Wildman v Alberta (Director of SafeRoads), 2022 ABKB 756

Court of King’s Bench of Alberta Citation: Wildman v Alberta (Director of SafeRoads), 2022 ABKB 756 Date: 20221121 Docket: 2103 12393 Registry: Edmonton Between: Loriann Wildman Applicant - and - The Director, SafeRoads Alberta and the Minister of Justice and Solicitor General of Alberta Respondents _______________________________________________________ Memorandum of Decision of the Honourable Justice A. Woolley _______________________________________________________ Introduction [ 1 ] On July 9 2021, A/Insp.

Rickard issued a Notice of Administrative Penalty (NAP) to the Applicant Loriann Wildman for having a blood alcohol concentration over .08 and driving while impaired. On August 4, 2021, Adjudicator Nowak confirmed the NAP. The Applicant asks this Court to find that Adjudicator Nowak’s confirmation of the NAP was unreasonable. [ 2 ] Relying on the decision of Justice Kubik in Demars v Alberta (Director of SafeRoads) , 2022 ABKB 620 , the Applicant

submits that Adjudicator Nowak committed a reviewable error in relying on the photographs of the alcohol screening devices (ASD) submitted to support the issuance of the NAP. She further submits that the other documents provided to the Adjudicator did not comply with the signature requirements set out in the Provincial Administrative Penalties Regulation , AR 217/2020, ss. 13 - 17 ( PAPR ), and ought not to have been relied on by the Adjudicator.

The Applicant asks that this Court find that Adjudicator Nowak acted unreasonably by relying on the photographs and improperly signed documents to reject the Applicant’s claim that there was insufficient evidence to conclude that the ASD had been properly maintained or calibrated: SafeRoads Regulation , AR 224/2020, s. 4 (f)(vii) ( SAR ). [ 3 ] The Applicant also argues that the documents submitted to the Arbitrator contained errors and inconsistencies with respect to the timing of events that ought to have prevented the Adjudicator from relying on those documents.

She says that by nonetheless considering the submitted documents, and in rejecting the Applicant’s submission that the recipient did not receive complete records, Adjudicator Nowak committed a reviewable error: SAR , s. 4(e)(iii); 4(f)(iii). [ 4 ] In response, counsel for the Director submits that this Court ought not to follow Demars . It imposes “formalistic statutory requirements on the Adjudicator” and does not give sufficient consideration to s. 18 of the Provincial Administrative Penalties Act , SA 2020, c P-30.8 ( PAPA ) and s. 12 of PAPR .

In addition, this case can be distinguished from Demars because, here, the issuing officer’s handwritten notes provided sufficient information about the ASD to support the Adjudicator’s decision. Counsel for the Director further submits that the documents provided to the Adjudicator, including the handwritten notes, complied with the signature requirements set out in the legislation and regulations, which give wide latitude for an adjudicator to consider something a “digital signature”.

As a result, the Director asks that this Court find that Adjudicator Nowak acted reasonably in rejecting the Applicant’s claim that there was insufficient evidence to conclude that the ASD had been properly maintained or calibrated. [ 5 ] Finally, he submits that the records provided did not contain errors or inconsistencies that prevented the Adjudicator from relying on them; the Adjudicator’s use of those records was properly explained and reasonable. [ 6 ] For the reasons that follow, I conclude: 1. The applicable standard of review is reasonableness. 2.

The submission of the photographs in the Submission Export did not comply with s. 17 of PAPR and the photographs could not be used for the truth of their contents in relation to the maintenance and calibration of the two ASD. The Adjudicator committed a reviewable error in relying on the photographs in her decision. This error is sufficient to require the decision to be quashed. 3. The Adjudicator did not commit a reviewable error in finding that A/Insp. Rickard had “digitally signed” the Submission Export.

While methods of signature must be “approved by the Director” to be accepted, there was an evidentiary basis in this case to find that the Declaration in the Submission Export was a form of signature approved by the Director. That is, the Adjudicator’s decision that the Submission Export had been digitally signed in accordance with s. 14 of PAPR was reasonable. 4. The question of whether, in the absence of the photographs, the Applicant can demonstrate grounds to cancel the NAP under s. 4(f) (vii) of SAR is remitted to the Adjudicator for reconsideration.

