Woodworth v Alberta (Director of SafeRoads), 2023 ABKB 468

Court of King’s Bench of Alberta Citation: Woodworth v Alberta (Director of SafeRoads), 2023 ABKB 468 Date: 20230814 Docket: 2101 06839 Registry: Edmonton Between: Konnor Woodworth Applicant - and - Director of Saferoads Alberta Respondent _______________________________________________________ Endorsement Judicial Review from the Adjudicator K. Magnien of the Honourable Justice B. Bokenfohr Dated the 28 th day of May, 2021 ( 2021 ABSRA 283 ) _______________________________________________________ I.

Overview [ 1 ] This is an application for judicial review of a decision by an Adjudicator to confirm a Notice of Administrative Penalty (NAP) issued to Konnor Woodworth (the Applicant) pursuant to the SafeRoads Alberta Regulation, Alta Reg 224/2020 ( SAR ). [ 2 ] The Applicant was issued the NAP for failing or refusing, without a reasonable excuse, to comply with a demand for a

breath sample. [ 3 ] The Applicant argues that he had a reasonable excuse for refusing to provide a breath sample. [ 4 ] The facts are simple. The Applicant was arrested for impaired operation of a motor vehicle, handcuffed, pat searched, and placed in the back of a police vehicle. The arresting officer “ Chartered and cautioned” the Applicant meaning that the Applicant was advised that they had the right to retain counsel and they were not obliged to say anything unless they wished to do so.

The arresting officer subsequently obtained an Approved Screening Device and demanded that the Applicant provide a breath sample stating that they would be charged under the Criminal Code if they refused to do so. The Applicant refused. The officer issued a NAP for the refusal. [ 5 ] The Adjudicator did not engage in the analysis necessary to assess whether the Applicant had a reasonable excuse for refusing to provide a breath demand. Specifically, the Adjudicator did not address the fact that prior to the breath demand being made the officer had advised the Applicant of their right to counsel.

The Adjudicator did not address whether the Applicant asked to speak to counsel or whether the Applicant waived their right to contact a lawyer prior to the breath demand being made. The chain of events was clear on the Record before the Adjudicator and the Adjudicator confirmed in their decision that the Applicant was advised of their right to counsel prior to the breath demand.

Given this fact, whether the Applicant had a reasonable excuse for refusing to provide a breath sample and the overall assessment of the fairness of the proceedings demanded that the Adjudicator grapple with a refusal to provide a breath demand after being arrested and advised of the right to counsel.

The failure of the Adjudicator to undertake this analysis renders the Adjudicator’s decision unreasonable. [ 6 ] The matter is sent back for rehearing on the issue of whether the Applicant had a reasonable excuse for refusing to provide a breath sample and the overarching duty of fairness including whether relying on the refusal as the basis for issuing the NAP, in these factual circumstances, affects the fairness of the proceedings or would be an abuse of process or breach of natural justice. II. Background [ 7 ] Police received a 911 call reporting a possible impaired driver leaving a restaurant.

The reporter was able to provide a first name and license plate. Police used the license plate information to obtain the Applicant’s address. Cst. Zimmerman arrived at the Applicant’s home and observed the Applicant drive the vehicle into the driveway and park. The Applicant exited the vehicle and walked towards the police vehicle. Cst. Zimmerman reported that the Applicant was unsteady on his feet, had red glossy eyes, delayed speech, slurred speech, his eyes moved slowly and gazed back and forth, and there was the smell of alcohol on his breath when he spoke. Cst.

Zimmerman concluded that he had reasonable grounds to believe that the Applicant was operating a motor vehicle while impaired. Cst. Zimmerman advised the Applicant that he was under arrest for impaired operation of a motor vehicle. The Applicant became argumentative. Cst. Zimmerman handcuffed the Applicant, conducted a pat search, and placed the Applicant in the back of the police vehicle. [ 8 ] Cst. Zimmerman’s police report states that he then provided the Applicant with his “legal rights from a preformatted card”. [ 9 ] The preformatted card included with Cst.

