Demars v Alberta (Director of SafeRoads), 2022 ABKB 620

Court of King’s Bench of Alberta Citation: Demars v Alberta (Director of SafeRoads), 2022 ABKB 620 Date: 20220920 Docket: 2101 10139 Registry: Calgary Between: Jeramy Richard Demars Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice J.C. Kubik _______________________________________________________ Introduction [ 1 ] After a traffic stop on June 12, 2021, Jeramy Richard Demars (“Demars”) was issued a Notice of Administrative Penalty (“NAP”) pursuant to

section 88.1(1)(

a) of the Traffic Safety Ac t, RSA 2000, c H-8 . He sought cancellation of the NAP on three grounds: 1. That the Director had not provided complete records, as required by

section 2 (

h) of the SafeRoads Alberta Regulation, Alta Reg 224/2020 [ SAR ] and

section 12 of the Provincial Administrative Penalties Regulation , Alta Reg 217/2020 [ PAPR ];

2. That his ability to operate a motor vehicle was not impaired to any degree by alcohol or a drug or any combination of the two; and 3. That the failure of the officer to give implementational effect to his

section 10(

b) Charter right rendered the roadside appeal testand its results invalid. [2] The adjudicator dismissed the application on July 12, 2021. Demars seeks judicial review arguing that the adjudicator’sdecision was unreasonable for two reasons: 1. That their

interpretation of sections 17 of PAPR was not in accordance with principles of statutory

interpretation; and 2. That they did not undertake an assessment of Charter values in determining the validity of the roadside appeal test. Standard of Review [3] The parties have agreed that the standard of review of the adjudicator’s decision is reasonableness. This is consistent withsection 24(3) of the Provincial Administrative Penalties Act, SA 2020, c P-30.8 [PAPA], and the direction provided by the SupremeCourt of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. [4] The reasonableness standard also applies to statutory

interpretation undertaken by an adjudicator. Where the matter forjudicial review involves statutory

interpretation, the reviewing court must analyze the decision, as a whole, to determine whether thestatute was interpreted in a manner consistent with modern principles of statutory

interpretation, having regard to the text, context andpurpose of the legislation: Vavilov, paragraphs 115 and 116. While adjudicators are not required to “engage in formalistic statutoryinterpretation in every case”, it is expected that they will interpret the law in a manner consistent with modern principles of statutoryinterpretation: Vavilov, paragraphs 119-121. [5] The modern rule of statutory

interpretation therefore requires courts and adjudicators “to take a unified, textual, contextual,and purposive approach to this task... a Court must consider not only the textual wording of the statutory provision in dispute, but also thepurpose of that provision and all relevant context. That includes the legislative scheme of which the provision forms a part.” (Ruth Sullivan, 6th Edition (Markham: LexusNexis Canada, 2014) [Sullivan] at 7-8; Alberta v ENMAX Energy Corporation, 2018 ABCA147). [6] The Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd (Re), (SCC), [1998] 1 SCR 27, stated: ...statutory

interpretation cannot be founded on the wording of the legislation alone. The words of

an Act are to be read in their entirecontext and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention ofParliament. [7] The

Interpretation Act, RSA 2000, c I-8 [Interpretation Act], provides at

section 9: An enactment shall be construed as always speaking and shall be applied to circumstances as they arise.

Section 10 further provides: An enactment shall be construed as being remedial, and shall be given the fair, large and liberal construction and

interpretation that bestensures the attainment of its objects. [8] A court in reviewing the adjudicator’s statutory

interpretation is not to approach the task on a de novo basis. That said, theadjudicator’s

interpretation must be consistent with the text, context and purpose of the provision in question: Vavilov, paragraph 120. Insome circumstances, while rare, there may be only one

interpretation the statutory provision can bear: Vavilov, paragraph 124 citingNova Tube Inc/Nova Steel Inc v Conares Metal Supply Ltd, 2019 FCA 52.

Reasons for Decision Issue One [9] At issue in the present case are the technical requirements surrounding provision of evidence to support the NAP as set out inSection 17(2) of PAPR. [10] The evidence uploaded by the investigating officer and provided by the Director to Demars for the purposes of the reviewwere: • APIS Submission Export, containing driver information contravention details and vehicle seizure details; • NAP #A151022750; • General Report of Issuing Officer, Cst. Lewald; • Handwritten Notes of Issuing Officer, Cst. Lewald; • Records pertaining to ASD #073123 (photo of ASD tag);

• Records pertaining to ASD #073369 (photo of ASD tag); and • Seizure Notice. [ 11 ] The two photographs of the ASD tags were required documents, as noted on the submitted records. [ 12 ] Cst. Lewald electronically signed the APIS Submission Export by stating: “I solemnly declare the information that I have authored in this my contravention submission, and I make this solemn declaration conscientiously believing it to be true and knowing that it is of the same force and effect as if made under oath.” Cst.

Lewald did not, however, state that the photographs had not been altered in any material way. [ 13 ] The adjudicator rejected Demars argument that he had not been provided complete records because Cst. Lewald had failed to confirm that the photographs had not been altered in any material way. The adjudicator held that the Cst. Lewald’s confirmation, by way of solemn declaration, that the contents of her report were true and of the same force and effect as if made under oath, was sufficient to meet the requirements of the statute.

In coming to this conclusion, the adjudicator interpreted the phrase “an officer may [emphasis added] confirm the report” in section 17(2) of PAPR to mean that the manner of confirmation of the reports and photographs was permissive, and not a mandatory requirement of PAPR . [ 14 ] The adjudicator’s decision in this regard was unreasonable in that they failed to analyze

section 17 of PAPR in the context of the purpose of the broader legislation, including the requirements of

section 2 of SAR , sections 12 through 18 PAPA , and sections 12 through 17 of PAPR , having regard to the plain language of the regulations and in keeping with the formal requirements of the Submission Export Form, which mandated provision of the photographs. [ 15 ] The purpose of the legislation as a whole is to provide a simplified, regulatory regime for the enforcement of impaired driving offences. While administrative, this regime is quasi-criminal in nature. It imposes penalties at the moment the NAP is issued including an immediate 90-day license suspension, seizure of the vehicle, and a fine.

