Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2019-10-28

Appeal under Section 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a decision under Section 48.3 of that Act – to Suspend a Licence

Between:

Nilaxsan Selvaratnam

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Erica Weinberg, M.D., Member Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: Jonah Parkin, Counsel

For the Respondent: Kyle Biel, Agent

Heard by teleconference: October 3, 2019

REASONS FOR DECISION AND ORDER

A. Overview:

1A teleconference hearing was held on October 3, 2019 to consider the appellant’s appeal under section 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) from the August 24, 2019 suspension of his driver’s licence. The appellant’s licence was suspended for 90 days under section 48.3 of the HTA for refusing to provide a breath sample demanded under 254 of the Criminal Code (Canada).

2The appellant submits that he failed or refused to give the breath sample because he was unable to do so for a medical reason, specifically his asthma and panic attacks.

B. ISSUE:

3The issue in this appeal is whether the appellant failed or refused to comply with a demand for a breath sample because he was unable to do so for a medical reason as set out in subsection 50.1 (2) (b) of the HTA.

4At the hearing, the respondent’s agent conceded that the appellant has asthma. The real question for this hearing is whether the appellant failed or refused to comply with a demand for a breath sample because he was unable to do so for a medical reason.

C. Preliminary issue:

5A request was made by counsel for the appellant to have the respondent’s witness police constable, Constable A., be excluded from the hearing during the testimony of the other witnesses. On consent, the Tribunal made an Order excluding Constable A. from the hearing during the testimony of other witnesses.

D. CONCLUSION:

6For the reasons that follow, we find that the appellant did not fail or refuse to comply with a demand for a breath sample because he was unable to do so for a medical reason. Accordingly, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

E. LAW:

7A person whose driver’s licence has been suspended under section 48.3 of the HTA may appeal the suspension to the Tribunal under section 50.1 (1) of the HTA.

8Section 50.1 (2) (a) and (b) of the HTA sets out the two grounds on which on a person may appeal a s. 48.3 suspension of their driver’s licence:

i. that the person whose licence was suspended is not the same individual to whom a demand was made under section 254 or 256 of the Criminal Code (Canada), or

ii. 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

9Sections 254, 255 and 256 of the Criminal Code (Canada) were repealed as of December 18, 2018. On December 16, 2018 HTA Regulation 479/18 became law and provided that a reference in the HTA to s. 254 shall be read as including 320.15, 320.27, 320.28 of the Criminal Code (Canada), a reference to s. 255 shall be read as including 320.14, 320.15 of the Criminal Code (Canada), a reference to s. 256 shall be read as including 320.29 of the Criminal Code (Canada).

10The appellant has the burden proving he was medically unable to provide a breath sample.

11Following a hearing, the Tribunal may, under s. 50.1 (4) of the HTA, confirm the suspension or may order that the suspension be set aside.

F. EVIDENCE AND ANALYSIS:

(a) Did the appellant fail or refuse to comply with a demand for a breath sample because he was unable to do so for a medical reason?

12We find that the appellant failed to provide sufficient evidence that he was medically unable to provide a breath sample.

13The appellant filed a medical information form completed by his family physician Dr. S. dated August 29, 2019 and a letter from Dr. S. dated August 27, 2019. The letter stated that the appellant came to his office on August 22, 2019 to get an appointment but could not be accommodated until August 24, 2019 to be assessed by Dr. S. for his asthma symptoms. Dr. S. testified at the hearing that he diagnosed the appellant with acute asthma in 2003, that the symptoms of asthma come and go, and the appellant goes to different places for treatment when required. This includes hospital visits in 2016, 2018 and May 2019.

14Dr. S. testified that he saw the appellant in his office on August 24, 2019 at about 11:00 a.m. or 12:00 p.m. Dr. S. testified that he saw the appellant struggling to speak because he was not getting enough air. The appellant was crying and had anxiety and couldn’t speak a full sentence without taking a breath in the middle of the sentence. Dr. S. said he had not done a peak flow (breathing) test on the appellant before, but he did one on August 24, 2019 because of the issue with the police.

