Smith v Alberta (Director of SafeRoads), 2023 ABKB 697

Court of King’s Bench of Alberta Citation: Smith v Alberta (Director of SafeRoads), 2023 ABKB 697 Date: 20231208 Docket: 2203 00864 Registry: Edmonton Between: Nathan Bradley Smith Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice L.K. Harris _______________________________________________________ [ 1 ] On November 10, 2021, Nathan Smith received a Notice of Administrative Penalty (“NAP”) pursuant to s 88.1(1) of the Traffic Safety Act , RSA 2000 c T-6 (“ TSA ”) following a traffic stop.

The NAP was issued on the basis that Mr. Smith was operating a motor vehicle while impaired or had within 2 hours of ceasing to operate a motor vehicle a blood alcohol concentration equal to or exceeding 80 mg%.

[ 2 ] On November 16, 2021, Mr. Smith applied for a written review of the NAP by an adjudicator pursuant to s 7(1) of the Provincial Administrative Penalties Act , RSA 2020, c P-30.8 (“ PAPA ”). Following the review, the Adjudicator confirmed the NAP issued to Mr. Smith. [ 3 ] Mr. Smith now applies for judicial review of the Adjudicator’s decision. I. Background [ 4 ] At approximately 12:28 pm, on November 10, 2021, Mr.

Smith was driving eastbound on Highway 45 near Lamont, Alberta, when he was observed by Sheriff Friesen driving without his seatbelt and swerving over the centre line. [ 5 ] Sheriff Friesen conducted a traffic stop and approached Mr. Smith, seated in the driver’s seat of a truck. Sheriff Friesen inquired as to why Mr. Smith was not wearing his seatbelt and issued a mandatory alcohol screening (“MAS”) demand. Sherrif Friesen asked Mr. Smith if he had consumed any alcohol in the past 15 minutes to which Mr. Smith replied that “I had a beer for lunch, yeah”. When asked when lunch was, Mr.

Smith answered 11:00 am. [ 6 ] At 12:29 pm, Sheriff Friesen instructed Mr. Smith to take a deep breath and blow into the Approved Screening Device (“ASD”) until the device made a clicking sound, and to make sure there was a steady continuous flow of air. Mr. Smith made three attempts to provide a breath sample, each of which registered an insufficient air volume and flow rate. Sheriff Friesen then changed the mouthpiece and provided further instructions. Mr. Smith made three more attempts, each of which registered as insufficient flow. [ 7 ] Mr.

Smith asked to go down the road aways, to which Sheriff Friesen responded, “no, we are doing this right here right now.” Mr. Smith responded, “fair enough”. Sheriff Friesen changed the mouthpiece a second time and then gave Mr. Smith a demonstration on how to properly blow into the ASD. Mr. Smith said, “you realize this is nervous for a guy right?” to which Sheriff Friesen responded that he needed to see how much alcohol is in the system, if any at all. Mr. Smith stated that “he had a night last night”. [ 8 ] Mr.

Smith then provided his seventh breath sample, which was a proper breath sample, and which registered as FAIL. [ 9 ] Sheriff Friesen told Mr. Smith to turn the engine off and give him the keys, and requested his driver’s license, registration, and insurance. At 12:35 pm, he gave Mr. Smith the roadside appeal form and explained that Mr. Smith could take a second test on a different machine. Mr. Smith indicated that he wished to take a second test. Using the second ASD, Mr. Smith made three attempts to provide a sample, each of which registered as “insufficient flow”.

Sheriff Friesen changed the mouthpiece and provided some further instructions. Mr. Smith made two more attempts, both of which registered as “insufficient flow”. [ 10 ] In the meantime, a second peace officer had arrived, and he explained to Mr. Smith how the device worked. Mr. Smith provided a sixth sample which registered as “insufficient flow”. [ 11 ] The second officer suggested that Mr. Smith try outside of the vehicle. Mr. Smith got out of the vehicle and provided a seventh sample, which registered as FAIL. [ 12 ] The peace officers searched Mr.

