McNalley v Alberta (Director of SafeRoads), 2023 ABKB 616

Court of King’s Bench of Alberta Citation: McNalley v Alberta (Director of SafeRoads), 2023 ABKB 616 Date: 20231103 Docket: 2203 02693 Registry: Edmonton Between: Laurie May McNalley Applicant - and - Director of SafeRoads Alberta Respondent Corrected judgment: A corrigendum was issued on November 24, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Justice N.M. Carruthers _______________________________________________________ I. Introduction

[ 1 ] This is an application for judicial review of an Adjudicator’s decision to uphold a Notice of Administrative Penalty (NAP), issued to Laurie McNalley, the Applicant, on December 23, 2021. [ 2 ] The NAP was issued pursuant to sections 88.1(1) (

a) and 88.1(1)(

e) of the Traffic Safety Act (TSA). These provisions provide that a peace officer may issue a NAP to a driver and suspend their license if the officer has reasonable grounds to believe: (

a) 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 a drug or by a combination of alcohol and a drug, or (

e) that a driver, knowing that a demand has been made, failed or refused, without a reasonable excuse, to comply with a demand made on the driver under

section 320.27 or 320.28 of the Criminal Code (Canada) . [ 3 ] The Adjudicator’s review decision was issued on January 21, 2022. The judicial review of that decision was initiated by an Originating Application and heard May 2, 2023. The Applicant seeks to have the NAP cancelled, while the Director seeks a dismissal of the judicial review application. II.

Legal Framework [ 4 ] The legislative and procedural framework of the SafeRoads regime has been described in several preceding decisions of this court including Mierke v Alberta (Director of SafeRoads ), 2021 ABQB 1003 and Isley v Alberta (Director of SafeRoads), 2022 ABQB 249 . [ 5 ] The recipient of a NAP has the right to request a review of the NAP by an Adjudicator. The Adjudicator may confirm or cancel the NAP.

Section 4 of the SafeRoads Alberta Regulation, Alta Reg 224/2020 ( SAR ) sets out the grounds for cancelling a NAP. The burden of establishing the grounds to cancel a NAP is on the recipient. III. History A. The Traffic Stop [ 6 ] The contravention details on file indicate that the police attended on Ms. McNalley’s residence in Edmonton on December 23, 2021, in response to a call about insecure premises. They attended the scene and saw that the front and rear doors were ajar, but there were no signs of forced entry.

They entered the home and observed a large number of empties, which they described as significant evidence of long-term alcohol consumption. [ 7 ] The police spoke with a neighbour who reported concerns that the homeowner was always drunk. The neighbour reported that the homeowner drove a black Mercedes SUV. The officer secured the premises. He left and then observed a black Mercedes driving on Ms. McNalley’s street, with a plate matching her name. He turned around and stopped her outside her house. The Applicant exited the vehicle, slurring her words and blaring the vehicle’s stereo.

She emitted an obvious smell of alcohol, and the officer observed her to have bloodshot eyes and to be ranting incoherently. The Applicant was arrested for impaired driving at 12:49. She was cautioned and asked if she wished to speak with counsel, and she responded that she did. [ 8 ] The police officer’s notes indicate he made a demand for a breath sample. The notes also appear to indicate that police asked her if she understood and that she responded “yes”. Cst. Wildner issued a breath demand to the Applicant at approximately 12:57.

When they sought compliance, the Applicant responded by saying “no, charge me”. [ 9 ] Cst. Widner decided to issue a NAP. The police issued an Immediate Roadside Sanction (IRS) with a fine of $1000 and seized her vehicle. [ 10 ] The Applicant filed a statutory declaration, although there is nothing in her sworn declaration about the traffic stop itself. She dealt solely with the issue of the police entering her home. She stated that the only way the police could know she had empty bottles in her home was if they had entered her kitchen and basement.

She also suggests they must have entered her private back yard, as they observed her back door was ajar. B. The Adjudicator’s Decision [ 11 ] The Adjudicator denied the application to cancel the NAP. The Adjudicator summarized the grounds on which the Applicant sought to cancel the NAP as follows: 1. pursuant to

section 4(e)(iii) and 4(i) (ii) of the SafeRoads Alberta Regulation , the Director did not provide complete records to the Applicant, as required by

section 12 of the Provincial Administrative Penalties Act (PAPA); and 2. pursuant to

section 4(i)(v), that the Applicant, knowing a demand had been made under the Criminal Code , did have a reasonable excuse for failing or refusing to comply with that demand. [ 12 ] The Adjudicator reviewed Cst. Widner’s report in the Administrative Penalty Information System portal (APIS) and found that it satisfied the requirement to provide a report of the officer who issued the administrative penalty under

section 12 of the PAPA and

section 2 (

b) of the SAR . The report included a notation that a further narrative would be provided at a later date, but that did not occur. [ 13 ] Cst. Widner supplemented the report with handwritten notes, which were also uploaded to APIS. The Adjudicator found that

