Law360 Canada (November 3, 2026, 1:19 PM EST) --
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| Michael Oykhman |
Our firm, Strategic Criminal Defence, has filed an application for leave to appeal to the Supreme Court of Canada (SCC). As lead counsel, I am asking the court to decide whether police can still demand a breath sample to support a provincial administrative penalty after they have already arrested a driver or formed reasonable grounds to believe an offence occurred.
From a SafeRoads penalty to the Alberta Court of Appeal
Strategic Criminal Defence is the first in Alberta to take on an Immediate Roadside Sanction (IRS) issue to the SCC. The application arises from
McWilliam v. Alberta (Director of SafeRoads), 2026 ABCA 157, where the Alberta Court of Appeal upheld a Notice of Administrative Penalty (NAP) issued against a driver after he refused to comply with a breath demand.
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The driver was arrested after being found asleep in a parked vehicle. After being advised of his right to counsel under s. 10(b) of the Charter, he indicated he wished to speak with a lawyer. Before being given a chance to call, the officer issued an immediate breath demand under s. 320.27 of the
Criminal Code. The driver did not provide a sample and was issued an NAP.
A SafeRoads adjudicator declined to cancel the NAP, finding that a breath demand made after an arrest for impaired operation was not, on that basis, invalid (
McWilliam (Re), 2022 ABSRA 823). On judicial review, the argument that the demand was rendered unlawful by virtue of having been made post-arrest was treated as a new issue not properly raised before the adjudicator. The Court of King’s Bench addressed it in
obiter and rejected it on the merits, holding that s. 88.1(1) of the
Traffic Safety Act (TCA) does not impose a post-arrest prohibition on ASD (approved screening device) demands (
McWilliam v. Alberta (Director of SafeRoads), 2024 ABKB 559).
The Alberta Court of King’s Bench found the decision unreasonable on a separate point, that the adjudicator had failed to grapple with whether the driver’s invocation of his s. 10(b) right gave rise to a reasonable excuse or egregious unfairness. The court remitted those issues to a new adjudicator. That hearing has not yet occurred.
The driver appealed to the Alberta Court of Appeal, seeking to have the NAP quashed outright. The appeal was dismissed, with the court agreeing that s. 88.1 of the TSA does not render an officer
functus officio — that is, it does not fix a precise moment at which the officer’s authority to continue the administrative process is exhausted. It is this holding that forms the basis of the application for leave.
The limits of Alberta’s SafeRoads regime
Since
Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47, courts have held that provincial administrative driving suspension regimes are not required to import the same protections that apply under criminal law. Alberta’s TSA operates on that principle. Rather than setting out its own rules for what makes an ASD demand valid, s. 88.1(1)(e) of the TSA provides that an NAP may be issued where a driver fails or refuses to comply with a demand made under sections 320.27 or 320.28 of the
Criminal Code.
In
Fish v. Alberta (Director of SafeRoads), 2024 ABKB 213, the Court of King’s Bench held that borrowing the
Criminal Code’s demand provisions does not establish an unlawful demand as an enumerated ground for NAP cancellation, though it may bear on reasonable excuse or egregious unfairness. In
Leeuwenburgh v. Alberta (Director of SafeRoads), 2026 ABCA 143, the Court of Appeal confirmed that this incorporation likewise does not import the criminal law’s validity requirement as a freestanding ground for cancellation.
The question that remains is whether the same principle extends to the timing of the demand.
McWilliam asks the SCC to consider whether an ASD demand can be made after a driver has already been arrested, or after police already have reasonable grounds to believe an offence occurred.
Strategic Criminal Defence’s challenge
Administrative driving suspension regimes have expanded across the country since
Wilson, each leaning on the same
Criminal Code breath demand powers, yet no province has pinned down where an officer’s administrative authority under those powers runs out. Leave that unresolved, and the same police conduct will continue to have different legal consequences depending on the province, or the forum, in which it is addressed.
We point to
Gordon v. British Columbia (Superintendent of Motor Vehicles), 2022 BCCA 260, where the British Columbia Court of Appeal recognized that leaving drivers, and the lawyers advising them, without some symmetry between the criminal and administrative treatment of a breath demand risks an untenable situation where the same police conduct can be judged differently in either regime. The application also relies on
Zeid v. New Brunswick (Registrar of Motor Vehicles), 2026 NBKB 115, in which the New Brunswick Court of King’s Bench cited
Fish to hold that its own administrative regime does not need to incorporate
Criminal Code protections. This is evidence, we argue, that the same interpretive question is recurring in multiple provinces.
Should the SCC grant leave, a lot gets settled at once: whether an arrest cuts off an officer’s power to demand a breath sample, whether the
functus officio argument still has legs, and how far an officer’s administrative authority extends. Until then, the question remains open.
Michael Oykhman is the founder and lead counsel of Strategic Criminal Defence. He has nearly 20 years of criminal defence experience and has represented clients in thousands of cases, from impaired driving and domestic assault to firearms, fraud, drug offences and Charter litigation. When not in court, Michael is committed to legal education and access to justice. He teaches trial advocacy at the University of Calgary, guest lectures in first-year crime and clinical practice and serves as an advising lawyer with Student Legal Assistance. He also coaches Gale Cup moot teams and supports student mentorship and lawyer development. This article was prepared with the help of articling student Jemma O’Malley.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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