Her Majesty the Queen v. Fareidoon Hayatibahar

Court File No.: CR-19-00010705 Date: 2022-02-24 Ontario Superior Court of Justice

Between:

Her Majesty the Queen

– and –

Fareidoon Hayatibahar, Defendant

Counsel:

Greg Elder, for the Crown Boris Bytensky, for the Defendant

Heard: November 29, 30, December 1, 2, 3, 16 and 17, 2021

RULING ON CHARTER APPLICATION

DI LUCA J.:

Introduction and Overview of Issues

[1] On the evening of August 18, 2019, a Mercedes SUV was travelling at an extreme rate of speed on Yonge Street in Richmond Hill. There were two occupants in the vehicle, the defendant Fareidoon Hayatibahar and his friend, Ferbod Riazi.

[2] The driver of the Mercedes SUV lost control and crossed into oncoming traffic, striking a number of vehicles and causing a horrific collision. The collision was so devastating that the engine of the Mercedes SUV was found hundreds of feet down the road. The first responders who arrived on scene were overwhelmed by the devastation and struggled to process what they encountered.

[3] The driver of one of the vehicles struck in the collision died on impact. The injuries he suffered were gruesome. Two others in his car, including a child, were also injured. A person in a third vehicle was also injured.

[4] Mr. Hayatibahar is charged with Criminal Negligence Cause Death, Criminal Negligence Cause Bodily Harm x3, Impaired Driving Cause Death, and Impaired Driving Cause Bodily Harm x3.

[5] One of the primary issues at trial will be the identity of the driver of the Mercedes SUV that was involved in the collision.

[6] These reasons address a multi-pronged Charter application brought by Mr. Hayatibahar seeking exclusion of certain evidence.

[7] In this application, Mr. Hayatibahar alleges the following Charter violations:

a. A violation of his s. 10(a) rights because of the police failure to advise him he was being detained in relation to the investigation of a fatal alcohol-related accident;

b. A violation of his s. 7 and 10(b) rights stemming from the initial questioning by police officers at the scene prior to arrest;

c. A violation of his s. 9 rights in relation to his unlawful arrest;

d. A violation of his s. 10(b) rights due to the police failure to take appropriate steps to implement his request to speak with counsel;

e. A violation of his s. 8 and 9 rights in relation to observations made by a police officer who accompanied Mr. Hayatibahar in an ambulance to the hospital;

f. A violation of his s. 8 rights as a result of a warrantless search of his pockets while he was unconscious on a hospital gurney;

g. A violation of his s. 8 rights in relation to the sufficiency of an Information to Obtain (ITO) used to secure a warrant and production order for blood samples and medical records;

h. A violation of his s. 8 rights as a result of the overbreadth of the production order; and,

i. A violation of his s. 7 and 8 rights because the police caused or contributed to circumstances that led to various medical steps being taken without Mr. Hayatibahar’s consent and which resulted in the evidence later obtained by warrant and production order.

[8] Mr. Hayatibahar seeks exclusion of his statements, medical records, blood samples, a Mercedes key seized from his pocket, and the observations of his physical condition and injuries made by police officers following his arrest. Mr. Hayatibahar argues that the police conduct in this case exhibits a sustained pattern of disregard for his Charter rights and that as a result, exclusion of all the impugned evidence is required.

[9] The Crown’s central position is that the police acted reasonably and in compliance with the Charter. The Crown notes that the police officers were confronted with a devastating accident scene and had to make quick decisions under difficult circumstances. The Crown also argues that the warrant and production order were properly issued, even with the excisions proposed by the applicant. Lastly, the Crown argues that even if there are Charter breaches, they do not warrant exclusion of any evidence.

Summary of the Evidence

(i) The Scene of the Accident

[10] The accident occurred just before 9:30 p.m. on Yonge Street near Townwood Drive in the City of Richmond Hill. The first responders who arrived on scene were confronted with a very large debris field hundreds of metres long. Cars and car parts were strewn over a long stretch of road. A large number of civilians had gathered to offer assistance and observe the scene. Some civilians were trying to photograph and take videos of the victims. Emergency service crews were arriving and tending to the scene and the various parties. The scene was chaotic.

[11] Cst. McWatters was one of the first police officers on scene. He arrived roughly at the same time as Cst. Gorevich and Cst. Barak. While traveling to the location, he received information suggesting that a major motor vehicle collision had occurred with a number of reported injuries. Given the number of calls coming in, Cst. McWatters concluded that it was not a routine collision call.

[12] Once on scene, Cst. McWatters sprinted over to a white motor vehicle, along with Cst. Barak and Cst. Gorevich. The car was demolished, and the front passenger cabin was essentially pushed into the rear passenger cabin. Cst. McWatters and Cst. Barak tended to the driver of the vehicle, who had suffered gruesome injuries and had no vital signs. They managed to get the driver out of the car and took turns doing chest compressions on him while in the ditch. Cst. Barak spoke with a female passenger in the same vehicle. She was trapped in the car and bleeding. He cut her out of her seatbelt and told her help was coming. He also directed a civilian to stay with a young child who was in the back seat. The driver of the vehicle was pronounced dead at approximately 9:45 p.m.

(ii) The Initial Interactions and the Decision to Arrest

[13] After their initial life saving efforts ended, Cst. McWatters and Cst. Barak then shifted their focus to the scene. Cst. McWatters started speaking with witnesses. He also spoke with Det. Cst. Edwards who advised him that the Mercedes SUV had caused the accident. Det. Cst. Edwards also pointed out two suspects who appeared to be related to the Mercedes SUV.

[14] Cst. Barak went over to the two males. At this point, he too had received information that the Mercedes SUV was responsible for the collision. He had formed the opinion that excessive speed had caused the crash. He did not tell the males that he was investigating a fatal motor vehicle collision and did not tell them he was gathering evidence. He agreed that he was not going to let the males leave and that he was going to detain them to conduct an investigation. He did not advise them of their right to counsel.

[15] He observed one male wearing a white shirt (later identified as Mr. Riazi) and one male wearing a black shirt (later identified as Mr. Hayatibahar). 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 Mr. Hayatibahar 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 Mr. Hayatibahar 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 Mr. Hayatibahar any questions during this interaction.

[16] According to Cst. Barak, at a certain point Det. Cst. Edwards came by and directed him and Cst. McWatters to arrest both males. At this point, Cst. Barak believed that Mr. Hayatibahar was “obviously drunk, impaired.” He also believed that Mr. Hayatibahar was the driver as he felt that Mr. Riazi was more likely telling the truth about being the passenger, essentially because he had provided more detail about how the car had flipped on its side and how he fell against his friend, Mr. Hayatibahar. Cst. Barak claims he told Det. Cst. Edwards of his belief but was nonetheless instructed to arrest both parties. Det. Cst. Edwards had no recollection of receiving this information from Cst. Barak nor did he have any notes of it. Cst. Barak also had no notes reflecting his belief on this issue at this time, and as I will discuss below, his subsequent notes can be read as indicating that he only formed this belief later.

[17] Notwithstanding his view that Mr. Hayatibahar was the driver, Cst. Barak agreed that both parties would be arrested. He explained that he was not sure “beyond a reasonable doubt” that Mr. Hayatibahar was the driver and he was not going 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.

[18] Cst. McWatters also described this portion of the investigation. He explained that after the attempts to treat the deceased, he walked over and observed that the two males from the Mercedes SUV were being treated by emergency services personnel. He asked if they were “ok” but had no further conversation. 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.

[19] He 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 had also attended at the scene and was the most senior officer present.

[20] Following 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 Mr. Hayatibahar. 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 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 had been told by Det. Cst. Edwards that the two males were in the vehicle that had caused the accident.

[21] Cst. McWatters acknowledged that he did not know which of the two males had been the driver as they were blaming each other. Nonetheless, he maintained that it was necessary to arrest both despite not knowing who was driving. Cst. McWatters acknowledged that he was acting on Det. Cst. Edwards’ direction to arrest.

[22] According to Cst. McWatters, during the second interaction with the two males which lasted one or two minutes, one of the officers asked the males who was driving. The question was asked prior to the arrest. In response, the males pointed at each other. In cross-examination, Cst. McWatters agreed that he should have given the right to counsel before the question was asked. He also agreed that he relied on the response as part of his grounds for arrest.

[23] According to Sgt. Busby, upon arrival at the scene he was briefed by other officers including Cst. Di Lorenzi. He learned that a witness had identified two males exiting a Mercedes SUV that was, or had been, on its side. The Mercedes SUV had been travelling at a very high rate of speed and it caused the collision when the driver lost control. He also received information that the males had been drinking alcohol and had suffered minor injuries in the crash. He 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 SUV, 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.

[24] In 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.

[25] Det. Cst. Edwards testified that on the evening in question, he was the Acting Sergeant, which made him the superior officer on the road for that shift. His role was to liaise with the officers on the road and his superior, the Duty Inspector, Sgt. Busby. Once he arrived on scene, he started making observations and receiving information. Based on his view of the wreckage of the Mercedes SUV and the information he received from Cst. Di Lorenzi, he was satisfied that the Mercedes SUV had caused the accident and further satisfied that a criminal offence had been committed. He spoke with Sgt. Busby who instructed him to have the two males arrested.

[26] According to Det. Cst. Edwards, while he was directed to have the males arrested by Sgt. Busby, he formed his own grounds to arrest as well. He believed that both males were arrestable for dangerous driving, possibly dangerous driving causing death. While he had some information regarding impairment, a charge of impaired driving was in his view only a possibility at that point. He did not know which of the two males had been driving the vehicle, and felt that the arrest was not exigent at that time. He believed the police could have waited to gather more information before arresting. In cross-examination, Det. Cst. Edwards confirmed that at the time of the direction to arrest, he had no information which made one male more likely to be the driver over the other.

[27] Cst. Di Lorenzi testified that upon arrival at the scene, she spoke to several witnesses. She learned from one witness that the Mercedes SUV had been seen travelling northbound on Yonge Street at an estimated speed of 200 km/h. She also learned that once the males exited the overturned Mercedes SUV, they admitted to consuming alcohol. She conveyed this information to Sgt. Busby and Det. Cst. Edwards. She also advised them that she had not learned who the driver was. Lastly, Cst. Di Lorenzi was present when Cst. McWatters and Cst. Barak were speaking with the two males. She overheard the males each claim that the other was the driver.

(iii) The Arrests and Rights to Counsel

[28] Mr. Riazi was arrested by Cst. McWatters at approximately 10:05 p.m. He was read his rights to counsel which he stated he understood. He was then loaded into an ambulance for transport to the hospital and he was accompanied by Cst. McWatters. During the drive to the hospital, Mr. Riazi stated “we had 5 to 6 tequilas” in response to questions by Cst. McWatters. He also stated that he was the passenger in the vehicle. When his t-shirt was pulled aside by the EMS personnel, Cst. McWatters observed a marking that appeared to be “seat belt rash” extending from his right shoulder down across his chest. In Cst. McWatters’ view, the location of the “seat belt rash” corroborated Mr. Riazi’s claim that he was the passenger. While Cst. McWatters came to the conclusion that Mr. Riazi was the passenger, he did not release Mr. Riazi at that time. He knew the investigation had been taken over by the Major Collision Unit and he wanted them to make the decision in relation to Mr. Riazi’s release.

