No Safety in SafeRoads | A Roadside Sanctions Lawyer's Opinion
No Safety in SafeRoads | A Roadside Sanctions Lawyer's Opinion
No Safety in SafeRoads
On July 28th, 2025 CTV reported that Pam Lacusta – a person who has never consumed alcohol – allegedly failed to comply with a demand for breath samples and was issued a Notice of Administrative Penalty (roadside sanction).
On August 1st, 2025 the CBC also reported about this case.
As written by CTV:
Pam Lacusta was pulled over for speeding by a police officer in an unmarked vehicle on 114th Avenue near Stoney Trail S.E., just after 11:30 a.m. on April 24.
“I rolled down my window and [the officer] said, ‘I am going to conduct a breathalyzer on you,” said Lacusta. “Immediately, I thought to myself, ‘What? Why?’”
Lacusta is a member of the Church of Jesus Christ of Latter-Day Saints.
“Part of my religion is abstinence from alcohol and drugs, and I have never partaken in either of these in my life,” she said.
After 30 attempts to provide a breathalyzer sample, Lacusta was charged with an Immediate Roadside Sanction Fail (IRS Fail).
“Every time I was able to just get a good blow in or a good breath in, he would yank it out and he would say, ‘Your teeth are in the way,’ ‘Your tongue is in the way,’ ‘You’re trying to manipulate the test,’” Lacusta said. “I have never seen a breathalyzer; I do not know how to do it.”
Concerns about the Roadside Testing Process
Ms. Lacusta’s representation that the investigating officer would yank the breathalyzer out of her mouth and then accuse her various tactics is not unusual.
As a criminal defence lawyer in Calgary who has handled well over one-hundred SafeRoads cases, the events recounted by Ms. Lacusta are quite common. For example, it is not unusual to hear accused persons or those sanctioned by way of Notice of Administrative Penalty (NAP) to claim that the officer pulled the device away mid-blow, moved the device around while a blow was attempted and then after allegedly interfereing with the test, blame the motorist for some kind of brinkmanship such as putting teeth in the way, blocking the mouthpiece with a tongue, not blowing hard enough, blowing too hard or trying to manipulate the test.
While this Calgary based SafeRoads lawyer has certainly seen a large number of instances where motorists are clearly trying to defeat the test – and is sympathetic to the frustrations experienced by police – there are a significant number of cases where it appears that the manipulation may not lie on the steering wheel of the recipient of roadside sanctions. For example, I recently handled a case where a motorist was issued roadside sanctions for refusing to comply with a roadside demand, but in filing their SafeRoads report, police conveniently neglected to mention that the subject actually suffered a broken tooth and a mouth injury that was caused by them. Now, to be clear, I am not about to cast aspersions on police officers simply because somebody sustained injury (for I appreciate that officers sometimes have to deal with some fairly rough people); rather, what causes me to have deep suspicion about the report in this instance, was the obvious and intentional decision to omit key details from SafeRoads information. To my mind, information that the motorist suffered bodily harm at the hands of police is something that should find its way into any report that becomes part of an adjudicative process.
What occurred with Ms. Lacusta is arguably a situation caused by a persisting medical issue combined with possible actions taken by the officer that may have interfered with her ability to successfully provide a breath sample. Ms. Lacusta’s description of the officer yanking away the device whenever she would get a good breath is not only concerning, it is something that criminal lawyers are hearing more and more about.
The Roadside Adjudication
When Ms. Lacusta applied to have her roadside sanctions cancelled, the adjudicator allegedly sided with police. This Calgary roadside sanctions lawyer can confirm in no uncertain terms that adjudicators almost always side with law enforcement. Unfortunately for Ms. Lacusta (and others like her), the speed in which the Notice of Administrative Penalty process occurs may have hampered her ability to present the best defence.
As reported by the CBC,
“Lacusta said her difficulty with the test may have been due to a recent Botox injection that kept her from making a proper seal with her mouth. She also later learned that she had two suspected rib fractures, but not in time to include that information in her appeal”.
It is very unfortunate that Ms. Lacusta was unable to bring this to the attention of the adjudicator. However, at this point, I think we should be fair to SafeRoads. I say this because a recipient of a Notice of Administrative Penalty can, pursuant to s. 8 of Alberta Regulation 2017/2020, apply to adjourn a hearing. As written:
“[t]he Director may adjourn a review from time to time as the Director considers appropriate”.
While we may sympathize with persons suffering the immediate consequences of a roadside sanction, there may be occasions where adjourning the hearing to allow for the best evidence is prudent. For example, if a NAP recipient is aware that he or she has a medical issue but is having troubling collecting medical records, I suggest that ensuring the case is heard based upon the best evidence takes priority over having the case heard expeditiously.
Of course, given the quick turnaround in SafeRoads cases, it is not unusual for those facing administrative penalties to not be immedaitely aware of every ailment that might have impacted their case. I cannot say whether this applies to Ms. Lacusta or not. Regardless, Ms. Lacusta’s advice has merirt:
“My advice to anyone is if you know you have a medical issue, have that documentation ready so that if something like this happens to you, you can produce it in that seven days”.
