Hollick v Alberta (Director of Saferoads), 2023 ABKB 61

Court of King’s Bench of Alberta Citation: Hollick v Alberta (Director of Saferoads), 2023 ABKB 61 Date: 20230131 Docket: 2101 07256 Registry: Calgary Between: Hayden Hollick Applicant - and - Director of Saferoads Alberta Respondent Corrected judgment: A corrigendum was issued on February 7, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Justice L.K. Harris _______________________________________________________ [ 1 ] Mr.

Hollick (the “Applicant”) has brought an application for judicial review of a decision by an Adjudicator to uphold a Notice of Administrative Penalty (“NAP”) against him pursuant to the SafeRoads Alberta Regulation , Alta Reg 224/2020 (“ SAR ”).

I. Background [ 2 ] On the evening of April 28, 2021, the RCMP in Okotoks received two calls about a single vehicle collision on Highway 2A. One caller indicated that the driver of the vehicle may be intoxicated. The other caller reported that she saw a silver car go into a ditch. [ 3 ] A police officer arrived on scene at approximately 9:46 pm. The officer spotted tracks on the highway where the vehicle lost control, struck the median and entered the ditch.

The officer saw the vehicle in an adjacent field in non-operational condition with two men standing by the vehicle on their cell phones. [ 4 ] The officer asked the men which one of them was the driver of the vehicle. One of the men identified himself as the Applicant and stated that the driver had run off. Then, the Applicant stated that this “would make things easier” and he admitted that he was the driver. As the Applicant approached the officer, she noted the smell of alcohol coming from him, and she formed a suspicion that the Applicant was impaired.

The officer informed the Applicant that he was under investigation for impaired driving. [ 5 ] The Applicant produced his driver’s license and vehicle registration confirming his identity and that the vehicle was registered in his name. [ 6 ] At 9:55 pm, the officer issued an ASD demand to the Applicant. She asked him if he’d had anything to drink in the last 15 minutes, to which the Applicant replied “No”. He confirmed there was nothing in his mouth. The Applicant provided a breath sample to the officer at 9:56 pm, which resulted in a “FAIL”.

The officer showed the Applicant the result. [ 7 ] The officer then advised the Applicant that he could opt to complete a second test and read to him the top sheet of the NAP. The Applicant advised that he did want to take a second test but not at that moment. He became argumentative, stating that the form didn’t say when he had to provide the second sample. [ 8 ] A second police officer had arrived, who advised the Applicant that he was required to provide the second sample right away. The first officer finished reading to the Applicant. The Applicant then signed the Roadside Appeal Tear-Off Sheet (“TAS”).

At 10:10 pm the applicant provided his second breath sample, which resulted in a FAIL. [ 9 ] The officer then read the immediate roadside sanction documents to the Applicant, explained the seizure notice and called a tow truck. The Applicant left the scene. [ 10 ] On April 30, 2021 the Applicant then applied for an oral review of his NAP, seeking to have his NAP cancelled under s. 4 SAR . His application was heard by an Adjudicator, who dismissed his application and confirmed the NAP. II.

Legal Framework [ 11 ] The background to and legal framework of the Alberta SafeRoads regime has been set out in several preceding decisions: see, for example, Dorn v. Alberta (Director of SafeRoads) , 2022 ABQB 394 at paras 4-7 , Isley v Alberta (Director of SafeRoads) , 2022 ABQB 249 . I therefore will not repeat the background or framework here. [ 12 ] In this case, the Applicant was issued a NAP for contravening

section 88.1(1)(a) (driver impaired to any degree by alcohol, drug, or a combination thereof) of the T raffic Safety Act, RSA 2000 ch T-6 (“ TSA ”) . [ 13 ]

Section 4 SAR sets out the grounds for an Adjudicator to cancel a NAP. The relevant portions for the purposes of this matter are as follows: 4 The grounds for an adjudicator to cancel a notice of administrative penalty … (

e) issued for contravention of

section 88.1(1)(

a) of the [ TSA ] are ... (

v) that the officer did not advise the recipient in writing of the right to a roadside appeal under

section 88.11 of the Act and the recipient was unaware of that right. (emphasis added); III.

