Administrative vs. Criminal Penalties in Alberta’s Immediate Roadside Sanction System

In Alberta, a single impaired driving incident can lead to two separate legal processes:

1. An administrative penalty under the Immediate Roadside Sanctions (IRS) framework, and
2. A criminal charge under the Criminal Code of Canada.

These two paths operate independently, each serving different purposes: one regulatory, the other punitive. The distinction is important for understanding the rights and consequences drivers face.

The Key Differences

When Both Can Apply

Police officers do have the discretion to issue both an IRS penalty and criminal charge for the same incident, this is especially in aggravated cases involving:

• Repeat impaired driving history
• Collisions causing injury or death
• Exceptionally high blood alcohol levels
• Committing additional offences
• Where children are present

Despite arising from the same facts, these are considered distinct legal matters and do not violate double jeopardy principles (more information on this can be found in this decision: R v Bushey). This is because administrative penalties are regulatory, not punitive. As a result, an officer may choose to proceed with both an administrative penalty and criminal charges based solely on their roadside assessment, without needing any additional legal justification.

Different Legal Standards and Procedures

Administrative penalties rely on procedural compliance, such as:

• Proper disclosure of records
• Supporting Document Declarations (SDDs) authenticating police uploads
• Complete and legible officer reports

Failure to meet these requirements can void an IRS entirely. For more information about records when it comes to an IRS, click here.

In contrast, a criminal case is decided on evidence of impairment, all subject to the Charter and courtroom rules of evidence.

Understanding the dual nature of administration and criminal penalties helps clients make informed decisions as administrative hearings move quickly and missing deadlines can forfeit your right to challenge. Further criminal proceedings can unfold more slowly, but carry heavier consequences.

Right to Counsel in Criminal vs. Administrative Context

One of the biggest points of confusion in impaired driving cases is when a driver has the right to speak to a lawyer.

During a roadside detention, police generally do not have to give a driver access to a lawyer, regardless of whether the investigation later becomes criminal or administrative. Once police arrest a driver, however, section 10(b) of the Charter usually requires them to advise the driver of the right to a lawyer and give them a chance to contact one.

The Immediate Roadside Sanctions regime complicates this. It allows police to delay access to a lawyer to complete roadside testing, even after an arrest in some circumstances. Courts have struggled with how far that suspension can go, and the law in this area remains unsettled and highly dependent on the specific facts.

As the Alberta Court of King’s Bench explained in Kolner v Alberta (Director of SafeRoads),  in which Michael Oykhman acted as counsel, the right to counsel operates very differently in administrative proceedings than in criminal ones. The Court observed that:

[5] … Charter rights that might be engaged in a criminal investigation might not be engaged in an administrative investigation.

It was noted in this case that while an officer can lawfully proceed with an IRS without offering legal advice first, problems arise when police fail to clarify which process they are pursuing:

[35] … For the Officer to be relieved of the duty to facilitate an opportunity for the Applicant to contact counsel, the Officer needed to… advise the Applicant that the criminal investigation was concluded, and advise the Applicant that the Officer was proceeding with an administrative investigation only.

The Court emphasized that a driver’s understanding of their legal jeopardy matters. If a driver reasonably believes they are under arrest and facing criminal charges, denying them access to counsel can breach section 10(b), even if the matter later shifts to the administrative regime.

Ultimately, the Court concluded that the officer breached the driver’s Charter rights but declined to cancel the IRS penalty, emphasizing instead that officers must clearly separate criminal and administrative processes moving forward:

[57] … Once the Applicant was placed under arrest his right to counsel was no longer suspended. The Applicant should have either been told he was no longer under arrest, or the Officer should have given the Applicant an opportunity to contact counsel before offering or administering the appeal test.

Lawyers at our firm continue to advance these arguments on behalf of clients currently facing Notices of Administrative Penalty.

Criminal Arrests and Administrative Awareness

The consequences of failing to clearly separate criminal jeopardy from administrative penalties are not merely theoretical. They arise frequently in Immediate Roadside Sanction cases and can directly undermine a driver’s ability to make informed decisions at the roadside.

That reality is illustrated in Ahrberg (Re), argued by Neal Dixon, where the adjudicator cancelled an IRS after finding that the recipient’s understanding of the roadside appeal was fundamentally distorted by the surrounding criminal context. At the time the roadside appeal was offered, the recipient had been arrested for impaired driving and other criminal offences, read a Charter caution, told he had a right to a lawyer, and physically restrained and tasered shortly beforehand.

Against that backdrop, the adjudicator found that the recipient’s confusion was not speculative or self-serving, but a fact established on the evidence. As the adjudicator explained:

[19] … While the Recipient was made aware of the NAP, given he was under criminal investigation and arrest, he believed a second test would incriminate him further.

Importantly, the adjudicator did not fault the recipient for misunderstanding the roadside appeal. Instead, the decision turned on the officer’s failure to clearly delineate the administrative process from the criminal investigation. The adjudicator expressly found:

[19] … I find there were particular circumstances present that could have confused the Recipient.

