If you driverÃƒÂ¢Ã‚â‚¬Ã‚â„¢s licence has been suspended under HTA s. 48.3 and the Tribunal has refused to reinstate your licence you have been scammed by the government.
Most hearings at the Tribunal are heard long before the ordinary court hearing is held that deals with the offence you have been charged with.
Under s. 48 the police are required to have reasonable and probable grounds to make the vehicle stop in relation to the alleged offence committed prior to them suspending your driverÃƒÂ¢Ã‚â‚¬Ã‚â„¢s licence.
HTA s. 48 refers to s. 254 of the Criminal Code and s. 254 requires reasonable grounds.
Section 48.3 articulates the words "care, charge or control of a motor vehicle."
There is no legal definition in the HTA for the term care, charge or control. Care and control is known to law, but care, charge and control is not.
Since your trial has not yet been held, and you have not been convicted, it is impossible for the Tribunal to uphold the MTO decision to suspend your licence as you have not been found guilty, yet the LAT uphold the suspension anyway.
It is impossible to say that an offence is committed until the party has been found guilty by the courts. Thus, when an accused is charged, it is neither proven nor presumed that the accused has committed an offence, but there are reasonable grounds for believing that this has occurred.
The laying of charges in the legal process does not involve a determination of guilt, thus, the presumption of innocence under s. 11(d) as a principle of fundamental justice under s. 7 of the Charter still applies and licence suspension and vehicle impoundment sanctions cannot be imposed until a determination of guilt has been entered.
Once the trial begins, the burden is on the Province to prove the police had reasonable and probable grounds to make the stop and demand a breath sample.
Until the Province has discharged its burden of proof you are not guilty of anything and the licence suspension is not valid.
The accused has no burden of proof. The Province bears the burden and the burden never shifts to the accused. The standard of proof the Province bears is beyond a reasonable doubt. The choice whether to submit to a rebuttal belongs to the accused and he or she retains the right to introduce such evidence despite its weaknesses.
The licence suspension is an administrative decision under administrative law. Reasonable and probable grounds, and beyond a reasonable doubt, apply to criminal law; not administrative law.
The LAT has no jurisdiction to deal with this subject matter.
Procedural fairness and natural justice are elementary protections designed to prevent the arbitrary exercise of political power, and is fundamental to the rule of law and the common law.
To this extent, jurisdictional questions must be answered correctly by the LAT in order to be acting intra vires during the proceedings on the merits. The LAT has no jurisdiction to hear suspension appeals due to the reasonable doubt standard of proof in s. 254.
The principles of Common Law and Equity apply but the Tribunal fails to apply the proper burden of proof and fails to require the Province to discharge their burden of proof; yet the LAT still managed to issues decisions to the detriment of Ontario citizens and in favour of the Province without anyone noticing their corruptioÃƒÂ¢Ã‚â‚¬Ã‚Â¦errors.
The specialized role and expertise of the LAT is reflected in the powers and duties assigned to the Tribunal pursuant to the Act. Interpreting the HTA falls squarely within the expertise of LAT, who function within the special sphere of the HTA.
The LAT is bound to base his or her decision on relevant considerations, avoid arbitrariness and act in good faith. In this regard, the Tribunal has received 100s of appeals under the Act in the past and issued equally as many orders to date, and, accordingly, has developed an incorrect body of jurisprudence that guides it and functions as a precedent.
This argument is based on the claim that the Government has won over 90 per cent of cases decided at hearing despite the Province not providing the accused a hearing to determine if reasonable doubt was present and whether evidence to the contrary exist in s. 48 cases.
The Tribunal claims itÃƒÂ¢Ã‚â‚¬Ã‚â„¢s independent of the Province yet the field of the administration of Justice rests entire within the exclusive power of the Province under s. 92(14) of the Constitution Act, 1867.
