Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2015-01-18
FILE:
9963/ADLS
CASE NAME:
9963 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
Appellant
Appellant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Kevin Flynn, M.D., Member
APPEARANCES:
For the Appellant:
Mona Shaher, Paralegal
For the Respondent:
Kyle M. Biel, Agent
Heard in Toronto:
January 8, 2016
REASONS FOR DECISION AND ORDER
A hearing was held on January 8, 2016, 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 ("HTA").
The Tribunal released its Decision on January 8, 2016, with reasons to follow.
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.
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 November 6, 2015.
The reasons for the appeal set out in the Notice of Appeal are summarized as follows:
The Appellant claims that he was unable to comply with a demand for a breath sample made under section 254 of the Criminal Code (Canada) on November 6, 2015, because of his history of asthma, compounded by stress-related anxiety, which precluded his ability to comply.
The Tribunal finds that he has failed to provide medical evidence of respiratory dysfunction that would preclude his ability to comply with a demand for a breath sample under section 254 of the Criminal Code (Canada).
As a preliminary matter, 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.
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.
EVIDENCE
The Appellant’s Evidence
The Appellant stated that after walking his dog, he drove his car, at about 9 p.m. on November 6, 2015, to pick up a friend and, while waiting for his friend, for about 15 minutes, he went to a nearby bar where he consumed one beer. He then proceeded to drive his friend to a restaurant when he observed police lights flashing behind him. He stopped the car and waited in the car for about 5 minutes before he got out and walked to the police car. He asked the police officer why he was stopped and was told that he had an expired plate sticker. After he showed his driver’s licence and insurance certificate, he was asked if he had consumed any alcohol. He replied that he had one drink. He was told to return to his car.
Constable Barton, the police officer who pulled him over, then told him that he detected the odour of alcohol from his breath and demanded that the Appellant provide a breath sample.
Two other police officers arrived at the scene in order to administer the breath test.
One officer, Constable Burgess, explained the procedure to the Appellant and gave him a plastic tube to insert in the breath test unit.
The Appellant stated that he blew as hard as he could and was then told to blow again.
The second police officer, Constable Gerulath, then took over and told the Appellant that he was not trying hard enough and advised him of the consequences of failing to provide a sample. He was told to blow as if he was blowing up a balloon. The Appellant said he did not know his rights and was told by the officers that the demand was made because there was an odour of alcohol on his breath.
The Appellant tried to blow a third, fourth and fifth time and was then asked if he suffered from emphysema or asthma and he stated that he had asthma. Two more attempts failed to provide an adequate sample.
The officer read the caution and his rights. He was handcuffed and placed in the back of the cruiser. His lawyer, Mr. M., who witnessed some of the proceedings, identified himself to the police, but he was asked to step aside during the police investigation.
The Appellant stated that he specifically told the police officer that he had one drink. He stated that when he told the police officer that he had asthma he experienced chest tightness and pains in his arm. He informed the Tribunal that when under stress he is prone to an asthma attack. He carries a Ventolin inhaler that he last used at about 9 p.m. after walking the dog on the day in question.
He stated that his asthma was diagnosed about 20 years ago. He is allergic to dog hair but was never advised to get rid of the dog. He stated that he has never had a pulmonary function test and was never asked to have one.
He stated that Constable Barton said to him, “I know that you have been drinking. I can smell it from your breath”.
Under cross examination, the Appellant stated that when he told the police that he had asthma he did not ask for his Ventolin. He also did not tell police that he had chest pain because he was not concentrating at the time.
He informed the Tribunal that he has many years’ experience as an entertainer and would sometimes experience anxiety on stage. His family physician prescribed clonazepam, 0.5 mg daily, for his anxiety spells, which he did not take that day. He has been taking coping skills training.
He is currently on medical leave from his job in the education field and expects to return to work in April 2016.
He acknowledged that he did not ask police for medical assistance, nor for his Ventolin during the attempts.
The Tribunal recessed for 15 minutes when the Appellant stated that he was experiencing stress from the hearing. Ms Shaher informed the Tribunal on resuming that he had decided not to return for the police evidence.
Ms Shaher called as a witness, Mr. M. who is legal counsel to the Appellant.
The witness informed the Tribunal that he has a hearing problem and he was accommodated by having him move closer to the Tribunal member during his evidence.
He stated that he was in a bar at around 9:30 p.m. on November 6, 2015, when a friend informed him that his client and friend, the Appellant, had been arrested outside the bar. He identified himself to police and noted that the Appellant was in handcuffs. He was requested to move aside while the investigation was in progress. The Appellant told him that he was made to blow seven times.
Police informed him that the Appellant wished to speak to counsel but that it was not appropriate to do so in the street without privacy and that he would receive a call when the Appellant was processed at the station. This occurred about 15 minutes later. He was informed that the Appellant was being held until the next morning.
In response to Ms Shaher, the witness stated he has known the Appellant for several years and has never seen him intoxicated. He did notice that the Appellant was under stress and appeared unable to read the police form.
