Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
FILE: 9189/ADLS
CASE NAME: 9189 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 Issue a 90-Day Administrative Driver’s Licence Suspension
9189 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Antoine A. Aouad, M.D., Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Kyle Biel, Agent
Heard by teleconference: November 17, 2014
REASONS FOR DECISION
A hearing was held on November 17, 2014, by teleconference, 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 released its Decision on November 19, 2014, with reasons to follow.
THE TRIBUNAL RULED TO OR CONFIRM the suspension imposed by the Registrar pursuant to section of the 48.3 of the HTA for the following reasons
BACKGROUND
The Appellant appealed by way of a Notice of Appeal under section 50.1 of the HTA. The Appellant appeals from the order of the Registrar of Motor Vehicles (the "Registrar") dated October 11, 2014.
Reason for the Appeal
The reason for the appeal set out in the Notice of Appeal, filed as Exhibit #2 is that the Appellant suffers from asthma and was therefore unable to provide a breath sample when requested.
Preliminary Matters
The Respondent’s Agent objected to the late filling of the medical information.
The Appellant explained that he did not have a fax machine and asked someone to send them for him. When notified by the Tribunal that the documents had not been received, the Appellant stated that he had expected the owner of the variety store to submit them. The Respondent’s Agent then withdrew the objection.
Documents tendered were entered into evidence as exhibits with the consent of both parties.
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 also states, under Section 50.1(4):
The [Tribunal] may confirm the suspension or may order that the suspension be set aside.
FACTS
The Appellant’s Evidence
In addition to the statement on his Notice of Appeal regarding his asthma, the Appellant also relied on two notes, received by the Tribunal on November 14, 2014. One is dated November 13, 2014 from Dr. A M. R., and another from the Main West – Walk-In Clinic dated November 5, 2014. The note from Dr. A.M.R. states:” This patient was seen in my clinic today. They are experiencing a medical condition that interferes with their ability to work around dust. I have confirmed the condition through examination.”
The second note states that the Appellant ‘has been diagnosed with Asthma since a long time. He is on Puffers, Advair and Ventoline”.
At the hearing, the Appellant testified that he was not under the influence of alcohol, and that he specifically told the officer that he had asthma but had no medication on him. According to the Appellant, he was coughing and was denied the use of a puffer because there was no name on the puffer.
In cross-examination, the Appellant asserted that he has suffered from asthma for approximately 10 years. According to the Appellant, he was offered a puffer by his friend after he was charged. He testified that he needed his friend’s puffer as he had run out two weeks prior and had been unable to buy a new one.
The Appellant testified that he did not need to go to the hospital as after he used the inhaler he felt better.
Regarding the medical notes and why information appeared to be “whited out, the Appellant, explained that his first name was wrong on the notes.
The Appellant affirmed that he has done a pulmonary function test in the past but could not obtain the reports as his doctor has passed away. He is scheduled to have some more tests done.
The Registrar’s Evidence
Constable Fabiano Mendes was called as a witness. .He has been a police officer for fifteen years .He described how he came to ask the Appellant for a breath sample and what transpired during the various attempts to obtain a sample.
According to P.C. Mendes, it was not until the Appellant failed to provide a sample after the first couple of attempts that the Appellant stated he had asthma. He pointed out that the Appellant appeared to be breathing easily and did not appear in distress, yet each time that he was asked to breath into the breathalyzer he started coughing.
Each time the Appellant attempted to provide a sample, the device produced error messages, indicative that some air was flowing in, but that it was insufficient to determine a reading. According to the P.C. Mendes, he instructed the Appellant on the use of the device.
He expressed his concern for allowing the Appellant to use medication that clearly did not belong to him.
In cross-examination, the Appellant questioned the officer whether he was leaning against the car, P.C. Mendes reiterated his previous comments that the Appellant prior to blowing would start coughing but appear absolutely normal after blowing into the device.
Constable Gregory Zafirides was called as a witness. He has been a police officer for the last twenty-six years.
P.C. Zafirides described his contact with the Appellant and his observations during the breath test session. Although the Appellant stated several times that he had asthma and bronchitis, he appeared normal until asked to blow into the device. Then, according to P.C. Zafirides, the Appellant’s breathing seemed artificially laboured and he would start coughing.
At no time did the Appellant ever ask for medical assistance.
APPLICATION OF THE LAW TO FACTS
In his closing remarks, the Appellant stated that P.C. Mendes’s sworn statement was out of context. According to the Appellant, he thought that when the machine beeped, he thought that it was sufficient.
The Registrar’s Agent stated that the Appellant’s state of impairment is irrelevant to the proceedings of the Tribunal. In his closing remarks, the Registrar’s Agent maintained despite the Appellant’s suffering from asthma, it was not a medical condition that caused the Appellant to fail to provide a breath sample. The Registrar’s Agent argued that the Appellant had no intention of providing a breath sample, and consciously made a decision not to cooperate with the police. According to the evidence of the police officers, the Appellant made no effort to blow into the device; neither the coughing nor the laboured breathing occurred during or after the testing, but rather before the Appellant attempted to blow into the device.
The Respondent’s Agent pointed out that both medical reports are very sparse and written about a month after the incident. The Respondent’s Agent further noted that the reports appear to have been altered, possibly tampered with, and say nothing about the Appellant’s inability to provide a breath sample.
The Registrar’s Agent concluded, by asking the Tribunal to prefer the evidence of the officers to that of the Appellant.
The Appellant appealed his licence suspension by the Registrar under Section 50.1 (2) (b) of the Highway Traffic Act, which states:
“…the person failed or refused to comply with a demand made under section 254 of the Criminal Code (Canada) to provide a sample of breath or blood because he or she was unable to do so for a medical reason…”
The Appellant argued he made an effort to blow into the device but thought that when the machine beeped he could stop.
It is not enough to prove that a medical condition exists. The crux of the matter is whether the medical condition could cause the individual to fail or not comply with a breath demand. The Registrar’s Agent has not disputed the Appellant’s medical condition as presented. Nonetheless, there is absolutely no shred of medical evidence linking the condition mentioned, to the Appellant’s inability to provide a breath sample.
The Tribunal agrees that the medical evidence offered by the Appellant is scant at best, and certainly lacking in any particularity that would support a conclusion that the Appellant’s asthma, as asserted by him, resulted in an inability to blow into the test device for the breath analysis. Indeed, neither note addresses that issue. The note from Dr. A.M.R. does not even mention asthma specifically. The Tribunal prefers the evidence of the police officers regarding what occurred on October 11, 2014.
Weighing the evidence as a whole, the Tribunal finds that the Appellant has failed to meet the onus of proof that there was a medical reason that justified his failure to provide a breath sample upon issuance of the demand by the police officer under s. 254 of the Criminal Code on October 11, 2014.
DECISION
Upon the application by the Appellant to appeal the suspension order of the Registrar dated October 11, 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 confirms the suspension.
RELEASED: December 3, 2014