Under the Licence Appeal Tribunal Act, the Lieutenant Governor in Council appoints the members of the LAT and designates the term of their appointment. The Lieutenant Governor in Council appoints the Commissioner and deputy Commissioners of the Ontario Provincial Police. The Lieutenant Governor in Council also appoints the HTA Registrar and Deputy Registrar.
The Tribunal is Master of its own procedure and its puppets are not immune from liability when acting contrary to law and in bad faith.
Section 5.5 of the Licence Appeal Tribunal Act states;
No personal liability
5.5 No action or other proceeding for damages shall be instituted against any member of the Tribunal or anyone appointed to the service of the Tribunal for any act done in good faith in the execution or intended execution of the personÃƒÂ¢Ã‚â‚¬Ã‚â„¢s duty or for any alleged neglect or default in the execution in good faith of the personÃƒÂ¢Ã‚â‚¬Ã‚â„¢s duty.
It is clear that in circumstances where a court finds an accused person not guilty of the charge at trial, it is contrary to the principles of fundamental justice to allow a 90-day suspension of the driverÃƒÂ¢Ã‚â‚¬Ã‚â„¢s licence to be imposed in exactly the same circumstances based only on the decision of the investigating police officer.
Importantly, s. 48.3(3) allows the police to suspend your licence if you refuse to provide a blood and breath sample on demand.
However, the Criminal Code not only provides offences, it also provides defences.
Section 254(5) provides everyone the legal right to refuse to provide a breath sample provides they have a reasonable excuse to refuse.
Thus, the suspension criteria set out in HTA s. 48.(3)3 is of no force and effect due to the doctrine of federal paramountcy.
Whether or not an accused has a reasonable excuse to refuse to provide the breath sample can on be determined by a trier of fact in a court proceeding.
The province has also legislated that for the purposes of HTA s. 48.3, the factual basis, upon which the statutory element (that a person have a concentration of alcohol in blood over 80) is founded, is established in implementing the demand portion only of s. 254 of the Criminal Code, without regard for those safeguards contained in s. 258, which are designed to meet and protect against the frailties of a mechanical measure of breath/alcohol content.
One should be aware immediately of the two most obvious failings of the provincial scheme where the suspension can result from either, (a) one blow into a breathalyzer instead of two, or (b) where both blows exceed the two-hour time limit.
The conclusion that there is a potentially unlimited time frame within the provincial legislation to satisfy the statutory element is inevitable.
Section 48.3 treats indistinguishably the following scenarios:
ÃƒÂ¢Ã‚â‚¬Ã‚â€ persons in care or control and drivers;
ÃƒÂ¢Ã‚â‚¬Ã‚â€ persons who refuse or fail to blow even though they have had no benefit of legal advice and those who act knowingly and maliciously;
ÃƒÂ¢Ã‚â‚¬Ã‚â€ persons who have just around the legal limit and those who are greatly in excess;
ÃƒÂ¢Ã‚â‚¬Ã‚â€ persons with no prior record and those with lengthy records;
ÃƒÂ¢Ã‚â‚¬Ã‚â€ persons who drink reasonably and those who suffer from alcoholism;
ÃƒÂ¢Ã‚â‚¬Ã‚â€ cases involving cars not even moving and cases involving serious accidents;
ÃƒÂ¢Ã‚â‚¬Ã‚â€ persons whose licence is absolutely essential to the welfare of themselves and their families and persons whose licence is of no great moment;
ÃƒÂ¢Ã‚â‚¬Ã‚â€ cases where the machine involved is an ÃƒÂ¢Ã‚â‚¬Ã‚Å“approved deviceÃƒÂ¢Ã‚â‚¬Ã‚Â and where it is a ÃƒÂ¢Ã‚â‚¬Ã‚Å“screening deviceÃƒÂ¢Ã‚â‚¬Ã‚Â; and
ÃƒÂ¢Ã‚â‚¬Ã‚â€ cases where the machine is working properly and where it is not.
Last edited by Lawman on Sat Jul 04, 2009 8:50 pm, edited 1 time in total.
The Licence Appeal Tribunal refuses to hear cases relating to licence suspensions under s. 48 or s. 172.
