Stoesz v Alberta (Director of SafeRoads), 2023 ABKB 283

Court of King’s Bench of Alberta Citation: Stoesz v Alberta (Director of SafeRoads), 2023 ABKB 283 Date: 20230510 Docket: 2201 02373 Registry: Calgary Between: Matthew Stoesz Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Memorandum of Decision of the Honourable Justice J.M. Ross _______________________________________________________ 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 the Applicant, Matthew Stoesz.

It is opposed by the Respondent Director of SafeRoads Alberta. [ 2 ] The NAP was issued on January 6, 2022, under s 88.1(1) and (2) of the Traffic Safety Act , RSA 2000, c T-6 ( TSA ), in particular s 88.1(a): A. that a driver operated a motor vehicle while the driver’s ability to operate a motor vehicle was impaired to any degree by alcohol or a

combination of alcohol and a drug… [ 3 ] The Applicant sought an oral review of the NAP under s 7 of the Provincial Administrative Penalties Act , SA 2020 c P-30.8 ( PAPA ), seeking to cancel the NAP on grounds set out in s 4 of the SafeRoads Alberta Regulation , Alta Reg 224/2020 ( SAR ), including s 4(e)(i): 4. The grounds for an adjudicator to cancel a notice of administrative penalty… (

e) issued for a contravention of

section 88.1(1)(

a) of the Act are (

i) that the Recipient did not operate the motor vehicle… [ 4 ] The Adjudicator performed a review and, on February 1, 2022, issued a decision finding that there were no grounds to cancel the NAP: Re Stoesz , 2022 ABSRA 150 (the Decision). II. Legislative Background [ 5 ] I have previously outlined the legislative background and history of the Alberta SafeRoads legislation in Isley v Alberta (Director of SafeRoads) , 2022 ABQB 249 , and will not repeat that discussion here. III. Facts [ 6 ] On January 6, 2022, police in Drayton Valley, Alberta, received a call from Mr. Cain, regarding his tenant, the Applicant.

As a result of the call, Constables Hamelin and Desrochers of the RCMP conducted a patrol and located a vehicle in a grocery store parking lot, stuck on a concrete divider. The vehicle was still running. The officers observed the Applicant walking around the vehicle and approached him. The Applicant was slurring his words and smelled strongly of liquor. The officers noted open beers inside the front door of the vehicle. [ 7 ] At 6:42 pm, the officers placed the Applicant in the police vehicle and read him the Approved Screening Device demand.

The Applicant said he understood and provided a breath sample that registered a “fail”. The Applicant was advised that he was entitled to a second test and accepted. The second test also registered a “fail”, and the NAP was issued. [ 8 ] At the review before the Adjudicator the Applicant provided sworn evidence. [ 9 ] The Applicant testified that he had just moved to Drayton Valley. He was renting a basement suite and signed the rental papers with the landlord upstairs. A friend of his waited in the basement suite downstairs. [ 10 ] The Applicant and his friend decided to go get some groceries.

They had both been drinking, but the Applicant had consumed more, so the friend drove the Applicant’s vehicle. In the parking lot of the grocery store, the friend got stuck on a concrete median separating the parking lot from the street. The friend then went into the store to get groceries, while the Applicant stayed with the vehicle to see if he could get a tow truck. [ 11 ] The police showed up “immediately” upon the vehicle getting stuck.

The Applicant advised the police that he was “not the one driving”, but he was told to give a blood sample and complied. [ 12 ] The Applicant advised the Adjudicator that his friend had declined to provide evidence because he did not want to get in trouble. IV. Issue for Judicial Review [ 13 ] While other issues were raised at the review before the Adjudicator, only one issue is raised on judicial review, that the Adjudicator erred in law in determining that the Applicant was in care and control of the vehicle. V.

Standard of Review [ 14 ] It is common ground that the standard of review is reasonableness, as provided in s 24(2) of PAPA and in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 ( Vavilov ). [ 15 ] The onus is on the Applicant to show that the Decision was unreasonable, in that it lacked the required degree of justification, transparency and intelligibility: Vavilov at para 100 . [ 16 ] Reasonableness review requires the Court to determine whether the conclusion reached follows from a rational chain of analysis and is justified in light of the relevant facts and law: Vavilov at paras 102 and 105 .

