ONTARIO COURT OF JUSTICE
Central East- Newmarket
BETWEEN:
HIS MAJESTY THE KING
— AND —
KONSTANTIN PESTIKOV
Before Justice A.M. Elias
Heard on January 20 and March 6, 2026
Reasons for Judgment released on June 4, 2026
AMENDED Reasons Released on July 14, 2026
Brooke Wakegijig counsel for the Crown
Michael Simrod counsel for the defendant
ELIAS J.:
I. Overview
1Police discovered a Chevrolet Camaro idling in the parking lot of a Chevrolet dealership in the early morning hours of March 8, 2024. The defendant, Mr. Konstantin Pestikov, was seated in the driver’s seat with the engine running. Following an investigation for impaired driving, Mr. Pestikov provided breath samples registering 170 mg and 150 mg of alcohol per 100 mL of blood. He was subsequently charged with operating a motor vehicle with a blood alcohol concentration exceeding the legal limit.
2At trial, Mr. Pestikov testified that he had driven to the dealership to leave his vehicle for servicing and arranged for a friend, Alex Gershtein, to pick him up. After making those arrangements, he left the vehicle, went to a nearby bar, and consumed three to four alcoholic drinks. He then returned to the vehicle to wait for Mr. Gershtein, starting the engine solely to keep warm on a cold March night. He maintained that he had no intention to drive. Mr. Gershtein also testified and corroborated that these arrangements had been made.
3The sole issue is whether Mr. Pestikov was “operating” the motor vehicle at the material time, specifically whether he was in care or control of the vehicle within the meaning of the Criminal Code, R.S.C. 1985, c. C-46.
II. The Law of Care and Control
a. The Crown Concedes that Mr. Pestikov Has Rebutted the Statutory Presumption
4Pursuant to section 320.35 of the Criminal Code, if it is proved that the accused occupied the driver's seat of a conveyance, he is presumed to be operating the conveyance unless he establishes that he did not occupy the driver's seat for the purpose of setting the vehicle in motion. To rebut the presumption, the accused must show on the balance of probabilities that he did not occupy the driver's seat for that purpose.
5In this case, the Crown has conceded that Mr. Pestikov has rebutted this presumption. The Crown concedes that Mr. Pestikov’s initial intention was to enter the vehicle to keep warm while awaiting the arrival of his friend.
b. Proving Care and Control without the Presumption
6Pursuant to the 2018 Criminal Code amendments, the definition of "operate" in section 320.11, was amended to include care or control. “Care and control” involves the following three elements:
(1) an intentional course of conduct in relation to a conveyance;
(2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;
(3) in circumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property.
7The issue of "realistic risk" is a question of fact: R. v. Boudreault, 2012 SCC 56, at para. 9. A conviction will be inappropriate absent a realistic risk of danger in the particular circumstances of the case. In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways:
(1) An inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so;
(2) An inebriated person behind the wheel may unintentionally set the vehicle in motion; and
(3) Through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.
c. The Alternate Plan
8To avoid conviction, an accused faces the tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case. The accused may escape conviction, for example, by adducing evidence that their use of the vehicle was for a manifestly innocent purpose. The law is not deprived of any flexibility and does not go so far as to punish the mere presence of an individual whose ability to drive is impaired in a motor vehicle:Boudreault, at paras 49-51.
9In this context, I must consider whether there was an alternate plan, to driving while impaired or with excessive blood alcohol. The impact of an "alternate plan" of this sort on the court's assessment of the risk of danger depends on two considerations: first, whether the plan itself was objectively concrete and reliable; second, whether it was in fact implemented by the accused: Boudreault, at para 52.
10A plan may seem watertight, but the accused's level of impairment, demeanour or actions may demonstrate that there was nevertheless a realistic risk that the plan would be abandoned before its implementation. Where judgment is impaired by alcohol, it cannot be lightly assumed that the actions of the accused when behind the wheel will accord with his or her intentions either then or afterward: Boudreault, at para. 52.
II. Analysis
11Based on the exculpatory evidence proffered by Mr. Gershtein, I am satisfied that Mr. Pestikov’s plan for the night of March 8, 2024, was objectively concrete and reliable. I am also satisfied that it was implemented by Mr. Pestikov. Applying the factors in Szymanksi, , and R. v. Ross, 2007 ONCJ 59, as instructed in R. v. Boudreault, I am satisfied that no real risk of danger arose in this case.
