Curtis v Alberta (Director of SafeRoads), 2022 ABKB 632

Court of King’s Bench of Alberta Citation: Curtis v Alberta (Director of SafeRoads), 2022 ABKB 632 Date: 20220921 Docket: 2103 10884 Registry: Edmonton Between: Phillip Curtis Applicant - and - Director of SafeRoads Respondent Corrected judgment: A corrigendum was issued on September 22, 2022. No changes have been made to the text of the Decision. The only change is Appendix A has been converted to a format that can be included and supported by the electronic databases. The corrigendum is appended to this judgment. Decision of the Honourable Justice Bonnie L. Bokenfohr

Judicial Review from Adjudicator C. O’Meara Dated the 5 th day of May, 2021 ( 2021 ABSRA 348 ) I. INTRODUCTION [ 1 ] This is an application for judicial review of a decision by an Adjudicator to confirm a Notice of Administrative Penalty (NAP) against the Applicant, Phillip Curtis (the Applicant), under the SafeRoads Alberta Regulation, Alta Reg 224/2020 ( SAR ). [ 2 ] The Applicant raises two issues in this judicial review: 1.

Whether it was reasonable for the Adjudicator to conclude that the issuing police officer’s handwritten notebook notes were “the report of the officer who issued the [NAP]” as contemplated by SAR . This conclusion was necessary for the Adjudicator to find that the Applicant had been provided “complete records” as contemplated by the Provincial Administrative Penalties Act , SA 2020, c P-30.8 ( PAPA ) and SAR ; and 2. Whether it was reasonable for the Adjudicator to find that the Applicant’s duty of fairness was not breached.

The Applicant argued that they were not provided with a meaningful opportunity to exercise their right to a roadside appeal. [ 3 ] On the issue of whether it was reasonable for the Adjudicator to conclude that the issuing police officer’s handwritten notebook notes were “the report of the officer who issued the [NAP],” the Adjudicator’s reasons do not demonstrate that the Adjudicator engaged in the statutory

interpretation exercise required by the question before them. As such, the Adjudicator’s decision is unreasonable. The Adjudicator’s decision is quashed and the issue is remitted back for rehearing. [ 4 ] The Applicant argues that the conduct of the police officer and the wording of the document that he was provided about the roadside appeal led him to believe that he may be subject to criminal prosecution if he failed a second approved screening device (ASD) test. The Applicant’s fear of criminal prosecution was the reason why the Applicant chose not to exercise his right to a roadside appeal.

While the Adjudicator’s reasons considered the warning on the documents provided to the Applicant, the reasons do not demonstrate that they engaged in the analysis and consideration of Charter [1] values required by the question before them. The Adjudicator’s decision on this issue is also quashed and the issue is remitted back for rehearing. II. FACTS [ 5 ] On April 6, 2021, the Applicant was stopped by an RCMP officer (the officer) for operating a motor vehicle without lights.

The officer demanded a mandatory alcohol screening (MAS) breath test from the Applicant and the Applicant provided a breath sample in an ASD. The Applicant’s breath sample registered a “FAIL” result on the ASD. The Applicant was issued a NAP by the officer.

The officer noted that “[the Applicant was] provided the option for second test but denied it” and “[the Applicant was] provided copies of all documents and advised of right to appeal.” [ 6 ] The Applicant was provided with two documents: the NAP and a second document commonly referred to as a tear-away sheet or form (TAS), attached as Appendix A to this decision. [ 7 ] On April 12, 2021, the Applicant applied for a written review of the NAP. [ 8 ] On May 5, 2021, the SafeRoads Adjudicator confirmed the NAP: Curtis (Re) , 2021 ABSRA 348 ( Curtis ). III.

