Chaffin v Alberta (Director of Saferoads), 2023 ABKB 168

Court of King’s Bench of Alberta Citation: Chaffin v Alberta (Director of Saferoads), 2023 ABKB 168 Date: 20230403 Docket: 2101 09415 Registry: Calgary Between: Ashley Ann Chaffin Applicant - and - Director of Saferoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice L.K.

Harris _______________________________________________________ [ 1 ] The Applicant, Ashley Chaffin, has filed an application for Judicial Review of an Adjudicator’s Review Decision confirming a Notice of Administrative Penalty issued pursuant to the Traffic Safety Act , SA 2000 c T-6 (“ TSA ”) and the Provincial Administrative Penalties Act SA 2020 c. P-30.8 , (“ PAPA ”).

I. Background [ 2 ] On May 25, 2021, Ms. Chaffin was operating a vehicle within the town of Langdon, Alberta. The RCMP had received complaints of a speeding vehicle driving over a traffic sign with two flat tires. Cst. Acker responded and located the subject vehicle in the parking lot of a mall. [ 3 ] Cst. Acker conducted a traffic stop. She observed Ms. Chaffin in the driver’s seat of the subject vehicle. Cst. Acker informed Ms. Chaffin of the complaint and noted that Ms. Chaffin had glossy and blood shot eyes, slurred speech, and appeared to be flustered. [ 4 ] Cst.

Acker read a mandatory alcohol screening (“MAS”) demand for a breath sample to Ms. Chaffin. A discussion followed about why the demand was made but ultimately Ms. Chaffin refused to provide a sample. Cst. Acker then arrested Ms. Chaffin for impaired operation of a motor vehicle and refusal to give a breath sample. The subject vehicle was seized and Cst. Acker issued a Notice of Administrative Penalty (“NAP”) to Ms. Chaffin under the Alberta Saferoads Regime. [ 5 ] Under PAPA , Ms. Chaffin had the right to have the NAP reviewed by an Adjudicator.

She exercised that right and submitted a request for a review on May 28, 2021. [ 6 ] In response to Ms. Chaffin’s request for review and as required by PAPA s 12, the Director provided several documents, including the relevant pages from Cst. Acker’s notebook. Those pages included Cst. Acker’s notes from the beginning of her shift which recorded the serial number of an approved roadside screening device (“ASD”).

In addition, the Director produced a photograph of a serial number of an ASD and a photograph showing the last annual maintenance and calibration of an ASD. [ 7 ] Both parties agree that the ASD serial number recorded by Cst. Acker in her notebook does not match the photographed ASD serial number provided to Ms. Chaffin by the Director. Both parties agree that because the serial numbers do not match, the Director is unable to establish the dates of the last annual maintenance and calibration of the ASD available for Cst. Acker’s use during her interaction with Ms. Chaffin. II.

Legislative Framework [ 8 ] The background to and legal framework of the Alberta SafeRoads regime has been set out in several preceding decisions of this Court: 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 legislative background or framework here.

Suffice it to say that the Saferoads Alberta regime is intended to provide a simplified, consistent, proportionate, and expedient mechanism to evaluate the validity of an NAP: PAPA s 2, as confirmed in Kelleher v Alberta (Director of SafeRoads) , 2021 ABQB 517 at para 1 . [ 9 ] In this case, Ms. Chaffin was issued an NAP for contravening TSA s 88.1(1)(e) (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) . [ 10 ] Once a request for a review of an NAP is filed, s 12 of PAPA compels the Director to provide certain records to the recipient of the NAP: Duty to provide records to recipient 12

(1) The Director shall, after receiving a request for review and the prescribed fee, provide to the recipient, in accordance with the regulations, relevant records as prescribed in the regulations or the regulations under a prescribed enactment.