15Dr. S. did a test which showed the appellant’s peak flow was 380 after taking Ventolin and Flovent, both of which are asthma medications. Dr. S. testified that this was a reduction of 20% from what should be appellant’s normal of 500. Dr. S. admitted he did not know if a peak flow of 380 would prevent the appellant from giving a breath sample because he does not know what a breath sample requires and this is not his expertise. The appellant did not tell Dr. S. he was at a party in the early morning hours of August 24, 2019.

16Dr. S. testified that the appellant told him he was unable to give a breath sample even though he tried three or four times. The appellant also told Dr. S. he had progressive wheezing, shortness of breath triggered by infection and seasonal allergies for two to three weeks and Dr. S. wrote this on the medical information form.

17Dr. S. said he wrote in his notes that the appellant had asthma and had two weeks of coughing and using puffers. Dr. S.’s notes were not filed. He admitted that the information about the infection being progressive for two weeks prior to August 24, 2019 came from the appellant because Dr. S. had not seen the appellant for some time prior to the August 24, 2019 appointment. Dr. S. admitted that the appellant’s asthma medications were not administered in his office, he did not ask the appellant at what time he took his Ventolin or Flovent puffer on August 24, 2019, admitted he never observed the appellant’s puffer technique and does not know if the appellant uses a spacer device to improve delivery of these medications.

18Dr. S. saw the appellant again August 27 and August 29, 2019 and treated him with oral prednisone. Dr. .S. did not send the appellant to a respirologist or for any other tests. Dr. S. said he does not remember any problems with the appellant’s mouth. The appellant also testified that he has no problems with his lips, teeth or jaw.

19The appellant did not put forward any medical evidence that he has ever been diagnosed or treated for panic attacks or anxiety and did not put forward any medical evidence of a history of or treatment of panic attacks or anxiety or that he was unable to give a breath sample on August 24, 2019 because of panic attacks or anxiety.

20Dr. S.’s medical records, including the cumulative patient profile of the appellant, do not set out a diagnosis of panic attacks or anxiety. Dr. S. admitted that he did not write down panic attacks or anxiety on the medical information form and he cannot say that appellant was having a panic attack when he was with the police on August 24, 2019. The appellant testified that he did not tell the police officer he was having a panic attack on August 24, 2019. He thought the officer could see this.

21The appellant is a 25 year old who works as an apprentice aircraft mechanic. He has had allergies and asthma since childhood and takes medication when prescribed and uses puffers. The appellant testified that he had gone to the emergency department of a hospital for asthma symptoms in 2018 and in May 2019. He testified that he was not feeling well and had difficulty breathing for two to three weeks before August 24, 2019 but did not miss any work due to illness since August 8, 2019. Two weeks before August 24, 2019 he had attended a walk-in medical clinic. The appellant did not put forward any medical record of his visit to the walk-in medical clinic. He also testified he had tried to see Dr. S. on August 22, 2019 but could not get an appointment until August 24, 2019. He described his symptoms as phlegm in his chest, hiccups and web of phlegm every time he inhaled deeply.

22The appellant testified that he was on a planned day off work on August 23, 2019. He slept and took his orange puffer at 9 or 10:00 a.m. He was planning to take his evening dose of orange puffer when he got back from his evening activities. He took his blue puffer at 6:00 p.m. because he was wheezing. At about 9:00 p.m. he drove to a party but did not take his puffers with him because he is embarrassed to carry his puffers. He only keeps his puffers at work and at home and does not carry them all the time because he only needs them in the morning and at night. The appellant testified he was walking on the street with his cousin prior to being arrested and he was able to walk without shortness of breath or wheezing.

23When he encountered the police in the early morning of August 24, 2019, the appellant testified that he told the police officer twice that he had asthma and thought the officer did not take him seriously. He tried to give a breath sample three times and was able to blow into the machine by going slowly. He could not blow enough air into the machine. He said the police made no effort to allow him to get his puffers from home and would not let him out of the cruiser to stand up before giving breath sample. However, he admitted later in his testimony that when he was in the police cruiser he did not ask the police for his puffer. The appellant said he had a genuine cough, not a fake cough, was breathing heavily and was wheezing when he was in the back of the cruiser and believes the police officer could have heard the wheezing. The appellant said he had trouble communicating with the police officer and could not really talk because he had shortness of breath. The appellant denied talking over the police and said he did not remember not making a seal with his mouth on the machine. The appellant admitted he has no problems with his lips, teeth or jaw. He said that what he did when giving breath sample was kind of similar to what the police officer asked him to do.