ISSUES A. “Complete Records” and Police Officers’ Notebook Notes [ 9 ] In advance of the review by the Adjudicator, the Director provided the following records to the Applicant: • A copy of the NAP; • The Administrative Penalty Information System (APIS) Submission Export printout prepared by the officer who issued the NAP; • The handwritten notebook notes of the officer who issued the NAP; • The vehicle seizure notice;

• Photo of the ASD with tags that show model, maintenance expiry and calibration. [ 10 ] In the APIS Submissions Export printout there is a

section entitled “Police Narrative” which was left blank. The officer did not submit a typed report. [ 11 ] At the review hearing, the Applicant argued that the Adjudicator should cancel the NAP because the Director did not provide “complete records” as contemplated by PAPA and SAR . The Director only provided the officer’s handwritten notes which the Applicant submitted could not be “the report of the officer who issued the [NAP]”.

The Applicant acknowledged having received a copy of the officer’s handwritten notes but argued that the handwritten notes of the officer were not “the report of the officer who issued the [NAP]” as contemplated by SAR . The Applicant argued that although the word “report” is not defined in PAPA , the Adjudicator should find that “the report of the officer who issued the [NAP]” as contemplated by SAR s 2(

b) means a type-written narrative of the officer who issued the NAP. [ 12 ] The Adjudicator held that:

Section 2(

b) of [ SAR ] simply states that the Director shall provide the [Applicant] with the report of the officer who issued the NAP. There is nothing in the Regulation to suggest that this report must be typed or in any particular form. While illegible notes may result in a finding that the requirements of

Section 2(

b) of the Regulation have not been met, in this case [the officer’s] notes are easy to read and provide relevant, substantive content. The [Applicant] has not established that a required record has not been provided, and I am not persuaded that the handwritten notes do not qualify as a report under

Section 2(b). The [Applicant] has not made out this ground to cancel: Curtis at para 8. [ 13 ] This is an issue of statutory

interpretation. The standard of review is reasonableness. I considered this same issue in Dorn v Alberta (Director of SafeRoads) , 2022 ABQB 394 ( Dorn ). Just as in Dorn , the Adjudicator’s reasons in this case do not demonstrate that the Adjudicator grappled with the statutory

interpretation exercise required by the question before them. [ 14 ] The Director argued that the Adjudicator’s decision in this matter was more fulsome and could be distinguished from Dorn . I disagree. My reasons for decision in Dorn are equally applicable here: [28] ... The Adjudicator was alive to issues of procedural fairness and natural justice and considered whether the Applicant received the records necessary to challenge the issuance of the NAP.

The Adjudicator did not, however, engage in the statutory interpretive exercise required by the question before them. [29] The Adjudicator did not address the plain and ordinary meaning of the word “the.” The plain and ordinary meaning of the word “the” is unambiguous. SAR s 2 requires that “the report of the officer who issued the [NAP]” must be provided to an individual who makes an application for review: SAR s 2(b).

The Adjudicator held that the issuing officer’s handwritten notes constitute “a report from the issuing officer sufficient to allow the Recipient to challenge the NAP.” This finding and the Adjudicator’s reasons do not address the clear distinction between “a” report and “the” report. [30] Additionally, the Adjudicator did not address the wording of SAR s 2 as a whole and specifically SAR s 2(h). [31] SAR ss 2(

a) to (

g) identify specific records that must be provided to an individual who makes an application for a review. The itemized list is precise. The word “the” precedes every item in the list except for SAR s 2(f)(i), which specifies “a copy of any evaluation sheet used in the testing of the recipient” (emphasis added). [32] SAR s 2(

h) is different in that it does not refer to a specific record. It is a ‘basket clause’ that effectively directs the Director to provide, in addition to the list of records in SAR s 2(

a) to (g), any other relevant records and representations of the officer that in the opinion of the Director are relevant and necessary to determine the basis for issuing the NAP. If the legislature intended that the list of records set out in SAR s 2(

