IMMEDIATE ROADSIDE SANCTIONS (IRS) DATABASE

Immediate Roadside Sanctions (IRS) Database

Successful Decisions

The Immediate Roadside Sanctions (IRS) legislation was passed with the goal of simplifying and streamlining prosecutions for alcohol related driving offences in Alberta. Politicians were of the mistaken belief that criminal impaired driving cases were “clogging” the courts and decided to de-criminalize drinking and driving. Police have been directed to give drivers accused of alcohol-related driving offences a Notice of Punishment under the IRS legislation with non-criminal penalties including fines, driving prohibitions and mandatory participation in the Interlock Program (blow box in the vehicle).

Criminal charges are prosecuted in a criminal court following rules of evidence heard in front of a judge. IRS prosecutions are not in court and not decided by a legally trained judge. Instead, the rules of evidence don’t apply, police do not get cross-examined on their notes that are often incorrect and exaggerated and your case is decided by an Adjudicator with no criminal law background. The onus is on the Recipient to disprove the allegations either in writing or at a virtual hearing.

Winning an IRS Review is difficult and requires a lawyer who understand the legislation and the ways in which to win. It is just as important for your lawyer to know how to win as it is to inform their client when they have no chance of success so that he or she doesn’t unnecessarily waste their money. On average, only 25-30% of IRS Reviews are successful. This isn’t because the police have conducted a fulsome and accurate investigation. It is because there are minimal defenses with legislation designed so the Recipient is found guilty.

Below is a database of successful IRS Reviews throughout Alberta with links to each online decision and the relevant paragraphs containing the reasons for cancelling the Notice of Punishment.

Cahalane (Re), 2022 ABSRA 340

Officer failed to check any box to determine what violation occurred – bad notes

5. To succeed on this ground, the Recipient must establish that: a) the record alleged to be missing was required under Section 12 of PAPA; and b) the record was not provided. Section 12 of PAPA sets out that the Director must provide the Recipient with the records required by Section 2 of the Regulation.
6. The Recipient argues that a copy of the NAP as required by Section 2(a) was not provided because the NAP he received was deficient. Counsel argued that none of the boxes indicating which penalty was being imposed have been checked off on the NAP. He further submits that the reverse of the form, which includes additional administrative penalties, has not been provided. He argues that, “[a]dministrative fairness requires that a citizen know the case they are to meet”. In his view, an incomplete form cannot be relied upon.

7. Counsel has detailed further deficiencies on the record that add to the confusion about what the penalty is. He notes that the contravention details on the Administrative Penalty Information System (“APIS”) state that the Recipient was provided with information about a roadside appeal; however, the NAP says that the Recipient was not given information about a second test.

8. Counsel further notes that the police narrative states the Recipient had the consequences of Failure/Refusal explained to him, but the narrative does not state what happened next. Additionally, the police evidence does not confirm that the Recipient was the driver, and there is no evidence that anyone saw the Recipient driving, nor is a time of driving noted. Counsel argues that penalties cannot be arbitrary and must be based on evidence.

9. Cst. Campbell’s narrative states that he attended the scene of a motor vehicle collision and there was no driver present. Later, complaints about an intoxicated and aggressive male were received, and it was determined that he was the registered owner and driver of the vehicle involved in the collision. He notes that the Recipient was read an ASD demand and that he refused.

10. In reaching a decision on this issue, I must consider if the NAP satisfies the requirements of Section 28 of PAPA. A valid NAP must identify the recipient with reasonable clarity; indicate which provision of the enactment the recipient has contravened; and specify the date of the contravention and the place where it occurred.

11. In this case, the investigating officer did not check off any of the boxes corresponding to penalties under Section 88 of the TSA. Additionally, I agree with counsel that the further deficiencies in the police evidence – in particular, the contradictions relating to what happened with respect to the offer of a roadside appeal – exacerbate the lack of any information about which provisions of the TSA are in play. If this was a case of Failure/Refusal as the police narrative indicates, why does the NAP not say so? Moreover, if this was a case of refusal, why does APIS state that the Recipient was given information about a roadside appeal? In my view, all of this further establishes that the NAP is deficient and cannot be relied upon.

12. In my opinion, without a clear indication of which provision of the TSA the Recipient is alleged to have contravened, along with the lack of a consistent and detailed report that might otherwise clarify what happened, the NAP is invalid. The Recipient has established this ground to cancel.

Martin (Re), 2022 ABSRA 351

Officer failed to provide immediate roadside appeal either because it was an impaired fail or because the officer didn’t have an ASD device – bad notes

 

5. To succeed at this ground, the Recipient must establish a) that the officer did not advise the Recipient in writing, for example, because the Recipient did not receive a copy of the NAP clearly setting out his right or the officer did something to obscure or undermine this advice, and b) that the Recipient was also unaware of that right.

6. Counsel for the Recipient (“Counsel”) argues that this ground to cancel is made out because the officer did not provide any notice to the Recipient that he had the right to a roadside appeal.

7. In this case, Cst. Prescott served the NAP on the Recipient and the NAP form itself clearly states in big, bold, red letters that recipients have the right to request a second test. The Recipient does not dispute receiving the NAP.

8. However, advice in writing can be rebutted by the Recipient if the officer did anything to undermine or obscure the advice of the roadside appeal on the NAP. In this case, on the “Roadside Appeal” portion of the Administrative Penalty Information System (“APIS”), Cst. Prescott wrote “No” where it asks “Was Recipient Presented with Roadside Appeal Information”. Further, where it prompts, “If No, Explain”, Cst. Prescott wrote: “No ASD was used so no appeal was possible”.

9. On the NAP form issued to the Recipient, Cst. Prescott checked “N” where it asks, “Driver provided with information on the right to a second test”. Where it prompts “If No, explain,” Cst. Prescott wrote “NO INSTRUMENT USED” [officer’s emphasis]. In this case, Cst. Prescott either believed that a roadside appeal was not necessary in a situation where a NAP was being issued for Impaired Operation only, or because the officer did not have an ASD in her possession, the officer figured the roadside appeal was not possible. There is no evidence before me that the officer had an ASD in her possession to conduct any tests at all. Furthermore, there is no evidence before me that the Recipient received awareness of a roadside appeal by any other means. The police notes are silent as to whether the right to a second test was given verbally or in some other fashion. In the totality of the circumstances, I feel assured that Cst. Prescott was labouring under a mistake in law that a roadside appeal was not required in this situation, and communicated that mistake to the Recipient by what was written on the NAP.

10. I find that the evidence establishes that Cst. Prescott did undermine or obscure the advice contained on the NAP about the right to a roadside appeal, and the Recipient would not be aware of his right.

11. The Recipient has established this ground to cancel.

Mino (Re), 2022 ABSRA 346

Recipient did not operate vehicle after consuming alcohol – was only in vehicle to smoke due to hotel being non-smoking and cold night

5. Section 1(4.2)(b) of the Use of Highway and Rules of the Road Regulation, Alta Reg. 304/2002, defines “operate a motor vehicle” for the purposes of Section 88.1 of the TSA as including to “drive a motor vehicle.” Section 1(1) of the TSA defines “drive” or “driving” as including “having care or control of a vehicle.” To succeed at this ground, the Recipient must establish that the Recipient neither drove in the sense of setting a vehicle in motion, nor was in care or control of a stationary vehicle at the time alleged by police.

6. On the issue of driving in the sense of setting the vehicle in motion, counsel for the Recipient (“Counsel”) argues that the Recipient did not drive because the vehicle was parked for several hours in a hotel parking lot, the vehicle was never observed to move, and the Recipient had ceased driving before she consumed alcohol or became impaired.

7. On the issue of care or control of the vehicle, Counsel argues the Recipient was not in care or control because she had no intention to put the vehicle into motion and was only in the driver’s seat to have a cigarette in a “warmer environment” and the vehicle did not present any risk of danger to anybody.

 

Did the Recipient not actually drive at the alleged time?

8. The Recipient and her sister (“D.M.”) were present for the Review and gave oral testimony; the Recipient spoke first, then D.M. attended and submitted her statements afterwards. Both stated they had driven from British Columbia (“BC”) that day, February 16, 2022, and had checked into the Hotel in Sherwood Park, which had an attached Chop Steakhouse restaurant (the “Chop”). They stated their plan was to check into the Hotel, have dinner and drinks at the Chop, and then return to the Hotel for the night. The Recipient stated they were in town on that weekend to visit with the Recipient’s niece (D.M.’s daughter) but on the night in question she and D.M. wanted to visit and have a good time prior to going to her niece’s the next day. After leaving the Chop and going back to their hotel room, the women report they went downstairs to have a cigarette in the Recipient’s car, a Toyota Corolla, because they “always smoke before bed”, the Hotel was non-smoking, and the Recipient’s vehicle has an ashtray.

9. Police evidence indicates a front-desk staff member (“R.”) made a 911 complaint to report two “very intoxicated females” in pajamas and slippers who left the Hotel and got into a Hyundai Elantra. R. stated the women were having a very hard time getting the vehicle into drive and were “yelling and screaming”. Cst. Roberts reports that when he arrived, R. pointed out the Recipient’s vehicle, which was “running and on”, with the Recipient in the driver’s seat. The sister’s statements sway me that they did in fact park their vehicle in the parking lot of the Hotel prior to dining at the Chop. I accept, based on the picture submitted by the Recipient, showing the Hotel and the Chop are attached buildings, that the Recipient and D.M. likely walked from one establishment to the other as they submit. I have no evidence that the Recipient drove or moved her vehicle prior to the police attending. Considering all of the above, I find on a balance of probabilities, the Recipient did not drive her vehicle after parking it at the Hotel prior to eating at the Chop.

10. I find the Recipient has established that she was not actually driving by moving the vehicle at the time she was believed to be impaired by alcohol. That is not the end of the analysis, however, since the Recipient could also have been operating by being in care or control of the motor vehicle when it was stationary.

Was the Recipient not in care or control at the alleged time?

11. To answer this question, I turn to the Supreme Court of Canada’s analytical “care or control” framework set out in R v Boudreault, 2012 SCC 56, adapted for the administrative rather than criminal context. The Recipient must establish: a) that the Recipient was not in the driver’s seat or not otherwise in care or control of the vehicle or, if the Recipient was in the driver’s seat, b) the Recipient had no future intention to drive and c) was not in such circumstances that she presented a realistic risk of danger to persons or property.

12. The Recipient does not deny that she was seated in the driver’s seat of the vehicle; therefore, care or control is presumed. As my analysis below will show, Counsel has successfully rebutted this presumption by arguing the Recipient was only in her vehicle for a “warmer environment” to smoke as the Hotel she was staying at was non-smoking. Counsel further argues the Recipient’s vehicle keys were either located in her sister’s possession or in the console, and the Recipient reports she never drives without having the keys on her person. I note the Recipient indicated in the Review that her vehicle is a push start. I am not convinced by the Recipient’s argument alone, that she would not drive if the keys were not physically on her person as, with any push start, if the keys are in the vehicle, it can be operated. I therefore continue my analysis with the knowledge that the Recipient had the means to operate her vehicle and she was in a position (driver’s seat) to do so.

13. I will now consider whether or not the Recipient had a future intention to drive. The sisters indicate their plan had been to drink and eat at the Chop, then sleep at the attached Hotel. Although the Hotel receipt submitted shows only D.M.’s name, I note the room had two queen beds, and the Recipient’s interprovincial records confirm she holds an address in BC, which lends credibility to where the Recipient states she planned to stay that night. The evidence places the Recipient and D.M. at the Chop at 10:16 p.m., when the last bill submitted was paid. The sisters report they walked back to their hotel room at approximately 11:00 p.m., then got ready for bed (washed off makeup, laid clothes out for the next day). The sisters both reported they went to have cigarettes before bed, and were doing so when police arrived, which is listed in the contravention details as 1:35 a.m.

14. Although R. indicates he saw the women in pajamas and slippers, the sisters were adamant during the Review that they were wearing the same clothes they had worn while at the Chop, and dispute they were wearing slippers when they went out to the vehicle. I find, had the Recipient and her sister admitted to wearing pajamas, that their story would be more credible as ‘getting ready for bed’ would usually include changing clothes. This also would have solidified their evidence that they did not plan to go anywhere else that night. Although I accept the sisters had a room at the Hotel and planned to stay there, I cannot rule out they may have left the Hotel with the intentions of finding a bar or a liquor store to continue their night of drinking. Even though the sisters agreed that they had a smoke before going to bed, I cannot know, by the evidence submitted, if this was a trip to the vehicle to smoke for that purpose alone.

15. According to the alcoholic drinks listed on the bills (approximately 14), combined with the sister’s testimonies that they were also provided ‘shots’ from the Chop manager, which I assume are in addition to the drinks they paid for, I can reasonably infer the Recipient and her sister could have been described by an onlooker as “very intoxicated females” due to this amount of alcohol consumption. I have no indication if R. identified the model or colour of the Elantra he reportedly saw the females enter but I note a Hyundai Elantra, if it was a hatchback, could be very similar in appearance to a Toyota Corolla hatchback, which is the model the Recipient owns, as they are both small compact cars. I find it reasonable that R. could have mistaken any differences between these cars in a presumably darkened parking lot, which may also account for R.’s lack of colour descriptor. The one piece of information I do not have, which I find essential, is if R. maintained visual continuity of the women, such that he did not identify the sisters by mistake when police arrived. As the location is public and in close proximity to a bar, I find it is possible, that more than one grouping of two women could have been intoxicated in or around the Hotel at that time of night. I am not satisfied, on R.’s complaint alone, that the Recipient and her sister were the subjects of the 911 call, particularly as the clothing is disputed and the lack of evidence that the Recipient ‘tried to put the car into drive’ as R. stated in his complaint. This leads me to have some doubt of the reliability and relevance of R.’s observations. Further, I have no evidence which persuades me the Recipient had intentions to attend another location that night, therefore I am satisfied the Recipient had no future intention to drive.

16. I also consider if the Recipient presented a realistic risk of danger insofar as:

1. a) an inebriated person who initially does not intend to drive may later, while still impaired, change her mind and proceed to do so;

1. b) an inebriated person behind the wheel may unintentionally set the vehicle in motion; or

1. c) through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

17. The Recipient has convinced me that she was at her final destination for the evening therefore I am satisfied that although she was intoxicated, she would not, on a balance of probabilities, have changed her mind and driven her vehicle elsewhere.

18. According to police, the Recipient’s vehicle was running. The Recipient and her sister argue the vehicle was only running to provide warmth. The Recipient has argued that in order to place her vehicle in gear, she would have had to depress the brake and manually shift the gear into place. I find this is common procedure for most vehicles however, since the Recipient was conscious and reportedly engaged in conversation with D.M., I find it unlikely in this instance that she would have accidently engaged the brake and knocked the gearshift into “drive” without meaning to do so. There is also no evidence before me that the Recipient’s motor skills were observed to be uncoordinated or grossly impaired.

19. My last analysis is whether or not the Recipient could have endangered persons or property with her vehicle location. The Recipient has stated her vehicle was in the parking lot of the Hotel for several hours. As the vehicle’s location is designed to house parked cars overnight or for longer periods of time, and I have no evidence the vehicle was parked improperly where it was, I find the Recipient’s vehicle itself did not present a danger.

20. My finding for this case is that although the Recipient and her sister had consumed alcohol, the Recipient was acting responsibly, and was only in her vehicle to smoke, which is a reasonable and almost expected place to do so, given the non-smoking hotel and the weather in Alberta in the winter. I found I was not wholly convinced the 911 complaint was about the sisters, and I accept that the Recipient’s vehicle had not been moved or driven after the Recipient consumed alcohol. On a balance of probabilities, I find the Recipient was not in care or control of her motor vehicle at the relevant time. The Recipient has established this ground to cancel.

 

Kleinsasser (Re), 2022 ABSRA 326

Reasonable excuse – no demand read – no immediate roadside appeal on impaired

Recipient was unaware demand was read

5. To succeed at this ground, the Recipient must establish on a balance of probabilities that the Recipient did not know that the Recipient was the subject of a breath, blood or bodily substance demand under Sections 320.27 or 320.28 of the Criminal Code (Canada).

6. Counsel for the Recipient (“Counsel”) argues that the Recipient did not have knowledge because there is no evidence that a demand was ever made.

7. Upon review of the police narrative in the Administrative Penalty Information System (“APIS”), there are no notes indicating that a breath demand was ever made. In viewing the “Report to SafeRoads”, where it asks “Was a Screening Method Used?”, Cst. Cross checked, “No, I began with reasonable grounds to believe the driver was impaired, or this is an IRS: 24 HOUR and no screening method was required”. Indeed, this was not an IRS: 24 Hour as it is clear that a screening method was not used by the officer. For this reason, on a balance of probabilities, the Recipient has established that he did not know he was subject to a breath demand.

8. The Recipient has established this ground to cancel the NAP issued on the basis of Failure/Refusal. I will continue my analysis with respect to the NAP issued on the basis of Impaired Operation.

Right to immediate roadside appeal

9. To succeed at this ground, the Recipient must establish a) that the officer did not advise the Recipient in writing, for example, because the Recipient did not receive a copy of the NAP clearly setting out his right or the officer did something to obscure or undermine this advice, and b) that the Recipient was also unaware of that right.

10. Although this argument was not explicitly advanced by Counsel, I find the argument is sensibly implied considering one of the Recipient’s key arguments is that a breath test was never contemplated by the officer throughout the traffic stop.

11. In this case, Cst. Smith served the NAP on the Recipient and the NAP form itself clearly states in big, bold, red letters that recipients have the right to request a second test. The Recipient does not dispute receiving the NAP.

