Clarke v Alberta (Director of SafeRoads), 2023 ABKB 237

Court of King’s Bench of Alberta Citation: Clarke v Alberta (Director of SafeRoads), 2023 ABKB 237 Date: 20230421 Docket: 2203 00258 Registry: Edmonton Between: Shayne Clarke Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Decision of the Honourable Justice G.S. Dunlop _______________________________________________________ 1. Overview [ 1 ] On October 25, 2021 at 5:57 a.m. RCMP Constable Heeley issued a notice of administrative penalty immediate roadside sanction to Shayne Clarke on the basis that Mr.

Clarke failed to provide a breath sample into a screening device. Mr. Clarke claims that he tried to provide a breath sample but was unable to do so. According to Constable Heeley’s notes, between 5:42 a.m. and 5:56 a.m. on October 25, 2021, Mr. Clarke “blew an insufficient flow” nine times, following which Constable Heeley arrested Mr. Clarke for “fail to provide”. According to Constable Heeley’s report, at 6:04 am:

Cst. HEELEY read CLARKE the NoAP-IRS ‘right to a second test’, verbatim, from the form. Cst. HEELEY asked CLARKE if he wished to provide a secondary test. CLARKE said “no sir”. [ 2 ] Mr. Clarke denies saying “no sir” or otherwise declining to take another test at any time, including after the nine attempts he made between 5:42 and 5:56 a.m. on October 25, 2021. [ 3 ] Initially Constable Heeley gave Mr. Clarke a notice of administrative penalty as a third offence. Later that morning, after he had given Mr.

Heeley a ride home, Constable Heeley found that he could not enter this as a third offence in the SafeRoads computer system. Constable Heeley then telephoned Mr. Clarke at 10:36 a.m. and told him to disregard the first notice of administrative penalty and that a replacement notice showing this as a first offence would be provided to him. [ 4 ] On October 28, 2021 Mr. Clarke filed an application for review of the notice of administrative penalty. [ 5 ] On October 30, 2021 Constable Heeley mailed a second notice of administrative penalty to Mr. Clarke. [ 6 ] On November 8, 2021 Mr.

Clarke filed written submissions listing six grounds for his application for review: 1. Pursuant to s. 4 (i)(vi) of the SafeRoads Alberta Regulation [ SAR ], the appellant was not fully informed of his write to a roadside appeal then roadside appeal; 2. Pursuant to s. 4 (i)(iv), the appellant did not fail or refuse to comply with the demand, or in the alternative, pursuant to s. 4 (i)(

v) had a reasonable excuse for refusing. Unable to provide breath sample because of lumbar puncture etc.; 3. Mr. Clarke’s rights under s. 10(

b) of the Charter were breached and it would violate the duty of fairness owed to Mr. Clarke to rely on evidence obtained subsequent to the breach; 4. The officer was mistaken as to whether this was Mr. Clarke’s first, second or third offence. Any ambiguity should be resolved in favour of Mr. Clarke; 5. Confirming the NAP would be procedurally unfair because two NAPs were issued; and 6. There exists in this situation a reasonable apprehension of bias. [ 7 ] Adjudicator D. Williams conducted a review on November 15, 2021 by way of an oral hearing held by video conference at which Mr.

Clarke was present and represented by counsel. On November 24, 2021 Adjudicator Williams upheld the notice of administrative penalty and issued reasons for her decision, which were emailed to Mr. Clarke’s lawyer. [ 8 ] Mr. Clarke applies for judicial review of Adjudicator Williams’ decision. His Originating Application, filed December 21, 2021, lists the following grounds: 1. The adjudicator erred in law in her understanding of what is legally required of the police to comply with their obligations under sections 88.1(5) , 88.11(2) and 88.11(6) of the Traffic Safety Act , RSA 2000 c.

T-6 ( TSA ) when informing detained drivers of their right to a roadside appeal. 2. At paragraphs 22 and 31-33 of her decision, the adjudicator repeatedly relied on facts not in evidence and not made available to the applicant - facts apparently only known by the adjudicator - in order to dismiss Mr. Clarke’s arguments about his roadside appeal and a reasonable apprehension of bias. 3. The adjudicator applied the wrong test to the issue of reasonable apprehension of bias. 4. As a reasonable apprehension of bias existed, the applicant did not receive a fair hearing. 5.

The adjudicator made unreasonable, partial, and unsupported findings of fact. 6. The adjudicator did not give any reasons why the applicant’s evidence was ignored in parts and not accepted in others. 7. Such further grounds as the applicant may advise upon review of the return from the adjudicator. [ 9 ] On the first ground, I find that the adjudicator’s implicit

interpretation of the Traffic Safety Act and the SafeRoads Alberta Regulation as not requiring that recipient of a notice of administrative penalty be advised of their right to a test on a different device was unreasonable for three reasons. First, the adjudicator failed to address the question. Second, the requirement that the test be on a different device is explicitly set out in the Act.

