COURT FILE NO.: CR-19-00010705
DATE: 20220621
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
FAREIDON HAYATIBAHAR
Defendant
Greg Elder, for the Crown
Boris Bytensky, for the Defendant
HEARD: November 29, 30, December 1, 2, 3, 16, 17, 2021, February 28, March 2, 3, 8, April 4, 5, 6, and 8, 2022
REASONS FOR JUDGMENT
DI LUCA J.:
I. Introduction and Overview of Issues
[1] On August 18, 2019, the defendant Fereidon Hayatibahar spent the day at a water park with some friends. He eventually met up with Farbod Riazi. They had known each other since childhood and had recently reconnected. By all accounts, the day was fun-filled and enjoyable. While at the water park, Mr. Hayatibahar and Mr. Riazi consumed a quantity of alcohol. They left the water park in a Mercedes SUV owned by Mr. Riazi’s mother. Mr. Riazi was driving when they left.
[2] From the water park, Mr. Riazi and Mr. Hayatibahar made their way to a McDonald’s restaurant on Yonge Street in Richmond Hill where they met up with some other friends. A female acquaintance who was with Mr. Hayatibahar needed a ride to a nearby location and Mr. Riazi and Mr. Hayatibahar agreed to drive her a short distance away from the McDonald’s.
[3] Mr. Riazi claims that Mr. Hayatibahar drove the Mercedes during this portion of the events. He explains that he wanted to give Mr. Hayatibahar the opportunity to test out the Mercedes and Mr. Hayatibahar was eager to do so.
[4] What happened next is tragic. As the Mercedes was traveling southbound on Yonge Street, heading back to the McDonald’s parking lot, it reached speeds of approximately 170 km/h and possibly higher. The driver lost control of the vehicle and swerved into oncoming traffic. He struck a number of vehicles and caused a horrific collision.
[5] The collision left a massive debris field. The impact was so devastating that the transmission and engine of the Mercedes were flung from the vehicle and eventually came to rest some 200 to 300 metres down the road.
[6] Malihe Ardekani was the driver of the first vehicle struck in the accident. Her car was side swiped by the Mercedes, and she suffered injuries as a result of the accident.
[7] Peyman Masoomi Fard was the driver of the second vehicle struck. The impact between the Mercedes and Mr. Fard’s vehicle can only be described as catastrophic. Mr. Fard’s vehicle was demolished in the collision. He suffered absolutely gruesome injuries and died at the scene of the crash. His wife, Nazanin Amiri, and his young son Alireza Masoomi Fard, were also in the vehicle. They too suffered significant injuries as a result of the crash but miraculously survived.
[8] Alden Culhane was the driver of the third vehicle involved in the accident. His vehicle was struck by debris from the impact between the Mercedes and the second vehicle. Thankfully, he suffered no injuries.
[9] Mr. Hayatibahar and Mr. Riazi were both arrested at the scene as the attending officers formed the belief that either one or the other was the driver. Based on further investigation, Mr. Riazi was released without charge.
[10] Mr. Hayatibahar was eventually charged with Criminal Negligence Cause Death, Criminal Negligence Cause Bodily Harm x3, Impaired Driving Cause Death, and Impaired Driving Cause Bodily Harm x3.
[11] Mr. Hayatibahar’s trial proceeded before me commencing with evidence on the Charter motions in November and December 2021, and then the trial proper commencing in late February 2022. The evidence from the Charter motions, save and except for the evidence of Mr. Hayatibahar, was applied to the trial proper. As is his absolute right, Mr. Hayatibahar did not testify at trial. After hearing closing submissions on April 8, 2022, I reserved my decision and indicated I would give written reasons. These are those reasons.
[12] The central issue on this trial is whether the Crown has proven beyond a reasonable doubt that Mr. Hayatibahar was the driver of the Mercedes on the night of the accident. The defence position is that the Crown has failed to meet its burden as, at the very least, there exists a reasonable possibility that Mr. Riazi was driving the vehicle at the time of the accident. The defence argues that Mr. Riazi is a manifestly untruthful and unreliable witness who had every motivation to place the blame for the accident on Mr. Hayatibahar.
[13] Apart from the central issue of identity, there are also issues relating to the proof of provenance of the certain blood samples taken at the hospital which are alleged to be Mr. Hayatibahar’s. There is also an issue as to whether the driving amounts to criminal negligence as opposed to the lesser and included offence of dangerous driving as set out in the Criminal Code.
[14] That said, there are several matters that are not in issue. First, there is no issue that the driver of the Mercedes was driving it in a manner that constituted dangerous driving at a minimum.
[15] Second, there is no issue that the driver of the Mercedes also caused the death of Peyman Masoomi Fard and caused bodily harm to Nazanin Amiri, Alireza Masoomi Fard and Malihe Ardekani.
[16] Third, there is no issue that if the Crown has proven that the tested blood samples actually came from Mr. Hayatibahar, the unchallenged expert toxicological evidence establishes that Mr. Hayatibahar’s ability to drive a motor vehicle was impaired at the time of the accident.
II. Fundamental Legal Principles
[17] Mr. Hayatibahar is presumed innocent of each and every charge in the indictment. The presumption of innocence is of fundamental importance in the criminal justice system, as it serves to place the burden of proof squarely on the Crown and also serves to protect against wrongful conviction.
[18] The presumption of innocence stays with the defendant throughout the trial and is only displaced if I am satisfied that the Crown has proven the charges beyond a reasonable doubt. The Crown has the sole obligation or burden of proving each charge against the defendant. The defendant does not have an obligation to prove anything.
[19] Proof beyond a reasonable doubt is a very high legal standard. A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based upon sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is logically derived from the evidence or absence of evidence.
[20] While likely or even probable guilt is not enough, proof to a level of absolute certainty is not required as that standard is impossibly high. That said, while absolute certainty is an impossibly high standard, proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.
[21] Ultimately, in order to convict the defendant of an offence, I must be sure that the defendant has committed the offence. If I am not sure, I must acquit.
III. Assessing Credibility and Reliability
[22] There is no magic formula that applies in determining whether a witness is telling the truth. Instead, the witness’ evidence is considered using an approach that is not tainted by myth, stereotype or unwarranted assumption. There are many factors that may be relevant in determining credibility. Some of the key factors include: whether the witness’ evidence is internally consistent, whether it is externally consistent with evidence from other witnesses or exhibits; whether the witness has a bias or motive to give evidence that is more favourable to one side or the other, whether inconsistencies in the evidence are about important or minor matters, what explanations are given for any inconsistencies and whether the inconsistencies suggest that the witness is lying.
[23] I am also mindful that there is a distinction between credibility and reliability. Reliability relates to the accuracy of the witness’ testimony which engages a consideration of the witness’ ability to accurately observe, recall and recount an event; see R. v. H.C., 2009 ONCA 56 at para. 41. At times, a witness may credibly recount an observation or occurrence. However, that evidence may lack reliability for a number of reasons, including the conditions under which the witness made the observation as well as the impact of information received by the witness after an event. An incredible witness’s evidence cannot be relied on. However, the converse is not automatically true as credibility is not a proxy for reliability. A credible witness may, nonetheless, give unreliable evidence; see R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.) at p. 526.
[24] Where a witness’ evidence raises credibility concerns, the court must be cautious in simply accepting the evidence. That said, there is no rule prohibiting the reasoned acceptance of the testimony from a witness with credibility concerns. Moreover, such a witness’ evidence may, at times, be corroborated by other evidence. Depending on the circumstances of the case, the corroboration may restore faith in the witness’ evidence, despite their credibility issues; see R. v. Khela, 2009 SCC 4.
[25] In this case, the Crown’s central witness is Farbod Riazi. He directly places Mr. Hayatibahar behind the wheel of the Mercedes at the time of the accident. The Crown’s case is also based on a number of eyewitnesses who were present at the scene of the accident.
[26] While Mr. Hayatibahar did not testify, he did call one eyewitness on the trial proper. He also relies on elements of the evidence of various other Crown witnesses which include exculpatory utterances he made shortly after the accident. His position is that he was not the driver of the vehicle at the time of the crash.
[27] Arriving at a verdict in this case requires that I determine issues of credibility and reliability. In other words, I have to decide whether the witnesses told the truth and if so, whether the witness’ evidence can be relied upon as accurate.
[28] However, and to be clear, this case is not simply a credibility contest between Mr. Riazi and the evidence that favours Mr. Hayatibahar. My task is not to decide which body of evidence I prefer. Rather, my task is to decide whether the Crown has proven the case against Mr. Hayatibahar on each charge beyond a reasonable doubt. In making this determination I can accept some, none or all of any witness’ evidence.
[29] The methodology for assessing the evidence in cases where credibility is a key issue was set out by the Supreme Court of Canada many years ago in R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. Modified for the circumstances of a case such as this, I must apply the following methodology:
First, if I believe and/or accept the evidence that favours Mr. Hayatibahar, I must find him not guilty.
Second, if I do not believe and/or accept the evidence that favours Mr. Hayatibahar, but am left in reasonable doubt by it, I must find him not guilty.
Third, even if I am not left in doubt by the evidence that favours Mr. Hayatibahar, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt of the guilt of the defendant.
[30] In considering the first two steps of the W.D. analysis, the evidence that favours the defendant must be considered in the context of the evidence as a whole, including Mr. Riazi’s evidence. In other words, the assessment is not simply whether the evidence that favours the defendant standing alone and without context is believed or leaves me with a reasonable doubt; see R. v. Carriére (2001), 2001 CanLII 8609 (ON CA), 159 C.C.C. (3d) 51 (Ont.C.A.) at para. 51, R. v. Hull, 2006 CanLII 26572 (ON CA), and R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont.C.A.).
[31] Where the evidence in a case is circumstantial, the Crown must prove that the accused’s guilt is the only reasonable inference available on the evidence, see R. v. Villaroman, 2016 SCC 33 and R. v. Choudhury, 2021 ONCA 560 at para. 19. The consideration of circumstantial evidence requires the drawing of reasonable inferences based on logic, experience and common sense. Speculation and conjecture are impermissible. The line between speculation and reasonable inference may be at times difficult to draw. However, the ease of drawing the inference is not the standard. The standard is whether the inference is based in logic and reason.
