LaGrange v Alberta (Director of SafeRoads), 2023 ABKB 163

Court of King’s Bench of Alberta Citation: LaGrange v Alberta (Director of SafeRoads), 2023 ABKB 163 Date: 20230321 Docket: 2101 15796 Registry: Calgary Between: Tanner LaGrange Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice E.J.

Sidnell _______________________________________________________ Judicial Review from A Baker (the Adjudicator) Dated November 5, 2021 (the Decision) Lagrange (Re) , 2021 ABSRA 1149 [ 1 ] On October 8, 2021, the applicant, Tanner LaGrange, was issued a notice of administrative penalty (the NAP) after an incident involving a single-vehicle rollover on October 3, 2010 (the incident). The NAP cited an infraction under s 88.1(1)(

a) of the Traffic Safety Act , RSA 2000, c T-6 ( TSA ). That

section of the TSA states, in part:

88.1(1) ... 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; . . .

(2) The peace officer shall issue a notice of administrative penalty to the driver, and, in the case of a driver who holds an operator’s licence, require the driver to surrender to the peace officer the operator’s licence. . . .

(5) The peace officer shall advise the driver of the driver’s right to voluntarily undergo the applicable test, analysis or evaluation referred to in

section 88.11(2). [ 2 ] The reference in s 88.1(5) of the TSA to an applicable test, analysis or evaluation referred to in s 88.11(2), is a test which would constitute an appeal. The relevant portions of that subsection are as follows: 88.11(2) Notwithstanding that a notice of administrative penalty has been issued to a driver under

section ... 88.1, where a driver requests an appeal of that notice of administrative penalty and voluntarily attends immediately at a place designated by the peace officer and accompanies the peace officer to that place, if necessary, the driver shall immediately . . . (

f) where the basis, in whole or part, for issuing the notice of administrative penalty was reasonable grounds to believe there was alcohol in the driver’s body, and an initial test, evaluation or analysis referred to in clause (a), (b), (

d) or (

e) was not performed on the driver, provide a sample of breath that in the opinion of the peace officer is suitable for analysis on either an approved screening device or approved instrument, at the discretion of the officer, [ 3 ] No initial approved screening device (ASD) demand was made of Mr. LaGrange. Further, he was not given the opportunity after the NAP was issued, five days after the incident, to a roadside appeal. The Director of SafeRoads Alberta (the Director) relies on s 88.11(8)(

d) of the TSA for a roadside appeal exemption: 88.11(8) No person may seek a roadside appeal under this

section of a notice of administrative penalty . . . (

d) issued based on reasonable grounds that were formed after the time of the contravention and where in the opinion of the peace officer a roadside appeal could no longer provide any evidence of the blood alcohol or blood drug concentration of the recipient at the time of driving. [ 4 ] The SafeRoads regime legislation includes portions of the TSA , the SafeRoads Alberta Regulation , AR 224/2020 ( SAR ) and the Provincial Administrative Penalties Act , SA 2020, c P-30.8 ( PAPA ). The SafeRoads regime legislation uses the term “recipient” for a person who has received a notice of administrative penalty.

Except where quoting the legislation or the Adjudicator, I have used the term “driver” for “recipient”. [ 5 ] Mr. LaGrange submits that: (

a) His ability to operate his vehicle at the time of the incident was not impaired to any degree by alcohol, a drug, or a combination thereof. Further, the Adjudicator’s reasons for finding that he was impaired were not reasonable on this point. As a result, the NAP should have been cancelled pursuant to s 4(e)(iv) of the SAR ; and (

b) Cst. Gervais (the Attending Officer) did not advise Mr. LaGrange, in writing, of the right to a roadside appeal under s 88.11 of the TSA and he was unaware of his right to an appeal. Further, in this case, s 88.11(8)(

d) of the TSA does not provide an exemption of the requirement to advise of a right to appeal, in writing. As a result, the NAP should have been cancelled pursuant to s 4(e)(

v) of the SAR . Standard of Review [ 6 ] Mr. LaGrange and the Director agree that the standard of review to be applied to the Decision is the standard of reasonableness: PAPA s 24(3). [ 7 ] In Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , the Supreme Court of Canada provided direction on the role of reviewing courts on judicial review and said, at para 83, with italics in the original: It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome.

The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. The Federal Court of Appeal noted in Delios v.

