Hastings v Alberta (Director of SafeRoads), 2023 ABKB 400

Court of King’s Bench of Alberta Citation: Hastings v Alberta (Director of SafeRoads), 2023 ABKB 400 Date: 20230706 Docket: 2201 04060 Registry: Calgary Between: Patrick Michael Hastings Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Memorandum of Decision of the Honourable Justice A. Woolley _______________________________________________________ Introduction [ 1 ] On or about February 6, 2022, Patrick Michael Hastings was issued a Notice of Administrative Penalty for contravening s. 88.1(1) (

e) of the Traffic Safety Act , RSA 2000 c T-6 : 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 ] Mr. Hastings sought review of the NAP. He submitted that the Police Narrative revealed a breath sample had been requested, but not demanded. Without a demand, the NAP was not valid and, as such, no valid NAP had been served. As a result, the NAP ought to be cancelled pursuant to s. 4 (i)(

i) of the SafeRoads Alberta Regulation , AR 224/2020 (“ SAR ”). Alternatively, it ought to be cancelled based on egregious unfairness, or based on s. 4 (i)(iv) of SAR , since Mr. Hastings had not in fact failed to comply with a demand. [ 3 ] Mr. Hastings also provided evidence at the review with respect to his underlying health conditions and the medication he had taken on February 6, 2022. He submitted that this evidence demonstrated that he had a reasonable excuse for failing to comply with the demand and warranted cancellation of the NAP pursuant to s. 4 (i)(

v) of SAR . [ 4 ] By way of a letter dated March 4, 2022, the Adjudicator confirmed the NAP (“Confirmation Decision”). Adjudicator Hak held that any deficiencies in the content of the NAP in relation to service were cured by s. 28 of the Provincial Administrative Penalties Act , SA 2020, c P-30.8 (“ PAPA ”). She further found that the evidence provided by Mr. Hastings was not sufficient to establish a reasonable excuse. Finally, she held that egregious unfairness had not been established. Mr.

Hasting’s failure to provide a sample was not “due to a lack of clarity by the officer”; he “knew the officer wanted him to provide a sample of breath but failed to provide a suitable sample”. [ 5 ] Mr. Hastings applied for judicial review of the Confirmation Decision. For the reasons that follow, I dismiss that application. Issues [ 6 ] The issues in this judicial review are: 1. What is the standard of review? 2. Did Mr. Hastings rely on the applicable subsection of s. 4 (

i) of SAR in seeking review on the basis that the police did not demand a breath sample? 3. Did the Adjudicator act unreasonably in rejecting Mr. Hastings’ submission that the police did not demand a breath sample? 4. Did the Adjudicator act unreasonably in rejecting Mr. Hastings’ submission that he had a reasonable excuse for failing to comply? Factual Background Issuance of the NAP [ 7 ] On February 6, 2022, Mr. Hastings was involved in a minor collision. The police attended at the collision. They asked Mr. Hastings if he had consumed alcohol and he admitted that he had. He also admitted that he was driving.

The investigating officer said that he smelled “intoxicating liquor” on Mr. Hastings’ breath. [ 8 ] The police sought to obtain a breath sample from Mr. Hastings. How they did so was a central issue at the Review. [ 9 ] The Police Narrative states: The accused was advised that a sample of breath would be requested to confirm or rule out intoxication. He was agreeable at this time. As the accused walked towards the police vehicle, unaided, it was observed he had a slight stagger.

The accused demanded a sobriety test to be performed outside the vehicle; this was denied and the accused was informed a sample of breath would be required. The accused was argumentative with police and required to be explained to multiple times why the sample was being requested. The accused stated that police did not catch him driving and was explained to that his admission was enough. [ 10 ] The Contravention Details state that the officer had “reasonable suspicion to believe that the driver had alcohol or drug in their body, or used a MAS”.

It said that the reasonable suspicion was based on “Observation, Odour, Admission of Recent Consumption, Other-Admission of driving”. It lists the time of the “ASD Demand” as 20:56, says that the ASD test started at 20:56, and that the result was “Failed to comply”. Because of Mr. Hastings “Refusal to complete sample”, he was not provided with Roadside Appeal Information. [ 11 ] With respect to the failure to comply, the Police Narrative states that Mr. Hastings was given five opportunities to complete a sample. The police explained what needed to be done. Mr.

