Giroux v Director of SafeRoads Alberta, 2023 ABKB 450

Court of King’s Bench of Alberta Citation: Giroux v Director of SafeRoads Alberta, 2023 ABKB 450 Date: 20230731 Docket: 2101 10034 Registry: Calgary Between: Eric Roy Giroux Applicant - and - Director of SafeRoads Alberta Respondent Corrected judgment: A corrigendum was issued on July 31, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Justice Janice R Ashcroft _______________________________________________________ I.

Introduction [ 1 ] On May 21, 2021, the police responded to a caller who alleged that a driver of a motor vehicle had used the drug hydromorphone. The police conducted a traffic stop and a police officer, Constable Green, noted that the driver, Mr. Giroux, had signs of impairment. The officer’s narrative on the Submission Export, contained in the Certified Record, indicates that she formed the opinion that Mr. Giroux’s ability to operate a motor vehicle was impaired by a drug. She arrested the Recipient for impaired driving and read him his Charter rights. Mr.

Giroux was then taken to the district office and was given tests for impairment through a drug recognition evaluation (DRE). Sixteen days later, on June 6, 2021, Mr. Giroux received a Notice of Administrative Penalty (NAP) pursuant to the Alberta SafeRoads Regime. At no time prior to receiving the penalty did Mr. Giroux receive any notice or information that the police were considering issuing a NAP or of any right to appeal the NAP. [ 2 ] Mr. Giroux challenged the NAP; however, a SafeRoads adjudicator (the Adjudicator) determined that the NAP should not be cancelled. The Adjudicator held that pursuant to

section 88.11(8) (

d) of the Traffic Safety Act , RSA 2000, c T-6 [ TSA ], Mr. Giroux was not entitled to an roadside appeal. This

section states that the driver is not entitled to a roadside appeal if the police officer’s reasonable grounds that the driver was impaired were formed after the time of the contravention and where in the opinion of the officer a roadside appeal could no longer provide any evidence of the blood alcohol or blood drug concentration of the recipient at the time of driving

[emphasis added]. [ 3 ] Mr. Giroux now judicially reviews the Adjudicator’s decision to this Court. [ 4 ] The Alberta Immediate Roadside Sanction (IRS) and SafeRoads statutory regime allows the police to issue administrative penalties as an alternative, or in addition, to criminally charging drivers who may be operating vehicles while impaired: Cornforth v Alberta (Director of SafeRoads) , 2022 ABQB 341 at para 2 ; Kelleher v Alberta (Director of SafeRoads) , 2021 ABQB 517 at paras 1 , 2 . Penalties under this regime include licence suspensions, vehicle seizures and fines. [ 5 ] Mr. Giroux submits that the Adjudicator’s finding that Mr. Giroux was not allowed a roadside appeal pursuant to

section 88.11(8) (

d) was unreasonable. The Applicant says that all of the evidence, most significantly the officer’s notes, supports that the officer formed reasonable grounds at the roadside. Accordingly, the Adjudicator’s finding that the officer formed reasonable grounds at some later point in time pursuant to a criminal investigation, is unreasonable. [ 6 ] Mr. Giroux states that if this form of exemption provision under

section 88.11(8)(

d) does not apply then the NAP must be cancelled pursuant to the Court of Appeal’s recent reasoning in Lausen v Alberta (Director of SafeRoads) , 2023 ABCA 176 [ Lausen ]. Mr. Giroux states that the officer, as required in

section 4 (e)(

v) of the SafeRoads Alberta Regulation , Alta Reg 224/2020 [ SAR ], did not advise the Applicant in writing of the right to a roadside appeal and the Applicant was unaware of that right. Counsel submits that the police had ample time to advise Mr. Giroux of the NAP process and his appeal rights as Mr.

Giroux was in police custody for a significant period of time on May 21, 2021. [ 7 ] The Respondent Director of SafeRoads Alberta (the Director) says that the Adjudicator’s finding that the officer formed grounds after the fact was reasonable as the officer at the roadside was focusing on the time sensitive criminal proceedings and it was only later that she formed grounds related to the SafeRoads regime. Mr.