[32] The analysis must be based on the totality of the evidence before the court, see R. v. Aslami, 2021 ONCA 249 and R. v. Smith, 2016 ONCA 25, at para. 81. If, after all of the evidence is considered, a reasonable inference inconsistent with guilt on any essential element of the offence exists, the accused is entitled to an acquittal or a conviction on a lesser and included offence, as the case may be. An inference inconsistent with guilt must be reasonable, not simply possible.
[33] The Crown is not required to negative every possible inference conceivable. However, an inference inconsistent with guilt does not need to arise from “proven facts”, see Villaroman, supra, at para. 35 and R. v. Robert (2000), 2000 CanLII 5129 (ON CA), 143 C.C.C. (3d) 330 (Ont.C.A.) at para. 17. It can arise as a matter of logic and experience based on a consideration of all the evidence and the absence of evidence, see R. v. Ali, 2021 ONCA 362 at paras. 97 and 98.
IV. The Elements of the Offences Charged
[34] In view of the admissions and the focussed nature of the issues I need to decide, I will not spend a significant amount of time canvassing the elements of the offences charged. As mentioned, it is admitted that the Mercedes was being driven dangerously at the time of the accident. The element of causation in relation to the death and bodily harm suffered by the victims is also admitted.
[35] In terms of the offence of impaired driving, there is no issue that the offence simply requires proof beyond a reasonable doubt that the defendant’s ability to operate a motor vehicle was impaired to any degree by alcohol and/or drugs, see R. v. Stellato, 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478.
[36] The distinction in the mens rea between criminal negligence and dangerous driving is one of degree. The offence of dangerous driving requires proof a “marked departure” from the conduct of a reasonable person in the circumstances, see R. v. Roy, 2012 SCC 26 at para. 30 and R. v. Beatty, 2008 SCC 5 at para. 33. With the offence of criminal negligence, the requisite degree of departure is heightened. It must be a “marked and substantial” departure from the conduct of a reasonable person in the circumstances, see R. v. J.F., 2008 SCC 60 at para. 9, R. v. Akhtar, 2022 ONCA 279 and R. v. Durani, 2022 ONCA 17 at paras. 9-10.
V. Review of Evidence and Findings
[37] I start my analysis of the evidence in this case by briefly reviewing the nature of the accident that occurred on August 18, 2019. I will then address the core issue, which is the identity of the driver of the Mercedes at the time of the accident. In addressing the issue of the identity of the driver, I will start with a review of Mr. Riazi’s evidence and I will also consider the circumstantial evidence, including the alleged seatbelt injuries sustained by both Mr. Riazi and Mr. Hayatibahar. I will also consider the evidence of the witnesses who were at the scene and made observations of the occupants of the Mercedes. As part of this analysis, I will consider the evidence that favours Mr. Hayatibahar mindful of the W.D. analysis.
A. The Nature and Cause of the Accident
[38] 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 crews were arriving and tending to the scene and the various parties. The scene was chaotic.
[39] Cst. Barak and Cst. McWatters were among the first responders. They quickly approached a white Mazda that was in the ditch at the side of the road. 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, Mr. Fard, who had suffered gruesome injuries and had no vital signs. They managed to get Mr. Fard out of the car and took turns doing chest compressions on him while in the ditch. Cst. Barak spoke with Ms. Amiri who 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 the couple’s young child who was in the back seat. Despite life saving efforts, Mr. Fard was pronounced dead at approximately 9:45 p.m.
[40] The Mercedes was also essentially demolished and had initially come to rest on its side on the roadway. The force of the accident caused the engine, transmission and three wheels to become detached from the vehicle.
[41] Mr. Hayatibahar exited the vehicle first and was seen attempting to pull the vehicle off its side and back onto the pavement right side up. Mr. Riazi eventually exited the vehicle as well. Dr. Soroush Nomigolzar, a physician who happened to be driving on Yonge Street at the time of the accident, stopped and offered first aid assistance. He spoke with Mr. Hayatibahar and Mr. Riazi in Farsi and checked on their condition.
[42] Cst. Barak was one of the first officers to attend at the Mercedes. He observed Mr. Hayatibahar lying on his back on the grass at the side of the road. Mr. Riazi was nearby sitting upright. Firefighters were present and interacting with both of them. Cst. Barak noted signs of impairment on both Mr. Hayatibahar and Mr. Riazi, including a very strong smell of alcohol. Cst. Barak concluded that Mr. Riazi and Mr. Hayatibahar were obviously impaired.
[43] Cst. McWatters explained that after the attempts to treat the deceased, he walked over and observed that the two males from the Mercedes were being treated by emergency services personnel. He asked if they were “ok”, but had no further conversation. Based on his initial observations, Cst. McWatters noted an overwhelming smell of alcohol on both males. He too concluded they were impaired.
[44] The scene of the accident was forensically examined and an accident reconstruction report was tendered at trial. Det. Cst. Steve Kucan, the author of the report, opined that the accident was caused by the Mercedes which was driving southbound on Yonge Street at excessive speed. He opined that the vehicle veered into the centre turn lane and then into oncoming traffic where it first side swiped the Hyundai and then collided with the Mazda essentially head on. Debris from the Mercedes then struck the Toyota causing further damage.
[45] In terms of speed estimates, Det. Cst. Kucan observed that the speedometer on the Mercedes was seized at approximately 168-170 km/h. Based on his review of relevant research and input from another accident reconstructionist expert, Det. Cst. Kucan opined that the vehicle would have been traveling at a range of speed between 142 km/h and 193 km/h. He explained that the speedometer was likely stuck at the speed the vehicle was travelling at when it lost power. He further noted that the loss of power would likely have occurred when the Mercedes collided head on with the Mazda. By that time, the Mercedes had already side-swiped the Hyundai and therefore would have lost some speed.
[46] The Mercedes was equipped with an on-board “Infotainment” system which recorded certain events, including GPS coordinates and related speeds. While data for earlier portions of the day was available, the data related to the specific time of the accident was not available. As well, data from the Airbag Control Module on the Mercedes, which would ordinarily record various events including pre-crash speed, was invalid and could not be interpreted.
B. Identification of the Driver
(i) Evidence of Farbod Riazi
[47] On August 18, 2019, Mr. Riazi went to a water park in Mississauga. He drove his mother’s Mercedes and was accompanied by another friend. Members of his family were also present, but they travelled in a different vehicle. While Mr. Riazi had his own vehicle, he preferred driving the Mercedes as he liked it better.
[48] Once at the water park, he and his group were listening to music and playing on the water slides. Towards the end of the day, Mr. Hayatibahar also joined this group. Mr. Riazi knew Mr. Hayatibahar from their childhood days in Iran before they came to Canada. This was the first time he had seen Mr. Hayatibahar since coming to Canada. The meet up was not planned. Mr. Hayatibahar simply happened to run into Mr. Riazi’s father at the water park.
[49] Mr. Riazi purchased a beer from a stand at the water park. As the line up was very long, he decided to leave the park to go buy more alcohol at a nearby liquor store. He purchased a bottle of tequila and a large bottle of Smirnoff Ice cooler to use as a “chaser.” Mr. Riazi could not recall whether Mr. Hayatibahar joined him on the trip to the liquor store.
[50] Upon returning to the water park, Mr. Riazi consumed alcohol. He could not recall specifically how much as he was not measuring. He agreed that he told ambulance attendants that he had five or six drinks, but explained that it could have been more or less. He could not recall if Mr. Hayatibahar was drinking with the group upon his return.
[51] In terms of his sobriety, Mr. Riazi explained that he was not getting “hammered” as his parents were at the water park. When asked whether he could feel the alcohol “kick in” he replied “probably”, but could not recall when this would have been.
[52] At a certain point, he left the water park with Mr. Hayatibahar and a female friend, whose name he could not recall. Mr. Hayatibahar was in the passenger seat, the female friend was in the middle rear seat. The plan was to drive from the water park to the McDonald’s on Yonge Street where they were to meet some other friends.
[53] Mr. Riazi and his passengers arrived at the McDonald’s before the other friends. They went inside the McDonald’s and used the bathroom. They possibly consumed more alcohol while at McDonald’s, but Mr. Riazi could not specifically recall which alcohol and how much was consumed. At a certain point, the female friend asked to be dropped off at a nearby location.
[54] According to Mr. Riazi, Mr. Hayatibahar asked to drive the Mercedes on the drive to drop off the female friend. He agreed and said he would sit in the passenger seat. Mr. Riazi explained that he gave the key to the Mercedes to Mr. Hayatibahar. While the Mercedes could be started with the push of a button, Mr. Hayatibahar specifically asked for the key. Mr. Riazi denied that he may have simply given Mr. Hayatibahar the key while they were in the bathroom at the McDonald’s and for a purpose unrelated to driving. Mr. Riazi agreed that he told police in a statement taken two weeks after the accident that he did not remember who had the key. He also agreed that at the preliminary inquiry, he testified that he did not recall why he gave Mr. Hayatibahar the key. Mr. Riazi strongly denied the suggestion that he really did not know what happened to the key. He maintained that he gave it to Mr. Hayatibahar symbolically as a representation of responsibility for the vehicle.
[55] Following their departure from the McDonald’s, they proceeded north on Yonge Street to a Persian supermarket, approximately five or six kilometres away. According to Mr. Riazi, there was nothing untoward about the driving on the way there. Mr. Riazi agreed that if he had observed Mr. Hayatibahar driving at excessive speeds, he would have not permitted him to continue driving the vehicle. Mr. Riazi also denied being aware that Mr. Hayatibahar was impaired. He agreed that Mr. Hayatibahar had been drinking, but he did not suspect him to be drunk and he drove the vehicle without issue on the way to the supermarket.
[56] Once at the supermarket, all three entered. It appeared to Mr. Riazi that the employees of the supermarket knew Mr. Hayatibahar. Mr. Riazi believes the female friend remained at the supermarket. In cross-examination, Mr. Riazi was shown geo-coordinate data taken from the Mercedes Infotainment system which showed that the Mercedes drove to a townhouse complex prior to the supermarket. It was suggested to Mr. Riazi that the female passenger was dropped off at the townhouse complex and not the supermarket. Mr. Riazi had no recollection of this portion of the trip, though he agreed it was possible.
