Outside the 7-day appeal for the impaired charge? Here is hope!

Getting stopped for a DUI never happens at a good moment. However, sometimes, it happens at a time when you just aren’t able to deal with it. Unfortunately, the IRS scheme waits for no one. If you got an Immediate Roadside Sanction for impaired driving (by alcohol or a drug), refusal, or failure to provide samples, you are expected to start your appeal within seven days. If you don’t, you will have to make an application to apply for late review.

When the SafeRoads regime first came into being, my assumption was that those late reviews were going to be easy to get. It would enhance the look of fairness, apart from actually being fair. And I feel like that was the case, but then morphed into something uglier.

At one point, it was almost feeling impossible to get late reviews. Then Justice Woolley came down with a decision, Brine v Alberta (Director of SafeRoads), 2022 ABQB 552 whichseems to have been having a positive effect. In this blog, we’re talking about the legislation and the one case issued so far which has interpreted it.

Section 7 of the Provincial Administrative Penalties Act permits a driver who has been given a Notice of Administrative Penalty (“the NAP”) for impaired driving, driving with a blood alcohol level over the legal limit, refusal or any other of those alcohol or drug related driving offences the possibility to file a request for a review. The legislation requires that that appeal be filed within seven days of the notice being issued.

However, section 20(1) of the same Act says that a driver may request a late review within 12 months of having received the nap. When our office first saw that section, it did give us hope. After all, if you have up to a year to file for the late review, we would expect that if you’re only a few days late, you would have no problem getting the late review. Right? Not quite. If section 20(1) were the only legislative guidance, that might be true.

Section 20(2) goes on to indicate that it is only where the driver shows that one of the prescribed exceptional circumstances existed that the late review will be granted. Section 10 of the Provincial Administrative Penalties Regulation defines what an exceptional circumstance is. They include the following:

1.  the driver was unaware of the NAP, and upon becoming aware of it took prompt action to notify the Director,
2. the driver experienced physical or mental incapacity rendering the driver unable to respond to the Notice within the time provided and, upon regaining capacity, took prompt action to notify the Director, or
3. the driver experienced unforeseen and unavoidable events rendering the driver unable to respond to the NAP in time but then, after that, took prompt action to notify the Director.

We should all be grateful to Mr. Brine and his counsel. When clients lose at the first level of the fight, they often don’t want to go any further. They lose confidence in their counsel and/or confidence in the system itself. Mr. Brine perhaps had reason to lose confidence on both counts but he and his lawyer soldiered on and were vindicated when they arrived in front of Justice Woolley on judicial review.

What happened in Mr. Brine’s case was that his lawyer wrote down the wrong time for the review. Instead of 1300 hours, he wrote down 1500 hours, which equated to 3:00 PM. It’s an easy mistake to make. The lawyer and his client were shocked when they went to do a test run for the appeal at 2:30 pm, only to find it was supposed to have been an hour and a half earlier. The review was deemed to have been abandoned.

Mr. Brine’s lawyer acted quickly.  The same day, he contacted SafeRoads to let them know about his mistake. The adjudicator on the later review found that as no written materials had been submitted and neither the lawyer nor the driver had appeared for the review, the NAP was confirmed. The adjudicator found there were no exceptional circumstances.

Thankfully, Mr. Brine and his counsel did not just accept that awful decision. On judicial review to the Court of King’s Bench, Justice Woolley wrote a rousing decision which I enjoy reading every time I go back to it. She wrote at paragraph 40,

It is, in my view, an unfortunate choice by the legislature to write a law that does not accommodate ordinary human frailty. The system of laws risks undermining the voluntary compliance on which it depends if it becomes too far detached from how people live, and what it means to be human. People may simply not respect a system of social ordering which does not understand or account for the realities of people’s lives. Particularly where, as here, administrators use unfamiliar time conventions – 1300 – and the mistakes are relatable and understandable – failing to press the correct button or failing to write down the correct time. Who hasn’t made that sort of mistake from time to time? To provide no possibility for forbearance, even where the subject of the administrative penalty quickly realized their error, and notified SafeRoads that they had done so, would be unfortunate.

 In the end, Justice Woolley found that a client expects their lawyer to do things in the proper way. In another case where a lawyer failed to press the “submit” button to ensure the submission of his client’s written materials, the Director of SafeRoads had conceded that that was an exceptional circumstance. The client expects the lawyer to do their job properly and he did not do it; lawyers are human too.  But then the Director tried to take a different position on Brine and Justice Woolley was having none of it.

The take-away is this: if you are late for a review – if that seven-day appeal period has passed -and you think there is nothing you can do, think again! There is still hope! But do not wait any further, contact counsel because they will be able to frame the application for late review in a way that hopefully allows you to come within one of those exceptional circumstances that allows you to get a hearing and get on with your life!