Court File and Parties

Court File No.: CR-24-12-AP
Date of Judgment: January 20, 2025
Ontario Superior Court of Justice

Between:
His Majesty the King, Respondent
– and –
Raimonds Mark Stivrins, Appellant

Appearances:
W. Barnes, for the Crown
M. Biddulph, for the Appellant

Heard: December 16, 2024 (virtually)

On Appeal of the Judgment of The Honourable Mr. Justice Carlton dated April 26, 2024

McCarthy J.

Reasons on Appeal

The Appeal

[1] The Appellant appeals against the conviction made by the Honourable Justice Carlton (the “trial judge”) of the Ontario Court of Justice at Huntsville on April 26, 2024. The Appellant was found guilty and convicted of operating a motor vehicle while having a blood alcohol concentration at or above the legal limit within two hours of that operation contrary to section 320.14(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46 (“Code”). The offence in question took place on South Monck Road in the Town of Bracebridge on March 17, 2023.

[2] The Appellant seeks an order allowing the appeal and substituting an acquittal or, in the alternative, an order allowing the appeal and ordering a new trial.

Grounds for Appeal

[3] The grounds for the appeal are as follows:

i) The trial judge erred in finding that the Appellant had care and control of the vehicle, a black Chevy Silverado (the “truck”), at the time he was observed by Constable Timms (“Cst. Timms”);

ii) The trial judge erred by improperly relying on inadmissible opinion evidence of Cst. Timms about the realistic chance that the truck would be set in motion by the Appellant;

iii) The trial judge failed to consider the absence of the key fob in the truck and whether the truck could be set in motion without that fob;

iv) The trial judge’s findings on credibility of the Appellant and his father Andris Stivrins (“A.S.”) rested on impermissible speculation and factual error;

v) The trial judge erred in failing to consider elimination rates for alcohol when considering whether the truck would be set in motion while the Appellant’s blood alcohol exceeded the legal limit.

Standard of Review

[4] The parties agree that the appeal pertains to findings of fact made by the trial judge.

[5] It is also conceded that the test on appeal for a finding of fact by a trial judge is whether that judge committed a palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, para 10.

[6] For the reasons that follow, the appeal is dismissed.

Background and Charges

[7] On the evening of March 17, 2023, Cst. Timms of the Bracebridge OPP was patrolling the Bracebridge area searching for a missing male. At approximately 9:45 p.m. that evening, after travelling one kilometre down South Monck Road, a road that was closed and used as a snowmobile trail during the winter, Cst. Timms came across the truck, which he noted to be stuck in the snow.

[8] The truck was unoccupied. Its engine was running, and its lights were on. Cst. Timms encountered the Appellant attempting to dig the truck out of the snow.

[9] As he was speaking with the Appellant, Cst. Timms noticed an alcoholic beverage can nearby. When asked, the Appellant informed Cst. Timms that he had consumed one alcoholic beverage since becoming stuck. Cst. Timms made a demand for a breath sample at 9:53 p.m. The Appellant registered a fail and was placed under arrest at 9:55 p.m.

[10] Cst. Timms then transferred the Appellant to the Bracebridge detachment, where the Appellant provided two breath samples. The first sample was provided at 10:57 p.m. and registered 96 mg/100 ml of blood. The second sample was provided at 11:24 p.m. and registered 89 mg/100 ml of blood. Both samples were over the legal limit.

[11] The Appellant was subsequently charged with the index offence. The truck was duly impounded.

The Trial

[12] The trial judge heard evidence from the Appellant and A.S. The Crown called evidence from Cst. Timms and the certified breath technician.

[13] There being no dispute that the breath and blood samples taken from the Appellant were reliable, it fell to the court to determine whether the Appellant was “operating” the vehicle under the applicable section of the Code.

[14] The trial judge considered the definition of “operate” a vehicle as being “to drive it or to have care or control of it.” As Cst. Timms did not observe the Appellant operating the vehicle, nor was the Appellant found in the seat normally occupied by the driver, it was therefore incumbent upon the Crown to prove that the Appellant had care and control of the vehicle. The trial judge cited the correct test for “de facto” or actual care and control of a motor vehicle as set out in R. v. Boudreault, 2012 SCC 56, para 9: “… ‘care or control’… signifies (1) an intentional course of conduct associated with a motor vehicle; (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.”

[15] The trial judge went on to cite the leading case of R. v. Wren, para 16: "in order to establish care or control of a motor vehicle, the act or conduct of the accused in relation to that motor vehicle must be such that there is created a risk of danger, whether from putting the car in motion or in some other way”.

