Morin v Alberta (Director of SafeRoads), 2023 ABKB 200

Court of King’s Bench of Alberta Citation: Morin v Alberta (Director of SafeRoads), 2023 ABKB 200 Date: 20230406 Docket: 2114 00331 Registry: St. Paul Between: Richard Morin Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice E.J.

Sidnell _______________________________________________________ Judicial Review from E Wosu (the Adjudicator) Dated the 21 st day of October, 2021 (the Decision) Morin (Re) , 2021 ABSRA 1049 [ 1 ] On September 22, 2021, the Applicant, Richard Morin, refused an approved screening device (ASD) demand and the attending peace officer (the Attending Constable) issued a “Notice of Administrative Penalty” (the NAP) to him, which cited the

following contravention under s 88.1(1)(

e) of the Traffic Safety Act , RSA 2000, c T-6 ( TSA ): Subject to subsection (3), if a peace officer has reasonable grounds to believe any of the following, the peace officer shall, on behalf of the Registrar, take the actions set out in subsection (2): . . . e. that a driver, knowing that a demand has been made, failed or refused, without a reasonable excuse, to comply with a demand made on the driver under

section 320.27 or 320.28 of the Criminal Code (Canada) . [ 2 ] The SafeRoads regime legislation includes some, or all, of: (

a) the TSA ; (

b) the SafeRoads Alberta Regulation , AR 224/2020 ( SAR ); (

c) the Provincial Administrative Penalties Act , SA 2020, c P-30.8 ( PAPA ); (

d) the Provincial Administrative Penalties (Prescribed Enactments) Regulation , AR 211/2020 ( PAPPER ); and (

e) the Provincial Administrative Penalties Regulation , AR 217/2020 ( PAPR ). [ 3 ] The SafeRoads regime legislation uses the term “recipient” for a person who has received a notice of administrative penalty. Except where quoting the legislation or the Adjudicator, I have used the term “driver” for “recipient”. [ 4 ] The grounds for cancelling a notice of administrative penalty issued under s 88.1(1)(

e) of the TSA are found in s 4(

i) of the SAR , the applicable portions of which are as follows: 4 The grounds for an adjudicator to cancel a notice of administrative penalty (

i) issued for a contravention of

section 88.1(1)(

e) of the Act are . . . (ii) that the Director did not provide complete records to the recipient as required by

section 12 of the Provincial Administrative Penalties Act , . . . (

v) that the recipient, knowing that a demand had been made on the recipient under

section 320.27 or 320.28 of the Criminal Code (Canada) , did have a reasonable excuse for failing or refusing to comply with that demand, [ 5 ] In addition, an adjudicator must consider the circumstances of the case and the effect of any irrelevant or unreliable evidence. Where the circumstances are so egregiously unfair that they outweigh the public interest in traffic and safety, an adjudicator may cancel a notice of administrative penalty.

This is set out in Appendix A to the Decision, footnotes omitted: In the context of a roadside sanction scheme for the promotion of traffic and public safety, this means that the duty of fairness requires an adjudicator to consider whether the impugned circumstances or police conduct underlying the claimed Charter breaches renders the evidence irrelevant or unreliable, such that it would be unfair to consider it or give it any weight.

An adjudicator may also cancel the NAP because the adjudicator finds that the circumstances of the NAP are so egregiously unfair that they outweigh the public interest in traffic and public safety. [ 6 ] Mr. Morin applied for a review of the NAP under s 7(1) and s 16(1) of the PAPA . Under s 18 of the PAPA , on a review by an adjudicator: (

a) the burden of proof is on the recipient of a notice of administrative penalty, in this case Mr. Morin; (

b) an adjudicator may determine the weight to be given to any documents, records, representations or evidence; and (

c) an adjudicator is not bound by the rules respecting evidence applicable to judicial proceedings. [ 7 ] The evidence before the Adjudicator consisted of the records identified in Appendix B to the Decision, and included, among other items, the first page of the NAP and the questions posed by the Administrative Penalty Information System (APIS) and the responses Cst. Elzinga (the Attending Officer) entered in APIS, including the Attending Officer’s narrative (the Police Narrative). [ 8 ] The Adjudicator issued the Decision confirming the NAP on October 21, 2021. Mr.

