Montpetit v Director of Saferoads Alberta, 2024 ABKB 042

Court of King’s Bench of Alberta Citation: Montpetit v Director of Saferoads Alberta, 2024 ABKB 042 Date: 20240123 Docket: 2203 04344 Registry: Edmonton Between: Michael Montpetit Applicant - and - Director of Saferoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice C.L. Arcand-Kootenay _______________________________________________________ I.

INTRODUCTION AND BACKGROUND [ 1 ] This is an application for judicial review of the Adjudicator’s decision to uphold a Notice of Administrative Penalty (NAP) issued to Michael Montpetit (the Applicant) pursuant to the Traffic Safety Act, RSA 2000, c.T-6 ( TSA ) and SafeRoads Alberta Regulation, Alta Reg 224/2020 ( SAR ) (SafeRoads Alberta).

A. Legislative Background [ 2 ] SafeRoads Alberta came into force in December 2020. Other jurisdictions across Canada have enacted similar legislation, with British Columbia’s being the first and most heavily litigated. The legislation was designed to remove from the road those who are operating motor vehicles while their ability to drive is impaired by alcohol or drugs without engaging the Criminal Code : Lausen v. Alberta (Director of SafeRoads ), 2021 ABQB 896 [Lausen] . Sections 88.1(1) and 88.1

(2) TSA require a peace officer, who has reasonable grounds to believe that a driver’s ability to operate the motor vehicle is impaired to any degree by alcohol or a drug or by a combination of the two, to issue a NAP and require the driver to surrender his or her operator’s license. An officer will have those grounds if a driver’s breath sample into an Approved Screening Device (ASD) registers a FAIL result. The driver has a right to an immediate roadside appeal, which allows the driver to challenge the officer’s grounds by providing a second sample of breath into a different ASD or Approved Instrument.

The officer must advise the driver in writing about the right to a roadside appeal. This process is specified in s.88.11 TSA . Once a person has been issued a NAP, that person can seek a review in front of an Adjudicator. A brief synopsis of this process was set out by Rooke, ACJ in Kelleher v. Alberta (Director of SafeRoads) , 2021 ABQB 517 at paras 1 and 2 : [1] On December 8, 2021, the SafeRoads Alberta Tribunal was created by the SafeRoads Alberta Regulation, Alta Reg 224/2020 , as authorized by the Provincial Administrative Penalties Act , SA 2020, c. P-30.8 [ PAPA ].

The SafeRoads Alberta Tribunal conducts reviews of Traffic Safety Act , RSA 2000, c. T-6 [ TSA ] “Validity of the Notices of Administrative Penalty” that impose sanctions such as license suspensions, vehicle seizures, and fines for disqualifications for driving: TSA

Part 4. The purpose of the legislation is to provide a simplified, consistent, proportionate, and expedient mechanism to evaluate the validity of Notices of Administrative Penalty: PAPA s.2 . SafeRoads Alberta Adjudicators issue formal reported decisions in response to TSA reviews (SafeRoads Alberta Decisions). [2] SafeRoads Alberta Decisions are subject to Judicial review by the Court of Kings’s Bench of Alberta: PAPA s.24 .

While the usual period in which to file and serve a Judicial review is six months ( Alberta Rules of Court , Alta Reg 124/2010 Rule 3.15(2)), Judicial reviews of SafeRoads Alberta Decisions must be filed and served no later than 30 days after the date the SafeRoads Alberta Decision is received by the Applicant ( PAPA s.24(2) ). II. HISTORY A. Circumstances of the Traffic Stop [ 3 ] On January 14, 2022, at 11:40 p.m., Cst Downey conducted a traffic stop on the Applicant, Mr. Montpetit, as he was leaving a liquor store in the Town of Morinville, at 11:35 p.m. Cst.

Downey proceeded with a Mandatory Alcohol Screening demand for breath and a sample was provided with a result of FAIL. The Applicant was provided with the Notice of Administrative Penalty, regarding information on a roadside appeal and the Applicant accepted the opportunity. He then provided a second sample of breath on a second device which also registered a FAIL.

