Mierke v Alberta (Director of SafeRoads), 2021 ABQB 1003

Court of Queen’s Bench of Alberta Citation: Mierke v Alberta (Director of SafeRoads), 2021 ABQB 1003 Date: 20211217 Docket: 2101 02670 Registry: Calgary Between: Michael Mierke Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice J.T. Eamon _______________________________________________________ Introduction [ 1 ] On January 28, 2021, the Applicant was involved in a single vehicle collision.

RCMP attended the scene and the attending constable (“ Constable L ”) made a mandatory alcohol screening demand for a breath sample into an approved screening device. After many attempts, the Applicant had not provided an adequate sample and declined to continue. [ 2 ] Constable L issued a Notice of Administrative Penalty (“ NAP ”) to the Applicant under s 88.1 of the Traffic Safety Act , RSA 2000, c T-6 on the basis that he had reasonable grounds to believe that the Applicant, as a driver of a motor vehicle, failed or refused, without a reasonable excuse, to comply with a mandatory alcohol screening demand.

The Applicant’s driver’s license was immediately suspended for 90 days plus one year and he was fined $1000, for a first contravention. [ 3 ] The Applicant sought review of the NAP from an Adjudicator under the SafeRoads programme. The review process requires

the Applicant to prove, on the balance of probabilities, at least one of the prescribed grounds for setting aside a notice of administrative penalty issued to a driver. The Adjudicator found the Applicant did not establish any of the grounds, and confirmed the NAP. Thus the 15 month drivers license suspension and fine were confirmed. [ 4 ] The Applicant applied for judicial review.

The Applicant submits that the Adjudicator acted unreasonably in finding that s 88.1 does not require proof of intent to fail or refuse to provide an adequate breath sample, and in rejecting the Applicant’s defence that he had a reasonable excuse for not providing an adequate sample arising from his physical and medical conditions. Background [ 5 ] The Applicant was operating a motor vehicle on the evening of January 28, 2021 that rolled or flipped over into a ditch.

The Applicant claimed that he steered his vehicle into the ditch as he merged onto a major highway, in an attempt to avoid a fast moving vehicle that was about to ram the rear end of his vehicle. [ 6 ] The Applicant further claimed that he had to escape his vehicle, following the accident, by kicking out the windshield and sunroof. He said this took about 15 minutes of exertion. He exited the vehicle through the windshield just as police arrived on scene.

He said he was in a state of shock and panic, was hyperventilating, did not have his inhaler for sarcoidosis with him, and was suffering the effects of his recent infection with Covid-19. [ 7 ] Constable L made a mandatory alcohol screening demand under s 320.27 of the Criminal Code , RSC 1985, c C-46 . The Applicant made several attempts to blow into an approved alcohol screening device, but did not provide an adequate breath sample.

Constable L said he formed reasonable and probable grounds that the Applicant, knowing a demand had been made, failed or refused, without a reasonable excuse, to comply with a demand made under s 320.27. [ 8 ] Consequently, Constable L issued the NAP under s 88.1(1)(

e) of the Traffic Safety Act for failing to provide a breath sample. [ 9 ] The Applicant sought review of the NAP by the SafeRoads Alberta tribunal. He advanced a number of grounds, but the ones pertinent to the present review are that he did not intend any failure to provide an adequate sample, and he had a reasonable excuse for failing to provide a sample. [ 10 ] Before describing the evidence before the Adjudicator and their conclusions, I will set out the structure of the SafeRoads system.

Legislative and process framework [ 11 ] The Provincial Administrative Penalties Act , SA 2020, c P-30.8 ( “ PAPA ”) authorizes administrative penalty proceedings for various offences prescribed by regulation. Presently, the only prescribed offences are a variety of traffic matters ( Provincial Administrative Penalties (Prescribed Enactments) Regulation , Alta Reg 211/2020 ). [ 12 ] The purpose of the PAPA is set out in

section 2 : 2 The purpose of this Act is to (

a) adopt a simplified form and process for administratively enforcing contraventions, (

b) establish a consistent framework for the resolution of contraventions enforced by issuance of an administrative penalty, (

c) ensure that the process used to administratively enforce contraventions and the procedural safeguards applicable in administrative enforcement proceedings are proportionate to the regulatory nature of the contravention, (

d) resolve disputes in relation to administrative penalties in an expedient manner consistent with the procedural protections mandated by this Act, (

e) affirm that the consequences for a contravention enforced by issuance of an administrative penalty may not include imprisonment, and (

f) enhance access to justice by establishing an administrative enforcement process that can be readily understood and provides for a simple method of disputing a notice of administrative penalty. [ 13 ] Associate Chief Justice Rooke summarized the administrative regime under which notices of administrative penalties are issued for traffic matters as follows: [1] ... [T]he SafeRoads Alberta Tribunal was created by the SafeRoads Alberta Regulation , Alta Reg 224/2020 , as authorized by the Provincial Administrative Penalties Act , SA 2020, c P-30.8 [ PAPA ].

