Sundar v Alberta (Director of SafeRoads), 2023 ABKB 337

Court of King’s Bench of Alberta Citation: Sundar v Alberta (Director of SafeRoads), 2023 ABKB 337 Date: 20230602 Docket: 2203 00869 Registry: Edmonton Between: Udayakumar Sundar Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice Bonnie L. Bokenfohr _______________________________________________________ Judicial Review from the Adjudicator K. Dorosh Dated the 9 th day of December, 2021

( 2021 ABSRA 1285 ) Overview [ 1 ] On November 11, 2021 a police officer issued a Notice of Administrative Penalty (NAP) under the SafeRoads Alberta Regulation , Alta Reg 224/2020 ( SAR ) to the Applicant, Udayakumar Sundar. The Applicant sought a review of the NAP to a SafeRoads Adjudicator who confirmed the NAP. [ 2 ] The Applicant filed an Originating Application with this Court to quash the NAP on two different and distinct bases: (

a) the Adjudicator’s decision is unreasonable, and (

b) the Applicant’s Charter rights were breached. [ 3 ] The Applicant submits that their Originating Application is both an application for judicial review of the Adjudicator’s decision and an original Charter application in the first instance to this Court. [ 4 ] On the first ground, I find that the Adjudicator’s decision is unreasonable. On the issue of the characterization of the second breath test as the roadside appeal test the Adjudicator did not address the legislative framework including which sub-section of TSA s. 88.11(2) dealing with roadside appeals that they were relying on.

On the issue of reliance of the results of the Approved Screening Device (ASD) breath sample taken after the Applicant was arrested and transported to a police facility, the Adjudicator did not consider whether the failure to advise the Applicant of their right to counsel after arrest and prior to the ASD breath sample rendered the NAP an abuse of process or was issued in breach of natural justice. The appropriate remedy is for the matter to be remitted back for rehearing. [ 5 ] On the second ground, I conclude that there is no proper Charter application before me.

The Originating Application filed by the Applicant in this matter did not specifically seek Charter relief. To seek Charter relief an applicant must clearly set out in the application both that they are seeking Charter relief and identify the remedy sought. For example, is the remedy being sought pursuant to s. 24(1) or s. 24(2) of the Charter or is the applicant challenging the constitutionality of the legislation under s. 52 of the Charter .

Any such application under s. 52 of the Charter requires notice to the Attorney General of Canada and the relevant Minister (s. 24 of the Judicature Act , RSA 2000, c J-2 ). [ 6 ] The question of whether an individual who has received a SafeRoads NAP can bring an original Charter application before this Court is a live issue that will have to be considered in a future case where the Charter has been properly plead. Background [ 7 ] On November 11, 2021 police conducted a traffic stop after observing what the officer described as “two sudden lane adjustments… best described as quick jerky movement”.

The officer noted that the driver of the vehicle, the Applicant, displayed signs of intoxication including “a clear distinct odour of liquor emanating from their breath” and “red bloodshot and glossy eyes”. The Applicant admitted to consuming two beers. [ 8 ] The officer read an Alcohol Screening Demand to the Applicant at 0120hrs. The Applicant made five attempts to provide a breath sample into the Approved Screening Device (ASD). All five breath samples provided a reading of insufficient flow.

The officer then arrested the Applicant for impaired driving and offered the Applicant the opportunity to provide a second breath sample. [ 9 ] The Applicant indicated that he wanted to provide a second breath sample and was transported to a police station to provide the sample on an Approved Instrument. However, the Approved Instrument was not operational. The officer then provided the Applicant an opportunity to provide a breath sample on a different ASD. The ASD registered a “Fail” result.

This ASD test was at 0225hrs. [ 10 ] The officer issued a NAP to the Applicant on the ground that the Applicant operated a motor vehicle while their ability to do so was impaired by alcohol or drugs or a combination of both. [ 11 ] The Applicant applied for a written review of the NAP and provided written submissions in advance.

