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
Lillace (Re) 2025 ABSRA 1565 (Canlii) NAP cancelled because the person was charged with the wrong section. The evidence demonstrated that the recipient blew a caution but was charged as if they blew a fail. At paras 9-11:
The Recipient has not provided any statement. As such, I will rely on the police evidence and Counsel’s submissions to determine whether, on a balance of probabilities, this ground has been made out. The police notes indicate the Recipient blew a “Fail” on an ASD. Also, the system-generated NAP in the Portal indicates the NAP was issued for an IRS: Fail. Further, the “Contravention Information” tab in the Portal states the contravention was issued pursuant to Section 88.1(1)(a), which indicates the NAP was issued for Impaired Operation. However, the “Impairment Screening” tab in the Portal indicates the result of the ASD “60-99mg% (CAU)”. While the police evidence establishes the NAP was issued for Impaired Operation, I note that the ASD reading was used as the basis for the NAP. Considering the Portal entry indicates the reading was a “Caution” and Cst. Heffler’s report states the Recipient blew a “Fail”; I find both pieces of evidence quite conflicting and confusing.
Further, the ASD record was uploaded to the Portal and also attached to Cst. Heffler’s notes do not show the ASD reading; whether it was a “Fail” or “Cau”. Even if I were to presume Cst. Heffler made a mistake, I find such a mistake quite fundamental as the penalty for a “Fail’ reading far outweighs the penalty for a “Cau” reading. Considering the inconsistency in the police evidence, especially as it pertains to the ASD reading, which is the basis for the issuance of the NAP, I am unable to ignore such a fundamental mistake and find that the NAP was issued under the right Section of the TSA. Furthermore, I note Cst. Lord conducted the ASD test, yet Cst. Heffler entered the Portal details, which further convoluted the result received on the ASD. As such, I place less weight on the police evidence and accept Counsel’s argument that the NAP was issued under the wrong Section of the TSA.
Based on the totality of the circumstances and on a balance of probabilities, I find the Recipient has established that he did not receive a copy of the NAP at the relevant time because the NAP served on him was issued pursuant to a wrong section of the TSA.
Dolen (Re) 2025 ABSRA 1563NAP cancelled because the recipient established he could not blow due to medical concerns. At para 6:
Counsel for the Recipient (“Counsel”) submits that the Recipient was making attempts and was trying to comply with the breath demand. Counsel submits that the Recipient was nervous and having difficulty breathing while providing her breath samples due to medical issues. The Recipient has provided medical evidence in support of her submissions. Counsel summarises this medical evidence that the Recipient is a 73-year-old smoker of 50 years, who now suffers from Chronic Obstructive Pulmonary Disease (“COPD”), which is a progressive lung disease characterised by persistent airflow limitation. In addition to this, the Recipient has been diagnosed with lung cancer. The Recipient submits that she is not even able to blow up a balloon under normal circumstances due to her medical conditions.
3. Court Watch
Stuhldreier v Alberta 2025 ABKB 490. In this case, the recipient failed to provide a breath sample but argued that it was unfair to issue a NAP because they did not know that a NAP would be issued by refusing. They were under the impression that a criminal code investigation was underway. See paras 59, 60, and 67.
Case sent back for reconsideration per J. Harris.
4. Lawyer’s Corner
My preference is to prepare written submissions when arguing before an adjudicator. I am not aware of any reason why an oral hearing cannot be supplemented with written material if timelines are followed. Sometimes, a sympathetic or believable client may warrant an oral hearing. In (Re) Nwankwo, August 21, 2025, C00376025A, a NAP was overturned because of a language barrier issue.
At paras 16, “throughout the Review … the Recipient appeared genuine and forthcoming”. At para 22, “it is not clear to me that the Recipient would have understood the legal consequences of not complying without some form of translation.”
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
Get in Touch
Have a case, ruling, or resource to share?
Featured Firm
Rory Ziv and Ziv Law Group are Alberta’s trusted impaired driving lawyers, focused on defending Immediate Roadside Sanctions (IRS) and criminal impaired charges across the province. Known for their deep understanding of both administrative and criminal impaired driving law, they deliver rigorous defence strategies and timely appeal filings.