[16] In that case, the Court of Appeal upheld the acquittal from the court below, holding that, where it was accepted that a vehicle found in a ditch was inoperable and immovable without the aid of a tow truck, it was open to the trial judge to find that the person sitting in the driver’s seat of that vehicle was not in care or control of it: Wren, at para. 30.

Analysis

[17] The trial judge carefully considered the evidence of the operability of the truck. In doing so, he afforded considerable weight to the evidence of Cst. Timms. The officer understood that the truck was stuck in the snow with all four tires having fallen through the snow. Nonetheless, Cst. Timms also observed that the truck was less than one foot deep in the snow and the Appellant appeared to have been digging out each of the tires for some time, such that the snow had been removed behind each tire, leaving a spot to reverse the vehicle. While acknowledging that the road was in poor condition and that other officers had been unable to access the unmaintained portion of South Monck Road, Cst. Timms formed the impression that it was quite possible that the truck could be moved. This did not constitute inadmissible opinion evidence. Rather, it was merely an opinion based on the observation made and an inference drawn by an officer on the scene at the material time. It was a conclusion that might have required some life experience, but it was hardly the subject of expertise: see E.G. Ewaschuk, Criminal Pleadings & Practice in Canada, 3rd ed. (Toronto: Canada Law Book, 2002) (loose-leaf 2024-Rel. 9), at § 16:656. The trial judge did not err in giving that testimony weight. Nor did the trial judge merely consider the evidence of Cst. Timms in isolation.

[18] The trial judge also carefully considered the evidence of the Appellant and his father. Both men testified that they worked together in their blasting business in the Parry Sound area earlier that day. After an argument between them about damage to equipment, the Appellant consumed a cooler. A.S. then forbade the Appellant to drive. The pair then decided that A.S. would drive the Appellant home in the truck. The two patched up their differences along the way. Just outside of Bracebridge, the Appellant offered to buy A.S. dinner. This prompted A.S. to take the South Monck Road shortcut to get to the restaurant. A short distance along, the truck went through the icy top layer of snow and sank up to its axles. The Appellant described the truck as being hung up on its axles with the tires spinning and unable to make contact with the ground.

[19] When it became clear that the truck was immovable, A.S. decided that he would walk back to the main road to call a former employee to come and pick them up. After obtaining a ride back to his residence, A.S. enlisted the help of this former employee to mount the excavator on the truck trailer and return with it to the scene. As they were approaching Bracebridge, A.S. received a call from the Appellant advising that he had been arrested and was being released.

[20] For his part, the Appellant testified that he employed a shovel to dig out the bumpers and flaps of the truck so that they would not be damaged when the vehicle was dragged out of its location.

[21] The trial judge found the narrative about this “plan” to extricate the truck to be implausible. In doing so, the trial judge found that many aspects of the Appellant and his father’s combined testimony did not “bear scrutiny” such as:

a) The absence of an explanation as to why A.S., if he was concerned that the Appellant was impaired by a single drink, would have not simply advised his son to remain at home, rather than embark on a two-hour return trip to Bracebridge.

b) The suggestion that the decision to take South Monck Road, known by the Appellant to be unmaintained, instead of a direct route to Bracebridge, was for a “bonding experience” between father and son.

c) After getting stuck in the snow, A.S. stated that he left his son alone on an unmaintained road without a key to the truck even though the Appellant had only consumed one drink 60 to 90 minutes before. This was contradicted by the evidence of Cst. Timms that the Appellant “directed” the officer to look for the key on the centre console of the truck.

d) Neither party made use of their cellphones from the scene. Instead, A.S., who was 75 years old at the time, walked 2 to 3 km back to the main road, from where he called a former employee to have him drive a considerable distance to pick him up, return to the yard, hook up the equipment, and then start the drive back to the scene.

e) There was no communication between A.S. and the Appellant for two to three hours during which time the Appellant was shoveling out the tires of the truck while his father was left to walk along an unmaintained road at night. Logically, the Appellant would have had concern for his father’s welfare and his progress in obtaining a ride back to Parry Sound and hooking up the excavator equipment.

f) There was no evidence of any tracks south of the truck’s location consistent with the Appellant’s evidence that the truck broke through the ice going up a hill and that it then reversed to its stopped position.

