Date: 2019-01-18

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:

D.Y.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member Joanne E. Foot, Member

Appearances:

For the Appellant: D.Y., Self-represented

For the Respondent: Stella Velocci, Agent

Place and Date of Hearing: By Teleconference November 15, 2018

A. Overview

1The appellant is a 53-year-old man who appeals the suspension of his driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

2In early January 2018, the appellant was investigated by the police on two separate occasions following reports of erratic driving. In each case, he was taken to a hospital and his medical condition was evaluated. Following the first incident, the investigating police service filed a Request for Driver’s Licence Review with the Registrar of Motor Vehicles (the “Registrar”). Following the second incident, the investigating police service also filed a Request for Driver’s Licence Review and the emergency room physician filed a Medical Condition Report with the Registrar.

3By letter dated January 25, 2018, the Registrar of Motor Vehicles suspended the appellant’s driver’s licence under s. 47(1) of the Act on the basis of syncope/loss of consciousness.

4In about April 2018, the Registrar obtained information that the appellant used heroin. The question for our determination is whether the appellant is addicted to the use of a drug, in this case heroin, to an extent that is likely to significantly interfere with his ability to drive safely.

5For the reasons set out below, we find that the appellant is addicted to the use of a drug, namely heroin, to an extent that is likely to significantly interfere with his ability to drive safely.

6For these reasons, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

B. ISSUES

7The issue in this appeal is whether the appellant is addicted to a drug to an extent that is likely to significantly interfere with his ability to drive safely.

8To answer that question, we will address the following issues:

a. Is the appellant addicted to the use of a drug?

b. Is the appellant’s addiction to a drug, if any, likely to significantly interfere with his ability to drive safely?

C. LAW

9The Registrar has the power under s. 47(1) of the Act 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).”

10One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the Act is that the driver is addicted to a drug to an extent likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) under the Act states:

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

(b) be addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his or her ability to drive a motor vehicle safely; …

11According 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 Medical Standards for Drivers (the “CCMTA Standards”). The Tribunal may also take the CCMTA Standards into consideration, although they are not binding requirements.

12The 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 Act, confirm, modify or set aside the decision or order of the Registrar.

D. ANALYSIS

a. Is the appellant addicted to the use of a drug?

13The appellant testified that about ten years ago, he was smoking heroin regularly. Heroin is an opiate, a naturally occurring opioid. Eventually he enrolled in a methadone treatment program (opioid substitution therapy). He explained that he was in the treatment program for about two years and that at some point during that two-year period he switched from methadone to Suboxone (alternative opioid substitution therapy) and began tapering his dose of Suboxone. Eventually he was weaned off Suboxone altogether. The appellant said that he had not used opiates again until a short time before the driving incidents in January 2018, a period of about eight years. He indicated that stressors in his life at that time, including the death of his best friend, had caused him to resume use of heroin at that time.

14The appellant acknowledged that he had smoked heroin prior to each of the two motor vehicle incidents in January 2018. The use of heroin was identified by in‑hospital medical personnel following the first driving incident. According to the hospital records, the appellant agreed to attend an out-patient drug treatment program associated with the hospital.

15The appellant testified that he once again started treatment in an out-patient methadone program in May 2018. This is supported by documentation from Dr. D.F., which states that the appellant was a patient in his drug treatment clinic from May 24, 2018 to August 22, 2018. Dr. D.F. further indicated that the appellant transferred to a new clinic starting August 23, 2018. The appellant explained that he had moved his residence and the change in treatment programs was to a clinic closer to his new apartment. He also indicated that he switched to Suboxone at the new clinic. This was confirmed in a letter dated November 12, 2018 from Dr. V.L., a physician at the new clinic.

16Both methadone and Suboxone are drugs prescribed for the treatment of opioid addiction/dependence (opioid substitution therapy). Opioid addiction and opioid dependence are older terminologies for opioid use disorder. Heroin is an opioid. The appellant’s testimony indicated that he had been using heroin. Likewise, the discharge documentation from the hospital after the first motor vehicle incident states that the appellant “began to abuse heroin again”. This evidence, together with the reports from the two addiction treatment clinics, are sufficient for us to find that the appellant suffers from a heroin addiction/dependency or opioid use disorder which is currently being treated with – or controlled by – Suboxone.

b. Is the appellant’s addiction to a drug, if any, likely to significantly interfere with his ability to drive safely?

17Having found that the appellant is addicted to heroin, we now must consider whether this condition is likely to significantly affect his ability to drive safely.

18The Registrar has the burden to establish that the appellant’s addiction to heroin will significantly interfere with his ability to drive safely.

19The Registrar’s agent (the “Agent”) referred us to Section 15.6.3 of the CCMTA Standards which indicates that all drivers are eligible for a driver’s licence if they have abstained from the addictive substance for a period of 12 months. This section also provides that earlier re-licencing may be considered upon favourable recommendation from a treating physician and the successful completion of a drug rehabilitation program.

20The appellant submitted that his driver’s licence should be reinstated on the basis that he had been abstinent from illicit opioids for a period of six months and has been enrolled in methadone/Suboxone treatment programs. The Agent acknowledged that the methadone/Suboxone treatment programs would be considered a drug rehabilitation program within Section 15.6.3 of the CCMTA Standards but expressed that the Registrar wants to see a longer period of stability before reinstatement of the appellant’s driver’s licence.

21We are not bound by the recommendations contained in the CCMTA Standards in making our decision but do note that the appellant has not, in any event, fully met the conditions enumerated in Section 15.6.3 of the CCMTA Standards in support of earlier re-licensing. Specifically, the appellant did not provide a recommendation from his treating physician that his licence be reinstated. As well, it is not clear to us that the appellant has completed a drug rehabilitation program.