Issues [ 14 ] According to the Application for Judicial Review, the Applicant asserts that the Adjudicator erred in law and its decision was unreasonable for the following reasons: • In concluding that the Applicant was provided with sufficient information to provide informed consent to the taking of the second breath sample ; • In concluding that the Applicant was properly advised in writing of his roadside appeal despite the fact that he was not provided with the NAP until after he provided his second breath sample; • In concluding that the wording of the NAP was not misleading or systemically and egregiously deficient;

• That the Charter violations were not so egregiously unfair and did not outweigh the public interest in removing an impaired driver from the road. In his written and oral submissions, the Applicant characterized his grounds for judicial review as first, non-compliance with the Saferoads regime, and second, the lack of informed consent to the second test, giving rise to a failure of the duty of fairness. These issues are somewhat intertwined. IV.

Standard of Review [ 15 ] Although the Applicant concedes that the standard of reasonableness presumably applies to a judicial review of an Adjudicator’s decision, he argues that the standard of review for this Court in this case is one of correctness because this application engages Charter issues and includes issues of general importance to the legal system as a whole. [ 16 ] On the other hand, the Respondent Director argues that the appropriate standard of review is reasonableness, and that if the Adjudicator’s decision displays transparency and justification for its decision then I must not interfere.

It is not open to me to conduct my own independent analysis of the issues presented by the Applicant. [ 17 ] Both parties rely upon the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 . [ 18 ] The issue of the appropriate standard of care to be engaged by this Court when there is a Charter issue raised has been dealt with by Ross, J. in Isley v Alberta (Director of SafeRoads) , 2022 ABQB 249 at paras 25-26 : The Court in Doré was very clear that “the fact that Charter interests are implicated does not argue for a different standard” (para. 45).

Given the Supreme Court’s analysis in Doré and Loyola , I find that the reasonableness standard applies to all issues in this case, including the Adjudicator’s decision on the application of the Charter . [ 19 ] My role in this judicial review is to review the Adjudicator’s decision to determine whether it was reasonable. This was made very clear by the Supreme Court in para 83 of Vavilov , which states: The role of courts in these circumstances is to review , and they are, at least as a general rule, to refrain from deciding the issue themselves.

Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem... [T]he reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable. [ 20 ] Notwithstanding that Charter values may be engaged in this application I conclude that the appropriate standard of review for me to apply to all issues is one of reasonableness.

V. Analysis A. Informed Consent and Legislative Compliance [ 21 ] The first three issues raised by the Applicant in his Originating Application are intertwined and can be considered together. [ 22 ] The Applicant argues that the police investigation into the collision began as a criminal investigation. Pursuant to s. 320.27 of the Criminal Code , police can make ASD demands based upon reasonable grounds, which was the case here. The detention of the Applicant pursuant to that investigation suspends certain Charter rights pending the completion of the roadside screening process.

If the roadside screening process gives the investigating officer reasonable grounds to make a demand for a breath sample under s. 320.28 of the Criminal Code , then Charter rights are engaged. [ 23 ] Unlike in British Columbia, the Alberta NAP procedure does not require police to make a choice between proceeding with a criminal investigation and the NAP process, which is administrative. As such, the NAP process in Alberta is not necessarily a purely administrative proceeding.

Although the Supreme Court decision in Wilson v British Columbia (Superintendent of Motor Vehicles) , 2015 SCC 47 (originating from British Columbia) holds that the Charter does not apply to purely administrative processes, this is not the fact scenario in Alberta when the police can concurrently proceed with both a criminal and administrative process.

The Applicant argues that if Charter rights do not apply to such circumstances, police would be able to insulate their conduct from Charter considerations by simply choosing at the end of their investigation not to lay a criminal charge, and instead choosing to issue an NAP. [ 24 ] In this case, the Applicant argues that police breached his s. 8 and s. 10(

b) Charter rights by failing to comply with the steps mandated by the legislative provisions and obtain informed consent to the second breath sample. After the Applicant’s first breath sample registered as FAIL, the officer read to him the wording on the TAS which is not what the legislation mandates. The officer ought to have served the Applicant with the NAP first so that the Applicant knew what contravention was being alleged, which would permit him to make an informed decision whether to request a roadside appeal.

Reading the TAS is not the same as issuing an NAP, and as the Applicant was not issued the NAP until after giving the second breath sample, the officer failed to comply with the legislation and the Applicant did not give informed consent to the second breath sample. [ 25 ] In considering this issue, the Adjudicator referred to the grounds for cancelling an NAP, and in particular, SAR s. 4 (e)(v),

which requires the Applicant to establish that the officer did not advise him in writing of the right to a roadside appeal and that the Applicant was unaware of that right. The Adjudicator concluded that the TAS met the requirements of a NAP under SAR s. 10 (a) (1) as it is the fist page of the standard NAP form and is part of an NAP document, and that the Applicant had not proven that it did not inform him of his right to a roadside appeal.

