This Week’s Highlights
- Legislative Scheme and Important Precedent-Setting Cases
- SafeRoads Alberta: Appeal outcomes & procedural trends
- Court Watch: Noteworthy Alberta court rulings
- Lawyer’s Corner: Practical tips & legal strategies
1. Legislative Scheme
Section 2(h) of the Saferoads Regulations should be used to challenge the non-disclosure of the existence of a relevant record. See the argument below under the lawyer’s corner.
2. SafeRoads Alberta Review
Section 2(g) Alta Reg 224/2020 requires a copy of the results of the blood analyses if blood is taken.. Safe Roads cases hold that if blood samples are taken by implication, taken for analyses, and therefore must be disclosed (Ly (Re) 2022 ABSRA 47 paras 6-8, Penderson (Re) 2023 ABSRA 2440 para 12, and Amini (Re) 2025 ABSRA 336).
3. Court Watch
R v Al Jarrah Alberta Kings Bench docket 230717019p1
Reasonable Excuse – Burden on the Crown to prove beyond a reasonable doubt.
This case concerned itself with a Criminal Code 320.16 Hit & Run offence. The issue we are concerned with is who bears the burden of proof and what that burden should be.
The justice in this case adopted the decision of Justice Peterson in R v Refaeh, 2024 ONSC 755. In doing so, she provided:
I find the same conclusion that Justice Peterson found in that one, which is that all Mr Al-Jarrah has to do in the first instance is establish an air of reality to the defence, and the Crown bears the burden of proving beyond a reasonable doubt that no reasonable excuse exists. It is an essential element of the offence on the basis of the presumption of innocence and Charter values, and I am not going to repeat everything she said in here. It was a very well-written decision. I just simply adopt her reasoning wholeheartedly.
4. Lawyer’s Corner
Here’s a tip courtesy from Rory Ziv
If you are arguing that the blood results taken from a client have not been disclosed pursuant to section 2 (h) of the Saferoads Regulation, argue in the alternative, section 2(g) that the Director must advise you if a sample taken for analysis has or has not been analysed. I enclose a copy of my argument on this point.
Technically, a counterargument could be made that results only need to be provided if they have been analysed, but this is not what the Saferoad cases above say, and more importantly, there is nothing on the record to suggest they have not been analysed. The only person who would have this information (whether the blood results have been analysed) is the police.
Therefore, if they have not been analysed, the police are at least required to provide this information to the Director under section 2(h) (any other relevant records) of the Alta Reg 224/2020.
Authority for this proposition is found in Smith v Director ABKB 435 at para 83, where police were required to advise if a video did exist (video disclosure is legislatively suspended at the moment), but the principle is the same. It is only the police who know, or can know, whether relevant evidence exists or does not exist (like blood results), and this fact must be disclosed. See also Gordey v Director 2023 ABKB 228 at para 51, where the existence or nonexistence of relevant notes must be disclosed.
Likewise, so must the existence or nonexistence of blood results.
Bonus Resources
- SafeRoads Alberta Portal: https://saferoads.alberta.ca
- Alberta Government – Impaired Driving Laws: https://www.alberta.ca/impaired-driving
- CanLII: Key Impaired Driving Cases in Alberta: https://www.canlii.org
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