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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…

Rusinko v Alberta (Director of SafeRoads), 2025 ABCA 121 per Slatter, Shaner, and Feth Section 7 cannot be successfully argued Director’s appeal of Justice Harris’ decision to reject the Director’s application to strike pleadings based on s. 7 of the Charter. Multiple applicants had successfully argued that s. 7 could be raised in the context of the SafeRoads Regime. Relying on the Court of Appeal’s decision in Sahaluk v Alberta (Transportation Safety Board), 2017 ABCA 153, Justice Harris held that such applicants were not without hope of success Held: Appeal Allowed As recipients of NAPs do not face imprisonment, they cannot rely on s. 7 of the Charter. The decision in Sahaluk was based on a different legislative scheme. Under the SafeRoads regime, the administrative…

McNalley v Alberta (Director of SafeRoads)2025 ABCA 98 – per de Wit, Woolley and Feth Right to Counsel Ends with Screening Defence appeal of Carruthers J.’s dismissal of judicial review. Police arrested Ms. McNalley, who asserted her right to counsel when police offered it. Before she could speak to a lawyer, the police made an ASD demand, which she refused. A NAP was issued on the basis of both impairment and refusal. The police also searched the appellant’s home prior to the arrest. Held: Appeal Dismissed A NAP was issued for refusal to comply with breath demand. The court found that the right to counsel is suspended as soon as a demand for a screening demand is made under s. 320.27(1)(b) of the Criminal Code….

Kolner v Alberta (Director of SafeRoads)2024 ABKB 456 – per Bokenfohr A parallel investigation means compliance with both criminal and administrative rules Kolner was arrested and read his Charter rights. He asserted his right to counsel and the police then ignored his answer and went on with the roadside appeal. Held: Judicial Review allowed in part, but the NAP was confirmed. Justice Bokenfohr applied other judicial review decisions and concluded the right to counsel had been breached. The values underlying Charter rights must be respected in the SafeRoads regime. Once the driver was arrested, he was entitled to his right to counsel. However, at the time Kolner was decided by the Adjudicator, the law on the application of the Charter in SafeRoads cases was uncertain….

L’hirondelle v Alberta (Director of Saferoads), 2024 ABKB 543 Spotlight on Court Case of the Month Characters: Justice McGuire, Def: A. Klassen Take-Away: While it is the Applicant’s burden to show that the grounds to cancel the NAP have been met, the Applicant can rely on the absence of evidence to support their position in discharging that burden. Highlights: A witness called police to report a vehicle having driven into the ditch and suspected the driver was impaired. The witness was not on scene when police arrived. Police found the applicant in the back of another bystander’s vehicle, but no one provided evidence that the applicant had been the driver of the vehicle. The applicant blew a “FAIL” on an ASD and was issued a…