a) to (

g) could be something other than specific known records, then the basket clause would not be necessary. If “ the report of the officer who issued the [NAP]” can be any record “sufficient to allow the Recipient to challenge the NAP,” there would be no need for SAR s 2(h). [33] Further, the Adjudicator’s decision and reasons do not demonstrate that the Adjudicator engaged in a statutory interpretive exercise that considered the purpose of the SafeRoads regime to adopt simplified forms, establish a consistent framework, and resolve disputes in an expedient matter: PAPA s 2. The Adjudicator’s

interpretation of “the report of the officer who issued the [NAP]” as any record sufficient to allow a Recipient to challenge the NAP creates uncertainty for a Recipient as to whether “the report of the officer who issued the [NAP]” has been provided prior to the review. It would be equally difficult for a Recipient to assess whether “complete records” have been provided.

As a result, a Recipient may not know if there is a basis for pursuing cancellation of the NAP on the basis that the Director has not provided “complete records” pursuant to SAR s 4(i)(ii). [ 15 ] Since the Adjudicator’s reasons on this issue are deficient, the decision is unreasonable. [ 16 ] With respect to remedy, it is not evident to me that a particular outcome is inevitable. The appropriate remedy is to remit the matter back to the SafeRoads Tribunal for reconsideration with the benefit of these reasons and the reasons in Dorn . B.

The Right to a Roadside Appeal [ 17 ] In the review before the Adjudicator the Applicant acknowledged that the officer advised him both verbally and in writing of his right to a second ASD breath test. The Applicant’s evidence was that he declined the offer of the second ASD breath test because he was afraid of criminal consequences if the ASD breath test resulted in a FAIL reading.

The Applicant argued that the right to a second ASD breath test comes with a caveat that the second ASD breath test result will be used to prove the Applicant’s blood alcohol concentration in any proceeding and could result in a criminal investigation. Therefore, the offer of and right to a second ASD breath test is either unlawful or unconstitutional. The Applicant submitted that the second ASD breath test must be “unencumbered” and free from

the threat of criminal consequences. [18] While the Adjudicator considered whether the Applicant’s right to fairness had been breached, the Adjudicator framed theApplicant’s argument on this issue pursuant to the ground to cancel under SAR s 4(e)(v): whether the officer advised the Applicant inwriting of the right to a roadside appeal under

section 88.11 of the Traffic Safety Act, RSA 2000, c T-6 (TSA) and whether the Applicantwas aware of that right. The Adjudicator stated the following at paragraph 9: To succeed on this ground the [Applicant] must establish:

a) that the officer did not advise the [Applicant] in writing, for example,because the [Applicant] did not receive a copy of the NAP clearly setting out his right, or the officer did something to obscure orundermine this advice; and

b) that the [Applicant] was also unaware of that right. [19] The Adjudicator found that the references to possible criminal charges on the documents that the Applicant received were notso misleading that the Applicant was never advised in writing of the right to a second ASD breath test or had no awareness of such anoption. The Adjudicator stated the following at paragraphs 13 – 14: Nowhere on the tear-away sheet or the NAP is the [Applicant] threatened with criminal charges if he takes the roadside appeal.

Rather,the [Applicant] is warned that the evidence from a voluntary roadside appeal can be used in a criminal investigation. This is an accuratereflection of the TSA regime, which does not immunize a recipient from the application of the criminal law, so the statement seems to belittle more than providing fair warning. By analogy, in criminal investigations, I understand that police are required to caution drivers thatany statements voluntarily made can be used against them as evidence.

I do not see how such “fair warning” amounts to a contradictionof the clear advice that the [Applicant] has a right to a “voluntary second test” to confirm the evidence underlying the NAP. Being told ofa choice with a warning of the potential consequences of that choice is not the same as being denied advice or awareness that the choiceexists.

There is no other evidence before me to suggest that the officer did anything to obscure or undermine the Recipient’s right in this regard.The fact that a second test result might be used by a law enforcement agency for some other kind of investigation does not, in myopinion, invalidate it for the purposes of an administrative penalty.

