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
September 14, 2026
This Week’s Highlights
- Where an officer fails to provide the written notice of administrative penalty documents to a Recipient prior to their election regarding a Roadside Appeal, the officer must ensure that the information from both the front & back of the NAP is relayed to the Recipient. The back includes information regarding the penalties associated with the NAP and the information is necessary for the Recipient to make a fully informed decision regarding the Roadside Appeal.
- The wording “the result of this test may be used… in any proceeding” found on the Roadside Appeal form detracts from the effectiveness of any written advice and the Recipient’s awareness and understanding of the Roadside Appeal.
1. NAP Review
A16926405O – V. Young
Facts
On August 9, 2026 around 8:15 am, Cst. Homick, an RCMP officer, responded to a complaint of a suspected impaired driveway on Highway 591 near Caroline, Alberta. The ensuing investigation led to Cst. Homick issuing a Notice of Administrative Penalty (‘NAP’) to the Recipient on the following ground under section 88.1(10(b) of the Traffic Safety Act (‘TSA’):
- The Recipient had within 2 hours after ceasing to operate a motor vehicle a blood alcohol concentration (‘BAC’) that is equal to or exceeds 80 mg of alcohol in 100 millilitres of blood (mg%) (‘Bac-Over’)
The grounds for cancellation of a NAP issued for Bac-Over are set out in Section 4(f) of the SafeRoads Alberta REgulation (‘Regulation’). One ground argued on review in this instance was the ground under 4(f)(viii), 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.
Counsel for the Recipient argued that the Recipient was not provided with written advice of the NAP at the relevant time, nor were they made aware of the full extent of the penalties they were facing. Specifically, counsel submits that the penalties, which are listed on the back of the paper NAP, were not provided to the Recipient, prior to his decision regarding the Roadside Appeal.
There are video and audio clips provided for review which indicate the following:
- Upon returning to the Recipient’s vehicle after the initial fail, Cst. Homick read the first page of the NAP verbatim to the Recipient;
- After reading the front of the NAP, Cst. Homick asked the Recipient if they’d like to provide another sample and the Recipient indicated yes;
- Upon the Recipient electing to undergo the Roadside Appeal, Cst. Homick retrieved a second ASD from his police vehicle and read the roadside appeal form th the Recipient;
- The Recipient indicated he understood and signed the roadside appeal form;
- The second breath sample resulted in a fail;
- After all of this, Cst. Homick finally handed a copy of the NAP to the Recipient who accepted it in hand; and
- Cst. Homick never drew the Recipient’s attention to the back of the NAP where the penalties are listed nor read said penalties out to the recipient;
Analysis
The Adjudicator acknowledged that the video footage established that the Recipient was not provided with written advice until after the second breath sample. As such they were satisfied that the Recipient was not provided with written advice at the relevant time, that time being prior to the Recipient’s decision regarding the Roadside Appeal.
In the absence of written advice, awareness of the roadside appeal may arise through other means, including a detailed verbal description of the NAP. However, the Adjudicator found that such awareness includes both awareness of the NAP itself, as well as the penalties associated with it.
The issue the Adjudicator found with the officer’s explanation is the absence of the information from the backside of the NAP, which is where the Recipient would have been informed of the specific penalties under the IRS: fail heading. In the absence of Cst. Homick providing the NAP to the Recipient, and failing to explain the information provided on the back of the NAP with regards to the penalties faced by the Recipient, the Adjudicator found the Recipient was prevented from making a meaningfully informed decision regarding the roadside appeal.
The Adjudicator found that in this instance, the Recipient had established on a balance of probabilities that they were not advised of and were unaware of their right to a Roadside Appeal under section 88.11 of the TSA. As a result, the NAP was cancelled.
C00509073A – D. Atkinson
Facts
On August 16, 2026 around 10:25 pm, Cst. Kolada, an Edmonton Police Service peace officer, initiated a traffic stop on the Recipient in Edmonton, Alberta. The ensuing investigation resulted in Cst. Kolada issuing a NAP on the Recipient under the following ground under section 88.1(1)(a) of the TSA:
- 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 combination of alcohol and a drug (‘Impaired Operation’).
