R. v. Cuhna Date:, 2015 BCPC 60

Citation: R. v. Cuhna Date: 20150323 2015 BCPC 0060 File No: 59529-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. VICTOR JOSEPH CUHNA REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MERRICK Counsel for the Crown: T. Morgan Counsel for the Defendant: M. Klein Place of Hearing: North Vancouver , B.C. Dates of Hearing: March 17, 18, May 23, June 9, August 20, October 10, November 17, 2014 Date of Judgment: March 23, 2015

[1] Victor Joseph Cuhna is charged with dangerous driving contrary to s. 249(1)(

a) of the Criminal Code, having the care orcontrol of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or drugs contrary to s. 253(1)(

a) of theCriminal Code and driving with a blood alcohol level in excess of the legal limit contrary to s. 253(1)(

b) of the Criminal Code. [2] On November 30th, 2012, Mr. Cuhna, his spouse and their children were at his brother-in-law and sister-in-law’s house inSquamish for dinner. Mr. Cuhna and his spouse got into an argument and as a result Mr. Cuhna left and was driving to Maple Ridgewhen his car struck the centre median resulting in an accident that severely damaged his vehicle and temporarily rendered himunconscious. [3] Brendan Grills, who was driving a car that was behind Mr. Cuhna’s observed Mr. Cuhna’s vehicle strike the centre median. He stopped and found Mr. Cuhna in his vehicle at the side of the road. Mr.

Grills called 911. Police and ambulance subsequentlyattended. Mr. Cuhna was taken by ambulance to the hospital. At the hospital, blood samples were taken from Mr. Cuhna. In accordance with my ruling of October 10th, 2014, the blood samples and subsequent analysis have been excluded from the evidence inthis trial. [4] This case requires me to assess the reliability and credibility of Mr. Cuhna and several witnesses. However, the test in acriminal trial is not which side I believe, but whether, on the totality of the evidence, the Crown has proven each essential element ofeach offence beyond a reasonable doubt.

As in every case where there is evidence that raises a defence, I must apply the rulesestablished in R. v. W.(D.) (SCC), [1991] 1 S.C.R. 742: 1. If I believe evidence raising a defence or negating an essential element of the offence, I must acquit; 2. If after a consideration of all of the evidence I am unable to decide whom to believe, I must acquit; 3. If I do not believe evidence raising a defence or negating an essential element of the offence but I am left in a reasonable doubt by it,I must acquit; 4.

Even if I am not left in doubt by evidence raising a defence or negating an essential element of the offence, I must ask myselfwhether, on the basis of the evidence I accept, I am convinced beyond a reasonable doubt of the accused’s guilt. Assessing Credibility and Reliability [5] When assessing the witnesses’ credibility and reliability I consider their testimony from three perspectives:

a) Their truthfulness. Whether they are trying to tell the truth or intentionally lying when testifying;

b) Their objectivity. Whether they have been influenced by assumptions or emotions which may affect the accuracy of theirperceptions; and

c) The accuracy of their observations - the witnesses’ abilities to observe, remember and communicate accurately. [6] Factors relevant to truthfulness include previous inconsistent statements or occasions on which the witness has been untruthful;inconsistences in testimony during direct and cross-examination; reliable evidence that conflicts with the witness’s testimony and theattitude and demeanour of the witness. When considering demeanour I try to consider all possible explanations for the witness’s attitudeand to be sensitive to individual and cultural factors which may affect demeanour.

Further, I must remember that the witnesses’objectivity may be influenced by his expectations, assumption of unproven facts, or subsequent events. Attentiveness and the durationand circumstances of the witness’s observations may affect his accuracy. The witness’s reasons for recalling an event and a length oftime between the event and testimony may affect his reliability. Some witnesses may have difficulty communicating their evidenceclearly, because of nervousness, for example. See R. v. Gladue 2005 BCPC 365 para 2 to 5. Count 1 - Dangerous Driving [7] Mr.

Cuhna testified that he and his wife decided to go to Squamish to have dinner with his brother-in-law and sister-in-law. Mr. Cuhna further testified that he did not drink liquor during the day and that he had one glass of wine during dinner. Mr. Cuhnaexplained that he and his wife were having marital problems and they got into an argument after dinner. In an attempt to diffuse thesituation Mr. Cuhna and his brother-in-law went outside and sat in a car to discuss matters. That did not go well. Mr.