I am not satisfied that the [Applicant] was denied written advice ofhis right to a roadside appeal, nor am I satisfied that the Recipient did not have awareness of that right. [20] The Adjudicator further held that the constitutionality of the SafeRoads regime is not something that they have the authorityto consider and found that there was nothing in the evidence to suggest that the Applicant was treated egregiously unfairly by the officerwho offered the second test, as required by the legislation. [21] The Applicant’s pleadings in this Court raise only an application for judicial review and do not include a request for Charterrelief or a constitutional challenge to the legislation pursuant to

Part 2 of the Administrative Procedures and Jurisdiction Act, RSA 2000c A-3 (APJA). As such, any issues regarding the constitutionality of the SafeRoads regime and whether the Applicant is entitled to aCharter remedy are not properly before me: see Rose v Alberta (Director of SafeRoads), 2022 ABQB 297 (Rose) at paras 19 – 21. 1. Application of the Charter to the NAP review process [22] The law is clear that SafeRoads Adjudicators do not have the jurisdiction to determine Charter issues: APJA s 11; Designationof Constitutional Decision Makers Regulation, AR 69/2006,

Schedule 1. In the context of judicial review, this Court can only considerwhether a SafeRoads Adjudicator’s decision considered and balanced Charter values within the context of the legislation. [23] The Adjudicator specifically acknowledged and referenced their obligation in the document titled Appendix A, “Role of theAdjudicator” attached to the Adjudicator’s decision. Appendix A states: An adjudicator is not a court of competent constitutional jurisdiction under

Section 11 of the Administrative Procedures and JurisdictionAct, RSA 2000, c A-3. Accordingly, an adjudicator does not have the power to find Charter breaches, nor grant a Charter remedy underSection 24 of the Charter. Nevertheless, an adjudicator is required to “balance Charter interests or values against (the) statutorymandate” [Borradaile v British Columbia (Superintendent of Motor Vehicles), 2020 BCSC 363 (Boradaile) at para 21, citing theSupreme Court of Canada in Doré v Barreau du Quebec, 2012 SCC 12 (Doré) and Loyola High School v Quebec (Attorney General),2015 SCC 12 (Loyola)].

In the context of a roadside sanction scheme for the promotion of traffic and public safety, this means that the duty of fairness requires anadjudicator to consider whether the impugned circumstances or police conduct underlying the claimed Charter breaches renders theevidence irrelevant or unreliable, such that it would be unfair to consider it or give it any weight: Thomson v Alberta (TransportationSafety Board), 2003 ABCA 256 at para 69.

An adjudicator may also cancel the NAP because the adjudicator finds that thecircumstances of the NAP are so egregiously unfair that they outweigh the public interest in traffic and public safety [Baker v Alberta(Transportation Safety Board), 2004 ABQB 244 (Baker) at paras 63 and 69]. [24] Consideration of Charter values will sometimes arise for administrative decision makers when deciding whether to considercertain evidence that is alleged to have been obtained in violation of the Charter: Borradaile; Baker; Mooring v Canada (NationalParole Board), (SCC), [1996] 1 SCR 75.

In these circumstances the focus of the analysis is on whether the evidence isrelevant and reliable, not on whether the evidence has been obtained in a manner that violates Charter protected interests: Borradaile atpara 30. While there is a legal difference between the two, the principles are similar.

Evidence based Charter rights are grounded inensuring that admissible evidence is relevant and reliable. [25] Consideration of Charter values is not limited to an administrative decision maker’s assessment of specific pieces of evidence.Charter values must also be considered when reviewing the circumstances as a whole and assessing principles of natural justice and theduty of fairness: Borradaile at para 21; Doré. These principles were summarized in Loyola at paragraph 39: The preliminary issue is whether the decision engages the Charter by limiting its protections. If such a limitation has occurred, then “the

question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play”: Doré , at para 57 . A proportionate balancing is one that gives effect, as fully as possible to the Charter protections at stake given the particular statutory mandate.