the failure of the officer to follow up and provide a more complete narrative in and additional did not mean that the requirement to provide complete records had not been met. [ 14 ] The Adjudicator also found that the Applicant did not need to be provided with evidence describing the words used by Cst. Widner in demanding a breath sample from the Applicant. The wording of the demand itself did not provide a basis for the penalty arising from the failure or refusal to provide a sample. The failure to provide the sample provided the basis for issuing the NAP. As such, the wording of the demand was not required in the disclosed documents. [ 15 ] The Adjudicator rejected the argument under

section 4 (i)(

v) of the SAR , that the Applicant had a reasonable excuse for failing or refusing to comply with the demand. He commented that this argument could have been made pursuant to

section 4 (i) (iv) of the SAR , under which a party might argue they did not fail or refuse to comply with a demand. [ 16 ] The Applicant provided a statutory declaration, in which she focussed on the fact police had entered her home without her permission. The Adjudicator noted that she did not provide evidence of her interactions with the police, or of the wording of the demand that was made. There were also no submissions about how the wording would have provided a reasonable excuse for not complying with the breath demand.

The burden of proof is on the Applicant, on a balance of probabilities: s 18(1) of PAPA. In this case the Adjudicator found the Applicant had not demonstrated that police procedure provided a reasonable excuse for failing to comply with a breath demand in this administrative context.

He further states at para 15: In addition, it has not been proven to me that the allegation of a Charter breach, regarding the right to contact counsel, undermines the relevance or reliability of any evidence in this Review. [ 17 ] With regard to the police entering her home, the Adjudicator noted that the Applicant’s affidavit did not specify when she learned police had entered her home. There is no evidence that she was aware of the fact that the police had entered her home before she refused to comply with the breath demand.

The police presence at her home was, therefore, not found to be a reasonable excuse for the Applicant to refuse to comply with a breath demand. Alternatively, the Adjudicator stated the police actions were not egregious, such that they created unfairness. [ 18 ] Finally, in response to the Applicant’s ability to contact counsel before her refusal, the Adjudicator did not find that the police conduct was so egregious that he should cancel the NAP. He relied on the constable’s notes to indicate that the Applicant was Chartered and cautioned, and affirmed she wanted a lawyer.

When the breath demand was made eight minutes later, she reportedly stated, ‘no, charge me’. [ 19 ] Under the provincial procedure, the right to contact a lawyer is temporarily suspended at the roadside. Counsel had argued that police cannot elicit evidence from a person once they have been given the right to counsel and request a lawyer.

The Adjudicator stated in his reasons that the Applicant’s counsel had conceded that police can make a breath demand but argued her answer to that demand could not be used to support the refusal contravention. [ 20 ] The Adjudicator stated he could not determine Charter breaches.

He could determine if an alleged breach might affect the relevance or reliability of the evidence of the refusal, or if the circumstances surrounding the lack of opportunity to contact counsel were so egregious that he should cancel the NAP. [ 21 ] In considering the information in front of him, the Adjudicator observed that the Applicant did not state in her affidavit that speaking to a lawyer would have changed her mind about her response for refusing to give a sample. She also did not refute the officer’s observations of her impairment when they initially encountered her, which led to her arrest.

The Adjudicator was not convinced the evidence of her refusal was unreliable or irrelevant. In addition, the Adjudicator found that the actions of the police throughout their dealings with the Applicant’s matter were not egregious. [ 22 ] In conclusion, the Adjudicator found the Applicant had failed to establish that the NAP should be cancelled.

The matter was submitted for judicial review and heard on May 2, 2023. [ 23 ] After the judicial review hearing concluded, the parties requested and received permission to make further brief written submissions to address new case law on the ability to obtain a Charter remedy from the Court of King’s Bench. IV. Issues [ 24 ] The Applicant argues that the Adjudicator’s confirmation of the NAP was unreasonable. The issues, as framed in the Applicant’s brief, are as follows: 1. Was the Adjudicator’s finding that there was no egregious conduct unreasonable? 2.

If no, then does the court have jurisdiction to grant a remedy? 3. Were proper records provided? 4. Should the NAP be cancelled? [ 25 ] The Applicant also made written submissions after the oral judicial review hearing, that she wished to seek a separate Charter remedy. [ 26 ] The respondent Director reframed the issues as follows: 1. Was the Applicant provided with complete records as required by

section 12 of the Provincial Administrative Penalties Act

(PAPA)? 2. Can an Applicant seek stand-alone Charter remedies from the Court of King’s Bench and circumvent the limited jurisdiction of SafeRoads Adjudicators? 3.

Did the Adjudicator reasonably assess the alleged Charter breach by considering whether the impugned actions of the officer affected the relevance and reliability of the breath samples seized and whether the police actions amounted to egregious unfairness, rather than determining whether there was a Charter breach. [ 27 ] I believe the Director’s third issue above should be restated to reflect that the necessary evidence is with respect to the refusal rather than the reliability of a sample, as no sample was obtained. [ 28 ] Based on the foregoing, including the request to consider a Charter remedy, I have considered the following issues: 1.