The Applicant also provided a Statutory Declaration that stated the following: • The Applicant denied making “quick jerky movements” when driving; • The Applicant’s driving was ordinary; • The Applicant denies being intoxicated or that their driving was impaired to any degree; • The police officer transported the Applicant to a police station where they were asked to wait at the station and at approximately 0225hrs they were presented with another handheld ASD device; • The Applicant was not issued a demand for breath into the ASD device at the police station. [ 12 ] The Adjudicator held that the Applicant’s ability to operate a motor vehicle was impaired by alcohol and therefore the Applicant had not established this ground to cancel the NAP. [ 13 ] In response to arguments by the Applicant that their Charter rights had been infringed the Adjudicator held that they did not have the authority to find Charter breaches or grant Charter remedies, but indicated that they would consider the arguments and

evidence pertaining to them under their assessment of the grounds to cancel the NAP and the overarching duty of fairness. The Adjudicator concluded that there had been no egregious unfairness nor a breach of procedural fairness warranting any further remedy: Sundar (Re) , 2021 ABSRA 1285 at para 4 . [ 14 ] The Adjudicator confirmed the NAP. Issues [ 15 ] The Applicant seeks judicial review of the Adjudicator’s decision.

The Applicant seeks to have the NAP quashed on two different and distinct bases: 1) Judicial review of the Adjudicator’s decision – the Applicant argues that the Adjudicator’s decision is unreasonable as the Adjudicator relied on the breath test provided at the police station to find that the Applicant’s ability to operate a motor vehicle was impaired by alcohol; and 2) Original Charter application in the first instance - the Applicant argues that their Charter rights were breached and the appropriate remedy is to quash the NAP.

Analysis Reasonableness of the Adjudicator’s Decision – Reliance on the breath sample provided at the police station [ 16 ] The NAP was issued under s 88.1 of the Traffic Safety Act , RSA 2000, c- T-6 ( TSA ) on the basis that the Applicant operated a motor vehicle while their ability to do so was impaired by alcohol or drug or a combination of both. [ 17 ] The facts surrounding the traffic stop are not in dispute.

The officer and Applicant agree that: • The officer conducted a traffic stop and made an Alcohol Screening Demand to the Applicant; • The Applicant made five attempts to provide a breath sample into an ASD. The officer’s narrative states that each attempt provided a reading of insufficient flow.

The Applicant’s evidence was that the attempts were not successful; • After the Applicant’s five attempts to provide a breath sample the officer arrested the Applicant for impaired driving; • The officer transported the Applicant to a police station; and • Approximately an hour later the Applicant was offered the opportunity to provide a breath sample on a different ASD.

The ASD registered a “Fail” result. [ 18 ] The issue in this judicial review is whether it was reasonable for the Adjudicator to rely on the results of the ASD breath sample taken at the police station to support the finding that the Applicant was impaired. [ 19 ] The Adjudicator held as follows: The driving evidence is insufficient on its own to satisfy me of impaired ability to operate; however, I must consider this with the totality of the evidence.

The Recipient did not deny that he consumed alcohol and failed to address the officer’s observations of the odour of liquor emanating from the Recipient’s breath, nor did he address his red, bloodshot and glossy eyes. I also have the very compelling evidence of the “Fail” result from the roadside appeal test on the second ASD which, from the evidence before me, I find was properly calibrated and maintained.

Sundar (Re) , at para 13 Characterization of the second test as a roadside appeal test [ 20 ] One of the issues before the Adjudicator was the characterization of the breath sample taken on the ASD at the police station. The Adjudicator held that this breath sample was the appeal breath test contemplated by the statutory scheme and that the Applicant voluntarily took the test.

The Adjudicator’s explanation for why they determined that this was a roadside appeal test was as follows: • the Applicant did not state that they had not requested a roadside appeal test; • the Officer recorded the second test as the roadside appeal test; • the fact that the Applicant refused to sign the consent form for the roadside appeal test was merely a refusal to sign the form, not a refusal to consent to the second test; and • the Applicant indicated that they wanted to take the second test. [ 21 ] The Adjudicator’s analysis did not address the legislative framework including which sub-section of TSA s. 88.11(2) dealing with roadside appeals they were relying on.

