Ernst v Alberta (Director of SafeRoads), 2024 ABKB 68

Court of King’s Bench of Alberta Citation: Ernst v Alberta (Director of SafeRoads), 2024 ABKB 68 Date: 20240202 Docket: 2203 13921 Registry: Edmonton Between: Roger Ernst Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Decision of the Honourable Justice Bonnie L. Bokenfohr _______________________________________________________ Judicial Review of the Decision of Adjudicator D. Williams Dated the 5 th day of August 2022

Ernst (Re) , 2022 ABSRA 1077 I. Overview [ 1 ] This is an application for judicial review of a decision by an Adjudicator to uphold a Notice of Administrative Penalty (NAP) issued to Roger Ernst (Applicant). [ 2 ] The Applicant was issued a 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. The Applicant sought a review before a SafeRoads Adjudicator. The Adjudicator confirmed the NAP.

The Applicant asks this Court to find that the Adjudicator’s confirmation of the NAP was unreasonable. [ 3 ] For the reasons set out below I conclude as follows: 1. Smit v Alberta (Director of SafeRoads) , 2023 ABKB 435 [ Smit ] is binding as it relates to the common law principles of fairness that require the Director to provide to an applicant seeking review before a SafeRoads adjudicator any existing police-recorded audio or video or advise that no such recordings exist. The decision of the Adjudicator on this issue is therefore unreasonable.

The appropriate remedy on this issue is to remit the matter back for rehearing for the unfairness to be remedied. 2. Wildman v Alberta (Director of SafeRoads) , 2022 ABKB 756 [ Wildman ] is binding as it relates to whether Approved Screening Device (ASD) photographs were “digitally signed.” The decision of the Adjudicator that the ASD photographs had been digitally signed was therefore reasonable. The judicial review as it relates to this issue is dismissed. 3.

It was reasonable for the Adjudicator to rely on the ASD photographs to find that the ASDs were properly calibrated despite the serial number of the ASDs not being visible in their respective photographs. The judicial review as it relates to this issue is dismissed. 4. It was unreasonable for the Adjudicator to find that the electronic means used to transmit the ASD photographs was protected by a password issued in confidence to the officer who uploaded the ASD photographs. The appropriate remedy is to remit the matter back for rehearing on this issue before a different Adjudicator. II.

Background [ 4 ] On July 8, 2022, the Applicant was stopped by an RCMP officer who was conducting a CheckStop. The Officer made a Mandatory Alcohol Screening demand. The Applicant blew into an ASD and the breath sample result was a “Fail.” The Applicant chose to participate in the roadside appeal process and provided a second breath sample into a different ASD. The second breath sample result was also a “Fail.” The Applicant was issued a NAP (also referred to as an Immediate Roadside Sanction (IRS)).

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. [ 5 ] The Applicant sought a review of the NAP before a SafeRoads Adjudicator. The Adjudicator confirmed the NAP.

The Applicant seeks judicial review of the Adjudicator’s decision. [ 6 ] The parties agree that the standard of review is reasonableness. III.

Issues [ 7 ] The Applicant raises the following issues in this judicial review: 1) Did the Adjudicator make a reviewable error in finding that neither the legislative scheme nor the common law principles of fairness required the Director to provide the Applicant with any existing police-recorded audio or video of the events in question or advise that no such records exist? 2) Did the Adjudicator make a reviewable error in finding that the ASD photographs that were uploaded to the Administrative Penalty Information System/Advanced Projects Information System (APIS) [1] were digitally signed? 3) Did the Adjudicator make a reviewable error in relying on the ASD photographs to find that the ASDs were properly calibrated and maintained given that the photographs did not show the serial numbers of the ASDs? 4) Did the Adjudicator make a reviewable error in finding that the electronic means used to transmit the ASD photographs was protected by a password issued in confidence to the officer who uploaded the photographs as required by s 16 of the Provincial Administrative Penalties Regulation AR 217/202 ( PAPR )?

IV. Analysis A. Audio and Video Recordings [8] Prior to and during the NAP review proceedings before the Adjudicator the Applicant requested any audio and videorecordings from the police vehicle or police station that related to the issuance of the NAP. The Applicant argued that the ProvincialAdministrative Penalties Act, 2020, c P-30.8, s 12 (PAPA) and SafeRoads Alberta Regulation, AR 224/2020, s 2(h) (SAR) required thatany police-recorded audio and video be provided to the Applicant if they existed. [9] The Adjudicator was not satisfied that video would exist for the occurrence.

