COURT OF APPEAL FOR ONTARIO
Trotter, Wilson and Pomerance JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Fereidon Hayatibahar
Appellant
Laura Remigio, for the appellant
Jennifer Epstein and Patrick Quilty, for the respondent
Heard: January 29, 2026
On appeal from the convictions entered by Justice Joseph Di Luca of the Ontario Superior Court of Justice on June 21, 2022, with reasons reported at 2022 ONSC 3692, and from the sentence imposed on September 9, 2022, with reasons reported at 2022 ONSC 5154, 95 M.V.R. (7th) 25.
A. Introduction
1On August 18, 2019, after a day of drinking, the appellant drove a Mercedes-Benz SUV on Yonge Street in Toronto at speeds reaching 170 km/h, and possibly higher. Inevitably, he lost control of the vehicle and swerved into oncoming traffic.
2The results were devastating. The driver of one of the vehicles the appellant collided with, Peyman Masoomi Fard, died at the scene while his wife and son looked on. They too suffered significant injuries, but survived. Another driver, Malihe Ardekani, also suffered serious injuries.
3The appellant and his passenger, Farbod Riazi, were able to get out of the Mercedes unassisted. They were largely uninjured, except for marks on their shoulders. As minor as these scrapes were, they proved to be very significant in identifying who was driving at the time of the crash.
4When the police arrived on the scene, they could not immediately determine who was the driver. They arrested both the appellant and Mr. Riazi and transported them to the hospital. After further investigation at the hospital, a few hours later, Mr. Riazi was released without charge.
5The appellant was charged with one count of criminal negligence causing death, one count of impaired driving causing death, and three counts each of criminal negligence causing bodily harm and impaired driving causing bodily harm. He was found guilty on all counts. The trial judge imposed a global sentence of nine years’ imprisonment.
6The appellant admitted at trial that the Mercedes was driven in a dangerous manner when it collided with oncoming traffic. However, he denied that he was driving the vehicle at the time. Although he testified on a voir dire in support of his claim that his rights under the Canadian Charter of Rights and Freedoms were infringed during the early stages of the investigation, he did not testify on the trial proper. The trial judge’s reasons for the Charter ruling are available at R. v. Hayatibahar, 2022 ONSC 1281, 503 C.R.R. (2d) 193.
7The appellant appeals his convictions on the basis that the trial judge erred: (1) in finding that the appellant was the driver of the Mercedes; (2) in finding that the police did not infringe his rights under s. 9 of the Charter by arresting him without reasonable and probable grounds; (3) in finding that his rights under s. 8 of the Charter were not infringed when the police searched his pockets at the hospital and then subsequently seized his blood and medical records; (4) in finding that his rights under s. 10(b) of the Charter were not infringed when the police delayed implementing his right to counsel until a Farsi-speaking officer could be dispatched; and (5) in failing to exclude more evidence under s. 24(2) of the Charter after finding breaches of ss. 10(a) and 10(b) at the scene and later at the hospital. The appellant also appeals his sentence on the basis that it was demonstrably unfit and the trial judge failed to consider the principle of restraint.
8The following reasons explain why the appeals against conviction and sentence are dismissed.
B. factual overview
9The following provides a general overview of the evidence at trial. Other evidence is referred to below in relation to the grounds of appeal.
10The appellant was 19 years old at the time of the collision. He spent the day with Mr. Riazi at a waterpark. The two men consumed a lot of alcohol during the day. Expert evidence adduced at trial demonstrated that the appellant’s blood-alcohol concentration would have been between 178 to 210 mg/100ml at the time of the collision.
11The appellant and Mr. Riazi left the waterpark in the Mercedes. The vehicle belonged to Mr. Riazi’s mother. Mr. Riazi drove to a McDonald’s restaurant in Richmond Hill. Data gathered from the Mercedes’ on-board computer system showed that Mr. Riazi also drove at very high speeds that day. At the McDonald’s, they decided to drop off a friend at a nearby location. According to Mr. Riazi, he and the appellant switched positions at this point because the appellant wanted to test-drive the Mercedes.
12After dropping off their friend, the appellant and Mr. Riazi headed back to McDonald’s. As they proceeded down Yonge Street in Richmond Hill, the vehicle reached speeds of approximately 170 km/h. The driver dodged between other vehicles on the road. A witness described the Mercedes as zig-zagging around cars. The driver lost control of the car and caused a collision with three cars coming in the opposite direction. The crash created a debris field that was massive. The Mercedes flipped on the road and ended up on its side. The engine of the vehicle was projected hundreds of metres down the road. A police witness said it was one of the worst accident scenes he had been to in 20 years of policing.
13When the police arrived on scene, the appellant and Mr. Riazi were sitting together close by on the grass at the side of the road. Officers approached them twice. During the first interaction, one officer asked them if they were “ok”. Another officer spoke with Mr. Riazi, who told him that he was the passenger. The officers later returned after being instructed to place both men under arrest. During this second interaction, the officers asked both men who was driving. They pointed at each other. They were both arrested and loaded into separate ambulances, each with a police officer riding on-board.
14During the ride to the hospital, the police observed a linear mark on Mr. Riazi’s right shoulder that extended down towards his left hip. The appellant had a similar pattern from his left shoulder to his right hip. Based on these markings, which the officers suspected were caused by seatbelts, the police concluded that the appellant was the driver. Mr. Riazi was released from the hospital later that night.
15While the appellant was at the hospital, other evidence was gathered. As discussed below, the key to the Mercedes was found in his pants pocket. The police also found identification that belonged to his brother. Moreover, blood was taken from the appellant for medical purposes and analyzed to determine the appellant’s blood-alcohol concentration. The blood samples were subsequently seized with a warrant. The police also seized the appellant’s medical records. This evidence was the subject of the appellant’s claim under s. 8 of the Charter.
C. the appeal against conviction
(1) No Error in the Trial Judge’s Identification of the Appellant as the Driver
16The identification of the driver of the Mercedes at the time of the collision was a critical issue at trial. From the outset, the appellant denied being the driver. Quite literally, he pointed the finger at Mr. Riazi at the scene. Ultimately, the trial judge was satisfied beyond a reasonable doubt that the appellant was the driver and Mr. Riazi was the passenger.
