Gordey v Alberta (Director of SafeRoads), 2023 ABKB 228

Court of King’s Bench of Alberta Citation: Gordey v Alberta (Director of SafeRoads), 2023 ABKB 228 Date: 20230424 Docket: 2203 01397 Registry: Edmonton Between: Jack Morris Gordey Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice L.K. Harris _______________________________________________________ [ 1 ] During the early morning hours of November 20, 2021, Mr. Gordey was stopped by police while driving his vehicle. After an investigation, the police issued Mr.

Gordey a Notice of Administrative Penalty (“NAP”) on the basis that he had, within 2 hours after ceasing to operate a motor vehicle, a blood alcohol concentration that is equal to or exceeded 80 milligrams of alcohol in 100 milligrams of blood contrary to s 88.1(1)(

b) of the Traffic Safety Act , RSA 2000 c T-6 (“ TSA ”). [ 2 ] Mr. Gordey sought a review of the NAP by an Adjudicator. His review was not successful, and his NAP was confirmed. [ 3 ] Mr. Gordey now brings an application for Judicial Review of the Adjudicator’s review decision confirming the NAP. He asks me to find that the Adjudicator’s decision was unreasonable, or alternatively, incorrect, because the Adjudicator did not cancel the NAP. He says that the Director had failed to disclose to him all the police notes and reports from the investigation and the Adjudicator should have cancelled the NAP on that basis. I. Relevant Legislative Framework

[ 4 ] The background to and legal framework of the Alberta SafeRoads regime has been set out in several preceding decisions of this Court: 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 legislative background here. In

summary, the SafeRoads regime is intended to provide a simplified, consistent, proportionate, and expedient mechanism to evaluate the validity of an NAP as confirmed in Kelleher v Alberta (Director of SafeRoads) , 2021 ABQB 517 at para 1 . [ 5 ] The recipient of an NAP has a right to request a review of the NAP by an Adjudicator appointed by the Director. Once a request for a review of an NAP is filed, s 12 of the Provincial Administrative Penalties Act , RSA 2020 c P-30.8, (“ PAPA ”) compels the Director to provide certain records to the recipient: Duty to provide records to recipient 12

(1) The Director shall, after receiving a request for review and the prescribed fee, provide to the recipient, in accordance with the regulations, relevant records as prescribed in the regulations or the regulations under a prescribed enactment.

(2) Unless required by the regulations or the regulations under a prescribed enactment, the Director is not required to provide a recipient with any records, representations or arguments in respect of an alleged contravention beyond the records referred to in subsection (1). (emphasis added) [ 6 ] PAPA does not define what comprises relevant records for the purposes of the SafeRoads regime. For that we must look to the SafeRoads Alberta Regulation , Alta Reg 224/2020 (“ SAR ”). SAR s 2 sets out the records that are to be provided to a NAP recipient seeking a review.

The relevant portion is as follows: Records to be provided to recipient for review 2 The Director shall provide the following to a recipient on receipt of an application for review: (

a) a copy of the notice of administrative penalty; (

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

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

i) the expiry date of the last annual maintenance performed on the device, and (ii) the date of the last calibration of the device and the expiry date of that calibration for the device; … (

h) any other relevant records and representations of the officer who issued the notice of administrative penalty or any other officer, including peace officers’ reports that have not been certified, sworn or solemnly affirmed, that are in the opinion of the Director relevant and necessary to determine the basis for issuing the notice of administrative penalty . (emphasis added) SAR s 4 sets out the grounds for cancelling a NAP following the review. The burden of establishing the grounds to cancel an NAP is on the recipient ( PAPA s 18(1)).

The relevant portions of SAR s 4 for the purposes of this matter are as follows: 4 The grounds for an adjudicator to cancel a notice of administrative penalty … (

f) issued for a contravention of

section 88.1(1)(

b) of the Act are … (iii) that the Director did not provide complete records to the recipient as required by

section 12 of the Provincial Administrative Penalties Act II. Background [ 7 ] As Mr. Gordey has not filed an affidavit describing the incident, all the evidence before the Court about what transpired is taken from the Record, which includes the materials disclosed by the Director. [ 8 ] In the early morning hours of November 20, 2021, Corporal Jaszczyszyn and Constable Athwal conducted a traffic stop of a vehicle operated by Mr. Gordey in Grande Prairie, AB. Cst. Athwal approached the driver’s side of the vehicle and spoke to Mr. Gordey. Cst. Athwal reviewed Mr.