Giroux was then appropriately served with a NAP several days after the occurrence, and no roadside appeal was offered because the penalty was issued after the contravention date. [ 8 ] The Director says, in any event, that any irregularity in notice is not important as at the end of the day, Mr. Giroux received two tests to confirm drug impairment which was more than he would be entitled to if he had requested and been provided a roadside appeal of the NAP. The Director distinguishes Lausen on the basis that the facts in the case before us do not involve any attempt to offer a roadside appeal; rather Mr.

Giroux was subject to compulsory demands for a DRE and Urinalysis under the Criminal Code , RSC 1985, c C-46 . II. Standard of Review [ 9 ] Mr. Giroux and the Director agree that the Standard of Review for decisions of the Adjudicator under the SafeRoads legislative framework is statutorily proscribed as reasonableness: Provincial Administrative Penalties Act , SA 2020, c P-30.8 , s 24(3) [ PAPA ]. This aligns with the presumptive standard of review set out in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 [ Vavilov ].

The circumstances of this judicial review do not invoke any markers which would attract a correctness review. At issue is a finding of fact by the adjudicator, specifically when “reasonable grounds” were formed by the officer. To the extent statutory

interpretation of

section 88.11(8) (

d) of the TSA is required, this is a question of mixed fact and law well within the adjudicator’s home statute and area of expertise. Accordingly, this question would also attract review on a standard of reasonableness. [ 10 ] If the exemption provision is found not to apply, it is a question of statutory

interpretation of the Adjudicator’s home statute as to whether the police officer was required to offer the roadside appeal immediately, even though Mr. Giroux was mandatorily required to undertake certain impairment tests pursuant to demands made under the Criminal Code . Again, the standard of review is reasonableness. III. Issues [ 11 ] The issues on this judicial review are as follows: (

a) Was it unreasonable for the Adjudicator to conclude pursuant to

section 88.11(8) (

d) that reasonable grounds were formed after the contravention and in the opinion of the officer a roadside appeal could no longer provide any evidence of the blood alcohol or blood drug concentration of the recipient at the time of driving? (

b) If applying

section 88.11(8) (

d) was unreasonable, is Mr. Giroux entitled to have the NAP cancelled pursuant to

section 4 (e) (

v) of the SAR as no roadside appeal was offered? IV.

Background, Procedural History and Key Legislative Provisions [ 12 ] Under the SafeRoads framework, when police have reasonable grounds to believe that a driver operated a motor vehicle while the driver’s ability to operate the motor vehicle was impaired to any degree by alcohol or drugs, or a combination thereof, the peace officer shall issue a NAP to the driver: TSA , ss 88.1(1)(a), (2). [ 13 ] A "notice of administrative penalty" is defined in the PAPA as any notice of administrative penalty issued by an officer who has reasonable grounds to believe that a person has committed a contravention: PAPA , s 5.

A "contravention" includes, without limitation: (

i) a failure to comply with a restriction, prohibition, requirement, rule, direction, order, term or condition imposed by or

under a prescribed enactment; (ii) conduct that is subject to sanction under a prescribed enactment; and (iii) any other action prescribed as a contravention under [the PAPA ] or a prescribed enactment: PAPA , s 1(c). “Contravention” is also defined in section 1(1) (h.1) of the TSA , which states that a “contravention means a contravention under this Act”. [ 14 ] The SAR

section 10 requires certain information be provided to the driver including a statement of the right of the recipient to a roadside appeal. [ 15 ] At approximately 10:30 a.m. on May 21, 2021, the police received reports of a male under the influence operating a motor vehicle. It was alleged that the individual had ingested the drug hydromorphone. Around 10:56 a.m., police located the vehicle in question and conducted a traffic stop. Mr. Giroux was the driver of that vehicle. [ 16 ] While interacting with Mr. Giroux, the attending officer at the scene, Constable Green, noted that Mr.

