R v Gulenchyn, 2023 MBPC 62

CITATION: R v Gulenchyn, 2023 MBPC 62 THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) L. Campbell ) for the Crown– and – ) ) Matthew Gulenchyn ) M. Dyck ) for the Accused ) ) ) Reasons for Decision ) Delivered November 20, 2023 ALLEN, P.J. [1] Matthew Gulenchyn is charged with Impaired Operation of a Motor Vehicle, pursuant to

section 320.14(1)(

a) of the CriminalCode. [2] The facts as heard at trial indicate that on March 3, 2021, Steinbach Royal Canadian Mounted Police (RCMP) received adispatch to attend to a vehicle rollover just off the Trans-Canada Highway near Richer, Manitoba. The attending police officer,Constable Nelles, found the accused’s vehicle on its roof in the ditch between the east- and west-bound sections of the highway. [3] She testified that upon arrival she located the accused seated in an ambulance. She observed that his eyes were glassy, he hadconfused speech and an odour of liquor on his breath. She testified that the accused, Mr.

Gulenchyn admitted that he had consumed threeshots of liquor approximately two hours prior to driving. The officer spoke to the accused only briefly, as paramedics wanted to take himto the hospital immediately. [4] Matthew Gulenchyn testified on his own behalf and told the court that when the accident happened he had fallen asleep at thewheel. He admitted that several hours earlier, he had consumed a beer and three shot glasses of rum. He had done this drinking at hisbrother’s residence at Falcon Lake.

He said that he went to bed around midnight but was unable to sleep so he left Falcon Lake atapproximately 3:30 a.m. and headed back to Winnipeg where he lives. [5] He testified that he was not feeling the effects of the alcohol he had drunk, but he admitted that he was feeling sleepy whiledriving. He says that on two occasions he nodded off, but was woken up as his car hit the “rumble strip” on the side of the road. Hethinks that the accident happened on the third occasion when he fell asleep off. He said he woke up as the car was on the shoulder but heover corrected the vehicle and it rolled in the ditch.

He said that he thought that the car rolled approximately seven times and came to reston its roof. [6] Mr. Gulenchyn acknowledged that he was in the back of an ambulance when the police officer spoke to him. He testified thathe believed that he was in shock after the accident. He testified that, as a result of the accident, he had a bruise on his forehead near histemple. He told the court that he told the police officer that he fell asleep at the wheel. She said that she didn’t recall the accused havingsaid that. [7] The charge before the court requires the Crown to prove beyond a reasonable doubt that Mr.

Gulenchyn’s ability to operate hisvehicle on the night of the accident was impaired by alcohol. The Supreme Court of Canada in R v W(D), (SCC), [1991]1 SCR 742, set out guidelines for trial judges to follow in processing the adjudication of cases involving credibility. That test states thatthe trier of fact must determine: 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. [at para 28] [8] In this case, the evidence that the Crown relies on to establish the prosecution comes entirely from the arresting officer.Constable Nelles testified that Mr. Gulenchyn had a smell of liquor from his breath; she said his speech was confused and that he had a

hard time spelling his middle name. The Crown also relies on the accused’s admission to the officer that he had consumed three shots,two hours before driving. The officer also said that the accused’s eyes were glassy. [9] The defence points out that there is no evidence to indicate that the officer asked the accused what caused the accident. Thedefence also points out that the interaction between the officer and the accused, by the officer’s evidence, lasted no more than fiveminutes.

The defence also submitted that the officer did not have an opportunity to assess his physical movement and that in this casethere are no observations as to the accused’s driving before the incident. [10] The Crown counters that argument by advancing that the accident itself can be an indicator of impaired operation. [11] The question before the court, is whether the evidence establishes that Mr. Gulenchyn’s ability to drive was impaired by thealcohol that he admits to having consumed.

Both defence and the Crown provided casebooks with cases which included somewhatsimilar circumstances. [12] In R v Patenaude, 2021 MBPC 45, the accused’s vehicle was in a middle-of-the-night collision on the Trans-Canada Highway.The accused was interviewed by police in hospital. The officer testified that the accused’s breath smelled strongly of liquor. In responseto a question as to what type of alcohol he had been drinking, the accused said, “everything”. In acquitting Mr. Patenaude, Judge Hewitt-Michta said (at paras 43-44): The accused collided with another vehicle on the highway in the middle of the night.

There is no evidence about road or weatherconditions. There is no evidence indicating impairment of the accused's ability to walk, talk or perform basic functions. The officer saidthe accused claimed to be driving home yet seemed to be driving in the opposite direction. The accused provided that information after acollision in which his head appears to have struck the windshield so its reliability is a concern. The odor of liquor and admission todrinking "everything" are evidence of consumption of alcohol, not its impact. It is possible on the evidence the accident arose from the accused driving while impaired.

Given the time of night and circumstances, itis equally possible the accused fell asleep or was distracted. [13] In R v Smith, 2010 ONCJ 145, the accused was acquitted of Impaired Operation with somewhat similar evidence to the case atbar. In Smith, Justice Rabley said at paragraph 55: I am therefore left with the fact of an accident, bloodshot and glossy eyes, the odour of an alcoholic beverage and some observationswhich are neutral in my view.

