Weinkauf v Alberta (Director of SafeRoads), 2022 ABKB 752

Court of King’s Bench of Alberta Citation: Weinkauf v Alberta (Director of SafeRoads), 2022 ABKB 752 Date: 20221114 Docket: 2103 09637 Registry: Edmonton Between: Dylan Weinkauf Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice EJ Sidnell _______________________________________________________ Judicial Review from M Culo (the Adjudicator) Dated the 31 st day of May, 2021 (the Decision) Weinkauf (Re) , 2021 ABSRA 377 Introduction [ 1 ] Dylan Weinkauf says that he completed repairs to his dirt bike at approximately 6:00 pm, on April 29, 2021, and decided to take it for a test drive to make sure it was operating properly.

While he was heading into a corner, he hit the brake, his tire slid out from

underneath him and “put [him] into a ‘wheelie’ position”. Mr. Weinkauf lost control of his dirt bike and crashed into a minivan whichwas parked on the street. Mr. Weinkauf says that the collision occurred about six houses away from his home. [2] The sound of the crash alerted the owner, or owners, of the minivan (the Complainant). Mr. Weinkauf says that he had abrief conversation with the Complainant, and that they looked at the damage to the minivan together. Mr. Weinkauf determined that thedamage was relatively minor and told the Complainant that he would pay for the repair out of his own pocket. Mr.

Weinkauf also saysthat he told the Complainant there was no need to phone the police. Mr. Weinkauf gave the Complainant his contact details and askedthe Complainant to contact him once they had a repair quote. Mr. Weinkauf’s evidence is that he did not expect the Complainant to callthe police as he understood the situation had been handled. [3] Constable Ling notes that the RCMP were called to “a hit and run collision”. Mr. Weinkauf says that the RCMP arrived athis home at approximately 7:00 pm, which coincides with the Constable’s handwritten notes.

The Constable noted that “Observation,Odour, Admission of Recent Consumption, Other-Friends advised complainant that he shouldn’t have been riding his dirt bike since hewas drinking” formed the basis of reasonable suspicion of Mr. Weinkauf’s impairment. [4] The Constable made a demand for a breath sample for analysis by an approved screening device (ASD) at 7:06 pm and Mr.Weinkauf complied at 7:07 pm. The Constable advised him that the result was a “FAIL”. Mr. Weinkauf was arrested for impairedoperation of a motor vehicle under s 88.1(1)(

a) and (

b) of the Traffic Safety Act, RSA 2000, c T-6 (TSA). Mr. Weinkauf was offered, andtook, a second ASD test, which is a roadside appeal of the initial ASD test, and the result was a “FAIL”. [5] Mr. Weinkauf was issued a notice of administrative penalty (the NAP) under s 88.1(1)(

a) and (

b) of the TSA. [6] Mr. Weinkauf told the Constable that he did not have anything to drink before driving his dirt bike and that he startedconsuming alcohol when he got home after the collision. [7] Mr. Weinkauf brought an application for review of the NAP (the Review) under the Provincial Administrative Penalties Act,SA 2020, c P-30.8 (PAPA). The Adjudicator confirmed the NAP. [8] Upon making findings of fact regarding the duration of time between the collision and when the RCMP arrived, theAdjudicator rejected Mr. Weinkauf’s evidence that he drank 1-2 shots of whiskey and 6-8 beers after the collision.

The Adjudicator wentfurther and stated that he did not accept that Mr. Weinkauf “consumed any alcohol at all after driving”. [9] The Adjudicator gave little weight to Mr. Weinkauf’s submission that, since he had consumed alcohol within 15 minutes ofproviding a sample for the initial ASD test, his mouth alcohol tainted the result. [10] Mr. Weinkauf brings this application for judicial review under s 24 of the PAPA on the basis that the Adjudicator issued anunreasonable decision under the SafeRoads Alberta Regulation, AR 224/2020 (SAR). Specifically, Mr. Weinkauf submits that: (

a) the Adjudicator implied facts into the decision that were not in evidence and were material to the Adjudicator’s decision,which is unreasonable and contrary to the principles of fairness; and (

b) the Decision and reasoning process was unreasonable because: (

i) it was internally inconsistent, contained flawed reasoning critical to the outcome and repeatedly misapprehended theevidence; and (ii) placed an unreasonable burden on the Applicant that is not established in law. [11] The Director of SafeRoads Alberta (the Director) submits that Mr. Weinkauf has not shown that the Decision is unreasonableand that the application for judicial review should be dismissed. Standard of review on judicial review Procedural fairness [12] Mr.

Weinkauf submits that the Adjudicator breached a duty of procedural fairness owed to him, and, in that context, astandard of review is not engaged. Mr. Weinkauf relies on a passage in Schwab v Alberta (Director of SafeRoads), 2022 ABQB 244, atpara 17. The Court in Schwab refers to Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, at para 77, wherethe majority of the Supreme Court of Canada said: ... The duty of procedural fairness in administrative law is “eminently variable”, inherently flexible and context-specific ...

Where aparticular administrative decision-making context gives rise to a duty of procedural fairness, the specific procedural requirements that theduty imposes are determined with reference to all of the circumstances: Baker, at para. 21. ... [13] In Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817, a mother withCanadian-born dependent children, who was subject to a deportation order, sought a waiver of the requirement to make an applicationfor permanent residence from outside Canada.

A senior immigration officer replied by letter, without reasons, stating that there wasinsufficient humanitarian and compassionate reasons to allow for the application to be made from within Canada. The Supreme Court ofCanada considered whether the principles of procedural fairness were violated in that case. Writing on behalf of the majority,L’Heureux-Dubé J found that a duty of procedural fairness applies to decisions that affect the rights, privileges, or interests of anindividual: Baker, para 20.

