Fox v Alberta (Director of SafeRoads), 2024 ABKB 29

Court of King’s Bench of Alberta Citation: Fox v Alberta (Director of SafeRoads), 2024 ABKB 29 Date: 20240116 Docket: 2203 07280 Registry: Edmonton Between: Megan Fox Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Decision of the Honourable Justice Bonnie L. Bokenfohr _______________________________________________________ Judicial Review of the Decision of Adjudicator H. Dupuis Dated the 14 th day of March, 2022

( 2022 ABSRA 305 ) 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 Megan Fox (the Applicant). [ 2 ] The Applicant was issued a Notice of Administrative Penalty (NAP) for both impaired operation of a motor vehicle and operating a motor vehicle with a blood alcohol concentration over 80 mg of alcohol per 100 ml of blood. In relation to both offences, the NAP was issued because the Applicant’s breath registered a “Fail” result on an Approved Screen Device (ASD).

The Applicant sought a review before a SafeRoads Adjudicator (the Review). The Adjudicator upheld the NAP. [ 3 ] The Applicant seeks judicial review of the Adjudicator’s decision on two grounds: 1) The admissibility of the ASD photographs uploaded to the SafeRoads Administrative Penalty Information System (APIS); and 2) Whether audio and video footage of the interaction of the traffic stop was required to be provided to the Applicant. [ 4 ] The Adjudicator’s decision as it relates to admitting and relying on the ASD photographs is quashed.

Given that my decision on this issue is dispositive of the application I have not considered the issue of production of audio and video recordings. [ 5 ] Demars v Alberta (Director of SafeRoads) , 2022 ABKB 620 [ Demars ] is binding on this Court. On that basis, I conclude that it was unreasonable for the Adjudicator to use the ASD photographs uploaded to the SafeRoads Portal for the truth of their contents in relation to the maintenance and calibration of the ASDs. There was no statement from the issuing officer that the ASD photographs had not been altered in any way.

The appropriate remedy is to cancel the NAP as it relates to operating a motor vehicle with a blood alcohol concentration over 80 mg of alcohol per 100 ml of blood. [ 6 ] The appropriate remedy is also to cancel the NAP as it relates to the Applicant operating a motor vehicle while their ability to operate a motor vehicle was impaired by alcohol or drug. The ASD result is the only evidence of the Applicant’s impairment. II. Background [ 7 ] The Applicant was stopped by a peace officer for travelling 40 km/h over the speed limit. The Officer made a Mandatory Alcohol Screening (MAS) demand.

The Applicant provided a breath sample into an ASD which resulted in a “Fail” reading. The Officer completed the NAP form and provided the Applicant with both the NAP and a second sheet of paper titled “Right to a Second Test.” The Officer asked the Applicant if she wanted to do a second test. The Applicant provided a second breath sample into a different ASD which also resulted in a “Fail” reading.

The Applicant’s second breath test was the Applicant’s roadside appeal as provided for in s 88.11 of the Traffic Safety Act , RSA 2000, c T-6 . [ 8 ] The Officer issued the NAP on two grounds: 1) The officer had reasonable grounds to believe that the Applicant operated a motor vehicle while the Applicant’s ability to do so was impaired to any degree by alcohol; and 2) The officer had reasonable grounds to believe that the Applicant had a blood alcohol concentration that was equal to or exceeds 80 milligrams of alcohol in 100 millilitres of blood within 2 hours after ceasing to operate a motor vehicle. [ 9 ] The Officer used two different ASDs to collect breath samples from the Applicant.

One ASD was used after the MAS demand and the other for the roadside appeal or second breath test. Along with the Officer’s general report (Report), the Officer uploaded onto APIS photographs of the two ASDs used to test the Applicant’s breath that included the maintenance and calibration dates for both ASDs used.

There is no question that the ASDs in the photographs are the ASDs used to collect the Applicant’s breath samples as the Officer noted their serial numbers in his report. [ 10 ] The Officer provided an electronic solemn declaration that accompanied the Report and photographs using his personal login credentials that included the Officer’s name, regimental number, and law enforcement agency.

The electronic solemn declaration did not include a statement that confirmed the ASD photographs were not altered in any material way. [ 11 ] The Officer’s traffic stop Report are of the highest quality and are to be complimented and recognized as such. The Officer’s investigation was exceptional. The Report is detailed and thorough and sets out what he said and his conduct as well as the Applicant’s responses and conduct from the moment he noticed the vehicle speeding to the end of his interaction with the Applicant. The Officer details his thought processes at key decision points.

For example, he identifies the point in time when he discovered that there was a child passenger, his considerations with respect to pursuing criminal charges and his reasons for not doing so. The Report also highlights the placement of the vehicle in relation to the travelling lane and the officer and public safety concerns that were created by the Applicant’s choice to stop the vehicle at this location. In plain objective language the Officer sets out his efforts to ensure that the Applicant understood what was happening and the consequences of her actions or inaction.

III. Issues 1) Was it reasonable for the Adjudicator to admit the photographs of the ASDs and rely on the maintenance and calibrationevidence contained therein? 2) Did the common law principles of fairness require the Director to provide the Applicant with audio and video footage of theoccurrence and if so, was it unreasonable for the Adjudicator to proceed with the Review without this information? IV. Analysis A. ASD Photographs [12] The ASD results are the only evidence of impairment recorded by the Officer.

The ASD results are therefore the only basisfor the NAP as it relates to the Applicant operating the motor vehicle while impaired. The ASD results are also the only evidence tosupport the NAP as it relates to the Applicant operating the motor vehicle with a blood alcohol concentration over 80 mg of alcohol per100 ml of blood. [13] The ASD photographs contain the only evidence related to the maintenance and calibration of the ASDs used to collect theApplicant’s breath.

