Bennett v Director of SafeRoads Alberta, 2023 ABKB 678

Court of King’s Bench of Alberta Citation: Bennett v Director of SafeRoads Alberta, 2023 ABKB 678 Date: 20231130 Docket: 2101 11782 Registry: Calgary Between: Zackery Bennett Applicant - and - Director of Saferoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice R.W. Armstrong _______________________________________________________ [ 1 ] Zackery Bennett seeks judicial review of an Adjudicator’s decision to uphold a Notice of Administrative Penalty (“NAP”) that was issued pursuant to s88.1(1)(

a) of the Traffic Safety Act , RSA 2000, c T-6 (“ TSA ”). I. Facts and Procedural Background [ 2 ] Early in the morning of August 21, 2021, police responded to a single vehicle collision involving Mr. Bennett. Mr. Bennett says he simply fell asleep in his car while stopped at a red light and rolled into a light pole. Constable Singer of the Calgary Police

Service, who attended at the scene, concluded that Mr. Bennett was impaired after noting a strong smell of alcohol coming from Mr. Bennett’s mouth and upon observing that Mr. Bennett staggered when he walked and was exhibiting slurred speech. [ 3 ] Given the indicia of impairment, Cst. Singer formed his opinion that Mr. Bennett’s ability to operate a motor vehicle was impaired by alcohol and he did not administer any form of breath test to ascertain Mr. Bennett’s blood alcohol concentrations. [ 4 ] Cst. Singer issued a NAP to Mr. Bennett pursuant to

section 88.1 (

a) of the TSA . On the front of the NAP, in bold letters, was the following statement: “You have the right to request a second test to confirm your blood drug/alcohol concentration.” [ 5 ] Mr. Bennett applied to have the NAP cancelled. On August 31, 2021, a review was conducted by a SafeRoads Adjudicator. Following the review, the Adjudicator confirmed the NAP. Mr. Bennett now seeks judicial review of the Adjudicator’s decision. II. The Adjudicator’s Decision [ 6 ] The Adjudicator considered two grounds upon which the NAP may be cancelled as well as the duty of fairness owed to Mr.

Bennett. [ 7 ] The first ground to cancel the NAP that the Adjudicator considered was s 4(e)(iv) of the SafeRoads Alberta Regulation , Alta Reg 224/2020 (“ SAR ”): that the recipient’s ability to operate a motor vehicle was not impaired to any degree by alcohol or a drug or a combination of alcohol and a drug. [ 8 ] The Adjudicator reviewed Mr. Bennett’s evidence of what happened, the observations of the witness who called the police to report Mr. Bennett and the observations of Cst. Singer. The Adjudicator reviewed the indicia of impairment including a very strong smell of alcohol coming from Mr.

Bennett’s mouth, staggering when walking, and slurred speech. The Adjudicator noted that Mr. Bennett did not provide any explanation to Cst. Singer that might explain away the indicia of impairment. [ 9 ] The Adjudicator determined that the explanations offered by Mr. Bennett in his affidavit were too vague to support his version of events and therefore Mr. Bennett did not meet the onus on him to establish that he was not impaired when he operated his motor vehicle. [ 10 ] The second ground to cancel the NAP that the Adjudicator considered was s 4(e)(

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

section 88.11 of the TSA and that the recipient was unaware of that right. [ 11 ] The Adjudicator held that the notice on the NAP, which states in big, bold red letters that the recipient has the right to request a second test, fulfilled the officer’s duty to notify Mr. Bennett in writing of his right to an immediate roadside appeal. The Adjudicator further held that Cst. Singer did not do anything to undermine or obscure the advice regarding the right to a second test that was on the face of the NAP. The Adjudicator therefore concluded that Mr.

Bennett was notified in writing of his right to an immediate roadside appeal, and he was aware of that right. [ 12 ] Finally, the Adjudicator addressed Mr. Bennett’s right to fairness and whether that right was breached by the decision of the police not to administer a roadside test to determine blood alcohol concentration and the fact that Mr. Bennett was not offered an opportunity to contact counsel. The Adjudicator determined that there is no obligation on an officer who has formed the opinion that an individual is impaired to administer a test on an approved screening device.