17The appellant submits that the trial judge’s reasoning was flawed by the manner in which he dealt with the seatbelt evidence. The appellant further submits that the trial judge misapprehended evidence and challenges his treatment of Mr. Riazi’s testimony. We do not accept either submission.
a. The Evidentiary Foundation
18Two people knew for sure who was driving at the time of the collision – the appellant and Mr. Riazi. Obviously, Mr. Riazi was a key witness for the Crown. He testified that the appellant asked him if he could drive the Mercedes when they were in the McDonald’s parking lot. After dropping off their friend, the appellant was driving down Yonge Street when he lost control of the vehicle.
19Mr. Riazi testified that, after the collision, the vehicle ended up turned over on the driver’s side, and that he and the appellant were restrained by their seatbelts. He described his seatbelt being tight and painful, especially on his right shoulder. The appellant asked Mr. Riazi if they could switch seats because the appellant did not have a driver’s licence. As noted above, the appellant had his brother’s identification with him that day. The appellant was eventually able to get out of the Mercedes by climbing through the rear passenger door that was facing upwards. Mr. Riazi testified that he then exited through the same door.
20The markings on the bodies of the appellant and Mr. Riazi took on great significance at the trial. The appellant had markings on his left shoulder extending down to his right hip. Mr. Riazi had markings on his right shoulder extending down to his left hip. Mr. Riazi testified that he received the marks to his shoulder from the seatbelt and to his hip from the seatbelt buckle or lock.
21A number of witnesses observed these markings and described them in different ways. Starting with Mr. Riazi, the officer that rode in the ambulance with him, Cst. McWatters, noticed marks on Mr. Riazi’s shoulder. He suggested they were consistent with a “seatbelt rash”. A paramedic noticed the marks on Mr. Riazi when he was at the hospital. He described it as a seatbelt injury. Det. Cst. Rosilius, the officer in charge of the investigation, saw Mr. Riazi’s marks when she attended at the hospital. She identified photographs of these markings at trial and described them as “seat belt markings for a passenger side seatbelt”. It was on this basis that she decided to release Mr. Riazi. Further photographs were taken by Mr. Riazi’s friend the following day. Mr. Riazi testified that he knew the marks were caused by the seatbelt because they were not there before the collision.
22Turning to the appellant, a number of witnesses testified about marks on his left shoulder and neck area. Cst. Barak, the officer who rode with the appellant in the ambulance, noticed that he had marks that were “shaped like a seatbelt … like a strap.” Det. Cst. Rosilius saw red marks on the appellant’s left shoulder and neck area and interpreted them to be seatbelt marks. A nurse testified to seeing redness in the appellant’s clavicle area and left shoulder. An emergency room doctor noticed an abrasion on the appellant’s left shoulder. He drew a diagram. He testified that the abrasion was “linear so it had lines or two sides to it”. He did not provide an opinion as to what caused these marks.
23In the end, a paramedic, three police officers, and a nurse testified that, based on their experience, they believed the marks they observed on the appellant and Mr. Riazi were caused by the seatbelts they wore at the time of the collision.
24The Crown also relied on the evidence of an accident reconstructionist who provided the opinion that the seatbelts were worn at the time of the collision. This was based on his observations of “loading marks” on the seat belts, which would have been caused by the friction, heat, and force of the collision. He provided no opinion on whether the seatbelts caused the marks on the appellant and Mr. Riazi.
25Another piece of the puzzle was discovered at the hospital. When the appellant was laying on a hospital bed, a police officer noticed a bulge in the appellant’s pants pocket. It was the key for the Mercedes. They also discovered the identification of the appellant’s brother at this point. Mr. Riazi testified that he gave the appellant the key to the Mercedes when the appellant asked to drive the vehicle.
b. The Trial Judge’s Ruling on Lay Opinion Evidence
26The Crown sought to have the trial judge treat the observations of the witnesses described above as lay opinion evidence, proving the cause of the marks on the two men, in support of the theory that the appellant was the driver. The trial judge refused to admit the observations of these witnesses as lay opinion evidence, but he held that the underlying factual observations were properly admissible as circumstantial evidence.
27Applying the principles concerning the admissibility of lay opinion evidence in Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, the trial judge held that the Crown could have called an expert to prove the cause of the injuries. He pointed to other cases in which opinion evidence had been called on this very issue: see e.g., R. v. McKeown, 2010 ONSC 1492. However, the trial judge held that the Crown was not obliged to call expert evidence, noting that a “trier of fact may be perfectly placed to draw inferences and reach conclusions from the available evidence even in the absence of expert evidence.” And that is what he did. The Crown does not challenge the trial judge’s decision not to admit the lay opinion evidence and, of course, nor does the appellant. However, the appellant submits that, in the absence of expert evidence on the issue, the trial judge’s finding that the appellant was the driver was unreasonable.
c. The Trial Judge’s Ultimate Findings
28The trial judge considered the seatbelt evidence in the context of the evidence in its entirety.
29Mr. Riazi’s evidence was critical, but as the trial judge said: “To state it bluntly, Mr. Riazi was a terrible witness.” The trial judge itemized reliability and credibility concerns with his evidence and found that he had significant motives to lie, including the complete destruction of his mother’s vehicle, the loss of life and injuries resulting from the crash, and his obvious impairment at the time. The trial judge said: “Given these motivations, there exists a real concern that he attempted to mislead the court on his involvement in the events that culminated in the tragedy.” Therefore, the trial judge concluded that it would be dangerous to rely on Mr. Riazi’s evidence in the absence of independent, corroborating evidence.
30The trial judge found corroboration in the evidence of the shoulder marks on the two men. He concluded that he could safely draw inferences about seatbelt use without expert evidence. The trial judge emphasized that he was not taking judicial notice of the cause of the injuries. He said: “Rather, I am simply drawing inferences based on the totality of the evidence on this issue.” He rejected as speculative the suggestion that the seatbelts may have been worn improperly. In reaching these conclusions, he was on solid ground.
