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PROPOSED RESOLUTION


AGE DISCRIMINATION OF THOSE 80 AND OVER


The Divisional Court dismissed the applicant’s application based upon the following reasons:

1. That “Statistics aside , the problematic aspects of aging for some individuals are a matter of public knowledge and common sense, as Chief Justice McLachlin noted. Some elderly citizens do have issues with some “side effects” of medication, illness such as diabetes and dementia , physical disabilities, and impaired vision”— (Lisa Monforton, “Thanks for taking my license away”, The Globe and Mail, April 17, 2014 (Court ruling,  # 33 and #47)

2. That as the Ontario individualized program was the same as the individualized test in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights ) case (Court ruling, item # 11 and #12)  by a medical doctor it had no age distinction per se (Court ruling # 45)and therefore the Ontario program was not a violation of  s. 15 (1) of the Charter of Rights and Freedoms equality rights equal protection and equal benefit of the law without age discrimination. Having no age distinction per se, s. 1 of the Charter as to reasonable limits for the age discrimination would be moot. (Court ruling # 50)
The Supreme Court of Canada denied the applicant’s application for leave to appeal the Divisional court ruling of June 12, 2014 dismissing the applicant’s application based upon the accident statistics that Ontario was guilty of violating s. 15 (1) of the Charter of Rights and Freedoms equality rights as to age discrimination of those 80 and over in the requirement that they must pass a test every two years in order to renew their driver’s license.
The applicant  makes the following argument to the Ontario PC party to revisit upon election as the government  s. 47 (2) of the Ontario Human Rights code ,and  s. 19 “despite the Act”,  and s. 16 (a) of the regulation 340/94 requiring all those 80 and over to pass a test every two years in order to renew their driver’s license. It is the position of the applicant that the Supreme Court erred in dismissing the applicant’s application for leave to appeal and motion to a judge for reconsideration the Divisional Court ruling dismissing the applicant’s allegation that s. 16 (a) of regulation 340/94 of the Highway Traffic Act was a violation of s. 15(1) of the Charter as to age discrimination of those 80 and over, in that those 80 and over must pass a test every two years in order to renew their driver’s license.
It is the applicant’s position that the courts erred in ignoring the following evidence contrary to the ruling of the court:
a. That the Divisional court’s common sense logical or face validity argument of decline in physical and mental functions as one ages as to collisions was not supported by statistical validity or accident statistics of those 80 and over, where statistical validity is considered the more reliable of the two concepts.“It is important to emphasize that most senior drivers with valid licenses
choose not to drive or to drive very little. For this reason, the proportion of drivers aged 80and over who are actually involved in any given year remains relatively small (approximately 4 percent). By contrast, approximately 10 percent of drivers age 16-19 have been involved in a collision in any given year.” (Ontario Elzohairy Affidavit ) 
b.  that the individualized test in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights )  by a medical doctor (Divisional court ruling, #11)was not the same as the Ontario individualized program (group sessions with some individual components) conducted by a lay person.
c. that although the court ruled that as Ontario had an individualized program and had no age distinction per se (Divisional court #45), and s.1 of the Chart as to reasonable limits for the age discrimination would not apply (Divisional court #50), the Ontario individualized program in fact did have an age distinction of 80 and over, and therefore s.1 analysis would apply.
d. that in 2011 , of the 121, 862, eighty and over drivers tested , less than two percent were required to take a driver’s test, in other words the “some individuals with collisions” justified the discrimination of all the others (Divisional court # 28) a violation of s. 1 of the charter as to reasonable limits for the discrimination.
e. that in 2015 if using the best cognitive, it would  potentially prevent six crashes per 1000 people over 65 screened, but at the price of stopping the driving of 121 people who would not have had a crash, in other words it was acceptable to stop the driving of 121 people to prevent potentially six crashes (Ontario’s Supplementary Record tab C, page 9)a violation of s. 1 of the charter as to reasonable limits for the discrimination.
f. that “The majority of senior drivers adapt quite well to the age-related impairments which may affect their driving performance. Research on the amount and type of driving done by senior drivers shows they tend to compensate for losses in ability by reducing their annual distance driven, vehicle speed and freeway use. Senior drivers are also less likely to drive at night and during peak hours (Tasca,1995 at 4; Tasca , 1998 at 36)” (Ontario Elzohairy Affidavit)
g. that the Canadian Traffic Injury Research Foundation concluded the following:
“There is considerable debate regarding whether aged-based screening is both relevant and beneficial to elderly drivers and all road users”.(Respondent’s Supplementary Record, tab C, page 5)
h.that  Revera and the International Federation on Ageing reported : “ageism- stereotyping or discriminating against people based on their age- is widespread, and the most tolerated form of social prejudice in Canada”. (Applicant, Revera report, page 5) in effect a violation of the second part of the test for discrimination in Knapp Supra paras 17:“Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?”
i. that Ontario provided no evidence that its individualized program has improved safety on Ontario’s roads to justify its individualized program, the presumption for the Ontario program
being that safety on Ontario’s roads would improve with the age discrimination.
j. that the Ontario government legislated  s. 47 (2) of the Ontario Human Rights code ,and  s. 19 “despite the Act”,  and s. 16 (a) of the regulation 340/94 requiring all those 80 and over to pass a test every two years in order to renew their driver’s license in order to preclude individual adjudication, in other words, as a matter of convenience.  I quote: “Instead s. 19 reflects a considered decision of the government to preclude the individual adjudication on a case by case basis, of Human Rights Code applications” (Ontario Tribunal response, # 84)
The applicant notes that although Chief Justice McLachlan was not a party to the Divisional court ruling, the Divisional court used the ruling in the British Columbia case, when she was then a judge of the British Columbia court as a basis for their ruling. Although Chief Justice McLachlan would be able to provide valuable input for the Supreme court, her participation in the denying the applicant’s application for leave to appeal raises serious questions as to  her independence for if she supported the applicant’s appeal it would put in question her ruling in the British Columbia case. For that reason in the applicant’s opinion she should have excused (recused)  herself from ruling on the applicant’s appeal. Excluding Chief Justice McLachlan , two only, or less than a majority of the nine judges of the Supreme court heard the applicant’s appeal.