VI. Adjudicator’s Decision [ 17 ] The first, and on this judicial review only, ground put forward to cancel the NAP was that the Applicant did not “operate the

motor vehicle,” as required by s 4(e)(

i) of SAR. [18] The Adjudicator referred to

definitions in s 1(4.2)(

b) of the Use of Highway and Rules of the Road Regulation, Alta Reg304/2002 and s 1(1) of the TSA, which indicate that operating a motor vehicle includes both driving and having care or control of avehicle. [19] The Adjudicator found that the Applicant (referred to in the Decision as the Recipient) was not driving at the time of thetraffic stop.

However, the Recipient “could also have been operating by being in care or control of the motor vehicle when it wasstationary”: Decision at para 10. [20] The Adjudicator held that the applicable analytical framework to determine “care or control” is that set out in R v Boudreault,2012 SCC 56, “adapted for the administrative rather than criminal context.” Under this framework: The Recipient must establish

a) that the Recipient was not in the driver’s seat or not otherwise in care of control of the vehicle or, if theRecipient was in the driver’s seat,

b) the Recipient had no future intention to drive and

c) was not in such circumstances that he presenteda realistic risk of danger to persons or property. Decision at para 11. [21] The Recipient was not in the driver’s seat. However, “[b]ased on the totality of the circumstances” the Adjudicator concludedthat the Recipient had failed to demonstrate, “on a balance of probabilities, that he was not in care or control of his vehicle”: Decision atpara 16. [22] The Adjudicator was “not satisfied on a balance of probabilities that the Recipient’s friend drove the vehicle”: Decision atpara 14.

The presence of the friend was not observed by police nor supported by other evidence, such as a grocery receipt. The friend didnot give evidence on the review. The Recipient also did not provide evidence of steps taken to contact a tow company.

Therefore, theAdjudicator was not satisfied that the Recipient “had an alternative plan to leave the scene besides driving himself” or that the Recipient“had no intention to drive”: Decision at para 14. [23] The Adjudicator’s discussion of a realistic risk of danger is found at paras 15 and 16 of the Decision: In determining if the Recipient was in care or control of the vehicle, I have considered that the Recipient has not established that he hadan alternative plan to leave the scene, and it defies logic that he intended to stay there indefinitely.

Given that the Recipient’s vehicle wasstill running, I find that there is a realistic risk that the Recipient would have changed his mind and tried to move his vehicle in anattempt to get it off the concrete divider. In addition, if the Recipient had called a tow company, there is a possibility that the towcompany would have only helped to free the Recipient’s vehicle rather than tow the vehicle. Had this happened, there is a realistic riskthat the Recipient would have changed his mind and driven the vehicle after it was dislodged.

Further, Counsel argues that the Recipient’s vehicle was stuck and therefore not moveable. However, Counsel has not provided evidencethat the vehicle was in fact inoperable. The evidence before me shows that the Recipient’s vehicle was still running at the time of thetraffic stop. I find that given the time and being that the Recipient’s vehicle was located in a grocery parking lot when the store was stillopen, there was also a realistic risk that the Recipient’s stationary vehicle may endanger the customers of the grocery store and otherroad users. VII. 7.

The Test of Care or Control [24] The Applicant submits that the applicable analytical framework is found in R v Boudreault adapted for the administrativecontext. This approach is generally supported by the Respondent Director, although there are differences in their description of theanalytical framework. [25] In R v Kaughman v Alberta (Director of SafeRoads), 2022 ABQB 480 (Kaughman), Justice Yamauchi held, at para 33: It is worth noting that this Court finds that the Adjudicator’s application of the principles articulated in Boudreault is not improper.