The Applicant was issued a Notice of Administrative Penalty Immediate Roadside Sanction (NAP: IRS), seizure forms for towing, and was picked up from the scene by a friend at 02:00 a.m. on January 15, 2022. [ 4 ] The NAP: IRS the Applicant was provided, gave the Applicant notice that he was being issued an immediate roadside administrative penalty and information about the roadside right of appeal. [ 5 ] The NAP: IRS indicates that an immediate roadside sanction is being imposed and specifies the following effective immediately: • Your privilege to operate a motor vehicle in the province of Alberta has been suspended/disqualified, • Your vehicle may be seized as a result of your suspension/disqualification, • You are subject to a fine plus victim fine surcharge, and • You may be subject to further administrative and criminal sanctions and penalties. [ 6 ] The NAP: IRS describes the roadside appeal as a “right to request a second test to confirm [the driver’s] blood drug/alcohol concentration.

You must immediately indicate to the Peace Officer your choice to have a second test.” [ 7 ] If the driver requests a second test, the driver is required to complete and sign a written request, which is included at the bottom of the NAP: IRS.

The request includes an acknowledgment that “the results of this test will be used to prove [the driver’s] blood alcohol and drug concentration (if any) at the time of driving in any proceeding arising from this event.” [ 8 ] The Applicant signed a document requesting and voluntarily consenting to the taking of a sample and “I understand that the results of this test will be used to prove my blood alcohol and drug concentration (if any) at the time of driving in any proceeding arising from this event.” (REC075) [ 9 ] Cst.

Downey issued the Applicant a Notice of Administrative Penalty (NAP) and Immediate Roadside Sanction (IRS). The NAP specified that the administrative penalty is being imposed pursuant to s.88.1 Traffic Safety Act as a result of the officer having reasonable grounds to believe that the Applicant operated a motor vehicle while his ability to do so was impaired by any degree by alcohol or a drug or by a combination of alcohol and a drug, and that this was the Applicant’s first occurrence, which results in a fine of

$1,000. B. The NAP Review [ 10 ] On January 21, 2022, the Applicant applied for a written review of the NAP under Section 7(1) of the Provincial Administrative Penalties Act , S.A. 2020, c. P-30.8 ( PAPA ). C. The Adjudicator’s Decision [ 11 ] The Adjudicator found that the Applicant was served with a valid NAP pursuant to s.4 (e)(ii) SAR in paragraph 9, 10 and 11 of their decision: 9. First, I am not bound by prior decisions of SafeRoads Alberta, and must decide each case based on the evidence before me. Second, Vetter (Re) dealt with an invalid NAP that had an incorrect occurrence date.

No such issue has been raised in the matter before me. 10. A review of the paper copy of the NAP served upon the Recipient indicates a

section with the following heading: “Pursuant to the Traffic Safety Act , the undersigned officer”. Under this heading are five sub-headings, indicating the five available options for the issuance of an Immediate Roadside Sanction (IRS). Sub-heading four states: “88.1 IRS: FAIL”, and under this sub-heading, the officer may check off the specific grounds upon which he is issuing the IRS.

In this case, the officer checked off the following: “Has reasonable grounds to believe that you operated a motor vehicle while your ability to do so was impaired to any (sic) degree by alcohol or a drug or a combination of alcohol and a drug.” The officer further checked off a fine of $1,000.00 for a first occurrence. 11. When I take into consideration the totality of the evidence as it relates to the NAP, I find that the NAP indicates the officer issued an IRS, Fail pursuant to s.88.1 of the Traffic Safety Act .