[ 14 ] The existence of a duty of fairness does not determine the requirements of that duty in a particular set of circumstances.

The concept of procedural fairness is eminently variable, and its content is to be decided in the specific context of each case: Baker , para 21 . [ 15 ] In the context of participatory rights, administrative decisions are to be made using a fair and open procedure, appropriate to the decision being made in its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker: Baker , para 22 . [ 16 ] There are five non-exhaustive factors relevant to determining what is required by the common law duty of procedural fairness in a given set of circumstances: Baker , paras 23 to 28 .

These five factors were summarized in Vavilov , at para 77 , as follows: (1) the nature of the decision being made, and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself. [ 17 ] Mr.

Weinkauf submits that the Adjudicator “implied facts into the decision that were not in evidence and were material to the Adjudicator’s decision”, which was “contrary to the principles of fairness”. Among other things, Mr. Weinkauf contends that this breach arose from the Adjudicator relying on what the Constable referred to as “video surveillance” that was neither provided to, nor reviewed by, Mr.

Weinkauf, or even in evidence before the Adjudicator. [ 18 ] The Director submits that the standard of review for procedural fairness is whether the required degree of fairness was provided in the Review before the Adjudicator. [ 19 ] Subsection 12(1) of the PAPA requires the Director to provide the “relevant records as prescribed in the regulations”. Under s 12(2), “the Director is not required to provide a recipient with any records, representations or arguments in respect of an alleged contravention” beyond those prescribed records.

Section 2 of the SAR sets out the prescribed records to be provided to a recipient on an application for review before an adjudicator and includes: 2(

h) any other relevant records and representations of the officer who issued the notice of administrative penalty or any other ... reports that have not been certified, sworn or solemnly affirmed, that are in the opinion of the Director relevant and necessary to determine the basis for issuing the notice of administrative penalty . [ 20 ] Failure of the Director to provide all records in accordance with the Director’s obligation under s 12 of the PAPA is a ground for cancelling the NAP under s 4(e)(iii) of the PAPA in relation to a contravention of s 88.1(

a) of the TSA , and under s 4(f)(iii) of the PAPA in relation to a contravention of s 88.1(

b) of the TSA . [ 21 ] The common law may aid statutory

interpretation, but it cannot supplant legislation. Mr. Weinkauf asserts that failure to disclose the video was a breach of procedural fairness, yet the PAPA and the SAR provide a comprehensive regime for disclosure of records for a review before an adjudicator.

Where there is a specific legislative provision which sets out the circumstances in which disclosure must be made, then the legislation, and not a common law duty of procedural fairness, must be applied. [ 22 ] The Director submits that the avenue of inadequate disclosure is barred because it was not raised before the Adjudicator and the relevant provisions of the legislation were not relied on in the application for this judicial review. [ 23 ] For the reasons set out under Issue 1, below, I find the Director was not required to disclose the video and there was no breach of s 12 of the PAPA .

For the reasons set out under Issue 2, I find that there was no breach of a duty of procedural fairness. The issues raised by Mr. Weinkauf on judicial review are more properly characterized as a question of whether the Adjudicator misapprehended the evidence. As a result, it is not necessary to consider the common law duty of procedural fairness under the Baker factors.

Reasonableness [ 24 ] In Vavilov , at para 16 , the majority set out a revised framework for determining the standard of review on judicial review, which starts with a presumption that reasonableness is the applicable standard whenever a court reviews an administrative decision. As noted in Vavilov , at para 17 , this presumption can be rebutted where: (

c) the legislature has indicated that it intends a different standard or set of standards to apply; or (

d) the rule of law requires that the standard of correctness be applied . [ 25 ] Subsection 24(3) of PAPA expressly states that the standard of review is reasonableness on an application for judicial review, which means that the presumption cannot be rebutted under the first method set out in Vavilov . As to the second point, Mr. Weinkauf has not shown that any rule of law requires that the standard of correctness must be applied. I find that the standard of reasonableness applies. Issues [ 26 ] This application for judicial review raises the following issues:

(

a) Issue 1: Did the Director make disclosure in accordance with s 12 of PAPA ? (

b) Issue 2: Did the Adjudicator breach a duty of procedural fairness owed to Mr. Weinkauf? (

c) Issue 3: Is the Decision unreasonable because the Adjudicator fundamentally misapprehended, or failed to account for , Mr. Weinkauf’s evidence? (

d) Issue 4: Were the Adjudicator’s conclusions that Mr. Weinkauf had not shown grounds for cancelling the NAP unreasonable, specifically: (

i) Under s 4(e)(iv) of SAR because Mr. Weinkauf’s ability to operate his dirt bike was not impaired to any degree by alcohol (ii) Under s 4(f)(iv) of the SAR because Mr. Weinkauf did not have a blood alcohol level (BAC) equal to, or exceeding, 80 mg of alcohol in 100 ml blood (Over 80), within 2 hours of ceasing to operate his dirt bike (iii) Under s 4(f)(

v) of SAR because even though Mr. Weinkauf had a BAC Over 80 within 2 hours after ceasing to operate his dirt bike: (

A) he consumed alcohol after ceasing to operate it; (

B) he had no reasonable expectation of providing a breath sample; and (

C) his consumption was consistent with a BAC less than Over 80 at the time he was operating his dirt bike Issue 1: Did the Director make disclosure in accordance with s 12 of PAPA ? [ 27 ] The video provided to the RCMP is not listed in Appendix B to the Decision, which is entitled “Evidence before the Adjudicator”. Appendix B includes the “Report of the Issuing Officer, Cst. Ling” (the Report). The Report consists of the information entered into the Administrative Penalty Information System (APIS) by the Constable, which includes the “Police Narrative”, in which the video is referenced. The Report also includes a

section for “Supporting Documents”, which makes no reference to the video. [ 28 ] APIS is maintained by the Director and Mr. Weinkauf was provided with access to the Report. [ 29 ] Based on Appendix B and the Report, I accept that the Adjudicator did not have access to the video and therefore the contents of the video was not part of the Review evidence. Further, I accept that the video was not provided to Mr. Weinkauf. [ 30 ] Mr. Weinkauf submits that it is procedurally unfair that the video was not produced contrary to s 12 of the PAPA .