The SafeRoads Alberta Tribunal conducts reviews of Traffic Safety Act , RSA 2000, c T-6 [ TSA ] “Notices of Administrative Penalty” that impose sanctions such as licence suspensions, vehicle seizures, and fines for disqualifications for driving: TSA

Part 4. The purpose of the legislation is to provide a simplified, consistent, proportionate, and expedient mechanism to evaluate the validity of Notices of Administrative Penalty: PAPA s 2. SafeRoads Alberta Adjudicators issue formal reported written decisions in response to TSA reviews (SafeRoads Alberta Decisions). [2] SafeRoads Alberta Decisions are subject to judicial review by the Court of Queen’s Bench of Alberta: PAPA s 24. While the usual period in which to file and serve a judicial review is six months ( Alberta Rules of Court , Alta Reg 124/2010 Rule 3.15(2)), judicial

reviews of SafeRoads Alberta Decisions must be filed and served not later than 30 days after the date the SafeRoads Alberta Decision is received by the Applicant ( PAPA s 24(2)). ( Kelleher v Alberta (Director of SafeRoads) , 2021 ABQB 517 ) [ 14 ] A peace officer may issue a NAP for a variety of reasons under the Traffic Safety Act .

Section 88.1(1) (

e) of the Traffic Safety Act – the subsection under which Constable L issued the NAP in the present case – provides: 88.1(1) Subject to subsection (3), if a peace officer has reasonable grounds to believe any of the following, the peace officer shall, on behalf of the Registrar, take the actions set out in subsection (2): (

e) that a driver, knowing that a demand has been made, failed or refused, without a reasonable excuse, to comply with a demand made on the driver under

section 320.27 or 320.28 of the Criminal Code (Canada) .

(2) The peace officer shall issue a notice of administrative penalty to the driver, and, in the case of a driver who holds an operator’s licence, require the driver to surrender to the peace officer the operator’s licence. [ 15 ] Immediately on issuance of such a NAP for a first contravention (as in the Applicant’s case), the recipient’s drivers license is immediately suspended for 90 days, and for a further period of one year following the 90 day period; the vehicle they were operating is seized for 30 days; and the recipient is fined ( TSA , s 88.1(4)(a)).

The fine for the first convention of this type is $1000 ( Provincial Administrative Penalties Regulation , Alta Reg 217/2020 , s 4). [ 16 ] A recipient of a NAP may dispute the penalty by filing a review request within 7 days of receipt of the NAP ( PAPA , s 7(1)). The request does not suspend or stay the penalty ( PAPA , s 7(2)). The requests are considered by adjudicators who are employees of the Crown ( PAPA , s 10). [ 17 ] The grounds for review are limited by s 4 of the SafeRoads Alberta Regulation , Alta Reg 224/2020 .

The grounds for an adjudicator to cancel a notice of administrative penalty issued for a contravention of

section 88.1(1)(

e) of the Act, set out in s 4(

i) of this Regulation , are (

i) that a notice of administrative penalty was not served on the recipient, (ii) that the Director did not provide complete records to the recipient as required by

section 12 of the Provincial Administrative Penalties Act , (iii) that the recipient did not know a demand had been made on the recipient under

section 320.27 or 320.28 of the Criminal Code (Canada) , (iv) that the recipient, knowing that a demand had been made on the recipient under

section 320.27 or 320.28 of the Criminal Code (Canada) , did not fail or refuse to comply with that demand, (

v) that the recipient, knowing that a demand had been made on the recipient under

section 320.27 or 320.28 of the Criminal Code (Canada) , did have a reasonable excuse for failing or refusing to comply with that demand, (vi) that the officer did not advise the recipient in writing of the right to a roadside appeal under

section 88.11 of the Act and the recipient was unaware of that right, or (vii) that the recipient immediately requested a roadside appeal under

section 88.11 of the Act and the officer failed to provide the recipient an opportunity to undergo a test in accordance with

section 88.11 of the Act. [I have underlined the grounds for review most pertinent to the present judicial review application.] [ 18 ] The Director must disclose records prescribed by regulation for the review ( PAPA , s 12). The recipient of the NAP may provide records for the review, and if so, they must be provided at least two days before the review ( PAPA , s 13). [ 19 ] The review must be held within 21 days of the issuance of the NAP ( PAPA , s 15), unless the Director extends the period in exceptional circumstances prescribed by regulations ( PAPA , s 23).

