Duchesne v Alberta (Director of SafeRoads), 2023 ABKB 185

Court of King’s Bench of Alberta Citation: Duchesne v Alberta (Director of SafeRoads), 2023 ABKB 185 Date: 20230329 Docket: 2103 03039 Registry: Edmonton Between: Todd Duchesne Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice Bonnie L. Bokenfohr _______________________________________________________ Judicial Review from the Decision of Adjudicator K. Dorosh Dated the 15 th day of March, 2021 ( 2021 ABSRA 158 ) I.

OVERVIEW [ 1 ] This is an application for judicial review of a decision by a SafeRoads Adjudicator to confirm a Notice of Administrative Penalty (NAP) issued to the Applicant Todd Duchesne (the Applicant) issued pursuant to the SafeRoads Alberta Regulation , Alta Reg 224/2020 ( SAR ). [ 2 ] The Applicant filed for judicial review of the Adjudicator’s decision citing five separate grounds of review.

[ 3 ] The Director concedes that the decision of the Adjudicator should be quashed as it was tainted by a breach of procedural fairness. The Director argues that the appropriate remedy is to remit the matter back for rehearing. [ 4 ] The Applicant agrees that the Adjudicator’s decision should be quashed but argues that with respect to one of the grounds of review there is only one reasonable outcome and therefore the Court should exercise its discretion to decline to remit the matter back for rehearing.

The Applicant agrees that with respect to the other four grounds of review, when considered individually, the appropriate remedy is to remit the matter back for rehearing. However, the Applicant submits that if the Court finds that the Adjudicator’s decision was unreasonable on several grounds of review, the Court should quash the NAP and exercise its discretion to decline to remit the matter back for rehearing. [ 5 ] I agree with the Director that the Adjudicator breached their duty of fairness to the Applicant by relying on evidence that the Applicant did not know was given under solemn declaration.

Further, the Adjudicator’s findings were unreasonable in relation to photographs not provided to the Applicant and in accepting the expert opinion of Kerry Lynne Blake. [ 6 ] I agree with the Director that the appropriate remedy is to remit the matter for rehearing on the issues set out below with the benefit of my reasons. II. BACKGROUND [ 7 ] On February 14, 2021 Cst Pettigrew and Cst Topolnitsky responded to a report of a motor vehicle collision with a tree on the front lawn of a residence.

On arrival at the residence both officers saw a vehicle with significant front end damage on the front lawn of the residence with the reverse lights activated and the front tires spinning at a high rate of speed. Cst Pettigrew also noted that the front tires were off the ground as the front of the vehicle was lifted off the ground by the tree with which the vehicle had collided. Cst Topolnitsky described the vehicle as being “wrapped around the tree.” The officers activated their police vehicle emergency lights.

The Applicant exited the driver’s seat of the vehicle. [ 8 ] Cst Pettigrew read a Mandatory Alcohol Screening demand to the Applicant. The Applicant made four attempts to provide a breath sample into an Approved Screening Device (ASD). The Applicant’s first three breath samples were insufficient for analysis. The ASD registered a “Fail” result in relation to the Applicant’s fourth breath sample. Cst Pettigrew provided the Applicant with an opportunity to take a second ASD breath test.

The Applicant provided a second breath sample into a different ASD, which also registered a “Fail” result. [ 9 ] Cst Pettigrew issued a NAP to the Applicant on the ground that the Applicant operated a motor vehicle while their ability to do so was impaired by alcohol or drug or a combination of both. [ 10 ] Cst. Topolnitsky obtained a statement from the owner of the residence who advised that they were watching TV when they heard a loud bang. They looked outside the window and could see a vehicle on their front lawn with extensive damage to the front end.

They saw a male get out of the vehicle and then return the vehicle. The male that they saw driving was the same male with whom the officers interacted. [ 11 ] Cst Topolnitsky prepared a Supplementary Occurrence Report which included information that Cst Topolnitsky took photographs of the vehicle and provided both the Supplementary Occurrence Report and photographs to Cst Pettigrew. [ 12 ] Cst Pettigrew created the Administrative Penalty Information System (APIS) entry specific to this NAP.