And further:

[19] … On a balance of probabilities… I am satisfied the Recipient did not have sufficient awareness.

The adjudicator emphasized that awareness under section 88.11 of the Traffic Safety Act is not a formalistic or checkbox inquiry, but one that must be assessed contextually:

[18] … The question of whether the Recipient was unaware of the right to a roadside appeal is a factual assessment in the totality of the circumstances.

Applying that framework, the adjudicator concluded that the recipient was never made sufficiently aware that the roadside appeal was a voluntary administrative safeguard, distinct from the criminal charges he believed he was facing:

[19] … The Recipient was not sufficiently aware at the relevant time that the roadside appeal was a voluntary appeal of a provincial NAP or provincial sanctions he was facing, and separate from the criminal investigation and charges.

In the presence of criminal arrest, Charter cautions, and an invoked right to counsel, the failure to clearly explain the administrative nature and limited consequences of the roadside appeal rendered the recipient’s decision uninformed. That lack of awareness was decisive, and the IRS was cancelled.

Criminal Arrest, Use of Force, and Reasonable Excuse

If Ahrberg illustrates how criminal context can undermine a driver’s awareness of administrative rights, Hamid (Re) demonstrates how that same context can amount to a reasonable excuse for refusing a breath demand altogether.

In Hamid, also argued by Neal, the adjudicator was required to assess whether a driver who had been violently arrested, tasered, handcuffed, and advised of his right to counsel could reasonably refuse to comply with a breath demand without first speaking to a lawyer. The adjudicator found that, in the totality of the circumstances, the refusal was reasonable.

The adjudicator began by recognizing that the recipient’s request to speak to a lawyer arose after a criminal arrest involving significant force:

[12]… It is clear the Recipient was under arrest… physical force was used including the Recipient being tasered. The Recipient was then handcuffed, and placed in the back of the police vehicle.

Critically, the adjudicator found that the recipient had been advised of his right to counsel and had invoked it, but was never told that this right was suspended for the purpose of roadside testing:

[13] … There is also no evidence before me [that] the officers explained to the Recipient at any time his right to counsel was suspended pursuant to roadside breath testing for the TSA investigation.

As in Ahrberg, the adjudicator did not treat the recipient’s confusion as unreasonable or self-generated. Instead, the adjudicator expressly accepted that the criminal arrest context created genuine confusion:

[13] … I find the totality of the evidence lends credence to the Recipient’s claim that he was highly confused, given the arrest and physical altercation and why he did not comply with the breath sample.

Relying on appellate guidance, the adjudicator emphasized that fair process requires both police and drivers to understand which investigation is being conducted:

[11] … A fair process will require that both the police officer and the driver understand what is happening and pursuant to which investigation (criminal or TSA) as the investigation(s) progress.

Applying that framework, the adjudicator concluded that a reasonable person in the recipient’s position would not comply with a breath demand until either access to counsel was provided or the legal landscape was properly explained:

[14] … I am persuaded… that a reasonable person in similar circumstances as the Recipient here, would reasonably refuse or fail to comply until access to legal counsel was provided; or some explanation given that the right to counsel is suspended for the breath sample of a TSA investigation.

On that basis, the adjudicator found that the recipient had established a reasonable excuse under section 4(i)(v) of the SafeRoads Alberta Regulation, and cancelled the Notice of Administrative Penalty (para 15–17).

Why These Cases Matter

Taken together, Kolner, Ahrberg, and Hamid reflect a consistent and developing principle in Alberta impaired-driving jurisprudence: when police conduct blurs the line between criminal investigation and administrative enforcement, the consequences fall on the state, not the driver.

In Kolner, the Court confirmed that while the right to counsel may be temporarily suspended in an administrative roadside context, that suspension cannot persist once a driver is arrested or reasonably believes they face criminal jeopardy. Clear communication is required.

Ahrberg shows how criminal arrest and Charter cautions can undermine a driver’s awareness of administrative rights, rendering a roadside appeal decision uninformed. Hamid goes further, holding that in circumstances involving arrest, force, and Charter warnings, confusion may amount to a reasonable excuse for refusal.

Together, these cases confirm that although the IRS regime limits certain Charter protections, procedural clarity and fairness remain essential.

Strategic Criminal Defence: Experience Where Criminal and Administrative Processes Overlap

At Strategic Criminal Defence, we routinely litigate cases at the intersection of criminal law and Alberta’s administrative IRS regime. These matters are often decided not by test results alone, but by whether police clearly separated criminal jeopardy from administrative enforcement.

Our lawyers regularly advance these arguments before SafeRoads Alberta and the Alberta courts. Decisions such as Kolner, Ahrberg, and Hamid illustrate how confusion arising from overlapping criminal and administrative processes can carry legal consequences, and confirm that IRS decisions remain subject to meaningful legal scrutiny when fairness breaks down.