Hastings “was observed to be avoiding giving a sample by blowing down the sides of the testing tube”. The police confirmed that the machine worked by inserting a fresh straw and the police demonstrating that it worked. After the 5 th attempt Mr. Hastings was arrested for failing to provide a sample. [ 12 ] After he was arrested Mr. Hastings became angry, “hurling insults and threatening officers”. On his release, however, “his demeanor had calmed dramatically”. Review Hearing [ 13 ] On February 13, 2022, Mr.

Hastings applied for an oral review, which was conducted on February 25, 2022, in front of Adjudicator Hak. He identified two bases for quashing the NAP. First, he submitted that the Notice of Administrative Penalty was based on failing or refusing to comply with a demand. The police narrative shows, however, that Mr. Hastings was “requested” to give a breath sample; Mr. Hastings submitted that the evidence did not establish that the police demanded that he provide a breath sample. [ 14 ] Mr. Hastings relied on ss. 4 (i)(i), (iv) and (

v) of the SAR . His counsel acknowledged that the argument that the police did not

demand a breath sample does not “nicely fit” into any of these review categories. With respect to the issue of service, counsel suggested that if the peace officer prepared a NAP with a box ticked off, when that box could not legitimately be ticked off, then it is not a valid NAP, so that no NAP was served. Here, the officer ticked off refusal to comply with a demand, when no demand had been made; as such, this was not a valid NAP; and, as a consequence, no valid NAP was served. [ 15 ] Counsel did not cite or appear to rely on s. 4 (i)(iii) of SAR , which allows a NAP to be overturned where a recipient “did not know that a demand had been made…under

section 320.27 or 320.28 of the Criminal Code ”. [ 16 ] Further, Mr. Hastings did not provide any testimony about what the police said to him. He was not asked by his lawyer about whether the police used language suggesting voluntariness (request) or language suggesting obligation (e.g., demanded, required, obligatory). He did not testify as to his understanding of or knowledge about what the police said in relation to providing a breath sample. [ 17 ] Mr.

Hastings did testify about his underlying health conditions, and medications that he had taken that day, that he said justified his refusal to provide a breath sample.

He provided the following information in relation to his health and medication. [ 18 ] First, he said that he had Chronic Obstructive Pulmonary Disorder (“COPD”), which he was diagnosed with five years ago. [ 19 ] Second, he said that his condition had worsened because he had increased how much he smokes, to two packs a day. [ 20 ] Third, he said that his breathing condition is worsened by stress. [ 21 ] Fourth, he said that he has a salbutamol inhaler bronchodilator, but did not have it with him that day, because he only takes it with him when he is out of town for work or on long drives. [ 22 ] Fifth, he started taking Champix in January to quit smoking, with a target quitting date of February 1.

He was told that the drug can increase feelings of depression, anxiety, anger frustration and irritability. He has also had some ongoing challenges with his mental health and was not doing well at that time. He started taking Champix on January 18 th . He had largely stopped smoking as of February 1 st and had only a couple of cigarettes between February 1 st and February 6 th . He said that not smoking was increasing his irritability and frustration, anxiety and lack of focus, as well as causing combativeness and aggression. [ 23 ] Sixth, he had taken Robax Platinum for back pain.

Specifically, he said that on February 6 th he had taken two tablets at 6pm, and another two tablets at 8pm. He had not read the recommended dose, although he learned later that you are supposed to take no more than 1-2 tablets every 4 to 6 hours. [ 24 ] Seventh, he has also taken Reactine that day, at around 12-1pm, to deal with his chronic sinus infections and congestion. [ 25 ] Eight, he said that he had never been in a situation before where he had taken Champix, Robax and Reactine, particularly with the double dose of Robax. [ 26 ] Mr.

Hastings said that he was trying to do what the police asked, and he could feel that the officers were getting frustrated and irritated with him. He felt that his breathing capacity was strained. [ 27 ] Mr. Hastings acknowledged that he did not say anything to the officers about his COPD because he “wasn’t thinking about it at the time”. [ 28 ] Counsel submitted that this evidence showed that Mr.