31In R. v. Nelson, 2020 BCCA 204, 392 C.C.C. (3d) 43, the trial judge was faced with similar evidence of a potential seatbelt injury. He found that the injuries were “classic” seatbelt injuries. In dismissing the ground of appeal related to this issue, Griffin J.A. held, at para. 55:
I agree with the appellant that the judge went too far in his observations that Ms. Gonzales’ injuries were “classic injuries” associated with wearing a seat belt. Given the importance of the issue to the case, this conclusion is not so notorious and generally accepted so as to support the taking of judicial notice in line with the test in R. v. Spence, 2005 SCC 71. However, the fact there is a mechanism that, upon a sudden movement, catches a locked seat belt and holds it tight against the wearer, is notoriously well known and a matter of everyday experience and did not require evidence. Her injuries could be seen as consistent with the use of a seatbelt, without taking judicial notice of the injuries being “classic injuries”.
32In this case, the trial judge did not cross the line by taking judicial notice of the cause of the injuries. He simply drew inferences from this evidence which, in the context of all the other evidence, convincingly pointed to the appellant as the driver of the Mercedes.
33The trial judge relied on two other pieces of evidence that corroborated Mr. Riazi’s testimony. First, he found the key in the appellant’s pocket to be confirmatory of the appellant being the driver. Mr. Riazi testified that he gave the key to the appellant when he let him drive the Mercedes. Although possession of the key was not necessary to start or drive the vehicle, the trial judge concluded that the “transfer of the key was essentially symbolic of transferring responsibility for the vehicle.” Second, the Mercedes’ on-board computer system corroborated Mr. Riazi’s evidence that he drove the car to the rear parking lot of the McDonald’s before the appellant took the wheel. After Mr. Riazi was pictured entering the driver’s seat, the vehicle was driven a short distance and stopped. Its doors then opened and closed before the Mercedes proceeded onto Yonge Street. This data supported the trial judge’s inference that Mr. Riazi and the appellant switched seats at this time.
34The trial judge also considered the evidence of witnesses at the scene of the collision. According to the appellant, some of this evidence suggested that Mr. Riazi was driving at the time. The trial judge concluded that this evidence did not demonstrate that the appellant was not the driver, nor did it raise a reasonable doubt on the issue.
35The trial judge gave careful consideration to the evidence of Dr. Soroush Nomigolzar, who came upon the scene when the Mercedes lay upended on the driver’s side. He saw the appellant assist Mr. Riazi to get out of the vehicle. Dr. Nomigolzar spoke to both men. He asked who was driving. The appellant said he was the passenger; Mr. Riazi did not answer.
36The trial judge placed no weight on Mr. Riazi’s silence in the face of the appellant’s utterance to Dr. Nomigolzar. The trial judge was unsure whether Mr. Riazi heard the question that was asked. Moreover, according to Dr. Nomigolzar, Mr. Riazi appeared to be in shock as a result of the crash.
37The trial judge found the evidence of other witnesses at the scene to be unreliable. He detailed his conclusion as follows:
When I consider this evidence in concert, I find that it does not leave me with a reasonable doubt as to who was driving the vehicle. I find that [the appellant] was likely the first person out of the vehicle. The vehicle was on its side with the driver’s side to the ground. [The appellant] likely exited through the rear passenger door. I find that this occurred because Mr. Riazi was in the front passenger seat held in place by the seatbelt. Once outside of the vehicle, [the appellant] helped Mr. Riazi get out of the vehicle.
38Ultimately, the trial judge concluded that he would have found that the appellant was the driver without having to rely on Mr. Riazi’s testimony.
39As noted above, there was evidence that, when Mr. Riazi was driving the vehicle earlier that day, he too drove at excessive speeds, and dangerously. The trial judge considered this evidence. It did not raise a reasonable doubt in his mind as to who was driving at the time of the collision.
40In our view, the trial judge’s reasons on this issue are thorough. They are not tainted by legal error. The appellant has not identified any palpable and overriding factual errors. “His findings involved neither judicial notice, nor subjects invoking a need for expert evidence. He considered the entirety of the evidence before him, and drew inferences from the evidence by applying common sense and human experience”: R. v. Theoret, 2018 ONCA 700, at para. 8.
41We dismiss this ground of appeal.
(2) The Appellant’s Arrest was Lawful: Charter, ss. 8 and 9
a. Relevant Facts
42After attending to the injuries at the scene, police turned their attention to the two men sitting outside of the Mercedes. When Cst. Barak approached the two men, he saw one wearing a white shirt (later identified as Mr. Riazi) and one male wearing a black shirt (later identified as the appellant). He initially spoke with Mr. Riazi and noted an odour of alcohol on his breath. Mr. Riazi stated that he was the only passenger in the vehicle. Cst. Barak then moved over to the appellant who was being examined by firefighters. He heard him tell the firefighters that he was not driving and was a passenger. This comment was not in response to a question posed by him or Cst. McWatters. He noted that the appellant had bloodshot eyes that were rolling back into his head. He was slurring, not making sense, and smelled of alcohol. Cst. Barak did not ask the appellant any questions during this interaction.
43According to Cst. Barak, at a certain point Det. Cst. Edwards came by and directed him and Cst. McWatters to arrest both males. Cst. Barak agreed that both parties would be arrested. He explained that, while he believed that the appellant was the driver, he was not sure “beyond a reasonable doubt”. He stated that he would not want to risk not arresting someone in a situation like this. He further explained that there was a risk of losing evidence, including breath tests and physical evidence.
44Cst. McWatters testified that after the attempts to treat the deceased, he walked over and observed the two males from the Mercedes being treated by emergency services personnel. He asked if they were “ok” but had no further conversation with them. This interaction lasted approximately 30 seconds. Based on his initial observations, Cst. McWatters noted an overwhelming smell of alcohol on both males. He concluded they were impaired. In cross-examination, he agreed that the males were not free to leave at this time given that this was a criminal investigation. He acknowledged that he did not tell either male that they were being investigated, nor did he give them the right to counsel at that time.
45Cst. McWatters then returned to speak with Det. Cst. Edwards who stated that the two males “need to be arrested.” It appears that Det. Cst. Edwards received this direction from Staff Sgt. Busby who also attended at the scene and was the most senior officer present.
