SafeRoads NetLetter May 2025
Babyn v Alberta (Director of Saferoads), 2025 ABKB 284 per Lew
Silence On Service – Evidentary Tie – Burden Lies With The Recipient
The Applicant sought judicial review of the Adjudicator’s decision confirming the Notice of Administrative Penalty (“NAP”). The Applicant argued that the record failed to demonstrate proper service of the NAP and that the police video, referenced in the officer’s notes, was necessary to determine the basis for the NAP and ought to have been disclosed.
Held: Appeal Dismissed
The evidentiary burden to prove the issue of service is equally applicable to both parties and its absence results in an evidentiary tie. Given the burden of proof, the recipient must produce evidence that can break the tie in his favour. However, a gap in the evidence that goes to the basis for the issuance of the NAP can result in cancellation without positive evidence from the recipient (para. 30). Respecting disclosure of video, section 2.1 of SafeRoads Alberta Regulation (“SAR”) excludes from the review record any video recording made by a police officer, notwithstanding its reference in the officer’s notes.
Brendan Thompson, Gunn Law Group – Defence Counsel
Favourite Five ABSRA Decisions of the Month
1. Gill (Re), 2025 ABSRA 357
Adj. E. Hak
Read Document But Failed To Confirm The Recepient’s Understanding – A Failure In Advice
An officer responded to a domestic dispute. The complainant said the Recipient had been drinking, left in a vehicle, and later returned. He was arrested for impaired driving. The officer stated he read the roadside appeal form verbatim. There was no proof of any confirmation of understanding even though English was Mr. Gill’s second language. Held: The officer failed to read or discuss the NAP prior to the roadside appeal such that Mr. Gill was not properly advised of his right to the appeal.
R. Sargent – Agent for the Recipient
2. Frulling (Re), 2025 ABSRA 884
Adj. T. Langdon
Bona fide Attempts, Inadequate Instructions And Possible Device Malfunctions – Deemed Not A Fail Or Refusal To Comply
After an accident an officer made an MAS demand, but the Recipient failed to provide a proper sample after multiple attempts, including with a second ASD. She was arrested for impaired driving, failure to comply and warrants. The Recipient claimed she complied immediately, blew 10–11 times within a nine-minute time span, but the officer kept saying it was not working without explaining why. Her lung test was normal. Held: There was no evidence of instructions beyond “blow harder” and no demonstration. The recipient made genuine attempts. The officer did not establish that her conduct, and not the functionality of the device, was the problem.
S. Weber – Agent for the Recipient
3. Jardine (Re), 2025 ABSRA 943
Adj. G. Gill
No Intention To Set The Vehicle In Motion – Rebuts The Presumption Of Care Or Control
An officer responded to a report of an intoxicated person in a parked vehicle and issued a NAP for
impaired operation and BAC over 80 mg% within two hours of driving. The recipient told the police and the adjudicator that he was on the phone with a work colleague. He provided a call log and signed statement from the colleague confirming they had been speaking. He was just sitting, smoking, and relaxing. Held: Recipient was not driving but the presumption applied as he was in the driver’s seat. Adjudicator accepted that there was no intention to drive. Despite BAC of 100 or more, adjudicator found no evidence that he was so “grossly intoxicated” that he would have accidentally set the vehicle in motion. The Adjudicator found no realistic danger and cancelled the NAP.
R. Nanda – Counsel for the Recipient
4. Dobranowski (Re), 2025 ABSRA 1017
Adj. J Obamonire
24-Hour IRS – Deliberate Power Nap To Relax – Not An Impairment Due To Fatigue
Police found the Recipient slumped over the wheel of a parked vehicle with bloodshot eyes. He admitted to being tired. A breath test showed a “0” result. The officer issued a NAP for a 24-hour suspension as they suspected him of driving while fatigues: “having a medical or physical condition… [that would] affect the Recipient’s physical or mental ability”. The Recipient stated he was not impaired, voluntarily took the test, cooperated fully. He did not agree that he was slumped over or that he admitted that he should not be driving. He took a power nap as a safety-conscious decision. Held: His detailed account was favoured over the more limited police narrative and showed no fatigue-related impairment. The NAP was cancelled.
C. Dobranowski – The Recipient
5. Gilbert (Re), 2025 ABSRA 990
Adj. C. Zub
Disregard The Recipient’s Request To Counsel – Constituted Egregious Unfairness
After a collision and after noting alcohol on the recipient’s breath, the other driver in the accident said he was going to call police. The Recipient went to a friend’s house to wait for police and had a few beer to calm down. The officer arrested her and read the recipient her Charter rights. She requested a lawyer, but the officers immediately demanded a breath sample on the ASD. The result was a fail. Held: McNalley was distinguished as the NAP in this case was on the bases of Impaired and BAC-Over, not refusal. Also, when the recipient in McNalley, was asked if she wished to speak with counsel, she said “no, charge me”. No clear delineation between criminal and administrative proceedings. As per Smit and Kolner, offering a recipient the opportunity to contact counsel and then denying the opportunity when requested, is not consistent with Charter values and is egregiously unfair.
G. Janzen, Counsel for the Recipient
Stay Informed – Stay Prepared
Understanding Alberta’s impaired driving laws can make all the difference. Whether you’re facing an Immediate Roadside Sanction (IRS) or simply want to stay ahead of legal changes, knowledge is your best defense.
Have questions about your case? Contact Gunn Law Group for a consultation.
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Gurpreet Singh
Gurpreet is an internationally trained lawyer who possesses not only his Bachelor of Law Degree but also his Masters in Law. Gurpreet brings over eight years of practice experience in the areas of Criminal, Civil family, and Personal Injury laws under common law jurisdictions.