In that reconsideration the Adjudicator must assess the sufficiency of the information contained in the handwritten notes, including the fact that they do not include all of the information required by s. 2(

c) of SAR . The Adjudicator may not rely on the photographs in her assessment of s. 4(f)(vii). 5. The Adjudicator did not act unreasonably in her assessment of the inconsistencies in the information submitted by A/Insp. Rickard. Issues [ 7 ] The application for judicial review raises the following issues: 1. What is the applicable standard of review? 2. Did the Adjudicator make a reviewable error in relying on the photographs of the ASD included in the Submission Export? 3. Did the Adjudicator make a reviewable error in finding that A/Insp.

Rickard digitally signed the Submission Export relied on by the Adjudicator? 4. If the photographs are excluded, but the signature was sufficient, can the handwritten notes be used to reject the Applicant’s submission that there is insufficient evidence to conclude that the ASD had been properly maintained or calibrated, given that those notes do not contain all of the information listed in s. 2(

c) of SAR ? 5. Did the adjudicator make a reviewable error in her assessment of the inconsistencies in the record? Analysis Standard of Review [ 8 ] The applicable standard of review for Adjudicator Nowak’s decision is reasonableness: PAPA , s. 24(3) ; Norman v Alberta (Director of SafeRoads) , 2022 ABQB 420 at para 16-22 ; Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at para 16-17 . [ 9 ] To determine whether that decision is reasonable I must assess it in light of its underlying rationale to determine whether the decision as a whole is transparent, intelligible and justified: Vavilov at para 15 .

Reliance on the Photographs and Acceptance of the Signature Background [10] In her submissions to the Adjudicator, the Applicant said that there was “insufficient evidence to conclude that the ASD wasproperly maintained or calibrated”. She cited 17(2) of the PAPR which, she argued, requires that the officer confirm a photograph “hasnot been altered in any material way”. The Applicant noted that no such statement was included in the materials provided to theAdjudicator. [11] She argued futher that A/Insp.

Rickard did not properly sign the information he submitted, as required by ss. 13, 14, 16 and 17of the PAPR. [12] The Adjudicator rejected these submissions, finding that the photographs complied with the requirements set out in the“Regulation sections cited by Counsel”, and that the documents were “digitally signed”: I see by the evidence that both ASD machines were within their maintenance and calibration periods at the time they were used by theRecipient. Submissions made by law enforcement are deemed to be made as if under oath for SafeRoads Reviews. As A/Insp.

Rickarddigitally signed the Contravention and included his name, badge number and agency details within, I am satisfied the Regulationsections cited by Counsel have been fulfilled. I am also satisfied that the ASDs used on the Recipient are the same ones photographed inevidence as A/Insp. Rickard recorded the ASD numbers in his notes and report, and those numbers match the tags attached to the ASDmachines in the pictures. Facts [13] The photographs (“pictures”) relied on by the Adjudicator were provided to her through the Submission Export prepared byA/Insp. Rickard.

The Submission Export lists two photographs, “ASD 1.pdf” and “ASD 2.pdf”, and says they were submitted July 10,2021. [14] The Certified Record of Proceedings includes the photographs, although not explicitly matching them to the document names(ASD 1.pdf and ASD 2.pdf) listed in the Submission Export. One photograph shows a machine with Serial #255764, a calibration date ofJune 16, 2021, a calibration expiry date of July 14, 2021, and a service expiry date of March 12, 2022.

The other shows a machine withSerial #255728, a calibration date of June 16, 2021, a calibration expiry date of July 14, 2021, and a service expiry date of March 12,2022. [15] The Submission Export ends with a “Declaration”. Under the declaration is a heading, “Full name of Officer” under which isthe full name of A/Insp. Rickard.

The Declaration has a further heading, “Date of Submission”, under which is the date July 10, 2021.The Declaration then sets out the statement “I solemnly declare the information that I have authored in this my contravention submission,and I make this solemn declaration conscientiously believing it to be true and knowing that it is of the same force and effect as if madeunder oath”. Under that statement it says “Yes”. [16] Nowhere in the Submission Export, including on the photographs themselves, is a statement that the included photographshave “not been altered in any material way”. [17] A/Insp.

