Comeau v Alberta (Director of SafeRoads), 2023 ABKB 140

Court of King’s Bench of Alberta Citation: Comeau v Alberta (Director of SafeRoads), 2023 ABKB 140 Date: 20230310 Docket: 2103 09602 Registry: Edmonton Between: Jason Comeau Applicant - and - Alberta (Director of SafeRoads) Respondent _______________________________________________________ Reasons for Judgment of the Honourable Justice K.D. Nixon _______________________________________________________ Judicial Review from G. Gill May 27, 2021 I.

Introduction and Background [ 1 ] This is an application for judicial review of Adjudicator Gill’s decision to uphold a Notice of Administrative Penalty (“NAP”) issued to Jason Comeau (“Applicant”) pursuant to the Traffic Safety Act, RSA 2000 c T-6 ( TSA ) and SafeRoads Alberta Regulation , Alta Reg 224/2020 ( SAR ), (“SafeRoads Alberta”). [ 2 ] In Korteweg v Alberta (Director of SafeRoads), 2022 ABQB 236 , I reviewed the legislative background and administrative review provisions of the SafeRoads regime (paras 2 - 8). I will not review them again in this decision.

II. History A. Circumstances of the Issuance of the NAP [ 3 ] On April 28, 2021, the Royal Canadian Mounted Police (“RCMP”) received a report from an employee at Boston Pizza in Fort McMurray that two intoxicated males had left the restaurant, and that one of the males was driving. The driver, later identified as Jason Comeau, and his vehicle were located by RCMP at the home of the Applicant's friend, Mr. Ostafichuk. An RCMP officer issued an ASD demand of the Applicant at 9:51 p.m. The Applicant refused to provide a breath sample until he spoke with a lawyer.

The officer explained to the Applicant that refusing to provide a breath sample was a criminal offence. The Applicant refused a second time, after which he was arrested for obstruction and failure to provide a breath sample and was read his Charter rights and the Charter caution. He was handcuffed and placed in the back of a police vehicle. [ 4 ] The Applicant was provided with an opportunity to place a call to a lawyer but was unable to do so as both his and Mr. Ostafichuk's cell phones were dead. The officer uncuffed the Applicant and offered the Applicant an opportunity to provide a breath sample.

The Applicant then made 15 attempts to provide a sample, but the ASD readings showed “insufficient flow.” Although the officer suspected the Applicant was blocking the straw with his tongue and showed the Applicant that the device was functioning properly, the officer requested another ASD device as the Applicant believed the first device was defective. [ 5 ] At 10:26 p.m., the Applicant blew a FAIL on the second ASD, which means his Blood Alcohol Content (“BAC”) was equal to or greater than 100 mg per 100 mls of blood (100 mg%), a level at which all individuals are impaired in their ability to operate a motor vehicle regardless of their tolerance to alcohol.

By this time, more than two hours had passed since the Applicant had stopped driving. [ 6 ] The officer issued a NAP to the Applicant pursuant to s 88.1(1)(

b) TSA on the basis that the Applicant had, within two hours after ceasing to operate a motor vehicle, a BAC equal to or exceeding 80 mg%. When the Applicant did not take the NAP and other forms, the officer placed the documents on top of the belongings the Applicant had removed from his truck. B. The NAP Review 1. Challenges to the NAP [ 7 ] The Applicant requested an oral review by an adjudicator pursuant to s 7 of the Provincial Administrative Penalties Act , SA 2020, c P-30.8 (“ PAPA ”). In the review, the Applicant appeared with his legal counsel and he and Mr.

