Comeau v Alberta (Director of SafeRoads), 2023 ABKB 722

Court of King’s Bench of Alberta Citation: Comeau v Alberta (Director of SafeRoads), 2023 ABKB 722 Date: 20231218 Docket: 2203 07091 Registry: Edmonton Between: Charles Daniel Roy Comeau Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice L.K. Harris _______________________________________________________ [ 1 ] On March 17, 2022, Constable Durand of the RCMP in Fort McMurray issued a Notice of Administrative Penalty (“NAP”) to Charles Comeau based upon Mr.

Comeau’s refusal to provide a breath sample during an investigation into a motor vehicle collision. Mr. Comeau sought a review of the NAP by an Adjudicator, who confirmed the NAP. [ 2 ] Mr. Comeau now applies for judicial review of the Adjudicator’s decision. He says that the Adjudicator’s decision was unreasonable for failing to find that the Director had not disclosed the required records to him under the governing legislation. Mr.

Comeau argues that the police report prepared by the investigating officer contained critical inaccuracies and also, that the Director failed to produce a video depicting the collision which was in the possession of a third party. I. Background [ 3 ] At some point late in the day on March 17, 2022, Constable Durand was dispatched to investigate a motor vehicle collision

on Paulson Street in Fort McMurray. Upon his arrival, he observed Mr. Comeau behind the wheel of a Jeep Cherokee which was still running. As Cst. Durand approached and Mr. Comeau got out of the Jeep. Cst. Durand observed Mr. Comeau to be unsteady on his feet and smelled an odor of liquor. Cst. Durand read the Approved Screening Device (“ASD”) demand to Mr. Comeau, who nodded, but refused to provide a breath sample. After explaining that a refusal carried the same penalties as a failed sample, Mr. Comeau stated that he understood, but still refused. [ 4 ] Cst.

Durand’s narrative discloses that there were two other individuals on scene besides police and Mr. Comeau. The first individual advised Cst. Durand that they had returned home to observe Mr. Comeau’s vehicle in front of their house and that Mr. Comeau appeared to be under the influence. The second individual advised Cst. Durand that she saw the entire event on her camera, and that she would “make the video available”. [ 5 ] Cst. Durand issued an NAP to Mr. Comeau pursuant to s 88.1(1)(

e) of the Traffic Safety Act , RSA 2000 c T-6 (“ TSA ”), which requires an NAP to be issued when a driver fails or refuses, without reasonable excuse, to comply with an ASD demand. [ 6 ] Once Mr. Comeau submitted his Request for Review of the NAP, Cst. Durand uploaded his police narrative, some photographs, the NAP and Seizure Notice, and entered information into the Administrative Penalties Information System (“APIS”). The APIS is managed by the Director of SafeRoads Alberta and is the mechanism by which the records required to be disclosed are made available to an NAP recipient.

There was no reference within the APIS information to whether Cst. Durand had ever received the third party video, and no such video was included in the documents that were uploaded. II. The Adjudicator’s Decision [ 7 ] On March 24, 2022, Mr. Comeau applied for a written review of the NAP by an Adjudicator. Mr. Comeau argued that the NAP should be cancelled because the Director did not provide him with complete records as required by s 12 of the Provincial Administrative Penalties Act RSA 2020 c P-30.8 (“ PAPA ”).

In particular, he argued first that the information contained within APIS regarding the time of the incident was insufficient to determine when the contravention occurred, when Mr. Comeau was first observed by Cst. Durand, and when the ASD demand was made. He argued that without accurate times, it is impossible to confirm that the ASD demand was lawfully made. Therefore, the police records were incomplete, and the NAP should be cancelled on that basis. [ 8 ] Second, Mr. Comeau argued that he ought to have been provided with the video referenced in Cst. Durand’s narrative.

As he was not, the NAP should be cancelled on that basis. [ 9 ] Mr. Comeau also argued that in issuing the NAP, the RCMP violated his Charter rights. His written submissions on judicial review abandoned this argument and so it will not be addressed in these reasons. [ 10 ] On April 19, 2022, the Adjudicator issued a decision confirming the NAP issued to Mr. Comeau. [ 11 ] The Adjudicator rejected Mr. Comeau’s argument that he was provided incomplete records. The Adjudicator agreed that there was a lack of clarity as to the time the ASD demand was made by Cst.