Cst Pettigrew completed the Police Narrative in APIS and uploaded several supporting documents which included the NAP, photographs of two different ASDs, and the Supplementary Occurrence Report of Cst Topolnitsky.

Cst Pettigrew did not upload the photographs of the vehicle that were provided by Cst Topolnitsky. [ 13 ] Cst Pettigrew made the following solemn declaration in APIS: I solemnly declare the information that I have authored in this my contravention submission, and I make this solemn declaration conscientiously believing it to the true and knowing that it is of the same force and effect as if made under oath. [ 14 ] The Applicant applied for an oral review of the NAP and provided written submissions in advance. [ 15 ] The Adjudicator held that the Applicant had not established a ground to cancel the NAP and confirmed the NAP.

III. ISSUES [ 16 ] The Applicant seeks judicial review of the Adjudicator’s decision on five grounds: 1. It was unreasonable for the Adjudicator to find that the photographs of the ASD and the police narrative were admissible at the hearing despite not adhering to the requirements under the Provincial Administrative Penalties Act , SA 2020, c P-30.8 ( PAPA ) and the Provincial Administrative Penalties Regulation , Alta Reg 217/2020 ( PAPR ). 2.

It was unreasonable for the Adjudicator to find that the photographs taken by Cst Topolnitski were not records required to be provided to the Applicant for the review pursuant to s 2 of the SAR and the Director’s duty of procedural fairness. 3. It was a breach of the Adjudicator’s duty of procedural fairness for the Adjudicator to rely on the Affidavit of Kerry Lynne Blake that is contained in the SafeRoads Alberta Technical Materials Library. 4. It was unreasonable for the Adjudicator to apply a presumption of care and control.

5. It was unreasonable for the Adjudicator to find that the Applicant was in care and control of the motor vehicle while his ability to do so was impaired by alcohol, drug, or a combination of both as the vehicle was immobile. IV.

ANALYSIS 1) Breach of Duty of Procedural Fairness - Admissibility of Police Narrative and ASD Photographs [ 17 ] The Applicant argues that the Adjudicator breached their duty of procedural fairness by relying on the issuing officer’s narrative and the ASD photographs because prior to the hearing the Applicant was not provided with the officer’s solemn declaration regarding the truth of their contravention submissions.

The Director concedes that it was procedurally unfair for the Adjudicator to rely on the officer’s solemn declaration regarding the truth of their contravention submissions because it had not been provided to the Applicant prior to the hearing. [ 18 ] At the review hearing the Applicant argued that the APIS Submission Export Report, which included Cst Pettigrew’s police narrative and ASD photographs, were not admissible and should not be relied upon by the Adjudicator because the APIS Submission Export Report did not comply with the requirements of PAPA and PAPR .

The Applicant made these arguments, in part, because the APIS Submission Export Report provided to the Applicant for the purpose of the review did not include the solemn declaration of Cst Pettigrew. The APIS Submission Export Report available to the Adjudicator for the review did include the solemn declaration of Cst Pettigrew. The Adjudicator relied on that solemn declaration to weigh the truth of their contravention submissions and uphold the NAP.

The Applicant submits that this was procedurally unfair. [ 19 ] The Director admits that the solemn declaration of Cst Pettigrew was not included in the material provided to the Applicant and concedes that this resulted in an unfair hearing. This was so because the Applicant was not aware of the evidence that the Adjudicator relied upon and therefore could not respond to it. [ 20 ] The Director argues that the appropriate remedy is to quash the decision of the Adjudicator and remit the matter back for rehearing.

The Applicant agrees that remitting the matter back for a rehearing would be the appropriate remedy if this were the only issue.

However, the Applicant argues that the number of errors committed by the Adjudicator weighs in favour of the Court exercising its discretion to decline to remit the matter back for rehearing. [ 21 ] I will therefore address each ground of review and determine remedy with a cumulative look at the whole . 2) Complete Records – Vehicle Photographs [ 22 ] The Applicant argues that the Adjudicator’s finding that the Applicant had not established that the Director had not provided complete records as required by s 12 of PAPA was unreasonable.