Ostafichuk filed statements. [ 8 ] The Applicant challenged the NAP on three grounds: 1. s 4(f)(ii) SAR : he was not served with the NAP; 2. s 4(f)(iv) SAR : he did not, within two hours of ceasing to operate a motor vehicle have a BAC equal to or exceeding 80 mg%; and, 3. s 4(f)(

v) SAR : in the event he was unsuccessful on ground two: a. he consumed alcohol after he ceased to operate the motor vehicle; b. after he ceased to operate the motor vehicle, he had no reasonable expectation he would be required to provide a sample of his breath; and; c. his alcohol consumption was consistent with his BAC and having had at the time he was operating the motor vehicle a BAC of less than 80 mg%. [ 9 ] The Adjudicator confirmed the NAP: Comeau (Re) 2021 ABSRA 395 . He concluded that the Applicant had not met his onus to establish on a balance of probabilities any grounds to cancel the NAP. 2.

The Adjudicator’s Decision i. S 4(f)(ii) Was the NAP served on the Applicant? [ 10 ] On the first ground, the Applicant did not dispute that he received the NAP but disputed that he had refused service. He denied the officer handed him any documents. Specifically, the officer left the documents on the Applicant’s golf bag on the ground. The Applicant submitted that proper service would have been handing the NAP documents to the Applicant. [ 11 ] The Adjudicator noted that the Applicant must establish on a balance of probabilities that he did not receive a copy of the NAP at the relevant time.

The Adjudicator accepted the police officer's report that the Applicant had refused to take the NAP. Pursuant to s 87.2(a), TSA , therefore, the NAP was deemed to have been issued at the time the officer attempted to provide it to the Applicant. ii. S 4(f)(iv) did the Applicant, within two hours of ceasing to operate a motor vehicle have a BAC equal to or exceeding 80 mg% [ 12 ] On the second ground, the Applicant stated that he drove from the restaurant just after 8:00 p.m. and arrived at his friend's house around 8:10 p.m. where he parked his vehicle. The ASD FAIL result was obtained at 10:26 p.m.

He argued that because the ASD FAIL was obtained more than two hours after he ceased operating the motor vehicle, he met his onus to cancel the NAP pursuant to s

4(f)(iv), SAR . [ 13 ] The Adjudicator acknowledged that the ASD Fail was not obtained within two hours of the Applicant ceasing to operate a motor vehicle at 8:10 p.m., however, the Applicant had not met his onus to establish that he did not have a BAC equal to or exceeding 80 mg% within those two hours.

The Adjudicator concluded that the Applicant had not consumed any alcohol between 9:45 p.m., when the police arrived, and 10:26 p.m. when he blew a FAIL on the second ASD then went on to calculate whether the Applicant's BAC would have been equal to or over 80 mg% within the two hours since he ceased operating his motor vehicle at 8:10 p.m. Applying the M-3 Alcohol Elimination Rates, a document in the Technical Materials Library, the Adjudicator calculated that the Applicant had a BAC of at least 105-110 mg% at 9:56 p.m.

He concluded: …the consensus elimination rate would be 10 to 20 mg% per hour (or 5 to10 mg% per half hour). This means the Recipient's BAC would have been at least 105 to 110mg% at 9:56 p.m., which is half hour before 10:26 p.m., and within 2 hours after ceasing to operate a motor vehicle at 8:10 p.m. iii. S 4(f)(v) [ 14 ] On the third ground, the Applicant argued that if the Adjudicator found that he had operated the motor vehicle within two hours of the FAIL result, he had met his onus to establish all three criteria in s 4(f)((

v) SAR . First, he consumed alcohol after he parked his car at his friend's house. Second, he had no expectation that he would be required to provide a breath sample. He disputed that the manager told him she would be calling the police or tried to convince him not to drive.

Third, he consumed 6-7 beer and two whiskey drinks at his friend's house, which he submitted is consistent with the FAIL result, and he consumed two beers at the restaurant, which is consistent with a BAC of less than 80 mg% when he drove. [ 15 ] The Adjudicator noted that to be successful on this ground the recipient must prove on a balance of probabilities that; the alcohol was consumed after operation; at the time of consumption the Applicant had no reasonable expectation that a sample of breath would be required and that the post operation alcohol consumption is consistent with a BAC of less than 80 mg % at the time of operation.

