Gaca v Alberta (Director of SafeRoads), 2023 ABKB 546

Court of King’s Bench of Alberta Citation: Gaca v Alberta (Director of SafeRoads), 2023 ABKB 546 Date: 20230928 Docket: 2101 13258 Registry: Calgary Between: Peter Gaca Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice M.A. Marion _______________________________________________________ I.

Introduction and Background [ 1 ] In the early morning of September 2, 2021, an armoured truck waiting at a red light on Seton Boulevard SE in Calgary, at the intersection with 45 Street SE, was struck by a Honda Civic ( Honda ). After the collision, the Honda’s male driver ( Driver ) stumbled toward the armoured truck and spoke to its occupants ( Witnesses ), slurring his words. The Witnesses watched the Driver return to the Honda and drive away, turn left on 45 Street SE, and then crash into a nearby concrete signpost on the median. The Driver exited the Honda and fled on foot southbound on 4 th Street SE.

One of the Witnesses called police at 12:22 a.m. [ 2 ] Police found the applicant, Peter Gaca ( Gaca ), in the admitting area of the South Health Campus. At 1:05 a.m. the police read Gaca a demand for a breath sample, which he indicated he understood. The approved screening device reported a “fail”, indicating a blood alcohol concentration greater than the legislated amount of 80 milligrams in 100 millitres of blood ( BAC Limit ).

Gaca exercised his right to a “roadside appeal”, but he was unable to provide a sample sufficient to generate a reading. [ 3 ] There were four officers involved with Gaca at the South Health Campus. One of them, Constable Kenny Boese ( NAP- Issuing Officer ), issued a Notice of Administrative Penalty ( NAP ) to Gaca under the Traffic Safety Act , RSA 2000 c T-6 ( TSA ), sections 88.1(1) (a) (operating a vehicle while impaired) and 88.1(1)(b) (being over the BAC Limit within two hours after ceasing to operate a motor vehicle).

[4] On September 10, 2021, Gaca requested a review (Review Request) of the NAP under

section 7 of the ProvincialAdministrative Penalties Act, SA 2020 c P-30.8 (PAPA), which was conducted by adjudicator M. Nowak (Adjudicator) on September22, 2021 (Review). At the Review, Gaca argued that the Director of SafeRoads Alberta (Director) had failed to provide completerecords in relation to the approved screening devices (ASDs) used to take his breath samples, that Gaca did not operate the Honda, andthat Gaca was not over the BAC Limit within two hours of ceasing to operate a motor vehicle. [5] On October 1, 2021, the Adjudicator released her written decision confirming the NAP (Decision).

Among other things, shefound the Director had not failed to provide required documents, that Gaca failed to establish he was not the Driver of the Honda, andthat Gaca had failed to establish he was not over the BAC Limit within two hours of ceasing to operate a motor vehicle. Gaca did notprovide evidence that he was not driving the Honda at the time of the collision. The Adjudicator found he was the Driver. [6] On October 29, 2021, Gaca filed his Originating Application seeking judicial review. He abandoned his argument that theDirector had failed to provide required documents pursuant to

section 12 of PAPA. Gaca’s grounds for judicial review therefore hingeupon his assertion that the Adjudicator erred in law and acted unreasonably in determining that Gaca was operating the Honda at the timeof the collision. The Director asserts that the Adjudicator acted reasonably confirming the NAP. [7] Most of Gaca’s arguments are founded on alleged evidentiary or informational gaps. Gaca effectively argues that the NAP-Issuing Officer never explained how he concluded Gaca was the Driver, that the NAP was therefore invalid, and that the Adjudicatoronly speculated that Gaca was the Driver.

As will be shown in more detail below, Gaca misconstrues the legal framework by limiting thereview to the evidence the NAP-Issuing Officer had, rather than all the statutorily permitted information before the Adjudicator. [8] The Adjudicator reasonably found that Gaca was the Driver and committed no error in doing so. The police narrative clearlyincludes information obtained from the Witnesses, and expressly states that the police searched the area and found “the male” (namelyGaca), which was immediately following, and a reference to, “the male” that “got out of his vehicle and fled southbound on 45th STSE”.

Without any contrary evidence from Gaca, the evidentiary record reasonably permitted the logical inference that the policeidentified and found Gaca at the South Health Campus based on information provided by the Witnesses. [9] Gaca’s application for judicial review is denied and the NAP is confirmed. II.

Legal Framework [10] The TSA, PAPA, the Provincial Administrative Penalties Regulation, Alta Reg 217/2020 (PAPR), and the SafeRoads AlbertaRegulation, Alta Reg 224/2020 (SAR), together, create the “SafeRoads” regime as a civil administrative licence suspension regime, not apenal or criminal regime: Lausen v Alberta (Director of SafeRoads), 2023 ABCA 176 at para 36; Isley v Alberta (Director ofSafeRoads), 2022 ABQB 249 at para 2; Wildman v Alberta (Director of SafeRoads), 2022 ABKB 756 para 20. [11] The overall purpose of the SafeRoads regime is to serve the twin purposes of addressing the pressing public safety concernand devastation caused by impaired driving, while also deterring drivers from driving impaired.

As noted by Justice Armstrong in Harrisv Alberta (Director of SafeRoads), 2022 ABQB 470 at para 45: [45] [...] The purpose of administrative impaired driving regimes was articulated by the Supreme Court of Canada in Wilson, at paras36-37: Roadside driving prohibitions serve a pressing public safety purpose. As Cory J. said in R. v. Bernshaw (1994), (SCC),[1995] 1 S.C.R. 254 (S.C.C.), at para. 16: Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, ithas a far greater impact on Canadian society than any other crime.

