R. v. F.M.M.

(Canmore Court of Justice - Obstruction). FMM was charged with obstruction arising from an impaired driving/refusal investigation. FMM also received a roadside sanction. In this case, police were conducting checkstop operations in Canmore, Alberta. FMM had departed a hotel parking lot to go get some food. Police intercepted FMM in the parking lot and made a mandatory alcohol screening demand. Police alleged that FMM refused to blow and issued a roadside sanction/notice of administrative penalty/NAP. Police also charged FMM with obstruction pursuant to s. 129 of the Criminal Code of Canada -- presumably for refusing to provide the breath sample.  Due to the quick turnaround for roadside sanctions cases in Alberta, and the delay in the criminal case, FMM was forced to litigate the Notice of Administrative Penalty/Roadside Sanction within 30 days of the traffic stop. Important to this event was FMM"s position that there was no refusal to blow of any kind. FMM offered observation evidence that police, speaking amongst themselves, commented that the roadside screening device might not have been functioning properly at the relevant time.. Police did not include any of this information in their details provided to the Director of SafeRoads. FMM requested that police provide all audio and video footage from their Dash Camera's.  At the roadside sanctions hearing, FMM was very concerned that there would an unfair credibility contest with the police and thus was of the view that the video/audio was critical to corroborate FMM's version of the events.

Notwithstanding that FMM's Alberta roadside sanctions lawyer, David Chow, made a request for production of electronic disclosure (audio/video), the police and the Director of SafeRoads refused to provide it. FMM filed an affidavit at the SafeRoads hearing. This evidence ran counter to some of the sparse police evidence provided in writing to SafeRoads.  Unfortunately for FMM, in August 2023 the Alberta Government introduced legislation that SafeRoads was not required to provide any electronic evidence in SafeRoads cases and was not even required to confirm its existence. At FMM's hearing, the defence argued that while SafeRoads was not required to provide the video, that did not mean that either SafeRoads or police were prevented from providing the video if requested. The defence further argued that in circumstances where two parties are at odds, it was fair for the party controlling evidence, such as video -- capable of corroborating evidence -- to provide it. After all, why hide evidence unless the version presented by the part in control of the evidence is false?

The answer to the aforementioned question seems obvious. Provide the proof.  The Defence further argued that an adverse inference should be drawn against the party who has control of evidence but voluntarily elects to withhold it. The Defence suggested that it would not be fair to disbelieve or reject the accused's evidence when police control evidence capable of corroborating the accused's version. 

At the SafeRoads hearing, the Defence argument fell on deaf ears. Typical for the vast majority of SafeRoads cases, the adjudicator rejected the defence fairness argument relating to video disclosure, dismissing on grounds that the Director of SafeRoads was not compelled to provide the information. The adjudicator confirmed FMM's roadside sanctions. The adjudicator accepted police evidence (in the absence of their video), rejected the accused's evidence and in the opinion of this criminal defence lawyer in Alberta,  confirmed the roadside penalties imposed on FMM. 

After some time, the criminal case landed on the Canmore Court docket. In criminal law, unlike roadside sanctions cases, the Prosecution is obligated to provide all relevant disclosure to the accused's right to make full answer and defence (see R. v. Stinchcombe).  The Defence was looking forward to receiving the audio and video withheld from the FMM at the SafeRoads hearing.  The Defence never received the video because the Prosecution withdrew the criminal charge.  While FMM avoided a criminal record and higher lawyer fees, because the charge withdrawn before video disclosure was provided, the accused lost the opportunity to receive the video requested many months earlier as part of the SafeRoads case.

Whenever police have reasonable grounds to believe a person has committed an impaired driving offence, they have the option of issuing a Notice of Administrative Penalty (NAP)/roadside sanction or to issue a Notice of Administrative Penalty/roadside sanction and charge under the criminal law. What FMM's case highlights is that there are different processes and legal obligations in these cases. Roadside sanctions is a kind of administrative process that does not have the same procedural, evidentiary, Constitutional or adjudicative protections as with criminal law. 

David Chow is an experienced roadside sanctions lawyer and criminal defence lawyer in Alberta. David has successfully defended hundreds of impaired driving cases, as well as serious criminal driving offences such as impaired driving causing death, dangerous driving causing death and manslaughter. If you are looking for a criminal driving offence lawyer in Alberta, call David Chow for a free consultation.