Russell v Alberta (Director of SafeRoads), 2023 ABKB 20

Court of King’s Bench of Alberta Citation: Russell v Alberta (Director of SafeRoads), 2023 ABKB 20 Date: 20230111 Docket: 2103 12589 Registry: Edmonton Between: Morgan Grant Russell Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Decision of the Honourable Justice Bonnie L. Bokenfohr _______________________________________________________ Judicial Review from the Adjudicator K. Magnien Dated the 16 th day of August, 2021

( 2021 ABSRA 743 ) I. INTRODUCTION [ 1 ] This is an application for judicial review of a decision by an Adjudicator to uphold a Notice of Administrative Penalty (NAP) against Morgan Grant Russell (the Applicant) under the SafeRoads Alberta Regulation , Alta Reg 224/2020 ( SAR ). [ 2 ] For the reasons set out below I find that: 1. The Adjudicator’s decision on the use of the Applicant’s compelled driver’s statement was unreasonable; 2.

The Adjudicator’s decision on whether notice of the right to a roadside appeal must include the information that the second breath test will be conducted on a different device was unreasonable; and 3. The Adjudicator’s decision that the Applicant was properly served was reasonable. [ 3 ] The matter is sent back for rehearing on the issues of use of the Applicant’s compelled driver’s statement and whether notice of the right to a roadside appeal must include the information that the second breath test will be conducted on a different device. II.

BACKGROUND [ 4 ] On July 23, 2021, police responded to a single vehicle collision in which a vehicle left the roadway, drove on a grassy boulevard, collided with a tree, and dragged the tree for approximately 50 meters before coming to a stop. When police arrived, three males including the Applicant were standing near the vehicle. The Applicant advised police that he owned the vehicle and had been driving. The Applicant registered a “fail” on an Approved Screening Device (ASD) breath test. The officer informed the Applicant that a penalty under the Traffic Safety Act [1] , was being imposed.

The Applicant was advised of his right to a second ASD breath test but did not participate in one. The Applicant’s partner came to the scene to pick up the Applicant. In the presence of the Applicant the officer handed the Applicant’s partner a package of paperwork which included the Notice of Administrative Penalty (NAP). The Applicant’s partner gave the package of paperwork to the Applicant when they entered the partner’s vehicle. III. LEGAL FRAMEWORK [ 5 ] In Dorn v Alberta (Director of SafeRoads) , 2022 ABQB 394 [ Dorn ] at paras 4 – 7 , I laid out the legal framework of the SafeRoads regime.

I will not repeat the framework here. The relevant

section of SAR as it relates to this judicial review is SAR s 4. [ 6 ] SAR s 4 sets out the grounds for an Adjudicator to cancel a NAP. The Applicant was issued a NAP for contravening sections 88.1(1)(a) (driver impaired to any degree by alcohol, drug, or a combination thereof) and 88.1(1)(b) (blood alcohol concentration equal to or greater than 80 milligrams of alcohol in 100 millilitres of blood within two hours of ceasing to operation a motor vehicle) of the TSA . As such, the applicable appeal sections of SAR are ss 4(e)(i, ii,

v) and 4(f)(i, ii, viii). SAR s 4(

e) states: 4 The grounds for an adjudicator to cancel a notice of administrative penalty (

e) issued for contravention of

section 88.1(1)(

a) of the [ TSA ] are (

i) that the recipient did not operate the motor vehicle, (ii) that a notice of administrative penalty was not served on the recipient, (iii) that the officer did not advise the recipient in writing of the right to a roadside appeal under

section 88.11 of the Act and the recipient was unaware of that right. [ 7 ] SAR s 4(f)(i, ii, viii) are identical to ss 4(e)(i, ii,

v) but apply to cancel a NAP issued for contravention of

section 88.1(1) (

b) of the TSA . IV. ISSUES [ 8 ] The Applicant raises the following issues in this judicial review:

1. Was the decision of the Adjudicator to admit and rely on the Applicant’s admission that he was the driver of the vehiclereasonable? 2. Was it reasonable for the Adjudicator to conclude that notice of the right to a roadside appeal need not specify that the secondbreath test will be conducted on a different device? 3. Was it reasonable for the Adjudicator to conclude that the Applicant was properly served with the NAP when the police officerhanded the NAP to the Applicant’s partner rather than the Applicant? V. ANALYSIS A.

Use of the Applicant’s Compelled Driver’s Statement [9] At the review hearing the Applicant submitted that he only admitted to being the driver of the vehicle because he feltcompelled to do so. In the Statutory Declaration provided by the Applicant for the purposes of the review, the Applicant stated that hefelt compelled to admit that he was the driver because “I am aware that the law in Alberta requires me to report an accident.” [10] The Applicant argued that his admission to being the driver was statutorily compelled by the TSA.