The SafeRoads Alberta Regulation , s 10, permits the extension of the hearing date only where “the adjudication branch experiences a failure of an electrical or information technology system, a natural disaster, a legal or illegal work stoppage, a pandemic or any other external event that delays normal business operations”.

Also, s 8 of the SafeRoads Alberta Regulation provides “The Director may adjourn a review from time to time as the Director considers appropriate.” [ 20 ] The consequence of these provisions is that the Applicant usually has a maximum of 19 days to develop and submit their evidence in the review. [ 21 ] The person requesting the review bears the burden to prove the NAP should be set aside ( PAPA , s 18(1)). Reports and notes confirmed by an officer under the regulations are deemed made under oath ( PAPA , s 14). No person, including a police officer, can be cross-examined ( PAPA , s 16(3)).

Hearings can be on written materials or a verbal hearing if the Applicant choses. The Provincial Administrative Penalties Regulation (s 6) limits the duration of oral hearings to 30 minutes. [ 22 ] The adjudicator is limited in the material they can review ( PAPA , s 18). The material includes “publicly accessible scientific, technical or medical information and documents in any format, which may be relied on as evidence in a review” established by the Director ( PAPA , s 4). The record indicates the Director maintains an online Technical Materials Library that is publicly available.

The adjudicator may determine the weight to be given to any documents, records, representations or evidence, and is not bound by the rules respecting evidence applicable to judicial proceedings ( PAPA , s 18). The adjudicator must provide a decision within 30 days of the NAP subject to extension by the Director in exceptional circumstances ( PAPA , s 22, 23).

The review of the Applicant’s NAP [ 23 ] In this case the Applicant selected a written hearing. The evidence before the Adjudicator from the Applicant and Constable L described the background events leading up to the accident, and described the Applicant’s diligent attempts to provide or misconduct in failing to provide (depending on which evidence one accepts or rejects) a breath sample. I will outline the more pertinent parts of this evidence in the following paragraphs. [ 24 ] The Applicant deposed by affidavit under oath: 6.

After the shock of the accident, I attempted to leave my vehicle by kicking out the windshield and sunroof for about ten (10) to fifteen (15) minutes. I was very worried about the vehicle starting on fire and was definitely in a state of shock and panic. I exited the vehicle from the windshield as the police came on the scene. I was hyperventilating and was concerned as I did not have my inhaler for my sarcoidosis (discussed below). I asked the officer if I could rest in the patrol car as I was vibrating from the cold and shock. 7. On the night in question, I blew as hard as I could into the ASD.

I made every effort to comply with the officer’s demands. Unfortunately, for many years I have suffered from Stage 3 Sarcoidosis. At the time of the incident in question, I was still suffering from this condition. This condition makes it very, very difficult to provide a “normal” breath sample. Because of this, even though I was blowing as hard as I could, I was not able to provide a proper sample. After a few failed attempts I told the officer that I suffered from a lung disease called sarcoidosis, which is why I could not provide a sample. At no time did I intentionally “block” the ASD with my tongue.

However, at the end of some of my “inhales,” I may have touched the straw of the ASD with my tongue as I was exerting myself. 8. On January 11, 2021 I tested positive for COVID19. COVID 19 is a virus which can cause lung and respiratory complications, and can cause lasting harm to the lungs. In my case, on the night in question I was still suffering from the affects [sic] of COVID19. As such, I was not able to provide a proper sample. 9.

The fact that I suffer from sarcoidosis, have COVID19, had recently exerted myself to break out of my car and was in a state of shock from the crash made it impossible for me to provide a suitable sample into the ASD. [ 25 ] In support of his narrative under oath, the Applicant provided his notification from Alberta Health Services that his Covid-19 test taken January 11, 2021 was positive; a September 12, 2019 letter from a medical doctor practicing in the Alberta Thoracic Oncology Program whom he described as his respirologist; and, a letter dated February 8, 2021 from his family doctor. [ 26 ] The respirologist’s letter is a typical report back to a referring physician.

It briefly described the Applicant’s history with Stage 3 Sarcoidosis, and described the results of testing his forced expiratory volume and forced vital capacity in mid-2019. The doctor started him on an inhaler again. The respirologist said they would plan to follow up with him in clinic in 4 months.

The Applicant did not provide information whether any follow ups occurred. [ 27 ] The family doctor stated in their letter that the Applicant suffered from Stage 3 Sarcoidosis and his condition “certainly will have an affect on his lung function”. [ 28 ] Constable L submitted notes and a supplemental occurrence report into the SafeRoads system. Such records are deemed under oath. The supplemental occurrence report is Constable L’s most detailed recitation of the events.