In terms of the deaths and serious injuries resulting in hospitalization,drunk driving is clearly the crime which causes the most significant social loss to the country. Roadside driving prohibitions are an important tool for confronting and reducing the devastating effects of impaired driving. Courts haverepeatedly held that driving prohibitions serve the twin purposes of increasing highway safety and deterring impaired driving: Sivia vBritish Columbia (Superintendent of Motor Vehicles), 2014 BCCA 79, 307 C.C.C. (3d) 77 (B.C.C.A.) at para. 104; [R v.

Gordon, 2002BCCA 224, 100 B.C.L.R. (3d) 35 (B.C.C.A.)], at paras. 25-27; Buhlers v. British Columbia (Superintendent of Motor Vehicles), 1999BCCA 114, 170 D.L.R. (4th) 344 (B.C.C.A.) at paras. 28-29. [12] The mandatory NAP-issuance provisions in the TSA further these purposes. For example,

section 88.1(

b) of the TSA provides,among other things, that if a peace officer has reasonable grounds to believe that a driver operated a motor vehicle while the driver’sability to operate the vehicle was impaired to any degree by alcohol, or that a driver was over the BAC Limit within two hours of ceasingto operate a motor vehicle, then the police officer shall issue a NAP to the driver unless certain exceptions exist: TSA, sections 88.1(1)(a)and (b), 88.1(2), 88.1(3). Provided the exceptions in

section 88.1(3) do not exist, the

section is mandatory: the peace officer must issuethe NAP to the driver. [13] A NAP issued for contravention of

section 88.1 must contain the content satisfactory to the responsible Minister, togetherwith other mandatory minimum content (including certain statements, the web address for SafeRoads Alberta, and a notice of seizure(Seizure Notice) of a motor vehicle that complies with the content requirements of the Vehicle Seizure and Removal Regulation (AR251/2006)): TSA, section 157(4); PAPA,

section 6; PAPR,

section 3; SAR,

section 10. [14] PAPA applies to a NAP issued under the TSA and governs when the recipient of a NAP wishes to dispute it: PAPA, section1(1)(b) “administrative penalty”, section 3(1), and

section 7; Provincial Administrative Penalties (Prescribed Enactments) Regulation,Alta Reg 211/2020,

section 2.

[15] PAPA,

section 2, provides that its purpose is to: (

a) adopt a simplified form and process for administratively enforcing contraventions, (

b) establish a consistent framework for the resolution of contraventions enforced by issuance of an administrative penalty, (

c) ensure that the process used to administratively enforce contraventions and the procedural safeguards applicable inadministrative enforcement proceedings are proportionate to the regulatory nature of the contravention, (

d) resolve disputes in relation to administrative penalties in an expedient manner consistent with the procedural protectionsmandated by this Act, (

e) affirm that the consequences for a contravention enforced by issuance of an administrative penalty may not includeimprisonment, and (

f) enhance access to justice by establishing an administrative enforcement process that can be readily understood and providesfor a simple method of disputing a notice of administrative penalty. [16] The SafeRoads regime and the role of the adjudicator has been aptly summarized as having the purpose of providing a“simplified, consistent, proportionate, and expedient mechanism to evaluate the validity of a NAP”: Chaffin v Alberta (Director ofSaferoads), 2023 ABKB 168 at para 42. [17]

Section 7 of PAPA requires that the recipient must file a request for review within 7 days after the NAP is issued. Sections9-11 of PAPA provide for the designation of a part of the public service of an adjudication branch to conduct reviews, and thedesignation of a person as the Director of that adjudication branch. [18] After receiving a request for a review and the prescribed fee, the Director must provide the recipient with relevant records asprescribed in the regulations or under a prescribed enactment, and if the Director is unable to do so they must cancel the NAP: PAPA,section 12(1)-(3).

Section 2 of SAR sets out the records the Director must provide. [19] PAPA provides for a streamlined written or electronic oral hearing with no cross-examination:

section 16. The burden of proofis on the recipient: PAPA, section 18(1). The adjudicator may consider a finite list of information in the form of records, representations,arguments and evidence, including as submitted by the recipient: PAPA, section 18(2)(a)-(f). The adjudicator may determine the weightto be given to any document, records, representations or evidence, and is not bound by the rules respecting evidence applicable tojudicial proceedings: PAPA, section 18(3) and (4). [20] An adjudicator is an administrative tribunal with limited statutory jurisdiction. For example, an adjudicator has only a finitelist of grounds upon which to cancel a NAP (PAPA, section 21(1)(b); SAR,

section 4; Mierke v Alberta (Director of SafeRoads), 2021ABQB 1003 at para 17) and a finite list of remedies available to it (PAPA,

section 21; SAR, sections 5 and 6; Rose v Alberta (Director ofSafeRoads), 2022 ABQB 297 at paras 22-25). [21] An adjudicator does not have authority to find Charter breaches or grant Charter remedies: Administrative Procedures andJurisdiction Act, RSA 2000, c A-3,

section 11; Designation of Constitutional Decision Makers Regulation, AR 69/2006,