Zimmerman’s notebook notes uploaded to the Administrative Penalty Information System (APIS) states the following:

Section 10(

a) I am arresting you for __________________

Section 10(

b) You have the right to retain and instruct a lawyer without delay. This means that before we proceed with our investigation you may call any lawyer you wish or a lawyer from a free legal advice service immediately. If you want to call a lawyer from a free legal advice service, we will provide you with a telephone and you can call a toll-free number for immediate legal advice. If you wish to contact any other lawyer, a telephone and telephone book will be provided to you. If you are charged with an offence, you may apply to legal aid for assistance. Do you understand?

Do you want to call a free lawyer or any other lawyer? CAUTION: You [are/may be/will be] charged with ________. You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. NOTE: Use appropriate wording above [ ] to suit circumstances .

BREATH DEMAND: In accordance with the provisions of the Criminal Code , I demand that you provide such samples of your breath as are necessary in the opinion of a qualified technician to enable a proper analysis to be made in order to determine the concentration, if any, of alcohol in your blood and that you accompany me for that purpose. You will be charged under the provisions of the Criminal Code if you do not comply. Do you understand? REMINDER UPON RETURN TO THE POLICE STATION All persons detained in police custody have the right to immediate legal advice regardless of their financial status.

Detained persons also have the right to choice of Counsel. You may choose to use the free legal advice numbers or a telephone book will be provided to you.

WAIVER OF RIGHTS TO COUNSEL You have the right to a reasonable opportunity to contact a lawyer. I am obliged not to take a statement from you or ask you to participate in any process that might provide evidence against you until you are certain about whether you want to exercise this right. Do you understand? Do you want to waive your right to contact a lawyer? [ 10 ] Cst.

Zimmerman’s report includes the following after reference to providing the Applicant with his “legal rights from a preformatted card”: • 10(a) – Impaired operation of a motor vehicle • DYU – “No I don’t, you didn’t even breathalyzer me” • 10(b) • DYU – “I understand that” • CC – “yeah” • PC • DYU – “I understand that” [ 11 ] Cst. Zimmerman left the police vehicle and obtained an Approved Screening device from another police officer. Cst. Zimmerman returned to the Applicant and “read him the ASD demand from a preformatted card”. When asked “do you understand” Cst.

Zimmerman’s notes and report both indicate that the Applicant replied “Fuck you, no”. [ 12 ] Cst. Zimmerman’s report states that he again explained the ASD demand and asked if the Applicant would provide such a sample and the Applicant said no. [ 13 ] Cst. Zimmerman’s report indicates that he then “continued with the investigation” and “completed necessary paperwork”. Cst.

Zimmerman’s report states that police officers then “attempted to explain to [the Applicant] the provincial sanction aspect of the charges and the reason the truck was being towed”. [ 14 ] In the end, the police officers determined that both the Applicant and the passenger of the motor vehicle, the Applicant’s brother, would be lodged in “cells for the [sic] safety and to be monitored as they were extremely intoxicated, confrontational and uncooperative”. III. SafeRoads Adjudicator Review [ 15 ] The Applicant sought review of the NAP.

The grounds for review were identified as “The police officer arrested [the Applicant] and placed him in the back of the police vehicle before asking him to blow into the ASD”. [ 16 ] The review proceeded by way of oral submissions. At the review hearing the Applicant argued that the breath demand was unlawful and that an unlawful demand does not need to be complied with therefore the Applicant had a reasonable excuse for refusing to comply.

The Applicant argued that the demand was unlawful for two reasons: 1) the Applicant was not made aware of his right to counsel prior to the demand being made; and 2) it is “illegal” for an officer to make an approved screening device demand if the officer has reasonable grounds to believe that the driver is impaired.