The basis for this position is that the Adjudicator made the video relevant by relying on it in the Decision. [ 31 ] If Mr. Weinkauf was of the view that the video was relevant, and producible under s 12 of the PAPA , then Mr. Weinkauf could have raised that in the Review before the Adjudicator. Before the Review was heard by the Adjudicator, Mr. Weinkauf had been given access to APIS and would have seen the reference to the video and been able to note that it was not provided to him.

On judicial review of a SafeRoads review, it is not possible to assert a claim for an undisclosed record when that submission is not made at a review before an adjudicator. [ 32 ] Here, Mr. Weinkauf contends that he did not know that the video was going to be relevant because he did not know that the Adjudicator would rely on it.

This comment raises an issue of misapprehension of evidence, which is addressed below at Issue 3; however, it does not raise an issue of procedural fairness, as discussed below at Issue 2. [ 33 ] I find that there is no breach of s 12 of the PAPA , because s 12 of the PAPA does not require a video, such as the one referred to by the Constable, to be produced. Further, Mr. Weinkauf did not raise the failure to produce the video at the Review and cannot raise it now on judicial review. Issue 2: Did the Adjudicator breach a duty of procedural fairness owed to Mr.

Weinkauf? [ 34 ] The Adjudicator states in the Decision that the Constable responded to a hit-and-run collision “at around 6:36 p.m.” and “at 6:36 p.m.”: see paras 1 and 8. I deal with the issue of timing here and the characterization of the collision as a hit-and-run in Issue 4. [ 35 ] The Adjudicator’s reasoning is not transparent, and he does not explain how he arrived at conclusion that the collision occurred at 6:36 p.m. There is no reference to this time in the evidence.

What is in evidence is the Constable’s notation in the Record that the initial ASD test was demanded at 7:06 pm and the Constable’s comment in the Police Narrative that “Members obtained [Mr. Weinkauf’s] breath sample on an ASD approximately 30 mins from the collision”. The reader is left to guess whether the Adjudicator simply subtracted 30 mins from the time of the initial ASD test demand or determined the time of the collision in some other way. [ 36 ] The Adjudicator’s conclusion that the collision occurred 30 minutes before the initial ASD test is a thread that is sown throughout the Decision.

It is relied on to support the Adjudicator’s conclusion that Mr. Weinkauf’s claim of post-collision alcohol consumption was implausible. In rejecting Mr. Weinkauf’s post-collision alcohol consumption evidence, the Adjudicator concludes that Mr. Weinkauf must have been drinking before the collision and, further, must have been impaired while driving his dirt bike. As noted above, the Adjudicator did not accept that Mr. Weinkauf consumed any alcohol at all post-collision. [ 37 ] The focus on this issue on judicial review is whether there was a breach of procedural fairness.

The Adjudicator mentioned the video in the Decision in paras 8 and 18:

... Video surveillance from the collision scene, provided to Cst. Ling after the occurrence, confirmed the Recipient walked the same dirt bike as described by the complaint after the collision. ... Cst. Ling stated video surveillance confirmed the ASD “fail” took place approximately 30 minutes after the collision. . . . ... I give more credence to Cst.

Ling’s timeline as it was supported by video surveillance, while the Recipient gives an estimated timeline. [ 38 ] From these comments, it is clear that the Adjudicator relied on the video as confirmation of the Constable’s evidence, even though the video was not before the Adjudicator. However, the Adjudicator had the same evidence on which to make assessments as Mr. Weinkauf had to prepare his review of the NAP. The Adjudicator relied on the video but did not see it. Mr.

Weinkauf did not ask to see the video during the Review before the Adjudicator. [ 39 ] The Director submits that there was no breach of procedural fairness and that the issue should be considered as one of whether the Adjudicator misapprehended the evidence. [ 40 ] I agree with the Director that whether the Adjudicator should have relied on the contents of the non-produced video is an issue of misapprehension of the evidence not procedural fairness. In any event, I find that there was no breach of procedural fairness because the Adjudicator did not have evidence that was unavailable to Mr. Weinkauf.

Issue 3: Is the Decision unreasonable because the Adjudicator fundamentally misapprehended, or failed to account for, Mr. Weinkauf’s evidence? [ 41 ] There are several grounds on which the factual findings of the Adjudicator are challenged as being unreasonable. The standard of reasonableness applies to findings of fact.

On judicial review, it is not the role of the Court to substitute its own decision, but rather to consider whether the decision as a whole, and the rationale for it, is transparent, intelligible, and justified. [ 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 . [ 43 ] Mr. Weinkauf challenges the following findings of the Adjudicator: (

a) that Mr. Weinkauf walked his dirt bike to his house; (

b) that the collision occurred 30 mins before the initial ASD test and, as a result, Mr. Weinkauf did not have time to consume the alcohol he claimed, or any at all; and (

c) that mouth alcohol did not taint the initial ASD test result. Adjudicator’s finding that Mr. Weinkauf walked his dirt bike to his house [ 44 ] I agree that the Police Narrative prepared by the Constable indicates that the video confirmed Mr. Weinkauf’s evidence that he walked his dirt bike back to his home after the collision. Mr. Weinkauf told the Constable that none of the dirt bikes in his garage were involved in the collision. The Constable noted that no dirt bike was seized because “no one would or could say where the dirt bike mysteriously disappeared to”.

