Date: 2018-05-31

Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H. 8, from a decision of the Registrar of Motor Vehicles to suspend a driver’s licence under subsection 47(1) of the Act

Between:

W. P.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Peter Savage, Member Joanne E. Foot, Member

Appearances:

For the Appellant:

W.P., self-represented

For the Respondent:

Kyle Biel, Agent

Place and date(s) of hearing: By Teleconference

March 26, 2018

REASONS FOR DECISION AND ORDER

A. Overview

1The appellant is a 57-year-old man whose driver’s licence was suspended after an emergency room physician filed a Medical Condition Report dated July 21, 2017 with the Registrar of Motor Vehicles (the “Registrar”) pursuant to section 203 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). This section of the HTA requires all medical practitioners to report any person older than sixteen who is suffering from a condition that may make it dangerous for the person to drive. By letter dated July 26, 2017, the Registrar of Motor Vehicles suspended the appellant’s driver’s licence under s. 47(1) of the HTA on the basis of substance use/abuse.

2The question for our determination is whether the appellant suffers from a mental or physical condition that is likely to significantly interfere with his ability to drive safely.

B. RESULT

3For the reasons set out below, we find that:

a. the appellant suffers from the mental condition of using and abusing drugs; and

b. the Registrar has established that the appellant is affected by the use and abuse of drugs to an extent likely to significantly interfere with his ability to drive safely.

4For these reasons, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

C. ISSUES

5The issue in this appeal is whether the appellant suffers from a mental or physical condition, namely, the use or abuse of drugs, to an extent that is likely to significantly interfere with his ability to drive safely.

6To answer that question, we will consider the issues stated below separately:

a. Does the appellant suffer from a mental, emotional, nervous or physical condition, namely, the use or abuse drugs?

b. Is the appellant’s mental, emotional, nervous or physical condition, if any, likely to significantly interfere with his ability to drive safely?

D. LAW

7The Registrar has the power under s. 47(1) of the HTA to suspend or cancel a driver’s licence. In this case, s. 47(1)(g) is the relevant ground for suspension. It states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

8One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is that the driver suffers from a medical condition or disability likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) under the HTA states:

(1) An applicant for or a holder of a driver’s licence must not,

(a) suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely;

9According to s. 14(2)(a) of the Regulation, if the Minister of Transportation is determining whether the requirements of s. 14(1) are met, the Minister may take into consideration the Canadian Council of Motor Transport Administrators (“CCMTA”) Medical Standards for Drivers, which are published by the Canadian Council of Motor Transport Administrators. Similarly, the Tribunal may take the CCMTA Medical Standards for Drivers into consideration, although they are not binding requirements.

10The Registrar has the burden to establish the grounds for suspending the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.

E. ANALYSIS

a. Does the appellant suffer from a mental, emotional, nervous or physical condition, namely, the use or abuse of drugs?

11We find that the use or abuse of drugs is properly considered a mental condition. The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, commonly referred to as the DSM-5, is the standard classification of mental disorders used for clinical and other purposes in Canada and elsewhere. The DSM recognizes substance-related disorders resulting from the use of a number of drugs including opioids (which includes fentanyl and methadone) and stimulants (which includes cocaine) as mental disorders.

12The appellant has a history of drug dependence, use and abuse. Addiction to opiates was confirmed by the appellant in his oral testimony. The Agent referred to a Substance Abuse Assessment form dated August 22, 2012 submitted to the Ministry in connection with an earlier driver’s licence suspension. This document indicates that the appellant had been an intravenous drug user. It also notes that the appellant, at that time, was using cocaine and opiates on an occasional basis and was taking prescribed methadone under a methadone program in which he was then enrolled.

13The appellant testified that he has since tapered off methadone and that he has not taken any opiates or other illicit drugs for about five years.

14The Medical Report form dated July 21, 2017 ticked the box for “Drug Dependence” and included the following description in the “Optional” portion of the form:

Patient found drowsy in motor vehicle collision with drug paraphernalia. He admits to using heroin. He has no recollection of incident.

15The appellant described the events leading up to his emergency room admission. On the previous day, he had a chance encounter with a person he had known from years ago when he was using drugs regularly. This acquaintance gave him a small packet of cocaine. The appellant acknowledged that he did not know why he put the cocaine in his pocket after being “clean” for five years and described the amount of cocaine as miniscule. He ingested the cocaine the next morning, a short time before getting into his car to drive to work.