The Applicant framed this as both an error in finding compliance with the statutory framework and a breach of procedural fairness. The Applicant submits that the Adjudicator made an unreasonable finding with regards to what constitutes a complete record pursuant to PAPA s 12 and that the Director breached the Applicant’s duty of fairness by selectively disclosing information from the investigation. [ 23 ] At the review hearing the Applicant argued that they had not been provided with the photographs of the vehicle taken by Cst Topolnitsky as referred to in their Supplemental Occurrence Report.

The Applicant submitted that the photographs of the vehicle were relevant to the issue of whether the Applicant was in care and control of the vehicle, specifically whether the vehicle was capable of becoming mobile.

The Applicant could only be found to be in care and control of the vehicle if there was a realistic risk of danger to persons or property, which could not be found if the vehicle was immobile. [ 24 ] The Adjudicator held that the photographs were not required to be provided as the Applicant had failed to show how the photographs were relevant and necessary records to determine the basis for issuance of the NAP. As such, the photographs were not required under s 2 of SAR . [ 25 ] The issue of whether the photographs were relevant and necessary is only one issue that the Adjudicator was required to determine.

There are two distinct issues raised by the Applicant: 1. Do the photographs form part of Cst Topolnitsky’s report? If they do, given that they were not provided to the Applicant, was the Applicant provided with complete records as contemplated by the statutory scheme? 2.

If the photographs do not form part of Cst Topolnitsky’s report, were the photographs relevant and necessary records to determine the basis for the issuance of the NAP and were they required to be provided to the Applicant pursuant to the statutory scheme? [ 26 ] The Adjudicator grappled with the issue of whether the photographs were relevant and necessary before they determined whether the photographs form part of Cst Topolnitsky’s report.

Whether the photographs form part of Cst Topolnitsky’s report is a finding of fact that needed to be made before determining whether the photographs were relevant and necessary. Because the Adjudicator failed to grapple with the first issue the Adjudicator’s decision on this issue is unreasonable. The Director concedes that this issue was also tainted by the lack of procedural fairness because of Cst Pettigrew’s statutory declaration not being provided to the Applicant.

The matter will be sent back for a rehearing on this issue with the benefit of my reasons. [ 27 ] When determining this issue on rehearing the Adjudicator should first make a finding of fact as to whether Cst Topolnitsky’s report was complete without the photographs. If the Adjudicator makes a finding that Cst Topolnitsky’s report was incomplete without the photographs, the Adjudicator should then consider whether the omission caused the Applicant to not be provided with complete

records as contemplated by the statutory scheme. If the Adjudicator finds that the Applicant was not provided with complete records because the photographs formed part of the report of Cst. Topolnitsky the NAP should be cancelled on the basis of SAR s 4(i)(ii). [ 28 ] If, after engaging in the above analysis, the Adjudicator determines that the photographs do not form part of the report and therefore Cst.

Topolnitky’s report was complete without the photographs, the Adjudicator can then go on to determine if the photographs are relevant and necessary records to determine the basis for the issuance of the NAP and whether they were required to be provided to the Applicant pursuant to the statutory scheme. The analysis of whether the photographs are relevant and necessary can only be determined after a finding that Cst.

Topolnitsky’s report was complete without the photographs. 3) Opinion Evidence of Kerry Lynne Blake [ 29 ] The Applicant argues that it was a breach of the duty of procedural fairness for the Adjudicator to rely on an opinion expressed in an affidavit sworn by Kerry Lynne Blake that is contained in the SafeRoads Technical Library.

The Applicant submits that it was unfair to rely on Kerry Lynne Blake’s opinion without putting the Applicant on notice that they intended to do so and giving the Applicant an opportunity to respond. [ 30 ] At the review hearing the Applicant argued that there was insufficient evidence for the Adjudicator to find that the Applicant’s ability to operate the vehicle was impaired to any degree by alcohol or a drug and therefore the NAP should be cancelled. [ 31 ] The Adjudicator found that the Applicant had not established, on a balance of probabilities, that their ability to operate a motor vehicle was not impaired to any degree by alcohol or drug.

