Miller v Alberta (Director of SafeRoads), 2023 ABKB 494

Court of King’s Bench of Alberta Citation: Miller v Alberta (Director of SafeRoads), 2023 ABKB 494 Date: 20230905 Docket: 2210 00383 Registry: Red Deer Between: Michael Allan Miller Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice L.K. Harris _______________________________________________________ I. Introduction [ 1 ] During the evening of March 19, 2022, the Applicant, Mr. Miller, was at a party.

He became involved in an altercation with two other individuals, who he says were intoxicated and attacked him by choking and punching him. One of the individuals had earlier boasted about shooting trespassers on his property, and so Mr. Miller felt that his life was in danger. He fled the party in his vehicle. [1]

[ 2 ] Shortly after 11 pm, the RCMP received a 911 call regarding an assault at the party. The caller identified Mr. Miller as the assailant, stating that Mr. Miller was intoxicated and left driving a silver Chevrolet vehicle. [ 3 ] RCMP Constable Hill located the silver Chevrolet shortly before midnight, driving southbound on Highway 2A into Ponoka. He conducted a traffic stop of Mr. Miller’s vehicle. Cst. Hill read the MAS demand to Mr. Miller, who complied. The result was a FAIL. Cst. Hill formed the belief that Mr. Miller was impaired. Cst. Hill issued a Notice of Administrative Penalty (“NAP”) to Mr.

Miller and provided Mr. Miller with the Tear Away Sheet (“TAS”) regarding an appeal. Mr. Miller declined to provide a second breath sample. Mr. Miller was then arrested for the assault upon the two males at the party. [2] [ 4 ] Mr. Miller sought a written review of the NAP by an Adjudicator as permitted under s 7(1) of the Provincial Administrative Penalties Act , (“ PAPA ”) RSA 2020 c P-30.8. On April 11, 2022, an Adjudicator conducted the review and confirmed the NAP issued to Mr. Miller. [ 5 ] Mr.

Miller has now applied for judicial review of the Adjudicator’s decision, arguing that the Adjudicator’s decision ought to be quashed. II. Legal Framework [ 6 ] The background to and legal framework of the Alberta SafeRoads regime has been set out in several preceding decisions: see, for example, Dorn v Alberta (Director of SafeRoads) , 2022 ABQB 394 at paras 4-7 , Isley v Alberta (Director of SafeRoads) , 2022 ABQB 249 . I therefore will not repeat the framework here. [ 7 ] Mr.

Miller was issued an NAP for contravening s 88.1(1)(a) (he was impaired to any degree by alcohol, drug, or a combination thereof) and s 88.1(1)(b) (that within 2 hours after ceasing to operate a motor vehicle he had a blood alcohol concentration that was equal to or exceeds 80 milligrams of alcohol in 100 millilitres of blood) of the T raffic Safety Act (“TSA”) RSA 2000, c T-6 . [ 8 ] In order to succeed, Mr.

Miller needed to prove the grounds for cancellation of an NAP set out in s 4 of the SafeRoads Alberta Regulation (“ SAR”) on a balance of probabilities. [ 9 ] Under s 18 of PAPA , on a review by the Adjudicator: (

a) the burden of proof is on the recipient of a notice of administrative penalty, in this case Mr. Miller; (

b) an adjudicator may determine the weight to be given to any documents, records, representations or evidence; and (

c) an adjudicator is not bound by the rules respecting evidence applicable to judicial proceedings. III. The Adjudicator’s Decision [ 10 ] The Adjudicator identified five grounds for review: (

a) Sections 4(e)(

i) and 4(f)(i): that the Recipient did not operate the motor vehicle; (

b) Section 4(e)(ii) and 4(f)(ii): that a NAP was not served on the Recipient; (

c) Section 4(e)(iii) and 4(f)(iii): that the Director did not provide complete records to the Recipient as required by

Section 12 of PAPA ; (

d) Section 4(e)(iv): that the Recipient’s ability to operate a motor vehicle was not impaired to any degree by alcohol or a drug or a combination of alcohol and a drug; and (

e) Section 4(f)(iv): that the Recipient did not within 2 hours of ceasing to operate a motor vehicle have a BAC equal to or exceeding 80 mg milligrams of alcohol in 100 millilitres of blood (“80 mg%”). [ 11 ] In relation to the first ground, Mr. Miller argued that he was fearful that he would be further attacked while at the party and that his life was in danger, making it legally necessary for him to drive his vehicle to prevent a further assault and possible death. The Adjudicator did not accept this argument, noting that there were many options available to Mr.