Canada ... that, “as reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did” ... Instead, the reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led —

was unreasonable. [ 8 ] The Court in Vavilov , at para 91 , also cautioned reviewing courts not to apply a standard of perfection to the reasons given by the administrative tribunal: A reviewing court must bear in mind that the written reasons given by an administrative body must not be assessed against a standard of perfection. That the reasons given for a decision do “not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred” is not on its own a basis to set the decision aside ...

The review of an administrative decision can be divorced neither from the institutional context in which the decision was made nor from the history of the proceedings. Issues [ 9 ] The issues on this judicial review are as follows: (

a) Issue 1: Was the Decision unreasonable in that the Adjudicator found Mr. LaGrange’s ability to operate his vehicle at the time of the incident was impaired and did not cancel the NAP pursuant to s 4(e)(iv) of the SAR ? (

b) Issue 2: Was the Decision unreasonable in that the Adjudicator found that s 88.11(8)(

d) of the TSA applied and did not cancel the NAP pursuant to s 4(e)(

v) of the SAR ? Issue 1: Was the Decision unreasonable in that the Adjudicator found Mr. LaGrange’s ability to operate his vehicle at the time of the incident was impaired and did not cancel the NAP pursuant to s 4(e)(iv) of the SAR ? [ 10 ] The Adjudicator was faced with contradictory evidence from the Attending Officer and Mr. LaGrange, which I have summarized below: (

a) From the Attending Officer as entered into the Administrative Penalty Information System (APIS), including the “Police Narrative” which consists of the appended “General Report”, which I collectively refer to as the “Attending Officer’s Report”: i. On October 3, 2012, at 23:56, the Attending Officer received a call regarding the incident. ii. He observed a driver in the vehicle, determined later to be Mr. LaGrange, hanging from his seatbelt. The Attending Officer tried to speak with him, and Mr. LaGrange just moaned. The Attending Officer noted an odour of alcohol emanating from Mr. LaGrange. iii.

The Attending Officer noted that the road was straight and dry. iv. The individuals who had called 911 told the Attending Officer that the driver has spoken briefly and told them he was alone in the vehicle. v. Mr. LaGrange was removed from the vehicle and placed in an ambulance. When Mr. LaGrange had been in the ambulance for approximately five minutes, the Attending Officer opened the door to the ambulance and noted in the Attending Officer’s Report that there was a “noticeable odour of alcohol”. vi. While searching the ditch, one of the fire personnel located a cellphone still opened to a text message.

The messages were sent shortly before the 911 call was received. According to the Attending Officer’s report, the text message conversation was “about visiting a male in High River and that the friend thought he was too drunk to drive, where LAGRANGE stated he was fine.” vii. While Mr. LaGrange was transferred from the attending ambulance to the STARS air ambulance, the Attending Officer moved close to Mr. LaGrange to speak to him and again smelled alcohol and noted in the Attending Officer’s Report that when he was moaning and exhaling it was “very strong”. viii.

The Attending Officer noted in the Attending Officer’s Report that the STARS crew mentioned to him “something about [Mr. LaGrange] being quite intoxicated”. ix. To explain why no roadside appeal information was given to Mr. LaGrange, the Attending Officer noted in the Attending Officer’s Report: “He was not fully conscious and was being taken by STARS air ambulance so no ASD was used”. x. The Attending Officer spoke to Mr. LaGrange on October 6, 2021 and advised him of his observations. Mr. LaGrange told the Attending Officer that “he was not drinking” and that “he crashed cause he swerved to miss a deer”.

The Attending Officer advised Mr. LaGrange that he would be proceeding with the administrative penalty. xi. On October 8, 2021, the Attending Officer called Mr. LaGrange and advised him that he had his cellphone and was coming to meet him.

(

b) From Mr. LaGrange, who gave evidence at the hearing before the Adjudicator: i. There was a deer in the road and Mr. LaGrange swerved to the right to avoid the deer and he “tried to over-correct back to the left to get back into the proper lane, and that’s when [his] vehicle flipped and rolled”. ii. Mr. LaGrange was not fully engaged in driving and was looking at his phone moments before he saw the deer because he was going to send a message. He was not looking at the road. He was looking to his right, near the middle console at his phone. iii.

