Court File and Parties

Ontario Court of Justice

Date: November 7, 2013

Court File No.: Central East - Newmarket 4911-998-10-08034-00

Between:

Her Majesty the Queen

— and —

Sanaz Dehdar-Gorabi

Before: Justice K.P. Wright

Reasons for Ruling on Charter Application released on November 7, 2013

Counsel:

• K. Stewart, counsel for the Crown
• A. Boni, Counsel for the defendant Sanaz Dehdar-Gorabi

WRIGHT J.:

Introduction

[1] Sanaz Dehdar-Gorabi is charged with two counts of dangerous driving causing death on October 31, 2008.

[2] The Crown proceeded by way of indictment and Ms. Dehdar-Gorabi elected to have her trial in the Ontario Court of Justice.

[3] At the outset of the trial defence counsel brought an application for an order staying the charges, pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms. He maintains that Ms. Dehdar-Gorabi's right to security of the person under s. 7 of the Charter would be violated by a trial, as it would "probably cause significant harm to her health" and she would "probably not be able to defend herself." Moreover, he submits this is one of those "clearest of cases" where a stay is the only just and appropriate remedy.

[4] This is my ruling on that application.

Overview

[5] The facts of this case are devastating and catastrophic.

[6] Shortly after 10:00 p.m., on October 31, 2008, 20-year-old Sanaz Dehdar-Gorabi and her two girlfriends, 21-year-old Niloufar Khan-Verdizadeh and 21-year-old Atena Arabsalmany were driving southbound on Bayview Avenue in Richmond Hill. Sanaz was driving her Mazda 3, Niloufar was in the front passenger seat and Atena was in the back passenger seat. As Sanaz approached the intersection of 16th Avenue and Bayview, she lost control of the vehicle. The Mazda crossed into the northbound lanes and collided with a Jeep SUV that was proceeding northbound in the curb lane. The impact crushed the front end of the jeep, but fortunately the occupants of that vehicle were not seriously hurt. The Mazda 3 however, burst into flames upon impact. Civilians and police officers rushed to the scene and desperately tried to rescue the three girls from the burning car. They were able to remove Sanaz and her friend Atena from the vehicle. Atena however did not survive, she was pronounced dead at the scene. Despite the heroic efforts by the rescuers, they were not able to pull Niloufar from the vehicle. Her badly burned body was removed from the passenger seat at a later time.

[7] As for Sanaz, the collision left her suffering from severe burns and internal injuries that spawned a host of serious physical and psychological disorders in the years that followed. The police delayed laying charges for two years due to her condition, and an additional three years has passed since the charges were laid.

Defence Position

[8] Defence takes the position that, despite the passage of time, Ms. Dehdar-Gorabi remains too physically and psychologically ill to endure a trial in this case. Moreover, there is no reason to believe her condition will change in the near future.

Crown Position

[9] The Crown does not contest the extent or the legitimacy of the injuries suffered by Ms. Dehdar-Gorabi, yet maintains there remains a public interest in proceeding with the prosecution due to the seriousness of the allegations.

Medical Evidence

[10] The medical evidence that has been filed on this application is voluminous and uncontested by the Crown. It comes primarily in affidavit form, all of which have been made exhibits on this proceeding.

[11] It is important to note that prior to the accident Sanaz has been described as a healthy 20-year-old young woman with no medical or psychiatric history.

[12] The following summary offers some insight into the extent and nature of the injuries suffered by Ms. Dehdar-Gorabi. A more fulsome accounting can be found in the exhibits and application record attached to this matter.

[13] Immediately following the accident Sanaz was taken to the Trauma Unit at Sunnybrook Health Sciences Center. It was there that doctors determined she had sustained the following injuries:

• "open book" fracture of the pelvis;
• right scapula fracture;
• multiple rib fractures;
• spinal fractures;
• severe burns to her entire back, left arm, right arm and left buttock;
• a right lung contusion and hemothorax requiring a chest tube;
• lacerations to her right liver, right kidney; and
• lacerations to her vagina

[14] That morning after the accident, Dr. Kreider, an orthopedic surgeon operated on Sanaz in an effort to stabilize and reconnect her pelvis. This was followed by a second team of doctors treating her kidney and vaginal injuries. A few days later Dr. Carlotto performed multiple surgeries to treat her severe burns. The surgeries were serious and extensive. They included burnt skin being removed from the vast majority of her back and skin grafts were harvested from numerous other sites on her body.

