Curnew v. Registrar of Motor Vehicles, 2024 CanLII 69894

Tribunals Ontario Tribunaux decisionnels Ontario

Licence Appeal Tribunal d’appel en matière de permis

Licence Appeal Tribunal File Number: 15993/ADLS

Appeal under subsection 50(1) of the Highway Traffic Act R.S.O 1990, c. H.8, from a decision to suspend a driver’s licence pursuant to section 48.1(1) of the Act

Between

Andrew Curnew Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

Panel: Dr. Erica Weinberg, Member Jeffery Campbell, Vice-Chair

Appearances:

For the Appellant: Andrew Curnew, Appellant Gregory Lafontaine, Counsel Aaron Azur, Paralegal

For the Respondent: Leila Pereira, Agent Ian Sookram, Agent

Date of hearing by teleconference July 17, 2024

REASONS FOR DECISION AND ORDER:

Overview

1Andrew Curnew, the appellant, appealed under s. 50.1 of the Highway Traffic Act, R.S.O. 1990, c H.8 (the “Act”) the June 6, 2024 suspension of his driver’s licence for 90 days under s. 48.3 of the Act as a result of his refusal to provide a breath sample.

2The appellant’s ground of appeal is that he failed or refused to comply with a demand under s. 320.27 or s. 320.28 of the Criminal Code (Canada), because he was unable to do so for a medical reason.

3On June 5, 2024 the appellant was stopped by the Toronto Police Service while he was operating his vehicle. The appellant was arrested for impaired operation of a motor vehicle and subsequently administered a 90-day Administrative Driver’s Licence Suspension for his refusal to provide a breath sample.

Issue

4The issue in this appeal is whether the administrative suspension of the appellant’s driver’s licence should be set aside on the ground that:

a. The appellant failed or refused to comply with a demand to provide a breath sample because he was unable to do so for a medical reason.

Result

5Having considered all the evidence and submissions and for the reasons that follow, we find on a balance of probabilities that the appellant refused to comply with a demand to provide a breath sample because he was unable to do so for a medical reason and we set aside the decision of the Registrar of Motor Vehicles (the “Registrar”).

Law

6A person whose driver’s licence has been suspended under section 48.3 of the Act may appeal the suspension to the Tribunal under section 50.1 of the Act. Relevant to this appeal, section 50.1(2)(a)(ii) of the Act sets out the ground of appeal for the section 48.3 suspension of the appellant’s driver’s licence:

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.

7The appellant has the burden of proof on a balance of probabilities that he 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.

8Following a hearing, the Tribunal may, under s.50.1(4) of the Act, confirm the suspension or may order that the suspension be set aside.

Evidence

a) Medical Evidence

Post Traumatic Stress Disorder (“PTSD”)

9The appellant testified that he suffers from serious psychological or mental health issues after an incident in which he was violently stabbed in the mouth with a toothbrush, while he was in incarceration. The appellant testified that he “almost died from that incident.” Since that occurrence he has had a phobia regarding putting anything inside of his mouth and has been diagnosed with PTSD.

10The appellant’s spouse, Dr. Rita Kilislian, testified that the appellant has PTSD due to the stabbing while he was incarcerated. In her written statement Dr. Kilislian stated that “[the appellant] has endured significant trauma from an incident where he was stabbed in the mouth, resulting in the loss of several teeth. The traumatic event has manifested as PTSD…”. Dr. Kilislian is not only the appellant’s spouse but also an endodontist who treats the appellant with respect to his dental issues. However, we accept Dr. Kilislian’s testimony only with respect to her knowledge of the appellant as her spouse, and not in her capacity as one of his medical professionals.