[29] Mr. Hayatibahar was arrested for impaired driving causing death by Cst. Barak at approximately 9:58 p.m. Mr. Hayatibahar was placed into an ambulance for transport to the hospital at approximately 10:03 p.m. Cst. Barak travelled along with Mr. Hayatibahar in the ambulance. During the drive, at approximately 10:06 p.m., Cst. Barak read the right to counsel, caution and breath demand as set out in his memo book. Mr. Hayatibahar said he did not understand and Cst. Barak tried to use simple English words to paraphrase the right to counsel. He explained that he was arresting Mr. Hayatibahar because he believed that Mr. Hayatibahar drove while drunk and killed someone. He also explained that he had the right to speak with any lawyer he wanted or a free lawyer. Mr. Hayatibahar indicated an understanding and said he wanted a free lawyer. Cst. Barak was not satisfied that Mr. Hayatibahar understood what was being said and decided that the best approach would be to have a Farsi speaking police officer read the rights to counsel again once at the hospital. According to Cst. Barak, he “didn’t know whether he [Mr. Hayatibahar] was just saying yes, yes, yes or if he was really understanding.” Cst. Barak made a call for a Farsi speaking officer to attend at the hospital. The call was made from the ambulance while on route to hospital.

[30] In cross-examination, Cst. Barak denied that he essentially treated the answer “yes” to the offer of a “free lawyer” as meaning or implying “I don’t understand.” He agreed that he had no note indicating that he told anyone, including Cst. Ahmadi, that Mr. Hayatibahar wanted to speak with duty counsel, and he had no recollection of doing so. He took no specific steps to arrange for duty counsel. The only step he took was to call for a Farsi speaking officer.

[31] While in the ambulance, Cst. Barak could smell alcohol on Mr. Hayatibahar’s breath and noted that he was dozing off and slurring while speaking. He also noticed that a mark on Mr. Hayatibahar’s left shoulder and across his body that looked like it had been caused by a seatbelt. In his notebook, Cst. Barak noted his observation of the bruising and wrote in his notebook “begin to believe that he was the driver.” This phrasing is arguably contrary to his evidence, discussed above, that he had already formed this belief at the scene and had communicated his views to Det. Cst. Edwards.

[32] In cross-examination, Cst. Barak explained that when he saw the bruise on Mr. Hayatibahar’s shoulder, he went from being “51-49” to “more sure” that he was the driver. He denied that prior to the discovery of the bruise, he and the other the police officers simply did not have a reason to believe that one of the males was more likely to be the driver than the other. He agreed that there was a discussion with Det. Cst. Edwards and Cst. McWatters wherein they discussed the fact that they did not know who the driver was. However, he explained that they were not “100% sure beyond a reasonable doubt” who was the driver as between the two. He denied that the reason for the arrest was because he did not want the males to simply walk away. He maintained that the reason why he arrested Mr. Hayatibahar was because he believed him to be the driver.

(iv) The Plan Following Transport to Hospital

[33] Det. Cst. Rosilius is the Officer in Charge of this investigation. On August 18, 2019, she received a call from Det. Sgt. Bhatt advising her to attend the scene. She was informed that one person had died and that two individuals had been arrested. She understood that the males under arrest were the only two people inside the vehicle that caused the accident. Her plan was to determine who the driver was and then release the other person unconditionally. She agreed that the fact that two people had been arrested for an offence committed by one driver was a concern that she discussed with Det. Sgt. Bhatt and others. In her view, this was a concern because it was not common for police officers to arrest two people for the same driving offence.

[34] Det. Cst. Rosilius attended at the hospital hoping to determine who the driver was. She agreed that if police were unable to determine who the driver was, both males would have been released unconditionally.

[35] Once at the hospital, Det. Cst. Rosilius spoke with Cst. Barak. She learned that Cst. Barak had observed the injury to Mr. Hayatibahar’s left shoulder. She also made observations of the injuries to Mr. Hayatibahar’s shoulder and concluded that the injuries looked like they were caused by a seatbelt. She then spoke with Mr. Riazi and observed injuries to his right shoulder, which suggested that he had been the passenger. Based on these observations, Det. Cst. Rosilius made the decision to release Mr. Riazi unconditionally. By this time, she had concluded that he was the passenger and that Mr. Hayatibahar was the driver.

(v) The Implementation of the Right to Counsel

[36] Mr. Hayatibahar arrived at the hospital at approximately 10:19 p.m. He was triaged and placed in a room with a sliding curtain. Cst. Barak was with him at this time. Mr. Hayatibahar was initially passed out, but he woke up and became agitated. While his hands were already in handcuffs, Cst. Barak decided to also handcuff him to the bed in order to keep everybody safe.

[37] Mr. Hayatibahar was then transferred to a second room which had a sliding door. By this time, he was yelling and flailing around. The hospital staff called for medical restraints. Mr. Hayatibahar continued struggling and soon thereafter nurses gave him a sedative.

[38] Cst. McWatters also observed Mr. Hayatibahar at the hospital. He noted a very strong smell of alcohol which he could smell while standing some twelve feet away. He noted a 3” long rash over Mr. Hayatibahar’s left shoulder, which confirmed his view that Mr. Hayatibahar was the driver of the vehicle. He noted that Mr. Hayatibahar appeared to have two black stamps from a bar on his hands. He also noted that Mr. Hayatibahar was slurring and incoherent. He was intermittently yelling about his brother or passed out snoring.

[39] Cst. Ahmadi is a Farsi speaking police officer. On the evening of August 18, 2019 at approximately 10:10 p.m., he was dispatched to attend the scene of the crash and then diverted to Mackenzie Health Hospital to assist with administering rights to counsel and caution to a male detainee who spoke Farsi. He arrived at the hospital at approximately 10:36 p.m.

[40] Once he arrived at the hospital, Cst. Ahmadi spoke with Cst. Barak and learned that the male was getting treatment at the hospital and that he had been arrested for impaired operation and dangerous driving causing bodily harm. He was instructed to provide rights to counsel, a caution and breath demand in Farsi, and also to explain the charges. He was advised that the right to counsel had been provided in English at the scene, but officers were not sure whether the male understood so they wanted it done again in Farsi. Cst. Ahmadi was not advised of any request for duty counsel by the male detainee and agreed that he would have noted any such information and would have taken steps to facilitate contact with duty counsel if that had been the case.

[41] At approximately 11:08 p.m., Cst. Ahmadi was directed to Mr. Hayatibahar, who was in restraints on a stretcher and being attended to by nurses. Cst. Ahmadi approached Mr. Hayatibahar and introduced himself. Mr. Hayatibahar indicated that he could not speak English as he was “new.” Cst. Ahmadi continued in Farsi. He started reading the right to counsel as set out in a translation used by the York Region Police. At this time, Mr. Hayatibahar was yelling and shouting and moving around. He was not coherent. Cst. Ahmadi had to read the right to counsel several times slowly as he was being interrupted by Mr. Hayatibahar. When Cst. Ahmadi tried to explain the charges, also in Farsi, Mr. Hayatibahar replied that he did not have a driver’s licence. Cst. Ahmadi stated “Because of your actions, there is a man dead”, and Mr. Hayatibahar replied, “then go fix him…”

[42] Cst. Ahmadi was not certain whether Mr. Hayatibahar understood the right to counsel and he did not get to the point of asking Mr. Hayatibahar if he wanted to speak with counsel. Mr. Hayatibahar was mentioning pain in his neck and leg, but not otherwise engaging with the officer. He continued screaming and yelling. Cst. Ahmadi was aware that a sedative had been administered to Mr. Hayatibahar, though was uncertain as to the timing. He agreed that it could have been before he read the rights to counsel.

[43] Once the sedative took effect, Mr. Hayatibahar calmed down and eventually passed out. Cst. Ahmadi was not able to speak with Mr. Hayatibahar further. At no point did Mr. Hayatibahar ask to speak to counsel. No breath demand was made. This interaction with Mr. Hayatibahar ended at approximately 11:40 p.m. when Mr. Hayatibahar was taken for a CT scan.

[44] Following Cst. Ahmadi’s departure, Mr. Hayatibahar was taken for some medical tests. Cst. Barak noted that at 11:51 p.m., Mr. Hayatibahar vomited “everywhere.” Shortly thereafter, Cst. Barak noted a bulge in Mr. Hayatibahar’s pocket. He conducted a search incident to arrest and found a wallet containing Mr. Hayatibahar’s brother’s identification. He also found a key to a Mercedes. While a Report to Justice mentions that a Samsung Galaxy cell phone was also seized, Cst. Barak had no recollection of finding this item on Mr. Hayatibahar during this search.

[45] Det. Cst. Rosilius, the Office in Charge of the case, arrived at Mackenzie Health Hospital at approximately 11:45 p.m. on the evening of August 18, 2019. Once there, she was briefed by a number of officers including Cst. Barak who advised her that Mr. Hayatibahar had been given his right to counsel in “basic English” and that a Farsi speaking officer had been called to attend to repeat the right to counsel, but by the time the officer arrived, Mr. Hayatibahar had been sedated.

[46] At some point after 1:00 a.m., Det. Cst. Rosilius spoke with Niusha Zandsalimi, a friend of Mr. Hayatibahar who had arrived at the hospital. Mr. Hayatibahar’s brother was also present for this discussion. According to Det. Cst. Rosilius, Ms. Zandsalimi indicated that she had spoken to a lawyer, Mr. Abraham Top, who was available to see Mr. Hayatibahar. She did not specifically state that the lawyer was for Mr. Hayatibahar. Det. Cst. Rosilius believed that Mr. Hayatibahar’s family had consulted this lawyer in order to get advice. She took no steps to contact that lawyer or attempt to put Mr. Hayatibahar in touch with the lawyer. However, she did make an entry in her memo book which included the underlined word “Lawyer” and Mr. Top’s name and telephone number. She denied being told that the lawyer was for Mr. Hayatibahar.

[47] Cst. Barak also had an interaction with Mr. Hayatibahar’s brother and Ms. Zandsalimi. He had no recollection of a discussion about a lawyer, though he did recall that Mr. Hayatibahar’s brother was looking to retrieve some personal items that were with Mr. Hayatibahar.

[48] Ms. Zandsalimi testified that she learned of the accident through her sister. She attended at the accident scene along with Mr. Hayatibahar’s brother and her sister. She then went to Mackenzie Health Hospital where she asked if she could see or speak with Mr. Hayatibahar. She explained that Mr. Hayatibahar’s brother wanted to retrieve his identification from Mr. Hayatibahar’s wallet. She spoke with a number of nurses and police officers and was advised that she could not see Mr. Hayatibahar.

[49] Prior to arriving at the hospital, Ms. Zandsalimi received a referral to Mr. Top, whom she spoke with. Her purpose in speaking with Mr. Top was to arrange counsel for Mr. Hayatibahar. While she could not remember the exact words used, she recalled asking a male police officer to provide the name and number of the lawyer to Mr. Hayatibahar so that he could call the lawyer. Ms. Zandsalimi did not recall any discussion with a female police officer in relation to the lawyer. In cross-examination, she explained that if she discussed the lawyer with a female police officer, she would have mentioned that the lawyer was for Mr. Hayatibahar. There was never a suggestion by her that the lawyer was “for the family.”

[50] Cst. Rudolf was posted outside Mr. Hayatibahar’s room between 2:56 a.m. and 5:15 a.m. At approximately 3:05 a.m., she observed hospital staff attend to add restraints to Mr. Hayatibahar who had woken up, was yelling and pulling at his restraints.

[51] Cst. Sommer was dispatched to Mackenzie Health Hospital at approximately 3:20 a.m. He arrived at approximately 3:30 a.m. and relieved Cst. McWatters who was with Mr. Hayatibahar. Cst. Sommer was informed that Mr. Hayatibahar spoke Farsi and that a Farsi speaking police officer was required in order to re-read the right to counsel and caution. He was not advised that Mr. Hayatibahar had earlier asked to speak to duty counsel. He observed that Mr. Hayatibahar was sleeping but noted that he would occasionally yell out incoherently.