[57] Once Mr. Riazi and Mr. Hayatibahar exited the supermarket, Mr. Hayatibahar returned to the driver’s seat. Mr. Riazi explained that he wanted to let Mr. Hayatibahar experience the car “a bit more.”
[58] According to Mr. Riazi, as they left the supermarket, Mr. Hayatibahar’s driving was “pretty normal.” They were both wearing their seatbelts. Mr. Riazi claims he “blacked out” for a period of time. He was either on his phone or listening to music with his head down. At a certain point he noticed that they were travelling at 170 km/h, and he heard Mr. Hayatibahar yell his name. He could sense that the car was “at the end of its breath” and could not go much faster. He could sense that they were travelling at a high rate of speed.
[59] Mr. Riazi noticed that they were in the middle of the road and he saw the lights on a car that was approaching. He closed his eyes and felt the hardest hit he had ever felt. He sensed the vehicle was spinning and hitting other vehicles. He felt his body move in different directions and was holding his breath while holding on to the passenger side door handle. He could not recall the car leaving the roadway but knew that when the car stopped it was on its side. He noted that both he and Mr. Hayatibahar were held in their seats by the seatbelts they were wearing. He could feel the seatbelt, particularly the shoulder belt portion, tighten. He described how the seatbelt felt like a rope and he was hanging from it.
[60] Mr. Riazi explained that when the car was on its side, Mr. Hayatibahar asked him to switch seats as he did not have a driver’s licence. He was surprised by the request but did not answer. Mr. Riazi explained he stayed in the passenger seat for a period of time as he wanted people to see him in that seat. He agreed in cross-examination that he had not mentioned this fact prior to trial.
[61] Eventually, Mr. Riazi tried to open the passenger side door, but it was too heavy. Bystanders were arriving and Mr. Hayatibahar moved to the back seat where he exited from the rear passenger door. When he saw Mr. Hayatibahar exit the vehicle he decided to follow and eventually exited through the same door. Mr. Riazi believed that they both exited the car when it was down on the ground. He denied that Mr. Hayatibahar exited first and pulled the car down so that it was right side up. He denied exiting the car through the driver’s side door.
[62] Mr. Riazi was shown photos of his injuries and he explained that these were injuries caused by the seatbelt that he was wearing. He explained the most painful part of the accident was when he was hanging from the seatbelt, which caused pain to his collar bone. The following day, Mr. Riazi took further photos of his injury in a friend’s vehicle without his shirt on. He did this in in order to show where the seatbelt would have been located. He also explained that he had various other bruises and pain “all over.”
[63] Mr. Riazi was shown a security camera video taken at the McDonald’s. The video shows Mr. Riazi leaving the McDonald’s and getting into the driver’s seat of the vehicle before they drive off. Mr. Riazi confirmed that the video appears to show him get into the driver’s seat, though he did not specifically recall this. He went on to explain that before exiting the McDonald’s parking lot, they drove a short distance into the rear parking lot at the McDonald’s.
[64] Mr. Riazi was asked about his usual pattern of driving. While he admitted that on occasion he would speed, even upwards of 150 or 160 km/h, he denied driving that fast on the day of the accident. Mr. Riazi was cross-examined at some length on the geo-coordinate data taken from the Mercedes’ Infotainment system. This data revealed the route travelled by the Mercedes as it went from the water park to the McDonald’s. The data also revealed the various speeds of the vehicle including the following;
a. As the Mercedes was travelling on a dirt road leaving the water park it reached a speed of 89 km/h in a very short distance;
b. On Steeles Ave. before Highway 27, the Mercedes reached a speed of 127 km/h in a 60 km/h zone;
c. On Steeles Ave. between Kipling and Islington, the Mercedes reached speeds between 114 and 143 km/h, with rapid acceleration;
d. On Highway 400, the Mercedes reached speeds between 120 and 170 km/h;
e. On Elgin Mills between Bathurst and Yonge St., the Mercedes reached speeds of 119 km/h in a 50 km/h zone.
[65] Mr. Riazi acknowledged that he was driving the Mercedes during this period of time. He claimed to have no recollection of driving at the speeds indicated, and acknowledged that he testified in chief that his driving had been “normal” and that he had not driven at these high speeds on the day of the accident. He admitted that his style of driving was not something he was proud of. He also acknowledged having a record of traffic offences, including a conviction for speeding.
[66] Mr. Riazi was confronted with the data showing that as the Mercedes was traveling northbound on Yonge Street towards the supermarket, it reached speeds of 146 to 163 km/h. Mr. Riazi denied that this driving was consistent with the pattern of his driving earlier that day. He maintained that it was Mr. Hayatibahar who was driving and maintained that he was not paying attention to the driving during this portion of the trip.
[67] Mr. Riazi denied that he wanted Mr. Hayatibahar to claim responsibility for driving and further denied that when he made the suggestion, Mr. Hayatibahar explained that he had no driver’s licence. He denied that his motivation for doing this was related to the fact that he was impaired, and he believed that Mr. Hayatibahar was sober.
[68] In re-examination, Mr. Riazi was asked about “constructed memory” which was a phrase he used during his evidence. He offered a lengthy response and during his response he stated, “I’m in the driver’s seat.” The Crown did not initially catch this comment, but the following day, the issue was raised and the Crown sought leave to re-call Mr. Riazi to explore the obvious inconsistency. I ruled that the Crown would be permitted to seek clarification and Mr. Riazi was recalled. He was not advised why he was being recalled. Once back on the witness stand, the audio recording of his lengthy response was played for him, and he was asked about his comment. Mr. Riazi explained that he was tired following the lengthy day in court and had simply misspoken.
(ii) Circumstantial Evidence of Identity of Driver
[69] In addition to the direct evidence of Mr. Riazi, the Crown seeks to rely on two main items of circumstantial evidence in support of its position that Mr. Hayatibahar was the driver of the Mercedes at the time of the accident.
[70] The first item is not overly controversial. When Mr. Hayatibahar was searched incident to arrest while he was at the hospital, the key for the Mercedes was found in his pocket. The Crown argues that the key was in Mr. Hayatibahar’s possession because Mr. Riazi gave it to him when they left the McDonald’s parking lot. The Crown argues that while a key is not required to physically start the Mercedes, Mr. Hayatibahar would have no reason to have it in his possession unless it was given to him by Mr. Riazi for the purpose of driving the vehicle. The defence position is that the key could have been passed to Mr. Hayatibahar for any number of reasons unrelated to driving the vehicle. The defence notes that the key would not need to be in Mr. Hayatibahar’s possession in order for the car to be started and/or driven by Mr. Hayatibahar. It would have been sufficient for the key to remain with Mr. Riazi inside the vehicle. This suggests that perhaps there was another reason for handing the key over. The defence also notes that Mr. Riazi’ evidence on the key has evolved. When he was first asked about the key, he had no recollection of where it went. By the time of trial, he testified that he gave the key to Mr. Hayatibahar.
[71] The second item of circumstantial evidence is more controversial. The Crown seeks to rely on the presence of certain injuries on Mr. Hayatibahar and Mr. Riazi as circumstantial evidence supporting the singular inference that Mr. Hayatibahar was the driver of the vehicle at the time of the accident. In support of this argument, the Crown also initially sought to tender the lay opinion evidence of various witnesses. In a bottom line ruling delivered during the trial, I ruled that the proposed evidence was not proper lay opinion and therefore inadmissible, but I held that the underlying factual observations were properly admissible as circumstantial evidence. I indicated that I would provide reasons and I do so now.
[72] By way of background, during the Charter voir dire a number of police witnesses were asked to articulate their grounds for initially arresting both Mr. Hayatibahar and Mr. Riazi and later releasing Mr. Riazi unconditionally. Several police witnesses referred to the presence of “seatbelt rash” on the neck and chest area of both individuals. Based on the directionality of the injuries, the officers formed the belief that Mr. Hayatibahar was the driver and Mr. Riazi was the passenger. While the evidence on the Charter voir dire and trial proper was received in a blended fashion, the defence objected to the admissibility of the officers’ opinion on the “seatbelt rash” on the trial proper, though not in relation to forming grounds for arrest.
[73] During the trial proper, Taylor Bosquet, a paramedic, testified and was asked to offer his opinion on how the observed injuries were caused. The defence objected to the admissibility of this opinion, and the evidence on this issue was received in a voir dire.
[74] Taylor Bosquet was one of the paramedics who attended at the scene of the accident, and offered assistance to Mr. Riazi and then transported him to hospital. Mr. Riazi complained of left lateral and left shoulder pain. Once at the hospital, Mr. Bosquet observed a red-purple abrasion on Mr. Riazi which extended from his right shoulder across the chest, downwards towards the left hip. The abrasion was “a couple inches” in width. Based on his experience as a paramedic having attended many motor vehicle collisions, he concluded that the injury was a seatbelt injury. He explained that this was an injury that would be observed in individuals who had been wearing a seatbelt during a collision, and he further explained that where individuals were not wearing a seatbelt no such injury would be present.
[75] In cross-examination, Mr. Bosquet agreed that he had no specific training on mechanisms of injury causation. He also agreed that there could be many variables relating to how an injury like this was caused, including the size of the person, the clothing worn, the presence of airbags, the degree or force of impact and whether the seatbelt was worn properly. In terms of the specific injury to Mr. Riazi, Mr. Bosquet had no note of how long the abrasion was. He could not recall where the injury on the neck started or how far it was from the outside edge of the shoulder. In re-examination, Mr. Bosquet confirmed that he believed this was a seatbelt injury purely based on how the injury presented.
[76] Det. Cst. Rosilius attended at the MacKenzie Health hospital and observed Mr. Hayatibahar as he was on a gurney in a hallway. She observed red marks on his left shoulder and neck area. From her experience she interpreted these marks as seatbelt marks and concluded that Mr. Hayatibahar had been wearing the driver’s side seatbelt. She also observed Mr. Riazi at the hospital and noted marks on the opposite side of his body, which in her mind suggested he was the passenger. Det. Cst. Rosilius identified photos of Mr. Riazi taken at the hospital which show red marks on the side of his neck and upper chest.
