Legal Insights, Case Trends & Updates from Rory Ziv
Rory Ziv, B.A. (hons), L.L.B., L.L.M.
March 20, 2026
This Week’s Highlights
- Indicia of impairment is generally looked at in totality, and plausibly reasonable explanations for appearing intoxicated can establish that a Recipient’s ability to operate a motor vehicle was not impaired by a drug.
1. NAP Review
Benwell (Re), 2026 ABSRA 398 (CanLII)
Matter
Facts
On August 14, 2023 around 10:35 pm, Cst. Metz of the RCMP initiated a traffic stop at Highway 35 near High Level, Alberta. This traffic stop resulted in Cst. Metz issuing a NAP to the Recipient for impaired operation.
Cst. Metz’s evidence is that he observed the Recipient’s vehicle turn south onto Highway 35 without its lights turned on, so he activated his emergency lights and the vehicle pulled over at approximately five seconds. When speaking to the Recipient, Cst. Metz noted they were mumbling their words, slow to respond to questions and had bloodshot, irritated eyes. Cst. Metz also smelled the odour of burnt cannabis emanating from the vehicle. These observations led Cst. Metz to form a reasonable suspicion that the Recipient was operating a vehicle with a drug in her body. As a result, Cst. Metz conducted a ‘Standard Field Sobriety Test’ (SFST) which the Recipient failed.
At this point Cst. Metz arrested the Recipient for impaired operation and the Recipient subsequently failed a Drug Recognition Evaluation (DRE), with Cst. Metz identifying cannabis as the impairing drugs. Cst. Metz read the Recipient a urine demand which the Recipient complied with, and which confirmed the presence of cannabis in the urine.
The Recipient argued that her ability to operate the vehicle was not impaired because the evidence failed to establish that the Recipient consumed any substance into their body in a quantity so as to impact their physical or mental ability at the time of driving. The Recipient acknowledged that they had consumed cannabis prior in the day but was not impaired at the time of driving.
With regards to the bloodshot eyes, the Recipient provided that they were exposed to wildfire smoke and was wearing contact lenses and that these, along with stress and fatigue, are well known causes of eye redness and irritation.
With regards to failing the SFST, the Recipient provided that she had suffered an acute leg injury earlier in the day and was under significant stress related to the emergency wildfire evacuation. The Recipient provided that these limitations were never documented or accounted for and that balance-based and divided attention observations are consistent with pain, instability, fatigue, and stress responses and that these limitations provide a reasonable alternative explanation for Cst. Metz’s observations.
The Recipient also argued that the presence of cannabis does not establish impairment. This is because THC is fat soluble and can still be detected after psychoactive effects have ceded. The Recipient further submitted that the odour of cannabis may justify investigation but cannot establish dosage, timing, or impairment.
The Recipient also relied on the objective findings of the DRE, which documented that her physiological indicators were largely normal, including pupil size under various lighting conditions, body temperature and heart rate. The Recipient provided that the evidence does not establish a causal link between cannabis and any alleged impairment, and that there were alternative, non-impairing explanations to reasonably account for the observed behaviours.
Ruling
The Adjudicator found the Recipient’s explanation for their bloodshot eyes to be plausible. The Recipient provided a memorandum from the date confirming a state of local emergency had been declared and provided a prescription for their contact lenses. The Adjudicator accepted that contact lens use, combined with wildfire smoke exposure could reasonably account for the Recipient’s irritated, bloodshot eyes.
Turning to the DRE & SFST results, the Adjudicator found that the Recipient’s reported physical condition provided a reasonable explanation for the balance issues in both tests. The Adjudicator also found that the stressful evacuation most likely caused the observed coordination and divided attention issues.
The Recipient’s driving pattern was not a concern for the Adjudicator. While driving without lights is a concern, the Recipient pulled over approximately five seconds after the activation of emergency lights. The Adjudicator found that this brief delay does not demonstrate impairment and that there is no further evidence of erratic driving beyond the light issues. While the recipient hadn’t provided an explanation for why they were ‘mumbling their words’ and were slow to respond to questions, the Adjudicator found that the notation only indicated that these issues were present at initial contact and did not continue throughout the rest of the interaction. They were unsatisfied that the initial mumbling and slow response were enough on their own to conclude that the Recipient was impaired while driving.
Finally, while the urinalysis did confirm the presence of cannabis, it does not provide a specific concentration that the Adjudicator could use to reasonably conclude the Recipient was impaired by cannabis.
Given the totality of the circumstances, while the Adjudicator found Cst. Metz’s version of events to be plausible, they found that the Recipient had provided compelling testimony and evidence that is both internally and externally consistent with the traffic stop. Impairment is to be determined in totality and the Recipient had met their onus on a balance of probabilties that the observed indicia were not caused by impairment from cannabis while driving.
The Adjudicator found that the Recipient had established that their ability to operate a motor vehicle was not impaired by a drug, and the NAP was cancelled.
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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