R. v. Cunningham Date:, 2015 BCPC 357

Citation: R. v. Cunningham Date: 20151026 2015 BCPC 0357 File No: AH82323719-1 Registry: Sidney IN THE PROVINCIAL COURT OF BRITISH COLUMBIA ( TRAFFIC COURT ) REGINA v. STEVEN ROSS CUNNINGHAM REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE H.W. GORDON Appearing for the Crown : Cst. K. Nelson Appearing on his own behalf: S. R. Cunningham Place of Hearing: Sidney , B.C. Date of Hearing: September 4, 2015

Date of Judgment: October 26, 2015 [1] Although on its face, this case contains some interesting facts involving the laws of British Columbia and Alberta, in the end itreduces itself to credibility. [2] Mr. Cunningham, a resident of Fort St John, was charged on July 5, 2014 in North Saanich, on Vancouver Island, with towing aboat trailer without insurance contrary to section 24(3)(

b) of the Motor Vehicle Act. Evidence of the Crown [3] The local police were conducting a drinking driving counter attack that day at the intersection of McTavish and West SaanichRoads. One of the vehicles that was stopped was a pickup truck with BC plates driven by Mr. Cunningham, who had a BC driver’slicence. The pickup was towing a boat trailer on which was a large recreational boat. [4] The trailer did not have attached any licence plate. Mr. Campbell could not produce to the officer any paper work for theregistration or insurance on the trailer.

The trailer had an identification plate attached with a vehicle identification number (VIN). CstNelson checked the VIN through his vehicle computer for registration in BC and Alberta. The VIN came back as not being in theregistration system of either province. [5] Hence Mr. Cunningham was issued a Violation Ticket for no insurance on the trailer. Evidence of the Disputant [6] Mr. Cunningham engaged counsel in Fort St John and a date was set for hearing based on her availability. She apparently wasunable to appear in court on his behalf. Mr.

Cunningham read a statement of facts and argument he said was prepared by his counsel. His position is that he did have insurance on the trailer, and if he did not, he exercised due diligence. [7] He testified he owns a home in Alberta and in BC, he travels frequently and he tows the boat and trailer back and forth betweenthe two provinces. [8] Mr. Cunningham showed the Court a photo on his smart phone of a bill of sale in Alberta for the boat and trailer from WarrenMoore to Mr. Cunningham. It was dated June 28, 2012, two years prior to the date he was stopped in North Saanich. Cst Nelson put toMr.

Cunningham that the plate Mr. Cunningham says was on the trailer and of which he produced a picture of in Court was registered toNicole Moore, who Mr. Cunningham says is Warren Moore’s wife. His response on cross examination on being asked why he did notregister the trailer in his own name in the two intervening years was that he was too busy in his construction business in Fort St John. [9] At the time he was stopped in July 2014 he was on Vancouver Island exercising access to his children.

He says he had leftAlberta a few days prior and at that time an Alberta licence plate was attached at the back of the trailer. He produced a photograph of theplate, which he says is an enlargement from a photo he took of the boat and trailer a few days before he left Alberta. [10] When the Court asked Mr. Cunningham if he had any documentation in Court in respect of licensing or insurance, he said thatboth he and his counsel, Ms Katerberg, could not get the documentation from the Alberta authorities or insurance agent despite attemptsto do so. Analysis of the Evidence [11] This is how I summarize the evidence.

Mr. Cunningham is stopped in North Saanich driving a pickup licensed in BC and drivingwith a BC issued driver’s licence and a BC address. He is towing a large boat on a trailer with no licence plate. [12] Mr. Cunningham’s initial explanation at roadside, and in court, is that he had recently purchased the boat and trailer. He says theplate was on the trailer when he left Alberta a few days before. He produced a picture of the plate which he said was an enlargementfrom a picture he had taken of the back of the trailer.

On cross examination he could not provide an explanation when told by the officerthat the plate was recorded in Alberta as an unattached plate registered to Nicole Moore. [13] The conclusion I reach on hearing all the evidence is that Mr. Cunningham is not credible. The documentation in evidence andinformation the officer obtained from the Alberta authorities are either inconsistent with, or contradict, the testimony and explanations ofMr. Cunningham.

He proffered an exculpatory explanation on key facts and when that evidence could not be sustained or proved to beincorrect, he changed his explanation. [14] There is no evidence the trailer was insured in Alberta or BC. It is not clear that Mr. Cunningham owns the boat and trailer. Heproduced a Bill of Sale dated 2 years predating July 2014 of a purchase from a person who was not the registered owner. The VIN onthe trailer showed no registration in either province. He said he did not transfer the bill of sale into his name in the intervening two yearsbecause he was too busy.

He said he has checked in the 14 months since the ticket was issued with various authorities, government andinsurance, who advised him the insurance on the trailer was covered by the insurance on the towing vehicle. I do not believe he did anysuch checks. I also do not believe that all these persons would have consistently told him the insurance on the towing vehicle covers thetrailer being towed. It is not the case in BC and Mr. Cunningham did not provide the Court with any provision of the law of Alberta tosubstantiate the claim. [15] Mr. Cunningham cited to me R. v. Koren 2009 BCPC 483 , 2009 BCPC 0483.

It is one of my decisions in which Ireviewed the law of due diligence. In that case it involved insurance as well, and I concluded Mr. Koren had exercised the required duediligence. I conclude that Mr. Cunningham did not exercise the required due diligence here.

Findings [ 16 ] I not only find the trailer was uninsured but I also find Mr. Cunningham did not have an honest and reasonably held belief that it was. I find him guilty as charged. The fine is the prescribed $598. ____________________________________ Judicial Justice H. W. Gordon