Gordey’s license and other information, and then read Mr. Gordey a mandatory alcohol screening (“MAS”) demand. [ 9 ] Cpl. Jaszczyszyn also spoke to Mr. Gordey and asked when he had last consumed alcohol. Upon being told by Mr. Gordey that he had consumed alcohol only a few minutes prior, the officers decided to wait until 15 minutes had passed from the time of consumption so that Mr. Gordey’s mouth alcohol would dissipate. [ 10 ] Cst. Athwal then administered the alcohol screening device (“ASD”). The ASD registered a “fail”. Cpl. Jaszczyszyn then explained that Mr.

Gordey could perform a second screen as an appeal. Mr. Gordey indicated that he would perform a second screen.

Cpl. Jaszczyszyn administered the second ASD screen, which also registered a “fail”. Cpl. Jaszczyszyn then issued the NAP to Mr. Gordey on the basis that Mr. Gordey had, within 2 hours after ceasing to operate a motor vehicle, a blood alcohol concentration that is equal to or exceeded 80 milligrams of alcohol in 100 milligrams of blood. This resulted in the immediate suspension of Mr. Gordey’s driver’s license. [ 11 ] Although Cst. Athwal was the officer who administered the initial ASD screen, he did not issue the NAP. He did not sign any of the paperwork provided to Mr.

Gordey. [ 12 ] There were neither notes nor a report authored by Cst. Athwal included in the materials disclosed to Mr. Gordey by the Director following Mr. Gordey’s request for a review of the NAP. There is no evidence on the Record establishing whether Cst. Athwal completed either notes or a report following the incident. There is nothing on the Record which shows the Director noted their absence, or even turned his or her mind to clarifying whether they exist and should be included in the disclosure as being “relevant and necessary” records to be disclosed under SAR s 2(h). III.

The Adjudicator’s Decision [ 13 ] At the review before the Adjudicator, Mr. Gordey argued two main issues: (

a) The Director failed to provide complete disclosure as required by SAR s 2, (including a number of records but for the purposes of this judicial review, specifically the notes or report of Cst. Athwal), and the failure to do so was a breach of procedural fairness owed to him; (

b) There was no validly issued NAP as the NAP was deficient for several reasons. [ 14 ] The Adjudicator confirmed the NAP, rejecting Mr. Gordey’s arguments. [ 15 ] As Mr. Gordey confirmed that he is not seeking judicial review in relation to the second issue, I will summarize the Adjudicator’s decision on the first issue only. [ 16 ] The Adjudicator held that SAR s 2(

h) does not require disclosure of any additional records which might be available, but rather, only those additional records that are relevant and necessary to know the basis for the NAP. While any notes or report of Cst. Athwal might be relevant; they were not necessary because Mr. Gordey had received a valid NAP with the required particulars and Cpl. Jaszczyszyn’s report which provided the particulars and details of the traffic stop. This report described Cst. Athwal’s involvement and the results of the initial ASD test, and therefore it was not necessary to provide any notes or a report from Cst.

Athwal. [ 17 ] The Adjudicator thus concluded that while a report or notes of Cst. Athwal may be relevant, Mr. Gordey failed to establish that they were also necessary as required by SAR s 2(h), and therefore, there were no grounds to cancel the NAP under s 4(f)(iii). IV. Standard of Review [ 18 ] The parties differ somewhat on the issue of the standard of review I am to apply to the Adjudicator’s decision. [ 19 ] Mr. Gordey argues that generally, the standard of review is one of reasonableness, except to the extent that I am considering whether there has been a breach of procedural fairness.

