Knull v Alberta (Director of SafeRoads), 2023 ABKB 119

Court of King’s Bench of Alberta Citation: Knull v Alberta (Director of SafeRoads), 2023 ABKB 119 Date: 20230302 Docket: 2103 15133 Registry: Edmonton Between: Kyle Knull Applicant - and - Alberta (Director of SafeRoads) Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice K.D. Nixon _______________________________________________________ Judicial Review from A. Baker Dated the 23 rd day of September, 2021 I. Introduction [ 1 ] On August 29, 2021, a peace officer issued the Applicant, Kyle Knull, a Notice of Administrative Penalty (“NAP”) pursuant to s 88.1(1)(

b) of the Traffic Safety Act , RSA 2000 c T-6 (“ TSA ”) on the basis that the officer had reasonable and probable grounds to believe that within two hours after ceasing to operate a motor vehicle, the Applicant had a blood alcohol concentration (“BAC”) that was equal to or exceeded 80 mg of alcohol in 100 ml of blood (80 mg%). The Applicant blew a "FAIL" on two Approved Screening Devices (“ASDs”), meaning he had a BAC equal to or more than 100 mg%, a level at which all individuals are impaired. [ 2 ] The grounds upon which an adjudicator may cancel a NAP are set out in s 4 of the SafeRoads Alberta Regulation , Alta Reg

224/2020 (“ SAR ”).

The Applicant applied for an oral review of the NAP before an adjudicator on the following grounds: 1. the Director failed to provide complete records: s 4(f)(iii) SAR ; 2. he did not within two hours of ceasing to operate a motor vehicle have a BAC equal to or exceeding 80mg%: s 4(f)(iv) SAR ; 3. the ASDs used to test his BAC had not been annually maintained or were used outside their calibration period: s 4(f)(vii) SAR ; 4. the officer failed to provide him with an opportunity to undergo a second test immediately upon his request for a roadside appeal under s 88.11 of TSA : s 4(f)(ix) SAR . [ 3 ] A recipient of a NAP has the onus on a balance of probabilities to establish a ground to cancel the NAP: s 18(1) Provincial Administrative Penalties Act, S.A. 2020 c P-30.8 (“ PAPA ”) The adjudicator found that the Applicant failed to establish a ground to cancel and confirmed the NAP. [ 4 ] The Applicant applies for judicial review of the adjudicator's decision pursuant to s 24 PAPA .

He submits that the decision is incorrect, or alternatively unreasonable, and that the adjudicator failed to exercise her duty of fairness. He cites five grounds to set aside the adjudicator's decision. Only two, which relate to s 4(f) (iv) and s (f) (vii) SAR , are addressed in these reasons as they are dispositive of this judicial review. II. Review before adjudicator A.

Applicant's argument before adjudicator [ 5 ] The Applicant applied for an oral review of the NAP on September 3, 2021, and the hearing occurred on September 16, 2021. [ 6 ] The Applicant argued that the requirements for electronic transmittal of documents and their admissibility in a review set out in PAPA and the Provincial Administrative Penalties Regulation, AR 217/2020 (“ PAPR ”) had not been met and, therefore, there was no admissible evidence before the adjudicator that his BAC was obtained from ASDs that were annually maintained and used within their calibration period.

As such, he argued that the NAP should be cancelled pursuant to s 4(f)(iv) and s 4(f)(vii) SAR . [ 7 ] The Applicant submitted that the Director had not met its obligation pursuant to s 12(1) PAPA and s 2(c)(

i) and (ii) SAR to provide him with the maintenance and calibration dates of the ASDs used to obtain his BAC. [ 8 ] The officer uploaded his Contravention Submission electronically through the SafeRoads electronic portal, the Administrative Penalty Information System (“APIS”), as permitted by PAPR . The supporting documents included photographs of two ASDs and their maintenance and calibration records. The Contravention Submission included the officer's name, regimental number and name of the law enforcement agency.