Even if video of the occurrence did exist, theAdjudicator held that the legislation did not require the video be provided. The Adjudicator did not consider whether it would beprocedurally fair to proceed with the Review in the absence of any police-recorded audio or video or knowing that those things did notexist. 1. Horizontal Stare Decisis [10] The question of whether relevant police-recorded audio and video be provided to applicants seeking review of a NAP before aSafeRoads Adjudicator was considered in Smit.

The Court held that the common law principles of fairness require the Director toprovide to an applicant any existing audio or video recordings or advise that no such recordings exist: para 83. Since PAPA s 12 and SARs 2(

h) do not contain clear and explicit language ousting the principles of fairness in relation to the production of relevant materials, thecommon law balancing of factors falls in favour of providing existing audio or video recordings to an applicant seeking review of aNAP: para 86. [11] The Applicant argues that Smit is binding on this Court based on the principle of horizontal stare decisis and must thereforebe applied to this case. The Director argues that this Court is not bound by Smit because the decision was made per incuriam.

As such,this Court need not apply it to this case. [12] If a decision is not distinguishable, a superior court should only depart from decisions issued by a court of coordinatejurisdiction in three narrow circumstances: 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.

R v Sullivan 2022 SCC 19 [Sullivan] at para 75 citing Hansard Spruce Mills (Re), (BC SC) [Spruce Mills] [13] Like in this case, the Court in Smit was conducting a judicial review of a SafeRoads adjudicator’s decision. The principle ofhorizontal stare decisis applies whether the Court is sitting as a trial Court or a review Court.

As such, I must follow judicial reviewdecisions of this Court unless one of the Spruce Mills exceptions apply: R v Gault, 2023 ONSC 2994 at paras 92-94. [14] A Court can depart from an earlier decision of coordinate jurisdiction where the decision was reached without considering arelevant statute or binding authority, a circumstance generally understood to be rare. A decision will be reached per incuriam if the courtfailed to consider some authority such that, had it done so, it would have come to a different decision because the inadvertence is shownto have struck at the essence of the decision.

It cannot merely be an instance in which an authority was not mentioned in the reasons. Itmust be shown that the missing authority affected the judgment: Sullivan at para 77. [15] The Director argues that the Court in Smit did not consider Weinkauf v Alberta (Director of SafeRoads), 2022 ABKB 752[Weinkauf] that was issued prior to Smit. The Director submits that Weinkauf strikes at the essence of the reasons in Smit and thereforewould have resulted in a different outcome had it been considered by the Court in Smit. I disagree. [16] Weinkauf is distinguishable from Smit.

There are two reasons why the facts are distinguishable: 1) the video at issue inWeinkauf was provided to police by a third party and did not capture Mr. Weinkauf’s interactions with police that resulted in theissuance of the NAP, and 2) Mr. Weinkauf did not request the video prior to the NAP review or argue at the NAP review that it shouldhave been provided to him for the purposes of the review pursuant to PAPA s 12. The Court determined that Mr.

Weinkauf could notraise the Director’s failure to produce the video on judicial review because he did not raise it in front of the Adjudicator at the NAPreview: para 32. In obiter, the Court commented that PAPA s 12 does not require a video such as the one referred to by the issuing officerto be produced. The Court did not make any comment as to whether the common law principles of fairness required that the video atissue be produced.

On the facts in Weinkauf, the issue of production of police-recorded audio and video with respect to the events atissue in a NAP review did not arise. [17] In Smit and in this case, prior to and throughout the NAP review the Applicant sought production of police-recorded audioand video relevant to the events at issue in the hearing.

The issue was considered and determined by the Adjudicator and thereforeproperly before the Court for judicial review. [18] Counsel in this judicial review is the same counsel who appeared before the Court in Smit and confirmed that Weinkauf wasincluded in the materials provided to the Court in Smit but with respect to a different issue. In Smit, the Director did not argue thatWeinkauf was binding. Despite this, the Director argues that the Court in Smit failed to grapple with Weinkauf as a binding precedent asrequired by law.

I agree with the Director that the Director’s failure to argue in Smit the binding nature of Weinkauf is not determinative.It does, however, support my conclusions that Weinkauf is distinguishable and did not strike at the essence of the issue of production ofpolice-recorded audio and video relevant to the events at issue. Moreover, it is not possible to conclude that the Court in Smit did not

consider Weinkauf or that the Court’s conclusions would have been different had Weinkauf been considered on this issue. [ 19 ] Horizontal stare decisis requires that this Court follow prior decisions made by a Court of coordinate jurisdiction on all questions of law unless one or more of the exceptions in Spruce Mills are met. In this case, none of those exceptions apply. I am therefore required to follow Smit on any questions of law.

