R v Milford-Stanton, 2023 ABCJ 189

In the Alberta Court of Justice Citation: R v Milford-Stanton, 2023 ABCJ 189 Date: 20230831 Docket: B33711801C Registry: Calgary Between: His Majesty the King Crown - and - Scott Holden Trevor Milford-Stanton Accused Decision of the Her Worship Justice of the Peace S. Chowdhury Introduction [ 1 ] On June 26, 2021, Scott Holden Trevor Milford-Stanton was charged with being the owner of a motor vehicle which was speeding, pursuant to s 160(1) of the Traffic Safety Act , RSA 2000, c T-6 (“ Traffic Safety Act ”) referencing section 115(2) (

p) of the Traffic Safety Act . [ 2 ] The trial of this matter was heard on June 20, 2023. The Crown called on witness Constable Anderson of the Calgary Police Service to testify. Mr. Milford-Stanton testified on his own behalf. Facts [ 3 ] On June 26, 2021, a motor vehicle bearing Alberta license plate CJB5435 was travelling westbound near the 1600 block of Memorial Drive West in Calgary, Alberta. Through use of the Redflex Radar System (“Redflex”), Office Anderson assessed the vehicle to be traveling at a speed 66 km/h in a zone where the posted speed limit was 50 km/h. [ 4 ] A ticket was issued to Mr.

Milford-Stanton in the amount of $146 for contravention of s 160(1) of the Traffic Safety Act referencing section 115(2) (

p) of the Traffic Safety Act . Crown Evidence

[ 5 ] Constable Anderson testified that on June 26, 2021, he was conducting speed enforcement in the City of Calgary and was monitoring traffic traveling westbound at the 1600 block of Memorial Drive at that time. He indicated that the posted speed limit at that location was 50 km/h and that speed limit signs were clear and visible.

He testified that he was trained and qualified in the use of the Redflex system, that he performed the required tests on the date in question, and that he concluded that the equipment was functioning properly on that date and capable of determining the speed of moving motor vehicles. [ 6 ] Constable Anderson testified that he observed a vehicle bearing Alberta license plate CJB5435 traveling westbound on that roadway and obtained a reading of 66 kilometers per hour on the Redflex system.

He proceeded to issue a violation ticket on that basis. [ 7 ] At trial, Constable Anderson presented photographs of the vehicle in question that were taken at the relevant moments, which showed a black truck bearing the Alberta license plate CJB5435. He also presented a certificate stating that Mr. Milford-Stanton was the registered owner of the vehicle at the relevant date and time. Defence Evidence [ 8 ] Mr. Milford-Stanton testified in his own defence. He did not tender evidence to contradict that presented by the Crown with respect to the elements of the offence.

Neither did he dispute the speed at which his vehicle was traveling at the relevant time or the registered ownership of the vehicle. [ 9 ] However, Mr. Milford-Stanton drew the Court’s attention to the Government of Alberta, Automated traffic enforcement technology guideline [2021], (Government of Alberta, Justice and Solicitor General) (“ATE Guideline”). He testified: ...

Section 3.1 of the Police Act , which is legally enforceable as the force of law in Alberta, it establishes the Automated traffic enforcement technology guideline . So this is, to quote the Government of Alberta: (as read) Police services that must comply with the standards include all police services in Alberta, including regional, municipal, First Nations and the provincial police service. The Automated traffic enforcement technology guideline is established under 3.1 of the Police Act and provides direction that police services shall adhere to, prior to and when using ATE, so automated traffic enforcement technology. So just to sort of summarize that,

section 3.1 of the legally enforceable Police Act creates the Automated traffic enforcement technology guideline which is therefore also the force of law. [ 10 ] The Defendant drew the Courts attention to the

preamble of the ATE Guideline and highlighted the presence of further sections from the ATE Guideline as follows: And so also under

section E, the law says -- the guideline which has force of law -- says, and again this is a direct quote: (as read) ATE information shall be posted on the municipal or police services website and updated, as required at least monthly. At minimum, information posted shall be…” There's again more bullets. The relevant one here says: The location of each (police services) approved ATE site, including both mobile units and intersection safety devices. So traffic cameras, speed cameras are included under that. [ 11 ] Mr.