[77] In cross-examination, Det. Cst. Rosilius agreed that she had no training on how injuries are caused, what force would be required to cause the noted injuries, or whether the accident in this case would or would not cause the injuries observed. She agreed that the injuries simply appeared consistent with the use of a seatbelt, assuming that the seatbelt was worn properly.
[78] Cst. McWatters testified that when he was in the ambulance with Mr. Riazi, one of the paramedics pulled Mr. Riazi’s shirt down and he observed injuries which in his mind were consistent with a “seatbelt rash.” Once at the hospital, he observed Mr. Hayatibahar and noted a 3” long rash over his left shoulder. This observation made him believe that Mr. Hayatibahar was the driver. In cross-examination, he agreed that he had no training on how injuries occur and that the best he could say is that the injuries appeared consistent with what a seatbelt injury would look like. In re-examination, Cst. McWatters added that when he examined the injuries with the better lighting at the hospital, he observed a patterned imprint that looked like seatbelt material.
[79] Cst. Barak accompanied Mr. Hayatibahar in the ambulance to the hospital. During the trip, he noted a mark on Mr. Hayatibahar’s left shoulder. He described it as bruising and chaffing that went across his body and appeared to come from a seatbelt strap.
[80] Dr. Nicholas Clarridge was on duty as an emergency room physician when Mr. Hayatibahar arrived at MacKenzie Health hospital. He was the initial treating physician, and he conducted an examination of Mr. Hayatibahar that was memorialized in the patient records. He testified that he observed an abrasion on Mr. Hayatibahar’s left shoulder. The abrasion was linear with two edges. At some point after the examination, he drew a representation of his observation on a diagram of a torso. He also noted on the diagram that Mr. Hayatibahar had a pain reaction to the lower left side of his chest. While he had no specific recollection of the injury, he explained that the purpose of marking the diagram was to show where the trauma was and to capture by way of approximation the size, shape and location of the trauma. He did not attribute a cause to the observed abrasion.
[81] Dr. Clarridge was shown a series of screen shots of Mr. Hayatibahar taken while Mr. Hayatibahar was in the back seat of a police car being transported from the hospital to the courthouse. He explained that the injuries he observed were either not present or covered by the shirt worn by Mr. Hayatibahar in the photos. He noted that when he made his observations, Mr. Hayatibahar would not have been wearing a shirt. Dr. Clarridge was also shown photos of Mr. Riazi’s injuries. While he noted that the injury appeared linear, he could not state whether the injury depicted in the photo was similar to the injury he observed on Mr. Hayatibahar.
[82] As indicated during my review of Mr. Riazi’s evidence, Mr. Riazi provided direct evidence that he was the passenger in the Mercedes at the time of the crash and further that he was wearing a seatbelt. The day after the collision, Mr. Riazi arranged for a friend to take a picture of him showing the injuries to his neck area. In one photo, he is wearing a shirt and the injury is readily visible across the right shoulder and neckline. In a second photo, he is shirtless, seated in the passenger seat of a vehicle and wearing a seatbelt. In this photo, the injury can be seen in rough parallel with the seatbelt. Mr. Riazi explained that he had these photos taken on the recommendation of a friend.
[83] Lastly, Det. Cst. Kucan, the accident reconstructionist, also gave evidence regarding the use of the seatbelts in the Mercedes. As set out in his report and expanded on in his viva voce evidence, Det. Cst. Kucan explained that he examined the front seatbelts in the Mercedes and noted both seatbelts showed signs of “loading” and friction marks on the D-ring and buckle, which suggested that they were being worn at the time of the crash. While he could not conclude the seatbelt pre-tensioner had fired, he believed that it had. The rear seatbelts showed no signs of being worn at the time of the crash. In cross-examination, he agreed that he could not say where the shoulder portion of the belt would have rested on the specific person using the belt, nor could he determine from his examination whether the seatbelt was being worn properly at the time of the crash.
[84] I turn next to the legal issue of the admissibility of the lay opinion on the “seatbelt rash.” The Crown asks that I receive the lay opinion of the ambulance attendant, and by implication, also the lay opinion of the various police officers who observed the injuries and concluded that they were caused by wearing a seatbelt. The Crown seeks to draw an analogy to the line of cases dealing with lay opinion evidence on recognition as discussed in R. v. Leaney (1989), 1989 CanLII 28 (SCC), 50 C.C.C. (3d) 289 (S.C.C.), R. v. Brown (2006), 2006 CanLII 42683 (ON CA), 215 C.C.C. (3d) 330 (Ont. C.A.) and R. v. Berhe, 2012 ONCA 716. The Crown argues that by virtue of their experience, the ambulance attendant and the police officers are essentially “better placed” than I am, and therefore able to give lay opinion evidence essentially “recognizing” the injuries as being caused by a seatbelt.
[85] The defence argues that the Crown should have called expert opinion evidence on this issue but chose not to. While the defence accepts that the witnesses can relate their observations of the injuries, the defence argues that the witnesses should not be permitted to offer lay opinion as to the causation of those injuries. The evidence does not fall within the permissible categories of admissible lay opinion evidence discussed in R. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819.
[86] I agree with the defence that the issue of causation of the injuries is an issue on which the Crown could have called a properly qualified expert. Indeed, in other cases, expert evidence has been called on this very issue, see for example R. v. McKeown, 2010 ONSC 1492 and R. v. Hickey, 2009 CanLII 7101 (ON SC).
[87] However, the mere fact that expert evidence was called on this issue in other cases does not necessarily mean that in all cases the Crown must call expert evidence on the issue before the trier of fact can draw an inference about how an injury was caused. The decision to call an expert depends on the specific facts of the case, the nature of the issues on which the evidence might be relevant and the litigation strategy adopted. In some cases, expert evidence will be necessary in order to help the trier of fact make determinations about the nature of injuries. In other cases, the trier of fact may be perfectly placed to draw inferences and reach conclusions from the available evidence even in the absence of expert evidence.
[88] I provide the following examples to demonstrate this point. A complainant in a domestic assault case is observed to have a bruise around her eye, and she testifies that she was punched in the eye by the defendant and suffered a “black eye” as a result. While an expert witness might be called to opine on the causal connection between the punch to the eye and the bruise, the trier of fact could readily conclude that the punch to the eye caused the bruise even in the absence of expert evidence. The trier of fact could rely on the complainant’s direct evidence about the details of the assault, and evidence about the absence of any other accident or assault that could have caused the injury, as well as the circumstantial evidence about the nature and location of the bruise, and when it first appeared, to draw the conclusion that it resulted from the alleged punch. The trier of fact would be entitled to consider the combined effect of the direct and circumstantial evidence. In other words, the existence of the bruise could be seen as corroborating the complainant’s evidence that she was punched in the eye.
[89] In a different case, a complainant alleges an incident of choking. Following the incident, she is examined at a hospital and the attending physician notes petechia, i.e. small red spots on the skin or eyes resulting from broken capillaries. In this scenario, while the complainant could offer direct evidence about having been choked, she may not be aware of the petechia or connect them to the choking. The trier of fact also might not be able to simply infer causation based on the circumstantial evidence of the injury alone, without expert evidence to explain the possible connection between the injury and the alleged choking. In such a circumstance, the Crown would be wise to consider calling an expert to assist the trier of fact in determining whether that specific injury was caused by the alleged choking.
[90] In this case, the Crown has chosen not to call an expert witness even though it could have. That is not necessarily fatal to the Crown’s position on the issue. Rather, it simply leaves me as the trier of fact restricted to examining the direct and circumstantial evidence that has been placed before me. It may still be possible for me to draw conclusions even without the assistance of an expert opinion.
[91] Turning to the issue of lay opinion, I note that in Graat, the Supreme Court held that while lay opinion is generally inadmissible, lay witnesses can properly express opinions on a number of issues such as: the identification of handwriting, persons and things; apparent age; the bodily plight or condition of a person, including death and illness; the emotional state of a person; intoxication; the condition of things, e.g. worn, shabby, used or new; certain questions of value; and estimates of speed and distance. The reason for the exception is that these are matters within everyday ordinary experience and not matters “where scientific, technical, or specialized testimony is necessary” in order for the trier of fact to properly make factual determinations, see Graat at p. 838. The Court also explained that in these instances, the lay opinion is essentially a “compendious” mode of presenting factual observations which would otherwise be too subtle or complicated to be narrated individually or distinctly, see S. Casey Hill, David M. Tanovich and Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed. (Toronto: Thomson Reuters, 2017), at p. 12-9 and R. v. H.B., 2016 ONCA 953 at paras. 131-134.
[92] In accordance with Graat, it is permissible for an eyewitness to a crime to come to court and offer the opinion that the perpetrator and the defendant are the same person. As the Ontario Court of Appeal observed in R. v. Panovski, 2021 ONCA 905 at para. 109, “recognition evidence is non-expert lay opinion evidence”, as is evidence of non-recognition by an eyewitness. In typical eyewitness identification situations, the eyewitness has the obvious advantage over the trier of fact of having actually seen the perpetrator. The eyewitness’s lay opinion that the defendant is or is not the same person that he or she saw committing the crime is likely to give the trier of fact better information about the issue of identification than would be provided if the eyewitness was limited to describing what he or she can now remember about what the perpetrator looked like, although the trier of fact must also be mindful of the well-known frailties of eyewitness identification evidence.
[93] In Leaney, the facts presented a twist on the Graat principles. The Crown had a videotape of a robbery, and it asked a number of police officers to offer their opinion on the identity of the perpetrator. The police officers were not eyewitnesses to the robbery. They were merely viewing the video of the robbery which was also played for the trier of fact. Five police officers viewed the video and identified the perpetrator as the defendant. Four of the police officers had no prior acquaintance with the defendant, but a fifth police officer had known the defendant since childhood.
[94] Writing for the majority, McLachlin J. (as she then was) found that the evidence of the four officers was inadmissible as these officers were in no different a position than the trier of fact in assessing whether the person in the video was the defendant. However, McLachlin J. went on to find that the fifth police officer, by virtue of his prior experience with the defendant was in a better position than the trier of fact, and therefore his lay opinion on identification would have been admissible. In doing so, McLachlin J. recognized that while the task of comparing a photo or video image of the alleged perpetrator with the defendant in court would ordinarily fall entirely to the trier of fact, in instances where the witness had a sufficient prior acquaintance with the defendant, the witness’ lay opinion on recognition would be admissible as the witness was in a better position than the trier of fact to identify the defendant.
