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
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:
David Corfield Appellant
and
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
Panel: Erica Weinberg, M.D., Member Katherine Livingstone, Member
Appearances: For the Appellant: David Corfield, appellant For the Respondent: Kyle Biel, agent
Heard by teleconference: July 3, 2020
REASONS FOR DECISION AND ORDER
A. Overview:
A teleconference hearing was held on July 3, 2020 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 19, 2020 suspension of his driver’s licence for 90 days under s.48.3 of the HTA for refusing to provide a breath sample demand under s. 254 of the Criminal Code of Canada.
1The appellant submits he failed or refused to give the breath sample because he was unable to do so for a medical reason, specifically an injury from a prior car accident.
2The matter was first set for hearing on April 28, 2020, however it was adjourned to June 17, 2020, to allow the appellant more time to obtain medical information to support his appeal. On June 17, 2020 the hearing did not proceed due to the illness of a Tribunal member. The hearing was adjourned to July 3, 2020.
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) (a) (ii) of the HTA.
C. Conclusion
4For the reasons that follow, we find 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.
D. Prelminary IssueS:
5At the beginning of the hearing the appellant advised the Tribunal he did not want a hearing on the merits of his appeal but rather wished the Tribunal to outright dismiss or “expunge” the licence suspension without hearing any evidence. He indicated he “was against the hearing going ahead”.
6He took this position as he felt both the Registrar’s agent and the Tribunal had conducted themselves unfairly towards him. He also believed there had been unnecessary delay in the scheduling of the hearing date. Additionally, he thought the grounds of appeal as outlined in the relevant legislation were too restrictive.
7Alternatively, relying on section 55 of the HTA, the appellant wanted a stay of the proceedings until after the Criminal Code matter laid at the time he was stopped, had been dealt with by the courts. He told the Tribunal he believed he was in a position of double jeopardy and he “didn’t agree with what was going on here”.
8The Tribunal advised the appellant it was not prepared to receive evidence and submissions solely on the preliminary issues. Rather it would hear evidence and submissions both on the preliminary issues and the substantive issue and render decisions with respect to both at the conclusion of the hearing.
9Upon hearing the Tribunal’s intentions, the appellant initially indicated he was not going to participate further in the hearing and instead attempt to take the matter directly to judicial review before the Divisional Court. However, he ultimately decided to continue with the hearing.
Evidence and Submissions of the Appellant on the Preliminary Issues
10The appellant stated he felt he was entitled to a stay of proceedings pursuant to section 55 of the HTA which states:
If a person whose licence has been suspended enters an appeal against his or her conviction and serves notice of the appeal on the Registrar, the suspension is stayed from the time notice is served on the Registrar unless the conviction is sustained on appeal.
11That section of the HTA is not applicable to the matter before this Tribunal. The section refers to the situation where a person is convicted of a Criminal Code offence or an offence under the HTA which resulted in a suspension of their licence. Should the person appeal the conviction, the suspension is stayed until such time as the appeal is heard.
12Additionally, the appellant argued the appeal could be stayed pursuant to s. 5.1(5) of the Licence Appeal Tribunal Act 1999, S.O.1999,C.12 Sched. G (“the Act”) which states:
An order of the Tribunal takes effect immediately unless the order provides otherwise but if section 11 allows for an appeal to the Divisional Court and such an appeal is made, that court may grant a stay of the order until the appeal has been disposed of.
13Again, the quoted section of the Act is not applicable in these circumstances as the Tribunal has not, at this point, made an order. The Tribunal rejects this argument.
14The appellant also stated he believed he was in a situation of double jeopardy as he had to deal with the Criminal Code matter as well. His position was that should he be forced to testify at this hearing the police officer “gets a leg up” after he testifies and he “can’t afford to do that”.
15The Criminal Code offence is a separate proceeding. The appellant commenced this appeal before the Tribunal. An administrative decision by this Tribunal does not equate with the consequences of a conviction under the Criminal Code. As well the appellant would be afforded certain protections under the law with respect to any evidence he may give in this hearing. The Tribunal dismisses his argument of double jeopardy.
16The appellant argued the grounds for appealing the administrative suspension were too restrictive. It is trite law that the Tribunal’s jurisdiction is restricted to the grounds set out in the relevant legislation, in this case section 50.1(2) of the HTA, which sets out two grounds:
a) the person whose licence was suspended is not the same person to whom the demand was made, or
b) the person failed or refused to comply with the demand because they were unable to due to a medical reason.
17There are no other grounds the Tribunal can rely on to reinstate an appellant’s licence suspended under s.48.3 of the HTA nor did the appellant suggest any other grounds, other than to say the legislated ones were too restrictive.
18The appellant gave evidence on what he argued was a lack of communication and unfair practices by the respondent’s agent, where he alleged they were “doing everything they can to make my life as hard as possible.”
