Lawrence v Alberta (Director of SafeRoads), 2022 ABKB 825

Court of King’s Bench of Alberta Citation: Lawrence v Alberta (Director of SafeRoads), 2022 ABKB 825 Date: 20221207 Docket: 2109 00135 Registry: Peace River Between: Brady Lawrence Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice R.W. Armstrong _______________________________________________________ I. Background [ 1 ] On July 10, 2021, the Applicant, Brady Lawrence, was the subject of a traffic stop near Slave Lake, Alberta. A Mandatory Alcohol Screening (“MAS”) demand was issued. Mr.

Lawrence blew into an Approved Screening Device (“ASD”) and the result was a “FAIL.” [ 2 ] Mr. Lawrence was given an opportunity to give a second breath sample into a different ASD. The result of the second breath test was also a “FAIL.” [ 3 ] A Notice of Administrative Penalty (“NAP”) was issued to Mr. Lawrence pursuant to s 88.1(1) of the Traffic Safety Act , RSA 2000, c T-6 (the “ TSA ”). Mr. Lawrence initiated a review before a SafeRoads adjudicator, seeking cancellation of the NAP. [ 4 ] At the review, Mr. Lawrence argued the NAP ought to be cancelled because he was not advised in writing of his right to a

roadside appeal. Mr. Lawrence argued his s 8 Charter rights were violated because he did not voluntarily supply the second breath sample. Mr. Lawrence further argued that his s 10(

b) Charter right to counsel was violated and finally that the NAP should be cancelled due to unfairness. [ 5 ] Mr. Lawrence’s arguments were unsuccessful before the Adjudicator, and he now seeks judicial review of the decision confirming the NAP. II. The Adjudicator’s Decision [ 6 ] On August 3, 2021, the Adjudicator conducted an oral review of the NAP that was issued to Mr. Lawrence on July 10, 2021.

The Adjudicator issued a written decision, also dated August 3, 2021 (the “Decision”). [ 7 ] In the Decision, the Adjudicator considered three grounds upon which the NAP may be cancelled pursuant to the SafeRoads Alberta Regulation , Alta Reg 224/22020 (the “Regulation”). [ 8 ] First, the Adjudicator considered s 4(e)(

v) of the Regulation which provides for the cancellation of a NAP issued for contravention of s 88.1(1)(

a) of the TSA where the officer did not advise the recipient in writing of the right to a roadside appeal and the recipient of the NAP was unaware of that right. [ 9 ] The Adjudicator found that Mr. Lawrence was aware of his right to a roadside appeal as he exercised that right and did, in fact, take a second test. At para 9 of the Decision, the Adjudicator said “... it is apparent from reading the evidence that the Recipient [Mr. Lawrence] understood that he had a chance to complete another test if he chose to, and the Recipient did in fact exercise that right.” [ 10 ] The Adjudicator further found that Mr.

Lawrence was provided with a copy of the NAP which included written information about the right to a second test. Accordingly, the Adjudicator found that Mr. Lawrence had not, on balance, proven the ground set out in s 4(e)(

v) of the Regulations to cancel the NAP. [ 11 ] Second, the Adjudicator considered s 4(f)(viii) of the Regulation which sets out grounds for the cancellation of a NAP issued for contravention of s 88.11 of the TSA . Like s 4(e)(v), this ground requires Mr. Lawrence to establish that written notice of his right to a roadside appeal was not provided, and that he was unaware of that right. The Adjudicator noted that the analysis under s 4(f)(viii) was the same as under s 4(e)(

v) and that Mr. Lawrence had not proved this ground to cancel the NAP. [ 12 ] Third, the Adjudicator considered whether Mr. Lawrence’s right to fairness was breached. Mr. Lawrence argued that he did not receive sufficient information to voluntarily supply the second breath sample and therefore the collection of that second breath sample amounted to an unreasonable search and seizure in violation of his s 8 Charter rights. [ 13 ] Unable to consider Charter breaches or give Charter remedies, the Adjudicator considered the allegation of a Charter breach as an issue of fairness.

At para 15 of the Decision, the Adjudicator said: I am not satisfied that police were required to provide any additional information beyond what was provided, or that any lack of information resulted in egregious unfairness. The Recipient had the ability to ask questions if he wanted additional clarity, but I am satisfied that he was provided with sufficient information to understand he could take a second test and exercised that option. [ 14 ] Based on the evidence at the review hearing, the Adjudicator concluded that Mr.