Durand, but found that it was still possible to determine the contravention time. The Adjudicator inferred that the contravention time, meaning the time Mr. Comeau refused to provide a breath sample, was 6:15 pm, based upon Cst. Durand’s narrative. [ 12 ] The Adjudicator also concluded that the video referenced in the police narrative was not a required record under s 12 PAPA or s 2(

h) of the SafeRoads Alberta Regulation , Alta Reg 224/2020 (“ SAR ”) as it was not “relevant and necessary” to determine the basis for the NAP. As such, Mr. Comeau was not entitled to the video. [ 13 ] The Adjudicator concluded that Mr. Comeau had not established the grounds to cancel the NAP. III. Grounds for Judicial Review [ 14 ] Mr. Comeau raises two grounds on judicial review: • First, that the Adjudicator “erred” in finding that there was no breach of s 12 PAPA or s 2 SAR as the Director had provided him with all of the required records.

In particular: o The Adjudicator made an unreasonable inference in concluding that the time of the refusal was 1815 hrs., and that without accurate information regarding the time of Mr. Comeau’s refusal it was impossible to determine if the ASD demand was lawful; o Therefore, the failure to provide accurate information as to the time of Mr. Comeau’s refusal renders the APIS information incomplete and in breach of s 2 SAR ; • Second, the Adjudicator “erred” in failing to find that the video was a required record under s 2(

h) SAR . IV. Standard of Review [ 15 ] The leading case on standard of review is Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 . Vavilov makes it clear that reasonableness is the presumptive standard of review and can only be rebutted in one of two ways: 1) if the relevant legislation indicates a different standard should apply; or 2) where there is a general question of law of central importance to the legal system as a whole.

[ 16 ] Section 24(3) of PAPA expressly provides that on an application for judicial review of an Adjudicator’s decision, the standard of review is reasonableness. Therefore, the first exception to the reasonableness standard described in Vavilov does not apply. I also conclude that the second exception set out in Vavilov does not apply, because the question to be decided does not engage issues of fundamental importance and broad applicability with significant legal consequences for the justice system as a whole. [ 17 ] Insofar as the issues raised by Mr. Comeau are ones of statutory

interpretation of the Adjudicator’s home statute, the standard of reasonableness is engaged: see Dorn v Alberta (Director of SafeRoads) , 2022 ABQB 394 at para 22 . [ 18 ] Despite Mr. Comeau’s use of the word “erred” in articulating his grounds for judicial review, I will apply the standard o review of reasonableness to the Adjudicator’s position. V.

Analysis [ 19 ] The disclosure of records by the Director to a NAP recipient is governed by s 12 PAPA : 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).

(3) Where the Director is unable to provide relevant records in accordance with subsection (1), the Director may cancel the notice of administrative penalty. [ 20 ] The “prescribed enactment” in this case is SAR .

Section 2 SAR describes the specific records to be provided to a NAP recipient such as Mr. Comeau. The relevant portions of s 2 SAR for the purposes of this case are as follows: 2 Subject to

section 2.1 , the Director shall provide the following to a recipient on receipt of an application for review: … (

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

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. A. The time of the ASD Demand [ 21 ] The parties agree that there is a lack of clarity as to the exact time that the motor vehicle collision occurred, the time Mr. Comeau was first observed (either by Cst.

Durand or one of the two witnesses identified), and the time the ASD demand was made by Cst. Durand and refused by Mr. Comeau. [ 22 ] The NAP form utilized by police in this case provides blanks under the heading “Occurrence Information” for the issuing officer to enter information. The subheadings specifically require information regarding the occurrence date, time and location.

In this case, the “Occurrence Date” is noted as 2022/03/17, “at or about” 1815 HRS “at or near” 229 Paulson St., Fort McMurray, Alberta. [ 23 ] The APIS Portal also contains a one page “Police Narrative” which presumably was written and uploaded by Cst. Durand. The narrative does not include any times but includes the following: “Members attended and located a black Jeep Cherokee still running with a single male occupant behind the wheel. As member approached the male exited the vehicle and he was unsteady on his feet. Male was later identified as Charles COMEAU.

