Ontario Court of Justice

Date: 2025-08-19

Court File No.: Newmarket 4911-24-91109656

Between:

HIS MAJESTY THE KING

— AND —

ANTHONY SWALES

Before: Justice P. Bourque

Heard on: August 8, 2025

Reasons for Judgment released on: August 19, 2025

Counsel:

• L. Young — counsel for the Crown
• R. Sahota — counsel for the defendant Anthony Swales

BOURQUE, J.:

I. OVERVIEW

[1] In the late night hours of October 16, 2024, the defendant and his spouse were at their home and were arguing. His spouse, Melanie Macdonald, decided to leave the home at about 11 p.m. and went to get a "tea". On her return, she saw the defendant in the driveway (it was a long driveway on a rural property) on a motorized ATV machine. As she came up the driveway and stopped, the defendant bumped into her, causing some slight damage to the back of her car. As a result of her call to the police and their attendance and intervention, the defendant is facing charges of impaired driving, driving with excess alcohol, and mischief.

II. EVIDENCE

A. Melanie Macdonald

[2] Melanie Macdonald has given the evidence referred to above.

[3] She stated that she could not remember the cause of the argument, but he was consuming beer from a beer can at some point. She cannot say whether the beer had alcohol in it. She did say that she was aware that when she left the home, she had left a vodka bottle in the fridge with ¼ to ½ of the contents left in it. She stated that when she eventually returned inside the house, the bottle was sitting on the counter, and it was empty. No other persons but her and the defendant and their 6-year-old daughter lived in the house. She stated that just before she left the house, she went upstairs to see on her daughter and heard commotion downstairs. When she went downstairs, she saw the kitchen table flipped over and some other items had been disturbed although nothing was broken.

[4] She stated that on her return to the house, she went up the drive and he came up behind her and the ATV struck her car from behind and pushed in a back up camera, which she said she simply pushed back out without needing any repairs.

[5] She believed that the argument lasted for half an hour and started at around 10:30 p.m. She did say that she left the home at about 11:00 p.m. She also said that she would have returned about 11:40 p.m.

[6] After he struck her car with his ATV, she went back down to the end of the driveway, and he followed. She got out her phone and stated that she called the police at about midnight.

[7] She believes the police came in about 10 minutes, (both Crown and defence say she must be mistaken about this time), and she went up to the house with them. They went into the house. The defendant was not there. The police went outside and found him and arrested him.

B. Tyler Nash

[8] Tyler Nash is a YRP officer with four years of experience. He received a dispatch at 1:05 a.m. and arrived at the scene at 1:13 a.m. He saw Melanie Macdonald speaking to another officer and he went into the house to search for the defendant. He states he saw the kitchen area in "disarray". He then went outside and saw the defendant coming from a grassy area, near a camping trailer. At no time does he see an ATV. He does not see the defendant on any vehicle.

[9] He arrests him for mischief at 1:28 a.m. At the direction of the duty sergeant, at 1:44 a.m. He also arrests him for impaired driving. The officer said that he could detect an odour of alcohol, he had slight slurring of speech and had glossy eyes.

[10] The officer stated that he dealt with the defendant at the station and his signs of impairment did not change.

C. Woll Morrison

[11] Woll Morrison is a YRP officer of less than 1 year experience.

[12] He received a dispatch at 1:05 a.m. and arrived at the scene at 1:13 a.m. He saw the scene in the kitchen (he took the photo marked Exhibit No. 4C) and went outside and saw the defendant being arrested by PC Nash. He stated that he could smell some alcohol and walked with a slightly unsteady gait, although the ground was a combination of grass and gravel. He searched the defendant and discovered a "set of keys".

[13] He went behind the house and found a red ATV. He arranged for it to be towed. He stated that the ATV had its key in the ignition.

[14] He inspected the damage to the motor vehicle of Melanie Macdonald and two of his photos were marked as exhibits (4A and 4B). I must say the damage on the pictures does seem greater than the damage as described by Melanie Macdonald, but it is not inconsistent with her evidence.

[15] He went back to the station and had further interactions with the defendant but made no other notations of impairment.