Smith’s vehicle and found an empty beer can in a box, two empty cans in the side pocket of a jacket and three full cans in other pockets of the jacket. They seized the vehicle, and at 1:47 pm, Sheriff Friesen served Mr. Smith with the Immediate Roadside Sanction (“IRS”) form, the Seizure Notice, a ticket for a seatbelt violation and two inspection forms. [ 13 ] On November 16, 2021, Mr. Smith filed a request for a written review of his NAP by an Adjudicator. [ 14 ] SafeRoads Alberta makes information available about NAP reviews to the general public including those who are recipients of a NAP.

The material provided to Mr.

Smith was current to October 14, 2021, and included the following statement under the heading, “General conditions of a review”: In a review, the adjudicator will consider all relevant information and supporting documents provided by the recipient, lawyer or agent within the mandated timeline, including all information and supporting documents provided by law enforcement, the Technical Materials Library, legislation and its regulations, and [sic] well as any oral arguments or oral submissions made during an oral review. [ 15 ] The Technical Materials Library (“TML”) consists of “technical information to support Albertans who have requested a review of their Immediate Roadside Sanctions Notice of Administrative Penalty”.

The TML includes a variety of materials including, for example, operators’ manuals for the ASDs, resources about how ASDs operate, and copies of forms used by police during roadside investigations. [ 16 ] Effective December 9, 2020, the TML also included an Affidavit sworn by Kerry Lynn Blake which attached as Exhibit F a document titled “Impairment and Effects on Driving Ability” [1] (the “Blake Affidavit”). The Blake Affidavit was updated from time to time, including on December 16, 2020, and again on November 26, 2021. [ 17 ] Mr.

Smith provided his written submissions for the review to the Adjudicator on November 26, 2021 [2] , in accordance with the mandated timelines. [ 18 ] On the same day, and without notice to Mr. Smith, the TML was updated to add the latest version of the Blake Affidavit, still including Exhibit F. [ 19 ] The Adjudicator’s Decision confirming Mr. Smith’s NAP was issued on December 9, 2021. In the decision, the Adjudicator referred to Exhibit F to the Blake Affidavit in support of a statement within para 10 of the Decision that, “at a level of 100 mg% and

greater, all individuals are impaired in their ability to operate a motor vehicle.” II. The Statutory Regime [ 20 ] The background to and legal framework of the Alberta SafeRoads regime has been set out in several preceding decisions: see, for example, Dorn v Alberta (Director of SafeRoads) , 2022 ABQB 394 at paras 4-7 , Isley v Alberta (Director of SafeRoads) , 2022 ABQB 249 . I therefore will not repeat the framework here. [ 21 ] Mr. Smith was issued an NAP for contravening s 88.1(1)(

a) of the Traffic Safety Act , RSA 2000 T-6 (“ TSA ”) (he was impaired to any degree by alcohol, drug, or a combination thereof) and TSA s 88.1(b) (police had reasonable grounds to believe that within 2 hours after ceasing to operate a motor vehicle he had a blood alcohol concentration that was equal to or exceeds 80 milligrams of alcohol in 100 millilitres of blood). [ 22 ] Under s 18 of PAPA , Mr. Smith has the burden of establishing the grounds to cancel the NAP on a review. III. The Adjudicator’s Decision [ 23 ] The Adjudicator confirmed the NAP on the basis that Mr. Smith had not established any grounds to cancel. The issues raised by Mr. Smith were (

a) whether Mr. Smith’s ability to operate a motor vehicle was impaired to any degree by alcohol, and (

b) whether he had a blood alcohol concentration equal to or exceeding 80 mg of alcohol to 100 mg of blood. [ 24 ] The Adjudicator’s reference to the Blake Affidavit was in the context of the issue of whether Mr. Smith’s ability to operate a motor vehicle was impaired by alcohol. The Adjudicator described the issue at para 5 of the Decision as follows: To succeed at this ground, the Recipient must establish that the Recipient’s ability to operate a motor vehicle was not impaired to any degree by alcohol, drug or a combination thereof at the time of operation. [ 25 ] Mr.