Such a balancing will be found to be reasonable on judicial review: Doré , at paras 43 – 45 . [ 26 ] The authority of a SafeRoads Adjudicator to consider Charter values has been considered in a number of decisions of this Court. [ 27 ] In Lausen v Alberta (Director of SafeRoads) , 2021 ABQB 896 ( Lausen ), the Adjudicator found that they had the authority to consider whether evidence of Charter breaches were a sufficient reason to cancel the NAP on the grounds of unfairness. Relying on Borradaile , MacLeod J affirmed the Adjudicator’s finding on this point.

During the judicial review, the Director acknowledged that an adjudicator’s duty of fairness requires them to consider whether any alleged Charter breaches render the evidence irrelevant or unreliable such that is would be unfair to consider it, and that an adjudicator could cancel the NAP if they found that the circumstances were so egregiously unfair that they outweigh the public interest: Lausen at para 46 . [ 28 ] In Isley v Alberta (Director of SafeRoads) , 2022 ABQB 249 ( Isley ), Ross J clarified that the Doré / Loyola framework outlining an administrative decision maker’s duty to consider and balance Charter values is engaged when the administrative decision maker has the authority to make discretionary decisions: paras 48 and 49.

The Court found that a SafeRoads Adjudicator’s decision- making is not discretionary. The only discretion that a SafeRoads Adjudicator has surrounds which records to consider, the weight to be given to the evidence, and whether to substitute a different administrative penalty when the administrative penalty has erroneously been imposed: para 51.

As a non-discretionary decision-maker with no authority to grant Charter remedies, a SafeRoads Adjudicator must limit Charter analysis to only four areas: 1) Whether the alleged breach affects the relevance, reliability, or accuracy of, or otherwise undermines the evidence (citations omitted); 2) Whether the alleged breach would affect the fairness of the proceedings (citations omitted); 3) Whether the alleged breach was so egregious that relying on the evidence would be an abuse of process or a breach of natural justice (citations omitted); 4) If there is ambiguity in the legislation, Charter values must be applied to resolve the ambiguity (citations omitted).

Isley at para 52 . [ 29 ] In Rose , Whitling J also found that the Doré / Loyola framework is inapplicable to reviews before a SafeRoads Adjudicator since a SafeRoads Adjudicator’s decision does not involve an application of discretion: para 37. The Court affirmed that where state conduct is “egregious”, a non-discretionary administrative tribunal may view reliance upon the resulting evidence as an abuse of its process or a breach of natural justice: Rose at para 32 citing Baker at paras 62 – 64 .

The exclusion of evidence gathered as a result of state misconduct does not involve a direct application of the Charter but may require the decision-maker to consider Charter values to the extent that they inform the duty of fairness: Rose at para 32 citing Lausen at paras 43 – 49 and Borradaile . 2.

Accuracy, Reliability, and Meaningful Review of ASD Result [ 30 ] The right to a roadside appeal has been recognized by the Courts as necessary for an administrative roadside suspension regime to comply with the rights and freedoms guaranteed by the Charter and specifically, the right to be free of unreasonable search and seizure as guaranteed by s 8 of the Charter : Goodwin v BC (Superintendent of Motor Vehicles ) , 2015 SCC 46 ( Goodwin ).

The Charter analysis in Goodwin as it relates to roadside appeals focused on the reliability, or rather, potential unreliability of the initial ASD breath test result: ...while s 8 [of the Charter ] is not primarily concerned with issues of procedural fairness and safeguards, the restrictive review of the basis and consequences of the breath demand was a central feature of the ARP scheme, particularly given the concerns about the reliability of the ASD, the lack of an intermediate step between the ASD analysis and the roadside suspension, and the immediacy of the penalties that ensue.

A driver’s ability to challenge the accuracy of the ASD result is thus critical to the reasonableness of the ARP scheme: para 72. ...I agree with the chambers judge’s conclusion that the absence of meaningful review of the accuracy of the result of the seizure, in light of the unreliability of the test, raises concerns about the reasonableness of the ARP scheme.

