Crossey v Alberta (Director of SafeRoads), 2023 ABKB 420

Court of King’s Bench of Alberta Citation: Crossey v Alberta (Director of SafeRoads), 2023 ABKB 420 Date: 20230721 Docket: 2203 06368 Registry: Edmonton Between: Daniel Crossey Applicant - and - Director of SafeRoads of Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice L.K. Harris _______________________________________________________ [ 1 ] The Applicant, Mr. Crossey, seeks judicial review of a SafeRoads Adjudicator’s decision. [ 2 ] The Grande Prairie RCMP issued Mr.

Crossey a Notice of Administrative Penalty (“NAP”) on January 28, 2022, on the basis that he had operated a motor vehicle while his ability to do so was impaired and, within 2 hours after ceasing to operate a motor vehicle, a blood alcohol concentration equal to or exceeding 80 milligrams of alcohol in 100 milliliters of blood, contrary to s 88.1(1)(

a) and 88.1(1)(

b) of the Traffic Safety Act , RSA 2000, c T-6 (“ TSA ”). [ 3 ] Mr. Crossey sought a review of the NAP by a SafeRoads Adjudicator. On February 28, 2022, the Adjudicator confirmed the NAP issued to Mr. Crossey. [ 4 ] Mr. Crossey argues that the Adjudicator’s decision was unreasonable and ought to be quashed. [ 5 ] The subject of this judicial review the Adjudicator’s findings on the credibility of Mr. Crossey and the two other witnesses who provided affidavit evidence for the purposes of the review before the Adjudicator. The Adjudicator largely rejected Mr. Crossey’s

evidence, which led to a finding that Mr. Crossey had not provided sufficient evidence to meet his onus of establishing the grounds to cancel the NAP, and thus the NAP being confirmed. I. Background [ 6 ] In January 2022, Mr. Crossey lived with his girlfriend, Allison Hearne, in Grande Prairie. The two were arguing. On January 28, 2022, Mr. Crossey left the home and drove to the Centaurs Rugby Football Club. At some point that day, Ms. Hearn called police to say that Mr. Crossey had left the house intoxicated and might be near the Rugby Club. [ 7 ] RCMP Constable Athwal located Mr.

Crossey near the Rugby Club, reporting the location in his narrative as 93 rd Street and 101 Avenue. Cst. Athwal conducted a traffic stop of Mr. Crossey’s vehicle and spoke with the driver before making a mandatory alcohol screening (“MAS”) demand. Cst. Athwal also noted open liquor inside the vehicle and the driver’s slurred speech. Cst. Athwal reported that, “Daniel stated he understood and drivers administered the asd at 1627. The driver provided an adequate breathe [sic] sample and the result yielded in a fail.” [ 8 ] Mr.

Crossey was taken to the police vehicle and advised of his right to a second test at 1632, which he declined. Mr. Crossey was issued the NAP and his vehicle was towed. [ 9 ] When Mr. Crossey sought a review of the NAP by a SafeRoads Adjudicator, he provided three Affidavits in support of his request – one sworn by him, one sworn by Ms. Hearne, and one sworn by Jordan Lloyd, an acquaintance of Mr. Crossey. [ 10 ] In his Affidavit, Mr.

Crossey confirms that he was engaged by police while parked in his vehicle but states that the location was 93 rd Street and 102 Avenue in Grande Prairie (the Adjudicator accepted that Cst. Athwal had made an error in noting 101 Avenue, and I conclude that nothing turns on this fact). The parking spot was on Rugby Club property. Mr. Crossey states that he had left his house around 7:30 that morning and arrived at the Rugby Club before 8:00 am. He and Ms. Hearne had been in an argument and he intended to stay at the Rugby Club overnight and perhaps longer.

He had brought all the things he needed to stay overnight, and the Club had all the necessary facilities. [ 11 ] Mr. Crossey states he consumed 6-8 White Claw alcoholic drinks after he arrived at the Club. He states that he had no intention of driving home that evening. He had been texting Ms. Hearne and she was aware he was intoxicated. [ 12 ] Mr. Crossey also states he was sitting in his vehicle smoking a cigarette, as smoking was not permitted in the Rugby Club, when the police arrived. Mr. Crossey states that under no circumstances would he have driven the vehicle. [ 13 ] Ms.

