Overview: One Breath Sample, Two Systems

Alberta’s SafeRoads regime handles impaired driving through an administrative penalty system. The consequences are immediate. A driver can lose their licence, have their vehicle seized, and face significant financial penalties.

The difficulty arises when the same investigative powers used in criminal prosecution are also used to impose administrative penalties.

The Criminal Code sets the national rules for impaired-driving investigations, including when police can require a breath sample. Alberta’s SafeRoads legislation relies on those same investigative powers.

The problem is what happens when those powers are used after an arrest: can a breath demand be valid for the purposes of a SafeRoads penalty even if it would not be sufficient to support a criminal charge?

That is the issue we are asking the Supreme Court of Canada (SCC) to resolve. Michael Oykhman, lead counsel, is bringing the first Immediate Roadside Sanctions (IRS) case to the SCC, asking the Court to decide whether the same breath demand can have different legal consequences depending on whether it’s assessed in a criminal proceeding or through Alberta’s SafeRoads administrative regime.

The case asks whether Alberta’s Traffic Safety Act, and comparable legislation elsewhere in Canada, permits police to make a breath demand once they have already arrested a driver, or already formed reasonable grounds to believe an offence occurred.

As Michael Oykhman puts it, “the lack of clarity has led to significant national uncertainty.”

From a SafeRoads Penalty to the Alberta Court of Appeal

The case began when police found our client asleep in his parked vehicle and arrested him for impaired operation. He asked to speak with a lawyer. Before he had a chance, an officer made a breath demand.

Our client did not provide a sample and was issued a Notice of Administrative Penalty (NAP) for failing or refusing to comply with the demand.

Our client maintained that he had not been drinking and that, after being arrested and advised of his right to counsel, he had chosen to exercise that right before deciding how to proceed.

The SafeRoads Adjudicator (McWilliam (Re), 2022 ABSRA 823) upheld the NAP, finding that a breath demand made after an arrest for impaired operation was not invalid on that basis alone. The demand only had to be sufficiently clear that he understood a sample was mandatory.

Our client challenged that decision in the Court of King’s Bench of Alberta (McWilliam v Alberta (Director of SafeRoads), 2024 ABKB 559), arguing that the demand was unlawful because it was made after his arrest and after police had formed reasonable grounds to believe he was impaired. He also argued that his decision to exercise his right to counsel provided a reasonable excuse for not complying with the demand.

The Court did not accept that the criminal law rules governing breath demands applied in the same way to administrative proceedings. However, it found that the Adjudicator had failed to properly grapple with the right-to-counsel and egregious unfairness arguments and sent those issues back for a new hearing. That hearing has not taken place.

Our client then appealed to the Alberta Court of Appeal (McWilliam v Alberta (Director of SafeRoads, 2026 ABCA 157), seeking to have the NAP quashed entirely. The Court dismissed the appeal. It held that a peace officer does not lose the authority to continue the administrative process simply because the driver has been arrested or because the officer has formed reasonable grounds to believe a contravention occurred.

That decision is the basis for our application to the SCC.

Strategic Criminal Defence’s Challenge

Alberta courts have consistently recognized that SafeRoads does not import every protection available in a criminal prosecution.

In Fish v Alberta (Director of SafeRoads), 2024 ABKB 213, the Court of King’s Bench emphasized that SafeRoads does not share the same purpose as criminal law and should not be interpreted as though it did.

In Leeuwenburgh v Alberta (Director of SafeRoads), 2026 ABCA 143, the Court of Appeal held that the criminal law requirements for a valid breath sample do not automatically become part of the administrative regime simply because the legislation refers to Criminal Code demands.

We accept that SafeRoads and the Criminal Code serve different purposes. The question is where the line should be drawn when provincial legislation relies on investigative powers in the Criminal Code.

We are asking whether police can rely on a Criminal Code breath demand to impose an administrative penalty after a driver has already been arrested or after police have formed reasonable grounds to believe an offence has occurred.

Why This Challenge Matters

As provincial administrative driving programs continue to expand, questions about how Criminal Code breath demands can be used in those proceedings will only become more important. This case gives the SCC an opportunity to clarify where those powers begin and end.

An SCC decision could settle whether a post-arrest breath demand can support an administrative penalty. It would give drivers a clearer answer and provide guidance on an issue that continues to arise in SafeRoads review.

For now, the question remains unresolved. Strategic Criminal Defence will share updates as the application for leave to appeal moves forward.