The Adjudicator concluded that the Applicant had made out the first element of the test, that is, that he consumed alcohol after he ceased operating the motor vehicle but failed to make out the second and third elements of the test.

The Applicant had a reasonable expectation that a sample of breath would be required and that his post-operation alcohol consumption was not consistent with a BAC of less than 80 mg% at the time of operation of the motor vehicle. [ 16 ] The manager also reported to the police that the Applicant's speech was slurred and she told the Applicant she suspected he had drunk too much, urged him not to drive and told him – “to his face”- she would call the police to report a drunk driver if he left. [ 17 ] In his statement, the Applicant acknowledged that the manager came outside the restaurant and told him the server suspected he had had too much to drink.

He told the manager he had only had two beers with his dinner and was “good to drive.” The manager, who did not serve or attend the table, told him she would go inside and explain this to the server. [ 18 ] The Adjudicator reasoned that although the Applicant denied the manager told him not to drive, it was clear there was a conversation about how much the Applicant had to drink and it made sense that this discussion occurred because the manager thought the Applicant should not be operating a motor vehicle if potentially impaired.

The Adjudicator concluded: Considering the manager had an open discussion with the [Applicant] about possibly having had too much to drink and considering the [Applicant] admits to having consumed alcohol at the restaurant prior to driving, I find that the [Applicant] should have had a reasonable expectation that a sample of breath would be required. [ 19 ] The Adjudicator acknowledged the conflicting evidence between the officer's report and the Applicant's evidence about the amount the Applicant drank at the restaurant.

The police provided information from the restaurant manager who reported that the bartender said the Applicant ordered three beers, a double Jameson mixed drink, and two shots of Fireball and the server said the Applicant had three beers, two doubles and two shots of Fireball. In his statement, Mr. Ostafichuk said that he saw the Applicant drink beer but did not see him having any shots. [ 20 ] The conflicting information left the Adjudicator “wondering exactly how much alcohol the [Applicant] consumed at the restaurant”.

However, as there were six people at the table and the restaurant staff said the table had ordered two rounds of six shots, the Adjudicator concluded that it “does not make sense to me that the group would order a second round of six shots when only five people were drinking the shots.” [ 21 ] The Adjudicator concluded that the Applicant's BAC of 105-110 mg% at 9:56 p.m. would have increased as a result of drinking the 6-7 beers and two whisky drinks he consumed from the time he arrived at his friend's house at 8:10 p.m. and the police arrived at 10:56 p.m., but he could not calculate the Applicant's precise BAC at 8:10 p.m., the time he ceased to operate the motor vehicle, because the Applicant had not provided any evidence of his alcohol absorption rate. [ 22 ] Further, the Adjudicator had “serious doubts” that the Applicant had engaged in only minimal drinking at the restaurant.

He found the statements of the restaurant staff to be “clear, detailed, and consistent with each other” and he had “no reason to believe that staff would have any motive to lie or collude.” He found the actions of the staff consistent with the restaurant taking seriously its duty not to over-serve or facilitate impaired driving. In contrast, he found the Applicant's evidence unlikely and the Interact purchase evidence vague and unsupportive of his story. [ 23 ] The Adjudicator concluded that the Applicant had consumed three beers, at least one double drink, and two shots at the restaurant.

The Applicant had not provided any evidence how this amount of consumption would result in a BAC under 80 mg% during operation of the motor vehicle and the Adjudicator concluded that he could not find that it would.

III. Issues [ 24 ] The Applicant alleges three reviewable errors by the Adjudicator: 1. failing to properly apply the burden of proof; 2. failing to properly exercise the duty of fairness; and, 3. making unreasonable and unsupported findings of fact. IV. Grounds A. Burden of Proof [ 25 ] The Applicant submits that in considering the ground to cancel the NAP pursuant to s 4(f)(iv) SAR , the Adjudicator made a reviewable error in applying the burden of proof.

