Lausen v Alberta (Director of SafeRoads), 2021 ABQB 896

Court of Queen’s Bench of Alberta Citation: Lausen v Alberta (Director of SafeRoads), 2021 ABQB 896 Date: 20211110 Docket: 2101 04992 Registry: Calgary Between: Ryan Lausen Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice A.D. Macleod _______________________________________________________ I. Introduction and Background [1] This is an application for judicial review of a decision by an adjudicator to uphold a Notice of Administrative Penalty(“NAP”) against the Applicant, Mr.

Lausen, under the relatively new SafeRoads Alberta Regulation, Alta Reg 224/2020 (“SAR”). [2] Over the last number of years, many jurisdictions in this country, including Alberta, have enacted legislation with a view togetting drivers impaired by alcohol or drugs off the roads without engaging the Criminal Code and the full panoply of Charter rightsinvolved in Code prosecutions. British Columbia was one of the first jurisdictions to do this.

Alberta has emulated that regime because ithas weathered many challenges in the courts. [3] The Alberta regime is administered by the Director of SafeRoads Alberta (the “Director”). A brief synopsis of the processwas set out by Associate Chief Justice Rooke in Kelleher v Alberta (Director of SafeRoads), 2021 ABQB 517 , 2021ABQB517 at paras 1 and 2: On December 8, 2021, the SafeRoads Alberta Tribunal was created by the SafeRoads Alberta Regulation, Alta Reg 224/2020, asauthorized by the Provincial Administrative Penalties Act, SA 2020, c P-30.8 [PAPA].

The SafeRoads Alberta Tribunal conducts reviewsof 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. SafeRoadsAlberta Adjudicators issue formal reported written decisions in response to TSA reviews (SafeRoads Alberta Decisions). SafeRoads Alberta Decisions are subject to judicial review by the Court of Queen’s Bench of Alberta: PAPA s 24.

While the usual periodin 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 ofSafeRoads Alberta Decisions must be filed and served not later than 30 days after the date the SafeRoads Alberta Decision is received bythe Applicant (PAPA s 24(2)). [4] Essentially, the SAR program provides for administrative suspensions rather than criminal prosecution where a driver fails aroadside screening procedure, usually by providing a breath sample for analysis by an approved screening device (“ASD”) that results ina FAIL reading. [5] A FAIL reading provides reasonable grounds to believe that the driver has an excessive blood alcohol level and that hisability to operate a motor vehicle is impaired by alcohol.

However, scientific evidence shows that the ASD may give false results wherethe breath sample is contaminated by mouth alcohol arising from consumption of alcohol, burping or regurgitation within 15 minutesprior to the ASD test.

[ 6 ] In Sivia v BC (Superintendent of Motor Vehicles) , 2011 BCSC 1639 , the Court held that the 2010 version of BC’s administrative licence suspension program was unconstitutional because it did not allow for meaningful review of the ASD results. The 2010 legislation gave a driver the right to provide a second sample for analysis by an ASD, which presumably no longer would be contaminated by mouth alcohol given the passage of time. However, there was no obligation on the police to advise the driver of this right.

Thus, someone who was not over the legal limit could be suspended and would have no meaningful right of review.

The Court held that this was a breach s. 8 of the Charter because it did not minimally interfere with the driver’s rights. [ 7 ] The BC government appealed Sivia , but also amended the legislation to require the police to advise a driver of the right to request a second breath analysis. [ 8 ] In Goodwin v BC (Superintendent of Motor Vehicles), 2015 SCC 46 , the Supreme Court upheld Sivia and noted that the subsequent amendments made it clear that the goals of the legislation could be met without infringing s. 8. [ 9 ] SAR came into force in December 2020 and includes a number of provisions that are clearly intended to address the concerns in Goodwin .

These include a requirement that, once the police have reasonable grounds to believe that a driver has an excessive blood alcohol level or is impaired, they issue a NAP and advise of the right to request a roadside appeal thereof under the applicable provision of s. 88.11 of the Traffic Safety Act, RSA 2000, c T-6 (“ TSA ”). [ 10 ] As noted in the above quote from Kelleher , a recipient of a NAP can seek review of it by an adjudicator.