12. However, advice in writing can be rebutted by the Recipient if the officer did anything to undermine or obscure the advice of the roadside appeal on the NAP. In this case, on the “Roadside Appeal” portion of the APIS, Cst. Smith wrote “Yes” where it asks “Was Recipient Presented with Roadside Appeal Information”. Further, on the “Report to SafeRoads”, Cst. Smith checked “Recipient presented with Roadside Appeal information”. However, on the NAP form itself, Cst. Smith checked, “N” (for No), where it prompts, “Driver provided with information on the right to a second test”. Further, Cst. Smith wrote, “no test administered straight Impaired”. There is no comment in the police narrative regarding the Recipient’s right to a roadside appeal or second test. I am satisfied with the inconsistency and deficiencies in the officer’s submissions that Cst. Smith was labouring under a mistake in law that the Recipient was not entitled to a roadside appeal after an Impaired Operation contravention and communicated that mistake to the Recipient via what was written on the NAP.

13. In consideration of all this, I find that the evidence establishes that Cst. Smith did undermine or obscure the advice about the right to a roadside appeal, thereby negating it. Furthermore, the police narrative is silent on any verbal roadside appeal information. Thus, in the totality of the circumstances, I am satisfied the Recipient would not have gained awareness of the roadside appeal by any other means and I find that the Recipient would not have been aware of his right to a roadside appeal.

14. The Recipient has established this ground to cancel the NAP for Impaired Operation.

15. As my findings are conclusive to the outcome of this Review, I find an analysis of the other grounds to cancel raised by the Recipient unnecessary.

Slade (Re), 2022 ABSRA 402

Refusal – No demand read

5. To succeed at this ground, the Recipient must establish on a balance of probabilities that the Recipient did not know that the Recipient was the subject of a breath, blood or bodily substance demand under Sections 320.27 or 320.28 of the Criminal Code (Canada).

6. The Recipient argues that the Recipient did not have knowledge of the demand because no demand was ever made.

7. From the evidence provided, the officer submits she attended an apartment building parking lot after a citizen complained the Recipient was playing loud music in his vehicle. The officer submits she approached the vehicle and asked the Recipient for his licence and registration. As the Recipient responded, the officer submits she smelled liquor on his breath. The Recipient had difficulty unlocking his doors and opening and closing the window of the vehicle and the officer submits she informed the Recipient he was under arrest for impaired operation. The officers states the Recipient turned his vehicle off and, as he stepped out of the vehicle, he lost his balance and stumbled. The officer submits she informed the Recipient again that he was under arrest. As the officer was preparing to handcuff the Recipient, the officer submits he pushed her and went into the apartment building. The officer states she spoke with the complainant who told her which apartment the Recipient lived in. The officer submits that she knocked on his door but he did not answer. The officer states the Recipient’s vehicle was towed for impaired operation. Inside the vehicle was a hard hat with the name “Brendon Slade” on it. The officer submits that she identified the Recipient based on the name on the hard hat, the neighbour’s identification of the Recipient’s apartment and the Recipient name on the apartment directory and then charged him with impaired operation.

8. From the Recipient’s affidavit, the Recipient submits that, at no time during his interaction with the officer, did she ask or demand that the Recipient provide a breath sample. The Recipient argues that, as he was never the subject of a breath demand, he did not fail or refuse to comply with it. In addition, the Recipient argues that the first time he was aware that he was charged with refusing to provide a sample was when his lawyer explained the documents to him. The Recipient states that the officer gave him all of his documents on March 9, 2022, along with his licence and was told he was suspended from driving for seven days.

9. Recipient’s counsel (“Counsel”) submits that the police narrative in the Administrative Penalty Information System (“APIS”) made no mention that an approved screening device (“ASD”) breath demand was made on the Recipient. Counsel argues the narrative supports that the Recipient was being arrested for impaired driving by the officer but not for refusal. Counsel argues that the Recipient provided affidavit evidence that no demand was made of him. Further, Counsel submits that if a proper demand had been issued, it follows that the Recipient would be aware of the consequences of refusing and the Recipient had no such knowledge. Counsel also points out a number of inconsistencies and errors in the officer’s submissions in APIS including entering the wrong contravention type, incorrect birthday on the NAP and duplication of the narrative in APIS. Counsel states that the officer did not appear to understand NAP driving suspensions as she gave the Recipient back his licence and stated he could not drive for seven days. Finally, Counsel submits that the officer issued the NAP on March 9, 2022, with no evidence to support that it could be properly issued on the grounds of a refusal.

10. When considering the evidence provided, the officer signed the NAP on March 9, 2022, with only the “Refusal” box marked with an “x” in the IRS: Fail section of the NAP. In APIS, the only contravention cited is “Impaired”. In addition, in the Impairment Screening section of APIS, the “Time of ASD Demand” and “Refusal?” options normally available in that section were not included.

11. When I consider the information in APIS and the police narrative, it is evident that the officer believed the Recipient’s ability to operate a motor vehicle was impaired (“Impaired Operation”). The officer believed she had the grounds to arrest the Recipient without the aid of an ASD and, in the narrative, she twice stated to the Recipient that he was under arrest. Also from the narrative, the officer’s personal involvement with the Recipient ended once he was in his apartment. The officer used information from a number of sources to be satisfied that the vehicle she was seizing and having towed was the Recipient’s and that she was doing so based on her belief that the Recipient was impaired when she found him in the driver’s seat. The next time the officer saw the Recipient was on March 9, 2022, when the officer returned the Recipient’s licence and served him documents including the NAP.

12. It is not clear why the officer chose to issue the Recipient a NAP for Failure/Refusal as opposed to Impaired Operation. However, I am satisfied that, on the day of the incident, the officer’s last personal interaction with the Recipient was her attempt to arrest him for Impaired Operation. Once the Recipient was in his apartment, the officer appears to have abandoned any attempts to further the Impaired Operation investigation and was apparently satisfied with the evidence she had. However, in order to issue a NAP for Failure/Refusal, the officer would have needed to make a breath demand of the Recipient and I find no evidence to support that she did. On a balance of probabilities, I am satisfied that the Recipient did not know a demand for breath under section 320.27 or 320.28 of the Criminal Code (Canada) had been made on him by the officer.

13. The Recipient has established this ground to cancel.

Textor (Re), 2022 ABSRA 319

No roadside appeal – Recipient had to be restrained but after calmed down no appeal information was provided

6. To succeed at this ground, the Recipient must establish a) that the officer did not advise the Recipient in writing, for example, because the Recipient did not receive a copy of the NAP clearly setting out his right or the officer did something to obscure or undermine this advice, and b) that the Recipient was also unaware of that right.

7. The Recipient argues that this ground to cancel is made out because the officer never mentioned a roadside appeal and did not explain the NAP.

8. As set out above at paragraph 6, the ground to cancel under Section 4(e)(v) is effectively a two-pronged test. Since the Recipient does not dispute receipt of a copy of the NAP, which sets out in writing the right to a roadside appeal, the Recipient must instead meet the first prong of the test by establishing that the officer did something to obscure or undermine notice of this right.

9. The police evidence is that the Recipient’s vehicle was first observed at 1:21 a.m., stopped at 1:26 a.m., and the contravention occurred at 1:38 a.m. The Contravention Details on the Administrative Penalty Information System (“APIS”) indicate that the screening method used by police was “reasonable grounds to believe the driver was impaired”. The police narrative states that upon advising the Recipient that “she was under arrest for care and control of the vehicle… [she] became extremely violent with officers to the point of having to be handcuffed and having leg restrains [sic] put on”. The police evidence provides no additional detail regarding what occurred after restraining the Recipient; whether she eventually calmed down or continued struggling; further interactions, if any, that occurred between the officers and the Recipient; or the time that the Recipient was ultimately released. The NAP indicates that the officer did not provide the Recipient with information about the right to a second test because she was “extremely violent”. The NAP also indicates that the Recipient did not request a second test. No information is provided as to when the NAP was provided to the Recipient.

10. The Recipient’s evidence included a sworn affidavit, in which she states that after being pulled over, she complied when the officer asked her to turn off her vehicle. The officer then went to his patrol vehicle, and upon returning, opened the Recipient’s vehicle’s driver’s side door and grasped her left shoulder. The Recipient indicates that she was formerly a victim of a serious assault, and as a result of the officer’s actions, she panicked, experienced flashbacks, and attempted to fight him off. The Recipient acknowledges that she was screaming and attempting to escape. Upon being restrained, she was put in the back of the patrol vehicle. The Recipient states that two other officers were in the vehicle with her, and she recalls requesting a breathalyzer test at least five times. She believes she was released at approximately 3:00 a.m., and submits that the NAP was served on her nearly two hours after being detained.

11. When I consider the totality of the evidence, I find that the officer did not advise the Recipient in writing of the right to a roadside appeal, nor was the Recipient aware of that right. I appreciate that the Recipient initially struggled and physically resisted arrest, but her evidence is that once she was restrained and placed into the patrol vehicle, she had the wherewithal to request a breathalyzer test, which suggests that she had at least calmed down somewhat. Nothing in the police evidence contradicts this; in fact, there is nothing in the police evidence that indicates that the Recipient continued to be violent after being restrained, or otherwise did anything to frustrate her right to be advised of her right to a roadside appeal, or to undergo the appeal process.
12. Further, the Recipient states that she believes she remained in the patrol vehicle until approximately 3:00 a.m. While the Recipient has produced no substantiating evidence in support of her subjective belief, I also note that there is nothing in the police evidence that contradicts her belief. As such, although I am unable to make a conclusion as to the amount of time the Recipient was in the patrol vehicle, I accept that she was in the patrol vehicle for a sufficient duration during which time a reasonable person would expect the police to advise her of her right to a roadside appeal.

13. I further note that a roadside appeal is unavailable only in very limited circumstances as set out under Section 88.11(8) of the TSA. Specifically, subsection (d) states that “No person may seek a roadside appeal… where in the opinion of the peace officer a roadside appeal could no longer provide any evidence of the blood alcohol or blood drug concentration of the recipient at the time of driving”. This provision is triggered, for example, in instances where police arrive at the scene of an accident to find the operator injured or unconscious or transported to the hospital, or where an impaired operator manages to evade police for a period of time. The evidence before me is that the police were able to conduct a traffic stop and the Recipient remained at the scene for the entire duration. There is nothing that would suggest it was no longer possible to obtain evidence of the Recipient’s blood alcohol concentration (“BAC”) at the time of driving.

14. As set out above, I found that once the Recipient had been restrained and put inside the patrol vehicle, she was in a calmer state of mind, at which time a reasonable person would

have expected police to advise her of her right to a roadside appeal. I find that by failing to do so, the police obscured or undermined notice of this right. Given that I also found that the Recipient had no actual knowledge or awareness of her right to a roadside appeal, I am satisfied that the Recipient has established the ground to cancel under Section 4(e)(v) of the Regulation.

15. As my finding on this ground is conclusive of the outcome of this Review, analysis on the remaining grounds is unnecessary.

Clark (Re), 2022 ABSRA 301

Officer read demand right before appeal – Recipient unaware it was voluntary – undermined by officer

5. To succeed at this ground, the Recipient must establish a) that the officer did not advise the Recipient in writing, for example, because the Recipient did not receive a copy of the NAP clearly setting out his right or the officer did something to obscure or undermine this advice, and
6. b) that the Recipient was also unaware of that right.

6. Counsel for the Recipient argued that this ground to cancel is made out because a breath demand was made prior to the second test being performed. Counsel argued that a roadside appeal or second test that resulted after any demand, was made in compliance with that demand. As a result of the breath demand, the second breath sample the Recipient provided, was seized, thus it was not provided voluntarily. Counsel argued the Recipient was entitled to a voluntary roadside appeal pursuant to Section 88.11(2)(a) of the TSA, emphasizing the fact that samples seized pursuant to a Criminal Code (Canada) breath demand are not voluntary, and therefore cannot be characterized as a roadside appeal under the TSA.
7. It is clear and undisputed evidence that the traffic stop occurred at 1:30 a.m. with an approved screening device (“ASD”) demand being read to the Recipient at 1:31 a.m. The Recipient complied with the breath demand, which resulted in a “Fail” at 1:32 a.m. It is also clear, from Cst. de Long’s notes, that the Recipient was arrested at 1:36 a.m. Cst. de Long reported that, at the time of the arrest, she provided the Recipient with the “Charter and Caution”.
8. Counsel stated that according to the roadside appeal section in the Administrative Penalty Information System (“APIS”), Cst. de Long read the Recipient a second ASD demand at 1:39 a.m., and the time of the second ASD test was at 1:40 a.m. The result of the second ASD test was also a “Fail”. Counsel stated that according to the police narrative, also in APIS, Cst. de Long reported that, at 1:39 a.m., the Recipient requested the second test and “he provided a sample of his breath into a second Alco-Sensor FST” at 1:40 a.m. Counsel pointed to Cst. De Long’s notes where, under bolded typewritten text “Charter and Caution”, she states “I am arresting / detaining you for impaired driving. You have the right to retain and instruct a lawyer without delay”. Near the bottom of that page, also in typewritten and bolded text are the words “Breath Demand”. Immediately following on the next line is “In accordance with the provisions of the Criminal Code, I demand that you provide such samples of your breath . . .”. Cst. de Long did not associate a time to this second breath demand in the same manner as she had for the traffic stop, the ASD demand, and the ASD “Fail”. The first time that is noted after the “Charter and Caution” section is at 1:39 a.m., with only the words “Appeal test requested” under the time. Following, on a new line, is 1:40 a.m. with the words “ASD 211761” and on another new line “Fail”. Below that comes personal information related to the Recipient and information related to the registration of the vehicle. There are additional paragraphs which contain many of the same details reported in the police narrative, including the Recipient being “Placed under arrest and CC’d. Advised of appeal test, which he stated yes”. Cst. de Long noted a final time of 2:09 a.m., when the Recipient was “Released with documents in right hand”.
9. Counsel read into evidence a statement made by the Recipient wherein the Recipient stated the officer demanded that he provide a sample of his breath “into a small handheld device” and he agreed, providing a sample of his breath, because he “understood it was required to provide the breath sample”. The Recipient stated he was told that he had failed the test and that he was under arrest for impaired driving. The Recipient stated Cst. de Long told him he had a right to call a lawyer and “the officer then told [him] that [he] had to provide a second breath sample”. The Recipient stated he was not aware that he had a choice in providing the second breath sample and he felt pressured by the officer, still understanding that he was under arrest.
10. The Recipient stated he did not have his reading glasses, and it was dark out, so it was hard for him to see the paperwork Cst. de Long had provided him. Because of these circumstances, he could not read any of the papers. The Recipient stated he was not provided with any paperwork at the time he provided the second breath sample. The Recipient stated that he did sign one of the documents but it was because Cst. de Long explained to him that he had to.
11. The Recipient’s statements are consistent with Cst. de Long’s evidence with respect to the timing of events. The traffic stop occurred between 1:30 a.m. and 2:09 a.m., the early morning hours, when it would be dark. I accept the Recipient may not have been able to read the roadside appeal document. The Recipient’s evidence of when he received the roadside appeal document is also consistent with the officer stating the Recipient was released “with documents” at 2:09 p.m. It is also consistent with the time the constable noted in the roadside appeal section, 1.39 a.m.
12. Counsel stated that, while it is not clear which demand was read before the second breath sample was provided, each of those demands end with the same sentence, namely “You will be charged under the provisions of the Criminal Code if you do not comply”. Counsel cited three recent SafeRoads Alberta decisions in which the adjudicators in each case cancelled the NAP based on a finding that the breath samples provided for the roadside appeal tests were not provided voluntarily. I agree with counsel, while in those decisions, each adjudicator found the roadside appeal test was not voluntarily, the circumstances of each of these cases are not factually consistent with this one. Counsel also relied on Lausen v Alberta (Director of SafeRoads), 2021 ABQB 896, a case in which Justice Macleod cautioned police about the importance of clearly distinguishing criminal and provincial investigations and penalties. I found this case to be more on point.
13. Based on the evidence, I find the Recipient was provided with the right of the roadside appeal in writing. However, I find it more probable than not that, at the same time that Cst. de Long verbally informed the Recipient that he had a right to the second test, Cst. de Long either read a second ASD demand, as suggested by her entries in APIS, or she read a breath demand to the Recipient, as indicated in her notes document. While I do not find it of particular importance what demand was read, I concluded it was a breath demand. The officer’s notes are in a separate document which Cst. de Long created, rather than an online informational form the officer simply completed and, in my view, the information on the breath demand would not have been included in the notes document, if the breath demand had not been made.

14. Regarding counsel’s submission that the road appeal test was not valid, I considered Justice McLeod’s caution as stated in paragraph 12 above. I find no evidence that Cst. de Long “unarrested” the Recipient or advised him that she would be proceeding under provincial sanctions rather than criminal charges. It is my view that the validity of the roadside appeal test becomes a question of timing. Firstly, when was the breath demand and, secondly, when did the Recipient sign the document regarding the roadside appeal.

15. Because the officer’s note document indicates a breath demand was made right before the 1:39 a.m. entry of “Appeal test requested”, I determined that the breath demand came before the Recipient requested the roadside appeal. For these reasons, I accept the Recipient’s evidence that he was unaware he had a choice and he complied with the demand, fearing charges under the Criminal Code (Canada) would follow if he did not. Clearly, the breath demand reinforced the Recipient’s impression that providing a second breath sample was not optional.