[52] Cst. Sidenberg was dispatched to Mackenzie Health Hospital at 6:30 a.m. on the following morning. He was accompanied by Cst. Nuttall. They arrived at Mr. Hayatibahar’s bedside at approximately 6:40 a.m. and relieved the two other officers who had been assigned to stay by Mr. Hayatibahar overnight. One of those officers, Cst. Sommer, indicated that Mr. Hayatibahar would require his right to counsel and caution provided to him in Farsi once he woke up. Cst. Sidenberg observed Mr. Hayatibahar to be sleeping and groggy due to medication. He was advised by hospital staff that Mr. Hayatibahar needed more time to rest.

[53] At approximately 7:20 a.m., Cst. Payanda, who is Farsi speaking, was dispatched to Mackenzie Health Hospital and tasked with providing the right to counsel and advising Mr. Hayatibahar of his charges, which by this time included criminal negligence causing death and bodily harm and impaired operation causing death and bodily harm.

[54] Cst. Payanda arrived at the hospital at 8:05 a.m., attended at Mr. Hayatibahar’s room and relieved Cst. Sidenberg and Cst. Chang who were keeping watch. Mr. Hayatibahar was on a bed and appeared dizzy and tired. Cst. Payanda explained the charges in Farsi. He also provided rights to counsel and a caution. According to Cst. Payanda, Mr. Hayatibahar appeared to understand what was being explained to him, though he did not take specific notes of Mr. Hayatibahar’s responses.

[55] According to Cst. Payanda, Mr. Hayatibahar declined to speak with duty counsel, though he repeatedly asked to speak with his brother. While Mr. Hayatibahar did not explain why he wanted to speak with his brother, Cst. Payanda did not believe it was for the purposes of obtaining counsel, though he did not attempt to clarify this issue. Cst. Payanda told Mr. Hayatibahar more than once that he could speak with a lawyer or duty counsel. He also explained that this was a “free lawyer.”

[56] Cst. Payanda was not aware that Mr. Hayatibahar had asked to speak with a “free lawyer” hours earlier. If he had been aware, he would have spoken with a supervisor and made arrangements for either a cell phone or hospital phone to be provided. In the alternative, he would also have considered transporting Mr. Hayatibahar to a police station for the purpose of speaking with counsel in private.

[57] Following this discussion, Mr. Hayatibahar was discharged from hospital. He was transported to court by Cst. Payanda. The hospital provided Cst. Payanda with discharge documents which included a prescription and a follow up appointment for a fracture clinic visit. Cst. Payanda reviewed these documents as he wanted to know whether any medical information needed to be passed on to the court officers in order to ensure that Mr. Hayatibahar would be fine once in the custody of the court system.

[58] On arrival at the courthouse, Cst. Payanda advised the court officers that Mr. Hayatibahar only spoke Farsi. He also explained that Mr. Hayatibahar wanted water and was complaining of neck and back pain.

[59] While not directly relevant to the issue of Mr. Hayatibahar’s right to counsel, evidence was also called on the issue of Mr. Riazi’s right to counsel. In brief summary, Mr. Riazi was given his right to counsel upon arrest. He spoke English and understood his rights, indicating that he wanted to speak with counsel. Arrangements were made and at 11:10 p.m., after arriving at the hospital, Cst. Leung called duty counsel for Mr. Riazi. When duty counsel called back, Cst. McWatters was asked to provide his grounds for arrest, which he did. He then turned the phone over to Mr. Riazi, who consulted with duty counsel.

[60] As Mr. Riazi was in custody at the hospital at the time of the implementation of the right to counsel, Cst. Leung was dispatched to the hospital with a police issue cell phone that was intended for and ultimately used by Mr. Riazi. Cst. Leung brought a second telephone, presumably intended for use by Mr. Hayatibahar. Cst. Barak did not recall requesting any cell phones for the purpose of implementing the right to counsel. Nonetheless, it appears that cell phones were available for implementation of the right to counsel for both Mr. Riazi and Mr. Hayatibahar while at the hospital.

(vi) The Blood Samples

[61] According to Cst. Barak, blood was drawn from Mr. Hayatibahar at the hospital at approximately 10:57 p.m. When Cst. Barak made this observation, he asked the nurse for her name and was told it was Arghawan Presunka. He asked her to spell her name and made a note in his memo book. He was advised that the blood would be taken to the lab for testing.

[62] Ms. Presunka, a Registered Nurse at Mackenzie Health, was on shift when Mr. Hayatibahar was brought in for treatment. At the time she had 12 years experience and was working in the Emergency Room (“ER”) on a full-time basis.

[63] She explained that as an ER nurse, she would assist in triaging arriving patients. The triaging would be aimed at determining what help the patient needed and where the help could be best provided. The triaging would occur when the patients first arrived in the ER and then, depending on the outcome of the triaging, patients would be sent to different care areas in the hospital.

[64] Ms. Presunka agreed that medical treatment requires patient consent, unless the patient was unconscious or incapable of giving consent. In terms of blood work, Ms. Presunka explained that medical directives describe the types of blood work that are appropriate for different situations, depending on the nature of the complaint. She further explained that even where a medical directive applied, consent was nonetheless requested.

[65] Ms. Presunka explained that the acute care area of the hospital was usually staffed by four nurses. While each patient had a primary care nurse, any nurse on shift in the acute care area could draw blood from a patient if required.

[66] Ms. Presunka was on shift on August 18/19, 2019, and had some recollection of dealing with Mr. Hayatibahar. Her recollection was assisted by her review of his medical chart. She recalled that her first contact with Mr. Hayatibahar was at 2230 hours. Mr. Hayatibahar arrived by ambulance and was on a back board with a neck collar. He complained of pain and she noted a left shoulder deformity or injury. She recalled that his demeanour was calm and quiet during triage and he appeared capable of giving or withholding consent.

[67] Ms. Presunka was advised that Mr. Hayatibahar had been involved in a high-speed collision but had exited the vehicle on his own and had walked over to a sidewalk. She did not note any odour of alcohol coming from Mr. Hayatibahar and explained that she would have noted it had it been present. Mr. Hayatibahar was in the triage area for approximately 5 to 10 minutes.

[68] Ms. Presunka did not order any blood work. She merely assessed Mr. Hayatibahar to determine which area of the hospital was appropriate for him. At the time she saw Mr. Hayatibahar, it was her opinion that none of the medical directives relating to blood testing applied. She could not recall drawing blood from him and ruled out the possibility based on the fact that as a triage nurse, she would not have been involved in that process and would not have entered the acute care area of the ER in order to care for patients. While she was shown photos of the vials of Mr. Hayatibahar’s blood, none of the markings on the vials refreshed her memory or changed her evidence on this issue. She also could not recall giving the spelling of her name to a police officer, though she vaguely recalled having two interactions with a police officer who was present.

[69] In terms of the specific blood work ordered, Ms. Presunka agreed that testing for the presence of alcohol is not invariably done, though she did agree that some medical directives do provide for alcohol testing, including the directives dealing with a decreased level of consciousness and displays of bizarre or confused behaviour. She also agreed that the result of any blood work tests are private and should not be shared with anyone, including police officers. Lastly, she agreed that it would be improper to share the mere fact that blood was taken with police officers.

[70] Emma Chen is also a Registered Nurse who was on duty in the ER at Mackenzie Health Hospital when Mr. Hayatibahar arrived for treatment. While she had no specific recollection of the events of that evening, she testified based on entries contained in Mr. Hayatibahar’s medical charts which she had reviewed. She advised that she ordered blood work known as a “CBC” or ‘complete blood count” at approximately 2244 or 2245 hours. She also ordered a blood test relating to blood-alcohol levels at 2245 hours.

[71] She explained that a nurse could order blood work either under a medical directive or under order by a doctor. When asked about patient consent in cases where blood is drawn under a medical directive, Ms. Chen explained that she would document any instance where a patient refused to consent. She also explained that when patients are in the ER, they are seeking medical assistance, so consent is usually not an issue. She added that instances where a patient is incapacitated or in an altered state, consent is inferred. Lastly, she explained that in the ordinary course consent for blood work would not be recorded.

[72] Ms. Chen explained that as this was a case involving major multi-system trauma, much of the blood work ordered was covered by the operative medical directive. In terms of the ethanol test which measures blood-alcohol, Ms. Chen explained that Mr. Hayatibahar had been involved in a trauma, there was a high risk of injury and his behaviour appeared altered as he was agitated, combative and belligerent. She had received information that alcohol had been consumed, though she could not recall where this information came from. Based on her observations and the available information, she would have wanted to rule out substance use. She could not tell from the records who had specifically drawn the blood from Mr. Hayatibahar and she had no recollection of doing it herself. She noted that the results of the blood work were conveyed to her colleague, Chris Bari.[^1]

[73] Ms. Chen agreed that the file contained no mention as to whether Mr. Hayatibahar consented to the taking of his blood, nor was there any mention of him being incapable of giving consent.

[74] On August 19, 2019, while at the hospital, Det. Cst. Rosilius was advised that blood had been taken from Mr. Hayatibahar. Later that same day, at approximately 5:29 p.m., she called the hospital to confirm that the blood samples were there. She told the hospital to keep the blood pending judicial authorization for seizure by police. She did this because she knew from past experience that hospitals would discard blood samples once they were no longer needed for medical treatment. During the call with the hospital, Det. Cst. Rosilius was provided with the identifying numbers for five vials of Mr. Hayatibahar’s blood and was advised that one vial had already been disposed of. She could not recall whether she asked for this information or if it was offered by hospital staff.

[75] Det. Cst. Rosilius called the hospital again on August 27, 2019. She did not have the warrant for the blood yet but wanted to make sure the hospital did not dispose of the blood. On September 10, 2019, she made one further call to the hospital to confirm that the blood had been set aside. Eventually, the hospital blood samples were seized under warrant.

(vii) Mr. Hayatibahar’s Evidence

[76] Mr. Hayatibahar was born in Iran and came to Canada in November of 2018, with his older brother and sister. The rest of his family remained in Iran. He has no criminal record and no prior involvement with police in Canada. In August of 2019, he was 19 years old. He did not speak English very well as he had been in Canada for less than one year.

[77] In terms of the incident on August 18, 2019, Mr. Hayatibahar explained that he has “some things” in his memory, but it is not one hundred per cent. He agreed that the incident was traumatic and chaotic and that these factors may have affected his memory. While he admitted to consuming alcohol on the day of the accident, he denied that it was “a lot” of alcohol and further denied that it had any impact on his memory or his conduct while at the hospital.

[78] He was able to recall some details of events and interactions but not others. He recalled being on the grass with Mr. Riazi after the accident, recalled the officers asking who the driver was and recalled the interactions in the ambulance and at the hospital. He could not recall Cst. Ahmadi’s interactions with him while at the hospital. He also could not recall being discharged from the hospital or could not recall much of the transport to the courthouse.

[79] In terms of the initial interactions immediately following the accident, Mr. Hayatibahar recalled that he was being attended to by EMS and firefighters who were asking him how he was feeling. He was feeling some pain at the time and was also feeling weak. He also recalled a police officer asked him who was driving. He told this officer that he was the passenger and not the driver. While he could not hear what Mr. Riazi was saying to police officers, he later learned that Mr. Riazi also claimed to be the passenger.

[80] Mr. Hayatibahar did not have a clear recollection of the sequence of these events, the precise questions asked or who asked which question. In cross-examination, Mr. Hayatibahar confirmed that when the police officers first approached him, he did not believe he was under arrest nor did he feel like his movements were restricted. He was dealing with medical personnel at the time and described this interaction as very quick. The officers did not prevent him from interacting with medical personnel, but they may have “interrupted” the interaction.

