Jones v Director of SafeRoads Alberta, 2023 ABKB 350

Court of King’s Bench of Alberta Citation: Jones v Director of SafeRoads Alberta, 2023 ABKB 350 Date: 20230609 Docket: 2201 01384 Registry: Calgary Between: Kameron Christensen Jones Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice R.W. Armstrong _______________________________________________________ Background [ 1 ] On December 2, 2021, the Applicant, Kameron Jones, was the subject of a traffic stop in Okotoks, Alberta.

He had been observed driving erratically, travelling at inconsistent speeds, and swerving in and out of his lane. When police approached, he was stopped in the parking lot of the Royal Canada Liquor Store with his vehicle running. [ 2 ] Royal Canadian Mounted Police officer, Cst. Pannag, approached Mr. Jones’s vehicle and observed indicia of impairment including slurred speech, a strong odor of alcohol on Mr. Jones’s breath and glossy, bloodshot eyes. [ 3 ] Upon speaking with Mr. Jones, Cst. Pannag formed the opinion that Mr. Jones’s ability to operate a motor vehicle was impaired by alcohol.

[ 4 ] RCMP Cst. Haner, who was at the scene with Cst. Pannag, demanded a breath sample from Mr. Jones. After 3 unsuccessful attempts, Mr. Jones provided a suitable sample on an approved roadside screening device (“ASD”). The result was a fail. [ 5 ] Cst. Haner asked Mr. Jones if he wanted to take a second test to confirm the results of the first test. Mr. Jones did not appear to understand what Cst. Haner was saying. Cst. Pannag assisted by explaining Mr.

Jones’s right to take a second test and by providing him with the written portion of the Notice of Administrative Penalty (“NAP”) that explains the right to a voluntary second test. Cst. Pannag instructed Mr. Jones to read the explanation of the second test, which he appeared to do. Mr. Jones agreed to take the second test. The result of the second test was also a fail. [ 6 ] Cst. Pannag issued Mr.

Jones a NAP on the grounds that he had, within 2 hours after ceasing to operate a motor vehicle, a blood alcohol concentration that is equal to or exceeds 80 milligrams of alcohol in 100 millilitres of blood pursuant to s 88.1(1) of the Traffic Safety Act , RSA 2000, c T-6 (the “ TSA ”). [ 7 ] On December 9, 2021, Mr. Jones sought an oral review of the NAP pursuant to s 7(1) of the Provincial Administrative Penalties Act , SA 2020, c P-30.8 (“ PAPA ”). The review was conducted on December 14, 2021, at which time the Adjudicator affirmed the NAP, finding that Mr.

Jones failed to establish any grounds to cancel the NAP. The Adjudicator’s Decision [ 8 ] The Adjudicator identified two grounds, raised by Mr. Jones, upon which the NAP may be cancelled pursuant to s 4 of the SafeRoads Alberta Regulation , Alta Reg 224/2020 (the “ Regulation ”). Those grounds are: a.

Section 4(f)(iii): that the Director did not provide complete records to Mr. Jones as required by s 12 of PAPA ; and b.

Section 4(f)(viii): that the officer did not advise Mr. Jones in writing of the right to a roadside appeal under s 88.11 of the TSA and Mr. Jones was unaware of that right. The Adjudicator also considered whether the NAP ought to be cancelled based on a breach of the overarching duty of fairness. [ 9 ] Dealing with the first issue, the Adjudicator considered whether the Director complied with the requirement to provide the date of the last annual maintenance performed on the ASDs.

It is not disputed that the Director did not provide the date of the last annual maintenance; however, the Director did provide the expiry date of the last annual maintenance. The Adjudicator considered the affidavit evidence of Kerry Lynn Blake which explains the terms ‘service expiry’ and ‘maintenance expiry.’ Based on that evidence, the Adjudicator concluded that the date of the last annual maintenance was “necessarily implied” by the information the Director did provide.

Accordingly, the Adjudicator found that the Director provided the date of the last annual maintenance for both ASDs. [ 10 ] On the second issue, Mr. Jones argued that because Cst. Pannag had formed the opinion that Mr. Jones’s ability to operate a motor vehicle was impaired based on his observations of Mr. Jones, the first ASD test was, in fact, the roadside appeal. Mr. Jones was not made aware that was his appeal; therefore, the NAP ought to be cancelled pursuant to s 4(f)(viii) of the Regulation .

The Adjudicator rejected this argument, stating, at paras 29-30: I do not accept Counsel’s arguments that the first test should have formed the roadside appeal, or that the second test was not conducted at the appropriate time. I find that the evidence clearly establishes that Cst. Haner read an ASD demand based on reasonable suspicion, obtained a “Fail” result, and then advised the Recipient [Mr. Jones] of his right to a second test, providing him with the tear-away sheet, and performing the second test upon the Recipient’s request. Counsel has failed to satisfy me that the conduct of Cst. Pannag and Cst.