Rickard signed the NAP, and provided his Regimental Number, his Police Service and his Detachment on thatdocument. He initialed a correction on his handwritten notes with respect to the time that the Applicant was stopped. The typed generalreport is not signed; it lists A/Insp. Rickard as the author, and has his name written at the bottom. The Submission Export does notinclude anything beyond the above described Declaration.

There is nothing that appears to be a signature, either physical or digital. [18] The Certified Record of Proceedings also did not include any policy or other document from the Director indicating the typeof signatures “ approved by the Director”: PAPR, s. 14. However, the Submission Export appears to be a standard form; I note, forexample, that certain sections are said to be “Required”. It was the form used to submit the information regarding the issuance of theNAP to the SafeRoads Portal. Relevant Law [19] Statutory

interpretation requires me to look at the words of the statute in their entire context. I must interpret the words in theirgrammatical and ordinary sense read harmoniously with the scheme and object of the legislation, and the intention of the legislature:Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27, at para. 21; Bell ExpressVu Limited Partnership v.

Rex,2002 SCC 42, [2002] 2 SCR 559, at para. 26; Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 117. [20] The SafeRoads regime, imposed through the Traffic Safety Act, RSA 2000, c T-6, ss. 87.1-88.3, with administrativeprocedures contained in PAPA, PAPR and SAR, provides a regulatory regime to discourage and prevent drunk driving without imposingthe consequences of a criminal conviction.

It is not a penal system; it is an administrative and regulatory scheme to increase the safety ofroads, and to address the still serious concern about the harm caused by people who drink and drive: Lausen v Alberta (Director ofSafeRoads), 2021 ABQB 896 at para 1-4. [21] PAPA explicitly sets out the legislative intention to create a simple, consistent, proportionate, expeditious, and accessibleprocedure for “administratively enforcing contraventions”: PAPA, s. 2. [22]

Section 18 of PAPA puts the burden of proof on a person requesting review of a NAP. It allows an adjudicator to consider acopy of the NAP (18(2)(a)), the report of the officer who issued the NAP (18(2)(c)), and “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 beensworn or solemnly affirmed” (18(2)(d)). Section 18(3) allows the adjudicator to determine the weight to be given to any document orrecord. Section 18(4) states that the adjudicator “is not bound by the rules respecting evidence applicable to judicial proceedings”. [23]

Section 32 of PAPA states that if something has to be signed it may “instead of being signed, be marked, subscribed,endorsed, acknowledged or given any other form of signification or be otherwise dealt with if so provided for under the regulations”.Arbitrators have interpreted s. 32 as requiring no more than that the name of the person submitting the documents be included: Re VanDer Zwan, 2022 ABSRA 115 at para 19; Re Lasante, 2021 ABSRA 910 at para 16; Re Janvier, 2022 ABSRA 1583 at para 12; Re Vanden Hazel, 2021 ABSRA 122 at para 9. [24] Consistent with s. 18 of PAPA,

section 12 of PAPR allows an adjudicator to consider “any relevant records submitted by anofficer or an officer’s agent in relation to the contravention”. [25]

Section 13 of PAPR allows documents “signed by a person who is authorized to perform a function” to be admitted as “proofof facts stated in the document that relate to a function the person is authorized to perform”. The signature and the person’s office do notneed to be independently proven. [26]

Section 14 of PAPR sets out the requirements for a document to be considered to have been signed: Where the Act or this Regulation requires a notice of administrative penalty, confirmation, report, notes or other document to be signedby an officer or other person, the requirement is satisfied if the notice or other document is signed, marked, subscribed, endorsed,acknowledged or otherwise signified by the officer or other person in any manner approved by the Director. (2) the Director may approve any manner of signification of a document, including any manner of signification by electronic means, thatthe Director considers appropriate and may approve (

a) different manners of signification for officers than for other persons, or (

b) different manners of signification for different types of documents. [27]

Section 15 of PAPR allows documents to be submitted through “electronic means approved by the Director”. [28]

Section 16 of PAPR permits an officer who issued a NAP to submit documents electronically if the “document is signed bythe officer and states the officer’s name, badge or regiment number” and the means to transmit the document “are protected by apassword issued in confidence to the officer or other person transmitting the document or by another method that is reasonably securedagainst unauthorized use”. [29]

Section 17 of PAPR further specifies the requirements for a document to be signed under s. 14: 17(1) For the purposes of

section 14 of the Act and section 3(1)(d)(iv), an officer who issues a notice of administrative penalty mayconfirm the notice by signing a statement that the officer has reasonable grounds to believe that the contravention occurred.

