R v Sarhadi, 2014 ABQB 722

Court of Queen ’ s Bench of Alberta Citation: R v Sarhadi, 2014 ABQB 722 Date: 20141125 Docket: 130559297S1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Jay Sarhadi Appellant Corrected judgment: A correction was issued on December 1, 2014; the changes have been made to the text and the correction is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] Mr. Sarhadi was convicted in the Provincial Court of impaired driving.

He appeals. [ 2 ] Mr. Sarhadi submits that the evidence before the Provincial Court Judge was not sufficient to establish beyond a reasonable doubt that his ability to drive was impaired by alcohol at the relevant time. Mr. Sarhadi raised several specific points in that regard. [ 3 ] In his decision, the Provincial Court Judge first reviewed the evidence of the 3 police officers who were the only witnesses at trial. He noted that this included evidence concerning Mr. Sarhadi’s driving behaviour immediately before he was stopped and observations of his physical condition and movements after he was stopped.

The former included drifting to the edge of the lane in which he was travelling (the centre lane of a 3-lane freeway in Edmonton) over a 7-block distance and then straddling the lane line for 3 blocks before he was stopped. The latter included glazed or bloodshot eyes, slightly slurred speech, speaking slowly and deliberately, an odour of alcohol, slight difficulty locating documents requested by the officer, and wobbly or unbalanced walking. The Provincial Court Judge concluded that this evidence established beyond a reasonable doubt that Mr. Sarhadi’s ability to drive was impaired by alcohol and

found him guilty of that offence. [4] In challenging that conclusion Mr. Sarhadi first points to two discrepancies between the evidence as presented and theProvincial Court Judge’s description of that evidence in his decision. In my view, neither is significant. In particular: - One of the officers who spoke to Mr. Sarhadi at the roadside testified that Mr. Sarhadi spoke slowly. In the Provincial CourtJudge’s

summary of this officer’s evidence in his decision he said the officer testified that Mr. Sarhadi spoke “very slowly”. I note thatlater in his decision, when he again referenced this evidence, the Provincial Court Judge referred to the officer’s observation of Mr.Sarhadi “speaking slowly”. He did not say “speaking very slowly”. In my view no significance should be attached to the ProvincialCourt Judge’s addition of the adverb “very” when he first described the officer’s evidence. - Similarly Mr.

Sarhadi notes that when the Provincial Court Judge described the features of the driving behaviour that heconsidered significant in reaching his conclusion, he said that Mr. Sarhadi had straddled the left-hand lane lines of the centre lane for 3blocks continuously. Early in his decision, when summarizing the officer’s evidence, he said that Mr. Sarhadi had been observedstraddling the right-hand lane lines. That was an accurate description of the evidence. The latter reference to the left-hand lane lineswas, in my view, an insignificant slip. [5] Mr.

Sarhadi next submits that the Provincial Court Judge ought not to have concluded that the things observed by theofficers who dealt with Mr. Sarhadi at the roadside proved impaired driving beyond a reasonable doubt when the officers themselvesconcluded that the same things justified only a suspicion that Mr. Sarhadi was operating a vehicle when he had alcohol in his body. Hadthe officers thought the things they saw justified a belief that Mr.

Sarhadi had driven while impaired they would have arrested him forthat and not simply made a demand for an ASD breath sample. [6] This argument was made to the Provincial Court Judge at the conclusion of the evidence. He did not expressly deal with it inhis decision but, as it had been made not long before he rendered the decision, it is not reasonable to infer that he had not considered it. [7] In any event, it is the assessment of the evidence made by the Provincial Court Judge that matters.

The Provincial CourtJudge here was clearly alive to the point that the offence in question is proven though the evidence is that the accused’s ability to drivewas impaired by alcohol only slightly. When a judge assesses the evidence to determine whether slightly impaired ability to drive hasbeen proven beyond a reasonable doubt, it does not significantly assist one way or the other, that the investigation officer’s observationsraised in that officer’s mind only a suspicion and not a belief. [8] Mr. Sarhadi raises a third point on this appeal which in my view, unlike the points just discussed, has merit.

He submits thatthe following passage from the Provincial Court Judge’s decision indicates that the judge failed to consider and resolve a significantdiscrepancy between the evidence of 2 of the officers: However, both Prandle and Croft observed at different times and different places that the accused had some difficulties with walking,which both characterized as a wobble. Prandle observed it at the roadside, Croft at the station. Constable Croft’s observation is about15 minutes later, the ASD fail was at 2:18, and the arrival at the West Division station was at 2:33.

This indicates to me, and I find, that the accused was having intermittent difficulties keeping his balance while walking. Plainly, this isnot a slight degree of physical impairment. I have evidence before me that the accused had alcohol in his body. I infer that the impairment observed, both in the driving and in hisphysical ability to walk, was caused by his alcohol consumption. [9] Mr. Sarhadi notes that both Officer Prandle and Officer Croft observed Mr. Sarhadi walking at the station. Officer Prandletestified that he did not notice anything abnormal about Mr.

Sarhadi’s walking at the police station – only at the roadside. Officer Croft,the breathalyzer operator, testified that he noticed a slight wobble though he could not recall when testifying specifically what actions hesaw which he characterized as wobbling and he had not checked the box for “unsteady on feet” on the form he used in relation to hisdealings with Mr. Sarhadi. It appears that at the police station the 2 officers were observing the same walking by Mr.

Sarhadi. [10] The difference between the testimony of the 2 officers on this point was not identified in the submissions made to theProvincial Court Judge. [11] It appears clear that the Provincial Court Judge placed significant emphasis on the evidence as to unbalanced walking by Mr.Sarhadi. Though he listed the other observations made of Mr. Sarhadi by the officers – the glazed or bloodshot eyes, slightly slurredspeech, slow speaking, odour of alcohol, difficulty in finding documents, and food on clothing – he appears to have concluded from theseobservations only that Mr.

Sarhadi had been drinking alcohol – not specifically that his ability to drive was impaired. As indicated in thelast sentence quoted above, the Provincial Court Judge concluded that Mr. Sarhadi’s ability to drive was impaired by alcohol because ofthe observations of Mr. Sarhadi’s driving behaviour and of his “physical ability to walk”. [12] It appears that the significance to the Provincial Court Judge of the evidence concerning walking was that it had been seentwice – at the roadside and 15 minutes later at the police station.

It is not clear that the Provincial Court Judge appreciated that there wasa difference between the evidence of the 2 officers regarding the walking. It is not clear that he rejected the evidence of the officer whosaid he noted nothing about Mr. Sarhadi’s walking at the police station. [13] Given the importance of the “walking” evidence to the Provincial Court Judge’s final conclusion, in my view, Mr. Sarhadi hasidentified an error which played an essential part not just in the narrative of the Provincial Court Judge’s decision, but in the reasoningprocess resulting in the conviction.

This is the standard of appellate review identified in R v. Lohrer, 2004 SCC 80 , [2004] 3S.C.R. 732, para. 2.

[ 14 ] I allow the appeal and direct a new trial in the Provincial Court. Heard on the 4 th day of September 2014. Dated at the City of Edmonton, Alberta this 25 th day of November 2014. B.R. Burrows J.C.Q.B.A. Appearances: J.P. Quenneville for the Respondent R.S. Prithipaul, Q.C. for the Appellant _______________________________________________________ Correction of the Reasons for Judgment of The Honourable Mr. Justice B.R. Burrows _______________________________________________________ In the second last line of the first bullet paragraph in paragraph [4], the word adjective has been changed to adverb and the word “slowly” has been changed to “very” .