16. The officer’s information regarding the roadside appeal is scant. I have nothing to refute the Recipient’s submission that he did not receive any documentation at the time of the roadside appeal. For those reasons, I accept the Recipient’s evidence that he was not given any documents at the time of the roadside appeal. Based on the evidence, I find the Recipient signed the roadside appeal document at or shortly before 2:09 a.m., when he was “released with documents”.

17. Thus, I find the officer did advise the Recipient in writing of the right to a roadside appeal under Section 88.11 of the TSA, but because the officer undermined the right by reading a demand, the Recipient was unaware of that right. The Recipient has made out this ground to cancel.

Uffelman (Re), 2021 ABSRA 82

The officer failed to advise the Recipient in writing of the right to a roadside appeal.

15. Counsel argues there is a complete shortage of evidence to demonstrate the Recipient was advised of the roadside appeal. Counsel notes the roadside appeal section was left blank on the “Report to Saferoads” form.
16. I am satisfied the Recipient did receive a copy of the NAP. With respect to a roadside appeal, the NAP form provided to recipients clearly states in big, bold, capital red letters that they have the right to request a second test to confirm their blood drug/alcohol concentration. While this is some evidence that the Recipient was advised in writing, it is not a conclusive answer if the officer did something by word or deed to undermine or obscure the clear advice in writing set out on the NAP.
17. Beneath this advisory of the right to roadside appeal, there is a “Right to a Second Test” section that contains two statements: “Driver provided with information on the right to a second test” and “Driver requested second test.” The issuing officer then must select “yes” or “no” for each statement.

18. Upon review of the NAP that was issued to the Recipient, I noted that where it states “Driver provided with information on the right to a second test,” Cst. McWhinnie checked “no.” The explanation for selecting “no” was that the Recipient “would not do a 1st breath sample”. Under “Driver requested second test” the check boxes were left blank. I also can confirm the roadside appeal section was left blank on the “Report to Saferoads” form. This causes me concern that the officer erroneously believed that a roadside appeal was not available in a refusal situation and by act or omission communicated as such to the Recipient. Non-availability of a roadside appeal in refusal situations is outdated law and would be an error on the part of the officer.
19. On a balance of probabilities, I find that the Recipient has established that he was not advised in writing of the right to a second test. I further find that as the Recipient was mis-advised or misled by the officer, he would not be aware of his right. The ground to cancel is made out.

 

Palahitskyi (Re), 2022 ABSRA 344

The officer failed to advise the Recipient in writing of the right to a roadside appeal. The officer’s conduct was egregiously unfair.

6. To succeed at this ground, the Recipient must establish a) that the officer did not advise the Recipient in writing, for example, because the Recipient did not receive a copy of the NAP clearly setting out his right or the officer did something to obscure or undermine this advice, and b) that the Recipient was also unaware of that right.
7. According to the police general report, police responded to a report of a collision at 2:28 p.m., arriving at the collision location at 2:34 p.m. At that time, Cst. D. Park observed the Recipient in the driver’s seat of the vehicle in the collision, which was still “running”. Cst. Park reported he formed the opinion that the Recipient’s ability to operate a motor vehicle was impaired by alcohol at 2:40 p.m. Cst. Park noted he determined “reasonable grounds” based on his observation of a “strong mouth odour of liquor emanating from [the Recipient’s] breath and his slurred speech”. According to the general report, the Recipient was arrested at 2:40 p.m.
8. Counsel for the Recipient argued that the Recipient was not advised he had a right to the roadside appeal until the Recipient no longer had an opportunity to act on that right. Counsel also argued that due to a language barrier the Recipient could not understand the NAP or what the officer was saying. Counsel also argued that the officer may have offered the roadside appeal but he did not explain it was a roadside appeal and did not explain the NAP. Counsel stated that when police failed to explain the roadside appeal and the NAP, police undermined and obscured the Recipient’s right to the roadside appeal test, and the Recipient was unaware of that right.
9. Counsel for the Recipient submitted that Sections 7, 8, 9, 10(a) and 10(b) Charter breaches occurred during the issuance of this NAP. During the oral review, counsel focused on the fact that the Recipient was not made aware of the reason for his arrest and that the officers were not “abiding by their Charter duties”. Counsel stated this made the process “seem quite suspect” because “if the police are not “following Charter duties, which they certainly know about, then how can they be expected to follow the procedures prescribed” by legislation such as the TSA and the Regulation. Counsel argued the facts underlying the Charter breaches rendered the evidence in this Review unreliable or irrelevant, such that it should not be considered on its merits or given any weight. Counsel did not detail how the evidence was rendered irrelevant or unreliable by this alleged police error or misconduct. I will consider the Charter breaches under my overarching duty of fairness and egregious unfairness in a later section, if necessary, but I disagree with counsel that the evidence is irrelevant and I decline to exclude the evidence from my consideration. I also decline to give the evidence any less weight until after I have considered it under this ground to cancel.
10. The only information regarding the roadside appeal right was submitted to the “Roadside Appeal” section of the Administrative Penalty Information System (“APIS”) by Cst. Park. Cst Park submitted “Yes” to the field “Was Recipient Presented with Roadside Appeal Information?” and “No” to the field “Did Driver Request a Roadside Appeal?” The other information from police does not address a roadside appeal. The police notes in evidence are not identified by officer and there were two officers on the scene. The second officer, Cst. Yuskw, took the witness statement. While it is not clear to me who authored the notes, some of the notations in the notes mirror statements Cst. Park made in his general report, such that I find it more likely than not they are from Cst. Park.

11. Counsel stated that the time police offered the roadside appeal was “critical” to whether or not the Recipient received the advice of the roadside appeal at a time when, if the Recipient requested the test, police could have complied with the request. I note that the first tear-off page of the NAP, often referred to as the appeal form, is not mentioned at all by police. According to the general report, Cst. Park “released [the Recipient] with a copy of his IRS form and Seizure Notice”, as well as two violation tickets at 2:50p.m. That information is in the investigation section of the report on page three. The officer identified three additional documents in the attachments section, the last section on the last page, page four, that were provided to the Recipient when he was released. Those documents were a “Moves request Image”, a “Tow invoice”, and a “Witness statement”. Without any evidence to the contrary, I concluded that the Recipient was provided written information on the roadside appeal through the NAP at 3:30 p.m., when he was released with his documentation.
12. Counsel pointed out that there is nothing in the disclosure that points to the NAP or the roadside appeal test being explained to the Recipient at any point. Counsel stated that police had an opportunity to serve the NAP on the Recipient between the time the officer requested the “Moves request Image” and a tow truck, at 2:55 p.m., and the time the Recipient was released. Counsel stated not only would this have provided the Recipient an opportunity to try and ask questions, it was also an opportunity for police to explain the NAP and the roadside appeal. Counsel stated that this lack of explanation obscured and undermined the Recipient’s right to the roadside appeal. Counsel pointed out that had the officer made an effort to explain the NAP, he also would have realized that there was a language barrier between him and the Recipient. In fact, counsel stated, any “English speaker” talking to the Recipient would have immediately detected that English was not the Recipient’s first language. Counsel also stated that the Recipient had difficulty speaking and writing English.
13. Counsel stated the Recipient was now a permanent resident of Canada, originally from Ukraine. The Recipient was present at the Review but counsel advised he would not be presenting any information. Counsel advised that his own communications with the Recipient were always through the Recipient’s sister, who intended on acting as the Recipient’s interpreter during the Review, but at the last minute, she was unable to attend. Counsel confirmed that after the Review, they would be contacting the Recipient’s sister in order that she could interpret counsel’s reporting on the Review. APIS confirms an interpreter was to be in attendance at the Review.
14. Counsel pointed out the Recipient’s answers to the officer’s questions should have also alerted the officer to the language barrier. According to the notes, when the officer asked

the Recipient if he had a driver’s licence, the Recipient answered “ya it’s me”. The Recipient’s answer to the officer’s question “why did you crash your car” was “what do you mean”. Counsel pointed out these answers, rather than indicating impairment, were evidence of the Recipient’s lack of understanding the officer’s questions. Cst. Park made the “MOVES” request to confirm the Recipient’s identity and licence status.

15. Counsel stated the Recipient’s lack of understanding the officer could also account for the Recipient being “slow to react to verbal direction”. According to the general report, when the witness reported the collision, he indicated the driver seemed “unwell”. The officer reported he “determined that [the Recipient] was not injured and did not require EMS” but there is no indication of how the officer made that determination. The officer also reported that the Recipient “could not figure out how to exit his vehicle”. The officer reported the Recipient’s vehicle “was wedged up on the south sidewalk facing west and stuck between a snow bank and parked and unattended” vehicle. It appears to me from the photographs, any driver would initially be confused on how to exit the vehicle in this situation.
16. Counsel stated that looking at the totality of the circumstances, namely – the time the Recipient received the NAP, the language barrier, the Recipient’s lack of experience with the IRS process – they all added to the Recipient’s confusion, such that he was not aware of the right to the roadside appeal or was unable to read the written advice.
17. I find, based on a balance of probabilities, the Recipient would have received the NAP when he was released with the documentation at 3:30 p.m. It is unclear to me whether the Recipient could have exercised the right to the roadside test at that time, had he understood the right. I am satisfied that a language barrier existed between the police and the Recipient. While in the usual circumstances, I do not consider it necessary for police to verbally explain the right to the roadside appeal, I am satisfied that the Recipient’s circumstances were not typical of the average traffic stop. I find the officer, by failing to ensure the Recipient understood his right to a roadside appeal, obscured and undermined the written advice of that right. I am not satisfied on a balance of probabilities that the written advice on the NAP was sufficient to advise the Recipient of the right to a second test.
18. While I am not aware of any other means by which the Recipient would have learned of his right, I find that, although he was provided information on a roadside appeal in writing, the Recipient was unaware of the right. The Recipient has established this ground to cancel.
19. As my finding under this ground to cancel is sufficient to cancel the NAP, I find an analysis on the remaining grounds to cancel, under Sections 4(e)(i), 4(e)(iv), and the egregious fairness allegations, to be unnecessary.

Skochylas (Re), 2022 ABSRA 416

The officer failed to inform the Recipient of the right to a roadside appeal because of the officer’s mistaken belief that the appeal was not available in a drug impaired case.

5. To succeed at this ground, the Recipient must establish a) that the officer did not advise the Recipient in writing, for example, because the Recipient did not receive a copy of the NAP clearly setting out his right or the officer did something to obscure or undermine this advice, and b) that the Recipient was also unaware of that right.

6. The Recipient argues that this ground to cancel is made out because she was not informed of the right to request a second test and she did not know that she had such a right. The Recipient further states the officer did not inform her of the roadside appeal process, and although she was given the NAP, the officer had already written on it that the Recipient was not entitled to a second test due to impairment by drugs.

7. The officer uploaded a copy of the NAP to the Administrative Penalty Information System (“APIS”). Under the heading “Right to Second Test”, in response to the question “Driver provided with information on the right to a second test”, the officer has checked the box “N” which signifies “No” and by way of explanation has written “impaired by drugs”. In the contravention details entered to APIS by the officer, under the heading “Roadside Appeal”, in response to the question “Was Recipient Presented with Roadside Appeal Information” the officer has entered “No”, and by way of explanation has entered “Not alcohol related”. The police narrative is silent with respect to the roadside appeal. There is no evidence the Recipient was subject to a test on drug screening equipment, a drug recognition evaluation, or a blood test. The Recipient also states “No test of any kind was performed by the officer to determine the validity of the [NAP]”. Due to the information entered on APIS by the officer, and the notation on the NAP, I find, on a balance of probabilities, the officer issued the NAP on the sole basis of reasonable grounds of impairment by drugs, and, as a result was under the mistaken belief the Recipient was not entitled to a roadside appeal.

Mawani (Re), 2022 ABSRA 395

The officer undermined the roadside appeal information by reading an ASD demand before the sample was provided. Reading the ASD demand caused the Recipient to believe the roadside appeal was mandatory, rather than voluntary.

6. To succeed at this ground, the Recipient must establish a) that the officer did not advise the Recipient in writing, for example, because the Recipient did not receive a copy of the NAP clearly setting out his right or the officer did something to obscure or undermine this advice, and b) that the Recipient was also unaware of that right.

7. The Recipient’s counsel (“Counsel”) argued that the written advice on the NAP was obscured because the officer reread the approved screening device (“ASD”) demand prior to the roadside appeal. This action had the effect of undermining the written advice of the roadside appeal, specifically that it was voluntary.

8. According to Cst. Dussault’s typed narrative in the Administrative Information Penalty System (“APIS”), the Recipient was offered and accepted the offer of a roadside appeal, and a second unit with another ASD was called. After the second ASD arrived, Cst. Dussault stated, “ASD demand was reread which resulted in a FAIL”.

9. The Recipient stated that he had initially wanted a voluntary roadside appeal, but had second thoughts and wanted to change his mind. The Recipient stated that when the officer came back and demanded that he provide a sample, he felt trapped and forced into providing a second sample for the roadside appeal. Counsel relied on case law and previous SafeRoads Alberta decisions in support of his arguments.

10. I am not bound by these previous decisions and I will rely on the facts of this case before me. In this case, the Recipient does not dispute that he received the NAP, or that he signed the tear-away sheet with the written advice. However, despite that this written advice was provided, I find that the action by the police in reading an ASD demand directly before administering the roadside appeal led the Recipient into believing that a breath sample was being demanded and that failing to comply would result in further charges. Therefore, I find the written advice of the roadside appeal was undermined. I have also found the officer’s statement that the ASD demand was reread compelling evidence to support the Recipient’s assertion that he was unaware of his right to voluntarily participate in the roadside appeal.

11. The Recipient has established this ground to cancel. As my finding under this ground to cancel is conclusive to the outcome of this Review, I find an analysis on the Charter allegations and the remaining ground to cancel to be unnecessary.

Kan (Re), 2022 ABSRA 406

The officer undermined the roadside appeal information by reading an ASD demand before the sample was provided. Reading the ASD demand caused the Recipient to believe the roadside appeal was mandatory, rather than voluntary.

6. To succeed at this ground, the Recipient must establish a) that the officer did not advise the Recipient in writing, for example, because the Recipient did not receive a copy of the NAP clearly setting out his right or the officer did something to obscure or undermine this advice, and b) that the Recipient was also unaware of that right.

7. Counsel argues that this ground to cancel is made out because the officer never mentioned a roadside appeal, and the Recipient was unaware of this right. Counsel argues that the Recipient was never given the roadside appeal tear-away sheet and the second test performed was not voluntary because the peace officer read a breath demand. Counsel also argues that the peace officer’s notes and entries onto the Administrative Penalty Information System (“APIS”) show that the peace officer made a breath demand for the second test. Counsel relied on a previous SafeRoads Alberta decision in support of his arguments.

8. From the evidence, I am satisfied that the Recipient was issued a copy of the NAP. The NAP highlights in easily readable fonts that the Recipient has a right to a second test to confirm his blood drug/alcohol concentration. The roadside appeal section on APIS and the NAP both indicate that the peace officer advised the Recipient of his right to a second test, and the Recipient requested a second test. However, I note that the Recipient disputes being advised of his right and submits that the second test was mandatory.

9. In determining if the Recipient was advised in writing of his right to a second test and if he was unaware of that right, I must consider the totality of the circumstances. The police evidence shows that after the Recipient blew a “Fail”, he was arrested and provided his Charter rights. The peace officer noted that “At [11:30 p.m., the Recipient] was read the breath demand for a second test”. The officer also noted that the second test resulted in a “Fail”, and the Recipient was released “via IRS”. I note that there is no evidence of a signed roadside appeal tear-away sheet, and the Recipient submits that he was not presented with a “voluntary” roadside appeal tear-away sheet.

10. In light of this evidence, I find that notwithstanding the Recipient’s receipt of the NAP, by reading the breath demand before conducting the second breath test, the officer’s actions did obscure the clear advice in writing set out on the NAP. This is because the breath demand takes away the voluntariness associated with roadside appeals as contemplated by Section 88.1(5) of the TSA, and the Recipient was not provided with a choice of whether to request a second test or not. As I am not aware of any other means by which the Recipient would have learned of his right, I find that the Recipient was unaware of that right. The Recipient has established this ground to cancel.

Walton (Re), 2022 ABSRA 372

The officer undermined the roadside appeal information by reading an ASD demand before the sample was provided. Reading the ASD demand caused the Recipient to believe the roadside appeal was mandatory, rather than voluntary. Recipient provided a second sample at the police station on Intoxylyzer during criminal investigation.

6. To succeed at this ground, the Recipient must establish a) that the Recipient immediately requested a roadside appeal, and b) that upon the request, the officer failed to provide an opportunity in accordance with Section 88.11 of the TSA.

7. Counsel for the Recipient (“Counsel”) argues the Recipient was not provided with the opportunity to undergo a voluntary second test in accordance with Section 88.11(2) of the TSA. Counsel notes, at 2:12 p.m., the Recipient blew a “Fail” on an approved screening device (“ASD”). Cst. Doucette then placed the Recipient under arrest and took him to the police vehicle where Cst. Doucette read the Recipient his rights and a breath demand. Counsel argues the only logical interpretation of the phrase “breath demand” is that the Recipient was read an evidentiary breath demand. As such, Counsel argues that the officer abandoned the TSA investigation in favour of the criminal investigation. Therefore, the subsequent breath samples taken from the Recipient were not voluntary but rather were evidentiary.

