Lizette Szack v. Registrar of Motor Vehicles, 2019 CanLII 76873

DECISION AND ORDER

Date: 2019-07-24

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

Between:

Lizette Szack Appellant

-and-

Registrar of Motor Vehicles Respondent

Panel: Erica Weinberg, MD Avvy Go, Member

Appearances: For the Appellant: Lizette Szack, Appellant; Guy Wainwright, Counsel For the Respondent: Kyle Biel, Representative

Place and Date(s) of Hearing: Teleconference July 18, 2019

REASONS FOR DECISION AND ORDER

A. Overview:

1A hearing was held on July 18, 2019, by teleconference, to consider the appeal of the Appellant pursuant to section 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

2On May 4, 2019, the Appellant was pulled over by OPP Constable, R. on suspicion of driving while impaired. Constable R. demanded the Appellant to provide a breath sample. After a number of failed attempts, the Appellant was unable to provide a breath sample. The Appellant was charged with failing or refusing to comply with a demand for breath sample under s. 254 of the Criminal Code.¹ Her licence was put on a 90-day suspension pursuant to s. 48.3(2) of the HTA.

3The Appellant appealed the 90-day suspension to the Licence Appeal Tribunal (the “Tribunal”).

4For the reasons set out below, the Appellant’s appeal is granted.

B. ISSUES:

5Did 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?

C. EVIDENCE:

6The Panel heard from the Appellant and Constable R. at the hearing. The Panel also received documentary evidence including the Appellant’s Medical Information Form submitted by the Appellant’s family physician, Dr. C. dated June 17, 2019, and a Pulmonary Function test (“PF test”) conducted on the Appellant dated June 6, 2019.

Appellant’s Testimony

7The Appellant, who is 79 years and a smoker, testified that she was diagnosed with Chronic Obstructive Pulmonary (Lung) Disease (“COPD”) about two decades ago when she was living in another city. The Appellant also has several other medical conditions. The Appellant can walk, but only for a short distance, and can carry some objects but may need help if they are too heavy. The Appellant lives alone.

8The Appellant moved about 6 years ago to her current location and started to see Dr. C. She is prescribed several medications including an inhaler for her COPD that she uses primarily nightly (although prescribed twice daily). The Appellant does not carry her inhaler with her, when she is out. She also does not use her additional “as needed” puffer prescribed by Dr. C., as she finds it too difficult to manipulate and use.

9On the day in question, the Appellant went to a beer store to pick up some beer. As she is not able to carry heavy objects due to her medical condition, the beer store clerk packed the beer in smaller quantities, and loaded the beer into her vehicle. The Appellant could carry the smaller quantities, individually into her home.

10The Appellant was stopped by Constable R. on her way home. When Constable R. asked her to provide a breath sample, the Appellant testified that she tried her best to comply. The Appellant testified that for two hours, she took the test every 10 minutes and she tried to blow as hard as she could, but just could not blow hard enough to trigger the machine. The Appellant swore there was nothing else she could do to make it work.

11Under cross examination, the Appellant confirmed that although having been diagnosed with COPD for over 20 years, the first PF test she did was the one in June 2019. As to why she only met Dr. C. in June 2019 about this matter, the Appellant explained that Dr. C. only works two days a week at his clinic, he usually makes house calls monthly to her home to see her, and the Appellant waited until the doctor came to do his next home visit. The Appellant also testified that she told Dr. C. about her inability to meet the demand for breath sample and the doctor explained it was because of her COPD.

12The Appellant was asked if she could do the PF test, then why was she not able to complete the breath test, as the two tests are similar in that they both require the Appellant to blow into a machine long enough with her lips sealed. The Appellant replied that the conditions under which the two tests were conducted were different, and she was a lot more comfortable when taking the PF test in a hospital testing.

13The Appellant also admitted under cross examination that on the day in question, she did not ask for her medication and did not have her puffer with her.

Constable R.’s Testimony

14The Respondent called Constable R. as a witness and he gave evidence about the various attempts that the Appellant made to complete the breath test. Relying on the notes he took right after his arrest of the Appellant, Constable R. described in great detail how he instructed and demonstrated to the Appellant the proper way to provide the breath sample.

15As described by Constable R. at the hearing, the breath test requires a person to take a deep breath in (inhale), then with their lips sealed around the tube, exhale steadily through the tube until they are asked to stop. In order for a successful breath sample to be provided, a person must inhale approximately 1 liter of air, and then exhale for about 3 seconds through the tube. When a person first exhales through the tube, the machine will acknowledge receiving a sufficient volume of air by making a clicking sound. However, for the test to be completed, there must be a satisfactory blow for another two or more seconds.

16In the Appellant’s case, every time she did the test, the machine would register a “click” suggesting the machine was working properly, but then it would register “blow interruption”. Constable R. explained that “blow interruption” meant that either there was a blockage (e.g. the tongue was in the way) or there was an insufficient flow rate of air being blown.

