Legal Insights, Case Trends & Updates from Ziv Law Group
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Rory Ziv, B.A. (hons), L.L.B., L.L.M.
Brett Leon Van Damme, B.A., J.D
June 5, 2026
This Week’s Highlights
- Being in the driver’s seat of a vehicle creates a presumption of care and control over the vehicle. To rebut this presumption, it must be proven that:
- 1. The Recipient had no future intentions of driving; and
- 2. The Recipient does not present a realistic risk of danger to persons or property;
- The three ways in which a Recipient, even with no intention to drive, may pose a realistic risk of danger to persons or property are:
- 1. An inebriated person who initially does not intend to drive may later, while still impaired, change their mind and proceed to do so;
- 2. When an inebriated person unintentionally sets the vehicle in motion; and
- 3. Through negligence, bad judgment or otherwise, a stationary or inoperable vehicle
See C. Forrest (Re) C00466572A.
- Where a Recipient clearly believes the Roadside Appeal and 7-day review process are the same thing, officers must provide an adequate explanation that differentiates the two processes in the mind of the Recipient in order to ensure that the Recipient has awareness of the right to a Roadside Appeal.
See T. Sutherland (Re) C00464236A1. NAP Review
C. Forrest (Re) C00466572A
Forrest looks at how the doctrine of ‘care and control’ applies to the SafeRoads regime. In short, being in the driver’s seat of a vehicle creates a presumption of care and control over the vehicle. This is true even when the vehicle is entirely stationary. Fortunately, this presumption is rebuttable and this decision provides great insight into an Adjudicator’s decision making in determining whether the presumption of care and control has been rebutted by the Recipient.
Facts
On April 25, 2026 around 3:37 am, Cst. Petruic, an RCMP peace officer, initiated a traffic stop on the Recipient in a parking lot on Big Rock Lane, at or near Okotoks, Alberta. The ensuing investigation resulted in Cst. Petruic issuing a NAP to the Recipient on the grounds in Sections 88.1(1)(a) and (b) of the Traffic Safety Act (“TSA“), which are:
- (a) The Recipient operated a motor vehicle while the Recipient’s ability to do so was impaired to any degree by alcohol or a drug or by a compination of alcohol and a drug (“Impaired Operation”); and
- (b) The Recipient had within 2 hours after ceasing to operate a motor vehicle a blood alcohol concentration (“BAC”) greater than or equal to 80mg of alcohol in 100ml of blood (“BAC-Over”)
The Recipient applied for a review of the NAP on numerous grounds found in Sections 4(e) and (f) of the SafeRoads Alberta Regulation (“Regulation“), however only one ground was reviewed by the Adjudicator, which was from Sections 4(e)(i) and 4(f)(i), that the Recipient did not operate the motor vehicle.
According to undisputed evidence, the Recipient was never observed actually driving the vehicle at any time, but rather, was observed sitting in the driver’s seat, while the vehicle was running, but parked in a parking lot. Since the Recipient was not driving, the question became ‘Was the Recipient in operation of the vehicle by being in care or control of the motor vehicle when it was stationary?’
Ruling
The Adjudicator referred to the ‘Care or Control’ framework set out by the Supreme Court of Canada (SCC) in R v Boudreault, 2012 SCC 56. Given that the Recipient was in the driver’s seat, there is a presumption that the Recipient is in care or control of the vehicle at the time but this presumption can be rebutted by showing:
- 1. The Recipient had no future intention to drive; or
- 2. The Recipient did not present a realistic risk of danger to persons or property;
The SCC in Boudreault provided three circumstances in which a driver, even without an intention to drive, may pose a realistic risk of danger to persons or property:
- 1. An inebriated person who initially does not intend to drive may later, while still impaired, change his mind and proceed to do so;
- 2. When an inebriated person unintentionally sets the vehicle in motion; and
- 3. Through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.
In determining whether the Recipient had any future intention to drive, the Adjudicator relied on evidence from the Recipient in the form of an affidavit. In this affidavit, the Recipient submitted that he went to a tavern with friends and consumed a single pint of beer, however, his friend and passenger (DA) did not consume any alcohol. Later in the night, the Recipient and DA went to pick up two more friends who had been drinking (SM) and (HH) to go to McDonald’s. Once parked, the Recipient asked the girls to get him a beer from the case under his back seat, and he started drinking it quickly to “catch up with the girls”. At this time, the Recipient and DA decided that DA would drive them home since he was not drinking. After consuming four beers, the Recipient had to urinate, and DA did as well, so they agreed they’d urinate and then switch seats, with DA to take the driver’s seat and drive home once they were done hanging out. The two urinated in the parking lot at the rear of the truck, the Recipient advised he did not think about the road he was facing due to it being 3:30 AM.
While outside the truck, the Recipient heard DA exclaim “Oh shit, a cop!” and they both scrambled back into the truck, using the nearest door available to them. This resulted in the Recipient being back in the driver’s seat. He had no intention of driving and put his seatbelt on out of habit. At this point, the officer approached DA’s window and swore and yelled at him for urinating in public. After this, the officer went to the driver side window and asked the Recipient if he had been drinking, to which the Recipient replied “yes.”
The officer asked when and where the Recipient’s last drink was, and due to panic from hearing the officer yell at DA, as well as the officer’s general angry tone, all sense of time, place, situation and their plan to get home left his head. The Recipient provided that in the situation he could not think clearly, and upon the officer asking for a decision immediately, he agreed regardless of whether he heard what was being said or if he understood it. He did not want to make the officer angrier so he complied with every request.