8. Counsel relied on Lausen v. Alberta (Director of SafeRoads), 2021 ABQB 896 (“Lausen”). In Lausen, the Honorable Justice A.D. Macleod found that while the Recipient may have believed the second test was not voluntary, it did not necessarily follow that a second ASD ‘demand’ had been made. Counsel submits that in Lausen had a ‘demand’ been made, Justice Macleod’s decision may have been different in that Justice Macleod may have found the second sample provided by Mr. Lausen was not voluntary. Counsel further submitted Justice Macleod stated that officers must take more care to clearly delineate the boundary between criminal investigations and administrative investigations.

9. I agree with counsel that the police evidence supports that following the Recipient blowing a “Fail” on an ASD, he was placed under arrest and read a breath demand. However, approximately ten minutes later, the officer provided the Recipient with the roadside appeal information sheet (“tear-away sheet”) explaining his right voluntarily to undergo a second test to confirm the results of the first ASD test. This, in conjunction with the fact that the NAP was actually issued, confirms the officer had not abandoned the administrative investigation. The Recipient requested a second test and signed the tear-off portion of the tear-away sheet. Cst. Doucette then gave the Recipient a second opportunity to provide a breath sample on a second ASD. However, after two attempts to provide breath samples and the Recipient crying for about ten minutes, the officer decided to transport the Recipient to the detachment for samples on the Intoxilyzer. At 3:03 p.m., the Recipient blew his first sample into the Intoxilyzer, which provided a reading of 280 milligrams of alcohol in 100 millilitres of blood. A 3:25 p.m., the Recipient blew a second sample into the Intoxilyzer, which provided a reading of 300 milligrams of alcohol in 100 millilitres of blood.

10. I find, in this case, the lines between the criminal investigation and the TSA investigation were not clear. Following the first ASD “Fail”, Cst. Doucette placed the Recipient under arrest and read a subsequent breath demand. However, approximately ten minutes later, Cst. Doucette offered the Recipient a roadside appeal, which would suggest Cst. Doucette was still pursing the TSA investigation. Normally, a criminal investigation takes precedence over the TSA investigation and the right to a voluntary second test is provided to the Recipient at the conclusion of the criminal investigation. In this case, the Recipient was taken to the police detachment where he provided two breath samples into an Intox EC/IR II, which is an approved instrument (“AI”) under the Criminal Code (Canada). On the Administrative Penalty Information System (“APIS”) Cst. Doucette indicated the roadside appeal was conducted with an approved instrument (“AI”), which would suggest the breath samples collected at the detachment were collected for the purposes of the roadside appeal for the TSA investigation.

11. However, in reviewing the Intox EC/IR II Operational Checklist (“Operational Checklist”) provided by the police as evidence for this Review, I note that on the front page the technician, Cst. Johansen has checked off “Demand Read”. On the second page, Cst. Johansen has provided the following comments in relation to the first test:

“- 1st attempt timed out – 2nd attempt blocked mouthpiece with tongue or lip, explained fail or refusal – 3rd attempt – good long continuous sample. Good deep lung air.”

12. Section 88.11(2) of the TSA requires the roadside appeal test to be voluntary. Therefore, the question I must ask myself is whether the breath samples taken at the detachment were provided voluntarily by the Recipient. According to Cst. Johansen, the Recipient was read a breath demand. In his notes describing the Recipient’s first attempt to provide a breath sample, Cst. Johansen indicates the Recipient attempted to block the mouthpiece on the Intoxilyzer with his lips or tongue and did not provide a proper breath sample until he was advised of his jeopardy concerning being charged with a failure or refusal to provide a breath sample. Therefore, it is clear that the Recipient was no longer voluntarily providing a breath sample. I find the breath samples taken on the Intoxilyzer were for evidentiary purposes for the criminal investigation, and therefore, not provided by the Recipient voluntarily. Following the evidentiary breath samples, there is no evidence to support the Recipient was afforded an opportunity to undergo a voluntary breath test for the purposes of a roadside appeal.

13. I find the Recipient immediately requested a roadside appeal, however, the officer failed to provide the Recipient with the opportunity to undergo a test in accordance with Section 88.11 of the TSA.

14. The Recipient has established this ground to cancel.

Garner (Re), 2022 ABSRA 386

The officer served the NAP but failed to provide the Recipient with information about the appeal. The Recipient provided two samples on the Intoxylyzer at the police station, but was unaware of the right to an appeal.

 

5. To succeed at this ground, the Recipient must establish a) that the officer did not advise the Recipient in writing, for example, because the Recipient did not receive a copy of the NAP clearly setting out his right or the officer did something to obscure or undermine this advice, and b) that the Recipient was also unaware of that right.

6. Counsel for the Recipient (“Counsel”) argues that this ground to cancel is made out because the officer never mentioned a roadside appeal and did not explain the NAP. Specifically, the Recipient provided two samples of breath into an Intox EC/IR II, also known as an Approved Instrument (“AI”), and Counsel submits that no further opportunities were provided. Counsel argues that the Recipient should have been given another chance to provide a sample to satisfy the roadside appeal portion of the NAP.

7. Pursuant to Section 88.11(2)(b) of the TSA, when a NAP has been issued under Section 88.1 of the TSA, and if a Recipient requests an appeal of that NAP, the Recipient shall immediately:

1. where the basis for issuing the [NAP] was an initial test on an [AI], provide a sample of breath that in the opinion of the peace officer is suitable for analysis on an [AI].

8. In this case, Cst. McCarthy served the NAP on the Recipient and the NAP form itself clearly states in big, bold, red letters that recipients have the right to request a second test. The Recipient does not dispute receiving the NAP.

9. However, advice in writing can be rebutted by the Recipient if the officer did anything to undermine or obscure the advice of the roadside appeal on the NAP. In this case, on the NAP form issued to the Recipient, Cst. McCarthy checked “N” where it asks, “Driver provided with information on the right to a second test”. Where it prompts “If No, explain,” Cst. McCarthy wrote “Criminal Arrest”. On the “Roadside Appeal” portion of the Administrative Penalty Information System (“APIS”), Cst. McCarthy wrote “No” where it asks “Was Recipient Presented with Roadside Appeal Information”. Further, where it prompts, “If No, Explain”, Cst. McCarthy wrote: “The accused was arrested for impaired driving and brought before a [Qualified Technician] on an [AI]”.

10. There is no other evidence before me that the Recipient received awareness by any other means. The police notes are silent on the Recipient being provided information about the right to a second test. In the totality of the circumstances here, I find that Cst. McCarthy did undermine or obscure the advice on the NAP by checking “N” and writing “Criminal Arrest” as his explanation, thereby negating the advice of the roadside appeal.

11. On a balance of probabilities, I find that the Recipient would not be aware of his right to a roadside appeal.

12. The Recipient has established this ground to cancel.

James (Re), 2022 ABSRA 435

The Recipient did not fail or refuse to provide a sample of breath. The officer did not provide proper instructions on how to provide a sample and failed to provide enough chances to blow.

5. The Recipient argues that he did not fail or refuse to comply because the fact that no sufficient sample was provided was not due to the Recipient’s actions, but rather the officer’s failure to provide the Recipient with a reasonable opportunity to comply.

6. According to CPS evidence, after the Recipient was pulled over, he was read the mandatory alcohol screening (”MAS”) demand at 12:39 a.m. At 12:40 a.m., the Recipient was provided his first opportunity to provide a breath sample and the result was an insufficient flow. At 12:41 a.m., the Recipient was provided a second opportunity to provide a sample, and that result was also insufficient flow. After the two attempts, the approved screening device (“ASD”) “continued to give an error, where another functioning ASD was provided”. At 12:43 a.m., the Recipient provided a third insufficient sample into the new ASD. At 12:44 a.m., Cst. Taylor demonstrated to the Recipient how to provide a sufficient sample on the second ASD and the result was “0”. The Recipient was then given a fourth opportunity to provide a sample and he failed to provide a sufficient sample. The Recipient was arrested for Failure/Refusal. The Recipient was released with his NAP paperwork at 1:43 a.m.

7. According to the Recipient’s affidavit, on his first breath attempt, he paused briefly and the officer told the Recipient he could not do that and he “had to have a long sustained and steady blow”. The Recipient stated he then focused on providing “a long sustained and steady blow”. The Recipient agrees that an officer did demonstrate how to provide a sample, but “he appeared to do exactly as I was doing”. The Recipient argues that in the short interaction, he was not given any other advice to provide a successful sample. The Recipient submits that this was his first time going through the process and he was not attempting to interfere with CPS getting a proper sample. Counsel for the Recipient (“Counsel”) argues that the Recipient was not given a fair opportunity to provide a sample and cited the officer’s deviation from ASD-1 as evidence of that argument.

8. In analyzing the evidence, I note there is a lack of significant detail between Cst. Choi and Cst. Taylor’s version of events. Cst. Taylor makes no mention of using two ASD devices but does stated that he “demonstrated what a proper breath into the the (sic) ASD looking like by blowing into the ASD”. Cst. Choi’s notes states “First 2x attempts with first ASD error and not working properly”. Cst. Choi in his narrative stated “after 2x attempts, the ASD continued to give an error, where another functioning ASD was provided”. Given Cst. Choi is the issuing officer and he uploaded the ASD pictures showing the attempts made on the devices, I have a hard time relying on Cst. Taylor’s notes given the glaring omission.

9. As a result, I find, the Recipient was given two opportunities to provide a sample on ASD #048820, a machine that CPS deemed was “not working properly”, despite being maintained and calibrated. Given that Cst. Choi identified that ASD #048820 had malfunctioned, a new ASD was brought in. I am satisfied that the first two insufficient flow breath results, on ASD #048820, were likely the result of a machine that was deemed to be malfunctioning.

10. The Recipient was then given an opportunity to provide a breath sample on ASD #218469, which was properly calibrated and maintained. When that sample proved to be unsuccessful, Cst. Taylor then demonstrated how to give a proper sample and gave the Recipient one more opportunity to provide a sufficient sample.

11. This interaction was very quick with the whole breath testing process lasting four minutes from the first opportunity to provide a sample until the last one. While I acknowledge that the Recipient attempted four breath samples in total, I find two of those samples were made on a machine that was deemed to be malfunctioning. As a result, I cannot be satisfied the first two insufficient samples were due to the Recipient’s actions.

12. I find the Recipient was given two attempts, non-consecutively on the ASD #218469 and Cst. Taylor provided a sample, all within two minutes. Counsel argued, and I agree, that the procedure highlighted in ASD-1 discusses giving the Recipient three attempts to provide a sample before the test is aborted and the ASD turns itself off. The CPS narrative is silent on changing mouthpieces so I am left to question if Cst. Taylor used the ASD after the Recipient and then gave the Recipient one last opportunity before the ASD shut down. I acknowledge that this behaviour would be highly irregular; however, it is also unorthodox to interrupt the ASD cycle of three attempts. While it is possible Cst. Taylor counted the first two samples on the malfunctioning ASD and considered the third on ASD #218469, I am still left to question if the same tube was used, and why Cst. Taylor did not give the Recipient two more chances on ASD #218469. This is especially frustrating because both officers are silent on whether the Recipient may have been trying to defeat the ASD, such as blowing out the side of his mouth or obstructing the tube with his tongue or teeth.

13. The narrative and the notebook excerpts lack any detail on any instruction or coaching given to the Recipient, except for the demonstration. The CPS is also silent on why the process was not conventional and inconsistent with the manual. It is undisputed that Cst. Taylor gave a demonstration on the second ASD, but the Recipient was only given one opportunity to provide a sufficient sample after the demonstration. Given the gaps in the evidence provided by the CPS, the significant lack of detail between the officer’s notes, and the lack of any instruction mentioned, I accept the Recipient’s statement that he was not provided constructive advice on how to provide a sufficient sample. As a result, I am satisfied that the Recipient did not fail or refuse to comply with the demand, but it was the officer’s failure to give the Recipient a reasonable opportunity to comply that lead to no sufficient sample being provided.

14. I find that the Recipient, knowing a demand had been made, did not fail or refuse to comply with that demand. The Recipient has established this ground to cancel.

Bardgett (Re), 2022 ABSRA 382

The Recipient was suffering from an anxiety attack and gave credible evidence that the officer refused to let her get her medicine from the vehicle. The officer’s notes were silent as to the Recipient’s treatment. The treatment of the Recipient was egregiously unfair.

5. The Recipient submits that fairness was breached because police error or misconduct resulted in egregious unfairness to the Recipient.

6. The police evidence is set out below:

1. Cst. D’onofrio responded to a complaint from a witness whose vehicle was struck by the Recipient;

1. upon arrival, the officer observed indicia of impairment, including an odour of alcohol from the Recipient, difficulty pulling documents from her wallet, slurred speech, and difficulty maintaining her balance;

1. the officer issued an approved screening device (“ASD”) demand, to which the Recipient indicated that she refused to comply;

1. the officer explained that refusing to provide a sample would result in equal or greater consequences than if she blew a “Fail” result;

1. the officer provided several opportunities, but the Recipient continued to refuse, and at one point attempted to walk away;

1. the officer arrested the Recipient for Failure/Refusal, then cautioned and Chartered her, during which time the Recipient interrupted several times by yelling and shouting; and

1. at the Edson detachment, the Recipient was uncooperative during processing, was given an opportunity to speak with legal counsel, then lodged in a cell to be released when she was sober.

7. The Recipient’s evidence is set out below:

1. in her Application for Review, the Recipient wrote that she tried her best to comply with the officer’s request for a breath sample, but was unable to do so due to suffering from an anxiety attack;

1. the Recipient provided a letter from her physician, dated March 10, 2022, indicating that in February 2019, she was diagnosed with an anxiety disorder, which causes intermittent severe and debilitating anxiety. The letter indicates that her condition is unlikely to improve and that she is on a treatment plan that requires both counselling and medication to manage her symptoms;

1. a second medical letter from Alberta Health Services, undated, but obtained on March 8, 2022, per the Recipient’s oral testimony during the review indicates that the Recipient has been participating consistently in her treatment plan since February 2019;

1. a handwritten, undated letter from the Recipient’s passenger, who was present at the time of the contravention, indicates that the Recipient’s anxiety was triggered after her interaction with the complainant, during which time the Recipient was unable to produce her insurance card until her insurance broker texted an image of the card to her;

1. at the oral review, the Recipient stated that she did not have her insurance card, and had to contact her insurance broker, who texted her a copy of the card. The Recipient provided a screenshot of this text message, which indicates that on February 24, 2022, at 3:32 p.m., the Recipient received a photo of her insurance card via text messaging;

1. the Recipient explained that she was parked in the vehicle lineup in front of the elementary school, and when she pulled out, she nicked the bumper of the other vehicle;

1. the Recipient informed the other driver that she worked at an auto body shop and that the damage would be an easy fix. However, the other driver asked for her insurance card, but the Recipient did not have it with her, and had to call her insurance broker for a copy;

1. according to the Recipient, the other driver started “freaking out”, demanding her insurance card, at which point the Recipient began to feel anxious;

1. the other driver would not stop screaming, so the Recipient screamed back. By this point, the Recipient could not “think straight” due to her anxiety;

1. the Recipient acknowledges that she was screaming, but disagrees with the officer that she was screaming at him. She states that when the police arrived, the officer stood between the Recipient and the other driver while the Recipient was screaming about how she had a copy of her insurance card;

1. the Recipient states that the officer did not have a “blow box” at the roadside;

1. when she was taken back to the RCMP detachment, the police stripped her down and treated her so aggressively that they ripped the string from her hoodie. While they were stripping her down, they were also telling her that she needed to provide a breath sample;

1. on the day of the contravention, she was menstruating and while she was detained at the detachment, she asked the police for a tampon or pad, but they refused to provide her one. As a result, while she was held at the detachment, she began bleeding through her undergarment, which caused her greater anxiety and embarrassment;

1. a female employee at the detachment had to provide her a blanket, although it was unclear as to whether the blanket was needed due to the Recipient being under-dressed or bleeding through her undergarment or both; and

1. while at the station, she explained to the police that she experienced anxiety and that her medication was in her seized vehicle. She requested that someone retrieve the medication so that she could treat her medical condition, or in the alternative, that someone call 9-1-1 so that anxiety medication could be delivered, but the police declined to accommodate her.

8. The Recipient submits that she was suffering an anxiety attack both at the school and at the RCMP detachment. She acknowledges that due to the anxiety attack, she was screaming and could not fully understand what was happening. She explains that when she has severe anxiety attacks, she begins shaking and half the time does not know her own name. In effect, the Recipient argues that the symptoms observed by the officer were in fact symptoms of her anxiety condition, and that she was not actually drinking or drunk. In support, she argues that if she had actually been intoxicated, she would have simply driven away after nicking the other driver’s vehicle. Instead, she stayed and tried to exchange information. Finally, the Recipient acknowledges that when she was at the detachment undergoing processing, she continued to refuse to provide a breath sample because she was under the impression that since she had her insurance card by then, she did not need to provide a sample.

9. With respect to the NAP for Failure/Refusal, I appreciate that in the Recipient’s view, the officer did not have a “blow box” to perform a roadside breath test. However, even if that were the case, the Recipient would have been required to accompany the officer back to the RCMP detachment where the officer would have an approved screening device (“ASD”) on which the Recipient could provide her breath sample. Furthermore, there are some inconsistencies in the Recipient’s evidence. For example, in her application for this Review, she states that she tried her best to provide a breath sample, but throughout the oral review, she consistently stated that she refused to provide a breath sample. Given the totality of the evidence, I find it more likely than not that the Recipient did in fact fail or refuse to provide a breath sample.