In making this finding the Adjudicator relied, in part, on an Affidavit of Kerry Lynne Blake contained in the SafeRoads Technical Library. In the Affidavit Kerry Lynne Blake provides the opinion that “at a level of 100 mg% and greater, all individuals are impaired in their ability to operate a motor vehicle regardless of their tolerance to alcohol” (the Blake Opinion). [ 32 ] The Applicant argues that it was procedurally unfair for the Adjudicator to rely on the Blake Opinion without advising the Applicant that they intended to do so and giving the Applicant an opportunity to respond.

I agree with the Applicant that the Adjudicator owed a duty of procedural fairness to the Applicant at the review hearing. I disagree that the Adjudicator breached that duty by not advising the Applicant that they were considering relying on the Blake Opinion. [ 33 ] The Blake Opinion is contained in the SafeRoads Alberta Technical Materials Library. The SafeRoads Technical Materials Library and all the information contained therein is available to the public online.

The information contained in the SafeRoads Technical Materials Library is admissible in SafeRoads review proceedings pursuant to PAPA s 4 which states: The Director may, in accordance with the regulations or the regulations under a prescribed enactment, establish and maintain publicly accessible scientific, technical or medical information and documents in any format, which may be relied on as evidence in a review. [ 34 ] The Applicant had notice that the Adjudicator may rely on the information in the Technical Materials Library by virtue of PAPA s 4.

Further, the SafeRoads Alberta Terms and Conditions at para 19, states the following: In a review, the adjudicator will consider all relevant information and supporting documents provided by the recipient, lawyer or agent within the mandated timeline, including all information and supporting documents provided by law enforcement, the Technical Materials Library , legislation and its regulations, and [ sic ] well as any arguments or oral submissions made during an oral review. [ 35 ] The same information is on the Saferoads.com website under “At your review” which states: The adjudicator will: ● consider your arguments and representations ● consider all supporting documents provided by you or your representative, as well as: ... ○ technical materials (which includes a hyperlink to the Technical Materials Library) [ 36 ] Given the numerous points at which the Applicant was informed that the Technical Materials Library would be available to the Adjudicator for their use in the review it was not procedurally unfair for the Adjudicator to rely on information contained therein to determine the issues before them: see also Millar v Alberta (Director of SafeRoads) , 2023 ABKB 55 [ Millar ] at paras 39 – 44 and Munro v Alberta (Director of SafeRoads) , 2023 ABKB 29 . [ 37 ] The Applicant further argues that it was an error for the Adjudicator to rely on the Blake Opinion as medical information.

This argument was not raised before the Adjudicator. The role of this Court on judicial review is to review the decision of the Adjudicator, not to conduct a hearing de novo on issues that were not raised before the Adjudicator: Isley v Alberta (Director of SafeRoads) , 2022 ABQB 249 at paras 34 and 63 . A reviewing court does have the discretion to hear an issue for the first time on judicial review.

This exercise of discretion is, however, the exception and will generally not be exercised where the issue could have been put before the administrative decision maker but was not raised: Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association , 2011 SCC 61 at paras 24 – 26 .

This is not an issue for which I will exercise my discretion to decide the issue for the first time on judicial review. [ 38 ] While I have found that it was not procedurally unfair for the Adjudicator to rely on materials contained in the SafeRoads Technical Materials Library, the decision of the Adjudicator to rely on the Blake Opinion was unreasonable. [ 39 ] The Blake Opinion is opinion evidence. Before an adjudicator can rely on opinion evidence the adjudicator must first find that

the proffered opinion comes from a properly qualified expert. The Adjudicator’s reasons do not demonstrate that the Adjudicator considered whether Kerry Lynne Blake was a properly qualified expert capable of giving the Blake Opinion. The Adjudicator simply accepted the opinion. [ 40 ] On the issue the issue of whether Kerry Lynne Blake is a properly qualified expert capable of giving the Blake Opinion, in Millar at paras 29 – 34 , Armstrong J engages in a thorough analysis of Kerry Lynn Blake’s qualifications.