As I understand Sullivan , it is not for this Court to decide whether it agrees with the Court in Smit , nor should this Court decide whether Smit contains errors of law or misinterpretation of the legislation, or breaches principles of procedural fairness or natural justice. [ 20 ] The application of horizontal stare decisis in this matter does require this Court to decide whether it is bound to follow Smit on a question of law when this Court has concerns with one of the factual findings that goes to the heart of the reasons underpinning the question of law.

Put another way, the question this Court has grappled with is does horizontal stare decisis require me to follow a decision on a question of law when I have concerns with an underlying factual finding? I believe that it does. [ 21 ] In Smit , the determination of the question of law involved an assessment of the costs and benefits associated with the production, admission, and use of police-recorded audio and video.

The Court held that 1) the use of body worn and dashboard cameras by law enforcement agencies had become commonplace, and 2) audio and video recordings are important to the search for the truth and enhance the acceptability of administrative action: paras 75, 77, 78. The Court balanced this against any costs associated with the production and use of police-recorded audio and video and held that it costs little to produce, share, and review any police-recorded audio and video that exist: para 83.

On the face of the decision, it appears that these findings may have been made in the absence of evidence on the issue. [ 22 ] Regardless of my concerns regarding a factual finding underpinning the Court’s reasoning in Smit , I believe I am still bound to follow the question of law. The question of law was not reached in exigent circumstances or without consideration of binding authority, nor has it been undermined by subsequent appellate authority. 2.

Disclosure of Audio and Video Recordings [ 23 ] The Court in Smit held that the version of SAR in force at the time did not contain clear and explicit language to oust the common law principles of fairness in relation to providing applicants with police-recorded audio and video. On August 8, 2023, approximately one week after the release of Smit , SAR was amended with the following additions: 2.1(1) For greater certainty, notwithstanding

section 2(h), the Director is not required to (

a) provide photographs, video or audio recordings, or any transcript created from video or audio recordings, if any, to a recipient, or (

b) confirm whether or not any records exist except those provided by the Director under

section 2.

SafeRoads Alberta Amendment Regulation , Alta Reg 111/2023 [ 24 ] The initial amendment was for sixty days and then extended for 24 months: SafeRoads Alberta Amendment Regulation , Alta Reg 116/2023. [ 25 ] The Director argues that the subsequent amendments can and should be considered to reflect the Legislature’s original intention that the Director’s disclosure obligations are limited to what the regulations require and oust the common law. [ 26 ] I agree with the Director that subsequent changes to legislation may be instructive in determining the Legislature’s intention when a particular provision is enacted: see Jones v Alberta (Director of SafeRoads) , 2023 ABKB 350 at para 25 and Singh v Director of SafeRoads Alberta , (24 July 2023), Edmonton 2103-16636 (ABKB) at pp 5-6.

I do not agree with the Director that the SAR amendment somehow supports a finding that the SAR provisions in effect at the relevant time in Smit and this matter were sufficiently clear and explicit to oust the principles of fairness. The amendment may now use clear and explicit language ousting the common law principles of fairness. However, the fact of the amendment(

s) and its content does not support a finding that the common law principles of fairness as they relate to the production of police-recorded audio and video were ousted by the legislation’s original wording. I conclude that the purpose of the SAR amendment(

s) was to provide the clear and explicit language necessary to oust the common law duty of fairness that required the Director to provide an applicant with any police-recorded audio or video or advise if they did not exist. I make no finding as to the effect of the amendment on the Director’s duty to provide police-recorded audio and video recordings. That issue is not before me. [ 27 ] Since I am bound to follow Smit , I find that the Director was required to disclose to the Applicant any police-recorded audio or video of the events in question or, alternatively, to advise that no such records existed.

It was unreasonable for the Adjudicator to fail to address how the absence of any police-recorded audio or video affected the fairness of the proceedings. It was also unreasonable and procedurally unfair for the Adjudicator to conduct the Review without the benefit of this evidence or confirmation that it did not exist. [ 28 ] In Weinkauf and Comeau v Alberta (Director of SafeRoads) , 2023 ABKB 722 [ Comeau ], the videos at issue were considered in the context of being “relevant and necessary to determine the basis for issuing the [NAP]” pursuant to SAR s 2(h).