After noting that a complainant called 911 at 2027 hours on the evening in question, he stated: “911 mvc just occurred, 2 hwy sb at beterans [sic] blvd, veh rolled infront [sic] of com [complainant], is in the outside median, hit the overpass and flipped, into the ditch, unk type of veh, com was unable to stop, roads are fine." Cst. [L] was on scene moments after the complaint was dispatched and saw a grey SUV turned over on its side on the southeast side of the overpass of Veterans Blvd and Hwy 2. Cst. [L] ran up to the vehicle and a male got out of the vehicle and was walking around.

Cst. [L] asked the male if he was ok and he said he was ok. The male was confirmed to be the driver and the only occupant. The vehicle was badly damaged with the front windshield smashed in and the there were pieces missing and dents all over. Cst. [D] was parked under the overpass and Cst. [L] walked with the male over to the police vehicle and EMS was en route. The male was placed into the back seat of the police car, A\207. Cst. [L] confirmed with the male if he was ok and he said he was. The vehicle was not drivable. 2031hrs Cst. [L] said the MAS demand and was doing MAS throughout his shift.

The male was ID as Michael MIERKE and he understood the demand. Cst. [L] used ASD # 12 (S/N 0723634) and explained how to provide a sample. Michael understood and attempted to provide a breath sample. He blew outwards but did not provide an adequate flow of breath outwards to obtain an adequate sample. Cst. [L] heard the flow stop which sounded like Michael was using his tongue to stop the air flow. Cst [L] explained how to provide a sample again and Michael blew outwards but did not provide an adequate flow of breath outwards to obtain an adequate sample and sounded like he did the same movement with his tongue.

Cst. [L] informed Michael if he did not provide a sample he would be issued the same consequences as if he blew over the legal limit. Michael understood. Cst. [L] attempted another sample but there was an Error 11 which means the blank test was not successful. Cst. [L] placed a brand new mouth piece on the device and attempted another sample. Michael continued to not provide an adequate flow of breath outwards by either stopping his flow of breath and then starting again, stopping the flow of his breath entirely or it appeared he was using his tongue to stop the flow of breath outward.

Cst. [L] showed Michael how to provide a sample of breath and the result was a 0 mg%. Michael had another attempt and he stopped the flow of his breath. 2040hrs After more than 7 attempts Michael declined to provide a sample as he said something along the lines as "I must have provided more than 20 samples just take me in and do what you have to.". Cst. [L] had reasonable and probable grounds to believe Michael refused/failed to provide a breath sample. Michael was re​informed of his jeopardy and consequences like multiple times prior. Michael declined EMS.

Michael declined his right to a second test. IRS - FAIL (Refused/failed to provide a breath sample) Issued with Seizure Notice. ATR Towed the vehicle which was no longer drivable.

It was amazing Michael did not receive major injuries or death. ... [ 29 ] Other notes, also prepared by Constable L and in evidence before the Adjudicator, stated the driver got out of the vehicle and was walking around, and said he was fine. “MAS was attempted but driver failed to provide an adequate sample as he was only blowing part way and stopping the flow of breath and after multiple attempts he refused to provide a sample.”. [ 30 ] The Adjudicator rejected the Applicant’s argument that he had a reasonable excuse for failing or refusing to comply with the breath demand.

The Adjudicator described some of the Applicant’s evidence, and referenced one of the technical studies in the SafeRoads online data base, T.S. Hurst, Ability of Subjects with Impaired respiratory Function to provide a Satisfactory Breath Sample for the Alcotest® 7410 Breath Alcohol Device , Can. Soc. Forens. Sci. J., Vol 31, No 4 (1988), pp 269-274 (the “ Technical Study ”).

The Adjudicator concluded: According to Technical Material M1- Hurst Study - Impaired respiratory function with ASD, second last paragraph on the fifth of six lines, “persons who show evidence of an inability to form an adequate mouth seal or who have a vital capacity of less than 2 litres may have valid reason” for not providing an adequate breath sample. The Recipient’s evidence is that he suffers from a lung condition recently complicated by a Covid 19 diagnosis, but he fails to provide information that is determinative to what effect, or what degree, both these conditions have on his current lung function.

The Recipient has not provided sufficient details for me to consider this argument. [ 31 ] The Adjudicator also rejected the Applicant’s submission that he did not intend to fail or refuse to provide a sample. I will describe this argument and the Adjudicator’s conclusion later in these reasons (paras 68-69 below). Standard of review [ 32 ] The standard of review for the issues in this case is reasonableness. The reasonableness standard is prescribed by s 24(3) of the PAPA . Accordingly, I must consider the review under the framework in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 .

Whether decision unreasonable (

a) Legal principles [ 33 ] A reviewing Court must consider both whether the decision is internally coherent and justified in light of the legal and factual constraints that bear on the decision. In Vavilov , the Court observed: [99] A reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable.

