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 15, 2026
This Week’s Highlights
- A mistaken belief in law may be considered a reasonable excuse to fail/refuse to comply with a demand if such belief would cause a reasonable person to similarly fail/refuse to comply in similar circumstances. (See Fox (Re) para 33)
- Where an officer does not issue a NAP on a Recipient prior to the right to a Roadside Appeal, a duty is raised on the officer to take further steps to ensure the Recipient received specific details of the NAP that is going to be issued. (See Pister (Re) para 13)
1. NAP Review
Fox (Re), 2026 ABSRA 1066
Fox (Re) looks at a situation where the Recipient had a mistaken belief that he had a right to speak to counsel before complying with an ASD breath demand. While this is a mistake in law, the Adjudicator determined that mistakes in law can still provide a basis for a reasonable excuse to fail/refuse to comply with a lawful breath demand, knowing one has been made.
Facts
On May 2, 2026 at or around 5:30 am, Cst. Harding, an RCMP peace officer, responded to a call to service in respect of a suspicious vehicle in the vicinity before operational hours, involving the recipient, at Grove Drive West, near Spruce Grove, Alberta. The ensuing investigation resulted in Cst. Harding issuing a NAP to the Recipient under 88.1(1)(e) of the Traffic Safety Act (TSA) for failing or refusing, without reasonable excuse, to comply with a demand made on the driver under s. 320.27 or 320.28 of the Criminal Code, while knowing a demand has been made.
The Recipient raised multiple grounds on review, however only the ground under 4(i)(v) of the SafeRoads Alberta Regulation (‘the Regulation’) was considered by the Adjudicator, that being:
- S. 4(i)(v): that the Recipient, knowing that a demand had been made on the Recipient under Section 320.27 or 320.28 of the Criminal Code, did have a reasonable excuse for failing or refusing to comply with that demand.
Cst. Harding’s evidence indicates that police were dispatched to a report around 5:08 am of a dark-coloured Chevy pickup truck parked at a construction site in Spruce Grove before operational hours. Police also had information that the Recipient had reportedly left a residence while impaired and suicidal in a black Chevy Avalanche. By 5:21 am, Cst. Harding had located the vehicle, which was running, the keys were in the ignition and the Recipient was observed alone in the driver’s seat appearing to have nodded off while holding an iPad.
At this time Cst. Harding conducted a traffic stop and knocked on the window, at which time the Recipient revved the engine while the vehicle was in park. Cst. Harding then opened the door and removed the keys from the ignition. The Recipient was then advised they were under arrest for impaired operation and was directed to leave the vehicle several times but did not comply with the direction. Police were able to observe multiple indicia of impairment including red glassy eyes, slurred speech and the odour of liquor coming from the Recipient as well as the vehicle.
When Cst. Harding attempted to remove the Recipient from the vehicle, the Recipient struck her in the chest of her vest. Additional officers attended and assisted in removing the Recipient from the vehicle. Upon being removed from the vehicle, the Recipient stated, “I’ll have a lawyer.”
Around 5:30 am, an ASD demand was read to the Recipient. According to the police evidence, the Recipient repeatedly refused to provide a breath sample and no sample was ultimately provided. Records indicate the Recipient was arrested for refusing to comply with a demand and a lawyer was not facilitated at that time. The Recipient was then transported to Parkland RCMP, where they were afforded the chance to speak to a lawyer.
A supplementary report was provided by Cpl. Blaine, a Complainant and the individual who reported the Recipient as her husband and had reported the Recipient to be intoxicated, suicidal, and had driven away in a black Chevrolet Avalanche.
The Recipient had provided an affidavit which gave their version of events. Within the affidavit, the Recipient provided that they reviewed the bodycam footage and agreed that the video accurately depicted the occurrence, including when he was asked to provide a breath sample. The Recipient’s affidavit indicates that prior to the breath demand, police removed him from his truck, placed him on the ground, cuffed him, advised him he was under arrest and placed him in the back of the police vehicle. They indicate they asked for a lawyer because they had been arrested and believed they had a right to speak with counsel before acting in any way that could be held against him, such as providing a breath sample.
The Recipient advises that when the officer read the breath demand, the Recipient repeatedly requested a lawyer and made statements such as “I’ll have a lawyer,” “No, I’d like a lawyer,” and “I want a lawyer.” The Recipient maintains they were not refusing to blow but rather wanted legal advice prior to blowing. The Recipient states that if the police had let him speak to a lawyer first, he would have had no problem providing a breath sample.
There was also an audio/video recording of the investigation provided for the Review. The Adjudicator indicated that this video offers ‘an undisputed and objective account of the investigation. As such, I will be relying on the video evidence in making my findings.”