This information is required to establish that the ASDs used to test the Applicant’s breath were annually maintainedand used within their calibration period. Maintenance and calibration information is integral to the administrative scheme and must beprovided to an applicant for the purposes of a review.

Evidence that the ASDs used were within their calibration and maintenanceperiods is also necessary for an adjudicator to rely on the ASD results for the purposes of a NAP review. [14] At the Review hearing the Applicant argued that the Adjudicator could not consider the ASD photographs as the legislativerequirements had not been met. Specifically, there was no accompanying statement that the photographs had not been altered in anymaterial way.

The Adjudicator rejected the Applicant’s arguments and held that the photographs could be considered and were reliableevidence. [15] The Applicant argues that the decision of the Adjudicator on this point is unreasonable. The Applicant relies on a series ofdecisions of this Court.

Pursuant to the principle of horizontal stare decisis as outlined in R v Sullivan, 2022 SCC 19, the legal principlesoutlined in Demars and affirmed in Wildman v Alberta (Director of SafeRoads), 2022 ABKB 756 [Wildman] are binding on this Court. [16] A superior court should treat prior decisions of a court of concurrent jurisdiction as binding unless one of the exceptions setout in Re Hansard Spruce Mills, (BC SC), [1954] 4 D.L.R. 590 (BCSC) [Spruce Mills] applies: 1) The rationale of an earlier decision has been undermined by subsequent appellate decisions; 2) The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or 3) The earlier decision was not fully considered, e.g. taken in exigent circumstances.

Sullivan at para 75. [17] In this case, the Adjudicator issued their decision in March 2022. On September 20, 2022, Demars was released which heldthat s 17 of the Provincial Administrative Penalties Regulation, Alta Reg 217/2020 creates a separate and mandatory obligation that anofficer confirm that a photograph has “not been altered in any material way” in order for that photograph to be admitted as proof of thefacts depicted in the photograph (paras 17-20). This principle was affirmed in Wildman (paras 32-37). None of the Spruce Millsexceptions apply to either decision.

The principle is therefore binding on this Court. [18] Since there was no evidence from the Officer that the ASD photographs had not be altered in any way it was unreasonable forthe Adjudicator to rely on the maintenance and calibration dates as reflected in the ASD photographs. Since the ASD photographscontained the only evidence of the maintenance and calibration dates for the ASDs used to test the Applicant’s breath, the Adjudicatorhad no reliable evidence before them that the ASDs used were properly calibrated and maintained. Therefore, it was also unreasonablefor the Adjudicator to rely on the ASD results.

The NAP as it relates to the Applicant having a blood alcohol concentration that wasequal to or exceeds 80 milligrams of alcohol in 100 millilitres is based on the ASD results. The Adjudicator’s decision upholding theNAP as it relates to the Applicant having a blood alcohol concentration that was equal to or exceeds 80 milligrams of alcohol in 100millilitres is quashed. [19] As was the case in Demars, the outcome on re-adjudication of this issue is inevitable. The photographs require specificconfirmation that they have been unaltered. This confirmation has not been provided.

The inevitable outcome is cancellation of the NAP:Demars at para 23. [20] The ASD “Fail” result is also the only evidence of impairment of the Applicant’s ability to operate a motor vehicle. Thereforethe appropriate remedy is also to cancel the NAP as it relates to the Applicant operating a motor vehicle while their ability to operate amotor vehicle was impaired by alcohol. B. Audio and Video Recordings [21] My decision as it relates to the ASD photographs is dispositive of the application. It is therefore not necessary for me toconsider the issue of production of audio and video recordings.

There will be ample opportunity for the Court to consider this issue in

other cases. V. Conclusion [ 22 ] Despite the concerning circumstances surrounding the traffic stop and notwithstanding the Officer’s exceptional conduct in this matter the NAP is cancelled as it relates to both grounds for issuance. [ 23 ] The Officer’s individual actions and decisions at the roadside are not at issue in this judicial review. It is the systems themselves that are under scrutiny. [ 24 ] The goal of the SafeRoads legislation is to improve public safety. It allows peace officers to issue administrative penalties to impaired drivers rather than pursue prosecution through criminal charges.

The law provides peace officers with the ability to immediately remove impaired drivers from Alberta roadways, issue license suspensions, and impose significant fines. [ 25 ] The SafeRoads legislation is relatively new and the law surrounding that legislation is constantly developing. The Legislature enacted the SafeRoads legislation but it is individual law enforcement officers across Alberta that implement the legislation one roadside stop at time. The government has had to put systems in place to support the implementation of the legislation (for example, APIS and the Technical Materials Library).

Decisions have had to be made by individual law enforcement agencies about how to train officers and implement the legislation at the agency level. [ 26 ] In this case, the NAP is quashed because of a defect in the systems that were in place at the time of the investigation and issuance of the NAP, not because of any actions or decisions of the Officer. I am aware from subsequent cases that this defect has been remedied. There is now a means in APIS for an officer to declare that uploaded photographs have not been altered in any material way.

This improvement will prevent future NAPs from being quashed for this reason. [ 27 ] I do hope that the stakeholders who review judicial review decisions read them as a dialogue where all justice system participants, including the Court, are working towards the same goal of improving public safety and upholding the rule of law. Public safety measures that remove impaired drivers from our roadways are essential and should be pursued. To achieve this goal all stakeholders must work together to ensure that those measures are lawful and withstand scrutiny.

Heard September 7 and October 12, 2023 Dated at the City of Edmonton, Alberta this 16 th day of January, 2024. Bonnie L. Bokenfohr J.C.K.B.A. Appearances: Adam L. Klassen Gunn Law Group for the Applicant Michael A. Power Alberta Justice for the Respondent