References Medical Records:

• Post-Operative Note, Dr. Kreider, 01.11.2008, Tab 8
• Post-Operative Note, Dr. Herschorn, 01.11.2008, Tab 9
• Post-Operative Note, Dr. Lee, 01.11.2008, Tab 10
• Post-Operative Note, Dr. Cartotto, 01.11.2008, Tab 11 and Tab 12

[15] Sanaz remained at Sunnybrook hospital for approximately a month. During her stay she was ventilated and remained unconscious for weeks. When she finally regained consciousness she had no memory of the accident. The details of the accident, including that her two friends had died as a result, were disclosed to her gradually over a period of time. Her initial disbelief gave way to a deep and profound sadness that has never left her.

[16] Sanaz was discharged from Sunnybrook Hospital and transferred to St. John's Rehabilitation hospital where she remained until December 30, 2008 when she was sent home. She attended as an outpatient at St. John's hospital until August 2009.

[17] In the 22 months that followed the accident Sanaz was diagnosed with a host of physical, cognitive and psychological impairments by a number of medical specialists including but not limited to:

• Dr. Asefi, family physician
• Dr. Baranowsky, psychologist
• Dr. Rod, pain specialist
• Dr. Ali Rahmanian, pain specialist
• Dr. Armani, psychiatrist
• Dr. Kreider, orthopedic surgeon
• Dr. Jeschke, plastic surgeon

Dr. Anna Baranowsky

[18] Since March of 2009 Sanaz has been treated by a team of doctors at the Traumatology Institute in Toronto. Dr. Anna Baranowsky, a clinical psychologist and the founder and director of the Traumatology Institute, has been the lead member of the team responsible for the care of Sanaz. Dr. Baranowsky has provided the court with a series of formal reports outlining the care, treatment, assessment and prognosis of Sanaz since she first came into her care until present day. I found these reports to be insightful and helpful; they have all been made part of the court record and are located in the applicant's application record.

[19] In these reports Dr. Baranowsky describes Sanaz as suffering from the following cognitive and psychological impairments as a result of the motor vehicle collision:

• Major Depressive Disorder;
• Panic Disorder without Agoraphobia;
• Chronic Complex Post-Traumatic Stress Disorder;
• Pain Disorder associated with Psychological Factors and General Medical Condition;
• Dissociative Disorder NOS;
• Cognitive Disorder NOS;
• Personality Change secondary to Traumatic Brain Injury;
• Traumatic Amnesia;
• Cosmetic Distress;
• Interpersonal Isolation, problems with primary relationships (increased angry outbursts and agitation), complicated bereavement;
• Considerable sleep disturbance;
• Suicidal ideation; and
• Hopelessness

[20] Dr. Baranowsky concluded that as a result of the cognitive deficits, psychological distress and physical pain, Sanaz is left with minimal ability to fully comprehend the criminal process and its implications.

[21] In her affidavit dated August 15, 2013, Dr. Baranowsky states that in the months leading up to the trial, Sanaz's emotional presentation has taken a turn for the worst. She states that she has yet to plateau in her recovery and that her progress is at best slow and guarded.

[22] She reports that in June of this year Sanaz had in an interaction with the mother of one of the young women who died in crash. This interaction left Sanaz less able to manage her emotions, which has resulted in increased suicidal ideation. Dr. Baranowsky says this contact is a significant setback in her progress and she remains extremely fragile as a result.

[23] She unequivocally states that if Sanaz were subject to the trial proceedings, even by way of video, she would suffer significant and further emotional trauma, which would cause her further, very serious, if not irreparable, psychological harm. Moreover she says exposure to a criminal trial would likely result in a real and substantial risk of self-harm, due to the activation of her suicidal ideation.

Dr. Kevin Rod and Dr. Ali Rahmanian

[24] Sanaz has been a regular patient of Dr. Kevin Rod at the Toronto Poly Clinic, a multidisciplinary center for the treatment of chronic pain, since June 2009. In June 2011, Dr. Ali Rahmanian became part of that team at the pain clinic and has also seen Sanaz on a regular basis since that time.

[25] Both doctors offer and share the opinion that even remotely exposing Sanaz to a criminal trial would result in significant psychological harm to her. In a co-authored report dated May 23, 2012, the doctors describe the pain Sanaz suffers from as follows:

She has developed chronic pain in all sites of her fractures and severe skin burning neuropathic pain at her skin burn scars. Her range of motion of neck, mid and lower back is very limited. She limps due to pain of her hip and pelvic area, has limited chest wall expansion leading into shortness of breath which further limits her ability to move. She has chronic neuropathic pelvic pain, chronic headaches, abdominal pain, right hip, knee and ankle pain.

She has developed post traumatic stress disorder and major depression after this accident. The catastrophic impact of the accident trauma and the significant feeling of guilt have been impacting her beyond the ability of any psychological treatment she has received.

They conclude by saying:

Unfortunately she will carry these physical and psychological scars of this accident for the rest of her life and she will need ongoing medical, psychological and physical therapy to maintain her very limited level of function.