Ruling
The Adjudicator, upon review of the evidence, stated that the primary issue at hand is whether, in the circumstances, the Recipient subjectively believed he had a right to counsel and whether such belief provided the Recipient with a reasonable excuse for failing or refusing to comply. The Adjudicator relied on the decision of McNalley v Alberta (Director of SafeRoads), 2025 ABCA 98, which provides that even where a person cannot establish an objective legal excuse for failing/refusing to comply, there may be exceptional circumstances in which they can establish a subjective belief and understanding that gave them a reasonable excuse for not complying.
While the law is clear that the 10(b) right to counsel is temporarily suspended when administering a roadside ASD demand, the Adjudicator found that where a detained or arrested individual repeatedly requests a lawyer during the ASD demand, officers have a duty to clearly explain the temporary suspension of the right to counsel, and that the driver must comply with the breath demand. A mistaken belief in law may nevertheless count as a reasonable excuse if established on the evidence.
In this instance, the Adjudicator found that in the totality of the circumstances, the evidence provided indicated that the Recipient continued to associate compliance with the demand with the Recipient’s desire to obtain legal advice. The Adjudicator found that the Recipient held a subjective belief that he was entitled to speak with a lawyer during the ASD process, and that a reasonable person in similar circumstances could similarly fail or refuse to comply for that same reason. (See para 33) As such, the Adjudicator found the Recipient had established a reasonable excuse for failing or refusing to comply with the demand and cancelled the NAP.
Pister (Re), 2026 ABSRA 1072
Facts
On April 27, 2026 around 5:28pm, Cst. Milks, a Calgary Police Service (“CPS”) peace officer, responded to a complaint of a female acting odd in and around her vehicle at the Centex car wash on Bannister Road SE, in Calgary. The ensuing investigation resulted in Cst. Milks issuing a NAP on the Recipient under s. 88.1(1)(a) of the TSA for operating a motor vehicle while the Recipient’s ability to do so was impaired by any degree by alcohol or a drug or a combination of alcohol and a drug (“Impaired Operation”).
The Recipient sought review on multiple grounds, only one of which was considered by the Adjudicator that being the ground under s. 4(e)(v), that the officer did not advise the Recipient in writing of the right to a Roadside Appeal under s. 88.11 of the TSA and the Recipient was unaware of that right.
In this case, it is undisputed from the police evidence and the Recipient’s statement that the Recipient was not served the NAP at the relevant time, that time being when the Recipient declined the Roadside Appeal. As such, the officer in this instance did not provide written advice to the Recipient with regards to the right to a Roadside Appeal. Police evidence further indicates that the Roadside Appeal form was explained and read to the Recipient before the officer ever advised the Recipient that they would be issuing a NAP or explain the details of the penalties the Recipient was facing.
The Recipient provided an affidavit for the review, which indicates that when she was read the Roadside Appeal form, the Recipient did not know that the Roadside Appeal had nothing to do with being criminally charged and was related to an administrative penalty, of which she was not informed at that time. Prior to being told about the NAP, the Recipient was unaware of what exactly they were being charged with.
Ruling
The Adjudicator found that, consistent with Lausen and Lawrence, where an officer does not issue the NAP to a recipient prior to the right to a Roadside Appeal, there is a duty raised on the officer to take further steps to ensure that the Recipient is aware of specific details of the NAP that is going to be issued. (See para 13)
In this instance, the Adjudicator found such a duty to have been raised on Cst. Milks but found the duty to be unfulfilled by simply providing the Recipient with the Roadside Appeal form. While the Roadside Appeal form is useful and informs recipients of the right to a Roadside Appeal, absent additional measures employed by the officer, it fails to ensure that Recipients are sufficiently advised and aware of their right to a Roadside Appeal. Given that the Recipient was not aware of their right to a Roadside Appeal, the Adjudicator cancelled the NAP.
2. Lawyer’s Corner
Fox (Re)
This is an important case. NAP lawyers should be familiar with paras 19 and 30.
At para 19, where a detained person repeatedly requests a lawyer during the ASD process, a police officer must inform him that the right to counsel is suspended.
At para 30, mistakes of law and mistakes of fact are both capable of establishing reasonable excuse, “while mistaken in law, a mistaken belief may nevertheless constitute a reasonable excuse.
Pister (Re)
Nothing unusual going on here. An orthodox application of RA (Lausen and Lawrence). There are evidentiary burdens that shift the focus onto police. At para 13, if the RA is not followed in accordance with the legislation, “it raises a duty on the officer to take further steps.” Counsel should always be mindful of legal and evidentiary burdens when drafting written or presenting oral argument.
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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