Nichol v Alberta (Director of SafeRoads), 2023 ABKB 72

Court of King’s Bench of Alberta Citation: Nichol v Alberta (Director of SafeRoads), 2023 ABKB 72 Date: 20230207 Docket: 2103 06748 Registry: Edmonton Between: Brandon Dwayne Nichol Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice Bonnie L. Bokenfohr _______________________________________________________ Judicial Review from Adjudicator M. Nishida Dated the 19 th day of April, 2021 ( 2021 ABSRA 244 ) I.

OVERVIEW [ 1 ] This is an application for judicial review of a decision by an Adjudicator to uphold a Notice of Administrative Penalty (NAP) against Brandon Nichol (the Applicant) pursuant to the SafeRoads Alberta Regulation , Alta Reg 224/2020 ( SAR ). [ 2 ] For the reasons set out below I find as follows:

1) The decision of the Adjudicator to rely on the approved screening device (ASD) photographs on APIS as evidence that the ASDs used to test the Applicant’s breath were properly maintained and calibrated was unreasonable. This cannot be remedied on rehearing. There is only one outcome possible.

In the absence of any reliable evidence of maintenance and calibration of the ASDs used to test the Applicant’s breath, the NAP issued on the basis that the Applicant had a blood alcohol concentration that was equal to or exceeded 80 mg% within 2 hours of ceasing to operate a motor vehicle must be quashed; 2) The issue of whether Kerry Lynne Blake is an impartial expert qualified to give the opinion that “at a level of 100 mg of alcohol in 100 ml of blood and greater, all individuals are impaired in their ability to operate a motor vehicle, regardless of their tolerance to alcohol” must be sent back for a rehearing.

The Adjudicator found that Kerry Lynne Blake was qualified as an expert “in the area of breath testing” but did not make a finding that Kerry Lynne Blake is an impartial expert qualified to give the opinion upon which the Adjudicator relied. In the absence of a decision by the Adjudicator on this point there is no decision for this Court to review and the issue must be sent back for rehearing. II. BACKGROUND [ 3 ] On March 19, 2021, a police officer conducted a “check stop” traffic stop on a vehicle that the Applicant was driving. The Officer made a mandatory alcohol screening (MAS) demand of the Applicant.

The Applicant provided a breath sample into an ASD which produced a “E31” fail result, which the Officer understood to mean that the Applicant had a blood alcohol concentration of greater than 400 mg of alcohol per 100 ml of blood. The Officer noted that the Applicant was not exhibiting any signs of medical distress. The Officer offered the Applicant an opportunity to provide a second breath sample into a different ASD. The Applicant provided a second breath sample into a different ASD, which produced a “fail” result.

The Officer arranged for the Applicant’s vehicle to be towed, drove the Applicant home, and served the Applicant with a NAP. The NAP was issued on two grounds: 1) That the Officer had reasonable grounds to believe that the Applicant’s ability to operate a motor vehicle was impaired to any degree by alcohol or drugs thereby contravening s 88.1(1)(

a) of the Traffic Safety Act , RSA 2000, c T-6 ( TSA ); and 2) That the Applicant had a blood alcohol concentration that was equal to or exceeded 80 mg of alcohol per 100 ml of blood within 2 hours of ceasing to operate a motor vehicle thereby contravening s 88.1(1)(

b) of the TSA . [ 4 ] The Officer uploaded a number of documents to the SafeRoads Administrative Penalty Information System (APIS) which included a Submission Export with the Officer’s Police Narrative and photographs of ASDs #072801 and #108393, each of which included tags attached to the ASDs. The tags contained information on the ASDs’ Service Expiry Date, Calibration Date, Calibration Expiry Date, and the Calibrator’s name and regiment number. [ 5 ] The Applicant filed for an oral review hearing and also provided written submissions.

The Adjudicator found that the Applicant had failed to establish grounds to cancel the NAP and confirmed the NAP. III. ISSUES [ 6 ] This judicial review considers the following issues: 1) Was it reasonable for the Adjudicator to rely on the calibration and maintenance information as represented in the ASD photographs as evidence of proper calibration and maintenance of the ASDs used to test the Applicant’s breath? 2) Was it reasonable for the Adjudicator to admit and rely on the opinion set out in the Affidavit of Kerry Lynne Blake which was contained in the SafeRoads Technical Materials Library? IV. ANALYSIS A.