[22] The provision for roadside appeals is set out in s. 88.11(2) of the TSA. Most of the subsections dealing with roadside appealsarise “where the basis for issuing the notice of administrative penalty was an initial test performed on an [ASD or approved instrumentor drug screening equipment, etc.]” (ss. 88.11(2)(a)-(e)) (emphasis added).

Section 88.11(2)(

f) provides that where the basis for issuingan NAP is reasonable grounds to believe there was alcohol in the driver’s body and an initial test was not performed, a driver mayvoluntarily attend with the issuing officer at a designated place and provide a sample of breath on an ASD or Approved Instrument. It isnot clear from the Adjudicator’s reasons whether this is the

section of the TSA the Adjudicator relied on to find that the breath test at thepolice station was the appeal test. [23] The failure of the Adjudicator to address the context of the legislative framework and to analyze whether s. 88.11(2)contemplates a roadside appeal of an unsuccessful test as falling within s 88.11(2) renders the decision unreasonable.

Duty of procedural fairness and the Charter [24] Having found that the ASD breath test at the police station was the appeal breath test, the next issue for the Adjudicator toconsider was whether the Adjudicator could, or should, rely on those results to assess whether the Applicant’s ability to operate a motorvehicle was impaired by alcohol. [25] The Applicant was arrested for impaired driving. The police transported the Applicant to a police station. The Applicant waswith police after arrest for approximately an hour prior to being offered the second ASD.

There is no evidence that the Applicant wasadvised of their right to counsel. Although SafeRoads Adjudicators do not have the authority to find or grant Charter remedies,Appendix A to the Adjudicator’s decision states that adjudicators are required to “balance Charter interests or values against (the)statutory mandate”. [26]

Section 10(

b) of the Canadian Charter of Rights and Freedoms provides that everyone has the right on arrest or detention toretain and instruct counsel without delay and to be informed of that right. The purpose of s. 10(

b) is to provide individuals who havebeen arrested and detained with the opportunity to obtain legal advice relevant to their legal situation: R.v. Sinclair, 2010 SCC 35 atpara 24. At paras 26-29 the Court continued: The purpose of the right to counsel is “to allow the detainee not only to be informed of his rights and obligations under the law but,equally if not more important, to obtain advice as to how to exercise those rights”: R. v. Manninen, (SCC), [1987] 1S.C.R. 1233, at pp. 1242-43. The emphasis, therefore, is on assuring that the detainee’s decision to cooperate with the investigation ordecline to do so is free and informed.

Section 10(

b) fulfills its purpose in two ways. First, it requires that the detainee be advised of his right to counsel. This is called theinformational component. Second, it requires that the detainee be given an opportunity to exercise his right to consult counsel. This iscalled the implementational component. Failure to comply with either of these components frustrates the purpose of s. 10(

b) and resultsin a breach of the detainee’s rights: Manninen. Implied in the second component is a duty on the police to hold off questioning until thedetainee has had a reasonable opportunity to consult counsel. The police obligations flowing from s. 10(

b) are not absolute. Unless adetainee invokes the right and is reasonably diligent in exercising it, the correlative duties on the police to provide a reasonableopportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended… [citations omitted]. Once informed of his right to consult counsel, the detainee may waive the right, deciding not to avail himself of the opportunity toconsult that has been provided. The right to choose whether to cooperate with the police, the basic purpose of s. 10(b), has beenrespected in the event of a valid waiver, and there is consequently no breach. The s. 10(

b) right to consult and retain counsel and to be advised of that right supports the broader s. 7 right to silence. However, it is notto be confused with the right to silence. An important purpose of legal advice is to inform the accused about his right to choose whetherto cooperate with the police investigation and how to exercise it.