(2) Unless required by the regulations or the regulations under a prescribed enactment, the Director is not required to provide a recipient with any records, representations or arguments in respect of an alleged contravention beyond the records referred to in subsection (1). [ 11 ]

Section 2 of the SafeRoads Alberta Regulation , Alta Reg 224/2020 (“ SAR ”) sets out the records that are to be provided to the recipient by the Director in these cases. The relevant portion is as follows: Records to be provided to recipient for review 2 The Director shall provide the following to a recipient on receipt of an application for review: (

a) a copy of the notice of administrative penalty; (

b) the report of the officer who issued the notice of administrative penalty; (

c) if an approved screening device was used as the basis for issuing the notice of administrative penalty, (

i) the expiry date of the last annual maintenance performed on the device, and (ii) the date of the last calibration of the device and the expiry date of that calibration for the device; (emphasis added) [ 12 ] SAR s 4 sets out the grounds for an Adjudicator to cancel a NAP following its review. The burden of establishing the grounds to cancel an NAP is on the recipient. 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 … (

i) issued for a contravention of

section 88.1(1)(

e) of the Act are … (ii) that the Director did not provide complete records to the recipient as required by

section 12 of the Provincial AdministrativePenalties Act III. Issue [13] When an NAP is issued based upon a failure to provide a breath sample, is an ASD “used as the basis” for issuing the NAP,thus compelling the Director to produce the maintenance and calibration records in compliance with SAR s 2(c)? IV. Standard Of Review [14] There is no controversy between the parties regarding my standard of review as a Justice reviewing the Adjudicator’sdecision. The appropriate standard of review is reasonableness.

If the Adjudicator’s decision displays intelligibility, transparency, andjustification for its decision then I must not interfere. It is not open to me to conduct my own independent analysis of the issues presentedby the Applicant. [15] Both parties rely upon the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) vVavilov, 2019 SCC 65. [16] My role in this Judicial Review is to review the Adjudicator’s decision to determine whether it was reasonable.

This wasmade 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 issuethemselves.

Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that ofthe administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decisionmaker, conduct a de novo analysis or seek to determine the “correct” solution to the problem... [T]he reviewing court must consider onlywhether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome towhich it led — was unreasonable. [17] I will apply the standard of review of reasonableness to the Adjudicator’s decision in this case.

V. The Adjudicator’s Decision [18] The Adjudicator’s decision of June 24, 2021 considered PAPA s 12 and SAR s 2. The Adjudicator found that the basis forissuing the NAP to Ms. Chaffin was “Refusal”, and not the results of an ASD test. The case differed from one in which a recipientattempted to provide a breath sample into the ASD. Because an ASD test did not form the basis for issuing the NAP in question, theDirector was not compelled to produce the records required by SAR s 2(c). [19] As Ms. Chaffin did not establish grounds to cancel the NAP under SAR s 4 the Adjudicator confirmed the NAP. [20] Ms.

Chaffin had also advanced an argument before the Adjudicator that she had a right to fairness which was breached due topolice error or misconduct. She confirmed before this Court that she was abandoning this argument on judicial review. VI. Analysis [21] Ms. Chaffin argues that her arrest by Cst. Acker was rife with errors. Although she has abandoned her argument that her rightto fairness had been breached, what she argues were errors made by Cst. Acker are the background against which the reasonableness ofthe Adjudicator’s decision ought to be assessed.

Even if a procedural fairness issue isn’t raised, those values still need to be consideredby the Adjudicator. [22] Ms. Chaffin acknowledges that this Court appears to have already considered the issue of what records need be producedunder SAR s 2(c): Singh v Alberta, 2022 ABKB 746 , 2022 ABQB 746, a decision of Nixon, J. In Singh, police read themandatory alcohol screening demand to the recipient. The ASD battery was dead and so a new ASD was brought to the scene.

