This Week’s Highlights
- Reasonable Excuse to Provide a Breath Sample
1. NAP Review
When you are stopped at the roadside and asked to provide a breath sample into an approved screening instrument, your right to counsel is typically suspended.
What happens when there is a dual criminal code and an impaired driving investigation? This is where things sometimes can become very confusing for a driver who is asked to provide a breath sample and also told he has the right to counsel. If a driver’s legal obligations are explained clearly to him/her and they are left confused, they may have a reasonable excuse for failing to comply with a breath sample.
The Alberta Court of Appeal McNalley v Director 2025 ABCA 98 at para 14 said:
We accept the possibility that a person who is told of their right to counsel prior to a demand being made could become confused or uncertain about their obligation to comply such that they may be able to demonstrate they had a reasonable excuse for non-compliance. This was the case, for example, in the “peculiar circumstances” of R v Boutin, 2010 SKPC 68 [Boutin], where the accused had been stopped at the roadside for nearly an hour and arrested on an outstanding warrant prior to the demand being made: Boutin at paras 47-48. That is, even if a person cannot establish an objective legal excuse for not complying they may, in exceptional circumstances, be able to establish that their subjective belief and understanding gave them a reasonable excuse for not complying …
Application of this principle is demonstrated in two recent decisions (one of them is unpublished as of yet). In Gill (Re) 2025 ABSRA 2290 (Canlii) at paras 31 and 33, the following is on point.
Where a recipient elects to exercise her right to counsel, officers are expected to refrain from eliciting further evidence or compelling a recipient to comply with the demand prior to exercising that right to counsel. While I acknowledge the Recipient was granted access to counsel before the DRE demand was made, the evidence supports that the Recipient was not able to get a lawyer’s advice at the time and was waiting for her lawyer to call back with some advice. More importantly, the Recipient relayed this information to the police. In this case, it is not disputed that the officer and the Recipient talked about her right to counsel nor is it disputed that Cst. Anwar told her a DRE refusal was criminal. However, the evidence indicates that after the Recipient could not get hold of a lawyer, she was pushed about the DRE demand. The Recipient was placed in an untenable position to decide regarding the DRE demand and her options were to either ignore the advice she received about not doing anything until getting legal advice and do the DRE or she could not do the DRE, as suggested by the advice, and then be charged criminally as told to her by Cst. Prokusheva. I find that a reasonable person in similar circumstances would refuse or fail to comply with the demand on a balance of probabilities especially given that the Recipient explained her dilemma to the officers regarding obtaining legal advice for the DRE.
Considering the totality of evidence, I find it reasonable that the Recipient refused to comply with the demand because she was yet to get advice from her lawyer. I also find it reasonable that the Recipient believed she was appealing the DRE refusal and not the NAP for Impaired Operation given her lack of knowledge that her SFST failure resulted in new NAP for Impaired Operation. Additionally, the Recipient had few choices and none of them were satisfactory, but she was pressed to decide on the DRE demand despite telling the police her lawyer would be calling back and she elected not to comply as informed by the female who spoke to her initially on the phone. Premised on the above and considering the totality of the evidence before me, I am satisfied that a reasonable person in similar circumstance as the Recipient would fail or refuse to comply with the DRE demand.
Likewise, see para 14 of a December 10, 2025 decision (Re) Gould, C0041500A:
I find the Recipient’s affidavit to be quite thorough and believable regarding not knowing that the demand for a breath sample was unrelated to the criminal charges he was facing. While this distinction may be clear to the police officer, or myself as an adjudicator, I accept in some cases an average Albertan would not understand his right to counsel is suspended during an ASD demand, especially when the person only knows about the criminal charges he was facing and provided his Charter rights just minutes earlier. While Cst. Figueira notes in her report that she explained the NAP and that it was a provincial sanction and not a criminal charge, the fact of the matter is that the Recipient continued to be held in custody for criminal matters and I can see how an average Albertan would not know the distinction here. Had Cst. Figueira, or any other officer, explained to the Recipient as to why an ASD demand was being made at the time, and that his right to counsel is suspended for that component of the investigation, I may have found differently. However, Cst. Figueira’s report is fairly scant and I do not infer the Recipient was fully aware of the distinction when he ultimately refused to comply with a breath demand while facing two criminal charges.
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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