Citation: Maynard v. Registrar of Motor Vehicles, 2022 ONLAT-HTA 13607
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 48.1(1) of the Act
Between
Christopher Maynard
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
PANEL: Dr. P. Savage, M.D., Member K. Livingstone, Member
APPEARANCES:
For the Appellant: Adam Little, counsel
For the Respondent: Kyle Biel, agent
Date of hearing by teleconference April 5, 2022
REASONS FOR DECISION AND ORDER:
A. Overview
1The appellant appeals the administrative suspension of his licence, pursuant to s. 48.3.1 of the Highway Traffic Act (“HTA”) imposed on June 30, 2021.
2On that date the appellant was stopped by police while he was operating a motor vehicle. Investigation by the police after the stop resulted in the appellant being given a Standard Field Sobriety Test (“SFST”) demand pursuant to provisions of the Criminal Code. Based on the results of the SFST, the appellant was arrested for the offence of impaired operation of a motor vehicle by a drug, contrary to the provisions of the Criminal Code.
3The appellant was transported back to the police station where, pursuant to a Drug Recognition Evaluation (“DRE”) demand, he performed certain tests after which the DRE officer concluded the appellant’s ability to operate a motor vehicle was impaired by a drug(s). The appellant was then required to provide a urine sample which was subsequently forwarded to the Centre of Forensic Science (CFS). His driver’s licence was then administratively suspended as noted above.
B. Issue
4The issue in this appeal is whether the administrative suspension of the appellant’s driver’s licence should be set aside on the ground that:
a. The appellant’s ability to operate a motor vehicle was not impaired by a drug, or a combination of a drug and alcohol, and
b. The appellant had a medical condition at the time of the suspension that impaired his performance of the evaluation that was conducted by police.
C. Result
5For reasons that follow, we set aside the decision of the Registrar and order that the suspension be set aside.
D. Law
6A person whose driver’s licence has been suspended under section 48.3.1 of the HTA may appeal the suspension to the Tribunal under section 50.1 of the HTA. Relevant to this appeal, section 50.1(2)(b)(ii) of the HTA sets out one of the two grounds on which on a person may appeal a section 48.3.1 suspension of their driver’s licence:
ii. that the person’s ability to operate a motor vehicle 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 suspension, that impaired his or her performance of the evaluation that was conducted under subsection 320.28 (2) of the Criminal Code(Canada). [underlining added]
7The appellant has the burden of proof on a balance of probabilities. Section 50.1(2)(b)(ii) requires the appellant prove both that his ability to operate a motor vehicle was not impaired by drug or a combination of drug and alcohol, and that his performance of the evaluation was impaired by a medical condition.
8Following a hearing, the Tribunal may, under s.50.1(4) of the HTA, confirm the suspension or order that the suspension be set aside
E. Evidence and Analysis
9The Registrar submitted the following evidence at the hearing:
a. Notice to Registrar
b. drug influence report
c. toxicology report
d. notice of appeal
e. letter from Dr Armstrong dated January 10, 2022
f. letter from Dr. Armstrong, dated July 6, 2021
10For reasons that were unclear, the Registrar did not call either the civilian who made the initial call to the police or the officer who observed the appellant driving, dealt with him at the scene and arrested him at 9:42 am.
11However, the Registrar did call officer Douglas Avery, a member of the Barrie Police Service and a qualified drug recognition evaluation (DRE) officer, having been so qualified in 2018. Officer Avery provided the following evidence:
12Officer Avery was provided with information from the arresting officer as to his observations of the appellant which resulted in the SFST and his subsequent arrest.
13After his arrest, the appellant was taken to the police station and turned over to Officer Avery. Once he was in the evaluation room, he was cautioned and read a DRE demand.
14The officer noted the appellant was co-operative and “somewhat talkative”. He was polite and didn’t shy away from answering the officer’s questions. He was wearing Doc Marten slip-on type shoes and his overall appearance was “unkept”, “very sweaty and flushed”. His eyes were watery and bloodshot and he had a low “raspy” voice.
15The appellant told the officer he had consumed an energy drink sometime before being stopped. He said he had eight hours sleep the previous night. He reported having type 2 diabetes, back pain and arthritis in his hip. He said he saw a doctor four or five times a year and was taking morphine and Percocet for pain. He had last taken the morphine before bed and had taken a Percocet in the morning. He reported he suffered from numbness in both his legs, although the officer noted no “signs of distress” while the appellant was walking with the officer in the police station.
