Dorn v Alberta (Director of SafeRoads), 2021 ABQB 757

Court of Queen’s Bench of Alberta Citation: Dorn v Alberta (Director of SafeRoads), 2021 ABQB 757 Date: 20210922 Docket: 2103 02754 Registry: Edmonton Between: Darryl Evan Dorn Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________ I.

Introduction [ 1 ] On July 20, 2021, this Court, in a decision reported as Dorn v Alberta (Director of SafeRoads) , 2021 ABQB 558 ( Dorn #1 ), applied the SafeRoads Alberta Accelerated Review Procedure (SAARP) to an Originating Application, that was filed by Darryl Evan Dorn (Mr. Dorn) on February 18, 2021. The Originating Application challenged a SafeRoads Alberta Decision reported as Dorn (Re) , 2021 ABSRA 36 . [ 2 ] In Dorn #1 , I concluded, at paras 16-17 , that the Originating Application was a prima facie abuse of the Court because that document failed to provide adequate pleadings:

... The Application provides no explanation or particulars of the alleged error “in law” by the Adjudicator. The Application does not appear to satisfy the common law requirement that pleadings must provide the alleged “who, when, where, how and what” for the reviewing Court and Respondent. [ 3 ] Mr.

Dorn 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. [ 4 ] The Court on July 26, 2021 received a candidate Amended Originating Application from Counsel for Mr. Dorn. Counsel for the Director of SafeRoads Alberta (Director) provided Written Submissions concerning the validity of the candidate Amended Originating Application on August 6, 2021. Counsel for Mr.

Dorn requested a time extension to make Reply Submissions, which was granted. Those Reply Submissions were received from Mr. Dorn on August 27, 2021. That completes the SAARP process: Dorn #1 at para 20 . II. Analysis [ 5 ] The candidate Amended Originating Application adds two allegations that challenge the Adjudicator’s decision, that: 1. the police failed to provide “complete records” because what was received were handwritten shorthand notes, and 2. Mr. Dorn’s right to be informed of a “Roadside Appeal”, and provide a second alcohol breath sample, was breached after Mr.

Dorn refused to provide any breath sample. [ 6 ] Counsel for the Director submits the candidate Amended Originating Application should be rejected because it raises new issues that were not addressed in the original SafeRoads Alberta hearing. Mr. Dorn’s Counsel replies that is not true for the “complete records” issue.

Further, he argues that, in any case, the Director’s “no new issue” argument is too narrow a description of the limits on evidence in a judicial review, citing r 3.22 of the Alberta Rules of Court , Alta Reg 124/2010 , and arguing the plenary jurisdiction of reviewing courts means this judicial review should continue to a full hearing. [ 7 ] I will address these two pleadings questions separately. A. “Complete Records” Issue [ 8 ] First, I agree with the Director that new issues should rarely be permitted during a judicial review.

Judicial review is not a right, but a discretionary remedy: Strickland v Canada (Attorney General) , 2015 SCC 37 at paras 37-39 . The Supreme Court of Canada was explicit in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association , 2011 SCC 61 at paras 22-26 , that raising issues for the first time on judicial review is inappropriate. That task should be first conducted within the expert tribunal, and then the Court may evaluate the issue or not.

An attempt to raise new issues for the first time on judicial review is a basis to exercise the Court’s discretion and reject a candidate judicial review. [ 9 ] However, I conclude after review of Dorn (Re) , 2021 ABSRA 36 , that Counsel for Mr. Dorn is correct. The complete records issue was clearly before the SafeRoads Alberta Adjudicator. Paragraphs 7-10 of that Decision explicitly respond to the alleged complete records defect, and that Mr. Dorn raised the handwritten notes issue at that point.

Given that conclusion, I find that the complete records issue is validly pled in the candidate Amended Originating Application. I, therefore, conclude that aspect of the candidate Amended Originating Application is not an abuse of Court processes and should be filed. B. No “Roadside Appeal” Notification [ 10 ] I come to a different conclusion on the Roadside Appeal issue on two separate and independent bases. First, the Roadside Appeal argument was not advanced in Dorn (Re) , 2021 ABSRA 36 . Instead, Mr.