Giroux had restricted, pinpoint pupils, his eyes did not track with head movements, he was sweating profusely, and he had extreme difficulty following and understanding basic questions. [ 17 ] In the Submission Export which outlines the details of the contravention, Constable Green, in response to the question “ Was a Screening Method Used ,” indicated, “ No, I began with reasonable grounds to believe the driver was impaired, or this is an IRS: 24 hour and no screening method was required ” . The Submission Export also states at 11:17 a.m. Constable Green formed the opinion that Mr.

Giroux’s ability to operate a motor vehicle was impaired by a drug. Mr. Giroux was arrested and advised of his Charter rights at 11:18 am. The officer then read Mr. Giroux, the Drug Recognition Expert Demand, at 11:19 am. [ 18 ] At approximately 11:26 a.m., Mr. Giroux was transported to the District 3 office, where he was placed in a holding cell and provided the opportunity to contact a lawyer. [ 19 ] At 12:53 p.m., a second attending officer, Constable Fairman, conducted a DRE and concluded that Mr. Giroux was impaired by a Central Nervous System stimulant.

The officer made a bodily substance demand for urine from Mr. Giroux at 2:31 p.m. Mr. Giroux provided this sample. There is no further information regarding whether Mr. Giroux was criminally charged but it appears he was released from custody on May 21, 2021. [ 20 ] On June 6, 2021, Mr.

Giroux was issued a NAP under the TSA on the basis that he had operated a motor vehicle while his ability to do so was impaired by alcohol or a drug (or a combination of alcohol and a drug): TSA , s 88.1(1)(a). [ 21 ] The laboratory report for the urine sample was received for analysis on June 2, 2021, and completed on June 9, 2021. [ 22 ] On June 12, 2021, Mr. Giroux submitted a request for an oral review of the NAP. He argued that the NAP should be cancelled as per

section 4 (e)(

v) of the SAR , which reads: 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 ... (

v) 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. [ 23 ] Counsel for Mr. Giroux appeared before the SafeRoads Adjudicator on June 21, 2021. Unfortunately, Mr. Giroux was unable to attend due to a medical emergency. The burden of proof before the Adjudicator was with Mr. Giroux, as per s 18(1) of the PAPA . Mr. Giroux had the onus of pleading his case on a balance of probabilities. [ 24 ] The Adjudicator considered two issues: (1) whether a roadside appeal was available to Mr. Giroux under the circumstances; and (2) whether Mr.

Giroux’s right to fairness had been breached by the Adjudicator’s inability to adjourn or postpone a review for a medical emergency. The Adjudicator’s decision with respect to the second issue regarding procedural fairness was not challenged in this judicial review. [ 25 ] The Adjudicator concluded that Mr. Giroux had no right to be advised in writing and made aware of his right to a roadside appeal because

section 88.11(8) (

d) of the TSA applied to his circumstances.

Section 88.11(8) (

d) states that:

(8) No person may seek a roadside appeal under this

section of a notice of administrative penalty ... (

d) issued based on reasonable grounds that were formed after the time of the contravention and where in the opinion of the peace officer a roadside appeal could no longer provide any evidence of the blood alcohol or blood drug concentration of the recipient at the time of driving. V. Analysis A. Was it unreasonable for the Adjudicator to conclude that s. 88.11(8)(

d) applied in these circumstances and, therefore, Mr. Giroux did not have the right to a

roadside appeal? 1. The Certified Record clearly demonstrates the reasonable grounds relied upon were formed at the traffic stop [ 26 ] The Adjudicator found that that the ongoing criminal investigation and time sensitive Charter requirements prevented Constable Green from being in a position to issue the NAP or perform the roadside appeal at the time of arrest. Therefore, the Adjudicator concluded that the basis of the NAP was not formed by Constable Green while at the roadside.

