and parts operation is compelling. It, too, prevents me from believing Tsigirlash and Vrbacek. I think that Vrbacek knew just as much as his boss did. I reject their evidence, both of them.
[63] For me, the defence witnesses have not raised a reasonable doubt on any count. It is a question of whether the guilt of the accused is proven beyond a reasonable doubt by the evidence that I do accept.
Counts 13, 14 (stolen vehicles at Seneca Steel) and 15, 16 (stolen trailer and truck at Kucan) and 17-46 (stolen parts at Kucan and 620 Lincoln)
[64] I move now to the charges involving stolen vehicles at Seneca Steel, 7 Niagara Stone Road (counts 13, 14), a stolen trailer and truck at the Kucan property on 25 Niagara Stone Road (counts 15 and 16) and stolen parts at 25 Niagara Stone and 620 Lincoln, counts 17 to 46.
[65] Count 17 stands on its own. While I have ruled that it was not necessary for the police to reveal the location of a secondary VIN in order to prove that a vehicle was stolen, in count 17 the secret part is all that is alleged to have been in the possession of the accused. I do not see how he can be expected to defend this count, so I stay it.
[66] As to the remaining counts under this head, Mr Tsigirlash essentially denied knowledge of what was going on at the Kucan property after 2008. Yet the stolen property at the Kucan property is linked to 620 Lincoln by documents and by the seizure of parts relating to the same vehicles from both places. The stolen vehicles at Seneca Steel are linked to 620 Lincoln by documents found at 620. I have listed nine connections between the Kucan property and 620 Lincoln and two between Seneca Steel and 620 Lincoln. Given the evidentiary connections, the accused person’s detailed knowledge of his own business and the significant number of stolen parts from high end vehicles stacked like cordwood throughout the Kucan property I conclude that the accused knew about all of the stolen property at 25 Niagara Stone Road. I am also convinced that he knew about the two vehicles at the Seneca Steel property, which are also linked to 620 Lincoln in the evidence, as I have set out. I do not think that he was the dupe of Chumber and Zabritta. I do not think that he took no notice of paperwork and key fobs in his office and engines that you could trip over lying in the open at 620 Lincoln. I find the notion that he unknowingly permitted Zabritta to undertake a competing and substantial business in stolen parts right under his nose to be incredible.
[67] Property was repaired at 620 Lincoln. Legitimate and stolen inventory was stored at 620 Lincoln, with the overflow going to the Kucan property. Records and key fobs lay around the office. The number of parts from high end, recently stolen vehicles at 25 Niagara Stone Road is striking. Why are so many expensive cars being cut into pieces? These cars have no accident history. Their history is that they have been stolen. The shop at the Kucan property was in an obvious state of disuse. All these nice new cars had to be chopped up at 620 Lincoln. Everybody must have noticed.
[68] Procuring stolen vehicles and procuring wrecks to provide false VINs to disguise the stolen vehicles was a key part of the business. Whatever the percentage of stolen parts that are always floating around in legitimate salvage yards, the absolute number present here, when taken with the documentary evidence found in the office, make the case that Mr Tsigirlash was deliberately dealing in stolen goods. And legitimate dealers keep the numbers to a minimum by keeping careful records. I find the accused guilty of counts 13, 14, 15 and 16 and counts 18-47.
Count 3
[69] I return now to the top of the indictment. On this count the police did not find the stolen Freightliner in the possession of the accused. To put the accused in possession of this truck, I would have to rely on Chumber’s uncorroborated evidence, which I do not propose to do. On count 3 I find the accused not guilty.
Count 4
[70] On count 4, the evidence that the vehicle in Nagy’s possession was stolen was sketchy. We do not know just when or from whom it was stolen. There is little probative evidence that the vehicle was ever in anyone’s possession at Auto Enterprises. I find the accused not guilty on count 4.
Count 5
[71] On count 5, the car was sold from Auto Enterprise’s yard and the trunk lid from the stolen Quebec vehicle was found at 25 Niagara Stone Road. I have no doubt that as with all aspects of Auto Enterprise’s business, Mr Tsigirlash knew about the stolen property. I find the accused guilty on count 5.
Counts 6 and 7, 8 and 9, 11 and 12
[72] Mr Tsigirlash produced a receipt from Drew Collision for repair of the three vehicles in these six counts.
[73] As to counts 11 and 12, he produced a receipt from Drew Collision to Auto Enterprises for repair of a 2007 Lexus, “VIN 092137”, that is, the wrecked vehicle that was repaired and sold to Ms Asswad. The receipt is number 041622 dated “11.02.10” which would be February 11, 2010. The receipt has Drew Collision’s name and address on Drew Road hand written at the top, in different handwriting from the contents of the receipt. By February 11, 2010, Drew Collision had re-located to an address on TorBram Road. The form is identical to a receipt found at 620 Lincoln. That receipt bore the consecutive number 041623. It purports to have been issued by Auto Enterprises to a customer named Petrenko on “10 June 2011.” The form has a blank space at the top. Into this space Auto Enterprises’ name, address and telephone number has been added by rubber stamp. Other, similar receipts were produced by the Crown. Examining the various receipts I conclude that the receipt produced by the accused is a forgery, made shortly before June 10, 2011, at which point the accused knew he was under investigation. I do not accept the authenticity of the receipts from Drew for repair to the vehicles on counts 6 and 8, either. I do not believe that these three vehicles were repaired at Drew Collision or that the receipt came from Drew Collision through Chumber.
