Licence Appeal Tribunal
An 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 of that Act - to Suspend a Licence
Between:
Winston Whyte
Appellant
and
Registrar of Motor Vehicles
Respondent
CASE CONFERENCE REPORT AND ORDER
ADJUDICATOR:
Dimitri Louvish, MD Luisa Ritacca, Member
APPEARANCES:
For the Appellant:
Winston Whyte, Appellant Jag Virk and Reena Sandhu, Counsel
For the Respondent:
Kyle Biel, Representative
Heard by teleconference:
November 25, 2020
REASONS FOR DECISION AND ORDER
A. OVERVIEW:
1A hearing was held on November 25, 2020 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"). The hearing was held by telephone conference.
2On September 7, 2020, the Appellant was pulled over by PC1 D. H. of the Hamilton Police Service on suspicion of driving while impaired. PC D.H. demanded the Appellant provide a breath sample. After seven failed attempts, the Appellant was unable to provide a breath sample. The Appellant was charged under s. 320.15 of the Criminal Code with failing or refusing to comply with a demand for breath sample under s.320.272.
3The Appellant's licence was put on a 90-day suspension pursuant to s. 48.3(2) of the HTA.
4The Appellant appealed the 90-day suspension to the Licence Appeal Tribunal (the "Tribunal"), on the basis that he failed to comply with the demand for a breath sample because he was unable to do so for a medical reason.
5For the reasons set out below, the Appellant's appeal is denied.
B. ISSUES:
6Did the Appellant fail or refuse to comply with a demand for a breath sample because he was unable to do so due to his medical conditions?
C. LAW:
7Under s. 48.3 of the HTA, a police officer must request a person to surrender their licence if the person failed or refused to provide a sample of breath in response to a demand made under section 320.27 of the Criminal Code. The HTA further provides that the individual's driver's licence shall thereafter be suspended for 90 days.
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 320.27 or 320.28 of the Criminal Code (Canada), or
ii. that the person failed or refused to comply with a demand made under section 320.27 or 320.28 of the Criminal Code (Canada) because he or she was unable to do so for a medical reason.
9In this case, the Appellant appeals on the basis that he failed to comply with the demand made by PC D.H. because he was unable to provide the sample for a medical reason.
10The burden falls on an Appellant to establish their grounds of appeal on a balance of probabilities.
D. EVIDENCE:
11In addition to providing his own evidence, the Appellant called PC D.H. to provide evidence. The Appellant also filed a letter from his family doctor and clinical records, including an ECG Report from June 7, 2016 and chest x-ray report from April 4, 2017 as well as a cardiac echocardiography report from June 7, 2017.
Evidence of the Appellant
12The Appellant is a 77-year old former welder, who testified that he lives with a number of general health problems, including diabetes, arthritis and high blood pressure. He also described that he has a pacemaker and that his lungs "have little problems too".
13The Appellant said that sometime prior to September 7, 2020, his doctor prescribed a puffer for him to use as needed. He conceded that he does not need to use the puffer on a daily basis and that he only uses it when he has a cold or chest cold. He confirmed that he did not have the puffer with him on September 7th and that the last time he used it was about a month before the hearing.
14The Appellant conceded that he has no difficulties with carrying on normal daily activities. He explained that he goes for walks, occasionally rides his bicycle and is able to grocery shop without any difficulty with his breathing. He further confirmed that he has never needed supplemental oxygen at home or in hospital and that he has never been admitted to hospital for any sort of breathing issue.
15On September 7th, the day at issue, the Appellant was in Hamilton delivering Caribbean newspapers to a number of businesses and homes. He explained that while he is retired, he continues to make these deliveries every few weeks. At the time PC D.H. pulled him over, the Appellant had completed his deliveries and was on his way home.
16The Appellant testified that when he was stopped by PC D.H. and asked to provide a breath sample, he did his best to comply. He denied having consumed alcohol that day and was trying his best to provide a viable breath sample. The Appellant explained to PC D.H. that because of his age and health he was having difficulty providing the sample, but that he was doing the best he could. The Appellant told PC D.H. that he was an "old welder" and that he "can't blow that much".
