Appeal under Section 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a decision under Section 48.3 of that Act – to Suspend a Licence
Between:
Shawn Jean-Louis
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATORS: Erica Weinberg, M.D., Member
Joanne E. Foot, Member
APPEARANCES:
For the Appellant: Self-Represented
For the Respondent: Kyle Biel, Agent
Heard by teleconference: December 21, 2020
REASONS FOR DECISION AND ORDER
A. Overview
1A teleconference hearing was held on December 21, 2020 to consider the appellant’s appeal under s. 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) from the suspension of his driver’s licence on November 10, 2020.
2The appellant’s licence was suspended for 90 days under s. 48.3 of the Act for failing to provide a breath sample demanded under s. 254 of the Criminal Code (Canada).
3The Appellant appealed the 90-day suspension to the Tribunal on the basis that he failed to comply with the demand for a breath sample because he was unable to do so for a medical reason.
4For the reasons set out below, we dismiss the appeal and confirm the suspension of the Appellant’s driver’s licence.
B. ISSUE
5Did the Appellant fail or refuse to comply with a demand for a breath sample because he was unable to do so due to a medical condition?
C. Preliminary/OTHER issueS
Appellant Not Testifying
6At the outset of the hearing, the appellant indicated that he did not intend to testify at the hearing, stating that he intended to rely solely upon the documentation he had already submitted in connection with the appeal. The appellant indicated that he had taken this decision on the advice of his legal counsel handling his accident benefit claim.
7The Tribunal explored this position with the appellant, expressing that this approach might not permit the appellant to put his best case forward in terms of information that would be helpful to the Tribunal in making a decision. The Tribunal explained that, as appellant, he bears the onus of proof in this case. The appellant was also asked if he wished to contact his lawyer prior to making a decision. The agent for the Registrar (the “Agent”) objected to the Tribunal discussing the onus on the basis that it constituted giving legal advice. We explained to the Agent that we have a duty, particularly in relation to a self‑represented party, to ensure that the appellant has a sufficient understanding of the process so that the hearing is, in its entirety, fair.
8After further discussion and explanation, the appellant reiterated that he did not wish to testify. The Agent agreed that the appellant would be permitted to testify later in the hearing, in the event that he changed his mind as the hearing unfolded.
9In a small number of instances during the appellant’s cross‑examination of Constable Travis Bergeron, he made statements that amounted, in effect, to him giving evidence. In each instance, we indicated that we would disregard the statement in making our decision and inquired whether the appellant wished to testify on his own behalf. The appellant declined to do so in each instance.
Submission of Documentation After the Hearing
10Following the completion of the hearing, the appellant submitted further documents which he indicated were intended to address deficiencies alleged by the Agent to exist in one of the documents that the appellant relied upon during the hearing. We understand that these additional documents existed at the time of the hearing. Furthermore, the appellant did not indicate at the hearing that he wished to submit further documents to address the challenges made by the Agent. In consequence, we did not admit these documents as evidence and we did not consider them in making our decision.
D. LAW
11Under s. 48.3 of the Act, a police officer must request a person to surrender their licence if the person failed or refused to provide a breath sample in response to a demand made under s. 320.27 of the [Criminal Code](