Milford-Stanton gave evidence that the official online map of speed cameras from the City of Calgary website during the period from November 11, 2020 to December 5, 2021: “There are two screen captures that show the start date and the end date of a period during which the official online map of speed cameras from the city of Calgary was completely unavailable. This can be accessed by anyone. The website address is on that page. It's a historic web archiver that takes snapshots of web sites at different points in time.

So the unavailable -- the unavailability of the speed camera map began as early as November 11th, 2020 and the problem was solved by December 5th, 2021. So I'd like to point out that this period where these maps were not available at all covers the period during which the ticket was issued. .... I therefore did not have adequate awareness of the camera locations which is a requirement by law under the Automated traffic enforcement technology guideline and therefore also the Police Act .” Defence Argument [ 12 ] Mr.

Milford-Stanton argues that the ATE Guideline has the force of law, that the ATE Guideline requires that ATE locations be posted and accessible online on a municipal or police website, that the ATE location information was inaccessible online on the relevant dates, that such unavailability constitutes a breach of the ATE Guideline, and that the remedy for such breach is a dismissal of the ticket. Issue [ 13 ] The issues arising are as follows: 1. Does the ATE Guideline have the force of law?

2. What is the impact of unavailable ATE information on the date a violation ticket is issued? Analysis 1. Does the ATE Guideline have the force of law? Statutory Analysis [ 14 ] The Defendant cites the ATE Guideline. The legislative framework giving rise to the ATE Guidelines appears to be as follows. [ 15 ] The ATE Guideline in its

preamble that it is established under

section 3.1 of the Police Act RSA 2000, c P-17 (“ Police Act ”). The Police Act states: Responsibility of Ministers 2(1) The Minister is charged with the administration of this Act.

(2) Notwithstanding anything in this Act, all police services and peace officers shall act under the direction of the Minister of Justice in respect of matters concerning the administration of justice. Responsibility of Government for policing 3 The Government of Alberta is responsible for ensuring that adequate and effective policing is maintained throughout Alberta. Minister’s responsibility for policing standards 3.1 The Minister may, subject to the regulations, (

a) establish standards for (

i) police services, ... and (

b) ensure that standards are met. [ 16 ] The Police Act authorizes the Minister to make standards for police services within Alberta. Accordingly, the Minister has established the Government of Alberta, Alberta provincial policing standards. Version 2.3 , (Government of Alberta, Justice and Solicitor General) (“Policing Standards”). [ 17 ] The Policing Standards contain further authority to create guidelines, directives and standards: Guidelines and Directives (page 10): Direction to police services can take the form of guidelines or directives, depending on the issue.

Police services shall comply with issued guidelines and directives, whether or not they are specifically referenced in standards contained in this manual. Accountability (pages 15-16): Resolution of Non-Compliance and Appeals If a police service is found to be in non-compliance with any standard, it will be required to take corrective action to achieve compliance within a specified period of time. If a police service disagrees with part or all of the results of an audit, the Chief of the police service should review the concerns with the PSAS audit Team Leader.

If this review fails to resolve the concerns to the Chief's satisfaction, the Chief may request the Assistant Deputy Minister of the Public Security Division (JSG) attempt to mediate a resolution to the dispute. If mediation is unsuccessful, the Chief may request the Deputy Minister of Justice and Solicitor General review the matter. The Deputy Minister may act independently or, on a case-by-case basis, establish a committee to review the matter and make recommendations. The decision of the Deputy Minister will be final and binding.

