Singh v Alberta (Director of SafeRoads), 2022 ABKB 746

Court of King’s Bench of Alberta Citation: Singh v Alberta (Director of SafeRoads), 2022 ABKB 746 Date: 20221110 Docket: 2103 12892 Registry: Edmonton Between: Harjeet Singh Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Decision of the Honourable Justice K.D. Nixon _______________________________________________________ Introduction [ 1 ] This is an application for judicial review of an adjudicator’s decision to uphold a Notice of Administrative Penalty (NAP) issued to Harjeet Singh (the Applicant) pursuant to s 88.8(1)(

e) of the Traffic Safety Act , RSA 2000 c T-6 ( TSA ) and SafeRoads Alberta Regulation , Alta Reg 224/2020 ( SAR ).

Section 88.8(1)(

e) provides for a NAP issued on the basis that the officer has reasonable grounds to believe that, knowing a demand had been made, the operator of a motor vehicle failed or refused, without reasonable excuse, to comply with a demand made under s 320.27 or 320.28 of the Criminal Code, RSC 1985, c C-46 . [ 2 ] In Korteweg v Alberta (Director of SafeRoads ) , 2022 ABQB 236 , I reviewed the legislative background and administrative review provisions of the SafeRoads regime: paras 2-8. I will not review them again in this decision. History A. Circumstances of the Traffic Stop

[ 3 ] On July 26, 2021, the Edmonton Police Service responded to a report that an intoxicated man was harassing workers at a shop in Edmonton. The complainant reported that the man was attempting to leave the shop in a 2010 Mitsubishi Outlander but had been stopped. [ 4 ] When police arrived at the shop, the complainant identified the driver as the Applicant. A police officer read the Applicant a Mandatory Alcohol Screening demand to provide a breath sample into an Approved Screening Device (ASD).

The officer could smell liquor on the Applicant’s breath and observed that the Applicant’s eyes were watery. [ 5 ] The battery in the ASD was dead. A new ASD was brought to the scene and the officer instructed the Applicant to take a deep breath of air, seal his lips on the ASD mouthpiece and provide a continuous breath of air into the ASD. The officer also told the Applicant to blow into the ASD like he was blowing up a balloon. The Applicant indicated he understood but the officer observed the Applicant holding his breath while purporting to give a breath sample.

The officer advised the Applicant that he knew he was holding his breath and that the ASD tone was not activated. The officer informed the Applicant that if he did not provide a sample he would be charged with refusal. [ 6 ] The Applicant said he lacked lung capacity to provide a sample, but the officer did not notice that the Applicant had any trouble breathing.

Despite repeated instructions on how to provide a breath sample, the Applicant, on three more attempts, was observed holding his breath and “sticking his lips out and … looked like he was kissing the mouthpiece.” The tone of the ASD was not activated. [ 7 ] The officer arrested the Applicant for failure/refusal to provide a breath sample. Subsequently, the officer provided the “tear away sheet” from the NAP package and advised the Applicant of his right to a second test, which he requested. A second ASD was delivered five minutes later.

The officer again advised the Applicant on how to provide a breath sample. [ 8 ] In each of three further attempts to provide a breath sample on the second ASD, the Applicant sucked in air then “gave a very brief puff of air” into the ASD. The Applicant was then served with the NAP and seizure documents. B. The NAP Review [ 9 ] The Applicant requested a written review of the NAP by an adjudicator.

He sought cancellation of the NAP pursuant to s 4 (i)(ii) SAR on the basis that the Director did not provide the ASD records required by s 12 of the Provincial Administrative Penalties Act , SA 2020, c P-30.8 ( PAPA ) . [ 10 ] Upon receiving a request for a review and the fee, the Director must provide the recipient of the NAP with records prescribed in s 2 SAR : s 12 PAPA .

Section 2 requires the provision of a copy of the NAP, the report of the officer who issued the NAP and, if an ASD was used as the basis for issuing the NAP, the date of the last annual maintenance performed on the device and the date of the last calibration and expiry date of that calibration of the device.