When he looked up the deer was about three car-lengths, or 15 to 20 feet, in front of him. He said he had just enough time to steer his vehicle out of the way of the deer and not hit it. He said the deer was in his lane on the right side facing the left-hand side of the road. Mr. LaGrange said he “swerved to, to the right of the animal towards its rear end as not to hit it, and then when I realized my mistake, I tried to over-correct and go back towards the left after I went around it”. iv. Mr.

LaGrange said that he did not hit the deer and that as a consequence of over correcting his vehicle flipped over and started rolling into the ditch on the left-hand side of the road. v. Mr. LaGrange said he had no memory of his vehicle resting on its passenger-side or whether he lost consciousness during the incident. He had no memory of interacting with any individuals, including emergency services personnel, after the incident. vi. Mr. LaGrange said he had not been drinking that evening but had consumed one glass of wine earlier in the day around lunch time.

He also said that when the Attending Officer asked him about drinking on the day of the incident, he had told the Attending Officer that he had not been drinking. Mr. LaGrange admitted that his answer to the Attending Officer was different than the answer he gave at the hearing before the Adjudicator. He explained that he told the Attending Officer he had no alcohol because a friend had coached him to say that. vii. Regarding his cell phone, Mr. LaGrange said that the phone would only stay open for 30 seconds before going to a locked screen.

Although there was some discussion about text messages, the text messages themselves were not evidence before the Adjudicator. Mr. LaGrange said that he communicated with his friend about visiting and asked for the code to enter his residence and that was provided at 11:54, which, from the record, I understand to mean 23:54. Mr. LaGrange said that 11:54 was approximately the time that he was involved in the incident. He also said that he never responded to his friend’s message. viii. Mr.

LaGrange denied sending any messages to anyone suggesting that he was too drunk to drive. [ 11 ] The standard of reasonableness applies to findings of fact. On judicial review, it is not the role of this Court to substitute its determination. Rather, this Court must assess whether the Decision as a whole, and the rationale for it, is transparent, intelligible, and justified. A reasonable decision is one that is based on an internally coherent and rational chain of analysis, and which is justified in relation to the facts and law before the adjudicator: Vavilov at paras 15, 83, and 85 .

The hallmarks of an unreasonable decision were described by Justice K Nixon 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 . [ 12 ] At para 16 of the Decision, the Adjudicator concluded: On the evidence before me, I am satisfied that the Recipient was involved in a single vehicle collision on an otherwise dry, straight roadway, that he had a strong odour of liquor on his breath due to alcohol consumption, and that he exchanged text messages regarding his impairment prior to the collision, including that he was “too drunk to drive”. [ 13 ] The Adjudicator preferred the evidence of the Attending Officer and found his evidence more credible.

In arriving at the conclusion at para 16 of the Decision, the Adjudicator undertook a comprehensive review of the evidence and provided detailed reasons for preferring the Attending Officer’s evidence over Mr. LaGrange’s evidence. Subsection 18(3) of the PAPA gives an adjudicator the ability to determine the weight to be given to any documents, records, representations or evidence. Further, in conducting a review an adjudicator is not bound by the rules respecting evidence applicable to judicial proceedings. [ 14 ] I find that the Decision relating to the impairment of Mr.

LaGrange was not unreasonable in the context of all of the evidence before the Adjudicator. I further find that the Adjudicator’s reasons were justified in relation to the relevant law and facts and that the Adjudicator meaningfully accounted for the central issues and concerns raised by the parties. Issue 2: Was the Decision unreasonable in that the Adjudicator found that s 88.11(8)(

d) of the TSA applied and did not cancel the NAP pursuant to s 4(e)(

v) of the SAR ? [ 15 ] The Adjudicator noted that the ground for cancellation of a notice of administrative penalty under s 4(e)(

v) of the SAR arises when “the officer did not advise the recipient in writing of the right to a roadside appeal under

section 88.11 of the [ TSA ] and the recipient was unaware of that right”.

