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
Re (Fannin) 2025 ABSRA 2223 – nice decision on a police officer not conducting a second test properly (RA) see paras 19-21.
19. Based on the evidence, it appears the Recipient attempted to provide a breath sample but was unsuccessful. If the Recipient did, in fact, register a “Fail” reading on the first breath sample using the initial ASD, as described by the officer, it is curious that he was unable to provide a suitable sample during the roadside appeal test. This discrepancy further supports Counsel’s argument that the ASD, although properly maintained and calibrated, was not functioning correctly or capable of accepting a sample at that time. Without feedback or a demonstration from the officer on how to provide a suitable sample, it stands to reason that a Recipient may fail to do so despite making a genuine effort.
20. Considering the evidence outlined above, particularly the officer’s inconsistent evidence regarding the outcome of the first ASD test, I find it reasonable to conclude that the Recipient may not have succeeded in providing a breath sample due to the lack of guidance or demonstration. Moreover, without the officer offering a demonstration or submitting a breath sample himself to verify the ASD’s functionality, I am not satisfied that the necessary steps were taken to ensure the device could accept a breath sample. Therefore, I am not satisfied that the issue did not lie with the ASD.
21. In keeping with the Court’s finding in Singh, noted above, and considering that the Recipient was provided at least three attempts to provide a roadside appeal breath sample before the officer concluded the testing, I am not satisfied that the Recipient received meaningful instructions on how to provide a suitable breath sample, nor that he was given a sufficient number of attempts to do so. Furthermore, I am not satisfied that the ASD was capable of accepting a breath sample. While the lack of device reliability alone does not establish the second prong, when considered alongside the officer’s inconsistencies, I am persuaded, on a balance of probabilities, that the ASD was not capable of accepting a breath sample during the roadside appeal testing.
3. Court Watch
R. v. Ouellette 2025 ABCA 340, in this case, the Alberta Court of Appeal decided that a police officer was a passive participant while accompanying a person in an ambulance, and therefore, the information he overheard between the patient and the ambulance attendant did not amount to a search and seizure and was not protected speech. The court reasoned at para 52-53 and 71:
[52]As explained below, we agree that the officer’s presence in the ambulance was that of a passive observer, and that it did not, by itself, engage section 8. Our view of the effect of the officer’s notetaking differs from that of the courts below; we find his taking of notes did not convert his conduct into a seizure of the respondent’s information.
The police officer did not conduct a search or seizure
[53]A review of the relevant considerations and the totality of the circumstances leads us to conclude that the respondent had an objectively reasonable expectation that information being shared with an ambulance attendant during a medical examination for the purpose of receiving medical treatment would be kept private from unreasonable state intrusion. However, in the circumstances of this case there was no such state intrusion, and no search or seizure that would engage the respondent’s section 8 rights.
[54]A police officer’s passive presence when a search is conducted does not constitute a search by that officer: R v M (MR), 1998 CanLII 770 (SCC), [1998] 3 SCR 393 at paras 59-60. Nor does receipt of unsolicited information from a third party, including a medical professional, engage section 8, if the police did not actively elicit or compel the information: R v King, 2021 ABCA 271 at paras 8-9; Spidell at p 9; B(MR) at paras 18, 25. To hold otherwise would cause police to abandon their core duty to investigate allegations of crime: King at para 16.
[71]There was nothing surreptitious or improper here in the officer’s recording in his notebook of the parts of the respondent’s conversation that were relevant to his investigation. That notetaking did not convert what was otherwise the passive receipt of information into a seizure. The respondent’s section 8 rights were not engaged by the officer’s presence in the ambulance to maintain continuity and effect arrest on existing grounds, his passive overhearing of the respondent’s discussion with the ambulance attendant, or his recording of parts of that discussion in his notebook in accordance with his duty to keep accurate notes.
4. Lawyer’s Corner
I am concerned with the reasoning in R. v. Ouelette above. The SCC, in the context of a different right (section 10(b) and the right to silence), said this in R. v. Taylor 2014 SCC 50 at para 40:
Moreover, the impact of the breach on Mr. Taylor’s Charter-protected interests was serious. Arrested individuals in need of medical care who have requested access to counsel should not be confronted with a Hobson’s choice between a frank and open discussion with medical professionals about their medical circumstances and treatment, and exercising their constitutional right to silence. The police placed Mr. Taylor’s medical interests in direct tension with his constitutional rights. His legal vulnerability was significant, and, correspondingly, so was his need for his requested assistance from counsel.
From a practical point of view, as a trial lawyer, it is important to move the police officer
Out of the category of “passive observer”. Did the police officer need to be in the ambulance? Why? Did the police officer have permission from the ambulance attendees to be in the ambulance? Did he ask? Did they say yes? Was he continuing his investigation while in the ambulance? Was he alive to the possibility that questions would be asked that may assist him in his investigation?
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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