Date: 2019-05-13

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:

N.F.

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: N.F., Self-represented For the Respondent: Kyle Biel, Agent

Heard by teleconference: April 26, 2019

Overview

1A teleconference hearing was held on April 26, 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 January 4, 2019 suspension by the Registrar of Motor Vehicles (“Registrar”) of her driver’s licence for 90 days under section 48.3 of the HTA for refusing to provide a breath sample demanded under the Criminal Code (Canada).

2In her Notice of Appeal the appellant does not dispute the fact that she refused to give a breath sample but submits that she failed or refused to give the breath sample because she was unable to do so for medical reasons, specifically her acute anxiety and cancer treatments.

ISSUE

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

Preliminary issue: ORDER EXCLUDING WITNESSES

4Registrar’s agent requested that the Tribunal make an Order excluding witnesses. The appellant objected because she wanted her psychotherapist witness present during the testimony of other witnesses because he would be speaking to the appellant’s health conditions including mental health conditions. After hearing and considering the submissions of both parties, we ordered that all witnesses, not including the appellant, be excluded from the hearing except during their own testimony. As the appellant’s health condition is central to the determination of this appeal we determined that to ensure a fair hearing it is necessary that witnesses testify without hearing what other witnesses have said in their testimony.

CONCLUSION

5For the reasons that follow, we find that the appellant’s failure or refusal to comply with a demand for a breath sample was not due to inability resulting from a medical reason. Accordingly, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

LAW

6A person whose driver’s licence has been suspended under section 48.3 may appeal the suspension to the Tribunal under section 50.1 (1) of the HTA.

7Section 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

8Sections 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).

9The appellant has the burden proving the ground of appeal on a balance of probabilities.

10Following 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.

EVIDENCE AND ANALYSIS

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

11We find that the appellant failed to provide sufficient evidence that she was medically unable to provide a breath sample.

12Mr. C., the appellant’s psychotherapist, testified he has been working with the appellant since she was a teenager some 25 years ago. He testified that she was diagnosed with breast cancer in the fall of 2018, and had undergone chemotherapy treatment which has caused her circulatory issues and peripheral neuropathy. She later had surgery and radiation. Mr. C. said the appellant has acute general anxiety disorder, has been diagnosed by a psychiatrist with borderline personality disorder and when confronted by uniformed authorities her response can be “confrontational and bizarre”. The appellant is also a survivor of post-traumatic stress from childhood abuse. Mr. C. continues to treat the appellant and they meet frequently. Mr. C. admitted that he was not with the appellant when the breath sample was demanded and could not comment more specifically.

13Dr. Y., the appellant’s oncologist, in a report dated January 20, 2019 confirmed her cancer treatments, history of anxiety/depression, panic attacks and other psychological issues and reported “…my patient was not in the best frame of mind to make complex decisions for the past few months, including the night of the incident in question. If an allowance can be made for her actions due to her medical and psychological issues that would be appreciated.”

14Dr. W., the appellant’s psychiatrist in a report dated January 18, 2019 confirmed the appellant’s attendance for treatment at the Borderline Personality Disorder clinic at a hospital in April, 2018 but stated this treatment was suspended since October 2, 2018 due to her cancer treatments. Several reports from the hospital where the appellant has been receiving cancer treatments confirm her cancer treatments.

15Dr. L., another of the appellant’s oncologists, in a report dated April 5, 2019 reported that she completed four of the six scheduled chemo treatments and chemo was stopped December 7, 2018 because of toxicities including peripheral neuropathy.

16The appellant testified that she was diagnosed with breast cancer for which she received chemotherapy treatment until December 7, 2018 and surgery at the end of January, 2019 followed by radiation. She testified that she was driving on the highway on the evening of January 3, 2019 after receiving a massage when she felt numbness in her feet and legs and slowed her vehicle down to 70 kilometers per hour in instead of 90.

17The appellant believed the numbness was an allergic reaction, then her anxiety started to elevate into a panic attack and she didn’t know what to do. The police officer pulled her over. With the police officer present, she called 911 on her phone and tried to explain to the officer that she is a cancer patient and was having an allergic reaction. She had numbness in her legs, hot flashes and a panic attack but he wouldn’t listen to her and took her phone away. The officer put her in the back of his car and took her phone away so she banged on the car and said she needed to “go pee”. The appellant said she couldn’t breathe at one point. The officer took her to the police station where she was strip searched and put in a cell. She said she “freaked out”. When asked to give a breath sample she refused.