In the absence of evidence from the police of a BAC over 80 mg% within two hours of ceasing to operate the motor vehicle, there was no basis to issue the NAP and, therefore, no case for him to meet. He submits he met his onus to establish he did not have a BAC equal to or exceeding 80 mg% within two hours of ceasing to operate a motor vehicle by establishing that the ASD FAIL was obtained more than two hours after he ceased operating the motor vehicle. He submits that it was not open to the Adjudicator to extrapolate his BAC within that time frame from a BAC obtained outside that time frame. B.

Duty of Fairness [ 26 ] The Applicant submits that the Adjudicator breached the duty of fairness in two ways. First, he used the affidavit of Kerry Lynn Blake (Ms. Blake) from the Technical Materials Library to defeat the Applicant’s argument with respect to the ground to cancel the NAP pursuant to s 4(f)(iv) SAR without providing the Applicant with the opportunity to respond. Second, his assessment of the evidence with respect to the ground to cancel the NAP pursuant to s 4(f)(

v) SAR was not impartial because he favoured the police evidence without a solid foundation to do so and applied uneven scrutiny between his evidence and the police evidence. C. Unreasonable Findings of Fact [ 27 ] The Applicant submits that the Adjudicator made unreasonable findings of fact, first, in concluding that the Applicant had a reasonable expectation he would be required to provide a breath sample and, second, by using Ms. Blake’s affidavit from the Technical Materials Library as expert evidence in considering the ground to cancel in s 4 (f)(iv) SAR . V.

Standard of Review [ 28 ] The Applicant submits that the standard of review is correctness on the first two issues and reasonableness on the third. The Director agrees that the standard of review is reasonableness on the third issue. It submits that reasonableness is also the standard of review on the first issue. On the third issue, the Director submits that the question is whether the Adjudicator acted fairly in all of the circumstances.

I agree with the Director. [ 29 ] The Supreme Court instructed in Canada (Minister of Citizenship and Immigration ) v Vavilov , 2019 SCC 65 ( Vavilov ) that where the legislature has indicated the applicable standard of review courts are bound to respect that designation within the limits imposed by the rule of law: at para 35.

Section 24(3) PAPA imposes a standard of reasonableness for judicial review of an adjudicator's decision. [ 30 ] In Vavilov , the Court articulated circumstances where respect for the rule of law requires the courts to apply the standard of correctness: legislated standards of review, constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies: para 52. None of these apply here.

Neither does the additional rare circumstance requiring the standard of correctness identified in Society of Composers, Authors and Music Publishers of Canada v Entertainment Software Association , 2022 SCC 30 ( SoCAMP ) apply. [ 31 ] In So C AMP , the court held that the standard of correctness applies where the court and a tribunal have concurrent first instances jurisdiction over a legal issue. The Applicant submits that concurrent jurisdiction arises here because a driver stopped by police may by subject to a criminal charge decided by the courts or an administrative penalty under the SafeRoads regime.

I disagree. The exclusive jurisdiction to review a NAP is vested in the Director and the delegated adjudicators: PAPA ss 10 and 11. NAPs are reviewed by SafeRoads adjudicators under PAPA and its regulations. There are no criminal or quasi-criminal consequences to a NAP. Adjudicators decisions are final and reviewed by the court on an application for judicial review: PAPA ss 22(2) and 24(2)) [ 32 ] The standard of review on issues of procedural fairness was discussed in Schwab v Alberta (Director of SafeRoads), 2022 ABQB 244 at paras 15-17 .

