C.K. v. Registrar of Motor Vehicles, 2019 CanLII 32271

Date: 2019-03-04

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:

C.K.

Appellant

and

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: C.K., self-represented

For the Respondent: Kyle Biel, Agent

Heard by Teleconference on: February 14, 2019

OVERVIEW

1The appellant is a 43-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”).

2Mid-afternoon on Sunday, February 25, 2018, in an attempt to relax following tobogganing with his then seven-year-old daughter, the appellant knowingly used cocaine and fentanyl. Ten to fifteen minutes after taking the drugs, the appellant returned to the main floor of the home. Soon after, the appellant was found unconscious by his parents and his daughter. The appellant was successfully resuscitated by emergency personnel. Emergency room physician Dr. H. filed a Medical Condition Report (“MCR”) with the Registrar of Motor Vehicles (the “Registrar”), citing drug dependence.

3By letter dated February 27, 2018, the Registrar suspended the appellant’s driver’s licence under s. 47(1) of the Act on the basis of substance use/abuse.

4For the reasons set out below, I find that the appellant suffers from substance use disorder (“SUD”), to an extent that is likely to significantly interfere with his ability to drive safely. SUD is a disorder of the brain, like many other mental health disorders.

5For these reasons, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ISSUES

6The issue in this appeal is whether the appellant suffers from SUD to an extent that is likely to significantly interfere with his ability to drive safely.

7To answer that question, I will address the following issues:

a. Does the appellant suffer from SUD?

b. Is the appellant’s medical condition of SUD, if any, likely to significantly interfere with his ability to drive safely?

LAW

8The 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).”

9Subsection 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,

(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;

10According 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.

11The Registrar has the burden of establishing 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 Registrar’s decision or order.

EVIDENCE AND ANALYSIS

a. Does the appellant suffer from SUD?

12I find that the evidence presented establishes that the appellant suffers from SUD, a disorder of the brain, like many other mental health disorders.

13The appellant testified that he started using drugs at age 17. He has continued to experiment with a variety of drugs on and off over the years. These drugs have included: cannabis, opioids, cocaine, amphetamines, crystal meth, and magic mushrooms. The appellant classifies himself as a recreational drug user, using drugs on weekends. However, during a relatively recent time of unemployment he admitted to using drugs more frequently. The appellant denies using drugs intravenously, but rather ingests, smokes, or snorts them. He admitted to tampering with controlled-release opioids in the past (such as crushing a controlled-release opioid tablet to convert it into a fast-acting opioid), plus “overdoing opioids for a while”. The appellant stated that he vowed not to overdo opioids again after suffering terrible withdrawal symptoms. The appellant testified that he uses cannabis only at night, to help him sleep. The appellant claimed that after all these years he has reliable drug suppliers, and he is not concerned about contamination of the street drugs he uses. One of the known contributing problems to opioid-related overdoses and the current opioid crisis is the epidemic of overdoses from contaminated street drugs. The appellant stated that he enjoys getting high, and likes the freeing of his mind and the increased artistic ability the drugs give him.

14The appellant acknowledged that he knowingly used fentanyl and cocaine on the afternoon of February 25, 2018 with his daughter and parents upstairs in the home. He denied using either drug intravenously. According to the appellant, prior to this overdose neither his parents nor his former wife were aware of his drug use. The appellant candidly admitted to another incident with fentanyl about six months prior to February 2018. The appellant also openly acknowledged that he has continued to use drugs, including opioids (but not fentanyl), stimulants (cocaine, amphetamines/methamphetamines) and hallucinogens (magic mushrooms) since February 2018.

15On March 22, 2018, Dr. S., the appellant’s family doctor of seven years, filled in the Ministry’s Substance Use Assessment (“SUA”) form. On this form Dr. S. noted that although the appellant was being referred to an addiction centre, the appellant had not successfully completed a formal addictions treatment program or formal counselling. Furthermore, Dr. S. commented that the appellant had poor insight and judgment with respect to his substance use.

16The appellant is adamant that he is a recreational drug user only, and that he does not have a medical condition.

17In his MCR, Dr. H. listed that the appellant suffers from “drug dependence”. The term drug dependence appeared on MCR forms used until June 30, 2018.