On the issue of procedural fairness, he says that the appropriate standard of review for me to apply is one of correctness. [ 20 ] On the other hand, the Director argues that the standard of reasonableness applies to all issues before me, relying upon Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , as well as other decisions from this Court addressing the standard of review to be employed by it in SafeRoads decisions (for example, see, Isley v Alberta (Director of SafeRoads) , 2022 ABQB 249 ). [ 21 ] The starting point for determining standard of review in SafeRoads matters is PAPA s 24(3) which states, “on an application for judicial review under subsection (2), the standard of review is reasonableness”. [ 22 ] In Isley , the Court confirms Vavilov makes it clear that the presumptive standard of reasonableness applies unless the issue falls within two exceptions: first, whether the relevant legislation indicates a different standard should apply (which it does not here), or second, where there is a general question of law of central importance to the legal system as a whole.

In Isley , the Court concluded that even when considering Charter compliance and issues of fairness, the reasonableness standard applies, relying upon Doré c Québec (Tribunal des professions) , 2012 SCC 12 and Loyola High School v Quebec (Attorney General) , 2015 SCC 12 . The Court concluded that the fact that Charter or fairness issues are engaged does not argue for a different standard: Isley at para 25 . [ 23 ] I conclude that I am to apply the standard of review of reasonableness to issues of procedural fairness.

Not only does this comply with PAPA s 24(3), but the issue raised in this case does not fall within either of the two exceptions set out in Vavilov . [ 24 ] My role in this Judicial Review is to review the Adjudicator’s decision to determine whether it was reasonable. This was made very clear by the Supreme Court in para 83 of Vavilov , which states: The role of courts in these circumstances is to review , and they are, at least as a general rule, to refrain from deciding the issue themselves.

Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem... [T]he reviewing court must consider only

whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome towhich it led — was unreasonable. V. Issue [25] Was the Adjudicator’s conclusion that the notes and report of Cst. Athwal were not necessary such that they ought to bedisclosed under SAR s 2(

h) reasonable? Put another way, did the Adjudicator reasonably interpret SAR s 2(

h) in finding that the notesand report of Cst. Athwal were not necessary? If so, what is the appropriate remedy? VI. Decision a. Was the Adjudicator’s Decision Reasonable? i. The Parties’ Positions [26] Mr. Gordey argues that Cst. Athwal’s notes and report are both relevant and necessary such that they should be producedunder SAR s 2(h). [27] He argues that PAPA s 5 and TSA s 88.1(1) requires the administering police officer to form reasonable grounds to believethat a person has committed a contravention under the TSA.

Whether or not an officer has reasonable grounds is assessed on a modifiedobjective basis: he or she must subjectively believe he or she has reasonable grounds, and that belief must be justifiable from an objectivepoint of view (R v Storrey, (SCC), [1990] 1 SCR 241).

In the SafeRoads context, an officer’s reasonable grounds toissue a NAP may be formed as a result of receiving a “fail” result from an ASR. [28] To allow a NAP recipient to examine whether an officer had reasonable grounds to issue the NAP, he or she must be able toreview the notes and any report of the officer who formed those reasonable grounds and administered the ASR. [29] A failure to produce those records renders the NAP essentially unreviewable and therefore is a breach of procedural fairnessto a recipient. It is not sufficient to rely upon the NAP alone or the notes and report of Cpl.

Jaszczyszyn in this case - the lack of notes ora report on the pivotal issue of whether the ASR results gave Cst. Athwal reasonable grounds, which Cpl. Jaszczyszyn relied upon, toissue a NAP diminishes the weight that can be attached to the information contained in the NAP authored by Cpl. Jaszczyszyn: R vMpofu, 2015 ABQB 322. [30] Further, Mr. Gordey argues that it is not sufficient to have only the notes and report of Cpl. Jaszczyszyn even if they providedetails of Cst. Athwal’s actions. They are ambiguous as to whether Cpl.