(2) For the purposes of

section 14 of the Act, where any report, notes or other document, other than a notice of administrative penalty, iscreated, registered, issued, stored, recorded or transmitted by electronic means for any purpose under the Act or this Regulation, anofficer may confirm the report, notes or other document by signing a statement that the content of the report, notes or other document istrue, or in the case of a photograph that the photograph has not been altered in any material way, based on (

a) the officer’s personal knowledge, or (

b) the officer’s information and belief, if the basis of the information and belief is reasonably clear from the document, is set out in thestatement or is otherwise disclosed by the officer. [30] In Demars, Justice Kubik held that

section 17 creates a separate and mandatory obligation that an officer confirm that aphotograph has “not been altered in any material way” for that photograph to be given the evidentiary presumption contained in s. 13 ofPAPR. She quashed the decision made based on photographs submitted without such a statement: Demars at para 18-20.

Justice Kubikalso accepted, although this issue does not appear to have been argued before her, that a declaration akin to that included in theSubmission Export here could be treated as an electronic signature: Demars at para 12. [31] In R v Sullivan, 2022 SCC 19 at para 4, the Supreme Court confirmed that a Court of concurrent jurisdiction ought to treatprior decisions as binding unless one of the exceptions set out in Re Hansard Spruce Mills, (BC SC), [1954] 4 DLR590 (BCSC) applies: I will only go against a judgment of another Judge of this Court if: (

a) Subsequent decisions have affected the validity of the impugned judgment; (

b) it is demonstrated that some binding authority in case law, or some relevant statute was not considered; (

c) the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies of thetrial require an immediate decision without opportunity to fully consult authority. Spruce Mills at para 4. Determination

Use of the Photographs In Rejecting Submissions Made Pursuant to s. 4(f)(vii) of SAR [ 32 ] I am satisfied that Adjudicator Nowak’s consideration of the photographs in relation to whether the ASD had been properly maintained and calibrated was unreasonable. Her reasons, which state that A/Insp. Rickard’s “digital signature” is sufficient to allow her to conclude that the “Regulation sections cited by Counsel have been fulfilled”, does not engage with the content of s. 17, or the failure to include the statement that the photographs have not been altered.

Her reasons do not justify, or make transparent and intelligible, her conclusion that the regulations have been fulfilled despite the non-compliance with s. 17. [ 33 ] Demars makes it clear that the statement that the photographs have not been altered is mandatory and must be included for the photographs to be admitted as proof of the facts they contain under s. 13. I see no basis on the criteria set out in Spruce Mills for ignoring the direction Demars provides in this respect. [ 34 ] I also am persuaded by Justice Kubik’s reasoning on this issue.

I acknowledge the point, emphasized by counsel for the Director, that s. 18 of PAPA allows an adjudicator to consider records that have not been sworn or solemnly affirmed, and that s. 12 of PAPR allows an adjudicator to consider “any relevant records”, and does not set out any requirement that those records be signed, authenticated, sworn or affirmed. [ 35 ] The difficulty with the Director’s position, however, is that for an adjudicator to rely on the photographs to support rejecting an argument about the maintenance and calibration of the ASD, they must use the photographs for the truth of their contents.

The photographs can only be used in that way if the requirements of s. 13 have been satisfied.

Section 13 requires a document to be signed.

Section 14 defines what will satisfy a signature.

Section 17 provides further specificity around what must be done to satisfy the signature requirement in s. 14. I, like Justice Kubik, interpret meeting the requirements set out in s. 17 as a precondition for a photograph to be “signed” under s. 14, and to be relied upon for the truth of its contents under s. 13. [ 36 ] As well as being supported by the language of the PAPR , this approach ensures that the SafeRoads procedure is fair as well as efficient. Or, to use the language of s. 2 (

c) of PAPA , that the process includes “procedural safeguards” proportionate to the regulatory nature of the proceeding. The photographs and documentary record used by adjudicators in review hearings are hearsay; the person who created the record does not testify as to their truth, accuracy or completeness. That person is not cross-examined. From a traditional evidentiary perspective, the evidence has problems related to both accuracy and reliability. By requiring, as s. 17 of PAPR does, that the officer confirms the truth and accuracy of the documents and photographs, those concerns are alleviated.

