Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
FILE: 7694/ADLS
CASE NAME: 7694 v. Registrar of Motor Vehicles
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(2) of that Act; - to Appeal a 90-Day Administrative Driver’s Licence Suspension
Applicant
Applicant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Dr. David Borenstein
APPEARANCES:
For the Applicants: Self-represented
For the Respondent: Mr. Kyle Biel
Heard by teleconference: November 14, 2012
REASONS FOR DECISION
A teleconference hearing was held on November 14, 2012, at Toronto, Ontario, to consider the Applicant's appeal pursuant to section 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA").
The Applicant appealed, by way of a Notice of Appeal under section 50.1 of the HTA, the order of the Registrar of Motor Vehicles (the "Registrar") dated September 14, 2012.
Reasons for the Appeal
The reasons for the appeal set out in the Notice of Appeal are summarized as follows:
- The Applicant suffered injuries in a motor vehicle accident on September 14, 2012 that included a possible concussion. In his opinion, this head injury left him unable to make reasonable medical decision and thus he left the hospital with no investigations completed, and against medical advice.
- Although the Applicant claims to not remember any of the events around the time of his accident, he feels that not accepting medical attention shows lack of rational judgement.
- In the days following the accident and upon the return of cognitive clarity, the Applicant stated he sought the medical attention he required.
- The Applicant also maintains that the Emergency Department (“ED”) physician, who assessed him on two ED visits, including the initial visit, told him that a concussion could cause him to make these irrational decisions.
- The Applicant’s family physician, Dr. B.J., wrote a letter confirming that he had attended the ED, refused treatment and that the Applicant did not remember the same physician on subsequent visits. This information was based on the emergency physician’s medical notes that Dr. B.J. read. Another physician, Dr. R. A. also saw the Applicant and diagnosed concussion. Dr. B.J. noted the Applicant to be lethargic with no specific neurological injury when he assessed him on September 2, 2012. Dr. B.J. reiterated twice in his note that he had no personal information pertaining to the acute stages of this incident.
- The Applicant submitted the ER note dated September 16, 2012 and the progress notes from the ED visit dated September 14, 2012 as part of his Notice of Appeal.
ISSUE
FACTS
On September 14, 2012 the Applicant got into a motor vehicle accident and was ejected from his car. He was found lying face down in a ditch. A witness who heard the accident and drove down the street to find the Applicant, subsequently called the EMS, who in turn notified the Ontario Provincial Police (OPP). Police arrived on scene and followed the Applicant to the local Emergency Department, where the OPP requested an alcohol blood sample. The Applicant refused any medical treatment or intervention and was released to the care of the police. He was charged with failure to provide a blood sample and a 90 -day suspension of his driver’s licence was imposed. The Applicant and Registrar mutually agree on these facts.
The Applicant offered no new information other than that stated in the above summary of the Notice of Appeal. He states his mental confusion at the time of the accident stopped him from providing the requested blood sample or accepting any medical attention. He needs his driver’s licence for his work as a contractor. He also suggested that this suspension impacts on his constitutional rights. The Registrar objected to this challenge as the Applicant chose to appeal the driving suspension for medical reasons. The Applicant withdrew this argument.
The Registrar states that since the Applicant has no memory of the events that occurred when he was first brought to hospital, he therefore cannot claim he was unable to make a rational decision. At best, he is guessing this to be the reason for refusal to supply a blood sample to the OPP. When asked if it is possible that he made a rational decision to not give a blood sample, the Applicants’ response was “I don’t know”. When asked if he had consumed alcohol prior to the accident, the Applicants’ response was “I was not impaired” and then stated “no” when the Registrars’ representative re-asked the question.
When examining the ED note submitted by the Applicant in his Notice of Appeal, it was noted that the triage portion states, “In MVC Fri evening. Brought in by ambulance, Didn’t want to be examined until spoke with lawyer.” The Registrar submits that this shows the Applicant had reasonable cognitive abilities at the time of the accident and upon his initial arrival to the ED.
The Registrar also states that none of the medical documents provided by the Applicant contain a statement by a medical professional, that he was unable to consent to a blood sample on the initial ED visit. Furthermore, no written documentation has been provided by the Applicant to support his claim that the ED physician said his concussion could cause him to make irrational decisions.
The Registrar’s witness, OPP Constable M. Bartlett, stated that based on his notes from the event and his independent recollection, a witness at the scene stated that the Applicant tried to flee once he realized that the police were on their way, not just an ambulance. The officer followed the ambulance to the hospital and reported a very strong alcohol smell from the ambulance when the doors opened to bring the patient into the ED. The police requested a test of his blood alcohol level. The Applicant refused to speak with police and told both the police and the physician he wanted to speak to his lawyer, Mr. L.P. A message was left for this lawyer on his home line. The Applicant refused duty counsel when discharged from the hospital and brought back to the police station for processing. He made it clear to police that only wanted his personal lawyer.