As such, the Applicantsubmitted that the officer’s use of the compelled statement as the basis for issuing the NAP amounted to a s 7 Charter [2] violation. Onthis basis, the Applicant argued that his statement should be excluded from consideration.

If the admission were excluded, the Applicantcould not be found to have operated the motor vehicle as the Applicant’s admission was the only evidence that he was the driver. [11] In this judicial review the Applicant argues that the Adjudicator’s decision not to exclude the Applicant’s statement wasunreasonable as the Adjudicator did not engage in the required balancing of Charter interests. [12] I find that the Adjudicator did not engage in the analysis necessary and therefore the Adjudicator’s decision on this issue is notreasonable. [13] The Adjudicator held that they did not have authority to find Charter breaches or grant Charter remedies but that they couldconsider Charter arguments and the evidence pertaining to them under their assessment of the grounds to cancel the NAP and theoverarching duty of fairness. [14] On the issue of the use of the compelled statement, the Adjudicator held:

Section 69 of the TSA does compel a driver involved in a vehicle accident to remain on scene and “render all reasonable assistance”during the investigation. The SafeRoads Alberta traffic safety scheme, while informed by case law, is not bound by it. The Recipient wasindeed compelled to answer the officer’s questions concerning vehicle ownership and who was driving in relation to the accident, and Iam unaware of any legislation or regulation that does not permit an officer to subsequently make a demand for a sample of breath as partof the investigation.

I therefore find that this allegation of an alleged Charter breach has no bearing on the evidence of whether theRecipient was operating the motor vehicle, and I find the Recipient was operating the motor vehicle as a result: Russell (Re), 2021ABSRA 743 [Russell] at para 11. [15] Courts have long held that the use of compelled statements in a criminal context is a violation of an accused’s s 7 and s 13Charter rights: R v White, (SCC), [1999] 2 SCR 417.

However, while administrative schemes must be Chartercompliant (see Hunter et al v Southam Inc, (SCC), [1984] 2 SCR 145), protections arising from Charter rights thatapply in the criminal context do not apply to the administrative roadside driving prohibitions: Wilson v British Columbia(Superintendent of Motor Vehicles), 2015 SCC 47 [Wilson] at para 34; Harris v Alberta (Director of SafeRoads), 2022 ABQB 470 atpara 41. [16] The jurisprudence as it relates to the power of administrative decision makers to deal with Charter values in relation toroadside suspension legislation was reviewed and considered in Isley v Alberta (Director of SafeRoads), 2022 ABQB 249 [Isley].

ASafeRoads Adjudicator is a non-discretionary administrative decision maker that does not have jurisdiction to grant Charter remedies andmust, therefore, limit any Charter analysis to only four areas: 1) Whether the alleged breach affects the relevance, reliability, or accuracy of, or otherwise undermines the evidence; 2) Whether the alleged breach would affect the fairness of the proceedings; 3) Whether the alleged breach was so egregious that relying on the evidence would be an abuse of process or a breach of naturaljustice; 4) If there is ambiguity in the legislation, Charter values must be applied to resolve the ambiguity.

Isley at para 52 (citations removed) [17] Whether a compelled statement of a driver can be used as the basis to identify a driver for the purpose of issuing a NAP is aquestion of statutory

interpretation that requires consideration of several sections of the TSA.

Section 69 imposes a number of duties on adriver of a vehicle that is involved in an accident.

Section 71 requires a driver of a vehicle involved in an accident to provide a report ofthe accident.

Section 11 addresses the use that can be made of a report or statement provided by a driver pursuant to s 71. TheAdjudicator’s reasons do not demonstrate that they grappled with the statutory

interpretation required. [18] The Adjudicator’s reasons suggest that they considered the arguments related to an alleged Charter breach without having

engaged in the statutory

interpretation required. As such, they did not properly consider whether it was appropriate to engage in any Charter analysis. [ 19 ] Further, there is nothing in the Adjudicator’s decision that suggests that they turned their mind to whether any alleged Charter breach affected the reliability of the admission or whether it would be procedurally unfair to rely on it. [ 20 ] I must also draw attention to a clear error in the reasons of the Adjudicator. The Adjudicator’s reasons state that that they were not bound by case law.

If the Adjudicator meant that they were not bound by the case law relating to the admissibility of compelled statements made pursuant to the TSA in criminal proceedings against the declarant, the Adjudicator was correct. However, the Adjudicator was incorrect when they stated that they are not bound by case law.