Cuhna testified hewent back into the house, exchanged words with his wife, grabbed what he thought were his personal belongings and left. On route tohis home in Maple Ridge his cell phone rang. He says he looked down towards his phone for a brief moment and that is when hisvehicle struck the concrete median. Mr. Cuhna testified that prior to his vehicle striking the median he was driving appropriately and hisability to operate a motor vehicle was not impaired by alcohol. He also testified that although he was upset and crying while driving hewas not trying to kill himself by driving his car into the median. Mr.

Cuhna testified that he recalled little of what occurred road side andthat he does not recall making suicidal statements roadside. He agreed that he could neither confirm nor deny that he made suchstatements. On the totality of Mr. Cuhna’s evidence he says his ability to operate a motor vehicle was not impaired by alcohol or a drugand that what occurred that night was simply a car accident. Assessment of the Evidence [8] With respect to Mr. Cuhna’s testimony I do have concerns. Mr. Cuhna and his wife had argued. The discussions with hisbrother-in-law were emotional and somewhat violent. Mr.

Cuhna left believing his marriage was ending. He was involved in a caraccident that rendered him unconscious for approximately three minutes. He acknowledges that he does not recall much of whatoccurred roadside. [9] Mr. Cuhna testified that while driving he passed no vehicles prior to the accident and that just before the accident his vehiclewas in the right or slow lane. These points are contradicted by Brendan Grills who says that his vehicle was passed by the vehicle driven

by Mr. Cuhna and that just prior to the accident Mr. Cuhna’s vehicle was in the left lane, it swerved right, over-corrected and hit thecentre median. [10] Mr. Grills does not know Mr. Cuhna. On the totality of Mr. Grills’ testimony I am satisfied that Mr. Grills observed the vehicle driven by Mr. Cuhna, that he remembers what occurred on the evening of November 30th, 2012, and he has relayed those observationsaccurately.

I am satisfied that there are no assumptions or emotions which may have affected the accuracy of his perceptions and Ibelieve that he was trying to tell the truth and did tell the truth when testifying. Considering the emotional state that Mr. Cuhna was inwhen he left his brother-in-law’s house in Squamish, the fact that he believed his marriage was ending, that Mr. Cuhna was involved in asignificant accident that rendered him unconscious and the fact that Mr. Cuhna’s evidence with respect to whether he passed any othervehicles and which lane his vehicle was in just prior to the accident is contradicted by Mr.

Grills’ testimony, the latter of which I accept,I have concluded that I do not believe Mr. Cuhna’s evidence nor does Mr. Cuhna’s evidence raise a reasonable doubt. I affirmativelyreject his testimony. Findings of Fact [11] Mr. Grills first noticed Mr. Cuhna’s vehicle when it came upon him quickly from behind when Mr. Grills was driving throughthe Lions Bay area. The fast approach is what attracted Mr. Grills’ attention. Mr. Cuhna’s vehicle then passed Mr. Grills at a rate ofspeed estimated at between 100 and 110 kilometres per hour. The speed limit in this area was 60 kilometres per hour. Mr.

Grillscontinued to observe Mr. Cuhna’s vehicle and he noticed it drift between the two lanes of traffic. Mr. Grills acknowledged that he lostsight of Mr. Cuhna’s vehicle for between 10 to 15 minutes. He testified that he saw the same vehicle again. He believed it to be thesame vehicle because it was identical to the vehicle that he had seen earlier and he did not remember seeing any other vehicles during the10 to 15 minutes that Mr. Cuhna’s vehicle was out of his view. I accept Mr. Grills’ evidence that it was in fact the same vehicle. WhenMr. Grills began to observe Mr.

Cuhna’s vehicle again it was in the left or fast lane. He testified that it then drifted into the right lane asit negotiated a curve in the road. The vehicle then turned abruptly, hit the centre barrier and then came off the centre barrier and againmoved to the left perhaps striking the barrier a second time at which time the vehicle went “hard right” through both lanes of traffic intothe ditch. I am satisfied beyond a reasonable doubt based on the testimony of Mr. Grills that the vehicle was driven as he described.