Her prognosis is not good given the extent of her physical injuries and the significant psychological issues due to this catastrophic injury.

Reference: Report of Dr. Rod and Dr. Rahmanian 23.05.2012, Applicant's Application Record, Tab 5A

[26] Her most recent prognosis is not a hopeful one. In June 2013, Dr. Rod described her pain as being chronic, sever, widespread and intractable. She remains limited in most of the activities of daily life.

Reference: Affidavit of Dr. Kevin Rod 18.06.2013, Applicant's Application record, Tab 5B

Dara Taylor

[27] Dara Taylor is a disability specialist. She is the Clinical Director at DM Partners Inc. in Toronto, she holds degrees in psychology and rehabilitation counselling and has a Master's degree is rehabilitation counseling. She started working with Sanaz shortly after the accident in October 2008. She continues to work very closely with Sanaz and helps to track, liaise and co-ordinate the team of doctors and medical professionals who care for her. She reports that Sanaz suffers from constant, unrelenting pain at numerous sites across her body and despite trying many different treatment options she has found no relief. She reports that she has undergone numerous hip surgeries and more recently plastic surgery for the burn scars on her arms. Her entire back and arms bare thick, disfiguring and painful scars for which more surgeries are planned. She describes her overall physical condition as quite fragile. She also believes that Sanaz could not emotionally endure a criminal trial. She has seen her emotional stability decline over the last year and believes that if she were subjected to the pressure of a criminal trial, given her fragile emotional state, she would likely harm herself.

Reference: Affidavit of Dara Taylor 19.08.2013, Applicant's Application Record, Tab 7

Manijeh Hadavand (mother) and Mona Dehdar-Gorabi (sister)

[28] The most compelling account of the pain and suffering endured by Sanaz on a daily basis does not come from medical experts but from her family members. Manijeh Hadavand, Sanaz's mother, and Mona Dehdar-Gorhabi, Sanaz's sister, live with Sanaz and care for her on a daily basis. Both have been witness to her extreme pain. Both describe her as physically and emotionally devastated and subject to daily, unrelenting suffering with no end in sight.

[29] Her mother reports that Sanaz cannot lift her arms. She cannot wash herself, make her own meals, get a drink or use the stove. She says she can't sit or stand in any one position for more than a few minutes. She needs help to get on her feet and, despite the cane she uses, she is still prone to falling due to the weakness she has in her legs. Her mother speaks about the disfiguring burn scars that now cover Sanaz's back and arm. Scars sometimes signify a wound that has healed. That is not the case for Sanaz. Quite the opposite, the scars are a constant source of pain for her emotionally as they are a constant reminder of the accident, and physically because they continue to develop painful puss-filled blisters.

[30] Her 29-year-old sister, Mona Dehdar-Gorabi, describes Sanaz as a professional patient. She has been taking care of Sanaz since the accident happened five years ago. She had hoped that as time passed Sanaz would heal and things would get better. Sadly, that has not happened. She reports that Sanaz's physical pain has not decreased; instead it has gotten worse and more complicated. She needs help getting out of bed each morning and constantly throughout the day. She is unable to do any of the basics for herself. The past five years of Mona's life have been dedicated entirely to the care of her sister, so much so that she lost her full time employment and her common law relationship came to an end.

[31] The risk of self harm or suicide is a real and constant source of concern for Sanaz's family. They report that since the charges were laid Sanaz has suffered from increased worry, anxiety and mood swings and has talked about killing herself. They have taken extreme measures to prevent Sanaz from hurting herself, they have installed child locks on cabinets that contain sharp items and moved from a 5th floor apartment to a lower floor for fear that Sanaz would throw herself off the balcony. Her sister has taken to sleeping in a cot beside her bed to watch over her at night.

Reference: Affidavit of Manijeh Hadavand 19.08.2013, Applicant's Application Record, Tab 1

Reference: Affidavit of Mona Dehdar-Gorabi 16.08.2013, Applicant's Application Record, Tab 2

The Law

[32] Defence asks this Court to grant the remedy of a stay of proceedings because to proceed to trial would offend Sanaz Dehdar-Gorabi's right "...to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice" as provided under s. 7 of the Canadian Charter of Rights and Freedoms.

[33] The governing principles can be summarized follows:

(a) the applicant must establish on a balance of probabilities that a stay should be granted;

(b) the court should only grant a stay in the clearest of cases; and

(c) a stay should only be granted where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency or where the proceedings are oppressive and vexatious.

[34] One of the many unique features that attach to this case is this application is brought in anticipation of a future Charter violation. The trial proper has not yet started and Ms. Dehdar-Gorabi has not to date been present for any of the court proceedings. However, Chief Justice Lamer, writing for the majority in New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, stated that an application claiming a s. 7 security of the person violation could be done prospectively and that a remedy under s. 24(1) would be available to them on proof of "probable future harm."

