Garcia-Ahmadi v Alberta (Director of Safe Roads), 2023 ABKB 713

Court of King’s Bench of Alberta Citation: Garcia-Ahmadi v Alberta (Director of Safe Roads), 2023 ABKB 713 Date: 20231213 Docket: 2301 14842 Registry: Calgary Between: Darian Garcia-Ahmadi Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice Colin C.J.

Feasby _______________________________________________________ Introduction [1] The Applicant seeks a stay of a Notice of Administrative Penalty (“NAP”) issued on September 22, 2023, under the TrafficSafety Act, RSA 2000, c T-6 (“TSA”), pending a judicial review hearing. Pursuant to the NAP, the Applicant was fined $2,400, hisvehicle was seized, and his driver’s licence was suspended for an initial mandatory period of 90 days plus a further 36 months duringwhich if certain conditions are satisfied, he may drive using an Interlock device.

The Applicant asserts that he meets the tripartite test fora stay because he has raised serious issues to be determined, the NAP will cause him irreparable harm, and the balance of conveniencefavours permitting him to drive without restrictions pending the judicial review hearing. The Director of SafeRoads (the “Director”)opposes the stay submitting that the Applicant has not suffered irreparable harm and the public interest in safe roads weighs heavily inthe balance of convenience and should preclude the granting of a stay. [2] These reasons address a point of practice for injunctions and stays.

Some stay cases in Alberta, particularly concerningSafeRoads driving suspensions, have deviated from a principled approach to the tripartite test as set out in RJR-MacDonald Inc vCanada (Attorney General), (SCC), [1994] 1 SCR 311. These cases indicate that even where the applicant does notassert the public interest, the public interest is nevertheless to be considered at both the second and third stages of the tripartite test. Thisis incorrect.

Where an applicant does not assert the public interest, the respondent’s assertion of the public interest is only to beconsidered at the third stage of the tripartite test. Only when an applicant asserts the public interest, the typical example beinggovernment or a governmental authority, is the public interest considered at both the second and third stages of the tripartite test. [3] I address this issue because counsel for the Director confirmed during oral argument that the Director’s written submissionson this point in the present case are the Director’s standard stay application arguments.

There is little prospect of this issue beingcorrected in the near term by the Court of Appeal as appeals of rulings on stays pending judicial review are relatively uncommon asindicated by the lack of any reported Court of Appeal decisions on stays pending judicial review hearings in SafeRoads matters. If I wereto ignore the issue, it would continue to be presented to the Court on the steady stream of stay applications in SafeRoads matters. To befair to the parties, I permitted them to file additional written submissions following oral argument to address this issue and other pointsarising from oral argument.

The Tripartite Test [4] Injunctions and stay applications are governed by the tripartite test stated in American Cyanamid Co v Ethicon Ltd, [1975]AC 396 (HL), later adopted by the Supreme Court of Canada in Manitoba (AG) v Metropolitan Stores Ltd, (SCC),[1987] 1 SCR 110, and then explained in greater detail in RJR at 347-349. [5] The tripartite test to be applied in the context of a stay of an application for an administrative remedy pending a judicialreview hearing is: (

a) is there a serious issue to be determined? (

b) will the applicant suffer irreparable harm if the stay is refused? and (

c) does the balance of convenience favour the granting of the stay? For a recent statement of the tripartite test in similar terms in the context of a stay pending appeal see, for example, Feehan JA inDoniger v Law Society of Alberta, 2021 ABCA 94 at para 22. [6] Though the tripartite test is well-known, there are important wrinkles that are poorly understood. The elements of the test arenot watertight compartments, and instead the factors relate to one another: R.J. Sharpe, Injunctions & Specific Performance, (Westlawonline) at §2:17; AC and JF v Alberta, 2021 ABCA 24 at para 27.

Despite the frequent and sometimes inevitable overlap in the analysisin the different elements of the test, it is critical to remember at each stage of the test which party bears the burden and what must beproved. The present case raises the subtle point of where in the tripartite test the public interest is to be weighed. [7] The Director argues that the public interest must be considered at both the second and third stages of the tripartite test. TheDirector relies on Thomson v Alberta (Transportation and Safety Board), 2003 ABCA 322, an oral decision of Wittmann JA, as he thenwas, sitting alone.

