Executive Summary: Key Legal and Evidentiary Issues

• Sufficiency of circumstantial evidence identifying Mr. King as the vehicle’s operator.

• Burden on Mr. King to prove, on a balance of probabilities, grounds to cancel the Notice of Administrative Penalty (NAP).

• Weight given to police observations and witness accounts in the absence of direct evidence.

• Impact of Mr. King’s failure to expressly deny driving the vehicle.

• Consideration of whether lack of police evidence alone could satisfy the applicant’s burden.

• Reasonableness of the adjudicator’s decision under administrative law standards.

Facts of the case

Mr. King applied for judicial review of an adjudicator’s decision dated June 14, 2023, which upheld a Notice of Administrative Penalty (NAP) issued to him under section 88.1(1)(b) of the Traffic Safety Act, R.S.A. 2000, c. T-6. The NAP was issued after an incident on May 22, 2023, when a witness observed a truck hit multiple parked cars at approximately 10:26 p.m. The witness followed the truck to a residence later identified as Mr. King’s. The truck was registered to a female who shared Mr. King’s last name and address. The witness reported that the driver was male.

Police arrived at the residence around 11:05 p.m. A female answered the door and brought Mr. King to the officers. Police observed that Mr. King was uneasy on his feet and smelled of alcohol. Mr. King stated his last drink was “a couple of hours ago.” Constable Rusk demanded a breath sample at 11:05 p.m. Mr. King initially had trouble providing the sample, but at 11:07 p.m. provided a breath sample that resulted in a “FAIL.” He provided two further samples at 11:32 p.m. and 11:47 p.m., both of which also resulted in “FAIL.” Constable Rusk then issued the NAP for operating a motor vehicle with a blood alcohol concentration equal to or exceeding 80mg% within two hours of operation.

Mr. King sought review of the NAP on May 29, 2023, arguing there was insufficient evidence to establish he operated the truck. The adjudicator issued written reasons on June 14, 2023, confirming the NAP. Mr. King then sought judicial review, requesting the NAP be quashed or set aside.

Discussion of policy terms and legal framework

The SafeRoads regime, created by the Traffic Safety Act, Provincial Administrative Penalties Act (PAPA), Provincial Administrative Penalties Regulation, and SafeRoads Administrative Regulation (SAR), is a civil administrative licence suspension regime, not a penal or criminal regime. Section 4 of the SAR provides that a NAP may be cancelled if the recipient did not operate the vehicle. The burden of proof to establish grounds for cancellation is on the recipient, to be met on a balance of probabilities. The adjudicator must consider whether the applicant has met this burden, including the sufficiency of police evidence and any evidence or explanations provided by the applicant.

Outcome and reasoning

Justice A.K. Akgungor reviewed the adjudicator’s decision for reasonableness, as agreed by both parties. The court found that the adjudicator considered all of Mr. King’s arguments, including the fact that the vehicle was not registered to him, the possibility of alternate drivers, and the 39-minute delay between the incident and police arrival. The adjudicator noted Mr. King’s failure to deny driving and his lack of alternative explanation. The court held that the adjudicator’s conclusion—that Mr. King had not met his burden to prove he was not the driver—was reasonable. The adjudicator’s approach was found to be rational and logical, given the evidence and Mr. King’s silence.

Conclusion

The application for judicial review was dismissed, and the NAP was confirmed. No costs were awarded to either party. The Director of Saferoads Alberta was the successful party. The judgment did not specify any monetary award or costs in favor of the successful party.