Dorn’s second argument in his SafeRoads Alberta hearing was that he had a “reasonable excuse” to not provide a breath sample after Mr. Dorn was stopped, smelled of alcohol, and was found to be operating a motor vehicle with an alcohol breath sample ignition interlock device, but that an air compressor had been attached to that device to defeat its operation. [ 11 ] Counsel for the Director included a copy of Mr. Dorn’s written submissions at the SafeRoads Alberta review. Normally, documentary materials are excluded in a r 3.68 of the Alberta Rules of Court process. However, here I conclude that Mr.

Dorn’s SafeRoads Alberta written submissions are admissible because that document is not relevant to whether or not an issue on judicial review has merit, but instead whether that issue was or was not raised in the lower tribunal proceeding. [ 12 ] I conclude he did not raise the candidate Amended Originating Application argument that Mr. Dorn was denied the opportunity to conduct a Roadside Appeal before SafeRoads Alberta. On that basis I exercise this Court’s discretion to refuse that issue for judicial review.

That is the first basis I reject paragraphs 7-9 of the candidate Amended Originating Application. [ 13 ] I also reject paragraphs 7-9 of the candidate Amended Originating Application because I conclude there is no basis for Mr. Dorn to have a right to make a Roadside Appeal. That allegation is factually hopeless. In the candidate Amended Originating Application, Mr. Dorn pleads: (1) on December 25, 2020 Mr. Dorn refused to provide a breath sample to police (para 3);

(2) Mr. Dorn was issued a Notice of Administrative Penalty on that basis (para 3);

(3) the records supplied by the police do not indicate Mr. Dorn was given an opportunity to provide a second Roadside Appeal breath sample test (paras 7-8); and (4) the Notice of Administrative Penalty should therefore be cancelled (para 9). [ 14 ] Upon review of the Traffic Safety Act , RSA 2000, c T-6 [ TSA ], I conclude that the candidate Amended Originating Application is a hopeless proceeding on two separate bases. TSA s 88.1(1) provides five alternative bases for when a peace officer shall issue a Notice of Administrative Penalty to a driver. The bases identified by TSA ss 88.1(1)(a-

d) are that a peace officer has “reasonable grounds to believe” that drugs or alcohol impaired the driver’s operation of a motor vehicle, or that the driver has a prohibited bodily concentration of alcohol or drugs. [ 15 ] The fifth alterative, TSA s 88.1(1)(e), does not relate to impairment or bodily drug or alcohol concentration. Instead, the sole basis for TSA s 88.1(1)(

e) is that a driver has failed or refused to comply with a demand for testing to evaluate impairment, or bodily drug or alcohol content: ... if a peace officer has reasonable grounds to believe [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) ], the peace officer shall, on behalf of the Registrar, [issue a notice of administrative penalty to the driver] ... [ 16 ] I note that TSA s 88.1(1)(

e) makes no reference to actual impairment, or prohibited drug or alcohol concentration. The sole trigger for TSA s 88.1(1)(

e) is the failure or refusal to comply with the demand. Mr. Dorn’s Notice of Administrative Penalty was issued because he refused to provide a breath sample, breaching TSA s 88.1(1)(e). Mr. Dorn’s candidate Amended Originating Notice makes no claim that Mr. Dorn’s refusal was based on a reasonable excuse. [ 17 ] Mr. Dorn complains that he was not informed of his alleged right to a Roadside Appeal as provided for in TSA s 88.11.

Broadly summarizing TSA s 88.11, this provision requires that a peace officer who has issued a Notice of Administrative Penalty provide the driver who received that Notice of Administrative Penalty an opportunity for a Roadside Appeal of the initial basis for the Notice of Administrative Penalty by using a different testing apparatus to confirm that the first test apparatus was accurate. If the second different testing apparatus indicates no prohibited blood alcohol or drug content, or “warning conditions”, then the Notice of Administrative Penalty is cancelled or varied, respectively. Mr.

