Licence Appeal Tribunal
Appeal d'appel en matière de permis
FILE: 9146/ADLS
CASE NAME: 9146 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: 9146
-and-
Respondent: Registrar of Motor Vehicles
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Kevin Flynn, M.D., Member
APPEARANCES:
For the Appellant: Vladyslav Strashko, Counsel
For the Respondent: Kyle M. Biel, Agent
Heard in Toronto: November 5, 2014
REASONS FOR DECISION
A hearing was held on November 5, 2014, at 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 November 10, 2014, 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 appeals, by way of a Notice of Appeal under section 50.1 of the Act, from the order of the Registrar dated September 28, 2014.
In her reasons for the appeal, set out in the Notice of Appeal, the Appellant stated that she was unable to comply with a demand made under section 254 of the Criminal Code (Canada) for a medical reason.
Preliminary Matters
At the onset of the hearing, the Tribunal ordered that witnesses, except for the parties, be excluded during the testimony of other witnesses. The witnesses were cautioned not to discuss their evidence with the parties or other witnesses during the period of exclusion of witnesses.
Mr. Strashko requested that medical documents not be accessible to the public under Rule 7.4 of the Tribunal’s Rules of Practice.
Mr. Biel objected to the request given that the medical reason stated as the grounds for appeal, forms the basis for this hearing.
The Tribunal denied the request.
ISSUE
Did the Appellant fail or refuse to comply with a demand made under section 254 of the Criminal Code (Canada) because she 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
Evidence for the Appellant
Under examination by Mr. Strashko, the Appellant stated that she did not refuse to comply with the demand made by the police officer on the night of September 28, 2014.
She stated that after issuing the demand, the officer handed her the machine after giving instructions. After blowing the first time, he said that she was not blowing properly.
She tried a second time and he again said that she was not doing it properly. She asked if there was any other option and asked if she could go to the station (detachment). He said “No” and asked her to try again. He said she was not trying hard enough. She asked for another attempt and he said “No”.
He then told her that her licence was suspended for three months. She then asked to try two more times. He said it was too late. She again asked to go to the station and he said this was not an option.
When asked by her Counsel why she had difficulty blowing, she stated that since she had ear surgery five years ago she experiences vertigo and then is afraid of losing consciousness.
She stated that she was anxious and in shock and was afraid that something was going to happen to her. She stated that she asked to go to the station several times in order to do another type of test, such as a blood test. Her request was denied.
The officer again informed her that her licence was suspended for three months and asked her if she wished to call a lawyer. After completing the paperwork, the officer asked if she had someone to pick her up. He then drove her to a service station where he called a taxi and waited until the taxi arrived.
She explained to the Tribunal that her medical condition began after surgery on her right ear in 2009. She stated that she gets vertigo when blowing her nose or blowing balloons or candles.
Under cross-examination by Mr. Biel, she stated that she was returning home from a friend’s house when she was stopped by the police at approximately 2:00 a.m.
She stated that she did not refuse to blow and that she told the officer that she had medical issues but did not ask for medical attention. She stated that she suffered from anxiety. She acknowledged that she did not include the anxiety condition in her reasons for appeal.
She stated that 15 years ago, she had been a patient of Dr. T. who had an office in the same building where her practice was located. She did not see him for 15 years until a few days after her licence was suspended. She stated that she did not have another physician but went to a walk-in clinic when needed.
Mr. Strashko called as a witness, Dr. T., a family physician, who completed the Appellant’s medical report on October 3, 2014. He testified that the Appellant was a patient of his 15 years ago but not since.
He stated that she had surgery on her right ear by a specialist and that she had a history of vertigo and anxiety when forcing ventilation due to dysfunction of the Eustachian tube. He referred to the operative note prepared by the specialist in February 2009. This note is included in the Appellant’s Notice of Appeal and makes no note of vertigo.
Dr. T. stated that on examination, she had nystagmus on horizontal gaze bilaterally in keeping with vestibular abnormality. She appeared tremulous and apprehensive and had anxiety since the licence suspension. She uses a crutch for partial physical weakness since an attack of polio in her childhood.
He stated that she did not have a history of alcohol abuse. He did not perform a Pulmonary Function Test but stated that she may experience vertigo and anxiety when attempting forced expiration.
Evidence for the Registrar
Mr. Biel called Constable Jerome Brown, Ontario Provincial Police (“OPP”) to give evidence. He stated that he was on patrol on the eastbound expressway at 1:46 a.m. on September 28, 2014, when he observed a red car veering from lane to lane, almost striking another vehicle.