Schedule 1;Smit v Alberta (Director of SafeRoads), 2023 ABKB 435 at para 38; Rose at paras 26-29; Isley at para 52; Lawrence v Alberta(Director of SafeRoads), 2022 ABKB 825 at para 34; Curtis v Alberta (Director of SafeRoads), 2022 ABKB 632 at para 22. [22] However, courts have held that an adjudicator can consider Charter rights and Charter values in certain circumstances,namely: (1) in determining whether alleged Charter breaches affect the relevance, reliability, accuracy of, or otherwise undermine theevidence; (2) in determining whether the alleged breach would affect the fairness of the proceedings; (3) in determining whether thealleged breach was so egregious that relying on the evidence would be an abuse of process or a breach of natural justice (this issometimes referred to as “egregious unfairness” justifying exclusion of evidence); or (4) in resolving ambiguities in legislation: Isley atpara 52; Lausen at para 58; Lawrence at para 34; Rose at paras 28-32; Smit at para 151; Engel v Alberta (Director of SafeRoads), 2022ABQB 377 at para 35; Cornforth v Alberta (Director of SafeRoads), 2022 ABQB 341 at paras 54-60; Sundar v Alberta (Director ofSafeRoads), 2023 ABKB 337 at paras 27-29; Curtis at paras 22-29; Morin v Alberta (Director of SafeRoads), 2023 ABKB 200 at para5. [23] Adjudicators are administrative decision-makers and are bound by common law principles of procedural fairness in respect ofthe reviews conducted under PAPA: Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2SCR 817 at para 20; Gordey v Alberta (Director of SafeRoads), 2023 ABKB 228 at para 44; Smit at paras 60-70 and 84-86; Munro vAlberta (Director of SafeRoads), 2023 ABKB 29 at para 15.

At least one court has assessed the SafeRoads regime under the Bakeranalysis as requiring a “relatively high” degree of fairness under the Baker factors: Smit at para 70. [24] Adjudicator reviews do not themselves engage the analytical framework in Doré v Barreau du Québec, 2012 SCC 12 andLoyola High School v Quebec (Attorney General), 2015 SCC 12 because the adjudicators’ decisions are not discretionary: Isley at para51; Rose at paras 36-41; Curtis at paras 22-29. Further, the adjudicator’s review hearing and decision do not themselves engage Charterprotections: Rose at paras 36-41; Smit at para 35. III.

Record [25] The Certified Record of Proceedings includes: (

a) the Originating Application for judicial review;

(

b) the Decision; (

c) the electronic Review Request; (

d) Gaca’s consent to representation; (

e) a “Contravention Export” from the Administrative Penalty Information System ( APIS ), containing recipient information, contravention details (which includes the contravention type, occurrence time and location, witness information, contravention grounds, impairment screening information, impairment screening details, roadside appeal information, roadside appeal details, a confirmation of the NAP-Issuing Officer’s reasonable grounds to believe, a police narrative ( Police Narrative ), vehicle seizure details ( Vehicle Seizure Details ) (including seizure information, vehicle information, registered owner information, vehicle location and lot information), a list of uploaded supporting documents, police service information about the NAP-Issuing Officer, and a declaration of the NAP-Issuing Officer ( Declaration ).

The Declaration includes the name of the NAP-Issuing Officer and states “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”, following which it states “Yes”; (

f) a copy of the NAP; (

g) a “recipient view of APIS including report of issuing officer”, which is titled Contravention Details and which includes some of the same information as the Contravention Export. The information also includes a Declaration by the NAP-Issuing Officer; (

h) photographs of the ASDs; (

i) right to a second test tear-away sheet; (

j) a copy of the Seizure Notice; (

k) statements from the Witnesses ( Witness Statements ); (

l) a Webex hearing recording; and (

m) other materials, including SafeRoads Alberta Terms and Conditions, SafeRoads Technical Materials Library (Webpage printout), Alberta Motor Vehicles System ( MOVES ) records, NAP fine; and applicable SafeRoads Technical Materials Library documents. IV. Standard of Review [ 26 ] When a court reviews the merits of an administrative decision, reasonableness is the presumed standard of review: Lausen at para 32 , citing Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , [2019] 4 SCR 653 at paras 16 , 25, 170.

Further, section 24(3) of PAPA provides that on an application for judicial review of a decision of an adjudicator, the standard of review is reasonableness: Lausen at para 32 . [ 27 ] The Vavilov reasonableness review was recently summarized by Justice Ashcroft in Giroux v Director of SafeRoads Alberta , 2023 ABKB 450 at para 46 : [46] Reasonable review is a deferential standard and is not “a line-by-line treasure hunt for error”: Vavilov at paras 85, 102 . Nor does it require a standard of perfection: Vavilov at para 91 .

A reasonable decision is one that is rational, logical, and “adds up”: Vavilov at paras 102, 104 . The reasons of the decision maker must be read in light of the record and with sensitivity to the administrative regime in which they were given: Vavilov at para 103 . The burden of establishing that the decision under review was unreasonable lies with the applicant: Vavilov at para 100 . [ 28 ] Statutory

interpretation specific to the “SafeRoads” administrative licence suspension regime does not involve a general question of law of central importance to the legal system as a whole and, therefore, the standard of review of an adjudicator’s statutory

interpretation of the statutory and regulatory framework is reasonableness: Lausen at paras 33-37 . V. Issues [ 29 ] The issues in this judicial review are: (

a) Was the Decision confirming the NAP, issued based on

section 88.1(1) (

a) of the TSA , reasonable? (

b) Was the Decision confirming the NAP, issued based on

section 88.1(1) (

b) of the TSA , reasonable? VI. Analysis A. Was the Decision to Confirm the NAP Based on

Section 88.1(1)(

a) of the TSA Reasonable? [ 30 ]

Section 88.1(1)(

a) provides:

88.1(1) Subject to subsection (3), if a peace officer has reasonable grounds to believe any of the following, the peace officer shall, on behalf of the Registrar, take the actions set out in subsection (2): (

a) that a driver operated a motor vehicle while the driver’s ability to operate the motor vehicle was impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug; [ 31 ] At the Review, Gaca relied on SAR, sections 4 (e)(

i) and (iii), as grounds for cancellation of the NAP under

section 88.1(1)(a). Those sections provide: 4. The grounds for an adjudicator to cancel a notice of administrative penalty (

e) issued for a contravention of

section 88.1(1)(

a) of the Act are (

i) that the recipient did not operate the motor vehicle, [...] (iii) that the Director did not provide complete records to the recipient as required by

section 12 of the Provincial Administrative Penalties Act , [...] [ 32 ] Gaca’s argument under

section 4 (e)(iii) of SAR was that the Director failed to provide records related to the ASDs used for the basis of the NAP, under SAR ,

section 2 . Although this was included in his Originating Application, Gaca formally abandoned this ground in his written argument and I consider it no further. [ 33 ] With respect to SAR ,

section 4 (e)(i), Gaca bore the burden of proving he was not the Driver of the Honda: PAPA , section 18(1) ; Bettenson-Miller v Alberta (Director of SafeRoads) , 2022 ABKB 693 at para 10 . [ 34 ] Gaca did not adduce any evidence that he was not the Driver of the Honda, but rather his counsel argued his position based on the other information before the Adjudicator. In

summary, Gaca was critical of the police for the limited information they provided to link Gaca to the Honda or its Driver.

In particular, he pointed out limits or inconsistencies in the description of the Driver in the Witness Statements, the fact that Gaca was not located by the police until approximately 40 minutes after the Driver left the scene of the collision, the police’s failure to explain how they identified Gaca as the Driver, and the lack of clarity about what information the NAP- Issuing Officer had or used at the time the NAP was issued. [ 35 ] In Shell Canada Limited v Alberta (Energy) , 2023 ABCA 230 at paras 20-21 , the Alberta Court of Appeal recently summarized the guidance on the reasonableness analysis provided in Vavilov , where there are written reasons: [20] [ Vavilov ] provides guidance on how a reviewing court is to conduct a reasonableness review of an administrative decision at paragraph 84: …where the administrative decision maker has provided written reasons, those reasons are the means by which the decision maker communicates the rationale for its decision.

A principled approach to reasonableness review is one which puts those reasons first. A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with “respectful attention” and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion [citations omitted]. [21] The reviewing court is to “develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable.

To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”: Vavilov at para 99 . An administrative decision-maker’s

interpretation “must be consistent with the text, context and purpose of the provision”: Vavilov at para 120 . The onus is on the party challenging a decision to demonstrate that it is unreasonable: Vavilov at para 100 . Decisions are unreasonable where there is “a failure of rationality internal to the reasoning process” or when a decision “is in some respect untenable in light of the relevant factual and legal constraints that bear on it”: Vavilov at para 101 . [ 36 ] After providing a

summary of the police narrative in APIS, in the Decision the Adjudicator stated: 8. Counsel argues that there is no connection made by CPS to show that the driver of the vehicle and the Recipient are the same person. Counsel argues that the area around which the Recipient was located is a public place in proximity to a public health center, which means that even at that time of night; people would have been present on the streets. The Recipient was found approximately 40 minutes after the witnesses state the driver ran off and Counsel argues that the driver could have gone anywhere in that time.

Counsel argues that even though R.B. described the driver as wearing a “grey shirt, red board shorts and had a mullet”, he also stated the driver had a mustache, which witness N.F. did not note. N.F.’s statement agreed that the driver had a “grey shirt, redish [sic] shorts, curly mullet” but indicates the driver wore glasses, which was not noted by R.B. Counsel argues that police did not match the description of the Recipient with that of the driver in their report.

Counsel also questions at what time CPS was privy to the identifying information since four officers are listed in the police narrative as speaking with the Recipient but it was a fifth officer who took the statements from the witnesses. Counsel argues that there is no time-stamp on the witnesses’ statements to show police were informed of the driver’s description at the time of the search and therefore logically, the adjudicator cannot make the link that the driver and the Recipient are one and the same.

Moreover, Counsel argues that the Seizure Notice does not give a description of the vehicle that was seized from the scene and there is no way to link that “grey car” (N.F.’s statement) or “Honda Civic” (R.B.’s statement) to the Recipient. 9. After reviewing the evidence, I note that the vehicle identified in the Seizure Notice is linked to the Recipient by Vehicle Identification Number (“VIN”) and license plate. The vehicle, listed as a Silver Honda Civic, was towed from the scene of the collision and I find this corresponds with the witnesses’ account of the vehicle that rear-ended them.

The Recipient has not denied being the driver

at the time of the collision and he has not convinced me that the description put forth by witnesses did not match his clothes and hairstyle at the relevant time. Without further evidence, I am not satisfied that the Recipient did not drive his own vehicle at the time of the collision and I find, on a balance of probabilities, that CPS correctly located the driver of the vehicle, that being the Recipient, due to the description put forth by the witnesses. 10.

The Recipient has not established that the Recipient was not actually driving. [...] [ 37 ] Gaca’s Originating Application states: ...the Adjudicator erred in law, and decided unreasonably, when they determined that there was sufficient evidence to confirm that the Applicant operated a vehicle at the requisite time, despite police lacking clear proof of identity of the driver as being the Applicant and not providing notes linking the Applicant to the unknown driver, and in considering the issues of contrasting descriptions of the driver.

As such the Adjudicator further erred in law, and decided unreasonably, when they determined that the Applicant was operating the vehicle. [ 38 ] In support of his position, Gaca makes several arguments. He effectively argues that the Adjudicator erred by applying the wrong test, relied on information she should not have or could not have used to support her conclusions, misconstrued Gaca’s position, and reached her decision based only on speculation that Gaca was the Driver. I address these arguments in turn. 1. Was the Decision Unreasonable Because the Adjudicator Erred in her

Interpretation and Application of the Legal Framework for the Review? [ 39 ] In the Decision, the Adjudicator noted that the grounds she could cancel the NAP are set out in SAR ,

section 4 , and she was addressing the specific ground Gaca relied on, namely: “

Section 4 (e)(i): that the Recipient did not operate the motor vehicle”. The Adjudicator found that, on the balance of probabilities, Gaca was the Driver and that Gaca had “not established that he was not actually driving”.