Once next to Charles member as [sic] able to smelled [sic] and extremely strong odor of liquor coming from Charles’ person. I advised him given the situation and the fact that I could smell liquor I would be giving him an ASD demand. He nodded his head that he understood. When member arrived on scene, Charles was in the driver seat and the vehicle was running and had to have Charles turn the vehicle off. Member asked when was the last time he drank any alcohol he did not respond. Member spoke with W.L. who advised that he had returned home to Charles vehicle in front of his house.

Charles was in the driver [sic] of the vehicle and appeared to be under the influence. After reading the ASD demand, COMEAU refused to provide a sample…” [ 24 ] Finally, the APIS Portal itself provides space for the issuing officer to enter information including the “Occurrence Time and Location” and “Occurrence Information”. Under the heading “Occurrence Time and Location”, Cst. Durand entered the occurrence date of March 17, 2022, the occurrence time as 1815 hrs and the address as 229 Paulson Street in Fort McMurray. [ 25 ] Under the heading “Occurrence Information” Cst.

Durand indicates that the occurrence was observed by “Witness Observed Subject” and as “Time 1 st Observed”, “1830”. [ 26 ] Mr. Comeau argues that it is not possible to determine with certainty from the information provided what time Cst. Durand first observed Mr. Comeau and what time he issued the ASD demand. Assuming the “occurrence time” as noted on the NAP and the APIS Portal means the time the ASD demand was refused by Mr. Comeau, it is impossible for that to have occurred at 1815 hrs as recorded by Cst. Durand, if Mr. Comeau was “first observed” by Cst. Durand at 1830 hrs. Mr.

Comeau argues that the exact time an

ASD is issued is a critical record because the demand is made pursuant to s 320.27(

b) of the Criminal Code , which requires a recipient to “immediately” provide a breath sample, and that a breath demand cannot be made outside of three hours. [ 27 ] Without knowing what exact time the ASD demand was made by Cst. Durand, it is impossible to determine whether the ASD was valid and in accordance with the requirements of s 320.27(

b) of the Criminal Code . [ 28 ] Although the Adjudicator inferred that the entry of 1830 hrs was an error, and that the “occurrence time” was actually 1815 hrs, Mr. Comeau says that this inference was unreasonable. [ 29 ] While the Director does not take issue with Mr. Comeau’s argument that the times are a critical record that should be provided to a recipient of an NAP, the Director argues that the Adjudicator’s inference that the “occurrence time” referred to the time Mr. Comeau refused to give a breath sample, and that occurred was at 1815 hrs was reasonable.

The Director argues that the Adjudicator “reasonably grappled” with the issue. The NAP and the APIS Portal consistently identified the occurrence time as “at or about” 1815. The Adjudicator acknowledged the discrepancy in the records, noting 1830 as being the time Mr. Comeau was “first observed”, but it was open to the Adjudicator to conclude that the notation of 1830 was simply human error. Because this is an administrative regime (as opposed to a criminal charge) the Adjudicator’s conclusions may be based upon a balance of probabilities, and the evidence supports the conclusions reached on that standard.

The Adjudicator’s decision on this point was transparent and intelligible, and falls within the range of reasonable outcomes given the evidence. [ 30 ] The reference to the “occurrence time” on the NAP and the APIS Portal is certainly open to

interpretation. Two possible

interpretations include: • a reference to the time of the motor vehicle accident; or, • the time Mr. Comeau refused to provide a breath sample. [ 31 ] The reference to “first observed” time of 1830 is also open to

interpretation. It could mean the time Mr. Comeau was first observed by any witness, or it could mean the time Mr. Comeau was first observed by Cst. Durand. If it is the latter, then there could be an inconsistency in the evidence as to when Mr. Comeau was issued the ASD demand because it is impossible for Cst. Durand to have issued an ASD demand at 1815 hrs., fifteen minutes before he first observed Mr. Comeau at 1830 hrs. [ 32 ] On the other hand, if “occurrence time” is interpreted to mean the time of the motor vehicle collision, then a “first observed” time of 1830 is not problematic. [ 33 ] Vavilov is very clear that my role on judicial review is not to substitute my own

interpretation for that of the Adjudicator’s. Rather, I am to consider whether the decision as a whole and the rationale for it is transparent, intelligible, and justified. A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the adjudicator: Vavilov at paras 15, 83, and 85 .