In addition to arguing that the demand was unlawful because it was made after the officer formed reasonable grounds to believe the Applicant was impaired, and after the Applicant was arrested, counsel also argued that the demand was contrary to the officer’s training as set out in the Approved Screening Device Operator’s Manual contained in the SafeRoads Technical Library which states that an ASD must never be used if the officer already believes the suspect’s ability to drive is impaired by alcohol. [ 17 ] The Adjudicator held as follows: Counsel argued that the Recipient had a reasonable excuse for refusing to comply on the basis that it was not a lawful demand in accordance with the Criminal Code .

I am not satisfied that the same considerations apply here. Here, the question is not whether the police made an unlawful demand, but rather, whether the demand was so unreasonable in the context of the provincial traffic safety scheme or so egregiously unfair that it gave the Recipient a reasonable excuse for refusing to cooperate. I acknowledge that the Alco-Sensor FST Manual instructs police not to issue an ASD demand if they already have reasonable grounds to believe a person is impaired while operating a vehicle.

However, the manual does not explain how that relates to a traffic safety investigation and the use of the word “reasonable grounds” implies that this statement is relevant to a criminal investigation. From the evidence before me, I conclude that there were two separate but concurrent investigations at the relevant time: one criminal and the other under the TSA. I see nothing unreasonable about police exercising their discretion to pursue an IRS investigation concurrently with or in lieu of a criminal investigation.

Section 88.1(1)(

b) contemplates the issuance of an IRS: fail sanction for having a blood alcohol concentration equal to or greater than 80 mg%, and

Section 2(

c) of the Regulation and

Section 88.11(2)(

a) of the TSA necessarily imply that this can be done on the basis of an ASD result. Here,

a) the Recipient was driving, and

b) he presented as impaired by alcohol. This seems to me to be an eminently reasonable basis for police to consider traffic safety sanctions, for which they would need to conduct a traffic safety investigation. Thus, it is reasonable to me that a breath demand would be made, and I am not satisfied that the Recipient had a reasonable excuse for refusing to cooperate. Woodworth (Re) , 2021 ABSRA 283 at paras 14 – 17 .

IV. Grounds for Judicial Review [ 18 ] The Applicant argues that the Adjudicator’s decision is unreasonable because the Adjudicator did not address the issue of whether the demand was lawful and if not lawful, whether that provided the Applicant with a reasonable excuse for refusing to comply with the demand. V.

Analysis [ 19 ] The standard of review is reasonableness. [ 20 ] I agree with the Adjudicator that the question is not whether the ASD demand was unlawful but rather, the issue is one of fairness in the context of the circumstances as a whole. [1] [ 21 ] Counsel for the Applicant made an error during oral submissions to the Adjudicator. Counsel argued that the Applicant was not advised of his right to counsel and he was unaware that he had a right to counsel. This is clearly wrong on the face of the Record.

The Adjudicator acknowledges at paragraph 8 of their decision that the Applicant was advised of his right to counsel. [ 22 ] The Adjudicator found that there were two separate but concurrent investigations being undertaken by police at the same time: a criminal investigation and a Traffic Safety Act investigation.

The Adjudicator held that it was not unreasonable for the police to exercise their discretion to pursue both a criminal and administrative investigation concurrently. [ 23 ] The issue of whether the police can undertake both a criminal impaired driving investigation and Traffic Safety Act investigation at the same time is not before me.

What is at issue in this judicial review is the consequences of conducting both investigations concurrently. [ 24 ] In this matter, it was necessary for the Adjudicator to assess whether the Applicant asked to speak to a lawyer or whether the Applicant waived their right to counsel. This is a crucial fact in assessing whether the Applicant had a reasonable excuse for refusing to comply with the breath demand.

In the absence of a finding of fact on this issue the Adjudicator was unable to conduct the analysis necessary to assess whether the Applicant had a reasonable excuse for refusing to comply with the breath demand. This finding was also necessary for the Adjudicator to engage in the fairness analysis required. [ 25 ] A fair process will require that both the police officer and the driver understand what is happening and pursuant to which investigation (criminal or TSA) as the investigation(

s) progress. [ 26 ] The Criminal Code authorizes police officers who have an approved screening device in their possession to demand a breath sample from any person who is operating a motor vehicle.