Was it unreasonable for the Adjudicator to decide that the necessary records had been produced, pursuant to the PAPA? 2. Was it unreasonable for the Adjudicator to find that the Applicant had no reasonable excuse for failing or refusing to comply with a breath demand? 3. Is it available to the Applicant in this matter to seek a separate remedy, outside of the judicial review, in respect of an alleged Charter breach arising out of the circumstances of the traffic stop? V. Standard of Review [ 29 ] The standard of review is reasonableness, as set forth in s 24(3) of PAPA.

As such, the principles of Canada (Minister of citizenship and Immigration) v Vavilov 2019 SCC 65 apply. [ 30 ] Paragraphs 82 to 135 of Vavilov set forth the principles governing a reasonableness review. The principles are summarized below: a. The focus on judicial review is on the decision maker’s reasoning process and outcome (para 83). b. The burden is on the party challenging the decision to show that it is unreasonable (para 100). c. The reviewing court must not replace its decision with that of the decision maker, by conducting a fresh review or seeking the correct solution (para 83). d.

The inquiry begins with the written reasons. A reasonable decision is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires that a reviewing court defer to such a decision (para 85). e. Reasonableness “is concerned mostly with the existence of justification, transparency and intelligibility within the decision- making process”, as well as “with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (para 86). f.

Written reasons are not assessed against a standard of perfection. Instead, they are to be reviewed with the decision maker’s expertise in mind. The context of the hearing, history of decisions, and the administrative body’s policies or guidelines are also relevant (paras 92-94). g. Where reasons contain a fundamental gap or follow an unreasonable chain of analysis, the reviewing court may not substitute its own justification for the outcome (para 96). h. There are two types of fundamental flaws that support a finding a decision is unreasonable.

The first is “a failure of rationality internal to the reasoning process. The second arises when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it” (para 101). i. “Reasonableness review is not a “line-by-line treasure hunt for error”. ...

However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived” ... (para 102). j. A decision, to be reasonable, must be justified in relation to the constellation of law and facts that are relevant to the decision (para 105). k.

Some of the contextual elements that are relevant in evaluating a decision include (para 106-107): ii. the governing statutory scheme – The power of an administrative decision maker is governed by statute. The exercise of discretion available under a statute must comply with the statute (para 108). Although a decision maker’s

interpretation of its statutory grant of authority is generally entitled to deference, the decision maker must nonetheless properly justify that

interpretation (para 109). iii. other relevant statutory or common law (paras 111-113).

iv. the principles of statutory

interpretation – The administrative decision maker’s task is to interpret the contested provision in a manner consistent with the text, context and purpose, applying its particular insight into the statutory scheme at issue (para 121).

If ... it is clear that the administrative decision maker may well have arrived at a different result, had it considered a key element of a statutory provision’s text, context or purpose, its failure to consider that element would be indefensible, and unreasonable in the circumstances (para 122); v. the evidence before the decision maker and facts of which the decision maker may take notice (paras 125-126); vi. the submissions of the parties (paras 127-128); vii. the past practices and decisions of the administrative body – Administrative decision makers are not bound by their previous decisions.

Those affected are, however, entitled to expect that like cases will generally be treated alike (para 129). If a decision maker departs from past longstanding practice or established internal authority, it must justify and explain the departure in its reasons (para 131); and viii. the potential impact of the decision on the individual to whom it applies (paras 133-135). VI. Decision A. Was the Adjudicator’s Decision Unreasonable in Finding That Complete Records Were Provided to the Applicant? 1. Parties’ Positions [ 31 ] The Applicant argues the NAP should be set aside for a failure to provide complete records.

The Applicant disputes the Adjudicator’s finding that the report from an issuing officer can be in any form. As well, the Applicant points out that a relevant and necessary narrative was promised by Cst. Widner but remains outstanding. [ 32 ] The Applicant submits that the police entered her home without a warrant, but there is no information about that entry. There is also nothing to confirm the nature of discussions regarding the caution issued to the Applicant and the discussion regarding her right to counsel, nor regarding the breath demand.

There was an indication on the file that a further narrative was forthcoming, though it was never provided. On these grounds the Applicant argues the record was deficient. The Applicant disagrees with the Adjudicator’s statement that further records would not provide insight into the circumstances leading to the issuance of the NAP, with regard to the Applicant’s impaired operation of her vehicle and the refusal to provide a breath sample. [ 33 ] The Director submits the Applicant needs to establish that the allegedly missing records were required under

section 12 of the PAPA and

section 2 of the SAR , and that the record was not provided. In this case the officer who issued the NAP provided a report or narrative, as well as the officers’ handwritten notes. The Director submits that the Applicant’s real issue may be that the police records include insufficient detail.

The Director submits that this is not one of the prescribed grounds for setting aside a NAP, though the sufficiency of detail may raise questions about whether a driver was provided with all relevant records that were necessary to determine the basis for a NAP. [ 34 ] The Director submits that the additional evidence sought by the Applicant regarding the officers’ attendance at her home is not necessary to determine the basis for issuing the NAP.