The photographs of the ASDs, however, were not signed and did not include the officer's name, regimental number or law enforcement agency.

The officer did not identify the two ASDs in the photographs as those used to obtain the Applicant's BAC in either his narrative in the Contravention Submission or in his handwritten notes. [ 9 ] The Applicant argued that the photographs were not provided in compliance with ss 13, 16 and 17(2) of PAPR and, therefore, were not admissible evidence in the review with the result that there was no evidence that his BAC had been obtained within the calibration period and, therefore, there was no evidence that he had a BAC equal to or exceeding 80mg% within two hours of ceasing to operate a motor vehicle. [ 10 ] As the photographs of the ASDs were not signed and did not include the officer's name or the identifying information required by s 16 PAPR , the Applicant argued that they were not admissible as proof of their contents pursuant to s 13 PAPR .

Further, the photographs were not deemed to be under oath pursuant to s 14 PAPA because the officer did not sign a statement that the photographs had not been altered in any material way as required by s 17(2) PAPR . [ 11 ] Section16 PAPR provides that an officer who issued a NAP may transmit by electronic means for any purpose, including a review, a document relating to the review if the document is signed by the officer and states the officer's name, badge or regimental number and the name of the law enforcement agency.

Section 13 PAPR provides that a document signed by a law enforcement agent who issued the NAP shall, without proof of the signature or official character of the person, be admitted into evidence on a review as proof, in the absence of evidence to the contrary, of facts stated in the document. [ 12 ]

Section s 17(2) PAPR provides that, for the purposes of s 14 PAPA , an officer may confirm a document by signing a statement that the content of the document is true, or in the case of a photograph, that the photograph has not been altered in any material way.

Section 14 of PAPA provides that a document confirmed in accordance with the regulations is deemed to have been made under oath. B. Adjudicator's decision [ 13 ] The adjudicator issued a written decision on September 23, 2021. The adjudicator found that the Applicant failed to establish a ground to cancel the NAP. In particular, the adjudicator concluded that the photographs were relevant and reliable evidence in the review and inferred that the ASDs in the photographs were those used to obtain the Applicant's BAC.

Although not physically signed in accordance with ss 13 and 16 PAPA , the adjudicator concluded that they were admissible because they had been acknowledged electronically as permitted by s 32 PAPA . Further, the adjudicator concluded that the photographs were deemed to be under oath because they had been confirmed in accordance with s 17 PAPR by their inclusion as supporting documents submitted by the officer through his

Contravention Submission through APIS and, specifically, by his solemn declaration at the end of his Contravention Submission. The solemn declaration provides: I solemnly declare the information that I have authored in this my contravention submission, and I make this solemn declaration conscientiously believing it to be true and knowing that it is of the same force and effect as if made under oath. [ 14 ]

Section 32 PAPA provides that where a document used under that Act is to be signed, that document, whether in electronic or non-electronic form, may, instead of being signed, be marked, subscribed, endorsed, acknowledged or given any other form of signification or be otherwise dealt with if so provided for under the regulations. [ 15 ] As for the linkage between the ASDs in the photographs and the Applicant's BAC, the adjudicator concluded that the ASDs in the photographs were those used to obtain the Applicant's BAC because they were uploaded by the officer under document type “Picture of device with tags … Impairment Screening Test” and “Picture of device with tags … Roadside Appeal Screening Test” as part of his Contravention Submission the same day the ASD was issued to the Applicant.

The adjudicator inferred that the officer had returned to the RCMP detachment and completed his submission through APIS using the ASDs in his possession at the time of the Applicant's breath test because the photographs were uploaded the same day. [ 16 ] The adjudicator concluded, therefore, that the Applicant had failed to establish the grounds to cancel the NAP pursuant to either s 4(f)(iv) or s 4(f)(vii) SAR . III. Standard of Review [ 17 ] The statutorily prescribed standard of review of the decision of an adjudicator is reasonableness: s 24(3) PAPA .

