Court File and Parties

COURT FILE NO.: CR-19-00010705 DATE: 20220909

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

FAREIDON HAYATIBAHAR Defendant

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

HEARD: August 2, 2022

REASONS FOR SENTENCE

DI LUCA J.:

[1] This is a case that, once again, vividly demonstrates the tragic and entirely avoidable consequences of drunk driving. It is also a case that, once again, places the court in the difficult position of determining a fit sentence that strikes the right balance between the circumstances of the offence and the circumstances of the offender.

[2] The recipe for this needless tragedy involved a young man with lots of bravado but no driver’s licence, a blood-alcohol concentration over twice the legal limit, and a powerful motor vehicle driven at what can only be described as “crazy” speeds.

[3] On August 18, 2019, Fereidon Hayatibahar and Farbod Riazi spent the day together at a water park. Alcohol was consumed. They travelled from the water park to a McDonald’s in Richmond Hill. They were in a Mercedes SUV belonging to Mr. Riazi’s mother. During this trip, Mr. Riazi drove the vehicle and Mr. Hayatibahar was a passenger. Mr. Riazi drove the vehicle at very high speeds which likely set the tone for the events that followed.

[4] While at the McDonald’s, Mr. Hayatibahar and Mr. Riazi decided to drive to a nearby location to drop off a friend. Mr. Hayatibahar drove the vehicle at this time. Mr. Hayatibahar was drunk. He drove at speeds up to approximately 170 km/h on Yonge Street. Predictably and tragically, he lost control of the vehicle and swerved into oncoming traffic colliding with three other vehicles.

[5] The resulting collision was, in a word, catastrophic. The debris field of the collision was massive. The engine and transmission of the Mercedes SUV were flung from the vehicle and found hundreds of metres down the road. Despite the passage of time, more than one of the investigating police officers struggled with emotions as they recounted their observations before the court.

[6] Peyman Masoomi Fard was the driver of the second vehicle struck. He suffered absolutely gruesome injuries and died at the scene of the crash. His wife, Nazanin Amiri, and his young son Alireza Masoomi Fard, suffered significant injuries as a result of the crash but miraculously survived. Their lives have been figuratively and literally demolished by Mr. Hayatibahar.

[7] 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. Her injuries continue to have significant impacts on her health and enjoyment of life.

[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] Following a judge alone trial, I found Mr. Hayatibahar guilty of Criminal Negligence Cause Death, Criminal Negligence Cause Bodily Harm x3, Impaired Driving Cause Death, and Impaired Driving Cause Bodily Harm x3.

[10] Mr. Hayatibahar is now before me for sentencing. The Crown seeks a sentence of 10 years in prison less credit for time served. The Crown also seeks a 20 year driving prohibition as well as several ancillary orders. The defence seeks a sentence of 5 to 6 years, less credit for time served and restrictive bail conditions. The defence also seeks a driving prohibition in the range of 8 to10 years.

The Circumstances of the Offender

[11] Mr. Hayatibahar is now 22 years of age. He was 19 years old at the time of the offences. He is a Landed Immigrant and will likely be subject to a removal order once Immigration authorities address his status in view of these convictions. He came to Canada from Iran in November or December of 2018, with his elder brother and sister. He has since been joined by other family members, including his parents.

[12] Mr. Hayatibahar has no criminal record in Canada or elsewhere. He also has no record of Highway Traffic Act offences, though he is not a licensed driver.

[13] His parents and siblings describe him as dependable, honest, responsible and courteous. They explain that he is a pro-social person who has many friends and loves to interact with people. They note that he has expressed remorse for consuming alcohol on the evening of the offences and for being in a car with Mr. Riazi when both had been drinking.

[14] Mr. Hayatibahar has held employment at a pizza restaurant, a moulding company and a grocery store. All of his employers describe him in positive terms as a hard worker who cares about others and is sharp, honest and creative.

[15] Friends and colleagues also describe Mr. Hayatibahar in positive terms as kind, caring and loyal. One colleague notes that Mr. Hayatibahar served as a volunteer at a COVID site during the pandemic.

[16] In terms of pre-trial custody, Mr. Hayatibahar served four days prior to being initially admitted to bail. On June 30, 2022, he was arrested for an alleged breach of bail and he has been in custody since that date, for an additional 71 days. The total pre-sentence custody is therefore 75 days, which will be credited at a rate of 1.5 to 1 for a deduction of 113 days.