While tribunals are not bound by their own previous decisions (see Communications, Energy and Paperworks Union of Canada, Local 30 v Irving Pulp & Paper, Ltd , 2013 SCC 34 at 78 – 79) the decisions of reviewing Courts bind administrative decision makers through stare decisis (see Régie des rentes du Québec v Canada Bread Company Ltd , 2013 SCC 46 at para 46 ). Tribunals are permitted flexibility in the application of the common law however they must follow the direction of superior courts (see Canada (Commissioner of Competition) v Superior Propane Inc , 2003 FCA 53 at para 54 ). B.

Informational Requirements of the Right to a Roadside Appeal: Must a NAP Recipient be Advised that the Second Test will be Conducted on a Different Device? [ 21 ] The Applicant argues that the Adjudicator erred in finding that they were fully informed of their right to a roadside appeal. The Applicant does not dispute that the issuing officer offered a second ASD breath test. The Applicant’s argument focuses on what he claims is a necessary informational component.

Specifically, the Applicant argues that the requirement that a NAP recipient be informed of their right to request a second ASD breath test must include the information that the second ASD breath test will be conducted on a different device than the initial breath test. [ 22 ] The Adjudicator addressed this issue as follows: The Recipient impugns police conduct on the basis of a

Section 8 Charter breach because he was not told the second test would be on a different device. He argues that as a result, he was unable to make a fully informed decision in accordance with three case examples, which were provided. The Recipient contends the evidence of the roadside appeal should be disregarded as a result. I am not bound by case law but I am by the TSA , and there is no provision in the TSA that requires a Recipient be told a second device is used if they consent to a second test, or appeal.

Based on this, I am not satisfied that the evidence pertaining to the roadside appeal should be disregarded as a result: Russell at para 27. [ 23 ] The Adjudicator’s reasons reference “the evidence of the roadside appeal” and “the evidence pertaining to the roadside appeal.” There was no roadside appeal because the Applicant did not participate in a second ASD breath test. There was no evidence before the Adjudicator as to the Applicant’s reasons for why he did not engage in a roadside appeal. Given those facts, it is unclear what roadside appeal evidence the Adjudicator is referring.

Further, the Adjudicator’s reasons do not indicate any consideration of the Applicant’s Charter values argument surrounding the reliability and accuracy of the Applicant’s initial ASD breath test given the Applicant did not engage in a roadside appeal to confirm the results of that initial test. As a result, the Adjudicator’s reasons are unreasonable. C.

Service of the NAP: Was the Applicant properly served with the NAP? [ 24 ] At the review hearing the Applicant argued that he was not served with the NAP pursuant to SAR s 4(e)(ii) and (f)(viii) as the officer did not provide the NAP to him directly but instead handed it to his partner who attended the scene to pick up the Applicant.

In this judicial review, the Applicant argues that the Adjudicator’s decision that service of the NAP was properly effected was unreasonable because the legislation does not allow for deemed service. [ 25 ] The Adjudicator’s decision that service of the NAP on the Applicant was properly effected was reasonable. [ 26 ] At the review hearing, both the Applicant and their partner provided Statutory Declarations for the purposes of the review.

The partner declared: After the police officer completed the paperwork, he reached out to distribute the paperwork with no clear indication that he was handing it to a specific person (he did not hand it to [the Applicant]/ I was closest to [the officer] so I took it.) I said thanks and we turned around to leave.

We proceed ( sic ) to our car to leave and once seated inside the care I handed [the Applicant] the paperwork. [ 27 ] The Applicant declared, “[a]t the conclusion of the police investigation I got into my partner’s motor vehicle... [my partner] handed me documents she was given by the police which included the NAP/IRS.” [ 28 ] The Adjudicator held that in order to succeed on this ground of appeal the Applicant must establish on a balance of probabilities that they did not receive the NAP: Russell at para 18.

The Adjudicator stated that the test is not one of defining personal service but one of confirming whether or not the Applicant received the NAP. Given the evidence of the Applicant and their partner, the Adjudicator had no question that the Applicant had received the NAP. Therefore, the Adjudicator found that these grounds to cancel had not been established. [ 29 ] The Applicant argues that the Adjudicator’s decision is unreasonable as the Adjudicator, in effect, found that the Applicant

was “deemed” to have been served whereas the legislation requires that the Applicant actually be personally served without anyprocedure for service to be “deemed”. [30] This is a question of statutory

interpretation that requires consideration of several sections of the TSA. [31]

Section 87.1(1) of the TSA provides that to “issue a [NAP]” includes service of the NAP. [32]

Section 6 of the TSA specifies that the NAP may be served or given by the following means:

a) by personal service;

b) by being sent by ordinary mail sent to the latest address of the person who is to be served as shown on the records of theRegistrar;

c) by being transmitted by electronic means to the latest email address of the person who is to be served as shown on the records ofthe Registrar; or

d) in a manner or by a method provided for by regulation[3]. [33] If a driver refuses to accept service of the NAP, s 87.2 of the TSA deems service to be perfected at the time the officerattempts to provide it to the driver. [34] What is clear from these provisions is that part of issuing the NAP is serving it, and that service can take several forms.