[95] The principles in Leaney have been applied not only to instances of human recognition but also to instances where the identification of vehicles is in issue, see R. v. Lee, 2018 ONSC 377, R. v. Layne, 2019 ONSC 7585 and R. v. Truong, 2021 ABQB 856.
[96] In my view, the Crown’s reliance on Leaney in this case is misplaced. Leaney deals with recognition evidence, which is a type of lay opinion evidence admissible under Graat. In this case, the Crown seeks to have a paramedic and a number of police officers give lay opinion that the bruising they observed on Mr. Riazi and Mr. Hayatibahar is “seatbelt rash.” This is not “recognition” evidence. The witnesses are not being asked to identify a face or a car that they are familiar with. They are being asked to look at an injury and offer their view on what caused that injury based on their experience with seeing other people with what are said to be similar injuries. The mechanics of injury causation are not, in my view, the proper subject for lay opinion. Using the language from Graat, the opinion that the injuries were caused by a seatbelt is not simply a “compendious” manner of describing an every day common observation or observations.
[97] Ultimately, I find that the Crown seeks to proffer opinion evidence that sits somewhere between expert opinion evidence and lay opinion evidence. The opinion on causation could have been proffered by a duly qualified expert but the Crown chose not to call one. Instead, the Crown sought the opinion of various first responders who provided an opinion based on their work experience. The difficulty with this position is that there is no half-way house of opinion evidence. Either the matter is one in which we permit ordinary witnesses to opine on because we recognize that their opinion is essentially comprised of a compilation or collation of regular everyday observations that would otherwise be difficult to articulate, or the opinion is one that should be offered by a duly qualified expert because it requires specialized knowledge that ordinary people may not possess.
[98] Returning briefly to the examples I provided earlier, in the case where the domestic assault complainant suffered a bruised eye following a punch, an ambulance attendant’s evidence that the bruise was consistent with a punch would not be admissible lay opinion evidence. However, it would be open to the court to infer from the presence of the bruise and the complainant’s evidence that the bruise was caused by the assault. In the second scenario, involving the allegation of choking and the petechial hemorrhages, an ambulance attendant would also not be permitted to offer an opinion on the causation of petechial hemorrhages. However, a properly qualified medical expert could offer the opinion and in the absence of such expert evidence, the court might be left in a position where it is unable to make a finding on causation.
[99] I turn next to assessing the circumstantial evidence of injuries. I find that Mr. Hayatibahar had an injury as described by Dr. Clarridge. This injury was a linear abrasion with two edges and appeared as depicted in the medical sketch he prepared. While the diagram is neither precise nor to scale, it shows an injury on Mr. Hayatibahar’s left shoulder extending downwards towards his right hip. The description and diagram by Dr. Clarridge roughly match the observations of the injury by Det. Cst. Rosilius, Cst. Barak and Cst. McWatters. I am satisfied that these witnesses all saw an abrasion injury on Mr. Hayatibahar on the evening of the accident. This finding is not undermined by the photo/video evidence taken of Mr. Hayatibahar the following day as he was being transported to court. The clarity of the photos/video is not ideal, and Mr. Hayatibahar is wearing a shirt.
[100] I am also satisfied that Mr. Riazi suffered a similar injury on his right shoulder extending across his chest towards his left hip. The photos taken at the hospital combined with the observations of the various officers and the ambulance attendant amply establish the presence, shape and directionality of this injury. In addition, the photos of the injuries taken a day or two later vividly show the injury.
(iii) Evidence of Civilians on Scene
[101] The Crown called a number of witnesses who were present at the scene and who made various observations. Perhaps unsurprisingly, while these witnesses were all observing the same series of events, their recollections and observations differed significantly.
[102] Dr. Soroush Nomigolzar is the physician who happened to be travelling in a vehicle on Yonge Street at the time of the accident. When he first saw the Mercedes, it was flipped on its side with the driver’s side towards the ground. He observed some young men trying to bring the car back down onto the pavement and was concerned that they would be injured. He observed a person in a black shirt, later identified as Mr. Hayatibahar, help another person exit the vehicle from the passenger side. Dr. Nomigolzar conducted quick physical examinations and asked some brief questions in Farsi. When he asked who was driving, Mr. Hayatibahar said he was the passenger. Mr. Riazi did not respond. Mr. Hayatibahar also stated they had been drinking, though Dr. Nomigolzar did not note a smell of alcohol. According to Dr. Nomigolzar, Mr. Riazi appeared drowsy, in shock and not coherent. At the time, Dr. Nomigolzar believed that Mr. Riazi was the driver despite the fact that he exited from the passenger side of the vehicle. At trial, Dr. Nomigolzar explained that he based this belief on what he had been told by Mr. Hayatibahar. He agreed that he did not offer this explanation to police in his statement.
[103] Maksym Us was walking north on Yonge Street on the evening of the accident. He initially saw the Mercedes as it was coming southbound on Yonge Street going towards the McDonald’s restaurant. Moments later, he saw the car turn back out onto Yonge Street and head northbound. He observed the car zigzag around cars while driving very fast. He estimated the speed at 160 km/h. The Mercedes continued northbound, and he eventually lost sight of it. After perhaps 10 minutes, he observed the Mercedes coming southbound on Yonge Street. It appeared to him that the car was going “way over” 160 km/h. He could hear the engine “roaring.” He saw the vehicle enter the centre “emergency” lane, and eventually observed the driver lose control and collide with northbound vehicles.
[104] Mr. Us watched the Mercedes collide with three vehicles, including a head on impact with a Mazda which resulted in a minor explosion. Mr. Us explained that the Mercedes rolled more than two times and ended up on its roof. As Mr. Us was approaching the Mercedes, he saw two people exit the vehicle. He was facing the windshield and the car was on its roof with its wheels “sticking up.” He observed a male in a black shirt crawl out of the right side of the vehicle and another male in a white shirt crawled out of the left side of the car through a window. The two males exited at the same time. He also observed a number of people trying to flip the car over.
[105] When asked to identify which of the two males were driving, Mr. Us testified that the male wearing the white shirt who exited the left side of the car was driver. Mr. Riazi was later identified as the male in the white shirt. In cross-examination, Mr. Us explained that when he was facing the car, it was on its roof. He maintained that he knew which side of the car the steering wheel would be on, even though the car was on its roof. He also explained that he knew it was important to keep this observation clear in his memory.
[106] Mr. Us could not recall seeing the Mercedes on its side, nor could he recall if either of the two males were trying to flip the car. He also did not recall anyone helping either male exit the vehicle. Photos of the Mercedes were tendered during the evidence of Det. Cst. Kucan. The photos reveal no significant damage to the roof of the Mercedes. Det. Cst. Kucan opined that if the car had landed on its roof, he would have expected to see much more damage.
[107] Jeffrey Mendiola was in a vehicle that was exiting a Subway restaurant on Yonge Street. While waiting to turn out onto Yonge Street, he heard the crash and saw an explosion. He observed a white vehicle come to rest on its side, with the driver’s side down to the ground. The car was not on its roof. He observed the rear passenger side door open and saw a person emerge from the vehicle. That person started rocking the vehicle back and forth and the car eventually landed right side up on the ground. Mr. Mendiola then observed a second person exit the vehicle from the front driver’s side door. Mr. Mendiola could not recall the colour of the shirts on either male who exited from the vehicle. While he believed that the first male exited through the rear passenger door, he agreed that he was possibly mistaken and the person exited through the front passenger side door.
[108] Darya Barghian was one of Mr. Riazi’s friends. She did not know Mr. Hayatibahar but learned of him the day of the accident. At the time of the accident, she was with a fairly large group of friends at the McDonald’s waiting for Mr. Riazi and Mr. Hayatibahar to return. It was taking longer than expected and she observed emergency vehicles travelling north on Yonge Street. Fearing the worst, she decided to investigate. Just prior to departing she overheard a telephone conversation between her friend Parsa and a male individual who did not sound like Mr. Riazi. She was familiar with Mr. Riazi’s voice having spoken to him on the phone and would have recognized it if it was him. She understood that her friend was trying to reach both Mr. Riazi and Mr. Hayatibahar and that this call was with Mr. Hayatibahar. While she had never heard Mr. Hayatibahar, she believed it was him on the phone.
[109] According to Ms. Barghian, she heard Mr. Hayatibahar say “we are fucked” in Persian. Later, she attended at the hospital and saw who she believed was Mr. Hayatibahar on a stretcher in the hallway. He was shouting in Persian and she identified his voice as “very familiar.”
[110] Ryan Law was called as a defence witness. He was in the same vehicle as Mr. Mendiola and was seated in the rear passenger seat. Mr. Law explained that the accident happened right in front of the car he was in, and he saw a ring of fire as debris expanded after the collision.
[111] He and his friends went over to the Mercedes which was on its side. He observed a male in a dark shirt exit from the passenger side. He explained that this observation was premised on his assumption of the direction that the car was facing. He explained that if the car was facing northbound, the person in the dark shirt would have been the passenger and the person in the white shirt would have been the driver. Ultimately, while Mr. Law was certain that the person in the dark shirt was the first to exit followed by the person in the white shirt, he was not certain as to who was the driver and who was the passenger. He agreed that he was trying to be accurate but could not really be sure.
(iv) Mr. Hayatibahar’s Utterances
[112] Mr. Hayatibahar is alleged to have said “we’re fucked” on a phone call that was overheard by Ms. Barghian. The Crown submits that this is an implicit admission of wrongdoing on his part. I place no weight on Ms. Barghian’s evidence about this comment. Even assuming that the comment was uttered by Mr. Hayatibahar, it provides little, if any, probative insight as to who the driver of the vehicle was. The comment is at best equivocal.
[113] There are also two exculpatory utterances wherein Mr. Hayatibahar denied being the driver and claimed to be the passenger. As described above, the first utterance was made to Dr. Nomigolzar at the roadside. The second utterance occurred a short time later when Mr. Hayatibahar was being assessed by EMS first responders. On this second occasion, Cst. Barak overheard Mr. Hayatibahar telling firefighters that he was not driving the vehicle.
