Anderson v Alberta (Director of SafeRoads), 2021 ABQB 760

Court of Queen’s Bench of Alberta Citation: Anderson v Alberta (Director of SafeRoads), 2021 ABQB 760 Date: 20210922 Docket: 2103 07019 Registry: Edmonton Between: Collin Ryan Anderson Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________ I.

Introduction [ 1 ] On July 21, 2021, this Court, in a decision reported as Anderson v Alberta (Director of SafeRoads) , 2021 ABQB 566 ( Anderson #1 ), applied the SafeRoads Alberta Accelerated Review Procedure (SAARP) to an Originating Application (Application), that was filed by Collin Ryan Anderson (Mr. Anderson) on April 27, 2021. The Application challenged a SafeRoads Alberta Decision reported as Anderson (Re) , 2021 ABSRA 312 . In Anderson #1 , I concluded at paras 16-19 that the Application was a prima facie abuse of the Court because that document failed to provide adequate pleadings.

[ 2 ] Mr. Anderson 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 ] The Court on July 26, 2021 received a candidate Amended Originating Application from Counsel for Mr. Anderson. Counsel for the Director of SafeRoads Alberta (Director), in Written Submissions dated August 3, 2021, submitted that the candidate Amended Originating Application corrected the pleading deficiencies identified in Anderson #1 . Counsel for Mr.

Anderson requested a time extension to make Reply Submissions, which was granted. Those Reply submissions were received from Mr. Anderson on August 27, 2021. That completes the SAARP process: Anderson #1 at para 22 . [ 4 ] I have reviewed the candidate Amended Originating Application.

While I agree with the Director that the candidate Amended Originating Application now provides adequate particularized pleadings, so that the Application is a valid pleading and no longer is an abuse of the Court as identified in Anderson #1 , I nevertheless conclude that the candidate Amended Originating Application is hopeless, and should be refused filing on that basis. II. The Candidate Amended Originating Notice [ 5 ] SAARP is an alternative mechanism to conduct a proceeding pursuant to r 3.68 of the Alberta Rules of Court , Alta Reg 124/2010 .

If an applicant who has initiated a SafeRoads Alberta judicial review elects to submit a candidate Amended Originating Notice in response to a SAARP step one decision, then: After receipt of the Respondent’s Written Submissions, and the Applicant’s Written Reply, if any, the Court will render its final decision on whether the amended judicial review Application should be filed, or the Action struck out as an abuse of the processes of the Court pursuant to Rule 3.68 of the Alberta Rules of Court . ( Anderson #1 at para 22 (3).) [ 6 ] I conclude that the candidate Amended Originating Application should not be filed because it is factually and legally hopeless.

In the candidate Amended Originating Application, Mr. Anderson pleads: (1) on March 7, 2021, Mr. Anderson refused to provide a breath sample to RCMP (para 3);

(2) Mr. Anderson was issued a Notice of Administrative Penalty on that basis (paras 2-3); and (3) that the evidence of police and Mr. Anderson is inconsistent on whether Mr.

Anderson was provided an opportunity to provide a second “Roadside Appeal” breath sample test (paras 3-5). [ 7 ] The grounds for judicial review are that the SafeRoads Alberta Adjudicator “... failed to address the issue of whether the Applicant was provided an opportunity to take a second test on a different device. ...” (para 11). [ 8 ] 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. [ 9 ] 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] ... [ 10 ] 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. Anderson’s Notice of Administrative Penalty was issued because he refused to provide a breath sample, breaching TSA s 88.1(1)(e). Mr. Anderson’s candidate Amended Originating Notice makes no claim that Mr. Anderson’s refusal was based on a reasonable excuse. [ 11 ] Mr. Anderson complains that he was not either informed of, or given an opportunity to, exercise 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 an opportunity to “appeal” the initial basis for the Notice 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.

Anderson in his candidate Amended Originating Application says he was denied that opportunity for a “Roadside Appeal”. [ 12 ] 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.) [ 13 ] None of the alternatives in TSA s 88.11(2) provides 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 pursuant to TSA s 88.1. [ 14 ] That is, explicitly, what Mr. Anderson complains he was denied in his candidate Amended Originating Notice: In addition, the Applicant filed his own sworn evidence asserting that the RCMP never provided him with an opportunity to provide a second breath sample on a different machine . ...

The failure to provide an opportunity to provide a second breath sample on a different device is grounds for cancellation under s. 4 of the Saferoads Regulation (Alberta). ... The reason why a roadside appeal must be offered on a different device is set out in the case of Goodwin v BC 2015 SCC 46 . ... In

summary, on this point the adjudicator failed to address the issue of whether the Applicant was provided an opportunity to take a second test on a different device . This is a critical finding of fact that needed to be resolved. There is no police evidence that a different device was offered to the Applicant and there is positive evidence going the other way. (Emphasis added.) [ 15 ] Mr. Anderson specifically at para 6 of the candidate Amended Originating Application invokes TSA s 88.11(2)(

a) as the basis for why his Roadside Appeal was wrongly denied: ... where a driver requests an appeal of that notice of administrative penalty ... the driver shall immediately ... 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 ... (Emphasis added.) [ 16 ] The problem is that Mr. Anderson never had a “first test”. He refused to provide any breath sample. Mr. Anderson never “failed” a breath test. Mr. Anderson never took any breath test on any alcohol breath sampling device. This is a first basis why I reject Mr.

Anderson’s candidate Amended Originating Application. By the facts Mr. Anderson has pled and the legislation he has identified as relevant, Mr. Anderson cannot argue he was denied a second breath sample on a different device. [ 17 ] I also conclude on a separate, second, basis that Mr. Anderson’s candidate Originating Application is hopeless because the remedy he seeks is not provided for by the relevant legislative scheme. [ 18 ] 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, of the drugs or alcohol in the driver’s body: TSA ss 88.1(1)(e). [ 19 ] 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. Anderson, immediately opted out of the TSA s 88.1 procedure. [ 20 ] 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 in a situation in which a driver refused to provide a breath sample, pursuant to TSA s 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. [ 21 ] This conclusion as to the relationship of TSA s 88.11 and TSA s 88.1 is a second separate basis on which I conclude that Mr. Anderson’s candidate Amended Originating Application is a hopeless proceeding and should not be filed. III. Conclusion [ 22 ] Mr. Anderson’s candidate Amended Originating Application is rejected on two independent and separate bases:

(1) Mr. Anderson’s judicial review argues an error by the Administrator that is inconsistent with the facts pled by Mr. Anderson; and

(2) TSA s 88.11 does not provide for a Roadside Appeal where a driver refuses to provide a breath alcohol sample, or comply with other demands to evaluate impairment by body alcohol or drug content. [ 23 ] Given my conclusions, Anderson v Alberta (Director of SafeRoads) , Court of Queen’s Bench of Alberta Action No. 2103 07019 judicial review is struck out pursuant to r 3.68 of the Alberta Rules of Court . Mr. Anderson is ordered to pay costs of $1,000 to the Director, forthwith. Counsel for SafeRoads Alberta will 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 Collin Ray Anderson Rachelle K. Roberts Alberta Justice and Solicitor General for the Respondent Director of SafeRoads Alberta