Third, the availability of a test on a different device would be important to a recipient’s decision whether to take another test. [ 10 ] On the second, fifth and sixth grounds, I find that the adjudicator made several unreasonable findings of fact. Specifically: • the adjudicator’s finding that Constable Heeley read Mr. Clarke his right to another test from a tear-away sheet was unsupported by any evidence and contrary to the evidence before her; • the finding that Mr. Clarke declined another test relied on a finding that Mr.

Clarke did not provide an alternative narrative, which was contrary to the evidence; • the finding that Mr. Clarke was aware of his right to a roadside appeal was illogical; and

• the finding that anyone driving a motor vehicle can easily provide a breath sample was based on a misquotation of a single sentence taken out of context from a document in the technical materials library and ignored other evidence in that library. [ 11 ] On the third ground, I find that the adjudicator’s decision regarding a reasonable apprehension of bias in the SafeRoads review process was reasonable, although she failed to fully articulate the test for reasonable apprehension of bias. [ 12 ] On the fourth ground, I find that the unreasonable failure to engage in legislative

interpretation and unreasonable findings of fact by the adjudicator give rise to a reasonable apprehension of bias by the adjudicator in this case. [ 13 ] Given the adjudicator’s unreasonable failure to interpret the legislation and unreasonable findings of fact, along with the reasonable apprehension that the adjudicator was biased in this case, I quash her decision and remit this matter back for review by a different adjudicator. [ 14 ] Mr. Clarke also seeks Charter relief by way of a Notice of Constitutional Question. The parties have agreed that the Charter issues will be addressed in a separate hearing. 2.

Standard of Review [ 15 ] On a judicial review of a SafeRoads adjudicator’s decision, the standard of review is reasonableness: Provincial Administrative Penalties Act , SA 2020, c.

P-30.8, s. 24(3) . [ 16 ] The Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov 2019 SCC 65 provided extensive guidance regarding the reasonableness standard applied to administrative decision makers, such as the adjudicator in this case, including the following: 86 Attention to the decision maker’s reasons is part of how courts demonstrate respect for the decision-making process: see Dunsmuir , at paras. 47-49.

In Dunsmuir , this Court explicitly stated that the court conducting a reasonableness review is concerned with “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes”: para. 47. Reasonableness, according to Dunsmuir , “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process”, as well as “with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: ibid .

In short, it is not enough for the outcome of a decision to be justifiable . Where reasons for a decision are required, the decision must also be justified , by way of those reasons, by the decision maker to those to whom the decision applies. While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis. …

(1) A Reasonable Decision Is Based on an Internally Coherent Reasoning 102 To be reasonable, a decision must be based on reasoning that is both rational and logical. It follows that a failure in this respect may lead a reviewing court to conclude that a decision must be set aside. Reasonableness review is not a “line-by-line treasure hunt for error”: Irving Pulp & Paper , at para. 54, citing Newfoundland Nurses , at para. 14.

However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”: Ryan , at para. 55; Southam , at para. 56. … 103 While, as we indicated earlier (at paras. 89-96), formal reasons should be read in light of the record and with due sensitivity to the administrative regime in which they were given, a decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis: see Wright v.

Nova Scotia (Human Rights Commission) 2017 NSSC 1123 Admin. L.R. (6th) 110 (N.S. S.C.); Southam , at para. 56. … 119 Administrative decision makers are not required to engage in a formalistic statutory

interpretation exercise in every case. As discussed above, formal reasons for a decision will not always be necessary and may, where required, take different forms. And even where the interpretive exercise conducted by the administrative decision maker is set out in written reasons, it may look quite different from that of a court.

The specialized expertise and experience of administrative decision makers may sometimes lead them to rely, in interpreting a provision, on considerations that a court would not have thought to employ but that actually enrich and elevate the interpretive exercise. 120 But whatever form the interpretive exercise takes, the merits of an administrative decision maker’s

interpretation of a statutory provision must be consistent with the text, context and purpose of the provision. In this sense, the usual principles of statutory

interpretation apply equally when an administrative decision maker interprets a provision. Where, for example, the words used are “precise and unequivocal”, their ordinary meaning will usually play a more significant role in the interpretive exercise: Canada Trustco Mortgage Co. v. R. , 2005 SCC 54 , [2005] 2 S.C.R. 601(S.C.C.), at para. 10 . Where the meaning of a statutory provision is disputed in administrative proceedings, the decision maker must demonstrate in its reasons that it was alive to these essential elements. … (

d) Evidence Before the Decision Maker

125 It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”: CHRC , at para. 55; see also Khosa, at para. 64; Dr. Q , at paras. 41-42.

Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen , at paras. 15-18; Dr. Q , at para. 38; Dunsmuir , at para. 53. 126 That being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir , para. 47.