18When released the next morning, she called 911 and went to the hospital in an ambulance. The doctor at the hospital checked her out and told her to follow up with her chemo doctor which she did. The appellant said she would have given the breath sample if it was a normal day but could not on January 3 because of her mental health, the allergic reaction, and the cancer treatment. The appellant testified that changes in breathing was a symptom of a typical panic attack for her.

19On cross-examination the appellant denied consuming any alcohol that day or having any alcohol spilled on her. She asked for a lawyer because the police officer was asking too many questions and she had anxiety and panic attack and was having an allergic reaction to the chemo. She admitted asking that the police call another police officer she knows at police services so he could explain about her cancer. The appellant testified that when she was pulled over by the police she wanted to go to the hospital She testified that she doesn’t recall meeting Sergeant M. making a demand for a breath sample or saying she didn’t trust the Intoxilyzer because she was in a panic attack. Appellant admitted that she talked to a lawyer that the police called for her at the police station. She admitted providing a breath sample to the police in 2013.

20Constable M., a police officer for six years, works under the Road Safety Bureau of his police force. He testified with reference to his notes. On January 3, 2019 at approximately 9:40 p.m. he was driving on a highway with three lanes in each direction and a speed limit of 100 kilometers per hour. He saw a vehicle going at a very low rate of speed in the left hand (fast lane), weaving in and out of traffic and causing other vehicles to slow down. Constable M. put on his lights and followed the appellant’s vehicle which stopped a few times and then accelerated and then stopped in the middle lane of the highway, not on the shoulder. He called for backup cruisers as this was a dangerous situation for himself and the appellant. Constable M. detected alcoholic beverage odour coming from her face area. The appellant questioned him on the reason why she was stopped and she asked him who he was and the reason for the investigation. He told her she was weaving in and out of traffic and he was now investigating if she was possibly driving under the influence of alcohol. He testified that the appellant called 911 on her phone and requested to speak to the police. Constable M. recalled the appellant mentioning her health issues. After the backup cruisers arrived he placed her under arrest for driving impaired, took away her phone, and took her to the police station.

21In the cruiser she got free from the handcuffs and was beating on the back of the cruiser but did not say she needed to use the washroom or needed medical care. The appellant insisted on talking to her lawyer. When Constable M. gave her the caution at 10:01 p.m. she responded with profanity, appeared to not be paying attention and was uncooperative. At the police station Constable M. observed that the appellant’s speech was slurred and her eyes were glossy but not red. The appellant yelled and screamed. She said several times that she was a cancer patient and had anxiety but did not ask him for medical help. Constable M. testified that if she had asked for medical help he would have called dispatch and asked for medical help. She said she would provide a breath sample but then asked what her rights were and for a lawyer. She gave Constable M. the name of her lawyer but Constable M. could not locate the lawyer. He told the appellant that, and she agreed to speak to duty counsel.

22After she spoke to a duty counsel, the appellant was turned over to Sergeant M., an Intoxilyzer technician who has been with the police force for 22 years, for a breath test. He testified with reference to his notes. Sergeant M. did quality checks on the Intoxilyzer and read her the demand for breath sample. He testified that the appellant said she understood and didn’t mind doing that. The appellant told Sergeant M. that she had one glass of wine. Sergeant M. said he noticed she had a port in her left collar bone area. He asked her about her health. She told him she had anxiety and breast cancer. He noticed that her topic of conversation and focus changed several times. She asked if he was taking her to see the doctor who gives her chemo treatments.

23Sergeant M. said they also talked about the Intoxilyzer. The appellant said several times she would give a breath sample and then did not. At 23:37 he read her the caution for failure to give a breath sample. The appellant said she understood but her words trailed off. Sergeant M. testified that he asked her why she would not provide a breath sample and she told him she didn’t like people touching her and she had just spoken to her doctor and was advised not to do the test. Sergeant M. asked if she understood she would be charged and she said she didn’t know how to deal with that and she was concerned that the chemo drugs would register as alcohol. Sergeant M. said he smelled alcohol on appellant’s breath, her speech was slurred, she had soiled her pants so the room smelled of urine and she was staggering when she walked. He testified that she appeared drunk but something else was going on. She did not ask for an ambulance. He asked her if she required an ambulance and she said no. Sergeant M. said the appellant understood the breath demand and the consequences of refusal when he read it to her.

24In cross-examination Sergeant M. said he has some mental health training, is trained about medical emergencies and has experience with panic attacks because he has had one and a family member has had them. He has had experience with breast cancer with a family member but is not trained on allergic reactions. He testified that he asked about the appellant when she last took medication or if she needed medication but she didn’t know. Sergeant M. said he does not recall the appellant asking for medical help at any time, that he did not observe any medical emergency with the appellant, she did not appear to him to be in any medical distress and was not short of breath.

