Allana Persaud v. Registrar of Motor Vehicles, 2025 CanLII 62725

Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 17077/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:

Allana Persaud

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

PANEL: Dr. David To, M.D. Avril A. Farlam, Vice-Chair

APPEARANCES: For the Appellant: Rick Frank, Counsel For the Respondent: Stephen Grootenboer, Agent

Heard by teleconference: June 9, 2025

DECISION

Overview

1Allana Persaud, the appellant, appeals from a suspension of her 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 February 9, 2025 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 her Notice of Appeal is that she failed or refused to comply with a demand made under s. 320.27 or s. 320.28 of the Criminal Code (Canada) because she was unable to do so for a medical reason, specifically, “she does not have the lung capacity to provide the suitable breath sample” due to her asthma, her recent respiratory illness and prolonged symptoms, her anxiety and breathing regulation impairment.

ISSUE

3The issue to be determined is whether the appellant failed or refused to comply with a demand under s. 320.27 or s. 320.28 of the Criminal Code (Canada) because she was unable to do so for a medical reason, specifically her asthma, her recent respiratory illness and prolonged symptoms, her anxiety and breathing regulation impairment.

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 she failed or refused to comply with a demand under s. 320.27 or 320.28 of the Criminal Code (Canada) because she was unable to do so for a medical reason, specifically her asthma, her recent respiratory illness and prolonged symptoms, her anxiety and breathing regulation impairment.

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 she was unable to do so for a medical reason.

9Although the appellant states in her Notice of Appeal that the Crown Attorney has withdrawn the charge, and repeated this at the hearing, the disposition of any criminal charge against the appellant is not relevant to our determination of whether the appellant has established on a balance of probabilities that she failed or refused to comply with a demand under s. 320.27 or 320.28 of the Criminal Code (Canada) because she was unable to do so for a medical reason.

10After considering the totality of the evidence, we find that the appellant has failed to establish that she failed or refused to comply with a demand under s. 320.27 or 320.28 of the Criminal Code (Canada) because she was unable to do so for a medical reason, specifically her asthma, her recent respiratory illness and prolonged symptoms, her anxiety and breathing regulation impairment. Our reasons are as follows.

11In her Notice of Appeal, the appellant submitted that she was not able to provide a suitable breath sample because of medical reasons, specifically her asthma, her recent respiratory illness and prolonged symptoms, her anxiety and breathing regulation impairment. The medical evidence submitted by the appellant is a medical opinion letter dated February 19, 2025 from Dr. Rajeev Erry, her family physician. We give little weight to Dr. Erry’s letter for the following reasons.

12Firstly, Dr. Erry’s opinion is vague and not definitely stated. Dr. Erry states that the appellant has multiple medical conditions that “could have” affected her ability to comply with a breath demand.

13Secondly, although Dr. Erry confirms that the appellant takes Ventolin and Zenhale to manage her asthma, Dr. Erry makes no comment on whether the appellant had medication with her at the time of the breath demand, whether she used it, or whether it would have helped to manage her condition at the time of the breath demand. This would indicate that either Dr. Erry is unaware of what occurred at the time of the breath demand or prefers not to comment on the effectiveness or lack thereof of this prescribed medication for the appellant.

14Further, although Dr. Erry describes a longstanding history of asthma, there is no detail on the severity of the appellant’s condition and whether the appellant’s asthma has been well-controlled. This is unhelpful to us because there can be a wide range of symptoms based on severity and the corresponding treatment.

15Thirdly, although Dr. Erry states that the appellant “over the past months” suffered from a prolonged respiratory infection, he refers to treatment on December 16 and January 9, 2025 but does not reveal whether the appellant still had this “respiratory illness and prolonged symptoms” on February 9, 2025, or whether she was still undergoing treatment at that time. Further, Dr. Erry states only that the cumulative effects of this prolonged infection, in conjunction with their underlying asthma, “would have further compromised” their ability to produce a sufficient breath sample.” Dr. Erry does not state definitively that the appellant was unable to comply with the breath demand for a medical reason.

16Fourthly, although Dr. Erry refers to the appellant’s anxiety, which can lead to hyperventilation and breath-holding, he opines only that this condition “could have” further impaired their ability to comply.

17Fifthly, the ultimate conclusion of Dr. Erry is that with respect to the cumulative impact of asthma, recent respiratory illness, reliance on inhaled medications, anxiety and cold weather exposure, “it is possible” that the appellant was unable to perform the breathalyzer test. Dr. Erry does not opine that these conditions had that effect on the appellant on February 9, 2025 or give details of how this occurred. As a result, we find the evidence of Dr. Erry falls short. The onus is on the appellant to establish that she was unable to comply with the breath demand for a medical reason on a balance of probabilities, not that this was “possible.” Further, we find that Dr. Erry’s opinion is based on general information about the appellant's conditions, and he makes no reference to the appellant's actual conduct on February 9, 2025.

18The appellant’s testimony does not support a finding that at the time she was asked to take the breathalyzer test, she was unable to do so for a medical reason. The appellant testified that she was well on February 9, 2025 and had been using alcohol.