46Following receipt of the direction to arrest, Cst. McWatters and Cst. Barak returned to the two males and placed them under arrest. Cst. McWatters dealt with Mr. Riazi and Cst. Barak dealt with the appellant. When asked to explain his grounds for arresting the males, Cst. McWatters stated that the nature of the collision coupled with the death suggested a criminal offence had occurred. That said, he did not know what the offence would be, only that it was more serious than a Provincial Offences Act, R.S.O. 1990, c. P.33, offence. In cross-examination, he agreed that he did not know how the accident had been caused and further agreed that it was possible that perhaps the deceased caused the accident. He maintained that before he went to arrest the two males, he was told by Det. Cst. Edwards that the two males were in the vehicle that caused the accident.
47Cst. McWatters acknowledged that he did not know which of the two males was the driver as they were blaming each other. Nonetheless, he maintained that it was necessary to arrest both men despite not knowing who was driving. Cst. McWatters acknowledged that he was acting on Det. Cst. Edwards’ direction to arrest.
48Sgt. Busby was informed that both males were blaming each other. He knew from dispatch that one of the persons in another vehicle had been pronounced deceased prior to his arrival on scene. Based on all this information, Sgt. Busby formed the grounds to believe that a criminal offence had been committed. In his view, it was impaired driving causing death, but it also could have been dangerous driving causing death given the speed involved. While he knew that there could only be one driver of the Mercedes, he was confronted with a situation where both males were blaming each other. He was concerned that if they declined medical attention, they would simply be free to walk away. At that point, he determined that both would be arrested.
49In cross-examination, Sgt. Busby agreed that at the time he directed the arrest he had no basis to believe that one of the males was any more likely to be the driver than the other. He wanted to arrest both until the identity of the driver could be more conclusively determined. He also agreed that the possibility that the males would simply leave the scene was an important factor in his decision to arrest. Lastly, he acknowledged that he wanted to preserve evidence, including breath samples and utterances following the right to counsel.
b. Ruling of the Trial Judge on Lawfulness of Arrest
50The trial judge aptly observed that the lawfulness of the appellant’s arrest posed “a challenging issue for this court’s consideration”. He rejected the evidence of Cst. Barak, the arresting officer, that at the time of the appellant’s arrest, he believed the driver was most likely the appellant. Having done so, the trial judge observed that the other officers, who claimed to form grounds for arrest, testified that they believed that either the appellant or Mr. Riazi was driving the Mercedes at the time of the accident. Those officers all agreed that they had no basis for believing that one man was more likely to be the driver than the other.
51Ultimately, the trial judge found that the police had sufficient grounds to believe that the Mercedes caused the accident, and that police had grounds to believe that either the appellant or Mr. Riazi was the driver. The trial judge found that Sgt. Busby, as the senior officer, was the one who directed the arrest of both individuals, and that, while other officers formed their own grounds, Sgt. Busby’s belief was the one to be subject to judicial scrutiny. The trial judge’s findings included the following, as set out in para. 113 of his Charter ruling:
There is no issue that the police had sufficient grounds to believe that the Mercedes SUV caused the accident. The police also had sufficient grounds to believe that there were only two people in the Mercedes SUV. In other words, the police reasonably concluded that either Mr. Hayatibahar or Mr. Riazi was the driver. There were no other possible drivers.
The operative direction to arrest was given by Sgt. Busby. That direction was conveyed to Det. Cst. Edwards, who was the acting road sergeant that evening. He, in turn, directed Cst. Barak and Cst. McWatters to effect the arrests.
While to varying degrees each officer formed his own subjective grounds to arrest, there is no dispute that the commanding direction to arrest was issued by Sgt. Busby. The subordinate officers were all acting on this direction and as such Sgt. Busby’s determination of reasonable and probable grounds is the one subject to judicial scrutiny.
The challenge to Sgt. Busby’s grounds relates only to the equivocal nature of his belief in terms of who the driver was as between Mr. Hayatibahar and Mr. Riazi.
There is no issue that grounds to believe a criminal offence had been committed by the driver existed. While grounds for impairment are not conceded, there is no specific challenge to Sgt. Busby’s belief that the offence of impaired driving causing death had been caused by whomever the driver of the vehicle was. I infer that the absence of a challenge to the grounds relating to the impairment is based on the fact that no breath demands were ever made. I also infer that it relates to the existence of overwhelming grounds for the offences of dangerous driving causing death and bodily harm. In essence, even if Sgt. Busby was wrong on the arrest for impaired driving, it is of no moment as he otherwise had sufficient grounds to arrest for dangerous driving offences. [Citations omitted.]
52Having reviewed the relevant authorities, the trial judge stated the following about the standard of reasonable grounds to believe:
In applying the “reasonable grounds/reasonable and probable grounds” standard, an officer is not required to proceed only when she has a basis to believe that the probability that the accused committed the offence outweighs the probability that someone else did it. That is, in my view, too high a standard. An officer can arrest where she has a credible basis for believing that the accused has probably committed the offence.
Having determined that the word “probable” in the arrest context does not require 51% certainty, there is another challenging question that requires an answer. If 51% certainty of belief is not required, how much is enough?
The short answer to this question is that there is no need to explicitly quantify the requisite “probability” in mathematical terms. The assessment of the sufficiency of grounds is case and context specific. Reasonable grounds are based on the “totality of the circumstances” known to the officer, viewed through a lens that accounts for the officer’s knowledge and experience. As Moldaver J. explains in R. v. MacKenzie, 2013 SCC 50, [[2013] 3 S.C.R. 250], at para. 73, (albeit in the context of reasonable suspicion):
Assessing whether a particular constellation of facts gives rise to a reasonable suspicion should not — indeed must not — devolve into a scientific or metaphysical exercise. Common sense, flexibility, and practical everyday experience are the bywords, and they are to be applied through the eyes of a reasonable person armed with the knowledge, training and experience of the investigating officer.
Ultimately, as stated in the case law, something more than reasonable suspicion and something less than proof on a balance of probabilities is required. The “something” will depend on the specific circumstances and context of the case. I appreciate that the absence of mathematical quantification potentially leaves the standard more malleable and imprecise. However, attempting to add mathematical rigour may cause more problems than it solves. [Citations omitted.]