Why the Constable said the video showed the “same dirt bike being walked back from the collision scene” by Mr. Weinkauf, is not clear. [ 45 ] The Adjudicator made a finding that the collision occurred at 6:36 p.m. and that, immediately following it, Mr. Weinkauf conversed with the Complainant, then walked his dirt bike back to his house, which was approximately two minutes away. Whether this was the same dirt bike, or another, is not relevant. The Adjudicator made this comment in the context of the Adjudicator’s timeline findings. Mr. Weinkauf has not shown that the Adjudicator’s conclusion about Mr.

Weinkauf walking his dirt bike back to his house had any direct bearing on the Adjudicator’s timeline of events or was a misapprehension of the evidence. In fact, it was also Mr. Weinkauf’s evidence that he walked his dirt bike back to his house. Adjudicator’s finding that the collision occurred 30 mins before the initial ASD test and, as a result, Mr. Weinkauf did not have time to consume the alcohol he claimed, or any at all [ 46 ] Mr.

Weinkauf submits that the Adjudicator’s preference for the Constable’s evidence that the collision occurred approximately 30 minutes before the initial ASD test, was based on the Adjudicator’s reliance on the video. Further, Mr. Weinkauf contends that the Adjudicator’s preference for the Constable’s evidence on timing led to the rejection of Mr. Weinkauf’s evidence that

he only consumed alcohol after the collision. [ 47 ] The submission in the Director’s brief is that, rather than relying on the video, “the Adjudicator considered Cst. Ling’s report that he reviewed surveillance video as part of determining the weight given to the evidence”. [ 48 ] The Constable referred to video in the Police Narrative as follows: ... WEINKAUF was hesitant and reluctant to admit he was riding his dirt bike and denied any of the green/white dirt bike [ sic ] in his garage [were] ... involved in the collision with the parked mini van.

Video surveillance from the collision scene (provided to members after they had left), shows the same dirt bike being walked back from the collision scene by WEINKAUF. WEINKAUF was adamant he was not intoxicated at time he was involved in the collision and that he only started drinking when he got home (NOTE: Members obtained his breath sample on an ASD approximately 30 mins from the collision). ... [ 49 ] Mr. Weinkauf’s evidence is that the collision occurred between 6:05 and 6:10 p.m. The Adjudicator rejected Mr. Weinkauf’s evidence and determined that the collision took place at 6:36 p.m.

As discussed at paragraph [35], the reason for the Adjudicator’s conclusion is not transparent. The Constable was not on scene at the time of the collision. [ 50 ] The Adjudicator’s conclusion that the collision took place at 6:36 p.m. is problematic because the Adjudicator gave more credence to the Constable’s timeline because it was supported by the video. However, there was no information that any timestamp or timeframe was provided in the video, and this could not be verified because the video was not produced as part of the Certified Record of Proceedings.

Further, the Constable notes in the Police Narrative that the video was “provided to members” and showed a “dirt bike being walked back from the collision scene” by Mr. Weinkauf. While it is possible that the Constable viewed the video, the Police Narrative does not say that it was viewed by the Constable. It could have been viewed by one of the other members or summarized by the party providing it. [ 51 ] Further, the Constable did not state anywhere in the Record that the video confirmed the initial ASD test took place approximately 30 minutes after the collision.

However, this conclusion was a crucial finding because it formed the basis of the Adjudicator’s rejection of Mr. Weinkauf’s evidence that he only consumed alcohol after the collision, set out at para 18: ... This leaves a window of approximately 13-18 minutes to consume the claimed one to two whiskey shots and six to eight beers. I find it very implausible that the Recipient consumed one to two whiskey shots and six to eight beers in such a short time frame. Although the Recipient told this to Cst. Ling during the occurrence, there is no corroborating evidence to support the Recipient’s claim.

As the Recipient has not presented me with a believable claim of alcohol consumption, and does not offer a claim that is believable, I do not accept that the Recipient consumed any alcohol at all after driving. ... [ 52 ] The Decision demonstrates that the Adjudicator used the unseen video to elevate the evidence of the Constable and reject the evidence of Mr. Weinkauf. The Adjudicator’s finding that there was not enough time between the collision and the initial ASD test for Mr. Weinkauf to have consumed alcohol as claimed, led to a further finding that Mr.

Weinkauf’s assertion that he had not consumed alcohol until after driving his dirt bike was not believable. The Adjudicator went so far as to say that he did “not accept that [Mr. Weinkauf] consumed any alcohol at all after driving”. [ 53 ] Reliance on the video to support the Constable’s evidence was inappropriate since the commentary in the Police Narrative about its contents was not specific enough to warrant reliance. While an adjudicator can make findings of credibility, an adjudicator cannot make findings based on evidence not before that adjudicator.

I find that the Adjudicator misapprehended the evidence which resulted in an unreasonable conclusion that the collision occurred 30 minutes before the initial ASD test. I also find that there was no basis on which the Adjudicator could reasonably make a finding that Mr. Weinkauf drank no alcohol, at all, after the collision. Adjudicator’s finding that mouth alcohol did not taint the initial ASD test result [ 54 ] Mr.

Weinkauf submits that the initial ASD test is invalid because the Constable did not comply with the Alco-Sensor FST Operator’s Manual, produced by the Forensic Science and Identification Services, National Centre for Forensic Services – Alberta, edited December 2018 (the Manual).