The grounds for issuing the NAP arose from the officer’s observation that the Applicant was impaired and her failure to provide a breath sample. [ 35 ] The Director submits that the same is true for the evidence of the words that may have been used by the police. The information about the language the officer used at the time of arrest or when making the demand was not necessary for the Applicant to challenge the NAP at the original hearing. The basis for issuing the NAP was the Applicant’s own failure to comply with the breath demand.

It was also notable that she had not provided any evidence that the demand was improper, even though she had the opportunity to provide that evidence in her statutory declaration. 2. Analysis [ 36 ] The relevant provisions governing the disclosure of records are set forth in the SAR . More particularly, subparagraph 2 (

b) requires that the Director provide a report of the officer who issued the notice of administrative penalty. Subparagraph 2 (

h) requires the production of “any other relevant records and representations of the officer who issued the notice of administrative penalty or any other officer, including peace officers’ reports that have not been certified, sworn or solemnly affirmed, that are in the opinion of the Director relevant and necessary to determine the basis for issuing the notice of administrative penalty”. [ 37 ] With respect to the failure to provide relevant and necessary information, counsel for the Applicant relied on the decision in Gordey v Alberta (Director of SafeRoads) , 2023 ABKB 228 .

In my view, the facts in Gordey are distinguishable. In Gordey , there was a complete failure to provide records from the second officer, or a failure to confirm they did not exist. The second officer’s observations and notes would have been necessary to fully assess whether the basis for issuing the NAP was reasonable, as he administered the alcohol screening device (ASD). The Director took the position that it could exercise its discretion and determine that such notes were not necessary if the other disclosure revealed the basis for the NAP.

The Adjudicator in that case interpreted the scope of relevant and necessary documents too narrowly, stating that the Director was not obliged to disclose additional records that might be available, but only those that were relevant and necessary to know the basis for the NAP. The Court determined this finding was unreasonable as it did not provide for procedural fairness or the ability of parties to know the case they must meet. It was not sufficient to provide the notes of

only one officer, even though it was accepted that one officer can comment on observations of what the other officer did during the investigation. It was necessary to have the notes from the officer who administered the ASD. [ 38 ] I observe in the present case that Cst. Widner’s notes are included in the disclosure and that he issued the NAP. This matter is distinguishable from Gordey on that basis. [ 39 ] The Applicant also submits that she was deprived of two other separate records. First, she states she required a more detailed report outlining how the Applicant’s home was inspected by Cst. Widner.

Second, she submits that she should have been provided with the specific words used by Cst.

Widner when demanding the breath sample. [ 40 ] With respect to the Applicant’s contention that further information was required about the police entering and inspecting her home, the specifics of the search of the Applicant’s home is irrelevant to the basis upon which the NAP was issued. [ 41 ] In the circumstances, it was reasonable for the Adjudicator to find that the details about the police entering the Applicant’s home provided no evidence or insight in relation to the refusal to provide a breath sample, nor with regard to her operation of her vehicle while impaired.

The objection raised by the Applicant’s counsel regarding the entry into the home is more related to a privacy breach or a concern that it was a warrantless search. That evidence is not connected in any way with the evidence required to support the contraventions under the TSA. [ 42 ] In response to the second submission, having information about the language used to demand a breath sample is not necessary to determine the basis for issuing the NAP under

section 88.1(1)(

a) of the TSA, as that contravention arises from the officer’s direct observation that the Applicant was driving while impaired. [ 43 ] The nature of the officer’s communication with the Applicant is not necessary to assist the Applicant to know the basis for the contravention under

section 88.1(1)(

e) of the Act as the NAP was issued as a result of the Applicant’s own refusal to provide a breath sample in response to a demand. The fact a demand was made was documented and not in dispute. The Applicant had the onus and opportunity to provide evidence about the potential reasons for her refusal and did not. If the Applicant felt that the demand was improperly issued, she had the opportunity to provide evidence in the form of an affidavit.

She did not. [ 44 ] The Applicant also takes the position that more information is required to assist in determining whether the police were proceeding with criminal charges or with administrative penalties. The Applicant submits that the boundary between a criminal investigation and an administrative procedure must be more clearly defined and that the right to counsel should not be suspended after a driver has chosen to exercise the right to speak to counsel. The Applicant’s counsel submits in their brief that

section 10(

b) of the Charter is not limited to arrests or detentions in the criminal context. Ultimately, the Applicant takes the position that it is grossly unfair to rely on her words of refusal when she had already chosen to exercise her right to counsel. This argument will be dealt with in more detail under subsequent headings. [ 45 ] On the first issue, I have found that the Adjudicator’s decision was reasonable. The application to set aside the NAP, on the grounds that the Director has failed to disclose necessary and relevant documentation, is not successful.

The notes and the narrative satisfy the statutory and regulatory requirements, as they include the records of the officer who administered the NAP and other records necessary to determine the basis for issuing the NAP. B. Was it Unreasonable for the Adjudicator to Find That the Applicant Had No Reasonable Excuse for Failing or Refusing to Comply With a Breath Demand? 1. Parties’ Positions [ 46 ] Relevant to this analysis is whether it was reasonable for the Adjudicator to find that there was no unfairness or egregious conduct on the part of the police.