[81] According to Mr. Hayatibahar, he did not know at the time that someone had died. Following a short “back and forth”, the officers stepped away and then returned and arrested him. Mr. Hayatibahar could not recall the specific timing of this interaction but explained that it “all happened so fast.”

[82] In terms of the right to counsel, Mr. Hayatibahar explained that when it was first read to him, he indicated that he did not understand what it meant. The officer then read it again, more slowly and using simpler language. Mr. Hayatibahar understood the words “free lawyer” and understood that the “free lawyer” would provide help. He told the officer that he wanted to speak with the “free lawyer” and he anticipated that he would put in touch with one. He recalled that the officer said words to the effect, “ok” or “we will call.” In cross-examination, Mr. Hayatibahar explained that if the right to counsel had been explained in Farsi he would have understood it completely, but he managed to understand “some parts of it” when the officer explained it using simple English. While he wanted to speak to a “free lawyer,” he was unclear on how he would be put in touch with the lawyer or whether it would be in person.

[83] Mr. Hayatibahar also confirmed that he repeatedly asked to speak with his brother. He explained that he had no other family in Canada and his elder brother was the only person who he would turn to when in a moment of need. Mr. Hayatibahar initially asked to speak with his brother when he was in the ambulance. He was told he could not do so. He also heard his cell phone ring and was concerned that it may have been his brother trying to reach him. He could not answer his phone as he was in handcuffs. At the time, he was calm and was trying to answer the officer’s questions as best as possible.

[84] Once at the hospital, Mr. Hayatibahar was seen by nurses. Again, he remained calm and cooperative during this time, though he indicated that he wanted to speak to his brother. At a certain point, he was moved to a room. Once in this room, he was no longer being attended to by nursing staff and he felt this presented an opportunity to speak with his brother. He again asked the officer who was with him whether he could speak with his brother. The officer advised him that he could not speak with his brother as he was under arrest. The officer’s tone was sharp and he was no longer friendly. Mr. Hayatibahar explained that the officer’s change in demeanour caused him to be scared and fearful. He drew a connection between the officer’s demeanour and his understanding of the conduct of police officers back in Iran. He explained that the police in Iran instilled fear in people and that as a result a person would act calmly and politely when in their presence. He maintained that he was “completely peaceful” until Cst. Barak instilled fear in him with the change in demeanour.

[85] According to Mr. Hayatibahar, the change in the officer’s demeanour caused him to lose his composure. He began raising his voice, shouting profanities and repeatedly asking to speak with his brother. He then recalled that hospital staff tied him down to the bed and administered a sedative. It appeared to him that the demeanour of the hospital staff also changed and that they were working as a team with the police. While he made no mention of wanting to speak to counsel during this interaction, he believed that he would be put in touch with counsel at some point. That said, he continued to demand to speak with his brother.

[86] Mr. Hayatibahar was never advised that his brother attended at the hospital. He had no recollection of the being advised that a name and number for a lawyer had been provided to police.

[87] Mr. Hayatibahar also had no recollection of blood being drawn from him. He could not recall anyone asking him for permission to take his blood and explained that if he knew that the blood would be used against him, he would not have provided permission. In cross-examination, he agreed that he did not saying anything to the nurses to stop them from taking his blood.

Findings and Analysis

(i) Initial Detention and Section 10(a) and (b) of the Charter

[88] The defence argues that Mr. Hayatibahar was detained the moment he was initially approached by police officers while he and Mr. Riazi were outside the Mercedes SUV. The defence does not challenge the lawfulness of the detention. Indeed, there is no issue that when the officers first approached Mr. Hayatibahar and Mr. Riazi, they had a valid basis for engaging in an investigative detention, at a minimum. The defence argues that police failed to promptly advise Mr. Hayatibahar of the reasons for his detention and further failed to advise him of his right to counsel. Lastly, the defence argues that by failing to provide Mr. Hayatibahar a caution, the police also violated his right to silence as protected by s. 7 of the Charter.

[89] The Crown argues that Mr. Hayatibahar was not detained prior to his arrest and as such there was no need to comply with sections 10(a) and (b) of the Charter. Alternatively, the Crown argues that if there was a detention, it was a detention under s. 48(1) of the Highway Traffic Act and as such, the right to counsel was suspended during this brief period of time prior to the arrest. Lastly, the Crown argues that the failure to give a caution did not result in any violation of the right to silence.

[90] The rights guaranteed by sections 10(a) and 10(b) of the Charter arise only upon arrest or detention. Once a person has been detained or arrested, the police must promptly advise the person of the reason for their arrest or detention, see R. v. Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869 and R. v. Nguyen, 2008 ONCA 49 at paras. 17-19. The police must also comply with the informational component of s. 10(b) without delay and then take reasonable steps to implement the right to counsel, see R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, at para. 17. These components require that a detainee or arrestee be advised of the right to counsel, including the availability of Legal Aid, and further that the detainee or arrestee be permitted an opportunity to contact counsel of their choice, see R. v. Suberu, 2009 SCC 33, at para. 41.

[91] Detention refers to the suspension of a person’s liberty interest by a significant physical or psychological restraint, see R. v. Grant, 2009 SCC 32, at paras. 30-44 and Suberu, supra, at paras. 2-5 and 28. A psychological detention arises when an individual is legally required to comply with a police demand, or where a reasonable person in the defendant’s position would conclude from the state conduct that there was no choice but to comply and that he or she was not free to leave: see R. v. Le, 2019 SCC 34, at paras. 24-27. The test is objective. The subjective views of the police officer and the detainee do not decisively determine whether an interaction amounts to a detention. However, any such subjective views are factors be considered in the analysis, see R. v. Omar, 2018 ONCA 975 at para. 42.

[92] Not every interaction between police and an individual results in a detention. The police are permitted to speak to people and ask questions, even in cases where a person turns out to be implicated in a criminal offence, see R. v. Guenter, 2016 ONCA 572 at para. 41, R. v. MacMillan, 2013 ONCA 109 at para. 36, and R. v. Peterson, 2013 MBCA 104, at para. 52. An officer’s subjective intent to detain a person, formed prior to taking any steps towards effecting the detention, does not, on its own, invariably give rise to a detention, see R. v. MacMillan, supra at paras. 36-37 and R. v. Clayton, 2007 SCC 32 at para. 48.

[93] A determination of whether and/or when a person has been detained requires a consideration of the totality of circumstances with a focus on the following factors:

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for a focussed investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

See Grant, supra, at para. 44.

[94] Turning to the facts of this case, the initial interactions between the police and Mr. Hayatibahar can be broken down into two periods of time, an initial period of brief interaction and then a second brief interaction that culminated with the arrest.

[95] The first period of time was very brief, perhaps between 30 seconds and a minute. During this period of time, it appears that both Cst. Barak and Cst. McWatters went over to Mr. Hayatibahar and Mr. Riazi, who by this time were both out of the vehicle and on the ground near the vehicle. They were being tended to by either firefighters or EMS, or perhaps both. The officers made some brief observations which included noting an overwhelming smell of alcohol, but they did not extensively engage with either party. Cst. McWatters recalls simply asking both parties if they were “ok.” Cst. Barak spent most of this initial interaction talking to Mr. Riazi. He asked Mr. Riazi if he was the driver and Mr. Riazi explained that he was the passenger. He then moved over to Mr. Hayatibahar and noted that Mr. Hayatibahar was speaking with firefighters. He heard him telling the firefighters that he was not driving and that he was a passenger. He did not ask Mr. Hayatibahar anything at this time. Cst. Barak also noted that Mr. Hayatibahar had bloodshot eyes that were rolling back into his head, he smelled of alcohol, was slurring his speech and was not making sense.

[96] Cst. McWatters testified that in his mind, neither male party was free to leave at this point, though he did not say anything to either of them. He believed that a criminal offence had been committed, not simply a Highway Traffic Act offence. He agreed that he should have told both parties that they were being investigated in relation to a fatal motor vehicle collision. Cst. Barak agreed that when he first approached, he was also of the view that neither male party was free to leave, though he too said nothing. In response to the suggestion that he had placed the two males under investigative detention, Cst. Barak explained that he “did not necessarily detain them outright.”

[97] In his own evidence, Mr. Hayatibahar agreed that at no point prior to his arrest, did he feel like he was detained. At the time, he was being examined by EMS and firefighters and did not feel that his movements were restricted by police. While his recollection of events was not entirely clear, he seemed to recall that it was police officers and not firefighters or EMS personnel who were asking the questions about who was driving.

[98] The first interaction came to an end when both Cst. Barak and Cst. McWatters stepped away to speak with Det. Cst. Edwards. At that time, they were instructed to place both males under arrest and they returned to where the males were located. However, according to Cst. McWatters, prior to placing them under arrest, they proceeded to ask further questions about who was driving. These questions prompted Mr. Hayatibahar and Mr. Riazi to physically point to each other as being the driver of the vehicle. The males were then both arrested.

[99] I find that the initial very brief interaction between the police officers and Mr. Hayatibahar does not amount to a detention.[^2] It was a relatively fleeting interaction during which time the officers were trying to gather very preliminary information. Mr. Hayatibahar’s movements were neither actually nor psychologically restrained from an objective perspective. I find that during this time period, neither police officer engaged in specific investigatory questioning of Mr. Hayatibahar, though they both made observations of him and Cst. Barak overheard him speaking with EMS and firefighters. On this issue, I specifically accept Cst. Barak’s evidence that he did not get to ask a question during this brief interaction and that the question about who was driving was asked by either a firefighter or EMS personnel. I do not accept Mr. Hayatibahar’s evidence that he believed this question came from police officers. His ability to remember such a precise detail given the nature of the traumatic event he had been through and the condition he was in is questionable at best.

[100] Further, while I accept that both officers subjectively believed that both males were not free to leave at this time, this is not an instance where that subjective view, when placed in context with the balance of this very brief interaction, gives rise to a constitutional detention. Neither of them took any steps to physically detain Mr. Hayatibahar. Despite their intention, a reasonable person would not have perceived a psychological detention in the circumstances.

[101] However, once Cst. Barak and Cst. McWatters were tasked to arrest both males, I am satisfied that the interaction became a detention. Following the direction to arrest by Det. Cst. Edwards, Cst. Barak and Cst. McWatters returned to the location where the two males were standing. They did so for the specific purpose of arresting them. However, they held off on conducting the arrest. I accept Cst. McWatters’ evidence that they instead engaged the males in further conversation. I further find that during this conversation, the males were specifically asked who was driving and they pointed at each other. This was an investigatory, evidence gathering question aimed at solving the “problem” facing investigators, i.e. that they did not know which of the two males was actually the driver at the time of the collision. This question was posed just as the officers were about to arrest both males. When this second interaction is viewed in context, I am satisfied that Mr. Hayatibahar was detained. I reach this conclusion, even though I accept Mr. Hayatibahar’s evidence that during this interaction he did not feel that he was detained by police.

[102] In my view, the second interaction should have simply commenced with words of arrest followed by rights to counsel. I find that the period of time following the return of the officers up to the arrest is a period of detention. I am prepared to find a violation of s. 10(b) of the Charter based on the failure to advise Mr. Hayatibahar of his right to counsel upon detention. I also find a violation of s. 10(a) of the Charter. While it would have been obvious that the police were detaining him in relation to the accident, Mr. Hayatibahar should have been advised that it was a criminal investigation relating to a fatal driving offence, see R. v. Mueller, 2018 ONSC 2734. I find that by engaging Mr. Hayatibahar in questioning during this time period, the police violated his rights. That said, I am not prepared to find a separate s. 7 violation of the right to silence as a result of the failure to provide a caution at this time. This is simply a re-assertion of the s. 10(b) violation, see R. v. Orbanski, 2005 SCC 37 at para. 48.