Application of the Ross Criteria
12In determining whether there was a real likelihood that Mr. Pestikov would change his mind and drive while impaired, the court must consider all the circumstances. As noted in R. v. Ross, cited in R. v. Boudreault, certain factors are particularly relevant.
i. Absence of Evidence of Impaired Driving
13Prior instances of impaired driving immediately preceding the time in which it is alleged the accused was in care and control may demonstrate ongoing care and control, poor judgment regarding fitness to drive, and a willingness to breach the law. In this case, however, there is no evidence that Mr. Pestikov drove after becoming impaired.
14Mr. Pestikov testified that, following an argument with his wife, he left his Newmarket residence in the evening to look for a hotel. Upon arriving at the Comfort Inn, he concluded that the cost was not justified. While searching for alternatives on his phone, he was approached and investigated by police. This account is consistent with the Agreed Statement of Facts.
15The defence submits that, had Mr. Pestikov been drinking at that time, the investigating officers would have detected signs of alcohol consumption. This submission is reasonably supported by the fact that police attended at approximately 12:31 a.m. in response to a “suspicious person” call, interacted with Mr. Pestikov, but did not initiate an impaired driving investigation. This tends to corroborate Mr. Pestikov’s evidence that he first drove to the Chevrolet dealership, then left to consume alcohol, and subsequently returned to the vehicle to await his friend.
ii. Use of the Vehicle as a Place of Waiting
16The evidence establishes that Mr. Pestikov used his vehicle as a place to wait rather than as a means of transportation while impaired. While still parked, he contacted his friend, Alex Gershtein, to arrange a ride. He testified that this call occurred after his interaction with police, sometime after 12:31 a.m.
17Mr. Gershtein advised that he was unable to pick up Mr. Pestikov immediately, as he first needed to travel to Barrie. Although no exact meeting time was arranged, Mr. Gershtein indicated the delay would be approximately two hours. Mr. Pestikov then proceeded to the Chevrolet dealership, intending to leave his vehicle there for servicing the following day—an intention consistent with the fact that he drove a Chevrolet to a Chevrolet dealership.
18Mr. Pestikov testified that he had consumed no alcohol up to that point. He acknowledged in cross-examination that he had no alternative plan if Mr. Gershtein did not arrive. In fact, Mr. Gershtein did not re-establish contact until after Mr. Pestikov’s arrest.
iii. Intervening Consumption of Alcohol
19After parking at the dealership, Mr. Pestikov left his vehicle and walked approximately 10 to 15 minutes to a bar, the name of which he could not recall. He consumed three to four drinks, explaining that he did so because he did not intend to drive. Approximately 40 minutes later, he returned to the dealership, re-entered his vehicle, and awaited Mr. Gershtein.
20While parked, he again contacted Mr. Gershtein. He intended to leave his car keys in the dealership’s drop box, as the vehicle required servicing following winter storage.
iv. Destination and Intent
21Mr. Pestikov himself had not reached his ultimate destination. On his evidence, he required accommodation away from his wife, with whom he was in conflict. His plan was for Mr. Gershtein to transport him to Thornhill. In contrast, the vehicle had reached its final destination—the Chevrolet dealership—where it was to be serviced the following morning.
v. Level of Impairment and Risk of Change in Intention
22As I will discuss later, the evidence does not conclusively establish whether Mr. Pestikov was slightly, moderately, or significantly impaired. The degree of impairment is relevant to the likelihood of poor judgment, the time required to regain fitness to drive, and the opportunity for reconsideration.
23In this case, Mr. Pestikov was not charged with impaired driving, and the in-car camera footage does not reveal obvious signs of impairment. On this record, I am unable to conclude that he was likely to exercise poor judgment or to change his mind and drive within the relevant timeframe.
vi. Existence of a Viable Alternative Plan
24Mr. Pestikov had formulated a plan to return home without driving. While such a plan need not be fail-safe, it must be practical, plausible, and sufficiently certain to negate a real and tangible risk of driving: Ross, at para. 15.
25This plan was corroborated by the evidence of Mr. Gershtein, a defence witness whom I found credible and whose testimony was not undermined in cross-examination. Mr. Gershtein testified that Mr. Pestikov initially contacted him on the evening of March 7 to arrange dinner. Approximately 20 minutes later, Mr. Pestikov called again and requested a ride from a Chevrolet dealership in Newmarket, explaining that he intended to leave his vehicle for servicing. He asked whether Mr. Gershtein could pick him up on his return to Thornhill and allow him to stay overnight at his mother’s residence. Mr. Gershtein advised that he would require at least two hours.
26Although there is some discrepancy between the timelines provided by the two witnesses, Mr. Gershtein’s evidence confirms that Mr. Pestikov requested to be picked up from the Chevrolet dealership in Newmarket, consistent with Mr. Pestikov’s account.