Hastings was making his best efforts; his failure was a result of physical incapacity and thus reasonably excused. [ 29 ] At the end of the review hearing, the Adjudicator confirmed with counsel the grounds for the appeal were ss. 4(1) (i), (iv) and (

v) of SAR . Confirmation Letter [ 30 ] By way of a letter dated March 4, 2022, Adjudicator Hak confirmed the NAP. [ 31 ] With respect to the question of whether Mr.

Hastings was properly served with the NAP, the Adjudicator relied on s. 28 of the PAPA , which says that the validity of a NAP is not affected by the “failure to complete any information required” provided the recipient is identified with clarity, the provision the recipient is stated to have contravened is specified, and the date and place of the contravention are specified. [ 32 ] The Adjudicator said that counsel had not submitted any evidence suggesting that the requirements for the NAP set out in s. 28 of the PAPA have not been met, with the result that the NAP was valid and was served. [ 33 ] With respect to the defence of reasonable excuse, the Adjudicator reviewed the evidence of Mr.

Hastings summarized above, along with the police evidence. [ 34 ] She determined that the evidence established that he had failed or refused to comply with the demand. She emphasized the five attempts offered to Mr. Hastings to provide a breath sample, that he was provided an explanation and demonstration on how to use the ASD, and that he was observed to be avoiding providing a sample by blowing down the side of the tube. [ 35 ] She found that the evidence did not establish, on the balance of probabilities, that he had a reasonable excuse for that failure. Mr.

Hastings had not provided any evidence “on the severity of his COPD, how his lung function is affected or how having COPD prevented him from providing a suitable sample.” She also emphasized that Mr. Hastings generally does not require his inhaler enough to

have it on him, that he said he was not thinking about this COPD at the time, that he never mentioned it to the officer, and that theofficer did not observe any breathing difficulties, instead describing Mr. Hastings as argumentative and animated. [36] She concluded that the “evidence does not support any lung function issues experienced by the Recipient at the time such thatthe Recipient had a physical inability to provide a sample”. [37] Adjudicator Hak said with respect to the Champix, Robax, Reactine and alcohol, that there was no evidence with respect tothe physiological or psychological effects Mr.

Hastings experienced, and that he was silent on his alcohol consumption, even though theofficer observed the smell of alcohol on his breath. She concluded that “While it is possible the Recipient consumed both alcohol andOTC medications prior to driving, I find no evidence to support the Recipient was so affected by them that he was unable to deal with thesituation”. [38] On this issue she concluded by saying that she did not find that Mr.

Hastings had provided sufficient evidence to establish thathe was actively suffering from the symptoms of COPD compounded by the ingestion of OTC medication at the time of the demand orthat those symptoms were so severe they prevented him from complying with the demand. [39] Finally, Adjudicator Hak considered the issue of egregious unfairness. She agreed that the officer’s narrative did not use theword “demand”, and instead used the word “requested”, but concluded that Mr. Hastings’ failure to provide a sample was not due to alack of clarity by the officer. [40] Given that Mr.

Hastings admitted to drinking and had been in an accident, “he should have expected or, at the very least, notbeen surprised when the officer requested a breath sample”. She said that given he had been drinking and had been in a collision, it“strains credulity” to suggest that he “would not understand that an officer requesting a breath sample is doing so for a purpose”.Adjudicator Hak went on to say: In his narrative, the officer explained to the Recipient “a sample of breath would be requested to confirm or rule out intoxication”.

Inaddition, the officer submits the Recipient asked numerous times why a sample was being requested and the officer explained the reason.At no time did the Recipient comment that he believed the breath sample was part of a voluntary process. It is clear that the Recipientknew the officer wanted him to provide a sample of breath but failed to provide a suitable sample. On a balance of probabilities, I am notsatisfied that a reasonable person in similar circumstances would refuse or fail to comply with the request for a breath sample by a policeofficer.