Section 4 of SAR sets out various grounds upon which the adjudicator may decide to cancel the NAP. In particular, s. 4 (e)(

v) provides for cancellation of the NAP if the officer did not advise the recipient in writing of the right to a roadside appeal under s. 88.11 of the TSA and the recipient was unaware of that right.

Section 4 (e)(vi) allows a NAP to be cancelled if the recipient requested a roadside appeal and the officer failed to provide an opportunity to undergo a test. II. Facts [ 11 ] The particular facts of this case are set out in Mr. Lausen’s affidavit. He was stopped by police on March 20, 2021 near Strathmore, Alberta. The officer demanded that Mr. Lausen provide a breath sample into a machine, which he did. He was advised that he had failed and was arrested for impaired driving and placed into the back of a police vehicle.

He was not told that he had the right to contact a lawyer and was not given an opportunity to do so. [ 12 ] After arresting Mr. Lausen, the officer apparently discovered that he had no record for impaired driving and made the decision to issue a NAP rather than proceeding under the Criminal Code . There is no evidence that the officer informed Mr. Lausen of this and, while it is not set out in his affidavit, I was informed by his counsel that he was not told that he was no longer under arrest and in jeopardy of prosecution under the Criminal Code . [ 13 ] Mr.

Lausen also was not told he had the right to appeal the first FAIL result. He was told that the officer had switched machines and that if he passed the test on the second machine, that would be the result used. He swears, however, that this was not presented to him as his right. Rather, he believed that he had to blow the second time. The second test also registered a FAIL. [ 14 ] Mr. Lausen was not provided with any documents until after he had given the second breath sample; he was told to sign a document after the process was complete.

He was given the NAP, which states, inter alia , “YOU HAVE THE RIGHT TO REQUEST A SECOND TEST TO CONFIRM YOUR BLOOD DRUG/ALCOHOL CONCENTRATION.” He also was given a “Tear Away Sheet”, which states, inter alia , “YOU HAVE THE RIGHT TO A SECOND TEST TO CONFIRM YOUR BLOOD DRUG/ALCOHOL CONCENTRATION.” III. The Adjudicator’s Decision [ 15 ] Mr. Lausen applied to an Adjudicator for cancellation of the NAP on three main grounds, as set out in his Memorandum to this Court:

a) That the NAP should be cancelled under SAR s. 4 (e)(

v) on the basis that the police failed to comply with their statutory duty to advise him in writing of his right to appeal the NAP and he was unaware of that right,

b) That the NAP should be cancelled under s. 4 (e)(vi) on the basis that the police had failed to provide him with an opportunity to undergo a test in accordance with s. 88.11 as he had not request a roadside appeal and the sample was not provided voluntarily but pursuant to an ASD demand and because he thought he had to,

c) That his rights under s. 10(

b) had been breached when he was arrested for impaired driving and not advised of his s. 10(

b) rights. The Tear Away sheet made it clear that the police were continuing their criminal investigation and seeking to elicit incriminating evidence from him for use against him as proof in a criminal investigation, and he was not provided with an opportunity to seek the advice of counsel prior to providing the second sample. As a result no weight should be given to the initial ASD fail result, and the NAP should be cancelled on that basis. [ 16 ] The Adjudicator confirmed the NAP, finding that Mr.

Lausen had failed to establish a ground for cancellation. [ 17 ] With respect to SAR s. 4 (e)(v), she made the following findings: ...I am not satisfied that Cst. O’Connell had a duty to provide specific nuances of the roadside appeal to ensure informed consent, nor do I accept that the ground to cancel is determined based on whether the written advice was provided before or after the second test. This is a conjunctive test and the relevant question is whether the Recipient has established that he was not advised in writing and that he was

not aware of his right to a roadside appeal. The Recipient’s affidavit states that Cst. O’Connell said, “[he] could provide a sample on a second machine”. This refutes the argument that he was unaware he had a right to a second test. In addition, the evidence of Cst. O’Connell is that paperwork was completed, explained and served to the Recipient. I infer that this paperwork included a copy of the NAP, as the Recipient does not dispute receiving it.