Application of the Szymanksi Criteria:
27The totality of the evidence does not establish a realistic likelihood that Mr. Pestikov would have set the vehicle in motion while impaired. Although he was in the driver’s seat of a running vehicle with ready access to the means of driving, these factors must be weighed alongside the surrounding circumstances, including the inconclusive evidence of impairment, the absence of any prior impaired driving that evening, the location and positioning of the vehicle, and the existence of a plausible plan to avoid driving. When these considerations are viewed cumulatively, they do not support a finding of a concrete and tangible risk of danger.
(a) Level of Impairment is inconclusive on the evidence: The evidence in this case does not permit a finding as to Mr. Pestikov’s level of impairment. I cannot conclude, on the whole of the evidence, that he was highly or even moderately impaired at the time of police investigation.
Dishevelled appearance explained by innocent circumstances: Mr. Pestikov’s dishevelled presentation upon police investigation, has more than one explanation. Sergeant McGuigan was the first officer to discover Mr. Pestikov inside his vehicle at 1:53 am, when he was parked at the Chevorlet dealership in Newmarket. Sergeant McGuigan testified that Mr. Pestikov’s pants were undone and his belt was flapping. He further testified that there was a large, wet spot outside of Mr. Pestikov’s vehicle. When he testified, Mr. Pestikov explained that his clothes were tight and that he was sitting in a narrow sports car. He undid his belt to make himself comfortable while he was waiting in the car, for an extended period of time.
Red-rimmed eyes of limited evidentiary value: PC Strazzella testified that Mr. Pestikov’s eyes were red-rimmed. On cross examination, PC Strazzella agreed that he did not know whether the defendant presented with ‘red-rimmed’ eyes in his normal state. The defence submits that the red-rimming of his eyes could be attributed to a long day of driving from Kingston during his early morning work shift.
Slurred speech not substantiated: I cannot find, on the evidence before me, that Mr. Pestikov was slurring his speech. PC Strazzella further testified that Mr. Pestikov was slurring his words. However, on my review of the in-car camera footage depicting Mr. Pestikov’s interaction with the officers, I cannot conclude that he was slurring his speech. Furthermore, Constable McGuigan, an experienced police officer who interacted with the defendant, did not indicate that he was slurring his words: he merely indicated that Mr. Pestikov had difficulty communicating in English because of his accent.
Physical co-ordination and compliance with police directions: Mr. Pestikov complied with demands and walked without difficulty while in police custody. On cross examination, PC Strazzella agreed that Mr. Pestikov had no difficulty walking from his car to the officer’s truck to perform the ASD demand (the distance of one laneway). The officer agreed that Mr. Pestikov generally followed his demands. He agreed that Mr. Pestikov had no difficulty providing a breath sample for the ASD demand, nor did he have difficulty putting his lips around the device. PC Strazzella further testified that he searched Mr. Pestikov, placed him in a cruiser and took him to the police station. On cross examination, PC Strazzella agreed that Mr. Pestikov had no problems putting his arms behind his back to be arrested. PC Strazzella testified that Mr. Pestikov had no difficulty walking while he was paraded and booked by the staff sergeant. The Crown did not adduce any evidence from a booking video with respect to the provision of breath samples.
Falling asleep consistent with fatigue rather than impairment: Mr. Pestikov may have fallen asleep in the back of the police cruiser because it was late and he was tired. PC Strazzella testified that Mr. Pestikov fell asleep in the back of the cruiser. It was put to the officer, however, that at the time Mr. Pestikov fell asleep in his cruiser, it was 2:00 a.m. The officer agreed that the defendant may have fallen asleep because he was tired. Mr. Pestikov testified that he had finished an overnight shift the night before.
Breath Readings to not establish impairment at material time: The Crown points to the readings taken at 4:37 am—170 and 150—and submits that the read-back provisions apply. While these readings, admitted by the defence, establish a high concentration of alcohol in Mr. Pestikov’s blood, I cannot, on the whole of the evidence, conclude that he was highly or moderately impaired at the time of police investigation. After all, the officers who investigated him did not charge him with impaired driving.
(b) Keys were readily available but not in use: Sergeant McGuigan testified that it was cold that night. The car was running, but the keys to the ignition were found in Mr. Pestikov’s pocket. Given that it was a push-to-start vehicle, it was readily movable.
(c) The defendant’s vehicle was running for warmth, not immediate departure: Mr. Pestikov was in the driver’s seat of a vehicle that was running. However, he testified that he turned on his vehicle to warm up on a cold March night while awaiting the arrival of his friend, Alex Gershtein. Mr. Pestikov testified as to the process to put his Camaro into drive: he would first have to buckle in, press on the break, get the engine going. He would then have to release the parking brake. He would then have to place his foot on the brake, and unlock the shift. He would then place the gear selector into drive.