16The officer had the appellant perform a series of balance tests. The appellant was given the choice of taking his shoes off or leaving them on and he chose the latter. During the one leg stand test, the officer noted the appellant struggled to maintain his balance, needing to touch the wall to assist him when attempting to complete the test on both his left and right foot. The test was stopped early to prevent injury.
17On the finger to nose test, the appellant placed the pad of his left finger on his nose rather than the tip several times and one time placed the pad of his finger under his nose. Four times the officer had to remind the appellant to return his arm to his side.
18During the balance test, the appellant swayed and when asked to count to thirty seconds, the actual time lapsed was 39 seconds. He encountered difficulty completing the walk and turn test, losing his balance and stepping off the line. The officer concluded the appellant’s “internal clock was slow”.
19The officer noted both the appellant’s systolic and diastolic blood pressure was above the DRE average range and his pupil size in a lighted room was below the DRE average range of 2.5 mm to 5.0 mm, being 2.0 mm. As well, his pupil size in near darkness was 4.5 mm, again being below the DRE average of 5.0 mm to 8.5 mm.
20Based on the testing and his observations, the officer formed the opinion that, at the time of the evaluation, the appellant’s ability to operate a motor vehicle was impaired “by a narcotic analgesic and a central nervous system stimulant”. The appellant was issued a demand for urine which he provided. The sample was forwarded to the Centre of Forensic Science (CFS) for analysis.
21The officer gave his evidence in a straightforward manner. He described how a DRE officer completing the tests sometimes comes to a “fork in the road” where he determines whether he is dealing with a strictly medical condition or what he believes is impairment. In the case of a medical condition, his training is that he would report the issue to the Ministry of Transportation for follow up. He said in his time doing the DRE he has never concluded the issue was strictly a medical condition.
22In response to a question by appellant counsel, the officer said his observations and testing did not support the presence of cannabis.
23The toxicology report disclosed the presence of morphine, oxycodone, oxymorphone, pregabalin and carboxytetrahydrocannabinol (carboxy-THC), which is a metabolite of cannabis, in the appellant’s urine. The report noted the findings could not be used to determine dose, route of administration, when the drug was administered or whether the person was impaired.
24The forensic scientist who authored the report noted that morphine, oxycodone, oxymorphone and carboxy-THC can all impair an individual’s ability to operate a motor vehicle; however, the effects are “dependant on the blood concentration and tolerance of the individual to the drug. With respect to pregabalin, one of the side effects may be sedation and if that is experienced it can impair a person’s ability to operate a motor vehicle.”
25As noted by the toxicologist, the drug toxicology was a qualitative test and in no way helpful in assessing the quantity of any of the medications or drugs that were taken by the appellant or of any use as a measure of impairment.
26The two letters from the appellant’s attending doctor, Dr. Armstrong, were critical in understanding the appellant’s medical condition at the time he was arrested.
27Dr. Armstrong has been the appellant’s family physician since 2002. He confirmed the appellant was diagnosed with type 2 diabetes in 2004 and with diabetic neuropathy, which is a complication of diabetes, in 2015. He has had ongoing back pain since 2012. As a result, he has been on the same daily dose of long-acting morphine since 2016. Additionally, he has been taking pregabalin since 2015 and Percocet since 2016. The appellant also has an inhaler for asthma and prescription medicine for heart disease and depression.
28Dr. Armstrong advised that the findings of the CFS toxicology report were consistent with the prescribed medications that the appellant takes, except for the carboxy-THC, which is found in cannabis products. He added that the appellant told him he had taken several gummies to help him sleep in the weeks prior to his arrest.
29The doctor also commented on how the diabetic neuropathy may affect the DRE examination. He said the neuropathy that the appellant experiences “results in a loss of sensation and co-ordination in his feet and lower legs. Secondary to this the appellant has significant challenges with the ability to walk heel to toe” and “with his balance”. He added, “it is not unexpected that he would be unable to perform these tests as a result of the neuropathy rather than due to impairment from his chronic opioid use”.
30Dr. Armstrong agreed with the toxicologist that the medications the appellant is taking have the “potential to impair the ability to drive in someone who has not developed a tolerance to them or have been taking them chronically”. As the appellant has been taking the medications in question for some five years or more, the doctor did not feel that they impact the appellant’s ability to operate a motor vehicle.