Absent such review, a driver could find herself facing serious administrative sanctions without the precondition for the sanctions being met, and without any mechanism for redress: para 75. ...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: para 77. [ 31 ] Given the potential unreliability of the initial ASD breath test result due to residual mouth alcohol (see Goodwin at para 77 ), the s 8 Charter issues of concern in Goodwin relate to the reasonableness of the search, specifically the reliability of the ASD itself, the accuracy of the ASD breath test result, and the resulting need for a meaningful review of the accuracy of that result. [ 32 ] The Alberta SafeRoads regime contemplates these issues.

The TSA requires that when a driver’s breath sample registers a FAIL result on an ASD and the officer issues a NAP to the driver, the officer must advise the person, in writing, of their right to request a roadside appeal (also commonly referred to as a second ASD breath test) to confirm the driver’s ASD breath test results. The second ASD breath test must be on a different approved screening device or on an approved instrument: TSA s 88.11. [ 33 ] In this case, the Applicant was clear in his evidence before the Adjudicator that he was aware of his right to take a second

ASD breath test but he did not participate in a second ASD breath test for fear of criminal consequences. [ 34 ] This is not the first time that an individual seeking judicial review in a SafeRoads matter has raised concerns regarding criminal consequences resulting from the second ASD breath test. In Lausen and Rose the Applicants both participated in a second ASD breath test despite their concerns regarding the use that could be made of those results.

In those circumstances, any concerns with respect to the reliability of the ASD and accuracy of the initial ASD breath test are mitigated by the fact of the second ASD breath test results. In other words, concerns based on Charter values have been assuaged when the second ASD breath test result matches the first. [ 35 ] Despite the assurance of accuracy and reliability of the breath test results in the cases before them, both McLeod J and Whitling J expressed concerns with the wording of the TAS .

In Lausen Macleod J provided the following caution at paragraph 51: I pause here to make some comment about the police procedure at issue in this case. While I have found that the Adjudicator’s decision not to cancel the NAP was reasonable, the police should be aware that this result may not always ensue. In the context of a roadside stop, the boundary between criminal investigation and administrative procedure must be more clearly delineated. As noted above, the police already have amended their forms to distinguish between a breath demand and a roadside appeal.

They also should take care to ensure that drivers are made aware if a criminal investigation is abandoned in favour of proceeding along the administrative route. [ 36 ] In Rose Whitling J made the following comments at paragraph 72: In my view, some significant concerns do arise [surrounding] certain aspects of the TAS that the Applicant was required to sign as a precondition to the exercise of his right to a roadside appeal.

In particular, the requirement that the Applicant sign what amounts to a purported waiver acknowledging that the results of the second test “will” be used against him in any future proceeding (such as a criminal prosecution) would seem to serve no other purpose than to discourage drivers like the Applicant from exercising their right to a roadside appeal. That right of appeal is rooted in s 8 of the Charter and is not subject to any such precondition.

Had the Applicant declined to exercise his right to a roadside appeal as a result of concerns arising from this requirement, the analysis of this ground of review might have been different. [ 37 ] In Cornforth v Alberta (Director of SafeRoads) , 2022 ABQB 341 ( Cornforth ), the Applicant declined to take a second ASD breath test because he “did not see the point in taking any further tests unless [he] was required to do so”: para 45.

The Applicant argued that the roadside appeal notice was deceptive and misleading and included a threat of criminal prosecution designed to deter people from pursing their right to a roadside appeal. However, the Applicant’s reasons for not participating in the second test did not relate to the wording on the NAP or the TAS. The Adjudicator held that the NAP itself was not so deceptive or contrary to law that it amounted to egregious unfairness.