Lawrence had not established that he was subject to egregious unfairness and the Adjudicator declined to cancel the NAP based on any alleged breach of Mr. Lawrence’s right to fairness. [ 15 ] As Mr. Lawrence failed to establish any grounds upon which to cancel the NAP, the Adjudicator confirmed the NAP. Mr. Lawrence now seeks judicial review of the Decision. III. Standard of Review [ 16 ] The applicable standard of review is reasonableness.

Section 24(3) of the Provincial Administrative Penalties Act , SA 2020, c P-30.8 (“ PAPA ”), mandates a reasonableness standard of review in an application for judicial review of an adjudicator’s decision. [ 17 ] The reasonableness standard of review has been applied in a series of recent judicial reviews of decisions from SafeRoads adjudicators.

See for example: Bettenson-Miller v Alberta (Director of SafeRoads) , 2022 ABKB 693 at para 4 ; Roh v Alberta (Director of SafeRoads) , 2022 ABQB 586 at para 23 ; Isley v Alberta (Director of SafeRoads) , 2022 ABQB 249 at para 26 ; Rose v Alberta (Director of SafeRoads) , 2022 ABQB 297 at para 35 ; Cornforth v Alberta (Director of SafeRoads) , 2022 ABQB 341 at paras 25-31 ; and Lawrence v Alberta (Director of SafeRoads) , 2022 ABQB 343 at paras 27-28 . IV. Issues [ 18 ] The issues in this judicial review application are:

a) Was the Decision that Mr. Lawrence received written notice of his right to a roadside appeal, and was aware of that right, reasonable?

b) Was the Decision that Mr. Lawrence was not subject to egregious unfairness reasonable? Included in this issue is consideration of whether the Adjudicator’s handling of the Charter issues raised by Mr. Lawrence was reasonable.

V. Analysis A. Was the decision that Mr. Lawrence received written notice of his right to aroadside appeal and was aware of that right reasonable? [19] Mr. Lawrence correctly asserts that the right to a roadside appeal is essential to the constitutionality of the SafeRoadslegislative regime. The risk of a false “FAIL” reading on an ASD is mitigated by the opportunity to take a second test on a differentASD.

The right to the second test is meaningless unless the individual who has registered a “FAIL” on the first test is aware of the rightto a second test. [20] The provision of written notice is one way in which the SafeRoads legislation ensures that every person subject to the regimeis aware of their right to a roadside appeal. [21] Mr. Lawrence’s evidence is that he was not provided with any paperwork related to the NAP until after the second roadsidetest was completed. He therefore argues he was not given written notice of his right to a roadside appeal. Mr.

Lawrence argues that itwas unreasonable for the Adjudicator to find that he had been given written notice of his right to a roadside appeal when that writtennotice was only provided to him after the roadside appeal had been completed. [22] This argument might be more compelling if the applicable sections of the Regulation only require Mr. Lawrence to prove thathe was not provided with written notice of his right to a roadside appeal as grounds for the cancellation of the NAP. However, that is notwhat the Regulation states. The Regulation requires Mr.

Lawrence to prove that he was not provided with written notice of his right to aroadside appeal and that he was unaware of his right. [23] The evidence before the Adjudicator was that Mr. Lawrence was surprised when his first breath sample registered a “FAIL”.The officer asked him if he wanted to blow a second time and Mr. Lawrence said that he did. [24] A second ASD was brought to the scene for the purpose of administering the roadside appeal and the second test wasadministered. The second test also registered as a “FAIL”, confirming that the first result was not an error. [25] Mr.

Lawrence’s evidence is that he was unaware that he supplied the second breath sample into a different device and that hedid not receive any paperwork, including written notice of his right to a roadside appeal, until after he provided the second breath sample.That does not change the fact that Mr. Lawrence was advised of his right to take a second test after he failed the first test and that he didso. It is also undisputed that the second test was, in fact, administered on a different ASD than was used for the first test, as required bythe legislation. [26] Mr.

Lawrence also does not dispute that he received written notice of his right to a roadside appeal. He takes issue with thefact that he did not receive that written notice until after he had taken the test, but that timing, on the facts of this case, is inconsequential.Mr. Lawrence had already been advised of his right to the second test and he had availed himself of that right. The risk that the first“FAIL” reading was an error had been fully mitigated when the second test was administered on the new ASD. [27] The Adjudicator found as a fact that Mr. Lawrence was aware of his right to a roadside appeal. Mr.

