Legal Insights, Case Trends & Updates from Ziv Law Group
Brett Leon Van Damme, B.A., J.D
May 1, 2026
This Week’s Highlights
- Officers holding a Recipient in custody for over 10 hours for an impaired driving investigation, absent evidence providing an explanation for the hold, will rise to the level of egregious unfairness to the Recipient.
- Where a Recipient is provided their 10(b) right to counsel and it is invoked, officers should explain that the right is briefly suspended during an administrative impaired investigation, and that the ASD results cannot be used criminally against the Recipient.
1. NAP Review
C00455825A Stern
Stern concerns the review of a NAP in which Charter concerns are present. While Adjudicators are not authorized to find Charter breaches or grant Charter remedies, they may consider Charter arguments under grounds to cancel a NAP and under the overarching duty of fairness.
Facts
On March 21, 2026 around 10:49 pm, Cst. Nickerson, an RCMP officer, conducted a traffic stop on the Recipient driving on highway 2, at or near Blackfalds, Alberta. The stop resulted in Cst. Nickerson issuing a NAP on the Recipient under 88.1(1)(e) of the Traffic Safety Act (‘TSA’) for refusing or failing to blow while knowing a demand had been made.
Counsel for the Recipient argued that the Recipient suffered egregious unfairness in the investigation due to police error or misconduct. The particular instances of unfairness alleged are:
- The breath demand given to the Recipient was unlawful;
- The police in this case were unjustified with the use of excessive force when they tasered the Recipient; and
- The overholding of the Recipient in police custody for a prolonged period of time without clear indication as to why it was necessary;
The Recipient submits that he was arrested and placed in the police vehicle around 10:30pm, read his rights and was advised that he had the right to speak with a lawyer, which the Recipient indicated he understood. The Recipient invoked their right to counsel but was not provided an opportunity to speak to counsel, instead being required to wait in the police vehicle for a prolonged period of time. When the Recipient was informed he was being charged criminally, he reiterated his request to speak to counsel and asked for his phone so he could contact a lawyer. After 30 minutes of waiting in the vehicle without being given an opportunity to speak to a lawyer, the Recipient became frustrated, but chose not to say or do anything that could be used against him until he was able to speak to a lawyer. This was in direct connection to the police informing him of his right to silence and that anything he says or does could be used against him.
However, his next interaction with the police officer was a request for the Recipient to blow into an ASD. The Recipient was of the view that the request was contrary to what police told him about his right to silence and waiting to speak to a lawyer. The Recipient was transported to the RCMP detachment, but still was not afforded an opportunity to contact a lawyer. Instead, the Recipient was placed in a cell and was unable to call a lawyer until he was finally released from the cell in the morning. This was approximately 10+ hours after the initial invocation of the Recipient’s right to counsel.
After reviewing the police evidence, the Recipient notes that no one ever mentioned impairment to him and if he was so impaired, why not just give him a NAP or criminal charges solely for impairment? The Recipient also explained that Counsel informed them that, when police investigate properly, the right to contact a lawyer may briefly be suspended and the results of the ASD cannot be criminally used as proof against an individual. The Recipient provides that this was the first time he ever heard this information, and that the officer never advised him that his right to counsel was suspended, nor how the results of the ASD test would be used. The Recipient was thoroughly confused by first being told he had the right to call a lawyer and the right to remain silent, and then subsequently have a breath demand requested.
Ruling
With regards to the unlawful breath demand, the Adjudicator found that the situation was not adequately explained to the Recipient and he was not provided with a meaningful implementation of his 10(b) rights prior to being asked to submit to the breath sample, contradictory to Charter values. (Para 31)
With respect to the overholding issue, the Adjudicator found that the officer’s notes do not indicate when the Recipient was transported to the detachment nor when the Recipient was placed in cells. As such, given the evidence provided by the Recipient with no evidence to the contrary, the Adjudicator accepted the Recipient’s claim that he was held in police custody for roughly 10+ hours.Furthermore, the Recipient never provided a breath sample into an ASD or any other device, meaning there was no scientific evidence before the Adjudicator that the Recipient was impaired to drive. Rather, the determination of impairment was based on the officer’s subjective belief. (Para 21)
The Adjudicator found that the pieces of evidence provided by Cst. Nickerson, including alcohol scented burps, a bottle of alcohol being found in the vehicle, albeit without detailing where in the vehicle it was or whether it was open, and the Recipient’s difficult behaviour, to be incapable of establishing impairment on their own. Additionally, the Recipient provided evidence that the bottle of alcohol was located out of his reach and that he had not consumed anything from it, and there was no evidence to refute these claims. (para 23)
The Adjudicator found the police evidence with regards to the Recipient’s level of intoxication to be vague and limited. They found that the evidence provided fails to support the Recipient’s intoxication that required sobering up before release and that they were so intoxicated that it warranted a 10+ hour detention. Had there been additional police evidence indicating why the 10+ hour hold was necessary, then it may have been warranted. But without that evidence before them, the Adjudicator could not find the hold to be consistent with routine impaired driving investigations. (para 35)
The Adjudicator considered the totality of the circumstances and found that the investigation did not align with Charter values, and that the police conduct in this instance rose to a level of egregious unfairness to the Recipient. As such, the NAP was cancelled for egregious unfairness.
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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