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)
C) Note a new affidavit has been added to the SafeRoads Technical Materials Library; an affidavit that Pauline Wong swore to on August 22, 2025, describing the mechanism of the APIS portal (which has also been renamed).
2. SafeRoads Alberta Review
W. Byrgesen v Director, C00388043A
This review concerns the cancellation of a NAP on which counsel raised numerous grounds, the one of focus being that the Director failed to provide complete records to the Recipient (Section 4(f)(iii)). For this ground to succeed, the Recipient must establish that the record(s) missing was(were) required under section 12 of PAPA and that the record was not provided. Section 12 of PAPA provides that Section 2 of the Regulation sets out what records are required. In their analysis, the court determined that required records under Sections 2(d)(ii) and 2(d)(iv) were missing, namely the date of the last annual maintenance performed on the Approved Instrument (2(d)(ii)) & the alcohol standard change form and related printouts (2(d)(iv)).
Given that this alone was enough to establish the ground to cancel, the court found any further analysis on the remaining records, grounds and fairness arguments to be unnecessary.
3. Court Watch
R v Gonzales Trejos, 2025 ONCJ 462
This case out of Ontario concerns an impaired charge in which the police failed to provide a formal breath demand after failing the roadside ASD test.
[24] The police seized samples of Ms. Gonzales Trejos’ breath without a warrant. For a warrantless search and seizure to be reasonable and compliant with s. 8 of the Charter, it must be done pursuant to law. An unlawful seizure will amount to a violation of a person’s constitutionally protected right to be free from unreasonable searches and seizures, pursuant to s. 8 of the Charter: R. v. Guenter, 2016 ONCA 572, at para. 85.
[25] Section 320.28(1) of the Criminal Code authorizes the warrantless seizure of breath samples as follows:
320.28(1) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), the peace officer may, by demand made as soon as practicable,
(a) require the person to provide, as soon as practicable,
(i) the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument,
… and
(b) require the person to accompany the peace officer for the purpose of taking samples of that person’s breath or blood.
[26] In short, for the seizure to be lawful, the police need to make a demand requiring the person to provide breath samples into an approved instrument, and where applicable, requiring them to accompany the police for that purpose. The demand needs to be made as soon as practicable, and the person is to provide the breath samples as soon as practicable.
The failure to provide the requisite demand resulted in a Section 8 Charter violation, as the samples were obtained unlawfully. Similarly, Section 9 of the Charter was found to be violated as well because Ms. Gonzales Trejos’ detention was for the purpose of complying with a lawful demand for breath samples but there was no such lawful demand in this case. Thus, her detention was deemed arbitrary and in violation of Section 9 of the Charter.
The officers were also found to have violated Ms. Gonzales Trejos’ Section 10(b) right to counsel by failing to even consider whether access to counsel at roadside was available.
[76] There is ultimately no black and white rule about whether roadside contact should be facilitated for the police to discharge their obligation to enable communication with counsel without delay. It will depend on the facts of each case. But to discharge their constitutional duties, it does appear essential for officers to consider the possibility of providing access to counsel at the roadside, where appropriate: Rover; R. v. Tremblay, 2021 QCCA 24, at paras. 42, 52 and 77-78.
Further, once at the station, she was questioned by the booking sergeant regarding whether she drank alcohol that night prior to speaking to counsel.
These cumulative breaches of Sections 8, 9, & 10(b) of the Charter were balanced by the court in regard to exclusion under Section 24(2) and resulted in the evidence of the breath tests and Ms. Gonzales Trejos’ statements regarding consumption of alcohol to be excluded. Further, any observations of her at the police station were to be excluded as well, due to the unlawfulness of the detention.
4. Lawyer’s Corner
Here’s a tip courtesy of Alan Pearce.
In the event that you are conducting a review and the information provided by the police is deficient, consider trying to move the review date up. Per SafeRoads policies, the police can only submit additional materials up to four days prior to the review. So by moving the review date forward, you are shrinking the amount of time the police have to correct informational deficiencies.
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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