Section 10(

b) is a specific right directed at one aspect of protecting theright to silence — the opportunity to secure legal assistance. A given case may raise both s. 10(

b) and s. 7 issues. Where it is allegedunder s. 7 and the confessions rule that a statement is involuntary because of denial of the right to consult counsel, the factualunderpinning of the two inquiries may overlap: Singh. Yet they remain distinct inquiries. The fact that the police complied with s. 10(b)does not mean that a statement is voluntary under the confessions rule. Conversely, the fact that a statement is made voluntarily does notrule out breach of s. 10(b).

It follows that Singh, which was concerned with the s. 7 right to silence, does not resolve the issue on thisappeal. [27] Although the Adjudicator did not have the authority to find that there had been a breach of the Applicant’s s. 10(

b) Charterright, the Adjudicator was required to consider whether the failure to advise the Applicant of their right to counsel meant that theevidence from the second test was collected in a manner that was inconsistent with the Charter and Charter values. While theAdjudicator did consider whether the officer’s conduct was appropriate in the context of the wait for the second test, they neveraddressed the issue of the failure to advise the Applicant of their right to counsel.

While the police failure to advise the Applicant oftheir right to counsel may not render the ASD result irrelevant or unreliable, that is only one aspect of the analysis. The Adjudicator wasalso required to consider whether relying on the ASD result, in the absence of the Applicant being advised of their right to counsel,would be an abuse of process or a breach of natural justice. [28] The Supreme Court of Canada in Thomson v.

Alberta (Transportation and Safety Board), 2003 ABCA 256, leave to appealdismissed [2003] SCCA No 510 dealing with a different administrative license suspension program under the Traffic Safety Act, S.A.1999, c. T-6.4, held that while an administrative tribunal may not be a court of competent jurisdiction to grant Charter remedies (seepara 57), the imposition of procedural fairness to guide such tribunals may lead a tribunal to refuse to consider certain evidence. At para68, the Court held: In

summary, to comply with its duties of fairness, the Board must:

a) inform the appellant of the case against him or her,

b) permit the appellant a meaningful opportunity to answer the case against him or her,

c) give full and fair consideration to the issues,

d) consider the source of the evidence or information including whether it was gathered in a manner contrary to the Charter or Charter values ,

e) consider relevant evidence and information, and as a corollary

f) not consider irrelevant or unreliable evidence or information,

g) not act arbitrarily, for an improper purpose or with malice. (emphasis added) [ 29 ] The Adjudicator’s reliance on the ASD test in the absence of reasons that demonstrate that the Adjudicator considered the police failure to advise the Applicant of their right to counsel was unreasonable. [ 30 ] I remit the matter back for rehearing on the issue of whether the Applicant has established that their ability to operate a motor vehicle was not impaired to any degree by alcohol or drug or a combination of both. What evidence the Adjudicator chooses to rely on is a live issue for the Adjudicator.

If the Adjudicator decides to rely on the breath test at the police station, the Adjudicator must address the issues identified above. However, it is within the Adjudicator’s discretion to decide what evidence that they will rely on including whether they choose to consider the ASD at the police station. [ 31 ] The Director argued that the Applicant did not raise this issue before the Adjudicator and therefore it cannot be considered in the judicial review. The Applicant did argue before the Adjudicator, in a rather general manner, that their s. 10(

b) rights had been infringed. The Director is correct, however, that the specific issue of whether the Adjudicator could, or should, rely on the ASD appeal test result to confirm the NAP in light of the Applicant not being informed of their right to counsel was not specifically argued. [ 32 ] Neither party argued this issue because they were not aware that the Adjudicator would characterize the police station breath test as an appeal test, nor was either party aware that the Adjudicator would rely on the police station appeal test for the purpose of confirming the NAP.

The issue arises as a result of the Adjudicator’s decision and is properly the subject of the judicial review. Charter Application [ 33 ] The Applicant also seeks to have the NAP set aside as the appropriate remedy for breaches of the Applicant’s Charter rights.