D. Paul Kimmerly

[16] Paul Kimmerly is the breath technician. He read the breath demand to the defendant at 2:30 a.m. and the first test was taken at 3:32 a.m. and the second breath test was taken at 3:58 a.m. He stated that the defendant's speech was slightly slurred, his eyes and face were normal and his balance while standing and walking was sure. The certificate of the breath technician had been filed, showing a truncated reading of 170 milligrams at 03:32 a.m.

[17] The defence did not call any evidence.

III. ANALYSIS

[18] I will deal with each charge separately, although there may be overlapping. I note the general statement contained in the criminal law that the burden remains upon the Crown to prove all of the essential elements of each offence beyond a reasonable doubt.

A. Mischief

[19] The Crown alleges that the defendant damaged two pieces of property (owned solely or partially by Melanie Macdonald) namely, the kitchen table and her Ford Bronco automobile.

[20] With regard to the kitchen table, he may have turned it on its side, but there is no indication of any damage to it. While this may be an interference with the property to a limited extent (the table can simply be righted after all), it does not in my opinion constitute damage.

[21] With regard to the damage to the rear of the Ms. Macdonald's automobile, her evidence was that the ATV ran into the back of her vehicle when she came to a stop at the end of the driveway. While it is possible that the defendant intended to run into the back of the Bronco and cause some damage, I note that Ms. Macdonald made the statement that, "I may have hit my brakes." While that may not excuse the defendant, it may be more of a case of negligence that an intention to actually run into the back of her car. On this issue, I must say that I have a reasonable doubt and having doubt about his intention, I find that I cannot make a finding of guilt on this count.

B. Driving With Excess Alcohol

[22] The facts of this case are somewhat unusual. I will set out the precise facts I rely upon:

(i) Between 10:30 p.m. and 11:00 p.m., Melanie Macdonald and the defendant were arguing in their home. The defendant was drinking beer from a beer can. Melanie Macdonald cannot say for sure that the beer was alcoholic as she agreed with the suggestion from defence counsel that there is sometimes non-alcoholic beer in the home. I find that this was alcoholic beer, as I accept that this may have been non-alcoholic was a mere possibility and it was not stated as a probability. Ms. Macdonald stated that she had a bottle of vodka in the fridge. She believed it had some ¼ to ½ volume of alcohol still in it. She said that she saw this bottle on the counter empty, when she returned to the house with the police. It is possible that the defendant consumed this alcohol. No testimony was heard that he did. I note that in Exhibit No. 4C (the picture of the kitchen) I can see no empty bottle of alcohol on the counter. I do not make a finding that the defendant consumed this vodka at any time that evening. I have no other possible evidence that he consumed any alcohol between the time she returned, and the police attended.

(ii) Melanie Macdonald left the home at around 11:00 p.m. and returned at approximately 11:40 p.m. When she returned, the defendant was riding on a Polaris ATV 4-wheel motorized vehicle and was for a time in the driveway. She stated that he was still "angry" and that she was worried about her safety and his safety. It was at sometime between 11:40 p.m. and midnight that the vehicles had a minor accident (as described above) and she drove down the driveway and decided to call the police.

(iii) The police arrived at 1:13 a.m. They viewed the state of disarray in the kitchen and looked for the defendant outside. The defendant walked up to Officer Nash at 1:28 a.m. and he was arrested for mischief. The officer received instructions from his sergeant to also arrest for impaired driving and he did so at 1:44 a.m.

(iv) The defendant provided samples of his breath at 3:32 a.m. and 3:58 a.m., with truncated readings both times of 170 milligrams of alcohol in 100 milliliters of blood.

[23] The defendant relies upon the provisions of section 320.14(5) of the Criminal Code and states that I should acquit him of the charge of driving with excess alcohol.

IV. THE LAW

[24] S. 320.14(5) of the Criminal Code states:

(5) No person commits an offence under paragraph (1)(b) if:

(a) they consumed alcohol after ceasing to operate the conveyance;

(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and

(c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood.

[25] The first issue to be decided is the burden of proof and evidence which may be required for this defence to be successful. I believe that the issue has been decided in R. v. Bell, 2023 ONSC 2952, as it was the superior court sitting as a summary conviction appeal court.

[26] The court stated:

In my view, to avail himself of the statutory exception, the respondent was required to show on the evidence that there was an air of reality to the application of that defence. The Crown is not required to negative or disprove the elements of s. 320.15(5) in the absence of such a showing.