In relation to this issue, the Applicant’s argument focuses on the warrantless search of her residence, and the officer’s failure to ensure that the Applicant had an opportunity to speak to counsel before she communicated her refusal to provide a breath sample. According to the Applicant, these police actions amounted to an egregious and unfair violation. [ 47 ] The Adjudicator found that the police initially decided to proceed criminally but then chose to apply provincial sanctions, at which point the right to contact a lawyer was temporarily suspended.

Further, the Adjudicator stated that the Applicant did not indicate in her affidavit that speaking with a lawyer would have changed her mind about her response for refusing to provide a sample. Finally, the Adjudicator found that the actions of the police were not egregious in nature. [ 48 ] The Applicant submits that, once she was arrested, the right to counsel could not be suspended at the roadside.

She argues that the Adjudicator’s reasons with regard to the reliance on the Applicant’s refusal to provide a breath sample are in error and his findings are unreasonable. [ 49 ] In particular, the Applicant takes issue with the fact that there was no evidence on the record to demonstrate that the police chose to proceed with provincial sanctions. She appears to have been arrested and was read her rights. The police narrative refers to the Applicant being “under arrest for impaired driving”. She was cautioned and asked if she wanted to speak to a lawyer.

She confirmed she wished to speak to a lawyer prior to police asking for a breath sample. There is no evidence of what the police stated to her before she refused to provide the breath sample, at which time she indicated that they should “charge her”. [ 50 ] In these circumstances, it was reasonable to infer that the police were proceeding criminally in the first instance. In this context, the Applicant argues it would be unfair to rely on evidence of her refusal to provide a breath sample. She had been offered the right to counsel and wished to exercise that right.

She was not, however, given the opportunity to exercise the right to speak to counsel before the police issued the demand and she refused to provide a breath sample. On this basis, the Applicant also argues for Charter relief to apply.

[ 51 ] The Applicant submits the Adjudicator’s statement that the actions of the police were not egregious was a finding based on a lack of reasons. The Applicant takes the same position with regard to the Adjudicator’s statement that the Applicant did not indicate in her affidavit that speaking with a lawyer would have changed her mind about her refusal to provide a breath sample.

The Applicant submits that this line of reasoning is not proper, as she cannot be expected to know what might have happened when she was not given a chance to consult a lawyer. [ 52 ] Applicants’ counsel also expressed concern regarding the actions of police in entering the Applicant’s residence. I understood the submissions to be relevant to the issue of whether the officers’ conduct was egregious. Under the provincial regime it has less significance as it is not connected to the contraventions of the provincial act.

In the criminal context, however, counsel suggested it might have more significance if it could be connected to the arrest and the timing of the breath demand. [ 53 ] The Director submits that the Applicant is improperly attempting to seek a Charter remedy where none is available. Charter interests are to be considered through a ‘right to fairness’ analysis. Adjudicators have no jurisdiction or authority to make findings that impose Charter obligations on police.

To the extent the Applicant is attempting to bring a Charter challenge, she has also failed to provide the required notice to do so. [ 54 ] The Director further submits that the Adjudicator acted reasonably when he undertook an analysis of the duty of fairness owed to the Applicant. It submits the Adjudicator reasonably concluded that the investigation must have transformed from criminal to administrative and that the right to contact a lawyer is suspended at the roadside in the administrative context.

The Director also submits that the Adjudicator’s decision was reasonable in finding the officer’s handling of the matter did not rise to the level of egregious conduct. [ 55 ] The Director supported the Adjudicator’s consideration of the officer’s entry into the Applicant’s residence. The Applicant’s own evidence does not specify when she learned police had entered her home, and there is no evidence that she was aware of this before she refused to comply with the breath demand.

The evidence about the officer’s entry into her home is not relevant to the Applicant’s impairment, nor to her refusal to provide a breath sample. 2. Analysis [ 56 ] I will first address the issue of the police entering the Applicant’s residence. Police were called to check on insecure premises and found two open doors. This is unusual in December and could indicate someone was in distress or that there were intruders in the home. It was not unreasonable to walk through the entire home to ensure the residents and premises were safe.

It may have been the case that the empty bottles led them to believe the resident consumed a lot of alcohol. The officer next talked to neighbours who provided their observations of the Applicant’s frequent intoxication, and also identified the make and model of the Applicant’s car. This latter encounter seems to be what led the police to easily identify the Applicant’s car as she returned home. The fact remains that the police stopped her when she was apparently driving while impaired. The observations of her conduct during the traffic stop support a finding that she drove while impaired.

While it is unfortunate that the Applicant has strong feelings about the police entering her home, it was not unreasonable for them to do so. Further, it was reasonable for the Adjudicator to find that no unfairness resulted from the officer’s entry into the Applicant’s home. The evidence regarding the entry into the home is not relevant to the finding that the Applicant was observed by police to be driving while impaired, nor is it connected to or relevant to the Applicant’s refusal to provide a breath sample.