Miller other than operating his motor vehicle. [ 12 ] Regarding the second ground, Mr. Miller argued that the document he was served with by Cst. Hill was defective and did not comply with s 10(a)(ii) and 10(a)(

v) of SAR : Requirements of notice of administrative penalty 10 In addition to the content satisfactory to the Minister responsible under

section 16 of the Government Organization Act for the Provincial Administrative Penalties Act , a notice of administrative penalty must contain the following: (

a) in respect of a notice of administrative penalty issued for a contravention of

section 88.01, 88.02, 88.03 or 88.1 of the Act, …

(ii) a statement indicating that there may be additional conditions for reinstatement of the recipient’s operator’s licence, … (

v) the website address for SafeRoads Alberta; [ 13 ] The Adjudicator found that the standard NAP does contain that information on the reverse side of Mr. Miller’s copy, and the QR code on its face directs the recipient to the SafeRoads Alberta website. Thus, the Adjudicator found that Mr. Miller had not established this ground to cancel his NAP. [ 14 ] Next, Mr.

Miller argued that the NAP was defective, that the Director had not provided any evidence of the date of the last annual maintenance performed on the ASD or the date of the last calibration and the calibration expiry and had not provided the video footage from the police vehicle (which was also evidence of the breach of his s 7 Charter right). As already noted, the Adjudicator found the NAP to be valid on its face, and rejected the remainder of Mr. Miller’s arguments. In relation to the video footage, the Adjudicator concluded that Mr. Miller had not established how it was required for Mr.

Miller to know the basis for issuing the NAP as required in s 12 PAPA and s 2(

h) SAR . [ 15 ] In relation to the fourth and fifth grounds, Mr. Miller argued that he displayed no indicia of impairment and that he drove in a “safe and careful manner”. He argued that the MAS demand was not authorized by law and that he was not advised of his Charter rights. [ 16 ] The Adjudicator noted Cst. Hill’s notes of his observations of indicia of impairment. He also concluded that Mr. Miller had not shown that the ASD was defective on the day in question. The ASD provided a “Fail” reading which indicates a BAC of at least 100 mg of alcohol in 100 mg of blood.

The Adjudicator concluded that this argument did not establish grounds to cancel the NAP. [ 17 ] Finally, the Adjudicator considered whether Mr. Miller’s right to fairness was breached based upon the RCMP’s failure to produce the video footage from the police vehicle, the breath demand being made despite not being authorized by law and that Mr. Miller was not provided with his Charter rights before providing a breath sample. Reiterating his prior conclusions, the Adjudicator found that there was no breach of duty of fairness to Mr. Miller in this case. IV. Issues [ 18 ] Mr.

Miller raises three issues for judicial review: 1. The NAP does not contain the SafeRoads Alberta website as required by s 10(a)(

v) SAR ; 2. Cst. Hill did not properly swear that the maintenance tags for the ASD used to administer Mr. Miller’s breath sample had not been altered ; and 3. Mr. Miller only drove his vehicle to escape an assault, and therefore he is “not guilty” via the common law doctrine of necessity. [ 19 ] Mr. Miller’s focus during oral argument was primarily upon issue #1, although he relied upon the submissions made in his written argument to support his position in relation to issues #2 and #3. V.

Standard of Review [ 20 ] Both parties concede that the standard of review applicable to this judicial review is one of reasonableness. [ 21 ] My role in this judicial review is to review the Adjudicator’s decision to determine whether it was reasonable. This was made very clear by the Supreme Court in para 83 of Vavilov , which states: The role of courts in these circumstances is to review , and they are, at least as a general rule, to refrain from deciding the issue themselves.

Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem... [T]he reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable. VI. Analysis a. Is the NAP issued to Mr.

