T.G. v. Registrar of Motor Vehicles, 2019 CanLII 83588

Date: 2019-09-05

Tribunal File Number: 11417/ADLS

Appeal under subsection 50.1 of the Highway Traffic Act, R.S.O. 1990, c.H.8, from a decision under Section 48.3 to suspend a driver’s licence.

Between:

T.G.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Harriet Lewis, Member

APPEARANCES:

For the Appellant: T.G. in person

For the Respondent: Kyle Biel, Agent

Place and date of hearing: Toronto, Ontario, June 25, 2019

REASONS FOR DECISION AND ORDER

OVERVIEW

1On May 11, 2017, T.G.’s driver’s licence was suspended pursuant to s. 48.3 of the Highway Traffic Act (the “Act”). A Notice of Appeal of his suspension was filed on July 10, 2017 and was among three appeals filed by T.G. Two of the appeals were subsequently dismissed, but as no resolution of this matter could be reached, this appeal is being heard.

2The grounds for suspension which led to this appeal arose from T.G.’s having been stopped by a police officer for making an illegal left-hand turn. At that time:

I. T.G. was asked to present his driver’s licence pursuant to s.48.3(1) of the Act and failed to do so, and;

II. T.G. was asked to provide a breath sample pursuant to s. 48.3(3) of the Act and did not do so.

3The ground on which T.G. makes this appeal is set out in s. 50.1(2)(b)(i) of the Act. Specifically, T.G. argues that he is “not the same individual to whom a demand was made under 254 or 256 of the Criminal Code (Canada)”.

4The suspension which is the subject of this appeal expired on August 9, 2017. However, T.G.’s driver’s licence remains suspended because he has failed to complete the remedial measures program required by an earlier suspension.

5For the reasons set out below, I find that T.G. is the same individual to whom the demands were made. I therefore deny the appeal and uphold the imposition of the 90- day suspension which was imposed at the time of the incident noted above.

PRELIMINARY ISSUES

6At the outset of the hearing of this matter, it was acknowledged by the parties that the 90-day suspension which is the subject of this appeal has expired. However, this Tribunal, by decision of Vice Chair Theoharis dated April 18, 2019, has determined that this appeal could proceed to a hearing.

7In his Notice of Appeal, T.G. expressed his intention to bring a constitutional issue with respect to his matters. At the outset of this hearing T.G. began to make an argument concerning the suspension based on the Canadian Charter of Rights and Freedoms. Despite being ordered to in the Case Conference Order dated May 22, 2019, T.G. did not issued or serve a Notice of Constitutional Question as is required by Rule 11 of the Tribunal’s Common Rules of Practice and Procedure. Therefore T.G.’s constitutional issue was not considered.

ISSUES

8The issues in this matter are:

i. Was T.G. was the same individual who on May 11, 2017 was asked to present his driver’s licence to a police officer and was unable or refused to do so?

ii. Was T.G. the same individual who on May 11, 2017 was asked by a police officer to provide a breath sample and failed or refused to do so?

EVIDENCE

9Both T.G.’s oral evidence and written materials were confused and contradictory. Although he came to the hearing with binders of material, when sworn and asked to provide his evidence in chief he declined to tell his version of the events of May 11, 2017 or provide any evidence in support of the grounds that he was not the person to whom the two demands noted above were made. He did not call any witnesses in support of his appeal and did not cross examine the respondent’s witness.

10As an attachment to his Notice of Appeal, T.G. filed a medical report from Dr. D. W., dated June 30, 2017. That medical report indicated that T.G. was in good physical and mental health, and specifically noted that T.G. had good mental competence, good judgement, no instability and no psychosis.

11In contradiction to Dr. D.W.’s report, both in additional material appended to his Notice of Appeal and in oral evidence given by him on cross examination, T.G. repeatedly referred to himself as more than one person and in the third person. At various times he stated that “the appellant” was suffering from “a medical condition”, “a progressive ailment” and a “compromised identity”.

12In answer to a specific question posed by the respondent’s agent T.G. explained that the person making the appeal and present at the hearing was “no longer the same person” who was issued the demands to present a driver’s licence and provide a breath sample. He said that he and the individual who was apprehended that day were “separate people” and “not the same individual”. He defined himself at the appeal as a separate “person defending my name”. When specifically asked by the Registrar’s agent if he is “more than one person” he answered “yes”. He was asked and agreed that one of his persons or personae, but not the appellant, had been stopped by police as alleged, had been unable to produce a drivers’ licence and had “refused to blow” when it was demanded he do so.

13The Registrar’s witness was Constable Matthew Rossi of the Toronto Police Service. He was one of the officers who was present at the incident that led to the 90-day suspension. Constable Rossi testified that at approximately 2:30 a.m. on May 11, 2017, a vehicle was stopped for making an illegal left turn going east from Yonge Street on to Queen Street in downtown Toronto. He identified the appellant by sight as the individual driving the vehicle. His evidence was given with some reference to the notes he had taken immediately after the incident, which notes were also filed as part of the Registrar’s materials.

14Constable Rossi noted that the vehicle being driven by T.G. was registered to C.G., living at the same address as T.G. Later in the hearing T.G. identified C.G. as his mother.