Jaszczyszyn saw the results of the first ASD screen, or whetherhe was told the results by Cst. Athwal. Mr. Gordey says that if Cpl. Jaszczyszyn was advised of the results by Cst. Athwal, this is notsufficient as Cpl. Jaszczyszyn is required to form his own reasonable grounds as the officer who issued the NAP. [31] Cpl. Jaszczyszyn cannot rely upon the appeal ASD that he administered as a stand-in basis for the first ASD reading obtainedby Cst. Athwal.

Section 88.1(2) of the TSA provides for the NAP to be issued once a peace officer forms reasonable grounds to believethere has been a contravention. This must occur once the first ASD reading is obtained. There is no statutory requirement for a recipientof an ASD to exercise the right of appeal, and to allow an officer to rely upon the second ASD reading obtained after a recipientexercises the right of appeal penalizes those who do seek an appeal. [32] Mr. Gordey says that the Director can exercise its discretion in determining which records are necessary under SAR s 2(

h) butthat discretion needs to be exercised reasonably, and the Director’s decision in this case was not reasonable because it denies Mr. Gordeythe opportunity to fully review the basis for the NAP and is procedurally unfair. [33] Mr. Gordey seeks to have the Adjudicator’s decision quashed, and seeks an order directing the Director to produce the notesand report of Cst. Athwal and a new review held by a new Adjudicator. If Cst. Athwal did not prepare notes or a report, then Mr.

Gordeyseeks a direction cancelling the NAP on the basis that a meaningful review is not possible. [34] On the other hand, the Director argues that although Cst. Athwal’s notes may be relevant, the Director can exercise itsdiscretion and determine that they are not necessary. The records disclosed by the director, including the NAP and the notes and reportof Cpl. Jaszczyszyn reveal the basis for the NAP. There is no additional or new information to be gained by also disclosing notes or areport from Cst. Athwal, especially in circumstances where Mr. Gordey has not provided any information to suggest that Cst.

Athwal’snotes or report would say something different from those of Cpl. Jaszczyszyn, or that Cst. Athwal’s notes and report would call thevalidity of the NAP into question. Keeping in mind that the Applicant has the burden of proof, the absence of any information from Mr.Gordey questioning the validity of the NAP means that it is not necessary to see the notes or report from Cst. Athwal to understand thebasis for why the NAP was issued. [35] Police officers can, and must, rely upon the actions and decisions made by fellow officers as a function of the division oflabour within an investigation, and as such, Cpl.

Jaszczyszyn was able to rely upon the fact that Cst. Athwal had administered the ASDand received a “fail” result in forming his own reasonable grounds to issue the NAP to Mr. Gordey. Cpl. Jaszczyszyn made note of thesignificant observations, and it is quite simply not necessary to have Cst. Athwal’s notes to see the basis for the NAP. [36] The Director appears to agree that any notes or report created by Cst. Athwal are relevant. The focus therefore is on whetherthose documents are also necessary to determine the basis for issuing the notice of administrative penalty as required by SAR s 2(h). ii. Analysis

[37] I agree with the Director that police officers are entitled to rely upon the observations and information of fellow policeofficers in forming reasonable grounds. This point is made very clear in R v Ha, 2018 ABCA 233 at para 77 and R v Warsame, 2018ABCA 329. The following passage from Ha at para 77 illustrates this point: Policing is a team sport.

When a squad of police officers engage in any activity, such as an arrest or search, the knowledge of the entiregroup is relevant: R v Cornell, 2010 SCC 31 at paras 37, 42-3, [2010] 2 SCR 142, affirming R v Cornell, 2009 ABCA 147 at paras 36-8,6 Alta LR (5th) 203, 454 AR 362; R v Abdul-Hamid, 2015 ONCA 179 at paras 6-7; R v Labelle, 2016 ONCA 110 at para 11.

In manyinvestigations, there will be no one officer who knew all of the relevant information about the situation. [38] Also see R v Debot, (SCC): The police officer who must have reasonable and probable grounds for believing a suspect is in possession of a controlled drug is the onewho decides that the suspect should be searched. That officer may or may not perform the actual search. If another officer conducts thesearch, he or she is entitled to assume that the officer who ordered the search had reasonable and probable grounds for doing so.