The Manual is contained in the SafeRoads Technical Materials Library, which is available to the public online, and which was referenced in Appendix B to the Decision. [ 55 ] The Manual states that an ASD test shall not be conducted for, what the officer believes is, a period of 15 minutes after the last consumption of alcohol: A test on a subject shall not be conducted until 15 minutes after the time the officer believes alcohol has last been consumed. This is to ensure the elimination of any possible “mouth alcohol” effects. . . .

Always review and explain any delays in forming your suspicion, reading the demand or conducting the test. You may always delay for 15 minutes if you are concerned about recent consumption of alcohol or 5 minutes if you are concerned about recent smoking. REMEMBER: An ASD demand and test must be made immediately. This means, effectively, as soon as is possible in your circumstances. Even small unexplained or unreasonable delays can invalidate the demand. Be prepared. Note any and all delays. [ 56 ] Mr. Weinkauf says that he consumed alcohol “right up until the Police knocked on my door”. Both Mr.

Weinkauf and the Constable agree that the RCMP arrived around 7:00 pm. The Adjudicator rejected Mr. Weinkauf’s account of his alcohol consumption and provided the following reasoning, at para 14: ... On Counsel’s argument that mouth alcohol tainted the first ASD result, Cst. Ling’s narrative confirms the Recipient’s statement about consuming alcohol but there is no mention of any alcohol visible to Cst. Ling. There is no evidence that the Recipient had given a

timeline to Cst. Ling on when he last consumed alcohol or that he had any alcohol on his person during his interaction with Cst. Ling. I am unable to give much weight to his claim that it was so close to the ASD test that it tainted the result. Notably, there is nothing to indicate that the Recipient explicitly raised it during the occurrence, when the officer could have addressed it. Rather, it comes up for the first time in the Review. I am not satisfied that the ASD result was unreliable or tainted in any way. [ 57 ] Mr.

Weinkauf submits that because his evidence is that he consumed alcohol within 15 minutes before the initial ASD test that it was invalid. He further submits that since he was entitled to two valid ASD tests, upon the initial ASD test being invalid, the NAP is invalid. This submission is premised on Mr. Weinkauf showing that the initial ASD test was invalid due to the presence of mouth alcohol. [ 58 ] Mr. Weinkauf does not challenge the second ASD test, which was a roadside appeal. [ 59 ] Mr.

Weinkauf relies on a number of authorities related to impaired driving charges under the Criminal Code , RSC 1985 c C- 46 , including R v Burns , 2002 ABQB 135 and R v Kathol , 2005 ABPC 335 , and the cases cited therein. [ 60 ] The Director relies on Goodwin v British Columbia (Superintendent of Motor Vehicles) , 2015 SCC 46 , where the Supreme Court of Canada considered the initial version of the British Columbia roadside administrative penalty scheme, enacted in 2010, which followed a different administrative penalty scheme enacted in 1997.

Karakatsanis J, on behalf of the majority, at paras 66 and 77, referred to the effects of mouth alcohol on the accuracy of an ASD test: However, the use of an ASD to obtain a breath sample also raises concerns that undermine the reasonableness of the seizure, specifically regarding the reliability of test results. The chambers judge concluded, based upon the evidence, that owing to an ASD’s inability to account for the presence of mouth alcohol, “in some circumstances there can be serious issues concerning whether an ASD accurately reflects blood-alcohol readings” ... . . .

The ARP scheme as enacted in 2010 depends entirely on the results from a test conducted using an ASD, a device known to produce false positives where mouth alcohol is present. Despite this defect regarding ASD reliability, the scheme provides no meaningful opportunity to challenge a licence suspension issued under this scheme on the basis that the result is unreliable. In the particular circumstances of these appeals, in which a “fail” result automatically triggers serious consequences for a driver without the possibility of review, the scheme fails to provide adequate safeguards.

Thus, despite the pressing objective and minimal intrusiveness of the seizure, the ARP scheme fails to strike a reasonable balance between the interests of the state against those of individual motorists, and infringes drivers’ s. 8 rights. [ 61 ] The British Columbia 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 , though Karakatsanis J had this to say about it, at paras 84 and 85: 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. ... [ 62 ] The amended British Columbia scheme is similar to the Alberta scheme where there is an initial ASD test and the option for a roadside appeal by the administration of a second ASD test. [ 63 ] Under s 88.11(2) of the TSA , the officer must obtain a “suitable” sample for an ASD roadside appeal test:

(2) Notwithstanding that a notice of administrative penalty has been issued to a driver under

section 88.01, 88.02, 88.03 or 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 (

a) where the basis for issuing the notice of administrative penalty was an initial test performed on an approved screening device, provide a sample of breath that in the opinion of the peace officer is suitable for analysis on a different approved screening device, or on an approved instrument, at the discretion of the peace officer ... [emphasis added] [ 64 ] Mr.

Weinkauf relies on caselaw on impaired driving decided under the Criminal Code which stands for the proposition that where the police have reason to believe that there has been recent alcohol consumption then the ASD test should be administered 15 minutes after the last consumption: see R v Burns , at para 11 . The Director submits that the TSA only requires the second roadside appeal ASD test to be based on a suitable sample, which, it admits, would include waiting 15 minutes from the time of most recent consumption of alcohol. [ 65 ] The Constable noted his observations of Mr.

Weinkauf’s impairment, and that Mr. Weinkauf admitted to consuming 6 to 8 beers when he arrived home. The Constable also noted that the Complainant reported that Mr. Weinkauf’s friends said that he should not have been riding his dirt bike when drinking. In these circumstances, and in the context of administering the initial ASD test promptly, there was no specific basis for requiring the Constable to wait 15 minutes before administering the initial ASD test to reduce the effects of mouth alcohol. No argument was raised challenging the timing of the administration of the second ASD test relative to Mr.

