Impaired Driving: Legal Update, June 2024

This week Leman v Alberta (Director of Saferoads), 2024 ABKB 332 was issued by Justice Marion. Some of our successful cases were relied on to reach the conclusion that the adjudicator in the case erred in his reasoning process when he found that the motorist was served a Notice of Administrative Penalty “NAP”. 

Justice Marion cited Russell v Alberta 2023 ABKB 20 and Ngomesia v Alberta 2023 ABKB 57 both Ziv Law Group cases.

In this case the motorist, known as a Recipient, argued that he was not served a NAP a statutory requirement. When he woke up in the morning, he checked what documents he had received, and they did not include a NAP. The adjudicator held that he accepted that the motorist was served a NAP despite there being silence on this issue by the police officer. The adjudicator felt that because the motorist was drunk he could not accept his evidence. The problem with this reasoning was that the time frame at issue, the morning after was not the time the Recipient was impaired at. 

This case is useful because it confirms that there must be personal service of a NAP. Implicitly, service does not count as seeing a NAP on the portal. There must be functional service of the NAP (presumably) before a roadside appeal offered. 

The case is also useful because it lists the types of errors that lead to unreasonable decisions. These errors include (cited verbatim): 

• treats the police (or the recipient’s) evidence as presumptively true, credible or reliable, or having a baseline of credibility;
• presumes or assumes police compliance with statutory requirements;
• fails to assess the weight that should be accorded to police evidence in light of legitimate credibility concerns;
• requires or implies that a recipient must rebut all aspects of the police’s evidence, must have a verbatim recollection of the events, or must adduce a certain type of evidence to be successful;
• starts with an assumption that the recipient’s evidence is untruthful; fails to account for or consider cogent evidence before it, including all the evidence of a recipient’s explanation or evidence from the passengers;
• fails to resolve central credibility and reliability issues arising from the evidence; bases a credibility assessment on matters not grounded in the evidence;
• makes inferences based on conjecture, speculation, or unfounded assumptions, or where there is no evidence to support them;
• or makes findings based on, or relies on, evidence that is not actually before the adjudicator.