Peer v Alberta (Director of SafeRoads), 2024 ABKB 77

Court of King’s Bench of Alberta Citation: Peer v Alberta (Director of SafeRoads), 2024 ABKB 77 Date: 20240212 Docket: 2203 07438 Registry: Edmonton Between: Mikhail Peer Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Decision of the Honourable Justice Bonnie L. Bokenfohr _______________________________________________________ Judicial Review of the Decision of Adjudicator A. Baker Dated the 18 th day of March 2022 Peer (Re) , 2022 ABSRA 348 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 Mikhail Peer (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 that was equal to or exceeded 80 mg of alcohol per 100 ml of blood. The Applicant sought a review before a SafeRoads Adjudicator (NAP Review). The Adjudicator confirmed the NAP. The Applicant asks this Court to find that the Adjudicator’s

confirmation of the NAP was unreasonable. [ 3 ] The Applicant argues that the Adjudicator’s decision was unreasonable on three issues: 1. The admissibility of the Approved Screening Device (ASD) photograph uploaded to the Administrative Penalty Information System/Advanced Projects Information System (APIS) [1] ; 2. The Director’s obligation to provide police-recorded audio and video of the occurrence to an applicant seeking a NAP Review or advise that no such recordings exist; and 3.

The Applicant’s ability to operate a motor vehicle being impaired to any degree by alcohol and/or drug. [ 4 ] I conclude as follows: 1. Demars v Alberta (Director of SafeRoads) , 2022 ABKB 620 [ Demars ] is binding on this Court. On that basis it was unreasonable for the Adjudicator to use the ASD photographs uploaded to APIS 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 that was equal to or exceeded 80 mg of alcohol in 100 ml of blood. 2. 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 a NAP Review 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. 3. The NAP as it relates to impaired operation of a motor vehicle is remitted for rehearing on the issue of whether the Applicant’s ability to operate a motor vehicle was impaired to any degree by alcohol or drug. The Adjudicator must assess the issue without relying on the ASD result. II. Background [ 5 ] On February 18, 2022 two police officers responded to a complaint of a possible impaired driver.

The officers conducted a roadside traffic stop on the vehicle being driven by the Applicant and issued a breath demand to the Applicant. The Applicant blew into an ASD and the breath sample result was a “Fail.” The Applicant was offered the opportunity to do a second breath test as a roadside appeal. The Applicant refused. The police narrative included with the contravention submission uploaded to APIS notes that the Applicant’s breath smelled of alcohol and the Applicant’s “speech was slow and slightly slurred and his [eyes] were droopy.” [ 6 ] The NAP was issued 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 exceeded 80 mg of alcohol in 100 ml of blood within 2 hours after ceasing to operate a motor vehicle. [ 7 ] The Applicant sought a NAP Review. The Adjudicator confirmed the NAP. The Applicant seeks judicial review of the Adjudicator’s decision. [ 8 ] The parties agree that the standard of review is reasonableness. III.

Analysis A. ASD Photographs – No Statement That the Photograph Has Not Been Altered [ 9 ] A photograph of an ASD was uploaded to APIS. The photograph depicts a plastic tag that includes the calibration date, calibration expiry date, and service expiry date. This is information that the Director must provide to an Applicant who requests a NAP Review: SafeRoads Alberta Regulation , AR 224/2020 ( SAR ) s 2(c).

It is also information that an Adjudicator requires to determine whether the ASD used was within its calibration and maintenance period, which is evidence that the ASD result was reliable. [ 10 ] The photograph is the only evidence from the officers that identifies the calibration and maintenance dates for the ASD used to test the Applicant’s breath. [ 11 ] The officer who uploaded the ASD photograph to APIS answered “Yes” to the following statement, “I solemnly declare the information that I have authored in this my contravention submission, and I make this solemn declaration conscientiously believing it to be true and knowing that it is of the same force and effect as if made under oath.” The officer did not, however, state or declare that the ASD photograph had not been altered in any way. [ 12 ] The Applicant raised this issue at the NAP Review.

The Adjudicator held that the ASD photograph could be considered and was reliable evidence: Peer at paras 8 and 9. [ 13 ] The Adjudicator issued their decision in March 2022. On September 20, 2022 Demars was released. The Court held that s 17

of the Provincial Administrative Penalties Regulation, Alta Reg 217/2020 creates a separate and mandatory obligation for an officer toconfirm that a photograph has “not been altered in any material way” in order for that photograph to be admitted as proof of the factsdepicted in the photograph: paras 17-20. [14] 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, ; [1954] 4 DLR 590 (BC SC) [Spruce Mills] applies:

a) The rationale of an earlier decision has been undermined by subsequent appellate decisions;

b) The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or

c) The earlier decision was not fully considered, e.g. taken in exigent circumstances. R v Sullivan, 2022 SCC 19 at para 75. [15] In this case, none of the Spruce Mills exceptions apply. Demars is therefore binding: see also Wildman v Alberta (Director ofSafeRoads), 2022 ABKB 756 at para 33; Fox v Alberta (Director of SafeRoads), 2024 ABKB 29 at paras 12-19. [16] The Adjudicator’s decision upholding the NAP as it relates to the Applicant having a blood alcohol concentration that wasequal to or exceeded 80 mg of alcohol in 100 ml of blood is quashed.