However, HTA 50.(1) and Licence Tribunal Act s. 3.(1) requires them to hear such cases yet without justification the Tribunal refuses to.
Section 48.3(2.1) allows appeals before the Tribunal or before the court.
No right to be heard
(2.1) A person has no right to be heard before or after the notification by the officer, or before or after the Registrar suspends the licence, but this subsection does not affect the taking of any proceeding in court.
http://www.e-laws.gov.on.ca/html/statut ... e.htm#BK86
HTA s 50.1(1) confirms the Tribunal hears such cases despite the accused being permitted to also proceed through the ordinary court.
Appeal of ninety-day suspension
50.1 (1) A person whose driverÃƒÂ¢Ã‚â‚¬Ã‚â„¢s licence is suspended under section 48.3 may appeal the suspension to the Tribunal
http://www.e-laws.gov.on.ca/html/statut ... e.htm#BK89
48.3(2.1) states a person has no right to be heard before or after the notification by the officer, or before or after the Registrar suspends the licence, then s. 50.1(1) provides you the right to appeal to the Tribunal.
It's completely bizarre!
HTA s. 50.(1) articulates that a person aggrieved by a decision of the Registrar under section 17 or 47 may appeal the decision to the Tribunal.
50. (1) Every person aggrieved by a decision of the Minister made under subsection 32 (5) for which there is a right of appeal pursuant to a regulation made under clause 32 (14) (n) or a decision of the Registrar under section 17 or 47 may appeal the decision to the Tribunal.
http://www.e-laws.gov.on.ca/html/statut ... e.htm#BK88
While s. 48 (2), (3) and (4) and s. 172 (6) provide for suspensions the Registrar must first have the express grant of power to suspend a licence. That express grant of power is provided to him under HTA s. 47.
HTA s. 47 articulates that the Registrar may suspend a driverÃƒÂ¢Ã‚â‚¬Ã‚â„¢s licence under 47.(1)(b) on grounds cited in clause (d) and/or (g).
Suspension and cancellation of licence, etc., general
47. (1) Subject to section 47.1, the Registrar may suspend or cancel,
(a) the plate portion of a permit as defined in Part II;
(b) a driverÃƒÂ¢Ã‚â‚¬Ã‚â„¢s licence; or
(c) a CVOR certificate,
on the grounds of,
(d) misconduct for which the holder is responsible, directly or indirectly, related to the operation or driving of a motor vehicle;
(g) any other sufficient reason not referred to in clause (d), (e) or (f).
http://www.e-laws.gov.on.ca/html/statut ... e.htm#BK81
Section 47 is subject to s. 47.1 but s. 47.1 only deals with clause (a) and (c) of s. 47 and is not relevant in relation to the driverÃƒÂ¢Ã‚â‚¬Ã‚â„¢s licence being suspended under s. 47(b).
Notice, proposed action s. 47 or safety concern
Notice of proposed action, s. 47
47.1 (1) Before taking any action under clause 47 (1) (a) or (c) or subsection 47 (2), the Registrar shall notify the person whose plate portion of a permit or CVOR certificate is to be affected of his or her proposed action. 1996, c. 33, s. 8.
http://www.e-laws.gov.on.ca/html/statut ... e.htm#BK82
When the police suspend your licence at the roadside they are doing it on behalf of the Minister, who has authorize any public servant, including the Registrar to exercise his duties.
http://www.e-laws.gov.on.ca/html/statut ... _e.htm#BK4
A police officer or officer appointed for carrying out the provisions of this Act, is is only seizing the driver's licence on behalf of the Registrar in the lawful execution of his or her duties and responsibilities.