Section 17 provides the necessary “procedural safeguard”. [ 37 ] As such, by relying on the photographs, and not addressing the non-compliance with s. 17 of PAPR , the Adjudicator’s decision was unreasonable. Finding that The Submission Export was “digitally signed” [ 38 ] In her decision, Adjudicator Nowak stated that A/Insp. Rickard “digitally signed” the Submission Export. She did not, however, explain why answering “yes” to a question in a form could qualify as a signature. She did not address specifically the position of the Applicant that A/Insp.

Rickard had not met the requirements of ss. 13, 16 and 17 of the PAPR . Whether the Adjudicator’s decision in this respect is reasonable thus requires further consideration. [ 39 ] The answer to the question of whether the Declaration on the Submission Export qualifies as a “signature” for the purposes of ss. 13, 16 and 17 of PAPR , turns on the

interpretation of s. 14 of PAPR and s. 32 of PAPA . [ 40 ] The key question with respect to s. 32 is how to interpret what is modified by the words “if so provided for under the regulations” in the phrase “Where a document used under this Act is to be signed, that document…may, instead of being signed, be marked, subscribed, endorsed, acknowledged or given any other form of signification or be otherwise dealt with if so provided for under the regulations”.

Specifically, does “if so provided for under the regulations” expand the possible forms of signature, modifying only “or be otherwise dealt with”, or does it require all the alternative forms of signature listed in the provision – such as marking or subscribing – be “provided for under the regulations” in order to be acceptable?

That is, does “if so provided under the regulations” modify all of the prior alternatives listed in s. 32 , or does it modify only “or be otherwise dealt with”? [ 41 ] Similarly, the key question with respect to s. 14 is how to interpret what is modified by the words “approved by the Director” in the phrase “Where the Act or this Regulation requires a …document to be signed…the requirement is satisfied if the notice or other document is signed, marked, subscribed, endorsed, acknowledged or otherwise signified by the officer or other person in any manner approved by the Director”.

Specifically, does the requirement of Director approval expand the possible forms of signature – to any manner the Director approves – or does it require all alternative forms of signature, including marking, subscribing, endorsement, acknowledging or otherwise signifying to be “approved by the Director” to be acceptable? That is, does “approved by the Director” modify all the prior alternatives listed in s. 14, or does it modify only “in any manner”? [ 42 ] In my view the proper

interpretation of s. 32 is that “if so provided under the regulations” modifies all the possible alternative forms of signature. That is, the acceptable forms of signature include any alternative within the categories set out in s. 32, so long as that is provided for under the regulations. For something other than a signature to be sufficient to constitute a signature, it must be provided for under the regulations. I reach this conclusion in part because otherwise it is not clear how a decision-maker could determine whether or not a document has been signed.

The term “any other form of signification” seems so broad as to risk being meaningless. The meaning of “marked” or “acknowledged” is also not self-evident.

Section 32 authorizes the regulations to approve a broad range of options as sufficient to qualify as a signature but does not itself grant that approval. [ 43 ] Notably, the regulations do, in fact, provide guidance as to what is sufficient to constitute a signature in s. 14. The reproduction of the language of s. 32 in s. 14 – “signed, marked, subscribed, endorsed, acknowledged or otherwise signified” – suggests that the drafters of PAPR understood the need to address the sufficiency of those mechanisms for signature in the regulations. If they did not, it is not clear why those parts of s. 14 were included; the approval in s. 32 would be sufficient in itself.

[ 44 ] For similar reasons, I find that “approved by the Director” qualifies all of “signed, marked, subscribed, endorsed, acknowledged or otherwise signified by the officer or other person in any manner”. Again, absent some authorization by the Director, the term “otherwise signified”, “marked”, and “acknowledged” risk being unduly broad and vague. If the purpose of the regulatory provision is to provide clarity to signatories and decision-makers, this provision would not obviously do so if no further direction were provided.