To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision: Dunsmuir , at paras. 47 and 74 ; Catalyst , at para. 13. [100] The burden is on the party challenging the decision to show that it is unreasonable.

Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep.

Instead, the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable. [101] What makes a decision unreasonable? We find it conceptually useful here to consider two types of fundamental flaws. The first is a failure of rationality internal to the reasoning process. The second arises when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it.

There is however, no need for reviewing courts to categorize failures of reasonableness as belonging to one type or the other. Rather, we use these descriptions simply as a convenient way to discuss the types of issues that may show a decision to be unreasonable. [ 34 ] The reviewing Court must consider the tribunal’s formal reasons in light of the record and with due sensitivity to the administrative regime in which they were given. However, there are limits to this deference.

Vavilov states: [103] While, as we indicated earlier (at paras. 89-96), formal reasons should be read in light of the record and with due sensitivity to the administrative regime in which they were given, a decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis...

A decision will also be unreasonable where the conclusion reached cannot follow from the analysis undertaken ... or if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point... [Citations deleted].

[ 35 ] As to relevant factual and legal constraints in which the decision must be assessed, the Court in Vavilov stated: [106] It is unnecessary to catalogue all of the legal or factual considerations that could constrain an administrative decision maker in a particular case. However, in the sections that follow, we discuss a number of elements that will generally be relevant in evaluating whether a given decision is reasonable, namely the governing statutory scheme; other relevant statutory or common law; the principles of statutory

interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies. These elements are not a checklist for conducting reasonableness review, and they may vary in significance depending on the context.

They are offered merely to highlight some elements of the surrounding context that can cause a reviewing court to lose confidence in the outcome reached. [ 36 ] I will describe some of the constraints that appear to me as particularly material in Mr Mierke’s case. [ 37 ] As to facts and evidence, “absent exceptional circumstances, a reviewing court will not interfere with its factual findings” ( Vavilov at para 125 ) and the reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker” ( ibid ).

The reasonableness of a decision may be jeopardized “where the decision maker has fundamentally misapprehended or failed to account for the evidence before it ” ( ibid at para 104, underlining added). [ 38 ] The Court must also consider the parties’ submissions to the tribunal. Courts do not expect tribunals to respond to every argument, but “a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it” ( Vavilov at para 128 ). (

b) Has the Applicant proved the Adjudicator’s decision was unreasonable? (

i) Applicant’s first ground: Unreasonable verdict and failure to give adequate reasons [ 39 ] The Applicant submits that the Adjudicator’s finding is unreasonable because he provided “overwhelming evidence of his innocence” within the very tight timelines applicable to SafeRoads reviews. Further, “If Mr Mierke cannot have his NAP cancelled in these circumstances, it is difficult to imagine what evidence would possible [sic] suffice”. [ 40 ] The Applicant also submits the Adjudicator failed to provide adequate reasons. The Adjudicator did not outline what sufficient evidence of reasonable excuse might be.

The Applicant submits it is difficult to imagine what more the Applicant could have done to organize his case given the very tight time constraints in submitting evidence for a hearing. [ 41 ] The Director’s counsel points out the reasonableness of the Adjudicator’s conclusion must be assessed in the context of the evidence and submissions before the Adjudicator, and there was ample evidence to dismiss the Applicant’s review. [ 42 ] The Director points out that a similar review process in British Columbia is termed “rough and ready” ( Rohl v British Columbia (Superintendent of Motor Vehicles) , 2018 BCCA 316 at para 7 ) and does not require uncritical acceptance of the Applicant’s evidence ( Nagra v British Columbia (Superintendent of Motor Vehicles) , 2010 BCCA 154 at para 30 ). [ 43 ] The Director likens the present case to Bisceglia v The Superintendent of Motor Vehicles , 2009 BCSC 310 where the issue was whether the failure to provide a breath sample was the result of deliberate conduct or the result of physical incapacity, and there was evidence before the adjudicator that, if accepted, was capable of supporting either result.

The Court reasoned at para 17: The adjudicator accepted the evidence in the police report and rejected the evidence put forward by the petitioner.

That is a decision squarely within the jurisdiction of the adjudicator and one this court can not interfere with by substituting its own view of the evidence. [ 44 ] In Bisceglia , the adjudicator gave reasons why they preferred the police constable’s evidence over the driver’s evidence that he simply was incapable of providing a sample despite his best efforts, including that the driver did not mention his medical condition to the constable and did not explain why he twice placed his tongue on the tube of the ASD ( ibid at para 8).

Similarly, in Nagra , the adjudicator gave reasons preferring the breath test readings obtained by a qualified technician using an approved device, certified to be in working order, over the Applicant’s evidence ( ibid at para 13). [ 45 ] BC case law acknowledges, consistent with Vavilov , that reasonableness review is not solely concerned with the question whether the adjudicator’s conclusion is within a range of acceptable outcomes on the evidence.

