Licence Appeal Tribunal
FILE: 9719/ADLS
CASE NAME: 9719 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
9719 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 in Toronto: August 31, 2015
REASONS FOR DECISION AND ORDER
A hearing was held on August 31, 2015, in Toronto, 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 released its Decision on September 1, 2015, with reasons to follow.
THE TRIBUNAL RULED TO CONFIRM the suspension imposed by the Registrar of Motor Vehicles (the “Registrar”) pursuant to section 48.3 of the Act, for the following reasons.
BACKGROUND
The Appellant appealed, by way of a Notice of Appeal under section 50.1 of the Act, from the order of the Registrar effective July 18, 2015.
The reasons for the appeal set out in the Notice of Appeal are summarized as follows:
I disagree with “Failure or Refusal to comply”… I will try my best (to comply) as I am fasting and don’t have the energy.
The documents tendered were entered into evidence as exhibits with the consent of both parties. Additional notes from P.C. Su were accepted and added to the exhibits.
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”) appeals under subsection 50.1(1) and (2) 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 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 Act 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
The Appellant’s driver’s licence was suspended for 90 days on July 18, 2015. He disagrees that he “refused to comply” with the police officer’s request for a breath sample. The officer wanted him to blow into a “breath sample device”, but he was too weak and unable to blow because of a lack of energy due to fasting, and the extremely hot and humid weather.
He noted that the reason he was pulled over was a loud muffler. The Appellant suggested that the officer thought he could smell alcohol, but the Appellant had consumed no alcohol. In the Appellant’s opinion, the officer smelt a mixture of the Appellant’s cologne and his peppermint gum.
Dr. G.M. is the Appellant’s family physician. He filled out the “Supporting Documentation - Administrative Driver’s Licence Suspension – Applicant’s Medical Information” form. Under the heading “Details and diagnosis of patient’s condition related to this appeal”, the physician noted:
- He was fasting + it was a hot day.
- He has history of Sinus Bradycardia (slow heart beat).
Because of the above reason, it might affect his ability to perform the test.
A monograph on bradycardia was also provided by the Appellant.
The Registrar’s Evidence
The Registrar’s Agent called P.C. Eugene Ouyang as a witness. He affirmed that he is a constable with the York Regional Police Service. He testified that at 19:48 on July 18, 2015, he stopped the Appellant because of a loud muffler. When he approached the car, the windows were down and he detected an odour of “alcohol and fresh minty gum” coming from the driver’s breath.
When he asked the Appellant to breathe on him, he noted that the Appellant did not breathe directly toward him and appeared to be evasive.
P.C. Ouyang asked the Appellant to blow into the approved screening device. Several attempts were made and were all unsuccessful. The Appellant failed to close his mouth around the mouth piece, failing to create a seal, and therefore failing to produce a result.
P.C. Ouyang had tested the device and found it to be in order. On each attempt, the Appellant complained that he was simply “too weak” to blow.
The Appellant had a previous licence suspension in 2010 for blowing in excess of .08, under the Criminal Code (Canada). The Registrar’s Agent asked P.C. Ouyang if he was aware of that conviction when he arrested the Appellant on July 18, 2015. He confirmed that he was not aware of the previous conviction.
P.C. Su wrote in his notes that he had stopped to back up P.C. Ouyang. In his notes, he wrote: “Male not following instruction - as his lip is not sealing the ASD tube - lips rounding on tube”. He described the Appellant as appearing to be in good condition –“standing, talking, breathing normally - did not show any sign of weakness”. The officer’s notes indicate that he didn’t detect the odour of alcohol.
Referring to his notes, P.C. Ouyang testified that he had offered the Appellant eleven opportunities to provide a breath sample for the approved screening device. He also testified that the Appellant had told him that he had not eaten anything, felt very weak and “tried many times”, but just “didn’t have the energy to complete the test”.
When questioned by the Registrar’s Agent about the Appellant’s physical state at the time of the incident, P.C. Ouyang stated that he had not observed the Appellant having any apparent physical breathing difficulties.
APPLICATION OF THE LAW TO FACTS
Failure to comply with a demand to provide a breath sample may be appealed under section 50.1(2)(b) of the Act.
Dr. G.M., the Appellant’s family physician, completed the requisite medical information form to support the Appellant’s appeal of his 90-day ADLS suspension. An ECG on April 1, 2015, showed a heart rate of 54/min. Anything less than 60/min, by definition, is referred to as sinus bradycardia. The doctor noted that fasting, plus hot weather, plus bradycardia “might affect his ability to perform the test”. Dr. G.M. examined the Appellant on August 5, 2015 “without fasting”, and recorded a heart rate of 66/min and “good cardio/respiratory function”.
A heart rate in the 50’s is not unusual in an otherwise healthy 27 year old man. For his physician of nine years to say it “might” affect the Appellant’s ability to blow, seems to the Tribunal to be a charitable way to deal with his patient. It is not persuasive evidence of a medical reason for his inability to blow, in fact.
The police officers saw nothing physically abnormal with the Appellant’s breathing. He did not exhibit signs of weakness. After receiving the notice of suspension and after his vehicle was towed, the Appellant left on foot and there was no evidence that he was unable to do so because of weakness or lack of energy.
DECISION
Upon the application by the Appellant to appeal the suspension order of the Registrar, effective July 18, 2015, 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 section 50.1(4) of the Act, the Tribunal confirms the suspension.
LICENCE APPEAL TRIBUNAL
Garry Fisher, M.D., Member
Released: September 24, 2015