The Court held that Kerry Lynne Blake is properly qualified to give the Blake Opinion and the Blake Opinion is information upon which an adjudicator is entitled to rely (see para 33). [ 41 ] The Adjudicator in this matter did not grapple with the issue of Kerry Lynn Blake’s expert qualifications to give the Blake Opinion therefore the matter must be sent back for rehearing on this issue.

At the rehearing the adjudicator will have the benefit of these reasons as well as Armstrong J’s reasons in Millar . 4) Presumption of Care and Control [ 42 ] The Applicant argues that it was unreasonable for the Adjudicator to apply a presumption that the Applicant had care and control of the vehicle simply because the Applicant was in the driver’s seat. [ 43 ] The Adjudicator found that the Applicant did not establish that the Applicant was not actually driving. There is nothing unreasonable about the Adjudicator’s finding on this point.

The Use of Highways and Rules of the Road Regulation , Alta Reg 304/2002 defines for the purposes of TSA s 88.1 that “operate a motor vehicle” includes drive a motor vehicle. There is ample evidence from both officers and the civilian witness that the Applicant was operating the vehicle. Once the Adjudicator made this finding it was unnecessary for the Adjudicator to find that a presumption of care and control applies. [ 44 ] Despite this finding, the Adjudicator went on to consider whether the Applicant was also in care and control of the vehicle.

The Adjudicator held that the applicable analytical framework for “care or control” was as set out by the Supreme Court of Canada in R v Boudreault , 2012 SCC 56 [ Boudreault ]. The Adjudicator found the following at para 27: I find that the Recipient was in the driver’s seat, both when the witness observed him after hearing the collision, and when the officers arrived on scene.

I am not satisfied that the Recipient was not in the driver’s seat and therefore a presumption of care or control applies. [ 45 ] Given the Adjudicator’s factual finding of actual operation in this case and my conclusion that this find was reasonable, it is unnecessary for me to determine whether the Adjudicator’s finding that a presumption of care and control arises in this case was reasonable.

I do note, however, that this issue arises frequently before SafeRoads adjudicators and on judicial review therefore I provide the following for consideration. [ 46 ] Like in Rowe v Alberta (Director of SafeRoads) , 2022 ABQB 560 [ Rowe ], the Adjudicator in this case failed to provide an explanation or reasons for why the Adjudicator concluded that a presumption arises: see Rowe para 40 . Like in Rowe , the Adjudicator in this matter states in their reasons that they are applying Boudreault “adapted for the administrative rather than criminal context”.

There is no further explanation as to what this adaptation may be. The Adjudicator also clearly states that because the Applicant was in the driver’s seat that there is a presumption of care or control. There is no explanation or reasoning as to why the Adjudicator has concluded that a presumption arises. The Adjudicator has either relied on Boudreault for the presumption or decided that such a presumption arises in the SafeRoads legislative context. In either scenario, the reasons do not set out the Adjudicator’s thinking or analysis: Vavilov at paras 80.

In the absence of further explanation, it is difficult to understand the reasoning process of the Adjudicator and how they arrived at their conclusion that a presumption applies. [ 47 ] I have now had the benefit of reviewing my colleague Justice K.D. Nixon’s reasons for decision in Roh v Alberta (Director of SafeRoads) , 2022 ABQB 586 [ Roh ].

I agree with Nixon (KD) J that it would be a reviewable error for an adjudicator to apply the statutory presumption contained in s 320.35 of the Criminal Code . [ 48 ] Where Rowe and Roh differ is that in Roh Nixon (KD) J. held that Boudreault may reasonably be read as establishing a presumption of care or control independent of the statutory provision in the Criminal Code . In Rowe , I held that it was the role of the Adjudicator to provide their explanation for applying a presumption.