Ofcourse, this does not prove that reasonable grounds actually existed...(emphasis added) [39] However, the ability to rely upon another officer’s information in forming reasonable grounds to take a specific action,whether it be to arrest a suspect or to issue a NAP, is a very different issue from whether police notes and reports ought to be disclosed inthe context of the SafeRoads regime. Debot makes it clear that although police officers may rely upon another officer’s grounds, thatdoes not establish that the grounds were reasonable.

To reach that conclusion one would need to examine the information of the officerwho formed those grounds. That would be accomplished, in part, by reviewing that officer’s notes and report. [40] As a general principle, police officers have a positive duty to take complete, accurate and comprehensive notes, and thefailure to do so may affect the weight or degree of credibility of their evidence. In the criminal context, notes and reports serve manyfunctions aside from providing a record of observations made and actions taken. They serve as a memory aid for officers testifyingabout events.

Notes and reports permit the Crown to screen and vet the charges. They are disclosed to permit a defendant to testwhether the basis for an officer’s actions is reasonable. Variations between an officer’s notes and report on one hand and testimony onthe other may undermine the reliability of an officer’s evidence. [41] The importance of notes is highlighted by Dilts, J in R v Breitkreutz, 2021 ABQB 193 at para 60: The question of whether police officers have a general duty to take notes was answered by the Supreme Court in Wood v Schaeffer, 2013SCC 71.

In that case, the Supreme Court concluded that police officers have a positive duty to make notes to maintain “an up-to-daterecord” of what they have done, seen, heard, smelled or touched. Notes are not to explain or justify facts but are simply to set them out ina straightforward fashion: Wood at para 76. One purpose of police notes is to assist in determining what events happened.

It is widelyaccepted and often expressed that complete, accurate and comprehensive notes enable an officer to give accurate testimony in court,particularly given that they may be called upon to provide evidence weeks, months or even years after an incident or investigation. In R vDavidoff, 2013 ABQB 244 at para 25, Graesser, J observed that it is good police work to take contemporaneous, complete, accurate andcomprehensive notes not only to be able to refresh memory but to stand in the place of memory where a witness no longer recalls theevents.

Not surprisingly, the absence of notes can impact the reliability of a witness’s testimony (R v Bailey, 2005 ABPC 61 at para 43)and the credibility of a witness’s testimony (Davidoff at para 27). [42] Even though police officers are entitled to, and often must, rely upon information from fellow officers, there is no way toassess whether that information is valid and reliable unless the notes and report of all the officers involved are made available.

Disclosure of the notes and reports of all involved officers is necessary in order to fulfil this purpose. [43] It is also well recognized that in criminal proceedings, the Crown has a broad duty of disclosure to permit an accused to makefull answer and defence and is one of the principles of fundamental justice: R v Stinchcombe, (SCC), 1991 3 SCR 326(SCC). Disclosure of the notes and reports of all officers involved in an investigation follows this duty. [44] This Court has been very cautious about importing criminal principles and concepts into the SafeRoads administrative regime.

However, Stinchcombe also clearly notes that full document disclosure and oral examination of parties and even witnesses are “familiarfeatures” in civil proceedings as well. The concept of the element of surprise as an accepted strategy in civil litigation has “long sincedisappeared”: Stinchcombe at p 332.

Similarly, administrative decision makers have an overarching duty of procedural fairness toensure that their decisions are made using a fair and open procedure, with the opportunity for those affected to put forward their viewsand evidence fully: Baker v Canada (Minister of Citizenship and Immigration), (SCC). [45] The need for procedural fairness, of avoiding ambushes and permitting parties to know the case they are to meet is paramountin all types of proceedings. [46] There is nothing within the wording of SAR s 2(

h) to suggest that the phrase “relevant and necessary to determine the basis forissuing the notice of administrative penalty” should not reflect these underlying principles. On this basis, the Director ought to haveturned his or her mind to whether Cst. Athwal, as the officer who formed reasonable grounds to issue the NAP, had prepared notes or areport. If he had prepared such records, they ought to have been produced. If he had not prepared such records, then that fact also oughtto have been disclosed. Such disclosure is necessary to allow a recipient, such as Mr.