Lawrence did, in fact,avail himself of the roadside appeal. He was also given notice of the right to a second test in writing. The Adjudicator’s findings andconclusions in this regard are reasonable. B. Was the decision that Mr. Lawrence was not subject to egregious unfairnessreasonable? [28] Mr. Lawrence’s arguments relating to fairness arise primarily from his contention that his s 8 and s 10(

b) Charter rights wereviolated.

Section 8 of the Charter provides that everyone has a right to be secure against unreasonable search and seizure and s 10(

b) ofthe Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed ofthat right. [29] With respect to s 8 of the Charter, Mr. Lawrence argues that the taking of the second breath sample is a seizure and that it isunreasonable because there is no warrant authorizing the seizure and there is no informed consent that would render the second breathsample voluntary. With respect to voluntariness, Mr.

Lawrence relies on decisions in the criminal law context including R v Wills (1992) (ON CA), 70 CCC (3d) 529; 7 OR (3d) 337, R v Borden, (SCC), [1994] 3 SCR 145 and R v Kiene,2015 ABCA 326. Based on the principles articulated in these authorities, Mr. Lawrence asserts that the taking of that second sample forthe purpose of conducting a roadside appeal was a violation of s 8 of the Charter and that the Adjudicator erred or acted unreasonably infailing to find a Charter breach. [30] With respect to s 10(b), Mr. Lawrence acknowledges that an individual’s s 10(

b) Charter rights are suspended for the purposeof roadside screening; however, he takes the position that the suspension terminates when the first ASD test registers a “FAIL”. At thatpoint, the police have reasonable grounds to believe that the driver has committed a criminal offence and therefore a driver’s s 10(

b) rightto consult counsel is engaged. [31] Mr. Lawrence’s arguments with respect to ss 8 and 10(

b) of the Charter are predicated on the assumption that principles ofcriminal law apply to the SafeRoads administrative regime. That same argument was made, and summarily dismissed by the SupremeCourt of Canada in Wilson v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47 at paras 31-34: Mr. Wilson makes one final argument about context. He asserts that because the ARP scheme [the BC automatic roadside driving

prohibition scheme] is triggered by a Criminal Code demand for a breath sample, it is subsidiary legislation and therefore mustincorporate the protections that are present under the [Criminal] Code. He insists that by departing from these protections, theadjudicator’s

interpretation ignores the link between the two statutes. This argument can be disposed of summarily. The MVA and the Code are two independent statutes, with two distinct purposes. Theywere enacted by two different levels of government, neither of which is subordinate to the other: Reference re Securities Act (Canada),2011 SCC 66, [2011] 3 S.C.R. 837 (S.C.C.) at para. 71. Under the MVA, the demand for a breath sample triggers a regulatory regimethat is wholly independent of the Criminal Code. The fact that the MVA relies on a Criminal Code demand for a breath sample does notrender it subsidiary legislation.

In addition, it has long been recognized that regulatory legislation, such as the MVA, differs from criminal legislation in the way itbalances individual liberties against the protection of the public. Under regulatory legislation, the public good often takes on greaterweight. In R v. Wholesale Travel Group Inc., (SCC), [1991] 3 S.C.R. 154 (S.C.C.), at p. 219, this Court held that [r]egulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of actsinvolving moral fault to the protection of public and societal interests.

While criminal offences are usually designed to condemn andpunish past, inherently wrong conduct, regulatory measures are generally directed to the prevention of future harm through enforcementof minimum standards of conduct and care. These comments are particularly apt in the case of regulatory legislation involving roadside driving prohibitions: R. v. Gordon, 2002BCCA 224, 100 B.C.L.R. (3d) 35 (B.C.C.A.), at paras. 26-27. Roadside driving prohibitions are a tool to promote public safety. As such,the legislation necessarily places greater weight on this goal.

Unlike the criminal law regime, persons who register a “Warn” or “Fail”under the regulatory regime do not end up with a criminal record, nor are they exposed to the more onerous sanctions under the criminallaw, including the risk of incarceration. In short, regulatory legislation does not share the same purpose as the criminal law and it wouldbe a mistake to interpret it as though it did. I therefore reject Mr. Wilson’s contention that the ARP scheme must incorporate the sameprotections as those provided under the Criminal Code regime. [32] In this case, Mr.