Morin filed an Originating Application seeking judicial review under s 24(2) of the PAPA and named the Director of SafeRoads Alberta (the Director) as the respondent. [ 9 ] Mr. Morin raised numerous grounds for judicial review in his Originating Application; however, he did not address all of the grounds in his brief and did not specifically abandon those which were not addressed. This judicial review was initially heard on February 3, 2023 and counsel for Mr. Morin submitted he wanted to rely on the cancelation ground, which is set out as Issue 1, below.

At the hearing, counsel were given leave to provide further written materials on Issue 1 and a further hearing was scheduled for March 31, 2023. [ 10 ] Together with further written materials on Issue 1, the Director filed a Supplementary Affidavit, without seeking leave of the

Court. The Director submitted that the Supplementary Affidavit evidence was submitted to assist the Court in understanding why the Decision was reasonable. However, the Director provided no authority for the proposition that the Director is entitled to rely on evidence beyond the certified record of proceedings and did not address the Director’s non-compliance with Rule 3.22 of the Alberta Rules of Court , AR 124/2010 . I decline to consider the Director’s Supplementary Affidavit evidence because it is improperly before the Court. Standard of Review [ 11 ] Both Mr.

Morin and the Director agree that the standard of review to be applied to the Decision is the standard of reasonableness. [ 12 ] Administrative decision makers must provide understandable reasons. In Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , at para 98 , the majority referred to Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association , 2011 SCC 61 , to illustrate this point: ...

In Alberta Teachers , this Court also reaffirmed the importance of giving proper reasons and reiterated that “deference under the reasonableness standard is best given effect when administrative decision makers provide intelligible and transparent justification for their decisions, and when courts ground their review of the decision in the reasons provided”: para. 54.

Where a decision maker’s rationale for an essential element of the decision is not addressed in the reasons and cannot be inferred from the record, the decision will generally fail to meet the requisite standard of justification, transparency and intelligibility. [ 13 ] Mr. Morin asserts that the Adjudicator misapprehended his arguments. Mr. Morin addressed many of the issues from the perspective of criminal law. That is not the applicable framework, and it is not how the review was approached by the Adjudicator.

In addressing the reasonableness of the Decision, I have considered whether it is understandable given that the approach taken by the Adjudicator was different than Mr. Morin’s approach. Issues [ 14 ] This judicial review raises the following issues: Issue 1: Was the Decision unreasonable because the Adjudicator did not cancel the NAP under s 4(i)(ii) of the SAR ? Issue 2: Should s 88.1(1)(

e) of the TAS be interpreted in the same manner as the Criminal Code , RSC 1985, c C-46 ? Issue 3: Was the Decision unreasonable because the Adjudicator did not find, or misapprehended, Mr. Morin’s submission that, the NAP was not legal because: (

a) the Attending Constable did not make it clear whether the demand was an ASD demand or a mandatory alcohol screening (MAS) demand; (

b) if a MAS demand was made, the Attending Constable did not have an ASD in his possession when the demand was made, as required under s 320.27(2) of the Criminal Code ; (

c) if an ASD demand was made, the Attending Constable did not have reasonable suspicion for the ASD demand, as required under s 320.27(1) of the Criminal Code ; or (

d) the Attending Constable did not make the demand immediately and therefore it was not a valid demand. Issue 4: Can Mr. Morin raise a new issue on judicial review which was not raised before the Adjudicator? Issue 1: Was the Decision unreasonable because the Adjudicator did not cancel the NAP under s 4(i)(ii) of the SAR ? [ 15 ] Mr. Morin asserts that the NAP did not meet the requirements of the legislation because it did not include two elements referred to in s 10(

a) of the SAR : (1) a statement indicating the conditions for reinstatement of Mr. Morin’s license; and (2) a reference to the SafeRoads Alberta website. Mr. Morin further submits that, as a result of the NAP failing to contain this information, that a notice of administrative penalty was not served on him, and the NAP should be cancelled. [ 16 ] The PAPA defines a “notice of administrative penalty” in s 1(1)(k): “notice of administrative penalty” means a notice of administrative penalty issued under

section 5; [ 17 ]

Section 5 of the PAPA states: An officer who has reasonable grounds to believe that a person has committed a contravention may issue a notice of administrative penalty to that person. [ 18 ]

Section 6 of the PAPA also provides context: A notice of administrative penalty must be in a form and contain the content satisfactory to the Minister.