Dorn in his candidate Amended Originating Application says he was denied that opportunity for a Roadside Appeal. [ 18 ] TSA s 88.11(2) provides the methods by which a roadside appeal is conducted, and identifies alternative mechanisms for a driver to fulfill his or her obligations to make a valid Roadside Appeal sample: ... where a driver requests an appeal of that notice of administrative penalty and voluntarily attends immediately at a place designated by the peace officer and accompanies the peace officer to that place, if necessary, the driver shall immediately (

a) where the basis for issuing the notice of administrative penalty was an initial test performed on an approved screening device , provide a sample of breath that in the opinion of the peace officer is suitable for analysis on a different approved screening device, or on an approved instrument, at the discretion of the peace officer, (

b) where the basis for issuing the notice of administrative penalty was an initial test on an approved instrument , provide a sample of breath that in the opinion of the peace officer is suitable for analysis on an approved instrument, (

c) where the basis for issuing the notice of administrative penalty was an initial test on approved drug screening equipment , provide a 2nd sample of oral fluid that in the opinion of the peace officer is suitable for analysis by approved drug screening equipment, (

d) where the basis for issuing the notice of administrative penalty was performance of a drug recognition evaluation , provide a sample of blood or urine that in the opinion of the peace officer is suitable for analysis, at the discretion of the peace officer, (

e) where the basis for issuing the notice of administrative penalty was an analysis of blood , provide an additional sample of blood that in the opinion of the peace officer is suitable for analysis, (

f) where the basis, in whole or part, for issuing the notice of administrative penalty was reasonable grounds to believe there was alcohol in the driver’s body, and an initial test, evaluation or analysis referred to in clause (a), (b), (

d) or (

e) was not performed on the driver , provide a sample of breath that in the opinion of the peace officer is suitable for analysis on either an approved screening device or approved instrument, at the discretion of the officer, (

g) where the basis, in whole or part, for issuing the notice of administrative penalty was reasonable grounds to believe there was a drug in the driver’s body, and an initial test, evaluation or analysis referred to in clause (c), (

d) or (

e) was not performed on the driver , (

i) provide a sample of oral fluid that in the opinion of the peace officer is suitable for analysis on approved drug screening equipment, (ii) undergo a drug recognition evaluation, or (iii) provide a sample of blood or urine that in the opinion of the peace officer is suitable for analysis, at the discretion of the peace officer, or (

h) where the basis for issuing the notice of administrative penalty was reasonable grounds to believe that the driver had both alcohol and a drug in the driver’s body , (

i) provide a sample of breath that in the opinion of the peace officer is suitable for analysis on an approved screening device or approved instrument, at the discretion of the officer, and

(ii) either (

A) provide a sample of oral fluid that in the opinion of the peace officer is suitable for analysis on approved drug screening equipment or undergo a drug recognition evaluation, or (

B) provide a sample of blood or urine that in the opinion of the peace officer is suitable for analysis, at the discretion of the peace officer. (Emphasis added.) [ 19 ] None of the alternatives in TSA s 88.11(2) provide for where the basis of the Notice of Administrative Penalty was a TSA s 88.1(1)(

e) refusal to comply with the demand. The scheme of TSA ss 88.1 and 88.11 is that when a driver fails a roadside test, then the driver has a second chance to validate that result. The Roadside Appeal is based on an alternative test mechanism to confirm or refute the initial fail result per TSA 88 .1. [ 20 ] That is, explicitly, what Mr. Dorn complains he was denied in his candidate Amended Originating Notice: ... In addition, nowhere in the police report provided does it indicate that the Applicant was provided information about taking a second test . “The right to take a second test”. ...

The legislation requires that after a NAP/IRS is issued and only after the NAP/IRS is issued a person must be advised of the right to take a second test . Pursuant to

section 4(i)(vi) of the Saferoads Regulation if this is not done the NAP/IRS must be cancelled. The adjudicator failed to address this in his/her written decision. ... The Supreme Court of Canada in Goodwin v. BC 2015 SCC 46 reasoned that the right to take a second test becomes meaningless if the detainee is not made aware of the right. Therefore, the failure to provide the detainee with this information also engages Charter values and interests. The NAP/IRS should have been cancelled on this basis. (Emphasis added.) [ 21 ] The problem is that Mr. Dorn never had a first test.

