Executive Summary: Key Legal and Evidentiary Issues

• Lawfulness and sufficiency of the Drug Recognition Expert (DRE) demands under both the Criminal Code and the Traffic Safety Act (TSA).

• Adequacy of disclosure by the Director, specifically regarding police and civilian witness records as required under the SafeRoads Alberta Regulation.

• Effect of procedural confusion and failure to advise the applicant of the right to a roadside appeal at the time the Notice of Administrative Penalty (NAP) was issued.

• Whether the applicant’s overnight detention constituted “egregious unfairness” sufficient to justify cancellation of the NAP.

• Reasonableness of the Adjudicator’s decision to uphold the NAP for refusal to comply with DRE demands, despite cancelling the NAP for impaired operation.

• Determination of whether multiple grounds for a NAP can be independently upheld or must be treated as indivisible.

Facts of the case

On September 3, 2023, at approximately 1:30 p.m., the RCMP received two complaints about a suspected impaired driver near Spruce Grove, Alberta. At about 1:50 p.m., Cst. Andrew Park located a white 2018 Chevy Silverado truck matching the description, stopped at a rural intersection with the driver’s door open. The applicant, Kelsey Prue, was in the driver’s seat, exhibiting droopy eyelids and slurred speech. White pills marked “N8” were scattered around the front of the vehicle, including near the driver’s door handle. Prue denied consuming alcohol but stated he took sleeping pills and “a version of cocaine which Mr. Prue explained as stronger version of Adderall.” During the initial interaction, Prue fell asleep four times.

Cst. Park made a Standard Field Sobriety Test (SFST) demand at 1:35 p.m., which Prue failed to complete due to concerns for his safety. Initially, Cst. Park intended to impose an Immediate Roadside Suspension (IRS) based on the failed SFST, but after receiving erroneous advice from another officer that a failed SFST was insufficient for a NAP, he arrested Prue for a DRE evaluation. Prue was informed of his right to counsel and placed in an interview room to call a lawyer. While in custody, Prue was observed to be argumentative, unable to stand, and had vomited on himself. He made several attempts to contact a lawyer and ultimately refused three DRE demands, stating that a lawyer had advised him to refuse.

Prue was held in cells overnight and released between 5:30 a.m. and 6:00 a.m. the next morning. Upon release, he was served with a NAP citing two grounds: operating a motor vehicle while impaired (s. 88.1(1)(a) TSA) and refusal to comply with a lawful demand (s. 88.1(1)(e) TSA). He was not advised of any right to a roadside appeal when the NAP was issued.

Prue sought review before a SafeRoads Adjudicator, arguing: incomplete disclosure of records, failure to advise of the right to a roadside appeal, breach of Charter rights due to overnight detention, and unfairness in the investigation. The Adjudicator found that Prue was not properly advised of the roadside appeal right, but the available records were sufficient to support the NAP. The Adjudicator cancelled the NAP for impaired operation but upheld the NAP for refusal to comply with DRE demands, leaving the penalties in place.

Judicial review and policy terms

Prue applied for judicial review, raising four grounds: unreasonable failure to cancel the NAP due to lack of required records, unreasonable finding that the DRE demands were valid and refusal unjustified, unreasonable refusal to cancel the NAP for “egregious unfairness,” and unreasonable refusal to cancel the NAP for refusal after cancelling the NAP for impaired operation. The Court reviewed the applicable statutory provisions, including s. 88.1 of the TSA and s. 2(h) of the SafeRoads Alberta Regulation, and considered relevant case law.

The Court found that the Adjudicator acted reasonably in concluding that the requested records were not necessary to determine the basis for the NAP, given the evidence of impairment and refusal. The Court confirmed that both federal and provincial legislative powers could be exercised simultaneously, and the DRE demand remained lawful even after the officer decided to proceed administratively. The Court also found that the confusion and overnight detention did not amount to “egregious unfairness” and that the NAP for refusal could be upheld independently of the NAP for impaired operation.

Outcome and reasoning

The Court denied Prue’s application for judicial review. The Adjudicator’s findings on all grounds were held to be reasonable. The NAP for impaired operation was cancelled due to the failure to advise of the roadside appeal right, but the NAP for refusal to comply with DRE demands remained in effect. The Court did not specify any monetary award or costs in favor of the successful party.

Successful party and monetary outcome

The Director of SafeRoads Alberta was the successful party. The NAP for refusal to comply with DRE demands was upheld, while the NAP for impaired operation was cancelled. The judgment does not specify any amount ordered in favor of the successful party, nor does it indicate any costs awarded, so the monetary outcome cannot be determined from the decision.