10. However, I also appreciate that the Recipient’s evidence is that she suffers from an anxiety condition. She has provided two medical letters, one from her attending physician stating that her condition is unlikely to improve, and a second letter from the treatment centre confirming she has been compliant with her treatment plan since February 2019. I am therefore satisfied that the Recipient does suffer from a medical condition that requires compliance with a regular treatment plan, including following a regular medication schedule.

11. What I find concerning about the case before me is that the Recipient identified to the police that she had a diagnosed medical condition, yet her requests to obtain her anxiety medication were denied. Given that the Recipient was on a regulated treatment plan, it would have been important that she adhere to her medication schedule. Despite inconsistencies in the Recipient’s evidence regarding the act of her failure or refusal to provide a breath sample, I found the Recipient’s testimony regarding her physical and mental condition at the time of the contravention both consistent and credible, including her statements about her anxiety attack and menstruation at the time of the contravention. As such, even if the Recipient was being uncooperative and refusing to provide a breath sample, it would have been a simple enough matter to provide her with feminine hygiene products so that she might preserve her dignity. Instead, she was left to bleed through her undergarment. And while it might be argued that the Recipient was not detained long enough to need to take her next dosage of anxiety medication, the police evidence is silent as to how long the Recipient was detained.

12. Indeed, the police narrative is largely silent as to the Recipient’s treatment while she was undergoing processing and under detention at the RCMP detachment. It merely indicates that the Recipient was “uncooperative and not complying with police during processing”. There is no mention of the substance of any interactions between the Recipient and law enforcement while she was detained at the detachment, or the time that the Recipient was ultimately released. Furthermore, while the police narrative indicates that the officer requested the Recipient’s driver documents, it makes no mention of the officer ever reviewing these documents or the insurance card on the Recipient’s cellphone. Given that the Recipient herself has admitted to continually screaming about her insurance card, it would be reasonable to expect some mention of it in the police narrative.

13. During her oral testimony, the Recipient became audibly distraught on two separate occasions as she recalled her treatment by police while at the RCMP detachment. The Recipient’s testimony at the oral review is that the police treatment made her feel horrible, disgusting, and degraded. The Recipient’s testimony raises grave concerns regarding her treatment while detained at the RCMP detachment, and the police evidence is insufficient to satisfy me that the Recipient was not treated in an egregiously unfair manner. I find that an objective bystander, being apprised of the full circumstances of this case, would find the police conduct unreasonable and unjustifiable. Any person in the Recipient’s position would have found the situation both demeaning and anxiety-inducing.

14. For the above reasons, I find that the police misconduct was so serious and egregious that it outweighs the public interest in traffic and public safety. Accordingly, the NAP is cancelled.

Jessani (Re) 2022 ABSRA 431

The officer was unaware that a Recipient is able to conduct a roadside appeal even on a straight impaired. The Recipient was misled by the officer’s mistaken belief in the law and therefore was unable to make an informed decision.

6. To succeed at this ground, the Recipient must establish a) that the officer did not advise the Recipient in writing, for example, because the Recipient did not receive a copy of the NAP clearly setting out his right or the officer did something to obscure or undermine this advice, and b) that the Recipient was also unaware of that right.

7. Counsel for the Recipient (“Counsel”) argues that the right to a roadside appeal existed for this Recipient even though there was no initial roadside screening test performed on an approved screening device (“ASD”). Counsel also argues that informing the Recipient of their right is not discretionary, but mandatory.

8. Counsel argues that the investigating officer, Cst. Ho, displayed a misunderstanding of the law and believed that there was no right to a second test if no initial screening device was used. Counsel points to the NAP written by Cst. Ho, which is blank in the section police typically use to indicate whether the roadside appeal information was provided, or whether one was requested. The Recipient does not dispute receiving the NAP at the roadside from Cst. Ho and I note that the standard NAP form includes information about a Recipient’s right to a second test in bold, red lettering.

9. Counsel refers to the Administrative Penalty Information System (“APIS”) where the officer has provided information about the Recipient’s contravention. On APIS, the officer has answered “No” to “Was the Recipient Presented with Roadside Appeal Information” and entered as the explanation, “No Screening device was used to form RPGs”. He also answered “No” to “Did Driver Request a Roadside Appeal”.

10. Counsel argues that this information on APIS and the blank area on the NAP show that the officer did not believe the Recipient had a right to a roadside appeal because no initial screening test was performed and the officer formed his reasonable grounds without one. I note that there is no reference to a roadside appeal being discussed or offered in the officer’s narrative.

11. I agree with Counsel that the Recipient had a right under Section 88.11(2) of the TSA to voluntarily request a roadside appeal of their Impaired Operation contravention despite an initial test not being conducted on an ASD. There is no evidence that the officer discussed a roadside appeal with the Recipient and there is no evidence of any roadside appeal informational “tear-off sheet” being provided to the Recipient. The officer wrote in his narrative that while in the back of the police vehicle after being arrested, Chartered and cautioned, the Recipient asked over 25 different times, “what’s the next steps”. The officer’s narrative indicates he explained the next steps to the Recipient, but does not elaborate on what that explanation entailed. There is nothing before me that shows a roadside appeal test was mentioned as part of the next steps. I find the entries made by Cst. Ho on APIS, in combination with the blank roadside appeal section on the NAP, demonstrate the officer’s incorrect belief that the Recipient was ineligible for a roadside appeal because no initial screening device was used. I find that, although Cst. Ho explained the IRS: Fail to the Recipient prior to release as stated at the end of the officer’s report, I do not believe the officer would have mentioned the Recipient’s right to a roadside appeal because of the officer’s erroneous belief.

12. I find that the Recipient was reliant upon Cst. Ho for information about his contravention and that even though the Recipient was provided the written advice on the NAP, he would have been misled by the blank roadside appeal area on the NAP. With the police narrative being silent on this matter, and the officer’s answer and explanation provided in APIS supporting that the officer was labouring under a mistake in law, it is highly probable the Recipient would have been misinformed. In the totality of the circumstances, I am satisfied the Recipient would not have gained awareness of the roadside appeal by any other means other than the officer, and was therefore unaware. Further, as no roadside appeal was declined, requested or performed, I am satisfied that the Recipient was unaware of his right.

13. The Recipient has established this ground to cancel. As this ground to cancel is sufficient for cancellation of the NAP, I find it is not necessary to analyze the additional grounds to cancel or Charter arguments submitted by the Recipient.

Cook (Re), 2022 ABSRA 388

An ASD device was used to determine that the Recipient was impaired. The ASD information was uploaded to the SafeRoads portal but was illegible and therefore not provided.

5. To succeed here, the Recipient must establish that a) the record alleged to be missing was a required one under Section 12 of PAPA, and b) the record was not provided. Section 12 of PAPA sets out that the Director must provide the Recipient with the records required by regulations. In this case, the relevant regulation is Section 2 of the Regulation.

6. Counsel for the Recipient (“Counsel”) argues that that the following record set out in Section 2 was required but not provided:

1. under Section 2(c)(i), the expiry date of the last annual maintenance performed on the approved screening device (“ASD”) because the information provided is illegible.
2. Section 2(c) of the Regulation provides that if an ASD was used as the basis for issuing the NAP, the expiry date of the last annual maintenance performed on the device and the date of the last calibration and expiry date of that calibration must be provided.

8. Counsel argues that the ASD was used as the basis for issuing the NAP because although the NAP was issued for the contravention of Impaired Operation only, the contravention details uploaded by Cst. Alder indicate that that the contravention was for having a blood alcohol concentration (“BAC”) over the legal limit. This could not have been determined, under these circumstances, without considering the result of the ASD “Fail” and this entry by Cst. Alder supports the argument that the ASD was used as forming the basis of the NAP. Counsel argues that there was no admission of consumption or odor noted by the officer, and that the indicia of impairment was insufficient to support a contravention for Impaired Operation without the use of an ASD.

9. The police evidence provides that the Recipient was slurring his words, had glossy eyes and a sleepy stare, however, there was no evidence of his driving or smell of alcohol noted. I note in Cst. Alder’s general report, although he detains the Recipient for “impaired driving” prior to the ASD result, he proceeds with the ASD test. I concur with Counsel and accept that the ASD result was used as part of the basis for issuing the NAP and as such, the information regarding the ASD should have been provided. I have reviewed the tag on the ASD uploaded and agree that the maintenance information provided is illegible. Although not determinative under this particular ground, I also note that the ASD calibration was expired. The Recipient has established that the ASD was used to form the basis of the NAP and the expiry date of the last annual maintenance performed on the device has not been provided.

10. The Recipient has made out this ground to cancel.

 

Smith (Re), 2022 ABSRA 345

The officer failed to properly upload the photographs of the tag of each ASD used.

5. To succeed here, the Recipient must establish that a) the record alleged to be missing was a required one under Section 12 of PAPA, and b) the record was not provided. Section 12 of PAPA sets out that the Director must provide the Recipient with the records required by regulations. In this case, the relevant regulation is Section 2 of the Regulation.

6. The Recipient argues that the following records set out in Section 2 were required but not provided:
7. under Section 2(c)(i), the expiry date of the last annual maintenance performed on the approved screening device (“ASD”) because the date information was not provided; and
8. under Section 2(c)(ii), the date of the last calibration of the ASD and the calibration expiry because the date information was not provided.
9. According to Sheriff Ford’s general report, he first observed a westbound vehicle with a male driver approaching the “radar point at a high rate of speed”. Sheriff Ford approached the vehicle and told the Recipient he was being stopped for speeding. Sheriff Ford reported he read the mandatory alcohol screening (“MAS”) demand to the Recipient verbatim from a card. The Recipient denied consumption of alcohol within the previous fifteen minutes and denied consumption of tobacco within the previous five minutes. The sheriff reported he began the MAS at 12:19 a.m., and the Recipient provided a sufficient breath sample into an ASD, which resulted in a “FAIL”. Both the general report and the photographs Sheriff Ford provided to the Administrative Penalty Information System (“APIS”), indicate that the ASD used for the impaired screening test bore serial number 072589.
10. At 12:25 a.m., the sheriff reported the right to the second test was offered to the Recipient. The Recipient stated to the sheriff that he did want the second test. At 12:27 a.m., the second test was conducted and it too resulted in a “FAIL”. Both the general report and the photographs Sheriff Ford provided to APIS, indicate that the ASD used for the roadside appeal screening test bore serial number 072808.
11. The Recipient’s counsel referenced the Regulation arguing that under Section 2(c), the records policed disclosed must include the calibration and maintenance records. In this case, counsel submitted that the police submitted the photographs to APIS, which purported to contain calibration and maintenance records for the two ASDs used during this investigation. Counsel argued the two records contained only images of the ASD bearing serial number 072808.
12. I reviewed the photographs the sheriff disclosed through APIS. The photograph identified as being used for the impairment screening test contains two pages with one image on each page. Both images show an ASD with a tag attached bearing the service expiry and annual maintenance information as well as the MAS demand card. The same serial number is shown on both ASDs and both tags, specifically 072808.

11. The photograph identified as being used for the roadside appeal screening test also contains two pages with one image on each page. Both images show an ASD with a tag attached bearing the service expiry and annual maintenance information as well as the MAS demand card. The same serial number is shown on both ASDs and both tags, also 072808.
12. It is clear that the sheriff erred in uploading the photographs to APIS, as not one of the four photographs pertain to the ASD bearing number 072589. As the calibration dates and maintenance expiry information were not provided through the photographs or anywhere else, I find the Director did not provide complete records to the Recipient as required by Section 2 of the Regulation. The Recipient has made out this ground to cancel.

Schwab v Alberta (Director of SafeRoads), 2022 ABQB 244

 

Judicial Review. After the hearing, the Adjudicator used a map not in evidence to determine certain distances in determining if the Recipient’s version of events was accurate. An adjudicator does not have the authority to rely on anything other than the evidence before him or her. It was a breach of fairness and natural justice and sent back for a re-hearing.

 

31. My decision on the outcome of this judicial review is grounded in the principles surrounding the duty of fairness and natural justice, and I have limited my reasons to only those principles. With that in mind, I have considered whether the Adjudicator is entitled to access any extraneous materials other than what is required to be submitted by the Director and what can be submitted by the Applicant prior to the hearing.
32. The Adjudicator is bound by the relevant legislation, which includes (but is not limited to) PAPA, SafeRoads, and the Administrative Procedures and Jurisdiction Act, RSA 2000, c A-3 (APJA). When read together, the legislation suggests that the Adjudicator is only entitled to rely on information submitted prior to the review hearing. Sections 12, 13, and 18 of PAPA specify what evidence and materials the Director must submit and what the Applicant may submit. Section 13(3) of PAPA specifically states that the Adjudicator shall not consider any records, representations, arguments, or evidence that is not provided by the Applicant at least two days before the review. Section 4 of APJA states that the Adjudicator must inform the Applicant of the facts in its possession in sufficient detail to permit the Applicant to understand the facts or allegations, afford the Applicant a reasonable opportunity to furnish relevant evidence to contradict or explain the facts or allegations, and give the Applicant an adequate opportunity to make representations by way of argument.
33. Given the statutory framework, it is possible that the Adjudicator is only entitled to rely on what is submitted by the parties prior to the hearing and nothing else. This argument was not before me so I decline to make a finding with respect to whether that is the case. It remains to be argued in another case.

 

34. For the reasons set out above I quashed the decision of the Adjudicator to uphold the Applicant’s NAP and remitted the matter back to SafeRoads Alberta for re-hearing.

Wagner v Alberta (Director of SafeRoads), 2022 ABQB 252

Judicial Review The officer used three ASD devices but only uploaded the ASD tags for two devices. The Adjudicator should have cancelled the NAP.

[24] The Applicant argues that the Adjudicator’s reasoning attributing the ASD photo with the MAS demand to ASD #1 and the ASD photo without the MAS demand to ASD #3 was unreasonable. The Applicant argues that the Adjudicator’s conclusions are not reasonable inferences that can be made as there are too many variables to account for in determining which photos of the ASD devices were disclosed without some indication from the officer that used them. The Adjudicator’s conclusion that the officer disclosed photos of the two ASD devices that were used to collect breath samples from the Applicant and differentiated the two by displaying the MAS demand on one photo was not logical.

[25] The Director argues that there was evidence to support the Adjudicator’s conclusions regarding the identifying system used by the officer and no evidence to support the Applicant’s argument of a different identifying system. The Director submits that Adjudicator put weight on the officer’s evidence about the two ASDs that were used in this investigation and concluded that ASD #2 was not disclosed because it played no role in the investigation. The Director emphasizes that there is nothing in the evidence that suggests the officer was unreliable or intentionally deceptive.

[26] While the Director is correct that there is nothing in the evidence that suggests that the officer’s evidence should not be believed, there was no evidence before the Adjudicator that indicates that the photos disclosed were of ASD #1 and ASD #3. Without some indication from the officer that the ASD with the error message was not disclosed, or something in the officer’s narrative, notes, or on the photos themselves that suggests which ASDs are purported to be in the photos, it is not reasonable to conclude that the photos disclosed must have been for ASD #1 and ASD #3. I agree with the Applicant that there are other reasonable inferences that can be drawn from the evidence. The inferences made by the Adjudicator were therefore unreasonable.

[27] Cst Lazorko had two ASDs in his possession and a third was brought to Cst Lazorko by another officer. It is possible that Cst Lazorko may have uploaded the records for the two ASDs from which he obtained breath samples from the Applicant, or he may have uploaded the records for the two ASDs that were in his possession. Nowhere in Cst Lazorko’s notes or report does he refer to the serial numbers for the ASDs that were used or in his possession. It is impossible to know whether the correct ASD records were uploaded without some identifying information or indication from Cst Lazorko.

[28] The Adjudicator’s determination that the onus was on the Applicant to provide details to convince the Adjudicator that the tags from the malfunctioning ASD were uploaded was also unreasonable. This puts the Applicant in an impossible situation. There was no way for the Applicant to provide any evidence with respect to the ASD records. The ASD records were in the exclusive possession of the police. Records for two ASDs were uploaded, although three ASDs were involved in the investigation. Only Cst Lazorko could have known whether the records provided related to the ASDs that were used to obtain breath samples from the Applicant.

[29] The Adjudicator should have cancelled the NAP on the basis that the maintenance and calibration information for the ASDs used in this investigation were not disclosed by the Director. The Adjudicator’s failure to do so was unreasonable. Therefore, judicial review is granted on that basis.

[30] Since the Adjudicator should have cancelled the NAP because of the missing disclosure, the appropriate remedy in this case is to cancel the NAP. While the presumption is to remit the matter for a re-hearing on the merits when a judicial review is granted on the basis that the Adjudicator’s decision was unreasonable, in this case, the outcome is inevitable.

[31] In Vavilov, the Court stated that when a reviewing court finds that an administrative decision maker’s decision was unreasonable, it will most often be appropriate to remit the matter back to the decision maker for reconsideration with the benefit of the court’s reasons: Vavilov at para 141. However, there are situations where it may be appropriate to decline to remit the matter back to the decision maker where remitting the matter back “would stymie the timely and effective resolution of matters in a manner that no legislature could have intended:” Vavilov at para 142. These situations include (but are not limited to) that a particular outcome is inevitable, concerns regarding delay, fairness to the parties, urgency regarding resolution, costs to the parties, the nature of the regulatory scheme, and efficient use of public resources: Vavilov at para 142.

[32] In this case, ss 4(e)(iii) and 4(f)(iii) of the SAR specify that an Adjudicator shall cancel the NAP if the Director fails to provide complete records to the recipient as required by s 12 of the PAPA. There is no discretion for the Adjudicator to do otherwise. Therefore, if this matter was sent back to the Adjudicator for a re-hearing, the outcome would be inevitable, and the NAP would be canceled. As such, a timely and effective resolution of this matter is to impose the inevitable outcome at this stage to avoid the “endless merry-go-round of judicial reviews and subsequent reconsiderations:” Vavilov at para 142.