It limits the grounds on which a NAP may be cancelled and places the onus on the recipient of a NAP to prove the grounds for cancellation of the NAP on a balance of probabilities. [ 16 ] The provision of complete records for the adjudicative review – an evidentiary burden borne by the Director – is statutorily mandated by

section 2 of SAR and

section 12 of PAPR .

Section 13 of PAPR attaches certain evidentiary presumptions to signed records. Sections 14 through 17 provide guarantees of authenticity and reliability with respect to these records. Taken together, the relevant provisions of PAPA , SAR , and PAPR provide procedural fairness by ensuring that the recipient of a NAP has full disclosure of the evidentiary basis for the NAP and that the documents relied upon meet basic standards of authentication, allowing expeditious hearings which proceed on a paper record and without oral testimony and cross-examination. [ 17 ]

Section 17 of PAPR provides as follows: Confirmations 17(1) For the purposes of

section 14 of the Act and section 3(1)(d)(iv), an officer who issues a notice of administrative penalty may confirm the notice by signing a statement that the officer has reasonable grounds to believe that the contravention occurred.

(2) For the purposes of

section 14 of the Act, where any report, notes or other document, other than a notice of administrative penalty, is created, registered, issued, stored, recorded or transmitted by electronic means for any purpose under the Act or this Regulation, an officer may confirm the report, notes or other document by signing a statement that the content of the report, notes or other document is true, or in the case of a photograph that the photograph has not been altered in any material way, based on

a) the officer’s personal knowledge, or

b) the officer’s information and belief, if the basis of the information and belief is reasonably clear from the document, is set out in the statement or is otherwise disclosed by the officer. [emphasis added] [ 18 ] To meet the modern principles of statutory

interpretation, section 17(2) must be read in its entirety and together with sections 12 through 14 of PAPR . The records submitted by the officer are prescribed evidence pursuant to

section 12. They must be signed to meet the evidentiary presumption in

section 13 and the requirements of

section 17 . Section 17(2) provides for the confirmation, by an officer, of the truth of the contents of any submitted documents. In addition, it sets out specific requirements with respect to photographs: that there be a specific statement that they have not been altered in any material way. [ 19 ] The use of the permissive “may” in section 17(2), when read in its entirety and in context, relates to the two bases on which an officer may confirm the report, note, other document or photograph – on personal knowledge, or information and belief. To read the

section in the manner the adjudicator did, rendered unnecessary the specific evidentiary requirement to authenticate the photographs, leaving open the possibility of hearings being conducted on a variable record, utilizing evidence that does not meet minimum standards for reliability or trustworthiness. [ 20 ] In this case, the regulatory provisions in question underpin the evidentiary burden of the Director.

Basic requirements of procedural fairness in the adjudicative process require that each NAP recipient be entitled to an evidentiary record which is confirmed in a consistent manner in accordance with the statute, particularly in circumstances where the truthfulness and authenticity of the records cannot be tested through cross-examination. As a result, the requirement for both a statutory declaration as to the truth of the contents of the records and the authentication of the photographs must be read as mandatory, separate obligations. This is the only reasonable

interpretation of the

section when considered in context. [ 21 ] Accordingly, the decision of the adjudicator is quashed.

Court’s Discretion Not to Remit Matter Back to The Adjudicator [ 22 ] PAPA is silent as to whether a Court, upon quashing an unreasonable decision, must remit the matter back to the original decision-making body. The typical practice of doing so was re-affirmed in Vavilov . In that case, the Supreme Court of Canada noted that where the standard of review is one of reasonableness, the appropriate remedy on error in most cases, will be to remit the matter back to the adjudicator for reconsideration.

The Court also enumerated a confined set of circumstances in which the court might exercise its discretion and refuse to remit the matter back to the original decision maker.

Those circumstances include: • Where remitting the matter would stymie the timely and effective resolution of the matter in a way that could not have been intended by the legislature; • Where remitting the matter would result in an endless merry-go-round of judicial review and reconsideration; • Where the outcome on re-adjudication is inevitable; • Where considerations as to delay, fairness to the parties or urgency militate against re-hearing; • Whether the administrative decision-maker had a genuine opportunity to weigh in on the issue in question; and • The cost to the parties and the efficient use of public resources. [ 23 ] In this case, I am satisfied that the outcome on re-adjudication is inevitable.

The photographs require specific confirmation that they have been unaltered. The state of the record provided pursuant to

section 12 of PAPR is such that this confirmation has not been provided. In the absence of this evidence the evidentiary record is incomplete, and the inevitable outcome is cancellation of the NAP pursuant to

section 4(e)(iii) of the SafeRoads Alberta Regulation , Alta Reg 224/2020 . [ 24 ] As a result, the matter is not remitted to the adjudicator and the NAP is cancelled. Issue Two [ 25 ] Given that my decision with respect to Issue One is dispositive of the application, I have not gone on to consider Issue Two. Conclusion [ 26 ] In conclusion, the decision of the adjudicator is quashed and the Notice of Administrative Penalty Contravention # A15102275O is canceled. Heard on the 28 th day of April, 2022. Dated at the City of Lethbridge, Alberta this 20 th day of September, 2022. J.C. Kubik J.C.K.B.A.

Appearances: Michael Oykhman – Savage Oykhman Law for the Applicant Michael Power – Alberta Justice & Solicitor General, JTI Initiative for the Respondent