The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam , at para. 56. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. In Baker , for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias: para. 48.

Moreover, the decision maker’s approach would also have supported a finding that the decision was unreasonable on the basis that the decision maker showed that his conclusions were not based on the evidence that was actually before him: para. 48. (

e) Submissions of the Parties 127 The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties. The principle that the individual or individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard: Baker , at para. 28.

The concept of responsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties. 128 Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis” ( Newfoundland Nurses , at para. 25), or to “make an explicit finding on each constituent element, however subordinate, leading to its final conclusion” (para 16).

To impose such expectations would have a paralyzing effect on the proper functioning of administrative bodies and would needlessly compromise important values such as efficiency and access to justice. However, a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it.

In addition to assuring parties that their concerns have been heard, the process of drafting reasons with care and attention can alert the decision maker to inadvertent gaps and other flaws in its reasoning: Baker , at para. 39 3.

Interpretation of Legislation [ 17 ] Mr. Clarke submitted to the adjudicator that the legislation requires that a peace officer not only advise a recipient of a notice of administrative penalty that they are entitled to another test (described as a “roadside appeal” in the legislation), but also specifically advise the recipient that the roadside appeal test would be on a different approved screening device than the one used up to that point.

The adjudicator acknowledged this argument in paragraph 21 of her decision, but dismissed it without any analysis in the middle of paragraph 22, as follows: While I acknowledge that neither of the forms clearly states that the second test is on a different ASD [approved screening device], that is not the question before me. The question is if the Recipient was notified of his right to a second test and if he was aware of that right. The purpose of advice on the right to a second test is to make the Recipient aware he has a second chance to challenge the basis of the notice of administrative penalty.

The function of this advice is generally met by the offer of a “second test”. Because Cst. Heeley clearly made the offer of second test, the onus is on the Recipient to express interest in the second test. [ 18 ] With respect, this avoids the question which Mr. Clarke placed squarely before the adjudicator: does the legislation require that a recipient of a notice of administrative penalty be advised that the roadside appeal would be conducted on a different device.

It was unreasonable for the adjudicator to fail to address the substance of this argument: Vavilov at para 120 and 128 . [ 19 ] By ignoring this issue, the adjudicator implicitly decided that a recipient of a notice of administrative penalty is not entitled to be advised that a roadside appeal would be on a different device, without explicitly saying so or providing any analysis or

interpretation of the legislation on that point. [ 20 ] The relevant provisions of the legislation are as follows: Traffic Safety Act , RSA 2000, c. T-6 s. 88.1(1) 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 peace officer shall issue a notice of administrative penalty to the driver, and, in the case of a driver who holds an operator’s licence, require the driver to surrender to the peace officer the operator’s licence. …

(5) The peace officer shall advise the driver of the driver’s right to voluntarily undergo the applicable test, analysis or evaluation referred to in

section 88.11(2).

… s. 88.11(2) Notwithstanding that a notice of administrative penalty has been issued to a driver under

section 88.01, 88.02, 88.03 or 88.1, where a driver requests an appeal of that notice of administrative penalty and voluntarily attends immediately at a place designated by the peace officer and accompanies the peace officer to that place, if necessary, the driver shall immediately (

a) where the basis for issuing the notice of administrative penalty was an initial test performed on an approved screening device, provide a sample of breath that in the opinion of the peace officer is suitable for analysis on a different approved screening device or on an approved instrument, at the discretion of the peace officer (underlining added) SafeRoads Alberta Regulation , AR 224/2020 s. 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 … (vi) that the officer did not advise the recipient in writing of the right to a roadside appeal under

section 88.11 of the Act and the recipient was unaware of that right, or (underlining added) [ 21 ]

Section 88.1(5) of the Traffic Safety Act requires a peace officer to notify a driver “of the driver’s right to voluntarily undergo the applicable test, analysis or evaluation referred to in

section 88.11(2)” and

section 4 (i)(vi) of the SafeRoads Alberta Regulation states that the absence of that advice in writing is grounds to cancel a notice of administrative penalty.

Section 88.11(2) (

a) of the Traffic Safety Act is clear that where the notice of administrative penalty is based on test performed on an approved screening device, the appeal test would be on a different approved screening device or on an approved instrument.

It was unreasonable for the adjudicator not to address the wording of the legislation and provide reasons why the notice requirement in the Act and the Regulation does not include the different device requirement in the Act : Vavilov at para. 120 . [ 22 ] The different device requirement is a significant aspect of the right to appeal because both a driver who has blown a fail and a driver who has been unable to provide a sufficient sample may reasonably hope for a different result on a different device.