I am satisfied that the Recipient, knowing that a demand had been made, did not have a reasonable excuse to fail or refuse to comply withthat demand. Analysis Standard of Review [41] The parties properly agreed that the standard of review is reasonableness: PAPA, s. 24(3); Norman v Alberta (Director ofSafeRoads), 2022 ABQB 420 at para 16-22; Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 16-17. What provision of 4(

i) applies where the police do not demand a breath sample? [42] Mr. Hastings sought review of the NAP pursuant to s. 4(i)(i), (iv) and (

v) of the SAR. He did not rely on s. 4(i)(iii), whichallows a NAP to be cancelled where the driver did not know a demand had been made. [43] On being asked about why this was the case, counsel for Mr. Hastings appeared to suggest that a person could “know” of ademand being made even when a demand had not in fact been made; a person could, for example, be under the mistaken belief that ademand had been made. They might think that the police told them that a breath sample was required when, in fact, the police did notcommunicate that a breath sample was required.

As such, counsel appeared to suggest, showing that a demand had not been made in law– that the police did not communicate that a breath sample was required, obligatory or demanded – would not be sufficient to show that aperson did not know that a demand had been made. It would not be sufficient to trigger s. 4(i)(iii). [44] I do not accept this position. As the Supreme Court has made clear, a person cannot “know” something that is false: UnitedStates of America v Dynar, (SCC), [1997] 2 SCR 462 at para 41. If no demand has been made, a driver cannot “know”of a demand.

In a case where the evidence established that no demand for a breath sample was made, a driver could seek review becausethey did not “know” a demand had been made, even if the driver mistakenly believed at the time that a breath sample was required. If ademand has not been made in fact, a person cannot “know” of the demand, whatever mistaken beliefs they may hold about theimplications of what the police said. [45] As such,

Section 4(i)(iii) of SAR is available both to drivers subject to a demand who do not know of it, and to drivers ofwhom no demand was made in fact, even if the driver mistakenly believed at the time that they were required to provide a sample whenasked if they were willing to do so. In neither case does the driver “know that a demand has been made…under

section 320.27 or 320.28of the Criminal Code”. [46] For this reason, I have reservations about whether the other provisions of SAR, or the concept of “egregious unfairness” oughtto be used as a basis to challenge a NAP based on no demand having been made. Review on that basis should normally be advancedthrough s. 4(i)(iii), which provides a vehicle for review centred on the existence of the demand and the recipient’s knowledge of thedemand.

[ 47 ] In this application for judicial review, however, the Director did not object to Mr. Hastings relying on the other provisions of the SAR and the concept of egregious unfairness. As a result, without determining whether these provisions could properly be relied upon, I will analyze the application for judicial review on the basis that Mr. Hastings could seek review based on the absence of a demand through s. 4 (i)(

i) of SAR or the concept of egregious unfairness. Did the police make a demand for a breath sample? [ 48 ] Mr. Hastings submits that Adjudicator Hak never considered or assessed his claim that the evidence, and specifically the Police Narrative, showed that that no demand had been made. With respect to the issue of service, she treated the issue as akin to having failed to provide complete information. With respect to egregious unfairness she assessed what Mr. Hastings knew or understood rather than assessing what the police said to him.

In confirming the NAP without considering the evidence that no demand had been made, or his submissions in this respect, Adjudicator Hak made an unreasonable decision. [ 49 ] I agree with Mr. Hastings that nowhere in her decision does Adjudicator Hak explicitly state that she has found that Officer made a demand – she does not say that the officer used language to express that Mr.

Hastings was required or obligated to provide a breath sample. [ 50 ] On the issue of service of the NAP she treats the question as one related to whether information in the NAP had been omitted, which does not address the position of Mr. Hastings. His submission was not that information was missing from the NAP; his submission was that the evidence establishes that no demand was made, such that Mr.

Hastings did not commit the offence he was claimed to have committed on the NAP, with the result that the NAP was invalid. [ 51 ] On the issue of egregious unfairness, Adjudicator Hak acknowledges that the Police Narrative uses the word “requested” not the word “demand”. In going on to reject Mr. Hastings’ claim, she does not explicitly state that she has nonetheless concluded that a demand was made by the Officer. The focus of her analysis is on what Mr.