Application of Law [12] I must now consider the principles set out by the Supreme Court of Canada in R. v. Roy, 2012 SCC 26 , 2012 S.C.J. no.26. The Actus Reus [13] I am satisfied beyond a reasonable doubt that Mr. Cuhna drove his vehicle in a manner that was dangerous to the public. I havereached that conclusion based on the following:

a) Mr. Cuhna’s driving through the Lions Bay area was aggressive and in excess of the speed limit;

b) After passing Mr. Grills’ vehicle I accept Mr. Grills’ testimony that Mr. Cuhna’s vehicle drifted between lanes;

c) Mr. Grills observed Mr. Cuhna’s vehicle approaching a left curve in the road. He noted that the vehicle drifted into the rightlane. This movement into the right lane was not signalled;

d) Once the vehicle drifted into the right-hand lane the vehicle then turned abruptly to the left hitting the centre barrier;

e) Mr. Grills noted that the vehicle came off the centre barrier then again moved to the left perhaps striking the barrier again;

f) Mr. Grills described that Mr. Cuhna’s vehicle then went “hard right” through both lanes of traffic and into the ditch;

g) This all occurred on what has been described and what can be seen in the photographs as a relatively easy stretch of road tonavigate. The Mens Rea [14] I am also satisfied beyond a reasonable doubt that the dangerous manner of driving was the result of a marked departure fromthe standard of care which a reasonable person would have exercised in the same circumstances. It is my judgment that Mr. Cuhna wasfar too upset to have been driving. He was focused on the breakdown of his relationship and not on driving. Mr.

Cuhna’s failure torecognize, that based on his emotional state, he was not fit to drive and his decision to drive constituted a marked departure from thestandard of care expected of a reasonable person in Mr. Cuhna’s circumstances. [15] I have reached this conclusion on the following:

a) Mr. Cuhna was upset when he left the residence in Squamish;

b) He had just had an emotional and somewhat violent exchange with his brother - in - law;

c) He believed his marriage was ending;

d) Mr. Cuhna’s driving through the Lions Bay area was aggressive and in excess of the speed limit;

e) After passing Mr. Grills’ vehicle Mr. Cuhna’s vehicle drifted between lanes;

f) After the collision Mr. Cuhna told Constable Plant that he tried to kill himself, his wife cheated on him and that if Constable Plantgave Mr. Cuhna his gun Mr. Cuhna would shoot himself

While I am unable to decide if Mr. Cuhna actually was intending to kill himself by driving into the centre barrier, I take from this that atthe time of the collision Mr. Cuhna was still extremely upset by what occurred at the residence in Squamish. [16] I am therefore satisfied that the Crown has met the onus of proof and I find Mr. Cuhna guilty of Count 1, the charge ofdangerous driving. Count 2 - The charge of care and control of a motor vehicle while impaired [17] For the reasons previously given I affirmatively reject the testimony of Mr. Cuhna. Andrew Hitchma, Mr.

Cuhna’s brother-in-law, Brandon Grills, Constables Plant and Sardari and Corporal Harding all testified to a varying degree about whether Mr. Cuhna’sability to operate a motor vehicle was impaired by alcohol. Crown Counsel submits that collectively their evidence is sufficient to provebeyond a reasonable doubt that Mr. Cuhna, while his ability to operate a motor vehicle was impaired by alcohol did have care and controlof a motor vehicle.

Most of these witnesses expressly stated that opinion and attempted to provide reasons for that opinion. [18] It has long been accepted that intoxication is not such an exceptional condition as to require a medical expert to diagnose it. Any witness may give testimony on his or her opinion as to whether a person is drunk. This is not a matter where scientific, technical orspecialized testimony is necessary. However, whether or not the opinion stated by police or non-expert witnesses is accepted is anothermatter. The weight of the evidence is entirely a matter for the trier of fact.

The value of the opinion will depend on the view the Courttakes in all the circumstances. See R. v. Grant (SCC), [1982] SCJ No. 102, at page 14. [19] I have reminded myself of the following: “Impairment is a degree of drunkenness. It is a compendious way of describing a condition based on observed facts. It does not requirethe evidence of a doctor or other expert nor should it be limited to persons who themselves drive cars. It is a subject about which mostpeople should be able to express an opinion from their ordinary day-to-day experience of life.

