Executive Summary: Key Legal and Evidentiary Issues

• Presumption of care or control arose as the appellant was found in the driver’s seat while impaired, despite no evidence of actual driving.

• The main issue was whether the appellant rebutted the presumption of care or control on a balance of probabilities, relying on his and Mr. Charles’s uncontradicted evidence.

• The adjudicator rejected the appellant’s and Mr. Charles’s evidence without providing sufficient reasons, particularly regarding credibility and reliability.

• The reviewing justice identified errors in the adjudicator’s reasoning but upheld the decision based on the finding of care or control.

• The Court of Appeal found the adjudicator’s decision unreasonable due to a lack of justification, transparency, and intelligibility, especially regarding the rejection of corroborated evidence.

• The Notice of Administrative Penalty (NAP) was quashed and not remitted for rehearing, resulting in the cancellation of the NAP.

Background and incident details

Talon Archie Garnet was issued a Notice of Administrative Penalty (NAP) after failing two breath tests. Garnet was not observed driving but was seated in the driver’s seat when police arrived, which resulted in a presumption that he was in care or control of the vehicle. The incident occurred just after 1:00 AM on November 19, 2021. It was undisputed that Garnet’s ability to operate a motor vehicle was impaired by alcohol at that time, and that he was aware of this. Garnet had asked his sober friend, Mr. Charles, to drive him in his vehicle to a convenience store parking lot, where Garnet engaged in a consensual fight with another person.

A concerned citizen called the police about the fight. The police first dealt with other individuals involved. Garnet and Mr. Charles, who were not wearing coats and were outside in approximately -15°C weather, got into Garnet’s vehicle to stay warm while waiting for police. When police approached, Garnet was in the driver’s seat and Mr. Charles in the passenger seat. Only Garnet was questioned. The officer noted signs of impairment, including the smell of alcohol on Garnet’s breath and unclear speech. Garnet admitted to consuming several drinks and failed two approved screening device breath tests. Garnet asked if Mr. Charles could drive him home, but the officer said no. Mr. Charles was not questioned and did not provide information to police. The police issued a NAP to Garnet.

Administrative review and legal framework

Garnet applied for an oral review of the NAP, which took place on December 2, 2021. He challenged the NAP under section 4(e)(i) of the SafeRoads Alberta Regulation, Alta Reg 224/2020, contending that he did not operate the motor vehicle. Section 1(1)(l) of the Traffic Safety Act, RSA 2000, c T-6 defines “driving” or “drive” as including “having the care or control of a vehicle.” The burden of proof was on Garnet on a balance of probabilities.

The Provincial Administrative Penalties Act, SA 2020, c P-30.8, allows a recipient of a NAP to provide records, representations, arguments, or evidence in support of their argument. No person may be cross-examined in a review. Written submissions, with affidavit evidence from Garnet and Mr. Charles, were submitted, and Garnet also provided viva voce evidence at the hearing. The notes of the attending officer were entered into evidence.

There was no evidence that Garnet was driving at the relevant time, so the issue was whether he nevertheless had care or control of the vehicle because he was found sitting in the driver’s seat. The parties agreed that the applicable framework for determining care or control was as described by the Supreme Court of Canada in R v Boudreault, 2012 SCC 56 at paras 33-38.

Garnet’s evidence was that he got into the driver’s seat because it was closest to where he was standing when police arrived, and the plan was for Mr. Charles to drive after they spoke to police. Mr. Charles’s evidence was consistent, stating he was the driver because he was sober and Garnet never intended to drive. Both deposed that they were confused as to why only Garnet was questioned and a breath sample was requested from him.

The reasons of the adjudicator

The adjudicator provided a three-page decision. She identified the key issues as whether Garnet had rebutted the presumption of care or control by his position in the driver’s seat, and alternatively, whether there remained a realistic risk of danger to persons or property. The adjudicator found that Garnet had not rebutted the presumption and that his actions constituted a realistic risk of danger. She found that the vehicle had to be running if Garnet got in to stay warm, and that he intended to set the vehicle in motion. She also found that even without an immediate intention to drive, there was a realistic risk that Garnet would have changed his mind and driven, posing a realistic risk of danger. The adjudicator noted that neither Garnet nor Mr. Charles told the officer that Garnet had not been driving and had no intention of doing so. The NAP was confirmed.

Judicial review and appellate analysis

Garnet sought judicial review, arguing the decision was unreasonable because the adjudicator ignored uncontradicted evidence and made unreasonable inferences. The reviewing justice identified several errors, including with the finding of a realistic risk of danger, but concluded that the finding of care or control was reasonable and confirmed the NAP.

The Court of Appeal determined that the reviewing justice correctly identified the standard of review as reasonableness. The appellate court conducted a de novo review of the administrative decision. The Court found that the adjudicator’s conclusions did not meet the Vavilov standard of reasonableness. The affidavits and viva voce evidence provided uncontradicted evidence that Garnet had a plan to avoid driving while intoxicated, had used that plan, and Mr. Charles was present to drive him home. The adjudicator failed to explain why she rejected this corroborated evidence and did not address the impact of the intervening fight or make findings on credibility or reliability. The reasons were based on assumptions rather than evidence.

The Court of Appeal found that the adjudicator’s reasons lacked justification, transparency, and intelligibility on the central issue of credibility. The reasons failed to address the uncontradicted evidence from both Garnet and Mr. Charles that Mr. Charles had driven to the convenience store and intended to drive home. The adjudicator made no finding on this point, which was crucial to assessing whether Garnet intended to drive or posed a realistic risk of danger.

Outcome

The appeal was allowed and the adjudicator’s decision was quashed. The Court declined to remit the matter for rehearing. The NAP was therefore cancelled. The appeal was heard on December 6, 2024, and the memorandum was filed on August 28, 2025. No exact monetary amount was determined or awarded, as the result was the cancellation of the administrative penalty, making Garnet the successful party.