In response to Mr. Biel, he stated that while police were processing the arrest at the scene he stood about 70-80 feet away and heard the Appellant say to the police “I want to speak to my lawyer”.
The Respondent’s Evidence
Constable Barton is with the York Regional Police. He stated that he stopped the Appellant when he noted that his plate tag had expired. When he detected an odour of alcohol, he asked if the Appellant had consumed alcohol and he replied “Yes”. He confirmed his identification and requested the attendance of a breath test officer.
Two officers attended, P.C. Gerulath and P.C. Burgess, who was in training as a breath test officer.
P.C. Burgess read the demand and explained the consequence of failure. After the first attempt failed, P.C. Gerulath took over. After failing the second attempt, the Appellant was informed of the consequence of failing to provide a sample. During the next two attempts, he noted that the Appellant was not sealing his lips around the tube. He was asked to blow as if he was blowing up a balloon. After a total of seven failed attempts, he was placed under arrest.
The Tribunal and the parties viewed the video evidence of the incident which was recorded by the police cruiser camera. Unfortunately, the sound system of the video was not working at the time of the incident. The Appellant was observed turning to the cruiser camera and counting with his fingers each attempt to blow. The camera did not show a close-up of the Appellant’s attempts.
The Appellant was informed of his right to Counsel. Because of a lack of privacy at the scene, he agreed to speak to Counsel at the station.
Constable Barton informed the Tribunal that he did not at any time observe the Appellant to be short of breath, and that he did not ask for his Ventolin. He did not complain of chest pain and did not request medical attention. The constable informed the Tribunal that he himself has asthma and is aware of signs of an asthma attack. He also stated to Ms Shaher that the Appellant was not showing signs of impairment and was not showing evidence of anxiety.
Submissions
Ms Shaher submitted that the Appellant was relying on the medical evidence as stated in Reasons for Appeal.
The family physician, Dr. K., stated that he has known the Appellant for four years and that there is a long history of anxiety manifested by palpitations, dizziness, chest pains and fast respiratory rate. Work-related stress and personal life issues required time off work and his asthma is worsened under stress. He required occasional use of Ventolin for asthma. As well, the Appellant is taking cognitive therapy for stress and he will also be seen by his Employer Assistance Program.
The doctor did not include results of any measurements of breathing capacity or breathing specialist consultations.
Ms Shaher submitted that the Appellant did not refuse to comply with the demand but that he did not fully understand the instructions and consequences of failing.
Mr. Biel relied on:
The level of intoxication is not an issue, but there is no valid medical reason for non-compliance with the demand which was administered on reasonable grounds upon detection of alcohol from the Appellant.
The police evidence is that there was no evidence of distress, no coughing and no voiced complaints of distress.
The video confirms that the Appellant was not distressed and also showed no evidence of respiratory symptoms.
Constable Barton, who stated that he has asthma himself and is quite familiar with the signs of an asthmatic attack, did not observe any of those signs.
The history of anxiety is not a valid reason for failing to provide a breath sample and has been rejected as such by the Tribunal in several past ADLS appeals. Specifically he cited LAT file number 9595/ADLS.
The medical report includes reference to a number of cardiac tests performed during the weeks following the arrest with no evidence of relevance to the night of the demand.
The Appellant did not ask police for the use of his Ventolin, and this fact does not support the presence of an asthma attack.
The family physician who has been treating the Appellant for asthma for four years did not perform a pulmonary function test to confirm his diagnosis.
APPLICATION OF THE LAW TO FACTS
The Tribunal finds that onus is on the Appellant to prove that he suffers from a medical condition which would preclude him from complying with the demand made under section 254 of the Criminal Code (Canada).
The police officer had reasonable grounds for administering a demand following detection of alcohol from the breath of the Appellant when he was stopped for non-valid licence sticker.
Following adequate instruction and warning of the consequences of failing to provide a satisfactory breath sample and following seven failures, the Appellant’s driver’s licence was suspended for ninety days under the HTA.
The Tribunal must determine whether, based on the evidence, the Appellant’s medical conditions which he described as stress related anxiety compounded by asthma, were manifested at the time of the breath testing and whether the condition caused the Appellant’s failure to comply. The Tribunal accepts the Appellant’s evidence and the evidence provided through his doctor’s report that he suffers from anxiety that has physical manifestations and asthma. He is on stress leave from work. There is also evidence that he suffers from asthma. He uses Ventolin on occasion. However, the Appellant neither asked for medical assistance nor for access to his Ventolin at the time of the testing. His doctor’s report did not suggest that his medical conditions would impact his ability to provide a breath sample. The video evidence did not reveal that the Appellant was suffering distress at the relevant time.
Therefore, after review of the evidence presented by both parties, including the video evidence of the attempts to give a breath sample, the Tribunal finds that the Appellant failed to comply with a demand for a breath sample made under section 254 of the Criminal Code (Canada), without a medical reason.
DECISION
Upon the application by the Appellant to appeal the suspension order of the Registrar dated November 6, 2015, 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.
LICENCE APPEAL TRIBUNAL
Kevin Flynn, M.D., Member
Released: January 18, 2016