Hastings knew and understood, rather than on what the Officer said to him. [ 52 ] I am, however, nonetheless satisfied that Adjudicator Hak’s confirmation of the NAP was reached on a proper basis: Vavilov at para 86 and para 96. As the Court in Vavilov emphasized, a reviewing court does not assess whether a decision is perfect or flawless; rather, it considers the decision holistically and in context, to assess if it has “sufficiently serious shortcomings…such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”: Vavilov at 100.

There must be no “fatal flaws in the overarching logic” and the reviewing court must be able to understand the decision-maker’s reasoning on the critical points: Vavilov at para 102-103 . [ 53 ] Here, Adjudicator Hak carefully considered the evidence with respect to the interaction between the Officer and Mr. Hastings. She took account of the contents of the Police Narrative. And, while she focussed on what Mr. Hastings understood, and not on what the Officer said, she identified that the Officer was clear, that his reasons for requesting the breath sample were explained, that Mr.

Hastings had admitted drinking and that he had been driving, which meant that he understood why he was being asked to provide a breath sample, and that Mr. Hastings did not suggest that he believed this was “a voluntary process”. Mr. Hastings knew what the Officer “wanted”. Adjudicator Hak said that she was satisfied that Mr. Hastings, “knowing that a demand had been made”, had failed to comply with it. [ 54 ] In essence, Adjudicator Hak used Mr.

Hastings’ interactions with the Officer to determine that he understood that a demand had been made and concluded that, legally speaking, he knew that a demand had been made. [ 55 ] This was not precisely the same as a finding that a demand had been made – as counsel for Mr. Hastings emphasized, a person could believe that a demand has been made when in fact it had not been.

In paying respectful attention to Adjudicator Hak’s reasons, however, and in assessing whether she turned her mind to the issue in dispute, I am also mindful of not finding her decision to be unreasonable simply because the words she chose were imprecise from a lawyerly point of view: Vavilov at para 92 . [ 56 ] Further, as a matter of law, and as previously explained, I do not agree with counsel for Mr. Hastings that a driver could “know” a demand had been made when, in law, no demand had in fact been made.

A driver’s mistaken belief that he was required to provide a breath sample could not legally preclude that driver from asserting that he did not “know” a demand had been made. A false belief in a thing is categorically different from the knowledge of the thing. [ 57 ] As a result, in considering the reasons given here, when Adjudicator Hak found that Mr. Hastings understood and knew that a demand had been made, it is reasonable to understand her to also have been concluding that such a demand had been made. Mr. Hastings could not understand or know of a demand that did not exist.

The Adjudicator’s assessment of Mr. Hastings’ knowledge and understanding necessarily includes an assessment of what the Officer said. [ 58 ] Further, the evidence available to Adjudicator Hak, and to which she refers in relation to her assessment of what Mr. Hastings knew and understood, was sufficient for her to reasonably conclude that a demand had been made. Stated more precisely: the evidence at the review hearing was sufficient for Adjudicator Hak to reasonably conclude that Mr.

Hastings had not satisfied his burden of establishing that a demand was not made. [ 59 ] The Police Narrative did use the word “requested” and said that Mr. Hastings was “agreeable” to providing a breath sample. It also said, however, The accused demanded a sobriety test to be performed outside the vehicle; this was denied and the accused was informed a sample of breath would be required [emphasis added] [ 60 ] Counsel for Mr. Hastings submitted that this should be understood as only meaning that a breath sample would be required instead of a sobriety test.

Even if so understood, however, the implication of these words is that Mr. Hastings was told that he was

required to do a breath sample, not that it was merely requested. He did not have another option, even though he asked for one. [ 61 ] In addition, the Police Narrative and the Contravention Details both clearly set out that the Officer had the grounds necessary to make a demand pursuant to the Criminal Code – Mr. Hastings admitted that he had consumed alcohol, he showed signs of intoxication and he had been driving within the prior three hours. The evidence establishes that the Officer was entitled to make a demand. [ 62 ] The Contravention Details also filled out the time under the heading “ASD Demand”.

This is a standard form, so merits less weight, but is still one piece of evidence that was available to Adjudicator Hak. [ 63 ] Finally, while Mr. Hastings testified at the Review, he chose not to provide any information about what the Officer had said to him, or about what his knowledge or understanding was about whether the breath sample was demanded or voluntary. A SafeRoads review is a civil matter, and Mr. Hastings had the burden of proof; Adjudicator Hak would have been entitled to draw an adverse inference from Mr.

