Breaking Development in Impaired Cases in Alberta
This is breaking news! In fact, CanLii, our national law reporter, has not even updated its website yet. So, you are likely hearing this for the first time here. A new amendment just came into force yesterday, September 1, 2026, that is going to be changing SafeRoads hearings.
To understand the full import of the amendment, we have to take you back to a case that Gunn Law Group won three years ago. On July 25th, 2023, after a successful constitutional challenge brought by Shannon Gunn Emery, Justice Whitling held that audio and video recordings had to be disclosed in every SafeRoads case. He also found that the police had an obligation to say whether or not those recordings existed.
Immediately following that decision, nearly everyone who had a Notice of Administrative Penalty (NAP) for impaired driving had their penalties cancelled due to non provision of the audio video recordings and non-compliance with the justices ruling that they indicate whether or not those recordings existed. People were winning even when they didn’t raise the argument. In fact, so many people won, that the government, approximately 6 weeks later, brought in amendment 2.1 to the SafeRoads Alberta Regulation which stated that audio and video recordings were not required records.
The only good thing about the section 2.1 amendment was that it was temporally limited. It was noted that it would expire on or before August 31st of the following year and then just kept getting extended year after year. Except for this year! Now, people who receive a NAP after September 1 must receive a copy of the audio and video recordings generated by police during their investigation.
Everyone at Gunn Law Group is very pleased with the amendment. The best evidence in any case is always going to be found in the audio and video recordings. Almost every police agency has some type of recording and now our clients will be getting them.
Interestingly, and rather stupidly in our opinion, the new amendment which takes effect on September 1, 2026, does not require the police to say whether audio and video recordings existed. The integrity of the system will, therefore, rely heavily on the integrity of counsel or the self-represented individuals who appear in front of the tribunal. If the police don’t have to say whether recordings existed or not, and upload nothing, I can envision a lot of litigants arguing that they saw the little light or they were told that they were recorded and police won’t be able to say anything different. Justice Whitling’s requirement that police say whether recordings existed or not protected both the police and litigants.
FAQs
Does the new amendment help me if I got a notice of administrative penalty before September 1st, 2026?
No. The amendment specifically states that it is only prospective and not retrospective.
Will I get all of the video recordings generated during the investigation?
No. The amendment requires the police to upload a video or audio recording that was generated by police, and which captures most of their interaction with you. However, if other members generated videos that were substantially similar, those other recordings are not required. Also, if third parties generated videos, police are not required to provide those either.
How will I know if the police made a recording during the investigation?
If you saw what appeared to be a recording device or were told that you were being recorded, the answer is easy. If you didn’t, this becomes a complex question which will likely require assistance from a lawyer. Some police agencies are known for recording or not recording. This is an area where having experienced counsel will be extremely beneficial.
Admitted to the Alberta bar in 2002, Shannon thrived in the realm of criminal law, particularly in impaired driving and DUI cases. Her dedication has taken her to the Supreme Court of Canada on numerous occasions, highlighting her expertise in impaired driving litigation.
Shannon’s training on various Intoxilyzer models, along with her proficiency in drug recognition for drug-impaired driving, makes her a formidable legal advocate. Her recent passion for Collaborative Family Law showcases her commitment to peaceful resolutions in family disputes.