16The appellant stated that he knew something was wrong almost immediately after beginning his drive to work. He testified that he was not feeling well and was struggling to maintain consciousness as he was driving. In consequence, he took steps to move his vehicle to the side of the road and to come to a stop before passing out. In the process, he bumped a parked car which sustained no damage. At some point thereafter, the police found him unconscious and had him taken to hospital by ambulance, where Narcan, a drug used to reverse opioid overdoes, was administered.

17The appellant submits that he was “poisoned” in that the cocaine he ingested was laced with fentanyl. The appellant submitted as evidence a Toxicology Letter of Opinion dated February 21, 2018 which was prepared in connection with the criminal charges arising from this event. The letter of opinion was prepared by an individual having the title “Forensic Scientist, Toxicology” and was stamped as being an exhibit to a sworn affidavit of that scientist. The letter of opinion reports that three substances were found in the appellant’s blood: by-products of cocaine, fentanyl and methadone.

18The appellant maintained throughout the hearing that the incident giving rise to the driver’s licence suspension under consideration is the only time he has used drugs since he tapered off methadone five years ago. He also espoused the view that cocaine does not affect one’s ability to drive.

19We questioned the appellant about the nature of the drug paraphernalia found in the car as reported in the Medical Report form. The appellant was somewhat evasive in answering these questions saying repeatedly that he did not know what was being referred to. Likewise, he could not offer any explanation as to why methadone was found in his blood taken at the hospital.

20At the time his licence was suspended in August 2017, the Registrar requested that the appellant have a Substance Abuse Form completed by a doctor. The appellant has not complied with this request to date. He maintains that he was unable to do so as he does not have a family doctor. He submits that he does not have a doctor as he has “never been sick” and that he is unable to find a doctor in the city where he resides. In other testimony, the appellant acknowledged that he had hepatitis C and had received lengthy treatment for that disease which is inconsistent with his claim of never having been sick. We found the evidence given by the appellant regarding the circumstances of his hospital visit and his current use of illicit drugs to be unreliable.

21The appellant admits his prior addiction to opiates and use of other illicit drugs. He also gave evidence that it is very hard to get off substances like cocaine and heroin. He acknowledged, in effect, that he was unable to resist the offer of the cocaine and he ingested the cocaine almost immediately, within 12 hours. He did this knowing very well that taking drugs before driving can lead to undesirable consequences in his life – loss of licence and livelihood. We find that his past addiction, together with his apparent inability to resist drugs, amounts to a mental condition, namely the use and abuse of drugs.

b. Is the appellant’s mental, emotional, nervous or physical condition, if any, likely to significantly interfere with his ability to drive safely?

22The Registrar has the burden to establish that the appellant’s mental condition will significantly interfere with his ability to drive safely. The Agent put into evidence a copy of the appellant’s driving record extracted from the records of the Ministry of Transportation.

23The appellant has convictions for driving while impaired in 1983 and 2002. His driver’s licence was suspended on these occasions. In addition, he was convicted of dangerous driving in 1987 when his licence was again suspended. Later in 2002 he was convicted of driving while disqualified or prohibited and his licence was further suspended.

24In 2012 the appellant was driving a car that collided with another vehicle. Following this event, his driver’s licence was suspended for drug use which caused a blackout. The appellant completed a drug treatment program, following which his driver’s licence was restored. Since that time, the appellant has committed the offences of “failing to share the road when overtaking” and “disobeying a traffic signal – red light” in October 2016 and November 2016, respectively.

25The appellant’s driving record demonstrates a pattern of unsafe driving, as well as a pattern of disregard for the law and for public safety.

26In relation to the suspension now under consideration, the appellant testified that he had voluntarily ingested cocaine immediately prior to getting behind the wheel of his vehicle. This, in our view, shows very poor judgement and again, disregard for public safety. Good judgment is an important part of safe driving. We find that the appellant’s mental condition, being the use and abuse of drugs, interferes with the ability of the appellant to abide by the law and, as such, significantly interferes with his ability to drive safely.

27After considering the evidence and submissions of the parties, we find on a balance of probabilities that the appellant suffers from a mental condition, namely drug use and abuse, that is likely to significantly interfere with his ability to drive a motor vehicle safely.

F. ORDER

28For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Registrar’s decision to suspend the Appellant’s driver’s licence is confirmed.