Hastings’ silence in this respect: Stikeman Elliott LLP v 2083878 Alberta Ltd , 2019 ABCA 274 at para 87 . Indeed, Adjudicator Hak may be interpreted as having done so when she said, “At no time did the Recipient comment that he believed the breath sample was part of a voluntary process”. [ 64 ] At the stage of the review Mr. Hastings had the burden to establish on a balance of probabilities that the police did not demand a breath sample. His entire position turns on the Officer having used the word “requested” in the Police Narrative.

Adjudicator Hak rejected this position and, based on the evidence before her, she was reasonable in doing so. Did Mr. Hastings Have a Reasonable Excuse for Failing to Comply? [ 65 ] On this issue Mr. Hastings stated his position in his brief as follows: With respect to the issue as to whether a reasonable excuse for failing to provide a sample had been established by the Applicant, the Applicant submits that the Adjudicator unreasonably failed to give appropriate weight to the testimony of the Applicant.

She further decided unreasonably by indicating that the Applicant had not provided sufficient evidence to establish that he was actively suffering from the symptoms of his COPD compounded by the ingestion of over-the-counter medication at the time of his attempts to provide a breath sample. [ 66 ] I do not accept Mr. Hastings’ characterization of Adjudicator Hak’s decision.

She reviewed his testimony in the context of the evidence as a whole, analyzed the evidence carefully, and explained the basis for her determination that she was not satisfied that he had shown he had a reasonable excuse for failing to comply. [ 67 ] Adjudicator Hak properly relied upon the police evidence that they observed that Mr. Hak appeared to be avoiding providing a sample by breathing down the side of the tube, while also acknowledging Mr. Hastings’ own evidence that he blew with no holding back. Further, while she may have overstated the case when saying that Mr.

Hastings provided “no evidence” that his COPD made him physically incapable of providing a sample, she made no reviewable error in observing that the evidence he provided was very limited. She also did not err in observing that Mr. Hastings did not have his inhaler with him and does not normally travel with it, that he did not mention his breathing issues to the officer, and that he said he was not thinking about his COPD at that time. She was entitled to rely on that evidence in rejecting Mr. Hastings’ claim to have had a reasonable excuse for not complying with the demand.

In essence, Adjudicator Hak accepted that Mr. Hastings had COPD, but had a sufficient basis in the evidence to reasonably conclude that “the evidence provided does not support any lung function issues experienced by the Recipient at the time such that the Recipient had a physical inability to provide a sample.” [ 68 ] Further, while Adjudicator Hak may also have overstated the case in saying that there was “no evidence” about the physical and physiological effects of the medicine Mr.

Hastings had taken, she had a reasonable basis in the evidence for finding his evidence insufficient to discharge his onus on the issue of reasonable excuse, particularly in light of the evidence regarding his alcohol consumption. Mr. Hastings’ testimony was essentially that he took the medication, that he knows it has side effects, and that he was having difficulty in providing a breath sample. The evidence as provided by Mr.

Hastings did not connect those facts in an explicit way – he did not say that the drugs were having those effects on him, or how the effects they were having made it difficult for him to provide the sample. Adjudicator Hak thus had a reasonable basis for concluding that Mr. Hastings’ testimony did not satisfy her on the balance of probabilities that taking the medication on that evening had given rise to side effects that made it impossible for Mr. Hastings to comply with the breath demand. [ 69 ] I find that Adjudicator Hak’s reasons for rejecting Mr.

Hastings’ defence of reasonable excuse were justifiable, intelligible and transparent, and that both her reasons and conclusion were reasonable. Conclusion [ 70 ] Based on the foregoing, Ms. Hastings’ application for judicial review is dismissed. Heard on the 15 th day of June, 2023. Dated at the City of Calgary, Alberta this 6 th day of July, 2023.

A. Woolley J.C.K.B.A. Appearances: M. Ian Savage/Savage Oykhman Law for the Applicant Kirsty Vogelesang/Emery Jamieson LLP for the Respondent