The Adjudicator also concluded that because police did explain the right to a second test, the NAP and the sanctions to the Applicant, the Applicant was aware of his right to a roadside appeal. The NAP could not therefore be cancelled on this basis. [ 26 ] SAR s. 10 reads as follows: Requirements of notice of administrative penalty 10 In addition to the content satisfactory to the Minister responsible under

section 16 of the Government Organization Act for the Provincial Administrative Penalties Act, a notice of administrative penalty must contain the following : (

a) in respect of a notice of administrative penalty issued for a contravention of

section 88.01, 88.02, 88.03 or 88.1 of the Act, (

i) a statement of the right of the recipient to a roadside appeal of the notice under

section 88.11 of the Act, (ii) a statement indicating that there may be additional conditions for reinstatement of the recipient’s operator’s licence, (iii) a statement indicating the recipient’s operator’s licence has been immediately suspended and the length of that suspension, (iv) a statement indicating that the motor vehicle driven by the recipient will be immediately seized and the length of that seizure, and (

v) the website address for SafeRoads Alberta; (emphasis added) [ 27 ] The TAS read to and signed by the Applicant is a one-page sheet titled ‘Notice of Administrative Penalty Immediate Roadside Sanction (IRS)”. It includes the following statement: YOU HAVE THE RIGHT TO A SECOND TEST TO CONFIRM YOUR BLOOD DRUG/ALCOHOL CONCENTRATION Second Test: The choice to request a second test is completely voluntary .

If you choose to have a second test, you may be required to immediately accompany the peace officer for that purpose; Be Advised: If your second test result indicates your drug/alcohol concentration is equal to or greater than: • 80 milligrams of alcohol in 100 millilitres of blood, or • the blood drug concentration as set out in the Criminal Code (Canada) or • a combination drug/alcohol concentration as set out in the Criminal Code (Canada) The peace officer may proceed with a criminal investigation. You may be required to provide further samples, and as a result you may be charged with a criminal offense under

section 320.14 of the Criminal Code (Canada) . [ 28 ] The TAS does not exactly contain the information required by SAR s. 10 (a).

For example, it refers to a “second test”, not a “roadside appeal”, it does not set out the length of the driver’s license suspension, does not set out the specific offence alleged to have been breached and it does not include the website for Saferoads Alberta. [ 29 ] The issue raised by the format and content of the TAS is whether it can stand in the place of the NAP when it was read to the Applicant such that there is compliance with s. 88.1 notwithstanding the differences between the two documents.

Further, if the TAS does not comply with SAR s. 10 , does this still render the procedure used by police in this case noncompliant with s. 88.1 because the TAS was read to the Applicant and the second breath sample taken before service of the NAP, and should the NAP be cancelled on that basis? [ 30 ] This is the same issue that was argued in Lausen v Alberta (Director of SafeRoads) , 2021 ABQB 896 and Isley v Alberta (Director of SafeRoads) , 2022 ABQB 249 . [ 31 ] In Isley , police issued the NAP after the Applicant had provided the second breath sample.

Ross J notes starting at para 31: In this case, the above sequence of events was not followed. The Applicant voluntarily provided a second sample of breath into an ASD before he received the NAP documents. At the hearing in front of the Adjudicator, the Applicant made extensive submissions with respect to the wording of the TSA and the SAR , and argued that, because the above sequence of events was not followed, and the wording on the NAP surrounding the roadside appeal is different than the wording in the legislation, the legislative provisions were not properly applied, and the NAP was improperly issued.

The same arguments were made before me in the Applicant’s written brief and oral arguments. [ 32 ] In Lausen v Alberta (Director of SafeRoads) , 2021 ABQB 896 , the Applicant was not provided written notice of his right to a roadside appeal before he participated in a second ASD test and did not know that the second test was on a different ASD. Macleod J.

found that, even though the proper procedure was not followed, the Applicant was still able to provide a second breath sample into a second ASD. Macleod J. relied on the reasoning in Gregory v BC (Superintendent of Motor Vehicles) , 2018 BCCA 7 ( Gregory ), where the BC Court of Appeal found that if a driver is truly impaired and the concerns about ASD reliability have been addressed, an Adjudicator’s decision to not cancel the prohibition will still be reasonable, even if procedure was not followed to the letter ( Gregory at para 50 ; Lausen at para 38 ).