Miller defective for not containing the SafeRoads Alberta Website? [ 22 ] The evidence before the Adjudicator in this case included not only the front page of the NAP issued to Mr. Miller at the scene of the traffic stop, but also the complete standard form issued by police to recipients of NAPs at the time of Mr. Miller’s traffic stop. The complete standard form contains printed information on both the front and back side of the page. On the reverse side there is the following information printed:

“For more information, to pay your fine, to request time to pay, or to request a review of this notice, please visit the SafeRoads Alberta’s website at www.saferoads.com or visit an Alberta Registry Agent.” [3] [ 23 ] Further, the NAP has a QR code printed on the front page. The Adjudicator noted that the QR code leads to the SafeRoads Alberta website. [ 24 ] Mr. Miller argues that Morin v Alberta (Director of Saferoads) , 2023 ABKB 200 applies.

In Morin , the recipient of the NAP argued that the Director did not provide complete records as required by s 12 PAPA , specifically, that his NAP did not include a reference to the SafeRoads Alberta Website. As a result, Mr. Morin argued that a notice of administrative penalty was not served on him and that his NAP should be cancelled. Mr. Miller says that I should apply the principle of comity and find that Morin is binding upon me. [ 25 ] The Director, on the other hand, argues that in Morin , unlike here, the Court did not have the complete notice of administrative penalty before it.

Because the Court did not have the reverse side of the standard form which clearly set out the SafeRoads Alberta Website, the lack of that information led the Court to conclude that the NAP in Mr. Morin’s case was non-compliant. [ 26 ] There is no specific reference in Morin to what exactly was contained in the Record before the Court. The Court simply notes at para 15: Mr. Morin asserts that the NAP did not meet the requirements of the legislation because it did not include two elements referred to in s 10(

a) of the SAR : (1) a statement indicating the conditions for reinstatement of Mr. Morin’s license; and (2) a reference to the SafeRoads Alberta website. Mr. Morin further submits that, as a result of the NAP failing to contain this information, that a notice of administrative penalty was not served on him, and the NAP should be cancelled. [ 27 ] There is no reference in Morin to the Director taking issue with this statement.

There is reference to the fact that ahead of the Judicial Review, the Director attempted to put a supplemental affidavit before the Court containing information which was not in the Record before the Adjudicator. The Court properly declined to consider that information. While I could speculate that the Director was attempting to put the complete standard form NAP, including the reverse page containing the Website, before the Court, I will not take this step. All that can be said from Morin is that the Court appears to have accepted Mr.

Morin’s submission that the NAP issued to him did not contain the Website information as required by s 12 PAPA . [ 28 ] Morin is distinguishable from this case on that point because here, the Director did place the complete standard form NAP issued to Mr. Miller before the Adjudicator, and as such, that form is in the Record of Proceedings. That form clearly contains the Website as required by s 12 PAPA on the reverse page. [ 29 ] Further, Mr. Miller has not provided by way of affidavit an actual complete copy of the NAP he received the evening of March 19, 2022, from Cst. Hill. There is no evidence that Mr.

Miller’s copy was any different from the complete standard copy contained in the Record of Proceedings. [ 30 ] The Adjudicator in this case had ample evidence before him to conclude that the NAP issued to Mr. Miller was compliant. As such, his decision on this point was reasonable. b. Did Cst. Hill swear that the ASD maintenance tags had not been altered? [ 31 ] Although Mr. Miller did not address this issue in oral argument, he did address it in his written submissions.

He argues that police are required to swear that the maintenance tags for the ASD used at the traffic stop are accurate, relying upon Demars v Saferoads , 2022 ABKB 620 . [ 32 ] The Director argues that Mr. Miller did not raise this issue before the Adjudicator, and having failed to do so, is prevented from raising the issue on judicial review. [ 33 ] As noted above, the Adjudicator addressed the issue of whether the Director provided complete records as required by s 12 PAPA . Mr.

Miller’s argument was based on his submission that that the Director had not provided any evidence of the date of the last annual maintenance performed. His submission before the Adjudicator did not raise the question of whether the police in this case had sworn that the photographs of the maintenance tags within the Record of Proceedings were accurate. [ 34 ] As noted in Morin at para 65 , the law is clear that an issue which was not raised on a review before an Adjudicator cannot be raised on judicial review: see Isley v Alberta (Director of SafeRoads) , 2022 ABQB 249 , at para 68 .

