IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Victor Joseph Cuhna is charged with dangerous driving contrary to s. 249(1)(a) of the Criminal Code, having the care or control 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 the Criminal 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 30^th, 2012, Mr. Cuhna, his spouse and their children were at his brother-in-law and sister-in-law’s house in Squamish for dinner.  Mr. Cuhna and his spouse got into an argument and as a result Mr. Cuhna left and was driving to Maple Ridge when his car struck the centre median resulting in an accident that severely damaged his vehicle and temporarily rendered him unconscious. 

[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 subsequently attended.  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 10^th, 2014, the blood samples and subsequent analysis have been excluded from the evidence in this trial. 

[4]           This case requires me to assess the reliability and credibility of Mr. Cuhna and several witnesses.  However, the test in a criminal trial is not which side I believe, but whether, on the totality of the evidence, the Crown has proven each essential element of each offence beyond a reasonable doubt.  As in every case where there is evidence that raises a defence, I must apply the rules established in R. v. W.(D.) 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742:

[5]           When assessing the witnesses’ credibility and reliability I consider their testimony from three perspectives:

[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 the attitude and demeanour of the witness.  When considering demeanour I try to consider all possible explanations for the witness’s attitude and 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 duration and circumstances of the witness’s observations may affect his accuracy.  The witness’s reasons for recalling an event and a length of time between the event and testimony may affect his reliability.  Some witnesses may have difficulty communicating their evidence clearly, because of nervousness, for example.  See R. v. Gladue 2005 BCPC 365 para 2 to 5.

[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. Cuhna explained that he and his wife were having marital problems and they got into an argument after dinner.  In an attempt to diffuse the situation 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 he went back into the house, exchanged words with his wife, grabbed what he thought were his personal belongings and left.  On route to his home in Maple Ridge his cell phone rang.  He says he looked down towards his phone for a brief moment and that is when his vehicle struck the concrete median.  Mr. Cuhna testified that prior to his vehicle striking the median he was driving appropriately and his ability to operate a motor vehicle was not impaired by alcohol.  He also testified that although he was upset and crying while driving he was not trying to kill himself by driving his car into the median.  Mr. Cuhna testified that he recalled little of what occurred road side and that he does not recall making suicidal statements roadside.  He agreed that he could neither confirm nor deny that he made such statements.  On the totality of Mr. Cuhna’s evidence he says his ability to operate a motor vehicle was not impaired by alcohol or a drug and that what occurred that night was simply a car accident.

[8]           With respect to Mr. Cuhna’s testimony I do have concerns.  Mr. Cuhna and his wife had argued.  The discussions with his brother-in-law were emotional and somewhat violent. Mr. Cuhna left believing his marriage was ending.  He was involved in a car accident that rendered him unconscious for approximately three minutes.  He acknowledges that he does not recall much of what occurred roadside.

[9]           Mr. Cuhna testified that while driving he passed no vehicles prior to the accident and that just before the accident his vehicle was 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 the centre 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 30^th, 2012, and he has relayed those observations accurately.  I am satisfied that there are no assumptions or emotions which may have affected the accuracy of his perceptions and I believe that he was trying to tell the truth and did tell the truth when testifying.  Considering the emotional state that Mr. Cuhna was in when 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 a significant accident that rendered him unconscious and the fact that Mr. Cuhna’s evidence with respect to whether he passed any other vehicles 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 affirmatively reject his testimony.

[11]        Mr. Grills first noticed Mr. Cuhna’s vehicle when it came upon him quickly from behind when Mr. Grills was driving through the Lions Bay area.  The fast approach is what attracted Mr. Grills’ attention.  Mr. Cuhna’s vehicle then passed Mr. Grills at a rate of speed estimated at between 100 and 110 kilometres per hour.  The speed limit in this area was 60 kilometres per hour.  Mr. Grills continued to observe Mr. Cuhna’s vehicle and he noticed it drift between the two lanes of traffic.  Mr. Grills acknowledged that he lost sight 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 the same vehicle because it was identical to the vehicle that he had seen earlier and he did not remember seeing any other vehicles during the 10 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.  When Mr. 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 as it negotiated a curve in the road.  The vehicle then turned abruptly, hit the centre barrier and then came off the centre barrier and again moved to the left perhaps striking the barrier a second time at which time the vehicle went “hard right” through both lanes of traffic into the ditch.  I am satisfied beyond a reasonable doubt based on the testimony of Mr. Grills that the vehicle was driven as he described.

[12]        I must now consider the principles set out by the Supreme Court of Canada in R. v. Roy, 2012 SCC 26 (CanLII), 2012 S.C.J. no. 26. 

[13]        I am satisfied beyond a reasonable doubt that Mr. Cuhna drove his vehicle in a manner that was dangerous to the public.  I have reached that conclusion based on the following:

[14]        I am also satisfied beyond a reasonable doubt that the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances. It is my judgment that Mr. Cuhna was far too upset to have been driving.  He was focused on the breakdown of his relationship and not on driving.  Mr. Cuhna’s failure to recognize, that based on his emotional state, he was not fit to drive and his decision to drive constituted a marked departure from the standard of care expected of a reasonable person in Mr. Cuhna’s circumstances.

[15]        I have reached this conclusion on the following:

[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 of dangerous driving.

[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’s ability to operate a motor vehicle was impaired by alcohol.  Crown Counsel submits that collectively their evidence is sufficient to prove beyond a reasonable doubt that Mr. Cuhna, while his ability to operate a motor vehicle was impaired by alcohol did have care and control of 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 or specialized testimony is necessary.  However, whether or not the opinion stated by police or non-expert witnesses is accepted is another matter.  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 Court takes in all the circumstances.  See R. v. Grant 1982 CanLII 33 (SCC), [1982] SCJ No. 102, at page 14.

[19]        I have reminded myself of the following:

[20]        In considering whether or not to accept testimony of the witnesses and the weight to be given to the evidence, I have considered the entirety of their testimony but wish to highlight the following:

[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.

[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.