Trevor Boyne v. Registrar of Motor Vehicles, 2022 CanLII 23437

Licence Appeal Tribunal

Date: 2022-03-24

An appeal under subsection 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a decision to suspend a driver’s licence pursuant to section 48.3.1 of the Act.

Between:

Trevor Boyne Appellant

and

Registrar of Motor Vehicles Respondent

DECISION & ORDER

ADJUDICATOR:

Dr. Dimitri Louvish, M.D., Member Raymond C. Ramdayal, Member

APPEARANCES:

For the Appellant:

Jami Sanftleben, Paralegal

For the Respondent:

Kyle Biel, Agent

Heard by teleconference:

January 25, 2022

Background

1A teleconference hearing was held on January 25, 2022 to consider the appellant’s appeal under section 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) from the June 5, 2021 suspension of his driver’s licence. The appellant’s licence was suspended for 90 days under section 48.3.1 (3) of the HTA after being evaluated by a police officer under subsection 48.3.1 (2) of the Act. The police officer made the determination that he was driving while his ability to do so was impaired by a drug or by a combination of a drug and alcohol.

2It is the appellant’s position that his ability to operate a motor vehicle was not impaired by a drug or by a combination of a drug and alcohol at the time. He contends that he has a medical condition that impaired his performance on an evaluation that was conducted by the officer under subsection 48.3.1 (2) of the Act.

3The appellant relies on the ground of appeal set out in s. 50.1 (2)(b)(ii) of the Act, which provides that the Tribunal may order that a suspension under s. 48.3.1 of the Act be set aside if the appellant can prove, on a balance of probabilities, that his:

“…ability to operate a motor vehicle or vessel 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 activity for which the suspension was imposed, that impaired his or her performance of the evaluation that was conducted under subsection 320.28(2) of the Criminal Code (Canada).”

Issue

4The issue in dispute, in accordance with s. 50.1(2)(b)(ii) of the Act, is whether the appellant’s ability to operate a motor vehicle was not impaired by a drug or by a combination of a drug and alcohol, and the appellant had a medical condition that impaired his performance of the evaluation that was conducted under subsection 320.28(2) of the Criminal Code R.S.C. 1985, c. C-46.

Result

5For the reasons set out below, we confirm the respondent’s decision.

Law

6The respondent has the power under s. 47(1) of the HTA to suspend or cancel a driver’s licence for any of the grounds listed in paragraphs (d), (e), (f) or (g) of that section. Paragraph (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

7One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is that the driver suffers from a medical condition likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) under the HTA 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;

8Section 14(2)(a) of the Regulation allows the Minister of Transportation (“Minister”) to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“CCMTA Standards”) when determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.

9Under s. 14(2)(b) of the Regulation, the Minister may also require a driver to provide satisfactory evidence that he or she is able to drive safely. The Tribunal may consider whether a driver has complied with such a request.

10The respondent has the burden of establishing the ground for suspending the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the respondent.

Evidence and Analysis

11The respondent asserts that the 90-day administrative suspension of the appellant’s driver’s licence was executed correctly. The events leading up to this suspension began with a public complaint of the appellant driving his vehicle all over the road, at fluctuating speeds and narrowly escaping accidents. By the time police caught up, the appellant’s vehicle was at the side of the road, with the appellant asleep at the wheel. He was the only occupant in the vehicle and appeared confused when police roused him. The arresting officer observed a crack pipe in plain view on the passenger seat. The appellant would later claim that it belonged to his friend who he had just dropped off. A further search of the vehicle uncovered suspected crystal methamphetamines and GHB.

12The arresting officer had reason to believe that the appellant was under the influence. The appellant was taken to the Peterborough County OPP Detachment where he was further assessed and met with a Drug Recognition Expert (DRE), Constable Dylan Teacher, who conducted a drug influence evaluation. The DRE attended the hearing and provided testimony.

13The appellant states that he pulled to the side of the road due to exhaustion. He testified at the hearing that he was in a car accident in the past related to exhaustion. He states that that he thought it was the right thing to do by pulling over.

14The appellant also lives with a significant brain injury. He states that he lives with symptoms of chronic pain, anxiety and exhaustion. There is no dispute that the appellant was involved in a serious accident approximately 10 years ago. This was corroborated through medical history which was collected at the police station and in medical letters. The appellant also wore a knee brace at the time he was arrested. There was no indication that his knee condition encumbered his ability to effectively participate in the evaluation. The DRE also considered the fact that he may have an underlying problem with his knee before reaching a conclusion on his fitness to operate a motor vehicle.