It is common human experience that different measuring devices, for example, bathroom scales and outdoor thermometers, may provide different measurements of the same thing, and that one device may provide a reading while another does not. It would be important to a driver considering whether to request a roadside appeal to know that it would be on a different device. It was unreasonable for the adjudicator not to consider this point, which was explicitly made by Mr. Clarke’s counsel in her submissions: Vavilov at para 128 . [ 23 ] After Adjudicator Williams’ made her decision in Mr. Clarke’s case, K.D.

Nixon, J. of this Court released her decision in Cornforth v Alberta (Director of SafeRoads) 2022 ABQB, which includes the following at para. 50: I agree with the Director that the intent of the TSA with respect to advice about the roadside appeal and the intent of s 4(e)(

v) SAR is to provide drivers with enough information to know that they can challenge an ASD result immediately. The reason for the requirements of making available a second test on a second device and advising the recipient of the availability of that second test is to resolve the reliability concerns raised by roadside ASD testing and ensuring that a recipient knows that the initial result can be challenged: Goodwin v. British Columbia (Superintendent of Motor Vehicles) , 2015 SCC 46 at para 68 .

Section 88.1(5) TSA provides that the officer must “advise the driver of the driver’s right to voluntarily undergo the applicable test.” It is silent as to the form of the advice and the procedure in giving it. I agree with the Director that the operative question is whether the Applicant understood enough to be able to avail himself of a roadside appeal if he wished one. [ 24 ] The decision in Cornforth supports the conclusion that the use of a different device is an important aspect of the right to another test.

Of course, Adjudicator Williams cannot be faulted for not addressing a court decision that had not yet been released. It is her failure to address the issue at all, after it had been squarely raised by Mr. Clarke, which I find was unreasonable. [ 25 ] While an administrative decision-maker’s

interpretation of their home statute is entitled to deference ( Wilson v British Columbia (Superintendent of Motor Vehicles) 2015 SCC 47 at para 17 ), where the adjudicator ignores the issue entirely, conducts no analysis and provides no reasons, there is nothing to defer to. 4. Fact Findings [ 26 ] Mr. Clarke’s second, fifth and sixth grounds for this judicial review all relate, at least in part, to findings of fact by the adjudicator. There are four findings of fact that were unreasonable: that Constable Heeley read to Mr. Clarke his right to another test from a tear-away sheet, that Mr.

Clarke declined a roadside appeal, that he was aware of his right to a roadside appeal, and that anyone driving a motor vehicle could easily provide a breath sample. 4.1 Tear-Away Sheet

[ 27 ] There is no mention of a tear-away sheet anywhere in the evidence before the adjudicator. It is not something the adjudicator raised with Mr. Clarke or his counsel during the review hearing. Yet the adjudicator made the following finding at the beginning of paragraph 22 of her reasons: According to the evidence, at 6:04 a.m., Cst. Heeley read the Recipient, “the NoAP (sic) – IRS ‘right to a second test’ verbatim from the form”. Counsel argued that this is the NAP. I disagree.

The notice of administrative penalty ‘right to a second test form’ is a tear-away sheet that clearly details much of the information argued by Counsel . While there is no roadside appeal tear-away sheet before me, this is common because these forms are often given to the Recipient and not returned or uploaded by officers unless they have been signed. (underlining added) [ 28 ] There was no evidence before the adjudicator to support her conclusion that Constable Heeley read to Mr. Clarke from a tear- away sheet. As the adjudicator acknowledged, there was no tear-away sheet in evidence.

The rest of her reasons on this point (underlined above) have no basis in the evidence before her. There was no evidence of what is on a tear-away sheet. There was no evidence of what was common, although perhaps the adjudicator was referring to what is common on review hearings, of which she would be aware. More significantly, there was no evidence before the adjudicator that tear-away sheets “are often given to the Recipient and not returned or uploaded by officers unless they have been signed”. [ 29 ] The only evidence before the adjudicator of what Constable Heeley said to Mr.

Clarke about another test is the Constable’s handwritten notes and typewritten report, and the notice of administrative penalty he gave Mr. Clarke. [ 30 ] On this point, Constable Heeley’s handwritten notes read: 0604 Secondary Test offered “No Sir” [ 31 ] Constable Heeley’s report includes the following: At 604 hrs Cst. HEELEY read CLARKE the NoAP-IRS ‘right to a second test’, verbatim, from the form. Cst. Heeley asked CLARKE if he wished to provide a secondary test.

CLARKE said “no sir.” [ 32 ] The notice of administrative penalty is entitled: No tice of A dministrative P enalty I mmediate R oadside S anction (IRS) (underlining added) [ 33 ] Near the bottom of the notice of administrative penalty, the following is printed in red in larger type than the rest of the form and in all capital letters: YOU HAVE THE RIGHT TO REQUEST A SECOND TEST TO CONFIRM YOUR BLOOD DRUG/ALCOHOL CONCENTRATION YOU MUST IMMEDIATELY INDICATE TO THE PEACE OFFICER YOUR CHOICE TO HAVE A SECOND TEST [ 34 ] On the evidence before the adjudicator the only reasonable finding was that Officer Heeley read those words to Mr.