[ 16 ] The Attending Officer did not make an initial ASD demand at the scene of the incident and did not deliver the NAP to Mr. LaGrange until five days after the incident. The Attending Officer noted on the NAP that Mr. LaGrange was not provided with information on the right to a second test, but he served Mr. LaGrange with a copy of the NAP. The Attending Officer also wrote in the Attending Officer’s Report that “he showed [Mr. LaGrange] the appeal write up on the rear of his copy and he stated that he understood”. [ 17 ] Subsection 88.11(8) (

d) of the TSA creates an exemption to the requirement that the driver be provided with notice of a roadside appeal. The Adjudicator found the s 88.11(8)(

d) exemption provision applied and, as a result, Mr. LaGrange did not have to be notified in writing of his right of a roadside appeal. At para 21 of the Decision, the Adjudicator said: In determining whether

Section 88.11(8) (

d) of the TSA applies, I considered the evidence of Cst. Gervais. In particular, the evidence is that the Recipient was involved in a single vehicle rollover in which he had blood on his face and hands, an odour of alcohol, he was moaning and in and out of consciousness, and needed to be airlifted by STARS ambulance. Cst. Gervais attempted to ask the Recipient questions while at roadside, but it was noted that he continued moaning, and STARS departed the scene shortly after. Cst. Gervais noted in the NAP and SafeRoads Portal that the Recipient was “not fully conscious” and “flown out by STARS” as reasoning for why the roadside appeal information was not provided to the Recipient.

Interpretation of s 88.11(8)(

d) of the TSA [ 18 ] Mr. LaGrange and the Director agree that there are two elements referred to in the s 88.11(8)(

d) exemption provision but disagree as to the proper

interpretation of those elements. [ 19 ] Mr LaGrange submits that these two elements are pre-conditions and that the Director must have evidence that they were both fulfilled. The Director submits that this Court should not be overly formulistic in its

interpretation and should apply a purposive

interpretation which is in line the with “rough and ready” SafeRoads regime. Was the NAP “issued based on reasonable grounds that were formed after the time of the contravention”?

Interpretation of “contravention” in s 88.11(8)(

d) of the TSA [ 20 ] Mr. LaGrange asserts that the word “contravention”, as used in s 88.11(8)(

d) of the TSA , cannot refer to only the actions relating to the impaired driving contravention. Mr. LaGrange submits that, if “contravention” was so restricted, then 99% of cases would fall into this category and that

interpretation would make no sense. Mr. LaGrange submits that there is no “contravention” until the peace officer believes that there has been a contravention. Presumably, the peace officer can only have such a belief where the peace officer has reasonable grounds for believing that a contravention has occurred. [ 21 ] Mr. LaGrange’s proposed

interpretation is not compatible with the wording of s 88.11(8)(

d) which states, in part, with emphasis added, that no person may seek a roadside appeal of a notice of administrative penalty “issued based on reasonable grounds that were formed after the time of the contravention ”. The “contravention” must occur first, followed by the peace officer’s reasonable grounds. If a “contravention” only materialized after a peace office’s reasonable grounds are established, this

interpretation would lead to an absurd result because the reasonable grounds could never be formed after the time of the contravention and the exemption clause would never apply. [ 22 ] Neither party referred to the definition of “contravention” in s 1(1) of the TSA , which states: (h.1) “contravention” means a contravention under this Act; [ 23 ] Both the definition of “contravention” and the context in which it is used in the TSA lead me to the conclusion that, in s 88.11(8)(d), that word means the action by which a driver contravenes the TSA .

Further, I find that the phrase “after the time of the contravention” in that subsection means after the contravening action is concluded. When were the reasonable grounds of the Attending Officer formed? [ 24 ] The Adjudicator did not accept Mr. LaGrange’s submission that the Attending Officer’s reasonable grounds were formed at the scene of the incident on October 3, 2021. The Adjudicator found that the Attending Officer was still conducting his investigation on October 6, 2021, and as such his grounds were not formed until he had a telephone conversation with Mr. LaGrange on that day.

This finding of the Adjudicator satisfied the first element of the s 88.11(8)(

d) exemption provision because it showed that the Attending Officer’s reasonable grounds were formed after the time of the contravention. [ 25 ] Mr. LaGrange submits that the Adjudicator’s findings were unreasonable. He notes that the Attending Officer relied on his observations at the scene for his reasonable grounds, which are reflected in the Attending Officer’s Report. Further, there is nothing in the Attending Officer’s Report relating to any information garnered from the telephone call which led to the Attending Officer’s stated reasonable grounds. Mr.

LaGrange notes that the Attending Officer provided no explanation for the delay of three days in contacting Mr. LaGrange and advising that he would be issuing the NAP. [ 26 ] The Adjudicator noted that, pursuant to s 18(1) of the PAPA , Mr. LaGrange had the burden of proof on the review before the Adjudicator. Mr.