17The Appellant described trying multiple times to provide the sample but needing to take breaks to gather his breath and blow again. He denied intentionally failing to provide the breath sample.
18On cross-examination, the Appellant confirmed that he had an unsealed bottle of rum on the passenger side of the front seat of his vehicle. He explained that the bottle had been there for quite some time and denied consuming any of it on the day in question.
Evidence of PC D.H.
19PC D.H. has been with the Hamilton Police Services for almost 22-years. He stopped the Appellant's vehicle on the night of September 7th on a suspicion of impaired driving.
20PC D.H. testified that at approximately 11:30 pm, he was driving along Barton Street behind the Appellant's vehicle. He noticed that the Appellant came to an abrupt stop and then turned very slowly down East Avenue. PC D.H. found the driving behavior unusual, particularly given the time of night and the abrupt stop. He indicated that he and the Appellant were the only vehicles on the road at the time. He decided to pull the Appellant over to investigate whether the Appellant might be lost or whether sobriety was in issue. On examination by the Appellant's counsel, PC D.H. denied that the Appellant's race had anything to do with his reason for stopping the vehicle.
21PC D.H. explained the steps he took once he pulled over the Appellant. He testified that he detected a faint odor of alcohol when speaking with the Appellant, but that he did not observe any other signs of intoxication. He asked the Appellant for his documents, which he provided. He asked the Appellant whether he had been drinking, which he denied. PC D.H. noted that throughout his interaction with him, the Appellant was cooperative and polite.
22PC D.H. explained that he used his police radio to call for a colleague to attend the scene with an Approved Screening Device (ASD) he could use to administer the breath test. PC D.H. testified that his colleague attended with the ASD within one minute of him making the request. He explained that prior to using the device with the Appellant, he removed it from its plastic seal, but did not specifically inspect the new mouthpiece for any signs of damage.
23PC D.H. described how he instructed and demonstrated to the Appellant the proper way to provide a breath sample. The breath test requires a person to form a seal with their lips around the mouthpiece attached to the ASD and exhale steadily until they are asked to stop. PC D.H. explained that a steady breath, with minimal effort is required.
24PC D.H. gave the Appellant seven chances to provide a breath sample over the course of approximately 4 minutes. Each time the Appellant attempted to provide a sample, the ASD would register either an "interrupted sample" (the breathing was not steady and as a result that device would switch on and off) or an "insufficient flow" (indicating that the breath was not provided with enough force to register a reading on the ASD).
25Prior to the Appellant's seventh attempt, PC D.H. advised him that he would have to arrest him for failing to provide a breath sample and that his license would be suspended immediately.
26PC D.H. confirmed that the Appellant advised him that he was an "old welder" and that he "could not blow that much". The Appellant did not tell the police officer that he was unable to provide a breath sample because of a medical condition. Further, PC D.H. did not observe the Appellant cough, wheeze or have trouble breathing during their interaction. He admitted under examination by the Appellant's counsel that he could not recall specifically asking whether the Appellant had any sort of medical condition that would prevent him from providing the sample.
Documentary Evidence
27The Appellant provided the Panel with a letter from his family doctor, together with a number of clinical records. In the letter, dated October 2, 2020, the family doctor confirms that he is aware of the Appellant's licence suspension and confirms that he has prepared the letter in support of the Appellant's appeal. The family doctor states: "I hereby do certify that this patient has chronic bronchitis, diabetic with a pacemaker and these identified medical conditions are why he can't blow normally".
28The doctor also includes a list of the Appellant's other medical conditions and current medications. Of note, there appear to be no medications related to respiratory issues and no mention of the Appellant's puffer.
29The clinical records confirm that the Appellant has a pacemaker and is diabetic. The records also confirm that the last chest X-ray the Appellant had was in 2017, which indicated that the Appellant's "lungs are clear of active disease".
30There is nothing in the records to indicate that the Appellant ever underwent a pulmonary function test or chest X-ray after 2017 which would have been expected had the Appellant had any ongoing clinically significant respiratory problems.
