Banerjee v Alberta (Director of SafeRoads), 2023 ABKB 380

Court of King’s Bench of Alberta Citation: Banerjee v Alberta (Director of SafeRoads), 2023 ABKB 380 Date: 20230626 Docket: 2101 10282 Registry: Calgary Between: Abheek Banerjee Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice S.M. Bensler _______________________________________________________ Introduction [ 1 ] This is an application by the Applicant, Abheek Banerjee, for an Order in the nature of certiorari quashing a July 21, 2021, decision of an Adjudicator rendered pursuant to s 21(1)(

a) of the Provincial Administrative Penalties Act , RSA P-30.8 (“ PAPA ”) confirming a Notice of Administrative Penalty (“NAP”) issued against the Applicant on June 27, 2021, under s 88.1(1) of the Traffic Safety Act , RSA 2000 c T-6 (“ TSA ”).

[ 2 ] The NAP was issued to the Applicant by a peace officer as a result of the Applicant blowing two “FAIL” results on two Approved Screening Devices (“ASDs”). The Applicant sought a review of the NAP by an Adjudicator who dismissed the Applicant’s arguments and confirmed the NAP. Background

Summary of the Facts [ 3 ] At 4:10 a.m. on June 27, 2021, police responded to a report of a hit and run in southwest Calgary. The driver left the scene on foot. After finding the wallet of the Applicant in the vehicle alongside an “empty container”, Cst. Desjardins attended at the Applicant’s registered address and observed him walking toward his residence. He was intercepted and police observed him to have a bloody nose. The Applicant identified himself as the registered owner of the vehicle and was arrested for leaving the scene of an accident.

In the search of the Applicant, they found the keys to the vehicle involved in the collision. [ 4 ] At 4:44 a.m. Cst. Desjardins suspected that the Applicant had operated his vehicle while impaired based on a witness’s statement at the scene as well as an open container in the vehicle. Cst. Desjardins read an ASD demand to the Applicant who admitted to drinking two beers four hours prior. The Applicant successfully provided a breath sample at 4:50 a.m. which returned a reading of “FAIL”. The Applicant provided a second successful ASD sample on a different device at 5 a.m. which also returned a reading of “FAIL”.

Following this Cst. Desjardins then read the Applicant his Charter rights and cautioned him. [ 5 ] The Applicant was released with a NAP, seizure notice, and a summons for leaving the scene of a collision. The Adjudicator’s Decision [ 6 ] On June 29, 2021, the Applicant brought an application for a review of the NAP pursuant to s 7 of PAPA . The Adjudicator released a written decision on July 21, 2021. The crux of what the Adjudicator considered was whether s 4(f)(viii) of the SafeRoads Alberta Regulation , Alta Reg 224/2020 (“ SAR ”) had been violated.

The Applicant also raised allegations of Charter breaches, but the Adjudicator noted that there is no authority to determine Charter issues or grant Charter remedies.

However, Charter protected interests may be considered under a review of the Applicant’s right to fairness. [ 7 ] In the written reasons, the Adjudicator dismissed the Applicant’s arguments finding that it was not established on a balance of probabilities that the officer did not advise the Recipient in writing of the right to a roadside appeal under s 88.11 of the TSA and that the Recipient was unaware of that right. [ 8 ] The Adjudicator then considered whether the Applicant’s right to fairness had been breached because police error or misconduct resulted in egregious unfairness.

Particularly, the Applicant argued that Cst. Desjardins had failed to ensure informed consent while the Applicant’s right to counsel was suspended and this caused egregious unfairness. It was also argued by the Applicant that the breath demand was not valid leading to a s 8 Charter breach and that the Applicant’s s 10(

b) Charter rights had also been breached as he did not have the right to counsel. Issues [ 9 ] There are three issues raised within this judicial review. The first is a preliminary one regarding jurisdiction and the ability of this Court to engage with the Charter arguments of the Applicant. The other two relate to the reasonableness of the Adjudicator’s decision: - Can this Court engage with the Charter arguments of the Applicant? - Was the finding of the Adjudicator on s 4(f)(viii) reasonable? - Was the finding of the Adjudicator on fairness reasonable?