The court noted the clear distinction between a review on the merits of a decision and a review related to a breach of natural justice. Where a breach of a duty of fairness is alleged, the question is whether the administrative process was unfair considering all the circumstances: Vavilov at para 77 . VI. Analysis

A. Burden of Proof [ 33 ] The Applicant concedes he had the burden of proof to establish a basis in the review before the Adjudicator to cancel the NAP: s 18(1) PAPA . He submits, however, that there was an initial burden on the police to provide evidence of his BAC within two hours of ceasing to operate a motor vehicle; that is, evidence that there was a contravention of TSA s 88.1(1)(

b) to issue the NAP. In the absence of such evidence there was no burden on him to establish he did not have a BAC equal to or exceeding 80 mg% within two hours of ceasing to operate a motor vehicle for the NAP to be cancelled pursuant to s 4(f)(iv) SAR .

He submits that the police did not establish on a prima facie basis that his BAC was equal to or exceeding 80 mg% within two hours of ceasing to operate a motor vehicle and there was no onus on him to establish what it was not. [ 34 ] The Applicant submits that the Adjudicator erred in filling in the gap in the evidence by extrapolating his BAC within the two hours of ceasing to operate a motor vehicle from his BAC obtained outside that period and, further, that the Adjudicator's extrapolation was illogical. [ 35 ] The Adjudicator concluded that the Applicant had not consumed any alcohol between 9:45 p.m., when the police arrived, and 10:26 p.m. when the ASD FAIL result was obtained.

He reasoned that because the Applicant’s BAC was at least 100 mg% at 10:26 p.m., it would have been 105-110 mg% at 9:56 p.m. (within two hours of ceasing to operate a motor vehicle) based on the elimination rate of 10-20 mg% per hour (5-10 mg% per half hour).

In other words, for his BAC to be 100 mg% at 10:26 p.m. he must have had a BAC of 105-110 mg% at 9:56 p.m. because he would have eliminated 5-10 mg% of alcohol in the 30 minutes between 9:56 p.m. and 10:26 p.m. (during which time he was not consuming alcohol). [ 36 ] The Applicant submits that the Adjudicator’s methodology was illogical and defeats the purpose of the two-hour window because no scenario, regardless how far beyond the two hours window the FAIL result was obtained, would result in a BAC under 80 mg% within two hours of operating a motor vehicle.

For example, if a FAIL result were obtained one hour outside the two-hour window, applying the Adjudicator’s methodology would result in a BAC at two hours of 110-120 mg%. If a FAIL result were obtained three hours outside the two-hour window, the BAC at two hours would be 130-160 mg% and so on.

The Applicant submits that it is illogical that the further from the two-hour window the FAIL is obtained, the higher the BAC will be during the two hours window. [ 37 ] I find the Adjudicator did not act unreasonably in placing the burden on the Applicant to prove on a balance of probabilities that his BAC was not equal to or over 80 mg% within two hours of ceasing to operate the motor vehicle. It is clear that the burden of proof to establish a ground to cancel the NAP is on the Applicant: s 18(1) PAPA .

There is no “shifting burden” as the Applicant asserts. [ 38 ] Further, the Adjudicator’s calculation of the Applicant’s BAC within two hours of ceasing to operate a motor vehicle using the elimination rate from the Technical Materials Library was not unreasonable. The further the FAIL is obtained from the two-hour window, the higher the BAC will be within the two-hour period if no alcohol was consumed during the period to which the elimination rate is applied. In the present case, the Applicant did not consume any alcohol between 9:45 p.m. and 10:26 p.m.

He would have been eliminating alcohol at 10-20 mg% per hour from 9:45 p.m. with a reducing BAC. In order for his BAC to be 100 mg% at 10:26 p.m., his BAC at 9:45 p.m. had to be higher. Had his FAIL result been obtained even later than 10:26 p.m., and no further alcohol was consumed after 9:45 p.m., his BAC at 9:45 p.m. would have been even higher. There is nothing illogical about this. [ 39 ] The onus was on the Applicant to establish he did not have a BAC over 80 mg% within two hours of ceasing to operate the motor vehicle to cancel the NAP pursuant to s 4(f)(iv) SAR .