[ 19 ] The PAPPER confirms that the PAPA and the procedures under the PAPA , apply to the TSA and the TSA regulations, which includes the SAR . [ 20 ]

Section 3 of the PAPR sets out the content requirements for a notice of administrative penalty, including, at s 3(1)(d), the website address where certain specified information is available. In addition, s 3(2) of the PAPR states: The information available to the recipient at the website address referred to in subsection (1)(

d) forms part of the notice of administrative penalty. [ 21 ] Mr. Morin raises non-compliance of the NAP with s 10(

a) of SAR , which also sets out the requirements of a notice of administrative penalty and states, emphasis added: 10 In addition to the content satisfactory to the Minister responsible ... a notice of administrative penalty must contain the following: (

a) in respect of a notice of administrative penalty issued for a contravention of

section ... 88.1 of the Act, . . . (ii) a statement indicating that there may be additional conditions for reinstatement of the recipient’s operator’s licence, . . . (

v) the website address for SafeRoads Alberta; [ 22 ]

Section 28 of the PAPA is a saving provision for a notice of administrative penalty: 28 Failure to complete any information required in a notice of administrative penalty does not affect the validity of a notice of administrative penalty or any part of it if (

a) the recipient is identified with reasonable clarity, (

b) the provision of the enactment the recipient is stated to have contravened is specified, (

c) the date on which the contravention is stated to have occurred is specified, and (

d) the place at or near which the contravention is stated to have occurred is specified. [ 23 ] The Adjudicator tied the information required under s 10 of the SAR to the saving provision for completion requirements under s 28 of the PAPA and said, at para 8 of the Decision: ... Any other missing information, such as the information referred to in

Section 10 of the Regulation, does not affect whether the Recipient received a valid NAP unless it is also required under

Section 28 of PAPA . Moreover, the information on additional conditions for the reinstatement of the Recipient’s operator’s licence and the SafeRoads website is found on the reverse of the NAP. Also, the Quick Response (“QR”) code on the NAP, when scanned, shows and directs the Recipient to the SafeRoads website, where additional information on the contravention is found. Thus, I find the Recipient was provided with a valid NAP in accordance with

Section 2(

a) of the Regulation. [ 24 ] In Normtek Radiation Services Ltd v Alberta Environmental Appeal Board , 2020 ABCA 456 , at para 76 , the Alberta Court of Appeal applied the principle that a valid

interpretation of legislation must: 1. be plausible in that it complies with the legislative text, 2. be efficacious in that it promotes the legislative intent, and 3. match accepted legal norms in that the

interpretation is reasonable and just. [ 25 ] The Adjudicator’s legislative

interpretation is unreasonable to the extent that it allows for the requirements of a notice of administrative penalty form, described in s 10 of the SAR , to be satisfied if the completion of individual driver information meets the requirements described in s 28 of PAPA . These two provisions relate to different aspects of a notice of administrative penalty, the satisfaction of s 28 of the PAPA requirements cannot be satisfaction of s 10 of the SAR requirements.

Section 10 of the SAR relates to the notice of administrative penalty form issued by the Minister, whereas s 28 of the PAPA addresses the “[f]ailure to complete any information” on a notice of administrative penalty, which is directed to the completion of the notice of administrative penalty template for a particular individual. [ 26 ] Furthermore, the Director’s proposed

interpretation would render the requirements of s 10 of the SAR and s 3 of the PAPR ineffective and leave them without any meaning. Such an

interpretation cannot be reasonable and would run counter to the purpose of the SafeRoads regime legislation which, among other things, is to adopt a simplified form and process for administratively enforcing contraventions: PAPA s 2(a). [ 27 ] I find that the words in s 10 of the SAR must be given their ordinary meaning, including that a notice of administrative penalty “must” contain certain information, including “indicating that there may be additional conditions for reinstatement of the recipient’s operator’s licence” and “the website address for SafeRoads Alberta”. [ 28 ]

Section 2 of the SAR required the NAP to be provided to Mr. Morin:

The Director shall provide the following to a recipient on receipt of an application for review: (

a) a copy of the notice of administrative penalty ... [29]

Section 12 of PAPA, sets out the Director’s duty to provide records:

(1) The Director shall, after receiving a request for review and the prescribed fee, provide to the recipient, in accordance with theregulations, relevant records as prescribed in the regulations or the regulations under a prescribed enactment. . . .