[17] In terms of time spent on restrictive bail conditions, Mr. Hayatibahar was on a house arrest bail for 1,041 days. The bail order permitted him to be outside of his residence for work, medical appointments or in the company of one of his sureties. No evidence about the particular impact of the bail conditions on Mr. Hayatibahar was called during sentencing hearing.

[18] In considering whether a Downes credit is appropriate, I must consider the specific impact that the restrictive bail conditions had on Mr. Hayatibahar. On this issue, despite the absence of direct evidence, I am prepared to infer that Mr. Hayatibahar was subject to a significant deprivation of liberty based on the restrictive bail conditions that have been in place for a very long period of time.

[19] The defence submits that Mr. Hayatibahar should get 10 months credit for the time spent on restrictive bail conditions. The Crown argues that it would not be unreasonable to deny credit in this case in view of the fact that Mr. Hayatibahar was permitted to work unsupervised and was also permitted to remain in his residence unsupervised.

[20] The determination of an appropriate degree of mitigation for restrictive bail conditions is discretionary. There is no fixed mathematical formula and the “credit” to be applied may simply be reflected as a mitigating factor on sentence rather than a fixed credit, see R. v. Joseph, 2020 ONCA 733 at para. 108 and R. v. C.C., 2021 ONCA 600 at paras. 4-5.

[21] The absence of direct evidence about the impact of the bail conditions on Mr. Hayatibahar makes it difficult to determine the degree of mitigation that is warranted. Nonetheless, given his age, the nature of the conditions imposed and the length of time under those conditions, I am prepared to infer that the bail conditions would have had some impact on him warranting credit or mitigation in the sentencing process. As such, I am prepared to grant six months (180 days) credit for the period of time when Mr. Hayatibahar was on strict bail conditions.

The Circumstances of the Offence

[22] I have set out the circumstances of the offence in significant detail in my Reasons for Judgment. I will not repeat them here other than to note the following:

a. Following a day of fun and alcohol at a water park, Mr. Hayatibahar, Mr. Riazi and other friends met at a McDonald’s in Richmond Hill. Mr. Riazi drove to the McDonald’s from the water park in his mother’s Mercedes SUV. He drove at very high speeds along a number of roads and highways.

b. Once at the McDonald’s, Mr. Hayatibahar and Mr. Riazi decided to take a drive to drop off a female companion. Mr. Hayatibahar drove the vehicle during this portion of the events. The vehicle exited the McDonald’s parking lot and drove north on Yonge Street reaching speeds of between 146 to 163 km/h.

c. The female passenger was dropped off a location several kilometres north of the McDonald’s. On the return trip, Mr. Hayatibahar reached speeds of approximately 170 km/h. He was dodging cars that were travelling at normal speeds.

d. The accident occurred at approximately 9:30 p.m. on Yonge Street near Townwood Drive in Richmond Hill. Mr. Hayatibahar lost control of the vehicle and swerved into the northbound lanes of Yonge Street, where he side-swiped one vehicle and hit a second vehicle head on. Debris from this initial collision also struck a third vehicle.

e. At the time of the accident, Mr. Hayatibahar had a blood-alcohol concentration of at least 170 mgs of alcohol in 100 mls of blood. First responders noted obvious signs of impairment. Further signs of impairment were observed when Mr. Hayatibahar was taken to hospital. Mr. Hayatibahar’s ability to operate a motor vehicle was manifestly impaired.

Injuries to the Victims and Related Victim Impact Statements

[23] Peyman Masoomi Fard died at the scene. He was 44 years of age at the time of the collision. He suffered gruesome injuries. The only saving grace is that he appears to have died quickly and did not unduly suffer.

[24] His wife, Nazanin Amiri who was 41 years old at the time of the collision, suffered the following injuries, some of which required surgery:

a. Multiple open fractures to her left hand;

b. Fractures to a rib, two bones in her left forearm, both feet, sacrum and nasal bone;

c. Contusions to her lungs and chest; and,

d. Lacerations to her eyelid and face.

[25] Mr. Masoomi Fard’s son, Alireza, who was 12 years old at the time of the collision, suffered the following injuries, some of which also required surgery:

a. Fractured sternum, forearm and multiple ribs;

b. Lung contusion;

c. Injured spinal ligaments; and,

d. Lacerated pancreas.

[26] Malihe Ardekhani, who was 65 years old at the time of the collision, suffered multiple face and neck lacerations due to broken glass. She also had a broken tooth and multiple foreign bodies in her skin and tissue.

[27] In addition, all three victims, but particularly Nazanin Amiri and Alireza Masoomi-Fard have suffered significant psychological trauma that may never heal.