Infact, it might have been improper not to have considered those principles as binding on the Adjudicator since the highest court in Canadahas given guidance to trial court (and others) on the

interpretation of the meaning of “care and control.” The Adjudicator adapted thoseprinciples to the statutory scheme at play in the case at bar, and the facts before them. The same has been done in British Columbia, withapproval. See e.g., Flores v British Columbia (Superintendent of Motor Vehicles), 2022 BCSC 358 at para 8. [26] In Roh v Alberta (Director of SafeRoads), 2022 ABQB 586 (Roh), Justice K.D.

Nixon, referring to Kaughman and ReKondratski, 2021 ABTSB 2476 (Kondratski), concluded at para 40 that there was “nothing unreasonable in the Adjudicator’srecognition of the presumption in the Criminal Code or the analytical framework in Boudreault as aids interpreting care or control underthe Adjudicator’s home legislation and her findings of fact on this issue.” [27] I agree with the parties and the prior decisions of this Court that the applicable test is the Boudreault test adapted for theadministrative context.

In this context, the onus of establishing that he was not in care or control of the vehicle was on the Applicant,even though he was not in the driver’s seat at the time of the traffic stop.

This onus does not depend on the reverse onus provision inCriminal Code s 320.35, but on s 18 of PAPA. [28] The parties’ submissions regarding whether the Adjudicator properly applied the Boudreault test adapted for theadministrative context requires further consideration of the content of that test. [29] The Respondent and the Alberta Transportation Safety Board in Re Kondratski relied on a test for care or control as adaptedfrom R v Toews, (SCC), [1985] 2 SCR 119 at page 123 (Toews). An intention to drive is not required:

Even where a driver has no intention to drive, the Supreme Court has recognized three ways a vehicle can be at a realistic risk of dangerof being set in motion by an inebriated driver… A. an inebriated person who perhaps does not intend to drive may later, while still impaired, change his or her mind and proceed todrive; B. an inebriated person behind the wheel may unintentionally set the vehicle in motion; and C. through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

Re Kondratski at para 22, cited in Roh at para 34. [30] The Applicant relies on the test set out in Boudreault at paras 33-34: … I think it helpful to set out once again the essential elements of “care or control” under s 253(1) of the Criminal Code in this way: 1. an intentional course of conduct associated with a motor vehicle; 2. by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; 3. in circumstances that create a realistic risk of danger to persons or property. The risk of danger must be realistic and not just theoretically possible: Smits, at para. 60.

But nor need the risk be probable, or evenserious or substantial. [31] R v Smits, 2012 ONCA 524 (Smits), cited by the Supreme Court of Canada to distinguish between a realistic risk of danger asopposed to a theoretical possibility, held that there must be an “evidentiary foundation” that a risk of danger exists: Smits at para 60.Inference from established facts is permitted.

However, where “there are no positive proven facts from which an inference may be draw,there can be no inference, only impermissible speculation and conjecture”: Smits at para 62, citing Watt JA, Watt’s Manual of CriminalEvidence (Toronto: Carswell, 2011), at p. 43. [32] Smits approved a list of “non-exhaustive” factors a court might look at when engaging in a risk of danger analysis:

a) The level of impairment, which is relevant to the likelihood of exercising bad judgment and the time it would take for the accusedto become fit to drive;

b) Whether the keys were in the ignition or readily available to be placed in the ignition;

c) Whether the vehicle was running;

d) The location of the vehicle;

e) Whether the accused had reached his or her destination or if the accused was still required to travel to his or her destination;

f) The accused’s disposition and attitude;

g) Whether the accused drove the vehicle to the location where it was found;

h) Whether the accused started driving after drinking and pulled over to “sleep it off” or started using the vehicle for purposes otherthan driving;

i) Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit;

j) Whether the accused had a stated intention to resume driving;

k) Whether the accused was seated in the driver’s seat regardless of the applicability of the presumption;

l) Whether the accused was wearing his or her seatbelt;

m) Whether the accused failed to take advantage of alternate means of leaving the scene;

n) Whether the accused had a cell phone with which to make other arrangements and failed to do so. Smits at para 63, citing R v Szymanski, (ON SC), [2009] OJ No 3623 (ONSC) at para 93. VIII. Arguments [33] The Applicant submits that the Adjudicator erred by: 1. failing to determine whether the Applicant was involved with an intentional course of conduct associated with the motor vehicle; 2. failing to determine whether there was a realistic risk, as opposed to a theoretical possibility, of putting the vehicle in motion so thatit could become dangerous.