Implicit from these reasons, the test the Adjudicator applied was whether Gaca did not operate the Honda. [ 40 ] However, Gaca argues that the issue before the court is: “was it reasonable to conclude on the facts before the Adjudicator that the police had sufficient grounds to believe the Applicant was the driver at the time of arrest and at the time of subjecting him to the ASD demand and test, the result of which led to the two contraventions asserted by police in the NAP.” In effect, Gaca’s argument necessarily suggests that the Adjudicator misinterpreted the appropriate grounds to cancel the NAP under SAR ,

section 4 (e)(i). [ 41 ] When reviewing a question of statutory

interpretation for reasonableness, the reviewing court does not undertake a de novo analysis or determine the correct

interpretation, but instead examines the administrative decision as a whole paying respectful attention to the reasons provided: Lausen at para 41 , citing Vavilov at paras 84 and 116 . The court starts by examining how the decision- maker arrived at their

interpretation, and then determines whether it was defensible in light of the interpretative constraints imposed by law: Lausen at para 41 , citing Canada Post Corp v Canadian Union of Postal Workers , 2019 SCC 67 at para 41 . A reasonable

interpretation must have regard to the text, context and purpose of the legislation, and must conform to any interpretive constraints in the governing statutory scheme as well as interpretive rules arising from other sources of law: Canada Post at para 42. [ 42 ] In my view, the Adjudicator’s

interpretation of the applicable test was defensible in light of the interpretative constraints imposed by law. She directly quoted and applied the unambiguous text of SAR ,

section 4 (e)(i). [ 43 ] Gaca has raised no other interpretive constraints to suggest the Adjudicator’s

interpretation was unreasonable. In my view, Gaca’s proposed

interpretation of the test misconstrues the SafeRoads legal framework. The NAP-Issuing Officer’s basis or grounds for issuing a NAP are the fountainhead for the entire process and are important to recipients in assessing their position: Gordey at paras 37- 46 and Smit at 86. However, assessment of NAP cancellation is limited to the specific enumerated grounds in SAR ,

section 4 . For example, the clear text of SAR ,

section 4 (e)(i), constrains the assessment to whether, on the balance of probabilities, the recipient was operating the vehicle or not: it is not an assessment of whether the NAP-Issuing Officer had reasonable grounds, or whether the police have, in the review process, adequately identified the specific evidence the NAP-Issuing Officer relied on in issuing the NAP. [ 44 ] The Adjudicator’s

interpretation is also defensible in light of the text, context and purpose of the legislation. Gaca argued that NAPs are not presumptively valid - there must be some “basic validity” to the NAP, failing which it must be cancelled, and that it is the Adjudicator’s job to determine in a general sense if the NAP has that basic validity. Without that, Gaca argues, there would be nothing stopping police officers from randomly issuing NAPs arbitrarily to people without any reasonable grounds, for example people they find walking on the street. While safeguards are required to avoid abuse of the SafeRoads system, in my view the text of SAR ,

section 4 (e)(i), cannot defensibly bear the

interpretation Gaca proposes. Further, consideration of the legal framework, as a whole, discloses that safeguards exist elsewhere and do not need to be read into

section 4 (e)(

i) of SAR . [ 45 ] First, even if the test for cancellation is not as proposed by Gaca, as a matter of evidentiary burden it is open to a recipient to point to of a lack of reasonable grounds, or articulated reasonable grounds, to support the recipient’s ground for cancellation – in this case that Gaca was not the Driver.

A lack of evidence provided to the adjudicator to support the issuance of the NAP is always relevant and can be relied on to support the recipient’s position in discharging its onus: Wildman at para 59 . [ 46 ] Second, if appropriate, the recipient may attempt to raise Charter breaches or a constitutional challenge impugning the invalidity of the legislative scheme: Smit .

In this case, Gaca did not raise the Charter before the Adjudicator or in his Originating Application and so no Charter issues are properly before me: Rose at para 19-21; Curtis at para 21 . [ 47 ] Third, as noted earlier, a recipient may argue that the conduct of the police was egregiously unfair such that evidence obtained is unreliable or should not be given any weight: Smit at paras 151-152 ; Rose at paras 28-32 ; Lawrence v Alberta (Director of SafeRoads) , 2022 ABQB 343 at paras 60-61 ; Hollick v Alberta (Director of Saferoads) , 2023 ABKB 612 at paras 40-46 ; Isley at para 51 .

Although Gaca was critical of the lack of information the police included in APIS, he did not raise with the Adjudicator any egregious unfairness mandating evidence be excluded or given little weight based on police conduct. Some courts have held that there is

an obligation on adjudicators to assess egregious unfairness even if not raised by a recipient: see, for example, Chaffin at para 21 ; Packham v Alberta (Director of SafeRoads) , 2023 ABKB 361 at paras 23-24 ). However, Gaca also did not raise egregious unfairness based on police conduct in his Originating Application or suggest the police conduct was egregiously unfair in this case. He only referred to fairness in relation to his proposed

interpretation of the legislation. Accordingly, it is not necessary or appropriate for me to decide, and I make no comment, as to whether a NAP proven to be issued by an issuing officer who themselves did not have reasonable grounds could or would result in egregious unfairness. [ 48 ] Fourth, other enumerated grounds for cancellation in SAR ,