[28] In terms of Victim Impact Statements, I received the joint statement of Nazanin Amiri and Alireza Masoomi Fard which included moving photos of Peyman Masoomi Fard, as well as photos of the injuries suffered. I also received a joint statement prepared by a large number of Mr. Masoomi Fard’s extended family, one prepared by his brother-in-law Mohammad Reza Amiri and one prepared by his close friend, Alireza Yaesubi.

[29] In addition, Ms. Malihe Ardekani filed a Victim Impact Statement as did PC Jeff Gourevitch, who was one of the first police officers on scene.

[30] The Victim Impact Statements reveal that Mr. Masoomi Fard’s family came to Canada from Iran in 2018. Like many immigrants, they came to Canada looking for a better life and with plans for great success. Mr. Masoomi Fard was an accomplished and experienced engineer who found employment at Magna. Ms. Amiri was working as a rehabilitation physiotherapist and was also continuing her education. Through hard work, they managed to buy a home and had plans to renovate and build a dream home. They were on the cusp of achieving their life goals.

[31] The loss of Mr. Masoomi Fard has been devastating to the immediate and extended family. The pain they feel is tangible, real and heartfelt. Ms. Amiri and her son Alireza have been shattered both physically and emotionally. While it appears that they have recovered from most of their physical injuries, I have absolutely no doubt that the emotional consequences of these offences will last a lifetime.

[32] From the material before me, I can readily see that Mr. Masoomi Fard was a special person, a dedicated husband and father who wanted the best for his family and a loyal and supportive friend to many. It is simply tragic that his family must carry on without him. To his family and friends, he is irreplaceable.

[33] I also note that the loss extends beyond emotional devastation. While Ms. Amiri was recovering from her significant injuries, she was unable to maintain the family home. It had to be sold at a significant loss. She also had to sell furniture and appliances in order to make ends meet. She eventually moved into a rented apartment and has been receiving financial assistance from her brother.

[34] In terms of Ms. Ardekani, I note that in her Victim Impact Statement, she describes how her injuries have affected her enjoyment of life. To this day, she suffers from pain and is limited in the activities she can undertake, including activities with her grandson. She explains that she used to have a strong personality, but now feels weak. She has lost her self-confidence and feels like she is no longer the person she once was.

[35] Lastly, I note that in PC Gourevitch’s Victim Impact Statement, he relates how the trauma of the scene remains with him to this day. He describes how he will forever live with the images of the child as he was doing CPR on the father. We demand a lot from our first responders, and it is important to recognize that the trauma they are routinely exposed to, affects them much as it affects persons from all walks of life. Simply stated, they are not immune.

The Principles of Sentencing

[36] The objectives of sentencing long recognized at common law have been codified in s. 718 of the Criminal Code. They are: the denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.

[37] Section 718.1 sets out the principle of proportionality in sentencing. It provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 enumerates a number of other sentencing principles. In particular, it provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances relating to the offence or the offender. Section 718.2 also requires that there be parity in sentencing. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[38] In cases of alcohol related driving offences, particularly where death and significant injury is involved, denunciation and general deterrence are the paramount sentencing objectives, see R. v. McVeigh (1985), 1985 CanLII 115 (ON CA), 22 C.C.C. (3d) 145 (Ont. C.A.), R. v. Lacasse, 2015 SCC 64 at para. 73 and R. v. Ramage, 2010 ONCA 488 at paras. 74-75. Denunciation refers to the communication of society's condemnation of the conduct. General deterrence refers to the sending of a message to discourage others who might be inclined to engage in similar conduct in the future. The decisions cited make the important point that these types of offences are often committed by ordinarily law-abiding people who are the most likely to be deterred by the threat of significant penalties.

[39] In terms of the range of sentence, both counsel have provided helpful casebooks which canvass the broad range of cases involving alcohol related driving offences resulting in death and bodily harm. I draw significant guidance from these cases, particularly the review of case law found in R. v. Robertson, 2022 ONCJ 240 at paras. 79-97 and the discussion and analysis in R. v. Muzzo, 2016 ONSC 2068 at paras. 63-69.

[40] I also draw direction from R. v. Altiman, 2019 ONCA 511, wherein Brown J.A. canvassed the range of sentences for these types of offence and stated as follows:

[49] An offender’s level of moral blameworthiness for impaired driving causing death will vary significantly depending on the aggravating and mitigating factors in any given case. As a result, the sentencing range for these offences is quite broad – from low penitentiary sentences of two or three years to more substantial penitentiary sentences of eight to ten years – because courts recognize that they cover a broad spectrum of offenders and circumstances: Suter, at para. 27.