A System of Non-Transparency
In addition to advance collecting medical records, I would add that it is advisable for everyone who encounters police to immediately record their interaction whenever possible.
I say this because perhaps one of the most troubling and dystopic aspects of SafeRoads is legislated non-transparency.
Pursuant to s. 2.1(1) of the SafeRoads Regulation the Director is not required to
- Provide photographs, video or audio recordings, or any transcript created from video or audio recordings, if any, to a recipient, or
- Confirm whether or not any records exist except thos provided by the Director under section 2.
In its original incarnation, this section was legislated as valid to August 31st, 2025. However, on August 6th, 2025 the Government updated this legislation to extend s. 2.1(1) to August 31st, 2026.
This Calgary criminal defence lawyer is quite troubled by this legislation. I am also curious about the decision to extend the non-transparency timeline another year.
To begin with, I am left to wonder how any system of laws that must not only do justice but be seen to be doing justice can possibly validate legislated non-transparency. Not only is the Director not required to provide what is potentially the best evidence, the Director, on request, by somebody who takes issue with the police reporting of events, is not even required to confirm the existence of evidence that might corroborate a recipient’s version of events while at the same time, potentially disconfirming the events reported by police. This is obviously troubling because police are then withholding evidence that could conceivably prove them inaccurate, false or dishonest.
Please understand, there are a lot of good police officers and therefore, I am not saying that police generally are inaccurate, false or dishonest; rather, I am only saying that when an accused or NAP recipient disagrees with police and cannot obtain the evidence in possession of police to corroborate their account, that there is a natural instinct to think that the party supressing the evidence is inaccurate, false or dishonest.
In SafeRoads cases, adjudicators have effectively rejected rationale arguments that while the Director may not be required to provide the disclosure, that it is egregiously unfair to withhold this evidence in circumstances where the recipient is thrust into a credibility context with police. Even in situations where a recipient gives advance notice that he or she disagrees with police, and therefore requests the Director to disclose the video, adjudicators routinely refuse to apply an adverse interest against the party in possession of disclosure capable of resolving the fact in issue. This Calgary criminal lawyer has read dozens of cases where notwithstanding the recipient’s request for disclosure on grounds that he or she does not agree with the police report, adjudicators will simply side with police – sometimes even outright disbelieving the recipient. I am left to wonder how this is at all reasonable, judicious or fair.
Put another way, if a recipient says,” get the video because it will prove me right”, how is it fair to reject the recipient’s evidence in circumstances where police (or the Director) are intentionally suppressing the best evidence? It strikes me that one might rationally conclude that the videos are being suppressed because they do not confirm the reporting by police. By logical extension, one might have concerns about the propriety of SafeRoads, its adjudicators and its evidentiary standards.
Conclusion
In conclusion, while I completely agree with Ms. Lacusta that if any driver has a medical issue that could impact their ability to provide a breath sample, that it would be a good idea, where possible, to carry medical information at all times until the issue is remedied, I also encourage all people to, whenever possible, to audio and video record their interactions with police at all times. This is very important because as the SafeRoads legislation confirms, you can’t count on police or the Director of SafeRoads to share audio and video that exists with you.
On July 27th, 2019 I was critical of the mandatory roadside screening amendments to the Criminal Code of Canada. I stated:
“A consequence is that every person exposed to mandatory breath testing is at risk of being charged with the crime of failing or refusing to provide a breath sample”.
Interestingly, what happened to Ms. Lacusta illustrates that very risk. Ms. Lacusta, who apparently has never consumed alcohol or drugs, now faces a serious penalty for being unable to do a test that she apparently, if a sample was provided, would have had no trouble passing. Simply stated, accepting that Ms. Lacusta does not consume alcohol, she had no reason to trick the test.
On February 11th, 2020 I spoke about greasing the slippery slope in impaired driving cases.
https://calgary-law.ca/blog/greasing-the-slippery-slope-jackboot-mandatory-breath-screening/
As written:
To trigger mandatory compliance pursuant to section 320.27(2) the only requirement is that the investigating police be “in possession” of an approved screening device. Once this requirement is met, any motorist, at any time, is liable to roadside breath testing, even if there is absolutely no reasonable basis to think that he or she has consumed any alcohol at all.
Sadly, Ms. Lacusta appears to be the victim of a statutorily greased slippery slope. Unfortunately, that slope was perilously inclined by a SafeRoads model that unlike criminal law, lacks in procedural, evidentiary, Constitutional and adjudicative protection. For a person who has purportedly never consumed alcohol, the punishment is entirely disproportionate. Sadly, as our Charter protected interests are neutered, as the Government consistently creates new laws to ease the investigative responsibility of law enforcement, as judge’s continue to be social advocates and as we continue to empower more non-legally trained persons (such as adjudicators) to make important legal decisions, the slippery slope becomes more and more insurmountable.
In my opinion, a legal system that legislates unreasonable strain upon those who are pressed into quick hearings potentially puts the innocent at risk. Risk to the innocent is exacerbated by non-transparency. Arguably, this means that there is little to no safety in SafeRoads.
Is this the Canada we want to live in? That is a wicked questionable little question.
These are my thoughts, not yours.
David Chow
Calgary Criminal Defence Lawyer
403.452.8018