The Applicant does not suggest in her statutory declaration that the officer’s entry into her home was known to her at the time of the traffic stop, or that it was a factor in her refusal to comply with the breath demand. [ 57 ] The failure to provide the Applicant with the opportunity to seek advice from counsel is a more substantive issue. Both parties made submissions regarding whether the circumstances of this traffic stop gave rise to unfairness, such that the NAP should have been cancelled.

The Applicant submitted the Adjudicator’s decision on this issue was unreasonable. [ 58 ] The Adjudicator found that the police initially decided to proceed criminally but then chose to apply provincial sanctions, at which point the right to contact a lawyer was temporarily suspended. Further, the Adjudicator stated that the Applicant did not indicate in her affidavit that speaking with a lawyer would have changed her mind about her response for refusing to provide a sample.

Finally, the Adjudicator found that the actions of the police were not egregious in nature. [ 59 ] Counsel referred me to the decision of Justice Sidnell in Morin v Alberta (Director of SafeRoads ), 2023 ABKB 200 . In that matter, the applicant refused an ASD demand and was challenging the Adjudicator’s decision to uphold the NAP. Justice Sidnell confirmed that the relevant provisions of the TSA should be interpreted in a regulatory context, rather than criminal.

The Court relied on the Supreme Court of Canada decision in Wilson v British Columbia (Superintendent of Motor Vehicles) , 2015 SCC 47 , which dealt with a similar program introduced in British Columbia to curb impaired driving. Justice Moldaver stated in Wilson that the provincial legislation was not subsidiary to the Criminal Code , and did not incorporate the protections under the federal legislation.

The Supreme Court rejected the argument that provincial laws governing impaired driving must incorporate the same protections as those provided under the Criminal Code . [ 60 ] In Morin , Justice Sidnell dismissed the applicant’s arguments for setting aside the NAP. The applicant argued that the demand should have been governed by the Criminal Code and that the officer required a reasonable suspicion before making an ASD demand and did not have valid grounds. The officer’s observations caused him to believe the applicant was impaired, notwithstanding the applicant’s denials in his affidavit.

He also argued that the officer had not identified the type of demand at the roadside, but the Court found that the Traffic Safety Act does not require an officer to identify the type of demand. The Court went further and stated as follows at para 46: Mr. Morin’s approach to the

interpretation of since [sic] s 88.1(1)(

e) of the TSA is not in accordance with the proper

interpretation of the TSA, as I have addressed under Issue 2. The

interpretation proposed by Mr. Morin undermines the purpose of the PAPA , set out at paragraph [37]. The

interpretation proposed by Mr. Morin would require applying an administrative penalty system overlaid on the criminal law for impaired driving. This would not lead to a simplified form for administrative enforcement, an expedient process or a simple method of disputing a TSA contravention. I do not accept Mr. Morin’s

interpretation and do not agree that a review of a

contravention under s 88.1(1)(

e) of the TSA requires an analysis of the underlying legal validity of the ASD demand under either s 320.27 or 320.28 of the Criminal Code . [ 61 ] In Morin , Justice Sidnell found the decision to uphold the NAP was reasonable. The Adjudicator had properly considered the issues and concerns raised by the applicant and correctly found no unfairness arising from the circumstances of the roadside traffic stop. [ 62 ] Justice Sidnell also stated that the parties cannot raise an issue on judicial review that was not raised before an Adjudicator.

The applicant was not permitted to put forward two new challenges that were not raised at the initial review. [ 63 ] The circumstances of the traffic stop in Morin were similar to those in this matter. The officer responded to a concern about a possibly intoxicated driver and conducted a traffic stop. On encountering the driver, the officer made observations consistent with impairment and issued a breath demand.

There is no suggestion in that case, however, as to whether the police had offered Morin the right to counsel and the issue does not appear to have been raised in front of Justice Sidnell. [ 64 ] The parties also directed my attention to the decision of Curtis v Alberta (Director of SafeRoads) , 2022 ABKB 632 , in which Justice Bokenfohr cites Justice Macleod in Lausen v Alberta (Director of SafeRoads) , 2021 ABQB 896 . In both cases, the Justices hearing the judicial reviews stated that the boundary between a criminal investigation and administrative procedure should be clearly delineated.

In neither case, however, was the failure to make such a distinction found to be a basis for setting aside a NAP. [ 65 ] In Lausen v Alberta (Director of SafeRoads), 2023 ABCA 176 , the Court of Appeal was engaged in a statutory analysis of the TSA, and found that the statute requires service of a NAP on a driver prior to the voluntary roadside appeal. Unfortunately, that case did not present the Court of Appeal with an opportunity to deal with whether there is an obligation on the police to advise if they are proceeding with a criminal investigation or an administrative process.