25The appellant submits she was not drinking that night or since October, 2018 because it makes her nauseous. She stated that she should not be penalized if she was not drinking. She also submits she was not herself at the moment the breath demand was made.

26The respondent’s agent submits that there has been no evidence linking the appellant’s medical conditions to her refusal to give a breath sample and having a medical condition does not automatically result in inability to give a breath sample. We agree with these submissions for the reasons that follow.

27We find that the appellant failed to prove on a balance of probabilities that she was medically unable to provide a breath sample on January 3, 2019 when demanded. The appellant brought forward no specific medical evidence to support her assertion that she failed or refused to comply with a demand for a breath sample because she was unable to do so for a medical reason. None of the appellant’s medical reports say that she could not give a breath sample for medical reasons. All medical reports submitted by the appellant and the testimony of Mr. C., her psychotherapist, focus on her history of medical issues and the treatments she has undergone. Dr. Y., appellant’s cancer physician, in a report dated January 20, 2019 confirmed her cancer treatments, history of anxiety/depression, panic attacks and other psychological issues and reported that she was not in the best frame of mind to make complex decisions for the past few months, including the night of the incident in question and asks if an allowance can be made for her actions due to her medical and psychological issues. Dr. Y’s report however gives no specific opinion about how any of appellant’s medical conditions or treatment caused her to fail to give a breath sample on January 3, 2019. Dr. Y’s report refers to her not being in the best frame of mind to make “complex decisions” but the appellant did not refer to the decision not to give a breath sample as “complex” or that she failed to understand the demand or consequences of refusing the demand.

28The appellant’s submission that she was not drinking that night and she should not be penalized if she was not drinking is not relevant to the issue we have to decide. The appellant’s submission that she was not herself at the moment the breath demand was made is not supported by medical evidence nor is there any evidence to support her claim that she was medically unable to provide a breath sample. The weight of the evidence about her mental state on January 3, 2019 is to the contrary. The appellant admitted on cross-examination that she was concerned about her legal rights, asked to speak to a lawyer and did speak with a lawyer. These are the rational and expected responses to an arrest and demonstrate that the appellant was aware of her situation and had enough presence of mind to be focussed on her legal position after the arrest.

29In addition, the appellant testified that she had no numbness in her legs and feet before January 3, 2019. This is contradicted by the report of Dr. L. dated April 5, 2019 which confirms that she completed four of the six scheduled chemo treatments and chemo was stopped December 7, 2018 because of toxicities including peripheral neuropathy. According to her doctor’s report the medication causing peripheral neuropathy had been stopped by December 7 so peripheral neuropathy was experienced on or before that date.

30Neither Constable M. nor Sergeant M. observed any medical distress and Sergeant M., who has some experience with panic attacks, did not observe shortness of breath. Both police officers did observe smell of alcohol from the face area and slurring of speech which they testified did indicate alcohol use. The appellant also admitted to Sergeant M. that she had a glass of wine that night. Although the appellant said she was having an allergic reaction to chemo on January 3, 2019 and a panic attack we give this little weight as the evidence does not support this.

31We find the testimony of the police officers to be credible and accept their evidence. They both testified with the aid of their notes and each gave detailed specific testimony about their interaction with the appellant. Sergeant M. gave specific and detailed testimony about the demand for breath sample and appellant’s response. Sergeant M. said the appellant said she would give the breath sample, spoke to a lawyer and then chose not to provide the breath sample. She told Sergeant M. she was concerned that the chemo drugs would register as alcohol. Sergeant M. told her that only alcohol would register as alcohol. Sergeant M. cautioned her about the consequences of not giving the breath sample. He testified that she understood the breath demand and the consequences of refusal when he read it to her. We find that the appellant chose not to give the breath sample and was not prevented from doing so by her medical condition.

32In coming to this conclusion, we find that the appellant’s testimony was largely not credible. She said that she was in a panic attack when the demand for breath sample was made but did not testify she was short of breath at that time even though she testified that changes in breathing was a symptom of a typical panic attack for her. Until asked in cross-examination, she did not say she asked for and spoke to a lawyer at the police station nor did she volunteer that she asked Constable M. to call another police officer she knows so he could explain about her cancer.

33We 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 she was unable to do so for a medical reason.

ORDER

34We confirm the Registrar’s decision to suspend the appellant’s driver’s licence.