Munro v Alberta (Director of SafeRoads), 2023 ABKB 29

Court of King’s Bench of Alberta Citation: Munro v Alberta (Director of SafeRoads), 2023 ABKB 29 Date: 20230117 Docket: 2103 06746 Registry: Edmonton Between: Michael Munro Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Decision of the Honourable Justice Bonnie L. Bokenfohr _______________________________________________________ Judicial Review from Adjudicator M. Culo Dated the 13 th day of April, 2021

( 2021 ABSRA 219 ) I. INTRODUCTION [ 1 ] This is an application for judicial review of a decision by an Adjudicator to confirm a Notice of Administrative Penalty (NAP) against the Applicant Michael Munro (the Applicant) issued pursuant to the SafeRoads Alberta Regulation , Alta Reg 224/2020 ( SAR ). [ 2 ] The issue in this judicial review is whether it was reasonable for the Adjudicator to rely on an Affidavit from Kerry Lynne Blake that is contained in the SafeRoads Alberta Technical Materials Library (the Blake Affidavit) and the opinions contained therein. [ 3 ] The judicial review is dismissed.

The Applicant could have but did not argue the reliability of the Blake Affidavit before the Adjudicator. As such, I will not exercise my discretion to consider matters not raised before the Adjudicator. II. FACTS [ 4 ] On March 14, 2021, RCMP dispatch received a 911 call reporting an erratic driver in Edson, Alberta. The 911 caller described a blue Ford half-ton truck that was driving “all over,” swerving, almost flipped, and was driving in the centre of the lane. [ 5 ] An RCMP officer responded and conducted a traffic stop on the same truck described by the 911 caller. The Applicant was in the driver’s seat.

The Applicant initially denied consuming any alcohol that day but subsequently admitted to consuming a couple of beer a few hours prior. The officer read the Mandatory Alcohol Screening demand to the Applicant. The Applicant provided a breath sample into an Approved Screening Device (ASD) that produced a “fail” result. The officer provided the Applicant with an opportunity to take a second ASD breath test.

The Applicant provided a second breath sample into a different ASD, which also produced a “fail” result. [ 6 ] The RCMP officer issued a NAP to the Applicant on the ground that the Applicant operated a motor vehicle while their ability to do so was impaired by alcohol or drug or a combination of both. III. SAFEROADS ADJUDICATOR REVIEW [ 7 ] The Applicant applied for an oral review of the NAP. The Applicant submitted an Affidavit and a document titled “Grounds for Review of Notice of Administrative Penalty” for the purposes of the review.

In the Affidavit, the Applicant swore that they had no issues with their vision, speech, co-ordination, walking, driving reaction time, sensory perceptions, or any other measure. The Applicant denied the driving pattern as described by the 911 caller and swore that at no time did they have any issues maintaining their lane nor did their vehicle almost flip. [ 8 ] Before the oral hearing began, the Adjudicator confirmed that the Applicant had access to all the information in the APIS portal.

During the review hearing, the Applicant argued that there was no evidence that the Applicant was impaired to any degree by alcohol or a drug. The RCMP officer who issued the NAP did not note any indicia of impairment. The only evidence of a driving pattern was the information that 911 dispatch provided to the officer, which was observed and reported by the 911 caller. The Applicant argued that the information from the 911 caller was double hearsay and should not be relied upon by the Adjudicator.

The Applicant also argued that a “fail” result on an ASD is only an indicium of impairment and on its own cannot be used to prove impairment. [ 9 ] The Adjudicator confirmed the NAP and found that the Applicant failed to establish, on a balance of probabilities, that the Applicant was not impaired to any degree by alcohol, drug, or a combination thereof at the time that the Applicant was operating the truck. [ 10 ] The Adjudicator’s reasons included the following: Counsel and the Recipient note there was no documented signs of indicia in Cst. Fairweather’s report.

As the Recipient registered “fail” results on both ASD tests, I turn to the Alco-sensor SFT Operator’s Manual found in the SafeRoads Alberta Technical Materials Library, a “fail” indicates a blood alcohol concentration (BAC) in excess of 100mg/100ml, or 100mg% (p. 16, para 1), meaning the Recipient’s BAC exceeded the legal limit at the relevant time.

The Affidavit of Kerry Lynne Blake Exhibit F – Impairment and Effects on Driving Ability explains that “the effect of alcohol varies from person to person depending on their tolerance or experience with alcohol… [but] at a level of 100mg% and greater, all individuals are impaired in their ability to operate a motor vehicle, regardless of their tolerance to alcohol” (p. 1, para 2). I accept Ms. Blake’s statement as being reliable. Munro (Re) , 2021 ABSRA 219 at para 10 . IV. ISSUES [ 11 ] The Applicant challenges the Adjudicator’s use of the opinion of Kerry Lynne Blake, Forensic Alcohol Specialist.