Smith argued that there was insufficient evidence to establish that his ability to operate a motor vehicle was impaired. He argued that the FAIL result was tainted by mouth alcohol, and together with the margin of error, this cannot establish his impairment for the purposes of s 4(e)(iv) of SAR . [ 26 ] The Adjudicator went on to review the evidence on the record which included Sheriff Friesen’s narrative setting out his observations on scene, records pertaining to both ASDs used to obtain Mr.

Smith’s breath samples, as well as a copy of the Alco-Sensor FST Operator’s Manual used in British Columbia submitted by Mr. Smith, indicating that the margin of acceptability was plus or minus 10 mg%. The Adjudicator pointed out that ASDs in British Columbia are calibrated differently than in Alberta, where the margin of error was plus or minus 5 mg%.

The Adjudicator went on to say, Counsel’s argument surrounds the TML M5, which states, “at a level of 100 mg% and greater, all individuals are impaired in their ability to operate a motor vehicle.” [ 27 ] “TML M5” is Exhibit F to the Blake Affidavit, described in the TML table of contents as “M-5 Impairment and Effects on Driving Ability (Exhibit F of E1 Affidavit of Kerry Lynne Blake)”. [ 28 ] The Adjudicator concluded that it disagreed with Mr. Smith’s submission that there were no indicia of impairment on the evidence and concluded that Mr. Smith had not established that he was not impaired. Mr.

Smith’s NAP was confirmed. [ 29 ] While in his originating application Mr. Smith takes issue with the merits of how the Adjudicator resolved the issues that were raised on review, he did not argue the merits during oral submissions. Mr. Smith did, however, argue the fact that the Adjudicator made reference to the updated Blake Affidavit in their Decision, stating that this was without having given notice to him and without having given him an opportunity to respond.

He also took issue with the fact that the Adjudicator relied upon materials within the TML, arguing that the Adjudicator did not have authority to do so since the Legislature has not enacted a Regulation explicitly establishing the TML or its contents. IV. Issues Raised on Judicial Review [ 30 ] Mr. Smith raises two issues on this judicial review. First, that the Adjudicator relied upon the Blake Affidavit, without proper notice to him. Second, that the Adjudicator referred to TML materials when it was not authorized to do so under the applicable legislation. [ 31 ] Mr.

Smith argues that the Adjudicator breached the duty of procedural fairness he was owed by referring to and relying upon the TML materials. [ 32 ] As noted above, Mr. Smith’s originating application takes issue with the merits of the Adjudicator’s decision, specifically, that the Adjudicator did not consider evidence of mouth alcohol contaminating Mr. Smith’s breath samples and the evidence of the margin of error in ASD testing. V. Standard of Review

[ 33 ] The leading case on standard of review is Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 . The Supreme Court is clear that reasonableness is the presumptive standard of review and can only be rebutted in one of two ways: 1) if the relevant legislation indicates a different standard should apply; or 2) where there is a general question of law of central importance to the legal system as a whole. [ 34 ] Section 24(3) of PAPA expressly provides that on an application for judicial review of an Adjudicator’s decision the standard of review is reasonableness.

Therefore, the first exception to the reasonableness standard described in Vavilov therefore does not apply. I also conclude that the second exception set out in Vavilov does not apply because the question to be decided does not engage issues of fundamental importance and broad applicability with significant legal consequences for the justice system as a whole. [ 35 ] Insofar as the issues raised by Mr. Smith are ones of statutory

interpretation of the Adjudicator’s home statute, the standard of reasonableness is engaged: see Dorn v Alberta (Director of SafeRoads) , 2022 ABQB 394 at para 22 . Insofar as the issues raised involve the merits of the Adjudicator’s decision, the standard of review is reasonableness. [ 36 ] However, where a breach of procedural fairness is alleged, the standard of review analysis described in Vavilov is not engaged.