(v) Findings on Identification
[114] I turn next to assessing the evidence of identification. In doing so, I am mindful of the W.D. analysis. My task is not simply to choose between the competing bodies of evidence. My task is to assess the totality of the evidence, including the absence of evidence, to determine whether the Crown has proven beyond a reasonable doubt that Mr. Hayatibahar was the driver of the vehicle. Mr. Hayatibahar does not have to prove anything. If at the end of the analysis, I am left with a reasonable doubt on the identity of the driver of the Mercedes at the time of the accident, I must find Mr. Hayatibahar not guilty.
[115] I start with Mr. Riazi’s evidence. To state it bluntly, Mr. Riazi was a terrible witness. His evidence reveals significant and obvious credibility and reliability concerns. He was highly combative and argumentative throughout much of the cross-examination. He was conveniently forgetful on important issues such as the nature of his driving between the water park and the McDonald’s. His recollection of events not only suffered from selective memory, but was also limited as a result of his impairment.
[116] Most importantly, Mr. Riazi had significant motives to lie in his testimony. His mother’s Mercedes was destroyed in a horrific accident. The accident resulted in a loss of life and significant injuries to others. He was impaired by alcohol at the relevant time. His driving after leaving the water park involved extremely high speeds and periods of rapid acceleration. Given these motivations, there exists a real concern that he attempted to mislead the court on his involvement in the events that culminated in the tragedy.
[117] In short, Mr. Riazi presents as a witness with obvious credibility and reliability concerns. I find that it would be dangerous to rely on his evidence in the absence of independent evidence that corroborates it.
[118] That said, I also find that there is evidence capable of restoring faith in key aspects of his testimony, particularly his evidence that Mr. Hayatibahar was the driver of the Mercedes at the time of the accident. I reach this conclusion for the following reasons.
[119] First, I find that the evidence relating to the injuries suffered by both Mr. Hayatibahar and Mr. Riazi, when viewed in concert, manifestly supports the singular inference that Mr. Hayatibahar was the driver and Mr. Riazi was the passenger. Mr. Hayatibahar’s injury is on his left shoulder angled towards his right hip and Mr. Riazi’s injury is on his right shoulder angled towards his left hip. The injuries are mirror images. Viewed in this fashion, I readily infer that these injuries were caused by seatbelts worn by both of them during the accident. This finding is significantly strengthened by the photo of Mr. Riazi with his shirt off, seated in the passenger seat of a motor vehicle with the seatbelt fastened. While he is not seated in the same type of vehicle, the very visible injury clearly tracks the positioning of the seatbelt.
[120] In reaching this conclusion, I am cognizant that I do not have expert evidence on the causation of these injuries. However, this is an instance where the I am satisfied that I can safely draw the inference about seatbelt use. The mirror image nature of the injuries amply supports the inference as to who was seated where in the vehicle, especially in view of the physical evidence that seatbelts were worn at the time of the crash. The force of the crash was also sufficient enough to leave marks on the seatbelts themselves, suggesting that the seatbelts restrained their wearers during the impact. I reject the submission that there is no evidence that the seatbelts were worn properly. It would be speculative to conclude that the seatbelts were being improperly worn with the shoulder portion of belt either behind the occupant’s back or in some other fashion.
[121] As well, I am not taking judicial notice that the injuries are “classic” seatbelt injuries as occurred in R. v. Nelson, 2020 BCCA 204. Rather, I am simply drawing inferences based on the totality of the evidence on this issue.
[122] While my findings in relation to the injuries provide significant corroboration of Mr. Riazi’s evidence on the issue of who was driving the vehicle, I should add that even in the absence of evidence from Mr. Riazi, the evidence of the injuries to both parties coupled with the physical evidence of seatbelt use constitute a formidable body of circumstantial evidence which supports the singular inference that Mr. Hayatibahar was the driver of the vehicle and Mr. Riazi was the passenger.
[123] A second item of corroborating evidence is the presence of the key in Mr. Hayatibahar’s pocket following the accident. I find that this evidence supports Mr. Riazi’s assertion that he let Mr. Hayatibahar drive the car and handed the key over when doing so. While I find that Mr. Riazi’s recollection of handing the key over is exaggerated and has developed over time, I ultimately accept that the presence of the key on Mr. Hayatibahar corroborates Mr. Riazi’s evidence on who the driver was. Mr. Hayatibahar would have had no reason to have the key in his possession otherwise and I reject the submission that Mr. Riazi handed the key over to Mr. Hayatibahar while they were at the McDonald’s so that Mr. Hayatibahar perhaps could sit in the car while Mr. Riazi was elsewhere. The video from the McDonald’s offers no support for this submission. I also reject the submission that the value of this evidence is significantly lessened by the fact that the key was not required to start the Mercedes. I find that the act of handing the key over remains a physical act consistent with an intention to allow the recipient to drive even if the key is not required to physically start the car. In short, while Mr. Riazi’s evidence on this issue was late-breaking and likely arrived at in hindsight, I accept his description that the transfer of the key was essentially symbolic of transferring responsibility for the vehicle.
[124] A third item of corroborating evidence relates to the Infotainment data from the Mercedes. Mr. Riazi acknowledged that the McDonald’s video shows him entering the driver’s seat of the Mercedes as they leave the McDonald’s. Mr. Riazi testified that he drove the car a short distance to the back parking lot of the McDonald’s and he and Mr. Hayatibahar would have changed seats at this location. The Infotainment data confirms that the vehicle was driven a short distance away and the vehicle stopped, its doors opened and closed, and then the vehicle proceeded out to Yonge Street. I find that the Infotainment data corroborates Mr. Riazi’s evidence by demonstrating that the vehicle did move to the rear parking lot before proceeding out onto Yonge Street. I also find that the data showing the opening and closing of doors supports an inference that this is when Mr. Hayatibahar and Mr. Riazi switched seats.
[125] I now turn to consider the evidence that favours Mr. Hayatibahar. In this regard, I must consider his exculpatory utterances to Dr. Nomigolzar and to the firefighters, as overheard by Cst. Barak. I also consider that Mr. Riazi was present for the exculpatory utterance to Dr. Nomigolzar and said nothing in response. I consider the evidence of the civilian witnesses, some of whom came to the conclusion that Mr. Riazi was the driver and some of whom observed Mr. Riazi apparently exiting from the driver’s side of the vehicle. Lastly, I consider the absence of evidence, including the absence of scientific evidence such as DNA or fingerprints placing Mr. Hayatibahar in the driver’s seat of the vehicle.
[126] When I consider these items of evidence individually and cumulatively, I do not accept that this evidence demonstrates that Mr. Hayatibahar was not the driver, nor does this evidence leave me a reasonable doubt on the issue.
[127] In terms of Mr. Hayatibahar’s roadside exculpatory utterances, I find that these utterances are simply bald denials given moments after a massive collision that was obviously caused by the Mercedes. Viewed in context with Mr. Riazi’s evidence, these utterances come after Mr. Hayatibahar had already suggested that Mr. Riazi should take the blame for the accident as Mr. Hayatibahar was unlicensed. In these circumstances, the utterances are entitled to no weight. They are self-serving. In any event, the exculpatory utterances are also entirely undermined by the evidence of the injuries to Mr. Hayatibahar and Mr. Riazi viewed in concert.
[128] I also place no weight on Mr. Riazi’s silence in the face of Mr. Hayatibahar’s exculpatory utterance to Dr. Nomigolzar. This is not a circumstance where I can find that Mr. Riazi adopted the utterance by silence. First, I am not satisfied that Mr. Riazi heard the utterance. In any event, Dr. Nomigolzar described Mr. Riazi as being in shock when he was dealing with him in the immediate aftermath of the accident. Even if Mr. Riazi was within earshot, I am not satisfied that he would have been in a position to properly appreciate the significance of the utterance. I reach this conclusion despite Mr. Riazi’s evidence that he reacted to Mr. Hayatibahar’s request to switch seats by remaining in his seat long enough so that others on scene would see where he was sitting. Mr. Riazi’s evidence on this issue was exaggerated. I find that what likely happened is that Mr. Hayatibahar asked to switch seats and Mr. Riazi did not respond as he needed some time to process the comment in the aftermath of the accident. I accept Dr. Nomigolzar’s evidence that Mr. Riazi appeared to be in shock immediately after the accident. In these circumstances, I find that while he may have appreciated that Mr. Hayatibahar wanted to switch seats, he did not do or say much about it at the time.
[129] When I assess the evidence of the civilians who were at the scene, I start by noting that these witnesses were all watching a very traumatic event unfolding unexpectedly before their eyes. It is not surprising that their accounts of the same incident vary, at times significantly.
[130] Mr. Us is a witness who demonstrates classic reliability problems. I have every confidence that he was attempting to relay his evidence in court in an accurate and honest fashion. On his evidence, Mr. Riazi was the driver and Mr. Hayatibahar was the passenger. He inferred this from the seats they were in when he observed the demolished Mercedes upside down on its roof. The problem with Mr. Us’s evidence is that the Mercedes was never upside down on its roof. On the evidence that I accept, the Mercedes came to rest on its side and was then pulled back down onto the road right side up. While I accept Mr. Us’s sincerity, he simply could not have seen what he is certain to have seen. As such, I give no weight to his evidence about who was driving the vehicle.
[131] Mr. Mendiola’s evidence also offers little support for the defence position. He observed the first person exit the car through the rear passenger door and the second person exit through the front driver’s side door. He could not recall the colour of the shirts worn by these parties and could not tell where each had been seated within the vehicle.
[132] Lastly, Mr. Law testified that depending on the orientation of the vehicle, it appeared to him that Mr. Hayatibahar was the passenger and Mr. Riazi was the driver. That said, Mr. Law was clear that this depended on which way the car was facing which was an issue on which he was uncertain. Ultimately, Mr. Law’s evidence was that he could not be sure who sat where within the vehicle.
