The Truth about SafeRoads

The truth about SafeRoads is that to ensure its legitimacy as an administrative law process, fact finding must honour the truth.  If fact finding in SafeRoads adjudications fails to demand production of evidence capable of supporting the truth, it risks putting the administration of justice into disrepute.

the case of a.s.

On October 23^rd, 2022 immediate roadside sanctions were confirmed in the case of A.S. (A15081312O) -- a loss that has long haunted me.

What makes this case worth writing about nearly a year later is that A.S was issued a notice of administrative penalty even though, according to her and another witness, she neither operated the motor vehicle, had care or control over the motor vehicle, possessed keys to the vehicle, or ever occupied the driver seat of the motor vehicle.

A.S.'s roadside sanctions were confirmed despite perfunctory police evidence, lack of video, her detailed affidavit and the detailed evidence provided by a third-party.

To be clear, as part of a rather short description of events arguably lacking much detail, the investigating officer claimed that A.S. had assumed care or control over the motor vehicle when she slid to over to the driver seat and started up the SUV while he had her boyfriend detained for impaired driving. This allegation was opposed by A.S. and her boyfriend (who were both in view of each other). A.S. claimed she was aware of the presence of the police, was watching the investigation involving her boyfriend unfold and that she did not assume care or control over the vehicle.

A.S.’s boyfriend deposed that (1) he was driving, (2) that he surrendered what he believed to be the only set of vehicle keys to the police officer, (3) that he was being investigated for impaired driving in plain view of A.S., (4) that for no observable reason, A.S. was removed by the officer from the passenger side of the vehicle and (5) that he couldn’t believe his girlfriend was being breathalyzed because she was but a passenger.  

Noteworthy is that the officer confirmed that he had the keys to the SUV. There was no evidence that he ever seized a second set of vehicle keys.  A.S. deposed that she did not have keys to the vehicle and thus could not, as the officer stated, have started it. 

In legal proceedings, it is not unusual for parties in a dispute to disagree on facts. What makes A.S.’s case so troubling is that the police neither responded to the Applicant’s request for camera footage nor a request to confirm its existence.

Nearly all RCMP vehicles are equipped with a camera system that simultaneously records events occurring in front of the police car and in the backseat.  In the case of A.S., since her boyfriend was detained in the back of the police vehicle on suspicion of impaired driving, it is very likely that cameras were recording. A.S.’s lawyer requested this information but received no response from the police or the Director of SafeRoads.

In A.S. the adjudicator clearly preferred the rather perfunctory nine-lines of narrative offered by the officer over the detailed affidavit’s exhibited by both A.S. and her boyfriend.  To that end, the adjudicator stated:

“…I have trouble with the Recipient’s account of what occurred. If she had been sitting in the vehicle, simply watching what was going on as she stated, I cannot see why [the officer” would order her out of the vehicle and make a breath demand unprovoked”.  

The adjudicator went on to speculate about evidence in a manner favouring police, stating that the officer may have taken A.S. out of the passenger-side because it was the “closest entry point”.  I emphasize the word “may”. A.S. deposed she never occupied the driver's seat. She stated that she was watching the original investigation unfold -- logical behaviour that one might expect of somebody wearing her shoes.

Finally, the adjudicator held that “…the Recipient’s story, where she simply sat in the passenger side for a little bit trying to watch what was happening without performing some sort of offensive action, is illogical”.

I am left to wonder, why is this illogical? 

A.S admitted to being drunk. She deposed that she never had the intention to drive because she was drinking and the plan was for her boyfriend to do so. Her boyfriend corroborated this.  A.S. didn’t think her boyfriend consumed a lot of alcohol or was impaired. More importantly, A.S. was literally present when police were investigating her boyfriend for impaired driving.  Logic dictates that a person in A.S.'s shoes would not slide from the passenger seat to the driver seat for the purpose of taking care or control of the motor vehicle in direct view of the same police who were conducting an impaired driving investigation of the original driver. 