The Applicant is clear in their submissions that they are seeking both judicial review of the Adjudicator’s decision and an independent claim to the Court to remedy police breaches of the Applicant’s Charter protected rights including the right to counsel. [ 34 ] The Director argues that the Applicant’s request for Charter relief should not be heard as the Applicant’s pleadings do not include any request for Charter relief. [ 35 ] The Originating Application filed by the Applicant refers to breaches of the right to counsel and “s .10(

b) rights”, but did not seek any Charter relief. Under “Remedy Sought” the Originating Application states the following, “BY way of order of MANDAMUS and CERTIORI (sic) the NAP/IRS SHOULD BE CANCELLED”. [ 36 ] During oral submissions the Applicant confirmed that they were seeking a remedy pursuant to s. 24(1) of the Charter . [ 37 ] I agree with the Director that the application must clearly state that the Applicant is seeking Charter relief and identify the remedy they are seeking.

For example, is the remedy sought pursuant to s. 24(1) or s. 24(2) or is the Applicant challenging the constitutionality of the legislation pursuant to s. 52? This clarity is important as it will inform notice requirements such as whether the Attorney General or Minister must be given notice. [ 38 ] If an applicant wishes to bring an independent application to this Court, in the first instance, for Charter relief, they must specifically plead a Charter remedy. The Applicant in this case did not do so, nor did they seek to amend their pleadings.

There is no proper Charter application before me. [ 39 ] To be clear, I am not concluding that an NAP recipient cannot apply directly to the Court of King’s Bench for a declaration that their Charter rights have been breached and seek a remedy. Despite the assertions of the Director, I am of the opinion that this is a live issue. [ 40 ] The statutory framework is clear, SafeRoads adjudicators are not a court of competent jurisdiction for the purpose of finding that Charter breaches have occurred and awarding Charter remedies.

In the context of the SafeRoads statutory scheme, adjudicators are granted limited statutory authority to cancel an NAP under s. 4 (e)(i)-(vi) of the SAR , none of which include Charter breaches. [ 41 ] The Court of King’s Bench is a court of competent jurisdiction to make findings that Charter breaches have occurred and to grant remedies for same. [ 42 ] What remains a live issue is whether the SafeRoads statutory framework that limits the SafeRoads adjudicators’ authority to grant Charter relief can also restrict a superior court’s inherent jurisdiction to determine whether an individual’s Charter rights have been breached and if so, grant an appropriate remedy.

Put another way, can a provincial government’s decision to create an administrative impaired driving scheme that does not provide for Charter jurisdiction effectively insulate the conduct of law enforcement officers from Charter scrutiny? Can the administrative regime effectively oust the jurisdiction of this Court?

[ 43 ] The Director argues that an NAP recipient cannot apply directly to the Court of King’s Bench for a declaration that their Charter rights have been breached and seek a remedy for the breach. The Director relies on Packham v Alberta (Director of SafeRoads ) (12 January 2023), Lethbridge 2106 00508 (ABKB) unreported per Kubik J.; Gonzalez v Alberta (Driver Control Board) , 2001 ABQB 757 ; and Thomson .

It is not obvious to me, on their face, that these cases are determinative of the issue of whether an NAP recipient can, and in what circumstances, apply directly to the Court of King’s Bench for a declaration that their Charter rights have been breached and seek a remedy for the breach. [ 44 ] This is a live issue to be considered in a case where the Charter has been properly plead. Conclusion [ 45 ] The Applicant’s judicial reviewed is allowed. The Adjudicator’s decision is unreasonable.

The matter is remitted back for rehearing. [ 46 ] The Originating Application filed in this matter does not specifically plead Charter relief therefore there is no Charter application before me. [ 47 ] Whether an individual who has received a SafeRoads NAP can bring an original Charter application before this Court is a live issue. It is an issue that will have to be considered in a case where the Charter has been properly pleaded. Heard on the 23 rd day of February, 2023. Dated at the City of Edmonton, Alberta this 2nd day of June, 2023. Bonnie L. Bokenfohr J.C.K.B.A.

Appearances: Matthew Pagels for the Applicant Anastasia Yevtushenko for the Respondent