To testify that a person is impaired isreally tantamount to saying I don’t think that he should be driving. In each case the opinion must be on the observed facts: the carweaving back and forth across the road, there was a strong odour of alcohol on the driver’s breath, his powers of perception andcoordination were poor, he was drowsy…and so on.” See R. v. Grant, page 6. [20] In considering whether or not to accept testimony of the witnesses and the weight to be given to the evidence, I have consideredthe entirety of their testimony but wish to highlight the following: Andrew Hitchma (

a) Mr. Hitchma testified he could not say how much alcohol Mr. Cuhna consumed; (

b) he said he was projecting his own state of impairment onto Mr. Cuhna; (

c) In terms of specific observations of impairment of Mr. Cuhna, all that Mr. Hitchma could say was that this was a very emotionalevening. Brendan Grills (

a) Mr. Grills testified that he believed Mr. Cuhna to be drunk based on manner of driving through Lions Bay and the collision heobserved; (

b) he agreed that his belief that Mr. Cuhna was drunk rather than concussed was a judgment call; (

c) he testified he had seen about five to ten people “knocked out” and they did not behave the same way as Mr. Cuhna did; (

d) he did not smell the odour of liquor coming from Mr. Cuhna; (

e) he testified that Mr. Cuhna’s speech was not slurred; (

f) he testified Mr. Cuhna did not have any difficulty walking; (

g) he testified Mr. Cuhna did not have difficulty standing. Constable Plant (

a) Constable Plant testified he did not find any alcohol containers in Mr. Cuhna’s vehicle; (

b) he did not detect any odour of liquor in Mr. Cuhna’s vehicle; (

c) he did not detect the smell of liquor coming from Mr. Cuhna; (

d) he testified that his opinion with respecting Mr. Cuhna’s impairment was based on the totality of the events taking into theaccount the accident and the events at the hospital. Constable Sardari (

a) Constable Sardari testified that he did not see any overt symptoms of impairment from Mr. Cuhna;

Corporal Harding (

a) Corporal Harding testified that based on the odour of alcohol on Mr. Cuhna’s breath, the condition of his eyes (that is he was crying and upset) and that Mr. Cuhna was swaying, he was of the opinion that Mr. Cuhna was drunk. (

b) contrary to Corporal Plant’s testimony, Corporal Harding testified there was a strong odour of liquor inside the vehicle. (

c) Corporal Harding said that as a result of the totality of what he had seen, that being the vehicle in the ditch, the information he received about the accident, Mr. Cuhna being treated in the rear of the ambulance and the results of the approved screening device, that he was of the opinion that Mr. Cuhna had driven a vehicle while his ability to do so was impaired by alcohol; (

d) Corporal Harding was never told that when the vehicle was first discovered Mr. Cuhna was unconscious and therefore Corporal Harding did not consider this in reaching his opinion. [ 21 ] I have considered the testimony of these witnesses separately and collectively. Mr. Cuhna’s blood shot and glassy eyes are equally attributable to one who has been crying as they are to intoxication. Mr. Cuhna’s speech was not slurred. Mr. Cuhna did not have any real difficulties walking. There was no alcohol or alcohol containers found in Mr. Cuhna’s vehicle. Mr. Cuhna was rendered unconscious by the collision.

There is contradictory testimony as to whether there was a smell of alcohol emanating from his vehicle. That said, there was a smell of alcohol coming from Mr. Cuhna’s breath. Mr. Cuhna did display what the witnesses described as aggressive, emotional and belligerent behaviour. He made suicidal statements. Those, combined with the manner of driving, are factors that must given serious consideration. However, Mr. Cuhna was rendered unconscious by the collision, and that was not considered by Corporal Harding in reaching his opinion.

Also, Corporal Harding’s opinion is based in part on the results of the approved screening device. Although Mr. Grills considered the fact that Mr. Cuhna was rendered unconscious in the collision, I am not satisfied that he gave that factor enough weight in formulating his opinion. Whether viewed individually or collectively, I do have concerns with respect to the testimony and opinions given by the witnesses. While I accept that Mr.

Cuhna’s ability to operate a motor vehicle may have been impaired by alcohol, given what I consider the frailties in the witnesses’ testimony I am not satisfied beyond a reasonable doubt that Mr. Cuhna’s ability to operate a motor vehicle was impaired by alcohol or a drug and accordingly I find Mr. Cuhna not guilty of Count 2, the charge of care and control while impaired. Count 3 - The Charge of Driving with a Blood Alcohol Level in Excess of the Legal Limit [ 22 ] In accordance with my ruling on October 10, 2014, the blood samples and subsequent analysis have been excluded from evidence in this trial.

Accordingly, there is no admissible evidence with respect to this charge and I find Mr. Cuhna not guilty.