To characterize A.S.'s evidence as "illogical" is illogical. 

It is important to remember that it was the police, not A.S., who possessed the car keys. Keys were seized when A.S.'s boyfriend was removed from the driver seat of the vehicle in plain sight of her. Therefore, to conclude it was illogical for A.S. to assume care or control over the vehicle in plain view of the same police officer investigating the original driver is tantamount to her screaming "hey, investigate and sanction me too"!  

Of course, one might wonder why an officer would sobriety test and sanction a passenger. In my view, it is more likely that the officer made an observation error. Perhaps he even accidentally touched a button on the key fob that caused the lights on the vehicle to flash. Perhaps because he was dealing with a suspect in the backseat, his observation was flawed. Whatever the case, the adjudicator was not required to accept or even completely reject one side or the other; rather, the adjudicator was only required to make findings on the balance of probabilities.  

Evidence Capable of Resolving A Fact in Issue

Setting aside my strong opinion that the adjudicator failed to assess the case properly, and in so doing, confirmed sanctions against a person who to this day I understand continues to assert that she never entered the driver’s seat or attempted to operate the motor vehicle, the case of A.S. serves to highlight why it is incumbent on law enforcement to exhibit the video , audio or other electronic evidence as part of the proceedings.  Equally, it is important for any adjudicative body claiming to be interested in the “truth” to demand its production. 

The truth is, A.S.’s case was decided largely on the basis of conjecture when it did not need to be.

In A.S.’s case – and indeed dozens of cases before and after --counsel was critical of the decision by SafeRoads not to produce the audio/video, especially when it was requestedrequested.  Specifically, defence counsel stated:

…the Applicant requests that as a matter of fundamental fairness, full disclosure materials (including audio/video) be uploaded as part of these proceedings. The Applicant makes this request because it is not fair to conceal relevant information to any dispute, including a roadside dispute. This is especially important in circumstances where the law deems police evidence to be under oath. In circumstances where the Applicant presents a different account of events from those conveyed by law enforcement, disclosure such as video and audio may definitively resolve the issue in dispute. Where disclosure exists that could resolve the issue, it is neither reasonable nor fair to ask any party to the dispute to be unnecessarily engaged in a credibility contest. Concealing information capable of supplying an adjudicator with an unbiased eye and ear to an event (i.e., video/audio) masks the truth. There is special disadvantage to the Applicant in roadside sanctions disputes because both the law and adjudications strongly tend to defer to law enforcement. The Applicant requests even if full disclosure is not provided on the SafeRoads Portal that a full exhibit list be included. Disclosing an inventory of the available evidence (whether it is included on the SafeRoads Portal or not) is fair because (1) it permits the Applicant to take legal steps to pursue all of the available evidence, (2) illuminates for all parties and the adjudicator the body of available evidence that has or has not been provided and (3) avoids the false logic of dismissing an Applicant’s argument under s. 2(h) of the SafeRoads Alberta Regulation requiring the Director to provide additional relevant and necessary records on grounds that there is no evidence that the information exists. It is not fair to require the Applicant to prove a negative.

In the years prior to A.S. and about a year to follow, SafeRoads adjudicators consistently dismissed requests on the part of those sanctioned with serious administrative penalties to provide audio and video. Rationalizations for not providing potentially truth revealing unbiased evidence ranged from “it’s not necessary because the police provided their version” to “it’s time consuming to upload and review videos for administrative purposes” to “the Applicant has not established the video is relevant or necessary because there is no evidence of what’s depicted in the video to confirm that it’s relevant and necessary. 

In A.S. the adjudicator rejected the Applicant’s request for video; this was her reasoning:

Although I agree the documents, video, and detail requested by Counsel would aid the Recipient in her defense, and may be relevant to this Review, the Legislation does not stop at relevant. Evidence must be both relevant and necessary (emphasis is mine) to determine the basis for issuing the NAP. The NAP was issued for Impaired Operation and BAC-Over. The Officer’s report describes his interaction with the Recipient, which details the circumstances behind his choice to issue the NAP. While I agree video/audio evidence would provide an impartial view of the interaction, I do not accept the video is necessary to determine the basis of the NAP and therefore is not a required record.