[41] After canvassing appellate and trial level sentencing jurisprudence, Brown J.A. provided the following summary:

[70] This review of the case law leads me to conclude that, since the turn of the decade, in this province sentences for impaired driving causing death typically have fallen in the four to six year range, unless the offender has a prior criminal or driving offence record. Where he does, lengthier sentences have been imposed, ranging from seven and one-half to twelve years. In Lacasse, a case coming out of Quebec, the Supreme Court upheld a sentence of six and one-half years for impaired driving causing the death of two passengers, even though the offender had been convicted three times for speeding: at para. 80.

[71] While these have been the lengths of sentences imposed in practice by Ontario courts over the past decade, it remains the case that this court has not defined a formal range for such sentences in light of the infinite variety of circumstances in which the offence can be committed: Junkert, at para. 40.

[72] That said, I would observe at this point that the 10 year sentence imposed on Mr. Altiman corresponds in length to sentences previously imposed on offenders who had a criminal or driving offence record, which Mr. Altiman did not have.

[42] I note that in Altiman, the offender, who was Indigenous, had pleaded guilty to the offences, had demonstrated “extreme remorse” and was a hard-working father of three young children. Mr. Altiman ran a red light at high speed while heavily intoxicated. Two victims died and two suffered severe injuries. He was sentenced to 10 years in prison at first instance, but that was reduced to 7 years on appeal.

[43] I also note that in R. v. Kummer, 2011 ONCA 39, the Court rejected the argument that the sentences imposed in Ramage (4 years) and R. v. Junkert, 2010 ONCA 549 (5 years), established the high end or “cap” on the range of sentence. The Court noted that sentences in excess of those imposed in Ramage and Junkert had been imposed and upheld on appeal in other cases.

[44] Indeed in Kummer, the offender received a sentence of 8 years following a guilty plea of dangerous and impaired driving cause death x3 and dangerous and impaired driving cause bodily harm x2. He had no criminal record, but had a Highway Traffic Act record for careless driving and failing to report an accident. In upholding the 8 year sentence, the Court of Appeal held that there was “good reason” to move beyond the sentences imposed in Ramage and Junkert, based on the number of deaths and the prior driving record.

[45] While the courts have refrained from setting a narrow range, the sentences for impaired driving causing death offences have increased over the past 20 years, see Altiman, at para. 51 and R. v. Ashton, 2021 ONSC 3994 at para. 37. In R. v. Fracassi, 2017 ONSC 28, Boswell J. aptly captured the reason behind this upward shift at para. 54:

The reality is that the message about the dangers of impaired driving has been repeated, loudly and clearly, for decades now. For those who continue to ignore a message they have heard for most of their lives, moral blameworthiness is increased, just as societal tolerance is decreased.

Aggravating and Mitigating Factors

[46] I turn next to the aggravating and mitigating factors. I find the following factors to be aggravating:

a. A blood-alcohol concentration of 170 mgs of alcohol in 100 mls of blood, which is well in excess of the level required for statutory aggravation under s. 320.22(f) of the Code and more than double the legal limit.

b. The commission of the offence resulted in death and bodily harm to multiple victims which is a statutory aggravating factor under s. 320.22(a) of the Code. One of the victims was a child who was present when his father died and could not be comforted by his mother, who was pinned in the car and badly injured.

c. Mr. Hayatibahar did not have a driver’s licence and was driving an unfamiliar vehicle. Section 320.22(g) of the Code creates a statutory aggravating factor in instances where offender “was not permitted, under a federal or provincial Act, to operate the conveyance.” I interpret the phrase “was not permitted” to be broad enough to capture instances where an offender has no driver’s licence. While it is not as aggravating as instances where an offender is subject to a prohibition order or licence suspension, it remains appropriately aggravating that at the time of the offence, Mr. Hayatibahar had not achieved the minimum provincial qualifications for operating a motor vehicle.

d. The prolonged nature of the driving and the speeds involved. On this issue, I note that Mr. Hayatibahar drove the vehicle for kilometres in two different directions at very high speeds while dodging traffic. This was not a momentary lapse in judgment. This was a prolonged display of criminally negligent driving while impaired.

e. The nature and extent of the injuries, both physical and emotional, suffered by the victims, particularly Mr. Masoomi Fard’s wife and child.