Although the Adjudicator did not expressly indicate when Constable Green would have been in a position to issue the NAP, the Adjudicator did note that, based on the date of the urine analysis, the criminal investigation was ongoing as late as June 2, 2021. [ 27 ] The Adjudicator also stated that by the time the urine sample was obtained, over two hours had elapsed since Mr. Giroux had ceased operating his motor vehicle.

On this finding, the Adjudicator indicated that even if she was satisfied Constable Green had turned her mind to the IRS investigation after the urine sample had been seized, any roadside appeal performed on Mr. Giroux would not have provided any evidence of his blood drug concentration at the time of driving. [ 28 ] Constable Green indicated in her report that she formed reasonable grounds that Mr. Giroux operated a motor vehicle while his ability to do so was impaired to any degree by alcohol or a drug or a combination of alcohol or a drug.

As noted above, in response to the question in her standardized template report, “ Was a Screening Method Used,” Constable Green’s notes indicate , “No, I began with reasonable grounds to believe the driver was impaired, or this is an IRS: 24 hour and no screening method was required”. The officer's notes indicate that she formed reasonable grounds at the roadside. This is particularly apparent from her statement "or this is an IRS", which is a reference to terminology prevalent in the SafeRoads regime.

While the Adjudicator found that the police were conducting a criminal investigation, the above reference from the police officer, “or this is an IRS”, demonstrates that the focus, right from the roadside, was not just a criminal investigation. [ 29 ] The police officer also indicated under the Contravention Details

section of the Submission Export in the Certified Record that the occurrence date was on June 6, 2021, but there was no information provided as to what occurred on June 6, 2021, as part of a criminal investigation or otherwise, to support reasonable grounds being formed on that date. [ 30 ] Further, while the Adjudicator held that the officer was preoccupied with time sensitive Charter rights and that Constable Green was not “in a position to issue the NAP or perform the roadside appeal at any point during the criminal investigation...”, there is no evidence on the record that this was the case. The officer was presented with two questions on the pre-printed

section of the Notice of Administrative Penalty form entitled “Right to Second Test.” The two questions are: (

i) Driver provided with information on the right to a second test and (ii) Driver requested second test. The officer’s only statement as to why Mr. Giroux was not provided with information on the right to a second test was that the , “ IRS issued after offence date ”.

There is no further explanation on the record as to when reasonable grounds were formed nor any comment on time sensitive issues. [ 31 ] The Adjudicator, at para 12 of her decision, references Constable Fairman’s notes at the police station that the constable was of the opinion that the Recipient was impaired by a Central Nervous System Stimulant and that the driver’s ability to operate a conveyance was impaired at the time of the evaluation.

However, the Adjudicator does not make any finding or inference that reasonable grounds were formed at this point in the investigation. [ 32 ] The Adjudicator also states that Constable Fairman read Mr. Giroux a bodily substance demand for urine at 2:30 pm., the urine was collected and the officer’s narrative ends.

However, the results of the urine test were not received back until after the NAP was issued so the results from the urine test could not have caused the constable to form the reasonable grounds. [ 33 ] Accordingly, the reasonable grounds that existed, at least according to the Certified Record, existed at the time of the traffic stop. It was unreasonable for the Adjudicator to infer or speculate, given the absence of any information on the Record, that the reasonable grounds were formed later at some point during a criminal investigation. B.

If the reasonable grounds relied upon existed at the traffic stop, does the exemption provision of

section 88.11(8)(

d) apply? [ 34 ] First, were the reasonable grounds formed after the contravention? [ 35 ] In LaGrange v Alberta (Director of SafeRoads) , 2023 ABKB 163 [ LaGrange ], the SafeRoads Adjudicator found that

section 88.11(8) (

d) of the TSA applied where an Attending Officer did not make an initial Approved Screening Device demand at the scene of a rollover accident. The Attending Officer’s reason as to why no roadside appeal information was provided was that the driver was not fully conscious and was being taken by STARS air ambulance to the hospital. The Attending Officer did not deliver the NAP to the driver until five days after the incident. [ 36 ] In interpreting

section 88.11(d)(8), Sidnell J noted the definition of contravention in section 1(1) of the TSA and held that a contravention must occur first, followed by the police officer’s reasonable grounds: para 21. In LaGrange the Adjudicator had held that the Attending Officer’s reasonable grounds were formed three days after the roll over when the officer had a telephone conversation with Mr. LaGrange .