The Courts did not grapple with the issue of the common law principles of fairness as decided in Smit . In this case, the Adjudicator did find that the police-recorded audio and video requested by the Applicant were not “relevant and necessary to determine the basis for issuing the [NAP]” pursuant to SAR s 2(h). The Adjudicator’s finding on this point is not directed at procedural fairness. Following the reasoning in Smit , the Adjudicator was required to consider the issue of police-recorded audio and video within the context of the fairness of the proceedings.

It is the Adjudicator’s failure to grapple with the issue of the common law principles of fairness that is unreasonable. 3. Remedy [ 29 ] Smit does not address remedy as remedy was deferred until the conclusion of the concurrent Charter application. The

Applicant argues that the principle of horizontal stare decisis applies and this Court is bound to follow the reasoning in Comeau with respect to remedy. I disagree. The question of the appropriate remedy is confined to the facts of the case and guided by the principles in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at paras 141-142 , which outline the considerations with respect to when it is appropriate to decline to remit the matter to the decision-maker. [ 30 ] Comeau is distinguishable. Like in Weinkauf , Comeau involved a video recorded by a third party.

It was not a police- recorded video capturing police interactions with the applicant. The video was referenced in the police narrative but not uploaded to APIS. There was no information as to whether police had ever obtained the video from the third party. The Adjudicator concluded that the video at issue was not a required record under PAPA s 12 or SAR s 2(

h) and therefore Mr. Comeau was not entitled to the video. The Court concluded that the video at issue was a required record pursuant to SAR s 2(

h) and the Director’s failure to disclose the video breached SAR s 2(h). A breach of SAR s 2(

h) is a ground to cancel a NAP: SAR ss 4(e)(iii) and 4(f)(iii). [ 31 ] In Comeau , the Director’s breach of its disclosure obligation pursuant to SAR s 2(

h) is what drove the remedy. The Court held that there is no option within the legislation for an adjudicator to send the matter back to the Director to clarify or rectify a breach of SAR s 2(

h) and therefore it would serve no practical purpose to remit the matter back to an adjudicator for reconsideration: para 72. In Smit , the Court did not consider whether the Director breached SAR s 2(h). Instead, the common law principles of fairness required the Director to provide to an applicant any relevant and existing police-recorded audio or video or advise that no such recordings exist. [ 32 ] In this case, like in Smit , the common law principles of fairness require that the Applicant be provided with any relevant police-recorded audio or video or be advised that none exist.

The appropriate remedy is to remit the matter for a rehearing. Prior to the rehearing, the Director can cure any procedural unfairness by either providing the Applicant with any police-recorded audio or video of the occurrence or advising that they do not exist. This will allow for a fair rehearing on the merits. B.

Digitally Signed [ 33 ] If an ASD was used as the basis for issuing the NAP the Director must provide the expiry date of the last annual maintenance performed on the device (Service Expiry Date), the date of the last calibration of the device (Calibration Date), and the expiry date of that calibration for the device (Calibration Expiry Date): SAR s 2(c).

If the Director fails to provide these complete records, the NAP must be cancelled: SAR ss 4(e)(iii) and 4(f)(iii). [ 34 ] The Issuing Officer identified in their Police Narrative that two separate ASDs were used with the Applicant and identified the serial numbers of the ASDs used as Serial #073302 and Serial #073220. [ 35 ] Two photographs were uploaded to APIS. The first photograph depicts an ASD and a plastic card that states “Alco-Sensor FST Serial #073220” and identifies the Service Expiry Date, the Calibration Date, and the Calibration Expiry Date, which satisfies the requirements of SAR s 2(c).

The depicted ASD does not have a visible serial number. The second photograph depicts only a plastic card and no ASD. The plastic card states “Alco-Sensor FST Serial #073302” and identifies the Service Expiry Date, the Calibration Date, and the Calibration Expiry Date. [ 36 ] At the review hearing the Applicant argued that the Director did not provide the records required by SAR s 2(c). The only evidence of the Service Expiry Date, Calibration Date, and Calibration Expiry Date were the photographs. Because the photographs were not signed in compliance with PAPR , the photographs were inadmissible.

The Applicant submits that the Adjudicator’s finding that the photographs were admissible was unreasonable. [ 37 ] In Wildman the Court held that it was reasonable for an adjudicator to conclude that if an officer completed in the affirmative the Declaration and Supporting Documents Declarations in the APIS Submission Export, included their personal information, and there was nothing on the record to suggest that there was any other means available for the officer to sign the form, it qualified as a signature for the purpose of PAPR : paras 48-51.