Weinkauf’s last consumption of alcohol.

[ 66 ] Comparable to the amended legislation in British Columbia, the TSA requires notice of a roadside appeal, provides for the roadside appeal to be administered with a different ASD and, depending on the results of that roadside appeal, for a notice of administrative penalty to be cancelled, or for the imposition of an alternate roadside sanction. The TSA incorporates a method of ameliorating the serious consequences for a driver if the initial test is tainted by mouth alcohol leading to a false result.

I agree with the Director that the TSA only requires the second roadside appeal ASD test to be based on a sample taken at least 15 minutes after the last consumption of alcohol and there is no such requirement for the initial ASD test. Issue 4: Were the Adjudicator’s conclusions that Mr. Weinkauf had not shown grounds for cancelling the NAP unreasonable, specifically: Under s 4(e)(iv) of SAR because Mr. Weinkauf’s ability to operate his dirt bike was not impaired to any degree by alcohol [ 67 ] The Constable did not see Mr.

Weinkauf operate his dirt bike but said: “Observation, Odour, Admission of Recent Consumption, Other-Friends advised complainant that he shouldn’t have been riding his dirt bike since he was drinking” formed the basis of reasonable suspicion of Mr. Weinkauf’s impairment. The Constable then administered the initial ASD test and the roadside appeal second ASD test. [ 68 ] Mr. Weinkauf contends that he did not consume alcohol until after the collision and then consumed it in considerable quantities. Mr.

Weinkauf’s position is that his post-collision alcohol consumption resulted in both ASD test failures. [ 69 ] The Adjudicator has the ability to make credibility assessments ( PAPA s 18(3)) and is not bound by the rules respecting evidence applicable to judicial proceedings ( PAPA s 18(4)). However, as discussed at paragraph [53], the Adjudicator misapprehended the evidence regarding the timing of the collision which underpinned his finding regarding when Mr. Weinkauf consumed alcohol.

As a result, the Adjudicator’s conclusions under s 4(e)(iv) of SAR were not reasonable and the matter should be remitted to the Director for a re-hearing by a different adjudicator. Under s 4(f)(iv) of the SAR because Mr. Weinkauf did not have a blood alcohol level (BAC) equal to, or exceeding, 80 mg of alcohol in 100 ml blood (Over 80), within 2 hours of ceasing to operate his dirt bike [ 70 ] As noted at paragraph [53], the Adjudicator misapprehended the evidence regarding the timing of the collision, which underpinned his finding when Mr. Weinkauf consumed alcohol, and cascaded into a determination that Mr.

Weinkauf consumed no alcohol post-collision and an inference that he consumed all alcohol pre-collision. Accordingly, the Adjudicator’s conclusion under s 4(f) (iv) of SAR is not reasonable and this matter should be remitted to the Director for a re-hearing by a different adjudicator. Under s 4(f)(

v) of SAR because even though Mr. Weinkauf had a BAC Over 80 within 2 hours after ceasing to operate his dirt bike: (

A) he consumed alcohol after ceasing to operate it; (

B) he had no reasonable expectation of providing a breath sample; and (

C) his consumption was consistent with a BAC less than Over 80 at the time he was operating his dirt bike [ 71 ] The grounds for cancelling a TSA s 88.1(1)(

b) notice of administrative penalty under s 4(f)(

v) of SAR are based on circumstances where the evidence shows a BAC Over 80 within two hours of operating a motor vehicle, but where the recipient can meet a three-part test. This provision provides for a cancellation of a notice of administrative penalty where a recipient fails an ASD test within two hours of driving but proves that the recipient’s consumption of alcohol occurred after operating a motor vehicle, that the recipient had no reasonable expectation of a breath sample demand and the recipient’s alcohol consumption is consistent with a BAC less than Over 80 at the time the recipient was driving. [ 72 ] To succeed under s 4(f)(

v) of SAR , each of the elements must be made out and Mr. Weinkauf must prove, on a balance of probabilities, that: (

a) Element 1: he consumed alcohol after ceasing to operate his dirt bike (

b) Element 2: after ceasing to operate his dirt bike, he had no reasonable expectation that he would be required to provide a breath sample (

c) Element 3: his alcohol consumption is consistent with his BAC, and him having had, at the time he was operating his dirt bike, a BAC of less than Over 80 Element 1: he consumed alcohol after ceasing to operate his dirt bike

[ 73 ] This point is disputed by Mr. Weinkauf and has been addressed above at paragraphs [46] to [53]. For the purpose of this analysis, I accept that Mr. Weinkauf has satisfied this element of the three-part test. Element 2: after ceasing to operate his dirt bike, he had no reasonable expectation that he would be required to provide a breath sample Mr. Weinkauf’s position [ 74 ] Mr.

Weinkauf submits that he had no reasonable expectation of providing a breath sample because he provided his contact information to the Complainant and advised the Complainant that he would pay for damages and that there was no need to call the police. Adjudicator’s conclusion on “reasonable expectation” [ 75 ] On four occasions in the Decision, the Adjudicator referred to the incident that resulted in the RCMP being called to the scene as a “hit and run”: see paras 1, 8 and 19, where it is mentioned twice. What the Police Narrative states is that: RCMP were called to a hit and run collision ...

Complainant indicated a ... dirt bike hit their parked mini van after it lost control during a ‘wheelie’. Driver of the dirt bike advised complainant that he would pay for the damages, and not to call police. He provided complainant with his name ... and contact number ... [ 76 ] There is no explanation as to why the Constable referred to a “hit and run” in the Police Narrative. There is no information to determine whether the Complainant referred to the incident with Mr.

