Legal Insights, Case Trends & Updates from Rory Ziv
Rory Ziv, B.A. (hons), L.L.B., L.L.M.
April 28, 2026
This Week’s Highlights
- Where a parallel criminal investigation is taking place alongside an administrative investigation, officers should take care to delineate the two investigations to ensure the Recipient is aware of the administrative investigation. Failure to do so may detract from a Recipient’s awareness of the right to a roadside appeal. (see para 32)
- Where a NAP is cancelled and replaced with a corrected NAP, the cancelled NAP must be provided in evidence to determine its contents and whether the reading of the NAP could have given the Recipient awareness of the right to a roadside appeal. (see para 29)
- Although not considered, the Recipient also argued for the NAP to be cancelled under the ground of not being provided full records, which appears to have been a strong argument as well.
1. NAP Review
C00439202A Hanson
Hanson concerns the review of a NAP issued on two grounds, for ‘impaired operation’ under 88.1(1)(a) of the Traffic Safety Act (TSA) and another for ‘BAC-Over’ under 88.1(1)(b) of the TSA. This matter involved a parallel criminal investigation taking place alongside the administrative investigation that impacted the Recipient’s awareness of the right to a roadside appeal.
Facts
On January 25, 2026 around 7:00 pm, Cst. Savage of the Alberta Sheriffs Branch conducted a traffic stop on the Recipient’s vehicle on Highway 2 near Innisfail, Alberta. The ensuing investigation resulted in Cst. Savage serving the Recipient with a NAP on the grounds of ‘impaired driving’ and ‘BAC-Over’.
The Officer’s Evidence
Cst. Savage’s evidence provided that he was driving southbound on Highway 2 and the Recipient’s vehicle passed his unmarked patrol vehicle and his radar captured a speed reading of 152 km/h, well above the posted limit. As such, he conducted a traffic stop and read a mandatory alcohol screening demand to the Recipient, who blew a “Fail” on his third blow into the ASD. Cst. Savage proceeded with criminal charges due to the presence of a child inside the vehicle. The Recipient was advised of his Charter rights and transported to the police station where he was put in the phone room to contact counsel. After speaking to counsel, the Recipient was brought before a breath technician and successfully provided two breath samples into the approved instrument.
After this, Cst. Savage stated that “all documents (NAP, vehicle seizure notice, RSA appeal notice) read to driver in full. Process explained. Driver opted to proceed with the voluntary IRS/roadside appeal.” The roadside appeal was carried out on a handheld ASH and the Recipient’s breath sample resulted in a ‘Fail’ reading.
The following day, Cst. Savage’s supervisor advised him to cancel the NAP and re-issue the contravention to the Recipient with “corrected information”. Cst. Savage’s supplementary report indicates the measures taken to serve the amended NAP.
The Recipient’s Evidence
The Recipient agreed that they provided an initial “Fail” result at roadside and taken back to the police station. The Recipient was under the belief they were being criminally charged due to being advised of his Charter rights and so he asked to speak to a lawyer. The Recipient stated that he was unaware that there was a dual investigation proceeding because he had no prior knowledge of the IRS program and had never heard of a NAP before.
The Recipient also agrees that he was brought before the breath technician and provided a breath sample into the approved instrument. Afterwards, he was brought back to his cell and retrieved a short time later by Cst. Savage, who brought him to a countertop where the Recipient observed a single piece of paper. The Recipient was close to the paper but the writing was too small for it to be legible from his position. A short time later, the Recipient was brought to the approved instrument again for a second breath sample. After providing the second sample, the Recipient was led back to the counter and the Sheriff had another piece of paper and asked if the Recipient wanted to “appeal the earlier test”. The Recipient observed numerous Xs on the paper indicating where he was to sign/print his name and indicate the date. He did so, and as such elected to proceed with the roadside appeal. Cst. Savage produced a handheld ASD similar to the one used at roadside and the Recipient provided a breath sample, resulting in another “Fail” reading.
Notably, the Recipient stated that when they signed the form, they had no idea it was related to the earlier document he was provided between evidentiary breath samples or that it did not form part of the criminal investigation. The Recipient at this stage was still unaware that there were two investigations occurring simultaneously.
Ruling
The Adjudicator considered recent ABCA decisions in which advice in writing cannot be achieved without an officer orally canvassing the issue of the roadside appeal, and that awareness cannot be achieved without an officer “issuing the NAP, which contains written information about the right to a roadside appeal”. The Adjudicator found that the ABCA decision of Lawrence took the focus off of the form of the advice and instead requires a consideration of all the evidence that the advice provided by the officer in its entirety, both written and oral, was effective in bringing awareness of the right to a second test so that a Recipient has the ability to make a voluntary and informed choice. (See paras 10 & 11)
The Adjudicator found that Lawrence placed an onus on law enforcement to ensure they employ adequate measures to ensure Recipients are made aware of the right to a roadside appeal. Lawrence places a particular focus on the NAP itself and whether the Recipient is aware of it and the associated penalties as to make an informed choice regarding the roadside appeal.
With regards to the matter before them, the Adjudicator found that Cst. Savage’s evidence regarding written advice was limited to “all documents (NAP, vehicle seizure notice, RSA appeal notice) read to driver in full. Process explained.” The Adjudicator took the word read to indicate that the Recipient was never provided a copy of the NAP and the words process explained to further indicate the Recipient was not provided with the documents. (See para 21)
The Adjudicator took into consideration that the Recipient was unable to read the initial document on the countertop and that Cst. Savage’s evidence never indicated when he provided written advice of the NAP at the relevant time. Given that the Recipient was not able to determine whether the document before them at the time was the NAP, the Adjudicator found that the Recipient had not received written advice at the relevant time. As such, the question then became whether Cst. Savage had explained the contents of the NAP to the Recipient before they made a decision on the roadside appeal. (See para 25)
The Adjudicator accepted that the Recipient had the “appeal notice” read to them. That being said, that document is missing key pieces of information that can only be ascertained from the NAP itself, such as contravention details and the associated penalty. The Court in Van der Meulun found that the minimum requirements for a Recipient to achieve such awareness of the right to a roadside appeal is to be provided with the contravention information and penalties from the NAP.
As such, we run into a particular problem with this case. Given that Cst. Savage indicated he read all documents to the driver in full, it is necessary to know what the NAP initially issued to the Recipient contained. There is no indication as to why the original NAP was seen as deficient. Given that the original NAP is not in the evidentiary record, the Adjudicator was unable to find that the Recipient was aware of the right to a roadside appeal. (See para 29)
The Adjudicator also discussed concurrently running a criminal investigation alongside an administrative one. While law enforcement is allowed to conduct parallel investigations, when doing so they must ensure that Recipients are aware that the roadside appeal is strictly for the administrative investigation. The Adjudicator was uncertain whether the Recipient was aware of where the line was drawn between the two investigations. (see para 32)
The Adjudicator found that having the Recipient provide the two breath samples for the criminal investigation in between the initial ASD and roadside appeal further obscured and undermined the Recipient’s awareness of his right to a roadside appeal.
The Adjudicator considered all this and found on a balance of probabilities that the Recipient was not advised in writing of his right to a roadside appeal under Section 88.11 of the TSA and the Recipient was unaware of that right. Given that the Recipient had established a ground to cancel the NAP under Sections 4(e)(v) and 4(f)(viii) of the Regulation, which both provide that the officer did not notify the recipient in writing of the right to a roadside appeal and the recipient was unaware of the right, the Adjudicator cancelled the NAP. (See para 37)
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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