In Schwab v Alberta (Director of SafeRoads) , 2022 ABQB 244 , Bokenfohr J states at paras 16 - 17: Where a breach of natural justice or to the duty of procedural fairness is alleged, the standard of review is not engaged. The content of procedural fairness goes to the manner in which the adjudicator went about making the decision, whereas the standard of review is applied to the end product of the adjudicator’s deliberations: Canadian Union of Public Employees (C.U.P.E.) v Ontario (Minister of Labour), 2003 SCC 29 at para 102 .

Evaluating whether procedural fairness has been adhered to by a tribunal requires an assessment of the procedures and safeguards required in a particular situation: Moreau-Berube v New Brunswick (Judicial Counsel) , 2002 SCC 11 at paras 74 and 75 . There is a clear distinction between a review on the merits of a decision and a review related to a breach of natural justice and/or the duty of procedural fairness. This remains unchanged by the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 ( Vavilov ).

When assessing a breach of natural justice and/or the duty of procedural fairness, a reviewing court is required to determine whether the particular administrative decision-making context gives rise to a duty of procedural fairness and if so, the specific procedural requirements imposed by that duty in the circumstances of that particular case. The question for the reviewing court is whether the duty of procedural fairness was breached or not. A court will intervene if it finds that the administrative process was unfair considering all of the circumstances: Vavilov at para 77 . VI. Analysis A.

The Blake Affidavit [ 37 ] I will first address the issue of whether the Adjudicator breached the duty of procedural fairness by referring to Exhibit F of the Blake Affidavit in the Decision. In accordance with the discussion above, I consider this analysis to be distinct from the question of whether the Adjudicator’s Decision was reasonable. [ 38 ] Mr. Smith argues that Schwab applies. [ 39 ] In Schwab , the Adjudicator had relied upon information obtained from Google Maps and to assess the credibility of the Applicant without notice to the Applicant or giving him the opportunity to respond.

Bokenfohr J concluded that this was a breach of the principles of natural justice and procedural fairness, stating at para 13: If the Adjudicator intended to rely on information other than what was provided for the review, the Adjudicator had a duty to (1) inform the Applicant of that information, and (2) give the Applicant an opportunity to argue the admissibility of the information as evidence, and the weight it should be given. [ 40 ] There are two factual differences between Schwab and Mr. Smith’s case.

Here, the information relied upon was part of the TML at the time the Decision was made (as opposed to information obtained from an internet search), and although the TML was amended on the day Mr. Smith submitted his written brief, it was originally made available to him on the SafeRoads portal, while in Schwab , the information in question was not made available to the Applicant at all. Mr. Smith argues that these factual differences should not mandate a different outcome.

He says the issue remains the same – whether the Adjudicator relied upon information that the Applicant was not notified of in advance, and whether the Applicant given an opportunity to make submissions on that information. [ 41 ] It is important to note that Mr. Smith’s review was a written review. In other words, the review was conducted based upon the written submissions made by Mr. Smith, provided to the Adjudicator in accordance with the mandated timelines. Mr.

Smith was not given an additional opportunity to make oral submissions to bolster his written arguments, address any questions from the Adjudicator or address any new information. However, applicants such as Mr. Smith are given notice in advance of the materials, including the TML, that the Adjudicator may rely upon when making a decision. The purpose of this is so that applicants, such as Mr. Smith, may address those materials in their written submissions for the Adjudicator to consider. [ 42 ] The problem with Mr.