I am therefore satisfied that the information provided in the NAP meets the requirement of identifying both the provision (i.e.,

Section 88.1 ) and the enactment (i.e., the Traffic Safety Act ) that the Recipient has allegedly contravened. The NAP is valid. [ 12 ] Regarding

Section 4(e)(iv) SAR , was the recipient’s ability to operate a motor vehicle not impaired to any degree by alcohol or a drug or a combination of alcohol and a drug, the Adjudicator found as follows: 14. The Recipient submits that he was not impaired because the Approved Screening Device (ASD) “Fail” results relied upon by police merely enable an officer to issue a penalty for Blood Alcohol Concentration (BAC) Over 80 mg%, not for Impaired Operation. The Recipient relies on a British Columbia Operator’s Manual for the Alco-Sensor FST (the B.C. Manual, dated February 18, 2020.

The Recipient questions why this information is not made available in the SafeRoads Alberta Technical Materials Library (TML) and raises an apprehension of bias arising from its exclusion.

The Recipient also notes that other than the “Fail” results, there is no indicia of impairment in the police evidence to support a finding of impaired Operation. [ 13 ] The Adjudicator found the BC Manual provided by the Applicant specifically stated that it was adapted to conform to the standards and legislation of that province, thus gave greater weight to the SafeRoads Alberta Technical Materials Library (TML) which they found are reflective of Alberta standards and law.

Based on the information in Document ASD-2 from the TML, the practice in Alberta is to allow for a margin of error of +/- 5 mg% in properly calibrated ASDs. The Adjudicator found that the ASDs used to obtain the two “Fail” results from the Recipient were properly calibrated and maintained and were functioning properly. (para 16, 18) [ 14 ] The Adjudicator also referred to “M-4 Dubowski’s Clinical Chart” from the TML.

The Adjudicator stated, even assuming a margin of error of -5 mg% on the properly functioning ASDs, the Recipient’s “Fail” results indicate that he falls within the BAC range of 90% to 250%, or the “Excitement” stage of alcoholic influence. Symptoms in this range include loss of critical judgment, impairment of perception, increased reaction time, reduced visual acuity and peripheral vision, slow glare recovery, and sensory-motor incoordination.

Given that the operation of a motor vehicle requires critical judgment, quick and accurate reaction time, and sensory- motor coordination, an objective person would conclude that these symptoms indicate that the Recipient’s ability to operate a motor vehicle was impaired by alcohol at the time that he blew the two “Fail” results, Paragraphs 19, 20. [ 15 ] The Adjudicator was satisfied that even though the police narrative does not specify observed indicia of impairment, the evidence of the two “Fail” results, obtained on properly calibrated and maintained ASDs, are sufficient to establish that the Recipient’s ability to operate a motor vehicle was impaired. [ 16 ] And at paragraph 21: 21.

Furthermore, Page 11 of “ASD-1 Alco-Sensor FST Operator’s Manual” from the TML states that “FAIL will be displayed at 100 mg% and higher.” M-5 Impairment and Effects on Driving Ability (Exhibit F of E1 Affidavit of Kerry Lynne Blake) from the TML states that “At a level of 100 mg% and greater, all individuals are impaired in their ability to operate a motor vehicle, regardless of their tolerance to alcohol.” The Recipient has not disputed the information in these documents. He raises the margin of error as a potential indicator that his BAC may have been below 100 mg%.

However, he has introduced no substantive evidence to establish on a balance of probabilities that his BAC was indeed below 100 mg%. Furthermore, even if the Recipient were to establish that his BAC was 95 mg% or otherwise below 100 mg%, it does not automatically follow that his ability to operate a motor vehicle was not impaired. Alcohol may impair a person’s ability to drive to at least some degree, even at BACs below 100 mg%. In any event, the evidence before me is that the Recipient blew two “FAIL” results, indicating that his ability to operate a motor vehicle was impaired.

The burden of proof rests with the Recipient, and he has not satisfied me on a balance of probabilities that his ability to operate a motor vehicle was not impaired. [ 17 ] The Adjudicator found that the Applicant failed to establish a ground to cancel the NAP based on

Section 4(e)(iv) SAR and egregious unfairness. The NAP was confirmed pursuant to Section 21(1) (

a) of the PAPA .

