The "Immediate Roadside Sanctions" (IRS) and the Right to a Roadside Appeal
What Is a Roadside Appeal Under Alberta’s IRS Regime?
The courts have consistently expressed concerns regarding the reliability of roadside screening devices. As a result, it is crucial that a roadside impaired driving investigation include the necessary procedural safeguards.
Alberta’s legislation incorporates the right to a roadside appeal so that a Notice of Administrative Penalty (NAP) recipient may challenge the NAP at the roadside by submitting to a second test. The recipient may also choose to decline the second test, as the right to a roadside appeal is voluntary.
The test for whether an Immediate Roadside Sanction (IRS) recipient has been advised of their right to a roadside appeal is twofold: first, whether the police advised the recipient of their right to a roadside appeal in writing; and second, whether the recipient was aware of their right to a roadside appeal before deciding whether to provide a breath sample or decline the test.
Judicial Recognition of the Right to a Roadside Appeal
Recently, the Alberta Court of Appeal, in the seminal decision of Lausen v Alberta (Director of SafeRoads), reinforced the importance of the right to a roadside appeal:
“As noted by the chambers judge with reference to Sivia v British Columbia (Superintendent of Motor Vehicles), 2011 BCSC 1639 and Goodwin v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, false positives can occur when breath tests are administered using screening devices at the roadside… The right to a second test on a different device helps address these reliability concerns… However, where a driver is not properly advised of their right to a second test, that safeguard is illusory… In such a case, a breath demand may constitute an unreasonable seizure contrary to section 8 of the Charter.” (Lausen, at para 55)
Statutorily, section 88.1(2) of Alberta’s Traffic Safety Act (TSA) requires a peace officer to issue a Notice of Administrative Penalty once the officer has the requisite grounds to believe that a contravention set out in s. 88.1(1) has been committed. The contents of the NAP must comply with PAPA s. 28, SafeRoads Regulation s. 10, and PAPR s. 3.
The clear legislative intent is that the driver be issued the NAP immediately, and then be advised, pursuant to TSA s. 88.1(5), of their right to voluntarily undergo the applicable roadside appeal set out in s. 88.11(2). Section 88.1(5) provides:
“The peace officer shall advise the driver of the driver’s right to voluntarily undergo the applicable test, analysis or evaluation referred to in section 88.11(2).”
Section 88.11(2) of the TSA details how a roadside appeal is to be performed. It specifies that where a driver requests an appeal of a Notice of Administrative Penalty and voluntarily attends immediately at a place designated by the peace officer, a further test is to be administered.
In Lausen v Alberta (Director of SafeRoads), 2023 ABCA 176, the Court confirmed that it is not sufficient for a driver to be merely aware of a right to a second test. Rather, the driver must be advised of their right to voluntarily undergo a roadside appeal of the NAP. At paragraph 63, the Court stated:
“The question is not just whether the appellant was aware of his right to a second test; it is whether he was aware of his right to voluntarily undergo an appeal of the Notice of Administrative Penalty… Such awareness is impossible where the driver has not yet been issued or advised of the NAP.”
The Court in Curtis v Alberta (Director of SafeRoads), 2022 ABKB 632, further highlighted that the voluntary right to a roadside appeal constitutes a constitutional safeguard for Alberta’s IRS regime. In particular, the Court held:
“The objective of the SafeRoads regime is to remove impaired drivers from Alberta highways and reduce death and injury caused by impaired drivers. The regime is constitutionally sound if it provides individuals with a meaningful opportunity to review an initial ASD breath test result.”
Important Legislative Change (December 15, 2021)
Drivers should note that amendments to the SafeRoads Regulation, effective December 15, 2021, removed the right to a roadside appeal where a Notice of Administrative Penalty is issued for failure or refusal to comply with a breath demand.
Conclusion
Whether a failure to properly advise a driver of the right to a roadside appeal provides a viable defence depends on the specific facts of each case, including the timing and content of the officer’s advisement.
If you have received an Immediate Roadside Sanction and are unsure whether your rights were properly explained, legal advice should be obtained promptly.
Whether a defence is available depends on the specific facts of your case.
To discuss your situation and determine your legal options, please contact our office.