The exception with which we are concerned here, on its face, plainly applies only when all three elements have been established (or at least when they are not disproven beyond a reasonable doubt by the Crown).

Accordingly, an air of reality will exist only when there is an air of reality to each of those three elements. It is not enough, in my opinion, for the accused to say, as the respondent does here, that in any case where there is evidence of drinking after driving that there is an air of reality to this exception. An air of reality is established only where there is an air of reality to each of s. 320.14(5)'s elements. Some evidence of drinking after driving – without more – provides an air of reality of nothing.

[27] With regard to s. 320.14(5)(a), I have already reviewed the evidence. Melanie Macdonald spoke of a ¼ to ½ bottle of vodka. It is not established in the photograph exhibit and there is no further evidence that the defendant had any such drink after she called the police that morning. (that was also the time of the last driving on the ATV). I find that such a suggestion does not have an air of reality in this case. Even if such an air of reality was raised, I find that I am convinced beyond a reasonable doubt that the defendant did not consume any such alcohol (or any other alcohol) after he finished operating the ATV.

[28] With regard to s. 320.14(5)(b), the defence points out that on these circumstances, the defendant could not possibly have a reasonable expectation that after operating the ATV he would be asked to provide a breath sample. I beg to differ. The defendant had just been in an argument with his wife that caused her to leave. On her return, he was involved in an admittedly minor motor vehicle collision. She then got on the phone, and while he may not have known the police were coming, that was a real possibility. The drinking and driving laws are known to all, even if one probably does not know all of the intricacies. Again, I find that this does not constitute an air of reality and even if it arose, I would say that it is proven beyond a reasonable doubt that he clearly had a reasonable expectation that he would be required to provide a blood sample.

[29] With regard to s. 320.14(5)(c), I believe that the case law is clear that from a practical point of view, "expert evidence will be required for the accused to take advantage of this element of the exception". (R. v. Bell, 2023 ONSC 2952). No such evidence was led.

[30] The Defendant states that they should be excused from such a requirement in this case, as the Crown needed to rely upon the "read back" provisions of section 320.31(4) which provide that:

For the purpose of paragraphs 320.14(1)(b) and (d), if the first of the samples of breath was taken, or the sample of blood was taken, more than two hours after the person ceased to operate the conveyance and the person's blood alcohol concentration was equal to or exceeded 20 milligrams of alcohol in 100 milliliters of blood, the person's blood alcohol concentration within those two hours is conclusively presumed to be the concentration established in accordance with subsection (1) or (2), as the case may be, plus an additional 5 milligrams of alcohol in 100 milliliters of blood for every interval of 30 minutes in excess of those two hours.

[31] In other words, in this case, with the last driving at 00:00 hrs and the first sample was taken at 03:32, the concentration of alcohol in the body of the defendant at last driving was (170 + (3 x 5)) = 185 milligrams of alcohol in 100 milliliters of blood. The defendant argues that to retain the services of an expert, the exact time of extrapolation would not be known. I beg to differ that this puts up some real obstacle to obtaining this evidence. The toxicologist bases his analysis upon information taken from the defendant as to the quantities drunk and the time of each drink. If there is a possibility of two different times of last driving, then that is simply a matter of calculation. I do not think that this imposes a significantly greater burden than simple requirement of an expert.

[32] Without any of this evidence being presented, I cannot find that there is an air of reality to the requirements of subsection c of section 320.14(5).

A. Impaired Driving

[33] To prove impaired driving, I must be satisfied beyond a reasonable doubt that the defendant was at the time of driving, impaired to any degree.

[34] The evidence of the impairment would consist of:

• the collision in the driveway
• the evidence of the officers which consists of a smell of alcohol, glossy eyes, and some slurring of words. One officer spoke of balance issues, but I note that the defendant was on uneven ground.
• contrary to this evidence is the evidence of the breath tech who describes the defendant as eyes and face normal, balance while standing and walking was sure.

[35] Based upon this evidence I find I am not satisfied beyond a reasonable doubt that the defendant was impaired by any degree by the consumption of alcohol.

V. CONCLUSION

[36] I therefore find the defendant guilty of count number 2 (driving with excess alcohol) but not guilty of count number 1 (impaired driving) and count number 3 (mischief).

Released: August 19, 2025

Signed: Justice P. Bourque