Savard (Re), 2022 ABSRA 408

The Recipient consumed alcohol 3-4 minutes prior to providing a sample of breath making the resulting Fail unreliable. Given the location of the checkstop right beside the drinking establishment, the officer should have made inquiries as to the time of last consumption.

5. To succeed at this ground, the Recipient must establish on a balance of probabilities that the Recipient’s BAC was under 80 mg% within 2 hours of the time of operation.

6. The Recipient does not dispute the time of operation but argues that his BAC was under 80 mg% because the approved screening device (“ASD”) result indicating otherwise is unreliable due to the sample provided being contaminated by the presence of mouth alcohol.
7. According to Cst. Quigley’s report, upon arrival to the collision scene, he spoke to the other driver involved and learned that the Recipient had left, as he did not have his “I.D.” and had told the other driver that he was going to “his place in Mountain View Campground”. Cst. Quigley then went to the campground in search of the Recipient’s vehicle. The officer was also informed that the Recipient had contacted the RCMP, telling the police his location in the campground.

8. The officer reports that he attended the campground and the Recipient “came out waving”. At 8:32 p.m., the issuing officer “got out and walked up to [the Recipient]” who told the officer that he had been in the accident. The officer gave the Recipient a mandatory alcohol screening (“MAS”) demand and the Recipient declined and started to move back to his trailer. The officer explained “refusal” and gave the MAS demand again. The Recipient replied, “No”, saying, “I drank when I got home”. After the officer explained the Recipient’s jeopardy for a refusal, the Recipient continued to move back towards his house and when the officer then explained that the Recipient would be arrested for Impaired Operation, the Recipient “relented and stated he would give a sample”. The Recipient gave a breath sample on the ASD and the result was a “Fail”. The officer read the Recipient his right to a roadside appeal and the Recipient declined.

9. The Recipient gave oral evidence and described in detail his activities that day. He had worked from 8:00 a.m. until 5:00 p.m., and then ran some errands before arriving home at approximately 7:00 p.m. Upon the request of the Recipient’s wife for a certain item he had not purchased on his initial shopping trip, the Recipient left the home to return to the grocery store. It was on the trip back to the store when the collision occurred, not far from the Recipient’s residence. Unable to find his driver’s licence at the collision scene, the Recipient went home to locate it with the intention of returning to the scene. Despite his efforts with the help of his wife, the Recipient was unable to locate the licence. He then attempted to start his truck to return, however, his vehicle would not start. Not wanting to be accused of a “hit and run”, the Recipient contacted the police to inform them that he had been involved in the collision and of his location in the campground.

10. The Recipient explained how he became upset, realizing his truck was damaged and immobile, and foreseeing the difficulties he would then have taking his wife to her medical appointments. The Recipient then took a mouthful of vodka from his unopened “mickey” bottle on his table in his home and followed this with a can of 6.1% Black Ice beer from his fridge. He consumed two more mouthfuls of vodka, each followed by a can of beer. The Recipient heard vehicles approaching, believed it was the police arriving, and exited his home to meet them. The Recipient testified that the time between the end of his third beer and the interaction with police was “three to four minutes”. The Recipient testified that the police immediately made the breath demand and he initially told them there was no point as he had drank when he returned home. After the officer informed the Recipient that he would be arrested for failing to provide the sample, the Recipient blew and the result was a “Fail”.

11. The Recipient explained that his wife’s medical condition required hospitalization after the occurrence and as such, she was not able to provide an affidavit for the Review. However, Counsel for the Recipient (“Counsel”) provided evidence that he spoke to the Recipient’s wife over the phone while she was in the hospital. Counsel states that the Recipient’s wife confirmed the Recipient did not consume alcohol the first time he arrived home, but did consume alcohol the second time he returned home.

12. Concerning the evidence provided by Counsel of the conversation with the Recipient’s wife, I have considered the Recipient’s description of his wife’s condition at the time. Although Counsel stated she was “lucid” at the time he spoke with her, the Recipient testified that she was on medications and was going to be placed into a “coma state” in hospital. Without supporting medical evidence, I am not satisfied the Recipient’s wife was fully cognizant of the conversation and therefore have placed little weight on this evidence.

13. Despite the Recipient’s explanation of why he consumed, I find the volume consumed questionable given the Recipient’s silence of the time it took him to consume the alcohol. Nevertheless, what I must determine here is whether the sample provided on the ASD was reliable. I accept the Recipient did consume alcohol while waiting for police to arrive, as there is no evidence before me that disputes this and it is consistent with the officer’s report where the Recipient told the officer he had “drank” when he got home. I have also considered that there is nothing to indicate that the other driver in the collision made any observation of alcohol such as smell, such that I would not accept the alcohol was consumed after the collision. I then look at the timing of the last consumption and the ASD test. The officer’s report states he approached the Recipient at 8:32 p.m., and gave the MAS demand. This time is consistent with the time of the MAS demand recorded by the officer in the Administrative Penalty Information System (“APIS”). The officer then recorded the “Time MAS Test Started” as 8:32 p.m. in APIS with the result of “Fail”. Despite a few verbal exchanges, I am satisfied all of these events took place within that minute of time.

14. I have considered the expert opinion evidence set out in M-2 Mouth Alcohol (Exhibit D of E1 Affidavit of Kerry Lynne Blake) provided in the SafeRoads Alberta Technical Materials Library (“TML”) which states, “Mouth alcohol is the alcohol that remains in the mouth after consuming an alcohol-containing substance. Mouth alcohol may contribute to a higher test result because the breath testing equipment is measuring the residual alcohol in the mouth rather than the alcohol coming from deep within the lungs.” This document also explains, “Alcohol dissipates rapidly from the breath and in most cases, the mouth alcohol effect disappears within 5 to 10 minutes. A 15 minute deprivation period is more than sufficient to ensure that there will be no alcohol effect.” Despite the Recipient’s provision of information to the officer regarding his recent consumption, there is no evidence that the officer did anything with this information. The TML document ASD-1 Alco-Sensor Operator’s Manual states, “A test on a subject shall not be conducted until 15 minutes after the time the officer believes alcohol has last been consumed. This is to ensure the elimination of any possible ‘mouth alcohol’ effects”. It is clear that in this case there was no pause between this information coming to the attention of the officer and the ASD test being administered.

15. There is nothing to refute the Recipient’s evidence that it was three to four minutes between his last consumption and the interaction with police. I also accept that the MAS demand was given and breath sample was taken within a minute of the officer’s arrival and approach to the Recipient. There was no delay in taking the sample and as such, the evidence before me is that the sample was taken within five minutes of last consumption. Considering the TML evidence, I find this time is not sufficient to ensure no mouth alcohol affected the reliability of the breath sample. On a balance of probabilities, I find that the ASD result is unreliable and without a reliable ASD result, I am unable to find that the Recipient’s BAC was equal to or over 80 mg% within two hours of the time of operation.

16. The Recipient has established this ground to cancel. As this ground to cancel is sufficient for cancellation of the NAP, I find it is not necessary to analyze the additional ground to cancel submitted by the Recipient.

Lang (Re), 2022 ABSRA 374

The Recipient consumed alcohol 5 minutes before blowing a Fail. As a result of mouth alcohol, the ASD reading was unreliable.

10. Counsel argues that there is no evidence that the Recipient’s BAC was 80 mg% or over because mouth alcohol from the Recipient’s recent alcohol consumption rendered the result obtained on the ASD as unreliable.

11. The Recipient provided evidence at the Review that after finishing curling at the local curling rink, he went upstairs with his teammates and consumed three beers. He consumed the first two and half beers with his friends and then proceeded to drink the last of his third beer on his way out of the rink, dropping the empty can on the bar on his way out. The Recipient stated he went directly outside to his vehicle, which was parked right by the door of the facility and left. He came upon the checkstop under a minute and a half later. He stated that he knows the exact time because after the night of the occurrence, and in anticipation of the Review, he had his friend drive the route twice and his wife once, timing it with a stopwatch on his phone. The times recorded to get from the rink to the checkstop location was between one minute and fourteen seconds to one minute and twenty seconds about the same time of day. There are no traffic lights on the route and there was no traffic on any of the occasions, including the night in question, from the rink to the checkstop location. The Recipient stated that it was less than five minutes from the last of his beer to blowing into the ASD.

12. Two witnesses also provided testimony at the Review. Both individuals were sitting with the Recipient after the curling game and they both provided that the Recipient had a total of three Bud Light beers in regular sized cans. They also both provided evidence that they watched the Recipient leave the table with the can in his hand and he gulped the last of his third beer as he walked towards the bar and placed the empty can on the counter before he went through the exit door.

13. Both witnesses and the Recipient provided details of their recollection. I found all three of the witnesses to be credible and without any evidence to challenge their assertions that the Recipient had only three beer and finished his last one on the way out of the rink, I accept their evidence.

14. The police evidence is that the Recipient was stopped at 10:48 p.m. and presented with a mandatory alcohol screening (“MAS”) demand. The Recipient made three attempts to provide a sample that all resulted in a reading of “INS FLO” and then after a demonstration, the Recipient provided a “Fail” sample. The Recipient was offered an opportunity to provide a second sample and he declined and said that “he would take responsibility for his actions”.

15. M2 – Mouth Alcohol (Exhibit D of Kerry Lynne Blake-Affidavit –E1), as found in the Technical Materials Library, provides that “alcohol dissipates rapidly from the breath and, in most case, the mouth alcohol effect disappears within 5 to 10 minutes.” In this circumstance, I accept the Recipient’s timing of when he took his last drink and how long it took to reach the checkstop. I do not have any evidence in the police report as to whether the checkstop was busy or whether the Recipient was immediately presented with the ASD so I have no reason to question the Recipient’s submission that it was immediate.

16. I do question why the Recipient would not have availed himself of the right to a second test to confirm the results of the first sample, however, I do not find that this negates the possibility that the first sample was unreliable. Considering the Friday night checkstop was set in such close proximity to a sporting facility that had both curling and hockey events going on and included a licenced establishment on site, I find it curious that there is no evidence that the police inquired about the timing of the Recipient’s last drink.

17. On a balance of all the evidence before me, I am satisfied that the Recipient’s last drink was within 5 minutes of his arrival at the checkstop and therefore the “Fail” result on the ASD was likely not reliable. Without a reliable result, I have no evidence before me that the Recipient was operating a motor vehicle with a BAC that was equal to or exceeded 80 mg%.

18. The Recipient has established this ground to cancel.

Sielecki (Re), 2021 ABSRA 729

The officer did not give the Recipient a meaningful opportunity to provide a sample of breath. The officer’s conduct was egregiously unfair and his treatment of the Recipient in front of her children was abhorrent. The officer failed to inform the Recipient of the right to an immediate roadside appeal.

11. Again, the evidence from Cst. Patry is almost non-existent. His report only states that the “ASD was read and understood by the driver” and that while trying to obtain a sample he noticed a strong odour of alcohol. He then “formed grounds to believe” the Recipient was impaired and arrested her. It is not clear if he ever even attempted to obtain a sample on the ASD.
12. By contrast, the Recipient’s affidavit is clear, detailed, and provides additional context that is lacking in the police evidence. She writes that Cst. Patry was aggressive from the outset of the traffic stop, causing the Recipient to panic. Cst. Patry asked the Recipient if she had been drinking and she said “no.” He then told her she had to do a breath test, and she replied that she did not understand. Rather than explain what was happening, and provide guidance on how to provide a sample, the Recipient says Cst. Patry told her to get out of the car and arrested her. The Recipient’s affidavit states that she was arrested between 5 to 10 seconds after Cst. Patry approached her vehicle. Further, Cst. Patry did not explain what would happen to the Recipient’s two children, who were alone in the vehicle at the time of her arrest. She repeatedly asked where her children were, and Cst. Patry would not tell her.
13. At the RCMP detachment, the Recipient was subjected to an AI test. However, there is nothing in Cst. Patry’s evidence to suggest why this was done, or what the outcome was. However, the Recipient’s affidavit indicates that she was not advised how to provide a sample on the AI. Moreover, given her state of anxiety and her concern for her children, she was not in a state to provide a sample without some guidance. Nevertheless, she made a few attempts while Cst. Patry stood behind her yelling. Another officer began to explain the process to her at this point, but Cst. Patry interrupted and said that she had enough chances and that she was being charged with refusal.
14. Based on the evidence, it is clear that the Recipient was not provided with a meaningful opportunity to provide a breath sample on both the ASD and the AI. She asked for an explanation about the ASD process, and in response, Cst. Patry simply arrested her. While at the detachment, the AI was not adequately explained, and again she was not provided with a meaningful chance to provide a sample. The Recipient has established this ground to cancel.
15. To succeed on this ground, the Recipient must establish: a) that the officer did not advise the Recipient in writing, for example, because the Recipient did not receive a copy of the NAP clearly setting out her right, or the officer did something to obscure or undermine this advice; and b) that the Recipient was also unaware of that right.
16. The NAP and the Contravention Details on the SafeRoads portal both indicate that the Recipient was not informed of her right to a roadside appeal because she refused to provide an initial sample. The Recipient’s affidavit also states that she was not advised of her right to a roadside appeal.
17. Based on the evidence, it is clear the Recipient was never advised of her right to a roadside appeal because of Cst. Patry’s mistaken belief that he did not have to offer one in the case of a failure to provide an initial sample. As a result, I find that any written advice about a second test outlined on the NAP or the tear-away form was effectively obscured or undermined by Cst. Patry’s conduct and his decision not to offer a test. It also seems most likely that the Recipient’s only source for information about the roadside appeal would have been Cst. Patry, and that she was otherwise unaware of her right. The Recipient has established this ground to cancel.
18. Counsel argued that the ASD demand was unlawful because Cst. Patry did not have grounds to believe the Recipient was impaired by alcohol. He submitted that the odour of alcohol noted by Cst. Patry was not sufficient to form grounds to believe because the odour was not noted as coming from the Recipient’s breath. Counsel also argued that Cst. Patry made an ASD demand, not a MAS demand, and therefore concluded that he could not have had a suspicion of alcohol impairment at the time he made the demand.
19. The form a breath demand takes is not a ground to cancel, and I am not aware that there is a precise wording that peace officers are obligated to use to make a breath demand lawful for the purposes of an administrative penalty. Nor am I persuaded that the distinction between an ASD and a MAS demand is relevant in the context of an administrative penalty, such that it would be egregiously unfair to confirm a NAP simply because one kind of a demand was made instead of another.
20. Counsel argued that Cst. Patry did not make an evidentiary demand before the AI test was administered. He also submitted that it was unlawful to charge the Recipient criminally and issue an administrative penalty. In his view, this amounted to penalizing the Recipient twice for a single incident.
21. The fact that Cst. Patry did not make an evidentiary demand may have application in a criminal context, but I am not persuaded that it is relevant for the purposes of an administrative penalty. Additionally, I am not aware of any restriction on peace officers preventing them from proceeding with both criminal and administrative penalties. If I am incorrect in that conclusion, I am nevertheless not persuaded that it resulted in an egregious breach of fairness warranting cancellation of the NAP. In my view, neither the lack of an evidentiary demand, nor the issuance of a criminal and administrative sanction amounted to an egregious breach of fairness.
22. The Recipient, however, has detailed circumstances of the investigation that do rise to the level of egregious unfairness. The Recipient has included pictures of the bruises she sustained when Cst. Patry arrested her. In her affidavit, she explained the fear and anxiety she experienced, not only as a result of the physical violence she was subjected to, but also from not being told where her children were. As already discussed, Cst. Patry’s report contains virtually no specific details. However, the Recipient has provided a graphic explanation of how she was treated:

The officer then opened my door, grabbed my arm and dragged me out of the car before he even asked me to step out of the vehicle. He pulled me out of the vehicle so aggressively that he left a number of bruises on my arm. The officer put handcuffs on me and pushed me into the backseat of the police vehicle so aggressively that I hit my face on the opposite door, which left a large bruise on my chin…At this point I was in a deep panic as I did not understand what was happening to me or what would happen to my children. I was not told the reason why I was arrested nor was I read a breath demand either at my car or after I was placed in the police vehicle. All I was told was that I was under arrest

I repeatedly asked the officer what I did wrong and what would happen to my children, but he refused to answer me. While I waited in the backseat of the police vehicle another police vehicle arrived. Cst. Patry returned to the vehicle I was handcuffed in and began driving away. I started crying and asked him what was happening to my children who were in the backseat of my car crying and yelling for me. The officer refused to tell me anything and told me I was going to the police station. I was not given any information about what I was arrested for or any of my rights.

24. I have reviewed the affidavit and pictures showing the bruising the Recipient suffered. I accept the Recipient’s evidence on the issue of egregious unfairness and how she was treated by Cst. Patry. I have no reason to doubt the accuracy of the events she describes, especially in light of the almost non-existent evidence from the RCMP on this file. The NAP is also cancelled for an egregious breach of the Recipient’s right to fairness.