I may not necessarily agree with the Adjudicator’s decision, but if it meets the criteria for reasonableness I must not interfere. [ 34 ] Justice K Nixon described the hallmarks of the reasonableness test in Cornforth v Alberta (Director of SafeRoads), 2022 ABQB 341 , at para 33 : A decision is unreasonable if there is a failure of rationality internal to the reasoning process, or if the decision is untenable in light of the relevant factual and legal constraints that bear on it: Vavilov at para 101 .

The decision must be justified in relation to the relevant law and facts and must meaningfully account for the central issues and concerns raised by the parties: Vavilov at paras 105 and 127 . The decision must be justifiable and justified: Vavilov at para 86 . [ 35 ] The Adjudicator clearly interpreted the reference to “occurrence time” to be the time Mr. Comeau refused to provide a breath sample – thus, giving rise to the inconsistency in the times. If the Adjudicator had explained the reason for this

interpretation based on the evidence, I could not interfere, even if I disagreed with their

interpretation of that phrase. However, the Adjudicator does not offer any explanation for why they interpreted “occurrence time” in this way, and there is no evidence on the Record to show why that

interpretation was made. [ 36 ] Without first explaining why “occurrence time” meant the time of Mr. Comeau’s refusal it is not possible to determine if the Adjudicator’s decision that the “occurrence time” was in fact 1815 hrs. was reasonable. [ 37 ] However, I am not persuaded that the Adjudicator’s decision should be quashed on this basis. [ 38 ] Mr. Comeau seeks to have the Adjudicator’s decision quashed on the basis that the Adjudicator unreasonably concluded that the Director had complied with its obligations regarding record production under s 12 PAPA and s 2 SAR . However, on a plain reading of those sections, I conclude that the Director did comply. [ 39 ]

Section 2 SAR simply requires that the Director provide, inter alia , the NAP and “the report of the officer who issued the notice of administrative penalty”. Both records were provided in this case. While there certainly is an issue with the lack of clarity as to times as noted on the “report of the officer”, this lack of clarity within the report itself does not mean that the Director has breached its obligations set out in s 2 SAR . [ 40 ] While the issue of the

interpretation of “occurrence time” and the potential discrepancies regarding the times included in the APIS Portal and the NAP may give rise to a ground to cancel an NAP on the basis that it is not possible to determine if Mr. Comeau was impaired because the ASD demand was not lawful, that is not the ground of judicial review advanced by Mr. Comeau. I decline to decide that issue here. [ 41 ] This ground of judicial review is dismissed.

B. The Video [ 42 ] As with the evidence about the occurrence time, the evidence regarding the provenance of the video is equally unclear. [ 43 ] Cst. Durand mentions in his narrative that one of the two witnesses on scene: “advised that she saw the entire event on her camera. She advised that the vehicle drove directly into the back of the truck. Charles was the lone occupant of the vehicle. Charles was very unsteady on his feet once out of the vehicle, and he attempted to move the vehicle more than once prior to members arrival.