Analysis Preliminary Charter Considerations [ 10 ] Much of the focus in the written materials and the oral argument of the Applicant was on arguing that the Applicant’s rights under the Charter had been breached and that these breaches should be considered and addressed outside of the judicial review. [ 11 ] The Applicant argues that this is a Court of competent jurisdiction and even if the Adjudicator could not engage with these questions, there is only one Charter and regardless of scheme it should be considered in this case. [ 12 ] The Respondent argues that this would be an unjustified constitutional attack on the SafeRoads scheme and that this would be inappropriate as no constitutional notice had been given in the present case.

Further, the Respondent argues that no specific application for a Charter remedy under s 24(1) had been pleaded, which had been admitted by the Applicant in oral argument, and that the Applicant is also trying to raise Charter arguments beyond what had been argued before the Adjudicator.

[ 13 ] I agree with the Respondent that this is not an appropriate case to perform a standalone Charter analysis.

This issue has been brought up several times before our Court during these judicial reviews and consistently our Court has determined that this is not the appropriate forum to raise alleged Charter breaches: See Isley v Alberta (Director of SafeRoads) , 2022 ABQB 249 and Rose v Alberta (Director of SafeRoads) , 2022 ABQB 297 . [ 14 ] As will be discussed below, the Adjudicator appropriately considered the alleged Charter breaches in determining whether the duty of fairness toward the Applicant had been met, in the same form as in other SafeRoads decisions and in the framework established by Doré v Barreau du Québec , 2012 SCC 12 , and Loyola High School v Québec (Attorney General) , 2015 SCC 12 . [ 15 ] It would not be appropriate at this stage in judicial review to engage with the Charter arguments raised by the Applicant as no notice had been given and this is not the appropriate forum to engage with these arguments during a judicial review based on the other jurisprudence of our Court.

It is also worth highlighting the comments of my colleague Justice Bokenfohr at paras 33-44 in Sundar v Alberta (Director of SafeRoads) , 2023 ABKB 337 . Standard of Review [ 16 ] It is well accepted that the standard of review for a judicial review of the Adjudicator’s decision is that of reasonableness. This aligns with the Supreme Court of Canada’s direction in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , as well as subsequent jurisprudence by this Court on judicial reviews of the SafeRoads scheme: see Isley at paras 21-26 and Rose at para 35 .

This is further strengthened by s 24(3) of PAPA . Review of Adjudicator’s Decision Was the finding of the Adjudicator surrounding s 4(f)(viii) reasonable? [ 17 ] In her decision, the Adjudicator considered whether the officer did not advise the Applicant in writing of the right to a roadside appeal under s 88.11 of the TSA and whether the Applicant was unaware of that right.

As noted in her decision at paragraph 6, it was on the Applicant to demonstrate that this was not well met. [ 18 ] Following the recently released judgment of the Alberta Court of Appeal in Lausen v Alberta (Director of SafeRoads) , 2023 ABCA 176 , [“ Lausen ”] it is important to determine whether the Adjudicator reasonably considered the legislative wording and context of the scheme in her decision. Of course, it is important to highlight that the decision of the Court of Appeal had not yet been released when the Adjudicator issued her decision. [ 19 ] In Lausen , the Court of Appeal considered a different

section of the SAR then the one at issue here, namely s 4(e)(v). However, the wording of that

section is identical to s 4(f)(viii), the difference being whether the contravention at issue was based on s 88.1(1)(

a) or s 88.1(1)(b). As such, the analysis of the Court of Appeal applies as well to this section. [ 20 ] In Lausen , the Court of Appeal had to determine whether it was reasonable to conclude that s 4(e)(

v) was not breached when the appellant was only given the NAP and tear-away sheet [TAS] after the second test. The Court of Appeal determined that it was not reasonable for the adjudicator to find that timing was not important and that all that matters is that the notice in writing was at some point given to the appellant: at para 44. [ 21 ] The Court of Appeal determined that such an