31The cardiology consultation report from Mississauga Hospital Cardiac Device Clinic from April 25, 2017 states "Normal dual chamber pacemaker follow-up".
32Similarly, the cardiology consultation report from Cardiac Device Clinic dated June 3, 2020 states that "Mr. Whyte tells me he is feeling well. He has had no episodes of lightheadedness, syncope, or presyncope. He is not aware of palpitations".
E. ANALYSIS:
33The Panel is satisfied based on the evidence before it that the Appellant has a number of chronic medical conditions and that he has a pacemaker. The Panel is not satisfied, however, that the Appellant's medical conditions prevented him from providing the breath sample as requested on the night of September 7th, 2020. We reach this conclusion for the following reasons.
34First, while the Appellant's family doctor asserted that the Appellant has conditions that explain why he cannot "blow normally", the records provided in the Appellant's brief do not support such a conclusion. The records reveal a number of chronic health issues, which appear to be stable and under control. Further, none of the health issues identified in the records appear to be connected to a respiratory issue or other condition that might lead to respiratory issues. The Appellant's last chest X-ray revealed that his lungs are clear of active disease and there are no signs of clinically significant COPD. There is no record of any hospital admission, ER visit, or clinical test conducted relating to the Appellant's pulmonary functioning. The family doctor's bald assertion is contrary to the clinical records and on its own does not satisfy the Panel that the Appellant was unable to provide a breath sample for reasons of a medical condition.
35Second, the Appellant acknowledged that he has no respiratory issues in performing the normal activities of daily living. He confirmed that he takes regular walks, he occasionally rides his bike and he can attend to his own groceries. He also confirmed that while he has a puffer, he only uses it when he has a "chest cold".
36Third, both PC D.H. and the Appellant confirmed that the Appellant did not specifically advise the PC D.H. of any medical issue at the time he was taking the ASD breath test. The Appellant did say that he was an "old welder" and that he "can't blow much", but he did not indicate that he had a medical condition that was preventing him from providing an adequate sample. PC D.H. gave the Appellant seven opportunities to provide a breath sample. There was no reason presented to PC D.H. to support the assertion that the Appellant was trying his hardest, but that he could not provide the breath sample because of a medical condition. Further, the Appellant did not ask for medical assistance at the time and PC D.H. did not note any medical distress.
37The totality of the evidence presented simply does not satisfy the Panel that the Appellant failed to provide a breath sample because of a medical condition. The medical evidence does not support a finding of a medical condition that would make it difficult for the Appellant to comply with the requirements of the ASD breath test. In fact, other than the family doctor's bald assertion to the contrary, the remaining medical evidence confirmed the Appellant's own evidence, which is that he is an older man, who suffers from several chronic illnesses, none of which interfere with his ability to participate in the ordinary activities of daily living.
38The Panel finds that the Appellant has failed to meet his onus in the circumstances.
ORDER:
39For the reasons set out above, pursuant to s. 50.1(4) of the HTA, the Tribunal confirms the suspension of the appellant's driver's licence.
LICENCE APPEAL TRIBUNAL
Dimitri Louvish, M.D., Member
Luisa Ritacca, Member
Released: December 07, 2020
Footnotes
- During his testimony, P.C. D.H. advised that he had been recently promoted to the rank of Sargent. Given that he was a P.C. at the time he stopped the Appellant, we have used the previous designation throughout these reasons.
- Sections 254, 255 and 256 of the Criminal Code were repealed as of December 18, 2018 and replaced with 320.15, 320.27 and 320.28. Until recently, s. 48.3 of the HTA still referred to the repealed provisions. However, prior to December 1, 2020, the HTA's references to the repealed provisions were deemed to be references to the correct provisions by virtue of HTA Regulation 479/18. Regulation 479/18 was revoked as of December 1, 2020. However, the Getting Ontario Moving Act (Transportation Statute Law Amendment Act) amended s. 48.3 of the HTA as of December 1, 2020 such that it now refers to the correct Criminal Code provisions. Nothing in this appeal turns on these amendments, and for the purposes of this decision the Tribunal will refer to the current Criminal Code and HTA provisions.