The outcome must be justified in a transparent and intelligible manner ( Mackenzie v British Columbia (Superintendent of Motor Vehicles , 2018 BCCA 354 at para 56 and authorities cited therein.) [ 46 ] The BC Court of Appeal has also held, consistent with Vavilov , that failing to address conflicting evidence that is central to the outcome of the review was unreasonable ( Petrov v British Columbia (Superintendent of Motor Vehicles) , 2015 BCCA 486 at para 34 ) and the adjudicator is obliged to resolve reliability and credibility issues that underpin material factual disputes ( Mackenzie at para 63 citing Clark v British Columbia (Superintendent of Motor Vehicles) , 2015 BCCA 487 at para 28 ). [ 47 ] The Director submits that the respirologist’s medical evidence was dated, and the more current evidence from the family doctor was very general. [ 48 ] The Director furthers relies on the Technical Study to demonstrate that there was evidence on which the Adjudicator could reasonably conclude the Applicant did not establish any excuse for failing to provide an adequate breath sample. [ 49 ] The Technical Study states that a subject must have the necessary respiratory pressure and volume to produce an acceptable breath sample on an Alcotest 7410 GLC model of ASD.

The minimum activating pressure of that device significantly exceeds the minimum pressure expected when evaluating patients for removal from mechanical ventilation. Therefore, “it might reasonably be

expected that anyone driving a motor vehicle can easily produce the required pressure”. Turning to volume, all patients with a forcedvital capacity over 2 litres in the study were able to provide an adequate sample. FVC can be predicted from gender, age, height andweight. The calculation for a 50 year old male of 175 cm is 4.5 litres, and even at a severe function impairment of 50% the person couldproduce a sample.

Several of the subjects who failed had a rapid, shallow breathing pattern which precluded them from exhaling for along enough period to satisfy the device’s requirements. [50] The Technical Study concludes at p 273: It seems from our findings that persons who show evidence of an inability to form an adequate mouth seal or who have a vital capacity ofless than 2 litres may have a valid reason why they cannot provide an adequate breath sample into the Alcotest® 7410.[1] [51] The Director submits the Applicant’s medical evidence does not suggest he would have been incapable of providing anadequate sample under the circumstances described in the respirologist’s report; there was no evidence his condition improved orworsened from the date of the respirologist’s report; and, the family doctor’s letter was too general to support a conclusion that theApplicant’s lung capacity was sufficiently compromised to suggest he was incapable of providing a sample. [52] The Director further submits that the Applicant’s evidence of his panic and related condition was inconsistent with ConstableL’s report, and Constable L did not record the Applicant’s story that he told Constable L of his medical condition. [53] The Director also submits that alleged inadequacy of reasons is not a stand-alone ground for review.

I agree with theDirector’s observation that the reasons and alleged deficiencies therein should be assessed as a component of reasonableness reviewunder the Vavilov analysis. Also, the reasons need not be as detailed or formal as those typically issued by a Court, they are not to beparsed, and they need not explicitly address all arguments or evidence. [54] I agree that there was evidence supporting dismissal of the NAP review. Depending on the fact findings on such evidence, adefence of reasonable excuse could well be rejected.

As an example, if the Adjudicator actually preferred Constable L’s evidence overthe Applicant’s evidence, and did so in an intelligible and transparent way, it would have been reasonable to dismiss the NAP review.According to Constable L, the Applicant admitted that he was “fine” or “ok” at the scene. Constable L did not record that the Applicantshowed any signs of panic, anxiety or difficulty breathing, or mentioned his medical issues to Constable L. One might conclude thatConstable L did not record these because they did not happen.

One could conclude in light of parts of the Technical Study the Directorrelies on, that the Applicant’s evidence was implausible and should be rejected. Perhaps the Adjudicator thought that it is implausiblethat a person of the Applicant’s age, weight and height, who could kick the window out of a car rolled in the ditch, could not blowadequate volume into an ASD. [55] However, as explained below, it is not apparent that the Adjudicator made fact findings on the critical events or considered allthe evidence. It is not enough for the outcome of an administrative decision to be justifiable. It has to be justified.

As the Court states inVavilov: [86] .... Reasonableness, according to Dunsmuir, “is concerned mostly with the existence of justification,transparency and intelligibility within the decision-making process”, as well as “with whether the decision falls within a range ofpossible, acceptable outcomes which are defensible in respect of the facts and law”: ibid. In short, it is not enough for the outcome of adecision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by thedecision maker to those to whom the decision applies.

