Legal Insights, Case Trends & Updates from Ziv Law Group
Rory Ziv, B.A. (hons), L.L.B., L.L.M.
Brett Leon Van Damme, B.A., J.D
May 14, 2026
This Week’s Highlights
- ABCA ALERT
- The meaning of “relevant and necessary” under 2(h) of SAR is interpreted as being “all the evidence that is required to know the basis of the NAP”. Further, “relevant and necessary” provides sufficient flexibility to address disclosure of records that are not otherwise described specifically within the legislative scheme. (see paras 22/25)
- Criminal law requirements for a valid demand are not to be incorporated as an element of one of the specified grounds for cancellation that refer to demands made under the Criminal Code in subsections 4(i)(iii), (iv) or (v) of SAR. (see para 28)
1. NAP Review
Leeuwenburgh v Alberta (Director of SafeRoads), 2026 ABCA 143
Leeuwenburgh is concerned with the obligation to disclose records subject to 2(h) of the SafeRoads Alberta Regulation (SAR) and what Adjudicators may consider under 18(2) of the Provincial Administrative Penalties Act (PAPA).
Facts
On April 3, 2022, Cst. Bemke stopped the vehicle driven by the Appellant in response to a trespass complaint. They smelled no alcohol on the Appellant but noticed other indicia of impairment, which led Cst. Bemke to request a 2nd officer to attend and conduct a Mandatory Alcohol Screening (MAS) on an Approved Screening Device (ASD). After 11 attempts to obtain a breath sample, the 2nd officer issued the Appellant a NAP under 88.1(1)(e) of the Traffic Safety Act (TSA) for failing/refusing to comply with a breath demand knowing one has been made.
At the initial review, the record before the Adjudicator included a copy of the NAP, the seizure notice, a photograph of the ASD, and a report from Cst. Bemke. There was no statement or report filed by the 2nd officer who operated the ASD and made the breath demand, and Cst. Bemke’s report contained no details regarding the content of that demand. The Appellant argued that Cst. Bemke’s report lacked detail needed to support the issuance of the NAP and did not explain what occurred at the roadside when the ASD was administered. In their written statement, the Appellant simply explained that “he tried to provide a breath sample into the macine” and “did not know why it did not work.”
The Adjudicator found that the Appellant had not met their onus to have the NAP cancelled, and confirmed the NAP. Furthermore, the Adjudicator found that whether the breath demand was valid is immaterial in determining whether to cancel a NAP. At judicial review, the Appellant argued that it was unreasonable for the Adjudicator to conclude appropriate disclosure had been provided in the circumstances. The reviewing Justice found the Adjudicator’s ruling as reasonable and dismissed the application for Judicial Review. They held that in some circumstances the notes of the officer who made the breath demand would be needed to explain the basis of the NAP, but in this case, Cst. Bemke’s report was sufficiently detailed to satisfy that requirement. The reviewing Justice also agreed with the Adjudicator’s position on the breath demand validity being immaterial. Which brings us to this appeal.
Ruling
The Alberta Court of Appeal acknowledged that there were gaps in the information provided in Cst. Bemke’s report. Notwithstanding those informational gaps, the Court determined that the Adjudicator’s conclusion that Cst. Bemke’s observations of the condition of the appellant, the appellant’s inability to follow directions, and the appellant’s 11 failed attempts to provide a suitable sample were sufficient in the circumstances of this case to provide a basis for the breath demand. The Court acknowledged that this finding was available to the Adjudicator and passed the requisite threshold of reasonableness. (See para 24)
The Court provided that ‘the context sensitive and fact specific criteria of “relevant and necessary” contained in section 2(h) of SAR provide sufficient flexibility to address the disclosure of records not otherwise described specifically within the legislative scheme.’ Furthermore, the clear statutory language used in the legislative scheme make resorting to common law principles of the duty of fairness as it relates to disclosure unnecessary. (see para 25)
With regards to the breath demand, the Court found that an administrative license suspension regime being triggered by demands under the Criminal Code does not incorporate criminal law protections into the administrative scheme. The administrative scheme does not expose recipients to the more onerous sanctions available under the criminal law and places a greater weight on public safety. With this in mind, the Court rejected the argument that the criminal law requirements for a valid demand are an element of one of the specified grounds for cancellation for demands made under the Criminal Code. (see para 27/28) With these findings in mind, the Court dismissed the appeal and upheld the NAP.
This decision seems to be at odds with the decision in Gordey v Alberta (Director of SafeRoads), 2023 ABKB 228. However, in Leeuwenburgh, the officer observed all of the ASD attempts personally despite not making the demand. As such he did not need to rely on information provided by another officer. This is distinguishable from Gordey, in which an officer was relying on information provided by another officer.
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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