Brady Packham Applicant - v. -, 2023 ABKB 361

Court of King’s Bench of Alberta Citation: Packham v Alberta ( Director of SafeRoads), 2023 ABKB 361 Date: 20230615 Docket: 2106 00508 Registry: Lethbridge Between: Brady Packham Applicant - and - Director of SafeRoads Respondent _______________________________________________________ Memorandum of Decision of the Honourable Justice J.C. Kubik _______________________________________________________ Introduction [ 1 ] On July 13, 2021, Brady Packham was stopped at an Alberta Checkstop. He complied with a Mandatory Alcohol Screening (“MAS”) demand, the result of which was a “FAIL” reading.

A second sample was obtained, also resulting in a “FAIL” reading. He was issued a Notice of Administrative Proceedings (“NAP”) pursuant to

section 88.1(1) (

b) of the Traffic Safety Act , RSA 2000, c T-6 [ TSA ]. The reasonable and probable grounds for issuing the NAP were that the officer believed that Packham had, within 2 hours after ceasing to operate a motor vehicle, a blood alcohol concentration equal to or exceeding 80 milligrams of alcohol in 100 millilitres of blood. [ 2 ] Packham sought cancellation of the NAP based on

section 4(f)(viii) of the SafeRoads Alberta Regulation , Alta Reg 224/2020

[SAR], arguing that the officer did not advise him in writing of his right to a roadside appeal and that he was unaware of that right. Insupport of his position, Packham tendered affidavit evidence that the officer verbally informed him of the right to a second test but toldhim he was obligated to provide that sample and that he did not receive the NAP or the Tear Away Sheet (“TAS”) until after he providedthe second sample.

It was his evidence that he refused to sign the TAS because he had not voluntarily provided the second sample.Finally, he swore that at all times he was unaware of his right of appeal. [3] The adjudicator confirmed the NAP. She found that Packham had failed to satisfy her that either the timeliness of the writtenadvice or the officer’s statement advising Packham of his right to a second test resulted in Packham being denied advice or awareness ofthe right to a roadside appeal. She concluded that the officer’s verbal advice made Packham aware of his right of appeal.

In coming tothis conclusion, she relied on Packham’s evidence that, upon receipt of the NAP he realized that he had already provided the secondsample referenced in the document. The adjudicator specifically rejected Packham’s evidence that his refusal to sign the TASsubstantiated his evidence that the second test was involuntary. In doing so, she described “other common reasons” for refusing to sign aTAS, including disagreement, frustration surrounding the administrative regime as a whole, and refusal to cooperate with police. [4] Packham seeks judicial review of this decision.

The Intervening Procedural Issues [5] After filing his application for judicial review Packham was given leave to file an amended Originating Notice whichincluded Charter based claims seeking relief under section 24(1) of the Canadian Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

In oral reasons delivered on January 12,2023, I struck the amendments as hopeless on the basis that an adjudicator acting in accordance with the SafeRoads administrativeregime, as established by the Legislature, is not a court of competent jurisdiction for the purposes of granting Charter-based relief andthat the adjudicator’s remedial power, in terms of the Charter or Charter values, fell within the duty of fairness: Mooring v Canada(National Parole Board), (SCC), [1996] 1 SCR 75; Gonzalez v Alberta (Driver Control Board), 2001 ABQB 757 andThomson v Alberta (Transportation and Safety Board), 2003 ABCA 256 [Thomson]. [6] However, I exercised my discretion to amend the Originating Notice to allow argument on the question of whether it wasincumbent on Packham to raise the issue of fairness before the adjudicator and whether the adjudicator adequately addressed Charterinterests and values in the context of the duty of fairness in the original proceedings. [7] As a result, this judicial review will consider: • The reasonableness of the adjudicator’s decision to confirm the NAP on the basis that Packham did not prove that he did notreceive written advice as to his right to a roadside appeal and was unaware of that right (s. 4(f)(viii) of SAR); and • The overarching duty of the adjudicator to conduct a fairness analysis absent a specific request from the recipient to do so; andwhether the adjudicator reasonably exercised that duty in this case.

Standard of Review [8] The parties agree that the standard of review of an adjudicator’s decision is reasonableness.