She would make the video available.” [ 44 ] There is no indication as to whether this witness did in fact provide the video to police. It is not clear from the narrative whether Cst. Durand saw the video or relied upon the information contained in it as a basis to issue the NAP, although one possible

interpretation of the narrative is that the witness simply described what she saw on the video to Cst. Durand after he had already issued the ASD demand to Mr. Comeau. Further, it is not clear at what point this discussion took place – after Cst. Durand issued the ASD demand to Mr. Comeau and Mr. Comeau refused to provide a sample, or before. [ 45 ] Mr. Comeau argues that the video ought to have been produced by the Director as it is “relevant and necessary” to understand the basis for the NAP pursuant to SAR s 2(

h) and PAPA s 12. The failure to produce the video means that the NAP ought to be cancelled under SAR s 4(i)(ii). [ 46 ] The Director makes two arguments: (

a) First, that Mr. Comeau’s argument on judicial review was not raised before the Adjudicator, and as such, should not be considered by this Court; and, (

b) In any event, the Adjudicator’s determination that the video was not necessary was reasonable. [ 47 ] With respect to the Director’s first argument, I disagree. Mr. Comeau’s argument on this point before the Adjudicator was extremely brief, consisting of one line in his submissions stating as follows: “In addition; the final sentence says a video would be made available – where is it?” [ 48 ] Notwithstanding the brevity of Mr. Comeau’s submission on this point, the Adjudicator did deal with the issue, stating: “…Regarding the disclosure of the video records, I note that I have no indication that such records exist or that the witness provided any video to the police. With regard to

section 2(

h) of the Regulation , I note this

section does not require any additional records that might be available, but only those records that are in the opinion of the Director of SafeRoads Alberta relevant and necessary to determine the basis for the issuance of the NAP. In most cases, this function is fulfilled by the records required under Sections 2(

a) and 2(

b) of the Regulation , and I am satisfied that this case is no exception… [ 49 ] Having raised the issue during the review, and the Adjudicator having dealt with it in their decision, Mr. Comeau is entitled to raise it as a ground of judicial review before this Court. [ 50 ] There have been two recent decisions from this Court considering whether video evidence ought to be disclosed by the Director under SAR s 2(h): Weinkauf v Alberta (Director of SafeRoads) , 2022 ABKB 752 and subsequently decided Smit v Alberta (Director of SafeRoads), 2023 ABKB 435 .

The two decisions have some factual differences and appear to come to opposite conclusions as to the Director’s obligation to produce video evidence. [ 51 ] Weinkauf involves a police investigation into a motor vehicle accident. The investigating officer made note in his narrative of “video surveillance” that was not provided to the NAP recipient by the Director. The Adjudicator in Weinkauf mentions the video, describing it as “video surveillance from the collision scene, provided to Cst.

Ling after the occurrence….” [ 52 ] From this, it can be inferred that the video in Weinkauf was taken by a third party, and not video created by the police. In this regard, Weinkauf is factually similar to Mr. Comeau’s case. [ 53 ] Sidnell J concludes that the video was not required to be disclosed by the Director, stating at paras 21 and 33: The common law may aid statutory

interpretation, but it cannot supplant legislation. Mr. Weinkauf asserts that failure to disclose the video was a breach of procedural fairness, yet the PAPA and the SAR provide a comprehensive regime for disclosure of records for a review before an adjudicator.

Where there is a specific legislative provision which sets out the circumstances in which disclosure must be made, then the legislation, and not a common law duty of procedural fairness, must be applied. … I find that there is no breach of s 12 of the PAPA , because s 12 of the PAPA does not require a video, such as the one referred to by the Constable, to be produced. [ 54 ] Several months after Weinkauf was decided, Smit was released. In Smit , the recipient of the NAP had made a specific request for “video from the police vehicles” when submitting his Request for Review.

The investigating officer uploaded a collection of electronic records respecting the Applicant’s matter to APIS. Those records did not include any video or audio recordings, and no advice was provided as to whether any such recordings even existed. The failure to disclose the existence of the video recordings, or the video recordings themselves, became a ground for judicial review. [ 55 ] In his analysis of this issue, Whitling J specifically considered information and case authority suggesting that police use of

body worn cameras and dashboard cameras has been commonplace for many years, and the importance video recorded evidence has played in the search for truth. Whitling states at paras 77-78: In

summary, government policies, police policies, judicial decisions, and common sense all confirm the importance of video and audio recorded evidence to the search for truth. Such evidence, where it exists, is highly reliable and objective. It is for this very reason that video recordings are regularly created by the police. Consequently, the “public interest in getting at the truth” weighs heavily in favour of the production and use of any video or audio recorded evidence that may be available to litigants like the Applicant.