Theofficer instructed the recipient on how to provide a breath sample but noted the recipient’s attempts to ‘fake’ providing a breath sample.The recipient was issued an NAP for refusing to provide a breath sample. The ASD maintenance and calibration records were notamongst the records provided to the recipient upon filing his request for review. [23] On judicial review, the recipient in Singh argued that the Administrator’s decision to confirm the NAP was unreasonablebecause, “while the ASD records are irrelevant and would not be required in an outright refusal to blow case, they are required where

there was an attempt to blow...” [24] Nixon J considered Re Thind, 2021 ABSRA 174 in which the adjudicator cancelled a NAP issued on the basis of a failure orrefusal to provide a breath sample because the Director did not disclose the ASD records. The adjudicator concluded that the ASDrecords were relevant and necessary to assess the functionality of the ASD because the NAP was issued after the recipient attempted toprovide a breath sample into an ASD.

The recipient in Thind provided an affidavit in which he deposed that he had never provided abreath sample before and that, despite his honest and diligent attempts, he was unable to do so. Therefore, the recipient questionedwhether the ASDs were working properly. [25] Nixon J distinguished Thind at para 25 of Singh: The Director submits that Thind is distinguishable from the present case because the uncontested evidence of the officer, based on hisobservations of the Applicant’s behaviour, is that the Applicant did not provide a breath sample. The functionality of the ASD, therefore,is irrelevant. I agree.

Where a driver’s observed behaviour establishes an intentional failure to comply with a breath demand, as in thiscase, the ASD is not the basis for issuance of the NAP. The Adjudicator’s conclusion that the ASD records were not required accordingto the legislation was reasonable in this instance. [26] Ms.

Chaffin argues that I should not follow Singh because Nixon J did not have the benefit of reading the decision of R vBreault, 2021 QCCA 505, in which the Quebec Court comes to a conclusion opposite to that in Singh. [27] The Director argues that Breault is entirely distinguishable from Alberta Saferoads cases and is not binding on me.

TheDirector argues that the issue before me has already been decided in Singh and I should follow Singh as a matter of judicial comity. [28] Breault arises as a result of an arrest that occurred in 2017 and considers the authority of police to demand a breath sampleunder s 254(2) of the Criminal Code of Canada, as that

section existed at the time. In Breault, police responded to a complaint of anindividual driving an ATV while drunk. At the scene, they questioned the suspect who smelled of alcohol. The suspect stated he hadconsumed one beer. Police did not have an ASD with them and so requested that one be delivered. Before the ASD was delivered, theofficer made the demand for a breath sample. The suspect refused and was then arrested for refusing to provide a breath sample.

Theofficers canceled the request for the ASD. [29] The accused argued that a demand by a peace officer to provide a breath sample forthwith does not comply with the law whenthe officer is not in possession of an ASD at the time the demand is made. The Court agreed, stating that for the demand to be valid, theofficer must be in a position to provide immediate access to an ASD once a demand is issued.

If that is not possible, the demand is notcompliant and therefore the accused is not required to comply. [30] The Court in Breault considers several earlier decisions on the issue of delay when making a demand under s 254 of theCriminal Code, including R v Woods, 2005 SCC 42 and R v Anderson, 2014 SKCA 32. [31] I note that the Supreme Court has granted leave to appeal in Breault: R v Breault, (SCC), with judgmentreserved in September 2022.

As well, I note that the issue of whether Breault is binding, or even persuasive, in the context of SaferoadsAlberta decisions has been unsuccessfully raised in other cases: see Ziro (Re), 2022 ABSRA 2022, Renton (Re), 2022 ABSRA 1588. [32] Regardless of whether Breault was correctly decided, it is not binding on me in this case. [33] Breault considers whether police must have an ASD device in their possession to make a valid demand pursuant to s 254 ofthe Criminal Code. Inherent in that question is the

interpretation of the word “forthwith” as it appears in that

section and the interactionof the requirement to provide a sample forthwith with s 10(

b) of the Charter. The

section being considered by Breault is no longer inforce, having been repealed in 2018 and replaced within a series of provisions under