Smith’s argument is that he was in fact given notice of the Blake Affidavit, including Exhibit F, because that Exhibit was part of the TML as far back as December 2020. The fact that the Blake Affidavit was updated on November 26, 2021, the same day Mr. Smith submitted his written argument to the Adjudicator, does not affect the fact that he had notice of Exhibit F in advance of the hearing. [ 43 ] In Munro v Alberta (Director of SafeRoads) , 2023 ABKB 29 , Bokenfohr J dealt with a similar argument. There, the

Applicant argued that it was procedurally unfair for the Adjudicator to rely on the Blake Affidavit because the Applicant was not given notice that the Adjudicator specifically intended to use the Blake Affidavit when determining the issue of impairment (although the Blake Affidavit had been included in the TML). The Applicant argued he was not provided a chance to respond to the Blake opinion. Bokenfohr J states at para 15: I agree with the Applicant that the Adjudicator owed a duty of procedural fairness to the Applicant at the review hearing.

However, I disagree that the Adjudicator breached that duty by not bringing the Blake Affidavit to the attention of the Applicant. While the Adjudicator did not say anything explicit about the Blake Affidavit or the Blake opinion during the review hearing, the Adjudicator did confirm that the Applicant had access to all the information in the APIS portal before the Applicant began their oral arguments. The Applicant themselves relied on information contained in the SafeRoads Alberta Technical Materials Library during their oral submissions to the Adjudicator.

It was not procedurally unfair for the Adjudicator to rely on the information contained in the SafeRoads Alberta Technical Materials Library in order to determine the issues before them. The Adjudicator relied on materials that the Applicant had available to them and was aware of at the time of the hearing. [ 44 ] Like Munro , Mr. Smith’s case is factually distinct from Schwab in which the Applicant was given no notice whatsoever that the Adjudicator would rely upon information from Google Maps. That distinction mandates a different outcome than that in Schwab . [ 45 ] A fair hearing requires that Mr.

Smith be given an opportunity to argue whether the Blake Affidavit should lead to the conclusion that he was impaired, either alone or together with the other evidence on the record, or whether it should be given no weight. He was given this opportunity, and accordingly, I conclude that this first ground of judicial review ought to be dismissed. [ 46 ] Since the Adjudicator was entitled to refer to the Blake Affidavit in coming to his conclusion, I will also address Mr. Smith’s position that the Adjudicator did not consider evidence of mouth alcohol and the margin of error in ASDs.

I find that the Adjudicator’s decision on this point to be reasonable. The Adjudicator clearly addressed the fact that Mr. Smith told Sheriff Friesen that he had beer with lunch at 11:00 pm which gave Sheriff Friesen more than the required 15 minutes before using an ASD. The Adjudicator also clearly dealt with the fact that Alberta ASDs were calibrated differently than BC ASDs and that it was established that the margin of error was 5%.

Finally, I agree with the Director that even if the first breath sample was contaminated by mouth alcohol, the second sample taken after 15 minutes from the last consumption of alcohol could be relied upon to issue the NAP: see Weinkauf v Alberta (Director of SafeRoads) , 2022 ABKB 752 at para 66 . [ 47 ] The Adjudicator’s decision that Mr. Smith had not established the grounds to cancel the NAP is reasonable on the evidence before them. B.

Is the Adjudicator authorized to rely upon the TML? [ 48 ] Given my conclusion on the first ground, it is necessary for me to go on to address the issue of whether an Adjudicator may consider the TML at all given the Legislature’s failure enact a regulation which explicitly establishes the TML. [ 49 ] This is a question of statutory

interpretation to which the standard of review of reasonableness applies. [ 50 ] The creation and use of the TML is governed by s 4 and 18 of PAPA . [ 51 ] PAPA s 4 states: 4 The Director may, in accordance with the regulations or the regulations under a prescribed enactment, establish and maintain publicly accessible scientific, technical or medical information and documents in any format, which may be relied on as evidence in a review. [ 52 ] PAPA s 18(2)(

e) permits an adjudicator to “consider” “any relevant scientific, technical or medical information and documents referred to in

section 4”. [ 53 ] In addition to the provisions in PAPA , s 12(2) of the Provincial Administrative Penalties Regulation , Alta Reg 217/2020 (“ PAPR ”) sets out what other evidence an adjudicator may consider: 12(2) The following are prescribed as evidence and information that an adjudicator may consider, in addition to the records, representations, arguments and evidence listed in section 18(2)(

