Bettenson-Miller v Alberta (Director of SafeRoads), 2022 ABKB 693

Court of King’s Bench of Alberta Citation: Bettenson-Miller v Alberta (Director of SafeRoads), 2022 ABKB 693 Date: 20221024 Docket: 2103 06979 Registry: Edmonton Between: Kayla Bettenson-Miller Applicant - and - Director of SafeRoads Respondent _______________________________________________________ Reasons For Decision of the Honourable Justice J.C. Kubik _______________________________________________________ Introduction [ 1 ] On March 19, 2021, a hit-and-run collision occurred at 9112 82 nd Avenue, Edmonton, Alberta. The vehicle which fled the scene was located by Edmonton Police Service “Air 1” Helicopter.

During the course of their surveillance of the vehicle, Air 1 officers observed the driver and passenger in the vehicle switch seats. Approximately thirteen minutes later, the vehicle was stopped, and after a breath demand resulting in a “FAIL” reading, the individual seated in the passenger seat, Kayla Bettenson-Miller (“Bettenson-Miller”)

was issued a Notice of Administrative Penalty (“NAP”) pursuant to

section 88.1(1) of the Traffic Safety Act , RSA 2000, c H-8 [ TSA ]. [ 2 ] Bettenson-Miller applied unsuccessfully to cancel the NAP and seeks judicial review of the adjudicator’s decision. Before the adjudicator, Bettenson-Miller argued 2 grounds for cancellation: 1. That she did not operate the motor vehicle; and 2. That the officer did not advise her in writing of her right to a roadside appeal, pursuant to

section 88.11 of the TSA , and that she was unaware of this right. [ 3 ] The issues on this judicial review are whether the adjudicator’s dismissal of her application was reasonable. Standard of Review [ 4 ] The parties agree that the standard of review of an adjudicator’s decision is reasonableness.

Section 24 of the Provincial Administrative Penalties Act , SA 2020, c P-30.8 [ PAPA ] explicitly states this standard. This is also supported by the decision in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 [ Vavilov ]. Issues On Judicial Review [ 5 ] The narrow issues for this judicial review are: 1. Whether the adjudicator’s finding with respect to Bettenson-Miller’s operation of the motor vehicle was reasonable; and 2. Whether the adjudicator’s finding that Bettenson-Miller was provided written notice and was aware of her right to a roadside appeal, pursuant to

section 81.11 of the TSA , was reasonable. [ 6 ] More broadly, however, the applicant argues that the adjudicator’s reasoning process was flawed because it failed to consider her evidence, did not address her central argument on sequencing, employed flawed reasoning, was incomplete, and used the applicant’s right to silence in her interactions with the police against her. [ 7 ] Vavilov requires a reviewing court to review the reasons of adjudicative decision makers for reasonableness.

Such an assessment requires the record, any written reasons, and the overarching purpose of the administrative regime to be considered as a whole. [ 8 ] A decision may be unreasonable if it is not internally coherent and lacks a basis in rationale and logic. It may also be unreasonable if it is not supported by the relevant facts and applicable law. [ 9 ] What is important to remember is that within a reasonableness review, adjudicative decision makers are entitled to deference, meaning that the reviewing court should not intervene unless the decision, as a whole, cannot be sustained on the record.

While decisions may contain imperfections, if those imperfections do not disclose a failure of reasoning, rationale, or logic, a decision should not be quashed. Turning then to the narrow issues on judicial review. Issue one: Operation of the Vehicle [ 10 ] Under section 18(1) of PAPA the burden of proving the grounds for cancellation of the NAP rested on Bettenson-Miller. As a result, she bore the burden of proving she did not operate the vehicle. [ 11 ] The adjudicator’s factual findings were premised on the officer’s notes and report, and the sworn affidavit of Bettenson- Miller.

Bettenson-Miller’s affidavit did not tender any evidence that she was not operating the vehicle. While there is no direct evidence as to who was operating the vehicle at the time of the hit-and-run, after it fled the scene, the vehicle was under continuous air surveillance by Air 1 from 10:31 p.m. to 10:46 p.m. when the vehicle was stopped. During this time, at 10:33 p.m., Air 1 officers saw the passenger and driver switch seats. When the vehicle was stopped at 10:46 p.m. Bettenson-Miller was in the passenger seat. The driver of the vehicle was unlicensed and there were no other occupants of the vehicle.

At the roadside stop when police alleged that Bettenson- Miller was the driver and impaired by alcohol, Bettenson-Miller began to cry. She provided a breath sample which provided a “fail” on the ASD screening device.

She was advised of her right to a second test and declined. [ 12 ] In the absence of direct evidence from Bettenson-Miller that she was not operating the vehicle, the adjudicator could only consider the evidence contained in the officer’s report and drew an inference on all of the facts that Bettenson-Miller was the operator of the vehicle at the time of the hit and run. [ 13 ] This inference is reasonable having regard to the Air 1 observation of the seat switch, Bettenson-Miller’s location once the vehicle was stopped, and the fact that the person found in the driver’s seat did not have a valid operator’s licence.

The finding that Bettenson-Miller did not meet her burden of proof is reasonable given that she offered no evidence as to operation of the vehicle. [ 14 ] At the judicial review, counsel argued that the adjudicator’s finding that Bettenson-Miller had not denied operation of the vehicle at the scene overrode her right to silence. However, the adjudicator was entitled to consider and weigh all the evidence, including evidence of what occurred at the traffic stop, and any competing evidence raised by Bettenson-Miller at the hearing. [ 15 ] I am satisfied that the adjudicator’s decision in this regard was reasonable.

Issue Two: The Roadside Appeal [ 16 ] The adjudicator concluded that Bettenson-Miller was advised in writing (upon issuance of the NAP) that she was entitled to a roadside appeal, and was advised orally of this right by the investigating officer on the scene, and declined the opportunity to provide a second sample. [ 17 ] Bettenson-Miller argues that the officer’s steps were out of sequence and failed to inform her that the roadside appeal would be conducted on a different device.

As a result, she says that she could not make an informed decision with respect to the roadside appeal. [ 18 ] The record reveals that on issuance of the NAP, Bettenson-Miller received written advice as to her right to a roadside appeal. She also received oral advice from the officer of that right, as confirmed in the officer’s statutory declaration. She elected not to provide a second sample.

Her reasons for doing so are not apparent on the record. [ 19 ] As noted in Cornforth v Alberta (Director of SafeRoads) , 2022 ABQB 341 , the operative question is whether the applicant had sufficient information to avail herself of the roadside appeal. In this case, the adjudicator’s determination that Bettenson-Miller received the information both in writing and orally, allowing her to understand her substantive right regardless of sequencing, is borne out by the record and was reasonable.

Conclusion [ 20 ] Therefore, the application for judicial review is dismissed and the decision of the adjudicator is upheld. Heard on the 10 th day of May, 2022. Dated at the City of Lethbridge, Alberta this 24 th day of October, 2022. J.C. Kubik J.C.K.B.A. Appearances: Y. Rory Ziv – Ziv Law Group for the Applicant Michael Power – Alberta Justice & Solicitor General, JTI Initiative for the Respondent