It also did not address whether drivers should be entitled to consult with counsel before complying with a breath demand, when the police do not clearly identify in which process they are engaged. The Court specifically stated at para 58 that it was not considering sections 8 and 10(

b) of the Charter, as the legislation requiring the service of the NAP was clear and it was not necessary to apply Charter values as an interpretive tool. [ 66 ] In Lawrence v Alberta (Director of SafeRoads), 2023 ABCA 271 , the Director of SafeRoads applied for permission to argue on appeal that the Court of Appeal’s decision in Lausen should be reconsidered. The specific issue that the Director asked to be reconsidered is whether, under s 4(e)(

v) of the SAR , it is necessary for recipients of an administrative penalty to be aware of or to have received a NAP before they are said to be aware of their rights to a roadside appeal. On the basis of the Lawrence decision, it may be possible to distinguish Lausen if there are facts to suggest a driver was aware of the right to a roadside appeal. [ 67 ] In Lawrence , the Court of Appeal once again considered the process required during a traffic stop, listing the steps at para 22.

Again, there is no consideration of a driver’s right to counsel at a traffic stop conducted under the TSA. [ 68 ] Turning to the Adjudicator’s decision in this matter, the Adjudicator considered the three grounds on which the Applicant relied to provide a reasonable excuse for the failure to comply with the breath demand. These included the following: 1. It was not proven that the demand was lawful; 2. The Applicant felt violated; and 3.

The Applicant did not get the right to counsel. [ 69 ] On the first point, the Adjudicator correctly stated that the Applicant had the onus to provide evidence to explain why she had an excuse for non-compliance. The Adjudicator found that the Applicant knew a demand had been made. There was no explicit evidence of the wording of the demand from the officer, but the Applicant’s evidence and submissions did not explain how the demand may have been unlawful or how the wording would have provided an excuse for failing to comply with the demand.

The Applicant’s affidavit focussed on the police entering her home and she did not address the circumstances of the demand or her encounter with the police at the roadside stop. The allegations of a Charter breach, regarding the right to contact counsel, were also not successful on this point. It had not been made clear to the Adjudicator how that might be connected to the relevance or reliability of the evidence. [ 70 ] The crux of the decision on this point is that the Applicant failed to meet the onus to establish why she had a reasonable excuse for failing to provide a breath sample in response to a demand.

She provided no evidence of the events at the traffic stop in her statutory declaration. At the judicial review hearing, counsel affirmed that the officer’s notes indicated the Applicant had been asked if she wanted to speak to a lawyer and had been cautioned. She responded that she would like to speak to a lawyer. This

interpretation of the notes seems to be based on an industry understanding of the “shorthand” used by police making their notes. The notes then clearly show the officer subsequently issued a demand for a breath sample and the Applicant replied that they should charge her. There was no suggestion or evidence that she did not understand the request.

The Applicant had an opportunity to state in her affidavit whether she had waived the right to counsel, or whether she had sought or been given an opportunity to consult counsel, but she failed to address these issues. [ 71 ] The Applicant also failed to provide any of her own evidence regarding her interaction with the officer. The officer’s notes show the necessary sequence of events to support the issuance of the NAP under the TSA, and the Applicant failed to meet the onus on her to provide grounds for a reasonable excuse for failing to comply with a breath demand.

More specifically, she did not establish the demand was unlawful or that it was issued in egregious or unfair circumstances, such that the Applicant had a reasonable excuse to refuse the breath demand or that her refusal cannot be used as evidence. [ 72 ] The second issue, regarding the officers entering the Applicant’s home, has already been considered in these reasons. It is not connected to the events which directly gave rise to the contraventions in the NAP. The findings of the Adjudicator were reasonable, when he found that the Applicant had not stated when she knew that the police had entered her home.

There is certainly no evidence in her affidavit to suggest that this knowledge was, or could have been, grounds for non-compliance with a breath demand. On this issue, I again find the Adjudicator’s findings are reasonable. [ 73 ] On the third issue, the Adjudicator dealt with the Applicant’s assertion of the right to contact counsel prior to the breath demand. He found that the police were apparently proceeding criminally at first, and then chose to proceed with the provincial sanctions.

This is a reasonable finding given the evidence that the Applicant was read her rights when first arrested and was soon after issued a demand to provide a breath sample, followed by the issuance of a NAP. When proceeding under the provincial regime, the right to

contact a lawyer is temporarily suspended at the roadside. There is no current SafeRoads case law put forward by either party that suggests otherwise, or that suggests a NAP may be set aside if an officer does not alert the driver to the distinction between administrative and criminal processes engaged at a traffic stop. Cases such as Wilson explicitly state criminal law processes do not apply in the provincial administrative penalty context.

The only scope of review available to the Adjudicator was to consider whether Charter values might affect the relevance or reliability of the evidence of the Applicant’s refusal to comply with the breath demand, or whether the circumstances surrounding the inability to contact counsel were so egregious that the NAP should be cancelled. Again, there was no evidence from the Applicant on the traffic stop, and there is no evidence on the face of the record that the surrounding circumstances suggest egregious police conduct.