PROPOSED RESOLUTION


It is recommended that the applicant’s proposed resolution be approved as a recommended resolution for presentation to the next annual policy conference of the party, and upon approval, that the PC party upon election as government revisit  s. 47 (2) of the Ontario Human Rights code and operationally s. 19 “despite the Act”,  and s. 16 (a) of the regulation 340/94 requiring all those 80 and over to pass a test every two years in order to renew their driver’s license.

Respectfully submitted,

H. Ken MacLennan,
1608 Charles St.,
Cornwall, Ontario K6J 1Z4

Tel /Fax# 613-932-0208

Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

 

September 19, 2016
Roger Bilodeau Q.C.,
Registrar Supreme court of Canada
301 Wellington St.
Ottawa, Ontario, Canada K1A 0J1


Re: Rule 73


Dear Sir:


Further to my letter of January 4, 2016 acknowledging your letter of December 16, 2015 wherein you  confirmed in accordance with Rule 73 that my motion for reconsideration was denied and that all possible avenues have been exhausted, and my follow up letter of May 16, 2016 advising of a proposed resolution to  to the Ontario PC party seeking the Party to revisit, if elected,  s. 47 (2) of the Ontario Human Rights code ,and operationally s. 19 “despite the Act”,  and s. 16 (a) of the regulation 340/94 requiring all those 80 and over to pass a test every two years in order to renew their driver’s license, I continue to be concerned as to the role of the Chief Justice McLachlan in participating in the ruling dismissing my application.


Although Chief Justice McLachlan would be able to provide valuable input into my application for leave to appeal , I respectfully submit that her independence would be compromised for if she agreed to support my appeal it would put in question her role in the ruling in the British Columbia case. For that reason ,in my opinion, she should have excused (recused)  herself from ruling on my appeal as she was not a completely independent party in considering my application for leave to appeal.


y second concern is the Supreme court’s acceptance of the Divisional court ruling that there was no age distinction per se. I paraphrase the Court’s ruling. The Divisional court ruled that as the Ontario individualized program was an individualized test( British Columbia ruling ), it was not substantively discriminatory, as s. 15 (1) and 15 (2) removed the legislation from this characterization, (even though neither Ontario nor the Divisional court provided any evidence that the amelioration under s. 15 (2) had occurred ) and therefore the Ontario program did not survive the first part of the test as annunciated by Chief Justice McLachlan an Justice Abella in R. v. Knapp as there was no age distinction, (even if the individualized program of Ontario had the age distinction of 80 and over). 