Setting aside the evidence from A.S. that she neither occupied the driver’s seat nor possessed the keys to start the vehicle, this case is seriously troubling because like so many SafeRoads adjudications, law enforcement potentially possessed evidence capable of resolving the issue in dispute.  In my opinion, evidence capable of resolving credibility contests should always be provided when requested.

Furthermore, in what world is it at all fair to permit adjudicators to make “findings” of fact but to ignore evidence that exists “in fact”?  This kind of reasoning effectively endorses fictionalization over truth.

Supposing that A.S. was telling the truth – and I think there are ample good reasons to believe she was – imagine the serious loss of confidence in the administration of justice for being penalized for something one didn’t do. A.S.'s position, I didnt do what I am accused of.

To reiterate, in law the parties often disagree. The reason we have judges and adjudicators is so that we can resolve issues in dispute. Where one party, however, has evidence capable of unequivocally resolving an issue in dispute, shouldn’t that party be required to provide it?  Shouldn’t an adverse inference be drawn against the party who has evidence capable of resolving a fact in dispute but declines to provide it? I suggest the answer is "yes".

A.S. is just an example of a case where video could have been used in place of conjecture. For anybody reading this blog, it is important to understand that A.S. is but one case of hundreds or perhaps thousands of cases where SafeRoads ignored the request for video evidence or rationalized withholding it. 

Smit v. Alberta (Director of SafeRoads), [2023] ABKB 435

Up until the Court of King’s Bench decision in Smit v. Alberta (Director of SafeRoads), [2023] ABKB 435 the position of the Government was not to provide electronic evidence because though it may be relevant, where police assert something happened, it is not necessary.  In the eyes of the State, police are incapable of being dishonest or mistaken.

In Smit supra the Judge stated:

It may be argued that the time needed to review video recorded evidence would lengthen review hearings. But this is not necessarily the case. Parties could still be required to comply with any reasonable time limits, and would thereby be encouraged to use their time judiciously. Additionally, the irrefutable nature of such evidence has the potential to settle contentious issues, thereby shortening proceedings, or avoiding them entirely.

In conclusion, it is my view that the common law principles of fairness require the disclosure of any existing video or audio recordings to applicants seeking license suspension reviews before SafeRoads Adjudicators, or advice that no such recordings exist. Such proceedings engage important interests, and turn upon individual responsibility for the commission of criminal conduct. Given that the use of such evidence aids in the search for truth, enhances the acceptability of administrative action, and costs little to produce, share, and review, its exclusion from SafeRoads adjudications is unfair.

Interestingly, the court in Smit essentially echoed defence counsel’s argument in A.S. and others made by various lawyers for years leading up to the release of that decision. 

Imagine the hundreds – perhaps thousands – of people whose sanctions were confirmed in the absence of the very evidence capable of clearly resolving the fact in dispute.  Doubtless, many of these people would have had sanctions confirmed, but to be sure, the evidence supporting "confirmation" would have been by the evidence. In these circumstances, regardless of whether a recipient wins or loses, the integrity of the justice system in Alberta would have been reinforced by providing this important evidence, not injured by its illogical and suspicious concealment.

This Calgary based defence lawyer has consistently asserted in SafeRoads hearings that if the adjudicator asked Canadians on any street, in any hamlet, village, town or city from coast-to-coast-to-coast whether police should provide video in cases where a person is being penalized, the answer would be an overwhelming, resounding “yes, hand it over”.  I don’t think it’s overly speculative to say that the vast majority of Canadians prefer a legal system that honours truth.