On judicial review Nixon J found that that there was nothing unreasonable in the Adjudicator’s decision, noting that there was no evidence that the Applicant thought they were part of a criminal process or that their decision not to take a second test was in any way influenced by the reference on the TAS to the possibility of criminal proceedings: Cornforth at para 60 . [ 38 ] In this case, the fact that there was no second ASD breath test result to confirm the results of the first and the reasons why the Applicant declined to participate in a second ASD breath test fall squarely within the Court’s concerns in Goodwin : the reasonableness of the search as it relates to the reliability and accuracy of the initial ASD breath test and the overall duty of fairness owed to the Applicant as informed by Charter values. [ 39 ] The Director asserted that on the facts of this case police were proceeding with the administrative roadside contravention scheme and that the Applicant faced no criminal jeopardy.

The Director argued that there is no jeopardy from the second ASD breath test and submitted that if the results of the second ASD breath test were tendered as evidence in a criminal charge, the Applicant could dispute the voluntariness of the second ASD breath test and would likely succeed in having the results of the second ASD breath test excluded at trial as a result of a Charter breach.

The Director was unable to identify what possible criminal investigation or charges may result solely from the results of the second ASD breath test and argued that any criminal investigation or charges would not be based on the results of the second ASD breath test but would be something else or some “other” investigation. [ 40 ] The position of the Director is similar to the reasoning of the Adjudicator who held that the caution on the TAS is ‘fair warning’ that the results of the second test might be used “for some other kind of investigation”: Curtis at para 14. [ 41 ] The arguments of the Director and reasoning of the Adjudicator are difficult to rationalize on a plain reading of the TAS.

Contrary to the submissions of the Director, nowhere on the TAS does it make clear that no criminal jeopardy will flow from the results of the second ASD breath test. The TAS in fact says the opposite. Also contrary to the submissions of the Director, it is not clear on the facts of this case that the Applicant faced no criminal jeopardy. Both the Director and the Adjudicator rely on the premise that any criminal investigation or charges would be for something other than an investigation related to the Applicant’s ASD breath test with the FAIL result. The TAS does not say this.

The TAS, in fact, states that if the results of the second breath test show a blood alcohol concentration above the legal limit, the Applicant may be charged with a criminal code offense under

section 321.14 or 320.15. These sections include operation while impaired, operation while impaired causing bodily harm or death, and failure or refusal to comply with a breath demand. [ 42 ] The Adjudicator did not find that they did not believe the Applicant’s evidence or reasons for not participating in a second ASD breath test. The Adjudicator appears to have either found the Applicant’s evidence irrelevant or concluded that the Applicant was wrong in his understanding, or wrong to be confused.

The Adjudicator’s reasons rest on an assumption that the Applicant should have known that the results of the second ASD breath test might be used for “some other kind” of investigation. This is contrary to the evidence of the Applicant and not supported by the wording of the TAS. 3. Fairness of the Proceedings and Egregious Abuse of Process or Breach of Natural Justice [ 43 ] The objective of the SafeRoads regime is to remove impaired drivers from Alberta highways and reduce death and injury caused by impaired drivers.

The regime is constitutionally sound if it provides individuals with a “meaningful” opportunity to review an initial ASD breath test result.

[ 44 ] The issue in this case is therefore whether the Applicant was provided with meaningful opportunity for a review. [ 45 ] While both the Director and the Adjudicator assert that the regime and TAS are clear that the Applicant did not face criminal jeopardy arising from the results of the second test, it was not clear to the Applicant. The evidence of the Applicant was that the wording of the TAS left him with the impression that if he took a second ASD breath test it could result in criminal charges.

On a plain reading of the TAS this was not an unreasonable impression for the Applicant to have. [ 46 ] The Adjudicator’s reasons focused on whether the officer did anything to obscure or undermine the Applicant’s right to a roadside appeal (para 14) and whether the officer treated the Applicant egregiously unfairly (para 15). These are not the only questions that need to be considered.