(d) The vehicle was safely parked in a commercial lot: When Sergeant McGuigan first encountered Mr. Pestikov’s vehicle, it was backed into the south side of the parking lot of a New Roads Chevrolet Car dealership in Newmarket. It was situated near a garbage bin and a charging station. Mr. Pestikov was not on a live lane of traffic. Sergeant McGuigan testified that he was prompted to investigate the vehicle not because of its positioning, but because the lights were on. In cross examination, he testified that there was nothing unusual about how the vehicle was parked.
(e) The vehicle was at its intended destination: The Crown submits that Mr. Pestikov had not reached his final destination; that he was still required to travel to Mr. Gershtein’s home. On Mr. Pestikov’s evidence, he was going to leave his vehicle for servicing, and Mr. Gershtein was going to take him home. I note, at this juncture, that Mr. Pestikov brought his Chevrolet vehicle to the Chevrolet dealership and intended to deposit the keys in the box to have it serviced the next morning. In this regard, he was implementing a credible plan to leave a vehicle at the dealership with which it was affiliated.
(f) No evidence of intent or disposition to drive: On the in-car camera played during the trial, I note that Mr. Pestikov utters, prior to taking the ASD screening, “was I driving?”. From this utterance, I infer that Mr. Pestikov did not intend to drive the vehicle while in an intoxicated state. There is no evidence of disposition or attitude that invites an inference that he was going to change his mind.
(g) Driving occurred prior to alcohol consumption: The evidence suggests that Mr. Pestikov drove before, not after, drinking. On Mr. Pestikov’s evidence, as corroborated by Mr. Gershtein, he drove his vehicle to the car dealership, not to the bar he was drinking at. He indicates that he then walked to a bar and consumed alcoholic drinks while waiting for his friend. He then returned to the car to await his friend. On Mr. Gershtein’s evidence, Mr. Pestikov told Mr. Gershtein to pick him up from the Chevrolet dealership.
(h) Existence of plan to avoid driving while impaired: Mr. Pestikov had a plan to get home that did not involve driving while he was impaired or not over the legal limit. Mr. Pestikov told the investigating officers that he did not want to go home and wanted to cool off. He further indicated that a friend was coming to charge the car, and that he did not live far. Sergeant McGuigan could not recall if Mr. Pestikov was describing to him that someone was going to pick him up. The defendant later argued with DC Hynh that “he was only sitting in the car and not driving it.” Mr. Pestikov testified that he did not intend to drive the car. He was simply waiting in the car for his friend, Alex Gershtein, to arrive. The car was running because it was cold outside. This was corroborated by Mr. Gershtein’s testimony.
(i) No evidence of post-consumption driving or “sleeping it off”: If the accused drove while impaired it might show continuing care or control, bad judgment regarding fitness to drive, and willingness to break the law. There is no evidence before the court with respect to driving while in an inebriated state.
(j) The Crown’s case did not disclose the stated intention to resume driving.
(k) Presence in driver’s seat explained by vehicle configuration: Sergeant McGuigan found Mr. Pestikov in the driver’s seat of his two-door Camero. Mr. Pestikov testified that, given his height and weight—6 feet and 100 kilograms—it is not possible for him to use the back seats of his sporty Camero. This was corroborated by photographs of the vehicle, entered in evidence.
(l) Absence of seatbelt suggests no immediate intention to drive: Mr. Pestikov testified that he was not wearing his seatbelt. He further testified that had he tried to put the car in motion without wearing the seatbelt, a loud beeping signal would have commenced. The Crown called no evidence with respect to the wearing of a seatbelt.
(m) Alternative transportation options not exhausted: I am satisfied that Mr. Pestikov’s home was in the same township. He testified that he could have called for an Uber if Mr. Gershtein did not arrive.
(n) Access to cell phone for contingency planning: Sergeant McGuigan testified that Mr. Pestikov was speaking on a cell phone when he first approached the vehicle. I am satisfied that he could have used that cell phone not only to carry out his plan with Mr. Gershtein, but to make alternate arrangements if required.
III. Disposition
28Based on the forgoing, I reach the same conclusion that Justice Duncan did in an analogous case, Ross, a case cited by the Supreme Court in Beaudreault. While I see this as a close case, I conclude that there was no concrete and tangible likelihood of the defendant changing his mind and driving. There was no realistic risk of danger. I therefore have reasonable doubt that the defendant was in care or control of the vehicle. He is found not guilty.
AMENDED Reasons Released: July 14, 2026
Signed: Justice Ann Marina Elias