[47] I find the following factors to be mitigating:

a. Mr. Hayatibahar is a young man. He committed these offences when he was only 19 years of age. He is now 22 years old.

b. Mr. Hayatibahar has no criminal record and no record of Highway Traffic Act offences.

c. Mr. Hayatibahar has strong family support and a positive peer group.

d. While Mr. Hayatibahar has not accepted responsibility for the offences, he has expressed some limited remorse for consuming alcohol and being in a vehicle with Mr. Riazi who had also consumed alcohol. The degree to which Mr. Hayatibahar has accepted responsibility mitigates his sentence as it demonstrates rehabilitative potential. In this instance, the degree of mitigation is modest at best. However, and to be clear, Mr. Hayatibahar is not to be punished for denying the offences and having a trial. His failure to accept responsibility for these offences does not aggravate his sentence.

e. Mr. Hayatibahar’s immigration status means that he will likely be removed from Canada once he is released from prison.

f. While Mr. Hayatibahar’s degree of moral blameworthiness is very high, I find it is moderated to a degree by Mr. Riazi’s conduct. Mr. Riazi drove the vehicle at very high speeds with periods of rapid acceleration after leaving the water park and after having consumed alcohol. This conduct likely set the tone for Mr. Hayatibahar’s later driving. This is not an instance where Mr. Riazi acted with responsibility either during his operation of the vehicle or when he handed the keys over to Mr. Hayatibahar. I reject Mr. Riazi’s evidence that he essentially “blacked out” and did not notice the speed Mr. Hayatibahar was driving at until the final moments of the fatal drive. The reality is that Mr. Riazi knew exactly what was happening. It would have been obvious to anyone in the car during the trip northbound on Yonge Street, and more particularly southbound. While there is no direct evidence that Mr. Riazi through his conduct encouraged Mr. Hayatibahar to drive in the manner he did, viewed circumstantially an inference arises that this is likely what happened.

The Appropriate Length of the Sentence

[48] Arriving at an appropriate length of sentence is a very difficult task. Mr. Hayatibahar is a youthful first offender. He has no criminal record and no driving record. These are significant mitigating factors that must be given weight in arriving at a proportionate sentence.

[49] That said, Mr. Hayatibahar’s degree of moral responsibility is extremely high. This was not a momentary lapse of judgment. This was a prolonged course of conduct that ended with an entirely predictable and devastating set of consequences.

[50] The nature of the offence is extremely aggravating and warrants a strong message of denunciation and deterrence. Mr. Hayatibahar, who was unlicensed and driving an unfamiliar vehicle, drove for several kilometres on Yonge Street and reached speeds of 160-170 km/h on both legs of the trip. He was impaired, with a blood-alcohol concentration of more than two times the legal limit. While impaired and travelling at incredibly high speeds, he dodged cars that were travelling at regular speeds. He lost control of the vehicle and tragically caused a death and significant injuries to three people.

[51] I appreciate that the seriousness of comparative cases is often determined by reference to the number of deaths caused or the extent of the injuries. While only one person died in this case, it is simple sheer luck that the passengers in Mr. Masoomi Fard’s vehicle somehow managed to survive. It is also miraculous that others did not die.

[52] In considering the case law, I note that in many cases, the defendants received the significant mitigating benefit of a guilty plea. That is not the case here. That said, I also note in many cases with sentences towards the high single digit and low double digit range, the defendants had prior criminal or related Highway Traffic Act records.

[53] While I must remain cognizant of the parity principle, the sentences imposed in other cases are not intended to act as a “straitjacket”, see R. v. Lacasse, at para. 57 and R. v. Suter, 2018 SCC 34 at para. 27. As well, a sentence will not necessarily be unfit simply because it is higher than other sentences imposed in other cases. Wagner J. (as he then was) explained this point as follows in Lacasse at para. 58:

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case.

[54] When I consider all of the relevant sentencing principles in concert with the circumstances of the offences and the circumstances of the offender, I am satisfied that a proportionate sentence is one of nine years in prison. In my view this is a sentence that appropriately captures the degree of moral blameworthiness, the horrific nature of the offence including the death and injuries, yet also reflects the fact that Mr. Hayatibahar is a young man, with no criminal record and positive rehabilitative prospects.

The Appropriate Length of the Driving Prohibition

[55] In accordance with R. v. Boily, 2022 ONCA 611, no driving prohibition under s. 320.24(4) of the Code can be imposed in relation to the convictions for criminal negligence causing death and bodily harm.