a) to (

e) of the Act, before making a decision: (

a) any relevant records submitted by an officer or an officer’s agent in relation to the contravention; (

b) any relevant records of the Registrar in relation to the contravention; (

c) in the case of a review respecting a contravention of

section 88, 88.01, 88.02, 88.03 or 88.1 of the Act, the results of any bodily substance analysis submitted in relation to the contravention. [ 54 ] The parties agree that there is nothing within PAPA or PAPR which specifically establishes the TML or prescribes its contents as contemplated in s 4 of PAPA . [ 55 ] Mr. Smith argues that the Legislature’s failure to enact a regulation establishing the TML as contemplated by s 4 PAPA renders the Adjudicator’s reliance upon the TML ultra vires .

He argues that the Director does not have unfettered authority to establish the TML unless it is in accordance with a regulation. As there is no such regulation, the Director has no authority to establish the TML and therefore an Adjudicator may not rely upon the materials within it as evidence in a review.

[ 56 ] The Director raises a preliminary issue on this point, arguing that Mr. Smith is attempting to raise a new issue on judicial review which ought to have been raised before the Adjudicator. The existence of the TML, and the fact that the Adjudicator could rely upon it, was made known to Mr. Smith upon his filing of his request for review. Despite that knowledge, Mr. Smith did not argue before the Adjudicator that the materials could not be considered. [ 57 ] On the other hand, Mr.

Smith says that he could not predict that the Adjudicator would consider the materials within the TML, and that the issue of the Adjudicator being ultra vires in doing so did not crystallize until the Adjudicator’s Decision made that clear. He argues this is a matter of procedural fairness, not purely statutory

interpretation which allows him to argue the issue before this Court. [ 58 ] This Court has been clear that it does not conduct a hearing de novo on issues that were not raised before the Adjudicator: Islay v Alberta (Director of SafeRoads) , 2022 ABQB 249 at paras 34 and 63 . As noted by Bokenfohr J in Munro at para 18 : A reviewing court does have the discretion to hear an issue for the first time on judicial review.

However, this exercise of discretion is the exception and not the norm, and will generally not be exercised where the issue could have been put before the administrative decision maker but was not raised: Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at paras 24 – 26 . [ 59 ] Mr. Smith referred to materials from the TML in his written submissions to the Adjudicator. [3] The TML materials were made available to Mr. Smith before the review, and he clearly was aware of them. Mr.

Smith was also aware that “prior to the review, the recipient, lawyer or agent is responsible to check the status of the application and review the supporting documents on the SafeRoads portal” and that “in a review, the adjudicator will consider all relevant information and supporting documents provided by the recipient, lawyer or agent within the mandated timeline, including all information and supporting documents provided by law enforcement, the Technical Materials Library, legislation and its regulations…” [4] [ 60 ] As Mr.

Smith was aware that the TML could be considered he ought to have raised the issue of whether the Adjudicator was entitled to do so before the Adjudicator. Had he done so, the Adjudicator would have had an opportunity to consider the issue and provide reasons for their decision, which in turn could have been considered on judicial review. As there are no reasons for decision of the Adjudicator on this issue, I have nothing to review, and I decline to exercise my discretion to consider it. This is a question of statutory

interpretation that ought to have been put to the Adjudicator. I therefore dismiss this ground of judicial review. [ 61 ] Having reached this conclusion, it is not necessary for me to decide whether the Adjudicator’s reliance upon the TML was ultra vires . VII. Conclusion [ 62 ] For the reasons set out above, I dismiss the Application for judicial review. No costs are awarded to either party. Heard on the 8 th day of September, 2023. Dated at the City of Edmonton, Alberta this 8 th day of December, 2023. L.K. Harris J.C.K.B.A. Appearances: Rory Ziv and Matthew Pagels Ziv Law Group for the Applicant Pascal Visentin

Emery Jamieson LLP for the Respondent