Gordey, to assess the reasonableness of thegrounds for issuing the NAP. Even though Cpl. Jaszczyszyn’s notes speak to what Cst. Athwal did, it doesn’t establish that Cst. Athwalhad reasonable grounds (according to Debot). A meaningful review requires the production of Cst. Athwal’s records, or confirmationthat no such records were prepared. [47] Directing that the notes and reports of all police officers involved in a SafeRoads investigation be produced by the Director isnot contrary to the purpose of the SafeRoads regime. This does not render the proceedings less expedient.

Police notes and reports arerequired to be produced in any event. These investigations are generally not complex investigations involving several police officers andoccurring over days or weeks, which would lead to a more prolonged disclosure process.

[ 48 ] Vavilov confirms that a decision may be unreasonable when it is untenable in light of the relevant factual and legal constraints that bear on it. [ 49 ] I conclude that the Adjudicator’s

interpretation of “relevant and necessary” was unreasonable because it is overly narrow and does not meet the principles underlying the need for fair and transparent disclosure. [ 50 ] Given this conclusion I do not need to decide what effect, if any, the Adjudicator’s comments regarding the second appeal ASR screen results had or whether any decision arising from those comments was reasonable. [ 51 ] The disclosure provided by the Director in this case breached SAR s 2(

h) because the Director failed to either disclose the notes and report of Cst. Athwal or confirm they did not exist; information (or the absence of which) that Mr. Gordey is entitled to receive to fully and meaningfully assess whether the basis for the NAP issued to him was reasonable. The Adjudicator’s decision upholding the NAP issued to Mr. Gordey is therefore unreasonable and is quashed. b.

What is the Appropriate Remedy? [ 52 ] Vavilov makes it clear that when a decision cannot be upheld, it is most often appropriate to remit the matter back to the decision maker to have it reconsidered with the benefit of the Court’s reasons ( Vavilov at para 141 ). There are some limited circumstances in which remitting the matter would stymie the timely and effective resolution of matters. There should not be “an endless merry-go-round of judicial reviews and subsequent reconsiderations”.

Declining to remit a matter to the decision maker may be appropriate where it becomes evident to the Court during its review that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose ( Vavilov at para 142 ). [ 53 ] As I noted at the outset, there is no evidence on the Record which sheds light on whether Cst. Athwal did prepare notes or a report arising from Mr. Gordey’s arrest. Even though police officers have a positive duty to prepare notes, I am not prepared to presume that a report or notes exist and give a direction that they be produced.

The most that can be said is that the Director does not appear to have turned his mind to whether they exist, or noted their absence from the materials uploaded by the police and made an inquiry as to whether they were available. There is a possibility that Cst. Athwal did not prepare notes or a report, but it is impossible to determine that from the Record. [ 54 ] I am limited in assessing the appropriate remedy given my conclusion that the Director’s disclosure in this case breached SAR s 2(h). SAR s 4(f)(iii) makes it clear that such a breach by the Director is grounds to cancel a NAP.

There is not an option within the legislation available to an Adjudicator to send the matter back to the Director to clarify or rectify disclosure. In these circumstances, it would serve no practical purpose to remit this matter back to the Adjudicator for reconsideration because the outcome is inevitable given my conclusion regarding the unreasonableness of the Adjudicator’s decision. [ 55 ] I am expressly not making any decision as to what should occur when an investigating officer such as Cst.

Athwal does not prepare notes or a report. [ 56 ] I therefore decline to remit the matter back to an Adjudicator for reconsideration. VII. Conclusions [ 57 ] The decision of the Adjudicator is quashed, and the matter will not be remitted back for reconsideration. The NAP issued to Mr. Gordey is cancelled pursuant to SAR s 4(f)(iii). [ 58 ] No costs are awarded to either party. Heard on the 4 th day of April, 2023. Dated at the City of Edmonton, Alberta this 24 th day of April, 2023. L.K. Harris J.C.K.B.A. Appearances: Zachary Al-Khatib

for the Applicant Kirsty Vogelesang for the Respondent