Tribunal File Number: 12310 ADLS
Appeal under Section 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a decision under Section 48.3.1 of that Act – to Suspend a Licence
Between:
Shawn Sohan Sarin
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Avril A. Farlam, Vice-Chair
APPEARANCES:
For the Appellant: Shawn Sohan Sarin, Self-represented
For the Respondent: Kyle Biel, Agent
Heard by teleconference: November 13, 2019
REASONS FOR DECISION AND ORDER
Overview
1On September 11, 2019 the appellant Mr. Sarin was arrested by the police following a motor vehicle incident on the Q.E.W. highway and was evaluated by a police officer as to whether his ability to operate a motor vehicle was impaired by a drug or a combination of drug and alcohol. Following the evaluation, the police officer formed the opinion that Mr. Sarin’s ability to operate a motor vehicle was impaired by a drug. As a result, he exercised his power under section 48.3.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) to suspend Mr. Sarin’s driving licence for 90 days.
2Mr. Sarin asks me to set aside the 90-day suspension. He argues that there was no alcohol or illegal drugs in his system on September 11, 2019 and also argues he is receiving treatment for mental health and this may have impacted his performance on the evaluation.
3The appellant’s appeal was heard by teleconference on November 13, 2019.
ISSUE
4The issue in this appeal is whether the suspension of the appellant’s driver’s licence should be set aside on the grounds that:
a. the appellant’s ability to operate a motor vehicle was not impaired by a drug, or a combination of a drug and alcohol, and
b. the appellant had a medical condition at the time of suspension that impaired his performance of the evaluation that was conducted under s. 254 of the Criminal Code (Canada).
CONCLUSION
5For the reasons that follow, I find that the appellant has failed to prove that his ability to operate a motor vehicle was not impaired by drug (or a combination of drug and alcohol) and failed to prove that his performance of the evaluation was impaired by a medical condition. Accordingly, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.
LAW
6A person whose driver’s licence has been suspended under section 48.3.1 of the HTA may appeal the suspension to the Tribunal under section 50.1 of the HTA.
7Section 50.1(2)(a) and (b) of the HTA sets out the two grounds on which on a person may appeal a s. 48.3.1 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’s ability to operate a motor vehicle was not impaired by a drug or by a combination of a drug and alcohol, and the person had a medical condition at the time of the suspension that impaired his or her performance of the evaluation that was conducted under section 254 of the Criminal Code (Canada).
8Following 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.
9The appellant has the burden proof in this appeal. Section 50.1(2)(b)(ii) requires the appellant to prove two things in order to be successful in his appeal. Firstly, appellant must prove that his ability to operate a motor vehicle was not impaired by drug (or a combination of drug and alcohol) and secondly the appellant must prove that his performance of the evaluation was impaired by a medical condition.
EVIDENCE AND ANALYSIS
a. Was the appellant’s ability to operate a motor vehicle impaired by a drug, (or a combination of a drug and alcohol)?
10The appellant testified that he did not have alcohol in his system at the time of suspension on September 11, 2019. At the hearing respondent’s witness Constable L. admitted there was no reasonable suspicion that the appellant had alcohol in his body at the time of the suspension. Based on this admission I find that the appellant’s ability to operate a motor vehicle on September 11, 2019 was not impaired by a combination of a drug and alcohol.
11The real issue is whether the appellant’s ability to operate a motor vehicle was impaired by a drug on September 11, 2019. I find that the appellant failed to provide sufficient evidence that his ability to operate a motor vehicle was not impaired by drug.
12The appellant testified that he had no illegal drugs in his system on September 11, 2019. However, he admitted he had taken Dalatiid, a drug prescribed by his family physician, at 11:00 a.m. or 12:00 noon on September 11, 2019 and Seroquel the night before. The Notice of Suspension records that [Mr. Sarin was involved in a motor vehicle incident which occurred on the Q.E.W. at 12:37 p.m. on September 11, 2019. He said that he asked for a blood test or breathalyzer, but the police officer said it was not needed.
13Constable L., a police officer for the Halton Regional Police Service since 2011, testified with reference to his notes. His testimony was substantially consistent with his notes which were filed at the hearing together with the Halton Regional Police Service Drug Influence Evaluation Narrative and Drug Influence Evaluation completed by Constable L. about the examination of the appellant on September 11, 2019. Constable L. has received specialized training as a Drug Recognition Expert in Canada and in the United States and has been an evaluating officer under subsection 254(3.1) of the Criminal Code (Canada) since 2016. Constable L. testified that the appellant was arrested by another police officer at 2:03 p.m. on September 11, 2019 and then was brought to Constable L. to conduct a drug influence evaluation. The appellant agreed to do the examination and did not appear to be nervous. The examination was conducted in accordance with a standardized 12 step protocol. The testing methodology and results of the evaluation were described in detail by Constable L in his testimony.
14Constable L. said that there was no reasonable suspicion that there was alcohol in the appellant’s body and therefore he skipped step 1 of the evaluation which would have been a breath test. During the remaining 11 steps Constable L. observed that the appellant spoke slowly, moved slowly, could not keep his balance, swayed back and forth, skipped numbers when counting, had leg tremors, eyelid tremors, could not complete the touching of his nose test correctly, had hair missing in one nostril consistent with the ingestion of drugs, had flaccid muscle tone and admitted to taking Abilify, Seroquel and two milligrams of Dalatiid at 12:00 noon on September 11, 2019 at the hospital. Constable L. testified that Dalatiid is a powerful narcotic drug and that Seroquel is a powerful anti-depressant.
15Constable L. testified that based on the test results of the appellant and his experience, his opinion on September 11, 2019 was that the appellant’s ability to operate a motor vehicle was impaired by central nervous system depressant drug and central nervous system stimulant drug.
16I accept the evidence of Constable L. which was not challenged in cross examination by the appellant or countered by any contrary evidence from the appellant.
b. Did the appellant have a medical condition on September 11, 2019 that impaired his performance of the evaluation conducted under s. 254 of the Criminal Code (Canada)?
17The appellant testified that he was nervous during the evaluation. The appellant also stated in his Notice of Appeal that he is receiving treatment for mental health, seeing a counsellor and social worker and attached five reports from his health care providers. The five reports confirm that the appellant is receiving medical care but none of the reports diagnose a medical condition or state that there is a correlation between the appellant’s medical condition on September 11, 2019 and his performance on the evaluation. None of the five reports confirm prescriptions for medication. These five reports are unhelpful and not specific enough to prove that the appellant’s medical condition impaired his performance on the evaluation on September 11, 2019. The onus is on the appellant to prove that his medical condition impaired his performance on the evaluation. The appellant’s testimony and his medical evidence fall short of establishing this.
18Constable L. testified that during the evaluation on September 11, 2019 the appellant was calm and co-operative. Constable L.’s testimony was clear, detailed and supported by his notes and reports and I find it to be more credible than that of the appellant.
19I find that the appellant failed to provide sufficient evidence that his performance of the evaluation was impaired by a medical condition.
ORDER
20I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.
Date of Issue: November 26, 2019
____________________________
Avril A. Farlam, Vice-Chair