17Constable R. testified that the Appellant did cough a number of times on that day, but the coughing happened before or after the test, and in his view, did not interfere with the Appellant’s ability to provide a breath sample. Constable R. also testified that while the Appellant was visibly upset during his encounter with her, the Constable did not observe the Appellant having any shortness of breath, or otherwise in any medical distress.

18Under cross examination, Constable R. admitted that he had to make a judgment call as to whether the Appellant was deliberately blocking the machine or the Appellant was not able to blow enough air because of other reasons.

19Constable R. also admitted under cross examination that the Appellant did indicate to him that she had a medical breathing problem, but he did not recall what the condition was, nor did he put it in his notebook.

Documentary Evidence

20The Panel also has before us the Appellant’s PF test results. We note as a starting point that the Appellant was also unable to complete the full PF test. As noted in the report, “lung volume and diffusion capacity assessment could not be performed due to patient condition.”

21The PF test results measured a number of things including: “forced vital capacity”– which measures the amount of air that a person can breathe out quickly and forcefully after a deep breath in, and “forced expiratory volume first second” which records how much a person can breathe out quickly during the first second.

22On both measures, the Appellant fell under 40%, as compared to someone of her age (79 years old).

23The PF test results were interpreted by a physician at the hospital who stated that the “findings were consistent with severe COPD”.

24Dr. C. also opined in his Medical Information Form that the Appellant has severe COPD that can prevent her from doing a Breathalyzer test.

D. LAW:

25Under s. 48.3 of the HTA, a police officer has the authority to request a person to surrender his/her licence for 90 days if the person failed or refused to provide a sample of breath in response to a demand made under section 254 of the Criminal Code.

26Section 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.

27Sections 254, 255 and 256 of the Criminal Code 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, which are the corresponding provisions.

28The burden falls on an appellant, on a balance of probabilities, to show that he/she meets a ground for appeal.

E. ANALYSIS:

29The Panel finds, first of all, that the evidence confirms the Appellant suffers from severe COPD. In fact, the respondent also did not dispute that the Appellant has COPD, but rather submitted that it had no role in the Appellant’s failure to provide a breath sample. We disagree. We came to this conclusion after considering the following factors.

30First, we considered the evidence of Constable R. which we find by and large to be credible. We accept the Respondent’s submission that Constable R. was genuine in giving his evidence and was being very patient with the Appellant by allowing her multiple attempts to comply with his request. However, we do find it odd that the Constable did not include in his notes the Appellant mentioning to him something about her breathing problems. As ultimately the decision to charge the Appellant involved a judgment call made by the Constable, the fact that he had not noted the Appellant’s medical condition in his note suggests that he had not taken her medical condition into account when exercising his judgment with respect to the Appellant.

31Second, we note, as the Respondent did, that the Appellant never asked for medical attention, did not use her inhaler on the morning of the day in question, and was perhaps not in “medical distress” in a sense of requiring immediate medical condition. However, whether or not the Appellant was in “medical distress” does not negate the fact that she has severe COPD, which by definition means a persistent airflow limitation (obstruction). It is precisely because she has severe COPD, that the Appellant was not able to blow air forcefully enough to complete the breath sample test, just as she was unable to complete the PF test.

32The Respondent submitted that the Appellant never raised with the Constable that she was suffering from a medical issue at that time, and her failure to do so defies logic. The Respondent also submitted that the Appellant only submitted to a PF test after the fact and had not provided any prior record of hospitalization because of her COPD, and as such the Respondent submitted the Appellant’s condition was not the reason for her failure to comply. The Panel notes that COPD is a chronic condition, and the evidence confirms that the Appellant has been diagnosed with the condition for over 20 years. Moreover, as the panel has already noted, the Appellant did advise Constable R. about her medical condition, which was not included in Constable R.’s notes. Indeed, if the Appellant did not wish to comply with the test – as opposed to not being able to comply – it would have been to the Appellant’s advantage to inform the Constable that she suffered from COPD. The fact the Appellant continued to try to comply over and over again supports the Appellant’s position that she was trying her best to comply and was simply unable to do so because of her COPD.

33The Respondent also relied on a previous decision from the Tribunal to support its argument that even a smoker should be able to provide a breath sample. The Respondent went further to suggest that if a person was able to smoke a cigarette, that person should be able to provide a breath sample. The issue in this case is not whether the Appellant is a smoker. Rather, the issue is whether the Appellant’s medical condition, namely, severe COPD, could prevent her from providing a breath sample. We find that it did.

34We find that the Appellant has met her onus and established that she failed to comply with the demand to provide a breath sample because she was unable to do so for a medical reason, specifically, her COPD prevented her from providing a breath sample.

ORDER:

35For the reasons set out above, pursuant to s. 50.1(4) of the HTA, the Tribunal grants the Appellant’s appeal and orders that the suspension be set aside.

Footnotes

1. 1s. 254 of the Criminal Code was repealed as of December 18, 2018. See Section D. of the decision for more details.