18On the SUA form, Dr. S. checked off that the appellant uses illicit drugs and suffers from “drug misuse, drug abuse, and dependence”. These are the terms still in use in the Ministry’s SUA form, the definitions of which can be found in the “Glossary of Substance Abuse Terms for the Purpose of Assessing Driver Fitness” found in the form’s Appendix.

19The older medical terms drug use, drug abuse, dependence, and addiction, currently fall under the broader medical condition of SUD.

20The evidence presented confirms that the appellant used drugs recurrently in the past, has suffered at least one overdose as a result of a drug, the overdose was witnessed by his young child and his parents, and he has continued to use drugs despite the harm he posed to himself, his young daughter, and his parents, and despite his driver’s licence suspension for medical reasons. Thus, I find that the appellant suffers from SUD.

b. Is the appellant’s medical condition of SUD, if any, likely to significantly interfere with his ability to drive safely?

21I find from the evidence presented that the appellant’s SUD is likely to significantly interfere with his ability to drive safely.

22The Registrar has the burden to establish that the appellant’s SUD will significantly interfere with his ability to drive safely.

23The Registrar’s agent referred to Section 15.6.3 of the CCMTA Standards, “SUD – All drivers”. This section, which applies to all drivers who are under the influence of alcohol and illicit drugs such as opioids, cocaine, amphetamines etc., indicates that all drivers are eligible for a driver’s licence if they have abstained from addictive substances 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.

24The appellant submitted that his driver’s licence should be reinstated on the basis that he has no convictions for impaired driving on his driving record, does not use drugs on weekdays since “he needs to be safe”, only uses drugs on the weekends, will not use fentanyl again, does not use drugs intravenously, does not require formal drug rehabilitation or counselling, and is a working member of society.

25An extended driver record search submitted as evidence by the respondent confirmed that the appellant has never been charged with impaired driving.

26The Family and Children’s Services (FACS) is involved with the appellant, his daughter, and his former wife, and have been requesting random broad spectrum urine drug screens (UDS) for drugs of abuse for numerous months since his February 2018 overdose. Approximately three months of UDS results (mid-August 2018 to late November 2018) were submitted as evidence.

27Under the Statutory Powers Procedure Act, (“SPPA”) R.S.O. 1990, c. S.22, s. 16, a tribunal may, in making its decision in any proceeding,

a. take notice of facts that may be judicially noticed; and

b. take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge.

28As a licenced and duly qualified physician in the province of Ontario with a general practice licence, I have, as per SPPA s. 16(b), the qualifications, knowledge and experience to assess and interpret UDS.

29All of the UDS results submitted were absent of the opioid fentanyl and most of the UDS results were positive for cannabis. Based on my qualifications, these UDS results support the appellant’s testimony that he no longer uses fentanyl since his overdose, and that he chronically smokes cannabis at night.

30The stimulants amphetamine, methamphetamine, and cocaine, plus the opioids oxycodone and oxymorphone, were detected in some UDS results. From the UDS results, the presence of the cocaine breakdown product, cocaethylene, suggests, in my professional experience, that the appellant also appears to sometimes co-consume cocaine with alcohol. The combination of cocaine with alcohol is, in my professional opinion, significantly more toxic than the use of cocaine alone.

31The appellant testified that he does not use drugs on weekdays since “he needs to be safe” and only uses drugs on the weekends. However, the UDS results submitted as evidence indicate, in my profession experience, that from time-to-time the appellant does consume drugs on weekdays. Amphetamine and methamphetamine (stimulants) were detected in a UDS collected at 6:51 a.m. on Wednesday August 22, 2018. The window for detecting amphetamine and methamphetamine in the urine after last use is generally up to 48 hours, when analyzed by the type of UDS ordered. Therefore, based on my qualifications, this UDS result implies that the appellant likely used stimulants on a weekday, not on a weekend. Similarly, UDS results were positive for the cocaine breakdown product benzoylecgonine, on Friday August 24, 2018 and Friday September 7, 2018. The window for detecting this cocaine breakdown product in the urine after last use of cocaine is generally up to four days (often stated as 2-4 days), when analyzed by the type of UDS ordered. Therefore, based on my qualifications, these UDS results imply that the appellant likely used cocaine on a weekday those weeks. Finally, the UDS taken on Wednesday September 19, 2018 was positive for the opioid oxymorphone. The window for detecting oxymorphone in the urine after last use is generally 2-3 days, when analyzed by the type of UDS ordered. Thus, based on my qualifications, oxymorphone may have been consumed on a weekday that week.

