hwybear wrote:I do not know about the punishment before the conviction that you mention. This has been done for years on different charges (ie 90 day ADLS of a licence and not yet convicted of an impaired, CMV Impoundment as well for "x" number of days). Further, many people are out on "bail" (keep it simple) with conditions, and yet no conviction yet.
Having all that behind us, I certainly respect others point of view, and can appreciate the concern.
The 90 day suspension can be appealed; the s. 172 suspenson and impoundment cannot. Ever. There's the difference.
But the 90 day suspension has fatal flaws, too. However, no one has argued them yet.
Sections 48.3(1), (2.1) and (3) expressly states;
Suspension of licence, alcohol testing
48.3(1) Where a police officer is satisfied that a person driving or having the care, charge or control of a motor vehicle or operating or having the care or control of a vessel meets one of the criteria set out in subsection (3), the officer shall notify the Registrar of that fact, or cause the Registrar to be so notified, in the form and manner and within the time prescribed by the regulations.
No right to be heard
48.3(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.
(3) The criteria for the purpose of subsection (1) are:
2. The person failed or refused to provide a breath or blood sample in response to a demand made under section 254 of the Criminal Code
Section 50(1) expressly states;
Appeal of ninety-day suspension
50.1(1) A person whose driverÃ¢Â€Â™s licence is suspended under section 48.3 may appeal the suspension to the Tribunal.
Grounds for appeal
(2) The only grounds on which a person may appeal under subsection (1) and the only grounds on which the Tribunal may order that the suspension be set aside are,
(a) that the person whose licence was suspended is not the same individual to whom a demand for a sample of breath or blood was made, or from whom a sample of breath or blood was taken, as the case may be, under or pursuant to the provisions of the Criminal Code (Canada) referred to in subsection 48.3(3); or
(b) that the person failed or refused to comply with a demand made under section 254 of the Criminal Code
(Canada) to provide a sample of breath or blood because he or she was unable to do so for a medical reason.
First, s. 48.3(3)2, states an accused licence will be suspended if they failed or refused to provide a breath or blood sample in response to a demand made under section 254.
Then, s. 50(1) contradicted s. 48.3(3)2 by stating an accused can appeal if they meet the criteria in 50(2)(b), i.e., failed or refused to comply with a demand made under section 254 of the Code
to provide a sample of breath or blood because he or she was unable to do so for a medical reason.
However, the Criminal Code
provides statutory defences.
s. 254(5) expressly states;
Failure or refusal to comply with demand
(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.
s. 254(5) permits an accused the right to fail or refuse to comply with a demand provided they have a reasonable excuse. The reasonable excuse could be anything deemed reasonable, it does not have to be a medical reason as s. 50.1(2)(b) claims, thus, both HTA
ss. 48.3(3)2 and 50.1(2)(b) are deemed inoperative and of no force and effect due to federal paramountcy.
Moreover, s. 48.3 is unconstitutional and must be severed in its entirety from the Act
Before s. 48.3 is triggered the police must have authority in law to stop the vehicle. Then s. 48.3 relies upon Code
ss. 254 and 256. Section 254 articulates the police must have reasonable grounds
to demand a breath test. Reasonable and probable ground bears a standard of proof and a burned of proof. The Charter
applies to the Provincial government and the Ministry of Transportation is an agent of the government to where the Charter
applies. The Province has not included the notwithstanding clause in s 48, thus, in accordance with the principles of fundamental justice, which includes natural justice and due process, sanctions of any nature cannot be imposed until the Province has discharged their burden of proof.
Therefore, the province fails to; (a) initiate a hearing and discharge its burden that the police had reasonable and probable grounds to demand a breath test, and (b) fails to meet the standard of proof required, which is reasonable doubt.
On its face, s. 48.3 improperly attempts to place a reverse burden on the accused to prove his innocence, which also violates the Charter.
To enforce 48.3, Code
ss. 254 and 256 is triggered. The Code
is federal legislation. The Canadian Bill of Rights
applies to federal legislation and is independent of the Charter.
Section 48.3 also offends ss. 1(a), (b), 2(b), (e), and (f) of the Canadian Bill of Rights
and cannot be saved.
Importantly, the Licence Appeal Tribunal (LAT) hears appeals under s. 48.3. Since the government has not properly discharged its burden of proof to supend someones licence for 90 days, how does the Tribunal manage to confirm and uphold the decisions of the province to suspend someones licence?
How corrupt is the Tribunal and how stupid do they think we are?
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 tribunal in order to be acting intra vires
during the proceedings on the merits.
The principles of Common Law and Equity apply but the Tribunal fails to require the Province to discharge their burden of proof; yet still manages to issues decisions to the detriment of Ontario citizens and in favour of the Province without anyone noticing their corruptioÃ¢Â€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 their decision on relevant considerations, avoid arbitrariness and act in good faith. In this regard, the Tribunal has received 100s of appeals under the Act
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 fact that the government has won over 90 per cent of cases decided at LAT hearings despite the Province not providing the accused a hearing to determine if reasonable doubt was present and whether evidence to the contrary exist.
The Tribunal claims itÃ¢Â€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.
So just how independent of the Province is the LAT?
The Tribunal is Master of its own procedure and Administrative Tribunals are bound by a duty of fairness in deciding upon the rights of an individual. The Tribunal puppets are not immune from liability when acting contrary to law and in bad faith.
Section 5.5 of the Licence Appeal Tribunal Act
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 personÃ¢Â€Â™s duty or for any alleged neglect or default in the execution in good faith of the personÃ¢Â€Â™s duty.
When decisions and conduct of the government, Registrar or any employee of the Ministry are not made in good faith they too are provided no protection under the Act
Section 55(22) and (23) expressly states:
Protection from personal liability
(22) No action or other proceeding for damages shall be instituted against the Registrar or any employee of the Ministry for any act done in good faith
in the execution or intended execution of his or her duty under this section or for any alleged neglect or default in the execution in good faith of that duty.
Crown not relieved of liability
(23) Despite subsections 5 (2) and (4) of the Proceedings Against the Crown Act, subsection (22) does not relieve the Crown of liability in respect of a tort committed by a person mentioned in that subsection to which it would otherwise be subject.
There is sufficient proximity between an accused and government by way of the drivers licence to establish a prima facie
duty of care, such that the wrongdoer ought to have its victim in mind as a person potentially harmed. A duty to take due care arises when the person or property of one was in such proximity to the person or property of another that, if due care was not taken; damage might be done by the one to the other.
By not providing the accused a hearing to prove the government had reasonable grounds to demand a breath test they have not acted in good faith. The defect goes to the heart of the administrative fairness of the proceeding. Their decision to suspend someone licence for 90 days is also not made in good faith and cannot at anytime be confirmed by the LAT. But it rountinely is.
Thus, ever person who has had their 90 day suspension upheld by the Tribunal has a cause of action not only against the government, but also against HTA
Registrar and the Tribunal panel member(s) who made the decision to uphold the Provinces decision to suspend their licence.