LaGrange states that the Adjudicator’s comment, at para 22, that he bore the burden of establishing that the Attending Officer had no reason to the delay the investigation is an impossible burden because he cannot know what the Attending Officer thought and had no opportunity to cross-examine the Attending Officer. The burden of proof is set out in the legislation and Mr. LaGrange’s onus does not change even though he has no memory of the incident and no ability to challenge the evidence submitted by the Attending

Officer. The purpose of administrative schemes designed to address the dangers of impaired driving, and the effect they have on individual rights in the pursuit of enhancing community protection, has been canvassed in other decisions: see, for example, Isley v Alberta (Director of SafeRoads) , 2022 ABQB 249 , at paras 2 to 8 . [ 27 ] The Adjudicator’s finding that the Attending Officer was investigating the incident when he called Mr. LaGrange on October 6, 2021 was not unreasonable in the context of all of the evidence before the Adjudicator.

I find that the Adjudicator’s reasons were justified in relation to the relevant law and facts. Further, I find that the Adjudicator meaningfully accounted for the central issues and concerns raised by the parties. The Adjudicator’s determination that the Attending Officer’s reasonable grounds were formed on October 6, 2021, three days after the incident, was not unreasonable. Conclusion on the first element of the s 88.11(8)(

d) exemption provision [ 28 ] The contravention occurred on the evening of October 3, 2021. The Attending Officer issued the NAP on October 8, 2021, based on reasonable grounds that were formed after the time of the contravention. As a result, the first element of the s 88.11(8)(

d) exemption provision is met. Was the NAP based on “the opinion of the peace officer [that] a roadside appeal could no longer provide any evidence of the blood alcohol or blood drug concentration of the recipient at the time of driving”? [ 29 ] Mr. LaGrange submits that when considering whether the peace officer had the necessary “opinion” for the second element of the s 88.11(8)(

d) exemption provision there must be evidence of that opinion. In that regard, Mr. LaGrange states that, at a minimum, the Attending Officer was required to have responded to the NAP question, which explores whether the driver was provided with information on the right to a second test, and if not, why not, with words expressly stating that the Attending Officer was of the opinion a roadside appeal could no longer provide any evidence. [ 30 ] Here, the Attending Officer responded to the question on the NAP about why no information on the right to a second test was provided with “Flown out by STARS air ambulance”.

Mr. LaGrange submits this is not the opinion required under the second element of s 88.11(8)(

d) of the TSA . [ 31 ] In the alternative, Mr. LaGrange submits that if express words relating to the Attending Officer’s opinion are not required, then the Adjudicator was required to make an inference that the Attending Officer held that opinion. Mr. LaGrange points out there is no such inference and that the Adjudicator’s opinion of the situation is not adequate to pass the second element. At para 25 of the Decision, the Adjudicator said: ... I am satisfied that a roadside appeal could no longer provide any evidence of the blood alcohol concentration of [Mr. LaGrange] at the time of driving. [ 32 ] Mr. LaGrange provided no authority for this proposed

interpretation of the requirement of an opinion of the peace officer under the s 88.11(8)(

d) exemption provision, although there is some similar language in s 320.27 and 320.28 of the Criminal Code , RSC 1985, c C-46 . [ 33 ] To provide context for what is required to satisfy the opinion required for the second element, Mr. LaGrange relies on Goodwin v British Columbia (Superintendent of Motor Vehicles) , 2015 SCC 46 , where the Supreme Court of Canada considered a version of the British Columbia administrative roadside penalty scheme, referred to as the ARP scheme, which was enacted in 2010.

The British Columbia ARP scheme was amended in 2012 to provide, among other things, a right to a second ASD test, as an appeal of the initial ASD test, and the right to be told of the availability of the second test. The amended legislation was not before the Court in Goodwin , however, at paras 84 and 85 , Karakatsanis J said: Indeed, subsequent amendments to the ARP scheme enhancing the scope for review of roadside screenings and prohibitions demonstrate that such measures can feasibly be put into place ...

Most significantly, the amendments also require the Superintendent to be satisfied that the driver was advised of the right to request a second analysis, that the second analysis was performed with a different ASD, that the prohibition was issued on the basis of the lower of the two results, and that the result of the ASD analysis was reliable ... The constitutionality of the amended ARP scheme is not before this Court.