Clarke from the notice of administrative penalty form, not some other words from a tear-away form, for these reasons: • first, Constable Heeley’s report says he read from “the NoAP-IRS”, an acronym which corresponds to the first letters in each word of the title of the notice of administrative penalty document; and • second, there is no other form in evidence. [ 35 ] In addition to being an unreasonable finding of fact on the evidence before her, it was procedurally unfair for the adjudicator to base her finding on the contents of a tear-away sheet without giving Mr.

Clarke notice of that proposition and an opportunity to respond to it. [ 36 ] There are two obvious deficiencies in the notice printed in red on the notice of administrative penalty form. First, it does not say that the appeal test would be done using a different device. Second, it says the purpose of the test is “to confirm your blood drug/alcohol concentration”. That is incorrect. The purpose of the appeal (at least from the driver’s point of view) is not to confirm the initial test, but to refute it.

This is clear from ss. 88.11(3) , (4) , (5) and (6) of the Traffic Safety Act : if the driver passes the appeal test, the peace officer must cancel the notice of administrative penalty. [ 37 ] Had the adjudicator made the only reasonable finding on the evidence before her, that Constable Heeley read the roadside appeal advice from the notice of administrative penalty form, she could have gone on to address the content of that advice. Instead, she made the unsupported finding that he read from a tear-away sheet which “clearly details much of the information argued by Counsel”.

The adjudicator provided no explanation for how a document which is not in evidence could “clearly detail” anything. [ 38 ] The adjudicator’s finding that Constable Heeley read Mr. Clarke his roadside appeal right from a tear-away sheet which included the information counsel had submitted was required was unreasonable because it was not supported by any evidence and because the evidence before her supported a different finding: Vavilov at para 126 .

[ 39 ] The Director’s written submission on this judicial review application asserted that there is no right to a roadside appeal in the case of a refusal or failure to provide a breath sample, relying on Anderson v Alberta (Director of SafeRoads) 2021 ABQB 760 at para 13 – 21 . However, during oral argument both counsel agreed that this point had not been argued in the Anderson case and that the SafeRoads Alberta Regulation was not referred to in the Anderson decision. Counsel for the Director conceded, for the purposes of the judicial review application before me, that Mr.

Clarke was entitled to a roadside appeal. The legislation was amended after the facts giving rise to this case including the repeal of s. 4 (i)(vi) of the SafeRoads Alberta Regulation . Consequently, as the legislation stands today there may not be a right to a roadside appeal where the notice of administrative penalty is for failure or refusal to provide a breath sample. That issue was not before the adjudicator in this case and it is not before me on this judicial review. 4.2 Whether Mr. Clarke Declined a Roadside Appeal [ 40 ] Mr.

Clarke’s written submission on the review before the adjudicator includes the following statement as a separate paragraph at the bottom of the first page: Mr. Clarke says the officer did not ask him about blowing into another device and Mr. Clarke, at no point, ever said “No sir” to providing a sample of breath. [ 41 ] During the hearing the adjudicator asked: Was there any other submissions that you wanted to make on behalf of your client about what happened at the roadside contrary to Constable Heeley’s narrative? (transcript p. 34, ll. 9 – 12) [ 42 ] Mr.

Clarke’s counsel’s response included the following: But he definitely does not agree with he ever said, “No, sir,” to – at any point to a breath sample and he was trying to provide a breath sample. (transcript p. 34, l. 25 – p. 35, l. 2) [ 43 ] In the face of Mr. Clarke’s counsel’s clear statements in writing and orally that Mr.

Clarke did not say no to another test, the adjudicator in her reasons at paragraphs 13 and 14 first summarized the evidence of the RCMP officers, including the statement that “At 6:04 a.m. the Recipient was offered a roadside appeal and he declined”, and then wrote: The Recipient did not provide an alternative narrative. [ 44 ] Mr. Clarke clearly and emphatically did provide an alternative narrative. He specifically denied being offered and declining another test. The adjudicator turned a blind eye and a deaf ear to Mr. Clarke’s submissions. That was unreasonable.

Of course, the adjudicator was free to weigh the evidence and prefer Constable Heeley’s evidence over Mr. Clarke’s, with reasons. She was not free to ignore Mr. Clarke’s evidence. In this case she did not just ignore Mr. Clarke’s evidence; she denied its very existence. That was unreasonable: Vavilov at para 126 . It also contributes to a reasonable apprehension of bias which I address in a later

section of my reasons. 4.3 Whether Mr. Clarke was Aware of his Right to a Roadside Appeal [ 45 ] A recipient of a notice of administrative penalty must prove both that they were not notified in writing of their right to a roadside appeal and that they were unaware of that right, to be successful on a review pursuant to s. 4(i)(vi) of the Regulation . This is the result of the use of the word “and” in s. 4(i)(vi). The adjudicator in this case concluded that Mr.