At the time of the review, the Recipient was 19 years of age and had never been in trouble before. The Recipient had no knowledge of SafeRoads Alberta or imapired driving law in general. Despite the plan he made with DA for DA to drive, he did not know simply sitting in the driver’s seat of a vehicle is the same as driving it. The Recipient further submitted that when faced with an authority figure who seemed so angry, “all reason and logic flooded out of [his] brain and [he] panicked”, which is why he never explained the sober driver plan to the officer.
DA and HH also provided affidavits for this review. The Adjudicator found their affidavits to be internally consistent with each other and with the Recipient’s evidence with regards to the events leading up to, during, and after the police interaction. The Adjudicator found no reason to find the evidence of DA or HH to not be credible. The affidavits affirmed that the Recipient drank four beers in the vehicle and the plan was for DA to drive them home after they finished urinating. As such, the Adjudicator found that the Recipient had satisfied them that they did not intend to drive and that DA was going to drive the Recipient and other passengers home had they not been approached by Cst. Petruic.
The remaining question then, was whether the Recipient presented a realistic risk of danger to persons or property, looking at the three circumstances that meet this criteria from Boudreault. The Adjudicator was satisfied on the evidence that DA was designated to drive and with the plan in place, there was no realistic risk that the Recipient while impaired, would change his mind and proceed to drive. (See para 28) The Adjudicator was also satisfied that the Recipient, while impaired, showed no indications of acting negligently or being so inebriated as to mistakenly put the vehicle into motion. (See para 29) Lastly, the Adjudicator found the vehicle to be in an almost empty parking lot, legally parked, and with no other individuals around. The Adjudicator found no reason the vehicle could have remained in that parking spot until DA drove them home. As such, the Recipient satisfied the Adjudicator that the stationary vehicle would not endanger persons or property. (See para 30)
In consideration of the evidence as a whole, the Adjudicator was satisfied that the Recipient rebutted the common-sense inference arising from being in the driver’s seat of a vehicle and he further established that he was not in care or control of the vehicle at the relevant time. The ground to cancel was found to be met and the Adjudicator cancelled the NAP. (para 33-34)
T. Sutherland (Re) C00464236A
Sutherland involves a situation in which the Recipient believed the Roadside Appeal and 7-day review process were one and the same. Where such a belief is made apparent, the issuing officer should ensure that they adequately differentiate the two processes in the mind of the Recipient. (See para 26)
Facts
On April 17, 2026 around 11:14 am, Sgt. Becker, an Alberta Sheriffs peace officer, initiated a traffic stop at the intersection of Millwoods Road and Knottwood Road, at or near Edmonton, Alberta. Sgt. Becker issued a NAP on the Recipient under Section 88.03 of the TSA on the grounds that the Recipient operated a motor vehicle with a BAC equal to or exceeding 50 mg of alcohol in 100ml of blood. (“IRS: Warn)
The Recipient sought a review of the NAP on two grounds, but the Adjudicator only considered the ground under Section 4(d)(vii), that the officer did not advise the Recipient in writing of the right to a roadside appeal under section 88.11 of the TSA and the Recipient was unaware of that right.
Ruling
On examination of the body worn camera video provided by Sgt. Becker, the Adjudicator observed that, while reviewing the Roadside Appeal Form with the Recipient, the Recipient was advised that a Roadside Appeal was voluntary and involved providing a second breath test using a different device, carried on the officer. During this explanation the Recipient asked whether he could instead plead not guilty in court and dispute the NAP. The Adjudicator found this question to indicate the Recipient was exploring alternative means of challenging the NAP and hadn’t yet formed a clear understanding of the roadside appeal process.
In response to the inquiry, Sgt. Becker indicated that the NAP included a QR code that would direct the Recipient to a website and explained that a review could be requested on that website within seven days. After this explanation, the Recipient asked if “the appeal” does not need to be done at the roadside. Sgt. Becker responded to this by telling the Recipient to “just wait” and then continuing to explain the Roadside Appeal. Ultimately, the Recipient decided to decline the Roadside Appeal upon learning there are no penalty for refusal.
The Adjudicator believed the Recipient’s evidence that they believed that the Roadside Appeal and the 7-day review process were one and the same. The Adjudicator goes on to find that this belief was not corrected by the officer, and while their explanation of the second test was detailed, it did not directly address the specific uncertainty reflected in the Recipient’s question, specifically, whether the Roadside Appeal was time-limited and had to be exercised immediately and that the Roadside Appeal is a distinct process separate from the 7-day review process. While the confusion did not arise from the officer’s original explanation of the Roadside Appeal, once the confusion was expressed, the officer was put on notice of a material misunderstanding. The Adjudicator found the officer ought to have taken steps to resolve the misunderstanding but failed to do so. (See para 25)
As such, the Adjudicator found that, while the Recipient had received written notice of the Roadside Appeal, that written advice was obscured by the manner in which the oral information was provided, insofar that the Recipient did not have a clear awareness of the Roadside Appeal at the relevant time. This resulted in the NAP being cancelled. (See paras 27-28)
2. Lawyer’s Corner
Forrest
The NAP regime allows evidence to be submitted in written form. Since adjudication has a subjective, human element, it is important to recognize that presenting evidence in writing is often far more advantageous than presenting it in person. Written evidence is often clearer and more precise than oral evidence, and the “likeability” (hidden bias) of the person giving the evidence is neutralized.
Sutherland
Excellent case on carefully reviewing the evidence and understanding what is really going on in a driver’s mind. If the police officers blindly read what they are supposed to read without responding to a driver’s questions, concerns, or misunderstandings, they risk administering faulty Roadside Appeals.
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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