53The trial judge concluded that the police had reasonable grounds to arrest the appellant, that his arrest was lawful, and that the search incident to arrest was accordingly compliant with s. 8 of the Charter.
c. Arguments on Appeal
54The appellant argues on appeal that the trial judge erred in finding that his arrest was lawful. The appellant submits, as he did before the trial judge, that the standard of reasonable grounds under s. 495(1) of the Criminal Code requires an officer to be satisfied that it is more likely than not that the arrestee has committed an indictable offence. It is said that, where each of two individuals are potentially at fault, the police cannot be satisfied on a balance of probabilities that either one was culpable. It follows from this, he says, that his arrest was unlawful, violating s. 9 of the Charter, and the search conducted incident to arrest therefore violated s. 8 of the Charter.
55The Crown resists these arguments. The Crown argues that the standard of reasonable grounds does not require proof on a balance of probabilities, or the police to believe that it is more likely than not that the arrestee has committed an indictable offence. Rather, it commands something less than the civil standard of proof. The Crown submits that the trial judge was correct to find that the arrest of the appellant was lawful, and that the search incident to arrest was in compliance with the Charter.
d. Analysis
56We agree with the trial judge that the standard of reasonable grounds – and its statutory predecessor, “reasonable and probable” grounds – is one of credibly-based probability. This standard is not the equivalent of the civil standard of proof on a balance of probabilities. The use of the word “probable” has never been construed as requiring that the basis for arrest be more likely than not. To the contrary, the authorities overwhelmingly confirm that reasonable grounds or reasonable and probable grounds is something less than a prima facie case, and something less than the civil standard of proof.
57The Canadian standard of “reasonable grounds to believe” is identical to the American standard of “probable cause”: Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 167-68; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 128, per Deschamps J. (dissenting, but not on this point); R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 759, leave to appeal refused, [1997] S.C.C.A. No. 571. As noted by the trial judge: “the American jurisprudence has specifically and repeatedly held that ‘probable cause’ does not require a belief that is ‘more likely true than false’”: see Texas v. Brown, 460 U.S. 730 (1983), at p. 742; see also Illinois v. Gates, 462 U.S. 213 (1983), at p. 231; Florida v. Harris, 568 U.S. 237 (2013), at pp. 243-44; and Maryland v. Pringle, 540 U.S. 366 (2003), at pp. 370-71.
58Canadian courts have similarly affirmed that the standard of reasonable grounds is one of credibly-based probability; that it is not the equivalent of a prima facie case, balance of probabilities, or any other numerical formula: see e.g., R. v. Desilva, 2022 ONCA 879, 421 C.C.C. (3d) 177, at paras. 57-59. Canadian courts have long recognized that the reasonable grounds standard is a “practical, non-technical” standard based on “factual and practical considerations of everyday life on which reasonable and prudent men act”: R. v. T.G., 2026 ONCA 298, at para. 66, per Pomerance J.A. (dissenting, but not on this point); and Gates, citing Brinegar v. United States,338 U. S. 160 (1949), at pp. 230-31. The standard defies “precise definition or quantification into percentages” and is neither “a scientific [nor] metaphysical exercise”: T.G., at para. 66, per Pomerance J.A. (dissenting, but not on this point); Pringle, citing Gates, at p. 232; Brinegar, at p. 175; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 73; and R. v. Beaver, 2022 SCC 54, [2022] 3 S.C.R. 718, at para. 72.
59In evaluating the lawfulness of arrest, the overarching question is whether the officer’s belief that the arrestee has committed an indictable offence is reasonably probable based on credible information or observations. Because the standard does not command 51 percent probability, it is conceivable that more than one proposition might be reasonably probable. We see this, for example, in the search warrant context, where simultaneous warrants can be issued for multiple locations. Police might reasonably believe that a suspect is in possession of contraband but may not know precisely where it is kept. Police might reasonably believe that it will be found in his home, his car, or his office. The law permits warrants to issue for all three locations simultaneously, even though no one of the three is more likely than the others to house the contraband: see R. v. St. Clair, 2020 ONSC 2251, at para. 57, aff’d on other grounds, 2023 ONCA 266, 425 C.C.C. (3d) 137.
60There is no reason to interpret the standard of reasonable grounds any differently when dealing with the lawfulness of arrest. Police need not know with certainty that a crime has been committed and need not know with certainty who has committed the crime. The belief that justifies the arrest – that a particular person committed a particular crime – must be reasonable and probable but need not be more probable than not. What constitutes reasonable grounds will depend on the context at issue, the nature of the criminal allegations, and the observations made by the police, viewed through the lens of common sense and experience: R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 22. A reasonable belief exists when “there is an objective basis for the belief which is based on compelling and credible information”: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 114; R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1166; and Beaver, at para. 72.
61The standard of reasonable grounds seeks to achieve a balance between the liberty interests of individuals and the societal interest in effective law enforcement. The standard must be construed in a manner that protects individual rights. The right of citizens to move freely is a central precept of a free and democratic society. At the same time, the standard must reflect the practical exigencies of police investigations. It must not be so exacting as to impede the effective detection and investigation of crime. To inject the civil standard of proof at this stage of the process would be to frustrate legitimate law enforcement objectives.
62This point is amply illustrated by the facts of this case. It is perhaps unusual for police to encounter a situation in which it is equally probable that one of two individuals has committed a crime. Yet, it would be highly anomalous if two individuals, knowing that one of them had committed a crime, could prevent a lawful arrest simply by pointing the finger at one another. So, too, is it difficult to imagine that the police were required to let the appellant and Mr. Riazi be on their way, merely because each implicated the other in the commission of the offence.
63The police were faced with the investigation of a serious crime, resulting in one fatality, and injuries to three others. As was observed by the trial judge: “there is no issue that the driver, whether it was Mr. Hayatibahar or Mr. Riazi, was arrestable for impaired driving causing death/bodily harm and/or dangerous driving causing death/bodily harm.” The police were aware that the collection of certain evidence, such as blood-alcohol concentration, was potentially time sensitive. It was more than reasonably probable that one of the men was the driver at the time of the incident. In these circumstances, a failure to arrest would have been an abdication of the duty on police to protect the public and properly investigate crime.
64For all of these reasons, we are of the view that the trial judge was correct in finding that the arrest of the appellant was lawful and did not violate s. 9 of the Charter. The appellant acknowledged during oral argument that, were the arrest lawful, there would be little basis on which to challenge the search incident to arrest. We do not see any error with respect to the trial judge’s conclusion that the search of the appellant’s pockets two hours after arrest was reasonable: see R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 24. As a result, we dismiss the ground of appeal alleging a violation of the appellant’s rights under s. 8 of the Charter.
