SafeRoads v. H.I.

(Calgary SafeRoads - NAP/Impaired Operation of a Conveyance/Care or Control). H.I. successfully defended the roadside sanctions. In this case, police responded to a report involving a suspected impaired driver. The Informant advised police that he had observed the suspect to fall down on pavement. When police arrived, H.I. was asleep in the driver's seat, with a bottle of liquor in the vehicle. The officer described H.I. as "extremely intoxicated" and conducted an arrest. While H.I.'s position was that the appearance of impairment was caused the fall (head injury), H.I. also properly conceded at the SafeRoads hearing that the officer possessed the reasonable grounds to arrest for impaired care or control of a motor vehicle. . The police narrative basically stated that H.I. was advised of the right to counsel and told that a second could be provided on an approved screening device. The officer's notes were quite sparse and in particular, lacked reasonable detail with respect to the subject's right to a roadside appeal/right to a second test. 

Experienced Alberta SafeRoads lawyers will assess every Notice of Administrative penalty case to determine whether law enforcement has complied with the right to a roadside appeal/right to second test. The Alberta Court of Appeal has expressed clearly that the process in relation to a subject's right to a second test/roadside appeal must be respected (see SafeRoads v. Lausen, 2023 ABCA 176 and SafeRoads v. Lawrence, 2023 ABCA 271 and SafeRoads v. Lawrence, 2024 ABCA 36). "Right to a second test"/"roadside appeal" likely represent one of the most common defences in SafeRoads cases. The purpose of the right to a second test is to, after a motorist has been issued a Notice of Administrative Penalty (NAP) and sufficient information about the roadside sanction, to permit the motorist the voluntary choice to effectively immediately challenge the NAP by participating in a test (the kind of test to be decided by issuing officer).  Specifically, it is a ground for cancellation that the Recipient was not provided the right to roadside appeal in writing and was unaware of the right.

In H.I.'s case, as confirmed by the police evidence, not only was the right to roadside appeal never provided in writing, there was almost a total absence of information provided to the recipient. This was further complicated by the fact that the officer advised H.I. about the right to counsel and in so doing, advised that before any evidence would be collected that H.I. had the option to retain and instruct a lawyer. The police narrative confirmed that H.I. declined to provide a sample in absence of right to counsel and in the absence of information sufficient to satisfy awareness about the right to a second test. 

The adjudicator was left with a question about what was explained to H.I. in relation to the right to a second test.  The adjudicator aptly stated:

"The officer has a an obligation to ensure that the Recipient was aware of [its] rights under the immediate roadside sanctions regime, in accordance with Lausen. I find the Recipient did not have awareness of [the] voluntary right to a roadside appeal of the NAP under the TSA at the relevant time". 

David Chow is a full service Calgary based roadside sanctions lawyer and criminal defence lawyer. David routinely defends roadside sanctions cases and over his decades at the criminal bar, has successfully defended serious driving offences, such as impaired driving causing death, dangerous driving causing death, criminal negligence causing death and manslaughter. Experience matters. David is a former Crown prosecutor who has been defending cases since 2005. David's first verdict of "not guilty" was in 1999.