In the months following Smit, adjudicators started cancelling roadside sanctions on grounds that the Director failed to provide complete records. To be blunt, "duh".  Did we really need a Court of King’s Bench Justice to emphasize to the Director of SafeRoads that which was patently obvious? I suggest the answer is “no”.  

To be sure, this sparks many wicked questionable little questions.  For example, I suspect that almost every adjudicator was aware that video might have resolved an issue. I suspect that most adjudicators understood the argument that fictionalizing facts while ignoring the existence of evidence that supported the truth is highly problematic. Yet, if anybody was to review SafeRoads cases from December 2020 to June 2023, they would find that in the overwhelming number of decisions, SafeRoads rejected arguments by defence counsel relating to the production of relevant and necessary video evidence.   

The question is why?

The Post Smit Amendment

One might have thought that Smit would have ended the issue.  However, presumably in reaction to Smit, the Alberta Government fast tracked a legislative response.  Effective August 8^th, 2023 (just 2 weeks after the release of the Smit decision) the Government published this:

For information only:   Made by the Minister of Transportation and Economic Corridors (M.O. 26/23) on August 8, 2023 pursuant to section 188.1(f) of the Traffic Safety Act.

• The SafeRoads Alberta Regulation (AR 224/2020) is amended by this Regulation.

 

• Section 2 is amended by striking out “The Director shall” and substituting “Subject to section 2.1, the Director shall”.

 

• The following is added after section 2:

Exception 

2.1(1)  For greater certainty, notwithstanding section 2(h), 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 those

provided by the Director under section 2.

(2)  This section expires 60 days immediately after it comes into force.

Analysis of the Legislative Amendment 

Interestingly, s. 2.1(1) of this amendment in no way changed the previous legislation. Nowwhere in s. 2(h) of the Regulation did it ever say that the Director was “required” to provide photographs, video or audio. What the previous s. 2(h) required was that the Director provide that which was “relevant” and “necessary”; meaning, if a record was not relevant and necessary, the Director was not obligated to provide it. That makes sense; for evidence is neither relevant nor necessary, it is not required.

What is concerning about the amendment is that the Government has now added that the Director is not even required to tell a penalized motorist that certain records exist at all. In other words, the Government has now, in its wisdom, arguably legislated secret keeping by police and SafeRoads.  In the view of this roadside sanctions lawyer, secret keeping is antithetical to any adjudicative model claiming to pay homage to the truth.

Conclusion

In conclusion, I have long supported an adjudicative model rather than a criminal law paradigm for less serious impaired driving cases.  My position has long been that a great many Canadians charged with impaired driving are not “criminal” in the truest sense of the word and such, may not deserve a criminal record.  Many people simply made judgment errors that resulted in criminal charges.  In my view, it is not always in the public interest to pursue a criminal record when a non-criminal, regulatory penalty will suffice.

Alberta’s SafeRoads model therefore has many laudable components. What is troubling is that loyalty to the truth does not appear to be one of them.  Both the history of SafeRoads, decisions post Smit and the Governments recent legislative amendment that supports hiding evidence, suggests that the truth about SafeRoads is that it is not interested in the truth.

As an Albertan, I am concerned about any law and any Government that endorses penalizing people on anything less than truth.  To conceal evidence that supports truth causes serious injury to th ereputation of our justice system.

Had A.S. and others like her had the video, their fate may have been very different. In my opinion, whenever law enforcement penalizes people for things they didn’t do, the administration of justice falls into disrepute.  When an adjudicative body refuses to compel the production of evidence that supports the search for truth, that model risks doing extreme damage to the reputation of our justice system because it dramatically enhances the likelihood that the State will penalize somebody for something they didn't do. 

By way of final comment, I am not saying that A.S.'s version is obviously true and the officer's version is obviously false. Rather, what I am saying is that A.S.'s version was not illogical and that if video existed, it was improper to ignore a reasonable request for its production and to make decisions in its absence.

David Chow

Alberta Roadside Sanctions Lawyer

www.calgary-law.ca