Part VIII.1 of the Criminal Code, including s 320.27which provides police with authority to demand a breath sample with an ASD without having a reasonable suspicion of the presence ofalcohol. [34] For a more current review of the issue considered in Breault see R v Ball, 2023 ABKB 76. [35] Further, the issue before me is utterly different: it involves the question of whether an ASR is “used as the basis” for issuingan NAP when there is a failure to provide a sample, giving rise to the question of what records the Director is obligated to disclose unders 12 PAPA and s 2(

c) SAR. It goes without saying that PAPA and SAR are administrative in nature, not criminal, and are to be interpretedagainst the background of a defined overall purpose to the SafeRoads Regime. As noted in Islay v Alberta (Director of SafeRoads),2022 ABQB 249 at para 2: This type of legislation is a non-criminal regime that deals with people who operate motor vehicles under the influence of alcohol ordrugs. The aim of the regime is to remove from the road those who are operating a motor vehicle while their ability to drive is impairedby alcohol or drugs without engaging the Criminal Code.

When a person operating a motor vehicle fails a roadside screening test, theregime allows for an administrative suspension of the person’s operator’s license rather than a criminal prosecution. [36] Essentially, jurisdictions have enacted this legislation with a view to getting drivers impaired by alcohol or drugs off the roadswithout engaging the Criminal Code and the full panoply of Charter rights involved in Code prosecutions. [37] It is for these reasons that Breault is not binding on me, or even particularly persuasive in this case. [38] I would also note that the role of the Adjudicator is not to determine whether to exclude evidence based upon a breach ofCharter rights.

Evidence that might be inadmissible in a criminal case may be considered by an administrative body. Instead, as anadministrative tribunal, the Adjudicator may consider the way evidence was obtained as a factor when the Board exercises its duty offairness: Borradaile v British Columbia (Superintendent of Motor Vehicles), 2020 BCSC 363 and Thomson v Alberta (TransportationSafety Board), 2003 ABCA 256. In Thomson, Paperny J states:

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. [ 39 ] Given the difference between the overall goals and purpose of the underlying legislation here as compared to s 254 of the Code (as considered in Breault ) and now s 320.27, I conclude that Breault is not helpful in deciding the issue before me.

I agree with Nixon J’s decision in Singh and I am satisfied that Breault would not have changed that decision had it been argued before her. [ 40 ] PAPA s 12 is clear that the Director is obliged to provide relevant records as prescribed in the underlying Regulation. PAPA does not define “relevant” for the purposes of SAR , and so we must look to SAR s 2 to learn what is relevant to a Saferoads investigation. SAR s 2 determines that what is relevant in cases where an ASR is used as the basis for an NAP includes the ASR maintenance and calibration records.

When the operation of the ASR is in issue, those records are relevant in the sense that they assist in determining an issue in question, which is whether the ASR properly delivered a report on the breath sample taken. [ 41 ] Where, however, an NAP was issued based on an outright refusal to provide a sample it cannot be said that the ASR was used as the basis for the NAP. It was the refusal to comply with the demand that formed the basis for the NAP. The operation of the ASR, in the context of such circumstances, is irrelevant as it does not relate to the refusal to comply. [ 42 ] This

interpretation supports the overall purpose of the SafeRoads Alberta regime and the role of the Adjudicator, which is to provide a simplified, consistent, proportionate, and expedient mechanism to evaluate the validity of an NAP. Ms. Chaffin’s argument that the obligations as interpreted in Breault ought to be imported into Alberta’s Saferoads Regime is not consistent with this approach. [ 43 ] I conclude that the Adjudicator’s decision in this case was reasonable and supported by the wording of SAR s 2 and PAPA s 12. I therefore dismiss Ms. Chaffin’s application. VII.

Conclusions [ 44 ] The Application for Judicial Review is dismissed. In accordance with the request of the Director, no costs are awarded to either party. Heard on the 16 th day of March, 2023. Dated at the City of Calgary, Alberta this 3 rd day of April, 2023. L.K. Harris J.C.K.B.A. Appearances: Mark Savage for the Applicant Kirsty Vogelesang for the Respondent