However, the enhanced review measures in the amended scheme speak to the less-impairing legislative options available to the Province. ... [ 34 ] The SafeRoads regime is similar to the amended ARP scheme as there is typically an initial ASD test and an option for a roadside appeal by taking a second ASD test on a different device. [ 35 ] Mr. LaGrange submits that the roadside appeal, implemented by a second ASD test, allows the SafeRoads regime to pass constitutional muster.

As a result, the roadside appeal is crucial to the legislative framework and a peace officer’s opinion, that a roadside appeal could no longer provide any evidence of the blood alcohol, cannot be assumed or accepted without adequate evidence. [ 36 ] The Director submits that the s 88.11(8)(

d) exemption provision does not stipulate that any particular evidence is required of the peace officer. There are references throughout s 88.11 to the “opinion of the peace officer” and there is no authority for the proposition that there is any particular evidence, wording or formulation required to demonstrate this opinion. [ 37 ] Further, the Director asserts that adjudicators performing reviews under the SafeRoads regime are entitled to use basic common sense, everyday experience, and intelligence to make inferences in relation to the issues they decide. The Director relies on Gonzalez v Alberta , 2001 ABQB 757 , at paras 100 and 103 , where Slatter J (as he then was) said:

It does not appear that the Board is established with any particular expertise in mind. In the absence of specific evidence to the contrary, it seems safe to assume that they are members of the public who are called on to bring basic common sense and intelligence to the issues that they face. Like most Albertans, they are probably familiar with the driving of motor vehicles and the use of public highways.

By reason of their duties, they perhaps have acquired a greater understanding of impaired alcohol offences, the taking and measurement of breath samples, and similar matters, beyond the expertise and experience of the average citizen. On these issues the Board would have no particular expertise beyond that of the reviewing Court. . . . With respect to findings of fact relating to alcohol-related driving, I note the absence of any right of appeal from decisions of the Board.

The words of the statute calling for the Board to be satisfied on these issues shows that this was intended to be part of their core jurisdiction. This is precisely the type of issues that lay persons on the Board can resolve using common sense and everyday experience. Given the wording of the Act, and the specific mandate given to the Board, I have concluded that the proper standard of review of decisions of the Board with respect to matters of fact is that of patent unreasonableness. [ 38 ] In Gonzalez , Slatter J dealt with a constitutional challenge to a previous administrative licence suspension scheme.

As can be seen in the paragraphs quoted above, Slatter J addressed the background of the decision-making individuals and referred to the legislation expressly requiring the Board to be satisfied. The legislation before Slatter J and this case is different and the Director provided no information about the background of the adjudicators. Further, Slatter J made these comments in considering the standard of review. That is not in issue in this case.

Rather than focusing on what adjudicators can rely on, it is better for me to focus on whether the decision was unreasonable and assess it in accordance with that standard of review. [ 39 ] The Director asserts that a purposive reading of the s 88.11(8)(

d) exemption provision would not require an unreliable second roadside test and, therefore, a roadside appeal is only available where a proper sample can be obtained. The issue here, however, is what is required to show the opinion of the peace officer that a roadside appeal can no longer provide any evidence of the blood alcohol or blood drug concentration of the driver at the time of driving. [ 40 ] The NAP was issued under s 88.1 and s 88.11(2)(

f) of the TSA applies. Issuance of notice of administrative penalty is a prerequisite in s 88.11(2)(

f) by virtue of its opening words, emphasis added: 88.11(2) Notwithstanding that a notice of administrative penalty has been issued to a driver under

section ... 88.1 ... [ 41 ] In this case, the NAP was not issued to Mr. LaGrange on October 3, 2021, when the incident occurred, rather he was told about it on October 6, 2021, and it was issued on October 8, 2021. As a result, under s 88.11(2)(

f) of the TSA , Mr. LaGrange could not request a roadside appeal until October 8, 2021. [ 42 ] Mr. LaGrange points to the lack of any evidence as to why the Attending Officer waited several days to serve the NAP. Mr. LaGrange submits that it would have been possible for the Attending Officer to learn of the location where he was taken by air ambulance. Had he done so, Mr. LaGrange submits that the Attending Officer could attended the hospital and determined whether he was capable of being issued the NAP and informed of his right to an appeal by way of a second test. I note, however, that Mr.