In the absence of any explanation or reasons as to why the Adjudicator found that a presumption arose, I was not prepared to make any finding on the reasonableness of the Adjudicator’s decision to apply a presumption.

Adjudicators will have the benefit of both decisions in future matters. [ 49 ] I do note, however, that I agree with Nixon (KD) J. that it makes no practical difference whether a presumption of care and control is applied: In the criminal context, if the accused is found impaired and in the driver’s seat, the presumption of care or control shifts the burden onto them to show that they had no intention to drive and did not otherwise present a realistic risk of danger. Under the TSA , the applicant already has that onus.

The administrative regime has no presumption of innocence for a presumption of care or control to displace. The Adjudicator’s consideration of a presumption of control adds nothing to the analysis. Thus, in result, there is no practical difference between the approach taken by the Adjudicator and that advocated by the Applicant. In either event, the Applicant is required to establish that he had no intention to drive and presented no realistic risk of danger to people or property.

Roh at para 39 . 5) Care and Control – Realistic Risk of Danger to Persons or Property [ 50 ] As noted above, the Adjudicator’s finding that the Applicant had not established that the Applicant was not actually driving was reasonable. Therefore, it was not necessary for the Adjudicator to determine whether the Applicant had no intention to drive the

vehicle and presented no realistic risk of danger to persons or property. As such, it is not necessary for me to determine whether the Adjudicator’s finding on this issue was reasonable. V. REMEDY [ 51 ] The Director submits that the matter should be remitted for rehearing with the benefit of these reasons. The Applicant concedes that when considering the errors individually, the appropriate remedy would be to remit the matter back for a rehearing with the benefit of these reasons.

However, the Applicant argues that due to the number of errors, I should exercise my discretion to not remit the matter back for rehearing. I disagree. [ 52 ] The Applicant raised five grounds for judicial review. I have allowed judicial review on three of those grounds. Given the scope and content of my findings, it is appropriate for these issues to be remitted back to the Adjudicator with the benefit of my reasons. I must respect the legislature’s intention to entrust these matters to SafeRoads adjudicators.

The Adjudicator in this case should be given an opportunity to weigh in on the issues identified. [ 53 ] I have considered each ground of review and the Applicant’s argument regarding the number of errors committed by the Adjudicator. Further, I have considered whether the number of errors weigh in favour of the Court quashing the NAP and exercising its discretion to decline to remit the matter back for rehearing. I conclude that the appropriate remedy would be to remit the matter for rehearing on the issues identified in this decision and with the benefit of these reasons. VI.

CONCLUSION [ 54 ] The Applicant’s judicial review is allowed in part. Judicial review is granted on the following issues: 1. It was procedurally unfair for the Adjudicator to rely on the APIS Submission Export Report of Cst Pettigrew because the Applicant was not provided with Cst Pettigrew’s solemn declaration regarding the truth of their contravention submissions. 2. The Adjudicator’s decision that the Applicant had been provided with complete records and that the photographs of the vehicle were not relevant or necessary was unreasonable. 3.

The Adjudicator’s decision to rely on the opinion of Kerry Lynne Blake without first determining whether Kerry Lynne Blake was qualified to give that opinion was unreasonable. [ 55 ] The Adjudicator’s decision on the above issues is quashed. The appropriate remedy is to remit these issues back to the Adjudicator for reconsideration with the benefit of my reasons. [ 56 ] The Adjudicator’s finding that the Applicant had not established that the Applicant was not driving the vehicle was reasonable.

As a result, there is no need to review the Adjudicator’s reasons for finding a presumption of care and control, or the Adjudicator’s decision regarding the Applicant’s intention to drive and realistic risk of danger to persons or property. The Applicant’s application for judicial review on the issues surrounding care and control are therefore dismissed. Heard on the 28 th day of October, 2022. Dated at the City of Edmonton, Alberta this 29 th day of March, 2023. Bonnie L. Bokenfohr J.C.K.B.A. Appearances: Adam Klassen for the Applicant Michael Power for the Respondent