While some outcomes may be so at odds with the legal and factual context thatthey could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reachedon an improper basis. [87] This Court’s jurisprudence since Dunsmuir should not be understood as having shifted the focus of reasonablenessreview away from a concern with the reasoning process and toward a nearly exclusive focus on the outcome of the administrativedecision under review.... [Emphasis in original] [56] In some cases, “a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the partiesmay call into question whether the decision maker was actually alert and sensitive to the matter before it” (Vavilov at para 128) or “thereasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point”(Vavilov at para 103). [57] The Director acknowledged that the reasonable excuse defence is a variation on a type of due diligence or reasonable caredefence in a strict liability offence, which involves “consideration of what a reasonable man would have done in the circumstances”(quoting from R v Sault Ste Marie, (SCC), [1978] 2 SCR 1299 at pp 1325-1326). [58] In considering what a reasonable person would do, the Adjudicator would need to first consider what the Applicant did andunder what conditions, then consider what a reasonable person, similarly situated, would do.

The circumstances and evidence in this caseinclude: the number of attempts to provide a sample; whether the Applicant tried as hard as he could; the Applicant’s evidence of hisphysical condition including his evidence he was over-exerted, cold, shocked, hyperventilating, suffering from the after-effects of Covid-19, and suffering from a lung disease; and, the contrasting, inconsistent evidence of Constable L including the Applicant said he was“fine” and “ok”. [59] The Applicant’s evidence was capable of belief and if believed, may have provided a reasonable excuse.

The complainantwho called 911 appears to have been in a vehicle right behind the Applicant and could not stop at the scene, possibly corroborating theApplicant’s version that he steered off the road to try to avoid a fast over-taking vehicle. The Applicant’s supporting medical evidencewas dated or general, but the Applicant only had 19 days to assemble his case.

The documentary evidence generally supported someaspects of the Applicant’s sworn narrative: that he had a lung disease, that it negatively affected his lung capacity, that he has beenprescribed an inhaler in the past for his lung disease, and that he recently had a respiratory disease known as Covid-19. It is notorious that

Covid-19 has led to significant respiratory ailments among some who are infected. Perhaps the Applicant actually was exhausted andhyperventilating after his ordeal in escaping from his vehicle, did not have his prescription inhaler with him to help with his breathing,was unable to generate the necessary volume, and apparently touched the tube of the ASD with his tongue due to his exertion andphysical condition, all as he stated under oath.

If these assertions were even partly true, they could call into question the accuracy ofConstable L’s notes. [60] I agree with the Director that the SafeRoads scheme does not require uncritical acceptance of the Applicant’s evidence.Equally, the SafeRoads system does not require uncritical acceptance of the police officer’s notes. The SafeRoads system requires theadjudicator to deal with conflicting evidence on material issues. [61] The Applicant does not seek to re-weigh the evidence.

He complains that he could not reasonably be expected to providedetailed clinical evidence of his lung capacity within the time prescribed for the quick reviews under the SafeRoads system and questionswhy his evidence was not accepted. The problem in the present case is not how the Adjudicator may have weighed evidence, but ratherthat the Adjudicator refused to consider the Applicant’s sworn affidavit evidence absent current, detailed medical evidence. [62] The Adjudicator did not explicitly accept or reject the Applicant’s evidence or Constable L’s evidence.

At another part of thereasons dealing with the Applicant’s contention that there must be proof of intention (see paras 68-69 below), the Adjudicator declined tofind the number of times the Applicant attempted to provide a sample.

The reasons simply do not deal with the inconsistencies in theunderlying evidence or make fact findings on the evidence about the Applicant’s attempts to provide a sample or his physical stateduring the events. [63] Instead, the Adjudicator’s reasons whether the Applicant had a reasonable excuse indicate the Adjudicator focussedexclusively on the shortcomings of the Applicant’s written medical evidence.

The Adjudicator cited the Technical Study for theproposition that “persons who show evidence of an inability to form an adequate mouth seal or who have a vital capacity of less than 2litres may have valid reason for not providing an adequate breath sample”.

The Adjudicator then concluded: “The Recipient has notprovided sufficient details for me to consider this argument.” [64] The Adjudicator’s reasoning appears to be that individuals in the Applicant’s situation must meet a minimum threshold toestablish a reasonable excuse for failing to provide an adequate breath sample: evidence of an inability to form an adequate mouth seal orhave a vital capacity of less than 2 litres. [65] The Technical Study may contain useful information that might be used to assess credibility or reliability of a profferedexcuse.

However, it does not purport to exclude other types of evidence from which one reasonably could infer physical disability orincapacity or other circumstances that may provide a reasonable excuse. The Director did not suggest that the Technical Study has beenaccepted in past decisions as establishing a threshold requirement for a defence of reasonable excuse.

