Tribunals Ontario

Licence Appeal Tribunal

Licence Appeal Tribunal File Number: 16443/ADLS

In the matter of an appeal from a suspension under s. 48.3 of the Highway Traffic Act, R.S.O. 1990, c. H.8

Between:

Emery Warner Appellant

and

Registrar of Motor Vehicles Respondent

AMENDED DECISION AND ORDER

PANEL: Dr. Kailey Minnings, M.D. Avril A. Farlam, Vice-Chair

APPEARANCES: For the Appellant: Emery Warner, Self-represented For the Respondent: Ian Sookram and Leila Pereira, Agents

Heard by teleconference: December 18, 2024

Overview

1Emery Warner, the appellant, appeals from a suspension of his driver’s licence under s. 48.3 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). The suspension was made on October 9, 2024 by a police officer under section 48.3 of the HTA for 90 days.

2The appellant seeks to set aside the 90-day suspension. In summary, the appellant’s grounds of appeal as set out in his Notice of Appeal is that he failed or refused to comply with a demand made under s. 320.27 or s. 320.28 of the Criminal Code (Canada) because he was unable to do so for a medical reason, specifically his PTSD, his generalized anxiety disorder, and withdrawal symptoms from an anti-depressant. Additionally, the appellant alleges irregularities during police interaction including the absence of a “clearly communicated breath sample and failure to present the device or outline consequences”.

ISSUE

3The issue in dispute is whether the appellant failed or refused to comply with the demand to provide a breath sample because he was unable to do so for a medical reason.

RESULT

4We confirm the Registrar’s decision to suspend the appellant’s driver’s licence. For the reasons that follow, we find that the appellant has failed to establish that he failed or refused to comply with a demand under s. 320.27 or 320.28 of the Criminal Code (Canada) because he was unable to do so for a medical reason.

LAW:

5A person whose driver’s licence has been suspended under s. 48.3 or s. 48.3.1 of the HTA may appeal the suspension to the Tribunal under section 50.1 of the HTA.

6Section 50.1(2)(a) of the HTA sets out the only 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 who submitted to an evaluation under section 254 of the Criminal Code (Canada), or

ii. that the person failed or refused to comply with a demand under s. 320.27 or 320.28 of the Criminal Code (Canada) because he or she was unable to do so for a medical reason.

7Following 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.

8The appellant has the burden of proof in this appeal.

ANALYSIS:

The appellant did not fail or refuse to comply with the officer’s demand because he was unable to do so for a medical reason.

9After considering the totality of the evidence, we find that the appellant has failed to establish that he failed or refused to comply with a demand under s. 320.27 or 320.28 of the Criminal Code (Canada) because he was unable to do so for a medical reason. Our reasons are as follows.

10In his Notice of Appeal, the appellant submitted that “his inability to comply with the breath sample request was due to medically documented PTSD, Generalized Anxiety Disorder, and recent withdrawal from the antidepressant bupropion”. The only medical evidence submitted by the appellant is a medical opinion dated December 9, 2024 from Dr. Andrew Cheah. We give little weight to Dr. Cheah’s letter for the following reasons.

11Firstly, the appellant confirmed at the hearing that Dr. Cheah, his family physician in British Columbia before the appellant moved to Ontario, last saw him in person in 2022, before the appellant moved to Ontario. Dr. Cheah’s letter entitled “Medical Assessment of Mr. Emery Warner for License Appeal Tribunal Hearing”, does not indicate when he last saw the appellant in person and refers only to an October 8, 2024 “telehealth visit” which pre-dates the October 9, 2024 incident resulting in this appeal. As a result, Dr. Cheah has no knowledge of the October 9, 2024 incident other than the information provided to him by the appellant.

12Secondly, in his assessment, Dr. Cheah does not diagnose PTSD, indicate that the appellant is being treated for PTSD, or opine that PTSD affected the appellant’s cognitive abilities on October 9, 2024. Dr. Cheah does not mention PTSD at all. The appellant testified at the hearing that he was treated for PTSD when he was younger, approximately a decade or more prior to October 9, 2024.

13Thirdly, although Dr. Cheah states that the appellant has “been under my care for the management of ADHD, Generalized Anxiety Disorder and Depression”, and that these conditions are “known to impair cognitive processing and response in high stress or confrontational situations, often leading to confusion, delayed comprehension, and high anxiety”, Dr. Cheah does not opine that these conditions had that effect on the appellant on October 9, 2024 or give details of how this occurred.

14Fourthly, Dr. Cheah states that the appellant “made his own decision” to abruptly discontinue prescribed bupropion, an antidepressant, in “early October 2024”, and opines that the appellant’s “anxiety, depression, ADHD, and withdrawal symptoms, could have likely impacted his comprehension and capacity to respond to the alleged demand”. However, this report is not specific. This report gives no detail as to how or why the appellant’s medical condition could have likely impacted his comprehension and capacity to respond to the demand.