24Constable A., a police officer for the York Regional police since 2011, testified with reference to his notes made August 24, 2019. He said his notes had not been changed or altered. At 2:36 a.m. he attended at a private residence in response to a noise complaint about a backyard party. The officer was told by the homeowner that he had been trying to get keys to vehicles from individuals who had been drinking, one of whom was the appellant but two men walked off down the street. Constable A. stayed in the area. At 3:26 a.m. a police dispatcher called him to report the driver of a vehicle had struck someone with his vehicle. Constable A. determined the owner of the vehicle to be the appellant and arrested the appellant for dangerous driving at 3:45 a.m. Constable A. suspected the appellant had been drinking and demanded a breath sample. The appellant was given three separate opportunities to provide breath sample between 4:01 a.m. and 4:12 a.m.

25On the first demand, the appellant made what Constable A. described as a weak blow and did not blow enough into the machine for the sample to be taken. Constable A. said he told the appellant to blow harder. At this time the appellant had enough air to converse with Constable A. and to argue about the investigation. Constable A. testified that the appellant was not short of breath, argued with him, asked questions continually and showed no shortness of breath, wheezing or coughing.

26On the second demand the appellant said he needed a puffer. Ultimately the appellant said he would provide a breath sample. When he put his lips up to the machine he would not make a seal with his lips. Constable A. testified he told the appellant he needed to make a seal with his lips following which the appellant sucked on the machine instead of blowing into it. The sample could not be taken because air was not blown into the machine but was being sucked out.

27While being transported in the police cruiser the appellant kept blowing in the back seat while Constable A. was driving. The appellant then told Constable A. he would give a breath sample and Constable A. stopped the cruiser to take the sample. Constable A. testified on the third demand the appellant made what he described as a short blow, put no effort into the blow and blew so softly that the sample could not be taken by the machine.

28Constable A. said he gave the appellant more opportunities to provide a breath sample than most. Constable A. testified that during the approximately one hour Constable A. was with the appellant on August 24, 2019, he made 4 or 5 short, single coughs which Constable A. said sounded fake. Constable A. testified that he knows what wheezing sounds like. Constable A. testified he did not observe/hear the appellant having any wheezing, shortness of breath, struggling to speak or phlegm rumbling. The appellant’s voice was not raspy and he exhibited no signs he was having trouble breathing or was sick. Constable A. said he did not recall the appellant saying he had to spit, made no complaints of shortness of breath, pain, did not grimace or moan during attempts to give breath sample and appeared relaxed. Constable A.’s testimony was substantially consistent with his notes which were filed at the hearing.

29The appellant’s counsel submits that that the appellant has proven that he has severe enough asthma that he could not give a breath sample on August 24, 2019 by the evidence of Dr. S. that the appellant needs medications and puffers, was tested and treated by Dr. S. after his encounter with the police on August 24, 2019 and that he has had to go to hospital emergency department several times in the past. The appellant’s counsel also submits that the appellant has proven he genuinely intended to give a breath sample because he kept blowing in the back seat of the police car while Constable A. was driving. Constable A. thought the appellant was rehearsing or practicing how to blow.

30The respondent’s agent submits that there has been no evidence linking the appellant’s medical conditions to his refusal to give a breath sample, having a medical condition does not automatically result in inability to give a breath sample and that the appellant had no intention of giving a breath sample and that is why on the three opportunities he was given, he did not blow sufficient air into the machine so that the breath sample could be taken.

31We find that the appellant failed to prove on a balance of probabilities that he was medically unable to provide a breath sample on August 24, 2019 when demanded. With respect to panic attacks, the appellant testified that he did not tell the police officer he was having a panic attack on August 24, 2019 and there is no medical evidence to support such a submission. Dr. S. did not diagnose panic attacks or anxiety on the medical information form and testified that he cannot say that appellant was having a panic attack when he was with the police on August 24, 2019.