Thomson, and its approach to irreparable harm, has since gained traction in SafeRoads stay applications. [8] The applicants in Thomson sought a stay of their administrative licence suspensions pending an appeal to the Supreme Courtof Canada.

At para 12, the Court held: “Where a government authority is involved, the public interest is a special factor forming part ofthe consideration at both the second and third stages of the test: RJR MacDonald Inc.” The Director submits that this is a correctstatement of the law that binds the Court. [9] This statement of the tripartite test in Thomson was followed in Tarnow v Alberta (Director of SafeRoads), 2021 ABQB602 at para 25.

Thomson has also been applied on two occasions by the Alberta Transportation Safety Board: Re Autoguard InspectionServices Ltd., 2019 ABTSB 1472 at para 17; and Re 1790445 Alberta Ltd., 2020 ABTSB 1913 at para 10.

The same articulation ofwhere the public interest is to be considered in the tripartite test, though without reference to Thomson, is also found in Trca v Alberta(Director of SafeRoads), 2022 ABQB 85 at para 9 and Tunke v Alberta (Director of SafeRoads), 2022 ABQB 531 at para 12. [10] Thomson, though a decision of the Court of Appeal, should not be followed with respect to the content of the second stage ofthe tripartite test as it is incorrect in holding that public interest is to be considered when assessing the irreparable harm to an applicantthat does not assert the public interest.

Though the circumstances of this case do not fit within the limited exceptions to the principle ofvertical stare decisis set out in Canada (Attorney General) v Bedford, 2013 SCC 72 at para 42, there are nevertheless three good reasonsto depart from precedent: (1) the decision is inconsistent with first principles and the leading Supreme Court of Canada authority, RJR;(2) the Court of Appeal in later decisions follows the approach that flows from first principles and a correct reading of RJR; and (3) in alater decision the same Justice states the law correctly, suggesting that the earlier statement in Thomson was a slip or a transcriptionerror. [11] Further, I must depart from my colleagues’ statement of the tripartite test in Tarnow, Trca, and Tunke.

Though not all thosedecisions cite Thomson, I have no doubt that Thomson informed their statement of the test as it is articulated in almost identical terms.None of the exceptions to the principle of horizontal stare decisis stated in R v Sullivan, 2022 SCC 19 at para 75 apply, but given thattheir statement of the test originated in the error in Thomson and I have concluded that Thomson should not be followed, there is goodreason to depart from the principle of horizontal stare decisis. [12] On an injunction or stay application, the applicant’s burden is to demonstrate on a balance of probabilities that an injunctionor stay should issue.

Paperny JA, writing for the majority in AC and JF at para 55 observed that “[t]he harm engendered by the failureto grant interlocutory relief is generally assessed from the standpoint of the person seeking to benefit from that interlocutory relief.”Justice Sharpe, writing extra-judicially, explained that to satisfy the second stage of the tripartite test, an applicant “must show animmediate risk of harm that will occur before the case reaches trial and that cannot be compensated or remedied other than through thegranting of an interlocutory injunction”: Injunctions & Specific Performance at §2:7. [13] At the second stage of the tripartite test, the focus is only on the apprehended harm to the applicant not on countervailinginterests.

RJR at 338 makes it clear that, at this stage, “the applicant must convince the court that it will suffer irreparable harm.” Thepublic interest is only considered at the second stage of the tripartite test where an applicant – typically, government or a governmentalauthority – claims to represent the public interest. Where the applicant does not claim to represent the public interest, the third stage ofthe tripartite test – the balance of convenience – is where the public interest asserted by a respondent is weighed: AC and JF at para 32. [14] The error in Thomson flows from a misreading of RJR.

At 340-41 Sopinka and Cory JJ for the majority held: Beetz J. determined in Metropolitan Stores, at p. 128, that “[t]he second test consists in deciding whether the litigant who seeks theinterlocutory injunction would, unless the injunction is granted, suffer irreparable harm”. The harm which might be suffered by therespondent, should the relief sought be granted, has been considered by some courts at this stage. We are of the opinion that this is moreappropriately dealt with in the third part of the analysis. Any alleged harm to the public interest should also be considered at that stage.

At this stage the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants’ own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application. [ 15 ] Sopinka and Cory JJ explained later in RJR at 349 that when a government authority claiming to represent the public interest is the applicant, the public interest is considered at both the second and third stages of the tripartite test: [A]s a general rule, the same principles would apply when a government authority is the applicant in a motion for interlocutory relief.