[133] When I consider this evidence in concert, I find that it does not leave me with a reasonable doubt as to who was driving the vehicle. I find that Mr. Hayatibahar was likely the first person out of the vehicle. The vehicle was on its side with the driver’s side to the ground. Mr. Hayatibahar likely exited through the rear passenger door. I find that this occurred because Mr. Riazi was in the front passenger seat held in place by the seatbelt. Once outside of the vehicle, Mr. Hayatibahar helped Mr. Riazi get out of the vehicle. It is possible that this was done before the vehicle was flipped back down, in which case Mr. Riazi would have exited through one of the passenger side doors. It is also possible that this occurred once the vehicle was down on the road right side up, in which case Mr. Riazi could have exited from any door. Even if Mr. Riazi exited through the driver’s door, I would not be left with a reasonable doubt on this issue given the positioning of the car after the accident.
[134] I also consider Mr. Riazi’s comment in re-examination in which he suggested that he was in the driver’s seat. When Mr. Riazi was recalled, this evidence was presented to him in a manner which permitted me to assess his instant reaction. Having watched him closely, I am satisfied that his comment in re-examination was an honest slip that came at the end of the long day and following a lengthy and at times heated cross-examination. This was not a “slip” that actually revealed the truth. This evidence alone or taken with the other exculpatory evidence does not leave me with a reasonable doubt.
[135] I note as well, the absence of evidence. On this issue, there was no evidence called about the presence of DNA or fingerprints on the airbags or seatbelts of the vehicle. As well, a number of other persons who were at the McDonald’s and who might have seen who drove the vehicle as it left were not called. While the absence of evidence can give rise to a reasonable doubt, the absence of evidence in this case does not. The strength of the circumstantial evidence of the injuries to both Mr. Hayatibahar and Mr. Riazi is not undermined by this absence of evidence.
[136] Lastly, I consider whether the similarity in the pattern of driving demonstrated by Mr. Riazi as he drove from the water park to the McDonald’s and the driving around the time of accident suggests that he was the driver throughout the day. While I agree that the pattern of driving is similar in that involves very high speeds, it does not leave me with a reasonable doubt as to who was driving at the time of the accident. I find that Mr. Riazi drove the Mercedes at very high speeds, likely while impaired, between the water park and the McDonald’s. When he handed the key over to Mr. Hayatibahar, Mr. Hayatibahar also drove at very high speeds both on the way to drop off the female passenger and during the return trip which culminated in the accident. I entirely reject Mr. Riazi’s evidence that there was nothing untoward about Mr. Hayatibahar’s driving until the last moment when he accelerated to very high speeds. The truth is that Mr. Hayatibahar drove exactly like Mr. Riazi did. Mr. Riazi’s evidence on this issue is an attempt to shield himself from fault for letting Mr. Hayatibahar drive the vehicle in the fashion he did.
[137] When I view the evidence as a whole, I am satisfied beyond a reasonable doubt that Mr. Hayatibahar was the driver of the Mercedes at the time of the accident. Mr. Riazi’s direct evidence on this issue is sufficiently supported by the available independent corroborating evidence. In any event, I would reach the same conclusion based on the totality of the circumstantial evidence.
C. Impaired Driving
[138] I turn next to assess the evidence of impairment and determining whether the Crown has proven beyond a reasonable doubt that Mr. Hayatibahar’s ability to drive a motor vehicle was impaired at the time of the accident.
(i) The Blood Samples
[139] Cst. Barak testified that he observed blood being drawn from Mr. Hayatibahar at the hospital at approximately 10:57 p.m. on August 18, 2019. 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. When challenged in cross-examination, Cst. Barak denied that he made a mistake in noting down the name of the person who drew blood from Mr. Hayatibahar. He explained that he was “pretty sure” he noted the name correctly.
[140] Ms. Presunka, a Registered Nurse at Mackenzie Health hospital, was on shift when Mr. Hayatibahar was brought in for treatment. 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.
[141] 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. Ms. Presunka explained that when blood was drawn from a patient, the usual process would be to draw a curtain to ensure privacy.
[142] Ms. Presunka 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. 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.
[143] Ms. Presunka did not order any bloodwork. She merely assessed Mr. Hayatibahar to determine which area of the hospital was appropriate for him. 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 some interactions with a police officer who was present.
[144] When asked about the process for taking blood, Ms. Presunka explained that any nurse on duty could draw blood and then scan the label into the hospital medical data system. In order to do so, a label would be printed and placed on the vial or vials. The label would be scanned as would the patient’s identification bracelet, which includes the patient’s name, date of birth and OHIP number. Ms. Presunka explained that if the patient’s name did not match the blood vial label, the sample could not be submitted for analysis.
[145] 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 bloodwork known as a “CBC” or “complete blood count” at approximately 2244 or 2245 hours. She also ordered an ethanol test relating to blood-alcohol levels at 2245 hours.
[146] In terms of the ethanol test, 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 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 bloodwork were conveyed to her colleague, Christopher Bari.
[147] Ms. Chen also discussed the process for taking blood samples. She explained that she would place the order for bloodwork on the hospital computer system. A label would then be created on the system. The next step would involve scanning the patient’s information which would be contained on the patient’s armband and then scanning the label. The label would then be placed on the vial with the sample taken from the patient and the vial would then be submitted for analysis.
[148] Christopher Bari was also on duty on August 18, 2019 at the Mackenzie Health hospital. He had some recollection of the events of the evening and also refreshed his memory using the medical charts. He explained that he would have been involved in documenting entries in Mr. Hayatibahar’s charts. He confirmed that blood was drawn from Mr. Hayatibahar but he could not recall who drew the blood. He explained that the “documenter” would not necessarily be the person who drew the blood. While he had a passing recollection of actually seeing the blood being drawn, he was not certain and eventually agreed that he could not recall seeing the blood being drawn. He explained that any of the nurses on duty could have drawn the blood, and that the person who scanned the blood sample into the system may not be the person who actually drew the blood. Mr. Bari explained that lab results normally are entered straight into the hospital’s medical data system. In this case, he received the bloodwork results by telephone from the lab. Prior to conveying the lab result to him, the lab technician would have confirmed that he was the nurse looking after the specific patient.
[149] While at the hospital on August 19, 2019, 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.
[150] 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.
(ii) Expert Evidence
[151] Dr. Nathalie Desrosiers, a forensic scientist with the toxicology unit of the Centre of Forensic Sciences, analyzed a sample of blood taken by the hospital. The sample she analyzed was logged as CFS Item #3, and described as “hospital blood 2ml from HAYATIBAHAR, FEREIDON (19C-230H0328.1) collected on aug 18, 2019 22:45, lavender top”. The result of the testing on this sample revealed an ethanol concentration of 178 mg/ml +/- 3mg/100ml.
[152] Karryn Wall, a forensic scientist with the toxicology unit of the Centre of Forensic Sciences, also prepared a report and gave testimony “reading back” the blood sample tested by Dr. Desrosiers and the plasma/serum portion of the blood sample tested at the hospital. In order to do this Ms. Wall noted that the blood samples were taken at 10:57 p.m., and she then used a time of driving of approximately 9:20-9:27 p.m., which roughly captures the time of the accident.
[153] Ms. Wall explained that the plasma/serum tested at the hospital had an alcohol concentration of 45.4 mmol/L, which would be equivalent to a blood alcohol concentration of 180 mg/100ml. Reading this result back to 9:20 p.m. to 9:27 p.m., Ms. Wall opined that Mr. Hayatibahar’s blood alcohol concentration would have been between 180 to 212 mg/100ml.
[154] When Ms. Wall examined the sample tested by Dr. Desrosiers, she opined that Mr. Hayatibahar’s blood-alcohol concentration at the time of driving would have been between 178 to 210mg/100ml of blood.
[155] Ms. Wall explained that these projected ranges were dependent on the following factors:
a. A rate of elimination ranging from 10 to 20 mg/100 ml per hour;
b. Allowance for a plateau of up to two hours;
c. No consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident; and,
d. No consumption of alcoholic beverages after the incident and before the sample collection.
[156] On the issue of impairment, Ms. Wall opined that based on her review of relevant scientific literature, impairment with respect to driving becomes significant at a blood alcohol concentration of 50 mg/100ml and increases from then onward. She further noted that impairment could occur in the absence of visible signs of intoxication. She concluded that an individual with the projected ranges of blood alcohol concentration would be impaired in their ability to operate a motor vehicle.
[157] In her viva voce evidence, Ms. Wall was asked some hypothetical questions about how many alcoholic drinks would need to be consumed in order to have the noted low end of the projected range of blood/alcohol concentration. Based on assumed weights of 150 lbs, 160 lbs and 170 lbs, Ms. Wall opined that the hypothetical person would need to consume between 6 and 6¾ standard drinks. In cross-examination, Ms. Wall was presented with a hypothetical of a male having consumed either five or six standard drinks by 6:00 p.m. and was asked to opine on what that individual’s blood alcohol concentration would have been at 9:30 p.m. She opined that with five drinks, the blood alcohol concentration would be between 64 and 117 mg/100ml and that with six drinks it would be between 90 and 147 mgs/100 ml. She opined that in any of these scenarios, the person’s ability to drive would be impaired by the effects of alcohol.
[158] Ms. Wall was asked about the standard size of drink, particularly “shots” and she explained that a “shot” is typically 1.5 ounces of 40% alcohol. She agreed that 1 ounce could be considered a “shot”, and when asked to calculate the earlier hypothetical using five or six one-ounce shots, she opined that the individual’s blood alcohol concentration would be between 19 and 66 mgs/100 ml for five shots and 37-86 mgs/100 ml for six shots.
(iii) Other Evidence of Impairment
[159] A number of witnesses testified about their involvement with Mr. Hayatibahar shortly after the accident, during transport to the hospital and then at the hospital. These witnesses were asked about their observations of signs of impairment on Mr. Hayatibahar.
[160] When Cst. McWatters initially approached Mr. Hayatibahar and Mr. Riazi, he noted an “overwhelming” smell of alcohol and formed the opinion that they were both impaired and had alcohol in their body. Once at the hospital, he made further observations of Mr. Hayatibahar noting that he appeared “extremely intoxicated” with an extremely strong smell of alcohol. He explained that he could smell the alcohol from a distance of 12 feet away. He noted that Mr. Hayatibahar was extremely incoherent, slurring his words, was at times passed out and snoring. He observed that Mr. Hayatibahar was yelling at everyone and had urinated himself. He noted that Mr. Hayatibahar had to be restrained to his bed by hospital staff.