The Adjudicator’s calculation of his BAC using the elimination rate was reasonable. Even if the Adjudicator’s calculations of his BAC was incorrect, the Applicant did not meet his onus to show that his BAC was under 80 mg%. B. Duty of Fairness [ 40 ] The Applicant submits that the Adjudicator breached the duty of fairness in two ways. The first breach of the duty of fairness alleged by the Applicant is the Adjudicator’s use of Ms.

Blake’s affidavit to calculate his BAC without providing him with the opportunity to respond. [ 41 ] The Applicant submits that on his own initiative the Adjudicator “built up a case against him” and failed to provide him with a reasonable opportunity to respond to that case, thereby breaching the duty of fairness. Specifically, the Applicant submits the Adjudicator failed to advise him he was relying on the affidavit of Ms.

Blake in the Technical Materials Library (TML) to calculate the BAC and failed to provide him with the opportunity to call evidence or make submissions about the use of the materials and the appropriateness of the BAC calculation. [ 42 ] The Applicant acknowledges that the TML is available to all applicants before the review but submits it was impossible for a NAP recipient to familiarize himself with its contents and to respond to issues raised by adjudicators.

The Applicant submits the Adjudicator had an obligation to advise him not only what materials the Adjudicator was relying upon but also to disclose his BAC calculations at the review and give him an opportunity to provide evidence and make submissions in response. [ 43 ] I find no breach of the duty of fairness by the Adjudicator in using Ms. Blake’s affidavit. Section 18(2) PAPA sets out the evidence an adjudicator may consider. This includes scientific, technical, and medical information provided by the Director pursuant to s 4 PAPA , collectively the TML.

The Applicant had notice prior to the review that the adjudicator may consider the materials in the TML. The Terms and Conditions the Applicant agreed to prior to the review expressly refer to the TML as materials the adjudicator may consider. The TML is made publicly available online and available to the Applicant and his counsel prior to the review. The Applicant had the opportunity to respond to the TML materials and to provide any records, representations, arguments, and evidence he wished to support his challenge to the NAP: s 18(2)(

b) PAPA . [ 44 ] The second breach of the duty of fairness alleged by the Applicant is that the Adjudicator favoured the police evidence over his own and applied uneven scrutiny between his evidence and that of the police. The Applicant submits the Adjudicator’s assessment of

credibility was unfair. [ 45 ] In support of his position that the Adjudicator unfairly assessed credibility, the Applicant points to the Adjudicator’s acceptance of the police evidence over his in rejecting the challenge to the NAP pursuant to s 4(f)(ii) SAR on the basis it was not served on him. [ 46 ] In accepting the police evidence that the Applicant refused to take copies of the forms over that of the Applicant, who denied he refused, the Adjudicator noted a pattern of non-cooperation with the police in refusing to blow into the ASD and in refusing to sign the forms indicating he requested a second test.

The Adjudicator described the police notes as detailed and clear. He could see no reason for the police to lie in this instance nor could he find any room for the officer to be mistaken about having attempted service. He noted that the officer had taken pains to explain the NAP to the Applicant, to alert him to an appeal, and to document the encounter in detail. The Adjudicator further noted the Applicant did not dispute that the officer explained the NAP and alerted him to the appeal process set out in the NAP nor did he dispute that he picked up the documents after the police left.

He concluded, therefore, that the Applicant’s version of events unlikely. [ 47 ] While the Applicant does not challenge the Adjudicator’s decision that he failed to establish that he was not served with the NAP as ground to cancel the NAP, he submits the Adjudicator’s assessment of the evidence in respect of this ground demonstrated that the Adjudicator gave a much higher level of scrutiny to his evidence than to that of the officer.