However, the issue of public interest, as an aspect of irreparable harm to the interests of the government, will be considered in the second stage. It will again be considered in the third stage when harm to the applicant is balanced with harm to the respondent including any harm to the public interest established by the latter. [ 16 ] Rothstein JA, as he then was, in Sawridge Band v Canada , 2004 FCA 16 summarized the law concerning where in the tripartite test the public interest is to be weighed that emerged from RJR .

He wrote at para 48: “Ordinarily, the public interest is considered only in the third branch of the test. However, where, as here, the government is the applicant in a motion for interlocutory relief, the public interest must also be considered in the second stage.” [ 17 ] Thomson and the cases that follow it or use the same formulation of the tripartite test stating that the public interest should be considered at the second stage of the tripartite test even though the government authority claiming to represent the public interest was the respondent are anomalous.

More recent stay and injunction cases from the Court of Appeal where the public interest is raised by government authorities as respondents consider the public interest only at the balance of convenience stage: see, for example, Modry v Alberta Health Services , 2015 ABCA 265 at paras 84-89 ; Alberta (Director of Law Enforcement) v McPike , 2019 ABCA 330 at para 69 and Fawcett v College of Physicians and Surgeons of Alberta (Complaint Review Committee) , 2022 ABCA 416 at paras 24-25 . [ 18 ] There is nothing in Thomson to suggest that Wittmann JA intended to change the law stated in RJR ; indeed, his intention appears to be to provide a recitation of the tripartite as set out in RJR .

Even Wittmann JA, it seems, did not consider his statement in Thomson as to where the public interest was to be considered in the tripartite test to be noteworthy.

Five years later, without reference to Thomson , Wittmann ACJ (as he was by that time) explained how the public interest is to be considered in the tripartite test in Morrow v Zhang , 2008 ABQB 125 at para 13 in terms similar to that of Rothstein JA in Sawridge : “ where the government is the party making the application for a stay , the issue of public interest will be considered as an aspect of irreparable harm at the second stage as well as at the third stage” [emphasis added].

Wittmann ACJ’s statement of the law in Morrow suggests that his earlier statement of the law in Thomson was a slip or perhaps incorrectly transcribed. [ 19 ] Considering the public interest asserted by a respondent only at the third stage of the tripartite test promotes analytical clarity. Limiting consideration of the public interest to the weighing of the balance of convenience does not diminish the importance of the public interest or mean that it weighs any less in the overall analysis.

Indeed, maintaining a conceptually coherent approach to the tripartite test brings the interests being balanced at the third stage into sharper relief. Serious Issue [ 20 ] The Director concedes that there is a serious issue to be heard. The nature of the issue to be heard must nevertheless be assessed as the stages of the tripartite test are not “water-tight compartments”: AC and JF at para 27 .

Paperny JA in AC and JF adopted the view of Justice Sharpe in “Interim Remedies and Constitutional Rights” (2019) 69 UTLJ 9 at 14 where he observed “a strong case in one part of the test can compensate for a weak case in another part of the test.” The relative strength of the parties’ positions at each stage of the tripartite test should be considered by a Court as part of the overall assessment that is essential to exercising discretion to grant or refuse a stay. [ 21 ] The Applicant asserts that there is a serious issue to be determined.

He submits that the adjudicator improperly relied on the notes of the police officers even though they were not solemnly declared by the officers to be true. The Applicant relies on Gordey v Alberta (Director of SafeRoads) , 2023 ABKB 228 and Provincial Administrative Penalties Act , SA 2020, c P-30.8 (“ PAPA ”) s 2(

h) for the principle that “disclosure of the notes and reports of all the officers involved in the investigation is required.” The notes and reports of all the officers involved in the investigation in the present case appear to have been disclosed but they were not solemnly declared to be true. The Applicant submits that the officers responsible for creating the reports or notes must solemnly declare the contents of the documents to be true if they are to be relied upon by an adjudicator.

He argues the decision of an adjudicator who relies on officer notes or reports in the absence of a solemn declaration must be set aside. [ 22 ] The adjudicator’s decision indicates that a general report of Cst Neufeld, the issuing officer, and notes of Cst Ward, the other officer at the scene, were disclosed. The report and the notes, however, were not confirmed to be true by the officers.