[ 34 ] On the first point, the Applicant submits that, when police arrived, he was walking around the vehicle, which was described by both himself and the police as “stuck.” He was going to call a tow truck when the police showed up. The Applicant submits that there was no intentional course of conduct associated with the vehicle that could create a realistic risk of putting it in motion so that it could become dangerous. [ 35 ] On the second point, the Applicant submits that the risk of danger must be grounded in the facts of the case. It cannot be based on speculation and conjecture.

The Applicant submits that the Adjudicator relied on two scenarios that were not supported by any evidence and/or were inconsistent with the evidence that the vehicle was stuck. [ 36 ] First, the Adjudicator noted the evidence that the vehicle was still running and found that there was “a realistic risk that the Recipient would have changed his mind and tried to move his vehicle in an attempt to get it off the concrete divider.” There was no evidence that the Applicant was engaged in any conduct consistent with this risk, and the evidence that the vehicle was stuck indicates that there was no realistic risk arising in this way.

Further, the Adjudicator also noted that the vehicle was located in a grocery parking lot when the grocery was open and found that there was a realistic risk that the “stationary vehicle may endanger the customers of the grocery store and other road users.” There was no evidence to support this possibility. [ 37 ] The Respondent submits that the Adjudicator was not required to focus on whether the Applicant engaged in an intentional course of conduct associated with the vehicle, because an intention to drive is not an essential element in a charge of having care or control: Toews at para 123 . [ 38 ] The Respondent notes that the Adjudicator was not satisfied on a balance of probabilities that the Applicant’s friend had driven to the grocery store; in other words, the Adjudicator found that the Applicant had driven to the grocery store.

While this is the clear implication of the Adjudicator’s finding, the Decision was not based on driving that occurred before the traffic stop; the Adjudicator considered this evidence only in relation to the Applicant’s potential future intention to drive. That is the chain of reasoning that must be assessed under the reasonableness test. [ 39 ] The Respondent submits that the Adjudicator’s reasons refer to factors endorsed in Smits in support of the conclusion that the Applicant was in care or control of the vehicle.

Even if the Adjudicator’s consideration of risk under certain scenarios was speculative, the conclusion was supported by other scenarios which were supported by the evidence. IX. Analysis [ 40 ] I commence by expressing my view that it would have been preferable that the Adjudicator set out and explicitly apply the restatement of the law regarding care and control in Boudreault . That is an appropriate starting point, given the agreement that Boudreault is the governing authority.

Other decisions, including Toews and Smits , may also merit reference where they provide useful guidance regarding matters in issue in a particular case. [ 41 ] That said, the failure to follow this approach does not make the Decision unreasonable. The rulings of Vavilov on this point were recently summarized by Justice Mandziuk in 1617312 Alberta Ltd v Edmonton (City) , 2022 ABQB 454 at paras 31-32 : On judicial review, the applicant bears the burden of showing that a decision is not reasonable. Any alleged flaws or shortcomings must be more than merely superficial: [ Vavilov at para 100] .

Instead, they must be sufficiently significant to render the decision unreasonable: ibid. Along the same vein, the decision being reviewed should not be held to a standard of perfection.

The mere fact “[t]hat the reasons given for a decision do ‘not include all the arguments, statutory provision, jurisprudence or other details the reviewing judge would have preferred’ is not on its own a basis to set the decision aside”: ibid at para 19. [ 42 ] The Adjudicator’s formulation of Boudreault ’s analytical framework, while incomplete, was not inconsistent with the Boudreault analysis, adapted to the administrative context.

Both the determination that Boudreault was the governing authority, and the description of the applicable analytical framework were reasonable. [ 43 ] The Applicant’s first submission, that the Adjudicator failed to determine whether the Applicant was involved with an intentional course of conduct associated with the motor vehicle, does identify an apparent gap in the Decision. The Respondent argues that this was not required, but I disagree. For an individual to be in care or control of a motor vehicle requires intentional conduct in relation to the motor vehicle.