Where the legislature has indicated a standard of review, courts must respect that designation within the limits imposed by the rule of law: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 64 at para 35 . Reasonableness is the presumptive standard of review: Vavilov at para 10.

Vavilov, however, identified five categories where the correctness standard applies: 1. where it is the legislated standard of review; 2. statutory appeal mechanisms; 3. constitutional questions; 4. general questions of law of central importance to the legal system as a whole; and, 5. questions related to jurisdictional boundaries between two or more administrative bodies. [ 18 ] In Society of Composers, Authors and Music Publishers of Canada v Entertainment Software Association , 2022 SCC 30 the Supreme Court held that in rare and exceptional circumstances a new category of correctness review may be added.

It concluded that such rare and exceptional circumstances exist when courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute. [ 19 ] None of the five categories of exceptions to the reasonableness standard of review set out in Vavilov apply here. The legislated standard of review is reasonableness. This review does not involve statutory appeal mechanisms. No constitutional question is raised nor any question of central importance to the legal system as a whole.

Lastly, this is not a case that raises questions related to jurisdictional boundaries between two or more administrative bodies. Further, the rare and exceptional circumstance identified in Society of Composers does not apply. The Director, not the court, has first instance jurisdiction with respect to the review of a NAP. IV. Issue [ 20 ] The only issues in this review are the reasonableness of the adjudicator's

interpretation of the relevant SafeRoads legislation with regard to the admissibility of the ASD photographs and the reasonableness of her conclusion that the ASDS in the photographs were those used to obtain the Applicant’s BAC. V. Positions of the Parties in the Judicial Review A.

The Applicant's Position [ 21 ] The Applicant submits that the adjudicator made two reviewable errors: first, that the officer's solemn declaration met the requirements in ss 13, 16 and 17(2) PAPR to admit the ASD photographs as evidence deemed to be under oath and, second, that the ASDs in the photographs were those used to obtain his BAC. [ 22 ] With regard to the first error, the Applicant submits the adjudicator's conclusion that the officer's solemn declaration was an alternative form of signification permitted by s 32 PAPA satisfying the requirements of ss 13, 16, and 17(2) PAPR was unreasonable for three reasons. [ 23 ] First, to be admissible pursuant to s 13 PAPR , s 16 PAPR and s 32 PAPA require the specific document being electronically transmitted (here the photographs) to be signed and to include the officer's name and identification information because s 16 PAPR requires “the document” to be signed and s 32 PAPA permits a form of signification provided for under the regulations for “that

document”. [ 24 ] Second, the statutory solemn declaration did not comply with s 14 PAPR , which, similar to s 32 PAPA , provides that where PAPA and PAPR require a document to be signed, the requirement is satisfied if “the document” is signed, marked, subscribed, endorsed, acknowledged or otherwise signified by the officer in the manner approved by the Director. [ 25 ] Third, the officer did not sign a statement that the photographs were true and had not been altered in any way as required by s 17(2) PAPR and, therefore, they were not deemed to be under oath pursuant to s 14 PAPA . [ 26 ] In

summary, the Applicant submits that the statutory requirements for signification and confirmation of the photographs are safeguards in place to ensure that breath readings obtained are accurate and reliable and, therefore, should be strictly enforced.

Without the photographs, there is insufficient evidence that the Applicant’s BAC was obtained with annually maintained ASDs used within their calibration period. [ 27 ] With regard to the second alleged error, the Applicant submits the adjudicator engaged in speculation when she concluded that the ASDs were those used to obtain the Applicant’s BAC based on the time the ASD photos were uploaded to the SafeRoads portal. There was no evidence the officer returned to the RCMP detachment later that day, took photographs of the ASDs in his possession and uploaded them.