Haner undermined or obscured the roadside appeal advice. Based on the evidence, I find that the Recipient was advised of his right to a second test, in writing, and that he was also aware of his right from police discussing it with him. The Recipient has not established this ground to cancel. [ 11 ] Considering whether Mr. Jones’s right to fairness was breached, the Adjudicator noted the purpose of the SafeRoads statutory scheme and found that nothing Cst. Pannag or Cst. Haney did, undermined that statutory objective.

According to the Adjudicator, nothing that happened during the traffic stop was unfair or unjust to the extent that it outweighed the public interest in traffic safety. [ 12 ] The Adjudicator confirmed the NAP, having found that Mr. Jones failed to establish any grounds to cancel the NAP. Issues [ 13 ] Mr. Jones seeks judicial review of the Adjudicator’s decision. He raises two grounds upon which the NAP ought to be cancelled: 1. The Director of SafeRoads Alberta failed to provide complete records to Mr. Jones as required by s 12 of PAPA . 2. Mr.

Jones was not advised in writing of his right to a roadside appeal, and he was unaware of that right. Standard of Review [ 14 ] The parties agree that the applicable standard of review is reasonableness. Section 24(3) of PAPA prescribes the reasonableness standard for the review of an adjudicator’s decision. Furthermore, the Supreme Court of Canada has identified the

reasonableness standard of review as the presumptive standard in matters of judicial review: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at para 16 . [ 15 ] The reasonableness standard is a deferential standard that recognizes the specialized role of the decision maker within the context of an administrative regime. It allows for a range of decisions, so long as the decision demonstrates the hallmarks of reasonability: justification, transparency, and intelligibility.

A reasonable decision must be justified in relation to the relevant factual and legal matrix presented: Vavilov at para 99 . Issue 1: Did the Director of SafeRoads Alberta fail to provide complete records to Mr.

Jones as required by s 12 of PAPA ? [ 16 ] Section 12(1) of PAPA states: 12(1) the Director shall, after receiving a request for review and the prescribed fee, provide to the recipient, in accordance with the regulations, relevant records as prescribed in the regulations or the regulations under a prescribed enactment. [ 17 ] The relevant records in a SafeRoads review are defined in s 2 of the Regulation . At the time the NAP was issued, s 2 of the Regulation read as follows: 2 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; (

b) The report of the officer who issued the notice of administrative penalty; (

c) If an approved screening device was used as the basis for issuing the notice of administrative penalty, (

i) the date of the last annual maintenance performed on the device, and (ii) the date of the last calibration of the device and the expiry date of that calibration for the device; ... [ 18 ] PAPA and the Regulation require the Director to give Mr. Jones the date of the last annual maintenance performed on each ASD. It is not disputed that the Director of SafeRoads did not provide any records showing the date of the last annual maintenance performed on the ASDs.

Rather, the Director provided information from which the date of the last annual maintenance could be calculated, assuming all the required maintenance practices and protocols had been followed. [ 19 ] This disclosure issue was first considered in the unreported Alberta Court of King’s Bench decision of Korecki v Director, SafeRoads Alberta and Minister of Justice and Solicitor General of Alberta (November 25, 2021), Red Deer No 2110 00831.

In that case, like in the present case, the information provided to the recipient of the NAP was not the date of the last annual maintenance; rather, the maintenance expiry or service expiry date was provided. On page 6, lines 22-32, the reviewing judge concluded: I find that the decision is unreasonable. The adjudicator relied upon the assumption that the policies and manuals were being followed without any evidence before her that they were. She then found that

section 2(c)(

i) was satisfied by an implication that the last annual maintenance was a year prior. Assumptions and implications do not form the foundation of an internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrain the decision maker, as required by Vavilov . The facts were not before the adjudicator, and I find that the decision is not defensible in respect of the facts that were. Therefore, it does not fall within the range of acceptable outcomes.

The lack of evidence to support the assumptions made by her go to the heart of the decision, and undermine the confidence in its integrity because it is in effect, guessing, as to a fact that the Director is required by legislation to provide. [ 20 ] Since the Korecki decision, additional evidence was added to the SafeRoads Technical Materials Library in the form of Exhibit G to the affidavit of Kerry Lynn Blake. Exhibit G sets out the inspection and maintenance requirements for ASD devices.

It explains that the terms “service expiry” and “maintenance expiry” refer to the one-year period that begins with the annual inspection of the device and ends exactly one year later. It further refers to the practice whereby following an ASD inspection, a sticker is supposed to be affixed to the device listing a date exactly one year in the future. What Exhibit G does not refer to is any invariable practices of the RCMP, nor does it disclose that, as an expert giving evidence, Ms.

Blake conducted any reviews of the RCMP training and protocols in place to ensure they adhere to the Recommended Best Practices for a Breath Alcohol Testing Program. Ms. Blake’s evidence assumes that the RCMP’s training and practices meet that standard with no evidence that it actually does. [ 21 ] In the present case, the Adjudicator attempted to circumvent the decision in Korecki , by relying on the assumptions and inferences of an expert witness rather than making the assumptions and inferences directly. The Adjudicator provided no rational defence for this substitution other than to say that Mr.