Hearne’s Affidavit states that she had left the parties’ residence at about 7:30 am on January 28 th and that Mr. Crossey was not intoxicated at that time. She confirms that the parties were texting throughout the day, and that she assumed he was intoxicated and at the Rugby Club. She called police to have them check on him, as she was concerned for his well-being. [ 14 ] Finally, Mr. Lloyd states in his Affidavit that he is the Vice President of the Rugby Club. He received a text from Mr.

Crossey that he would be staying at the Club for a couple of days, and that members were permitted to stay overnight at the Club, if necessary. II. Relevant Legislative Framework [ 15 ] 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 an administrative regime enacted to deal with impaired drivers, and is intended to provide a simplified, consistent, proportionate, and expedient mechanism to evaluate the validity of an NAP: Kelleher v Alberta (Director of SafeRoads) , 2021 ABQB 517 at para 1 . [ 16 ] The recipient of an NAP has a right to request a review of the NAP by an Adjudicator appointed by the Director. The Adjudicator may confirm or cancel the NAP. [ 17 ] SafeRoads Alberta Regulation , Alta Reg 224/2020 (“ SAR ”) s 4 sets out the grounds for cancelling a NAP.

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 (

i) that the recipient did not operate the motor vehicle, … (

v) that despite having within 2 hours after ceasing to operate a motor vehicle a blood alcohol concentration equal to or exceeding 80 milligrams of alcohol in 100 millilitres of blood,

(

A) the recipient consumed alcohol after ceasing to operate the motor vehicle, (

B) the recipient, after ceasing to operate the motor vehicle, had no reasonable expectation that the recipient would be required to provide a sample of breath or blood, and (

C) the recipient’s alcohol consumption is consistent with the recipient’s blood alcohol concentration and with the recipient having had, at the time when the recipient was operating the motor vehicle, a blood alcohol concentration of less than 80 milligrams of alcohol in 100 millilitres of blood, III. The Adjudicator’s Decision [ 18 ] The Adjudicator determined that there were two issues to resolve. [ 19 ] First, the Adjudicator queried whether Mr. Crossey operated the motor vehicle ( SAR s 4(f)(i)). This involved a determination of whether Mr.

Crossey had established that he had not been operating the motor vehicle at the time he was stopped by police, and whether Mr. Crossey did not have care and control of the motor vehicle at the time he was stopped by police. [ 20 ] The Adjudicator reviewed the record and noted several gaps and inconsistencies in the evidence. For example: • It was unclear how Ms. Hearne could have known whether Mr. Crossey was not intoxicated when he left the house that morning as her evidence was that she had left for work at 7:30 am, “presumably” before Mr. Crossey; • Ms.

Hearn’s Affidavit amended the substance of her call to police on January 28 th . Her call to police is recorded in the police narrative as indicating that Mr. Crossey had left the house intoxicated and might be near the Rugby Club. There is no evidence to show what time Ms. Hearn made that call, but the Adjudicator presumed that it was shortly before the traffic stop. The Adjudicator found that Ms. Hearn’s Affidavit contradicted the evidence in the police narrative reporting on the substance of her call, and concluded that the Affidavit could not be a “more truthful account”; • Neither Mr. Crossey nor Ms.

Hearn provided copies of the text messages between them on the day in question which presumably would have established the timeline of Mr. Crossey’s whereabouts; • The Adjudicator was not persuaded by Mr. Crossey’s statement that it was mere coincidence that police found him in his vehicle when they did, noting there was no corroborating evidence to establish when he arrived at the Club or any explanation as to why he took liquor with him to his vehicle if he was only there for a few minutes to smoke a cigarette; • The Adjudicator states that the information Ms.

