Sambrook v Alberta (Director of SafeRoads), 2021 ABQB 656

Court of Queen’s Bench of Alberta Citation: Sambrook v Alberta (Director of SafeRoads), 2021 ABQB 656 Date: 20210817 Docket: 2101 03778 Registry: Calgary Between: Graham Alexander Sambrook Applicant - and - Director of SafeRoads Alberta, M. Culo, Adjudicator, SafeRoads Alberta, Brenda Lucki, Commissioner, Royal Canadian Mounted Police, Cst. Caleb Davisson Respondents _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I.

Introduction [ 1 ] On July 13, 2021, this Court, in a decision reported as Kolbina v Alberta (Director of SafeRoads ), 2021 ABQB 535 [ Sambrook #1 ], applied the SafeRoads Alberta Accelerated Review Procedure [SAARP] to a document titled “Originating Application - Notice of Appeal/Reference Under an Enactment” [Application], that was filed on March 19, 2021 by Graham Alexander Sambrook [Mr. Sambrook]. Mr.

Sambrook’s Application was one of nine Applications (see also Kelleher v Alberta (Director of SafeRoads) , 2021 ABQB 517 ) filed by the same lawyer between March 19 and June 8, 2021 that challenged decisions of SafeRoads Alberta. Each

application contained identical allegations. [2] In the case of Mr. Sambrook, his Application challenged a February 17, 2021 SafeRoads Alberta decision reported asSambrook (Re), 2021 ABSRA 80. In Sambrook #1, I concluded, at paras 15-16, that the March 19, 2021 filing was a prima facie abuseof the Court because that document failed to provide adequate pleadings: Both Applications make identical claims. All are bald allegations. For example, paragraph 1 claims a Charter breach. The allegedlyillegally obtained evidence is not identified.

The person or persons who allegedly breached the Applicant’s Charter rights is notidentified. The nature of the allegedly illegal “collection” is not identified. The Applications do not identify what

section or sections ofthe Charter have allegedly been breached. That appears inconsistent with the standard required by [Mackay v Manitoba, (SCC), [1989] 2 SCR 357, 61 DLR (4th) 485], as well as the common law requirements for adequate civil pleadings. [3] The Application was also filed in the incorrect form: Sambrook #1 at para 9. [4] Mr.

Sambrook was given 14 days to either: 1) discontinue the Application, 2) submit a candidate Amended OriginatingApplication in the correct form, or 3) provide an up to ten-page Written Submission to explain why the Originating Application is a validaction. [5] The Court, on July 28, 2021, received a candidate Form 7 Amended Originating Application from Counsel for Mr.Sambrook. Counsel for Commissioner Brenda Lucki and Constable Caleb Davisson of the Royal Canadian Mounted Police [RCMPRespondents] submitted a Written Submission on August 4, 2021.

Counsel for the Director of SafeRoads Alberta [Director] alsosubmitted a Written Submission, dated August 6, 2021. [6] The deadline has passed for Mr. Sambrook to make a Written Reply per Sambrook #1 at para 21. Nothing has been received.I, therefore, now proceed to evaluate whether the candidate Amended Originating Application should be approved for filing, or rejected,in whole or in part, as an abuse of the Court’s processes. II. Analysis [7] My evaluation of the Respondents’ submissions, and the candidate Amended Originating Application, has several aspects. A.

Pleadings [8] The candidate Amended Originating Notice now includes somewhat more specific allegations as to what were the errors inthe SafeRoads Alberta decision. Counsel for the Director submits that the candidate Amended Originating Application now providesadequately particularized allegations, correcting the defects identified in Sambrook #1. [9] I agree for the most part. Some parts of the candidate Amended Originating Application remain problematic. First, paragraph9 reads: The Adjudicator erred in law, and decided unreasonably, when they determined that Cst.

Davisson’s observation of the Recipient’s poormotor skills without additional indicia could justify a finding of impaired operation; SAARP is a mechanism to conduct a Rule 3.68 review of a pleading. During a Rule 3.68 analysis, pled facts are presumed to be correct,unless those pleadings are unparticularized bald allegations, or in the unusual case where the alleged facts are absurd on their face.Paragraphs 7 and 8 of the candidate Amended Originating Application state that Mr.

Sambrook was tested with an “ASD”, and Mr.Sambrook failed that test. “ASD” is not defined in the candidate Amended Originating Application, but I will presume means “ApprovedScreening Device”, as that language is used in the Traffic Safety Act, RSA 2000, c T-6 [TSA]. Since I must accept that Mr. Sambrookfailed a breath alcohol sample test, that means Constable Davisson did not only rely on personal observation to conclude Mr. Sambrookwas impaired. Mr. Sambrook had also failed when he provided a breath sample. Paragraph 9 is therefore rejected as inconsistent withMr.