The Adjudicator further held that there was no right to counsel for a TSA investigation and concluded that Mr. Bennett’s right to fairness was not breached. [ 13 ] Having found that Mr. Bennett had not established any grounds upon which to cancel the NAP, the Adjudicator confirmed the NAP. III. Issues [ 14 ] Mr. Bennett raises two issues at this judicial review: A. Was the Adjudicator’s decision that Mr. Bennett had been advised in writing of his right to an immediate roadside appeal and that he was aware of that right unreasonable? B.

Did the Adjudicator act unreasonably in her treatment of the police officer’s evidence as conclusive proof that Mr. Bennett had to disprove? IV. Standard of Review [ 15 ] The applicable standard of review is reasonableness. Section 24(3) of the Provincial Administrative Penalties Act, SA 2020, c P-30.8 (“ PAPA ”), prescribes the reasonableness standard for the review of an adjudicator’s decision.

Furthermore, the Supreme Court of Canada has identified the reasonableness standard of review as the presumptive standard in matters of judicial review: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at para 16 . [ 16 ] The Court of Appeal of Alberta recently confirmed the applicable standard of review is the deferential standard of reasonableness: Lausen v Alberta (Director of SafeRoads) , 2023 ABCA 176 at para 37 . [ 17 ] The reasonableness standard is a deferential standard that recognizes the specialized role of the decision maker within the context of an administrative regime.

It allows for a range of decisions, so long as the decision demonstrates the hallmarks of

reasonability: justification, transparency, and intelligibility. A reasonable decision must be justified in relation to the relevant factual and legal matrix presented: Vavilov at para 99 . V. Analysis A. Right to a Roadside Appeal [ 18 ] The Adjudicator decided that the notification on the face of the NAP was sufficient to fulfill the requirement that Mr. Bennett be notified of his right to an immediate roadside appeal. The Adjudicator’s decision was not reasonable. [ 19 ] The Adjudicator’s reasons contain no analysis of the words on the NAP in relation to the facts of this case. Mr.

Bennett was never subjected to a breath test on an approved screening device. There was therefore no first test and no blood alcohol concentration readings that could be confirmed by a second test. [ 20 ] How the Adjudicator concluded that being advised of the right to a second test provides meaningful notice of his right to a roadside appeal when there was no first test is unclear from the Adjudicator’s decision. The Adjudicator’s reasoning on this point is a single sentence: “In this case, Cst.

Singer served the NAP on the Recipient and the NAP form itself clearly states in big, bold red letters that recipients have the right to request a second test. I therefore find that the Recipient was notified in writing.” Stating the conclusion with no reasoning to support how that conclusion was arrived at does not meet the standard of a reasonable decision. [ 21 ] The clarity of the advice surrounding Mr.

Bennett’s right to an immediate roadside appeal was clearly in the Adjudicators mind when the Adjudicator considered whether the officer did anything to undermine or obscure the advice of the roadside appeal on the NAP. The Adjudicator did not, however, at all consider whether the wording of the notice on the NAP itself may have obscured or undermined Mr. Bennett’s understanding of his right. The notice on the NAP refers to a second test. In Mr. Bennett’s case there was no first test. The Adjudicator is silent as to how a reference to a second test in the absence of a first test might have affected Mr.

Bennett’s understanding of the notice. [ 22 ] Furthermore, the notice on the NAP refers to confirming the recipient’s blood drug/alcohol concentration. In this case, because there was no breath test, there were no blood alcohol concentration figures to confirm or refute. Again, the Adjudicator failed to provide any reasoning as to how the notice on the NAP related to Mr.