The maintenance and calibration records were not provided to the Applicant. [ 11 ] The Applicant’s counsel submitted that his client had attempted to provide a breath sample and that the Director was required to disclose the maintenance and calibration records because the NAP was issued as a result of the failure of the ASD to register a sample. [ 12 ] The Adjudicator released her decision on August 6, 2021: Singh (Re) , 2021 ABSRA 746 .

She addressed two grounds to cancel the NAP: s 4(I)(ii) (failure to provide the ASD records) and s 4(I)(iv) (the Applicant, knowing that a demand had been made under s 320.27 or 2 320.28 of the Criminal Code , failed or refused to comply with that demand). [ 13 ] The Adjudicator confirmed the NAP. She found on a balance or probabilities that the Applicant did not produce a breath sample into either ASD on any of the six attempts.

She concluded that counsel’s mere assertion that the Applicant attempted to provide a breath sample without more was not sufficient to make a positive finding that the Applicant provided a sample. The Applicant did not dispute the police evidence that he held his breath on the attempts to blow into the first ASD and that he sucked and gave a very brief puff of air into the second ASD. [ 14 ] The Adjudicator concluded that the Applicant had not established either ground to cancel the NAP.

She concluded that as no breath sample was provided on any of the six attempts, the NAP was not issued on the basis of the ASD and, therefore, the Director was not obliged to disclose the ASD records. She further concluded that the Applicant, knowing that a demand was made on him, had failed to comply with the demand by providing a breath sample. Standard of Review [ 15 ] The parties agree that the standard of review is reasonableness.

Issues [ 16 ] The Applicant argues that the Adjudicator’s confirmation of the NAP was unreasonable because the Adjudicator relied upon the police officer’s notes without sufficient analysis or explanation and because it was made without the required records. Analysis Whether the Adjudicator unreasonably accepted or relied upon the police officer’s

narrative without sufficient analysis or explanation [ 17 ] The Applicant proceeded by way of a written hearing. Counsel submitted on his behalf that the NAP was issued because of a “constructive” refusal after attempting to provide three samples and, that the NAP was served as a result of the ASD and its failure to register a sample.

The Adjudicator noted that the sole submission of the Applicant’s counsel on this issue was that the Applicant had attempted to provide a breath sample but the Applicant had provided no evidence to contradict the officer’s observations about his behaviour or the officer’s conclusion that he was feigning providing a breath sample. [ 18 ] What the reasonableness standard requires was summarized in Kortweg at para 3: In applying the reasonableness standard, the reviewing court does not ask what decision it would have made in the place of the decision maker, attempt to ascertain the “range” of possible conclusion that would have been open to the decision maker, conduct a de novo analysis, or seek to determine the “correct” solution to a problem.

The reviewing court must consider whether the decision is internally coherent, transparent, intelligible, and justified: Vavilov at paras 15, 83, and 85. 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. [ 19 ] An administrative decision-maker's reasons are the starting point for determining reasonableness. Something more than a conclusory statement is required to satisfy the fundamental requirements of transparency, intelligibility and justification.

The reasons must communicate to the affected individual why the decision-maker decided the case the way he or she did: Vavilov paras 81, 86 and 87. [ 20 ] As the Director noted, had the Applicant provided conflicting evidence about attempts to provide a breath sample, the Adjudicator would have been required to weigh that evidence and provide reasons justifying the weight given to the evidence and her findings of fact. However, as the Adjudicator explained, the observations of the officer that the Applicant was holding his breath, “kissing” the ASD or offering only brief puffs of air was uncontested.

I find that it was reasonable for the Adjudicator to rely upon that evidence given that it was the only evidence presented to her. Accordingly, I find that it was reasonable for the Adjudicator to conclude, on a balance of probabilities, that the Applicant did not provide a breath sample into either ASD because of the absence of evidence from the Applicant about his blowing behaviour and the uncontradicted observations of the officer.