interpretation could not be reasonable. It is worth repeating parts of their analysis on this issue. As it found: [46] We are doubtful this would be a reasonable

interpretation even if it were appropriate to consider the text of s 4(e)(

v) in isolation. There is no utility in advising a driver “in writing of the right to a roadside appeal”, or in requiring awareness of that right, only after the appeal has been administered. On a plain reading of s 4(e)(v), the apparent purpose of requiring at least written notice or awareness must be so that the driver has the information necessary to decide whether to request a roadside appeal. Such notice or awareness must necessarily come before the driver declines or agrees to the second test or further assessment.

This understanding is consistent with the word “right” which connotes an entitlement that one may choose to exercise. . . . [49] The statutory context here is critical, because the subject ground for cancellation is part of a statutory scheme that:

a) requires drivers be advised of their right to a roadside appeal before the appeal; and

b) specifies the right is to voluntarily undergo a roadside appeal on request. [50] It is apparent from a number of provisions that the statutory scheme requires written notice before the roadside appeal.

Section 88.11(2) of the TSA provides that a roadside appeal is to be conducted “[n]otwithstanding that a notice of administrative penalty has been issued… where a driver requests an appeal of that notice of administrative penalty”. It explains that the applicable roadside appeal test or assessment depends on what “the basis for issuing the notice of administrative penalty was”. It is significant that the NAP is referenced using the past tense.

Section 10(a)(

i) of the SafeRoads Regulation requires that NAPs include “a statement of the right of the recipient to a roadside appeal”. Therefore, the statutory scheme requires that a NAP containing written notice of the right to a roadside appeal “was” and “has been” issued before the roadside appeal is conducted.

The adjudicator did not explain why the subject ground for cancellation should be interpreted as allowing a driver to be advised or aware of their right to a roadside appeal only after an appeal where the operative provisions of the statutory scheme require notice in writing before the appeal. [51] The statutory scheme also specifies that the right at issue is the right to voluntarily undergo a roadside appeal on request.

Section 88.1(5) of the TSA states that the driver has a “right to voluntarily undergo” a roadside appeal.

Section 88.11(2) provides that a roadside appeal test will be administered where the driver “requests an appeal” and “voluntarily attends immediately at a place designated by the

peace officer” for the appeal test or assessment. The clear legislative intent is that the roadside appeal be voluntary and performed at the driver’s request. [52 ] For the roadside appeal to be voluntary, and for the driver to know to request one, the driver must either be advised of the right to a roadside appeal or otherwise be aware of that right before the appeal. Where notice of the right to a roadside appeal is provided and awareness is achieved only after the appeal, real issues arise (as they do in this case) as to whether the appeal was voluntary or requested.

Again, the adjudicator did not explain why the subject ground for cancellation should be interpreted as allowing drivers to be advised and aware of their right to a roadside appeal only after the appeal where the operative provisions of the statutory scheme require that advice and awareness before the appeal. . . . [55] As noted by the chambers judge with reference to Sivia v British Columbia (Superintendent of Motor Vehicles) , 2011 BCSC 1639 [ Sivia ] and Goodwin v British Columbia (Superintendent of Motor Vehicles) , 2015 SCC 46 [ Goodwin ], false positives can occur when breath tests are administered using screening devices at the roadside: Chambers Decision at paras 5 to 8.

The right to a second test on a different device helps address these reliability concerns: Goodwin at para 68 . However, where a driver is not properly advised of their right to a second test, that safeguard is illusory: Goodwin at para 68 . In such a case, a breath demand may constitute an unreasonable seizure contrary to

section 8 of the Charter: Goodwin at paras 50 to 68, 76, 77, 85 . It is apparent that the provisions of the TSA and SafeRoads Regulation that require drivers be advised of their right to a roadside appeal, and the associated s 4(e)(

v) ground for cancellation, are intended to address the concerns discussed in Sivia and Goodwin by affording drivers voluntary access to safeguards for ensuring reliability. [56] An

interpretation of s 4(e)(

v) that allows a driver to be advised and aware of their right to a roadside appeal only after the driver has provided or declined to provide a second sample reduces access to the intended safeguards. As the appellant points out, if a driver is asked to undergo a second test without first understanding what is being offered, he may decline it where he otherwise would not.