Police officer may secure possession of suspended licence
212. (1) Where by or under this Act a driverÃƒÂ¢Ã‚â‚¬Ã‚â„¢s licence is suspended and the person to whom the suspension applies refuses or fails to surrender his or her licence to the Registrar forthwith, any police officer may take possession of the licence and return it to the Registrar and the Registrar may direct any police officer to take possession of the licence and return it to the Registrar
http://www.e-laws.gov.on.ca/html/statut ... .htm#BK332
Appointment of officers for carrying out provisions of Act
223. (1) The Minister may appoint one or more persons on the staff of the Ministry or any other ministry of the Government of Ontario as an officer or officers for the purpose of carrying out all or any of the provisions of this Act, and any person so appointed has authority to act as a constable throughout Ontario for the purpose.
http://www.e-laws.gov.on.ca/html/statut ... .htm#BK345
As evidence above, s. 48.3 allows a person to have their appeal heard by the Tribunal or the court.
Both ss. 48 and 172 use vitually the same statutory construction as s. 48.3.
No appeal or hearing
There is no appeal from, or right to be heard before, the suspension of a driverÃƒÂ¢Ã‚â‚¬Ã‚â„¢s licence under this section, but this subsection does not affect the taking of any proceeding in court.
No right to be heard
A person has no right to be heard before or after the notification by the officer, or before or after the Registrar suspends the licence, but this subsection does not affect the taking of any proceeding in court.
No appeal or hearing
There is no appeal from, or right to be heard before, a vehicle detention, driverÃƒÂ¢Ã‚â‚¬Ã‚â„¢s licence suspension or vehicle impoundment under subsection (5), (6) or (7), but this subsection does not affect the taking of any proceeding in court.
A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary. The text of the provision is used first, and it is read as it is written, using the ordinary meaning of the words of the statute.
Interpreting a provision always turns to one cardinal canon before all others; that a legislature says in a provision what it means and means in a provision what it says there.
Another rule of statutory construction is that its operation is not to be given to a statute so as to impair an existing right, actual obligation or correct interpretation.
Thus any person whose licence is suspended under HTA ss. 48 or 172 is having their licence suspended due to misconduct for which the holder is responsible, directly or indirectly, related to the operation or driving of a motor vehicle under s. 47(d).
Therefore, any person can legally appeal the decision to the Licence Appeal Tribunal under HTA s. 50. (1) yet the Tribunal is illegally refusing jurisdiction to hear the case.
It is completely bizarre that s. 48.3(2.1) states there a person has no right to be heard before or after the notification by the officer, or before or after the Registrar suspends the licence yet the Tribunal hears the case.
Meanwhile ss. 48(9) and 172(13) do NOT use the words after (it only uses the words before) yet the Tribunal refuses to hear the cases after the suspensions are issued.
And as evidenced in s. 50.(1), the Tribunal is obligated to hear cases.
In light of HTA s. 50.(1) articulating appeals are available, the LAT without doubt violates your constitutional rights by refusing to hear your case, and this is further evidenced in s. 3.1 of the Licence Tribunal Act.
Duties and powers
3. (1) The Tribunal shall hold the hearings and perform the other duties that are assigned to it by or under any Act or regulation.
http://www.e-laws.gov.on.ca/html/statut ... 9l12_e.htm
HTA s. 50.(3) provides further evidence.
A person aggrieved by a decision of the Tribunal with respect to a decision of the Registrar under clause 47 (1) (b) may appeal the decision of the Tribunal to a judge of the Superior Court of Justice.
Clause 47 (1)(b) deals solely with licence suspensions.
Appeal to judge
(3) Every person aggrieved by a decision of the Tribunal with respect to a decision of the Minister under subsection 32 (5) for which there is a right of appeal pursuant to a regulation made under clause 32 (14) (n) or a decision of the Registrar under clause 47 (1) (b) may, within 30 days after a notice of the decision is sent to the personÃƒÂ¢Ã‚â‚¬Ã‚â„¢s latest address as recorded with the Tribunal, appeal the decision of the Tribunal to a judge of the Superior Court of Justice.
http://www.e-laws.gov.on.ca/html/statut ... e.htm#BK88
Last edited by Lawman on Sun Jul 05, 2009 8:18 pm, edited 2 times in total.
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