(3) Where the Director is unable to provide relevant records in accordance with subsection (1), the Director may cancel the notice ofadministrative penalty. [30] It is peculiar that the requirements for the contents of a notice of administrative penalty are found in different places within theSafeRoads regime legislation; however, it is for an adjudicator to determine whether a notice of administrative penalty has been providedto the driver in accordance with the SafeRoads regime legislation. [31] I find the Decision unreasonable because the Adjudicator relied on an

interpretation of effect of s 28 of the PAPA on s 10 ofthe SAR that is unreasonable. The matter is to be returned to the Director for assignment to a new adjudicator for determination ofwhether the NAP should have been cancelled under s 4(i)(ii) of the SAR, taking into consideration the

interpretation of s 10 of the SARand s 28 of the PAPA, together with the SafeRoads regime legislation requirements for the contents of a notice of administrative penaltytemplate form. Issue 2: Should s 88.1(1)(

e) of the TAS be interpreted in thesame manner as the Criminal Code, RSC 1985, c C-46? [32] An offence under s 88.1(1)(

e) of the TAS arises upon a driver’s failure to comply with a demand made under s 320.27 or320.28 of the Criminal Code, though only the former

section is applicable in this case. [33] Mr. Morin asserts that “ASD demands are warrantless seizures of a citizen’s breath. ... to pass constitutional muster, theymust comply with the Charter”. Relying on R v Collins, (SCC), at para 34, Mr. Morin states that for an ASD demand tobe legal, it must be: (

a) authorized by law, in this case, by s 320.27(1) or (2) of the Criminal Code; (

b) the law must be reasonable; and (

c) it must be conducted in a reasonable manner. [34] Mr. Morin also asserts that s 88.1(

e) of the TAS should be interpreted in a comparable manner to s 320.15(1) of the CriminalCode which contains similar wording. [35] In Wilson v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47, Moldaver J, on behalf of a unanimouscourt, discussed the British Columbia automatic roadside driving prohibition scheme (the ARP scheme) implemented through the MotorVehicle Act, RSBC 1996, c 318 (the MVA) to curb the number of impaired drivers. The SafeRoads regime shares many attributes with theARP scheme.

In Wilson, Moldaver J rejected the proposition that the ARP scheme was subsidiary legislation to the Criminal Code and,in that context, noted, at paras 31 to 34, the differences between those two statutory frameworks: Mr. Wilson makes one final argument about context. He asserts that because the ARP scheme is triggered by a Criminal Code demandfor a breath sample, it is subsidiary legislation and therefore must incorporate the protections that are present under the Code. He insiststhat by departing from these protections, the adjudicator’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 ... Under the MVA, the demand for abreath sample triggers a regulatory regime that is wholly independent of the Criminal Code. The fact that the MVA relies on a CriminalCode demand for a breath sample does not render 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. ... 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 wrongful conduct, regulatory measures are generally directed to the prevention of future harm through theenforcement of minimum standards of conduct and care. These comments are particularly apt in the case of regulatory legislation involving roadside driving prohibitions ... Roadside drivingprohibitions are a tool to promote public safety. As such, the legislation necessarily places greater weight on this goal.

Unlike thecriminal law regime, persons who register a “Warn” or “Fail” under the regulatory regime do not end up with a criminal record, nor arethey exposed to the more onerous sanctions under the criminal law, including the risk of incarceration. In short, regulatory legislationdoes not share the same purpose as the criminal law, and it would be a mistake to interpret it as though it did. I therefore reject Mr.

Wilson’s contention that the ARP scheme must incorporate the same protections as those provided under the Criminal Code regime. [ 36 ] I would add to the comments of Moldaver J that persons who refuse an ASD demand under the SafeRoads regime, and are charged under s 88.1(1)(

e) of the TAS, will also not end up with a criminal record or be exposed to the more onerous sanctions under the criminal law. [ 37 ] The purpose of the PAPA is set out at s 2: The purpose of this Act is to (

a) adopt a simplified form and process for administratively enforcing contraventions, (

b) establish a consistent framework for the resolution of contraventions enforced by issuance of an administrative penalty, (

c) ensure that the process used to administratively enforce contraventions and the procedural safeguards applicable in administrative enforcement proceedings are proportionate to the regulatory nature of the contravention, (

d) resolve disputes in relation to administrative penalties in an expedient manner consistent with the procedural protections mandated by this Act, (