Further, given the utility of video and audio recorded evidence, a person facing the severe consequence of a driving suspension would be less likely to accept or respect a decision premised upon a refusal to consider such evidence in the absence of any clear and cogent justification. To adopt the words of Brown and Evans, allowing affected persons to make use of such material would enhance the acceptability of administrative action. [ 56 ] After considering the wording of the applicable legislation, Whitling J concluded that the Adjudicator’s decision that the video need not be produced was unreasonable.

He states at paras 97 - 100: The Adjudicator was aware that the Applicant had made a written request for any video evidence, and that that request had been disregarded. The Applicant also submitted that “RCMP vehicles are equipped with Watchguard video which would have been available for this incident”, thereby inviting the Adjudicator to take notice of this fact. The Adjudicator declined to acknowledge, weigh, or consider this submission, declined to consider an adverse inference from the police’s failure to respond, and held the Applicant to an impossible burden.

The reasons provided by the Adjudicator in relation to this issue failed “to meaningfully grapple with key issues or central arguments” ( Vavilov at para. 128 ) respecting the importance of any available video recordings to the inquiry. That is, the Adjudicator failed to consider that any such existing evidence would be highly reliable and potentially dispositive of the events at issue, and would be relatively easy and inexpensive to produce. In other words, the Adjudicator failed to consider that the search for truth was seriously compromised by Cst.

Lal’s refusal to disclose the best available evidence, or alternatively, to advise that it did not exist. Instead, the Adjudicator’s primary basis for dismissing the Applicant’s submissions in relation to this ground was that “In most cases, this function [of determining the basis for the issuance of the NAP] is fulfilled by the records required under Sections 2(

a) and 2(

b) of the Regulation , and I am satisfied that this case is no exception” (para. 15). With respect, the fact that other evidence exists is not a valid basis for excluding the best evidence that exists, and the Applicant was not required to bring herself within any “exception”, since no such exception is known to the law. The Applicant submits that the reasons of the Adjudicator as well as those of other SafeRoads Adjudicators reflect the view that the words referring to “the basis for issuing the notice of administrative penalty” in s. 2(

h) encompass only the NAP’s legal basis and not its factual basis. In other words, the Adjudicator may have concluded that if the NAP and the accompanying police documents indicate that the NAP was issued on “the basis” of impaired operation of a motor vehicle, then no further records need to be disclosed or considered. I do not agree with that

interpretation of s. 2(h). Such an

interpretation would reduce the scope of s. 2(

h) to the point of vanishing.

Section 2(h)’s reference to “the basis” for the NAP must encompass both the legal and the factual basis for its issuance. [ 57 ] The Director is appealing the decision in Smit . [ 58 ] Sidnell’s analysis in Weinkauf provides a literal

interpretation of SAR s 2: no specific requirement is set out with respect to the production of video, and so such disclosure is not required. With the greatest of respect, Weinkauf does not grapple with the issue of whether such a video could fall under SAR s 2(

h) as being something “relevant and necessary” to understand the basis for a NAP. This may be in part because the argument did not need to be dealt with since Mr. Weinkauf had not raised the issue before the Adjudicator, and as such, it could not be dealt with on judicial review. Nonetheless, Weinkauf does not provide much guidance as to why the video was not caught by SAR s 2(h). [ 59 ] On the other hand, Smit does grapple with the

interpretation of SAR s 2(

h) and whether such video could fall into this “catch all” category of records, with the Court concluding that it does because videos are important fact-finding tools, and to exclude them from SAR s 2(

h) would require too strict an

interpretation of that provision. [ 60 ] The Director argues that following Smit would mean interpreting SAR s 2(

h) in a way that is inconsistent with the objectives of the SafeRoads regime because it would result in an obligation to disclose a very wide range of records, resulting in a more complex and time-consuming procedure.

This was something the Legislature has clearly sought to avoid, and something that this Court has recognized, stating in many prior decisions that the SafeRoads regime is meant to be 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 . [ 61 ] In my view, the Director’s argument is not supported. I note that in Mr. Comeau’s case, Cst. Durand had uploaded a series of photographs of the damage to Mr. Comeau’s vehicle. Presumably, these photographs were in Cst.