Further, unless “approved by the Director” is viewed as a generally applicable requirement, it is hard to see how s. 14 clarifies or provides greater specification to s. 32 ; in that event it would reproduce with minor differences the statutory requirements in the regulations while adding nothing beyond the point that additional – “any manner” – forms of signature must be approved by the Director. [ 45 ] The difficulty with these

interpretations is they take what appear to be broad authorizations – any of the following can be used as a signature – and remove their ability to be self-executing in their grant of authorization. Under this

interpretation, none of the things specifically listed in s. 14 or s. 32 will count as a signature unless approved by the Director. That problem disappears, however, if the sections are understood not as authorizing the signatory to a document to sign it in any manner listed in the provisions, but rather as granting broad authority to the executive to define what will be a signature in the regulations ( s. 32 ) and as the executive using the regulations to grant broad authority to the Director to define what will be a signature (s. 14). The point of this

interpretation of the provisions is not to narrow the authorization of different forms of signature, but to properly reflect to whom the power of authorization has been granted. [ 46 ] Interpreting s. 14 of PAPR as directed at empowering the Director is supported by the language of s. 14(2), which emphasizes the broad authority of the Director to approve different types of signification for different officers or records. That subsection shows the intention underlying the provision, which is to grant authority to the Director, not to empower a signatory to use whatever type of signification that person sees fit. [ 47 ] That

interpretation also makes sense as a legislative and regulatory choice. Why would a statutory or regulatory provision allow any person responsible for signing a document to decide what that signature should look like, particularly given that signatures have meaningful legal effect?

Granting the authority to the executive generally, and then to the Director specifically, is sensible in a way that granting the signatory authority to decide how to sign a document is not. [ 48 ] In sum, I find that for a method of signification to qualify as a signature for the purposes of PAPR it must be one approved by the Director. [ 49 ] The question then is, was it reasonable for the Adjudicator to find that A/Insp. Rickard’s completion of the Declaration on the Submission Export was a method of signature approved by the Director?

In framing the question this way, I am interpreting Adjudicator Nowak’s reference to “digital signature” as meaning, “a form of signature approved by the Director under s. 14”. I adopt this

interpretation to reflect the deferential standard of review applicable to decisions of the Adjudicator. [ 50 ] I find that Adjudicator Nowak’s decision was reasonable in this respect. The Submission Export is a standard form used to upload information to the SafeRoads Portal. It has no signature line. It allowed the officer to include his personal information, and to affirm the declaration of truth by saying “yes”.

Nothing in the record suggests that the officer had any other available means to sign the form. [ 51 ] It would, as I suggested to counsel for the Director, be helpful for the Director to provide explicit direction with respect to the approved forms of signature under s. 14, and to provide that direction to adjudicators (which could then be part of the Certified Record of Proceedings in a judicial review). However, I cannot say that Adjudicator Nowak’s treatment of the Declaration as a digital signature was unreasonable given the information available to her.

Effect of the Handwritten Notes [ 52 ] The prior analysis held that Adjudicator Nowak’s reliance on the photographs was unreasonable given the absence of a statement attesting to their authenticity, but that she acted reasonably in accepting the rest of the record as properly submitted under an approved form of signature by A/Insp.

Rickard. [ 53 ] That creates an issue not directly considered by Adjudicator Nowak, but raised by counsel for the Director before me, which is whether the remainder of the record before the Adjudicator was sufficient to render reasonable her rejection of the Applicant’s argument that the NAP ought to be struck under s. 4(f)(vii) of SAR because there was “insufficient evidence to conclude that the ASD was properly maintained or calibrated”. [ 54 ] Counsel for the Director emphasized that while Adjudicator Nowak referred to the photographs in her decision (in the paragraph earlier excerpted), she also referred to the fact that “A/Insp.

Rickard recorded the ASD numbers in his notes and report”, and determined that she could “see by the evidence that both ASD machines were within their maintenance and calibration periods at the time they were used by the Recipient”. The photographs were not the sole basis for her decision. He submitted that, even if the photographs are excluded, Adjudicator Nowak had before her, and relied upon, sufficient evidence to reasonably conclude that the ASD machines were within their maintenance and calibration periods. [ 55 ] In A/Insp.

Rickard’s handwritten notes he provides information about the two ASD used on the night of the checkstop which resulted in Ms. Wildman receiving a NAP. The notes list serial number 255764 with “Service: 2022/03/12”, and “Cal: 2021/07/14”. They list Serial number 255728 with “Service: 2022/03/12” and “Calibration: 2021/07/14”. [ 56 ]

Section 4(f)(vii) of SAR establishes grounds for cancelling a NAP if an ASD “has not been annually maintained” or “was outside its calibration period”.

