Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 8857/ADLS
CASE NAME: 8857 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 Appeal a 90-Day Administrative Driver’s Licence Suspension
Appellant: 8857
-and-
Respondent: Registrar of Motor Vehicles
DECISION AND ORDER
ADJUDICATOR: Kevin Flynn, M.D., Member Katherine Whitehead M.D., Member
APPEARANCES: For the Appellant: Self-represented For the Respondent: Kyle Biel, Agent
Heard in Toronto: June 26, 2014
DECISION AND REASONS
A hearing was held on June 26, 2014, at Toronto, Ontario, to consider the Appellant's appeal pursuant to section 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA").
THE TRIBUNAL RULED TO CONFIRM the suspension imposed by the Registrar pursuant to section of the 48.3 of the HTA for the following reasons.
REASONS
BACKGROUND
The Appellant appealed, by way of a Notice of Appeal under section 50.1 of the HTA, the order of the Registrar of Motor Vehicles (the "Registrar") dated April 19, 2014
The reasons for the appeal set out in the Notice of Appeal are summarized as follows:
He is a diabetic and was uncomfortable taking the roadside test due to his diabetes. He was willing to take a blood test and was not given this option.
Blood sugar levels can cause ketoacidosis which may skew the breathalyzer results.
Blood tests may differentiate between isopropylalcohol and ethyl alcohol.
Preliminary Matters
At the onset of the hearing, the Tribunal ordered that the witness for the Respondent, be excluded during the testimony of other witnesses.
The Tribunal informed the Appellant of the only grounds for appeal, under subsection 50.1(1) and (2) of the HTA.
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 Drivers Licence Suspension (ADLS) under subsection 50.1(1) and (2) of the HTA 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 grounds on which a person may appeal under subsection (1) 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 HTA states under Section 50.1(4):
The [Tribunal] may confirm the suspension or may order that the suspension be set aside.
EXHIBITS
The following documents were entered as exhibits:
- Notice of Suspension to the Registrar, received April 19, 2014
- Notice of Appeal received May 26, 2014
- Tabbed evidence file 1-19 prepared by the Respondent’s representative.
FACTS
The Appellant’s Evidence
The Appellant submitted Supporting Documentation – Administrative Driver’s Licence Suspension – Appellant’s Medical Information with his Reasons for Appeal.
This document was prepared by Dr. B., an internist who manages the Appellant’s diabetes.
A note dated May 1, 2014 addressed To Whom It May Concern stated:
This is to certify that (Appellant) is a type 2 diabetic on oral medication, (He is not on insulin).
Attached was a list of Problems, Medications indicating there are no allergies or adverse reactions.
Under the new rules of Practice, effective May 1, there is no rule 15.3 and we did not include this portion below in the rule. We do state on our ADLS information sheet that the Appellant’s medical information should include this kind of information listed below 9and as recited in the former rule 15.3.
Information required under Rule 15.3 of the Tribunal’s Rules of Practice requires the following:
Details and diagnosis of patient’s condition related to this appeal:
No information was provided.
No information was provided
Type of measurements or recent test taken including dates:
No information was provided
Relevant details of last visit, including date of patient’s last visit:
No information was provided
Physician’s information (including How long has the Appellant been your patient?
No information was provided, undated and the physician’s signature was absent.
The Tribunal ruled that this document, because it was incomplete, had no evidentiary value for this appeal.
Oral testimony by the Appellant:
He stated that he was driving north on Highway 50 at approximately 6 p.m. on April 19, 2014 when his pick-up truck ran out of fuel. His vehicle stopped on the shoulder and a police cruiser pulled in behind him.
The officer told him that he smelled alcohol on his breath and asked him if he had been drinking
The officer told him that he was required to submit a breath sample. He told the officer that he was unable to take a breath test due to his position that the results of a breath analysis is liable to be inaccurate because of his diabetes. He asked to have a nurse attend to take a blood sample. His request was refused and he was taken to the local detachment.