Thus, the Applicant failed to meet his onus to establish that the NAP should be cancelled because the Director did not provide records required by PAPA s 12 and SAR s 4(i)(ii) or that knowing that a demand had been made, he did not fail or refuse to comply per SAR s 4(i)(iv). [ 21 ] The reasons and conclusions of the Adjudicator on this point were justified, transparent and intelligible and I decline to interfere with them.

Whether the ASD Calibration and Maintenance was a Required Record [ 22 ] T he Applicant submits that the Adjudicator’s finding of fact that Applicant did not provide a breath sample, and therefore the ASD records were not required, was unreasonable because it was made without a determination of credibility as between himself and the police officer. The Applicant submits that the officer’s report provided evidence that there may be some issue with the ASD itself because the Applicant said he was blowing into the first device and there were puffs of air coming out of the Applicant’s mouth into the second ASD.

The Applicant submits that, while the ASD records are irrelevant and would not be required in an outright refusal to blow case, they are required where there was an attempt to blow because a conclusion cannot be made that there was a failure or refusal to comply with the demand without knowing if the ASD was functioning. [ 23 ] The Applicant submits that the proper approach was followed in Re Thind , 2021 ABSRA 174 . In that case, the adjudicator cancelled a NAP issued on the basis of a failure or refusal to provide a breath sample because the Director did not disclose the ASD records.

The adjudicator concluded that the ASD records were relevant and necessary to assess the functionality of the ASD because the NAP was issued after the recipient attempted to provide a breath sample into an ASD. The recipient in Thind provided an affidavit in which he deposed that he had never provided a breath sample before and that, despite his honest and diligent attempts, he was unable to do so. Therefore, the recipient questioned whether the ASDs were working properly.

The police officer’s report noted that the recipient had great difficulty producing a sample and was unable to keep a seal on the first ASD and had been unable to provide a sample on the second ASD. [ 24 ] The Applicant further submits that failing to provide the ASD calibration and maintenance records in this matter was a failure of procedural fairness.

The Applicant argues that the factors outlined in Canada (Minister of Citizenship and Immigration) v Baker , [1992] 2 SCR 817 , militate in favour of disclosure of the ASD records. [ 25 ] The Director submits that Thind is distinguishable from the present case because the uncontested evidence of the officer, based on his observations of the Applicant’s behaviour, is that the Applicant did not provide a breath sample. The functionality of the ASD, therefore, is irrelevant. I agree.

Where a driver’s observed behaviour establishes an intentional failure to comply with a breath demand, as in this case, the ASD is not the basis for issuance of the NAP. The Adjudicator’s conclusion that the ASD records were not required according to the legislation was reasonable in this instance. [ 26 ] The Adjudicator’s conclusion that the NAP was not issued on the basis of the ASD was reasonable because it was based on the uncontested evidence of the officer’s observations of the Applicant’s blowing behaviour. The reasons of the Adjudicator explain why she found that a sample was not provided.

She noted that counsel’s mere assertion that the Applicant attempted to provide a breath sample, without more, was not sufficient to make a positive finding that a sample was provided. Rather, the uncontested evidence showed the opposite—that a sample was not provided—and thus the NAP was confirmed on that basis. The Applicant’s bore the burden of furnishing evidence on which the Adjudicator could reach a different conclusion. He chose not to. As there was no sufficient sample

provided, neither the legislative scheme nor procedural fairness require the ASD records to be disclosed. There is nothing procedurally unfair in the failure to disclose ASD records when they are not relevant to the determination of whether there was an intentional failure to provide a breath sample. [ 27 ] The reasons and conclusions of the Adjudicator on this point were justified, transparent and intelligible. They are reasonably supported on the law and materials considered in the hearing, are appropriately explained and justified. I decline to interfere with them.

Conclusion [ 28 ] For the reasons above, the application for judicial review of the Adjudicator’s decision is dismissed. Heard on the 23 rd day of September, 2022. Dated at the City of Edmonton, Alberta this 10 th day of November, 2022. K.D. Nixon J.C.Q.B.A. Appearances: Zachary Al-Khatib for the Applicant Adam Ollenberger for the Respondent