Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 9087/ADLS
CASE NAME: 9087 v. Registrar of Motor Vehicles
Appeal under Section 50.1 of the Highway Traffic Act 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
9087 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Garry Fisher M.D. Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Kyle M. Biel, Agent
Heard by teleconference: September 18, 2014
REASONS FOR DECISION
A hearing was held on September 18, 2014, by teleconference, to consider the Appellant's appeal pursuant to section 50.1 of Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA").
The Tribunal released its Decision on September 19, 2014 ruled to set aside the suspension imposed by the Registrar pursuant to section of the 48.3 of the HTA with reasons to follow. These are those 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 August 24, 2014.
The reasons for the appeal as set out in the Notice of Appeal are summarized as follows:
the Appellant was unable to provide a breath sample for medical reasons. She was having a panic attack and in the circumstances, unable to comply with simple instructions.
At the teleconference hearing, Constable Nigel Heels participated as a witness on behalf of the Registrar.
ISSUE
Did the Appellant fail or refuse 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?
Specifically, is a panic attack a valid reason, under the Act, for failing to provide a breath sample?
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 also states, under Section 50.1(4):
The [Tribunal] may confirm the suspension or may order that the suspension be set aside.
EVIDENCE
Appellant’s Evidence
The Appellant was stopped for speeding in the small hours of August 24, 2014 and a breath test sample was demanded. The Appellant was unable to comply with the demand. She contends that a panic attack prevented her from physically blowing into a breath device (ASD).
The Registrar Agent notes that no apparent physical reason accounted for a failure to blow into a device. Thus the police constable charged the Appellant with refusing to provide a sample. The failure then led to an ADLS.
In her written submission, the Appellant notes that she did not refuse to provide a breath sample. She relates that she has been under extreme stress in recent months due to unusual family situations. Her ex-husband died in February; she describes the “murder” of the man who went missing and whose frozen body was found in a northern cabin.
Her sixteen year old daughter has had a series of emotional and behavioural problems that led on several occasions to hospitalization, violent confrontation with the police, and ongoing psychiatric care.
Her family doctor (Dr. W.K) has known her for 33 years. His diagnosis was a : “General Anxiety Disorder”. No tests were ordered. No medications prescribed.
A second medical report came from Dr. K.M., a psychiatrist who principally is treating (counselling) the Appellant’s daughter. In that context, the doctor, although not billing the Appellant for psychotherapy, is treating the family and as she says, “is privy to all the stress and challenges that the Appellant and her family have undergone in recent months.”. She is very “aware of a recent change in the Appellant’s mental health difficulties, more specifically a significant rise in the frequency and intensity of panic attacks.”
Because of her daughter’s recent interaction with police, the Appellant has anxiety and feels panic that her daughter will have more problems when confronted with a police presence.
Dr. K.M witnessed the Appellant having a panic attack at a hospital in March, 2014. The distress came from a threat to her daughter after an altercation with police. She was gasping for air, hyperventilating and collapsed to the floor.
In July, 2014, the Appellant attempted a scuba course and couldn’t breathe through the regulator. She experienced a panic attack and couldn’t continue the course. It was much the same feeling that she had when asked to use a breath sampler.
The Appellant was travelling in a northerly direction in the early hours of August 24, 2014. She was moving at an excessive rate of speed and freely acknowledges that fact. She had a male companion and her sixteen year old daughter with her. They were in a hurry because she didn’t want to miss an early morning ferry departure.
The male was sitting in the passenger’s seat. He was visiting the Appellant from Spain and had been sailing and drinking beer all day with friends. They stopped on the motor trip and he enjoyed more beverage. At the stop, he spilled some beer on himself and on the Appellant. He was clearly inebriated and reeked of alcohol. The sixteen year old was in the back seat.
The Registrar’s Agent questioned the Appellant about her apparent inability to blow into the ASD, asking whether she felt the need to call an ambulance, whether she had respiratory testing or whether she needed “puffers”? The Tribunal notes that all of these questions suggest a physical, measurable respiratory disease process. The evidence is not that she suffers from a respiratory problem. Her doctors cannot do specific tests to verify a panic attack. They can, however, attest to the fact that it is one manifestation of anxiety. It is not possible to visualize a panic attack.