I am bound by this decision. [ 38 ] In this matter, the Issuing Officer’s APIS submissions included a completed Supporting Documents Declarations in the affirmative and a completed Declaration identifying their name and the date of submission. The Officer also provided their personal information including their name, regimental number, police service, and detachment. There is nothing to suggest that the Officer had any other means by which to sign the form.

The Adjudicator noted the Officer’s APIS Submission included the Declarations and Support Documents Declaration and that both were affirmed by the Officer including their name. Although not expressly stated, this is the basis upon which the Adjudicator found that the photographs had been digitally signed. As the photographs were properly signed, they were admissible and included the required evidence of Service Expiry Date, Calibration Date, and Calibration Expiry Date for the ASDs used to test the Applicant’s breath. [ 39 ] Pursuant to Wildman , the Adjudicator’s decision on this point was reasonable.

The photographs were signed in accordance with PAPR and were therefore admissible. This ground of judicial review is dismissed. C. ASD Serial Numbers [ 40 ] The Applicant submits that the Adjudicator made an unreasonable finding that the Director had provided complete records pursuant to SAR 2(

c) because the photographs of plastic cards with the maintenance and calibration information were not reliably connected to the ASDs used to test the Applicant’s breath. [ 41 ] At the review hearing the Applicant argued that it is important to be able to see the plastic card with the maintenance and calibration information and the ASD itself to ensure that the plastic card actually relates to the ASD used to test the Applicant’s breath. What is required is either a photograph of the ASD with the serial number visible, or it must be clear from the photograph that the plastic card is attached to the ASD.

Without this, the maintenance and calibration information for the ASDs used to test the Applicant’s breath have not been provided and if provided are not reliable. The Adjudicator rejected the Applicant’s argument and concluded that the

evidence was admissible, reliable, and established that the ASDs used to test the Applicant’s breath were properly maintained and calibrated. The Adjudicator held that the maintenance and calibration information as depicted on the plastic card alone can be relied upon to establish that the ASDs used to test the Applicant’s breath were properly maintained and calibrated. [ 42 ] The Adjudicator made a reasonable finding that the Applicant had been provided with the maintenance and calibration information for the ASDs used to test the Applicant’s breath.

This ground of judicial review is dismissed. [ 43 ] There is no legislative requirement that an applicant be provided with photographs of the ASDs used or the plastic cards containing maintenance and calibration information. The legislation requires that if an ASD was used as the basis for issuing a NAP, an applicant be provided with the Service Expiry Date, the Calibration Date, and the Calibration Expiry Date. In this case, the Officer identified in his police narrative and General Report the ASDs used to test the Applicant’s breath by serial number.

The serial numbers on the plastic cards match the serial numbers in the Officer’s narrative and report. Therefore, the maintenance and calibration information on the plastic cards are reliably connected to the ASDs used to test the Applicant’s breath. D. Proof of Password Protection 1. Evidence at the Review Hearing [ 44 ] At the Review the Applicant argued that the materials submitted by the Issuing Officer were not admissible because there was no evidence to show that the electronic transmittal of those documents was in compliance with PAPR s 16.

Specifically, the Applicant argued that there was no evidence that APIS was protected by a password issued in confidence to the Officer or other person who transmitted the documents. The Adjudicator confirmed that she did not have access to the APIS portal that police use.

She only had access to the administrative portal: Ernst (Re) , 2022 ABSRA 1077 [ Ernst ] (Oral Argument, Applicant) Transcript at p 8. [ 45 ] The Adjudicator explained the SafeRoads Portal in their decision: The SafeRoads Portal (the “Portal”) is split into three distinct parts, which includes the Recipient’s Portal, the Police Portal, and the Adjudicator’s Portal. The Recipient’s Portal allows recipients, counsel, and agents access to information regarding the recipient’s contravention, access to the information submitted by police, make payments, and upload their evidence.

The Police Portal allows the law enforcement agency to upload supporting evidence, which supports the contravention issued. I, as an Adjudicator, can only see my Portal, not those of the Recipient or the police. My Portal combines the submissions of the Recipient and the police, and allows me to upload completed decisions for recipients to access. Ernst at para 8. [ 46 ] The Adjudicator found that: “Portal login access is restricted to individuals by email or username and password,” and therefore the requirements of PAPR s 16(

b) had been met: Ernst at para 10. This decision of the Adjudicator is unreasonable. There was no evidence before the Adjudicator about the police SafeRoads Portal, the use of passwords, and how they were issued. The Adjudicator provides no reasons for making this finding. [ 47 ] The Director argues that the Adjudicator’s finding is reasonable as she can take notice of generally recognized facts within her specialized knowledge. I agree, but if the Adjudicator does take such notice, their reasons should set out that they have done so. In this case, the Adjudicator did not provide any reasons for their finding.