Hearn provided to police, as reported in the narrative, and the evidence in her Affidavit “could both be true” because it is possible that Mr. Crossey did leave the house around 7:30 am but then returned for a period of time before leaving for the Club. [ 21 ] Ultimately, the Adjudicator found that Mr. Crossey had not provided sufficient corroborating evidence to establish that he had been at the Club the entire day and had not discharged his onus to prove that he had not been operating the motor vehicle when he was located by police. [ 22 ] The Adjudicator then considered whether Mr.

Crossey had care and control of the motor vehicle at the time police conducted the traffic stop, relying upon the framework set out in R v Boudreault , 2012 SCC 56 , “modified for the administrative context”. The Adjudicator concluded that although the police narrative does not clearly state that Mr. Crossey was in the driver’s seat of the vehicle, it implies that he was. The Adjudicator also concluded that the vehicle was parked at the time of the traffic stop. Again, however, the Adjudicator noted gaps in the evidence, stating that there was no evidence to corroborate Mr.

Crossey’s bare assertion that he intended to stay the night at the Club and had no intention of driving further that day, pointing to the failure of any of the witnesses to produce the text messages with Mr. Crossey to corroborate his intentions that afternoon. The Adjudicator noted that Mr. Lloyd does not say when he received the text from Mr. Crossey about staying the night at the Club. The Adjudicator then goes on to speculate that something must have occurred to cause Ms. Hearn to call police, and that it was likely Mr.

Crossey’s decision to drive that did so. [ 23 ] Ultimately, the Adjudicator again concluded that Mr. Crossey had not provided sufficient evidence to establish that he did not have care or control of the vehicle. [ 24 ] Second, the Adjudicator addressed SAR s 4(f)(v), finding that Mr. Crossey needed to establish all three criteria under that section. The Adjudicator found that there was no evidence other than Mr.

Crossey’s bare assertion that he only consumed alcohol after he reached the Club, and that given the “fail” result and the conclusions reached on the evidence regarding the first issue, it was more probable than not that he had consumed alcohol prior to driving to the Club. [ 25 ] On that basis, the Adjudicator confirmed the NAP. [ 26 ] The essence of Mr. Crossey’s position is that the Adjudicator unreasonably disregarded evidence without making explicit credibility findings or explaining why he did not accept certain evidence, engaged in impermissible speculation, and reached unwarranted inferences. Mr.

Crossey says that although Adjudicators have discretion to make credibility assessments, in this case, the Adjudicator simply presumed that Mr. Crossey, Ms. Hearne and Mr. Lloyd lacked credibility and that corroborating evidence is required before they can be believed. Mr. Crossey points to several examples of what he argues is impermissible speculation on the part of the Adjudicator, including the timing of Ms. Hearne’s call to police, whether Mr. Crossey could have returned home after leaving earlier in the morning, that Mr.

Crossey was sitting in the driver’s seat of the vehicle with the vehicle running, and the contents of the text messages with Mr. Crossey. These speculations resulted in negative findings and were improper and unsupported.

[ 27 ] Further, Mr. Crossey says that the Adjudicator made errors in the Boudreault analysis of whether he had care and control of the vehicle. He argues that there was no evidence that the vehicle was on, that Mr. Crossey had intended to drive, or that he was in the driver’s seat of the vehicle. Even if he was in the driver’s seat, Mr. Crossey argues that this should not lead to the conclusion that he had care and control of the vehicle if Boudreault is applied properly. IV. Standard of Review [ 28 ] Both parties agree that the standard of review I am to apply to the Adjudicator’s decision is reasonableness.

The standard of reasonableness applies to all issues before me: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 ; Lausen v Alberta (Director of SafeRoads), 2023 ABCA 176 at para 32 . [ 29 ] My role is to review the Adjudicator’s decision to determine whether it was reasonable. I do not undertake a de novo analysis but instead examine the Adjudicator’s decision as a whole paying respectful attention to the reasons provided: Vavilov at paras 84, 116 . I am to begin by examining how the Adjudicator arrived at their

interpretation, and then determine whether it was defensible in light of the interpretative constraints imposed by law: Canada Post Corp v Canadian Union of Postal Workers , 2019 SCC 67 at para 41 . [ 30 ] 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 to which it led — was unreasonable. [ 31 ] I must refrain from reweighing and reassessing the evidence before the Adjudicator.