And if the driver chooses to participate in a second test without understanding his right to a roadside appeal, the legislative intent that the appeal be voluntary may be defeated. [ Emphasis added ] [ 22 ] This analysis by the Court of Appeal applies to the very similar facts of the case at hand. In the reasons of the Adjudicator, it is not entirely clear on the timing when the Applicant received the TAS and NAP. He claims that he was not provided the TAS or NAP until after he completed the second test.

The Adjudicator found that “the officers advised the Recipient of his right to a roadside appeal as the Recipient elected to have a second test.” (para 10) This has the same issues as highlighted by the Court of Appeal in Lausen . [ 23 ] Further, a fixture of the Respondent’s arguments for supporting the Adjudicator’s decision as reasonable was the jurisprudence in the trial decision of Lausen , as well as Isley and Rose to find that “the Applicant’s written notice and knowledge of the right to a second test is not undermined by the fact that the NAP was not served until after the second test was performed”: Respondent’s brief at para 52. [ 24 ] Such a statement can no longer be considered good law following the Court of Appeal’s decision.

As such, I conclude that the Adjudicator’s decision was not reasonable as her

interpretation of s 4(f)(viii) does not engage with the statutory context or purpose of the provision. [ 25 ] This conclusion aligns with Lausen as well as the recent decision of Packham v Alberta (Director of SafeRoads) , 2023 ABKB 361 .

Was the finding of the Adjudicator on fairness reasonable? [ 26 ] After finding that there was no issue with s 4(f)(viii) the Adjudicator then considered the Charter breaches raised by the Applicant to determine whether the duty of fairness had been met. [ 27 ] The Adjudicator was of the view that to determine whether the right to fairness had been breached is if police error or misconduct resulted in egregious unfairness.

Some of these arguments relate to the Applicant’s confusion about whether this was a second test or a roadside appeal. [ 28 ] An approach based on lack of “informed consent” would not be the appropriate route in this case, as it was an unreasonable

interpretation of s 4(f)(viii). As discussed above, the Adjudicator notes that the right to request a second test is clearly outlined in the NAP which is of little assistance if the NAP is given after the test had been taken. [ 29 ] As for the arguments regarding s 10(

b) and s 8 of the Charter , I agree with my colleagues in Rose and Isley for their findings that there was no egregious unfairness in this sense. This argument was also rejected by the Court of Appeal in Lausen at para 58 . [ 30 ] In sum, the finding of the Adjudicator on the Applicant’s right to fairness was reasonable. Conclusion [ 31 ] Based on the above, and similarly to Lausen at paras 60-64 , when, as described in Vavilov , a particular outcome is inevitable it will be appropriate for a court on judicial review to decline remitting a matter.

This is the appropriate result in the present case. [ 32 ] The officer did not advise the Applicant in writing of the right to a roadside appeal as he did not receive anything in writing until after the second test. Further, as the Applicant only received the NAS after the second test, for reasoning outlined by the Court of Appeal in Lausen at para 63 :

... the question is not just whether the appellant was aware of his right to a second test, it is whether he was aware of his right to voluntarily undergo an “appeal of [the] notice of administrative penalty”. Such awareness is impossible where the driver has not yet been issued or advised of the NAP. According to the police record, it was only after the second test that the NAP “paperwork” was “completed, explained and served”.

As the appellant was not notified of the NAP until after the second test, he could not have been aware of his right to appeal it. [ 33 ] For the foregoing reasons, the Adjudicator’s decision is quashed, and the NAP is cancelled. Heard on the 20 th day of April, 2023. Dated at the City of Calgary, Alberta this 26 th day of June, 2023. S.M. Bensler J.C.K.B.A. Appearances: Katherin J. Beyak for the Applicant Anastasia Yevtushenko for the Respondent