(3) No Error in the Trial Judge’s Analysis of the Right to Counsel: Charter, s. 10(b)
a. Introduction
65The appellant alleged at trial that the police infringed his rights under ss. 10(a) and (b) of the Charter on the night he was arrested and detained. The appellant claimed that the police failed in their informational duties when he was detained at the scene. This occurred when an officer asked the appellant and Mr. Riazi who was driving and both pointed at each other. It was only after this exchange that the appellant was told he was under arrest and advised of his right to counsel. However, he was not advised that someone in one of the other cars had died.
66The appellant also submitted that the police failed in their implementational duties by not promptly facilitating contact with duty counsel. Concerned that the appellant did not understand his s. 10(b) rights, the police waited until they could put the appellant in touch with a Farsi-speaking officer. He alleged a further violation when the police failed to pass on the contact information of a lawyer that the appellant’s friend shared with a police officer at the hospital.
[67] The appellant enjoyed mixed success. The trial judge found that the appellant’s ss. 10(a) and 10(b) Charter rights were violated at the scene of the collision. He also found that the appellant’s rights were infringed at the hospital when the police failed to provide him with the lawyer’s contact information. But the trial judge found that his s. 10(b) rights were not infringed by the failure of the officers to take steps to put the appellant in contact with duty counsel until he spoke to a Farsi-speaking police officer. Under s. 24(2), the trial judge only excluded the evidence gathered following the appellant’s detention until his arrest. This included any utterances or gestures made when the appellant and Mr. Riazi were questioned by police, after the officers had been directed to arrest them but before they informed the appellant he was under arrest.
68As explained below, the trial judge made no errors in his analysis of these issues.
b. Delay in Implementing the Right to Counsel
69At 10:06 p.m., while they were on their way to the hospital, Cst. Barak attempted to advise the appellant of his right to counsel. Because of language barriers (the appellant’s first language is Farsi), the appellant said he did not understand. Cst. Barak then tried to use simple English words to paraphrase the right to counsel. At some point, Cst. Barak told the appellant he could speak with a “free lawyer”. The appellant responded with “yes, yes, yes”, but Cst. Barak was still not satisfied that the appellant fully understood his rights under s. 10(b). While he was in the ambulance, he made a call to arrange for a Farsi-speaking officer to be dispatched to the hospital.
70The appellant testified that, when his rights were first read to him, he did not understand them. However, he understood the meaning of “free lawyer” and indicated that he wanted to speak to a free lawyer. He testified on the voir dire that he thought he would be put in touch with one. But he also admitted that he only understood “a little bit of it” when his right to counsel was explained in simpler language.
71Soon after his arrival at the hospital, the appellant became unruly. He was agitated, yelling, and flailing around. He repeatedly asked to speak to his brother. However, he did not say that this was for the purpose of retaining counsel. Although he arrived at the hospital in handcuffs, his behaviour caused an officer to also handcuff him to the bed for the protection of hospital staff.
72Cst. Ahmadi, a Farsi-speaking officer, arrived at the hospital at approximately 10:36 p.m. When Cst. Ahmadi spoke to the appellant at 11:08 p.m., the appellant told the officer that he could not speak English because he was “new”. Cst. Ahmadi attempted to administer the right to counsel in Farsi, but the appellant was yelling, shouting, moving around, and speaking incoherently. Cst. Ahmadi tried to read the right to counsel several times as he was repeatedly interrupted by the appellant. He was not sure that the appellant understood what he was attempting to convey. Ultimately, Cst. Ahmadi was unsuccessful in advising the appellant of his rights under s. 10(b) of the Charter. The appellant eventually calmed down and passed out when a sedative he had been given took effect. He was asleep for hours. Cst. Ahmadi’s interaction with the appellant ended at approximately 11:40 p.m.
73At about 1:00 a.m., a friend of the appellant, Niusha Zandsalimi, arrived at the hospital. The appellant was asleep at the time. Ms. Zandsalimi told Det. Cst. Rosilius that she had spoken to a lawyer, Abraham Top, who was available to speak with the appellant. The appellant’s brother had also attended at the hospital and was present for this conversation.
74Det. Cst. Rosilius testified that she thought that the family had contacted this lawyer to give them advice; she did not understand Mr. Top to be a lawyer intended specifically for the appellant. Consequently, she took no subsequent steps to advise the appellant about Mr. Top.
75Cst. Barak also spoke to Ms. Zandsalimi and the appellant’s brother. He had no recollection of a lawyer being discussed.
76At 8:05 a.m., Cst. Payanda, another Farsi-speaking officer, arrived at the hospital and informed the appellant of his right to counsel. Cst. Payanda said that the appellant appeared to understand and declined to speak with duty counsel at that time, but repeatedly asked to speak with his brother. The officer did not believe that the appellant wanted to speak with his brother for the purposes of obtaining counsel, but did not clarify this issue further. Ultimately, the appellant was not permitted to speak to his brother. Later that morning, Cst. Payanda transported the appellant from the hospital to the courthouse. No evidence was gathered from the appellant during this time.
77The appellant testified that, when he was at the hospital, he repeatedly asked the police and nurses if he could speak to his brother because his brother was the only person he turned to when in a moment of need. He did not testify that he wished to be in contact with his brother for the purposes of contacting a lawyer. The appellant explained that he was calm and cooperative at the hospital until Cst. Barak’s demeanour changed from being friendly to being sharp and unfriendly. The appellant said that it reminded him of the police in Iran, who instilled fear in people. This caused him to lose his composure and start shouting, swearing, and flailing in his hospital bed.
[78] The trial judge concluded that the appellant’s s. 10(b) Charter rights were not violated by the delay in putting him in contact with duty counsel. He found that, despite Cst. Barak’s best efforts in the ambulance to inform the appellant of his s. 10(b) Charter rights in a manner that he understood, he was “not prepared to find that [the appellant] communicated a clear understanding of the right to counsel to Cst. Barak.” The trial judge further found that, had Cst. Barak proceeded to contact duty counsel in these circumstances, the officer could have been accused of improperly “steering” the appellant in the direction of duty counsel, depriving him of the other ways in which he might have chosen to exercise his rights under s. 10(b) of the Charter.