[103] Further, I find that the violations of Mr. Hayatibahar’s s. 10(a) and (b) rights were of very brief duration. Within moments Mr. Hayatibahar was placed under arrest and advised of the specific offence he was under arrest for. He was then loaded into an ambulance and during transport, he was read his right to counsel. In view of the medical issues at play, I find that he was advised of his right to counsel without delay following his arrest.

[104] In reaching my conclusion on this issue, I reject the submission that the police were essentially engaged in an investigation under the authority of s. 48(1) of the Highway Traffic Act. There was no evidence from any police officer suggesting that they were engaged in a roadside stop for the purpose of determining whether a basis for a breath demand existed, see R. v. Guenter, supra, at para. 55, R. v. McColman, 2021 ONCA 382 at para. 26 and R. v. Gardner, 2018 ONCA 584 at paras. 23-24. Based on the nature of the collision and initial witness reports, the officers believed that a criminal offence had been committed. They did not know who the driver of the vehicle that caused the accident was, and they were taking steps to determine that by speaking to the two occupants of the vehicle. While alcohol impairment was a live issue, the investigation they initially undertook was not related to determining the sobriety of the people involved. On this issue, it is telling that none of the officers who initially interacted with Mr. Hayatibahar and Mr. Riazi even asked whether they had been drinking. It is also worth noting that since the Mercedes SUV in which Mr. Hayatibahar and Mr. Riazi had been travelling had crashed and been rendered obviously undrivable before the officers arrived at the scene, this was not a situation where they can be said to have been invoking s. 48 to either require the driver of the Mercedes SUV to either stop or to refrain from putting the vehicle back in motion: see, R. v. Shen, 2020 ONSC 2629 at paras. 32-33.

(ii) Lawfulness of Arrest – Section 9 of the Charter

[105] The lawfulness of Mr. Hayatibahar’s arrest poses a challenging issue for this court’s consideration. All of the police officers who claimed to form grounds for arrest, apart from Cst. Barak, whose evidence on this issue I will address in a moment, testified that they believed that either Mr. Hayatibahar or Mr. Riazi had been the driver of the Mercedes SUV at the time of the accident. More particularly, they all agreed that they had no information making one more likely to be the driver than the other. Nonetheless, both men were placed under arrest for being the driver of the vehicle. As well, none of the officers involved articulated a basis for believing that while only one was the driver, the other had aided or abetted the driver in any criminal conduct.

[106] The lawfulness of Mr. Hayatibahar’s arrest turns specifically on how the phrase “reasonable and probable grounds” in s. 495 of the Criminal Code is interpreted. As I will discuss later, it is well-settled that the phrase “reasonable grounds” that is now used throughout the Code is in substance the same as the phrasing “reasonable and probable grounds” that was previously used in the Code’s warrantless arrest provision, then s. 450.

[107] The defence argues that “reasonable and probable grounds” requires a reasonable belief in the “probability” that an arrestee has committed an offence. The defence argues that “probability” must be interpreted to require that the arresting officer have a reasonable basis for believing that it is more likely than not that the arrestee committed the offence. On this basis, the defence argues that neither Mr. Hayatibahar nor Mr. Riazi were arrestable for a criminal offence committed as the driver of the Mercedes SUV, since the police had, at best, a 50% certainty of belief that one or the other was the driver. While the defence acknowledges that they both could have been subjected to a brief investigative detention, that period of investigative detention could not have been permissibly extended to include the ambulance ride to hospital. As such, the defence argues that the police violated Mr. Hayatibahar’s s. 9 Charter rights.

[108] In contrast, the Crown argues that the test for “reasonable and probable grounds” sits on a continuum above reasonable suspicion but below “prima facie case”, “proof on a balance of probabilities” and “proof beyond a reasonable doubt.” The Crown argues that it is an error to require that a police officer believe that it is more likely than not that an arrestee has committed the offence they have been arrested for. The Crown argues that the arrests were valid as the police officers had at least a 50% belief that each party was the driver. When viewed on a continuum, this belief was clearly above a reasonable suspicion.

[109] Before addressing this issue, I turn first to assessing Cst. Barak’s grounds for arrest. Unlike all of the other officers involved, Cst. Barak asserts that when he spoke with Mr. Riazi and Mr. Hayatibahar at the scene, he developed a basis in his mind for believing that Mr. Hayatibahar was more likely to have been the driver and Mr. Riazi was more likely to have been the passenger. The Crown argues that I should simply accept this evidence and consider the arrest issue resolved. The defence agrees that accepting Cst. Barak’s evidence would end the arrest issue, as it would mean that the officer who ultimately placed Mr. Hayatibahar under arrest believed he was more likely than Mr. Riazi to have been the driver. However, the defence argues that there are good reasons to view Cst. Barak’s evidence on this point with caution.

[110] For reasons I will address shortly, I do not necessarily agree that Cst. Barak’s subjective views about who was driving matter in this case, since he had been ordered by a senior officer to arrest Mr. Hayatibahar. However, I do not need to address this issue further since, as I will now explain, I do not accept Cst. Barak’s evidence on this issue.

[111] In his evidence, Cst. Barak explained that Mr. Riazi’s assertion of being the passenger in the vehicle, which contained details about how the vehicle flipped on its side and a description of one occupant landing on the other, rang true to him. It accorded with his personal experience involving a motor vehicle accident and it was provided with an appropriate degree of detail. Conversely, Mr. Hayatibahar’s assertion of being the driver, which Cst. Barak overheard as it was being made to a firefighter, was simply a bald assertion without any detail. After considering both versions, he determined that Mr. Riazi’s version was more credible and as such, concluded that Mr. Hayatibahar was probably the driver.

[112] I do not accept Cst. Barak’s evidence on this issue. While he may have come to believe that he formed this belief in hindsight, I do not believe he formed this belief at the time of the arrest. I reach this conclusion for the following reasons:

a. Cst. Barak had no notes relating to his belief that Mr. Hayatibahar was more likely the driver. He could not explain why he failed to note his belief or note the basis for his belief.

b. Cst. Barak claims that once he formed this belief, he told Det. Cst. Edwards that he believed Mr. Hayatibahar was more likely the driver. Det. Cst. Edwards had no note and no recollection of receiving this information. Given that Det. Cst. Edwards was one of the most senior officers on scene and given his role in directing the arrests, I find that if this conversation had happened, it likely would have been noted, if not remembered, by Det. Cst. Edwards.

c. Cst. Barak’s note in relation to the arrest states words to the effect “Edwards advises to arrest both since unknown which was the driver.” This note implicitly undermines the assertion that Cst. Barak had by this time come to a different belief.

d. The timing of the interactions appears to undermine Cst. Barak’s purported belief. Cst. Barak spoke with Mr. Riazi initially but did not speak with Mr. Hayatibahar. He merely observed him briefly while he was speaking with firefighters and he heard him baldly deny being the driver. He based his belief that Mr. Hayatibahar was the driver on this portion of the interaction. Assuming that his recollection on this is correct, it would seem odd that according to Cst. McWatters, whose evidence I accept on this point, once he and Cst. Barak received instructions from Det. Cst. Edwards to arrest, they returned to Mr. Hayatibahar and Mr. Riazi and again asked who the driver was. It seems unlikely that this would have occurred in this sequence if, in fact, Cst. Barak had already formed the belief that Mr. Hayatibahar was the driver.

e. Once in the ambulance with Mr. Hayatibahar, Cst. Barak observed the mark across his left shoulder and across his chest which to him suggested that he was wearing the driver’s side seat belt. His note about this observation states “Begin to believe he may have been the driver.” Cst. Barak attempted to explain this note by stating that he was going from “like 51/49 to I am more sure…” I reject this explanation and find that this note accurately reflected the fact that once he saw the marks on Mr. Hayatibahar’s body he began to believe that he was the driver. In other words, prior to seeing the marks, he did not believe he knew who the driver was as between Mr. Hayatibahar and Mr. Riazi.

[113] Accordingly, I must assess whether the operative direction to arrest was based on reasonable and probable grounds, as that phrase is interpreted in the case law. As a starting point to addressing this issue, I note the following:

a. 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.

b. 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.

c. 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, see R. v. DeBot, 1989 13 (SCC), [1989] 2 S.C.R. 1140 at p. 1166-1167.

d. 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.

e. 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.

f. To the extent that Cst. Barak and Cst. McWatters made their own observations, those observations were not conveyed back to Sgt. Busby and did not form part of his reasonable grounds. That said, Sgt. Busby was briefed by other officers including Cst. Di Lorenzi and he also received information from civilian witnesses. This initial information support inferences of alcohol consumption, impairment and dangerous driving.

[114] I turn next to the legal analysis of the lawfulness of Mr. Hayatibahar’s arrest. In R. v. Amare, 2014 ONSC 4119, Hill J. provided a detailed canvass of the legal principles governing the lawfulness of an arrest. He noted, inter alia, the following:

a. an arbitrary arrest includes an unlawful arrest: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 55, 57;

b. an arrest will be unlawful, and arbitrary, if the arresting officer does not have reasonable and probable grounds to believe that the subject has committed, is committing, or is about to commit a criminal offence: Criminal Code, s. 495(1);

c. although it has been observed that “the onus is on the Crown to show that the objective facts” rise to the level supporting a lawful detention (R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 45), it has generally been recognized that the onus is on the accused to demonstrate that his detention was unlawful: R. v. Nartey, 2013 ONCA 215, at para. 14;

d. not only must the police officer have reasonable grounds in the subjective sense of a personal, honestly-held belief, but also the asserted grounds must be justified upon an objective measure of a reasonable person standing in the shoes of the officer: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 62-3, 83; R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-1;

e. in other words, the ‘reasonable grounds to believe’ standard “consists of compelling and credible information that provides an objective basis”, objectively discernible facts, for drawing inferences as to the existence of factual circumstances: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 117;

f. the fact “that an experienced constable has an honest subjective belief, while not conclusive, is itself some evidence that the belief is objectively reasonable”: R. v. Biccum, 2012 ABCA 80, at para. 21; see also R. v. Luong, 2010 BCCA 158, at para. 19; Chehil, at para. 47;

g. reasonable and probable grounds does not involve a mathematical assessment of facts and circumstances but rather a common-sense, non-technical approach – it is necessarily a qualitative standard upon which reasonable people can differ in some cases: R. v. Campbell (2010), 2010 ONCA 588, 261 C.C.C. (3d) 1 (Ont. C.A.), at paras. 52-4 (affd 2011 SCC 32, [2011] 2 S.C.R. 549); Chehil, at paras. 29, 62, 69; MacKenzie, at para. 71; R. v. Ward, 2012 ONCA 660, at para. 116;

h. that said, reasonable grounds is about “probabilities” (Chehil, at paras. 27-8; MacKenzie, at para. 74), not confidence at the level of no reasonable doubt (R. v. Debot (1986), 1989 13 (SCC), 30 C.C.C. (3d) 207 (Ont. C.A.), at p. 219 (affd (1989), 52 C.C.C. (3d) 193 (S.C.C.), at pp. 198, 213), nor at the low threshold of mere suspicion or possibility (R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 37; R. v. Baron (1993), 1993 154 (SCC), 78 C.C.C. (3d) 510 (S.C.C.), at paras. 43, 47;

i. the standard of reasonable probability applied to the totality of the circumstances, considering the relevant facts cumulatively, where credibly-based probability replaces suspicion and possibility, does not demand that police officers “always be correct, but that they always be reasonable” United States v. Clutter, 674 F.3d 980, 983 (8th Cir. 2012);

j. reasonable probability does not require that the level of confidence of the officer rise to the equivalent of, or beyond, a balance of probabilities: Mugesera, at para. 14; R. v. Spence, 2011 BCCA 280, at para. 31; R. v. Loewen (2010), 2010 ABCA 255, 260 C.C.C. (3d) 296 (Alta. C.A.), at para. 18 (affd 2011 SCC 21, [2011] 2 S.C.R. 167); R. v. Jacobson (2006), 2006 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22; Florida v. Harris, 133 S.Ct. 1050, 1052 (2013);

k. in assessing whether she or he has reasonable grounds, a police officer must take into account all available information disregarding only such information as she or he has good reason to believe is unreliable: R. v. Golub (1997), 1997 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.), at p. 203 – the officer is not required “to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations”: Chehil, at paras. 34, 67;

l. an officer’s training and experience may provide “an objective experiential…basis” for grounds of belief: Chehil, at para. 47; MacKenzie, at paras. 62-4, 73;

m. a court reviewing the existence of reasonable grounds concerns itself “only with the circumstances known to the officers”: R. v. Wong, 2011 BCCA 13, at para. 19 (leave to appeal denied [2011] S.C.C.A. No. 90) (emphasis in original); and

n. provided that the officer who directs that an arrest take place has reasonable and probable grounds, officers acting under his or her direction are deemed to be acting on those grounds: Debot (S.C.C.), at pp. 206, 214.