Maaoui (re), 2022 ABSRA 414

Notice of Administrative Penalty not served – bad police notes

6. To succeed on this ground, the Recipient must establish on a balance of probabilities that he did not receive a copy of the NAP at the relevant time.
7. The Recipient argues that he was not served with the NAP. He says he received a seizure notice, which he then provided to his agent. He states he has not received a “notice of suspension” or “an appearance notice”. At the Review, the Recipient’s agent argued that credibility was an issue, and that given the inconsistencies in the police evidence, the Recipient’s evidence should be preferred.
8. Cst. Beattie’s report states that at 6:40 a.m., police received a complaint from a taxi driver who said the Recipient tried to hit his taxi with his vehicle. The witness then saw a disturbance between the Recipient and another male in a Circle K parking lot.
9. When police arrived, they spoke to both individuals involved in the disturbance. Cst. Beattie reports that the Recipient admitted to driving just prior to the arrival of police. Additionally, the witness told police that the Recipient was the driver, and he believed he was impaired.
10. Cst. Beattie writes that the Recipient slurred his speech. He made an approved screening device (“ASD”) demand, and the Recipient refused to provide a sample. He says he then gave the Recipient a second chance, and the Recipient refused again. The Recipient was arrested for refusal. Cst. Beattie’s report concludes by stating the Recipient was “released on an appearance notice” and his vehicle was impounded for 30 days.
11. The witness report, which was uploaded to the Administrative Penalty Information System (“APIS”) over a week after the incident and the rest of the evidence from the law enforcement agency was submitted, is very poorly written. The only details I can make out from the witness report are the following:
12. the witness went to pick up a customer, and he was followed by someone who was only wearing a jacket;

1. the individual looked to be about 23 or 24, seemed to be drunk, and was driving a Ford Ranger; and

1. the individual blocked the witness’s taxi. The witness told his customers that he would not take them, and they asked to be dropped off on 8th Avenue.

12. The Recipient’s affidavit states that when police arrived his car was parked and turned off. He says he had been in an argument in the parking lot for over an hour. Police told him he was the driver, and that the witness had seen him drive. Police then made a breath demand, but the Recipient “had no idea what they were talking about”. The Recipient denies that he admitted to driving, and states that a breath demand was never read. Instead, he says police “shoved the machine in [his] face” and told him to blow.

13. The Recipient states that at the end of the investigation he was issued a seizure notice, which he provided to his agent, who then used this document to get the “notice of suspension”. He denies receiving an “appearance notice” or anything else.

14. I find there is very little in the police evidence to establish that the Recipient was ever served with the NAP. The report lacks detail, and includes some discrepancies that lead me to doubt its accuracy. First, Cst. Beattie reports that the witness had complained about the Recipient trying to hit his car; however, there is nothing in the witness report itself to suggest this ever happened. Was this fact reported verbally to Cst. Beattie, but for some reason not included in the written witness report? Given the evidence, it is impossible to tell.

15. Secondly, this appears to have been an outright refusal. Nevertheless, Cst. Beattie indicates on the NAP that he offered the Recipient a second test and that the Recipient again refused. The corresponding notation on APIS says the same. However, since December 15, 2021, roadside appeals are no longer available in situations where drivers fail or refuse to provide a breath sample. It is therefore unclear why Cst. Beattie offered the Recipient a roadside appeal, or if he was aware of the changes to the legislation.

16. Lastly, Cst. Beattie’s report only states that the Recipient was “released on an appearance notice”. Given the irregularities in the police evidence and the conduct of the investigation, on a balance of probabilities I cannot accept that the “appearance notice” was in fact the NAP. In fact, it seems to me that an appearance notice is much different than a NAP, and implies a mandatory court appearance – something that is not necessary for administrative penalties.

17. Taken separately, these discrepancies would be insufficient to establish that the Recipient was not served with a NAP at the conclusion of the investigation. However, taken together, I find on a balance of probabilities that the Recipient did not receive a copy of the NAP at the relevant time. The Recipient has established this ground to cancel.

18. Since I have decided to cancel the NAP pursuant to Section 4(i)(i), I find it is unnecessary to consider the Recipient’s additional grounds to cancel, including his allegations of fairness and Charter breaches.

Rangarira (Re), 2022 ABSRA 343

Director did not provide complete records – nothing uploaded to SafeRoads portal

5. To succeed here, the Recipient must establish that a) the record alleged to be missing was a required one under Section 12 of PAPA, and b) the record was not provided. Section 12 of PAPA sets out that the Director must provide the Recipient with the records required by regulations. In this case, the relevant regulation is Section 2 of the Regulation.
6. The Recipient argues that there are no supporting documents uploaded under the contravention. I agree. There is no NAP uploaded, nor any additional documents, save for the information on the Administrative Information Penalty System. As a result, I find that the Director did not provide the records required under Section 2 of the Regulation. The Recipient has established this ground to cancel.
7. As this ground to cancel is conclusive of the outcome of the review, I find it unnecessary to review any further grounds.

Stokes (Re), 2022 ABSRA 432

Recipient was unaware of his right to an immediate roadside appeal

6. To succeed at this ground, the Recipient must establish a) that the officer did not advise the Recipient in writing, for example, because the Recipient did not receive a copy of the NAP clearly setting out his right or the officer did something to obscure or undermine this advice, and b) that the Recipient was also unaware of that right.
7. Counsel for the Recipient submits that the investigating officer never offered the Recipient his right to a roadside appeal and that the Recipient was unaware of that right. Counsel also submits that information on the NAP regarding a roadside appeal was obscured or undermined.
8. According to police evidence, a complaint was called in from a local business concerned about a vehicle that had been sitting in the parking lot for approximately four hours.
9. When officers attended the scene, they immediately observed the Recipient in the driver’s seat of a parked vehicle, slumped over the steering wheel with the vehicle ignition engaged. Cst. Kennedy, the issuing officer, indicates in his narrative that “the [Recipient] remained slumped over and was slow to answer questions. He appeared to be almost sleeping. When questioned about his intoxication, the [Recipient] stated that he was tired from working. However, at times he was almost completely unresponsive”. Cst. Kennedy says the Recipient was requested to turn off the vehicle and was unable to comply, and instead “fumbled around under the ignition, grabbing a trailer brake control”. One of the passengers in the vehicle eventually turned off the ignition and removed the vehicle keys for him.
10. Based on observations of the Recipient and his behaviour, the issuing officer believed him to be impaired by alcohol or a drug and arrested him for Impaired Operation. The Recipient was subsequently issued the current NAP for Impaired Operation.
11. Counsel and the Recipient argue that at no time at the roadside did the police officers mention or discuss the Recipient’s right to a roadside appeal. As regards the NAP itself, Counsel says that “in this case the NAP is actually first issued to [the Recipient] at the end of the investigation when he was free to go”. Counsel submits that had the Recipient received his right to a roadside appeal it could have confirmed whether the Recipient was not impaired by alcohol or drugs, or confirmed the Recipient’s claim that he was simply suffering from fatigue.
12. Counsel argues that Section 88.1(5) of the TSA was applicable to the Recipient at the roadside and that this section states a “peace officer shall advise the driver of the driver’s right to voluntarily undergo the applicable test, analysis or evaluation referred to in Section 88.11(2)”. The current NAP was based on the contravention of Impaired Operation, based upon the police observations of alleged indicia of the Recipient’s impairment at the scene. Counsel went through the different sections of 88.11(2) with the emphasis that information regarding a roadside appeal was required in the circumstances of the current case and I agree. Specifically, I find that Section 88.11(2)(f), 88.11(2)(g), and 88.11(2)(h) cover all scenarios applicable to the roadside appeal depending on the circumstances, and that a roadside appeal should have been available to the Recipient, had he requested one.
13. I note that the contravention details within the Administrative Penalty Information System (“APIS”) and the paper NAP itself both indicate that the officer did not advise the Recipient of his right to a roadside appeal. On the NAP itself, under “Right to Second Test,” the officer checked the “No” boxes, indicating that the information was not provided and the Recipient did not request a second test. On the line that indicates the explanation for no information provided, the officer wrote, “No First Test – Obs Only”. I infer “Obs” to mean “observation” which is consistent with the information the officer wrote in APIS. On APIS regarding the portion that asks “Was Recipient Presented with Roadside Appeal Information?” the response given is also “no”, with the explanation given “was not provided a first test. Sanctions based on officer observations”.
14. While I am satisfied the Recipient did receive a copy of the NAP which contains written information on the right to a roadside appeal, the question I must ask myself is did the officer do something to obscure or undermine this advice on the NAP and was the Recipient unaware of his right. On a balance of probabilities, I find that the officer was under the mistaken belief that the Recipient did not have a right to a roadside appeal because “no first test” was given or because the NAP was issued based only on the officer’s observations. Because of this mistaken belief, I find that the officer obscured or undermined the written advice on the NAP regarding a roadside appeal. Moreover, the police report is silent regarding any verbal discussion of roadside appeal information or roadside appeal tear-away sheet that is often used by police to provide such information to the Recipient. Looking at the totality of the evidence, I am satisfied the Recipient would not have gained awareness of the roadside appeal in any other manner.
15. I agree with Counsel that there is no evidence before me that police told the Recipient about his right to a roadside appeal or that they discussed any paperwork with him. I find it likely that even if the officer had discussed the appeal with him, he would have shared his erroneous belief that the Recipient did not have a right to a roadside appeal.
16. Based on the totality of the evidence before me, I am satisfied that the Recipient was unaware of his right and that the advice he received in writing later on with the NAP was obscured or undermined.
17. I am satisfied that the Recipient has established this ground to cancel.
18. I find that the NAP should be cancelled for this reason. As my finding on this ground is conclusive of the outcome of this Review, analysis on the remaining grounds is unnecessary.

Prost (Re), 2022 ABSRA 46

Recipient did not operate the motor vehicle – driver was found outside of vehicle after car accident

6. 6.   Section 1(4.2)(b) of the Use of Highway and Rules of the Road Regulation, Alta Reg. 304/2002, defines “operate a motor vehicle” for the purposes of Section 88.1 of the TSA as including to “drive a motor vehicle.” Section 1(1) of the TSA defines “drive” or “driving” as including “having care or control of a vehicle.” To succeed at this ground, the Recipient must establish that the Recipient neither drove in the sense of setting a vehicle in motion, nor was in care or control of a stationary vehicle at the time alleged by police.
7. 7.   On the issue of driving in the sense of setting the vehicle in motion, the Recipient does not take a position on whether he drove the vehicle or not.
8. 8.   On the issue of care or control of the vehicle, the Recipient argues he was standing on the street about 40 feet from the truck when the officer arrived at the scene.

Did the Recipient not actually drive at the alleged time?

9. 9.   The undisputed police evidence states that the officer arrived at the scene of a collision involving a truck and a parked vehicle with the Recipient not present in the vehicle. In his affidavit, the Recipient does not acknowledge that the truck involved in the collision is his or that he was driving. From the police affidavit, the officer indicates that he “spoke with the driver of the truck” meaning the Recipient. However, the officer does not explain how he came to believe this as he did not ask the Recipient if he was the driver or whether the truck was the Recipient’s truck. In the Administrative Penalty Information System (“APIS”), the officer states that a “witness observed subject” but the officer does not submit any further information identifying the Recipient as the driver of the truck. Based on this evidence, I find that the Recipient was not actually driving at the time of the traffic stop. However, that is not the end of the analysis since the Recipient could also have been operating by being in care or control of the motor vehicle while it was stationary.

Was the Recipient not in care or control at the alleged time?

10. 10. To answer this question, I turn to the Supreme Court of Canada’s analytical “care or control” framework set out in R v Boudreault, 2012 SCC 56, adapted for the administrative rather than criminal context. The Recipient must establish: a) that the Recipient was not in the driver’s seat or not otherwise in care or control of the vehicle or, if the Recipient was in the driver’s seat, b) the Recipient had no future intention to drive and c) was not in such circumstances that he presented a realistic risk of danger to persons or property.
11. 11. The evidence before me shows that the Recipient was not in the driver’s seat at the time of the traffic stop. However, to determine if the Recipient was in care of control of the vehicle, I will consider the totality of the circumstances. The lack of detailed evidence from both the officer and the Recipient obfuscates this issue. The Seizure Notice submitted includes information about the Recipient’s driver licence as well as a licence plate number and VIN to a seized vehicle; however, it does not include any description such as the make, model, year or colour of the vehicle. The police information submitted presumes the truck involved in the collision is the Recipient’s but supplementary documentation does not support that. There is no evidence to support that the Recipient attempted to move the vehicle as there is no information provided regarding the location of the keys, witness statements placing the Recipient in or near the vehicle, or a statement from the Recipient that the vehicle was his or that he attempted to move the vehicle. In addition, the police evidence submitted shows an image of a truck with severe front-end damage to the wheel and body. It is clear from the image that the vehicle is inoperable and incapable of being driven. Based on the totality of the evidence, I find that the Recipient has satisfied me, on a balance of probabilities that he was not in care or control of his vehicle.
12. 12. The Recipient has established this ground to cancel.

Drad (Re), 2022 ABSRA 378

Director failed to provide complete records – only one ASD tag uploaded

5. To succeed on this ground, the Recipient must establish that: a) the record alleged to be missing was required under Section 12 of PAPA; and b) the record was not provided. Section 12 of PAPA sets out that the Director must provide the Recipient with the records required by Section 2 of the Regulation.
6. The Recipient’s agent noted that the documentation for a single approved screening device (“ASD”) has been provided. However, the information entered on the Administrative Penalty Information System (“APIS”) indicates that a second test was performed at the police station on a different device. The Recipient’s affidavit also confirms that a second test was administered.
7. I have reviewed the documents on APIS, and the ASD records required by Section 2(c) of the Regulation have not been provided to the Recipient. A picture of the maintenance and calibration tag for the device used to administer the roadside appeal has been uploaded to APIS. However, the documentation relating to the device used for the initial screening has not been provided. It is clear that this is a record required under the Regulation since the device was factually implicated in the issuance of the NAP. The Recipient has established the ground to cancel.
8. Since I have decided to cancel the NAP pursuant to Section 4(e)(iii), I find it is unnecessary to consider the Recipient’s additional grounds to cancel, including his allegations of egregious unfairness.

Okeadu (Re), 2022 ABSRA 429

The NAP was egregiously unfair as a result of police conduct – officer made racial charged comments and threatened to criminally charge the Recipient

28. The Recipient argues that fairness was breached because he was subjected to a baseless drug investigation, and upon detention, was not given a chance to retain and instruct counsel without delay, and to be informed of that right under Section 10(b) of the Charter. Additionally, the Recipient alleges that he was subjected to racial profiling and racially biased comments.
29. Counsel argued that the Recipient was not being detained for an impaired driving investigation; instead, the officers’ comments and actions relating to drugs establish that this was actually a criminal investigation, and as a result, the Recipient’s Section 10(b) Charter rights were engaged. She argued the Recipient was explicitly denied this right.
30. In counsel’s opinion, if this was truly an impaired driving investigation, the comments about drug possession were unfounded. Moreover, the search of the Recipient’s vehicle would only make sense if this had been a drug possession investigation.
31. Counsel further argued that even if this was not a detention for a drug investigation, then police needed to clearly delineate between the criminal and administrative investigations. Counsel cited Lausen v Alberta (Director of SafeRoads), 2021 ABQB 896 in support of this argument.
32. In counsel’s opinion, the Recipient had a reasonable basis to believe this was a targeted criminal investigation, and that his experience as a racialized Canadian needs to be considered in context. She submitted that an individual’s distinct experiences can inform one’s subjective experience with law enforcement. To realistically engage with the issue, she said, it is important to remember that some individuals have different experiences with police.
33. In this case, the Recipient believed he was being targeted. Counsel said the comments about drugs came out of nowhere since there was no evidence the Recipient had drugs or was believed to be impaired by a drug. This, in combination with the officer repeatedly telling the Recipient to shut his “big lips” made the Recipient feel as though he was being specifically targeted, and he had genuine concerns that this had turned into a criminal investigation. Counsel cited R. v. Le, [2019] 2 S.C.R. 692 in support of her argument about how to engage in a “realistic appraisal of the entire interaction” (Le, at paragraph 73).
34. Looking at the situation in context, therefore, counsel said it was reasonable for the Recipient to refuse to provide a sample because he believed it was a criminal investigation. As a result, the impaired driving investigation was “obscured”, and the Recipient’s right to counsel was triggered. The failure of police to give effect to the Recipient’s right amounted to an egregious breach of fairness.
35. In the alternative, counsel argued that if the detention was for an impaired driving investigation, the suspension of the Recipient’s 10(b) rights was unlawful. Counsel cited R. v. Ellerman 2000 ABCA 47, in support of her argument that the limited justification for the suspension of 10(b) rights in the criminal context does not exist for administrative penalties. In the criminal context, there is limited prejudice stemming from the roadside suspension of rights because the screening evidence cannot be used for the criminal charge. However, in the administrative context, the ASD result can be used to impose harsh penalties. Counsel submitted that since the suspension of Section 10(b) rights has not been contemplated for administrative penalties, the failure of the investigating officers to give the Recipient a chance to speak to a lawyer was egregiously unfair. Counsel cited R. v. Thomsen, [1988] S.C.J. No. 31 and R. v. Orbanski, 2005 SCC 37 in support of her argument about the nature of the detention and the limits on the suspension of 10(b) rights.
36. I will deal with the Recipient’s alternative argument first. In my opinion, the fact that the suspension of 10(b) rights in the context of an administrative appeal has not been specifically addressed by the courts is insufficient to establish that such a suspension is not permissible in an investigation leading to the issuance of a NAP. It is important to keep the scope and purpose of the IRS regime in mind when considering the application of Charter values to administrative penalties.
37. Section 2 of PAPA provides that the purpose of the Act is to:

(a) adopt a simplified form and process for administratively enforcing contraventions;

(b) establish a consistent framework for the resolution of contraventions enforced by issuance of an administrative penalty; and

(c) ensure that the process used to administratively enforce contraventions and the procedural safeguards applicable in administrative enforcement proceedings are proportionate to the regulatory nature of the contravention (emphasis added).