The absence of reasons for this finding is what makes the decision unreasonable. [ 48 ] The Director argues that it was not sufficient for the Applicant to raise concerns about whether there were password protections. The Director submits that the Applicant could make a request pursuant to the Freedom of Information and Protection of Privacy Act , RSO 1990, c F 31 if they had questions about whether the Director had approved an electronic means to transmit documents that complied with PAPR s 16.

The Director relies on the Applicant’s onus to prove a ground to cancel the NAP on a balance of probabilities and argues that the onus is on the Applicant to put evidence forward that the electronic means approved by the Director did not meet the requirements set out in the legislation. [ 49 ] I do not accept the Director’s argument. While the Applicant bears the burden of proof on a review to establish that the NAP should be cancelled, the Director bears the burden of proof to establish that the duties imposed on the Director and compliance with legislative requirements have been met.

Compliance with the legislation is the Director’s responsibility and the steps and measures taken to achieve compliance are within the control and knowledge of the Director. Whether the electronic means for transmittal of documents complies with PAPR s 16 is within the knowledge of the Director. 2. New Evidence on Judicial Review [ 50 ] Prior to the judicial review hearing the Director filed an Affidavit sworn by the APIS Manager Pauline Wong on November 3, 2023 (Affidavit).

The Affidavit provides information about APIS and the Police Portal including detailed information about how the Police Portal users register for an account and the Police Portal’s password requirements. At the judicial review hearing, I invited submissions on whether the Affidavit was admissible for the purpose of the judicial review. After hearing submissions, I found that the Affidavit was not admissible. [ 51 ] The Director submits that the evidence in the Affidavit was not evidence that could have been placed before the Adjudicator. I disagree.

The Director has the authority to establish and maintain publicly accessible scientific, technical, or medical information and documents in any format which may be relied on as evidence in a review: PAPA s 4. The Director has chosen to establish and maintains the SafeRoads Technical Materials Library: https://saferoads.alberta.ca/technical-material . The evidence in the Affidavit is evidence that is exclusively within the knowledge of the Director and could have been made available to the Adjudicator and parties through the Technical Materials Library.

[ 52 ] The Affidavit offers evidence that was not before the Adjudicator and goes to the merits of the issue that was before the Adjudicator. It does not fall into any of the exceptions that would allow for its admissibility: Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright) , 2012 FCA 22 and Bernard v. Canada (Revenue Agency) , 2015 FCA 263 . 3. Remedy [ 53 ] I have held that the Adjudicator’s decision is unreasonable. The appropriate remedy is to remit the matter back for rehearing on this issue before a different Adjudicator. V.

Conclusion [ 54 ] I conclude as follows: 1. The Director was required to disclose any police-recorded audio or video of the events in question or, alternatively, to advise that no such records exist. It was unreasonable for the Adjudicator to fail to address how the absence of any police-recorded audio or video affected the fairness of the proceedings and to conduct the Review without the benefit of this evidence or confirmation that it did not exist. This ground of judicial review is allowed. The matter is remitted back for rehearing.

The unfairness that occurred in the first instance can be remedied by the Director before and at the rehearing. 2. The photographs of the ASDs were signed in accordance with PAPR and were therefore admissible. This ground of judicial review is dismissed. 3. It was reasonable for the Adjudicator to find that the ASD calibration and maintenance dates had been provided and were reliable. This ground of judicial review is dismissed. 4. The decision of the Adjudicator that APIS login access is password protected is unreasonable.

There was no evidence before the Adjudicator on this issue and the Adjudicator provides no reasons for making this finding. The matter is remitted back for rehearing before a different Adjudicator on this issue. Heard on the 7 th day of December, 2023 Additional written submissions received the 8 th day and 15 th day of January, 2024 Dated at the City of Edmonton, Alberta this 2 nd day of February, 2024. Bonnie L. Bokenfohr J.C.K.B.A. Appearances: Shannon Gunn Emery Gunn Law Group for the Applicant Anastasia Yevtushenko Alberta Justice for the Respondent