Glossary (pages 84, 85, 90): Directive A printed or electronic document developed by a police service, intended to guide, govern or influence police personnel. It is commonly associated with a policy (See: definition of Policy) that has been developed for the police service and the directive is used as a notification of the new policy. (Note: these directives are separate from any issued by the JSG [Assistant Deputy Minister of the Public

Security Division]). Guidelines The JSG [Assistant Deputy Minister of the Public Security Division] may provide direction to police services in the form of guidelines(i.e. Hazardous Pursuit, Conducted Energy Weapon, Domestic Violence). These guidelines are relevant to those mentioned in the Rolesand Responsibilities

section of this manual. Standard A specified requirement of the Ministry, to audit Alberta police services in their delivery of police services, operations, andaccountability. [18] The Policing Standards define and reference various types of written documents, including guidelines, standards anddirectives. The Policing Standards reference the adoption of police guidelines such as the ATE Guideline. [19] Therefore the ATE Guideline has been created as “guideline” under the Policing Standards (a “standard”), where suchPolicing Standards have been established pursuant to the Police Act. [20] It is notable that section 62(1)(

g) of the Police Act also states: “Ministerial regulations 62(1) The Minister may make regulations ... (

g) governing the establishment of standards for police services, police commissions and policing committees;” [21] Section 62(1)(

g) of the Police Act gives the Minister explicit authority to make regulations governing standards for policeservices in Alberta, however, it is not referenced in the ATE Guideline. At the Minister’s discretion, the ATE Guideline could have beenissued as a regulation to the legislation rather than in its current form. It was not. The contents of the ATE Guideline have not beenpassed into law through the legislature.

It is available through the Alberta government website as a publication but is not publishedalongside legislation though the King’s Printer. [22] A review of the statutory framework supports the conclusion that the ATE Guideline was purposefully established as a“guideline” rather than as a regulation to the enabling legislation, and that the intention was not to give the ATE Guideline the force oflaw.

Case Law Analysis [23] Relevant jurisprudence indicates that guidelines have no force of law except in limited and specific circumstances where theirestablishment and content are specifically referenced in the enabling legislation. [24] In R v Beaudry, 2007 SCC 5 , [2007] 1 SCR 190 (“Beaudry”), the Supreme Court of Canada considered whetherdirectives set out in police practice manuals have the force of law.

The Court concluded that they do not. [25] In that case a police officer was charged with obstructing justice for deliberately failing to gather evidence necessary forlaying criminal charges against another police officer, who he had reasonable grounds to believe had been operating a motor vehiclewhile intoxicated. The charged police officer argued that he followed the municipal police practice manual for the procedure to follow inimpaired driving cases. He argued that this policy gave him discretionary power to deal with the impaired driving case other thanthrough prosecution.

The Court stated that: 45 Doyon J.A. seems to be attributing to the administrative directives set out in the police practices manual a normative value thatthey do not have. It should be pointed out that these directives do not have the force of law. They therefore cannot alter the scope of adiscretion that is founded in the common law or a statute. Section 254(2) of the Criminal Code is the only legislative provision thatapplies in the instant case and it gives peace officers the power, but does not impose on them a duty, to take breath samples.

Thus, thepolice practices manual cannot transform the discretion to decide whether or not samples should be taken into a binding legal rule:Maple Lodge Farms Ltd. v. Government of Canada, (SCC), [1982] 2 S.C.R. 2. [Emphasis added] 46 In R. v. Jageshur (2002), (ON CA), 169 C.C.C. (3d) 225, the Ontario Court of Appeal addressed this questionin a context that was very similar to the one now before us. That case concerned the legality of a police operation carried out incompliance with the applicable law but not with the applicable administrative directives.

Doherty J.A. wrote the following for aunanimous court: An officer’s duties and hence his or her responsibilities cannot be equated with instructions as to how those duties and responsibilitiesshould be carried out. Police policies speak to the manner in which police should carry out their responsibilities, but do not define orlimit those responsibilities. ... My conclusion that the officers’ responsibilities were not circumscribed by the RCMP policy concerning major drug operations andreverse stings is fortified by a consideration of the nature of these policies. Section 21(1)(

b) of the Royal Canadian Mounted Police Act

authorizes the Governor in Council to make regulations for the conduct and performance of duties by members of the RCMP. Section21(2)(

b) authorizes the Commissioner of the RCMP to make rules (standing orders) for the conduct and performance of duties bymembers of the RCMP.