The grounds under which a NAP issued for Impaired Operation may be cancelled are provided in section 4 of the Regulation. The Recipient raised the ground under section 4(e)(v) for this review, 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.
The evidence of both the Recipient and Cst. Kolada indicate that Cst. Kolada read the roadside appeal form line by line. The Recipient provided that although Cst. Kolada emphasized the voluntary nature of the second test, he was cautioned that providing another sample would be additional evidence that can be used against the Recipient.
Furthermore, the Recipient was initially arrested, Chartered and cautioned. This led the Recipient to believe he was being charged criminally as he was not told otherwise. When presented with the NAP, the Recipient believed the NAP was in addition to the criminal charge, not in lieu of.
Analysis
The Adjudicator found that Roadside Appeal advice provided must meaningfully communicate the right created by Section 88.11 and must not introduce a non-statutory condition, limitation, or consequence that alters the nature of that right. (See para 15) The wording contained in the roadside appeal form now states “the result of this test may be used… in any proceeding”. The Adjudicator found that this language is ambiguous and overbroad, as it suggests a scope of possible use beyond the statutory appeal right created by Section 88.11 of the TSA. This, as a result introduces a non-statutory consequence that may alter the Roadside Appeal right. That consequence being the possibility of Roadside Appeal results being used beyond the NAP proceedings.
In particular, the Adjudicator found that the Recipient being informed of this non-statutory limitation that was not contemplated by section 88.11 detracted from the effectiveness of the written advice as well as the Recipient’s awareness and understanding of the right to a roadside appeal. The Adjudicator further found that the actions of Cst. Kolada, namely formally arresting, handcuffing, Chartering and cautioning the Recipient without adequately informing the Recipient of the transition from a criminal to administrative process along with the verbal statement that the second sample “would be additional evidence against him” served to further undermine the Roadside Appeal advice. All this led the Adjudicator to conclude that the Recipient was not advised in writing or aware of his right to a roadside appeal. As a result, the NAP was cancelled.
2. Lawyer’s Corner
The Atkinson decision follows directly after Seward v Alberta 2026 ABCA 264. In that case, the court held that the wording “I understand that the result of this test will be used to prove my blood alcohol and drug concentration (if any) at the time of driving in any proceeding arising from this event” was problematic, explained at paragraphs 23 & 24:
The statement that the result of the second appeal test “will be used” to prove blood alcohol concentration “in any proceeding arising from this event” is problematic in two ways. If it is read as a statement of fact, it is inaccurate and overbroad It is easy to imagine circumstances (such as a criminal trial engaging Charter rights) where a test result obtained in this manner would not be admissible. While advising the recipient of potential consequences is prudent, the unqualified assertion that the result “will be used” in other proceedings is simply wrong. If the statement is read as a mandatory consent to unrestricted future use, it imposes a precondition that is not contemplated in the legislation. On either interpretation, the wording undermines the statutory requirement of advising the driver of the right to a voluntary roadside appeal.
The problematic language regarding the roadside appeal test could conceivably deter a recipient from proceeding with a roadside appeal they would otherwise have chosen, either from an unwarranted fear of widespread consequences or because they do not want to give their consent to unrestricted future use. The statement might lead a recipient to believe that use of the first test is confined to the consequences stated at the beginning of the roadside appeal form, while use of the appeal test is both unlimited and unavoidable. In Rose v Alberta (Director of SafeRoads), 2022 ABQB 297 at para 72, Justice Whitling commented that the same wording “would seem to serve no other purpose than to discourage drivers like the Applicant from exercising their right to a roadside appeal.” This is a version of the scenario foreseen in Lausen at para 56: “if a driver is asked to undergo a second test without first understanding what is being offered, he may decline it where he otherwise would not.”
The wording in Atkinson, “the result of this test may be used… in any proceeding,” still suffered from the same deficiencies expressed in Seward. The use of the word “may” rather than “will be” was insufficient to address the concerns raised in Seward.
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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