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
A) Alert: Section 2.1 of Alta Reg 224/2020 has been extended for another year—new expiry date July 31, 2026.
B) Remember, while legislation may prevail over the common law, “it must be presumed that a legislature does not intend to change existing common law rules in the absence of a clear provision to that effect” (Basque, at para. 40, quoting Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521, at para. 56)
2. SafeRoads Alberta Review
An interesting case where the adjudicator uses his specialised knowledge about how NAPs are produced to question whether the roadside appeal was conducted when the officer says it was. Fallbacher (Re) 2025 ABSA 1389 at paras 15 and 18.
According to the police evidence, Cst. D’Onofrio received a wellness check call from an oilfield employee regarding an alleged impaired female, later identified as the Recipient, who had been found stuck in snow in her vehicle at a remote location. Cst. D’Onofrio arrived at the location at approximately 9:30 a.m. and observed the Recipient to be disoriented and slurring her words, with a smell of liquor coming from her breath when she spoke. Cst. D’Onofrio observed the Recipient’s vehicle was stuck in the snow, and it was running, noting the Recipient had “full care and control of the vehicle” as she was in the driver’s seat. At approximately 9:36 a.m., Cst. D’Onofrio read the Recipient the ASD demand, and she provided a sample of her breath, resulting in a “Fail” reading. Cst. D’Onofrio states he arrested the Recipient and placed her in the backseat of the police vehicle, where he Chartered and cautioned her. As they were in such a remote area, Cst. D’Onofrio could not access the SafeRoads Alberta system and drove the Recipient to the police detachment in Edson to complete the immediate roadside sanction (“IRS”) documents. Cst. D’Onofrio states that upon arriving at the police detachment, he “provided the NAP” and then offered the Recipient a roadside appeal, which she accepted, resulting in a second “Fail” result.
The narrative states the Recipient’s vehicle was towed and her driver’s licence was destroyed, after which the Recipient was given an opportunity to speak with a lawyer. When I review the information entered into the SafeRoads Alberta portal (the “Portal”), I note Cst. D’Onofrio accessed the Motor Vehicle System (“MOVES”) database at 10:09 a.m., and the roadside appeal request was made at 11:15 a.m.I acknowledge that Cst. D’Onofrio states he provided the NAP to the Recipient “upon arrival at the Edson RCMP detachment” and then offered the Recipient a roadside appeal breath test. The Recipient’s evidence states that when they arrived at the police station, she was asked to provide a second breath sample and complied.
I rely on my specialised knowledge as an adjudicator and note that in order to produce a NAP, a peace officer must first access the Portal and MOVES and begin entering information. After a certain piece of information has been entered, a NAP is produced, and in the case of a NAP for BAC-Over, a roadside appeal form is also produced, and possibly a vehicle seizure document. It would take some time to produce these documents; however, both the Recipient and the officer state that the second breath test was offered and administered upon their arrival at the station. Additionally, Cst. D’Onofrio states the roadside appeal was offered right after the NAP was provided to the Recipient; however, the information on the Portal states the roadside appeal was started at 11:15 a.m., over an hour after MOVES was accessed (and the earliest time the NAP could be produced). This ambiguity in the production of the NAP and sequence of events leads me to question the reliability of the officer’s evidence with respect to the service of the NAP. As a result, I am placing more weight on the Recipient’s evidence and accept that the NAP was not served to her until she was released from custody, well after the roadside appeal breath test had been conducted.
3. Court Watch
R. v. Artar 2025 ABKB 406, CSO for dangerous driving causing death. Review of case law and a reminder at para 14 that “The principle of parity is not absolute and cannot divert attention from the governing principles, such as the nature and seriousness of the offence and the individual characteristics of the offender.”
4. Lawyer’s Corner
Do NAPs apply to motorcraft? More on this next week.
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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