Section 38 of the same Act authorizes the Governor in Council to make regulations governing the conduct ofmembers (Code of Conduct). The policies in issue on this appeal did not spring from any of these statutory sources... [Emphasis added;paras. 50 and 52.] [26] The Court stated that while evidence of the directives can shed light on the circumstances of the discretion used by the officerand the police service’s usual procedures, the evidence cannot be conclusive in determining the issue.

The Supreme Court suggests inBeaudry that non-legislative directives do not have the force of law and should not be held to be binding on the conduct of the policeofficer in issuing a ticket. [27] The Supreme Court of Canada upheld the informative but not determinative status of police directives in Kosoian v Société detransport de Montréal, 2019 SCC 59 , [2019] 4 SCR 335 (“Kosoian”). The appellant was taking the escalator to the subway.She did not hold the handrail.

The subway system had taught police officers that holding the handrail was an obligation under a by-law.The police officer arrested the appellant and gave her a statement of offence for disobeying a pictogram indicating that the handrailshould be held, which the subway system had posted near the escalator pursuant to its by-law. [28] The Court concluded that a reasonable police officer in the same circumstances would not have considered a failure to holdthe handrail to be an offence.

It held: [59] The training and instructions given to police officers, as well as internal police force policies, directives and procedures, must beconsidered in assessing an officer’s conduct, although they are not conclusive in themselves. A reasonable police officer must know thatthey do not have the force of law (see R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at paras. 44 46).

Similarly, the usual practicesare at most a relevant factor... [29] In both Beaudry and Kosoian, the Supreme Court of Canada suggests that police are required to prioritize the requirements ofthe governing statute over those set out in policies.

The Supreme Court of Canada thus affirmed that internal police procedures are notconclusive and do not have the force of law. [30] Alberta courts have also considered the legal force of guidelines in light of the legal source of such guidelines. [31] In Johnston v Alberta (Director of Vital Statistics), 2008 ABCA 188, (“Johnston”) the reviewing judge refused to quash theDirector of Vital Statistics’ decision to provide a disinterment permit.

The refusal was upheld on appeal. [32] In considering whether the guidelines had the force of law, the Court concluded that there was nothing in the underlyingstatute (the Cemeteries Act, RSA 2000, c C-3) that specifically contemplated a policy document.

The statute provided that disintermentcould take place if the Director considered it “necessary or advisable.” The appellant had argued that, because the statute used the words“necessary or advisable,” a form of policy that ensured consistency of the Director’s decisions should have the force of law (at para 16).The Court dismissed this argument: [18] In this case, the Policy is not specifically referred to in the underlying legislation, nor is it even inferred by the words of s. 11 of theCemeteries Act that Grace Johnston relies on.

Although consistency is a desired objective, the means of achieving that objective mayvary, and are not restricted to the formulation of a policy. Indeed, one method of achieving consistency is by way of a body of decisions,as is implemented by courts in their dissemination of jurisprudence. [19] Simply put, there is nothing in the underlying legislation that compels the formulation of policies in aid of determining what isnecessary or advisable respecting the issue of disinterment. In these circumstances, the Policy does not have force of law and no legalrights and obligations arise from it.

This ground of appeal is dismissed.[Emphasis added] [33] In Anglin v Chief Electoral Officer, 2018 ABCA 296 (“Anglin”), the Alberta Court of Appeal found that when the legislatureauthorizes and refers to specific guidelines under the regulatory scheme, those guidelines must be considered and complied with. In thatcase, the Chief Electoral Officer imposed a $250 administrative penalty on Mr. Anglin for breaching the Election Act, RSA 2000, c E-1(“Election Act”). The Chief Electoral Officer concluded that the sponsorship information on Mr.

Anglin’s election signs was printed in afont size smaller than that required by the guidelines established under the Election Act, and therefore was not sufficiently legible.