Bennett’s situation and provided proper notice of his right to a roadside appeal. [ 23 ] In the absence of any intelligible reasons for the conclusion reached by the Adjudicator and without any justification or transparency in relation to the finding that Mr. Bennett was advised of his right to an immediate roadside appeal simply by receiving a NAP that referred to a second test and the existence of blood alcohol concentration, the decision of the Adjudicator cannot stand. B. Treatment of the Evidence [ 24 ] The Adjudicator’s treatment of the evidence in this matter was also unreasonable.

A reasonable decision must be justified in relation to the relevant factual and legal matrix presented. Part of the legal matrix that applies in this case is the right of an individual who is the subject of a criminal investigation to remain silent. [ 25 ] At paragraph 11 of the review decision, the Adjudicator notes that Cst. Singer informed Mr. Bennett that he was being charged with impaired operation of a motor vehicle. The Adjudicator went on to say: In my view, this would have been an opportunity for the Recipient to explain that he could not have been impaired but was simply tired from his busy week.

However, this did not occur and I am left wondering why nothing was said considering the serious consequences of an IRS [Immediate Roadside Sanction]. [ 26 ] The Adjudicator failed to recognize that a person who is the subject of a police investigation is under no obligation whatsoever to say anything. The fact that Mr. Bennett did not explain himself at the roadside clearly tainted the Adjudicator’s approach to Mr. Bennett’s evidence as the Adjudicator was “left wondering” by Mr. Bennett’s silence at the roadside. The Adjudicator provided no justification for the stated concern with Mr.

Bennett’s silence during the investigation. Furthermore, given that Mr. Bennett had the onus to establish he was not impaired on review, the Adjudicator appeared to be under the impression that Mr. Bennett also had an onus to convince the police officer he was not impaired at the roadside. Of course, no such onus exists. [ 27 ] With the Adjudicator’s stated concern about Mr. Bennett’s silence at the scene, I am unable to ascertain from the balance of the reasons how the Adjudicator properly weighed all the evidence to conclude that Mr. Bennett failed to establish he was not impaired on review.

The reasoning suggests an approach whereby the Adjudicator started from the presumption that all of the police officer’s evidence was true and that it was up to Mr. Bennett to refute each piece of evidence from the officer. This is an unreasonable application of the onus on Mr. Bennett on review. [ 28 ] The Adjudicator is not entitled to treat the police officer’s evidence as presumptively correct and then require Mr. Bennett to rebut it all. Rather, the Adjudicator must consider all the evidence, weigh it, and then decide whether the party bearing the onus met their burden.

The reasoning of the Adjudicator fails to disclose that any such fulsome consideration and weighing of evidence. The decision is therefore lacking the hallmarks of reasonability: justification, transparency, and intelligibility. VI. Conclusion and Remedy

[ 29 ] The decision of the Adjudicator is unreasonable. While the usual remedy in these circumstances is to remit the matter back to the original decision maker for reconsideration, there are some exceptions to that general practice.

Where remitting the matter back would result in an endless merry-go-round of judicial review and reconsideration, where the outcome of the re-adjudication is inevitable or where reconsideration is not justified considering the cost to the parties and the need to make efficient use of public resources, then I may exercise my discretion and quash the decision: Vavilov at para 142 . [ 30 ] This is a suitable case for me to exercise my discretion and quash the decision of the Adjudicator and cancel the NAP. I am satisfied that if the matter were remitted, an adjudicator acting reasonably would find that Mr.

Bennett was not notified of his right to an immediate roadside appeal, and he was not aware of that right. The result of re-adjudication would be inevitable. Furthermore, given the passage of time, reconsideration is not justified considering the cost to the parties and the need to make efficient use of public resources. [ 31 ] The decision of the Adjudicator is quashed, and the NAP issued to Mr. Bennett is cancelled. Heard on the 8 th day of September 2023. Dated at the City of Calgary, Alberta this 30 th day of November 2023. R.W. Armstrong J.C.K.B.A. Appearances: Katherin J.

Beyak Foster Iovinelli Beyak Kothari for the Applicant Eden C. Maher JTI Initiative - Legal Services Division Alberta Justice for the Respondent