e) affirm that the consequences for a contravention enforced by issuance of an administrative penalty may not include imprisonment, and (

f) enhance access to justice by establishing an administrative enforcement process that can be readily understood and provides for a simple method of disputing a notice of administrative penalty. [ 38 ] Similar to the comments of Moldaver J about the MVA in Wilson , at para 34 , I find that the SafeRoads regime is administrative in nature and does not incorporate the same protections as those provided under the Criminal Code . Further, given the different purposes of the SafeRoads regime and the Criminal Code , I find that s 88.1(

e) of the TAS should be interpreted in the regulatory context and not in the criminal framework. I reject Mr. Morin’s submission that s 88.1(

e) of the TAS should be interpreted in a similar manner, and with the concomitant protections, which applies to s 320.15(1) of the Criminal Code . Issue 3: Was the Decision unreasonable because the Adjudicator did not find, or misapprehended, Mr. Morin’s submission that, the NAP was not legal because: (

a) the Attending Constable did not make it clear whether the demand was an ASD demand or a mandatory alcohol screening (MAS) demand? [ 39 ] In the Decision, the Adjudicator addressed whether Mr. Morin had a “reasonable excuse” to not comply with the ASD demand under s 88.1(1)(

e) of the TSA and therefore a ground for cancelling the NAP under s 4(i)(

v) of the SAR . On judicial review, Mr. Morin asserted that the Adjudicator misapprehended the issue. The Decision addressed the submissions in terms of possible grounds of cancellation which was different than how Mr. Morin’s written submissions were framed. [ 40 ] Mr. Morin submits that the position he took before the Adjudicator was that the NAP was issued after an illegal demand. Mr. Morin further submits that the Attending Officer did not make it clear whether the ASD demand was made under s 320.27(1) or (2) of the Criminal Code and, in any event, no grounds were made out under either of those subsections.

The relevant portion of those subsections is as follows: 320.27(1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (

a) and (

b) in the case of alcohol or with the requirements of either or both of paragraphs (

a) and (

c) in the case of a drug: (

a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose; (

b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose; (

c) to immediately provide the samples of a bodily substance that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of approved drug screening equipment and to accompany the peace officer for that purpose.

(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under

an Act of Parliament or

an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose. [ 41 ] The APIS system poses questions and the questions pertinent to this issue, together with the Attending Officer’s responses, are as follows:

Was a Screening Method Used? Yes, I had reasonable suspicion to believe the driver had alcohol or drug in their body, or used a MAS . . . Reasonable Suspicion or MAS? Reasonable Suspicion [ 42 ] The Police Narrative is clear that the Attending Officer relied on reasonable suspicion for the ASD demand, and therefore the record shows that the demand was made under s 320.27(1) of the Criminal Code . Under s 88.1(1)(

e) of the TAS , there is no requirement that the peace officer must identify the type of demand at the roadside. [ 43 ] The Attending Officer was not required by the TAS to identify the type of demand at the roadside. In the Police Narrative the Attending Officer identified that he had made an ASD demand not a MAS demand. To cover both possibilities, the Adjudicator addressed whether egregious unfairness could have arisen in either an ASD demand or a MAS demand scenario. Mr. Morin has not established that the Adjudicator’s analysis, or the Decision, was unreasonable on this ground. (

b) if a MAS demand was made, the Attending Constable did not have an ASD in his possession when the demand was made, as required under s 320.27(2) of the Criminal Code ? [ 44 ] I have found under Issue 3(

a) that the record shows that no MAS demand was made, so this ground of judicial review is not applicable. (

c) if an ASD demand was made, the Attending Constable did not have reasonable suspicion for the ASD demand, as required under s 320.27(1) of the Criminal Code ? [ 45 ] Mr. Morin asserts that, since s 88.1(1)(

e) of the TSA refers to s 320.27 and 320.28 of the Criminal Code , determining reasonable suspicion under that subsection should be consistent with the requirements for an ASD demand made under s 320.27(1)(

b) of the Criminal Code . Mr. Morin further submits that a demand made under s 320.27(1)(

b) should be governed by the jurisprudence relating to, the now repealed, s 254(2) of the Criminal Code . [ 46 ] Mr. Morin’s approach to the

interpretation of since s 88.1(1)(

e) of the TSA is not in accordance with the proper

interpretation of the TSA , as I have addressed under Issue 2. The

interpretation proposed by Mr. Morin undermines the purpose of the PAPA , set out at paragraph [37]. The