Jones did not present any evidence to suggest that the actual practice of maintenance was not followed in the case of either ASD or that the ASDs were improperly inspected. [ 22 ] The Adjudicator’s reference to a lack of evidence from Mr. Jones on the RCMP’s maintenance practices fundamentally changes the burden of proof on Mr. Jones from what is required by the relevant legislation. Mr. Jones has the burden to establish that the Director failed to provide complete records to Mr. Jones as required by s 12 of PAPA . Mr. Jones met that burden.

There is no controversy in this case that the Director did not provide the date of the last annual maintenance performed on the ASD to Mr. Jones. Upon Mr. Jones having met his burden of proof, the Adjudicator assumes, without analysis, that Mr. Jones is required not only to establish that the Director failed to provide complete records, which he did, but that he also is required to furnish additional evidence regarding the RCMP

maintenance practices with respect to ASD devices. The legislation does not require that of Mr. Jones and the Adjudicator has not provided any justification, coherent and rational or otherwise, to support the suggestion that Mr. Jones is required to do something more, having clearly established that the Director failed to provide complete records. [ 23 ] The legislation is clear in its meaning.

The Director is to provide the date of the last annual maintenance performed on the device, not information from which that date may be calculated if certain assumptions are true. [ 24 ] The conclusion that Exhibit G fails to address the Director’s obligation to disclose complete records is supported by subsequent actions taken by the legislature. After Mr. Jones was issued his NAP, the relevant

section of the Regulation was amended. The Director is no longer required to provide the date of an ASDs last annual maintenance. Now the Director is required to provide the expiry date of the last annual maintenance performed on the device. That is the information that the Director was previously providing.

If the legislature had intended that providing the date of the expiry of the last annual maintenance was sufficient to meet the obligation to provide the date of the last annual maintenance, a change to the legislation would not have been required. [ 25 ] Subsequent changes may be instructive when determining the meaning of legislation or the legislature’s intent when they enacted a particular provision. In Ruth Sullivan’s Sullivan and Driedger on the Construction of Statutes Fourth Ed.

Butterworths Canada 2002 at page 472, the author states: It is presumed that amendments to the wording of a legislative provision are made for some intelligible purpose: to clarify the meaning, to correct a mistake, to change the law. A legislature would not go to the trouble and expense of amending a provision without any reason. As Lord MacMillan wrote in D.R. Fraser and Co. v. Minister of National Revenue : When an amending Act alters the language of the principal statute, the alteration must be taken to have been made deliberately.

Although the presumption of purposeful change is strong, it is not irrebuttable. On occasion a court is forced to conclude that particular amendment had no intelligible purpose and in fact was a drafting error. [ 26 ] In the present case the change to the Regulation clearly had a purpose. It was to change the Director’s obligation to provide the date of the last annual maintenance of an ASD to an obligation to provide the expiry date of the last annual maintenance performed on an ASD.

If the latter were sufficient to meet the obligation to provide the former, the amendment would not have been necessary. [ 27 ] In this case, the Director failed to provide the records required by s 2 of the Regulation and therefore did not comply with s 12 of PAPA . The Adjudicator’s decision, which expanded the scope of the burden of proof on Mr. Jones without justification or explanation, was unreasonable. [ 28 ] Having found that the Adjudicator’s decision was unreasonable, the usual remedy would be to remit the matter back to the original decision maker for reconsideration.

There are, however, circumstances in which I may exercise my discretion to simply quash a decision without remitting it back to the decision maker for reconsideration. Those circumstances include where remitting the matter would result in an endless merry-go-round of judicial review and reconsideration, where the outcome of the re-adjudication is inevitable, and where reconsideration is not justified considering the cost to the parties and the need to make efficient use of public resources: Vavilov at para 142 . [ 29 ] Given the incontrovertible fact that the Director failed to provide Mr.

Jones with the records required by s 2 of the Regulation as it existed at the time Mr. Jones received his NAP, and the fact that the legislation required those records and not some other records, any decision by an Adjudicator acting reasonably is inevitable: the NAP would be cancelled. I further find that given the passage of time a reconsideration would not be in the public interest considering the cost to Mr. Jones and the use of public resources. As a result, I am exercising my discretion not to remit the matter back to the Adjudicator. The decision of the Adjudicator is quashed, and the NAP issued to Mr.

Jones is cancelled. [ 30 ] Given my decision on this issue, it is not necessary for me to address the second issue or whether there was a breach of the overarching duty of fairness owed to Mr. Jones. Heard on the 28 th day of March 2023. Dated at the City of Calgary, Alberta this 8 th day of June 2023. R.W. Armstrong J.C.K.B.A. Appearances:

M. Ian Savage Savage Oykhman Law for the Applicant Pascal Visentin Emery Jamieson LLP for the Respondent