Accordingly, the adjudicator indicated he was “unable to assure [the report and notes] are reliable and will not consider them.” The adjudicator, however, relied on the notes of Cst Ward to “corroborate that Cst Neufeld was in charge of the impaired investigation and state the Recipient was taken into custody by Cst Neufeld.” The adjudicator then relied on the narrative of Cst Neufeld, which had been solemnly declared to be true, to support his decision to confirm the NAP. [ 23 ] The Director submits that the adjudicator was entitled to rely on the notes of Cst Ward for the limited purpose of corroborating which officer was primarily responsible for the investigation.

The Director points to PAPA , s 18(2) which provides that: An adjudicator may, in conducting a review, consider the following records, representations, arguments and evidence before making a decision: ... (

a) 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 sworn or solemnly affirmed.

[24] Though the Applicant has identified an inconsistency in the adjudicator’s reasons – that he said that he would not consider CstWard’s notes when he later used them to corroborate other evidence – that does not mean that the Applicant’s position is meritorious.The Director submits that, even acknowledging the inconsistency, the adjudicator’s reasons are sound as he was entitled to consider CstWard’s notes pursuant to PAPA s 18(2). [25] In my view, the inconsistency identified in the adjudicator’s reasons by the Applicant is enough to raise a serious issue.

TheDirector points out, and I recognize, that reasons need not be perfect and that at the judicial review hearing the question for the Courtconducting a reasonableness review is whether the adjudicator’s decision “is one that is based on an internally coherent and rationalchain of analysis that is justified in relation to the facts and law that constrain the decision maker”: Canada (Minister of Citizenship andImmigration) v Vavilov, 2019 SCC 65 at para 85.

A detailed assessment of the adjudicator’s reasons at this stage is not necessary orappropriate; it is enough to say that the Applicant has raised a serious issue that could result in the NAP being set aside. Irreparable Harm [26] The second stage of the injunction test inquires whether an applicant will suffer irreparable harm if the injunction is notgranted. Justice Sharpe explained that “[t]he remedies of Chancery were traditionally withheld, unless the plaintiff could show that theordinary legal remedy in damages would be inappropriate or inadequate:” Injunctions & Specific Performance at §2:7.

Lord Diplock heldin American Cyanamid at 408 that “[i]f damages in the measure recoverable at common law would be adequate remedy and thedefendant would be in the financial position to pay them, no interlocutory injunction should normally be granted....” Sopinka and Cory JJin RJR at 315 explained that “‘[i]rreparable’ refers to the nature of the harm suffered rather than its magnitude.

It is harm which eithercannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.” TheAlberta Court of Appeal has used the shorthand “harm not compensable in damages” to explain the usual meaning of “irreparable harm”:Unifor, Local 707A v Suncor Energy Inc, 2018 ABCA 75 at para 8. [27] The Applicant submits that irreparable harm occurs in all cases of driving prohibitions citing Chandler v British Columbia(Superintendent of Motor Vehicles), 2018 BCCA 120 at paras 19-20.

Chandler is premised on the assumption that the applicant’sdriving prohibition will be completed prior to the hearing of an appeal, rendering the appeal nugatory. Harris JA explained at para 21: the nature of the harm suffered is the effective loss of the appeal right rendered nugatory by the refusal to grant the stay.

Moreover, if astay were not granted and the driver ultimately succeeded on an appeal, but in the interim suffered significant financial costs in makingalternative transportation arrangements, for example, the successful appellant has no remedy to make good those losses. [28] The Applicant’s submission that irreparable harm occurs in all driving suspension cases is incorrect. The facts of each casemust be assessed to determine whether there is irreparable harm. [29] There are three main kinds of irreparable harm relevant to driver’s licence suspension cases.

First, there is harm that flowsfrom a judicial review hearing being rendered moot or nugatory. This is often said to be the case where an applicant will have served allor most of a driving suspension prior to a judicial review hearing. Justice Ross, however, pointed out in Trca at para 16 that even where aSafeRoads driving suspension has been served a judicial review application is not moot because the applicant can still obtain relief in theform of reimbursement of fines and correction of a driving record. Second, there is the harm that may flow from the licence suspensionitself.

Though serving a penalty that cannot be undone often constitutes irreparable harm (see, for example, Law Society of Alberta vBeaver, 2021 ABCA 83 per Costigan JA), in driving suspension cases there is a factual inquiry as to whether the licence suspensionsignificantly impairs an individual’s ability to function which often involves an assessment of the impact of the driving suspension on theindividual’s employment.