Section 2(

c) of SAR provides that where there has been a request for review, the Director shall provide for an approved screening device the “expiry date of the last annual maintenance performed on the device” and “the date of the last calibration of the device and the expiry date of that calibration for the device”.

[ 57 ] The question of the adequacy of disclosure in relation to the requirements of s. 2(

c) of PAPR was not raised by the Applicant in the original application for review, and I have no decision to review in relation to whether adequate disclosure was provided with respect to the ASD: Isley v Alberta (Director of SafeRoads) , 2022 ABQB 249 at para 61-63 ; Wagner v Alberta (Director of SafeRoads) , 2022 ABQB 252 at para 20-23 . [ 58 ] Given, however, that the Director seeks to justify the Adjudicator’s decision based solely on the handwritten notes, it is fair for the Applicant to be able to rebut that justification through pointing out that the handwritten notes do not comply with s. 2(c).

The point of the Applicant’s argument in that respect is not to introduce a new issue in relation to disclosure. Rather, it is to submit that, absent the photographs, grounds to cancel the NAP under s. 4(f)(vii) necessarily exist, because the information set out in s. 2(

c) is not before the Adjudicator in a format entitled to the evidentiary presumption in s. 13 of the PAPR . In essence, the Applicant is arguing that without the three pieces of information set out in s. 2(c), a NAP ought to be cancelled under s. 4(f)(vii) because there is insufficient evidence to show that the ASD has been annually maintained and is within its calibration period. That argument is properly before me. [ 59 ] Before considering that argument, it is necessary to clarify the nature of an applicant’s burden of proof under s. 18(1) of the PAPA .

An applicant’s burden of proof must be understood in relation to the evidence provided to an adjudicator to support the issuance of the NAP. If an applicant can demonstrate, for example, that an adjudicator received no evidence admitted for the truth of its contents that demonstrates the maintenance or calibration period of an ASD, that would be sufficient to show grounds to cancel the NAP under s. 4(f)(vii). An applicant does not, in other words, need to positively establish that the ASD is outside its maintenance or calibration period.

It is enough for an applicant to demonstrate that there is insufficient evidence to establish that the ASD was within its maintenance or calibration period. To put it slightly differently, an applicant’s burden of proof is in relation to the “review” ( s. 18(1) ) not in relation to the underlying offence.

An applicant needs to establish grounds for cancellation based on the evidence provided with respect to the issuance of the NAP; they do not need to prove the positive fact that the ASD was outside its maintenance or calibration period. [ 60 ] In my view, the question of whether the Applicant has discharged her burden of proof so as to show grounds to cancel the NAP under s. 4(f)(vii) must be sent back to the Adjudicator for reconsideration. I am not satisfied that I can infer a reasonable basis for the result reached by the Adjudicator once I exclude the photographs from her analysis.

Her reasons rely on the photographs; without the photographs I do not know what reasons she would have provided, and whether those reasons would have been justifiable, transparent and intelligible. [ 61 ] With respect to the legal framework for her decision on reconsideration, I find that while the requirements of s. 2(

c) must be taken into account in assessing whether there were grounds for cancellation under s. 4(f)(vii), the requirements of s. 2(

c) are not themselves incorporated into s. 4(f)(vii). That is, I do not find that a NAP must be cancelled under s. 4(f)(vii) solely because the adjudicator is missing evidence establishing the date of last calibration, the date of the expiry of calibration or the date of expiry of maintenance.

Section 4(f)(vii) allows a NAP to be cancelled where the Adjudicator is satisfied that the ASD has not been properly maintained, or is not within its calibration period. As just explained, an adjudicator must make that determination based on whether there is sufficient evidence to show that the ASD has been properly maintained and is within its calibration period, taking into account the requirements of s. 2(c).

However, the absence of one fact – in this case, the date of the last calibration – does not dictate the outcome for the adjudicator’s assessment of the sufficiency of the evidence in relation to s. 4(f)(vii). [ 62 ] Rather, an adjudicator must consider whether there are grounds to cancel the NAP under s. 4(f)(vii) in light of s. 2(

c) and of all the evidence properly before them which includes, here, the fact that the handwritten notes list the serial numbers for two machines, a future date in relation to “service” and a future date in relation to “Calibration” or “Cal”. Those handwritten notes do not explicitly refer to an expiry date. They do not include the date of the last calibration. They use the word service instead of maintenance. They use the abbreviation “Cal”.