11In a letter dated November 28, 2020, Dr. Doron Ferdman, a specialist in family medicine, advised that the appellant “…suffers from a debilitating case of PTSD for which he is undergoing active therapy and is medicated as a result of his clinical illness and his disability.” Dr. Ferdman further wrote that “Mr. Curnew is a patient of our medical practice and is confirmed to be suffering from an irreversible case of PTSD, as part of his prescription and as part of his therapy Mr. Curnew takes a combination of medication, mindfulness practices, cognitive behavioural therapy with a team psychologist and utilizes the benefit of an emotional support animal.”

12In a letter dated March 23, 2022, licenced mental health professional, Jennifer Barkin, reported that the appellant’s mental health condition “substantially limits one or more major life activities or major bodily functions” and “meets the definition of disability under the Americans with Disabilities Act”.

13The Registrar did not dispute the medical evidence of the appellant’s PTSD, nor contest that he suffers from that condition.

14We are satisfied from the evidence presented that the appellant suffers from PTSD.

Gastrointestinal issues

15The appellant testified that he has suffered from gastrointestinal problems for a number of years. He testified that he has been diagnosed with gastroesophageal reflux disease (“GERD”) and has severe difficulties in eating and swallowing. He testified that he can eat chopped up foods and dairy products. However, he has had a history of choking, at times to the point of unconsciousness. He testified that putting objects into his mouth, even a straw, would cause a gag reflex. He testified that he has been on the medication, Nexium for a number of years with respect to this condition. The appellant testified that he is fearful of putting anything into his mouth for a fear of choking and possibly falling into unconsciousness.

16In a letter dated August 17, 2018, gastroenterologist, Dr. Lay Lay Win wrote, “Mr. Curnew is a 39-year-old male who had a history of intermittent acid reflux for many years and he took PPI [proton pump inhibitor] medication PRN [as needed]. He started to have intermittent regurgitation and vomiting, feeling of food stuck in his throat and occasional choking in last one year. He had a history of 4 episodes of choking in last week and he required Heimlich maneuver. He had upper endoscopy today and it showed small hiatal hernia and severe reflux esophagitis. His symptoms were related to uncontrolled GERD…”.

17In a statement from Mr. Joseph Natale, a close friend of the appellant, Mr. Natale advised that the appellant “has consistently choked in front of him, and often cannot swallow water or food…”. In his testimony, Mr. Natale stated that he has known the appellant since 2019 and has observed him choking five or six times. He testified that the appellant advised him that the choking is due to his GERD condition. Mr. Natale also confirmed the appellant’s testimony when he stated that the appellant has told him that, due to this condition, he is fearful of putting anything inside of his mouth.

18With respect to the GERD issue, in her written statement, Dr. Kilislian expressed that her husband suffers from chronic GERD and that he regularly chokes on his food and has choked to unconsciousness numerous times.”

19As with the appellant’s PTSD, the Registrar did not dispute the medical evidence of the appellant’s diagnosis of GERD, nor contest that he suffers from that condition.

20We are therefore satisfied from the evidence presented that the appellant suffers from GERD.

b) Circumstances of the Arrest

21The appellant testified that, on the night of June 5, 2024, he and Stephanie Wollman, a registered dental hygienist who works with Dr. Kilislian with respect to the appellant’s dental needs, went to a dental clinic in Toronto in order to pick up some topical Hurricane Spray (a topical anesthetic) for the appellant’s dental pain and throat irritation. The appellant was driving.

22Once parked or stopped across from the dental location, Officer Sidhu of the Toronto Police Service approached the vehicle. According to the written testimony of Stephanie Wollman, Officer Sidhu asked the appellant to show him the keys and roll down the driver’s side window. When the appellant did so, Officer Sidhu grabbed the keys and choked the appellant. Ms. Wollman wrote that other officers “joined in on the assault”.

23The appellant testified that when Officer Sidhu approached the vehicle, he was argumentative and indicated that he believed that the vehicle was stolen. At that time, four or five marked police vehicles pulled up to the scene. The appellant testified that Officer Sidhu then pulled him out of the vehicle, cuffed him and placed him under arrest, and placed him in the rear of a police vehicle. It was the appellant’s understanding that he was arrested for operating the vehicle while under the influence of cocaine.