section 4 , may embed in them a safeguard against arbitrary issuance of NAPs. For example, in oral argument Gaca raised in passing the possibility that the NAP might be invalid and incapable of service, opening up

section 4 (e)(ii) as a ground for cancellation: see, for example, cases like Millar v (Alberta) Director of SafeRoads , 2023 ABKB 55 at paras 45-53 . However,

section 4(e)(ii) was not a ground Gaca relied on before the Adjudicator (or in his Originating Application) and, therefore, it cannot be raised on judicial review: Morin at para 65 ; Rose at para 77 ; Isley at para 68 ; Engel at para 23 . For the same reason, it is not before me, and I do not consider, whether a failure to provide the recipient with reports or notes from all officers involved in the investigation (or to confirm that there were no such reports or notes), in respect of the identity of the driver of a vehicle, would be grounds for cancellation under

section 4(e)(iii) SAR , as was discussed in Gordey at paras 37-51 and Smit at para 86 . [ 49 ] In conclusion, the Adjudicator’s

interpretation of the test or scope of the review under SAR ,

section 4 (e)(i), was reasonable. 2. Was the Decision Unreasonable Because of the Information the Adjudicator Relied On? [ 50 ] Gaca asserts two main errors in respect of the information the Adjudicator relied on in reaching her Decision. First, as a general point, he argues that the Adjudicator erred because she considered information even when it was unclear whether the NAP- Issuing Officer relied on it to issue the NAP.

He argued that “information on APIS is uploaded by the investigating officer or some other person after the NAP has been issued, so it cannot be used after the fact to establish [Gaca’s] connection to a vehicle at the time of arrest absent explicit reference to and reliance on it by the investigating officers”.

He says that the issue to be determined by the Adjudicator was “whether the police at the arrest and ASD breath demand and test had reasonably made that link, and on what evidence or otherwise they were able to make the link”. [ 51 ] Gaca’s second argument argues more specifically that the Adjudicator erred in considering the Vehicle Seizure Details (which link the Honda to Gaca). [ 52 ] As noted by the Director, the problem with these arguments is that they were not raised with the Adjudicator at the Review.

Gaca did not suggest to the Adjudicator that any of the information from the police that was before the Adjudicator was objectionable, should be excluded, or should not be relied on. Gaca has not argued or adduced evidence to suggest that the Certified Record of Proceedings is inaccurate. In the circumstances, it is unfair and inappropriate for Gaca to raise these issues now because the Adjudicator did not have the opportunity to address them in her Decision: Morin at para 65 ; Rose at para 77 ; Isley at para 68 ; Engel at para 23 .

Further, Gaca did not squarely raise these arguments in his Originating Application. [ 53 ] In case I am wrong, I briefly address these arguments. a. Information that May Not Have been Relied on by the NAP-Issuing Officer [ 54 ] Gaca’s argument embeds the same challenge to the Adjudicator’s

interpretation of the legal test under

section 4(e)(i), but extends it to argue that an adjudicator should or must focus the assessment of whether Gaca was the Driver based on the evidence relied on by the NAP-Issuing Officer, rather than all of the information before the adjudicator. [ 55 ] This argument fails for the same reasons discussed above – the Adjudicator reasonably interpreted the legal test and scope of the review under

section 4 (e)(i). Further, the Adjudicator’s

interpretation that she could consider the information that was before her is defensible based on the text of the PAPA . [ 56 ] Section 18(2) of PAPA provides that an adjudicator may, in conducting a review, consider the following “records, representations, arguments and evidence before making a decision”: (

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

b) any records, representations, arguments and evidence submitted by the recipient; (

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

d) any other relevant records and representations of the officer who issued the notice of administrative penalty or any other officer, including peace officers’ reports that have not been sworn or solemnly affirmed; (

e) any relevant scientific, technical or medical information and documents referred to in

section 4; and (

f) any other prescribed evidence or information. [ 57 ] PAPR , section 12(2) , prescribes certain matters as evidence or information under section 18(2) (

f) of PAPA :

(2) The following are prescribed as evidence and information that an adjudicator may consider, in addition to the records, representations, arguments and evidence listed in section 18(2)(

a) to (

e) of the Act, before making a decision: (

a) any relevant records submitted by an officer or an officer’s agent in relation to the contravention; (

b) any relevant records of the [Registrar of Motor Vehicles appointed under the TSA ] [1] in relation to the contravention;

(

c) in the case of a review respecting a contravention of

section 88, 88.01, 88.02, 88.03 or 88.1 of the Act , the results of any bodily substance analysis submitted in relation to the contravention. [ 58 ] The adjudicator may determine the weight to be given to any documents, records, representations or evidence: PAPA ,

section 18 . [ 59 ] These provisions clearly contemplate that information beyond what was available to, known by, or relied on by the NAP- Issuing officer, may be considered by an adjudicator. [ 60 ] In my view, there are no express provisions in the TSA , PAPA , PAPR or SAR , and no defensible

interpretation, that an adjudicator, when assessing whether to cancel a NAP based on the grounds in

section 4 , must ignore information only because the NAP- Issuing Officer may not have had or used it in issuing the NAP. Accordingly, the Adjudicator’s implicit

interpretation that the review is based on the information before the adjudicator at the time of the review was reasonable. (This is, of course, subject to decisions of this court which have found that relying on certain information, for example photographs that have not been adequately confirmed under section 17(2) of PAPR , can be problematic as it can lead to a procedurally unfair hearing: see, for example: Demars v Alberta (Director of SafeRoads) , 2022 ABKB 620 at paras 18-19 ; Wildman at para 35 ; Nichol v Alberta (Director of SafeRoads) , 2023 ABKB 72 at paras 7-20 ; Knull v Alberta (Director of SafeRoads) , 2023 ABKB 119 at para 51 ; Smit at paras 30-33 ). [ 61 ] The Adjudicator’s