Sambrook’s pleadings. [10] Next, paragraph 10 states: The Adjudicator erred in law, and decided unreasonably, when they determined that Cst. Davisson had the lawful authority to conductthe traffic stop; Paragraph 10 provides nothing but bald allegations. Why did Constable Davisson not have lawful authority? Is he not a peace officer?Did Constable Davisson not rely on an appropriate legislative or common law authority? Was Mr. Sambrook operating a vehicle that isnot subject to the TSA? Furthermore, this pleading provides no basis to understand how either the Adjudicator “erred in law” or “decidedunreasonably”.

Paragraph 10 is rejected. [11] In Mackay v Manitoba, the Supreme Court of Canada ruled that a factual foundation, or alleged factual foundation, is anabsolute requirement for a valid Charter pleading. Paragraph 11 of the candidate Amended Originating Application reads: The Adjudicator erred in law, and decided unreasonably, when they determined that Cst.

Davisson’s breach of the Recipient’s sections 9Charter rights did not affect the relevance or reliability of the unlawfully obtained breath sample evidence; [Sic.] This paragraph provides no explanation at all as to what was the character of the alleged Charter s 9 breach. That allegation is thereforean abuse of the Court: Mackay v Manitoba. [12] Furthermore, this claim is illogical, hopeless, and makes no sense. Charter s 9 prohibits arbitrary detention or imprisonment.

Presuming that Mr. Sambrook was, in fact, illegally detained or imprisoned, that would have no effect on whether a breath sample to identify blood alcohol concentration was relevant to Mr. Sambrook meeting the criteria for a Notice of Administrative Penalty, or whether the test that determined a blood alcohol concentration was or was not reliable. The nature of a detention does not change a physical reality measured by a device.

I order Paragraph 11 is removed from the candidate Amended Originating Application. [ 13 ] I also conclude that paragraph 12 fails to provide the adequate particulars for a valid Charter claim. That paragraph reads: The Adjudicator erred in law, and decided unreasonably, when they failed to proportionately balance the Recipient’s

section 9 Charter rights with the regime’s statutory mandate; [ 14 ] This is also bald allegation. What about the Adjudicator’s decision was unreasonable? Mr. Sambrook’s candidate Amended Originating Notice provides no particulars of Constable Davisson’s alleged breach of Mr. Sambrook’s Charter s 9 rights, contrary to Mackay v Manitoba . Paragraph 12 invokes “proportionality”, but provides no basis to evaluate whether the alleged Charter s 9 breach was serious or not, or the circumstances of that breach. [ 15 ] I note, in addition, that Mr.

Sambrook’s candidate Amended Originating Application cites Charter ss 7-10 as “Applicable Acts and regulations”. The candidate Amended Originating Application makes no mention at all of Charter ss 7-8 and 10. The fact that no Charter -related particulars are pled in the candidate Amended Originating Notice, means, per Mackay v Manitoba , that Mr. Sambrook may not advance allegations that his Charter rights were breached, since allegations that involve Charter rights must be pled and particularized. B.

Parties [ 16 ] Counsel for the RCMP Respondents argues there is no basis for the RCMP Respondents to be involved in this matter. That makes Mr. Sambrook naming the RCMP Respondents as Respondents an abuse of the Court and the RCMP Respondents. The RCMP Respondents identify three points. First, Provincial Administrative Penalties Act , SA 2020, c P-30.8 at s 24(2) sets the scope of the parties in a SafeRoads Alberta judicial review to “... the Director or the adjudicator ...”. [ 17 ] Second, the RCMP Respondents characterize the remedy sought by Mr.

Sambrook, “... to quash the decision of the Peace Officer ...”, as a collateral attack on the SafeRoads Alberta decision. The Provincial Administrative Penalties Act and SafeRoads Alberta Regulation , Alta Reg 224/202 legislative scheme provides that Mr. Sambrook may challenge the validity of his Notice of Administrative Penalty before the SafeRoads Alberta tribunal. Mr. Sambrook exercised that right, and that claim was rejected. What remains now is a potential judicial review of the SafeRoads Alberta decision. In effect, by demanding this Court “... quash the decision of the Peace Officer ...”, Mr.

Sambrook has collaterally attacked the SafeRoads Alberta Sambrook (Re) , 2021 ABSRA 80 tribunal decision that confirmed the Notice of Administrative Penalty. [ 18 ] Third, the original Sambrook Application included this paragraph: The Peace Officer in issuing the Notice of Administrative Penalty erred in law and acted unreasonably. [ 19 ] That paragraph was deleted from the candidate Amended Originating Application. The candidate Amended Originating Application makes no allegations at all, of any errors, wrongdoing, or misconduct, by the RCMP Respondents.

The RCMP Respondents are not involved or implicated in the candidate Amended Originating Application. [ 20 ] Counsel for RCMP Respondents indicates the RCMP Respondents have identified this issue, and requested Mr. Sambrook remove the RCMP Respondents from this matter. The RCMP has twice offered a consent order to remove the RCMP Respondents on a without costs basis, without any response from Mr.