Macleod J further elaborated at para 39, stating: 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...”. [ 33 ] I agree with Macleod J.’s reasoning on this point.

As the Applicant was given the opportunity to provide a second sample on a second ASD, and as the officer read the TAS to him which provided him with the information that he could avail himself of a second test, the fact that proper procedure was not followed does not in and of itself make the Adjudicator’s decision to confirm the NAP unreasonable. [ 34 ] The Applicant’s argument in this case is weaker than the arguments made in Lausen and Isley because not only did the officer read him the TAS before the Applicant requested the second ASD sample, but he was also given a copy, which he signed.

It is clear from the wording of the TAS that he was advised of his right to a second test. The Adjudicator was clear that to cancel the NAP, the Adjudicator needed to be satisfied that the Applicant was not advised in writing about his right to a roadside appeal and that the Applicant was aware of his right to a second test. The Adjudicator found that the TAS met the requirements of an NAP under s. 10 (a) (1) as it comprises the first page of an NAP document and it informs the Applicant of his right to a roadside appeal.

Further, the Applicant was aware of his right because he took a second test. [ 35 ] I note the comment made by Whitling, J. in Rose v Alberta (Director of SafeRoads) , 2022 ABQB 297 at paras 51-52 : The Applicant argues that Sheriff Davies failed to conduct the second test in accordance with the language of s. 88.11(2) underlined above since he failed to issue the NAP to the Applicant in advance of the second test.

Like his first ground of review, the Applicant argues that the applicable legislation requires the NAP to be served upon the driver immediately upon the formation of reasonable grounds for the purposes of TSA s. 88.1 . As previously stated in relation to the Applicant’s first ground of review, late service of the NAP is not a prescribed ground of review before an Adjudicator.

Hence, even assuming that the legislation requires the NAP to be served before the roadside appeal is conducted, the Adjudicator had no jurisdiction to cancel the NAP on the basis that it was served late. [ 36 ] I also conclude that the Applicant’s informed consent, as that phrase is used in the criminal context, is not necessary here (even if in fact the Applicant’s consent to provide the second breath sample was uninformed).

Again, this issue has been dealt with previously in Isley and Rose . [ 37 ] In Isley , Ross, J concluded that “informed consent” and “informed waiver” are not part of the roadside appeal procedure in Alberta and that imposing Charter values into the legislation without a constitutional challenge would be dangerous and inconsistent with the intent of the legislation. She relied on the Supreme Court’s reasoning in Wilson . In that case, the Court rejected the argument that the legislation must be interpreted in a way that is consistent with the constitutional protections enshrined in the Criminal Code .

The Court distinguished the purposes of the Criminal Code and the British Columbia Motor Vehicle Act and found that the “regulatory legislation did not share the same purpose as the criminal law, and it would be a mistake to interpret it as though it did” (para 34; cited in Isley at para 53 ). [ 38 ] In Cornforth v Alberta (Director of SafeRoads) , 2022 ABQB 341 , Woolley, J. states: I agree with the Director that the requirement of “informed consent” and “informed waiver” is in direct contradiction to s 4(e)(

v) SAR . The statute requires the Applicant to prove both lack of written notice and lack of awareness of the right of appeal. As the Director noted, a person lacking awareness would still fail to prove this ground to cancel if he or she received written notice but refused to read it. [ 39 ] The operative question is whether the Applicant understood enough to be able to take advantage of a roadside appeal if he wished to do so. In this case, he clearly did understand and did avail himself of that right.

The fact that the TAS contained different wording from the NAP and that the officer did not follow the procedure set out in the legislation does not change this conclusion. The Adjudicator’s decision on this point was reasonable and I decline to interfere. B. Charter Breaches/Right to Fairness [ 40 ] The Applicant argues that despite raising the issue regarding the breach of his Charter rights against unreasonable search and seizure before the Adjudicator, the Adjudicator failed to conduct any analysis of the operation of the Charter within the police investigation, despite “obvious systemic breaches”.

Had the Adjudicator done so, the conclusion would be that there was unfairness in how the police conducted the investigation. The Applicant argues that this comprises an error in law and unreasonable decision. [ 41 ] There has been considerable discussion in various Saferoads decisions from this Court about whether Charter values are engaged in any analysis by an Adjudicator under s. 88.1 of the TSA and the SAR .