Under cross examination, he stated that he held a Class AZ licence for 17 years. He was unable to suggest why with his experience he was unable to tell why his vehicle was running out of gas.
He stated that he had consumed 1 ½ drinks of vodka that day.
He acknowledged that Dr. B. never told him not to take a breath test due to his diabetes.
The Respondent’s Evidence
O.P.P. Constable Nathan Hurley, Badge # 13664 stated that he was on uniform patrol on Highway 50 at 6.53 p.m. on April 19, 2014 when he was flagged down by a motorist who reported a white pick-up truck driving north which was swerving all over the road.
On observing the suspect vehicle at a traffic light, he stopped behind and approached the driver and observed his glassy red eyes and smelled the odour of alcohol from his breath. When asked if he had been drinking the driver answered “No”.
The officer confirmed that the Appellant was the driver.
He read the demand for a sample of the driver’s breath. The driver said “I can’t do that. I’m sorry”. He asked the driver to step out of the vehicle and observed him to be unsteady, and swaying. He repeated that he had grounds to issue a demand and he then arrested the driver for impaired driving.
He read the official demand and the Appellant stated that he understood and asked to speak to his lawyer. He placed the driver in the rear of his vehicle. He proceeded to his detachment for the breath test and during the drive, the Appellant stated that he did not require his lawyer.
He processed the arrest forms and placed the Appellant in the breath testing room. The Duty Counsel was contacted and spoke to the Appellant.
The qualified breath test officer interviewed the Appellant and reported that the Appellant refused to submit to a breath test.
The officer noted a strong smell of alcohol in the room occupied by the Appellant.
OPP Constable Paul Beaton, Badge #11320 was partner to Constable Hurley and he confirmed the evidence given. He confirmed that the Appellant refused to provide a breath sample on the grounds of diabetes and that there was alcohol odour from the Appellant. He stated that the citizen who gave the original report of suspected impaired driving arrived at the scene and confirmed the identity of the vehicle.
The Appellant was advised that there were no grounds for a blood sample which would be requested only if the driver was injured or unconscious and clearly unable to comply.
OPP Constable David Williams, Badge #13882 is a qualified breath testing officer since 2007. He was requested to conduct a breath on the Appellant by Constable Hurley. The official demand and the caution were read by him; the Appellant stated that his doctor told him not to comply with a demand due to his diabetes. The officer handed him a new mouthpiece and asked him to blow into it to be sure it was not blocked.
Upon observing the Appellant to feign four times he repeated the caution and explained that refusal is equivalent to failure. The Appellant continued to refuse and Constable Hurley was advised of the refusal and the Appellant was then charged and issued with a 90 day suspension under section 254(5) of the Criminal Code (Canada).
APPLICATION OF THE LAW TO FACTS
The Agent for the Respondent in submission relied on the evidence given by the three police constables and failure by the Appellant to submit a valid medical reason for his non compliance.
The onus for proof of medical justification for refusal rests with the Appellant who has not met that onus. The Appellant did not make a final submission.
The Tribunal finds that the police officer had reasonable grounds for issuing a demand for a breath sample to the Appellant under section 254 of the Criminal Code (Canada) on April 19, 2014. There is no issue as to the identity of the driver.
The Appellant was properly informed of his choices after the demand was read to him and he opted to refuse to comply.
The Tribunal finds that based on the evidence before it, the Appellant did not have a medical reason why he was unable to comply with the demand made under section 254 of the Criminal Code (Canada) by a police officer on April 19, 2014, as required under section 50.1(2)(b).
DECISION
Upon the application by the Appellant to appeal the suspension order of the Registrar dated April 19, 2014 pursuant to section 48.3 of the HTA and having considered the evidence filed with the Tribunal and the submissions;
IT IS THE DECISION OF THE TRIBUNAL pursuant to the authority vested in it under Section 50(2) of the Act that the decision of the Respondent be confirmed.
LICENCE APPEAL TRIBUNAL
Kevin Flynn, M.D., Member,
Katherine Whitehead, M.D., Member
Released: July 11, 2014