Sambrook The RCMP Respondents states that offer should have weight as a Calderbank offer when imposing costs, citing Holizki Estate v Alberta (Public Trustee) , 2009 ABQB 260 at paras 44-47 . [ 21 ] Counsel for the Director agrees with the RCMP Respondents’ submissions on this point, indicating that part of the remedy sought in the Sambrook candidate Amended Originating Application is overbroad. The request “... to quash the decision of the Peace Officer ...” must be deleted.

The Director takes the position that including the RCMP Respondents in the original Application, and the candidate Amended Originating Application, is frivolous and vexatious. [ 22 ] I agree with the RCMP Respondents and Director. Including the RCMP Respondents in the original Application and the candidate Amended Originating Application is an abuse of the Court and the RCMP Respondents.

SafeRoads Alberta is the mechanism to dispute the conduct of the peace officer who issued a Notice of Administrative Penalty, and the legality of that Notice: Provincial Administrative Penalties Act ; SafeRoads Alberta Regulation . A challenge at the Alberta Court of Queen’s Bench “... to quash the decision of the Peace Officer ...” is a collateral attack on the SafeRoads Alberta Sambrook (Re) , 2021 ABSRA 80 decision, and a serious abuse of the Court: Unrau v National Dental Examining Board , 2019 ABQB 283 at para 619 . [ 23 ] I therefore order that while Mr.

Sambrook is permitted to file an Amended Originating Notice, that Amended Originating Notice must: 1. delete the RCMP Respondents as parties; and 2. further amend paragraph 14 to remove the text “... quash the decision of the Peace Officer and ...”. C. Ancillary Issues [ 24 ] The Director has also identified several other issues. First, the candidate Amended Originating Application states its return date is August 17, 2021. The Director says the original Application’s return date, April 15, 2021, should instead be used. I agree.

[ 25 ] The Director observes that the SafeRoads Alberta Adjudicator, M. Culo, does not need to be named as a Respondent. I agree, and direct that the filed Amended Originating Application remove Mr. Culo as a Respondent. [ 26 ] Third, the Director observes that the candidate Amended Originating Application references the Alberta Bill of Rights , RSA 2000, c A-14 as a relevant “Applicable Act”, but does not cite any sections of that legislation. I conclude that including the Alberta Bill of Rights , in itself, does not require changes to the candidate Amended Originating Application.

Instead, like the Charter , the fact the candidate Amended Originating Application makes no mention of a breach or involvement the Alberta Bill of Rights means that the rules of pleadings prohibit Mr. Sambrook from advancing a claim at his judicial review on the basis of purported breach(es) of rights identified in that legislation. [ 27 ] Finally, the Director submits the style of cause of the candidate Form 8 Notice to Obtain Record of Proceedings should be revised from “The Director of SafeRoads Alberta et al” to “The Director of SafeRoads Alberta”.

Since I have eliminated the RCMP Respondents from this matter, I agree this further revision should occur. III. Conclusion [ 28 ] I order that Counsel for Mr. Sambrook shall file the candidate Amended Originating Application and Notice to Obtain Record of Proceedings received by the Court on July 28, 2021, with the revisions identified above, by 14 days from the date of this Decision. If no Amended Originating Application and Notice to Obtain Records of Proceedings, as instructed in this Decision, is filed by that deadline, then Mr.

Sambrook’s judicial review is struck out pursuant to Rule 3.68 without a further court Order. [ 29 ] The interim stay imposed in Sambrook #1 at para 19 is vacated without further court Order once the Amended Originating Application and Notice to Obtain Records of Proceedings are filed within the 14-day deadline. [ 30 ] I have concluded that Mr. Sambrook’s involving the RCMP Respondents in this matter was, from the first, an abuse of the Court and the RCMP Respondents. Mr.

Sambrook and his Counsel were aware of this defect, and that the RCMP Respondents would seek costs for being illegitimately forced to respond to Mr. Sambrook’s challenge to the SafeRoads Alberta decision. Further, I find it relevant and aggravating that when Mr. Sambrook had the opportunity to correct this abusive conduct in her response to Sambrook #1 , he did not do so. I accept the RCMP Respondents’ offer should be classified as a Calderbank offer, and that elevated costs awards are appropriate on that basis. [ 31 ] Given these factors, I order that Mr.

Sambrook pay each of the RCMP Respondents $1,500 in costs forthwith. [ 32 ] Counsel for the Director will prepare the Order giving effect to this Memorandum of Decision. Mr. Sambrook’s approval of that Order is dispensed with, pursuant to Rule 9.4(2)(

c) of the Alberta Rules of Court. Dated at the City of Calgary, Alberta this 17 th day of August, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: M. Ian Savage Savage Oykhman Law for the Applicant Irina Graham Alexander Sambrook Rachelle K. Roberts Alberta Justice and Solicitor General for the Respondents Director of SafeRoads Alberta and M. Culo, Adjudicator, SafeRoads Alberta Tessa la Bastide Attorney General of Canada

for the Respondents Brenda Lucki, Commissioner, Royal Canadian Mounted Police, and Cst. Caleb Davisson