Third, there is the harm that may arise from unrecoverable expenditures incurred because of the licencesuspension. [30] With respect to the first type of irreparable harm identified, the Director submits that the law is clear that there will only beirreparable harm by reason of mootness where all or nearly all a licence suspension is served prior to a judicial review hearing. TheDirector relies on Thomson at para 21; Trca at para 16; Stephansson v Alberta (Director of SafeRoads), 2022 ABQB 221 at para 6; andTunke at para 35.

In the present case, given the length of the suspension, the judicial review hearing will occur well before the licencesuspension expires. The judicial review hearing will not be rendered nugatory, so that category of irreparable harm does not come intoplay. [31] The starting point for analysis of the second category of irreparable harm that I have identified is a recognition that the right todrive is a widely held privilege that is integral to how many people live and work.

Gascon J, writing for the majority, held in Alberta(Attorney General) v Moloney, 2015 SCC 51 at para 56: “Driving is unlike other activities. For many, it is necessary to functionmeaningfully in society. As such, driving often cannot be seen as a genuine ‘choice’”: see also, R v White, (SCC),[1999] 2 SCR 417 at para 55 and Sahaluk v Alberta (Transportation Safety Board), 2017 ABCA 153 at paras 89-92. The harm causedby the loss of the right to drive will, accordingly, often be significant.

But the caselaw requires that irreparable harm be demonstrated,not assumed: Injunctions and Specific Performance at § 2:7; Modry at para 82. Whether a licence suspension causes irreparable harm isdetermined by an inquiry into the effects of the licence suspension on how the applicant lives their life, including the impact that thelicence suspension has on their employment. [32] The correct way to approach the question of whether irreparable harm flows from a licence suspension is to ask whether theimpugned action – in this case, the NAP – caused irreparable harm to the applicant.

That question does not engage the applicant’s right toa licence, right to work, or complicated questions of regulatory policy. It is a simple factual question of whether the work that theApplicant did prior to the NAP can now be done after the NAP given the restrictions imposed by the NAP. Relevant considerationsinclude whether the Applicant’s work responsibilities can be adjusted or adapted or whether there are other ways that the Applicant canmitigate or work around the restrictions imposed by the NAP.

If an individual is unable to work, that has an impact not only their incomebut also on intangibles like self-actualization. Detrimental effects on an individual’s ability to work may constitute irreparable harm:Sahaluk v Alberta (Transportation Safety Board), 2013 ABQB 107 at para 34; Fitzpatrick at para 5; Musaskepeo v Alberta (Directorof SafeRoads), 2021 ABQB 1018 at paras 43-44; Barton v Alberta (Director of SafeRoads), 2023 ABKB 93 at para 18.

[33] The Director submits that the Applicant could substantially mitigate any harm caused by the licence suspension byparticipating in the Interlock program. Interlock is an alcohol-sensing device that prevents individuals who have consumed alcohol fromdriving. Once there are less than 30 days remaining in the initial 90 day period of the Applicant’s suspension (which is the case as of thehearing of this stay application), he may request the installation of an Interlock device on his vehicle for use during the remainder of hislicence suspension.

Once the Interlock has been installed and the other program requirements have been satisfied, the Applicant maydrive his vehicle. The Director submits that any remaining harm from the suspension is de minimus. [34] The Applicant deposed that as part of his regular work duties he is required to drive multiple vehicles, including rentalvehicles. Based on this evidence, his counsel submitted that it was impractical or impossible for the Applicant to participate in theInterlock program.

The Applicant deposed that he would be terminated if a stay of the NAP was not granted and provided a letter to thateffect from his employer. The Director questions the Applicant’s evidence that he will lose his job if a stay is not granted on the groundsthat the company that he works for is owned by his father and he has remained employed through the first two months of the drivingsuspension. [35] The evidence offered by the Applicant is insufficient to establish that, if he used an Interlock device together with othermitigating measures, he would lose his job.

The Applicant’s job is best described as that of a travelling sales and purchasingrepresentative. Some of his work involves automobile travel, but other parts of his work could be accomplished without driving avehicle. To the extent that the required automobile travel is in Alberta, the Applicant offered no reason why he could not drive his usualvehicle outfitted with an Interlock device. To the extent that he is required to fly to locations outside Alberta where he would normallyrent a car, he has not offered any explanation as to why using a ridesharing service or other means of transport would not suffice.