The Adjudicator did not explainwhy the Technical Study apparently was the sole basis by which to assess the Applicant’s proffered excuse. [66] The surrounding context of the SafeRoads system includes the need to address unacceptable driving, through a means that issimplified, expedient, and “proportionate to the regulatory nature of the contravention”, and enhances access to justice by providing aprocess “that can be readily understood and provides for a simple method of disputing a notice of administrative penalty” (PAPA, ss 2(a),(c), (d), (e)).

Failing to consider all the evidence of an Applicant’s explanation does not appear to me to advance these regulatoryobjectives. [67] Absent some cogent explanation for adopting a threshold requiring technical medical evidence, I am of the view that theAdjudicator must consider and weigh all the evidence, and grapple with the issues whether the Applicant’s evidence is sufficientlycredible and reliable to be accepted in whole or part and whether it provides, on the balance of probabilities, a reasonable excuse.

It wasunreasonable to refuse to consider all the Applicant’s evidence, or to fail to resolve the credibility and reliability issues arising from theevidence and explain, however briefly, why the Applicant’s evidence was rejected or Constable L’s evidence was accepted, if thatactually was the Adjudicator’s path of reasoning. (ii) Applicant’s second ground: Mens rea requirement [68] The Applicant (through counsel) submitted to the Adjudicator that he did not fail or refuse to comply with the requirement toprovide a sample.

He submitted the contravention requires proof of intention to refuse an adequate sample, and cited precedent fromcriminal prosecutions placing the onus on the Crown to prove intent and to disprove the defence of reasonable excuse where the defenceshows it has an air of reality (R v Spracklin, 2014 ABQB 88 at paras 57-59; R v Lewko, 2002 SKCA 121). He submitted that theApplicant blew as hard as he could, therefore his refusal did not lack intent. [69] The Adjudicator found that the burden rests on the recipient of the NAP in the review, and that

section 88.1 of the TrafficSafety Act, unlike criminal law, does not require proof of intent. The Adjudicator declined to find the number of times the Applicant hadattempted to provide a sample (more than 20 versus more than seven). The Applicant determined when he had provided enoughattempts. Ultimately the Applicant declined to continue the attempts.

This ground for cancelation was not established. [70] On the judicial review, the Applicant’s counsel submitted the Adjudicator erred in finding the contravention under s 88.1 ofthe Traffic Safety Act does not require proof of intent, citing the similarity between s 88.1 and the offence of failing or refusing to providea breath sample under s 320.15(1) of the Criminal Code. [71] The Applicant simply relies on the similarity in wording of the provincial and criminal provisions.

He did not address: thedistinction among three types of offence (criminal offences requiring full mens rea; strict liability offences for which mens rea is notpresumed but may be imported by the offence language, and which provide a due diligence defence; and absolute liability offenceswhich are complete when the defendant commits the prohibited act: R v Sault Ste Marie, at pp 1325-1326); the structure andrequirements of typical regulatory offences (R v Wholesale Travel Group Inc, (SCC), [1991] 3 SCR 154); or, case lawon the purposes of the provincial roadside suspensions and the distinction between them and criminal law, cited by the Director in their

brief on the judicial review. [ 72 ] I am not persuaded by the Applicant’s limited submissions, that the Adjudicator’s

interpretation of the contravention provision was unreasonable. After rejecting a requirement of proof of a specific intent to refuse, the Adjudicator did not analyse whether a due diligence standard applied or whether the Applicant met it. However, this possible omission has no practical effect because any due diligence defence that might be available is almost identical to the defence of reasonable excuse. I have addressed the defence of reasonable excuse earlier in these reasons, and have decided the case on the basis the Adjudicator’s determination of that defence was unreasonable.

Remedy [ 73 ] The Applicant sought an order reinstating the Applicant’s license if the Adjudicator’s decision were set aside. The Court may but is not required to substitute its decision for the tribunal’s decision ( Alberta Rules of Court , R 3.24(2)). The Applicant did not address why I should set aside the NAP rather than remit for redetermination. The Director did not address appropriate remedy if the judicial review was allowed. [ 74 ] Where the decision is set aside because it lacks transparency, and the evidence could lead to different outcomes, it should generally be remitted for redetermination.

I do not see any considerations of efficiency or practicality that suggest the matter should be remitted to the same adjudicator. It is best to remit the matter to a new adjudicator to avoid any suggestion of prejudging. Conclusion [ 75 ] The Adjudicator’s decision confirming the NAP is set aside, and the matter remitted to another adjudicator of the SafeRoads Alberta Tribunal for determination. The Applicant did not request costs, and this is not a case where costs against the tribunal would be warranted. Heard on the 17 th day of November, 2021.

Dated at the City of Calgary, Alberta this 15 th day of December, 2021. J.T. Eamon J.C.Q.B.A. Appearances: Alan Pearse for the Applicant Rachelle Roberts for the Respondent