[56] In relation to the conviction for impaired operation of a conveyance causing death, s. 320.24(5)(a) of the Code provides for a driving prohibition of any duration the court considers appropriate, plus the entire period of time to which the offender is sentenced to imprisonment. In relation to the offences of impaired operation of a conveyance causing bodily harm, s. 320.24(5)(b) provides for a driving prohibition no longer than 10 years in length plus the entire period of time to which the offender is sentenced to imprisonment. On this issue, I note that pursuant to s. 320.24(5.1) a driving prohibition order takes effect the day it is imposed. Under the prior sentencing provisions, the driving prohibition commenced only once the offender was released from prison, see R. v. Lacasse at para. 109.

[57] When I consider the prolonged and extremely dangerous nature of the driving in question, including the incredibly high speeds and significantly elevated blood-alcohol concentrations, I am satisfied that a driving prohibition of 18 years is warranted. In my view, while this is a significant driving prohibition, I note that driving is a privilege not a right. Mr. Hayatibahar was an unlicensed driver who killed one person and injured others while impaired. He was driving at incredible speeds for a prolonged period of time. But for his youthful age and the absence of any related criminal or Highway Traffic Act record, this might otherwise have been an appropriate case for an even longer prohibition.

Other Ancillary Orders

[58] Mr. Hayatibahar has been convicted of secondary designated offences. In accordance with s. 487.051(3), I am satisfied that a DNA order is appropriate in the circumstances of this case. While I appreciate that Mr. Hayatibahar has no prior criminal record, the nature of the offences, including the circumstances surrounding the commission of offences, strongly favour the imposition of the order. As well, I have no evidence suggesting that the order will have an unwarranted impact on his privacy or his security of the person.

[59] I also impose a non-communication order under s. 743.21 for the time period when Mr. Hayatibahar is in custody. The order shall prohibit communication with the following persons; Farbod Riazi, Nazanin Amiri, Alireza Masoomi Fard and Malihe Ardekani. The non-communication order will be subject to an exception permitting communication with Farbod Riazi through or in the presence of counsel.

[60] In view of Mr. Hayatibahar’s personal circumstances, I decline to impose a Victim Fine Surcharge.

Conclusion

[61] Mr. Hayatibahar, please stand.

[62] On count 1, which is criminal negligence causing the death of Peyman Masoomi Fard, I sentence you to 9 years in prison.

[63] On count 5, which is impaired operation of a conveyance causing the death of Peyman Masoomi Fard, I sentence you to 9 years in prison to be served concurrently to count 1.

[64] On counts 2, 3, and 4, which are counts of criminal negligence causing bodily harm to Nazanin Amiri, Alireza Masoomi Fard and Malihe Ardekhani, I sentence you to 5 years in prison concurrent on each count and concurrent to count 1.

[65] On counts 6, 7, and 8, which are counts of impaired operation of a conveyance causing bodily harm to Nazanin Amiri, Alireza Masoomi Fard and Malihe Ardekhani, I sentence you to 5 years in prison concurrent on each count and concurrent to count 1.

[66] I also give you credit for pre-trial custody and restrictive bail conditions of 293 days, which leaves a net sentence to be served from today’s date of 2,992 days, or approximately 8 years and 2½ months.

[67] On count 5, which is the charge of impaired operation of a conveyance causing death, I impose a driving prohibition order of 18 years starting from today’s date. On the charges of impaired operation of a conveyance causing bodily harm, I impose a driving prohibition of 9 years starting from today’s date. These prohibition orders shall be concurrent to each other and concurrent to count 5.

[68] I also impose the following ancillary orders: (1) a secondary DNA order and (2) a non-communication order with respect to any of the named victims and also Mr. Farbod Riazi. The non-communication order in relation to Mr. Riazi will be subject to an exception permitting contact through or in the presence of counsel.

[69] Mr. Hayatibahar, the sentence I have imposed on you is a significant one. You are a young man and you will one day be released back into the community. Unlike Mr. Masoomi Fard, you will have a second chance to rebuild your life. I sincerely hope that you acknowledge this fact and that you do everything possible to lead a productive and law-abiding life.

[70] To the members of the families present, neither my words today nor the sentence I impose can bring back Mr. Masoomi Fard. His loss is real and will be forever felt. I sincerely hope you find the strength and fortitude to move forward and heal. I wish you all the best on your healing journey.

J. Di Luca J.

Released: September 9, 2022

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

FAREIDON HAYATIBAHAR Defendant

Reasons for SENTENCE

The Honourable Justice J. Di Luca

Released: September 9, 2022