The evidence of the Recipient is that after providing his second sample, he signed the Roadside Appeal form without reading it. [ 18 ] With respect to SAR s. 4 (e)(vi), the Adjudicator said this: The Recipient further argues that the second test was pursuant to an ASD demand made at 0109 hours, which I interpret to be an argument in relation to the undermining or obscuring of the roadside appeal advice. However, I do not accept this. Cst.

O’Connell entered information into an online submission form with pre-determined fields through APIS, and neither his police narrative nor the Recipient’s affidavit make mention of a second reading of a breath demand. I am satisfied that the use of “Time of ASD Demand” is a clerical error on APIS, and accept that the second test was the roadside appeal, and not subsequent to a formal breath demand. I have not been provided with sufficient evidence to establish that Cst. O’Connell undermined or obstructed the Recipient’s right to a roadside appeal in any way, and accept that Cst.

O’Connell advised the Recipient in writing. I also find that the Recipient was aware of his right to the second test as he signed the Roadside Appeal form and provided a second sample. [ 19 ] Essentially, the Adjudicator concluded that while events may not have unfolded in the intended order, Mr. Lausen was given the required written information and was aware that if he passed the second breath test, it would prevail. Thus, whether or not he thought it was voluntary, he exercised his right to a second test, which did not put him in any worse position. IV. Issues [ 20 ] The issues, as set out by Mr.

Lausen in his Memorandum, largely reflect the issues he raised before the Adjudicator: 1) Did the Adjudicator err in law and act unreasonably in failing to cancel the NAP under SAR s. 4 (e)(

v) on the basis of failure to comply with the duty to advise Mr. Lausen in writing of his right to a roadside appeal? 2) Did the Adjudicator err in law or act unreasonably in failing to cancel the NAP under SAR s. 4 (e)(vi) on the basis that Mr. Lausen was not provided with an opportunity for a voluntary roadside appeal as required pursuant to s. 88.1(5) of the TSA ? 3) Did the Adjudicator err in law and act unreasonably in failing to find a breach of Mr. Lausen’s right under s. 10(

b) of the Charter and in failing to grant a remedy? V. Analysis [ 21 ] The Director’s position is that Mr. Lausen seeks to impose on an administrative scheme criminal procedure requirements that are not supported by law. He does so by applying an overly technical reading to the TSA rather than the “fair, large and liberal construction and

interpretation that best ensures the attainment of its objects” contemplated by s. 10 of the

Interpretation Act , RSA 2000 c.1-8. The Director submits that this position undermines the very purpose of the statutory scheme to provide an expedited, fair and proportionate means to address the pressing and substantial issue of impaired driving and to ensure road safety for the protection of the public. [ 22 ] Mr. Lausen’s position is that the Province of Alberta is attempting to ride two horses, one being criminal prosecution for impaired driving under the Criminal Code and the other being imposing administrative penalties under the statutory scheme.

The result was that he was neither given the opportunity to consult counsel nor advised that he was no longer under criminal investigation, but was instead the subject of administrative penalty. [ 23 ] The fusion of the criminal and administrative processes is so complete that the forms used by police in this case showed Mr. Lausen’s second breath test as a second demand rather than a roadside appeal. The forms have since been amended. A. Standard of Review [ 24 ] Mr.

Lausen acknowledges the Supreme Court of Canada’s statement in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 that reasonableness is the presumptive standard of review. He notes, however, that the Supreme Court made an exception for “general questions of law that are of central importance to the legal system as a whole because they require uniform and consistent answers”.