The Applicant had not met the onus to prove she had a reasonable excuse for failing or refusing to comply, or that the evidence of her refusal should be considered as irrelevant or unreliable. [ 74 ] There is a questionable comment in the Adjudicator’s reasons, related to the Applicant’s failure to show how speaking with a lawyer would have changed her mind. Nothing hangs on this, however, and the balance of the analysis is reasonable. Reviewing courts are not to comb decisions for minor technical errors, in accordance with the principles in Vavilov .

In addition, a court must consider the statutory scheme and the scope of the decision-maker’s authority, the governing case law, and the submissions and evidence put forward by the parties. In this case, the Adjudicator considered the scope of his authority under the provincial legislation and the evidence available on the record to address the objections raised by the Applicant. [ 75 ] On the basis of the foregoing, the Adjudicator’s decision is consistent with the principles set forth in cases such as Morin and Wilson , discussed above, and was reasonable. C.

Is it Available to the Applicant to Seek a Separate Remedy, Outside of Judicial Review, in Respect of an Alleged Charter Breach Arising Out of the Circumstances of the Traffic Stop? [ 76 ] The Applicant submits that the court has jurisdiction and should grant relief under

section 24 of the Charter when the administration of justice has been brought into disrepute. [ 77 ] After making oral submissions at the judicial review hearing, the parties in this matter were given the opportunity to exchange brief written submissions to consider the implications of the Smit decision, as well as the decision of Justice Bokenfohr in Sundar v Alberta (Director of SafeRoads) , 2023 ABKB 337 . In Smit v Alberta (Director of SafeRoads) , 2023 ABKB 435 , the applicant sought a review in front of an Adjudicator on a number of grounds. She alleged that her right to counsel was breached contrary to

section 10(

a) and 10(

b) of the Charter . Procedurally, the applicant filed both an originating notice seeking judicial review, as well as a Charter notice seeking an order under section 24(1) of the Charter to quash the NAP. The originating notice also included a paragraph indicating an intention to seek Charter relief. Justice Whitling ruled that the Charter application could be heard separately. The decision contains extensive reasons to explain the decision permitting the Court of King’s Bench to conduct a hearing of the Charter issue. The Court summarized the legal principles at para 144 of the decision.

Given my disposition of this aspect of the Applicant’s submissions, I need not engage in a detailed consideration of the decision in Smit . [ 78 ] The Applicant’s counsel seeks to amend the pleadings, arguing that the Director was provided with functional notice of the Charter relief sought. I note that the Applicant has not filed a separate Charter application in this matter, as the applicant did in Smit .

The Applicant argues, however, that the briefing materials have consistently raised the issue and it is not a surprise to the Director. [ 79 ] As stated in other decisions such as Curtis and Morin , new issues should not be raised on judicial review. On reviewing the Applicant’s submissions to the Adjudicator, the Applicant’s counsel framed the issue by stating that a breath demand could not be made after a driver is given, and seeks to exercise, the right to counsel.

Counsel sought to apply criminal law decisions and principles, and to assert that the Charter applied to detainees in the context of SafeRoads legislation. It is clear, however, that the SafeRoads Adjudicators cannot determine constitutional questions and are limited to applying Charter values. [ 80 ] In the Originating Notice, filed February 8, 2022, the Applicant’s counsel stated that “the Applicant will engage the jurisdiction of the Court of Queen’s Bench [now King’s Bench] to grant Charter remedy if necessary”. The way to do that, however, is by filing written notice, giving 14 days’ notice.

The time for doing so has passed. The reference to the remedy in the Originating Notice does not specify under which sections relief is sought, or the basis. It is not clear on what evidence the Applicant would rely, given the Applicant’s allegations that the police record is insufficient and the scant amount of evidence in the Applicant’s affidavit. [ 81 ] In Sundar , the Court stated at para 37: I agree with the Director that the application must clearly state that the Applicant is seeking Charter relief and identify the remedy they are seeking.

For example, is the remedy sought pursuant to s. 24(1) or s. 24(2) or is the Applicant challenging the constitutionality of the legislation pursuant to s. 52? This clarity is important as it will inform notice requirements such as whether the Attorney General or Minister must be given notice. [ 82 ] In the circumstances of this case, there has been no proper notice of Charter relief being sought. The Applicant has not followed the required form or process, nor was there sufficient clarity about the exact nature of, or foundation for, the relief being claimed in the pleadings filed to date.

I am dismissing the Applicant’s request to amend her pleadings. VII. Conclusion [ 83 ] For the reasons set forth above, the judicial review application of the Adjudicator’s decision is dismissed. The Adjudicator’s decision was reasonable, with regard to the sufficiency of the record and with regard to the finding that the Applicant had not established a reasonable excuse for failing or refusing to comply with a breath demand.

[ 84 ] The Applicant’s request to amend her pleadings to seek a Charter remedy is also dismissed. Heard on the 2 nd day of May, 2023. Dated at the City of Edmonton, Alberta this 3 rd day of November, 2023. N.M. Carruthers J.C.K.B.A. Appearances: Matthew S. Pagels for the Applicant Zachary Wilson for the Respondent _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Justice N.M. Carruthers _______________________________________________________ Addition of the word ‘On’ to the commencement of paragraph 75.