38. The regulatory nature of the contravention needs to be kept in mind. If I were to accept counsel’s argument for a broad application of Charter values such that drivers were entitled to retain and instruct counsel before the administration of an ASD test, the purpose of PAPA would be undermined. To pause a regulatory investigation to give a driver a chance to retain and instruct counsel where criminal penalties are not in play, would create an unreasonably complicated process. This cannot have been the intention of the legislature in establishing the IRS regime and taking these penalties out of the criminal context and the courts.

39. As a result, I find the Recipient has not demonstrated a connection between the alleged Charter breach and the fairness of the NAP. The NAP is an administrative penalty and carries no criminal sanction. I conclude that the Charter right to counsel does not apply to the NAP and accordingly there was no egregious unfairness resulting from the alleged denial of the Recipient’s right to counsel insofar as the NAP is concerned. However, I must also consider if the alleged Charter breach amounted to egregious unfairness in light of the alleged drug investigation, and the allegedly racially biased comments of the officer.

40. As I have found above, the Recipient clearly and unequivocally refused to provide a breath sample. If the investigation had concluded with the issuance of the NAP at that point, I would have confirmed the penalty. However, after the refusal had been made out, I find the Recipient has established the investigating officers engaged in improper, retaliatory conduct to intimidate him, likely in response to the fact that the Recipient was argumentative and uncooperative.

41. I agree with counsel that the racially biased comments and the drug possession investigation need to be considered together, and in terms of the Recipient’s subjective experience with law enforcement. First, I need to decide on a balance of probabilities if the comments were made, and if the investigating officers unreasonably engaged in, or threatened to conduct, a drug possession investigation.

42. At the Review, counsel conceded that the evidence of police and the Recipient is largely similar. The primary difference is that the police report does not mention a drug investigation or the use of racially charged language. Counsel said that the fact these details have not been included in the police report is hardly surprising, and I would agree.

43. The Recipient’s evidence is that police began to search his vehicle for drugs and told him to shut his “big lips”. In my opinion, the racially charged nature of the comment, taken with the seemingly groundless drug possession investigation, were sufficient to change the tenor of the encounter. Moreover, I have no reason to doubt the Recipient’s evidence.

The comment seems far too specific to have been made up, and I doubt that the Recipient would simply have fabricated the details respecting the drug investigation.

44. The Recipient states that he heard one of the officers say the Recipient wanted to grab drugs from his vehicle, and this statement seems to have been made in response to the Recipient telling police he wanted to look for his phone after the breath demand was made. The Recipient was then placed in the back of the police vehicle where the officer continued to make comments about drugs, and repeatedly told him to shut his “big lips” while the other officer searched his car.

45. There is a specificity and logic to the Recipient’s evidence that leads me to conclude on balance that these events transpired as he alleges. If this was solely an impaired driving investigation, why did the officers need to search the vehicle? If they were searching the vehicle for some other reason, why did they lead the Recipient to believe it was for the purposes of a criminal investigation?

46. On balance, I find that the investigating officers had become frustrated with the Recipient. He was impaired, uncooperative, and argumentative. However, the Recipient’s conduct did not give the investigating officers licence to make racially charged comments or to engage in a groundless criminal investigation.

47. I also agree that once the possibility of criminal sanctions arose (after the Recipient’s unequivocal refusal), the context of the investigation changed as well. I find this is a situation in which Justice Macleod’s caution in Lausen applies. At paragraph 51 of Lausen, Justice Macleod writes, “In the context of a roadside stop, the boundary between criminal investigation and administrative procedure must be more clearly delineated”; and police “…should take care to ensure that drivers are made aware if a criminal investigation is abandoned in favour of proceeding along the administrative route”. I think it is also reasonable to conclude that the distinction needs to be made clear when police decide to conduct a criminal investigation after an administrative investigation. In the circumstances, engaging, or threatening to engage, in a criminal drug investigation without reason was egregiously unfair. Not informing the Recipient of his Section 10(b) rights and using racially charged language made things worse.

48. While I find that the Recipient unequivocally refused to provide a breath sample without excuse, and was difficult and argumentative for much of the encounter, the decision by police to threaten the Recipient with criminal sanctions and use racially charged language was egregiously unfair. This conduct most likely resulted from frustration and a desire to intimidate. To uphold the NAP in the circumstances would bring the administration of the IRS scheme into disrepute. The NAP is cancelled for egregious unfairness.

Despins (Re), 2022 ABSRA 424

The Recipient requested an immediate roadside appeal and the officer failed to provide one

5. To succeed at this ground, the Recipient must establish a) that the Recipient immediately requested a roadside appeal, and b) that upon the request, the officer failed to provide an opportunity in accordance with Section 88.11 of the TSA.
6. The Recipient’s counsel (“Counsel”) argued that the Recipient requested a roadside appeal, signed the roadside appeal tear-away information sheet, but was not provided with an opportunity for a roadside appeal. Counsel has cited various published SafeRoads Alberta decisions within his written submission. I am not bound by the precedence of previous SafeRoads Alberta decisions and I will rely on the facts of this case before me.
7. According to the police narrative in the Administrative Penalty Information System (“APIS”), the police observed the Recipient “driving Southbound on Norquay Road, clearly over the speed limit (40km/hr) and obtained a speed of 71km/hr. Traffic stop with MAS, at which point he blew a fail”. The officer stated in APIS that the Recipient was presented with the roadside appeal information and that the Recipient did not request a roadside appeal. Additionally, on the NAP the officer has checked off that the written advice was provided, and that the Recipient did not request a roadside appeal. Cst. Lacock’s notebook copy has the following consecutive entries, “1232 FAIL ASD 073422”, “1240 Roadside appeal offered but declined”, and “1305-1307 Transported to Tim Hortons then back to vehicle”. Despite this evidence, there is also a copy of the roadside appeal information “tear-away” sheet uploaded by the officer bearing the Recipient’s name, and signed on the occurrence date.
8. The Recipient has stated in an affidavit that he was told of the right to a second test and that he requested one immediately. The Recipient stated he was provided with a document to sign and did so, returning it to the officer. The Recipient stated that at no point in time did he change his mind regarding wanting a second test or say that he would not do a second test. The Recipient further stated that he was not provided with a second test.
9. The signed roadside appeal information is compelling evidence that the Recipient did request a roadside appeal. I find the single notebook entry without any explanation from Cst. Lacock, is not sufficient to outweigh this evidence. There is no evidence that a second test or roadside appeal was administered and as such, I find that the Recipient did immediately request a roadside appeal and that one was not provided in accordance with Section 88.11 of the TSA.
10. The Recipient has established this ground to cancel.

Jaouani Macrae (Re), 2022 ABSRA 385

Officer wrote the wrong date on NAP – Recipient unaware of right to immediate roadside appeal due to officer undermining the written information.

6. 6. To succeed at this ground, the Recipient must establish on a balance of probabilities that the Recipient did not receive a copy of the NAP at the relevant time.
7. The Recipient was sitting in the driver’s seat of a parked vehicle when a police officer, Cst. Karimwabo, approached and spoke with her regarding his investigation of damage caused to a different nearby parked vehicle. The Recipient does not dispute that she told Cst. Karimwabo she had consumed “two glasses of wine”. After some discussion, Cst. Karimwabo believed the Recipient was impaired by alcohol and issued the subject NAP to her for Impaired Operation. The Recipient does not address whether or not she was involved in the damage which police were investigating.
8. The Recipient’s counsel (“Counsel”) argues the police evidence to this Review does not mention if “all the IRS documents” were served to the Recipient. The Recipient, in her written submission, says that Cst. Karimwabo, handed her a “bunch of paperwork” before she left the roadside. The Recipient says she looked at these documents the next day and contacted her legal counsel. When I consider the documents that the Recipient could have been given at the roadside, I find that they consisted of the Seizure Notice and the subject NAP. There is no evidence of other “paperwork” that was given to the Recipient at the time, and no evidence of service of the NAP at any other time. Further, I find that the Recipient was handed the written, paper NAP which is the subject of this Review by Cst. Karimwabo at the roadside, as there is no evidence or argument that the NAP was served to the Recipient at a different time or place. Also, the contravention number that is listed on the NAP is required when using the online Administrative Penalty Information System (“APIS”) to apply for this Review, and there is no evidence that the Recipient obtained the contravention number from anywhere but the NAP.
9. Next, Counsel argues that the Recipient’s NAP is not a valid NAP under Section 28(a) and (c) of PAPA, and for this reason, the Recipient was never served with the NAP. These parts of Section 28 of PAPA state that “Failure to complete any information required in a notice of administrative penalty does not affect the validity of a notice of administrative penalty or any part of it if (a) the recipient is identified with reasonable clarity… (c) the date on which the contravention is stated to have occurred is specified…”
10. The evidence from Cst. Karimwabo, including his typed notes, the “event chronology” document, his data entry on APIS and the Seizure Notice consistently describe the Recipient’s interactions with police as occurring on the evening of March 2, 2022. The evidence before me is that the Recipient’s first spoke with Cst. Karimwabo at about 9:19 p.m., and she stayed with him at the roadside until at least 9:52 p.m., when she was advised she would be issued a NAP but not criminally charged. After this, a friend picked the Recipient up from the roadside. There is no evidence that any interaction occurred between the Recipient and police after midnight, such that March 3, 2022, was involved in the contravention or issuance of the NAP.
11. There is one NAP in evidence to this Review. I find it clearly states a time of “2123” and the “occurrence date” is “2022 03 03”, which can be reasonably understood as 9:23 p.m. on March 3, 2022. This date was written legibly by Cst. Karimwabo, who authored and signed the NAP. I agree with Counsel there is no evidence that the Recipient’s contravention occurred on at 9:23 p.m. on March 3, 2022 and I find that Cst. Karimwabo erred by writing the wrong date, which should have been March 2, 2022.
12. When I consider Section 28(c) of PAPA, I find that the clearly incorrect date on the NAP has affected its validity. I agree with Counsel that for a NAP to be considered served on a Recipient, the NAP must be a valid one. In this case, I find the NAP issued by Cst. Karimwabo to the Recipient was not valid, and therefore a NAP was not served on the Recipient. While the Recipient has also made an argument regarding Section 28(a) of PAPA, I find it is unnecessary to analyze the issue, as this ground has been proven.
13. I find the Recipient has established this ground to cancel the NAP.

Right to Immediate Roadside Appeal

14. To succeed at this ground, the Recipient must establish a) that the officer did not advise the Recipient in writing, for example, because the Recipient did not receive a copy of the NAP clearly setting out his right or the officer did something to obscure or undermine this advice, and b) that the Recipient was also unaware of that right.
15. The Recipient argues that this ground to cancel is made out because the police never mentioned a roadside appeal or provided her an opportunity to request one. Counsel argues that the evidence shows Cst. Karimwabo did not believe the Recipient was entitled to a roadside appeal, and this erroneous belief guided his actions. The Recipient states she was unaware of her right to a roadside appeal until the day after the NAP was issued when she spoke with her Counsel. I agree with Counsel that the Recipient had the right to a roadside appeal in this situation, under Section 88.11(2) of the TSA.
16. Although I earlier found the NAP issued to the Recipient is not valid due to an incorrect occurrence date, it is a record in this Review, and as the standard NAP form in use in Alberta, it contains standard written information about a Recipient’s right to request a voluntary second test, known as a roadside appeal. The NAP has bold, red letters stating standard advice to recipients about a roadside appeal: “you have the right to request a second test to confirm your blood/ drug alcohol concentration” and “you must immediately indicate to the peace officer your choice to have a second test”. On the NAP, Cst. Karimwabo indicated “no” to answer whether the “driver [was] provided with information on the right to a second test” and to explain, he wrote, “formed opinion – impaired”. Cst. Karimwabo has left blank the prompt about whether the “driver requested second test”.
17. On APIS, Cst. Karimwabo again answers “no” to the question that asks “was Recipient presented with roadside appeal information”. To explain, Cst. Karimwabo has typed “Investigator had formed the opinion that Driver’s ability to operate a motor-vehicle was impaired by alcohol”, and also “no”, the Recipient did not request a roadside appeal.
18. The police notes are silent on the subject of a roadside appeal. I agree there is no evidence that Cst. Karimwabo or any police officer reviewed the written NAP with the Recipient. I agree with the Recipient there is no evidence that a roadside appeal was ever discussed verbally. Counsel stated in oral submissions that while Cst. Karimwabo told the Recipient about filing an appeal on APIS, this was not information about a roadside appeal, but rather, the subject IRS Review. One of the records provided on APIS from Cst. Karimwabo appears to be handwritten police notes from a Cst. Sorochan. I can imply from the regimental number Cst. Sorochan was another police officer who attended the scene. However, Cst. Karimwabo has not mentioned this other officer in his evidence or what their role was in the investigation. I have given these notes somewhat decreased credibility in this Review as there is nothing in the record to identify whom they were written by, and a third page of the notes has been erroneously duplicated.
19. I am satisfied that no verbal discussion about the Recipient’s right to a roadside appeal took place. Regarding the written information about the Recipient’s right on the NAP, I agree with Counsel that even if the Recipient had read the NAP at the roadside, what was written on it by Cst. Karimwabo would have obscured and undermined the advice, such that the Recipient would not have been informed of her right. I agree with Counsel that based on Cst. Karimwabo’s actions and written submissions, it seems he had an erroneous understanding of whether the Recipient was entitled to a roadside appeal and this led him to act as though she was not entitled to one.
20. I agree that what Cst. Karimwabo wrote on the NAP obscured the written advice. I also find that the behaviour of Cst. Karimwabo, who misunderstood the Recipient’s right, would have influenced the Recipient to believe she did not have the right to a roadside appeal in her situation. I am satisfied the Recipient was unaware of her right at the time. I find the Recipient has established this ground to cancel the NAP.

Jones (Re), 2021 ABSRA 1

Reasonable excuse to not provide sample – not advised of right to immediate roadside appeal

6. A mandatory alcohol screening demand (“MAS”) was made as part of a traffic stop. The Recipient made a total of nine attempts of providing a breath sample. The constable noted throughout the Recipient would not blow hard enough into the approved screening device (“ASD”) and was not forming a good seal with his lips. The police report indicated the constable provided coaching the entire time on how to provide a proper sample.
7. The Recipient said he tried his best to comply with the demand; his failure to do so was not on purpose. The Recipient stated he was bound by judicial interim release conditions not to consume any alcohol so when he stopped at a friend’s home on the way home from shopping, he only had a Co-Op Gold Low Alcohol 0.5% beer. The Recipient was speeding to get home because one of the dogs, waiting in the vehicle, had diarrhea and from the way the dog was acting, the Recipient feared it was about to have another incident. At this point the Recipient was stopped and the MAS demand was made. The Recipient said he immediately became incredibly nervous; he worried that he was going to be taken to jail. The Recipient did not know whether the low alcohol beer was in contravention of his condition not to consume alcohol.
8. After the first three attempts, the constable demonstrated a sample of breath to the Recipient; the Recipient said he understood how to provide a proper sample and the second three attempts were made. The constable noted that the Recipient was not forming a good seal with his lips and not blowing hard enough into the mouth piece. Also noted is that the constable continued to coach the Recipient throughout these attempts.
9. The constable cautioned the Recipient indicating he would be charged with failing to comply with a demand if he did not provide a sample. For the last three attempts, the constable had the Recipient step out of his vehicle and stand up to provide a sample. The Recipient still was not able to provide a sample of breath; he was not blowing hard enough into the mouth piece and he was not forming a good seal with his lips.
10. In his Affidavit, the Recipient stated he tried his best but he could not breathe into the ASD for long enough. The constable kept telling him that he was stopping too early. His counsel’s written submission also indicates the Recipient tried to comply with the demand but was unable to provide sufficient air given the state that he was in.
11. I noted that on his last three attempts, the constable had the Recipient stand up outside the vehicle to deliver them. This suggests that the constable was aware that in some cases a person is unable to deliver a sufficient sample when in a seated position but are able to deliver the breath sample when standing. It could also be corroboration of the Recipient having difficulty in providing a sufficient breath sample.
12. I have considered that the Recipient could have tailored his consumption to suit his specific circumstances stating he did not know whether the low alcoholic beverage would be against his conditions. While the Recipient has not brought any external evidence of his consumption, I do give weight to his sworn Affidavit in this regard.
13. I also considered that the Recipient could have been trying to thwart the ASD. The constable noted that the Recipient was sucking air in through the mouth piece while attempting the first sample. I believe that the Recipient sucking in of air could also have resulted from his incredible nervousness as he was first presented with the instrument. Rather than subsiding, I believe the Recipient’s nervousness would have remained or increased during the next attempts.
14. The police checks corroborated the Recipient’s submission that he was under restrictions of no alcohol. I believe that the Recipient’s fear of going to jail that night was real resulting in his incredible nervousness and an altered breathing pattern.
15. I have determined that the Recipient did have a reasonable excuse for failing to provide a breath sample.

Issue #2: Was the Recipient advised in writing of the right to a roadside appeal under Section 88.11 of the Act?

16. The Recipient was advised in writing of the right to a roadside appeal under Section 88.11 of the Act when he was served with the NAP. While that satisfies the requirement in writing, I believe it is quite common for individuals not to immediately scrutinize any form of ticket when served with one. The constable indicates that he did not provide the Recipient with information on the right to a second test. The reason provided was noted as “failed to provide suitable sample”. I find that the Recipient was not sufficiently made aware of the roadside appeal.