32At the hearing, the appellant described that he did attend an addiction clinic once since his overdose in February 2018. He stated that the clinic told him that he was not using enough opioids to consider opioid substitution therapy (methadone or Suboxone®) as a treatment option.

33When questioned whether the addiction clinic offered him counselling, the appellant stated that he attended a few individual and mandated counselling sessions through FACS. He went on to describe these limited sessions as “rent a friend”, and stopped going because they “cut into the time he was able to spend with his daughter”. The appellant also clearly stated that he feels he does not need counselling for his drug use.

34Dr. S., the appellant’s family doctor of seven years, submitted a brief updated note on behalf of the appellant dated February 7, 2019. This note stated that “he (the appellant) tells me that over the past year he has rehabilitated himself quite well, noting that although he might do the occasional Percocet, he no longer does harder opioid medications. He has vowed to never use fentanyl again.” Nowhere in this note does Dr. S. mention the appellant’s continued use of stimulants and hallucinogens, or that his insight or judgment into his medical condition of SUD has improved.

35Section 15.4 of the CCMTA Standards comments on the use of opioids and their resultant depression of the central nervous system. This Section goes on to further list possible effects of opioids on the functions necessary for driving, including: blurred vision, poor night vision, slowed reaction times, sedation, tremors, muscle rigidity, impairment of short term/working memory and attention, and disorientation or hallucinations.

36I am not bound by the recommendations contained in the CCMTA Standards in making my decision, but also note that the appellant has not met the conditions enumerated in Section 15.6.3 of the CCMTA Standards in support of either relicensing or earlier re-licensing. Specifically, the appellant is still using drugs (opioids, stimulants, and hallucinogens); he did not complete a formal counselling program; and his family physician did not formally recommend that his licence be reinstated.

37The appellant is, as he stated, currently a working member of society who pays his bills and shares custody of his young daughter with his former wife of 15 years. He has used a variety of substances/drugs for more than 25 years, managing to hide this use from his immediate family until his overdose in February 2018. This overdose was witnessed by both his young daughter and his parents. The appellant still adamantly denies that he has a medical condition with respect to drug use, states that only intravenous use of drugs can cause problems, claims that he does not use drugs during the week, that he has never driven under the influence of alcohol or drugs, and that he is not in need of the opioid antidote naloxone. Unfortunately, SUD cuts across all socioeconomic groups, and can develop whether or not a drug is legal, is socially acceptable, has an accepted medical use, or is taken only intravenously.

38The UDS results in evidence suggest that, in addition to using drugs on weekends, the appellant does consume drugs on some weekdays. In addition should the appellant decide to drive to and/or from work, this pattern of weekday drug consumption may potentially impair his ability to operate a motor vehicle safely, as per section 15.6.3 of the CCMTA Standards.

39When asked how/why the opioid oxymorphone appeared in a UDS result, the appellant stated that he did not knowingly seek out the opioid oxymorphone from his dealer(s).

40The evidence suggests that the appellant consumed the opioid oxymorphone in mid-September 2018. Oxymorphone is known to be more potent (milligram to milligram) than oxycodone, the opioid that the appellant admits to still using. Thus, based on my professional experience and qualifications, the inadvertent use of oxymorphone, an opioid he had never experimented with before, potentially put the appellant at a higher risk of overdose, a ‘high’, or a ‘hangover effect’ (the appellant described a ‘hangover effect’ when he previously used the opioid hydromorphone).

41With no obvious insight into his past or current actions with respect to drug use, or sufficient lessons learned from his past experience, I find that the appellant’s choice to continue his drug use in a cavalier fashion shows poor insight, lack of judgment, and disregard for personal, family, and public safety. Good insight and judgment are an important part of safe driving as is regard for personal, family, and public safety in making driving choices. As per section 15.6.3 of the CCMTA Standards (SUD – all drivers), the use of illicit substances such as opioids, cocaine, and amphetamines are known to potentially impair the ability to operate a motor vehicle safely. From the evidence presented, I am of the view that the appellant’s ongoing SUD is likely to interfere with his ability to drive safely.

42After considering the evidence and submissions of the parties, I find on a balance of probabilities that the appellant suffers from SUD to an extent that is likely to significantly interfere with his ability to drive a motor vehicle safely.

ORDER

43For 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.