15In our view, the appellant’s evidence does not support a finding that at the time he was asked to take the breathalyzer test, he was unable to do so for a medical reason. That he was not cognitively or otherwise too impaired for medical reasons to respond to the demand is consistent with the appellant’s testimony that he questioned the police about whether they were wearing cameras, that he positioned himself in view of cameras he knew were on the premises, that he asked for time to put his dog inside, and that he asked to have a supervising police officer explain documents to him, and requested access to a lawyer. Further, Dr. Cheah's report is dated December 9, 2024, well after the fact and is necessarily based on the appellant's self-report after the incident, when the appellant would have had an interest in describing symptoms that justified his response to the police demand. Still further, it is based on general information about the appellant's conditions, which contrasted with the description of the appellant's actual conduct on the day of the incident.

16The appellant also testified at the hearing that the police never asked him to take a breathalyzer, and if they did, he did not hear it or understand it because of his medical conditions.

17There is no credible evidence to support either that the police failed to ask the appellant to take a breathalyzer, or that he did not hear or understand it for a medical reason.

18We note that Police Officer Jeff Mussen, testified that he and his partner Officer Bonish dealt with the appellant on October 9, 2024. Officer Mussen, an experienced police officer who testified with the aid of notes, testified that Officer Bonish made the demand for the appellant’s breath sample in his presence. When asked if understood the demand, the appellant acknowledged that he understood, but said he had to put his dog inside. This was recorded in the notes of Officer Bonish which state that the appellant said “…I understand, just let me put my dog inside”. Then the appellant went inside with his dog and slammed the door to the residence shut. Officer Mussen testified that the appellant did not emerge from the residence for some time, and when he did, he was arrested. When given documentation about what had occurred, the appellant asked to have the documents explained to him by a supervisor, and a Sergeant did so. Officer Mussen testified that the appellant did not mention any medical condition, and Officer Mussen did not observe any confusion or inability to provide a breath sample.

19We find not credible the appellant’s testimony that no demand for a breath sample was made, and that the appellant said he was willing to comply with the demand once he was “detained”. The appellant’s evidence on these two points is not corroborated by any other evidence. Although the appellant put forward an unsworn statement of James Hawes, this statement is of no assistance on these two points. Mr. Hawes wrote “…I was listening and never heard anything besides barking and he went inside the house….I was outside and heard nothing but emery entering the house to put his dog inside”. Mr. Hawes did not hear the interaction in issue.

20We prefer the testimony of Officer Mussen and find it to be more credible and reliable. Officer Mussen is an experienced police officer of some 15 years, his testimony is supported by notes, and withstood cross-examination. Based on the testimony of Officer Mussen, we find that a demand for a breath sample was made at approximately 5:15 a.m. on October 9, 2024, was acknowledged by the appellant to be understood, and then refused by the conduct of the appellant who absented himself from the presence of Officer Mussen and his partner, instead of accompanying them to the breathalyzer device in the cruiser at the scene. It is clear from the evidence that a demand for a breath sample was made, clearly communicated to the appellant, acknowledged by the appellant to be understood, and then refused by the appellant’s conduct in removing himself from the scene. Again, the appellant’s conduct as outlined in paragraph 16 above, further supports the conclusion that he was fully capable of hearing and understanding the events in issue.

21We find that the report from Dr. Cheah and testimony of the appellant is not sufficient to support a finding that the appellant was unable to complete the breathalyzer test satisfactorily on October 9, 2024 for a medical reason.

22Although the appellant testified that he was frightened of the police, that he was in a “disorienting environment” because his dog was off-leash, and that the police were yelling, even if true, none of this constitutes a medical reason for failing or refusing the breathalyzer in this case. For the reasons set out above, Dr. Cheah’s evidence has not established this.

23The onus is on the appellant to prove that his medical condition was a reason for failing or refusing to comply with the demand made under s. 320.27 or s. 320.28 of the Criminal Code (Canada). The appellant’s testimony and his medical evidence fall short of establishing this.

24As a result, we find that the appellant failed to provide sufficient evidence to establish on a balance of probabilities that he failed or refused to comply with the breathalyzer demand for a medical reason.

Conclusion

25For the reasons above, we find that the appellant has failed to establish that he failed or refused to comply with a demand under s. 320.27 or 320.28 of the Criminal Code (Canada) because he was unable to do so for a medical reason.

ORDER

26We confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

LICENCE APPEAL TRIBUNAL

Kailey Minnings, M.D.

Avril A. Farlam, Vice-Chair