Mr.Anglin did not dispute that his election signs breached the guidelines, but rather argued that the guidelines established by the ChiefElectoral Officer did not constitute law, and as such a breach of the guidelines was not a contravention of the Election Act. [34] Section 134(2) and (3) of the Election Act expressly required that candidates act in accordance with advertising guidelinesestablished by the Chief Electoral Officer: Printed or electronic advertising 134(2) A registered candidate, a registered constituency association and a registered political party must ensure that advertisementssponsored by the registered candidate, the registered constituency association or the registered political party comply with the followingin accordance with the guidelines of the Chief Electoral Officer…

(3) The Chief Electoral Officer shall establish guidelines respecting the requirements referred to in subsection (2). [Emphasis added] [35] The Court held that the guidelines were legally binding. [36] In Anglin, the language in the Election Act is stronger and more specific than that used in the Police Act. The Election Actstates that the “Chief Electoral Officer shall establish guidelines” specifically in respect of sponsored advertisement requirements, andthat registered candidates must comply with those guidelines. In comparison, the Police Act states that the Minister may establish“standards” and ensure that standards are met. The

section does not specify the subject matter of such standards. The ATE Guideline is

made indirectly – pursuant to a “standard”, which is made under the authority of the Police Act , and the Police Act makes no reference to guidelines governing use of ATE programs. The legislative reference to the guideline in Anglin is much more direct, specific and explicit, unlike that in the case at hand. The case before this court is more akin to that in Johnston . [ 37 ] In Taylor Processing Inc v Alberta (Minister of Energy) , 2023 ABKB 64 (“ Taylor ”), the Alberta Court of King’s Bench considered the legal effect of Ministerial guidelines, concluding that they do not have the force of law.

The Court stated: [102] I agree that administrative decision makers have broad powers to enact non-binding instruments, but these instruments do not have the force of law and “cannot impose mandatory requirements enforceable by sanction”, particularly “in the face of contradictory statutory provision or Regulation”: Ainsley Financial Corp v Ontario (Securities Commission) (1994), 21 OR (3d) at para 14. In other words, “an informal policy can neither be used to fetter a discretion, nor to create legally enforceable rights”: Skyline Roofing Ltd v Alberta , 2001 ABQB 624 at para 78 .

The authority conferred on the Department by the IB and the IB Rules cannot exceed the Minister’s jurisdiction under the MMA and, to the extent that they do, they are unenforceable. [ 38 ] Lastly, in Anderson Estate , 2011 ABQB 806 , the Court recognized that while guidelines may not have the force of law, they can be of assistance to a Court in specific situations. The issue in this case was the appropriate compensation for an executor under the Trustee Act , RSA 2000, c. T-8 .

The Legal Education Society had published a set of Suggested Fee Guidelines , setting out ranges of percentages for determining compensation. While the parties “acknowledged that the Suggested Fee Guidelines have no force of law”, the case law suggested that a proper approach to determining executors’ compensation is to test the guideline amounts against the factors in the Surrogate Rules , Alta Reg 130/1995 (at paras 19-20). The Court then did so, arriving at a number slightly lower than what the guidelines suggested.

The guidelines were found to be helpful to the Court in determining of matters of a particular scope. [ 39 ] I note that in the case at hand, neither the Traffic Safety Act nor the Police Act specifically reference the creation of guidelines to enforce ATE programs, nor do they compel that the ATE Guidelines be created. What is the impact of unavailable ATE information on the date a violation ticket is issued? [ 40 ] Having found that the ATE Guideline does not have the force of law, it is not necessary to answer question two.

However, some examination of the implications of ATE Guideline non-compliance may be helpful. [ 41 ] The version in force on June 20, 2021, was the 2019 version of the ATE Guideline, of which relevant sections have been excerpted below; this version has since been superseded by an updated version. Guideline Sanctions [ 42 ] The requirement to publish ATE locations referenced by the Defendant is the following: Public Awareness and Transparency (page 7): Public Information ATE information shall be posted on the municipal or police service website and updated, as required.