[115] To this list, I would add the following. The application of the “reasonable and probable grounds” standard is context specific. The courts have recognized that in the arrest context, officers are often making decisions in a volatile, quickly changing situation, and often without complete information. In this context, the standard is applied less stringently than in the ex parte judicial authorization context where more can be expected from police officers, see R. v. Golub (1997), 1997 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.) and R. v. Bush, 2010 ONCA 554 at para. 43-47. See also R. v. Bernshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254 at p. 304.

[116] I would also note that in cases where a lawful arrest issue arises in the context of a warrantless search, the onus will be on the Crown to establish the lawfulness of the arrest, see R. v. Gerson-Foster, 2019 ONCA 405 at para. 75.

The Debate Over the Meaning of “Probable”

[117] The core issue advanced in this case requires an unpacking of the “reasonable and probable grounds” standard. The phrase “reasonable and probable grounds” has a long and rich history in Canadian criminal law. Indeed, it is the most common standard used for authorizing state intrusions into liberty and privacy and is used for decisions relating to arrest, search and seizure and most forms of prior judicial authorization.[^3] As Professor Steven Penney explains in “Standards of Suspicion”, 2017 65 C.L.Q. 23,

Perhaps the most important way that the law regulates police and other law enforcement agents is by articulating standards of suspicion, i.e., the nature and degree of justification needed to intrude into legally-protected realms of liberty and privacy. These standards are crafted by both legislatures (by statute) and courts (through statutory and constitutional interpretation and developing common law police powers). And they are applied both ex ante by police and warrant-issuing magistrates and ex post by reviewing courts. Disputes over the meaning and application of these standards fill the law reports and consume countless court hours, mostly stemming from defence applications to exclude evidence under s. 24(2) of the Charter.

[118] In the arrest context, s. 495(1)(a) of the Criminal Code authorizes warrantless arrests in certain circumstances. In earlier iterations of the Code in force between 1954 and 1985, the arrest section included the phrase “reasonable and probable grounds.” In its current iteration, the section provides that an officer may arrest without a warrant a person who she believes “on reasonable grounds” has committed a criminal offence.

[119] Notwithstanding the use of different language, the Courts have long held that the standard of “reasonable grounds” and “reasonable and probable grounds” are the same, see Baron v. Canada, 1993 154 (SCC), [1993] 1 S.C.R. 416, R. v. Loewen, 2011 SCC 21, R. v. Debot, supra, and R. v. MacKenzie, 2013 SCC 50. In this regard, In Baron, Sopinka J. explained that the omission of the word “probable” in relation to the “reasonable grounds” standard was of no moment as the concept of “reasonableness” comprehends a requirement of probability.

[120] While “reasonable grounds” means the same thing as “reasonable and probable grounds,” there appears to be an active debate over the meaning and role of “probability” in the application of the standard.

[121] Some argue that the term “probable” in the “reasonable and probable grounds” standard connotes “probability” in the sense of something being “more likely than not.” Expressed mathematically, this would equate to a certainty of belief greater than 50%, which is the civil standard of proof, see F.H. v. McDougall, 2008 SCC 53 at paras. 44-45. The proponents of this argument suggest that repeated references to the term “probable” in the seminal cases obviously stand for the common-sense proposition that reasonable grounds to believe must mean a reasonably grounded belief that a fact or conclusion is more likely than not to be true.

[122] Proponents of this view point to Hunter et al. v. Southam Inc., [1984] S.C.R. 145 at p. 167, where the Supreme Court held that the standard upon which a search was justified was where “credibly-based probability replaces suspicion” and argue that any attempt to dilute this standard below a “likelihood” is an error in law, see Steve Coughlan, “Keeping ‘Reasonable Grounds’ Meaningful”, 2011 90 C.R.-Art. 73, Steve Coughlan, “R. v. Chapman: Can You Believe Without Believing?”, 2020 60 C.R.-Art. 318, Alex Gorlewski, “R. v. Loewen and Reasonable Grounds for Arrest: The Supreme Court’s Overlooked Advice” (2012) 94 C.R. (6th) 319, Don Stuart, “R. v. Ha: Case Comment” (2018) 48 C.R. (7th) 299, and Steve Coughlan and Glen Luther, Detention and Arrest, 2nd Ed. (Irwin Law, 2017), p. 96-99.

[123] These proponents also point to cases that refer to the standard of “credibly-based probability” and argue that these cases not only correctly state the applicable standard but also correctly peg the standard as the civil standard of proof, see Coughlan, “R. v. Chapman: Can You Believe Without Believing?”, supra at p. 319, citing R. v. Canary, 2018 ONCA 304 at para. 23 and R. v. Chehil, 2013 SCC 49 at para. 27 as examples.

[124] On the other side of the debate are those who suggest that the term “probable” in the context of “reasonable and probable grounds” is not intended to import a civil standard of balance of probability, but rather is simply an expression used to import a level of belief higher than reasonable suspicion which is itself higher than a mere hunch.

[125] As Professor Penney observes, in Standards of Suspicion, supra, at p.23:

Though these mantras have been repeated in hundreds of cases, it is far from clear that courts have meant to invoke a >50% probability. Though “probable” often means “more likely than not” in everyday usage, this is not its only meaning. The Supreme Court of Canada has never said that reasonable and probable grounds is equivalent to a balance of probabilities. Indeed, it has recently stated (in the immigration context) that the former is a lesser standard than the latter. And some appellate judges have suggested that reasonable and probable grounds is either not amenable to numerical definition or, if quantifiable, less than 50%. Lastly, the Supreme Court has repeatedly held that reasonable and probable grounds is equivalent to the American probable cause standard. Though courts there have resiled from assigning a precise value to that standard, they have said that it is not equivalent to (and likely lesser than) a balance of probabilities.

[126] Despite the debate and consistent academic commentary, I note that there is no Supreme Court of Canada decision that explicitly draws a parallel between the standard of reasonable grounds/reasonable and probable grounds, and the civil balance of probabilities standard. To the contrary, the one Supreme Court of Canada case that does address the issue explicitly states that “reasonable grounds to believe” is not the same as a “balance of probabilities,” see Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para. 114.[^4]

[127] Other Supreme Court decisions also add implicit support to the position explicitly stated in Mugesera. In R. v. Debot, supra, at p.1166, Wilson J. explained as follows:

The question as to what standard of proof must be met in order to establish reasonable grounds for a search may be disposed of quickly. I agree with Martin J.A. that the appropriate standard is one of "reasonable probability" rather than "proof beyond a reasonable doubt" or "prima facie case". The phrase "reasonable belief" also approximates the requisite standard.

[128] Of note, in the Court of Appeal decision in Debot, Martin J.A. also held that “reasonable grounds to be believe” in the Canadian context and “probable cause” in the American context were “identical”, see R. v. Debot (1986), 1986 113 (ON CA), 30 C.C.C. (3d) 207 (Ont. C.A.). In Hunter v. Southam, supra, at p. 167, the Supreme Court also held that the “reasonable grounds” standard was the same as the “probable cause” standard used in American jurisprudence.

[129] On this issue, 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, 2013 S.Ct. 1535, 460 U.S. 730 (Texas S.C.) at p. 1543 per Rehnquist J. (as he then was.) See also Illinois v. Gates, 103 S.Ct. 436, 462 U.S. 213 (Ill. S.C, 1983) per Rehnquist J. (as he then was), Florida v. Harris, 133 S. Ct. 1050, 1055 (2013), United States v. Garcia, 179 F. 3d 265, 269 (5th Cir. 1999) and Maryland v. Pringle, 124 S.Ct. 795 (2003) at p.799.

[130] There are also a large number of provincial appellate court decisions, arising in the criminal law context, that explicitly draw a distinction between the “reasonable grounds/reasonable and probable grounds” and “balance of probabilities” standards.

[131] In Ontario, the Court of Appeal has addressed the issue in R. v. Jacobson, (2006), 2006 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.) at para. 22, where Rosenberg J.A. held “The standard of reasonable grounds does not require proof beyond a reasonable doubt or even proof on a balance of probabilities.”

[132] Similarly, in R. v. Herta, 2018 ONCA 927 at para. 20, Fairburn J.A. (as she then was) stated, “Credibly-based probability exceeds suspicion, but falls short of a balance of probabilities…”

[133] Lastly, in R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81 Watt J.A. stated, “The statutory standard – “reasonable grounds to believe” – does not require proof on the balance of probabilities, much less proof beyond a reasonable doubt.”

[134] In R. v. Chapman, 2020 SKCA 11 at para. 65, the Saskatchewan Court of Appeal held “The jurisprudence is consistent that “probability”, in this sense, does not mean “balance of probabilities”, or even “more likely than not.”

[135] Similarly, in R. v. Glendinning, 2019 BCCA 365, the British Columbia Court of Appeal said:

[7] Although the word “probable” or “probably” appears in some of the foregoing authorities, I do not read them as contravening the notion that the s. 495(1) standard is lower than the “balance of probabilities” standard in civil law. Counsel for the appellant referred us to what he said was a dictionary definition of “probable”, which encompasses many degrees of probability or even possibility:

Likely, most likely, odds-on, expected, to be expected, anticipated, predictable, foreseeable, ten to one, presumed, potential, credible, quite possible, possible, feasible. [Emphasis added.]

Consistent with the latter few synonyms, one often hears expressions such as “There is a 30% probability of rain.” The 1987 edition of the Compact Edition of the Concise Oxford Dictionary provides definitions that include “capable of being proved, demonstrable”; “having an appearance of truth,” and “that may in view of present evidence be reasonably expected.”

[136] See also R. v. Shinkewski, 2012 SKCA 63 at para. 13, R. v. Ha, 2018 ABCA 233 per Slatter J.A. concurring at para. 55-70, R. v. Bui, 2018 ABCA 62 at para. 12, R. v. Jir, 2010 BCCA 497 at para. 27, R. v. Henareh, 2017 BCCA 7 at para. 39, R. v. Pilbeam, 2018 MBCA 128 at para. 11 and R. v. Jacob (J.A.), 2013 MBCA 29 at para. 39.

[137] Lastly, I note that several learned legal texts also adopt this position, see for example, Scott C. Hutchison, Hutchison’s Search Warrant Manual, 2020 Edition (Toronto: Carsell, 2020), at p. 95-98, Nader Hasan, Mabel Lai, David Schermbrucker & Randy Schwartz, Search and Seizure, Criminal Law Series (Toronto: Edmond Publishing, 2021), at p. 9-10, and Steve Penney, Vincenzo Rondinelli & James Stribopoulos, Criminal Procedure in Canada, 2nd Edition (Toronto: LexisNexis, 2017), at p. 195.