[79] The trial judge found that, when Cst. Barak formed the belief that the appellant did not understand his s. 10(b) rights, he immediately took action to source a Farsi-speaking officer. He further found that, when Cst. Ahmadi arrived at the hospital, he was unable to fulfill his mandate because of the appellant’s erratic behaviour. The trial judge did not accept the appellant’s claim that a change in Cst. Barak’s demeanour caused him to act out in the way that he did. He ultimately concluded that there was no s. 10(b) Charter breach based on Cst. Barak’s decision to engage a Farsi-speaking officer.
80However, the trial judge found that the police violated the appellant’s rights in how they handled the contact information for counsel (Mr. Top) provided by Ms. Zandsalimi. The trial judge rejected Det. Cst. Rosilius’ evidence that she understood Mr. Top was counsel “for the family” and not a prospective lawyer for the appellant. He said that it would have been “plainly obvious” why Ms. Zandsalimi wanted this information passed on to the appellant. At the very least, Det. Cst. Rosilius should have attempted to clarify the issue with Ms. Zandsalimi. Having found that this failure infringed s. 10(b) of the Charter, the trial judge noted that it occurred at a time when the appellant was sedated and unconscious: “Passing on the information at that time would have been pointless.” Nonetheless, he should have been told the next morning when he woke up. It should have been conveyed by Cst. Payanda when he advised the appellant of his s. 10(b) rights in Farsi. It may have impacted on his decision to waive his right to counsel at that time. But as the trial judge noted, he was taken directly to court for a bail hearing. No further investigation was conducted.
81The appellant submits that the trial judge erred in finding that the police did not infringe his s. 10(b) rights when they failed to take steps to contact duty counsel, especially after the appellant answered “yes, yes, yes” to the offer of a “free lawyer”. He submits that his language comprehension difficulties did not justify the delay in engaging duty counsel. The situation was exacerbated when the appellant’s brother and friends attended at the hospital to provide the appellant with contact information for a lawyer.
82The respondent submits that the police acted properly in taking steps to ensure that the appellant understood his rights, rather than simply calling duty counsel. It further submits that the trial judge erred in finding that the failure to pass on Mr. Top’s contact information to the appellant infringed s. 10(b) of the Charter.
83In our view, this ground of appeal turns on the trial judge’s finding that the threshold of special circumstances was objectively satisfied in this case. Where special circumstances arise that suggest that a detainee may not have understood the right to counsel, police are obliged to take steps to ensure that the detainee is meaningfully informed of his or her rights. Had Cst. Barak overlooked this critical issue and proceeded to put the appellant in contact with duty counsel in any event, it may well have resulted in a Charter violation, as found in a number of trial decisions in this province: see R. v. Bassi, 2015 ONCJ 340, 337 C.R.R. (2d) 332; R. v. Nguyen, 2020 ONSC 7783, 475 C.R.R. (2d) 167; and R. v. Zhao, 2019 ONCJ 212.
84Moreover, we do not accept the appellant’s submission that this case is analogous to R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, in which the police delayed facilitating contact with counsel because they were at a hospital. As Abella J. said, at para. 34:
An individual who enters a hospital to receive medical treatment is not in a Charter-free zone. Where the individual has requested access to counsel and is in custody at the hospital, the police have an obligation under s. 10(b) to take steps to ascertain whether private access to a phone is in fact available, given the circumstances.
[85] In this case, although the scenario played out at a hospital, this was not the reason for the implementational delay. The combined impact of language barriers, medical issues, and the appellant’s erratic behaviour prevented the police from making sure that the appellant understood his s. 10(b) Charter rights. The police actively took steps to achieve this understanding by having not one, but two Farsi-speaking officers attend at the hospital for this very reason. Moreover, while not directly relevant to the appellant’s 10(b) rights, we observe that Mr. Riazi’s right to counsel was implemented at the hospital when yet another officer was dispatched to the hospital with two police-issued phones. The first phone was intended for and ultimately used by Mr. Riazi to contact counsel, and the trial judge noted that the second phone was “presumably intended for use by [the appellant]”.
86We dismiss this ground of appeal. In doing so, we do not need to consider the Crown’s attempt to challenge the trial judge’s finding that the police violated the appellant’s rights by failing to pass on Mr. Top’s contact information to the appellant.
(4) No Error in the Trial Judge’s Exclusion of Evidence: Charter, s. 24(2)
87The appellant submits that the trial judge erred in his analysis under s. 24(2) of the Charter in relation to the breaches of ss. 10(a) and (b) upon the appellant’s arrest, and the subsequent s. 10(b) breach concerning Mr. Top’s contact information. However, the appellant concedes that if he is unable to establish additional Charter breaches on appeal, “it would be unlikely that all of the evidence [in] relation to the medical records, blood samples, the Mercedes car key and the observations made of the [appellant’s] physical condition and injuries would be excluded.” We agree with this qualification. As discussed above, the appellant has failed to establish any further breaches.
88In any event, we are of the view that the trial judge provided clear reasons for his factual findings and legal conclusions under the three lines of inquiry mandated by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, in addition to the final balancing that is required. The trial judge’s factual findings in applying s. 24(2) are entitled to deference on appeal: Beaver, at para. 118.
89The trial judge found the first Charter breach of the right to counsel to be “serious”, but “mitigated by its brevity.” This was a reasonable appraisal of the situation. He further concluded that the second breach at the hospital in relation to Mr. Top was also serious, but it too was mitigated by the fact that no further investigative steps were taken after this event. No inculpatory evidence was gathered.
90The trial judge found that the impact of the violations on the appellant’s Charter-protected interests was significant during the period of the initial detention. However, he found this impact to be minimal after the appellant’s arrest. The appellant was lawfully arrested and the police took appropriate steps to comply with s. 10(b) of the Charter. They did not attempt to interview the appellant at any time after his arrest. They were entitled to make the observations of his condition that they did while he was lawfully in police custody. The trial judge further found that the bulk of the evidence was discoverable. In relation to the impact of the subsequent s. 10(b) breach at the hospital, the violation was “almost of no moment” as the appellant was soon thereafter taken to bail court.