Weinkauf as a “hit and run”, or if this was how the call was characterized at first instance by a dispatcher, or later by the Constable. [ 77 ] Based on the Police Narrative, the Constable investigated and noted that Mr. Weinkauf provided the Complainant with his name and contact number. There is no evidence suggesting Mr. Weinkauf provided his address, the number of his driver’s licence and licence plate number for his dirt bike, as required by s 69(2)(a)(

i) of the TSA . [ 78 ] The Adjudicator inferred from the reference to the hit-and-run in the Police Narrative that Mr. Weinkauf left the scene without the Complainant’s consent. At para 19, the Adjudicator referenced an objective test for reasonable expectation by stating a general rule, but then explained why Mr. Weinkauf was not an exception to that general rule: I find as a general rule, then, a motorist involved in a collision should have an expectation of giving a breath sample.

The Recipient has not persuaded me that he is the exception, especially when he left the scene contrary to the wishes to the other motorist involved in the collision, to the point that the complainant called police and reported a hit-and-run. I am not satisfied the Recipient did not have a reasonable expectation to provide a sample of breath. ... Analysis of “reasonable expectation” under s 4(f)(v)(

B) of the SAR [ 79 ] Under this second element of the test, Mr. Weinkauf must show that he had no reasonable expectation that he would be required to provide a sample of breath or blood. The question then is whether that “reasonable expectation” should be evaluated on a subjective or objective standard. The parties were invited to provide additional written submissions on whether a “reasonable expectation” under s 4(f)(v)(

B) of the SAR should be evaluated subjectively or objectively. [ 80 ] The Director notes the similarity between the wording in s 4(f)(v)(

B) of the SAR and s 320.14(5)(

b) of the Criminal Code : SAR 4 The grounds for an adjudicator to cancel a notice of administrative penalty … (

f) issued for a contravention of

section 88.1(1)(

b) of the Act are … (

v) that despite having within 2 hours after ceasing to operate a motor vehicle a blood alcohol concentration equal to or exceeding 80 milligrams of alcohol in 100 millilitres of blood, … (

B) the recipient, after ceasing to operate the motor vehicle, had no reasonable expectation that the recipient would be required to provide a sample of breath or blood, and … Criminal Code s 320.14

(5) No person commits an offence under paragraph (1)(

b) if … (

b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and … [ 81 ] Relying on R v Deshpande , 2021 ONCJ 699 , the Director submits that the inclusion of the phrase “reasonable expectation” means a modified objective standard is required. In Deshpande , at para 93 , the Court found that s 320.14(5) of the Criminal Code , imports a modified objective standard. The Director also notes the modified objective test approach has been applied in other circumstances to the phrase “reasonable expectation”.

In R v Marakah , 2017 SCC 59 , the majority of the Supreme Court of Canada found that a “reasonable expectation of privacy” required, in part, an analysis of whether the claimant’s subjective expectation of privacy was objectively reasonable: at paras 10 and 11. In BCE Inc v 1976 Debentureholders , 2008 SCC 69 , the Court found, with respect to an

oppression remedy, that “the concept of reasonable expectations is objective and contextual”: at para 62. [82] More recently, in R v Javanmardi, 2019 SCC 54, at paras 36 to 38, Abella J, for the majority of the Supreme Court ofCanada, confirmed the application of the modified objective standard to different categories of cases, including those involving drivingoffences: This Court most comprehensively considered how to assess and apply the reasonable person standard in Creighton. … McLachlin J.clarified that the modified objective standard is “that of the reasonable person in all the circumstances of the case” (p. 41).

She endorsedthe “reasonable person” standard in order to maintain “a uniform standard for all persons . . . regardless of their background, education orpsychological disposition” (p. 60). In her view, “[w]ithout a constant minimum standard, the duty imposed by the law would be erodedand the criminal sanction trivialized” (p. 70). … McLachlin J. explained, however, that greater care may be expected of the “reasonable person” on the basis of the nature andcircumstances of the activity (p. 72).

Certain activities, for example, require special attention and skill. … In this way, the law maintainsa “constant minimum standard” for every person who engages in an activity requiring special care and skill: they must be both qualifiedand exercise the special care that the activity requires. Creighton’s activity-sensitive approach to the modified objective standard has been applied in a variety of contexts, including in casesinvolving driving, hunting and parenting (Beatty, at para. 40; R. v.

Gendreau, 2015 QCCA 1910, at para. 30 ; J.F., at paras. 8-9).These decisions confirm that while the standard is not determined by the accused’s personal characteristics, it is informed by the activity.… [emphasis in the original] [83] As quoted above, Abella J referred to R v Beatty, 2008 SCC 5, where the accused was charged with dangerous operation of amotor vehicle causing death under s 249(4) of the Criminal Code.

In that case, Charron J, writing for the majority, applied the modifiedobjective standard ensuring that the standard is always the same: the conduct expected of the reasonably prudent person in similarcircumstances: see para 40. [84] Notwithstanding that the SAR is a different legislative regime from the Criminal Code, I find that the similarity in the wordingbetween s 4(f)(v)(

B) of the SAR and s 320.14(5)(

b) of the Criminal Code, combined with the broad acceptance of the modified objectivestandard to different categories of cases, including driving offences, make the application of the modified objective standard appropriatewhen considering “reasonable expectations” under s 4(f)(v)(

B) of the SAR. As a result, when evaluating the s 4(f)(v)(

B) reasonableexpectation requirement, I will apply the standard of the reasonably prudent driver in similar circumstances. [85] The question is: Would a reasonably prudent driver who had been in a collision with a parked car, causing some damage tothe parked car, have no reasonable expectation that a breath or blood sample would be required?