LaGrange provided no evidence of where he was taken for medical treatment or how proximate it was to the scene of the incident. [ 43 ] I am of the view that the determining what evidence is required in best analysed in the manner used by the Supreme Court of Canada in Wilson v British Columbia (Superintendent of Motor Vehicles) , 2015 SCC 47 . In Wilson , the

interpretation of s 215.41(3.1) of the Motor Vehicle Act , RSBC 1996, c 318 ( MVA ) was at issue and it contained two elements: (1) an ASD demand resulting in a warn or fail; and (2) the officer having reasonable grounds to believe, as a result of the ASD reading, that the driver’s ability to drive was affected by alcohol. Mr. Wilson submitted that the ASD result alone could not provide the officer with the reasonable grounds required for the s 215.41(3.1) infraction and that the officer was required to have other confirmatory evidence: Wilson , at para 12 . Moldaver J found that when read in light of its text, context and legislative objective, there was only one reasonable

interpretation of the provision, which was that adopted by the Superintendent: Wilson , at para 25 . Text [ 44 ] A plain reading of the text of s 88.11(d)(8) exemption provision requires two elements to be satisfied to trigger an exemption of the right to a roadside appeal: (1) the notice of administrative penalty was issued based on grounds formed after the contravention; and (2) the opinion of the peace officer was that a roadside appeal could no longer provide evidence.

Focusing on the second element, the provision does not require any particular words to be used by the peace officer or any specific evidence to be submitted. It is not appropriate to read-in words that are not in the statute: Wilson , at para 27 . [ 45 ] The exemption permitted by s 88.11(d)(8) of the TSA abrogates the driver’s right to a roadside appeal, which right arises on issue of a notice of administrative penalty. To rely on this exemption, there must be some evidence that the requirements have been met. On review, an adjudicator could find that this second element of the s 88.11(8)(

d) exemption provision is satisfied on direct evidence of the peace officer’s opinion or by inferring from the evidence that the peace officer’s opinion was that a roadside appeal could no longer provide evidence. Context [ 46 ] Similar to the ARP scheme at issue in Wilson , this case arises in the context of the SafeRoads regime where the grounds for cancellation of a notice of administrative penalty are limited and prescribed. [ 47 ] Subsection 4 (e)(

v) of the SAR provides a ground for cancellation of a notice of administrative penalty where a peace officer did not advise the driver “in writing of the right to a roadside appeal under

section 88.11 of the Act and the recipient was unaware of that right”. The Director submits that the s 88.11(8)(

d) exemption provision applies to override the cancellation ground and states in its brief:

The core issue to be determined is whether the Adjudicator’s

interpretation of 88.11(8)(

d) of the TSA was unreasonable. The Adjudicator determined that Cst. Gervais formed the basis for the NAP after the Applicant’s contravention of the TSA had completed. Therefore, the Applicant could not rely on 4(e)(

v) of SAR as a ground to cancel the NAP. [ 48 ] The Director asserts that where there is no right to a roadside appeal under s 88.11 of the TSA then a peace officer would not be obliged to advise the driver “in writing of the right to a roadside appeal under

section 88.11” as it would not exist. In this case, the Director submits that the s 4(e)(

v) cancellation ground cannot be relied upon because the right to voluntarily undertake a roadside appeal under s 88.11(2)(

f) of the TSA was the subject of a s 88.11(8)(

d) exemption, and therefore there was no roadside appeal of which Mr. LaGrange was to be informed. [ 49 ] The burden of proof is on the person requesting a review by an adjudicator: s 18(1) of the PAPA . However, that does not mean the elements of s 88.11(8)(

d) of the TSA do not have to be shown to exist before it can be relied upon by the Director. In Wilson , the legislative perspective was different because the Court found the Superintendent had no grounds to revoke a notice based on Mr. Wilson’s

interpretation of the provision in issue: at para 30. Here, the exemption provision, where applicable, abrogates a ground for cancellation: s 4(e)(

v) of the SAR . As result, the Adjudicator was asked to find that the ground for cancellation set out in s 4(e)(

v) of the SAR did not apply in Mr. LaGrange’s case and for this reason each element of the s 88.11(8)(

d) exemption provision must be shown to exist. [ 50 ] Where the s 88.11(8)(

d) exemption provision is relied on to abrogate the driver’s right to a roadside appeal, on review, an adjudicator must make a determination as to whether the first and second elements of that provision are satisfied. In relation to the second element, an adjudicator must be satisfied that the peace officer formed the opinion that a roadside appeal could no longer provide any evidence. Legislative objective [ 51 ] The SafeRoads regime and the British Columbia ARP scheme share common legislative public safety purpose.