24The appellant testified that he was in a “state of abject panic due to being taken violently out of his car” and “was in a tailspin” and was “having a breakdown” as a result of being taken violently out of the vehicle. He testified that he didn’t know why it was happening.

25Police Constable (“PC”) Helio Choi of the Toronto Police Service testified that, while Officer Sidhu was speaking with the appellant at the scene, he arrived at the scene separately and approached the vehicle. PC Choi testified that, as he observed that the appellant was acting belligerently and refused to step out of the vehicle. He testified that, eventually, the appellant exited the vehicle and was escorted to PC Choi’s vehicle. PC Choi testified that he detected the odor of alcohol on the appellant as he was being led to the police vehicle.

26PC Choi testified that the appellant seemed to be fixated on the impression that he was being arrested for weapons and/or drug charges, when, in fact, PC Choi testified the appellant was arrested for the impaired use of a vehicle under s. 320 of the Criminal Code of Canada.

27Both PC Choi and the appellant testified that he was taken to 32 Division of the Toronto Police Service. There the appellant was required to submit to a sobriety test with the use of a breathalyzer. The appellant testified that, because of his fear of putting objects into his mouth, he was fearful that he would choke and, perhaps, be placed in a cell in an unconscious state. The appellant testified that he offered to perform other tests such as a blood or a urine sample. He also asked to be taken to the hospital for testing. In his testimony PC Choi confirmed this request by the appellant but did not see any reason for the appellant to be taken to the hospital. PC Choi also testified that the appellant still seemed confused as to the nature of his charges, still believing that he had been arrested for the operating while under the influence of cocaine and/or for weapons related charges. The appellant testified that his state of confusion and panic was compounded by multiple electrical black outs at the station while the appellant was there.

28The appellant ultimately refused to submit to the breath test. The appellant testified that he did tell the police of his medical conditions that was the basis for his wanting to go to a hospital rather than to complete the breathalyzer. The appellant testified that on June 7, 2024, he attended an appointment with Dr. Stephanie Zhou at Sunnybrook Hospital and submitted a urine sample for point of care urine testing for the presence of substances. That urine sample was negative for the presence of cocaine. The appellant testified that he was advised by Dr. Zhou that neither a blood test nor a point of care urine test done at that late stage could address the presence of alcohol in his system at the time of the arrest.

Analysis and Conclusion

29The question before us is whether the appellant refused to comply with a demand made under s. 320.27 or 320.28 of the Criminal Code (Canada) because he was unable to do so for a medical reason.

30The evidence before us is that the appellant suffers from both PTSD and GERD. The Registrar did not contest any evidence that establishes those medical conditions.

31The appellant submits that both the PTSD which was, at least in part, caused by a traumatic incident of being stabbed in the mouth, and GERD, which produced a fear of placing any objects in his mouth for fear of choking, provides justification for him not submitting to the required breath test.

32The Registrar submits that the appellant did not and would not provide the breath sample and did not verbalize to the Breath Technician in charge of administering the breath sample that he had medical reasons for not doing so.

33Whether the appellant expressed those reasons for refusing the breath test or not, we find that the medical evidence before us establishes on a balance of probabilities that the appellant had medical reasons for refusing to provide the breath sample. While the fear of placing an object in one’s mouth may not create a rational anxiety in the mind of an average individual, the appellant’s combined conditions of PTSD (exacerbated by the events of the arrest and detention) and GERD lead us to conclude that the appellant refused to comply with a demand to provide a breath sample under s. 320.27 or 320.28 of the Criminal Code (Canada) because he was unable to do so for a medical reason.

Order

34For the reasons set out above, pursuant to subsection 50(4) of the Act, we set aside the decision of the Registrar.

Dr. Erica Weinberg, Member

Jeffery Campbell, Vice-Chair