19In particular, the appellant referred to a letter written by his primary care physician on January 30, 2020, which was included in his appeal material received by the Tribunal on February 24, 2020. In the letter the doctor requested “a definition of s. 254 of the Criminal Code so we are able to complete the requested forms.” As will be explained below, the reference in the HTA to s. 254 of the Criminal Code, which has been repealed, is deemed via regulation to include a reference to s. 320.27 of the Criminal Code.
20The form referred to in the doctor’s letter is entitled Supporting Documentation – Administrative Driver’s Licence Suspension-Applicant’s Medical Information. It is included in the appeal package provided by the Tribunal to appellants who are appealing an administrative driver’s licence suspension. The form can be completed by a physician and address any diagnosis or condition that might have led to an inability to provide a suitable sample of breath. The appellant argued the respondent had an obligation to correspond with the doctor in order to answer her inquiry and the respondent did not do so, thereby acting unfairly.
21In fact, the Supporting Document form referred to by the doctor is not one generated by the respondent. There was no obligation on the respondent to correspond with the doctor. Despite this fact, after a suggestion made by the Tribunal which adjourned the April 28, 2020 hearing, the respondent forwarded the appellant a copy of the applicable section of the Criminal Code, requested by the doctor. There was no evidence the appellant in turn gave that information to his doctor, nor that the doctor requested further clarification. A completed Supporting Document form was not filed as an exhibit during the hearing.
22In the period leading up to the July 3, 2020 hearing, the appellant forwarded a number of emails to the Tribunal and the respondent’s agent outlining his concerns about unfairness both by the respondent and the Tribunal. He cited portions of statutes and Tribunal rules that were not applicable. On occasion the respondent attempted to address those concerns by directing the appellant to the applicable legislation. The Tribunal does not find the respondent’s agent conducted himself in a manner that created unfairness towards the appellant.
23Nor did the appellant articulate any point where the Tribunal had demonstrated unfairness towards him. His vague assertions of “no open communication” and his mistaken belief that the Tribunal worked with or for the respondent, simply lack any foundation.
24Finally, his position that the matter be stayed or “expunged” on the basis of delay does not stand up to scrutiny. The first hearing was adjourned at his request. The second hearing was unfortunately adjourned due to the illness of a Tribunal member however the matter was rescheduled within twelve business days. In the circumstances, the Tribunal does not find the delay in this matter unreasonable and dismisses the appellant’s argument.
25In conclusion, the Tribunal finds no substance to any of the preliminary arguments raised by the appellant as to why this suspension should be “expunged” and his licence reinstated.
E. LAW:
26As noted earlier, Section 50.1 (2) (a)(i) and (ii) 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.
27Sections 254, 255 and 256 of the Criminal Code (Canada) were repealed as of December 18, 2018. On December 16, 2018 O. Reg. 479/18, enacted under the HTA, became law. It provides 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).
28The appellant has the burden of proving he was medically unable to provide a breath sample.
29Following 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:
Evidence on the Substantive Issue of 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 Highway Traffic Act
30The appellant told the Tribunal that when he was stopped by police, he was unable to provide a breath sample because either there was something wrong with the machine or the way the officer operated it or the injury he suffered in a car accident one year previously, affected his ability to blow. He said he tried to “blow the best he could but the officer wasn’t happy with it”.
31During varying times in his evidence, he said he attempted to blow 6-7 times, 5-6 times and 7-8 times. He said he understood and complied with everything the officer asked of him. In answer to the Tribunal’s question, he said he was not coughing while trying to blow but did feel dizzy afterward. He was not short of breath during his attempts and did not request medical assistance.
32The appellant testified he told the officer about his car accident one year prior and “the officer didn’t care.” He said he told the officer he was in pain. He told the police officer it hurt to blow but he did not raise his voice or get “lippy” with the officer.
33The appellant also filed medical reports and x-rays, dated November 2, 2018, completed when he was in the emergency room after the car accident. The reports indicated he suffered a non-displaced fracture of his sternum or breast bone. The chest scan also noted a small hematoma or collection of blood in front of the sternum. There was good air entry into the lungs and his chest was clear.
34He was released from hospital the same day and told to return if there were any new concerns. He told the Tribunal he did not return to the emergency room with any new complaints.
35The appellant had follow-up chest imaging about six months after the car accident. He also said he spoke to his primary care physician sometime after the car accident regarding ongoing chest pain and shortness of breath, however she did not recommend any further follow-up, but rather took a “wait and see” approach to his concerns. The appellant stated no additional lung tests or referral to a lung specialist were suggested or made by his primary care physician at any time.
36The appellant said he has a past history of bronchitis and sometimes uses his daughter’s puffer to address the cough associated with this. He is currently prescribed and is taking medications for high blood pressure and cholesterol issues only.