91In terms of society’s interest in an adjudication on the merits, the trial judge found that excluding the impugned evidence based on these specific breaches of the appellant’s ss. 10(a) and (b) Charter rights would “exact too great a toll” on the administration of justice. Overall, he found that exclusion of the evidence obtained following the appellant’s arrest under s. 24(2) of the Charter was not warranted in the circumstances. We agree.
92This ground of appeal is dismissed.
(5) The Appellant’s Convictions Should Not be Reduced to Dangerous Driving
93Related to the appellant’s submissions on s. 24(2), the appellant submits that, if he is able to establish further breaches of the Charter that warrant excluding evidence of his impairment, he should be acquitted of the impaired driving counts, and the criminal negligence counts should be reduced to convictions for dangerous driving causing death and dangerous driving causing bodily harm.
94As we have determined that the trial judge did not err in his findings on the other Charter breaches alleged by the appellant, this ground of appeal must fail. In any event, we note that the trial judge specifically found that, even without the seizure of the appellant’s blood that was the foundation for the evidence concerning his blood-alcohol concentration at the time of the collision, there was other formidable evidence of impairment. The trial judge also described other evidence, beyond the appellant’s impairment, which supported his conclusion that the appellant’s driving amounted to a marked and substantial departure from that expected of a reasonable person in the circumstances. In other words, the trial judge would still have found the appellant guilty on the impaired driving and criminal negligence counts.
D. The appeal against sentence
95The appellant appeals from his nine-year sentence arguing that the trial judge: (1) erred in principle in failing to consider the principle of restraint; and (2) imposed a sentence that was demonstrably unfit. We are not persuaded that the trial judge made these errors. The trial judge reviewed the principles of sentencing and took into account all the relevant mitigating and aggravating factors. In imposing the sentence that he did, the trial judge noted that it captured the high degree of moral blameworthiness and the death and injuries caused by the appellant, but also reflected the fact that the appellant is a young man without a criminal record. The sentence is neither demonstrably unfit nor tainted by any error in principle.
(1) Principles of Sentencing
96In crafting a fit sentence, a trial judge must have regard to the purpose and principles of sentencing codified in s. 718 of the Criminal Code. Of these principles, denunciation and deterrence have been identified as the primary objectives when sentencing dangerous and impaired driving offenders: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 73-79.
97In recent years, sentences for dangerous and impaired driving offences have increased: see e.g., R. v. Gomez, 2026 ONCA 330; R. v. Robertson, 2026 ONCA 281; R. v. Georgopoulos, 2026 ONCA 27, 180 O.R. (3d) 468; R. v. Lojovic, 2025 ONCA 319, 177 O.R. (3d) 327. This is a response to amendments to the Criminal Code and a reflection of a growing recognition of the seriousness of these offences – both their high moral blameworthiness and the devastating impact that they have on our communities: Robertson, at paras. 47-50. The Criminal Code amendments in relation to these offences affirm the primacy of denunciation and deterrence in sentencing dangerous and impaired driving offenders: R. v. Boily, 2022 ONCA 611, 163 O.R. (3d) 161, at para. 12.
98As this court noted in Robertson, there is no “rigid sentencing range” for dangerous and impaired driving offences: at para. 53. They cover a broad spectrum of offenders and circumstances. Ultimately, sentencing is a matter of discretion for the trial judge – an exercise to which the judge brings their experience with having witnessed the offender first-hand and their understanding of the needs and expectations of their particular communities: Robertson, at para. 52. Appellate courts are not well placed to evaluate these factors. As a result, absent an error in principle which impacts the sentence, an appellate court cannot intervene unless the sentence is demonstrably unfit: Lacasse, at para. 11.
(2) The Trial Judge did Not Err in Principle Nor was the Sentence Demonstrably Unfit
99Contrary to the appellant’s submission, the trial judge did not fail to consider the principle of restraint. He made reference to the principles of sentencing set out under s. 718. That he did not explicitly reference the principle of restraint is of no moment. Judges are presumed to know the law: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 74. They are not required to self-instruct on basic criminal law principles. Moreover, it is clear that the trial judge had due regard for the principle of restraint. He considered the appellant’s lack of criminal record, youthfulness, and his positive rehabilitative prospects. He noted that these mitigating factors must be balanced against the significant aggravating factors in this case. The appellant made the highly culpable decision to drive while having a blood-alcohol concentration of more than double the legal limit and without a license. He drove at speeds reaching 170 km/h, while dodging cars that were moving at a normal rate of speed. He did so for a prolonged period of time which only ended when the appellant lost control of the vehicle and struck three other cars, reflecting that this was more than a momentary lapse of judgment. Finally, his actions had devastating effects: the death of a father as his family looked on, and serious injuries to several others, including a child. Several of these were statutory aggravating factors, reflecting Parliament’s view of the seriousness of these offences: Criminal Code, s. 320.22. The trial judge’s conclusion that a nine-year sentence was proportionate in these circumstances reflects no error in principle.
100Nor is the sentence imposed demonstrably unfit. As noted, sentences for these offences have increased in recent years. Precedents in this area must thus be approached with caution: Gomez, at para. 9. The fact that the sentence here was higher than most previous sentences does not mean that it was demonstrably unfit, particularly in light of the societal and legislative changes in how these offences are viewed: Robertson, at para. 58; Gomez, at para. 11.
101Sentencing is a difficult and inherently individualized exercise. It cannot be reduced to mathematical terms like the number of deaths or the type of injuries suffered by the victims: Lacasse, at para. 58. Nor can the appropriate sentence be anchored in a formalistic manner with sentences imposed in other ostensibly similar cases: R. v. Purvis, 2026 ONCA 187, at para. 5. Again, the trial judge in this case appropriately considered the unique features of this case, taking into account the high moral blameworthiness and seriousness of the appellant’s conduct, while balancing it against the mitigating factors. The sentence falls well within the bounds of recent precedents, including those highlighted above, and is not demonstrably unfit.
E. disposition
102The appeal against conviction is dismissed. Leave to appeal sentence is granted, but the appeal is dismissed.
Released: July 10, 2026 “G.T.T.”
“Gary Trotter J.A.”
“D.A. Wilson J.A.”
“R. Pomerance J.A.”