He suggests in his Memorandum that “...the legal context in which this judicial review must take place requires the Court to consider the importance of Charter rights, particularly s. 8 and s. 10(b), in determining whether the decision of the Adjudicator was correct in law and reasonable.” [ 25 ] For his part, the Director notes that s. 24(3) of PAPA provides that the standard is reasonableness.

He acknowledges that correctness applies to questions of law of central importance to the legal system as a whole and states somewhat obliquely that “Unfairness or egregious unfairness in the collection of police evidence in breach of Charter rights and values brings the administration of justice into disrepute.” He takes the position that “...the Adjudicator’s Decision on the issue of whether the second breath sample was obtained from the Applicant in an unfair or egregiously unfair manner is supportable on the application of both the reasonableness standard of review and that of correctness.” [ 26 ] The appropriate standard of review for administrative tribunals faced with Charter issues was extensively canvassed by

Madam Justice Abella in Loyola High School v Québec (Attorney General) , 2015 SCC 12 at paras 4 , 35, 37, 38 and 39: Under Doré , where a discretionary administrative decision engages the protections enumerated in the Charter – both the Charter’s guarantees and the foundational values they reflect – the discretionary decision-maker is required to proportionately balance the Charter protections to ensure that they are limited no more than is necessary given the applicable statutory objectives that she or he is obliged to pursue. ...

Doré requires administrative decision-makers to proportionately balance the Charter protections – values and rights – at stake in their decisions with the relevant statutory mandate... On judicial review, the task of the reviewing court applying the Doré framework is to assess whether the decision is reasonable because it reflects a proportionate balance between the Charter protections at stake and the relevant statutory mandate... Reasonableness review is a contextual inquiry...

In the context of decisions that implicate the Charter , to be defensible, a decision must accord with the fundamental values protected by the Charter . The Charter enumerates a series of guarantees that can only be limited if the government can justify those limitations as proportionate. As a result, in order to ensure that decisions accord with the fundamental values of the Charter in contexts where Charter rights are engaged, reasonableness requires proportionality... The preliminary issue is whether the decision engages the Charter by limiting its protections.

If such a limitation has occurred, then “the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play”: Doré at para. 57. A proportionate balancing is one that gives effect, as fully as possible to the Charter protections at stake given the particular statutory mandate.

Such a balancing will be found to be reasonable on judicial review: Doré at paras. 43-45. [Emphasis added.] [ 27 ] Given these comments, I conclude that the standard of review in respect of Charter issues before the Adjudicator is reasonableness. B. SAR 4(e)(v) [ 28 ] First, Mr. Lausen takes the position that the Adjudicator erred in law and acted unreasonably in failing to cancel the NAP under SAR s. 4 (e)(v). In his Memorandum, he summarizes the procedure under the TSA as follows: a.

The officer makes a demand for a breath sample into the ASD or uses some other screening test authorized under the Criminal Code . b. If there is a refusal, failure, or a FAIL result, then the officer has the reasonable grounds under s. 88.1(1). c. The officer then issues the NAP as required by s. 88.1(2), which includes the statement required by SAR s. 10 (a)(

i) advising of the right to a roadside appeal under s. 88.11. d. The officer is also required by s. 88.1(5) to advise the driver of his right to voluntarily undergo the applicable test, analysis or evaluation under s. 88.11(2). e. The driver has the right to request a roadside appeal of that NAP pursuant to s. 88.11(2) or may waive his right to a roadside appeal. f. If the driver requests the NAP, then he is required to accompany the officer if necessary and immediately provide a sample for analysis as per s. 88.11(2). [ 29 ] I presume that what Mr.