Lawrence argues that the residual discretion in a police officer to proceed by way of criminal chargesnecessitates the incorporation of criminal protection into the roadside procedure. This argument is no more persuasive than the argumentthat was made in the Wilson case. There are two separate processes and the criminal law and the SafeRoads regulatory regime fulfil twoseparate and distinct purposes. [33] In this case, the officer chose to proceed by way of administrative penalty. Had the officer laid criminal charges, differentconsiderations with respect to the second breath test may apply.

That is not, however, what happened, and I do not accept Mr.Lawrence’s argument that the considerations applicable in a criminal law context apply to the SafeRoads administrative regime. [34] Similar arguments were made and rejected in the context of a judicial review of a decision of a SafeRoads adjudicator in Isleyv Director of SafeRoads Alberta, 2022 ABQB 249 (Isley). At para 52 of that decision, Justice J.M.

Ross summarized the limits onCharter analysis placed on a SafeRoads Adjudicator as a non-discretionary decision maker not authorized by statute to grant Charterremedies: The power of non-discretionary administrative decision-maker to deal with Charter values in relation to roadside suspension legislationhas been dealt with by Courts in BC (Borradaile v British Columbia (Superintendent of Motor Vehicles), 2020 BCSC 363 (Borradaile)and Alberta (Thomson v Alberta (Transportation Safety Board), 2003 ABCA 256 (Thomson) and Baker v Alberta (TransportationSafety Board), 2004 ABQB 244 (Baker ABQB).

The cases are clear that unless statutorily authorized, a non-discretionary decision-maker is not a court of competent jurisdiction to grant Charter remedies, and must limit any Charter analysis to only four areas: 1) Whether the alleged breach affects the relevance, reliability, or accuracy of, or otherwise undermines the evidence; 2) Whether the alleged breach would affect the fairness of the proceedings; 3) Whether the alleged breach was so egregious that relying on the evidence would be an abuse of process or a breach of naturaljustice; 4) If there is ambiguity in the legislation, Charter values must be applied to resolve the ambiguity. [35] In this case, there is no allegation that the alleged s 8 or s 10(

b) Charter rights affected the relevance, reliability or accuracy ofthe information obtained from the second breath test. The second test merely confirmed the results of the first test, thereby mitigating therisk that the results of the first test were in error. This is the precise function the second breath test is meant to fulfill. [36] Similarly, the alleged breaches do not affect the fairness of these proceedings. There are prescribed grounds upon which aNAP may be cancelled, and Mr. Lawrence was not able to prove, on balance, that any of those grounds applied in the circumstances ofhis case.

The alleged breaches did not, in any way, impair his ability to challenge the NAP within the bounds prescribed by theSafeRoads legislation. [37] Relying on the evidence obtained from the roadside test and the subsequent confirming test does not amount to an abuse ofprocess of breach of natural justice. The Adjudicator considered the circumstances in which Mr. Lawrence was issued the NAP andconcluded there was no egregious unfairness. While Mr. Lawrence may not have received the NAP paperwork until after he completedthe roadside appeal, given the Adjudicator’s finding that Mr.

Lawrence “... was provided with sufficient information to understand hecould take a second test and exercised the option...”, I conclude that the Adjudicator’s decision that there was no egregious unfairnesswas reasonable. [38] Finally, there is no ambiguity in the SafeRoads legislation requiring resolution in accordance with Charter values. TheSafeRoads legislation sets out a comprehensive and clear administrative alternative to criminal charges for impaired driving. It is

modelled on similar legislation in British Columbia, and it incorporates the safeguards introduced there, including the right to an immediate roadside appeal on a different ASD. VI.

Summary and Conclusion [ 39 ] The Adjudicator’s decision that Mr. Lawrence received written notice of his right to a roadside appeal and that he was aware of that right was reasonable. [ 40 ] The Adjudicator’s decision that Mr. Lawrence was not subject to egregious unfairness and the Adjudicator’s handling of Charter issues raised by Mr. Lawrence was reasonable. [ 41 ] Having considered the circumstances pursuant to which the NAP was issued to Mr. Lawrence in light of the arguments advanced on behalf of Mr. Lawrence, I am satisfied that the Adjudicator’s decision to confirm the NAP was reasonable.

The application for judicial review is therefore dismissed. Heard on the 10 th day of June 2022. Dated at the Town of Peace River, Alberta this 7 th day of December, 2022. R.W. Armstrong J.C.K.B.A. Appearances: Katherin Beyak for the Applicant Michael A. Power Justice and Solicitor General - Legal Services Division for the Respondent