Clarke was aware of his right to a roadside appeal, reasoning as follows in paragraph 22 of the reasons: In the occurrence before me, the Recipient replied “no sir” declining his interest, which indicates he was aware of his rights. [ 46 ] The adjudicator’s factual finding that Mr. Clarke declined another test was unreasonable for the reasons set out in the previous

section of my reasons. However, even if that finding were reasonable, it would not support the inference that Mr. Clarke was aware of his right to a roadside appeal.

Section 4(i)(vi) of the Regulation refers to the right to a roadside appeal both as something the peace officer must have failed to inform a recipient of (in writing) and something the recipient must be unaware of, for the notice of administrative penalty to be cancelled on review. Mr. Clarke specifically raised the issue that both being informed of the right and being unaware of the right includes that the right is to a test on a different device. Obviously, a person may decline something without fully understanding what was offered. The adjudicator did not grapple with this issue at all.

The adjudicator leapt from finding that Mr. Clarke declined the roadside appeal to concluding that he was aware of it, without addressing the point raised by Mr. Clarke in his submissions, that Mr. Clarke was not aware that the test would be on a different device. The adjudicator’s reasoning is, with respect, illogical and irrational, and consequently, unreasonable: Vavilov at para 103 . It also fails to address a central issue raised by Mr. Clarke and is on that basis unreasonable: Vavilov at para 128 . 4.4 If you can Drive, you can Provide a Breath Sample [ 47 ] Mr.

Clarke submitted to the adjudicator, both orally and in writing, that he was unable to provide a breath sample and provided evidence that he had undergone a lumbar puncture on August 31, 2021. Mr. Clarke did not provide evidence that the lumbar puncture or any other aspect of Mr. Clarke’s medical condition at the time interfered with his ability to provide a breath sample. Consequently, it was open to the adjudicator to find that Mr.

Clarke failed to prove on a balance of probabilities either that he did not fail or refuse to provide a breath sample or that he had a reasonable excuse, as required by ss. 4 (i)(iv) and (

v) of the SafeRoads Alberta

Regulation . [ 48 ] However, in finding against Mr. Clarke on this point, the adjudicator included the following at paragraph 19 of her reasons: According to M1 1 , of the technical materials library (“TML”), it is reasonably expected that anyone driving a motor vehicle can easily produce the minimum pressure to satisfy an ASD. (underlining added) [ 49 ] The footnote for M1 in the adjudicator’s reasons reads: M1 – Hurst Study – Impaired respiratory function with ASD Page 5 [ 50 ] The Hurst study begins at page REC078 of the record before me.

It includes the following under the heading “Discussion” at the bottom of the fourth page of that document and continuing onto the fifth page: There are a number of potential explanations for a subject being unable to provide an acceptable breath sample when using the Alcotest. Any subject whose respiratory muscles cannot produce and maintain sufficient expiratory pressure to activate the device will not be able to give an adequate sample. Also the subject must have sufficient lung capacity to exhale into the device the minimum required volume .

The minimum activating pressure was found to be 7 cm H 2 O, this producing a flow of 6 L/min. Certain diseases reduce the ability to generate exhaled pressure. However the exhaled pressure expected when evaluating patients for withdrawal from mechanical ventilation has been quoted as 40 cm H 2 O (7). Hence it might reasonably be expected that anyone driving a motor vehicle can easily produce the minimum pressure . The minimum exhaled volume to satisfy the Alcotest 7410 is 1.2L, and at the minimum exhaled flow rate of 6 L/min (7cm H 2 O pressure), it would take 12 seconds to complete the test.

Increasing the exhaled pressure would increase flow and so shorten the exhale time. In our series of 103 subjects all persons with an FVC of less than 1.33L failed to provide an adequate sample. Except for a subject who was unable to achieve a good mouth to mouthpiece seal, all subjects with an FVC greater than 2 litres provided an adequate sample. It is possible to calculate a predicted FVC for a healthy person if gender, age, height and weight are known. The predicted FVC for a man aged 50 years and 175 cm is about 4.5 litres (8).

A reduction to less than half of this value can be regarded as “severe function impairment” (9), yet such a person would almost certainly be able to provide an adequate breath sample as that person’s FVC would still be greater than 2 litres. Several of the subjects who failed had a rapid, shallow breathing pattern which precluded them from exhaling for a long enough period to satisfy the device’s requirements.