III. STANDARD OF REVIEW [ 18 ] The standard of review for the issues in this case is reasonableness. The reasonableness standard is prescribed by s. 24(3) of the PAPA . Accordingly, I must consider the review under the framework in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 . [ 19 ] The standard of reasonableness applies to both an adjudicator’s findings of fact and

interpretation of the law. [ 20 ] In applying the reasonableness standard, the reviewing court does not ask what decision it would have made in the place of the 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 a problem. The reviewing court must consider whether the decision is internally coherent, transparent, intelligible, and justified: Vavilov at paras 15, 83 and 85 . IV.

ISSUES [ 21 ] The only issue in this review is to determine whether the proceedings before the Adjudicator were conducted fairly, and whether the Adjudicator’s decision to uphold the Applicant’s NAP was reasonable. The focus of the reasonableness inquiry is whether the Adjudicator’s reasons were justified based on the evidentiary record and the legislation by which the Adjudicator is bound. V. POSITION OF THE PARTIES 1. The Applicant : [ 22 ] The Applicant’s claim is based on the following: a. The NAP was incomplete and could not be saved under s.28 of PAPA , s.4 (e)(ii) SAR ; b.

The Adjudicator materially and demonstrably misinterpreted the evidence regarding the +/- margin of error for the ASD in a manner that is illogical and not supported by the text (TEST?) and therefore unreasonable, s.4 (e)(iv) SAR ; c. The Adjudicator’s reasoning in considering the M-4 Dubowski clinical chart was demonstrably logically flawed and therefore unreasonable, s.4 (e)(iv) SAR ; d.

The Adjudicator failed to consider the record before them in finding there was no evidence supporting the Applicant, and therefore the decision finding no evidence was unreasonable, s.4 (e)(iv) SAR . [ 23 ] Regarding the first issue, the Applicant submits that the NAP does not state the name of the enactment or the particular provision under which the Applicant is said to have contravened.

The Applicant further submits that the document makes no reference to the Traffic Safety Act , nor any other enactment and the heading “88.1 IRS: FAIL” makes no reference to a particular provision or subsection of that enactment. The Applicant suggests that this function cannot be satisfied by the checked box. [ 24 ] The Applicant also referenced the decision in Morin v Alberta ( Director of SafeRoads ) , 2023 ABKB 200 and has further argued the NAP did not comply with s 10 of the SafeRoads Alberta Regulation, AR 224/2020 ( SAR ).

There was no statement indicating that there may be additional conditions for reinstatement of the recipient’s operator’s licence, as required by s 10(a)(ii) and no printing of the Saferoads.com website as required by s 10(a)(v). However, these two deficiencies were not argued before the adjudicator. [ 25 ] The law is clear that an issue which was not raised on a review before an adjudicator cannot be raised on judicial review, see Isley v Alberta (Director of SafeRoads) , 2022 ABQB 249 , at para 68 .

Thus, I will not consider the submissions raised by the Applicant regarding the decision in Morin . [ 26 ] Regarding the second, third and fourth issue, the Applicant submits that the Adjudicator made an error in interpreting the evidence, the “margin of error” for an ASD and the M-4 Dubowski’s Clinical Chart. The Applicant also submits that they have met the burden of proof by pointing to an absence of evidence in the police narrative that indicates impairment. 2. The Director: [ 27 ] The Director submits all information set out at

section 28 of PAPA is included in the NAP sheet. The NAP says pursuant to the Traffic Safety Act ; it states 88.1 and the text in the box mirrors what the offense is in the Act . The information is all there. [ 28 ] The Director submits that the Adjudicator found that the Applicant operated a motor vehicle while impaired by alcohol. The Director submits that this matter is about the Adjudicator taking the two failed tests and using the TML materials and applying that information to the evidence of the two failed results and concluding that that was enough to show the Applicant was impaired. VI. ANALYSIS

[ 29 ] All four grounds of review will be addressed below. [ 30 ] In Isley v. Alberta ( Director of SafeRoads ) , 2022 ABQB 249 , at para 51 : A Saferoads Adjudicator’s decision-making is not discretionary. It is a statutorily imposed duty. If the statutory requirements are met, the Adjudicator must either confirm or cancel the NAP ( PAPA s.21(1) ). The only discretion that a SafeRoads Adjudicator has is in which records to consider ( PAPA s 18(2)), the weight to be given to the evidence ( PAPA s 18(4)) … 1.