Section 24 of the ProvincialAdministrative Penalties Act, SA 2020, c P-30.8 [PAPA] explicitly states this standard. This is also supported by the decision in Canada(Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. [9] Vavilov requires a reviewing court to review the reasons of adjudicative decision makers for reasonableness. Such anassessment requires the record, any written reasons, and the overarching purpose of the administrative regime to be considered as awhole. [10] A decision may be unreasonable if it is not internally coherent and lacks a basis in rationale and logic.

It may also beunreasonable if it is not supported by the relevant facts and applicable law. [11] What is important to remember is that within a reasonableness review, adjudicative decision makers are entitled to deference,meaning that the reviewing court should not intervene unless the decision, as a whole, cannot be sustained on the record. While decisionsmay contain imperfections, if those imperfections do not disclose a failure of reasoning, rationale, or logic, a decision should not bequashed.

The Effect of Lausen v Alberta (Director of SafeRoads) [12] The parties argued this judicial review prior to the Court of Appeal decision in Lausen v Alberta (Director of SafeRoads),2023 ABCA 176 [Lausen]. At the judicial review, Packham’s arguments regarding s. 4(f)(viii) of SAR were the same as those consideredin Lausen. [13] I am satisfied that Lausen is determinative of this case.

The relevant passages of that decision provide that a recipient mustreceive the written notice of their right to appeal (the NAP) prior to providing the second sample and must be aware of the right toundertake a voluntary appeal of the NAP. Awareness is impossible in circumstances where the recipient has not been issued the NAP oradvised of the NAP prior to providing the second sample.

The Decision in this Case [ 14 ] It is clear on the evidence before the adjudicator that prior to providing the second sample Packham had not received written notice of his right to a roadside appeal. [ 15 ] It was Packham’s evidence that the police officer told him he had a right to take a second test, but not that it was an appeal of the first result. It was also Packham’s evidence that he told the officer he did not want to take a second test and the officer told him he must. Packham then provided the second sample.

After the second sample resulted in a FAIL reading, the officer told him to read and sign the TAS to verify that the officer had informed him of his rights. Packham’s evidence is that he refused to sign the TAS because he was forced to take the second test.

The officer then issued the NAP which also referred to the right to request a second test. [ 16 ] The officer’s narrative states: “Driver was informed of his right to appeal test at 2000 hrs, driver provided second adequate sample on secondary ASD results = FAIL at 2003 hrs.” [ 17 ] There is no evidence that the officer informed Packham of the NAP and its consequences prior to the second sample being given. There is also no evidence as to the precise wording by which the officer informed Packham as to the voluntary nature of his right of appeal.

The officer’s narrative does not address Packham’s refusal to sign the TAS, despite the officer clearly noting that on the document. While the officer’s narrative does indicate that Packham failed to comply with directions to obtain the first sample and an adequate sample was not obtained until the fifth attempt, there is no evidence which suggests that Packham was disagreeable, frustrated, or non-cooperative.

Indeed, the second sample was provided within 3 minutes of the discussion regarding provision of the second sample. [ 18 ] The wording of the execution portion of the TAS is noteworthy in that it reflects the voluntary nature of the appeal process and its consequences: I, ____________, am requesting and do voluntarily consent to the taking of a sample that will be used to confirm the concentration of alcohol and drugs (if any) in my blood.

I will accompany the peace officer for that purpose and I understand that the result of this test will be used to prove my blood alcohol and drug concentration (if any) at the time of driving in any proceeding arising from this event. [ 19 ] The adjudicator concluded that a roadside appeal is essentially a “second test”, implying that, in the absence of issuing the NAP, the officer’s simple verbal statement that Packham had a right to a second test or appeal provided sufficient information to allow him to voluntarily exercise his rights under

section 88.11(2) of the TSA . This is an unreasonable finding given the evidence that Packham had not received the NAP (and therefore was unaware of the consequences of the initial FAIL reading), had indicated that he did not want to take a second test and was told by the officer that he was required to do so. In the absence of contrary evidence, this evidence required the adjudicator to consider whether Packham was aware of his right to a roadside appeal, pursuant to

section 88.11(2) which includes a voluntariness element. Her rejection of Packham’s evidence (that he refused to sign the TAS because he had not provided the second sample voluntarily) was based entirely on speculation, despite Packham’s sworn evidence and an absence of police evidence on this point. [ 20 ] I am satisfied that the adjudicator’s decision to confirm the NAP was unreasonable. It neither gave effect to the overarching purpose of the administrative regime, including the procedural protections afforded by the written notice requirements nor was it premised on the evidentiary record.