interpretation of the information she could generally refer to in the Review was reasonable. b. Vehicle Seizure Details [ 62 ] Gaca’s argument is that the Adjudicator specifically erred by relying on the “Vehicle Seizure Details”

section of the APIS “Contravention Export” which refer to Gaca as both the owner and driver of the Honda. Gaca questions the source of the Vehicle Seizure Details and argues that it is not one of the types of information that can be considered by an adjudicator under PAPA , section 18(2) . [ 63 ] The Adjudicator did not specifically reference the Vehicle Seizure Details in the Decision. Gaca argues that she must have referred to the Vehicle Seizure Details because she refers to the vehicle as being listed as a “Silver Honda Civic” which are details not included in the Seizure Notice.

The description of the vehicle as a Silver Honda Civic is in the Vehicle Seizure Details, but it is also in the MOVES records which were also before the Adjudicator as records of the Registrar of Motor Vehicles. It is unclear which of the two potential sources of “Silver Honda Civic” information she was referring to.

For the sake of argument, I proceed on the basis that Gaca is correct that the Adjudicator reviewed and relied on the Vehicle Seizure Details in reaching the Decision. [ 64 ] Unfortunately, because the use of this information was not objected to or raised at the Review, the Adjudicator’s Decision does not specifically articulate the basis upon which she considered this information.

However, in my view, the Adjudicator reasonably interpreted the legislation and regulations to permit her to consider the Vehicle Seizure Details and was justified in doing so. [ 65 ] Section 18(2) of PAPA provides that an adjudicator may consider “the report of the officer who issued the NAP” ( PAPA , section 18(2) (c)), “any other relevant records and representations of the officer who issued the [NAP] or any other officer, including peace officer’s reports that have not been sworn or solemnly affirmed” ( PAPA , section 18(2) (d)), and “any relevant records submitted by an officer or an officer’s agent in relation to the contravention” ( PAPA , section 18(2) (

f) and PAPR

section 12 (a)). [ 66 ] The Vehicle Seizure Details are included in the Contravention Export, which includes the NAP-Issuing Officer’s Declaration of truth. Interpreting and treating a Declaration in APIS, in exactly this form, as being a form of signature approved by the Director under

section 14 of PAPR has been held to be reasonable: Wildman at paras 38-51 ; Knull at para 43 . [ 67 ] In this case, and having regard to the text of sections 12 , 13 , 14 , and 17(2) of PAPR , together with sections 14 , 18(2) and 32 of PAPA , it was reasonable for the Adjudicator to treat the Vehicle Seizure Details as information she could consider. It is not necessary or appropriate for me, in the circumstances of this case, to attempt to articulate which one or more of the sub-sections of PAPA , section 18(2) , the Vehicle Seizure Details did or could fall under. That is better done in a case where the similarities or differences between the sections 18(2) (c), (d), (f) (and PAPR

section 12 (a)) are explored by the adjudicator and the parties. [ 68 ] In conclusion, Gaca has not established that the Adjudicator’s consideration of information before her was unreasonable. 3. Was the Decision Unreasonable Because the Adjudicator Concluded Gaca Had Not Denied being the Driver of the Honda? [ 69 ] Gaca argues that the Adjudicator erred when she stated that Gaca “has not denied being the driver at the time of the collision...”. Gaca states that, by seeking a review of the NAP based on SAR , sections 4 (e)(

i) and 4 (f)(i), he was in fact denying that he operated the motor vehicle. A similar argument was made in Bettenson-Miller at para 6 . [ 70 ] In my view, even if the filing of a review request constitutes “denying” operation of the vehicle, Gaca takes the Adjudicator’s statement out of context. The Adjudicator’s reference to Gaca not denying that he was the Driver of the Honda at the time of the collision was in the context of her review of the evidence. The Adjudicator was intelligibly and justifiably simply referencing the fact that Gaca had not adduced any “evidence” for the Adjudicator to consider as contemplated and allowed under section 18(2) (

b) of PAPA . [ 71 ] It is reasonable for an adjudicator, as part of their review of information before them, to note whether the categories of information that an adjudicator may consider under section 18(2) exist or have been adduced. As the onus is on the recipient to establish a ground to cancel a NAP under PAPA , section 18(1) , this reasonably includes considering whether the recipient has adduced any evidence to support the recipient’s position. This is part and parcel of assessing evidence.

See Bettenson-Miller at para 14 . [ 72 ] Although the Adjudicator did not purport to draw an adverse inference from Gaca’s failure to adduce evidence, and so an adverse inference is not before me, courts have confirmed that adverse inferences may potentially be drawn by adjudicators in some

circumstances: Hastings v Alberta (Director of SafeRoads) , 2023 ABKB 400 at para 63 ; Smit at para 94 . This further supports the reasonableness of the Adjudicator’s comments in this case. [ 73 ] Gaca has not established the Adjudicator’s decision was unreasonable on this ground. 4. Was the Decision Unreasonable Because the Adjudicator Speculated that Gaca Was the Driver of the Honda? [ 74 ] Gaca argues that the Adjudicator erred in concluding that Gaca was driving the Honda based only on speculation that he was driving his own vehicle.

Gaca argues that the investigating officers involved in the arrest, the ASD breath demand and test never asserted in APIS that they had knowledge of the Witnesses’ descriptions of the Driver, or that Gaca matched those descriptions. Gaca argues the police provided “absolutely no information in their report on APIS about any identifying features or characteristics of the person they found in the hospital”.