[161] Cst. Barak initially approached Mr. Hayatibahar when Mr. Hayatibahar was speaking with firefighters. He noted that Mr. Hayatibahar had bloodshot eyes and smelled of alcohol. He observed that his eyes would roll back in his head, and he was slurring his words and not making sense.[^1] Cst. Barak formed the belief that Mr. Hayatibahar was “obviously drunk.” Cst. Barak also accompanied Mr. Hayatibahar in the ambulance to hospital. While in the ambulance, he noted a smell of alcohol on his breath. Mr. Hayatibahar kept dozing off and was slurring his words. While at the hospital, Cst. Barak observed Mr. Hayatibahar become agitated after he was triaged and eventually had to be restrained to his bed.
[162] Cst. Ahmadi attended at the MacKenzie Health hospital at approximately 11:36 p.m. He was tasked with assisting with rights to counsel. He speaks Farsi, as does Mr. Hayatibahar. While speaking with Mr. Hayatibahar, he noted a strong smell of alcohol. He also noted that Mr. Hayatibahar was agitated, was not making sense and started yelling and shouting in both English and Farsi. He did not observe any slurring. Hospital staff had placed him in restraints and later administered a sedative, and he was unconscious by approximately 11:40 p.m.
[163] Cst. Di Lorenzi made some observations of Mr. Hayatibahar and Mr. Riazi at the scene. She noted a smell of alcohol coming from Mr. Riazi but did not note it coming from Mr. Hayatibahar, though he was further away from her during their interactions at the scene.
[164] Dr. Ping Fu, a physician who treated Mr. Hayatibahar in the emergency room, noted a smell of alcohol and described Mr. Hayatibahar as intoxicated. He based this conclusion on the smell of alcohol and the fact that Mr. Hayatibahar was agitated and uncooperative. In cross-examination, he agreed that his conclusion on intoxication was also based on the lab results of ethanol testing that were conveyed to him shortly after midnight.
[165] Dr. Nomigolzar had some interactions with both Mr. Hayatibahar and Mr. Riazi while administering first aid. He spoke with Mr. Hayatibahar in Farsi. While he did not specifically ask Mr. Hayatibahar if he had been drinking, Mr. Hayatibahar stated “we drank” as Dr. Nomigolzar was evaluating his condition. He did not smell alcohol on either Mr. Riazi or Mr. Hayatibahar.
[166] Mr. Riazi could not specifically recall whether Mr. Hayatibahar was drinking or how much he consumed while at the water park. Mr. Riazi also revealed that further alcohol was consumed at the parking lot of the McDonald’s shortly prior to the accident. He explained that he had “a snapshot” recollection of Mr. Hayatibahar drinking at the McDonald’s, though he could not recall the specifics of who drank and how much was consumed. Mr. Riazi did not view Mr. Hayatibahar’s condition as impaired.
(iv) Analysis and Findings on Impairment
[167] I am satisfied beyond a reasonable doubt that at the time of the accident, Mr. Hayatibahar’s ability to drive was impaired by the effects of alcohol. I reach this conclusion for the following reasons:
a. I am satisfied that Mr. Hayatibahar’s blood was taken by a nurse at the MacKenzie Health hospital. I accept Cst. Barak’s evidence that he directly observed the taking of the blood. While I accept that the procedure of taking blood is conducted in a fashion that respects a person’s privacy, I find that Cst. Barak would have been in a position to make this observation as Mr. Hayatibahar was in his custody at the time and they would have been in close proximity in the Emergency Room area of the hospital.
b. I also accept Cst. Barak’s evidence that he asked the nurse whom he believed took the blood her name and was given Ms. Presunka’s name. That said, I also accept Ms. Presunka’s evidence that she did not take the blood herself. Cst. Barak may well have asked Ms. Presunka for her name believing she was the person who drew the blood. Ms. Presunka may be honestly mistaken on whether she drew the blood. Another nurse may have given Ms. Presunka’s name. Ultimately, the confusion on this issue does not leave me concerned about the provenance of the blood that was tested. I accept the evidence of Ms. Chen and Ms. Presunka about the process for ordering, labeling and submitting blood samples. I further accept Ms. Presunka’s evidence that the process for taking and logging blood samples for testing requires that the patient’s identification bracelet matches the sample. That was done in this case as one of the blood samples was accepted for testing at the hospital. As such, I am satisfied that the blood sample that was submitted for testing was a blood sample that was drawn from Mr. Hayatibahar. I am also satisfied that the remaining samples, later obtained by police through a warrant, were also taken from Mr. Hayatibahar. These blood samples were drawn at the same time as the blood sample tested at the hospital. The vial numbers were obtained by Det. Cst. Rosilius the following day and the samples eventually obtained had Mr. Hayatibahar’s name on them. The photos of the vials provide additional circumstantial evidence in this regard.
c. The continuity of the blood sample sent from the hospital to the Centre of Forensic Sciences is admitted from the time the samples left the hospital.
d. Taken together, I am satisfied that the blood tested at the hospital and the blood tested at the Centre of Forensic Sciences is Mr. Hayatibahar’s blood. Based on the blood analysis and the “read back” evidence of Ms. Wall, I am satisfied that Mr. Hayatibahar would have had a blood-alcohol concentration of at least 170mgs/100 ml of blood at the time of driving. I note that there is no serious challenge to the assumptions that underly the expert’s opinion in this regard. While there is some evidence that Mr. Hayatibahar may have consumed an unknown quantity of alcohol in the parking lot of the McDonald’s, there is no suggestion that this amount would constitute bolus drinking.
e. While some hypothetical drinking patterns were put to Ms. Wall in cross- examination, none of the hypothetical patterns were supported by the evidence. As such, there is no evidence on which I could either conclude or have a reasonable doubt about the blood alcohol concentration at the time of driving.
f. Based on the uncontradicted expert opinion evidence, a person with a blood alcohol concentration of at least 170 mgs/100 ml of blood would have an impaired ability to operate a motor vehicle.
g. Even in the absence of the blood analysis and expert evidence, the evidence of the accident itself coupled with observations of the various first responders also provide a sufficient evidentiary basis for concluding that Mr. Hayatibahar’s ability to drive a motor vehicle was impaired at the time of driving. I note that Mr. Hayatibahar lost control of the vehicle while driving at incredibly high speeds. Several of the first responders noted indicia of impairment, such as a smell of alcohol, glossy eyes and slurred speech. Once at the hospital, Mr. Hayatibahar’s demeanour decompensated and he became aggressive and belligerent. I accept that some of the observed indicia could have alternate explanations. For example, Mr. Hayatibahar’s slurred speech could be related to the fact that he spoke very little English. His decompensation once at the hospital could be related to his frustration over his lack of ability to communicate with his brother. Lastly, his glassy eyes could be related to the deployment of the air bags in the Mercedes. It is also possible that the very violent nature of the collision also contributed to his presentation before the first responders and at hospital. However, when all the observed indicia are viewed cumulatively in concert with the nature of the driving leading up to the accident, a finding that Mr. Hayatibahar’s ability to drive was impaired by alcohol is the only reasonable conclusion. I do not find that the failure of certain witnesses to note a smell of alcohol undermines this finding.
D. Criminal Negligence Versus Dangerous Driving
[168] The defence fairly concedes that the Crown has proven dangerous driving. In other words, the defence accepts that at the time of the accident, the driving constituted a marked departure from that expected of a reasonable person in the circumstances. The remaining issue is whether the Crown has proven that the driving is a “marked and substantial” departure from that expected of a reasonable person in the circumstances.
[169] When I consider the evidence as a whole, I am readily satisfied beyond a reasonable doubt that the driving amounted to a marked and substantial departure from that expected of a reasonable person in the circumstances.
[170] Mr. Hayatibahar was driving an unfamiliar vehicle on Yonge Street at night while there were a number of other cars on the road. He had a blood alcohol concentration more than double the legal limit. His ability to drive was manifestly impaired.
[171] Mr. Hayatibahar was also driving at an incredible rate of speed. I am satisfied that as the vehicle was initially headed northbound on Yonge Street prior to the accident, it reached speeds of 146-163 km/h. I am satisfied that on the return trip back down Yonge Street, the Mercedes was again being driven at a very high rate of speed. The speedometer of the Mercedes was stuck at approximately 168 km/h According to Cst. Kucan, the expert accident reconstructionist, the speedometer is likely stuck at the speed at which the vehicle was travelling when power was lost.
[172] I am not prepared to find that the acceleration to a very high rate of speed was a momentary or singular event. I find that the Mercedes was being driven at high speeds for a prolonged period of time. This driving occurred during the trip northbound to drop off the passenger and resumed on the return trip. The distance from the McDonald’s to the Persian supermarket was estimated at five or six kilometres. I also accept that the Mercedes was dodging cars that would have been travelling on the roadway at normal speeds. I find that the Mercedes eventually crossed over into oncoming traffic and caused the tragic accident.
[173] When this evidence is viewed cumulatively, there can be no doubt that the vehicle was driven in a criminally negligent manner.
VI. Conclusion
[174] I am satisfied beyond a reasonable doubt that the defendant, Fareidon Hayatibahar, was the driver of the Mercedes at the time it crossed the centre line of Yonge Street and collided with the victims’ vehicles.
[175] I am further satisfied beyond a reasonable doubt that at the time of the accident his ability to operate a motor vehicle was impaired by the consumption of alcohol.
[176] Lastly, I am satisfied that his operation of the Mercedes was criminally negligent, and further that it caused the death of Peyman Masoomi Fard and bodily harm to Nanzin Amiri, Alireza Masoomi Fard and Malihe Ardekani.
[177] As a result, I find Mr. Hayatibahar guilty on all counts.
[178] I remain grateful to counsel for most capably, cooperatively, and efficiently presenting the evidence and the complex legal issues involved in this challenging and tragic case.
J. Di Luca J.
Released: June 21, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
FAREIDON HAYATIBAHAR
Defendant
Reasons for judgment
The Honourable Justice J. Di Luca
Released: June 21, 2022
[^1]: In accordance with the ruling on the Charter application, I have not considered the utterances and gestures made by Mr. Hayatibahar to Cst. Barak between the time when Cst. Barak was directed to arrest Mr. Hayatibahar and the time of Mr. Hayatibahar’s actual arrest, see R. v. Hayatibahar, 2022 ONSC 1281.