interpretation proposed by Mr. Morin would require applying an administrative penalty system overlaid on the criminal law for impaired driving. This would not lead to a simplified form for administrative enforcement, an expedient process or a simple method of disputing a TSA contravention. I do not accept Mr. Morin’s

interpretation and do not agree that a review of a contravention under s 88.1(1)(

e) of the TSA requires an analysis of the underlying legal validity of the ASD demand under either s 320.27 or 320.28 of the Criminal Code . [ 47 ] In his written materials on judicial review, Mr. Morin submits that: The [A]djudicator did not deal with the issue of “reasonable suspicion” in any way. This is an abdication of the [A]djudicator’s role, and is an obvious error of law ... [ 48 ] Mr. Morin’s comments appear after quoting from para 23 of the Decision, where the Adjudicator said that Mr.

Morin submits that the “police did not have a valid ‘reasonable suspicion’ for the demand, and the demand and sample were not made immediately”. Mr. Morin quotes from para 25 of the Decision, where the Adjudicator said: On the second issue of the peace officer’s conduct, counsel challenges the validity of the breath demand. However, the test here is not technical validity but rather egregious unfairness in the context of traffic safety. In the circumstances, I am not satisfied that the officer’s investigation was anything other than an investigation of a complaint about a possible impaired driver.

I also see nothing egregiously unfair about an officer who, upon a complaint about a possibly intoxicated driver, locates the Recipient and conducts a traffic stop on the Recipient. This is especially the case when the Recipient also exhibits some physical indicia of impairment.

I am not satisfied that the Recipient was subjected to unfairness on this ground. [ 49 ] The majority in Vavilov provided direction on the role of reviewing courts on judicial review and said, at paras 83, 85, 91 and 92, emphasis in the original: It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome. The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves.

Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. ... Instead, the reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable. . . .

Developing an understanding of the reasoning that led to the administrative decision enables a reviewing court to assess whether the decision as a whole is reasonable. ... a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires that a reviewing court defer to such a decision. . . . A reviewing court must bear in mind that the written reasons given by an administrative body must not be assessed against a standard of perfection.

That the reasons given for a decision do “not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred” is not on its own a basis to set the decision aside ... The review of an administrative decision can be divorced neither from the institutional context in which the decision was made nor from the history of the proceedings. . . . Administrative decision makers cannot always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge — nor will it always be necessary or even useful for them to do so.

Instead, the concepts and language employed by administrative decision makers will often be highly specific to their fields of experience and expertise, and this may impact both the form and content of their reasons. These differences are not necessarily a sign of an unreasonable decision — indeed, they may be indicative of a decision maker’s strength within its particular and specialized domain. “Administrative justice” will not always look like “judicial justice”, and reviewing courts must remain acutely aware of that fact. [ 50 ] In Mr.

Morin’s written materials for the review before the Adjudicator, he did not make submissions based on the statutory grounds for cancellation, which are discussed at paragraphs 3 and 4, above. Rather, Mr. Morin made numerous submissions, including some based on the Charter ( Canadian Charter of Rights and Freedoms ,

Part 1, The Constitution Act, 1982 ,

Schedule B to Canada Act 1982 (UK) 1982, c 11 ). At para 4 of the Decision, the Adjudicator addressed how Mr. Morin’s Charter submissions were dealt with on review: The Recipient has made Charter allegations. ... I do not have authority to find Charter breaches or grant Charter remedies, if necessary I will consider the arguments and evidence pertaining to them under my assessment of the grounds to cancel the NAP and the overarching duty of fairness. [ 51 ] On judicial review, Mr.

Morin said that his position before the Adjudicator was that the Attending Officer did not have valid grounds for the demand and that the Adjudicator misapprehended his submissions. The Adjudicator noted Mr. Morin’s position regarding the “validity of the breath demand” at the beginning of para 25 of the Decision. The Adjudicator considered Mr. Morin’s submissions in the context of whether there was egregious unfairness in relation to the demand made. The Adjudicator noted that the Attending Officer responded to a complaint about a possibly intoxicated driver and conducted a traffic stop.