Would it make a difference if thatreasonable prudent driver had given the driver’s name and number to the owner of the parked vehicle, offered to pay for damage and toldthe owner of the parked car not to call the police? [86] I am of the view that a reasonably prudent driver who causes a collision, particularly with a parked car, should reasonablyexpect police to investigate the cause of the collision, which may include an enquiry into possible driver impairment. Further, causingdamage to the parked vehicle would, in my view, heighten a reasonable expectation of such an investigation.

That reasonable expectationof investigation remains regardless of whether that driver provides their name, contact information, and a promise to pay for damage. Acomment from the driver to the owner of the damaged car that there is no need to call police does not diminish the reasonableexpectation of a police investigation, including an enquiry into potential driver impairment. In fact, in some circumstances, such asuggestion might only heighten the reasonable expectation of a police investigation into driver impairment. [87] Mr.

Weinkauf lost control of his motor bike and collided with the mini van, causing damage. Indeed, as the Adjudicatorrecognized, the TSA contains a specific requirement that motorists cooperate with a police investigation following a collision. In thesecircumstances, a reasonably prudent driver would reasonably expect a police investigation, including an enquiry into driver impairmentwhich could include a demand to provide a breath or blood sample. [88] I note that Mr.

Weinkauf appears to have anticipated police involvement as he expressly asked the complainant not to call thepolice. [89] The Adjudicator touched on an objective test for “reasonable expectations” and then referred to whether Mr. Weinkauf was anexception to what the Adjudicator considered the general rule.

With respect, the analysis should be based on the modified objective test,as described above, and whether it was met by the recipient. [90] The Court may decline to remit a matter to an administrative decision-maker where the particular outcome is inevitable andremitting the case would serve no useful purpose: Vavilov, at para 142.

In the SafeRoads context, see also Antonio v Alberta (Directorof SafeRoads), 2022 ABQB 144, at para 9, and Engel v Alberta (Director of SafeRoads), 2022 ABQB 377, at paras 47 and 52. [91] While I find that the Adjudicator’s findings on this point are unreasonable, when the modified objective test is applied, I findit is inevitable that Mr. Weinkauf will fail to establish that the NAP should be cancelled under Element 2. Element 3: his alcohol consumption is consistent with his BAC, and him having had, at the time he wasoperating his dirt bike, a BAC of less than Over 80 [92] Mr.

Weinkauf asserts that the Adjudicator failed to consider his evidence that he did not consume any alcohol prior tooperation of his dirt bike and that his consumption of alcohol was entirely post-collision. Mr. Weinkauf submits that, if this evidence hadbeen accepted, his alcohol consumption would have been consistent with a BAC of less than Over 80 at the time of operation of his dirt

bike. In fact, acceptance of Mr. Weinkauf’s evidence would have resulted in a conclusion that his BAC when he was operating his dirt bike was zero, as he had not any consumed alcohol. [ 93 ] The Adjudicator found that Mr. Weinkauf did not establish that his alcohol was post-operation and concluded, I have found unreasonably, that Mr. Weinkauf drank no alcohol post-operation of his dirt bike. The Adjudicator also rejected Mr. Weinkauf’s assertion that his alcohol consumption was consistent with his BAC, and him having had, at the time when he was operating his dirt bike, a BAC of less than Over 80.

The Adjudicator noted that there was no evidence regarding Mr. Weinkauf’s alcohol absorption rate or the effect that alcohol had on him. [ 94 ] The Adjudicator’s determination on the issue of Mr. Weinkauf’s consumption of alcohol was unreasonable, as noted at paragraph [53]. It follows that the Adjudicator’s conclusion under s 4(f)(v)(

C) of SAR is not reasonable. Conclusion on s 4(f)(

v) of the SAR [ 95 ] To succeed under s 4(f)(

v) of the SAR , the recipient must show that all three elements are met. In this case, Mr. Weinkauf has failed on Element 2 under s 4(f)(v)(

B) of the SAR . As a result, Mr. Weinkauf cannot succeed under s 4(f)(v). Conclusion [ 96 ] Based on my reasons above, in this case: (

a) there was no breach s 12 of the PAPA ; (

b) there was no breach of procedural fairness; (

c) regarding the allegations of misapprehension of evidence: (

i) it is irrelevant whether Mr. Weinkauf walked his dirt bike to his house and, in any event, the Adjudicator did not misapprehend this evidence; (ii) the Adjudicator misapprehended the evidence that the collision occurred 30 minutes before the initial ASD test and, further, there was no basis on which the Adjudicator could reasonably find that Mr. Weinkauf drank no alcohol at all after the collision; and (iii) under the TSA , with its initial ASD test and second roadside appeal ASD test, the 15-minute wait period between last alcohol consumption and administration of the initial ASD test is not required but is required when a second roadside appeal ASD test administered. (

d) with regard to Mr. Weinkauf’s application to cancel the NAP: (

i) under s 4(e)(iv) of SAR , the matter is remitted to the Director for a re-hearing by a different adjudicator; (ii) under 4(f)(iv) of the SAR , the matter is remitted to the Director for a re-hearing by a different adjudicator; and (iii) 4(f)(

v) of SAR , the NAP is confirmed. Heard on the 17 th day of June, 2022. Further written submissions received from the Director on the 4 th day of July, 2022 and from counsel for Mr. Weinkauf on the 24 th day of August, 2022. Dated at the City of Calgary, Alberta this 14 th day of November, 2022. E.J. Sidnell J.C.K.B.A. Appearances: Chasidy Bishop

for the Applicant Rachelle K. Roberts for the Respondent