Duty of Fairness [ 21 ] The question of sequencing is also relevant to the duty of fairness. [ 22 ] The duty of fairness required of a SafeRoads adjudicator is clearly articulated in Appendix A to the Adjudicator’s Decision which sets out the role of the adjudicator. This duty requires the adjudicator to balance Charter interests and values against the statutory mandate and consider whether, amongst other things, the police conduct underlying the alleged Charter breach renders the evidence irrelevant or unreliable, such that it would be unfair to consider it or give it any weight.

In such circumstances, an adjudicator can cancel the NAP because of egregious unfairness. [ 23 ] In Thomson , the Alberta Court of Appeal discussed the duty of fairness in its historic context as a principle of natural justice. Natural justice requires a tribunal or court to apply procedural fairness in the process of hearing the case and rendering its decision.

This duty of fairness as a general common law principle extends to every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual. [ 24 ] I am satisfied that the adjudicator had an overarching duty to consider the police conduct at the roadside in the context of Charter interests and values, even in circumstances where the duty of fairness or the Charter were not specifically raised by Packham. [ 25 ] Drawing further on Thomson , in order to comply with its duty of fairness, an adjudicator must (amongst other things) give full and fair consideration to the issues, consider the source of the evidence or information, including whether it was gathered in a manner contrary to the Charter or Charter values, consider relevant evidence and information, and as a corollary, not consider irrelevant or unreliable evidence or information. [ 26 ] In the context of an adjudicative hearing examining s. 4(f)(viii) of SAR , this required the adjudicator to consider whether Packham’s rights were undermined or obscured by the way the roadside stop was conducted or by the police conduct generally.

With respect to the way the roadside stop was conducted, relevant factors for the adjudicator to consider would include the sequence in which the requirements of the TSA were carried out, whether Packham was provided sufficient information to give effect to his right of appeal, and the circumstances surrounding the provision of the second sample. With respect to police conduct, generally the question of whether

the actions of the police obscured or undermined the purpose of the TSA would be relevant. [ 27 ] In this case, the adjudicator did not specifically assess whether the circumstances at the roadside or the police conduct were inconsistent with Charter values or interests such that the evidence gathered was unreliable, irrelevant or the circumstances of the NAP so egregiously unfair that they outweighed the public interest in traffic and public safety, despite the fact that she was required to do so. This rendered the hearing procedurally unfair.

Conclusion [ 28 ] For all of these reasons, the decision of the adjudicator is quashed. [ 29 ] While PAPA is silent as to whether a Court, upon quashing an unreasonable decision, must remit the matter back to the original decision-making body, the practice of doing so was re-affirmed in Vavilov . In that case, the Supreme Court of Canada noted that where the standard of review is one of reasonableness, the appropriate remedy on error in most cases, will be to remit the matter back to the adjudicator for reconsideration.

That case also sets out a confined set of circumstances in which the court might exercise its discretion and refuse to remit the matter back to the original decision maker.

Those circumstances, which are stated in Vavilov , at para 142 , include: • Where remitting the matter would stymie the timely and effective resolution of the matter in a way that could not have been intended by the legislature. • Where remitting the matter would result in an endless merry-go-round of judicial review and reconsideration. • Where the outcome on re-adjudication is inevitable. • Where considerations as to delay, fairness to the parties or urgency militate against re-hearing. • Whether the administrative decision-maker had a genuine opportunity to weigh in on the issue in question; and • The cost to the parties and the efficient use of public resources. [ 30 ] Having regard to the reasoning in Lausen , it follows that the NAP must be cancelled as Packham was neither notified in writing of his right to a roadside appeal nor aware of his right to voluntarily appeal the NAP until after he provided the second sample.

In addition, the only evidence on the record is that the second sample was not voluntarily provided. Accordingly, the outcome on re- adjudication – cancellation – is inevitable. [ 31 ] As such, the Director shall provide the necessary directions to the Registrar to give effect to

section 6 of SAR . Heard on the 31 st day of January 2023. Dated at the City of Lethbridge, Alberta this 15 th day of June, 2023. J.C. Kubik J.C.K.B.A. Appearances: Katherin Beyak – Foster Iovinelli Beyak Kothari, Roadlawyers for the Applicant Michael Power – Alberta Justice for the Respondent