[138] Based on these authorities, some of which are binding on me, I am not prepared to find that the standard of “reasonable grounds/reasonable and probable grounds” equates to the civil standard of proof or otherwise requires a certainty of belief greater than 50%. The civil standard of proof speaks of “balancing” probabilities. It is not the mere fact that a version of events is probable that wins the day. The standard is only satisfied when one version of events is more probable than the other version or all other versions put together. This point is well explained by Chief Justice Chartier in The Director of Criminal Property and Forfeiture v. Ramdath et al, 2021 MBCA 23 at paras. 19-20:

[19] The leading conceptualization of the “balance of probabilities” standard was set out by Rothstein J, writing for a unanimous Court in FH v McDougall, 2008 SCC 53. In articulating the standard, he stated that, “[i]n all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred” (at para 49). Often overlooked in a discussion of the “balance of probabilities” standard is the word “balance”, as in a “scale”. The analogy to a scale is meant to highlight that central to applying the standard is weighing competing probabilities to arrive at an outcome. Further, while there is no objective standard to measure sufficiency, the evidence must always be “sufficiently clear, convincing and cogent to satisfy the balance of probabilities test” (at para 46; see also para 49).

[20] There are several functional equivalents that have been used to describe the “balance of probabilities” standard. The standard can also be described using the question of whether something is “more likely than not” (ibid). Courts have also used “more probable than not” (at para 37, citing B (Children), Re, [2008] UKHL 35 at para 15; and R v Layton, 2009 SCC 36 at para 28, citing R Dean Wilson, Nicole J Garson & Christopher E Hinkson, Civil Jury Instructions, 2nd ed (Vancouver: Continuing Legal Education Society of British Columbia, 2009) (loose-leaf) at section 4.7.4), or “preponderance of probability” and “preponderance of evidence” (Smith v Smith and Smedman, 1952 3 (SCC), [1952] 2 SCR 312 at 319, citing Cooper v Slade, [1857-58] 6 HL Cas 746 at 772; and Clark v The King (1921), 1921 603 (SCC), 61 SCR 608 at 616).

[139] Chief Justice Chartier goes on, at para. 28, to provide the follow succinct description of the difference between the two standards, which I adopt:

The central difference between “balance of probabilities” and “reasonable grounds to believe” is the absence of weighing probabilities in applying the “reasonable grounds to believe” standard. The latter can exist even in the face of a competing probability.

[140] To the extent that the case law speaks of credibly-based “probability”, I find that this is an expression aimed at demarcating the line between hunch/suspicion and the minimum basis for arrest. In other words, it refers to the point where a credibly based belief matures from a possibility into a probability and an arrest becomes constitutionally justified.

[141] 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.

[142] 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?

[143] 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, see Golub, supra, at paras. 18-21. 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 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.

[144] 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, see Penney, “Standards of Suspicion”, supra, at p.12-13. However, attempting to add mathematical rigour may cause more problems than it solves.[^5]

[145] In Can v. Calgary (Police Service), 2014 ABCA 322, Wakeling J.A. in his detailed and thought-provoking concurring reasons, describes various “degrees of certainty” and notes that the “moderate” range of certainty can be mathematically expressed as being between 36% and 50%. While he does not ultimately decide the issue, he notes that this “moderate” degree of certainty appears to be the law for warrantless arrests in Canada. He also notes it is the law in the U.K., United States and New Zealand, see Can v. Calgary (Police Services), supra, at paras. 128-139.

[146] The obvious difficulty with this type of mathematical dissection is that it is very difficult, if not impossible, in most cases to determine when a set of facts are 36% probable as opposed to 35% probable – both subjectively and objectively. Moreover, it is also difficult to account for the difference in context using mathematical percentages. For example, would the numerical percentages for sufficient grounds be expressed differently for a dynamic arrest with live officer safety issues versus a warranted search of a home? Ultimately, while the lack of a precise numerical value is fairly open to criticism, it remains appropriate in view of the nature of the task at hand. In any event, it is not an issue I need to determine in this case.

[147] Turning to the facts in this case, the grounds for arrest present a relatively unique set of circumstances. Based on all the evidence I accept, the probability that Mr. Hayatibahar was the driver of the vehicle that caused the accident was exactly 50%. It was either him or it was Mr. Riazi. Further, 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. In the circumstances of this case, it would seem incongruous to find that the police did not have reasonable grounds to arrest both individuals. Indeed, to so find would be akin to forcing a stalemate.

[148] Based on my review of the authorities as set out above, I am satisfied that Sgt. Busby had a sufficient basis for arresting Mr. Hayatibahar in the circumstances. While I need not decide the issue, I note that if there had been three occupants in the vehicle, all equally situated in terms of their potential of being the driver, the outcome may have been different. If there had been four or more occupants in the vehicle, the outcome would definitely have been different.[^6]

[149] I turn next to the issue of Cst. Barak’s presence in the ambulance. The defence argues that in view of the unlawful arrest, Cst. Barak had no lawful basis for accompanying Mr. Hayatibahar in the ambulance during transport to the hospital. The defence suggests that by doing so, Cst. Barak invaded Mr. Hayatibahar’s privacy during medical treatment. The defence argues that any observations of and statements by Mr. Hayatibahar during this time period are therefore unlawful intrusions into his privacy rights and amount to violations of his s. 7, 8 and 9 Charter rights.

[150] The short answer to this issue is that the act of accompanying a person during an ambulance ride while making observations of their condition does not result in a violation of s. 8 of the Charter, see R. v. LaChappelle, 2007 ONCA 3613 at 32-39. See also R. v. Colbourne (1998), 19 M.V.R. (4th) 1 (Ont. Ct. J. (Gen. Div.)) aff’d (2001), 2001 4711 (ON CA), 157 C.C.C. (3d) 273 (Ont. C.A.) and R. v. Culotta, 2018 ONCA 665 at paras. 19-20, per Nordheimer J.A., aff’d 2018 SCC 57.

[151] In any event, I have found that Mr. Hayatibahar was lawfully under arrest and in police custody when Cst. Barak made the decision to enter the ambulance and accompany him to the hospital. In view of the lawful arrest, there is no basis to suggest that Cst. Barak violated Mr. Hayatibahar’s privacy rights. He was entitled to travel in the ambulance with Mr. Hayatibahar who was now in police custody.

[152] Even if I am wrong on the lawfulness of the arrest, I note that the police had a manifest basis for an investigative detention. While an investigative detention must be brief, its duration is dependent on the circumstances of a particular case, see R. v. Barclay, 2018 ONCA 114 at paras. 26-32. In this case, Mr. Hayatibahar’s medical treatment was a paramount concern. He had been involved in a horrific accident. Despite the fact that he appeared relatively unscathed, there was ample concern that he might be injured, perhaps significantly. It would have been inappropriate for the officer to cause a delay in the medical treatment in order to conduct an investigative detention. As such, I find that even if the officer was conducting an investigative detention, he would have been entitled to accompany Mr. Hayatibahar in the ambulance for that purpose. Indeed, in these circumstances, requiring the officer to complete the investigative detention prior to transporting Mr. Hayatibahar to hospital would have run the risk of delaying potentially life-saving medical treatment. Moreover, once Cst. Barak got in the ambulance with Mr. Hayatibahar, there was no feasible way for either of them to leave the vehicle before it got to the hospital. I think the permissible duration of an investigative detention in this context would have to be assessed with this practical reality in mind.

[153] I am also satisfied that had this started as an investigative detention, it would have turned into an arrest as soon as Cst. Barak observed the bruising on Mr. Hayatibahar’s left shoulder, which in his view plainly revealed that Mr. Hayatibahar was the driver. He would have been arrested at that point even if he was previously only investigatively detained. Given the timing, the arrest would have been minutes into the ambulance ride.

[154] I turn next to addressing the issue of the search incident to arrest. Having determined that the police initially lawfully arrested Mr. Hayatibahar, there is no issue that they were entitled to conduct a search incident to that arrest. Even if the initial arrest was unlawful, by the time of the search at the hospital, the police had made observations of the injuries suffered by both Mr. Hayatibahar and Mr. Riazi. The injuries, particularly when viewed in combination, provided a further basis upon which the officer could reasonably conclude that Mr. Hayatibahar was the driver and Mr. Riazi was the passenger. As such, even assuming that the initial interactions with Mr. Hayatibahar were an investigative detention, that detention would have progressed to an arrest well before the time of the search.

[155] While in the ordinary course, a search incident to arrest is usually conducted immediately upon arrest, there is no legal requirement that the search be conducted with immediacy. The test is one of reasonableness, see R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51 at para. 24. Here the search was conducted approximately two hours after arrest. Shortly before his arrest, Mr. Hayatibahar was involved in a horrific accident. He was injured and there was a manifest risk that his injuries were significantly more serious than they appeared. Following his arrest, Mr. Hayatibahar was strapped to a back board with a neck brace, transported to hospital by ambulance, triaged and treated. It is unsurprising in these circumstances that the arresting officer did not immediately conduct a search incident to arrest.

[156] I accept Cst. Barak’s evidence that once Mr. Hayatibahar was sedated, he noted a bulge in Mr. Hayatibahar’s pocket which prompted him to realize that he had not yet conducted a search incident to arrest. I find that he conducted the search in order to find evidence relating to the offences alleged and in order to check for potential weapons. As such, I find that the ensuing search of Mr. Hayatibahar’s pockets was incidental to the arrest. I also find that the search was conducted reasonably in the circumstances as it only involved checking Mr. Hayatibahar’s pockets.

(iii) Implementation of Section 10(b) of the Charter

[157] The defence argues the police violated Mr. Hayatibahar’s s. 10(b) rights because they did not promptly act on Mr. Hayatibahar’s expressed desire to speak with a “free lawyer.” The defence posited that the steps taken by police to arrange for a Farsi speaking police officer to attend at the hospital for the purposes of providing a translation of the right to counsel, effectively resulted in a scenario where Mr. Hayatibahar never actually obtained legal advice. The defence position is that notwithstanding any uncertainty as to whether Mr. Hayatibahar completely understood his rights, as soon as the police learned that he wished to speak with a “free lawyer” they should have made arrangements to contact duty counsel. Their failure to so resulted in a s. 10(b) violation.

[158] The Crown’s position is that the police cannot be faulted for wanting to ensure that Mr. Hayatibahar properly understood his rights to counsel. The decision to call for a Farsi speaking officer instead of simply contacting duty counsel was a reasonable step to take in the circumstances. During the administration of the right to counsel in Farsi, Mr. Hayatibahar’s condition deteriorated, and he was sedated by hospital staff. The sedation resulted in unconsciousness. Once he woke up, the rights to counsel were completed in Farsi. At that time, Mr. Hayatibahar declined to speak to counsel. Viewed in context, the Crown submits that the police took reasonable steps to comply with s. 10(b) of the Charter.

[159] In R. v. Vanstaceghem, 1987 6795 (ON CA), the Court of Appeal held that 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. The steps that are required will vary depending on the circumstances of the case, but the police are expected to “err on the side of caution” to make sure that the person fully understands his or her rights and is able to exercise those rights in meaningful way, see R. v. Ukumu, 2019 ONSC 3731 at para. 49, R. v. Bassi, 2015 ONCJ 340 at para. 7 and R. v. Nguyen, 2020 ONSC 7783 at paras. 24-28.