Sidnell J upheld that finding as it showed that the Attending Officer’s reasonable grounds were formed after the time of the contravention. [1] [ 37 ] I agree with Sidnell J that a contravention must occur first, followed by the police officer’s formation of reasonable grounds. Applying a similar analogy in the criminal context, an offence occurs at the time it is committed and not when the person is later found or declared to be guilty. Reasonable grounds, in other words, are formed in most, if not all cases, after the contravention occurs.

[ 38 ] However, I find the words “reasonable grounds formed after the time of the contravention” are intended to be interpreted in a more restrictive manner than simply grounds which were formed after the time of the contravention. Otherwise, the exemption provision could potentially be invoked in almost all circumstances.

It is evident from the specific protections set out in the legislation, that the legislators intended that in most circumstances, drivers would be afforded rights of appeal. [ 39 ] Accordingly, it is likely that the legislators were attempting to distinguish between the formation of grounds which can be reasonably characterized as occurring or continuing within one time frame in fairly close proximity to the contravention, as contrasted with reasonable grounds which were later formed as a clearly separate and distinct event. For example,

section 88.11(1)(

d) could apply in circumstances where there was an ongoing investigation and information supporting the formation of reasonable grounds is obtained when the driver is not available in person to issue the NAP. This was the case in LaGrange where Sidnell J held that the later telephone conversation with the driver was the basis for the reasonable grounds formed after the contravention. Another circumstance which comes to mind is where the police have some information that a driver is impaired and a camera then captures the driver driving erratically or hitting a parked car.

The police may not have formed reasonable grounds until after they have received the information and viewed the video. By the time the police are in a position to find and arrest the driver, it will be too late for a blood or breath sample to provide any information as to whether the driver was impaired at the time of the contravention. [ 40 ] In any event, reasonable grounds were indicated in the Certified Record to have formed roadside and Mr. Giroux was available to be issued the NAP at that time or later when in police custody.

Reasonable grounds could not be said, in these circumstances, to be formed after the contravention. [ 41 ] If I am wrong and reasonable grounds could be inferred through the steps taken at the police station through the DRE, or some other later criminal investigatory steps, constituting “reasonable grounds formed after the contravention” pursuant to

section 88.11 (8)(d), I would still find that the second element under that

section is not met. On its face, the exemption provision reads that: No person may seek a roadside appeal under this

section of a notice of administrative penalty...issued based on reasonable grounds that were formed after the time of the contravention and where in the opinion of the peace officer a roadside appeal could no longer provide any evidence of the blood alcohol or blood drug concentration of the recipient at the time of the driving”. [emphasis added] [ 42 ] However, there is no evidence in the Certified Record that in the opinion of the police officer a roadside appeal, through provision of an oral sample could no longer provide any evidence of the blood alcohol or blood drug concentration of Mr.

Giroux at the time of driving. [ 43 ] I acknowledge that a separate contravention is circumscribed in a different provision in the TSA by a 2 hour time limitation: if a police officer has reasonable grounds to believe “that a driver has within 2 hours after ceasing to operate a motor vehicle a blood drug concentration that is equal to or exceeds any blood drug concentration for the drug that is prescribed by regulation under the Criminal Code (Canada) ”...the peace officer shall issue a notice of administrative penalty to the driver:

section 88.1(1). However, this 2 hour limitation should not simply be presumed to be applied to the exemption section. If this was intended, the drafters would have specifically set out the 2 hour limitation as they did in other sections of the TSA . [ 44 ] I find that, simply because a NAP was issued after the offence date, it is insufficient to simply presume that, in the opinion of the police officer, a roadside appeal could no longer provide any evidence of the blood drug concentration. Rather, this must be evident somewhere in the Certified Record.