The Applicant submits that, at best, the adjudicator made an “educated guess” without evidence to support it: Walton v Alberta (Securities Commission ), 2014 ABCA 273 at para 26 (citing Alberta Union of Provincial Employees v Alberta , 2010 ABCA 216 . B. The Director’s Position [ 28 ] The Director submits the adjudicator’s decision that the photographs were admissible and reliable evidence was reasonable. The Applicant’s advocated

interpretation of the legislation would create overly technical and cumbersome procedural requirements contrary to the overarching purpose of the SafeRoads regime “to provide a simplified, consistent, proportionate, and expedient mechanism to evaluate the validity of Notices of Administrative Penalty”: Kelleher v Alberta (Director of SafeRoads), 2021 ABQB 517 at para 1 . [ 29 ] First, the Director submits that s 13 PAPR creates an evidentiary presumption that a document that is signed is proof of the facts stated therein, not a prerequisite for admissibility.

A document, therefore, does not need to be signed or under oath to be admissible and considered by the adjudicator. Whether it is signed goes to the matter of weight, a matter for the adjudicator to determine.

In the Director’s view, s18 PAPA , which permits an adjudicator to consider any relevant records and representations of an officer, whether sworn or not, gives the adjudicator flexibility to determine what evidence can be admitted and what weight to give to it. [ 30 ] Second, the Director submits the adjudicator reasonably concluded that the requirements for the officer's signature were met by the officer's APIS Submission.

Section 32 PAPA permits the electronic acknowledgement of a document in place of a physical signature that is provided for under the regulations.

Section 14 PAPR provides that the Director may approve the form of signification.

The Director submits that the APIS Submission is an approved form. [ 31 ] Third, the Director submits that the adjudicator reasonably concluded that the requirements of s 17 PAPR were met, and therefore, the photographs were deemed to be under oath pursuant to s 14 PAPA because they were submitted as supporting documents to the officer's APIS Submission which concludes with the officer’s solemn declaration. [ 32 ] Lastly, the Director submits the adjudicator was entitled to use her common sense and experience and made a reasonable conclusion that the ASDs in the photographs were those used to obtain the Applicant’s BAC.

V. Analysis [ 33 ] An adjudicator's reliance on photographs that were not subject to a declaration of the officer that they were not altered in any material way was held to be unreasonable in Demars v Alberta (Director of SafeRoads) , 2022 ABKB 620 and in Wildman v Alberta (Director of SafeRoads) , 2022 ABKB 756 . The Applicant submits that this court should follow Demars and Wildman.

The Director submits that both decisions, which are under appeal, were wrongly decided and urges this court not to follow them. [ 34 ] In Demars , the officer electronically signed the APIS Submission with his solemn declaration but did not state that the photographs had not been altered in any way. The adjudicator concluded that the officer's solemn declaration was sufficient to deem the photographs to have been made under oath because the officer's signature on a statement that the photographs were not altered in any material way was not mandatory.

The adjudicator interpreted the phrase “an officer may confirm the report” in s 17(2) PAPR as permissive not mandatory. Justice Kubik disagreed. [ 35 ] Justice Kubik concluded that the adjudicator's

interpretation was unreasonable as it failed to analyze s 17 PAPR in the context of the broader legislation, including the requirements of s 2 SAR , ss 12-18 PAPA and ss 12-17 PAPR . The documents must be signed to meet the evidentiary presumption in s 13 PAPR and to meet the requirements of s 17 PAPR . Further, the specific requirement of s 17(2) PAPR , that the officer state that the photographs were not altered in any material way, was mandatory.

In her view, the relevant provisions of PAPA , PAPR and SAR taken together provide procedural fairness by ensuring that the recipient of a NAP has full disclosure of the evidentiary basis for the NAP and that the documents relied upon meet basic standards of authentication, allowing an expeditious hearing, which proceed on a paper record and without oral testimony and cross-examination: at para 16. [ 36 ] Justice Kubik concluded that where the truthfulness and authenticity of the records cannot be tested through cross- examination, the requirement for both a statutory declaration as to the truth of the contents of the records and authentication of the photographs must be read as mandatory separate obligations.