Before I conclude that the Adjudicator’s decision is unreasonable, I must be satisfied there are “sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”: Vavilov at para 100 . Flaws or shortcomings must be more than superficial or peripheral to the merits and caution must be exercised to ensure respect for the decision maker’s assessment and evaluation of the evidence: Gezehegn v Alberta (Appeals Commission of the Workers’ Compensation Board) , 2021 ABCA 93 at para 13 . V.

Analysis [ 32 ] Before I address whether the Adjudicator’s decision was reasonable, a preliminary point must be made about the scope of the Adjudicator’s authority to make credibility findings and permissible inferences. Vavilov addresses this issue starting at para 125: It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings.

The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”: CHRC , at para. 55; see also Khosa , at para. 64; Dr. Q , at paras. 41-42. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen , at paras. 15-18; Dr. Q , at para. 38; Dunsmuir , at para. 53.

That being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir , at para. 47. The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam , at para. 56.

The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. [ 33 ] Where there is contradictory believable evidence, it is not unreasonable for the decision-maker to select some of that evidence over other evidence: Intact Insurance Company v Parsons , 2021 ABCA 123 at para 18 . [ 34 ] This Court has accepted that a SafeRoads Adjudicator has wide discretion to weigh the evidence before it and make credibility findings: Schwab v Alberta (Director of SafeRoads) , 2022 ABQB 244 at para 18 . [ 35 ] However, the Adjudicator must still ensure that his assessment is supported by the evidence in the record.

The importance of ensuring that a credibility assessment is grounded in the evidence is highlighted in R v C.M.M. , 2020 BCCA 56 , in which the Court states at para 138, “when assessing credibility, trial judges must keep in mind that speculative reasoning relying on “common sense” propositions that are not grounded in the evidence can give rise to reversible error”. [ 36 ] Inferences must flow “logically and reasonably from established facts.” When inferences reflect conjecture and speculation based on unfounded assumptions it amounts to legal error: R v MacIsaac , 2015 ONCA 587 . [ 37 ] On the issue of whether Mr.

Crossey was operating the motor vehicle, the Adjudicator appropriately pointed out that “operate a motor vehicle” includes to “drive a motor vehicle”: Use of Highway and Rules of the Road Regulation , AR 304/2002 , s 1(4.2)(

b) and Traffic Safety Act , RSA 2000, c T-6 , s 88.1 ( TSA ). “Drive” or “driving” a vehicle includes “having care or control of a vehicle”: TSA s 1(1). Mr. Crossey was therefore required to establish that he did not actually drive the vehicle while impaired and that he did not have care or control of the vehicle while impaired. [ 38 ] It was reasonable for the Adjudicator to conclude that in fact, Mr. Crossey was in the driver’s seat of the vehicle at the time police arrived on scene. A plain reading of the police narrative records only Mr. Crossey being spoken to by Cst. Athwal and there is no

record of any other person in the vehicle. Cst. Athwal records that Mr. Crossey “understood” the MAS. Mr. Crossey himself does not deny or even put the identity of the driver in issue in his Affidavit. [ 39 ] There are also numerous gaps and inconsistencies in the evidence, as noted by the Adjudicator. [ 40 ] However, as Mr. Crossey has pointed out, the Adjudicator in this case goes on to make numerous speculations and assumptions about what possibly could have occurred leading up to Mr.

Crossey’s engagement with police, speculations and assumptions that do not appear to be supported by any evidence in the record. Those speculations and assumptions largely represented alternative explanations for events and led the Adjudicator to conclude that the direct evidence of Mr.