It seems from our findings that persons who show evidence of an inability to form an adequate mouth seal or who have a vital capacity of less than 2 litres may have a valid reason why they cannot provide an adequate breath sample into the Alcotest 7410. (underlining added; FVC means forced vital capacity; Alcotest7410 is a particular model of an approved screening device, but not the one used in this case). [ 51 ] The adjudicator took a single sentence from the Hurst study and misquoted it, substituting “is” for “might … be”, and ignored the study’s other conclusions that both adequate pressure and adequate volume are required for an adequate breath sample, and that some people are not able to produce the volume of air required. [ 52 ] The implication of the adjudicator’s inclusion of the single misquoted sentence from the Hurst study in her reasons is that anyone who can drive can provide a breath sample.

This is not only an unreasonable reading of the Hurst study, it is also inconsistent with ss. 4 (i)(iv) and (

v) of the SafeRoads Alberta Regulation , which are premised on the understanding that some people are unable to provide a breath sample. [ 53 ] The Hurst study was not referred to directly during the review, but during the oral hearing (at p. 35, ll. 3 – 8 of the transcript) Mr. Clarke’s counsel did refer to an affidavit of Kerry Blake which, like the Hurst study, is in the technical materials library. Ms. Blake describes herself as a Forensic Alcohol Specialist and attaches her curriculum vitae which describes extensive training and experience relating to breath tests for blood alcohol.

In the last sentence of paragraph 3 of the affidavit Ms. Blake states: I am providing the following information as expert opinion evidence to be relied upon by SafeRoads Alberta. [ 54 ] In paragraph 4 of the affidavit, Ms. Blake states that Exhibit B to the affidavit is “my expert opinion on the sampling criteria required for the Alco-Sensor FST.” In Exhibit B, Ms.

Blake refers to the Hurst study and summarizes the findings as follows: It was found that the limiting factor in the ability to provide a suitable breath sample was the patient’s forced vital capacity (FVC), rather than their ability to produce high respiratory pressures or flows.

From the findings of this study, persons who show evidence of an inability to form a seal around the mouthpiece (for example, cleft lip) or who have a FVC of less than 2 litres may have a valid reason why they cannot provide an adequate breath sample on an Approved Screening Device (ASD). [ 55 ] The adjudicator’s reasons make no reference to the Blake affidavit, and fail to address Ms. Blake’s expert opinion, based on the Hurst study, that some people “may have a valid reason why they cannot provide an adequate breath sample on an Approved Screening Device”. Had the adjudicator considered Ms.

Blake’s expert evidence, she might have accepted Mr. Clarke’s evidence that he did not fail or refuse to provide a breath sample or that he had a reasonable excuse. [ 56 ] It was unreasonable for the adjudicator to misapprehend the Hurst study and to ignore the Blake expert evidence on this point: Vavilov at para 126 . Furthermore, the adjudicator’s highly selective approach to this evidence gives rise to a reasonable apprehension that she was biased against Mr. Clarke, which is addressed in another

section of these reasons.

5. Bias in Review Process [ 57 ] Mr. Clarke submitted to the adjudicator and on this judicial review that there is a reasonable apprehension of bias in the review process in this case because documents Constable Heeley uploaded to the SafeRoads website were not available to Mr. Clarke and his counsel for several days, which suggests they were vetted by SafeRoads during the delay, and because SafeRoads communicated with Constable Heeley about whether Mr. Clarke should be charged with a first, second or third violation. In Mr. Clarke’s submission, the involvement of SafeRoads in the charging and prosecution of Mr.

Clarke and the production of documents to him created a reasonable apprehension of bias in SafeRoads as the adjudicator on the review. [ 58 ] The adjudicator found no reasonable apprehension of bias for four reasons: • first, she had no prior knowledge of Mr. Clarke’s case and had access to the same information as Mr. Clarke and his counsel (paragraph 28 of the adjudicator’s reasons); • second, the evidence, including the emails and screenshots submitted by Mr. Clarke, did not support the conclusion that there was a gap between when Constable Heeley uploaded documents and when they were available to Mr.

Clarke and his counsel (paragraph 30 of the adjudicator’s reasons); • third, the reference in Constable Heeley’s report to a call with “ROADS” was not a call with SafeRoads but a call with the Registries Online Access Delivery System (paragraph 31 of the adjudicator’s reasons); and • fourth, that the emails between SafeRoads and Constable Heeley involved SafeRoads’ operational/technical division and had to do with Constable Heeley’s difficulties navigating the SafeRoads computer system (paragraphs 32 and 33 of the adjudicator’s reasons). [ 59 ] Mr.

Clarke submits that the adjudicator applied the wrong test on the question of bias, focusing on whether she was in fact biased rather than whether a member of the public could have a reasonable apprehension of bias regarding the review process. I disagree. While the adjudicator did consider whether she was biased personally, as set out in paragraphs 28 – 33, she noted that Mr. Clarke’s main argument was regarding institutional bias, and she went on to specifically address the allegations which Mr. Clarke submitted gave rise to a reasonable apprehension of bias. For the most part the adjudicator found that Mr.