Lausen means in f. above is “If the driver requests the roadside appeal ”. [ 30 ] While there is some disagreement between the parties as to how events unfolded, there is little dispute that the above procedure was not followed. Specifically, Mr. Lausen blew into the second ASD machine prior to being issued the NAP. [ 31 ] In his Memorandum, Mr. Lausen made extensive arguments with respect to the wording of the TSA and SAR. He asserted that, given the way events unfolded, he did not fall within the various

definitions and the legislative provisions were not properly applied. As noted above, the Director takes the position that this reading is overly technical and is not consistent with the

Interpretation Act . [ 32 ] While Mr. Lausen’s reading of the TSA is technically correct, my role on this judicial review is to determine whether the Adjudicator’s decision meets the standard of review. The Adjudicator found that Mr. Lausen was provided with the NAP, was aware that he could provide a second breath sample and was aware that the second test would be relied upon if he passed it. [ 33 ] The crux of Mr. Lausen’s argument is that the second sample was not voluntary. The Adjudicator accepted his evidence that he thought he had to provide the second sample and, on that basis, Mr.

Lausen asserts that her finding that there was no ASD demand prior to the second sample was unreasonable. [ 34 ] I do not agree. However, honestly, Mr. Lausen believed that he was obligated to provide a second breath sample, it does not follow that a second ASD demand must have been made. His affidavit evidence, as set out below, is insufficient to establish such a demand: The officer said he had switched the machines so I could provide a sample on a second machine. [Emphasis added.]

The officer then told me to blow into the second machine. ... I was told that if I passed the second one, that would be the result they would use. [ 35 ] It is clear that there was a failure of communication here. Equally, it is clear that the police did not follow the proper procedure and I will make further comments on that later in this decision. Nevertheless, Mr. Lausen was able to provide a second breath sample on a second ASD machine.

I note that both the NAP and the Tear Away Sheet refer to a “second test” rather than to a “roadside appeal”, though that is the language used in the SAR . [ 36 ] I think it important to recall that the rationale behind the requirement for a roadside appeal stems from the potential unreliability of the ASD results.

I take guidance from the comments of the Supreme Court of Canada in Goodwin and of the British Columbia Court of Appeal in Gregory v BC (Superintendent of Motor Vehicles) , 2018 BCCA 7 . [ 37 ] In Goodwin , the Supreme Court said this at paras. 63 and 77: Driving on highways is, of course, a highly regulated activity, and drivers expect that the rules of the road will be enforced.

This reality, combined with the scheme’s location within a broader regulatory framework targeting driving and highway safety, supports characterizing the regime as regulatory and applying a more flexible standard in assessing its reasonableness. However, other features of the scheme suggest that closer scrutiny is required to ensure the state does not unreasonably interfere with a driver’s privacy interest. First, while the breath seizure occurs for a regulatory purpose, it nonetheless has certain criminal-like features, such as its administration by a police officer pursuant to Criminal Code authorization.

Second, while the consequences that follow a “fail” reading or the failure to provide a sample are not criminal, they are immediate and serious, and arise without a further test using a (more reliable) breathalyser. ... The ARP scheme as enacted in 2010 depends entirely on the results from a test conducted using an ASD, a device known to produce false positives where mouth alcohol is present. Despite this defect regarding ASD reliability, the scheme provides no meaningful opportunity to challenge a licence suspension issued under this scheme on the basis that the result is unreliable.

In the particular circumstances of these appeals, in which a “fail” result automatically triggers serious consequences for a driver without the possibility of review, the scheme fails to provide adequate safeguards.

Thus, despite the pressing objective and minimal intrusiveness of the seizure, the ARP scheme fails to strike a reasonable balance between the interests of the state against those of individual motorists, and infringes drivers’ s. 8 rights. [ 38 ] In Gregory , the British Columbia Court of Appeal spoke to the amended scheme at paras. 40, 41, 50 and 52: The majority judgment in Goodwin was written by Karakatsanis J.

She noted that Sigurdson J. concluded that it was the reliability of ASD results (specifically the inability to account for the presence of mouth alcohol) that was directly relevant to the reasonableness of the search: paras. 66 and 67. While the inability of a driver to meaningfully challenge the basis for the breath demand was a concern in Sivia , BCSC, it was the inability to challenge the accuracy of the test that was most important: para. 69.