The Registrar maintains that the actions described by Constable Bartlett clearly show that the Applicant had the ability to critically think about what was happening and to make informed choices. The Registrar states that the police did not ask for a breath sample as that may have been difficult based on the Applicant’s physical injuries, but that a blood sample would have been physically appropriate and was declined despite apparent sound judgement. The Applicant did not choose to cross-examine the police officer.
ISSUE
Did the Applicant fail or refuse to comply with a demand made under section 254 of the Criminal Code (Canada) because he or she was unable to do so for a medical reason?
LAW
The legislation governing the Administrative Drivers Licence Suspension (ADLS) under subsection 50.1(1) and (2) of the HTA states:
50.1(1) “A person whose driver’s licence is suspended under Section 48.3 may appeal the suspension to the Tribunal.
(2) The grounds on which a person may appeal under subsection (1) and the only grounds on which the Tribunal may order that the suspension be set aside are,
(a) that the person whose licence was suspended is not the same individual to whom a demand was made, or from whom a sample was taken, or who performed physical co-ordination tests or submitted to an evaluation, as the case may be, under section 254 or 256 of the Criminal Code (Canada); or
(b) that the person failed or refused to comply with a demand made under section 254 of the Criminal Code (Canada) because he or she was unable to do so for a medical reason”.
The HTA states under Section 50.1(4):
The [Tribunal] may confirm the suspension or may order that the suspension be set aside.
Rule 15.3(b) and (c) of the Tribunal's Rules of Practice states:
15.3 In addition to the provisions of Rule 15.2, the following Rules apply to appeals pursuant to Section 50.1 of the Act:
(b) A report of a legally qualified medical practitioner that is to be submitted in evidence shall clearly state,
(i) the name, telephone number and address, with the postal code, of the medical practitioner;
(ii) the name, date of birth and address of the person who is the subject of the report;
(iii) That the medical practitioner has prepared the report, or is aware that the report may be used, in support of an appeal to the Tribunal from the suspension of a driver’s licence under section 50.1 of the Act;
(iv) the length of time and frequency with which the medical practitioner has attended upon the person who is the subject of the report, including the date of the most recent examination of the person that supports the findings set out in the report;
(v) whether the medical practitioner is the family physician of the person who is the subject of the report; and
(vi) whether the medical practitioner is a specialist and, if so, the field of specialty.
(c) The report referred to in subrule (b) shall
(i) provide the details of any present condition, diagnosis and history of the condition that precludes the person who is the subject of the report from providing a breath or blood sample including the results of any related tests, and
(ii) be signed by the medical practitioner.
Finally, Rule 15.3(a) the Tribunal's Rules of Practice states of states:
(a) The Applicant has the onus of establishing the merit of the appeal.
APPLICATION OF THE LAW TO FACTS
The issue at hand is whether or not the Applicant was unable to supply a sample of blood based on medical reasons.
The Applicant’s argument is based on his feeling that he was not making rational decisions at the time of the accident due to a head injury and concussion. Although he has provided enough evidence to suggest he does have a diagnosis of concussion, he offers no objective evidence that suggests that this injury interfered with the ability to consent to a blood test.
On the other hand, the Registrar has shown that the Applicants’ own submitted evidence reads that he wanted a lawyer at the time of the accident. PC Bartlett’s credibility was not questioned. He states clearly that the Applicant asked for a lawyer by name, refused to give a sample, and refused to talk to police, all of which occurred after the Applicant tried to flee the scene of the accident when he realized police were on route.
This evidence, without any further information provided by the Applicant that would illuminate the history or refute the information provided by the Registrar and their witness, overwhelmingly suggests that at time of the accident and during the initial ED visit, the Applicant was capable of making rational decisions, even if he has since forgotten what occurred during that time.
The Tribunal finds that the Applicant has failed to satisfy the onus of proof upon him to establish, on a balance of probabilities, that he suffered from a medical condition that precluded his compliance with the demand made under section 254 of the Criminal Code to provide a sample of blood because he was unable to do so for a medical reason.
DECISION
Upon the application by the Applicant to appeal the suspension order of the Registrar dated September 14, 2012 pursuant to section 48.3 of the HTA and having considered the documents filed, the evidence from the parties and the submissions of the Registrar and of the Applicant;
Pursuant to the authority vested in it under section 50.1(4) of the HTA, the Tribunal confirms the suspension.
LICENCE APPEAL TRIBUNAL
Dr. David Borenstein,
Presiding Member
RELEASED: November 21, 2012