Clarke’s allegations were not proven. While the adjudicator does not expressly articulate that the question is reasonable apprehension of bias rather than actual bias, her consideration of the points raised by Mr. Clarke shows that she did apply the correct test. [ 60 ] Mr. Clarke submits that it was unreasonable for the adjudicator to rely on her own knowledge of the internal workings of SafeRoads in considering whether there was a reasonable apprehension of bias in the review process. Mr.

Clarke takes issue with paragraph 33 of the adjudicator’s reasons, which reads: SafeRoads Alberta is an adjudicative body within Alberta Transportation that administers the SafeRoads program. SafeRoads has an operational/technical division which employs administrative staff to provide technical assistance to all users of the APIS system. That includes adjudicators, recipients, counsel, and peace officers. It is not unusual for administrative staff to communicate, with these stakeholders, regarding issues pertaining to access, uploads, downloads or navigation of APIS.

On the evidence before me, I am not satisfied that the interaction between SafeRoads Alberta staff and RCMP constituted anything other than administrative or technical support from a department that uses proprietary software. I am not satisfied that any of this communication resulted in bias. [ 61 ] I do not agree that it was unreasonable for the adjudicator to rely on the internal structure of SafeRoads as context for the emails between SafeRoads and Constable Heeley. The emails were not in evidence before the adjudicator, yet Mr.

Clarke submitted the mere fact that emails existed gave rise to a reasonable apprehension of bias. In the absence of direct evidence of the content of the emails, it was reasonable for the adjudicator to consider what the emails likely contained. It is common knowledge that computer websites or portals where documents are uploaded and downloaded require maintenance by technical specialists. The adjudicator’s reliance on the fact that SafeRoads employs such technical specialists is merely a specific instance of a general fact.

The adjudicator could have drawn the same inference, that the emails likely had to do with “access, uploads, downloads or navigation” of the system, from common general knowledge. Furthermore, while with last sentence of paragraph 33 of the adjudicator’s decision refers simply to “bias”, given the whole of this

section of her reasons, I conclude that she was addressing reasonable apprehension of bias. [ 62 ] Having reviewed the evidence before the adjudicator, particularly the emails and screenshots submitted by Mr. Clarke, I find that the adjudicator’s findings on Mr. Clarke’s allegations regarding reasonable apprehension of bias were available on the evidence and were therefore reasonable: Vavilov at para 86 . Given those findings, the adjudicator’s decision that there was not a reasonable apprehension of bias in the review process in Mr. Clarke’s case was also reasonable. 6. Bias in Adjudicator [ 63 ] Mr.

Clarke submits the adjudicator’s unbalanced treatment of the evidence gives rise to a reasonable apprehension that the adjudicator was biased. I agree. As the Supreme Court of Canada stated in Vavilov at para 126 : 126 That being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir , para. 47. The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam , at para. 56.

The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. In Baker , for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias: para. 48.

Moreover, the decision maker’s approach would also have supported a finding that the decision was unreasonable on the basis that the decision maker showed that his conclusions were not based on the evidence that was actually before him: para. 48. [ 64 ] I have already addressed the adjudicator’s failure to consider the legislative

interpretation issue raised by Mr. Clarke and her

unreasonable findings of fact. A single instance of unreasonableness by a decision maker might not give rise to a reasonable apprehensionof bias. In this case, the cumulative effect of the adjudicator’s unreasonable findings, all of which went against Mr. Clarke, would cause areasonably informed bystander to reasonably perceive bias on the part of the adjudicator: Newfoundland Telephone Co. vNewfoundland (Public Utilities Board) (SCC), [1992] 1 SCR 623 at para 22. 7.

Remedy [65] The usual remedy on a successful judicial review is to quash the decision and remit the matter back to the decision-maker forreconsideration: Vavilov at para 141. This is not a case where the outcome is inevitable, which might justify quashing the decision andnot remitting it back for re-hearing: Vavilov at 142, Rowe v Alberta (Director of SafeRoads) 2022 ABQB 560 at para 26 – 30. [66] I therefore quash the adjudicator’s decision and remit the matter back to SafeRoads for reconsideration.

Given my findingregarding a reasonable apprehension of bias, the new hearing must be before a different adjudicator. 8. Costs [67] Mr. Clarke seeks costs. The Director wishes to make further submissions on costs. If the parties are not able to agree on costs,the parties should, within 30 days of this decision, seek a date for a costs hearing through the Justice Seized Coordinator. Heard on the 31st day of March, 2023. Dated at the City of Edmonton, Alberta this 21st day of April, 2023. G.S. Dunlop J.C.K.B.A. Appearances: Shannon Gunn Emery Gunn Law Group for the Applicant Michael A.

Power Alberta Justice for the Respondent