Law360 Canada (July 9, 2026, 9:26 AM EDT) --

John L. Hill

The term “cooperative federalism” is rarely used nowadays. It is a concept that both federal and provincial lawmakers need not work in “watertight compartments.” Each level of government can enact laws addressing specific problems within its own jurisdiction.

When federal and provincial authority overlap, one need not displace the other. Yet that was the position of an appellant who argued that his penalty under a provincial highway law infringed the rights that he would have enjoyed under the federal criminal law (Leeuwenburgh v. Alberta (Director of SafeRoads), 2026 ABCA 143).

Police stopped Jack Leeuwenburgh on April 3, 2022, after an officer responded to a trespass complaint. Although the first officer did not detect alcohol, he observed signs of possible impairment. He requested that a second officer administer a mandatory roadside breath screening using an approved screening device (ASD). According to the evidence, Leeuwenburgh attempted to provide a breath sample 11 times but failed to produce an adequate sample. As a result, he was issued a Notice of Administrative Penalty (NAP) under s. 88.1(1)(e) of Alberta’s Traffic Safety Act for failing or refusing, without reasonable excuse, to comply with a lawful breath demand.

Leeuwenburgh sought review of the NAP, arguing that the director of SafeRoads Alberta failed to disclose all relevant records, particularly the notes or report of the second officer who administered the ASD. He also argued that he did not refuse to comply with the breath demand and had no reasonable excuse because he tried to provide a sample. Still, the machine would not work, and the proceedings were procedurally unfair.

The adjudicator rejected these arguments and upheld the NAP. The Court of King’s Bench dismissed Leeuwenburgh’s application for judicial review, after which the appellant appealed to the Alberta Court of Appeal. The appeal was heard on May 3, 2025, but the decision was not released until April 30, 2026.

Justice Joshua B. Hawkes delivered the reasons for dismissing the complaint. Justices Jolaine Antonio and Anne Kirker wrote a dissent, although they concurred in the result.

The Court of Appeal dismissed the appeal, concluding that the adjudicator’s decision was reasonable.

The court held that the SafeRoads administrative scheme sets out carefully defined disclosure obligations that differ from those in criminal proceedings. The director is required to disclose only those records specified by the governing legislation, together with any additional records the director considers “relevant and necessary” to explain the basis for issuing the NAP.

Although no report from the second officer was disclosed, the court found that the report prepared by the issuing officer, Constable Bemke, adequately explained the basis for the NAP by describing the following:

• Leeuwenburgh’s apparent impairment,
• his inability to follow instructions, and
• his 11 unsuccessful attempts to provide a breath sample.

Accordingly, the adjudicator reasonably concluded that the director had complied with the statutory disclosure requirements and that there had been no breach of procedural fairness.

The court also rejected Leeuwenburgh’s argument that the validity of the Criminal Code breath demand had to be established before the NAP could stand. It emphasized that the SafeRoads regime is an administrative licensing scheme, not a criminal prosecution, so criminal law principles governing the validity of breath demands do not automatically apply. Unless the legislation specifically makes the demand’s validity a ground for cancelling the NAP, the absence of such a ground does not invalidate the administrative penalty.

The court further declined to consider several disclosure arguments raised for the first time on appeal because they had not been raised during the judicial review proceedings.

The other two judges wrote separate reasons, even though they agreed with the result. Justices Antonio and Kirker agreed that the appeal should be dismissed but wrote separate concurring opinions to clarify two important aspects of the law.

First, they addressed procedural fairness. Although they agreed there had been no disclosure breach, they highlighted an important distinction between the documents the director is legally required to disclose to the recipient before the review and the broader range of evidence an adjudicator may consider during the review.

They observed that these statutory provisions are not perfectly aligned. As a result, there may be cases where the director fully complies with the disclosure requirements, yet the adjudicator receives additional evidence. In those situations, if the director provides no contradictory evidence, the adjudicator may be required to accept the recipient’s uncontradicted evidence. The majority reasons did not discuss this nuance.

Second, they elaborated on the argument regarding the breath demand’s validity. They agreed that criminal law requirements should not be imported into Alberta’s regulatory SafeRoads regime but emphasized that police powers are not unlimited. Although the technical validity of the breath demand is not, in itself, a statutory ground for cancelling an NAP, officers must still exercise their powers consistently with the purposes of the legislation, basic fairness and Charter values. An abuse of those powers, or conduct that is egregiously unfair, could justify cancelling an NAP, even if an ordinary challenge to the breath demand’s legality would not.

Thus, the concurring judges agreed with the outcome but wrote separately to clarify how disclosure obligations operate under the legislation and to explain that, although criminal law concepts of a “valid demand” do not apply directly, police conduct under the SafeRoads regime remains subject to meaningful legal limits.

This decision seems troubling, as it appears the Alberta Court of Appeal is dismissing protections afforded by federal criminal law in favour of provincial legislation.

The apparent conflict disappears once you recognize that the Criminal Code and Alberta’s SafeRoads regime serve distinct legal purposes. The Alberta Court of Appeal emphasized that distinction, while the concurring judges were also careful to ensure that administrative powers are not treated as unlimited.

The Criminal Code and the SafeRoads regime are two different legal systems. A demand under ss. 320.27 or 320.28 of the Criminal Code can have two separate legal consequences: (a) criminal: a refusal can result in a criminal prosecution carrying the possibility of imprisonment and a criminal record, and (b) administrative: the same refusal can trigger an immediate licence suspension and administrative penalties under Alberta’s Traffic Safety Act.

The court relied heavily on Supreme Court of Canada decisions (Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47; Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46) holding that provinces may create administrative licensing schemes that operate independently of the criminal process because the consequences are regulatory rather than penal.

Justice Hawkes essentially reasoned that Parliament defined the police power to make a demand, but Alberta is free to determine the administrative consequences that follow when someone fails to comply. Therefore, Alberta need not import every criminal law requirement developed for criminal prosecutions. None of the Appeal Court judges used the term “cooperative federalism,” but perhaps that is the best way to justify their reasoning.

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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