Karakatsanis J. agreed (at para. 72): “a driver’s ability to challenge the accuracy of the ASD result is thus critical to the reasonableness of the [IRP] scheme” [emphasis in Gregory ]. ... Even if there was no way to challenge the validity of the ASD demand, I would find that the scheme was reasonable. The purpose of the IRP is to remove impaired drivers from the road, a purpose the Supreme Court has described as compelling...

If a driver is truly impaired, and the concerns for ASD reliability have been addressed as discussed above, then it is reasonable that the Superintendent not revoke a prohibition, even if the ASD demand that justifies the prohibition was improperly made. ...

Even if this issue was not already decided by Sivia /Goodwin , in my view, s. 8 is not infringed given the regulatory context, the compelling objectives of the IRP scheme, the minimally intrusive nature of the ASD demand, and the fact that concerns regarding ASD reliability have been addressed by amendments granting drivers the right to a second ASD demand, and expanding the grounds for review by the Superintendent. [ 39 ] Notwithstanding the circumstances, Mr. Lausen had an opportunity to provide a second ASD breath sample.

Having received a FAIL result on that second test, he is no worse off than he would have been if the police had followed the proper procedure. For that reason, I find that the Adjudicator’s decision that he had failed to establish grounds to cancel the NAP pursuant to SAR s. 4 (e)(

v) was reasonable and I decline to interfere with it. C. SAR 4(e)(vi) [ 40 ] Second, Mr. Lausen argues that the Adjudicator erred in law and acted unreasonably in failing to cancel the NAP under SAR s. 4 (e)(vi). He asserts that the police failed to provide him with a voluntary opportunity to undergo a second ASD test in accordance with TSA s. 88.11 . While it is undisputed that Mr. Lausen did in fact provide a second ASD breath sample, he notes that the roadside appeal contemplated by TSA s. 88.11 is described in s. 88.1(5) as “voluntary”.

As noted above, he asserts that he provided the second breath sample because he thought he had to and the Adjudicator accepted his evidence on this point. [ 41 ] I reject this argument for much the same reasons as set out above. Whatever Mr. Lausen believed, it is not clear that the second ASD test arose from a demand by the officer. Further, despite the defects in the procedure, Mr. Lausen was able to provide a second sample, thus obviating the concern about a false ASD FAIL result. [ 42 ] Again, I find that the Adjudicator’s decision was reasonable and I decline to interfere with it.

D. Charter 10(b)/Egregious Unfairness [ 43 ] Next, Mr. Lausen argues that the Adjudicator erred in law and acted unreasonably in failing to find that the police breached his rights under s. 10(

b) of the Charter . [ 44 ] While he acknowledges that s. 10 (

b) is suspended for purposes of roadside screening, Mr. Lausen asserts that once the officer had formed reasonable grounds to believe an offence had been committed, the suspension ended and he should have been advised of his right to counsel. He contends that he was not advised that the police had decided not to proceed with a criminal investigation and that he was forced to decide, without benefit of legal advice, whether to participate in a process that could have had an adverse effect on him in a criminal trial. [ 45 ] Further, Mr.

Lausen argues that the Tear Away Sheet used by police after the initial ASD FAIL result threatens criminal consequences if a second test is requested, creating a disincentive to request a roadside appeal. This, he asserts, is a systemic breach that is egregiously unfair. [ 46 ] The Director argues, first, that the Adjudicator is not a court of competent jurisdiction and does not have the power to find Charter breaches or to grant Charter remedies.

The Director does acknowledge that the Adjudicator’s duty of fairness requires her to consider whether the alleged Charter breaches render the evidence irrelevant or unreliable such that it would be unfair to consider it. Citing Baker v Alberta (Transportation Safety Board) , 2004 ABQB 244 , the Director concedes that the Adjudicator could cancel the NAP if she found that the circumstances were so egregiously unfair that they outweigh the public interest. [ 47 ] This issue was canvassed in Borradaile v British Columbia (Superintendent of Motor Vehicles) , 2020 BCSC 363 .