She found this to be the only reasonable

interpretation of s 17(2) PAPR .

[37] In the absence of specific confirmation that the photographs had not been altered, Justice Kubik concluded that theevidentiary record was incomplete and the outcome on a re-adjudication inevitable. As such, she quashed the NAP. [38] In Wildman, as in Demars, the officer’s APIS Submission included the solemn declaration and photographs of ASDs. InWildman, the ASD numbers, which matched the ASDS in the pictures, were recorded in the officer’s notes and report, which alsoformed part of the APIS Submission.

As in Demars, there was no statement that the photographs had not been altered. [39] The recipient sought a review of the NAP pursuant to s 4(f)(vii) SAR. She argued that the adjudicator acted unreasonably inrelying on the photograph of the ASDs to reject her claim that there was insufficient evidence to conclude that the ASD had beenproperly maintained or calibrated. [40] Justice Woolley noted that Demars made clear that to be admitted as proof of the facts they contain under s 13 PAPR, astatement that the photographs have not been altered in any material way was mandatory.

She saw no basis on the criteria outlined in ReHansard Spruce Mills, (BC SC), [1954] 4 DLR 590 (BCSC), confirmed in R v Sullivan, 2022 SCC 19 at para 4, toignore the direction in Demars, a court of concurrent jurisdiction. [41] Sullivan provides that a court of concurrent jurisdiction ought to treat prior decisions as binding unless one of the followingexceptions applies: 1. subsequent decisions have affected the validity of the impugned judgment; 2. it is demonstrated that some binding authority in case law, or some relevant statute was not considered; 3. the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies ofthe trial require an immediate decision without opportunity to fully consult authority. [42] None of those exceptions applied.

Further, Justice Woolley was persuaded by Justice Kubik's reasoning on this issue. [43] Justice Woolley concluded that the adjudicator did not commit a reviewable error in finding that the officer had digitallysigned the Submission Export in accordance with s 14 PAPR. There was an evidentiary basis to find that the declaration in theSubmission Export was a form of signature approved by the Director.

Although there was no policy or other document in the CertifiedRecord from the Director that indicated the type of signatures “approved by the Director” pursuant to s 14 PAPR, the Submission Exportappeared to be a standard form used to submit the information regarding issuance of the NAP to APIS.

The adjudicator’s treatment of thedeclaration as a digital signature, therefore, was reasonable. [44] However, because the photographs submitted in the officer’s Submission Export did not include a statement that thephotographs had not been altered in any material way, Justice Woolley concluded that they did not comply with s 17 PAPR and could notbe used for the truth of their contents in relation to the maintenance and calibration of the ASDs.

She held that in deciding otherwise, theadjudicator had failed to engage with the content of s 17 PAPR and had acted unreasonably in relying on them to reject the recipient'sclaim that the NAP should be cancelled pursuant to s 4(f)(vii) SAR for the lack of sufficient evidence that the ASDs were properlymaintained or calibrated. [45] Justice Woolley acknowledged the Director's submission that s 18 PAPA allows an adjudicator to consider records that havenot been sworn or solemnly affirmed and that s 12 PAPR allows an adjudicator to consider "any relevant records" and does not set outany requirement that they be signed, authenticated, sworn or affirmed.

She concluded, at para 35: The difficulty with the Director’s position, however, is that for an adjudicator to rely on the photographs to support rejecting anargument about the maintenance and calibration of the ASD, they must use the photographs for the truth of their content. Thephotographs can only be used in that way if the requirements of s 13 have been satisfied.

Section 13 requires a document to be signed.Section 14 defines what will satisfy a signature.