It was unreasonably speculative for the Adjudicator to read in the 2 hour time limit when there was no evidence in the Record to support that the police officer believed that the urine sample could no longer provide any evidence of drug concentration at the time of the contravention. Indeed, the fact that the urine sample was requested and sent for analysis supports that the police officers did believe it could provide evidence of blood drug concentration. [ 45 ] I would also note that the DRE test was not conducted until 12:53 p.m. and a urine sample was not requested until 2:31p.m.

The police cannot rely on tardiness in conducting a urine sample as a basis for invoking the exemption provision disentitling the driver to an appeal. [ 46 ] Reasonable review is a deferential standard and is not “a line-by-line treasure hunt for error”: Vavilov at paras 85, 102 . Nor does it require a standard of perfection: Vavilov at para 91 . A reasonable decision is one that is rational, logical, and “adds up”: Vavilov at paras 102, 104 . The reasons of the decision maker must be read in light of the record and with sensitivity to the administrative regime in which they were given: Vavilov at para 103 .

The burden of establishing that the decision under review was unreasonable lies with the applicant: Vavilov at para 100 . [ 47 ] I find that it was unreasonable for the Adjudicator to rely either on reasonable grounds that existed after Mr. Giroux’s release but which are not apparent on the face of the record, or on grounds which existed at the time Mr. Giroux was in police custody pursuant to the DRE but for which the NAP was not issued until 16 days later. [ 48 ] Accordingly, I find that the adjudicator’s decision that reasonable grounds were formed after the time of the contravention is unreasonable.

Section 88.11(8)(

d) does not apply. C. If applying

Section 88.11(8)(

d) was unreasonable, is Mr. Giroux entitled to have the NAP cancelled pursuant to s 4(e)(

v) of the SAR? [ 49 ] The Director argues that an overly technical approach to roadside appeals may be contrary to the purpose of the legislative scheme. The Director says that traffic safety law is meant to be complementary to the Criminal Code and that the police should be afforded some discretion to proceed with a NAP after their investigation. Without this discretion, the police may be committed to pursuing criminal charges or giving up their investigation altogether, forcing the police to choose either criminal investigation or a NAP. [ 50 ] The Director also says offering a voluntary roadside appeal while in the midst of eliciting the same test through compulsory

demands under the Criminal Code would confuse detainees as to their rights and obligations as well as jeopardize a criminal investigation which is subject to time sensitive requirements.

The Director argues that because the Applicant underwent more tests for impairment than he would have been entitled to under SafeRoads, the reliability safeguards were met. [ 51 ] Pursuant to the Criminal Code , when the police have reasonable grounds to believe that a person has operated a conveyance while impaired the officer may demand the driver comply with several sobriety type tests including samples of a bodily substance: Criminal Code , ss 320.27, 320.28 . In the factual circumstances of this case, pursuant to the administrative SafeRoads regime and

section 88.11 (2) (

g) of the TSA , the driver would likely have been entitled, on a voluntary basis as a right of appeal, to provide a sample of an oral fluid, undergo a DRE or provide a sample of blood or urine. Mr. Giroux was given a DRE and provided a mandatory urine sample as per the Criminal Code , which results were received back June 9, 2023. [ 52 ] After this judicial review was argued but before my decision was released, the Court of Appeal released its reasons in Lausen . An opportunity was provided to both Mr. Giroux and the Director to provide supplementary submissions. [ 53 ] In Lausen , the Court found that as a matter of statutory

interpretation, the attending police officer must advise the driver in writing of their right to an appeal and provide the driver with the tear away sheet prior to the driver undergoing a second impairment test. The Court emphasized that the driver must receive in writing, notice that the second test was voluntary: [49] The statutory context here is critical, because the subject ground for cancellation is part of a statutory scheme that:

a) requires drivers be advised of their right to a roadside appeal before the appeal; and

b) specifies the right is to voluntarily undergo a roadside appeal on request. [50] It is apparent from a number of provisions that the statutory scheme requires written notice before the roadside appeal .

