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
A) Alert: Section 2.1 of Alta Reg 224/2020 has been extended for another year—new expiry date July 31, 2026.
B) Remember while legislation may prevail over the common law, “it must be presumed that a legislature does not intend to change existing common law rules in the absence of a clear provision to that effect” (Basque, at para. 40, quoting Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521, at para. 56)
2. SafeRoads Alberta Review
McNalley v Alberta (Director of SafeRoads), 2025 ABCA 283 (CanLII)
The Court had rejected a previous appeal of a chambers judge’s dismissal of an application for judicial review. The applicant sought review of an adjudicator’s rejection of an application to squash a NAP: https://canlii.ca/t/kb3v9. The NAP was issued based in part on the appellant’s refusal to provide a breath sample upon demand without a reasonable excuse. The Appellant’s argument that the demand was made in circumstances inconsistent with the Charter and which gave her a reasonable excuse for not complying. The court rejected this argument, relying in part on the suspension of the right to counsel when a demand for a breath sample is made.
The applicant sought to reopen the appeal on the basis that the Court was presented with incorrect facts, namely that the demand was made under the wrong Code section. However, a formal judgment was entered on the matter during the time between the original appeal and the application to reopen. As such, the court cannot reopen and reargue; the court is functus officio per R v Ouelette, 2022 ABCA 301 at para 23. The court further provided that upon review of the record, the court was satisfied that counsel did not provide incorrect information about applicable Code provisions.
3. Court Watch
Thompson v Alberta (Director of Saferoads), 2025 ABCA 262 (CanLII)
This case concerned an applicant who was issued a NAP for impaired driving. The applicant had it reviewed before a SafeRoads adjudicator, who confirmed the NAP. The applicant then sought a stay of enforcement of the NAP pending further appeal. The court confirmed that the test for a stay pending appeal is from RJR MacDonald Inc v Canada (Attorney General), 1994 CanLII 117 (SCC) and requires the applicant to demonstrate:
- 1. That there is a serious question to be tried;
- 2. The applicant will suffer irreparable harm if the stay is not granted; and
- 3. The balance of convenience favours granting the stay.
The balance of convenience is concerned with which party would suffer greater harm from the granting or refusal of the stay pending the appeal outcome. In this case, the courts balanced the harm caused personally to the applicant against the public interest concerns of substantial risks and societal harm linked to impaired driving.
In this case, the court looked at whether the applicant took reasonable steps to mitigate the risk to the public. Considerations of this type include enrolling in the IMPACT program and installing an interlock device in the vehicle, steps which would allow the applicant to apply to the Registrar to set aside her suspension. Given that these steps were not taken by the applicant, the courts found that the applicant failed to demonstrate on the balance of convenience that a stay is warranted.
In short, should an applicant seek a stay of a NAP, be aware that the balance of convenience will require an applicant to have taken measures to mitigate the risk to the public. These measures may allow an applicant to have their suspension set aside without having to apply for a stay pending appeal.
4. Lawyer’s Corner
Traffic Safety Act NAPs do not apply to motorboats. The Traffic Safety Act defines a vehicle as “a device in, on or by which a person or thing may be transported or drawn on a highway.” A highway is defined as “any thoroughfare, street, road, trial, avenue, parkway, driveway, viaduct, lane, alley, square, bridge, causeway, trastleway or other place or any part of them that the public is ordinarily entitled or permitted to use for the passage or parking of vehicles.” The Traffic Safety Act definition of vehicle differs from the Criminal Code definition for a conveyance, which is defined as “a motor vehicle, a vessel, an aircraft or railway equipment.” So while a motorboat would be considered a conveyance for offences under the Criminal Code, it would not be considered a vehicle under the Traffic Safety Act. As such, the Traffic Safety Act provisions concerned with NAPs do not apply to motorboats, as a motorboat does not meet the definition of a vehicle under the Traffic Safety Act. This is in contrast to Criminal Code offences related to the operation of a conveyance, in which motorboats would fall within the definition of a conveyance.
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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Rory Ziv and Ziv Law Group are Alberta’s trusted impaired driving lawyers, focused on defending Immediate Roadside Sanctions (IRS) and criminal impaired charges across the province. Known for their deep understanding of both administrative and criminal impaired driving law, they deliver rigorous defence strategies and timely appeal filings.