15When the vehicle was stopped, Constable Rossi’s partner, Constable Chong, went to the driver’s side to speak to the driver who stepped out of the car. Constable Rossi was on the passengers’ side. There were two passengers in the vehicle. Those individuals asked and were permitted to leave the scene.

16Constable Rossi stated that he observed Constable Chong repeatedly asking T.G. for identification. When it was clear that none was being produced, Constable Rossi approached T.G. and Constable Chong. He could smell alcohol on T. G.’s breath. T.G. appeared agitated, aggressively poked Constable Rossi in the chest and repeatedly said that he wanted to take the officers’ guns and shoot himself.

17At that point Constable Rossi called for back-up and another officer attended to provide the equipment for a breath sample. Constable Rossi invoked the procedure for using a breathalyzer device which involved reading the formal demand to “blow”. He also read T.G. the statement on his right to counsel and then demonstrated to T.G. how the breathalyzer worked by blowing into it himself and showing T.G. that the sensor read “zero”. Despite his doing this, it was apparent that T.G. was not listening and was refusing to take the test. Constable Rossi then put a new mouthpiece on the breathalyzer and twice demanded that T.G. provide a breath sample. T.G. refused, was placed under arrest and taken to the police station.

18Once at the police station, T.G.’s identity was confirmed through his Ontario Health Card which contained his name, date of birth and photograph. He was unable to produce a driver’s licence.

19According to station procedure, T.G. was brought before the Duty Sergeant. Throughout this time, T.G. was agitated, speaking non-stop and repeatedly stating that he wanted to kill himself. Because of this behaviour, T.G. was issued with a “Promise to Appear” and taken by Constable Rossi to Toronto Western Hospital where he was admitted for assessment.

LAW AND ANALYSIS

20Section 48.3(1) of the Act provides that when a police officer is satisfied that a person driving or having care, charge or control of a motor vehicle meets one of the criteria set out in s.48.3(3), the officer “shall request that the persons surrender his or her driver’s licence.”

21Section 48.3 (2) specifies that upon a request for surrender of a driver’s licence under s. 48.3 (1), the person must forthwith surrender the licence to the police officer and “whether or not the person is unable or fails to surrender the licence to the police officer, his or her drivers licence is suspended for 90 days from the time the request is made.”

22Section 48.3(3) sets out the criteria on which basis a police officer shall request the surrender of a licence under s. 48.3(1). They are as follows:

1. The person is shown by an analysis of breath or blood pursuant to a demand made under ss. 254(3) or 256 of the Criminal Code (Canada) to have a concentration of alcohol in his or her blood in excess of 80 milligrams in 100 millilitres of blood.

2. The person failed or refused, in response to a demand made under section 254 of the Criminal Code (Canada),

i. to provide a sample of breath, blood, oral fluid or urine,

ii. to perform physical co-ordination tests, or

iii. to submit to an evaluation

23Section 48.3 (3.1) provides that upon being asked to provide a breath sample “A person has no right to be heard before the suspension of a driver’s licence under this section”.

24These clauses make it clear that in the case when an individual fails to provide a driver’s licence or fails to provide a breath sample, a 90-day suspension of the driver’s licence is immediate. The right to appeal is circumscribed by s. 50.1(2) of the Act.

25Section 50.1(2) of the Act provides that a person may appeal a 90-day suspension made under s. 48.3 only on the following bases:

a. Under 48.3:

i. that a person whose licence was suspended is not the same individual to whom a demand was made under s. 254 or 256 of The Criminal Code (Canada), or

ii. that the person failed or refused to comply with such a demand because he or she was unable to do so for a medical reason.

26In this case T.G. relies only on the first ground: that he is not the same individual to whom a demand for a licence and a breath test was made. The burden to show that on the balance of probabilities falls on T.G.

Was T.G. the same individual who on May 11, 2017 was asked to present his driver’s licence and was unable or unwilling to do so?

27The evidence is clear that T.G. is the same individual. At the outset of his testimony, Constable Rossi was asked and made a positive identification of T.G. as the person driving the car that made an illegal left turn at Yonge and Queen Streets on May 11, 2017. T.G.’s identity was confirmed following the incident when he presented his Ontario Health Card containing his particulars and photo I.D. at the police station. In cross-examination T.G. admitted that in the person of one of his selves he was the individual driving the stopped vehicle and that he was unable and failed to provide a copy of his driver’s licence and had “refused to blow” when it was demanded he do so. On the basis of these facts, the 90-day suspension under s.48.3. was justified. The appellant has failed to establish any grounds for appeal under s. 50.1(2) of the Act.

Was T.G. the same individual who was asked by a police officer to provide a breath sample and failed or refused to do so?

28I accept Constable Rossi’s testimony outlining the steps he took to prepare to administer a breath test to T.G. and that he asked and then demanded that T.G. provide a breath sample. It is not in dispute that T.G. did not comply. His failure to provide a sample also supports an imposition of a 90-day suspension under 48.3.1. He has also failed to establish any grounds of appeal under s. 50.1(2) of the act on this basis.

DECISION

29I find that T.G. is the same individual who failed to provide his driver’s licence and failed or refused to submit to a breath test when stopped by police on May 11, 2017. This appeal of the 90 -day suspension of his driving privileges is dismissed. The May 11, 2017, 90-day suspension of his driver’s licence is confirmed.