Section 88.11(2) of the TSA provides that a roadside appeal is to be conducted “[n]otwithstanding that a notice of administrative penalty has been issued… where a driver requests an appeal of that notice of administrative penalty”. It explains that the applicable roadside appeal test or assessment depends on what “the basis for issuing the notice of administrative penalty was”. It is significant that the NAP is referenced using the past tense .

Section 10 (a)(

i) of the SafeRoads Regulation requires that NAPs include “a statement of the right of the recipient to a roadside appeal”. Therefore, the sta tutory scheme requires that a NAP containing written notice of the right to a roadside appeal “was” and “has been” issued before the roadside appeal is conducted.... [51] The statutory scheme also specifies that the right at issue is the right to voluntarily undergo a roadside appeal on request.

Section 88.1(5) of the TSA states that the driver has a “right to voluntarily undergo” a roadside appeal.

Section 88.11(2) provides that a roadside appeal test will be administered where the driver “requests an appeal” and “voluntarily attends immediately at a place designated by the peace officer” for the appeal test or assessment. The clear legislative intent is that the roadside appeal be voluntary and performed at the driver’s request. [52] For the roadside appeal to be voluntary, and for the driver to know to request one, the driver must either be advised of the right to a roadside appeal or otherwise be aware of that right before the appeal.

Where notice of the right to a roadside appeal is provided and awareness is achieved only after the appeal, real issues arise (as they do in this case) as to whether the appeal was voluntary or requested.... [ 54 ] The Court emphasized in Lausen that police officers must ensure that the statutory requirements as set out in the legislation are met. I find that simply because Mr. Giroux was mandated to perform a DRE and a urine sample, pursuant to a Criminal Code investigation, that does not automatically fulfill the statutory requirements under the SafeRoads regime.

The SafeRoads legislation requires that the driver be informed of their right to a roadside appeal and make a voluntary choice to request a second test. [ 55 ] The Director emphasizes that police can issue a NAP after the occurrence date including through the mail, and that the police should not be forced to make an irrevocable election between a criminal investigation or IRS process on the occurrence date. I agree with both of these submissions. [ 56 ] There is provision in the legislation for the NAP to be mailed to the individual: TSA

section 6 . This form of service could apply in circumstances where there is a period of delay between after acquired reasonable grounds and issuing the NAP. However, even if the legislation allows the NAP to be served in broader circumstances, I still find that this procedural flexibility cannot negate the required informational and voluntariness components of the SafeRoads regime. [ 57 ] Police can issue a NAP after the contravention, where no roadside appeal is allowed, if, as per

section 88.11(8)(d), reasonable grounds are formed after the contravention, there is some evidence of those reasonable grounds on the record, and there is some evidence on the record that in the opinion of the peace officer a roadside appeal could no longer provide any evidence of the blood alcohol or blood drug concentration of the recipient at the time of driving. That is not the case here. [ 58 ] Police are also not required to make an irrevocable election between a criminal investigation or issuing an administrative penalty under SafeRoads at the time of occurrence.

However, if the police do decide to proceed with both streams, they must abide by both the Criminal Code provisions and the protocol directed under the SafeRoads legislation. T hey must issue all the documents and follow all required protocol for both processes. The police will have to devise procedures to distinguish or specify the samples used in each proceeding. It may be the case that police could use the same sample for use in each proceeding in some form. Similarly, the same DRE test could used for both proceedings but this must be clear on the record.

If the right of appeal is offered but not accepted, then the police will have no issue still demanding a sample for criminal purposes but will have also met their duty under the SafeRoads regime for the purposes of an NAP.

See also Norman v Alberta (Director of SafeRoads ), 2022 ABQB 420 at paras 32-33 , and Hollick v Alberta (Director of SafeRoads) , 2023 ABKB 61 at paras 22–25 for further commentary on the separation of criminal investigations and the issuing of NAPs. [ 59 ] I confirm that the police are still required to offer a roadside appeal, when they intend to pursue both the administrative and criminal streams, even if the voluntary appeal rights would be somewhat illusory given the mandatory demands under the Criminal Code .