He refused to provide any breath sample. Mr. Dorn never failed a breath test. Mr. Dorn never took any breath test on any alcohol breath sampling device. This is a first basis why I reject Mr. Dorn’s candidate Amended Originating Application. By the facts Mr. Dorn has pled and the legislation he has identified as relevant, Mr. Dorn cannot argue he was denied a second test. [ 22 ] I also conclude on a separate, second, basis that Mr. Dorn’s candidate Originating Application is hopeless because the remedy he seeks is not provided for by the relevant legislative scheme. [ 23 ] Statutory

interpretation “... is an exercise in discerning legislative intent by looking at the grammatical and ordinary meaning of the text in the context of the statute’s scheme and objectives.”: York University v Canadian Copyright Licensing Agency (Access Copyright) , 2021 SCC 32 at para 28 . Applying that process, I furthermore conclude, from the plain text of the TSA , that the Roadside Appeal provided for in TSA s 88.11 is not an “appeal” of a refusal to provide a breath sample. That is not what the word appeal means. Instead, the Roadside Appeal applies to the other TSA ss 88.1(1)(a-

d) bases on which a peace officer “... shall issue a notice of administrative application”. The TSA generally provides two branches for a Notice of Administrative Penalty: (1) there is evidence a driver has operated a motor vehicle while impaired or while having a prohibited bodily content of alcohol or drugs ( TSA ss 88.1(1)(a-d)); or (2) the driver fails or refuses to comply with a TSA ss 88.1(1)(a-

d) demand to evaluate a driver’s impairment, or the drugs or alcohol in the driver’s body: TSA ss 88.1(1)(e). [ 24 ] I again stress that TSA s 88.11(2) does not identify what the procedure would be to conduct a Roadside Appeal where a driver refused to provide a breath sample. The reason is simple: there is no result for the second “... different approved screening device ...” to review. I conclude that the Legislature did not intend to provide the option for a Roadside Appeal where the driver, like Mr. Dorn, immediately opted out of the TSA s 88.1 procedure. [ 25 ] Legislative

interpretation provides the Court may “read down” legislation, but not “read in” processes: Sullivan on the Construction of Statutes , 6th ed (Markham: LexisNexis, 2014) at 165-169. If the Legislature had intended that there be a specific Roadside Appeal where that appeal was intended to operate where a driver refused to provide a breath sample, per TSA ss 88.1(1)(e), then the Legislature would have provided for that alternative in a clear and explicit manner. The Legislature did not do so. I conclude that was intentional.

It would be incorrect in law for the Court to now invent some kind of Roadside Appeal mechanism where there is literally no test or evidentiary outcome to appeal. [ 26 ] This conclusion as to the relationship of TSA s 88.11 and TSA s 88.1 is a separate basis on which I conclude that the no Roadside Appeal argument in Mr. Dorn candidate Amended Originating Application is a hopeless. Paragraphs 7-9 of the candidate Amended Originating Application are rejected. C. Ancillary Issues [ 27 ] The Director also notes that the candidate Amended Originating Application should provide full citations in paragraphs 15 and 17.

I direct this change also be made prior to filing of the candidate Amended Originating Application.

III. Conclusion [ 28 ] I order that Counsel for Mr. Dorn shall file the candidate Amended Originating Application received by the Court on July 26, 2021, with the revisions identified above, by 14 days from the date of this Memorandum of Decision. For clarity, paragraphs 7-9 of the candidate Amended Originating Application should be deleted and full citations should be provided in paragraph 15 and 17. If no Amended Originating Application, as instructed in this Memorandum of Decision, is filed by that deadline, then Mr.

Dorn’s judicial review is struck out pursuant to r 3.68 of the Alberta Rules of Court without further Court Order. [ 29 ] The interim stay imposed in Dorn #1 at para 18 is vacated without further Court Order once the Amended Originating Application is filed within the 14-day deadline. [ 30 ] No costs result from this SAARP process. Counsel for Mr. Dorn shall prepare the Order giving effect to this Memorandum of Decision. Dated at the City of Edmonton, Alberta thi s 22 nd day of September, 2021. K.G. Nielsen A.C.J.C.Q.B.A. Appearances: Rory Ziv Ziv Law Group for the Applicant Darryl Evan Dorn Rachelle K.

Roberts Alberta Justice and Solicitor General for the Respondent Director of SafeRoads Alberta