[74] It is not crucial in any event. When Tsigirlash needed some dirty work done, he often used Chumber. If Drew did the repairs, Tsigirlash knew about the stolen parts, or stolen vehicle, as the case may be. The buyers all dealt with the accused. Young Lenyk said that the truck he got was not the one he imported. The same thing would have been obvious to the accused.
[75] I have no doubt that the accused knew about the stolen parts, whoever installed them. I am not sure, however, that Abdulraham Marouse did not know about it. He worked at Auto Enterprises at one point. Young Lenyk did not and neither did Marcin Gzowski. I am not sure that Marouse was deceived. That may account for a somewhat odd affect I thought I noticed when Nouha Asswad testified. I find the accused guilty of counts 6, 8 and 11 (possession of stolen property) and guilty of fraud on counts 7 and 9, but not on count 12.
Count 10
[76] This count involves the stolen Honda CRV found at 620 Lincoln. The stolen vehicle was in the possession of the accused and again I have no doubt that he knew just where it came from. If Zabrita was involved, so was the accused, in my view. According to Frank Serravale, Mr Tsigirlash bought the Thorold wreck from which the VIN plate was taken and installed on the stolen Honda. The accused was directly involved in purchasing the VIN plate that ended up on the stolen car. I find the accused guilty on count 10.
[77] The verdicts:
Counts 1, 5 – 11, 13-16, and 18-47 guilty.
Counts 3, 4 and 12 not guilty.
Count 17 stay of proceedings.
J.A. Ramsay J.
Date: 2015-06-22
Appendix – chart of stolen parts counts 18-47
Ct (s.355(b))
Owner of property determined by VINs and identifiers
Part found by police
Date vehicle stolen according to owner’s affidavit
Place from which vehicle stolen
Parts found at 620 Lincoln Avenue
24
Hashem Mirjabari
2008 BMW rear doors and ignition fob
September 13, 2010
Burlington
26
Faida Zada
¾ Honda
July 13, 2010
Glanbrook (Hamilton)
28
Marina Zaito
2001 Honda engine
June 27, 2009
Hamilton
29
Kristin Clemente
2008 Jeep doors, tailgate, engine, transmission and ¼ frame
January 14, 2010
Barrie
31
Homayoun Marefatpour
2006 Lexus engine
June 17, 2010
Markham
34
Paolo Dilucia
2006 Mercedes Benz tailgate and interior panel
January 19, 2011
Vaughan
40
John Beardsworth
2006 Mini component
September 24, 2010
Toronto
42
Giovanna Migliano
2009 Nissan Engine
October 25, 2009
Toronto
43
Ali Kamarehei
2008 Nissan engine
July 17, 2009
Richmond Hill
44
Shmuel Ishkovish
2007 Nissan frame
November 8, 2008
Thornhill
45
Cynthia Morley
2006 Pontiac body, door and engine
March 23, 2010
Springwater Twp (Simcoe County)
47
Shan Xiang
2008 Toyota doors and engine
June 15, 2010
North York
Parts found at 25 Niagara Stone Road
18
Pietro Monaco
2008 Acura door
April 16, 2010
Toronto
21
Philip McDowell
2010 Audi frame and trunk lid
December 20, 2010
Toronto
22
Guido DiSalle
2006 BMW rear half frame
April 15, 2010
Toronto
23
Town and Country BMW
2011 BMW key fob and quarter rear frame
February 9, 2011
York Region
25
Hadda Ouhamza
2005 Chrysler front doors and rear frame
November 13, 2009
Windsor
27
Caron Nightingale
2008 Honda door and trunk lid
August 11, 2010
Niagara Falls
30
Soon-Ree Kim
2010 Lexus engine
December 8, 2009
Toronto
32
Michal Piekacz
2004 Mazda rear door and hatch
August 29, 2010
Toronto
33
Michael Lacy
2010 Mercedes Benz front left ¼ frame
February 21, 2011
Toronto
35
Peter Biasutto
2010 Mercedes Benz door and rear ¼ frame
September 6, 2010
Toronto
36
Manizha Shahsamand
2008 Mercedes Benz door
June 26, 2010
Toronto
37
Joanne D’Abbondanza
2003 Mercedes Benz trunk lid
January 13, 2011
York Region
38
Gabriel Parentela
2010 Mercedes Benz ¼ frame
October 24, 2010
Vaughan
39
Bela Pinhasov
2005 Mercedes trunk lid, interior panel and transmission
August 15, 2009
Toronto
41
Jing Zhou
2009 Mitsubishi door and frame
December 5, 2009
Markham
46
Phuc Chi Truong
2010 Subaru frame, doors and rear hatch
October 10, 2010
Mississauga