Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2014-05-13
FILE:
8733/ADLS
CASE NAME:
8733 v. Registrar of Motor Vehicles
Appeal under section 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a Decision of the Registrar of Motor Vehicles pursuant to section 48.3(2) of that Act - to impose a 90-Day Administrative Driver’s Licence Suspension
Appellant
Appellant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
David W. Hurst, M.D., Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Kyle M. Biel, Agent
Heard in North Bay:
April 29, 2014
REASONS FOR DECISION
A hearing was held on April 29, 2014, in North Bay, Ontario, to consider the Appellant’s appeal pursuant to section 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "Act”).
THE TRIBUNAL CONFIRMS the suspension imposed by the Registrar of Motor Vehicles (the "Registrar") pursuant to section 48.3 of the Act for the reasons that follow.
BACKGROUND
The Appellant appealed, by way of a Notice of Appeal under section 50.1 of the Act on March 25, 2014, the Registrar’s suspension order effective March 5, 2014.
The reasons for the appeal, as set out in the Notice of Appeal, are summarized as follows:
I was unable to comply with a demand made under section 254 of the Criminal Code (Canada) for a medical reason.
PRELIMINARY MATTERS
Mr. Biel stated that he objected to the use of the Appellant’s medical records, which the Appellant had brought to the hearing, and had not been previously disclosed to the Registrar. The Appellant also presented photographs of his surgical incisions, which were not relevant to the issues at the hearing.
ISSUE
Did the Appellant fail or refuse to comply with a demand made under section 254 of the Criminal Code (Canada) because he was unable to do so for a medical reason?
LAW
The legislation governing the Administrative Driver’s Licence Suspension (“ADLS”) under subsection 50.1 of the Act states:
50.1(1) A person whose driver’s licence is suspended under section 48.3 may appeal the suspension to the Tribunal.
(2) The only grounds on which a person may appeal a suspension under section 48.3 and the only grounds on which the Tribunal may order that the suspension be set aside are,
a) that the person whose licence was suspended is not the same individual to whom a demand was made, or from whom a sample was taken, or who performed physical co-ordination tests or submitted to an evaluation, as the case may be, under section 254 or 256 of the Criminal Code (Canada); or
b) that the person failed or refused to comply with a demand made under section 254 of the Criminal Code (Canada) because he or she was unable to do so for a medical reason.
The Act states under subsection 50.1(4):
The Tribunal may confirm the suspension or may order that the suspension be set aside.
EVIDENCE
In his evidence, the Appellant stated that on January 5, 2014, he was taken to a regional medical centre for severe chest pains. On January 14, 2014, he underwent a coronary artery bypass. He had had some difficulties with superficial wound infection and was in a significant state of agitation and anxiety as a result of his coronary artery difficulties and its management, but was recovering at home. He listed his medications as Dilaudid and Ativan and would supplement this by drinking a half can of beer (250 ml and described as 6% alcohol content). All of this enabled him to cope and keep his anxiety to a minimum.
On March 5, 2014, the Appellant was called by his son who was out on the ice on his snowmobile which had broken down and needed a tow rope that the Appellant had at home. The Appellant went to the lake and was able to attach a tow rope to his son’s snowmobile and bring his son ashore leading to a necessary violation of a local ordinance stating that a person cannot operate snowmobiles on street property with certain exceptions. The Appellant and his son were moving towards the Appellant’s home with this towing operation when a police officer observed what was going on and stopped to investigate. The officer was informed that the Appellant was a recent post-operative heart patient and therefore it would be quite deleterious for him to be handcuffed. The Appellant, as the Tribunal later learned from the police officer, was irritable and belligerent and was using strong words, stating that there was no reason for him to be apprehended. Having smelled beer on the Appellant’s breath, the police officer instructed him to blow into the roadside screening device. The Appellant was afraid he would pass out in an attempt to do the breath test, so he was charged with “refusing”. Questioning by the Tribunal disclosed that the Appellant had not considered the possibility of simply attempting to blow into the device, and accepting a failure, if that were the outcome. This was the essence of the events that occurred on March 5, 2014.