Section 17 further provides further specificity around what must be done to satisfy thesignature requirement of s 14. I, like Justice Kubik, interpret meeting the requirement set out in s 17 as a precondition for a photograph tobe “signed” under s 14, and to be relied upon for the truth of its contents under s 13. [46] As did Justice Kubik, Justice Woolley concluded that this analysis provides the procedural safeguards proportionate to theregulatory nature of the proceeding: s 2(

c) PAPA. She noted that the photographs and documentary record used in review hearings arehearsay. The creator of the documents is not cross-examined. From a traditional evidentiary perspective, the evidence has accuracy andreliability problems.

She concluded that requiring the officer to confirm the truth and accuracy of documents and photographs, asprovided for in s 17 PAPR, the evidentiary problems of hearsay evidence are alleviated. [47] Unlike Demars, however, Justice Woolley remitted the matter back to an adjudicator to consider whether, with the exclusionof the photographs, there were grounds to cancel the NAP pursuant to s 4(f)(vii) SAR because there was some evidence in the officer'shandwritten notes regarding the ASDs. [48] The Director submits that Demars and Wildman conflate matters of weight and admissibility and this court should not followthem.

In the Director' view, Demars and Wildman fundamentally misinterpret s 17(2) PAPR by mistaking it as specifying how adocument is to be signed to be admitted as evidence before the adjudicator pursuant to s 14 PAPR rather than as specifying how adocument is to be confirmed to trigger the deeming under oath provision in s 14 PAPA. [49] The Director submits that if the APIS submission satisfies the signature requirements in PAPR, as Justice Woolley concluded,the photographs are admissible pursuant to s 16 PAPR and may be weighed by the adjudicator because s 18 PAPA permits an adjudicatorto consider any relevant records whether sworn or solemnly affirmed.

The Director submits that Justice Woolley misinterpreted s 17PAPR as concerning admissibility under s 13 PAPR whereas it relates to whether a document is deemed to be under oath pursuant to s 14PAPA. As such, the Director submits that the photographs are admissible and a matter of weight for the adjudicator.

[ 50 ] I find that none of the exceptions articulated in Hansard Spruce Mills exist in this case to treat prior decisions of a court of concurrent jurisdiction as non-binding. As did Justice Woolley, I find that the adjudicator's conclusion that the officer digitally signed his APIS submission to be reasonable. Further, I follow Justice Kubik and Justice Woolley who held that for photographs to be used as proof of their contents, the requirement in s 17(2) PAPR is mandatory.

In the absence of the officer's statement that the photographs have not been altered in any material way, the adjudicator's conclusion that s 17(2) PAPR was met and the photographs admissible pursuant to s 14 PAPA was unreasonable. [ 51 ] In the absence of a statement as to the authenticity of the photographs, as required by s 17(2) PAPR , the photographs could not be relied upon to reject the Applicant's argument that the grounds to set aside a NAP pursuant to s 4(f)(vii) SAR had been met. In relying on the photographs, the adjudicator acted unreasonably.

As noted by Justice Woolley, s 17 PAPR addresses the hearsay nature of the documents used in a review by requiring the officer to confirm both the truth and accuracy of documents and photographs.

Similarly, Justice Kubik noted that where records cannot be tested through cross-examination, the minimum standards for reliability and trustworthiness require a statement as to the truth of the contents of the records and the authentication of the photographs. [ 52 ] In light of my finding that it was unreasonable for the adjudicator to rely on the photographs of the ASDs, I need not address the reasonableness of the adjudicator's conclusion that the ASDs in the photographs were those used to obtain the Applicant's BAC. IV.

Remedy [ 53 ] Aside from the photographs, there is no evidence that the Applicant's BAC was obtained on ASDs properly maintained and used within the calibration period. As in Demars , the outcome on a re-adjudication in this case is inevitable. As such, the decision of the adjudicator is hereby quashed, and the NAP canceled. Heard on the 21 day of October 21, 2022, further written submissions November 29, 2022 and December 14, 2022 Dated at the City of Edmonton, Alberta this 1 st day of March, 2023 K.D. Nixon J.C.K.B.A. Appearances: Sean P Hume for the Applicant Shannon Fuhrer for the Respondent