Nonetheless, it is for the Adjudicator, not for this Court, to determine whether the Applicant can challenge that evidence (and any gaps and deficiencies it contains) so as to establish grounds to cancel the NAP under s. 4(f)(vii) of SAR . [ 63 ] As such, while Adjudicator Nowak’s consideration of the photograph justifies quashing her decision, in my view the appropriate remedy is for the matter to be remitted to her for reconsideration of the s. 4(f)(vii) issue, not for the NAP to be cancelled.

Inconsistencies in the Record [ 64 ] The Applicant also raised concerns with respect to the documents submitted by A/Insp. Rickard, noting that the handwritten notes say that Ms. Wildman was stopped at 20:55, but that time is crossed out and 19:55 is handwritten in, with initials beside it. The handwritten notes say the first test was done at 20:10, and the second test was done at 20:15. The Notice of Administrative Penalty says that the occurrence time was 20:10. The typed general report says that the Applicant was stopped at 20:55, her first test was done at 20:10, and her second test at 20:15.

The Submission Export does not list the time Ms. Wildman was observed or stopped, but lists the “occurrence time” as 20:10, the time of the “ASD Demand” as 20:56, and “Time ASD Test Started” as 20:56. It lists the time of the second ASD test as 20:15. [ 65 ] The Applicant submitted that these inconsistencies created grounds to cancel the NAP under s. 4(e)(iii) – they were sufficiently deficient to mean that the Director provided the Applicant with “incomplete records”. [ 66 ] The Applicant noted the importance of the issue of the timing of the ASD to Ms. Wildman – Ms.

Wildman said she had consumed alcohol within the 15 minutes prior to being stopped, so the timing of the test was important to ensure it had not been contaminated by mouth alcohol. [ 67 ] Adjudicator Nowak rejected the Applicant’s submissions with respect to the sufficiency of the record. With respect to the inconsistency in the notes, she said: The Contravention details show the Recipient was stopped and the first breath sample was taken at the same time, which is contradictory to the notes A/Insp. Rickard made.

Because he made a notation of it, and his notes and report are comprehensive, I am satisfied that A/Insp. Rickard waited 15 minutes before taking the first breath sample. Counsel relied on inconsistencies within the police submissions as her argument, Recipient failed to provide evidence or her alcohol consumption or of an alternative sequence of events to convince me

otherwise”. [ 68 ] That is, Adjudicator Nowak found that given that Ms. Wildman did not provide any information about the timing of events, and given the original note taking, the later inconsistency in the officer’s own record was of no consequence. [ 69 ] Counsel for the Director submitted that Adjudicator Nowak’s decision was reasonable. He noted that in essence there was one error – recording the time in the handwritten notes as 20:55 – which, while corrected in the original, carried forward to subsequent documents.

The time of 20:56 was the time of the “ASD demand”, which would match with when the test was requested, ignoring the error of substituting “20” for “19”. The time of 20:56 in “Time ASD started” would reflect the timing of the demand. [ 70 ] I accept Adjudicator Nowak’s decision as reasonable in this respect. She explains the basis for her decision on the issue and refers to the relevant evidence. Her reasons for accepting the records as supporting the NAP despite their inconsistencies were explained.

She was not putting an onus on the Applicant to prove her innocence of the underlying offence but, rather, saying that in this case, given the ability to make sense of the Officer’s notes, the Applicant had not discharged her burden of proof on review. I find Adjudicator Nowak’s reasons to be justifiable, transparent and intelligible on this point. Conclusion [ 71 ] Based on the foregoing analysis, I quash Adjudicator Nowak’s decision, and remit the matter back for further review on whether, with the exclusion of the photograph, there are grounds to cancel the NAP pursuant to s. 4(f)(vii) of SAR.

Heard on the 3 rd day of November, 2022. Dated at the City of Calgary, Alberta this 21st day of November, 2022. A. Woolley J.C.K.B.A. Appearances: Shannon Gunn Emery for the Applicant Jas Sadhra for the Respondent