[160] There is no issue that at the time of the accident, Mr. Hayatibahar had very limited English speaking and comprehension abilities. Cst. Barak correctly surmised that Mr. Hayatibahar was having trouble understanding the right to counsel and needed further assistance. Indeed, Mr. Hayatibahar confirms that he did not understand the right to counsel as initially presented. As such, there is no issue that the threshold of “special circumstances” was objectively satisfied in this case.

[161] The issue is whether the “special circumstances” were sufficiently addressed by Cst. Barak’s attempt to explain the right to counsel in “simple language.” On this issue, Mr. Hayatibahar suggests that he chose to speak with a “free lawyer” and expected that he would be put in touch with a “free lawyer” at some point. However, he also admits that he only understood “a little bit of it” when his right to counsel was explained in “simple language.” He also admitted that he would have preferred to have the right to counsel explained in Farsi so that he would have understood all of it.

[162] In terms of what he actually understood, Mr. Hayatibahar explained that he understood that he could speak with a free lawyer who could help him. In cross-examination, Mr. Hayatibahar also explained that he did not understand who the “free lawyer” worked for or whether the lawyer would see him in person or by telephone. He could not recall the specifics of the conversation with Cst. Barak and did not recall Cst. Barak saying he could “call” the lawyer. Based on Mr. Hayatibahar’s evidence, I am not prepared to find that he communicated a clear understanding of the right to counsel to Cst. Barak.

[163] Moreover, I accept Cst. Barak’s evidence that during his exchange with Mr. Hayatibahar he remained unsure of Mr. Hayatibahar’s level of comprehension and was concerned that Mr. Hayatibahar was simply saying “yes, yes, yes” while not actually understanding what was being said. As such, Mr. Hayatibahar’s level of comprehension objectively remained an issue.

[164] In these circumstances, I am not prepared to find that Cst. Barak should have simply proceeded to contact duty counsel, in the absence of further efforts to have the right to counsel explained. Indeed, had he done so he could have been accused of “steering” Mr. Hayatibahar to duty counsel, see R. v. Ruscica, 2019 ONSC 2442 and R. v. Dickson, 2021 ONSC 6374. In this regard, it must be remembered that the resort to duty counsel is not the only option. The right to counsel includes a number of options. A detainee may have specific counsel of their own that they wish to speak to. They may want to find counsel of their own, either through a phone book, directory or a personal contact such as an employer, family member or union representative. They may want duty counsel. They also can waive the right to counsel.

[165] Ultimately, I find that Cst. Barak adopted a cautious approach premised on wanting Mr. Hayatibahar to understand his right to counsel and exercise it appropriately. I also note that in addition to the right to counsel, Cst. Barak also wanted to have the caution and breath demand translated for Mr. Hayatibahar. This is not a case where the officer proceeded with taking a statement or demanding a breath sample.

[166] I further find that once Cst. Barak formed the belief that Mr. Hayatibahar did not understand the right to counsel, he immediately called for a Farsi speaking police officer to attend at the hospital for the express purpose of providing the rights counsel, a caution and breath demand in Farsi. This was a reasonable and appropriate step in the circumstances.

[167] I am not troubled by Cst. Barak’s failure to tell other officers that Mr. Hayatibahar had expressed a desire to speak with a “free lawyer.” This is not an instance where Cst. Barak concluded that Mr. Hayatibahar’s response gave rise to an obligation to facilitate contact with duty counsel. To the contrary, Cst. Barak was unsure of Mr. Hayatibahar’s comprehension level and took steps to have his efforts repeated by a Farsi speaking officer. In the circumstances, there would have been no need to tell other officers of Mr. Hayatibahar’s purported request to speak with a “free lawyer.”

[168] I accept that Cst. Ahmadi was dispatched to the hospital for the purpose of providing the right to counsel, caution and breath demand to Mr. Hayatibahar in Farsi. Once he arrived at the hospital, he attempted to do so, but was unable to complete the task because of Mr. Hayatibahar’s loss of composure. Mr. Hayatibahar was not receptive to the right to counsel. He was very agitated and was yelling, screaming and flailing. Hospital staff administered a sedative and Mr. Hayatibahar passed out before the right to counsel, caution and breath demand were completed.

[169] I also find that the police had anticipated that a phone might be required for Mr. Hayatibahar to use in order to contact counsel. I accept that an officer was dispatched from the police station to the hospital with two police issued cell phones, one for Mr. Riazi and one for Mr. Hayatibahar. Mr. Riazi used the phone brought for him to contact counsel. Unfortunately, Mr. Hayatibahar was sedated and unconscious by the time the cell phone brought for him arrived.

[170] The next morning, when Cst. Payanda attended and translated the right to counsel in Farsi, Mr. Hayatibahar indicated that he did not need to speak with counsel and would wait until he got to court to do so. I note that Mr. Hayatibahar does not recall telling Cst. Payanda that he did not wish to speak with counsel. I accept Cst. Payanda’s evidence on this issue and find that this was a waiver of the right to counsel.

[171] In terms of Mr. Hayatibahar’s evidence about what happened at the hospital, I note that Mr. Hayatibahar’s concern was focused on speaking with his brother. He agreed that this had nothing to do with obtaining access to counsel. While I accept that Mr. Hayatibahar may have believed that Cst. Barak was going to place him in contact with a “free lawyer”, this is not something he pursued once in hospital. Indeed, by the time Mr. Hayatibahar was speaking with Cst. Ahmadi, he had “lost his composure” because the police would not let him speak with his brother. The loss of composure led to his sedation and his ultimate inability to completely receive the right to counsel, caution and breath demand.

[172] In these circumstances, I am not satisfied that there is a further breach of s. 10(b) of the Charter, based on Cst. Barak’s decision to call for a Farsi speaking officer to administer the right to counsel and the events that followed thereafter.

[173] That said, I do address an issue in relation to Det. Cst. Rosilius’ handling of the contact information for counsel, Mr. Top, provided by Ms. Zandsalimi. I accept Ms. Zandsalimi’s evidence that she wanted to pass on contact information for counsel to Mr. Hayatibahar. I reject Det. Cst. Rosilius’ evidence that she believed that Mr. Top was counsel “for the family” and not prospective counsel for Mr. Hayatibahar. In the circumstances, it was plainly obvious that Ms. Zandsalimi was trying to pass on counsel’s contact information for Mr. Hayatibahar’s use. Even assuming that it was not plainly obvious, it is hard to understand why Det. Cst. Rosilius would not have even attempted to clarify the issue by asking whether Ms. Zandsalimi wanted the contact information passed on to Mr. Hayatibahar.

[174] In my view, the failure to provide this information to Mr. Hayatibahar resulted in a further s. 10(b) violation. The receipt of this information occurred at a point in time when Mr. Hayatibahar was sedated and unconscious. Passing on the information at that time would have been pointless. However, in the morning when Mr. Hayatibahar awoke, he should have been advised that his family members had attended at the hospital with the name and number of a lawyer for him to contact. This is information that should have been conveyed by Cst. Payanda when he advised Mr. Hayatibahar of his right to counsel in Farsi. It is a factor that objectively could have affected his waiver of the right to counsel at that point. While I will consider this further breach in my s. 24(2) analysis, I note that after waiving his right to counsel, Mr. Hayatibahar was simply taken directly to court for a bail hearing. This is not an instance where further investigative steps were taken, nor is it an instance where I have evidence that the breach impacted his attendance in bail court.

(iv) The Warrant and Production Order

[175] Mr. Hayatibahar raises three issues in relation to the search warrants and production order. First, he argues that once unlawfully obtained information is excised from the ITO, there remains an insufficient basis upon which the warrants and production order could issue. Second, he argues that the ITO failed to disclose a basis upon which the issuing justice could have concluded that the items relevant to the investigation would be obtained through the production order. Lastly, he argues that the production order was overbroad in that it granted access to medical records that went beyond the results of the testing of the applicant’s blood.

[176] The warrants and production order obtained in this case were based on a global ITO sworn by Cst. Patterson. The following judicial authorizations were issued:

a. A warrant to seize all vials of blood drawn from Mr. Hayatibahar on August 18, 2019, including but not limited to vials: 11740841, 11741074, 19B-230B0029, 11740843 and 11740842.

b. A warrant to search the 2017 Mercedes Benz GLC 300 – the SUV involved in the accident – for drugs, drug containers, alcohol and alcohol containers.

c. A warrant to search the Infotainment system of the 2017 Mercedes GLC 300.

d. A production order directing to Mackenzie Health to produce medical records pertaining to the treatment of Mr. Hayatibahar beginning on August 18, 2019 and ending at the conclusion of his treatment for this complaint.

[177] Section 487(1)(b) of the Criminal Code permits a warrant to be issued when a justice is satisfied that there are reasonable grounds to believe that the place proposed to be searched contains objects “that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence”. This standard requires “credibly based probability”, see R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (NSCA) and R. v. Debot, supra, at para. 47. The sworn ITO must disclose reasonable grounds to believe that an offence has been committed, and that evidence in relation to that offence will be found at the place to be searched, see R. v. Sadikov, supra, at para. 81. As Paciocco J. (as he then was) explains in R. v. Floyd, 2012 ONCJ 417, at para. 9:

In sum, the “reasonable and probable grounds” or “credibly-based probability” concept requires that the grounds furnished must demonstrate that there is a probability as opposed to a suspicion that the relevant facts could be true, assuming the information to be true (the “sufficiency inquiry”), and that there are reasonable grounds to believe that the information relied upon is credible enough to support a conclusion that there is a reasonable probability that the relevant fact exists (the “credibility inquiry”).

[178] The inquiry has both a subjective and an objective component. The affiant must personally believe in the existence of reasonable and probable grounds and the belief must be objectively reasonable; see R. v. Storrey, supra, at p. 250. An officer is entitled to rely on training and experience in assessing grounds, but must be careful to consider both evidence that supports the grounds and evidence that detracts from grounds; see R. v. Wu, 2015 ONCA 667 at paras. 55-57 and 64. An officer should only ignore what is believed to be irrelevant or unreliable; see R. v. Golub, supra, p. 203. An officer has an obligation to make full, fair and frank disclosure in an ITO; see R. v. Land (1990), 1990 10969 (ON SC), 55 C.C.C. (3d) 382 (Ont. H.C.) and R. v. Nguyen, 2011 ONCA 465 at para. 48. The obligation to make full, fair and frank disclosure is heightened by the ex-parte nature of search warrant proceedings; see United States of America v. Friedland, [1996] O.J. No. 4399 (Ont. Ct. (Gen.Div.)) per Sharpe J. (as he then was).

[179] The issuing justice is required to make a judicial determination as to whether sufficient grounds exist for issuance of the warrant. The judicial determination is based on the facts conveyed in the ITO. An issuing justice is permitted to draw reasonable inferences from stated facts, see R. v. Nero and Caputo, 2016 ONCA 160 at para. 71. The affiant need not underline the obvious, see R. v. Vu, 2013 SCC 60 at para. 16.

[180] On a review, there is a presumption that the authorization in question is valid. The applicant bears the onus of establishing that the ITO was insufficient to justify issuing the warrant. The role of the reviewing judge is not to substitute his or her view for that of the issuing justice. Rather, the role is to assess whether, on the basis of the material before the issuing justice as amplified and excised on review, the authorizing or issuing justice could have issued the warrant, see R. v. Sadikov, supra, at paras. 83-89, R. v. Ebanks, 2009 ONCA 851, R. v. Lao, 2013 ONCA 285 and R. v. Morelli, supra, at paras. 40-41. As Watt J.A. explains in R. v. Mahmood, 2011 ONCA 693 at para. 99:

A reviewing judge does not substitute his or her view for that of the justice who issued the warrant. Rather, the reviewing judge considers the record before the issuing justice, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant.

[181] The review is