The ASD Photographs [ 7 ] At the review hearing the Applicant argued that the NAP should be cancelled pursuant to SAR s 4(f)(vii) on the basis that the Applicant had established that the ASDs used to test the Applicant’s breath had not been annually maintained or were used outside of their calibration period.

Specifically, the Applicant argued that the ASD photographs did not meet the requirements of s 16 of the Provincial Administrative Penalties Regulation , Alta Reg 217/2020 ( PAPR ), and therefore were not admissible evidence at the review hearing. [ 8 ] The Adjudicator held as follows: In the Contravention Details in APIS under “Issuing Police Service,” the following information is provided; the police officer’s name, regimental number, police service, and detachment. The uploaded documents appear in APIS to be associated with his name.

I cannot understand how [the Officer] could upload documents or complete a solemn declaration in his name without being required to log in with his password. The Recipient has not provided anything to convince me that it was not [the Officer] who submitted this evidence.

[The officer’s] report does not state what the serial numbers were for each device, but it is clear that he had two ASDs in his possession at the traffic stop. Also, after taking the Recipient home and serving him the documents, [the officer] reported that he submitted those documents to [APIS]. As he entered the documents shortly after the incident, I find it logical that the ASD tags in evidence were those associated with the ASDs used.

The Recipient provided no evidence to the contrary, and I do not see how any other ASD could have been introduced into the scenario such that [the officer] would have provided ASD tags belonging to any other devices. Nichol (Re) , 2021 ABSRA 244 [ Nichol ] at paras 26 – 27 . [ 9 ] The Applicant argues that the Adjudicator erred in finding that the ASD photographs that were submitted to APIS were admissible evidence of the ASDs used by the Officer to test the Applicant’s breath and therefore the Adjudicator’s decision was unreasonable.

The Applicant submits that the photographs of the ASDs were not admissible evidence as they did not comply with s 16 of PAPR . As such, the Applicant submits that they had established that the ASDs had not been annually maintained or used outside their calibration period. [ 10 ] The issue in this judicial review is not whether it was unreasonable for the Adjudicator to concluded that technical compliance as outlined in PAPR s 16 was not required.

Rather, the issue is whether it was reasonable for the Adjudicator to conclude that the ASD photographs uploaded to APIS were photographs of the ASDs that were used to test the Applicant’s breath, and building on that finding, whether it reasonable for the Adjudicator to rely on the ASD photographs uploaded to APIS to conclude that the ASDs used to test the Applicant’s breath were properly maintained and calibrated.

The findings of the Adjudicator on these points were unreasonable. [ 11 ] It was reasonable for the Adjudicator to conclude that the Officer securely uploaded the ASD photographs to APIS and that the ASDs in the photographs were properly calibrated and maintained.

Those are not the issues in this case. [ 12 ] The decision at issue relates to the Adjudicator’s conclusion that the evidence before them was sufficiently reliable to find that the ASD photographs were photographs of the ASDs used to test the Applicant’s breath and that therefore the evidence of calibration and maintenance of the ASDs used to test the Applicant’s breath was also sufficiently reliable.

The Adjudicator’s reasoning and decisions on this point are based on inferences and speculation that were not supported by the evidence and are therefore unreasonable. [ 13 ] The Adjudicator inferred that the ASD photographs that the Officer uploaded onto APIS were photographs of the ASDs used to test the Applicant’s breath. The evidence does not support that inference. There is nothing in the ASD photographs themselves or the Submission Export Report that directly link the ASD photographs to the ASDs that were used to test the Applicant’s breath.

The Submission Export Report specifies that the ASDs that were used to test the Applicant’s breath were Alco-Sensor FST models but does not include the serial numbers for those ASDs. The Officer’s narrative does not specify serial numbers for the ASDs used to test the Applicant’s breath.

The ASD photographs submitted to APIS do not include any information tying them to the Officer’s investigation or to the ASDs used to test the Applicant’s breath. [ 14 ] The Adjudicator inferred that the Officer had only two ASDs in his possession at that time and therefore the ASD photographs on APIS could only have been from the ASDs used to test the Applicant’s breath. The evidence does not support that inference. The evidence showed that the Officer had at least two ASDs in his possession when he interacted with the Applicant.