While this may have been a sufficient basis to make a roadside demand or to arrest, in my view it is notproof of impairment beyond a reasonable doubt and I therefore acquit Mr. Smith of this charge. [14] The Crown provided the case of R v Plater, [2005] OJ No 6045. That case quotes the Ontario case of R v Elvikis, [1997] OJNo 234 at paragraph 28, which says: If the evidence of impairment is sufficiently credible and probative as to establish any degree of impairment ranging from slight to great,the offence has been made out. In my view, this is the ratio of the judgment in R. v.

Stellato, [ (ON CA), [1993] OJ No18]. The decision does not, however, stand for the proposition that the production of any evidence consistent with impairment, howeverminimal, requires the court to find the prosecution has discharged its persuasive burden of proving impaired operation of a motor vehicle.Such an approach impermissibly depresses the burden upon the Crown. [15] Relevant to the case at bar is the following from R v Ruelland, [1998] OJ No 975, which is also referenced in the Plater case: I agree with Mr.

Lang that neither a strong odour of alcohol nor an unexplained accident alone, or even together, is evidence consistentwith only impairment There is no doubt that a person can have a strong odour of alcohol on his breath without being impaired. Similarly,an unexplained accident, even combined with a strong odour of alcohol, does not necessarily lead to the conclusion that the operator ofthe vehicle was probably impaired. However, there can be no hard and fast rule.

Some unexplained accidents may be consistent withimpairment Of the driver and others may not. [Ruelland, at para 14.] [16] The evidence of the accused was that he ate dinner in Winnipeg before leaving to go to visit at his brother’s home in FalconLake. He said he got to his brother’s at about 8:30 p.m. and then waited for his brother to get off a lengthy phone call. While waiting forbetween two-and-one-half to three hours for his brother, he had a light beer and a shot of rum. It would appear that the accused thenconsumed two more shots of rum sometime before midnight and then went to bed.

As a result of not sleeping and his disillusionmentwith the behaviour of his brother, he decided to leave at about 3:30 a.m. [17] The RCMP officer testified that she was dispatched at about 4:30 a.m. This means that the motor vehicle accident likely tookplace at least four hours after the accused’s last consumption of alcohol. However, this is inconsistent with what the officer testified thatMr. Gulenchyn told her that he drank approximately two hours before driving. Based on Mr. Gulenchyn’s testimony, it appears that thealcohol he consumed was from approximately 10:30 p.m. until midnight.

He also testified that he is six-foot-one in height and weighs240 pounds. Counsel for the accused argued that a person of that size could readily absorb that much alcohol over that period and not beimpaired.

[ 18 ] It is notable that Mr. Gulenchyn testified that he told the police officer that his left shoulder and left temple were sore. Further, that upon being seen at the hospital in Steinbach, he was sent on to a hospital in Winnipeg for an ultrasound. Additionally, he testified that the aftermath of the accident was that he frequently felt that “the room was spinning” for three to five months after the accident. [ 19 ] This apparent blow to the temple area could be an explanation as to whatever confusion he evidenced in his speech when speaking to the RCMP officer.

The officer also noted that the accused had difficulty spelling his middle name. The accused said that he rarely uses his middle name as it is his father’s name and he is estranged from his father. Normally that explanation would ring hollow, but in this case, defence counsel described his client as “unsophisticated”. Based on my observations of the accused, I would agree with that assessment. [ 20 ] I would also agree with counsel that Mr. Gulenchyn testified in what appeared to be a forthright and direct manner.

He made eye contact with the court throughout his testimony, and when he told about being disappointed that he had been invited to visit his older brother only to be ignored while the brother spoke at length to his girlfriend, Mr. Gulenchyn conveyed obvious, and what appeared to be genuine, emotion. I did not find it difficult to accept that he then had difficulty sleeping and decided to leave in the middle of the night. [ 21 ] Mr. Gulenchyn answered the questions of both counsel in what appeared to me to be a direct manner.

When asked if he at any point felt the effects of the alcohol, he admitted that he did after the second drink. [ 22 ] Mr. Gulenchyn was certainly a victim of his very poor judgment to continue driving after nodding off twice. When asked why he didn’t pull over, he said that he would be fearful of being hit if he was parked on the side of the Trans-Canada Highway.

While there may have been other alternatives, such as wayside rest stops, side roads or gas station parking lots, none of those were presented to him and their possible availability is not before the court. [ 23 ] As to the accused’s confused speech, this may have been attributable to the apparent blow he suffered to his forehead, or it may have been attributable to the trauma of being in a car which rolled off the highway into a relatively deep ditch and rolled, by his estimation, seven times. Mr.

Gulenchyn himself said that he felt that he was in shock at the point when he spoke to the RCMP officer. [ 24 ] In my opinion, there is limited evidence of impairment by alcohol. I believe that it is possible that this accident resulted from the accused falling asleep rather than from alcohol impairment. I found his evidence believable and I was impressed with his straightforward manner of answering questions from both lawyers. I accept his testimony that he was not feeling the effects of the alcohol he consumed earlier and that his ability was not impaired. [ 25 ] Returning to the W(

D) test, I accept the evidence of the accused that he was not impaired by alcohol. His evidence has raised a doubt in my mind as to the issue of impairment. I am not satisfied that the Crown has proven the elements of the offence charged beyond a reasonable doubt. [ 26 ] Accordingly, the accused is acquitted of the charge before the court. Original signed by Judge Allen H. L. ALLEN, P.J.