It was also necessary for the Adjudicator to consider whether the contents of the TAS, the NAP, or the overall process somehow obscured the Applicant’s right to a roadside appeal and if so, whether this has affected the fairness of the proceedings or is an egregious abuse of process or a breach of natural justice. [ 47 ] In circumstances where the reliability and accuracy of the initial ASD breath test result is a live issue at a NAP review, and a roadside appeal of the initial ASD breath test was declined by the Applicant, an Adjudicator should consider whether the initial ASD breath test result is accurate and reliable evidence sufficient to confirm the NAP.

This is an evidentiary question that requires the Adjudicator to decide whether to admit the initial ASD breath test result and, if so, what weight to give it. The Applicant’s reasons for declining to participate in a roadside appeal may be relevant to that inquiry.

For example, if the Applicant declined to participate in a roadside appeal because of confusing or misleading information provided to the Applicant by the State, the Adjudicator should consider whether the process was procedurally fair and was in accordance with the principles of natural justice. [ 48 ] In this case, the Adjudicator’s reasons do not demonstrate that they considered the evidence of the Applicant, nor do they demonstrate that the Adjudicator fully engaged in the analysis and consideration of Charter values required by the question before them.

On this basis the Adjudicator’s decision on this issue is also quashed and the issue remitted back for rehearing. IV. CONCLUSION [ 49 ] The matter is remitted back to the SafeRoads Tribunal for reconsideration with the benefit of my reasons above. Heard on the 30 th day of June, 2022. Dated at the City of Edmonton, Alberta this 21 st day of September, 2022. Bonnie L. Bokenfohr J.C.K.B.A. Appearances: Y Rory Ziv for the Applicant, Phillip Curtis Michael A Power for the Respondent, Director of SafeRoads Appendix A Notice of Administrative Penalty

Immediate Roadside Sanction (IRS) EFFECTIVE IMMEDIATELY : • Your privilege to operate a motor vehicle in the province of Alberta has been suspended/disqualified, • Your vehicle may be seized as a result of your suspension/disqualification, • You are subject to a fine plus victim fine surcharge, and • You may be subject to further administrative and criminal sanctions and penalties. A peace officer has required that you surrender your driver's licence. Refusal or failure to surrender your driver's licence does not prevent the suspension/disqualification from driving from taking effect.

SECOND TEST: The choice to request a second test is completely voluntary. If you choose to have a second test, you may be required to immediately accompany the peace officer for that purpose: BE ADVISED: If your second test result indicates your drug/alcohol concentration is equal to or greater than: • 80 milligrams of alcohol in 100 millilitres of blood, or • the blood drug concentration as set out in the Criminal Code (Canada) , or • a combination drug/alcohol concentration as set out in the Criminal Code (Canada) the peace officer may proceed with a criminal investigati on . You may be required to provide further samples, and as a result you may be charged with a criminal offense under

section 320.14 or 320.15 of the Criminal Code (Canada) . Second Test Results If the results of your second test is less than any prohibited drug/alcohol concentration, your contravention will be CANCELLED. If the result of your second test is equal to or greater than any prohibited drug/alcohol concentration, your contravention will be CONFIRMED. YOU MUST IMMEDIATELY INDICATE TO THE PEACE OFFICER YOUR CHOICE TO HAVE A SECOND TEST . For additional information on your rights to review, please refer to the back of the Notice of Administrative Penalty and/or Seizure Notice under the heading "Important Information'.

I , , a m requesting an d d o voluntarily consent t o th e taking of a sample that will be used to confirm the concentration of alcohol and drugs (if any) in my blood. I will accompany the peace officer for that purpose and I understand that the result of this test will be used to prove my blood alcohol and drug concentration (if any) at the time of driving in any proceeding arising from this event. Signature Date (yyyy-mm-dd) _______________________________________________________ Corrigendum of the Decision of The Honourable Justice Bonnie L.

Bokenfohr _______________________________________________________ Appendix A has been converted to a format that can be included and supported by the electronic databases.

[1] Charter of Rights and Freedoms , s 7,

Part 1 of the Constitution Act 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 .