The Appellant said she was in the back of the cruiser with hands cupped to her face and face pressed against the window. She noted that her “mind was racing”. She was concerned about a possible confrontation between her daughter and the police in that her daughter had significant recent difficulties.
The Registrar’s Agent observed that the Appellant had smoked a cigarette after getting out of the police vehicle and questioned how this could be. Her daughter had left the car and was walking up a dark road and the Appellant ran over to intercept the daughter. The cigarette was a tool to deal with her anxiety in the situation.
Registrar’s Evidence
P.C. Nigel Heels clocked the Appellant’s vehicle at 136km/hr and stopped her for speeding.
He described looking through the open driver side window and noting that the “male passenger displayed signs of intoxication”. He also was aware of “a faint odour of alcoholic beverage emitting from the cabin of the vehicle”.
The Constable then “detected an odour of alcoholic beverage emitting from the breath of the Appellant”.
A breath test was requested and the Appellant was transferred to the rear seat of the police cruiser. The Constable described five attempts for the test and all failed. He described the Appellant to be shaking and blowing intermittently – fidgeting and being quite unsuccessful in providing a sample. He didn’t notice or record any behavioural changes in the Appellant. He noted that he wasn’t trained to do roadside testing – he did breath tests. Blood tests were not an option for the Appellant; they were to be used only at his discretion.
The Appellant claims that she requested a “blood test” – P.C. Heels doesn’t recall that she did.
The question of hyperventilation was raised. The Constable hadn’t ever seen this problem. He did say that he “saw that she was trying to control herself”. He allowed her to have the rear door of the cruiser open and permitted her to put a leg outside.
Submissions
The Appellant summed up her situation in a voice, sometimes tremulous, and demonstrating her anxiety. She noted that a car was essential for her work. She is the breadwinner for a daughter and son, and a sixty-five year old mother.
The Registrar’s Agent pointed out that her financial responsibility had nothing to do with the licence suspension. The sole question was not one of hardship, but one of credibility. In his view, the Appellant consciously refused to breathe into the ASD. He contended that the Appellant had no intention of cooperating with the police constable.
He submitted that anyone locked in the rear of a police vehicle in the middle of the night would be anxious. The Tribunal agrees.
APPLICATION OF THE LAW TO FACTS
One of the issues before the Tribunal is that of credibility. The Tribunal accepts the testimony of the Appellant. Based on the evidence, it is not likely that P.C. Heels, at roadside, recognized a panic attack. Importantly, the medical evidence supporting the contention that the Appellant has panic attacks as a manifestation of anxiety is an opinion of two doctors who know the Appellant.
Her family doctor of thirty three years (most of her life) is Dr. W.K., who last saw her on September 9, 2014. She had attended his office and saw a colleague in February 2014. Her principal diagnosis is “General Anxiety Disorder”. The February visit was prompted by the stress associated with the death of her ex-husband. The doctor recommended a stress leave from work.
Dr. W.K. notes that she has seen a psychiatrist in the past to counsel her anxiety.
Dr. K.M. is a child psychiatrist who has been treating the Appellant’s daughter since February 2014. In that situation, the psychiatrist is dealing with the family – mother and daughter- and knows the remarkable stress the family has been under. In that regard, and as an expert in understanding anxiety and panic attacks, the Tribunal accepts her opinion as to the veracity of the Appellant. The Tribunal therefore finds that the Appellant was unable to comply with the demand because she was unable to do so for a medical reason.
DECISION
Upon the application by the Appellant to appeal the suspension order of the Registrar dated August 24, 2014, pursuant to section 48.3 of the HTA 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 section 50.1(4) of the HTA, the Tribunal orders the suspension set aside.
LICENCE APPEAL TRIBUNAL
Garry Fisher M.D., Member
RELEASED: October 3, 2014