Whilethe Adjudicator failed to consider the implications of s 87.1(1) of the TSA, they specifically noted that service can take many forms andfound that “the test is not about personal service, but about whether the [Applicant] received the NAP” (paras 17 and 18). [35] There is nothing unreasonable in the Adjudicator’s decision that service of the NAP was effected when the Applicant receivedit. It is clear that the legislation does not intend service to only be effected personally. In this case, the officer handed the NAP to theApplicant’s partner in the Applicant’s presence.

By handing the NAP to the Applicant’s partner, the officer could be more reasonablycertain that the Applicant would actually receive the NAP than had the officer sent the NAP by ordinary mail or email, as the TSAallows. [36] The Alberta Court of Appeal considered this issue in Post v Kellogg Brown & Root (Canada) Company, 2005 ABCA 390 atparas 5 and 6: The first issue is personal service. It occurs where actual notice of the order is received. It need not be shown that the order was deliveredinto the recipient’s hands, and it does not matter who handed the papers to the addressee: Hvozdanski Est. v.

Gasland Oil (2000), 263A.R. 399, 2000 ABQB 168; Rupertsland Mtge. Inv. v. Winnipeg (City) (1981), (MB QB), 25 Man. R. (2d) 29 (Co.Ct.). An example is Red Giant Disposal & Services v. C.U.P.E. (1981), (BC SC), 26 B.C.L.R. 131. There, documentswere served upon a union representative, who then circulated them around the table. The named defendants thus saw the documents, andpassed them on, but refused to acknowledge that they were the persons named in them. The court held this was good service. InRupertsland, orders were served upon the wife of the chief officer of the named company.

The wife gave the orders to the officer, whothus learned their contents. The court held this was personal service. In Re Consiglio, (ON SC), [1971] 3 O.R. 798(M.), documents were served upon a non-party. The Master decided that personal service could be found if the documents then came tothe knowledge or into the possession of the person to be served. This is not to suggest that personal service occurs without the intended recipient’s having knowledge of the documents. The point is thatpersonal service need not occur by way of delivery into the recipient’s hands.

The purpose of service is to give a party notice, and if thatobject has been satisfied because the document actually reached the party, then the precise manner in which it occurred is of no concern:Polo Ralph Lauren Corp. v. Cato, (FC), [1990] 3 F.C. 541; Rupertsland, supra; Hope v. Hope (1854), 4 De G.M. &G. 328, 43 E.R. 534, 26 L.J.

Ch. 682. [37] Although the Court of Appeal was considering “personal service” under the Occupational Health and Safety Act the reasoningand analysis is equally applicable here and reinforces that the decision of the Adjudicator on this issue was reasonable. [38] The Applicant raised further arguments that the officer failed to provide the Applicant the NAP within the necessary timeperiod.

Given that the NAP includes the information about the right to a second ASD breath test, the Applicant submits that it wasimproper to provide the package of documents when the Applicant and his partner were about to leave the scene. A similar argument hasbeen raised and dismissed in a number of other SafeRoads judicial reviews: Lausen v Alberta (Director of SafeRoads), 2021 ABQB 896at para 39; Isley at para 33; and Rose v Alberta (Director of SafeRoads), 2022 ABQB 297 at para 47. I agree with the analysis reflectedin those cases and find it to be equally applicable here.

In this case, the Applicant did not participate in a second ASD breath test howeverit is not disputed that he was informed of his right to do so and given an opportunity to participate in a second ASD breath test. He chosenot to do so. It is also not disputed that he received the NAP. VI. CONCLUSION [39] Having found the Adjudicator’s decision unreasonable on two issues the question then becomes the appropriate remedy.

Ihave considered whether it would be appropriate to exercise my discretion to refuse to remit the matter back for re-hearing and amsatisfied that remitting the matter back for re-hearing is the appropriate remedy. [40] This matter is remitted back to the SafeRoads Tribunal for rehearing, with the benefit of the reasons above, on the issues ofuse of the Applicant’s compelled driver statement and whether notice of the right to a roadside appeal must include the information thatthe second breath test will be conducted on a different device.

Heard on the 9 th day of September, 2022. Dated at the City of Edmonton, Alberta this 11 th day of January, 2023. Bonnie L. Bokenfohr J.C.K.B.A. Appearances: Matthew Pagels and Y Rory Ziv for the Applicant Jas Sadhra for the Respondent