Did the Adjudicator find that the Applicant was served with a valid NAP? [ 31 ] The Applicant submits the NAP was incomplete and could not be saved under s 28 of PAPA , s 4(e)(ii) SAR . [ 32 ] The Applicant submits the Adjudicator did not make a fulsome review or properly consider the Vetter (Re) decision. I find the Adjudicator did review the decision and distinguished it on the facts. I find that was reasonable. [ 33 ] In the matter before me, the Applicant has submitted that the provision of the enactment the recipient is stated to have contravened is not specified on the NAP: IRS. I disagree.

I find that the Adjudicators reasons were logical and coherent, as follows: 11. When I take into consideration the totality of the evidence as it relates to the NAP, I find that the NAP indicates the officer issued an IRS: Fail pursuant to s 88.1 of the Traffic Safety Act . I am therefore satisfied that the information provided in the NAP meets the requirement of identifying both the provision (i.e.,

Section 88.1 ) and the enactment (i.e., the Traffic Safety Act ) that the Recipient has allegedly contravened. the NAP is valid. [ 34 ] It is clear the legislation is the Traffic Safety Act , s 88.1 . The wording in the

section that is ticked off on the NAP, mirrors the exact wording in the legislation. The foregoing was reflected in the Adjudicator’s decision at paragraph 10 and 11. [ 35 ] The Adjudicator’s decision was reasonable, and I reject the Applicant’s submissions. The NAP sheet does contain all the information required by s 28 PAPA ; it identifies the provision of the enactment the recipient is stated to have contravened. 2. Did the Adjudicator reasonably find that the Applicant operated a motor vehicle while impaired by alcohol,

section 4(e)(iv), SAR ? [ 36 ] The Applicant submits three sub-issues regarding the above, as follows: i. The Adjudicator materially and demonstrably misinterpreted the evidence regarding the +/- margin of error for the ASD in a manner that is illogical and not supported by the text (sic) and therefore unreasonable; ii. The Adjudicator’s reasoning in considering the M-4 Dubowski clinical chart was demonstrably logically flawed and therefore unreasonable; iii.

The Adjudicator failed to consider the record before them in finding there was no evidence supporting the Applicant, and therefore the decision finding no evidence was unreasonable. [ 37 ] The Applicant had his first MAS demand at 23:36 with an MAS Result of >=100 mg% (FAIL). The Applicant requested a roadside appeal.

The ASD demand was made at 23:40 with an ASD result of >=100mg% (FAIL). [ 38 ] The Record shows that the Applicant had two FAIL results on two separate devices. [ 39 ] It was reasonable for the Adjudicator to rely on the Alberta Manual, Document ASD-2, for the margin of error of an ASD, as it is reflective of Alberta standards and law. [ 40 ] The Adjudicator found as follows: 18. Based on the information in Document ASD-2, I find the practice in Alberta is to allow a margin of error of +/-5 mg% in properly calibrated ASDs.

Regarding the specific ASDs used in this case, the police evidence indicates that both ASDs had maintenance expiry dates of November 16, 2022, calibration dates of January 11, 2022, and calibration expiry dates of February 8, 2022. The contravention occurred on January 14, 2022. I am therefore satisfied that the ASDs used to obtain the two “Fail” results were properly calibrated, maintained, and were functioning properly. 19.

With respect to the Recipient’s argument that a “Fail” result is not an indicia of impairment and merely permits an officer to issue a penalty for BAC Over-80, and not for Impaired Operation, I refer to “M-4 Dubowski’s Clinical Chart” (“Document M-4”) from the TML. This document lists stages of acute alcoholic influence/intoxication in relation to BAC. Given my finding above at paragraph 18, even assuming a margin of error of -5mg% on the properly functioning ASDs (i.e.