22As well, it appears to us that the length of the appellant’s period of abstinence from use of heroin is shorter than he asserted at the hearing. He testified that he had not used opiates since February 2, 2018, the date he first attended the clinic to which he was referred by the hospital where he was admitted after the first motor vehicle incident. The appellant has not provided any documentation from this clinic outlining the frequency and/or duration of his attendance at this clinic or that he was abstinent while attending this clinic. As well, the appellant was unable to explain to us how he managed between February 2, 2018 and May 24, 2018, when his confirmed methadone treatment began. In consequence, we are unable to accept that his period of abstinence began on February 2, 2018.

23A letter dated August 31, 2018 from Dr. D.F., the treating physician at the first methadone clinic, confirms that the appellant began treatment at that clinic on May 24, 2018. Dr. D.F. also writes that “the patient has abstained from drugs/ alcohol according to the weekly drug screens from June 28, 2018 to his last visit on Aug 17, 2018”. We were not presented with any evidence relating to the appellant’s abstinence during the period from May 24, 2018 to June 28, 2018.

24We have conflicting evidence on when the appellant’s period of abstinence began, but it seems to us most likely that it did not actually begin until June 28, 2018 as set out in Dr. D.F.’s correspondence of August 31, 2018. Assuming that to be the case, as of the date of the hearing, the appellant would have been abstinent for slightly less than five months. We view this as being too short to ensure the degree of stability necessary for the appellant to drive safely.

25The appellant admitted smoking heroin prior to getting behind the wheel in relation to both incidents in January 2018. It is relevant to consider how this translated into his ability to drive safely. One of the Request for Driver’s Licence Review indicated that a “complainant called police to report driver going 150 on provincial highway, followed vehicle, hitting curbs, driving erratically …”. The other Request for Driver’s Licence Review indicates that the police responded to a radio call about a possible impaired driver that had run a “stop sign/red light”. These descriptions confirm that the driving of the appellant during these incidents was actually dangerous and put the public at risk.

26None of the various medical forms submitted by the appellant’s doctors over the years disclose that the appellant was taking heroin. When questioned about this, the appellant indicated that his doctors had not asked him about this issue so he had not told them. For instance, a Medical Report form was requested by the Registrar following the two motor vehicle incidents in early 2018. This form was completed by Dr. A.M. on February 23, 2018, Dr. A.M. ticked the “No” box in relation to whether the appellant has “Addictions (Alcohol, Sedatives, Tranquilizers, Narcotics, etc.)” We find it very unlikely that that Dr. A.M. failed to question the appellant about his use of drugs and/or addictions before completing this form and are of the view that the appellant deliberately concealed his use of heroin from Dr. A.M.

27Another example is the Substance Use Assessment form completed by Dr. Y.P., a new family doctor, on July 12, 2018. In this form, Dr. Y.P. indicates that the appellant has abstained from drugs for a period in excess of 12 months We are confident that the period of abstinence indicated on this form was based on the information provided by the appellant to Dr. Y.P., which, of course, the appellant knew to be false.

28To his credit, the appellant was more forthcoming with the Tribunal. While we do not accept his evidence that he has been abstinent from heroin since February 2, 2018, he was forthright with respect to our direct questions about his use of heroin. He acknowledged that he had smoked heroin prior to each of the two motor vehicle incidents giving rise to the current suspension. He also admitted that during his earlier period of opiate use about ten years ago, he had smoked heroin prior to driving on multiple occasions.

29In a letter to the Registrar in August 2018 the respondent indicated that he takes “full responsibility for my actions”. In oral testimony, the appellant said that he had made “a mistake”.

30However, during the hearing the appellant did not demonstrate remorse or make statements that indicated to us that he has truly taken responsibility for his actions. For instance, when discussing one of the motor vehicle incidents that occurred early in 2018, he offered as a point in his favour that when he began to feel unwell, he pulled to the side of the road. At no point, however, did the appellant say or otherwise indicate any understanding that driving after smoking heroin is both dangerous and unwise. He further gave no indication that he understands the risk to the public he caused by his actions. Likewise the appellant gave no indication that he regrets his actions and putting members of the public at risk. Finally, the appellant did not offer any insight into his actions or what he has learned from the experience. With this in mind, we find that it is likely that the appellant will drive impaired in the future.

31To his credit, the appellant does not have any impaired driving charges on his driving record and has been abstinent for a period of about 5 months.

32Against this, and perhaps most importantly for our consideration, is the fact that the appellant knowingly smoked heroin prior to getting behind the wheel on the two occasions in January of 2018. He also admitted to doing this during his earlier period of heroin use. This, in our view, shows poor judgement and disregard for public safety. Good judgment is an important part of safe driving as is regard for public safety in making driving choices.

33As well, the appellant’s apparent lack of remorse and failure to accept responsibility for his pattern of willingness to smoke heroin prior to driving causes concern. It does not appear to us that he fully understands that this is a behaviour that puts the public at risk and a behaviour in which he should not engage under any circumstances. As above, we are of the view that he is likely to drive while impaired in the future.

34Having regard to the appellant’s demonstrated pattern of unsafe driving, his pattern of disregard for law and authority and his pattern of disregard for public safety, we are of the view that the appellant’s addiction to heroin significantly interferes with his ability to drive safely.

35After considering the evidence and submissions of the parties, we find on a balance of probabilities that the appellant suffers from heroin addiction to an extent that is likely to significantly interfere with his ability to drive a motor vehicle safely.

E. ORDER

36For the reasons set out above, pursuant to subsection 50(2) of the Act, the Registrar’s decision to suspend the Appellant’s driver’s licence is confirmed.