At paras 60 to 68 of Islay , Ross J explained why a submission not made before an Adjudicator cannot be made on judicial review. [ 35 ] I adopt the reasoning of Ross J in Islay and conclude that Mr. Miller’s concern regarding whether Cst. Hill had sworn that the photos of the ASD maintenance tags had not been altered is not properly before this Court. I therefore decline to interfere with the Adjudicator’s decision on that basis. c. Mr. Miller’s defence of necessity [ 36 ] Again, although Mr. Miller did not address this issue in oral submissions this issue was addressed in his written argument. [ 37 ] Mr.

Miller swore an affidavit setting out his version of events on the evening of March 19, 2022. He says in part that he had attended a party that evening and encountered two males who were heavily intoxicated. An argument ensued over a mutual acquaintance. Mr. Miller says that one of the males began to choke him. After he stopped, the other male punched him in the nose. Both men then began berating Mr. Miller. He feared they would attack him again, and another altercation occurred when he was

attempting “to flee for my life”. Mr. Miller also references the fact that earlier that evening one of the males “had boasted aboutshooting at trespassers on his property about a month prior”. Mr. Miller felt his life was in danger and that he needed to leave thepremises as quickly as possible. By the time police stopped him, he had driven 19 kilometres, and was approximately ½ a kilometrefrom his residence.

His intention was to lock himself in his residence and remain there until his blood alcohol level was zero. [38] The Record of Proceedings also included evidence from the police responding to a call for assistance, noting that there weretwo victims of an assault, and that Mr. Miller had driven away from the party while intoxicated. [39] The Adjudicator accepted that Mr. Miller was involved in an altercation and had suffered physical harm, and that he feared hewould be attacked again at the party. However, the Adjudicator went on to note several frailties in Mr. Miller’s evidence, including thefollowing: • Mr.

Miller did not say that there had been any threats with a firearm on the night in question and did not mention to the police thatweapons had been involved. He did not tell Cst. Hill that he feared for his life and had no choice but to drive; • Although Mr. Miller says he could not call police for help because he had left his cell phone behind, his counsel argued that Mr.Miller had his cell phone on him at the time of the traffic stop; • Mr. Miller’s intention of calling the police was called into question given his statement that he intended to lock himself in hisresidence until his BAC was zero; and • Mr.

Miller drove 19 kms, when he could have stopped sooner, and he gave no evidence as to why he did not seek refuge elsewhereor only drive as far as was necessary to get away from the two males. [40] On this evidence the Adjudicator concluded that Mr.

Miller did not establish that it was necessary for him to be driving, andhad not established the test set out in R v Latimer, 2001 SCC 1 , 2001 1 SCR 3. [41] Setting aside the issue of whether the defence of necessity applies in the context of administrative sanctions, which I expresslydo not decide here, Latimer establishes a three-part test for necessity: first, that there be the presence of imminent peril or danger,second, that there is the absence of a legal alternative, and third, that there is proportionality between the harm inflicted and the harmavoided.

The Adjudicator also cites Perka v The Queen, (SCC), [1984] 2 SCR 232 in which the Court states that “anydefence of necessity was restricted to instances of non-compliance in urgent situations of clear and imminent peril when compliance withthe law is demonstrably impossible.” [42] As noted above, my role is to review the Adjudicator’s decision for reasonableness, and to see that it demonstrates therequisite degree of justification, intelligibility and transparency: Vavilov at para 100.

An Adjudicator is permitted to assess and evaluatethe evidence before him: Vavilov at para 125, and I must refrain from reweighing and reassessing the evidence. [43] In my view, the Adjudicator’s hesitation in accepting Mr. Miller’s evidence on the issue of whether it was legally necessaryfor him to be driving was reasonable, given the frailties noted. The Adjudicator instructed himself as to the test that needed to be met byMr. Miller and reasonably concluded, based on the evidence before him, that Mr. Miller had not met his onus of establishing necessity. VII. Conclusions [44] Mr.

Miller’s Application for judicial review is dismissed. The Adjudicator’s decision was reasonable, and I decline tointerfere. Heard on the 23rd day of June, 2023. L.K. Harris J.C.K.B.A. Appearances: Alan Pearse Barrister & Solicitor

for the Applicant Anastasia Yevtushenko Alberta Justice for the Respondent