The forgoing characterization by the divisional court ,using the British Columbia ruling of which the Chief Justice was a party, could be likened to Heisenberg’s “Uncertainty Principle” in
science, if I am permitted some degree of levity,  which can be summarized as follows: I quote and paraphrase in part. The uncertainty principle is one of the most famous (and probably misunderstood) ideas in physics. It tells us that there is a fuzziness in nature, a fundamental limit to what we can know about the behaviour of quantum particles and, therefore, the smallest scales of nature. Among its many counter-intuitive ideas, quantum theory proposed that energy was not continuous but instead came in discrete packets (quanta) and that light could be described as both a wave and a stream of these quanta. Of these scales, the most we can hope for is to calculate probabilities for where things are and how they will behave. Heisenberg’s simple idea tells us why atoms don't implode, how the sun manages to shine and, strangely, that the vacuum of space is not actually empty. Vacuums are often defined as the absence of everything. But not so in quantum theory. There is an inherent uncertainty in the amount of energy involved in quantum processes, and in the time it takes for those processes to happen. Seeing a subatomic particle, such as an electron, is not so simple. Instead of position and momentum, Heisenberg's equation can also be expressed in terms of energy and time. Again, the more constrained one variable is, the less constrained the other is. It is therefore possible that, for very, very short periods of time, a quantum system's energy can be highly uncertain, so much that particles can appear out of the vacuum.

These "virtual particles" appear in pairs – an electron and its antimatter pair, the positron, say – for a short while and then annihilate each other. This is well within the laws of quantum physics, as long as the particles only exist fleetingly and disappear when their time is up. Uncertainty, then, is nothing to worry about in quantum physics and, in fact, we wouldn't be here if this principle didn't exist. One way to think about the uncertainty principle is as an extension of how we see and measure things in the everyday world. You can read these words because particles of light, photons, have bounced off the screen or paper and reached your eyes. Each photon on that path carries with it some information about the surface it has bounced from, at the speed of light. Seeing a subatomic particle, such as an electron, is not so simple. You might similarly bounce a photon off it and then hope to detect that photon with an instrument. But chances are that the photon will impart some momentum to the electron as it hits it and change the path of the particle you are trying to measure. Or else, given that quantum particles often move so fast, the electron may no longer be in the place it was when the photon originally bounced off it. Either way, your observation of either position or momentum will be inaccurate and, more important, the act of observation affects the particle being observed. Uncertainty, then, is nothing to worry about in quantum physics and, in fact, we wouldn't be here if this principle didn't exist.” (From the Guardian : Science -A short history of equations “What is Heisenberg’s Uncertainty Principle?)


Applying the “Uncertainty principle” to the Divisional court ruling, where the court used the comments of Chief Justice McLachlan, in part, for its justification for dismissing the applicant’s application, the aforementioned court could be considered also to be in a vacuum in quantum theory. The “virtual particles”, being the  Ontario Individualized program, and the age distinction of 80 and over, occurring in pairs. The negative element being the Ontario Individualized program, and the positive part, the anti-matter positron ,being the age distinction of 80 and over. They exist fleetingly and disappear when their time is up . This is known metaphorically as
quantum tunnelling because the escaping particle ,80 and over, has to somehow dig its way through an energy barrier that it cannot leap over ,escapes at the speed of light ,and all we see is the  Ontario Individualized program. Is it because of Heisenberg’s “Uncertainty principle” that there would be  no age distinction per se, as we only see is the Ontario individualized program ?

The applicant agrees with the common sense argument of the Chief Justice that as one ages one is more susceptible to decline in both mental and physical abilities. Where the applicant disagrees is that those 80 and over adjust for such maladies and the decline is not supported by the actual accident statistics ,nor the report of the Canadian Traffic Injury Research Foundation. The most egregious result of the age discrimination is the stigmatisation and social prejudice of those 80 and over because of  the Ontario government’s individualized program, supported by the courts. The court ignored that Ontario acknowledged that the purpose of s. 19 of O. Reg. 340/94 was to preclude individualized adjudication.  Using Ontario’s own evidence 100% of those 80 and over are discriminated against and stigmatized in order to identify the 1-2 % who may fail the test. Neither Ontario nor the Court provided any evidence that removing the 1-2 % who failed the test has improved safety on Ontario’s roads.

As I previously noted, I have a Proposed Resolution before the Ontario PC party, if elected , to revisit s. 16 (a) of O. Reg 340/94 of the Highway Act , and will be seeking all party support (See my web site- ontariohouseofshame.ca) . As it is not my purpose to discredit Chief Justice McLachlan nor the court before posting this letter in support of my Proposed Resolution, I provide the court the opportunity to correct any misperceptions or errors that I may have regarding my concerns. Rules are made, that are often broken with just cause. As I believe that my concerns go to the credibility of the Supreme Court of Canada ,is there sufficient cause notwithstanding Rule 73, for the Court to  reconsider my application for leave to appeal the Divisional court ruling of December 12, 2014?

Yours truly,
H. Ken MacLennan
1608 Charles St.,
Cornwall, Ontario K6J 1Z4

Tel/Fax # 613-932-0208

Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

c.c.: Matthew Horner

 

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