I also acknowledge there is little risk that without full information the driver could decline a second test, a concern expressed in

Lausen . Under the mandatory Criminal Code demands, a driver would be required, even in the absence of an informed choice to appeal a NAP, to take a second test and therefore there is no risk of the driver not understanding the right and declining the second test. [ 60 ] However, part of the purpose in offering the second test under the TSA , is allowing the driver the information and understanding that the driver has had the benefit of a second test; not only does the driver get the benefit of the second test, the driver knows they are getting the benefit or reassurance of that test.

If the police fail to comply with the procedural direction to inform and seek a voluntary appeal from the driver because they are proceeding with the criminal charges but the charges are not ultimately pursued and the driver gets a NAP, the driver may not understand that the driver was afforded, in any event, the option of another test to confirm reliability. [ 61 ] As noted by Macleod J, in the King’s Bench decision of Lausen at para 51 : In the context of a roadside stop, the boundary between criminal investigation and administrative procedure must be more clearly delineated….

They [the police] also should take care to ensure that drivers are made aware if a criminal investigation is abandoned in favour of proceeding along the administrative route. [ 62 ] Additionally, if police officers do not turn their minds to TSA contraventions and NAPs while pursuing a criminal investigation, proper records which impact rights of review for drivers may not be appropriately created. In the case at hand, for example, the Adjudicator speculated that reasonable grounds were created at some point after Mr.

Giroux’s release from custody pursuant to a criminal investigation; however, there was no information on the Certified Record as to when this occurred.

It is important from a policing and policy perspective that the SafeRoads regime and administrative penalties not become a default system, with no notice to the driver and an incomplete record, in circumstances where criminal charges are not ultimately pursued for whatever reason. [ 63 ] I would also add that the legislature has shown its commitment to procedural fairness in the SafeRoads regime through the importance it has placed on compliance with the informational component set out in the legislation through the enactment of

section 4 (e) (

v) of the SAR . If the police are found not to have followed certain required procedures, the legislature has directed that the resulting sanction must be cancelled, even if, in fact, the driver committed the contravention. [ 64 ] I am mindful of the overarching important purpose of legislation which is aimed at removing impaired drivers from the road and protecting public safety. However, issuing a NAP sixteen days after reasonable grounds were formed at the roadside stop, is contrary to statutory direction. Given the failure to issue the NAP in a timely manner, the police also failed to inform Mr.

Giroux in writing of his voluntary rights of appeal: TSA , s 88.1(5); SAR s 10 ; Lausen paras 51-56 . [ 65 ] The Director has encouraged me to send the issue back to the Adjudicator to reconsider the matter with the benefit of these reasons. However, I am of the view that there is only one possible outcome in this case. There was no evidence of reasonable grounds that were formed after Mr. Giroux was released from custody pursuant to a criminal investigation.

There was also no evidence in the record which supports that it was the opinion of the police officer that a roadside appeal would not provide evidence of drug concentration. Reasonable grounds were clearly formed roadside; however, the NAP was not issued and the police failed to inform Mr. Giroux in writing of his voluntary rights of appeal. [ 66 ] Accordingly, I find my only recourse is to quash the Adjudicator’s decision and cancel the NAP. Heard on the 14 th day of March, 2023.

Additional Written Submissions received on June 16 th and 27 th , 2023 Dated at the City of Calgary, Alberta this 28 th day of July, 2023 . Janice R Ashcroft J.C.K.B.A. Appearances: Ian Savage, Savage Oykhman Law for the Applicant, Eric Giroux Pascal Visentin, Emery Jamieson LLP

for the Respondent, Director of SafeRoads Alberta _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Justice Janice R Ashcroft _______________________________________________________ Removing footnote 2: For example, perhaps the urine sample could be split to provide two samples, one for each proceeding