The officer does not have to have reasonable grounds to suspect that the person has consumed alcohol or drugs (s 320.27(2)). [ 27 ] The Criminal Code also authorizes police officers to demand a breath sample if the police officer has reasonable grounds to suspect that a person has consumed alcohol or drugs and driven a motor vehicle (s 320.27 (1)) and if the officer has reasonable grounds to believe that a person consumed alcohol or drugs and driven a motor vehicle (s 320.28). [ 28 ] When an officer stops a driver of a motor vehicle, the driver is detained.

When police detain members of the public, including a driver of a motor vehicle, the driver has a right to be advised of their right to contact a lawyer. This is the right recognized in s 10(

b) of the Charter. The law is well established that the right to counsel is suspended for the purpose of administering a roadside breath test. [ 29 ] Once a police officer makes the decision to arrest a driver, the police must advise the driver of their right to retain and instruct a lawyer without delay. The police must also give the driver a reasonable opportunity to consult with counsel.

As set out on the preformatted cards included with the officer notebook notes on APIS, police are obliged not to take a statement from the driver or ask them to participate in any process that might provide evidence against them until the driver is certain about whether they want to exercise their right to consult with a lawyer.

This would also include the driver being given an opportunity to consult with a lawyer. [ 30 ] A driver may waive their right to counsel. [ 31 ] The question that is live before the Adjudicator in this matter is whether the Applicant asked to speak to counsel and was given a reasonable opportunity to do so prior to the breath demand being made or, alternatively, whether the Applicant waived his right to obtain legal advice prior to the breath demand being made.

In the absence of findings on this issue the Adjudicator was unable to assess whether the Applicant had a reasonable excuse for refusing to comply with the demand. The Adjudicator was also unable to assess the overall fairness of the proceedings. [ 32 ] The Director argued that these issues were not argued before the Adjudicator and should therefore not be considered in the judicial review. It is true that these issues were not argued before the Adjudicator. In fact, the Applicant argued before the Adjudicator that they were not advised of their right to counsel.

As noted above, this was clearly wrong on the face of the Record and the Adjudicator clearly found that the Applicant had been advised of his right to consult with a lawyer after he was notified that he was under arrest. [ 33 ] The Applicant argued during the judicial review that he had asked to speak to a lawyer and he was therefore not required to comply with the breath demand until he had an opportunity to consult counsel. This is clearly a different argument than was before the Adjudicator.

The Adjudicator did not make a finding as to whether the Applicant asked to speak to counsel, whether he was given an opportunity to do so, or whether he waived his right to do so. [ 34 ] I recognize that a Court should exercise their discretion to consider new issues on judicial review sparingly. I am satisfied that

it is appropriate in these circumstances to do so as the issues were plain on the Record and arise as a result of findings made by the Adjudicator in their decision. The issue before the Adjudicator was whether the Applicant had a reasonable excuse for refusing to comply with the breath demand. Once the Adjudicator decided that the Applicant had been advised of their right to obtain legal advice it naturally follows that the Adjudicator needed to decide whether the Applicant asked to speak to counsel or waived the right to do so.

If the Applicant did ask to speak to counsel, the Adjudicator also needed to decide whether the Applicant was given an opportunity to do so and where, within the chain of events, the breath demand was made. VI. Conclusion [ 35 ] For the reasons set out above I quash the decision of the Adjudicator on the basis that it is unreasonable.

The matter is remitted back to the SafeRoads Alberta Tribunal for rehearing, with the benefit of these reasons, on the issue of whether the Applicant had a reasonable excuse for refusing to provide a breath sample and an assessment of the fairness of the proceedings and whether it would be an abuse of process or breach of natural justice to confirm the NAP. Heard on the 8 th day of June, 2023. Dated at the City of Edmonton, Alberta th is 14th day of August, 2023. B. Bokenfohr J.C.K.B.A. Appearances: Danusia Bourdon for the Applicant Anastasia Yevtushenko for the Director