Crossey and his witnesses were not credible, because they did not explain those alternative explanations. [ 41 ] I conclude that the following passages from the Adjudicator’s decision are particularly problematic: • the Adjudicator states at para 10, “…while this may be a short amount of time between when A.H. and the Recipient left, it is unclear how A.H. could have known, and sworn to the fact, that the Recipient was not intoxicated when he left the house, if A.H. presumably left before he did.” There is no direct evidence from A.H or anyone else which supports the presumption that she left prior to Mr.

Crossey. Ms. Hearne’s evidence on who left first is ambiguous but despite that the Adjudicator concludes that her evidence about Mr. Crossey being sober when she left is not credible; • at para 11 the Adjudicator states, “…the complaint call, which on a balance of probabilities was made shortly before the traffic stop took place, as I cannot see police acting on a call that occurred some eight hours prior…” There is no evidence to establish when Ms. Hearne made the call; • at para 12, the Adjudicator states, “A.H.’s complaint call and her affidavit could both be true.

The Recipient could have left the house sober in the morning when A.H. reports she last saw him, then the Recipient could have gone back to the house at some point, contrary to his statement of not operating his vehicle again after 8:00 a.m., and A.H. would have learned about this. The Recipient could then have left the house to attend the Club and A.H., knowing or assuming the Recipient was intoxicated, via text, called police concerned for the Recipient’s welfare, and police ultimately located him near the Club.

There is no evidence to support this statement, which is purely speculative; • at para 21, the Adjudicator finds that Mr. Crossey “…had he just finished texting with A.H., would have been aware that police might attend his location. A.H. states she was worried for the Recipient’s well-being, and I can only assume the texts back and forth, with the knowledge that the Recipient did not plan to talk to A.H. again, would have given A.H. reason to call police.

Without evidence of what the texts contained, I am left to contemplate if the Recipient, via text, indicated he would be driving, whether it was to the Club or to his house, and A.H. called police to assure the Recipient did not drive intoxicated. If A.H.’s statement for this Review is to be believed, then I find it reasonable that certain actions sparked A.H. to call police, and I find it was likely the Recipient’s decision to drive.” There is no evidence to support any of this. All that is in evidence is that there were texts between the parties and that according to Mr. Crossey, Ms.

Hearn was aware that he was intoxicated at the Rugby Club. [ 42 ] These speculations and assumptions go beyond simply concluding that Mr. Crossey failed to adduce enough evidence to satisfy his burden of proof as argued by the Director, relying upon Rohl v British Columbia (Superintendent of Motor Vehicles) 2018 BCCA 316 . They form the core of the decision and clearly caused the Adjudicator’s rejection of Mr. Crossey’s evidence. [ 43 ] To be clear, there may still have been gaps and inconsistencies in Mr.

Crossey’s evidence but given the prohibition in Vavilov against reassessing the evidence, I have concluded that I should not intervene by assessing the evidence within the judicial review. [ 44 ] The assumptions and speculations made by the Adjudicator without support in the evidence clearly are an important basis for the finding that Mr. Crossey had not provided sufficient evidence to meet his onus of establishing he was not operating the vehicle. They are “flaws or shortcomings must be more than superficial or peripheral to the merits”.

On that basis, the Adjudicator’s decision is not reasonable. [ 45 ] Given that conclusion, I will not address the issue of whether the Adjudicator properly applied the test in Boudreault . As an aside, however, I note that the Decision here may raise some of the same concerns noted by Bokenfohr, J in Rowe v Alberta (Director of SafeRoads) , 2022 ABQB 560 , in that there does not appear to be an explanation as to what adaptation of Boudreault might have been made by the Adjudicator, given the administrative context. VI.

Conclusions [ 46 ] For the reasons set out above, I quash the Decision of the Adjudicator to confirm Mr. Crossey’s NAP and I remit the matter back to the SafeRoads Alberta Tribunal for a re-hearing before a new Adjudicator. Heard on the 13 th day of June, 2023. Dated at the City of Edmonton, Alberta this 21 st day of July, 2023.

L.K. Harris J.C.K.B.A. Appearances: Zachary Al-Khatib for the Applicant Anastasia Yevtushenko for the Respondent