As I have found the Court’s comments in that case particularly helpful, I will quote them at some length, citing paras 17, 23, 29, 30, 34 and 35: An administrative tribunal is not a constitutional court. Its role is not to decide whether to include or exclude evidence on account of breaches of Charter rights. Evidence that might be inadmissible in a criminal case may be considered by an administrative body. ... The obligation on the part of a tribunal to consider Charter values under a roadside suspension scheme was confirmed in Thomson v.

Alberta (Transportation Safety Board) , 2003 ABCA 256 , where Paperny J.A. for the court stated the following: [69] Although the Board does not have the power under s. 24(2) to exclude evidence obtained in breach of Charter rights, the manner in which evidence was obtained remains a factor which must be considered when the Board exercises its duty of fairness. ... The fact that an ASD demand may have been improperly made is not determinative of whether the evidence of the ASD should be considered in this context, absence concerns about its reliability.

In [ Gregory ], Bauman J.A. concluded that even if an ASD demand were improperly made, it was nonetheless appropriate to consider the evidence obtained from the ASD in order to give effect to the purpose of the statutory scheme. ... The adjudicator was obligated to consider Charter values in making her decision. However, the focus of the analysis of Charter values before the Superintendent’s delegate is whether the evidence is relevant and reliable as opposed to whether the evidence would be admissible in a criminal case...

The adjudicator was obligated to consider the Charter values in determining whether or not to set aside the suspension ordered by Cst. Levorson and I conclude that she did so. She had no ability to exclude the evidence but rather was obligated to weigh the possible breach against other factors including the legislative purpose of the statute, which is to remove impaired drivers from the roads who pose a hazard to others. This is precisely what she did. I consider the reasons to provide sufficient explanation of the decision to uphold the suspension.

The adjudicator had no ability to exclude evidence because the tribunal is not a constitutional court, and therefore it was not necessary for her to explain why it was acceptable for Cst. Levorson to delay the ASD from the perspective of a possible Charter breach.

Unlike a s. 24(2) analysis, where the court will consider whether the state conduct was so egregious that the court feels obligated to disassociate itself and therefore exclude the evidence, the administrative tribunal is more concerned with whether the evidence before it is reliable. [ 48 ] The Adjudicator found that she did not have authority to find Charter breaches or to grant Charter remedies, but that she could consider those arguments in her assessment of the grounds to cancel the NAP for reasons of fairness.

She concluded that the NAP was not “so deceptive or contrary to law that it amounts to egregious unfairness” and that the second ASD test was not obtained through an abusive exercise of power by the police. She therefore declined to cancel the NAP on the grounds of egregious unfairness. [ 49 ] In my view, the Adjudicator’s conclusion was reasonable. There is no suggestion that the second ASD result was unreliable; indeed, the availability of a second test is intended to address potential unreliability of the first test.

As I will address later in this decision, the police should have been more careful to advise Mr. Lausen that they were no longer proceeding with a criminal investigation. Nevertheless, the Adjudicator’s conclusion that Mr. Lausen could have asked further questions and that, in the totality of the circumstances, the issuance of the NAP was not egregiously unfair was reasonable and I decline to interfere with it. VI. Conclusion [ 50 ] In the result, the application for judicial review of the Adjudicator’s decision is dismissed.

[ 51 ] I pause here to make some comment about the police procedure at issue in this case. While I have found that the Adjudicator’s decision not to cancel the NAP was reasonable, the police should be aware that this result may not always ensue. In the context of a roadside stop, the boundary between criminal investigation and administrative procedure must be more clearly delineated. As noted above, the police already have amended their forms to distinguish between a breath demand and a roadside appeal.

They also should take care to ensure that drivers are made aware if a criminal investigation is abandoned in favour of proceeding along the administrative route. Heard on the 8 th day of September, 2021. Dated at the City of Calgary, Alberta this 10 th day of November, 2021. A.D. Macleod J.C.Q.B.A. Appearances: Timothy Foster, Q.C. for the Applicant Michael A. Power for the Respondent