Durand’s possession, and perhaps had been taken by Cst. Durand himself. Also presumably, these photographs were uploaded because Cst. Comeau felt that they were “relevant and necessary” records under SAR s 2(h). The inclusion of the photographs did not add to the complexity of this litigation – rather, it clarified the state of Mr.

Comeau’s vehicle. [ 62 ] I see no difference between uploading a series of photographs depicting a vehicle involved in the incident and a video, as long as that video is in the possession of the investigating officer. [ 63 ] I am also of the view that it would take very little direction from the Director to require police to advise, by way of inputting information into the APIS Portal, whether they have any video regarding the incident in question, and if they do, to make it available. [ 64 ] On the other hand, videos in the possession of third parties, such as the video of the incident involving Mr.

Comeau, present

different challenges, if those videos were never provided to police. In such cases, the Director’s argument in favour of maintaining a simplified and expedient system is much stronger. Such cases also present a stronger argument that such videos are not “necessary” to understand the basis for the NAP because the investigating officer would not have relied upon the information within the video if he never saw it. [ 65 ] SAR s 2(

h) therefore does not provide a broad duty to disclose all video that might exist. While I agree with Whitling J that the Director’s

interpretation of this provision is too narrow because it encompasses only the NAP’s legal basis and not its factual basis, SAR s 2(

h) should apply only video that the investigating officer actually has – whether because the video was from a dashboard camera within the police vehicle, a body worn camera, or video given to police by a third party. Presumably, such video captured the incident from police perspective (and thus assists in understanding the basis for the NAP) or was viewed by the investigating officer and maintained because it showed something relevant to the incident in question. [ 66 ] Interpreting SAR s 2(

h) in this way would balance the obligation to produce “relevant and necessary” records with the overall objective of the SafeRoads regime by not requiring police, or the Director, to go on a hunt for third party video not in the possession of police, which the police never saw, and which may not necessarily show anything relevant. [ 67 ] In

summary, I agree with the reasoning in Smit as to why certain video falls within SAR s 2(

h) but am of the view that the extent of the Director’s obligation should be limited to video actually in the possession of police.

In my view, the Director has an obligation to produce video if it is in the possession of police, and to make an inquiry to confirm whether or not it is, if the existence of video is disclosed but not uploaded to APIS. [ 68 ] The Adjudicator’s decision in this case was unreasonable because the Adjudicator simply concluded that if the NAP and the accompanying police documents indicate that the NAP was issued on “the basis” of a failure to comply with an ASD demand, then no further records need to be disclosed or considered.

Here, the video, if it was within police possession, might have provided critical evidence about the timing of the arrival of Cst. Durand on scene, the timing of his ASD demand and Mr. Comeau’s refusal. In short, it might have greatly assisted in establishing the basis for the NAP issue to Mr. Comeau. However, the Director failed to even inquire as to whether police had the video. Without such inquiry I would not conclude that the Director’s disclosure obligations under SAR s 2(

h) were complete. [ 69 ] I therefore quash the Adjudicator’s decision. [ 70 ] 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 ). [ 71 ] There is no evidence on the Record which sheds light on whether the video in question was ever provided to police. I am not prepared to presume that it was provided or that the Director even inquired about it.

The most that can be said is that the Director does not appear to have turned his mind to whether the video was in the possession of police, or even noted its absence from the materials uploaded by the police. [ 72 ] 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. [ 73 ] I therefore decline to remit the matter back to an Adjudicator for reconsideration. VI. Conclusion [ 74 ] The Adjudicator’s decision is quashed, and the matter will not be remitted back for reconsideration. The NAP issued to Mr. Comeau is cancelled pursuant to SAR s 4(f)(iii). Heard on the 25 th day of September, 2023. Dated at the City of Edmonton, Alberta this 18 th day of December, 2023. L.K. Harris J.C.K.B.A.

Appearances: Matthew Pagels Ziv Law Group for the Applicant Anastasia Yevtushenko Ministry of Justice for the Respondent