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
MacDonald (Re), 2025 ABSRA 2271 – nice decision on the necessity of written notice to a roadside appeal and being provided the correct documents by police. The court could not determine if the Recipient was made aware of the contravention she faced or whether she understood the roadside appeal was a voluntary chance to appeal the NAP. see 16-18.
16. As part of my analysis, I must determine whether the Recipient was issued the NAP, which contains the written advice of her right to a roadside appeal at the relevant time, which is before she declined the roadside appeal. The police evidence indicates Cst. Duval served the IRS paperwork on the Recipient and then informed her of her right to a roadside appeal before she declined the roadside appeal. However, Cst. Duval states he later discovered the forms he served the Recipient were on incorrect forms that were no longer valid, and he later served the Recipient the correct IRS paperwork. I interpret the IRS paperwork Cst. Duval is referring to in his reports means a NAP and its associated documents. While the Recipient states she was not issued the NAP, she indicates she attempted logging into the system (APIS) to find her penalty, but could not find anything. Based on my experience as a SafeRoads Alberta adjudicator, I know a NAP has the contravention number written on it, and that contravention number is what is used to log into APIS to find any information regarding a contravention. As such, on balance, I find the Recipient was issued a paper NAP at the roadside.
17. Nevertheless, considering Cst. Duval states he issued the incorrect form, I question if the Recipient was issued the correct NAP, which contained the correct penalties the Recipient was facing. The police evidence does not indicate the initial incorrect documents the Recipient was served. As such, I question whether the Recipient was served an IRS Fail, IRS-Warn, or IRS: 24-Hour etc. I note a NAP contains the specific contravention and penalties a recipient faces. Further, I note that since the creation of the IRS regime, there have been different variations of NAPs. As such, I am unable to speculate the contents of the NAP served on the Recipient and whether it clearly listed the correct contravention and penalties she was facing. As such, considering the police evidence does not indicate the type of NAP and paperwork (which Cst. Duval says is invalid) the Recipient was served at the roadside, or that Cst. Duval verbally explained the correct contravention or penalties the Recipient was facing, on balance, I am unable to determine that the Recipient was issued the written advice of her right to a roadside appeal of the NAP at the relevant time. Therefore, based on the evidence and on a balance of probabilities, I find the Recipient was not issued the written advice of her right to a roadside appeal at the relevant time.
18. Next, the police evidence only indicates Cst. Duval informed the Recipient that she had the right to a roadside appeal and to provide another sample of her breath. As there is no positive evidence that the Recipient was issued the correct written advice of her right to a roadside appeal, or provided the correct contravention or penalties she was facing, I question how she would know what she was appealing. Considering the decisions in Lausen and Van der Meulen[5], at a minimum, I find the Recipient should have been aware that the roadside appeal was a voluntary opportunity to appeal or challenge the contravention she was facing before she declined the roadside appeal. The Court in Van der Meulen held that, “It follows from the statutory interpretation undertaken in Lausen that to achieve awareness of the right to voluntarily undergo an appeal of the NAP, the driver must be aware that the officer has formed the grounds to issue a NAP, the nature of the immediate penalties, and the further administrative and criminal sanctions and penalties that may flow”. In this case, in addition to not being issued the correct NAP at the relevant time, I am unable to determine the Recipient was made aware of the contravention she was facing and the penalties associated with the NAP, and that the roadside appeal was a voluntary opportunity to appeal the NAP before she declined the roadside appeal.
3. Court Watch
R v Liu – 2025 ONCJ 556 – A Charter application connected to a Criminal Code s. 320.15 failure to provide a breath sample charge.
The matter began with a traffic stop for unauthorized license plates, but resulted in Mr. Liu being charged with failing to provide a breath sample. The defence alleged Charter breaches of s. 8, s. 9 and s. 10(b) of the Charter.
In consideration of the s. 8 breach, the court found that needlessly opening a car door at a roadside stop will result in a breach of Section 8.
[23] The Crown concedes that PC Lau, by opening the SUV’s driver’s-side front door and visually inspecting its interior, conducted a search. Section 8 of the Charter provides a right against unreasonable search and seizure. A search, for the purposes of s. 8 of the Charter, occurs when the state interferes with a reasonable expectation of privacy. Mr. Liu, as the driver of the SUV, had a reasonable expectation of privacy in it: R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341, at para. 19. PC Lau interfered with Mr. Liu’s reasonable expectation of privacy by opening the door and inspecting the interior.
[24] A warrantless search is presumptively unreasonable and an infringement of s. 8, unless the Crown establishes that the search was authorized by law, the authorizing law is reasonable, and the search was conducted in a reasonable manner: R. v. Tim, 2022 SCC 12, at paras. 45-46.
[26] I am satisfied that opening the door was not reasonably necessary for PC Lau to carry out his duties. PC Lau testified that he opened the SUV’s door to get the key to prevent Mr. Liu from attempting to drive away. He could have secured the key without opening the door. He was speaking to Mr. Liu at close proximity through an open window. In cross-examination, he agreed nothing would have prevented him from reaching through the open window rather than opening the door. Further, the evidence does not allow me to conclude that the key was still inside the SUV when PC Lau opened its door. On the in-car camera, PC Lau asked for the keys within seconds of beginning to speak to Mr. Liu. PC Lau also testified in chief and in cross-examination that Mr. Liu complied and handed over his key in response to PC Lau’s demand.