The Adjudicator also noted, at paras 15 and 16 of the Decision, that the Attending Officer made observations that caused him to believe that Mr. Morin was impaired. The Adjudicator had already reviewed the evidence as to what happened at the roadside when the NAP was issued, at paras 13 to 21 of the Decision. [ 52 ] The Decision does not expressly state that the evidence contained in Mr. Morin’s affidavit was considered by the Adjudicator. Mr. Morin’s evidence was that he was tired but completely sober.

He also said that his speech was not slurred, he did not have watery, glassy eyes, his breath did not smell of alcohol and he did not stagger when he walked. [ 53 ] The Adjudicator reviewed the observations of the Attending Officer and, at para 25 of the Decision, found there was nothing egregious about the traffic stop. While acknowledgement of Mr. Morin’s evidence in the Decision would have been helpful, the Decision need not be perfect. Applying the analysis from Vavilov , at para 102 , on judicial review, the objective is to determine if the Decision is both rational and logical. Further, I find that: (

a) it is possible to trace the Adjudicator’s “reasoning without encountering any fatal flaws in its overarching logic”; and (

b) there is a line of analysis within the Decision that could reasonably lead the Adjudicator from the evidence before the Adjudicator to the conclusion set out in the Decision. [ 54 ] I find that the Adjudicator dealt with reasonable suspicion and there was no abdication of the Adjudicator’s role as asserted by Mr. Morin. The Decision meaningfully accounts for the central issues in the case and the concerns raised by Mr. Morin. I find that the Decision is not unreasonable on this issue. (

d) the Attending Constable did not make the demand immediately and therefore it was not a valid demand? [ 55 ] Mr. Morin again submits that the demand must be considered in the context of, and by applying jurisprudence relating to, the underlying provisions of the Criminal Code . I have rejected that

interpretation at paragraph [46], above. [ 56 ] Mr. Morin strenuously asserts that reasonable excuse does not arise on the facts of this case and was not argued before the Adjudicator. Mr. Morin submits that the Adjudicator misapprehended his submissions which is evidenced by the numerous references to “reasonable excuse” in the Decision. [ 57 ] On review before the Adjudicator, Mr. Morin submitted, along with other arguments, that the ASD demand had not been made with the immediacy required under s 320.27(1)(

b) of the Criminal Code . The Adjudicator noted Mr. Morin’s grounds of review. However, as discussed at paragraph [46], the

interpretation proposed by Mr. Morin is not appropriate in the SafeRoads regime context. Furthermore, Mr. Morin’s submissions to the Adjudicator did not specifically relate to the grounds of cancellation set out in s 4(

i) of the SAR or that the circumstances of the NAP were egregiously unfair. The Adjudicator addressed Mr. Morin’s submissions in the

framework of the SafeRoads regime, which was a reasonable approach given that Mr. Morin asserted an

interpretation and approach that does not apply. [ 58 ] At para 19 of the Decision, the Adjudicator found that the record contained a typographical error and corrected it: On the issue of the delay in performing the test, I note that the police narrative shows that Cst. Thiessen arrived at the scene at “23:40”. However, based on the Recipient’s evidence that there was a forty-five minute delay, and upon review of the peace officer’s handwritten notes, the occurrence time on the NAP, APIS and the Seizure notice, I am satisfied on a balance of probabilities that Cst.

Thiessen’s arrival at the scene and the Recipient’s refusal occurred between “22:40 and 22:50”. I find that “23:40” stated in the police narrative was a typographical error. [ 59 ] Mr. Morin asserts that there is no evidence to support the correction of the typographical error. I disagree. The Adjudicator explained why, based on other elements of the record, the reference to “23:40” was a typographical error. I find the Adjudicator’s correction reasonable. [ 60 ] Mr.

Morin also asserts that there is no evidence for the Adjudicator’s finding that there was an approximately 42-minute delay from the dispatch to the refusal. Mr. Morin notes that this finding is in contradiction to his affidavit evidence, in that he said that there was a 45-minute delay at the roadside. The Adjudicator was clearly aware of Mr.

Morin’s affidavit evidence as it was referenced in para 19 of the Decision, quoted above. [ 61 ] At paras 20 and 21 of the Decision, the Adjudicator said: It is undisputed that the peace officer was dispatched to the scene at 10:08 p.m., and that the Recipient refused to comply with the breath demand at 10:50 p.m. Based on this evidence, I am satisfied that it was approximately forty-two minutes from the officer’s dispatch to the Recipient’s refusal.