Where the individual is seated in the drivers’ seat, as in Kaughman , Roh and Kondratski , this requirement is clearly met. But where the individual is not in the driver’s seat, there must be some other intentional conduct associated with the vehicle. [ 44 ] The Respondent argues, alternatively, that the Adjudicator’s determination that the Applicant had driven the vehicle to the grocery store parking lot satisfies the requirement for intentional conduct associated with the vehicle. Again, I disagree. The test for care or control requires a determination of prospective danger to persons or property.

The Applicant’s past conduct – driving the vehicle before the traffic stop – is relevant to the assessment of whether his current intentional conduct posed a realistic risk of danger but does not in and of itself meet the first requirement in Boudreault . [ 45 ] While the Adjudicator did not expressly address this requirement, the evidence regarding the Applicant’s intentional course of conduct at the time of the traffic stop is uncontroverted. He was walking around his vehicle, which was running while stuck on a concrete divider, and planning to call a tow truck.

He said his friend had gone into the grocery store (which evidence the Adjudicator rejected), while he stayed to call a tow truck because it was his vehicle. This intentional conduct could reasonably be found to be associated with the vehicle. That the finding was implicit, rather than explicit, does not make the Decision unreasonable. [ 46 ] The Applicant’s second submission, that the Adjudicator failed to determine whether there was a realistic risk, as opposed to a

theoretical possibility, of putting the vehicle in motion so that it could become dangerous, again identifies an apparent gap in the Decision. The Adjudicator did not expressly address the requirement in Boudreault and Smits that there be an “evidentiary foundation” that a risk of danger exists, as opposed to impermissible speculation and conjecture. [ 47 ] While not addressing this requirement explicitly, the Adjudicator reviewed the evidence and made the reasonable factual determination that the Applicant had driven the vehicle to the grocery store parking lot.

The presence of a number of other relevant factors flowed from this determination and the evidence. The Applicant admitted that he was intoxicated. The vehicle was running and, while it was stuck on a concrete median, it had not been determined to be inoperable. The vehicle was stopped at a place that was not the Applicant’s final destination.

As the evidence that a friend was driving had been rejected, there was no evidence that the Applicant had a plan to get home that did not involve driving while impaired or over the legal limit. [ 48 ] I accept the Applicant’s submission that there is no evidence to support the scenarios discussed by the Adjudicator that the Applicant might himself have removed the stuck vehicle from the concrete divider, or that the stationary vehicle posed a risk to persons or property. In my view these scenarios, discussed without reference to the evidence, venture into the area of impermissible speculation or conjecture.

But the third scenario, that the Applicant may have called a tow company, as he testified,he intended to do, that the tow truck would have dislodged the vehicle, and the Applicant may then have changed his mind and driven home, does arise from evidence relied on by the Adjudicator. The Applicant presumably believed that a tow truck could free the vehicle, the vehicle was still running, and there was nothing to suggest the vehicle would be inoperable once freed.

The Applicant needed to get home and the risk that he would drive the vehicle home after it had been freed could reasonably be determined to pose a realistic danger to persons or property. [ 49 ] The risk of danger must be realistic, but it need not be probable, or even serious or substantial . The realistic risk need not arise under multiple scenarios. I agree with the Respondent that even if the Adjudicator’s consideration of risk under certain scenarios was speculative, the conclusion that there was a realistic risk of danger is supported by a scenario that has an evidentiary foundation. X.

Conclusion [ 50 ] On the only issue in this judicial review, whether the Adjudicator reasonably determined that the Applicant was in care and control of the vehicle, the Applicant has failed to meet the burden of demonstrating that the Decision was unreasonable. The application for judicial review is dismissed. [ 51 ] The parties may speak to me regarding costs if they are unable to agree. They must make arrangements to do so within two months of the date of this decision. Heard on the 18 th day of January, 2023. Dated at the City of Calgary, Alberta this 9 th day of May, 2023. J.M. Ross J.C.K.B.A.

Appearances: Danusia Bourdon for the Applicant Kirsty Vogelesang for the Respondent