In Wilson , at para 37 , Moldaver J said: Roadside driving prohibitions are an important tool for confronting and reducing the devastating effects of impaired driving. Courts have repeatedly held that driving prohibitions serve the twin purposes of increasing highway safety and deterring impaired driving ... [ 52 ] The purpose of the PAPA is set out in s 2, and includes, to: (

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

d) resolve disputes in relation to administrative penalties in an expedient manner consistent with the procedural protections mandated by this Act [ 53 ] As noted above, the burden of proof is on the person requesting a review by an adjudicator but when a driver’s rights are abrogated by s 88.11(8)(

d) of the TSA , the adjudicator must consider whether the elements of that provision have been satisfied. To achieve a consistent framework and to resolve disputes in an expedient manner, the elements set out in the s 88.11(8)(

d) exemption provision must be found to exist where it is relied upon. [ 54 ] The

interpretation of the s 88.11(8)(

d) exemption provision from the text, context, and legislative objective perspectives requires a consideration of whether both of the elements contained in that provision have been shown to be met. Application of the s 88.11(8)(

d) exemption provision in this case [ 55 ] At paras 25 and 26 of the Decision, the Adjudicator said: For these reasons, I find that Cst. Gervais’ grounds were not formed until he determined to issue the NAP following his conversation with the Recipient on October 6. As such, given this timeframe, I am satisfied that a roadside appeal could no longer provide any evidence of the blood alcohol concentration of the Recipient at the time of driving. In considering the totality of the evidence before me, I am satisfied that

Section 88.11(8) (

d) of the TSA does apply in these circumstances, and the Recipient was not entitled to a roadside appeal under

Section 88.11 of the TSA . The Recipient has not established this ground to cancel. [ 56 ] The test applied by the Adjudicator was not reasonable given that the s 88.11(8)(

d) exemption provision was relied on to abrogate the s 4(e)(

v) cancellation ground. That provision has two elements. The first element relating to when the reasonable grounds were formed was met. However, the Adjudicator did not ask the correct question in relation to the second element. The second element relates to whether the peace officer formed the opinion that the roadside appeal could no longer provide any evidence of the blood alcohol concentration of the driver at the time of driving. The second element does not probe whether an adjudicator is satisfied a roadside appeal could no longer provide any evidence.

The question to be asked was whether the Adjudicator was satisfied that the Attending Officer was of the opinion that the roadside appeal could no longer provide any evidence. [ 57 ] By applying the wrong

interpretation to the s 88.11(8)(

d) exemption provision, I find that the Adjudicator could not properly consider whether the NAP should be cancelled pursuant to s 4(e)(

v) of the SAR . By not making a determination on the second element of the s 88.11(8)(

d) exemption provision, the Adjudicator’s decision was unreasonable.

Conclusion [ 58 ] I have found the following: (

a) Issue 1: The Decision was not unreasonable in that the Adjudicator found Mr. LaGrange’s ability to operate his vehicle at the time of the incident was impaired and did not cancel the NAP pursuant to s 4(e)(iv) of the SAR . (

b) Issue 2: The Decision was unreasonable in that the Adjudicator found that s 88.11(8)(

d) of the TSA applied and did not cancel the NAP pursuant to s 4(e)(

v) of the SAR . [ 59 ] Given my finding that the Adjudicator incorrectly interpreted the s 88.11(8)(

d) exemption provision by failing to ask the appropriate question in relation to the second element of that provision, this matter should be remitted for a new review by a different adjudicator. A new adjudicator can consider the issues with the benefit of these reasons relating to the

interpretation of the s 88.11(8)(

d) exemption provision and determine the weight to be given to any documents, records, representations or evidence in undertaking that review. Heard on the 7 th day of March, 2023. Dated at the City of Calgary, Alberta this 21 st day of March, 2023. E.J. Sidnell J.C.K.B.A. Appearances: M Ian Savage for the Applicant Pascal F Visentin for the Respondent