Those decisions ( Isley , Rose and Cornforth , to list a few examples) are clear that that unless statutorily authorized, a non-discretionary decision-maker, such as the Adjudicator in this case, is not a court of competent jurisdiction to grant Charter remedies, and must limit any Charter analysis to only four areas: 1) Whether the alleged breach affects the relevance, reliability, or accuracy of, or otherwise undermines the evidence ( Baker ABQB at para 61; Thomsen at para 69);

2) Whether the alleged breach would affect the fairness of the proceedings ( Thomsen at para 69); 3) Whether the alleged breach was so egregious that relying on the evidence would be an abuse of process or a breach of natural justice ( Baker ABQB at para 62); 4) If there is ambiguity in the legislation, Charter values must be applied to resolve the ambiguity ( Bell ExpressVu at para 28; Wilson v British Columbia (Superintendent of Motor Vehicles) , 2015 SCC 47 ( Wilson ) at para 25 ; Charlebois at paras 23 – 24). [ 42 ] Here, the Adjudicator clearly recognized these limits at paragraph 4 of the decision.

Thus, the Adjudicator’s failure to specifically analyze the operation of the Charter within the context of this case, and conclude there was a breach of the Applicant’s Charter rights, cannot be an error or unreasonable. [ 43 ] Notwithstanding that lack of jurisdiction on the part of the Adjudicator, the Adjudicator must still consider the way evidence is obtained by a peace officer as a factor in determining whether the review is conducted fairly and in accordance with the principles of natural justice ( Rose at para 28 ).

The Adjudicator acknowledged this duty, stating, “I do not have authority to find Charter breaches or grant Charter remedies, but I will consider the arguments and evidence pertaining to them under my assessment of the grounds to cancel the NAP and the overarching duty of fairness” (at para 4). [ 44 ] In Rose , Whitling, J addressed the scope of this assessment at para 32: …it has been held that where the state conduct was “egregious”, an administrative tribunal may view reliance upon the resulting evidence as an abuse of its process or a breach of natural justice ( Baker v Alberta (Transportation Safety Board) , 2004 ABQB 244 at paras. 62-64 ).

The exclusion of evidence gathered in this manner does not involve a direct application of the Charter but may require the decision-maker to consider Charter values to the extent that they inform the duty of fairness ( Lausen v Alberta (Director of Saferoads) , 2021 ABQB 896 at paras. 43-49 ; Borradaile v British Columbia (Superintendent of Motor Vehicles) , 2020 BCSC 363 ). [ 45 ] In Lawrence v Alberta (Director of SafeRoads) , 2022 ABQB 343 , the Court states at paras 60-61: Police conduct may give rise to considerations other than the reliability and relevance of evidence and justify the exclusion of evidence on the basis of unfairness: Baker .

Reliance on evidence resulting from an egregious breach by the police may give rise to an abuse of its process or a breach of natural justice absence concerns regarding reliability.

An abuse of process may occur in an administrative setting, even in the absence of prejudice in an evidentiary sense, where the hearing brings the system into disrepute: Baker at paras 61-63 . [ 46 ] Thus, as part of the duty of fairness, adjudicators must consider impugned police conduct and determine if it rises to the level of egregious unfairness such that the NAP should be cancelled: Isley at para 51 . [ 47 ] This is exactly what the Adjudicator did.

The Adjudicator considered the Applicant’s arguments that the procedure followed by the officer in this case was unfair as it did not comply with the TSA requirements and engaged in an unreasonable search and seizure. The Adjudicator considered the evidence that the officer was engaged in a traffic investigation for a valid traffic safety purpose and had grounds to assess the Applicant’s impairment. Even though the wording of the TAS and the procedure followed by the officer do not exactly comply with the legislation they are not ‘egregiously deficient”.

The officer provided the Applicant with information sufficient for the Applicant to understand his right to a second test, which the Applicant availed himself of. The conduct of the officer was not so egregious, abusive or improper that it outweighed the interest in traffic and public safety. [ 48 ] The evidence supports the Adjudicator’s decision in this regard. The decision on this point was also reasonable and as such, I find no reason to interfere. VI. Conclusion [50] The application for Judicial Review is dismissed. Heard on the 22 nd day of December, 2022.

Dated at the City of Calgary, Alberta this 31 st day of January, 2023. L.K. Harris J.C.K.B.A. Appearances:

Timothy Foster Roadlawyers for the Applicant Jasmeet Sadhra Emery Jamieson LLP for the Respondent _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Justice L.K. Harris _______________________________________________________ Counsel for the Applicant and Respondent were correctly listed.