Specifically, the Applicant challenges the Adjudicator’s reliance on Exhibit F of the Blake Affidavit, “Impairment and Effects of Driving Ability” and the opinion stated therein: [T]he effect of alcohol varies from person to person depending on their tolerance or experience with alcohol… [but] at a level of 100mg% and greater, all individuals are impaired in their ability to operate a motor vehicle, regardless of their tolerance to alcohol (the

Blake opinion). [ 12 ] The Applicant argues that the Adjudicator erred by relying on the Blake opinion in the following ways: 1) The Adjudicator breached their duty of fairness and acted unreasonably by relying on the Blake opinion because they did not give the Applicant notice of their intention to rely on the Blake Affidavit and the opinion contained therein; and 2) The Adjudicator used the Blake Affidavit as “medical information” as defined in s 1(

i) of the Provincial Administrative Penalties Act , SA 2020, c P-30.8 . Kerry Lynne Blake is not qualified to provide opinions on medical information because she is not authorized by law to practice medicine. Further, Kerry Lynne Blake is not properly qualified as an expert to give the Blake opinion. V. ANALYSIS [ 13 ] The Applicant argues that it was procedurally unfair for the Adjudicator to rely on the Blake Affidavit because the Applicant was not given notice that the Adjudicator intended to use the Blake opinion to determine the issue of impairment.

As such, the Applicant was not provided a chance to respond to the Blake opinion. [ 14 ] At the review hearing, the issue of whether an ASD breath test “fail” result is evidence of impairment was raised but neither the Applicant nor the Adjudicator addressed the relevant evidence in the Blake Affidavit. The Blake Affidavit was contained in the SafeRoads Alberta Technical Materials Library. The SafeRoads Technical Materials Library is available to the public online.

During the review hearing, the Applicant confirmed that they had access to all the information in the APIS portal, including the FSD calibration manual that was “supplied to [them] on the portal.” The FSD calibration manual is contained in the SafeRoads Alberta Technical Materials Library. This suggests that the Applicant was aware of the contents of the SafeRoads Alberta Technical Materials Library at the time of the review hearing. [ 15 ] I agree with the Applicant that the Adjudicator owed a duty of procedural fairness to the Applicant at the review hearing.

However, I disagree that the Adjudicator breached that duty by not bringing the Blake Affidavit to the attention of the Applicant. While the Adjudicator did not say anything explicit about the Blake Affidavit or the Blake opinion during the review hearing, the Adjudicator did confirm that the Applicant had access to all the information in the APIS portal before the Applicant began their oral arguments. The Applicant themselves relied on information contained in the SafeRoads Alberta Technical Materials Library during their oral submissions to the Adjudicator.

It was not procedurally unfair for the Adjudicator to rely on the information contained in the SafeRoads Alberta Technical Materials Library in order to determine the issues before them. The Adjudicator relied on materials that the Applicant had available to them and was aware of at the time of the hearing. [ 16 ] The Applicant further argues that the Blake Affidavit itself is unreliable and it was therefore unreasonable for the Adjudicator to rely on it to determine the issue of impairment. The Applicant submits that Kerry Lynne Blake is not qualified statutorily or as an expert to give the Blake opinion.

The issue of whether the Blake Affidavit could be relied upon by the Adjudicator was not argued before the Adjudicator. [ 17 ] The role of this Court on judicial review is to review the decision of the Adjudicator. It is not the role of the Court to conduct a hearing de novo on issues that were not raised before the Adjudicator: Isley v Alberta (Director of SafeRoads) , 2022 ABQB 249 at paras 34 and 63 . [ 18 ] A reviewing court does have the discretion to hear an issue for the first time on judicial review.

However, this exercise of discretion is the exception and not the norm and will generally not be exercised where the issue could have been put before the administrative decision maker but was not raised: Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association , 2011 SCC 61 at paras 24 – 26 . [ 19 ] At the review hearing, the Applicant relied on materials contained in the SafeRoads Alberta Technical Materials Library. The Blake Affidavit was contained in that Library.

Therefore, the Applicant should have been aware of the Blake Affidavit and the evidence contained therein. [ 20 ] All of the arguments put forward in this judicial review surrounding the reliability of the Blake Affidavit could have been put before the Adjudicator. Had the Applicant done so, the Adjudicator would have had an opportunity to consider the issue and provide reasons for their decision. As the Applicant did not raise the issue and make the arguments before the Adjudicator, there is no decision of the Adjudicator to review.

Since the issue could have been put before the Adjudicator, I will not exercise my discretion to consider the matter. VI. CONCLUSION [ 21 ] For the reasons set out above the judicial review is dismissed. Heard on the 26 th day of May, 2022. Dated at the City of Edmonton, Alberta this 17 th day of January, 2023.

Bonnie L. Bokenfohr J.C.K.B.A. Appearances: Adam L. Klassen for the Applicant Adam L. Ollenberger for the Respondent