I amsatisfied on the evidence before me that if the Applicant participated in the Interlock program and used other mitigating measures such asa ridesharing service, the extent of the harm he would experience would be significantly reduced. These measures to maintain hisemployment, of course, would come at a cost to Mr. Garcia-Ahmadi. [36] Given the cost of the Interlock program and other mitigating measures like using a ridesharing service, I cannot accept theDirector’s submission that such steps would reduce the Applicant’s harm to a de minimus level.

Various fees must be paid by theApplicant to participate in the Interlock program. The Director provided a

schedule of the fees as part of her evidence. The fees, thoughnot exorbitant, are beyond the means of some Albertans. The combined cost of the Interlock program and the cost of taxis andridesharing services could be substantial for Mr. Garcia-Ahmadi. The cost of participating in the Interlock program and other mitigationexpenses such as ridesharing services are not recoverable and, as discussed below, constitute irreparable harm. [37] The third category of irreparable harm that I identified is unrecoverable expenses.

Apart from reimbursement for fines paidand the cost of having a vehicle seized, any out-of-pocket costs that may be incurred by the Applicant to mitigate the impact of thedriving suspension while the judicial review hearing is pending are not recoverable. The SafeRoads Regulation, Alta Reg 224/220(“SAR”) only provides for refund of review fees in exceptional circumstances provided for in PAPA or at the discretion of the Director (s7) and reimbursement of the costs associated with the seizure of a vehicle (s 8).

There is no provision for recovery of expenses incurredto mitigate harm pending a judicial review hearing in the event an applicant is successful in having a NAP set aside. Expenses or coststhat cannot be recovered can constitute irreparable harm: Good Guys Recycling Inc v 676083 BC Ltd, 2023 BCCA 286 at para 28-30;Chandler at para 21. Alberta cases hold that “inability to recover costs in conjunction with other factors qualifies as irreparable harm”:Canadian Natural Resources Limited v Wood Buffalo (Regional Municipality), 2011 ABQB 220 at para 69 per S.L.

Martin J; McPike,2019 ABCA 330 at para 61; Poole v City Wide Towing and Recovery Service Ltd, 2020 ABCA 102 at para 20 per Feehan JA. [38] I found that there is not sufficient evidence to conclude that the Applicant will lose his job because there are mitigatingmeasures available to him. Those mitigating measures, however, involve unrecoverable expenses. I find that there is irreparable harm inthe present case because if the Applicant is to avoid termination, he must incur material unrecoverable expenses.

Balance of Convenience [39] During the third stage of the test there are a range of factors to be considered which vary depending on the individual case:RJR at 342; Denis v Sauvageau, 2022 ABCA 166 at para 35.

At this stage the court must determine which of the two parties will sufferthe greater harm from the granting or refusal of an interlocutory injunction: Metropolitan Stores at para 36; Denis at para 33. [40] The Applicant, if he acts reasonably to preserve his employment by participating in the Interlock program and using aridesharing service or other means of transportation, will suffer irreparable harm in the form of unrecoverable expenses until the judicialreview hearing.

That harm, however, is not significant because there is no evidence that the expenses will cause him genuine hardship. [41] The public has an interest in having safe roads through the prevention of impaired driving; hence, the name of the SafeRoadsprogram. There are two components to the public interest in safe roads. First, there is the general public interest in preventing impaireddriving. Second, there is the specific public interest in preventing the Applicant from driving while impaired. [42] Impaired driving exacts an intolerable toll on our society.

Justice Cory, writing for himself and Lamer CJ and Iacobucci J,observed in R v Bernshaw, (SCC), [1995] 1 SCR 254 at para 16: Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, ithas a far greater impact on Canadian society than any other crime.

In terms of the deaths and serious injuries resulting in hospitalization,drunk driving is clearly the crime which causes the most significant social loss to the country. [43] Twenty years later in Wilson v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47 Moldaver J, writing forthe Court, observed at para 1: Impaired driving is a matter of grave public concern in Canada. Over the years, various Criminal Code offences have been enacted todeal with this problem. The provinces have also enacted regulatory legislation in an attempt to curb the number of impaired drivers on

the road. Despite these measures, the problem of drunk driving persists, resulting as it often does in lives lost and lives shattered. [ 44 ] Though impaired driving is a criminal offence, many provinces, including Alberta, have adopted regulatory measures to address impaired driving. The SafeRoads program is Alberta’s latest attempt to address the scourge of impaired driving. SafeRoads is modelled on a similar program in BC.