The NAP as it relates to the Applicant having a blood alcoholconcentration that was equal to or exceeded 80 mg of alcohol in 100 ml of blood is based on the ASD results. The ASD photograph is theonly evidence of the maintenance and calibration dates for the ASD used to test the Applicant’s breath. It was unreasonable for theAdjudicator to rely on the photograph as reliable evidence of the maintenance and calibration dates because there was no evidence fromthe officer that the ASD photograph had not be altered in any way.

As such, the Adjudicator had no reliable evidence before them thatthe ASD used was properly calibrated or maintained. Therefore, there was no evidence upon which the Adjudicator could evaluatewhether the ASD result was reliable and accurate. [17] The outcome on a rehearing of this issue is inevitable. The photograph requires specific confirmation that it has beenunaltered in order to be admissible. This confirmation has not been provided. The inevitable outcome is cancellation of the NAP: Demarsat para 23. B.

Police-Recorded Audio and Video [18] Prior to and during the NAP Review the Applicant requested any audio and video recordings from the police vehicle or policestation related to the issuance of the NAP. The Applicant argued that

section 12 of the Provincial Administrative Penalties Act, 2020, cP-30.8 (PAPA) and SAR s 2(

h) required that any police-recorded audio and video be provided to the Applicant, if it existed. [19] The Adjudicator held that they were not satisfied that any relevant police-recorded audio or video would exist and if it did, thelegislation did not require that those things be provided.

The Adjudicator did not consider whether it would be procedurally fair toproceed with the NAP Review in the absence of any police-recorded audio or video or knowing that no such recordings exist. [20] The question of whether police-recorded audio and video must be provided to applicants seeking a NAP Review wasconsidered in Smit. The Court held that the common law principles of fairness require the Director to provide to an applicant any existingaudio or video recordings or advise that no such recordings exist: para 83. Since PAPA s 12 and SAR s 2(

h) do not contain clear andexplicit language ousting the principles of fairness in relation to the production of relevant materials, the common law balancing offactors falls in favour of providing existing audio or video recordings to an applicant seeking a NAP Review: para 86. Smit is binding onthis question of law: see Ernst v Alberta (Director of SafeRoads), 2024 ABKB 68 [Ernst] at paras 23-28. [21] The Director was required to disclose to the Applicant any police-recorded audio or video or, alternatively, to advise that nosuch recordings existed.

It was unreasonable for the Adjudicator to fail to address how the absence of any police-recorded audio or videoaffected the fairness of the proceedings. It was also unreasonable and procedurally unfair for the Adjudicator to conduct the NAPReview without the benefit of that evidence or knowing that no such recordings exist. [22] The appropriate remedy is to remit the matter for a rehearing.

Prior to the rehearing, the Director can cure any proceduralunfairness by either providing the Applicant with any police-recorded audio or video of the occurrence or advising that no suchrecordings exist: see Ernst at paras 29-32. C. Applicant’s Ability to Operate the Motor Vehicle [23] The Applicant argued at the NAP Review that their ability to operate a motor vehicle was not impaired to any degree byalcohol or drug. The Adjudicator held that the Applicant had not established this ground to cancel the NAP. The Adjudicator’s reasonsrely in part on the ASD “Fail” result.

It was unreasonable for the Adjudicator to rely on the ASD result (see reasons above at paras 9-17).The decision of the Adjudicator on this issue is therefore quashed. [24] The appropriate remedy is to remit the matter for re hearing on the issue of whether the Applicant has established that theirability to operate a motor vehicle was not impaired to any degree by alcohol or drug. The ASD result was not the only evidence ofimpairment. The Adjudicator will have to assess this issue without considering the ASD result. IV. Conclusion [25] For the reasons set out above I conclude as follows:

1. The NAP as it relates to operating a motor vehicle with a blood alcohol concentration that was equal to or exceeded 80 mg of alcohol per 100 ml of blood is cancelled. 2. The review of the NAP as it relates to impaired operation of a motor vehicle is remitted for rehearing with the following directions:

a) The Director has a duty to provide the Applicant with any police-recorded audio or video of the events in question or, alternatively, to advise that no such recordings exist; and

b) The Adjudicator must assess the issue of whether the Applicant’s ability to operate a motor vehicle was impaired to any degree by alcohol or drug without relying on the ASD result. Heard on the 4th day of October, 2023 Additional written submissions received the 8 th day and 15 th day of January, 2024 Dated at the City of Edmonton, Alberta this 12 th day of February, 2024. Bonnie L. Bokenfohr J.C.K.B.A. Appearances: Adam L. Klassen Gunn Law Group for the Applicant Eden C. Maher Alberta Justice for the Respondent