He also argues that there is no evidence from the investigating police officers who became involved with Gaca that they spoke to the Witnesses either before or after the arrest, because the Witness Statements (and the Seizure Notice) were taken and overseen by a different officer. [ 75 ] The question is whether the Adjudicator’s finding that Gaca was the Driver of the Honda was reasonable. [ 76 ] As summarized by Justice Sidnell in Weinkauf v Alberta (Director of SafeRoads) , 2022 ABKB 752 at para 42 : [42] A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the adjudicator: Vavilov at paras 15, 83, and 85 .

Justice K Nixon described the hallmarks of the reasonableness test in Cornforth v Alberta (Director of SafeRoads) , 2022 ABQB 341 , at para 33 : A decision is unreasonable if there is a failure of rationality internal to the reasoning process, or if the decision is untenable in light of the relevant factual and legal constraints that bear on it: Vavilov at para 101 . The decision must be justified in relation to the relevant law and facts and must meaningfully account for the central issues and concerns raised by the parties: Vavilov at paras 105 and 127 .

The decision must be justifiable and justified: Vavilov at para 86 . [ 77 ] The Adjudicator based her conclusion on these facts or findings: (1) the vehicle identified in the Seizure Notice was linked to Gaca by Vehicle Identification Number and licence plate;

(2) Gaca did not adduce evidence denying he was the Driver; (3) the police located the Driver as Gaca based on the Witnesses’ descriptions of the Driver. [ 78 ] In my view, the Adjudicator’s reasons are intelligible, transparent, rational, justifiable and justified. There are no legal or factual constraints in the record that render the decision untenable. Rather, the opposite is true. [ 79 ] With respect to legal constraints, in the absence of arguments of procedural unfairness, egregious unfairness caused by police conduct, or a breach of the Director’s obligation to provide records pursuant to PAPA ,

section 12 , the Adjudicator had the jurisdiction to determine the weight to be given to any documents, records, representations, or evidence and is not bound by the rules respecting evidence in judicial proceedings: PAPA , sections 18(3) and (4) ; Korteweg v Alberta (Director of SafeRoads) , 2022 ABQB 236 at para 29 .

Further, as a Review and judicial review is not a criminal matter, the question of the identity of the Driver is determined on the balance of probabilities and it will not usually be sufficient for a recipient to rely on alternate theories, small gaps in the evidence, or minor imperfections: Millar at para 37 ; Bettenson-Miller at para 9 . [ 80 ] With respect to factual record, as noted by Justice Kubik in Bettenson-Miller , at para 12 , in the absence of direct evidence from Gaca that he was not operating the vehicle, the Adjudicator could only consider the other evidence and draw inferences from it.

See also Smit at paras 41-45 . [ 81 ] The factual record included the Contravention Export, which was declared to be true by the NAP-Issuing Officer, and which specifically noted Gaca as both the Driver and registered owner of the Honda, the Seizure Notice (signed by a police officer) indicated that the Honda was the vehicle seized at the scene of the collision, the Police Narrative clearly includes information obtained from the Witnesses, and the Police Narrative expressly states that the police searched the area and found “the male” (namely Gaca), which was immediately following, and a reference to “the male” that “got out of his vehicle and fled southbound on 45 th ST SE”.

Without any contrary evidence, the evidentiary record reasonably permitted the logical inference that the police identified and found Gaca at the South Health Campus based on information provided by the Witnesses, whether directly or indirectly. Further, without any contrary evidence, the Adjudicator reasonably concluded that Gaca was the Driver and had not discharged his burden to show otherwise. [ 82 ] Gaca has not established that the Adjudicator’s finding that Gaca was the Driver of the Honda was unreasonable. 5. Conclusion re

Section 88.1(1)(

a) of the TSA [ 83 ] In

summary, Gaca has failed to establish that the Adjudicator’s decision to confirm the NAP issued pursuant to

section 88.1(1) (

a) of the TSA was unreasonable. B. Was the Decision to Confirm the NAP Pursuant to

Section 88.1(1)(

b) of the TSA Reasonable? [ 84 ] To be successful, Gaca must establish that the Adjudicator’s decision to confirm the NAP was unreasonable under both

section 88.1(1)(

a) and 88.1(1)(b). Since I have held that the Adjudicator’s decision to confirm the NAP under

section 88.1(1) (

a) of the TSA was reasonable, I need not address whether the decision to confirm the NAP pursuant to

section 88.1(1) (

b) of the TSA was also reasonable.

[ 85 ] In any event, Gaca abandoned his argument based on SAR ,

section 4 (f)(iii). Further, Gaca’s argument that the NAP should be cancelled pursuant to SAR ,

section 4 (f)(

i) is based on the same arguments as above under SAR ,

section 4 (e)(

i) and I have already held that Adjudicator’s Decision in that respect was reasonable. Finally, Gaca’s argument in respect of SAR ,

section 4 (f)(iv), was only raised before the Adjudicator as a corollary to his argument under SAR ,

section 4 (f)(

i) and he did not make any argument before me that the Adjudicator’s Decision in respect of SAR ,

section 4 (f)(iv) was otherwise unreasonable. [ 86 ] Accordingly, Gaca has failed to establish that the Adjudicator’s decision to confirm the NAP issued pursuant to

section 88.1(1) (

b) was unreasonable. VII. Conclusion [ 87 ] The application for judicial review is dismissed and the Adjudicator’s confirmation of the NAP remains. [ 88 ] There shall be no costs of this application. Heard on the 25 th day of May, 2023. Dated at the City of Calgary, Alberta this 28 th day of September. M.A. Marion J.C.K.B.A. Appearances: Ian Savage for the Applicant Zachary Wilson for the Respondent