There is no evidence as to how many ASDs were in the Officer’s possession on that day, how many ASDs the Officer used that day, how many NAPs the Officer issued that day, or how many photographs of ASDs the Officer took or had in his possession that day. The Adjudicator’s conclusion is the result of speculation. [ 15 ] The Director argues that the decision of the Adjudicator was reasonable. The Director relies on the fact that the .jpeg files in which the ASD photographs are contained were uploaded to APIS by the Officer and attached to the Submission Export that related to the Applicant.

This is the only evidence upon which to conclude that the ASD photographs are of the ASDs used to test the Applicant’s breath. [ 16 ] I do not agree with the Director that this constitutes sufficiently reliable evidence to support a finding that the ASD photographs are photographs of the ASDs used to test the Applicant’s breath.

The Director’s argument is not supported when considered in the context of the statutory framework overall and the specific statutory provisions directed towards evidentiary guarantees of reliability and authenticity. [ 17 ] The reasonableness of the Adjudicator’s decision must be reviewed withing the context of the broader legislative scheme. The purpose of the Provincial Administrative Penalties Act , SA 2020, c P-30.8 ( PAPA ) includes simplified forms and processes to expediently resolve disputes.

Both the statutory provisions and subsequent decisions of this court recognize that furtherance of this purpose also includes appropriate guarantees of authenticity and reliability with respect to the records and evidence to be relied on as the basis for the NAP: see Demars v Alberta (Director of SafeRoads) , 2022 ABKB 620 and Wildman v Alberta (Director of SafeRoads) , 2022 ABKB 756 . [ 18 ] Further, when assessing the reasonableness of the Adjudicator’s decision the impact of the decision on the Applicant must be considered: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 [ Vavilov ] at paras 133 – 135 .

The impact of the Adjudicator’s decision on the Applicant is significant. The moment a NAP is issued for a first offence, the Applicant is subject to vehicle seizure, an immediate 90-day license suspension followed by a subsequent one-year license suspension, and a fine. The grounds on which an Applicant may seek to have a NAP cancelled are limited. The onus is on the Applicant to establish the ground(

s) for cancellation: Demars at para 15 . [ 19 ] I appreciate that I must refrain from reweighing and reassessing the evidence considered by the decision maker and absent exceptional circumstances I must not interfere with the decision maker’s factual findings: Vavilov at para 125 . However, a decision maker’s decision will be unreasonable if the decision maker fundamentally misapprehended or failed to account for the evidence, or lack of evidence before it: Vavilov at para 126 . [ 20 ] I am satisfied that the matter should not be remitted back for rehearing on this issue.

Given that there is no direct evidence that identifies the ASD photographs as being the ASDs used to test the Applicant’s breath the outcome on rehearing is inevitable. There is no

reliable evidence to prove that the ASDs used to test the Applicant’s breath were properly calibrated or maintained. Therefore, the NAP as it was issued for contravention of s 88.1(1)(

b) of the TSA (having a blood alcohol concentration that was equal to or exceeded 80 mg of alcohol per 100 ml of blood within 2 hours of ceasing to operate a motor vehicle) is quashed. B. Evidence of Impairment – Opinion Evidence of Kerry Lynne Blake [ 21 ] At the review hearing the Applicant argued that their ability to operate a motor vehicle was not impaired to any degree by alcohol or drug or combination of both.

The Applicant acknowledged that the SafeRoads Technical Library contained Affidavits sworn by Forensic Alcohol Specialist Kerry Lynne Blake, including an Affidavit that provided the following opinion: [T]he effect of alcohol varies from person to person depending on their tolerance or experience with alcohol… [but] at a level of 100mg% and greater, all individuals are impaired in their ability to operate a motor vehicle, regardless of their tolerance to alcohol (the Blake Opinion). [ 22 ] The Applicant argued that the Blake Opinion should not be relied on because: ● the Affidavit was under the heading “Medical” which indicates that the information is “medical information”; ● “medical information” is defined in PAPA as “information provided or created by a person who is licensed or authorized by law to practice medicine in the place where the person practices”; ● There is no evidence that Kerry Lynne Blake is licensed to practice medicine; ● Materials under the heading “Medicine” in the SafeRoads Technical Library that are prepared by a person who is not licensed to practice medicine should not be referred to or relied upon in any way; ● The opinion of Kerry Lynne Blake as set out in her Affidavit is under the heading “Medical”; Kerry Lynne Blake is not licensed to practice medicine; therefore, the opinion of Kerry Lynne Blake should not be referred to or relied upon. [ 23 ] The Adjudicator rejected the argument of the Applicant: The headings in the Technical Material Library are for sorting or for ease of reference.