15The respondent called Constable Teacher as a witness at the hearing. He testified that he has been employed with the Ontario Provincial Police since 2017. He was designated a DRE in 2020. In order to qualify for this designation, the witness attended training at the Ontario Police College and further training in Jacksonville, Florida.

16Constable Teacher recounted his observations of the appellant when he arrived at the station. He was wearing a dirty white-t-shirt and shorts. His pupils were dilated and his movements were reactionary, quick and deliberate. His speech was also described as being rapid.

17This is a contrast to the speech we heard at the hearing today. The appellant’s speech was pressured and it took him longer than average time to respond to questions. At times, the appellant appeared unsure in recounting past events and dates.

18During his evaluation on June 6, 2021, Constable Teacher also conducted a divided attention test on the appellant which he performed with heavy sway and body tremors, something the witness describes as indicative of drug use. The appellant also performed poorly on the walking test and failed the finger to nose assessment, missing on 4 of 6 attempts.

19We also heard from the witness that a urine sample was collected. The results indicate multiple amphetamines detected. These findings were consistent with a finding of impairment of the central nervous system.

20The appellant does not dispute that he did poorly on the evaluation conducted by the DRE. He also acknowledged that his driving was not good that day. He disputes ingesting any drugs on the day he was found sleeping in his car.

21At the hearing, the appellant relied on a letter from Dr. Linda Wong to explain his medical issues which may have affected his performance on the driving assessment, which led to the suspension of his licence. Dr. Wong listed the appellant’s medical issues in her undated letter. They are traumatic brain injury, auditory issues and knee and musculoskeletal issues. She goes on to recommend a driving assessment and a comprehensive sleep study.

22This further confirms the fact that the appellant requires an expert assessment to determine his fitness to operate a motor vehicle safely, even in the absence of drugs or alcohol. In this case, the appellant was clearly under the influence, and this directly affected the outcome of his evaluation.

23The appellant also provided a letter from Bayshore Health Care, dated November 8, 2021 that provided details about his traumatic accident when he was 19 years old. Aside from providing historical context, the Bayshore letter does not provide an opinion or knowledge on whether the appellant was under the influence of drugs on his latest motor vehicle incident.

24We also received another police report regarding a car accident in 2020 in which the appellant was driving erratically. In that report, police stated that they did not believe he was impaired by drugs or alcohol but rather mental health issues. This previous opinion does not weigh heavily into supporting the appellant’s claim that he was not under the influence during the DRE’s evaluation. We view this as being a separate event. The appellant’s medical history and traumatic accident are not in dispute.

25We took into careful consideration the appellant’s credibility. There were times that his testimony was inconsistent. He also offered a letter from Dr. Wong which did nothing more than reinforce the fact that he should be subject to a driving evaluation. The preponderance of evidence paints a clear picture that the appellant was using drugs at some point close to the evaluation. He was found with controlled substances and drug paraphernalia in the car.

26The Bayshore letter confirmed that the appellant has not been seen by a therapist at Bayshore since 2016. The letter also notes that “due to the severity of Mr. Boyne’s impaired insight and behavioural challenges, he was largely resistant to trialing/accepting recommendations and strategies from his therapists during his time at NRIO and therefore made limited progress with his brain injury rehabilitation.”

27We are sensitive to the appellant’s obvious challenges as a result of his accident. However, his use of illegal substances with his already impaired cognitive ability makes him a danger to other road users. Furthermore, we took into consideration the toxicology report which indicated drugs in his system.

28We find that the 90-day administrative licence suspension was warranted in this situation. The appellant’s testimony lacked reason and consistency at times. On the other hand, there was nothing to negate the testimony of the witness who provided clear and consistent testimony. We take into account the witness has expertise in this area and conducted the evaluation in accordance with normal procedure.

29Based on a careful consideration of the evidence before us, we are satisfied on a balance of probabilities that the appellant’s ability to operate a motor vehicle was impaired by a drug or combination of a drug and alcohol and that his medical condition did not significantly interfere with his performance on the evaluation that was conducted under subsection 320.28(2) of the Criminal Code.

WE ORDER AS FOLLOWS:

30For the reasons set out above, pursuant to subsection 50.1 (4) of the HTA, the Registrar’s decision to suspend the appellant’s driver’s licence is confirmed.