37He had no ongoing issues with his mouth, nose or lips at the time of the police stop.
38After the appellant finished testifying, he advised he had no further evidence to call. The Tribunal then asked the respondent’s agent to call their evidence. The agent advised he wished to call the investigating officer.
39At this point the appellant objected to the calling of the officer as it “would destroy his criminal case”. He insisted the only purpose to the hearing was for a dismissal of his suspension based on the misdeeds of the respondent and the Tribunal. The appellant was again advised that the Tribunal was going to hear evidence on both his preliminary objections and on the substantive issues he raised in his notice of appeal. The appellant said he would hang up if the officer was called. The Tribunal asked the respondent to proceed with its witness. The appellant withdrew from the hearing and did not return.
40The investigating officer testified with the assistance of notes taken at the time of or shortly after the incident. His evidence was as follows:
41In the early morning hours of January 19, 2020, he conducted a traffic stop on the vehicle being driven by the appellant. Pursuant to his authority under the random mandatory alcohol screening legislation, the officer made a demand of the appellant for a sample of his breath into an approved screening device. Prior to having the appellant provide the sample, the officer said he instructed the appellant how the sample was to be provided and the appellant indicated he understood.
42On his first attempt the appellant failed to fully wrap his mouth around the straw, contrary to the instructions of the officer. The officer then replaced the straw and demonstrated to the appellant what was necessary to obtain a proper sample. He explained a constant stream of breath was necessary until a tone was heard and continued for sufficient time to obtain a full sample.
43On his second attempt the appellant again did not place his mouth fully around the straw and a suitable sample was not provided.
44A third and fourth attempt were made by the appellant, again absent a full seal. Although on one attempt the tone was heard for a split second, the leakage of air due to a lack of seal resulted in an insufficient sample.
45At this point the appellant became belligerent to both the officer and another officer who had arrived on scene. The appellant was offered another opportunity to have the officer demonstrate the proper way to provide a sample however, he refused, saying “I have given 7 samples and I am not doing anymore. You will just have to arrest me”.
46The officer testified during his interactions with the appellant, the appellant made no complaint of chest pain, shortness of breath or dizziness. He also said the appellant did not tell him he had previously been in a car accident. The appellant made no medical complaints other than complaining the handcuffs were too tight. The appellant was not coughing nor requested medical attention.
47The officer described the appellant’s attempts at providing a breath sample as weak and non-compliant.
Analysis
48We find the appellant failed to establish that he was medically unable to provide a breath sample.
49The appellant did not produce any medical evidence from his primary care physician outlining medical issues that would have prevented him from providing a suitable sample. Except for follow-up chest imaging at six months post car accident, the appellant’s primary care physician did not suggest or recommend any further lung tests to the appellant or refer him to a lung specialist at any time. The Tribunal finds, on a balance of probabilities, that if the appellant’s primary care physician had any significant medical concerns about the appellant’s chest, lungs or breathing post car accident, she would have sent him for additional testing or to see a lung specialist.
50A note from a physiotherapist in March 2020 gave no indication the appellant was having breathing problems. The hospital records from the night of his accident in November 2018 are helpful in terms of confirming the injury he suffered at the time, however they provide no assistance in terms of establishing that he was medically unable to provide a suitable breath sample on January 19, 2020.
51In his evidence, the appellant provided differing theories for why he did not provide a suitable breath sample; the machine was not operating properly, the officer was not operating the machine properly or he had a medical issue which prevented him from providing a suitable sample.
52His evidence about a medical issue which he says may have led to him not providing a suitable sample was vague and unsubstantiated. He had no issues with his mouth, lips or nose which prevented him from making a full seal. He did not provide evidence that indicated he uses oxygen or any lung or breathing medication regularly. Although he stated he still gets some chest discomfort from his injuries, there is no evidence that this discomfort alone would prevent him from providing a suitable sample.
53The appellant told the Tribunal he made the officer aware of the pain he was experiencing while he was trying to provide the sample and also told him about his prior car accident. The officer’s evidence was to the contrary, that the appellant made no complaints of a medical nature other than the handcuffs being too tight.
54In assessing the evidence as a whole, the Tribunal accepts the evidence of the officer over that of the appellant. The officer was able to give detailed, specific evidence about his interaction with the appellant. The appellant’s version of events was inconsistent. During the hearing he presented as confrontational in a manner similarly described by the police officer during his encounter with the appellant.
55We find based on the totality of the evidence that the appellant failed to establish he was unable to provide a suitable sample due to a medical condition.
56ORDER:
We confirm the Registrar’s decision to suspend the appellant’s driver’s licence.
LICENCE APPEAL TRIBUNAL
Erica Weinberg, M.D., Member
Katherine Livingstone, Member
Date of Issue: August 21, 2020