19The appellant testified that she made a total of 18 attempts but did not have enough breath to give the required sample because of her medical conditions and the cold weather. Further, she testified that she did not have any known issues with her jaw, teeth or lips.

20However, the appellant admitted in her testimony that she was able to walk from her vehicle to the place where the breath sample was given, talked to the officer, asked the officer many questions about process and procedure, asked for time to read a document she was given, and asked for time to recover her breath between blows. The appellant said that she had an inhaler with her at the time but did not ask to use it to manage her asthma. The appellant also conceded that although she suffers from generalized anxiety disorder and panic disorder, she is no longer taking medication for these conditions.

21The appellant said that she took her inhaler right away when she got home after the breath test because she felt wheezy and distraught but did not see Dr. Erry until February 11, 2025 at which time he listened to her lungs but did not do any further testing.

22The appellant also testified about her asthma history. She explained that she saw a pulmonologist years ago because her asthma was not well-controlled and was thus prescribed regular steroid inhalers and bronchodilators, which we understand to be the Zenhale and Ventolin that she routinely used and was adherent to in February 2025. She testified on a separate episode in around May 2025 shortly before this hearing – she explained she was gasping for air and unable to speak and required dozens of doses of bronchodilators administered by paramedics and was discharged later that day from the emergency department.

23Constable Colin Campbell, a police officer for some 19 years has worked as a breath technician for 12 years. Constable Campbell testified with the aid of his notes. Constable Campbell said the appellant had no trouble walking some 20 metres distance to where the breath sample was to be taken, and she was not coughing or wheezing even though it was a cold night.

24Constable Campbell reviewed all of the 18 times that the appellant was asked to give a breath sample and the results. Many of the attempts resulted in no air at all being blown into the breathalyzer. He testified that he observed the appellant pushing her lips up against the straw, but she did not appear to be blowing any air into the breathalyzer. He testified that he told the appellant she had to blow air and demonstrated for her himself how to blow but she did not blow sufficiently and on the last attempt appeared to be blowing and then sucking the straw.

25Constable Campbell confirmed that the appellant asked him questions during the time he was attempting to obtain her breath sample. The appellant asked him if it mattered that she was asthmatic, and he assured her that asthma does not prevent a person from giving a sufficient breath sample. Constable Campbell testified that he did not observe any medical condition that would prevent her from giving a breath sample and that he spent more time than usual with the appellant to give her ample opportunity to provide a sufficient breath sample. Constable Campbell said he did not recall the appellant coughing and said she was quite articulate in her conversation and when asking questions of him. The appellant did not ask him if she could access her puffer or any other medication.

26Constable Campbell said that the breath sample requires approximately 1.2 litres of breath which is not a lot and in 12 years as a breath technician he has never seen an honest attempt fail. He testified that it was apparent to him that the appellant was able to give a sufficient breath sample but did not do so. He allowed her enough time to catch her breath between samples although she did not appear in any distress, did not appear to have difficulty breathing, was not coughing, choking, or wheezing and talked to him often during the time of the sample process (from 22:02 to 22:16). He did testify that the appellant was hyperventilating at the time she was released later in the evening (at 23:05). Constable Campbell testified that it appeared to him as if the appellant did not want to supply a breath sample even though he gave her ample opportunity to do so.

27We prefer the testimony of Officer Campbell and find it to be more credible and reliable than that of the appellant. Officer Campbell is an experienced police officer and breath technician, his testimony is supported by notes, and withstood cross-examination.

28Based on the testimony of Officer Campbell, we find that a demand for a breath sample was made on February 9, 2025, was acknowledged by the appellant to be understood, and then refused by the conduct of the appellant who provided insufficient breath to constitute the required sample. Officer Campbell observed no medical conditions that would prevent the giving of a sufficient breath sample, the appellant had no problems communicating and asking questions of Officer Campbell which would be expected if the appellant was having trouble breathing, she was able to walk some distance in the cold, did not ask for medical attention and did not ask to use her puffer or other medication. The appellant testified that she was well that day and had been using alcohol.

29However, based on the evidence available for this appeal, we find that although her symptoms may have possibly made it more difficult for her to complete the February 9, 2025 breathalyzer test after having attempted numerous times, we are not satisfied her medical condition would have made it unable for her to do so.

30We find that the report from Dr. Erry and testimony of the appellant is not sufficient to support a finding that the appellant was unable to complete the breathalyzer test satisfactorily on February 9, 2025 for a medical reason.

31The onus is on the appellant to prove that her medical conditions, specifically her asthma, her recent respiratory illness and prolonged symptoms, her anxiety and breathing regulation impairment, were 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 her medical evidence fall short of establishing this.

32As a result, we find that the appellant failed to provide sufficient evidence to establish on a balance of probabilities that she failed or refused to comply with the breathalyzer demand for a medical reason, specifically her asthma, her recent respiratory illness and prolonged symptoms, her anxiety and breathing regulation impairment.

CONCLUSION

33For the reasons above, we find that the appellant has failed to establish that she failed or refused to comply with a demand under s. 320.27 or 320.28 of the Criminal Code (Canada) because she was unable to do so for a medical reason.

ORDER

34We confirm the Registrar’s decision to suspend the appellant’s driver’s licence.