Thus, the issue to be determined is whether the forty-two minute delay in performing the breath test amounts to a reasonable excuse for the Recipient’s refusing to comply with the breath demand. I have considered that the contravention occurred at Township road 592 in Smoky Lake, a rural area. The police evidence shows that Cst. Thiessen, a trained ASD operator, was on call. Given that the contravention took place in a rural area and Cst. Thiessen was on call, it makes sense that Cst. Thiessen did not “immediately” arrive at the scene.

I have also considered that the ASD demand was not made immediately after the traffic stop, as there were interactions between the peace officer and the Recipient, which would have taken some time. I also note that the officer was investigating a complaint about a possible intoxicated driver. In the circumstances, I find on a balance of probabilities that the approximately forty-two minute before the Recipient’s refusal, does not amount to a reasonable excuse for the Recipient to refuse to comply with the breath demand. [ 62 ] The Adjudicator reviewed Mr.

Morin’s submissions on delay and considered them in the context of whether Mr. Morin had a reasonable excuse not to comply with the ASD demand. The Adjudicator dealt with this argument as a possible ground for cancellation of the NAP under s 4(i)(

v) of the SAR . [ 63 ] At para 26 of the Decision, the Adjudicator said: Regarding the delay in performing the ASD test, I have considered that the contravention took place in a rural area, and that Cst. Theissen, the trained ASD operator was on call, and there was police interaction with the Recipient. I am not satisfied that the forty-two minute delay in performing the ASD test amounts to egregious unfairness. [ 64 ] Mr.

Morin raised specific temporal allegations regarding the immediacy of the ASD demand and these allegations were addressed by the Adjudicator, albeit in the framework of a cancellation of a contravention. The Adjudicator dealt with Mr. Morin’s argument on immediacy of the ASD demand as an issue of “reasonable excuse”. I find that the Adjudicator’s approach was reasonable because the Adjudicator made it clear that the jurisdiction on review was narrow and did not include the grounds submitted by Mr. Morin on the basis of the

interpretation of s 320.27 of the Criminal Code . Issue 4: Can Mr. Morin raise a new issue on judicial review which was not raised before the Adjudicator? [ 65 ] The law is clear that an issue which was not raised on a review before an adjudicator cannot be raised on judicial review: see Isley v Alberta (Director of SafeRoads) , 2022 ABQB 249 , at para 68 . In Isley , the same type of submission relating to ASD annual maintenance was raised on judicial review not having been raised before the adjudicator.

At paras 60 to 68, Ross J explained why a submission not made before an adjudicator cannot be made on judicial review and I adopt her reasoning. Mr. Morin’s concern about there being no evidence relating to the ASD annual maintenance was not raised before the Adjudicator and is now not properly before this Court on judicial review and I decline to consider it. [ 66 ] The analysis is the same regarding Mr. Morin’s claim that he was not given written notice of the option for a second ASD test. [ 67 ] Mr. Morin asserts that the Adjudicator is presumed to know the law, but this assertion misses the mark.

An adjudicator must respond to the issues raised by a driver on review. As discussed above, the Adjudicator responded to the issues raised by Mr. Morin. An adjudicator does not make submissions on behalf of a driver. Conclusion

[ 68 ] In

summary, I have found the following: Issue 1: Was the Decision unreasonable because the Adjudicator did not cancel the NAP under s 4(i)(ii) of the SAR ? Determination: The Decision is unreasonable. The Director shall appoint a different adjudicator to determine this issue. For clarity, the record before the new adjudicator shall be the same as the record before the Adjudicator. Issue 2: Should s 88.1(1)(

e) of the TAS be interpreted in the same manner as s 350.15(1) of the Criminal Code , RSC 1985, c C-46 ? Determination: No. Issue 3: Was the Decision unreasonable because the Adjudicator did not find, or misapprehended, Mr. Morin’s submissions? Determination: No, the Decision was not unreasonable. Issue 4: Can Mr. Morin raise a new issue on judicial review which was not raised before the Adjudicator? Determination: No. Heard on the 3 rd day of February, 2023 and the 31 st day of March, 2023 with supplementary written argument provided prior to the 31 st day of March, 2023.

Dated at the Calgary, Alberta this 6 th day of April, 2023. E.J. Sidnell J.C.K.B.A. Appearances: Alan Pearse for the Applicant Jasmeet Sadhra for the Respondent