The Minister of Justice explained the rationale for SafeRoads to the Legislature as follows: Studies show that immediate consequences impact behaviour far greater than the same consequences delayed.... The SafeRoads program enhances the safety of all Albertans by reducing driving offences. This is because immediate roadside sanctions provide serious, immediate, and escalating consequences that deter impaired driving.

In British Columbia impaired driving offences dropped by a third from 2011 to 2018 and impaired driving fatalities [dropped] by over half over the same period due to the SafeRoads program. (Alberta, Legislative Assembly, Hansard , 30 th Leg., 2 nd Sess, No 74 (1 December 2020) at 3648). [ 45 ] The Legislature made a deliberate choice, evident in the structure of the SafeRoads scheme, to impose immediate sanctions on impaired drivers. The immediacy of the sanctions means that where those sanctions are made in error, there will often be irreparable harm. This point was not lost on the Legislature.

Indeed, the availability of a roadside appeal and an expeditious appeal in front of an adjudicator are measures that promote fairness and mitigate the harm of improper sanctions: TSA s 88.11, SAR ss 4 and 10, PAPA s 21(1) (b). Some sanctions have survived these two safeguards only to be set aside after judicial review proceedings: see, for example, Lausen v Alberta (Director of SafeRoads) , 2023 ABCA 176 . The burden that those who have had their sanctions set aside only after judicial review have borne in the interim is an inherent feature of the program.

The Legislature decided, in effect, that this was an acceptable price to be paid for reducing the harm to society caused by impaired driving. [ 46 ] Turning to the threat to the public interest represented by the Applicant, the most important fact is that the NAP in issue in this case is not his first impaired driving licence suspension. The Applicant’s

Summary of Driving Record indicates that his licence was suspended from late 2018 until early 2020 on alcohol or drug related grounds. The fact that the current disputed incident was not his first incident of impaired driving weighs heavily against him in the balance of convenience. His prior licence suspension for impaired driving shows a pattern of behaviour that represents a significant risk to the public. [ 47 ] The facts of the incident that gave rise that the NAP challenged in the present proceeding found by the adjudicator are not challenged by the Applicant.

As discussed earlier in these reasons, the Applicant’s challenge to the adjudicator’s decision is based on the officers’ failure to certify the truth of the contents of their notes. The adjudicator accepted the officer’s narrative, which was solemnly declared to be true, that the Applicant was found passed out behind the wheel of his vehicle in a parking lot, with vomit on both the outside and inside of the car, smelling of alcohol.

These facts, which are uncontested in the evidence filed by the Applicant on this stay application, indicate that the Applicant presents a risk to public safety. [ 48 ] The Applicant’s affidavit in support of the stay application speaks only to the issue of irreparable harm; it presents no evidence to support the position that the Applicant does not pose a risk to public safety.

Where, as in the present case, the Director has adduced evidence that an applicant poses a significant risk to public safety – which it must be remembered in the context of impaired driving is a risk of causing serious injury and death – irreparable harm suffered by an applicant will rarely be sufficient to outweigh that risk in the balance of convenience. As a practical matter, then, to be successful an applicant must demonstrate why they do not pose a risk to public safety.

The Applicant could have explained what steps he has taken to ensure that he will not operate a vehicle while impaired, how he has educated himself on the harms of impaired driving since his first licence suspension, any therapy or other treatment that he has taken or is taking that would assist him in not driving while impaired, what supports or controls he has in his life that will prevent him from driving while impaired, and anything else to support a conclusion that he does not pose a risk to public safety. But the Applicant offered nothing. The balance of convenience weighs against granting a stay.

Conclusion [ 49 ] The application for a stay is dismissed. Heard on the 1 st day of December, 2023. Dated at the City of Calgary, Alberta this 13 th day of December, 2023. Colin C.J. Feasby J.C.K.B.A. Appearances: Neal Dixon, Foster Iovinelli Beyak Kothari

for the Applicant Anastasia Yevtushenko, Alberta Justice for the Respondent