BAC of 95mg% to 105mg%), the Recipient’s “Fail” results indicate that he falls within the BAC range of 90mg% to 250mg%, or the “Excitement” stage of alcoholic influence. 20. Per Document M-4, symptoms in this BAC range include loss of critical judgment, impairment of perception, increased reaction time, reduced visual acuity and peripheral vision, slow glare recover, and sensory-motor coordination. The Recipient has not disputed the information in this document. Given that the operation of a motor vehicle requires critical judgment, quick and accurate reaction time,

and sensory-motor coordination, an objective person would conclude that these symptoms indicate that the Recipient’s ability to operate a motor vehicle was impaired by alcohol at the time that he blew the two “Fail” results. I am therefore satisfied that even though the police narrative does not specify observed indicia of impairment, the evidence of the two “Fail” results, obtained on properly calibrated and maintained ASDs, are sufficient to establish that the Recipient’s ability to operate a motor vehicle was impaired. 21.

Further, Page 11 of “ASD-1 Alco-Sensor FST Operator’s Manual” from the TML states that “FAIL will be displayed at 100mg% and higher.” “M-5 Impairment and Effects on Driving Ability (Exhibit F of E1 Affidavit of Kerry Lynne Blake) from the TML states that “At a level of 100 mg% and greater, all individuals are impaired in their ability to operate a motor vehicle, regardless of their tolerance to alcohol.” The Recipient has not disputed the information in these documents. He raises the margin of error as a potential indicator that his BAC may have been below 100 mg%.

However, he has introduced no substantive evidence to establish on a balance of probabilities that his BAC was indeed below 100 mg%. Furthermore, even if the Recipient were to establish that his BAC was 95 mg% or otherwise below 100 mg%, it does not automatically follow that his ability to operate a motor vehicle was not impaired. Alcohol may impair a person’s ability to drive to at least some degree, even at BACs below 100 mg%. In any event, the evidence before me is that the Recipient blew two “FAIL” results, indicating that his ability to operate a motor vehicle was impaired.

The burden of proof rests with the Recipient, and he has not satisfied me on a balance of probabilities that his ability to operate a motor vehicle was not impaired. [ 41 ] Regarding the ASDs used in the matter before me, the Adjudicator found “I am therefore satisfied that the ASDs used to obtain the two “Fail” results were properly calibrated, maintained, and were functioning properly. Para 18.

I am satisfied that this was a reasonable finding by the Adjudicator. [ 42 ] It was reasonable for the Adjudicator to rely on the two “FAIL” results on two separate devices, along with the following TML documents: ASD-2 Alcohol Sensor FST Calibrator’s Manual; M-4 Dubowski’s Clinical Chart; and M-5 Impairment and Effects of Driving Ability; to find that an ASD “Fail” is an indicium of impairment: para 19 – 21. [ 43 ] Therefore, it was reasonable for the Adjudicator to find that the Applicant was impaired based on the two ASD “Fail” results. [ 44 ] I find the Adjudicator’s decision reasonable on these issues, it was transparent, intelligible, and justified based on the Record that was before them. [ 45 ] Based on the above, it was reasonable for the Adjudicator to find that the Applicant’s ability to drive was impaired.

VII. CONCLUSION [ 46 ] The Applicant has failed to establish a ground to cancel the NAP based on

section 4(e)(ii) and 4(e)(iv). [ 47 ] Accordingly, the application for Judicial Review is dismissed. VIII. COSTS [ 48 ] Each party will bear their own costs. Heard on the 19 th day of January, 2024. Dated at the City of Edmonton, Alberta this 23rd day of January, 2024. C.L. Arcand-Kootenay J.C.K.B.A. Appearances: Matthew Pagels for the Applicant Pascal Visentin

for the Respondent