31Importantly, the doctor said he had never had any indication or concerns about any impairment of the appellant’s ability to operate a motor vehicle resulting from his opioid use. Nor had there been any concerns about misuse or overuse of his medication or about any side effects that would impair his ability to operate a motor vehicle.
32Dr. Armstrong reported the appellant had a history of heavy perspiration when he was in his office for routine visits. He added that in his experience it is common for individuals to use the opposite side when instructed to do something with one side and that this is not necessarily a sign of impairment.
33The appellant testified. We found him to be straightforward and completely without guile.
34He is forty-nine years old and has been driving a truck for 25 years. He said, “my licence is my life and I don’t mess with it”. There are no entries on his driving record other than the suspension which is the subject matter of this hearing.
35The appellant acknowledged several medical issues including diabetes, chronic back pain and diabetic neuropathy, which resulted in being prescribed the medications. He has recently undergone a significant weight loss. With respect to the gummies mentioned by Dr. Armstrong, he said a friend had given him some gummies about 2 weeks before the incident as he was having trouble sleeping. He didn’t like the effect of them and didn’t have anymore. He said he didn’t smoke “weed”.
36With respect to the day of his arrest, he said he had been working that day picking up a load of material for delivery. He took his regular dose of Percocet at 8:30 am. In his evidence he was very clear that nothing was different about his day in terms of medication. He said he felt normal, like any other day.
37The appellant’s version of his driving that day was the only evidence on that issue before the hearing, although it was apparent others had witnessed it. He said someone honked at him as he was taking an off ramp. He remembered changing lanes coming off the ramp and up to a traffic light, so as not to block the intersection while turning, as the traffic was a little backed up. He described the driver of a black vehicle who seemed to be taking exception to his lane change and then being pulled over by the police. He did not feel he had done anything wrong with respect to his driving and this was not challenged by other evidence.
38His recollection of the incident appeared to be clear and unwavering. During the roadside testing he said he felt the officer was “targeting me” and by the time he got to the police station, he was “a wreck”. He said the DRE officer at the station was polite with him. He acknowledged he had difficulty performing the physical tests as he has little feeling in his legs. He said he remembers “everything to a t” and was co-operative because “he didn’t think he had anything to hide”.
39The appellant said it was not unusual for him to fall or stumble while walking. His lifestyle does not include anything sports or activities that require stamina or co-ordination.
40In his submissions the respondent argued that we should accept the finding of the DRE officer and conclude that the appellant’s ability to operate a motor vehicle was impaired by a drug. With respect, after reviewing the evidence in its entirety, we disagree.
41Pursuant to s 16(b) of the Statutory Powers Procedure Act, a tribunal may take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge. This panel included Dr. Peter Savage, who is a duly certified medical doctor in the province of Ontario. Based on Dr. Savage’s knowledge, we take notice that while the officer’s observations with respect to blood pressure and pulse was that they were mildly elevated, this is equally consistent with a person stressed in what is a naturally stressful situation as with drug impairment.
42Medical experience would conclude that the appellant’s pupils were at the lowest range of normal and were equal. They returned to their normal size appropriately. Additionally, the fact that they are at the low range of normal is consistent with taking long-acting morphine medication.
43Dr. Armstrong’s report concerning the appellant’s challenges with diabetic neuropathy provide a reasonable explanation for the results of the physical tests. Except for the presence of carboxy-THC, the toxicology reports confirmed the report the appellant made to the officer about the medication he was taking. The officer did not observe anything during the testing that raised concerns about the presence of cannabis. This is supportive of the appellant’s evidence that it had been several days since he had taken the gummies.
44The appellant impressed us with his seeming genuine presentation both in his recollection and demeanour. We accept his evidence.
45Based on the above, we are satisfied on the balance of probabilities that the appellant’s ability to operate a motor vehicle was not impaired by a drug. Further, we are satisfied on a balance of probabilities that the appellant had a medical condition of diabetic neuropathy at the time of the suspension that impaired his performance of the evaluation that was conducted by police.
F. Order
46For the reasons set out above, pursuant to subsection 50.1(4) of the Highway Traffic Act, we therefore set aside the decision of the Registrar and order that the suspension be set aside.
Dr. P. Savage, M.D., Member
K. Livingstone, Member
Released: May 9, 2022