[27] Opening the door was not reasonably necessary. The search was not authorized at common law. By opening the car door and visually inspecting the interior, PC Lau breached Mr. Liu’s s. 8 Charter right.
As for the s. 9 breach, the court determined there was a failure to take steps to convert the officer’s suspicion into reasonable grounds or provide the suspicion to be unfounded. Absent these steps, there weren’t grounds for an arrest, and section 9 was found to be infringed.
[31] Section 12(1)(d) of the Highway Traffic Act, R.S.O. 1990, c. H.8, makes it an offence to use “a number plate upon a vehicle other than a number plate authorized for use on that vehicle”. I am satisfied that PC Lau did not have reasonable and probable grounds to arrest Mr. Liu for this offence. He explained that he decided to arrest Mr. Liu based on two factors: first, the plates were supposed to be on a brown Porsche SUV but were on a white Porsche SUV; and second, Mr. Liu’s conduct in response to requests for his documentation was suspicious.
[35] Although police contemplating an arrest are not obliged to investigate further when presented with an exculpatory explanation, if they lack grounds, further investigation may be the only practical way forward. There was an obvious step for PC Lau to take that would have either converted the suspicion into reasonable grounds or demonstrated it was unfounded. Shortly after the arrest, PC Lau checked the VIN on Mr. Liu’s SUV and compared it to the VIN for the licensed SUV, and learned that the white SUV and the brown SUV were one and the same.
[36] In the absence of grounds, the arrest was unlawful, and infringed Mr. Liu’s s. 9 right against arbitrary detention: R. v. Grant, 2009 SCC 32, at paras. 55-57.
It was also determined by the court that Mr. Liu wished to exercise his right to counsel and the Crown failed to justify a nearly two-hour delay in exercising that right on the basis that access to counsel was not realistically possible. This resulted in a section 10(b) infringement.
[39] At 12:21 a.m., after police arrested Mr. Liu for unauthorized plates and the controlled substances, they read him his right to counsel. He said he wished to speak to a lawyer. A few minutes later, sometime between 12:29 a.m. and 12:35 a.m., PC Chang read him his right to counsel and asked him if he wished to call a lawyer. Mr. Liu said he did, and that he wished to call his friend to get his lawyer’s number. PC Chang also read Mr. Liu the ASD demand during this interaction. At this time, while the demand was outstanding, Mr. Liu’s s. 10(b) right was suspended. Police did not need to read Mr. Liu his right to counsel in relation to any of the charges. But they did so, and learned that Mr. Liu wished to exercise his right.
[40] Sometime between 12:38 a.m. and 12:40 a.m., PC Chang advised Mr. Liu that PC Lau and PC Velema would be charging him with refusal and that they would be completing his release documents. I am satisfied that at that point, the suspension of the right to counsel concluded. It appears that no one re-read Mr. Liu his right to counsel after the decision had been made to charge him. For the next one hour and 50 minutes, until 2:28 a.m. when PC Lau released Mr. Liu from the roadside, Mr. Liu was never given access to counsel. PC Lau agreed that at no point did he attempt to facilitate access.
[41] Officers decided to release Mr. Liu at the scene and to forego facilitating access to counsel. Mr. Liu cannot be seen as having implicitly agreed to this approach. At 12:40 a.m., PC Chang told Mr. Liu, “if you insist on talking to your lawyer, we’re going to have to take you back to the station”. At 12:42 a.m., PC Lau said, “I’m going to let you go […] as soon as possible, so I’m going to give you some paperwork, okay? So you can, you can call your lawyer after, okay? Okay?” PC Lau then tried to encourage Mr. Liu to provide a sample. Mr. Liu indicated he wanted a lawyer. PC Lau then said, “You want your lawyer now?” and Mr. Liu began complaining about how he was being treated. A few minutes later, at 12:46 a.m., PC Lau advised Mr. Liu, “[s]o right now, my plan is to release you right away. You can call your lawyer after. Ok? I want to let you go right here.”
[42] Mr. Liu asked to speak to a lawyer. He was entitled to do so. The Crown bears the burden of justifying the nearly-two-hour delay on the basis that access in that time was not realistically possible. The Crown has not discharged this burden. On PC Lau’s evidence, the station was only minutes away, and, if Mr. Liu had been booked at the station, he would have accessed counsel within 30-to-60 minutes. Instead, he was held at the roadside without counsel for one hour and 50 minutes. The delay occurred because officers had decided to release Mr. Liu at the roadside rather than provide access to counsel. They wrongly saw this as a binary choice that was theirs to make. Their preference to release Mr. Liu from the scene could not supersede their constitutional obligation to implement Mr. Liu’s right to consult counsel, and to do so without delay.
As a result of these three breaches, the court found that both excision and exclusion of any impugned evidence would result in the same outcome, that being that the charge must be dismissed.
4. Lawyer’s Corner
Here’s a tip courtesy of 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 analyzed. 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 analyzed, 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 analyzed. The only person who would have this information (whether the blood results have been analyzed) is the police.
Therefore, if they have not been analyzed, 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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