At minimum, the following information shall be posted on the website: On a monthly basis: • The location of each approved ATE technology site, including both mobile units and intersection safety devices; and • The rationale for ATE use for each site (i.e., site election criteria). [ 43 ] The sanctions and remedies for non-compliance with the ATE Guideline are set out within the document itself.

Section M “Audits” of the ATE Guideline reads (page 11): The Ministry of Justice and Solicitor General shall audit police services against all requirements in this Guideline once every two years. The Ministry of Justice and Solicitor General may conduct additional directed reviews, at its discretion. The Director of Policing Standards and Audits may request any ATE information at any time, at its discretion. Police services, in collaboration with the municipality, shall make available all ATE records to a representative of the Ministry of Justice and Solicitor General upon request.

At any time, if non-compliance with the Guidelines is found, an ATE program may be subject to suspension until compliance with the Guidelines is achieved. [ 44 ] This indicates that a remedy for non-compliance with the “Public Awareness and Transparency”

section of the ATE Guideline would be assessed through the Director of Policing Standards and Audits, and that potential sanctions would be imposed against the police service itself. There is no reference to the validity of violation tickets issued during that time. [ 45 ] By comparison, the ATE Guideline states the following with respect to use of new and existing technology: New and Existing Technology (page 9):

The use of new equipment and technology and any material changes made to existing equipment and technology requires the approval of the Ministry of Justice and Solicitor General. Failure to properly notify and obtain prior approval from the Ministry of Justice and Solicitor General may compromise trials and prevent proper proof of offences from being presented by Alberta Crown Prosecution Service. This degrades the effectiveness of enforcement, and diminishes public confidence in ATE and the justice system. ...

The use of any equipment and technology that has not been reviewed and approved by the Ministry of Justice and Solicitor General may be suspended immediately, and any traffic notices issued may be withdrawn at the discretion of the Alberta Crown Prosecution Service. [Emphasis added] [ 46 ] The ATE Guideline suggests that the remedy for use of unauthorized new technology may result in the evidentiary burden of the Crown being compromised such that the Crown may withdraw notices issued where they arise from such circumstances. There is no similar sanction described with respect to the “Public Information” section.

Non-compliance with the “Public Information”

section would then presumably fall under the more general provisions in the “Audits” section. [ 47 ] Comparing the “New and Existing Technology” language to the “Audits” language reveals a clear distinction; in the former case, non-compliance may compromise the ability to prosecute offences issued thereunder; in the latter case, the relevant police service may be subject to suspension of their ATE program. [ 48 ] This is consistent with an analysis of the authority under which the ATE Guideline was established.

As the Minister’s authority to establish the ATE Guideline ultimately falls under the Police Act , the ATE Guideline cannot create legally enforceable rights outside of the Police Act .

Invalidating a ticket issued under the Traffic Safety Act , for example, would be creating a legally enforceable right outside of the Minister’s jurisdiction under the Police Act . [ 49 ] If the Defendant’s position on this question were to be followed, an internet outage in a particular municipality or community on a particular date would result in local law enforcement agencies being wholly unable to conduct speed enforcement in that area for the duration of the internet outage.

It is unlikely that the Minister intended this result. [ 50 ] I conclude that, in situations of non-compliance with the “Public Information”

section of the ATE Guideline, the Minister may have discretion to pursue a remedy directly with the police service itself; however such non-compliance does not compromise the validity of traffic tickets issued thereunder. Conclusion [ 51 ] Based on the foregoing, I find that the ATE Guideline does not have the force of law and the Defendant’s argument is unsuccessful. The evidence given by Constable Anderson is clear and unambiguous. I find that the Crown has otherwise established its case beyond a reasonable doubt. Accordingly, I find the Defendant guilty as charged. [ 52 ] The fine is $146.00.

It must be paid by October 2, 2023. Heard on the 31 st day of August, 2023. Dated at the City of Calgary, Alberta this 31 st day of August, 2023. S. Chowdhury A Justice of the Peace in and for the Province of Alberta Alberta Court of Justice Appearances:

G. Beaudry for the Crown Scott Holden Trevor Milford-Stanton for himself