In particular, he submits that in finding the officer and staff “had no reason to lie”, the Adjudicator assumed that the Applicant did and, therefore, gave unfair preference to the police and staff evidence about the amount he drank at the restaurant. The Applicant submits that in doing so, the adjudicator made the same error as the Alberta Transportation Safety Board made in Lewis v Alberta (Transportation Safety Board ), 2014 ABQB 412 . [ 48 ] In Lewis , the court found that the Board had assumed the officer’s notes were truthful and conversely, Mr. Lewis was dishonest thereby placing an unfair burden on Mr.

Lewis to rebut a presumption of honesty on the part of the officer. The court found that the Board had given a manifestly unfair preference to the officer’s evidence based on the detail in the officer’s notes. The court noted that a police officer’s motivation to have detailed notes was distinguishable from a motivation to be truthful and must not elevate a police officer’s credibility above that of the applicant. [ 49 ] The Applicant, in this case, raises questions about the accuracy of the information the police received from restaurant staff regarding the amount of alcohol he consumed.

He submits that these inaccuracies were not considered by the Adjudicator. He also submits that the officer’s actions with respect to criminal charges ought to have factored into the credibility analysis. Counsel for the Applicant noted that it was unclear why the police chose to arrest the Applicant for refusal and obstruction instead of just issuing the NAP on the basis of excessive blood alcohol content. [ 50 ] The Adjudicator is authorized to determine the weight to be given to any documents, records, representations or evidence: s 18(3) PAPA .

I find no unfairness in the Adjudicator’s analysis of the evidence with respect to the alcohol the Applicant consumed. I agree with the Applicant that an assessment of evidence that equates detail with honesty or assumes one witness is dishonest whereas another is does not meet the duty of fairness. I agree with the Director, that while the Adjudicator’s choice of words may have been unwise, the Adjudicator did not unfairly assess the evidence. He was clearly grappling with credibility and did not start from the assumption that the Applicant was untruthful whereas the restaurant staff were truthful.

The Adjudicator explained why he accepted the restaurant staff’s version of events over that of the Applicant. He had a reasonable basis to do so. C. Unreasonable Findings of Fact [ 51 ] The Applicant challenges two findings of fact of the Adjudicator as being unreasonable. The first finding of fact alleged to be unreasonable is the Adjudicator’s conclusion that the Applicant should have had a reasonable expectation that a breath sample would be required. The Applicant admitted the manager told him the server thought everyone at the table had too much to drink but denied she told him she would call the police.

He asserted that he told the manager he only had two beers with his dinner and was good to drive and that the manager said she would explain that to the server. His friend also told the manager that the Applicant was fine to drive. [ 52 ] Noting that the Applicant did not dispute there was a conversation about the Applicant’s sobriety and the possibility that he had had too much to drink, and his admission that he consumed alcohol, the Adjudicator found that the Applicant should have had a reasonable expectation that a sample of breath would be required.

I find nothing unreasonable about the Adjudicator’s conclusion. As a finder of fact, the Adjudicator has the jurisdiction to determine the weight to be given to evidence: s 18(3) PAPA . It is not for this court to re-weigh the evidence. The conclusion reached by the Adjudicator was logical, transparent and reasonable, and is supported by the evidence. [ 53 ] The second finding of fact alleged to be unreasonable is the elimination rate used by the Adjudicator to calculate the Applicant’s BAC. The elimination rate is based on the opinion of Ms.

Blake set out in an exhibit to her affidavit which forms part of the TML. Ms. Blake’s affidavit is indexed in the TML under the heading “Expert Evidence.” The exhibit setting out the elimination rate is indexed under the heading “Medical”. The Applicant submits that the Adjudicator unreasonably relied on the elimination rate because Ms. Blake is not qualified to give “medical” evidence because her opinion is subjective, not objective and because she is not impartial. [ 54 ] Medical information is defined in s 1(

i) PAPA as “information provided or created by a person who is licensed or authorized by law to practice medicine in the place where the person practices”. It is not disputed that Ms. Blake is not licensed or authorized to practice medicine. [ 55 ] The Adjudicator, however, is not restricted to medical information.