[22] After careful consideration, the trial judge rejected the substance of the pair’s narrative. He emphasized how no one other than the Appellant was seen near the truck, which was located on a roadway in a remote location. The trial judge did not engage in impermissible speculation in rejecting the credibility of the narrative offered by the Appellant and A.S. The trial judge made findings and drew inferences as he was entitled, which were entirely open to him on the evidentiary record.

[23] It was these findings on the credibility of the narrative offered by the Appellant and A.S. that negatively affected the weight the trial judge was prepared to attach to their respective testimony about the truck’s position in the snow.

[24] The trial judge did not ignore the Appellant’s testimony that he had to pay the tow company to use a skid steer. Rather, he declined to accept it as independent evidence of the state of the vehicle or as probative of the issue of the realistic risk that the truck could set in motion on the date and time in question. This was not an error. There was no evidence of how a skid steer might have been used. No evidence was called on how or when the truck was towed. No bill for the skid steer was produced and no witness from the tow company called.

[25] Having rejected the Appellant’s evidence about the plan to extricate the truck from the snow, the trial judge continued his analysis of whether the Appellant had care and control of the vehicle and whether there was a realistic risk to the public. Specifically, the trial judge considered whether the Appellant would have sought and been able to put the vehicle in motion.

[26] The trial judge considered that:

i) The Appellant was the only person present at the truck;

ii) The vehicle was running with its lights on while the keys, although not located, were stated to have been somewhere in the vehicle;

iii) The Appellant was consuming alcohol;

iv) The Appellant did not make use of his cellphone to call a tow truck;

v) The Appellant had been digging out each of the four tires for some time and according to Cst. Timms there was snow removed to the side of each tire creating a spot for the truck to be reversed back onto Houston Street;

vi) Cst. Timms was able to drive south to the site of the truck in his own vehicle and then reverse northbound after the Appellant’s arrest;

vii) The Appellant’s extensive efforts to dig out each of the four tires demonstrated that he was not passively awaiting assistance but rather looking to free the vehicle.

[27] Having made the factual findings, the trial judge concluded that the Appellant either had an intention to drive the truck at the moment he met police or that if he did not have that intention at that exact moment, there was a realistic risk that he would form such an intention in the near future. The trial judge distinguished this case from the decision in Wren on the ground that the Appellant’s truck was not inoperable or immovable. The trial judge, therefore, concluded that there remained a real and not a theoretical risk that the Appellant would set the vehicle in motion.

[28] The trial judge did not err when he concluded that the inability of Cst. Timms to locate the key fob did not mean that the truck could not be moved. While the trial judge acknowledged that the officer was unable to locate the key fob in the truck, he accepted that the Appellant advised the officer that the key was on the centre console. Moreover, the trial judge considered that the vehicle was running, had its lights on, and was in a remote location with no other person around. In rejecting the narrative offered by A.S., he found that A.S. had not taken the truck keys with him when he departed the scene. The trial judge was fully entitled to draw the common-sense inference that the key fob was somewhere in the running vehicle, and this was consistent with the Appellant having the ability to move the truck. This was in no way speculation.

[29] Finally, the trial judge did not err in failing to consider elimination rates of alcohol of the Appellant. The general rule is that appellate courts will not entertain issues that are raised for the first time on appeal: Kaiman v. Graham, 2009 ONCA 77, para 18. In order to be permitted to raise a new issue on appeal, the Appellant must satisfy three preconditions as set out in R. v. Reid, 2016 ONCA 524, para 43:

i) the evidentiary record must be sufficient to permit the appellate court to fully, effectively and fairly determine the issue raised on appeal;

ii) the failure to raise the issue at trial must not be due to tactical reasons; and

iii) the court must be satisfied that no miscarriage of justice will result from the refusal to raise the new issue on appeal.

[30] In this case, the first precondition is not met. The elimination rates of alcohol were not an issue raised by either party at trial, and no evidence was called to address this issue specifically. It is therefore impermissible for the Appellant to raise this issue for the first time on appeal.

Disposition

[31] The findings made by the trial judge were clearly factual. It was open to him to weigh the evidence, reject those portions of the Appellant’s narrative that he found implausible, draw the inferences that he did, and arrive at the conclusions that followed. All findings of fact are supported by the evidence and entitled to deference.

[32] There was no palpable or overriding error in any of the trial judge’s findings. He did not misapprehend or ignore relevant evidence. His findings flowed naturally from the evidence he accepted, and his reasons were both ample and complete.

[33] The appeal is dismissed.

McCarthy J.
Released: January 20, 2025