They do not mean the articles found thereunder are exclusively medical in nature as some articles may be a mix of medical and scientific. Also, one need not have a license to practice medicine to have a qualified opinion on a substance they have studied scientifically concerning its effects on the human body. Kerry Lynne Blake’s Curriculum Vitae states that she is a forensic alcohol specialist, breath testing coordinator and past member of the Canadian Society of Forensic Science Alcohol Test Committee.

All of this experience means that she has specialized knowledge of alcohol and its effects on the human body, and I find this sufficient to qualify her as an expert in the area of breath testing: Nichol at para 11. [ 24 ] The Director concedes that, in the absence of the Affidavit of Kerry Lynne Blake and the Blake Opinion, there is no evidence that the Applicant’s ability to operate a motor vehicle was impaired to any degree by alcohol or drug or a combination of both. [ 25 ] At the review hearing the Applicant’s arguments focused on whether Kerry Lynne Blake was qualified to provide a medical opinion.

The Adjudicator’s decision to reject the Applicant’s argument that the Affidavit should not be admissible or given any weight because it was under the “Medical” heading is reasonable, as is the Adjudicator’s finding that the headings in the Technical Material Library are for sorting or for ease of reference. The categorization of the materials relied upon, in and of itself, does not render those materials inadmissible or unreliable. [ 26 ] The Adjudicator’s finding that one need not have a medical license to give an expert opinion on the effects of alcohol on the human body is also reasonable.

A person can be properly qualified to give an expert opinion on the effects of alcohol on the human body if that person has specialized knowledge in that area. [ 27 ] The Adjudicator found that Kerry Lynne Blake had specialized knowledge that qualified her as an expert “in the area of breath testing.” The Adjudicator did not, however, go further and make a finding on whether Kerry Lynne Blake was a properly qualified expert to give the Blake Opinion. In the absence of a finding by the Adjudicator on this point there is no decision for this Court to review.

The appropriate remedy is to remit the matter back for rehearing on this issue. [ 28 ] Both the Director and Applicant included submissions for the purposes of this judicial review on the issue of whether Kerry Lynne Blake is a properly qualified expert. The Applicant argues that SafeRoads Adjudicators do not have the authority to qualify an expert and that only a court of competent jurisdiction has the authority to qualify an expert. No case law was provided in support of this position.

The Applicant further argues that Kerry Lynne Blake is not impartial or objective. [ 29 ] It is not appropriate for me to assess and decide these issues in the first instance. Given that the issue of Kerry Lynne Blake’s expert qualification to give the Blake Opinion is being referred for rehearing these can be argued before the Adjudicator. V. CONCLUSION [ 30 ] It was unreasonable for the Adjudicator to rely on the calibration and maintenance information in the ASD photographs as accurately representing the calibration and maintenance information for the ASDs that were used to test the Applicant’s breath.

This error cannot be remedied on rehearing. There was no reliable evidence before the Adjudicator that the ASDs used to test the Applicant’s

breath were properly maintained and calibrated. Therefore, the NAP issued on the basis of a contravention of TSA s 88.1(1)(b) (that the Applicant had a blood alcohol concentration that was equal to or exceeded 80 mg of alcohol per 100 ml of blood within 2 hours of ceasing to operate a motor vehicle) is quashed. [ 31 ] The issue of whether Kerry Lynne Blake is a properly qualified and impartial expert capable of giving the Blake Opinion must be sent back for a rehearing as the Adjudicator did not make a finding on this point. Heard on the 15 th day of November, 2022.

Dated at the City of Edmonton, Alberta this 7 th day of February, 2023. Bonnie L. Bokenfohr J.C.K.B.A. Appearances: Adam L. Klassen for the Applicant Jas Sadhra for the Respondent