Mr. Biel cross-examined the Appellant about his post-operative pain. The Appellant stated that he had been released from the hospital, after his bypass surgery, on January 19, 2014, and he observed that the pain had only begun to diminish in the first two weeks of April.
He was in great pain post-operatively and was using Dilaudid, Ativan and strong beer. He admitted that his doctors likely did not know that he was combining alcohol with his sedatives and possibly abusing drugs which were quite strong.
Under questioning from Mr. Biel, the Appellant admitted that he was able to drive his snowmobile by simply cruising slowly, although it did hurt his leg a bit but not his chest. The Appellant was able to connect the tow rope to his son’s machine and bring him to a nearby road.
Mr. Biel questioned the Appellant regarding the police officer’s comments stating that he had smelled alcohol on the Appellant’s breath. The Appellant said he wasn’t drunk but was afraid to blow into the breathalyzer device lest he damage the wound in the middle of his chest. Further questioning by Mr. Biel disclosed that the Appellant was very anxious at the time. He was suffering pain particularly from his leg. On questioning by Mr. Biel, the Tribunal learned that the Appellant did not want an ambulance or any medical help since he “didn’t need it”.
The Appellant then described how on the date of the incident, he had pain in one arm causing him to go to the emergency room where he stayed overnight. There was no medical documentation presented to indicate that he might have had further heart trouble.
Constable Martin, the police officer who apprehended the Appellant on his snowmobile on March 5, 2014, gave evidence at the hearing. The officer testified that he thought there were four snowmobiles on the street when he stopped the Appellant. He found that the Appellant did not have the snowmobile registration or proof of insurance. He was wearing his helmet and smelled of stale beer. The Appellant told the officer that he had consumed one beer. The Appellant was upset over why he was being accosted by the police stating that he “had spoken to a by-law officer at City Hall” and found that it was alright to proceed on city streets with a snowmobile under certain conditions. Constable Martin requested that a “breath screening device” be brought to the scene by another officer to be used in the roadside situation. He read the instructions on how to use the device to the Appellant and was sure he understood the import of using this device. The Appellant stated “I am not doing anything”. Constable Martin explained to the Appellant the implications of this and that he would be charged; the Appellant replied that he had been stopped for a “b.s.” reason. At this point, a second screening device was brought by another police officer and the Appellant again refused to cooperate. The Appellant did not complain of any discomfort. The second officer said he could smell stale beer. Again, the test instructions were explained to the Appellant and he refused to cooperate and called the policeman “a power tripping officer”.
The Tribunal inquired as to the difficulty of blowing into this device and the officer said that in his several years of experience, he had never seen anyone who could not blow into the device because of medical difficulties and that this included asthmatics.
The officer then stated he couldn’t allow the Appellant to continue driving because of the by-law infringement and was not in fact concerned about drunkenness. The Appellant was then charged for failure to provide a breath sample.
The officer allowed the Appellant to go home ignoring other possible infringements of the law and described this as an ADLS suspension (90-day Administrative Driver’s Licence Suspension). The Appellant told the officer that he would be fighting this charge and that it would be easier to fight the refusal to activate the device than to blow into it and find that he had failed the test.
It was noted that on that evening, the Appellant had no valid driver’s licence. It was also noted that his words “were slurred”, but he explained to the officer that he was taking a morphine derivative prescribed by his doctors. Again, the police officer stated that he did not observe any physical problems with the Appellant that would prevent blowing into the device, and in fact, he never has seen this in his career.
The Appellant cross-examined the police officer. He determined that the officer was aware of his surgery and in fact, his wife, who had joined the gathering, explained this to the officer.
Mr. Biel called Constable Gainforth as a witness. The police officer described the events of March 5, 2014, when he was called to bring another screening device. He said there were three snowmobiles. The Appellant was present and was quite irate in that he had talked to a by-law officer about going on the city streets. He stated that at a distance of four feet, he could smell stale beer. He noted that the Appellant refused to use the breathalyzer several times. He testified that the Appellant did not mention any medical issues to him. The Appellant’s wife, who had arrived at the scene by this point, mentioned his recent heart surgery. The Appellant apologized for his manner and stated that he was going to fight the charge.