He activated his lights and pulled the car to the paved shoulder. He approached the driver and checked her licence and insurance.
Constable Brown identified the Appellant as the driver.
He stated that he detected the odour of alcohol and glassy eyes. He asked when she had last consumed alcohol and she replied that she had two drinks at dinner at 8:00 p.m.
He read the demand and asked if she understood and she replied “Yes”.
He explained to the Appellant how to use the test device and then he performed a self test with a reading of zero.
On the driver’s first attempt, the unit showed a red signal indicating a blow interruption. During this test, she was beside the OPP vehicle. For the second and third tests, she was seated in the OPP vehicle’s rear seat, facing outwards.
On the second attempt, there was no blowing sound. He informed the driver of the consequences of refusing to blow.
On the third attempt, there was no blowing sound. She then asked if she could go to the detachment for a blood test and he told her that this was not possible as she was not obviously impaired.
He stated that he was not made aware of, nor did he identify, any medical issues such as anxiety, shortness of breath, pain or discomfort. Had there been such, he would have arranged for medical attention.
He arrested the driver for “Refusal” at 2:02 a.m. He read the “Right to Counsel” which she stated she understood. He read the “Caution” which she stated she understood. She then asked to be allowed two more attempts, and on each attempt, the unit showed a red signal response.
She did not request a lawyer and was driven to a gas station where he waited with her until a taxi arrived at 2:50 a.m. She signed the Appearance Notice.
The officer stated that he was not told by the driver that the reason for the weaving while driving, prior to being stopped, was her manipulation of her weak leg, as described in her reasons for appeal.
APPLICATION OF THE LAW TO FACTS
On behalf of the Appellant, Mr. Strashko submitted that the Appellant’s defence of medical reasons for failing to blow were corroborated by the repeated attempts offered by the police officer.
He submitted that the Appellant was justified in requesting the alternative of a blood test.
The medical evidence suggested that there was a medical problem that prevented her from successful completion of the demand because of her fear of vertigo and possible loss of consciousness.
He submitted that the sound of traffic on the highway could have blocked the sound of air blowing through the tube. He submitted that the fact of her request for two further tests demonstrated her willingness to cooperate.
Mr. Biel submitted that there is no medical evidence of a condition that justified the failure to comply with the demand for a breath sample.
The police officer’s evidence is that there was no medical issue raised during the events preceding the suspension and no symptoms of physical distress were observed by the officer. The officer did not observe evidence of shallow or rapid breathing or anxiety.
The officer observed that there was no effort by the Appellant to complete the request to blow into the test device. The officer would have provided medical attention if the driver had requested it.
The medical evidence provided by Dr. T. failed to connect the middle ear condition with the failure to blow into the test device. The physician had no knowledge of her medical condition during the 15 years that elapsed since she was last seen by him as a patient.
The onus is on the Appellant to prove the merits of her reasons for refusal and she has failed to meet that proof.
The Tribunal finds as follows.
The Appellant failed to blow into the test device on three separate occasions and therefore the officer was justified in charging her with refusal to provide a breath sample on demand under section 254 of the Criminal Code (Canada).
The Registrar was then justified in issuing a 90-day suspension of the Appellant’s driving privilege under section 48.3 of the Act.
Weighing the evidence before it, the Tribunal finds that the Appellant has failed to meet the onus of proof that there was a medical reason that justified her failure to provide a breath sample upon issuance of a demand made by a police officer under section 254 of the Criminal Code (Canada) on the night of September 28, 2014. In particular, the Tribunal notes the following:
The Appellant was not under the care of a physician for vertigo or anxiety until four days after the suspension of her driving privileges.
The Tribunal notes that the Appellant’s right ear surgery was in 2009. No evidence was presented of follow-up consultation with her specialist surgeon regarding vertigo with forced expiration such as when blowing balloons or candles.
The medical evidence presented by the Appellant’s physician failed to establish a rational connection between vertigo and the ability to blow into the test device for breath analysis for the presence of alcohol. There was no comparable test such as a Pulmonary Function Test performed during the fifteen years prior to the suspension of her driving privileges on September 28, 2014.
Constable Brown stated in evidence that he did not observe the Appellant to suffer anxiety at the scene. The Tribunal recognizes that the suspension of her driving privileges and its legal consequences could account for anxiety when seen by the physician four days later.
DECISION
Upon the application by the Appellant to appeal the suspension order of the Registrar dated September 28, 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 section 50.1(4) of the Act, the Tribunal confirms the suspension.
LICENCE APPEAL TRIBUNAL
Kevin Flynn, M.D., Member
Released: January 7, 2015