[35] The Ontario Court of Appeal in R. v. Hillier, [2000] O.J. No. 3414, briefly restated the test for a stay of proceedings in a case where an accused's health might be jeopardized by a criminal trial.

[36] The test can be summarized as follows:

The applicant bears the burden of demonstrating on a balance of probabilities:

(i) that she would probably not be able to defend herself; or

(ii) that the trial process would cause significant harm to her health; and

(iii) that hers is one of the clearest of cases where a stay of proceedings should be imposed.

Analysis

[37] Taking all of these principles and concerns into account, I think that to proceed with these charges would offend the community's sense of fair play and cause significant and irreparable harm to the health of Sanaz Dehdar-Gorabi.

[38] The evidence presented to me on this application unequivocally demonstrates that Sanaz Dehdar-Gorabi suffers from a very complex and unique set of physical injuries and psychological and cognitive impairments as a result of the accident on October 31, 2008. The medical evidence is voluminous and well documented from the accident to present day. Her physical condition and psychological condition remains unquestionably fragile, serious and complicated. Not only was she physically incapable of attending court for the present hearing, her health care professionals have warned that even observing the proceedings remotely would have a devastating impact on her. The risk of suicide or self harm in the months leading up to the trial has become a real and pressing concern to her family members and her medical team. I accept and share those concerns.

[39] I have turned my mind to what Justice Watt described in R. v. Neeb and Blakeman, [1988] O.J. No 1382 (Gen. Div.) as "risk management measures." I find, given the unique circumstances attached to this case, there are no alternative measures that could be taken to reduce the risk of harm or create an environment that would allow Ms. Dehdar-Gorabi to meaningfully participate in her own defence.

[40] Similarly, I have turned my mind as to whether there is any likelihood that Ms. Dehdar-Gorabi's condition will improve with an appropriate adjournment. I find that after five years of constant pain and suffering her condition is not a temporary one. The harsh reality for Sanaz is that after five years of suffering physically and psychologically and exhaustive efforts on the part of her medical team, improvement has been minimal and the setbacks many. I fear that she has years if not a lifetime of fighting this battle ahead of her. An adjournment is not the answer.

[41] Finally, I have turned my mind to the interests of the community in trying these most serious charges and balancing that with the interests of Sanaz Dehdar-Gorabi's right to a fair trial. I mindful that the victims' families form part of that community and have a keen and personal interest in this matter being tried on its merits.

[42] In R. v F.A.H., [1993] O.J. No. 1990, Mr. Justice Whalen thoughtfully expressed the duty of the court to balance the interests of the complainants, the accused and the community as follows:

...The process of prosecution and ultimate conviction would not be satisfying or meaningful to the community without integrity in the way it was conducted. The community demands the victim and accused (not victim or accused) be dealt with fairly. Just as every victim expects his or her complaint to be dealt with seriously, and where substance exists, pursued vigorously, so does every accused expect fairness, due process and the rights accorded every member of society. Every accused is entitled to the presumption that he or she is innocent unless proven guilty. This is a reminder that trials result not only in conviction but also in acquittal. Society is equally interested in protecting the innocent as it is in punishing the guilty. An individual who cannot physically withstand the process by which he might uphold his innocence would be unfairly subjected to that process and to proceed with a prosecution and possibly make findings of guilt under such circumstances would offend the integrity of the system of justice upon which society relies for its protection.

Where an accused is physically (or for some other good reason) unable to withstand the trial process, not only is society denied the potential finding of guilt and administration of punishment in respect of that particular accused, but also the accused is denied the possibility of upholding his own innocence. The consequences flow both ways with equal force.

[43] And that is the situation in this case.

[44] This has been a very difficult process and decision for the court. In reaching my decision I want the families of the victims to know that I am mindful that they also cope with profound pain and suffering on a daily basis. Although the focus of this application has been on the health and wellbeing of Ms. Dehdar-Gorabi, as is required by law, this does not mean that the suffering endured by the families of the victims has been overlooked or diminished in any way. I have kept their loss firmly implanted in my mind and heart as I navigated my way through this decision.

[45] In summary, I find that the injuries suffered by Sanaz both physical and psychological are nothing short of catastrophic. I am satisfied that Sanaz Dehdar-Gorabi would, if the trial proceeded, suffer further irreparable and significant harm to her health and that she would be unable to participate in any meaningful way in her own defence.

[46] I am mindful that a stay is a drastic measure reserved for only the clearest of cases where no other remedy is available. I find that this is such a case.

[47] Accordingly, the charges against Sanaz Dehdar-Gorabi are stayed.

Released: November 7, 2013

Signed: "Justice K.P. Wright"