The Registrar’s Submissions
Mr. Biel took into consideration the recent open heart surgery and submitted that there was no evidence why this would interfere with the Appellant’s ability to blow into either one of the devices. He acknowledged that the police officers have limited medical experience, but they did not observe a medical problem, which would have prevented activation of both breathalyzer devices. Mr. Biel’s position was that the Appellant was in fact using the relatively recent heart surgery as an excuse to be unable to blow into these devices lest he fail the test. He observed that Constable Martin was performing his duty with no sign of power tripping and in fact could have added other charges: no licence, no registration, driving on the city streets. Mr. Biel observed that the Appellant had sufficient energy to get out the snowmobile and go and do the necessary hook up of the tow rope. Mr. Biel stated that there are medical reports from an emergency room visit, which demonstrate no bearing on the Appellant’s claim that he is unable to blow into these devices.
In fact, the Appellant has no medical condition preventing him to “blow”. He stated that the Appellant had no intention of complying with Constable Martin’s demand. His refusal was a strategy to fight the situation rather than to risk blowing a “high number”. He has failed to explain to the Tribunal why he was incapable of blowing into the devices. The Registrar’s Agent asked that the Tribunal confirm the Registrar’s decision, as the evidence given by the police officers supports that finding.
APPLICATION OF THE LAW TO FACTS
As is often the case in licensing matters, a specific date emerges when various problems develop for an appellant, in this case, March 5, 2014. Not long before, the Appellant had undergone open heart surgery for coronary artery disease in a regional centre and was still convalescing from this major procedure. He had suffered significant difficulty with post-operative pain, which may have been at least partly due to skin and superficial infection in his leg incision. In the management of this pain, he was using significant doses of Dilaudid (a synthetic Morphine), Ativan (a mood altering drug), and also beer with a 6% alcohol content. He has suffered for years with an anxiety state.
With all of this on his plate, he scarcely needed a phone call from his son who was having mechanical difficulty with his snowmobile out on the ice at a nearby lake. The Appellant, who had been drinking, went to help his son by taking along a tow rope and attaching this to the disabled machine and pulling it to shore. In order to return to his house, he had to use the city streets. The local police came and were concerned about his alcohol intake and management of these machines. Breathalyzer tests, both with a standard device and an additional one brought by another police officer, were requested and refused by the Appellant. The Appellant had decided that it was easier for him to legally handle the consequences of a “refusal” compared to the risk that he would fail the breathalyzer tests.
The Appellant’s excuse revolved around his physical infirmity from his surgery. He described the serious risk to him if he tried to blow into such a device and that it might cause internal disruption in the area of his surgery. Upon being questioned by the Tribunal, the police officer, a man with many years’ experience, disclosed that he has never encountered anyone who was physically incapable of blowing into these devices.
While not proven drunk, the Appellant was under the influence of alcohol if not also combined with the impact of his post-operative pain medication. It is not clear to the Tribunal whether the Appellant’s doctors knew that he was adding alcohol to the mixture of post-operative pain control.
The Tribunal observes that the Appellant obviously did a considerable amount of inhaling and exhaling while dealing with the problem of towing a snowmobile off the lake. It is probable that much less respiratory effort is required to activate a breathalyzer. The onus is on the Appellant to establish that he was unable to comply with the demand for a breath sample because of a medical reason.
The evidence put forward by the Appellant does not support such a conclusion. Rather, the evidence suggests that the Appellant could have blown into the testing devices and his refusal to do so has led to this suspension.
DECISION
Upon the application by the Appellant to appeal the Registrar’s suspension order, effective March 5, 2014, pursuant to section 48.3 of the Act, and having considered the evidence filed with the Tribunal and the submissions of the Registrar and of the Appellant;
Pursuant to the authority vested in it under subsection 50.1(4) of the Act, the Tribunal confirms the suspension of the Registrar.
LICENCE APPEAL TRIBUNAL
David W. Hurst, M.D., Member
Released: May 13, 2014