32Although the appellant testified that he was prevented from giving a breath sample by his medical condition, we give this little weight as the evidence does not support this. With respect to his medical condition of asthma, the appellant brought forward no specific medical evidence to support his assertion that he failed or refused to comply with a demand for a breath sample on August 24, 2019 because he was unable to do so for a medical reason. Although Dr. S. testified about the appellant’s medical condition when he saw him in the office some seven hours after the demand for breath sample, Dr. S. admitted that he had not done a peak flow test on the appellant before, he did one August 24, 2019 because of the issue with the police, and his peak flow of 380 was after taking Ventolin and Flovent. Dr. S. admitted he did not ask the appellant when he took the Ventolin or Flovent puffer on August 24, 2019, admitted he never observed the appellant’s technique and does not know if appellant uses a spacer to aid in the delivery of these medications. He admitted that the information about the appellant’s infection being progressive for two weeks prior to August 24, 2019 came from the appellant because Dr. S. had not seen the appellant for some time prior to the August 24, 2019 appointment. Dr. S. took the appellant’s word for it after the appellant had already been arrested by the police. Dr. S. did not send the appellant to a respirologist or for any other tests.

33The results of the peak flow test are not helpful. The test was performed some seven hours after the demand for breath sample. More importantly, Dr. S. was not able to correlate the results of the test he did to the demand for breath sample. To the contrary, Dr. S. admitted he did not know if a peak flow of 380 would prevent the appellant from giving a breath sample because he does not know what the breath sample requires and this is not his expertise. Dr. S.’s report did not state that the appellant could not give a breath sample because of his asthma or because of his alleged respiratory infection. Dr. S.’s report gives no specific opinion about how the appellant’s medical condition caused him to fail to give a breath sample on August 24, 2019. Dr. S.’s report and testimony focus on his history of asthma and an alleged respiratory infection for two weeks prior to the breath sample demand as recounted by the appellant and not witnessed by Dr. S., and a test and treatment prescribed after the breath sample demand had been made and a charge laid. The evidence of Dr. S. is not specific enough to overcome that of Constable A. that on three separate occasions the appellant refused to blow sufficient air into the machine so that a breath sample could be taken.

34We do not accept the submission of the appellant’s counsel that the appellant genuinely intended to give a breath sample as evidenced by the fact that the police officer testified that while being transported in the police cruiser, the appellant kept blowing in the back seat and appeared to be rehearsing or practicing how to blow. That the appellant had an intention to give a breath sample is not borne out by the appellant’s actions. Constable A. gave the appellant a third opportunity to give a breath sample but his evidence was that the appellant made a short blow, put no effort into the blow and blew so softly that the sample could not be taken by the machine. To give a breath sample, one has to blow into the machine and not make a weak or short blow, fail to make a seal with one’s lips or suck on the machine, all of which the appellant did according to Constable A. We prefer the evidence of Constable A. whose testimony was clear, detailed and supported by his notes over the testimony of the appellant and Dr. S. The onus is on the appellant to prove he could not give a breath sample because of his medical condition. The appellant’s testimony and his medical evidence fall short of establishing this.

35We find the testimony of Constable A. to be more credible than that of the appellant and accept his evidence. He testified with the aid of his notes and gave detailed, specific testimony about his interaction with the appellant. We accept Constable A.’s testimony that during the approximately one hour Constable A. was with the appellant on August 24, 2019, he made 4 or 5 short, single coughs which Constable A. said sounded fake, he did not observe the appellant having any wheezing, shortness of breath, struggling to speak or phlegm rumbling, the appellant’s voice was not raspy and he exhibited no signs he was having trouble breathing or was sick, made no complaints of shortness of breath, pain, did not grimace or moan during attempts to give breath sample and appeared relaxed. The appellant had enough breath to converse with Constable A. and to question his arrest.

36We find based on the totality of the evidence that the appellant did not fail or refuse to comply with a demand for a breath sample because he was unable to do so for a medical reason.

G. ORDER:

We confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

Erica Weinberg, M.D., Member

Avril A. Farlam, Vice-Chair