Axley v Alberta (Director of SafeRoads), 2021 ABQB 734

Court of Queen’s Bench of Alberta Citation: Axley v Alberta (Director of SafeRoads), 2021 ABQB 734 Date: 20210914 Docket: 2101 06235 Registry: Calgary Between: Austin Axley Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ 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 Axley v Alberta (Director of SafeRoads) , 2021 ABQB 552 [ Axley #1 ], applied the SafeRoads Alberta Accelerated Review Procedure [SAARP] to an Originating Application that was filed on May 27, 2021 by Austin Axley [Mr. Axley]. The Application challenged a SafeRoads Alberta Decision issued on May 10, 2021, reported as Axley (Re) ,

2021 ABSRA 365 . [ 2 ] In Axley #1 , I concluded, at paras 15-16 , that the May 27, 2021 filing was a prima facie abuse of the Court because that document failed to provide adequate pleadings. Mr. Axley was given 14 days to either: 1) discontinue the Originating Application, 2) submit a candidate Amended Originating Application, or 3) provide an up to ten-page Written Submission to explain why the Originating Application is a valid action. [ 3 ] Counsel for Mr. Axley requested an extension of time to prepare a late candidate Amended Originating Application. That time extension was granted.

The Court, on August 5, 2021, received a candidate Amended Originating Application from Counsel for Mr. Axley. Paragraphs 3-4 of the candidate Amended Originating Application read: 3. The adjudicator for SafeRoads Alberta dealt with this ground of appeal under the last heading in the decision, titled, "Was the Recipient's Right to Fairness Breached?" The adjudicator indicated that the Applicant's submissions were that the eight minute delay did not meet the immediacy requirements for MAS demands in the Criminal Code .

The adjudicator failed to also cite that the Applicant submitted that the eight minute delay in the police officer reading the MAS demand was a breach of the Applicant's s. 9 and s. 8 Charter rights , which in turn was a breach of the Applicant's right to fairness in dealing with the police. The adjudicator wrote that, "There is nothing in the evidence to suggest that Cst. Brochu did anything that might be considered an egregious breach of the Recipient's right to fairness." 4.

The Applicant submits that when police stop and detain motorists, their actions must comply with the rights provided to every Canadian under the Canadian Charter of Rights & Freedoms. In this case, there is no evidence to explain the eight minute delay in reading the Applicant the MAS demand. The Criminal Code is clear that MAS demand must be read immediately to be legal. Cst. Brochu's failure to comply with the requirements in the Criminal Code led to a breach of the Applicant's s. 8 , s. 9 , and s. 10(

b) Charter rights , which is also a breach to be treated fairly and legally. [Emphasis added.] [ 4 ] In a decision reported as Axley v Alberta (Director of SafeRoads) , 2021 ABQB 685 [ Axley #2 ], I concluded, at paras 12-16, that the candidate Amended Originating Application should be filed, as a part of the claims introduced in the candidate Amended Originating Application, a Charter s 8 claim, had some possible potential merit. However, in Axley #2 , at paras 9-11 , I concluded that Mr. Axley’s claims that his Charter s 9 and 10(

b) rights had been breached were hopeless, an abuse of the Court, and should not be permitted filing on that basis: [9] ... SAARP is a method to conduct a Rule 3.68 procedure that tests the pleadings contents of a civil litigation document. During a Rule 3.68 analysis, the facts alleged by the document under review are presumed to be accurate and true, unless those allegations are bald and unparticularized, or in the unusual circumstance where the alleged facts are simply absurd. Paragraph 2 of the candidate Amended Statement of Claim says that Mr.

Axley was stopped because he was towing a trailer with no licence plate. I must conclude that is correct. The candidate Amended Originating Application does not allege the police officer acted illegally in stopping Mr. Axley on that basis. That means I must conduct the Rule 3.68 analysis under the presumption that Mr. Axley was stopped and detained in a lawful manner. [10] Charter s 9 prohibits arbitrary detention and imprisonment. I therefore reject Mr. Axley’s allegation that his Charter s 9 rights were breached . His own pleadings establish Mr. Axley was lawfully detained.

The alleged Charter s 9 breach is therefore rejected . [11] Charter s 10(

b) guarantees that “[e]veryone has the right on arrest or detention ... to retain and instruct counsel without delay and to be informed of that right”. The candidate Amended Originating Application provides no factual or alleged factual basis that implicates Charter s 10(b). I therefore conclude there is no basis in the proposed pleadings to substantiate a Charter s 10(

b) breach. That claim is also rejected. [Emphasis added.] [ 5 ] In Axley #2 , at para 19 , I ordered Counsel for Mr. Axley to file the candidate Amended Originating Application “... with the revisions identified above ...”. On September 10, 2021, my office received the filing package that included the Amended Originating Application. Contrary to my instructions in Axley #2 , paragraphs 3 and 4 cited above remain unchanged, and still include the claims based on Charter ss 9 and 10(

b) that were rejected in Axley #2 . Paragraph 11 , which in

part lists “Applicable Acts and regulations”, also reads: “ Canadian Charter of Rights And Freedoms , CQLR c C-12, ss. 8 , 9 , 10 (b) ” [emphasis added]. [ 6 ] In effect, the Amended Originating Application, as filed, entirely ignores the substantive issue-related defects identified and rejected in Axley #2 . I concluded that the Amended Originating Application as filed by Counsel for Mr.

Axley is in contempt of the clear instructions made in Axley #2 , and continues to pursue judicial review claims against the SafeRoads Alberta Decision that this Court concluded were hopeless and an abuse of process. [ 7 ] I order that the Axley v Director of SafeRoads Alberta, Docket 2101 06235 Action is struck out entirely, immediately. Mr. Axley is instructed to pay the Director of SafeRoads Alberta $2,000 in costs, forthwith. Counsel for the Director of SafeRoads Alberta will prepare the Order giving effect to this Memorandum of Decision.

Dated at the City of Calgary, Alberta this 14 th day of September, 2021.

J.D. Rooke A.C.J.C.Q.B.A. Appearances: Danusia Bourdon For the Applicant Austin Axley Michael A. Power Alberta Justice and Solicitor General for the Respondent Director of SafeRoads Alberta