Section 4 of PAPA provides that the Director may establish and maintain publicly accessible scientific, technical or medical information and documents which may be relied on as evidence in a review. The Adjudicator may determine the weight to be given to any relevant scientific, technical or medical information and documents referred to in s 4 PAPA and is not bound by the rules of evidence: s 18 PAPA . The relevant question is not whether Ms. Blake’s evidence is medical information but whether it reasonably fits within the scope of scientific or technical information.

[ 56 ] While “medical information” is defined in s 1(

i) PAPA , scientific and technical information are not. The court in Anderson v British Columbia (Superintendent of Motor Vehicles), 2019 BCSC 422 at para 55 , citing Sutherland v British Columbia (Superintendent of Motor Vehicles), 2018 BCCA 65 held that an expansive scope should be given to “technical, medical or scientific evidence or information” the superintendent was permitted to consider in a review of a driving prohibition under legislation similar to the Alberta SafeRoads regime. [ 57 ] The Director provides the following dictionary

definitions from the Oxford English Dictionary Online as guidance with respect to the

interpretation of what qualifies as “technical” and “scientific” materials: “technical” includes “of or relating to a particular art or science; originally and chiefly referring to the specialized use or meaning of language in a particular field … of or relating to the formal or practical aspect of art, or its application” and “belonging or relating to the arts or sciences generally: (in later use) of or relating to applied and industrial sciences or to their application or products” “scientific” includes “based on or regulated by science, as opposed to traditional practices or natural skill; valid according to the principles of science.” [ 58 ] Ms.

Blake’s opinions with respect to the elimination rate of alcohol from blood and the BAC at which all individuals are impaired in their ability to operate a motor vehicle are set out in Exhibits E and F to her affidavit. These opinions are clearly technical and scientific information that fall within the scope of s 4 PAPA that may be considered by an adjudicator. Ms. Blake’s curriculum vitae demonstrates her technical and scientific expertise that qualify her to give expert opinion in respect of those matters. The Adjudicator did not act unreasonably in relying on Ms. Blake’s opinions. [ 59 ] Ms.

Blake is a Forensic Alcohol Specialist employed by Alberta Justice and Solicitor General as the Provincial Breath Testing Coordinator responsible for compliance, oversight and support for the province’s breath testing program. She is a past member of the Canadian Society of Forensic Science Alcohol Test Committee, the principal scientific advisor to the Federal Minister of Justice on matters related to the scientific aspects of alcohol and breath testing. Ms. Blake is a member of the Alberta Society of Human Toxicology and the Canadian Society of Forensic Science. [ 60 ] Ms.

Blake’s curriculum vitae sets out her training and research in the areas of alcohol breath testing and the impact of alcohol consumption. This includes research on absorption, distribution and elimination rates.

She has been qualified to give expert opinion evidence in court, including the Court of Queen’s Bench of Alberta, on absorption, distribution and elimination of alcohol from the human body and the effects of alcohol on the human body, particularly as it pertains to impairment in the ability to operate a motor vehicle. [ 61 ] I find no merit to the Applicant’s submission that it was unreasonable for the Adjudicator to rely on Ms. Blake’s opinions because her opinions were not objective and because she was impartial. Specifically, the Applicant submitted that Ms.

Blake was “simply providing her subjective opinion” under the guise of expert opinion because she did not cite any independent studies or authorities in support of her opinions. Experts, however, may rely upon their own experience and expertise in forming their opinions. The Applicant provided no basis to question Ms. Blake’s objectivity or her impartiality. VII. Conclusion [ 62 ] In conclusion, the application for judicial review is dismissed. Heard on the 22 nd day of September, 2022. Dated at the City of Edmonton, Alberta this 10 th day of March, 2023. K.D. Nixon J.C.K.B.A.

Appearances: Shannon Gunn Emery for the Applicant Michael Power – Alberta Justice & Solicitor General for the Respondent