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Judge sends police warning about holding non-citizens in custody

|Written By Glenn Kauth

In a warning about a police practice of holding non-citizens in custody for bail hearings, an Ontario Court judge has stayed criminal charges against a U.S. woman who had been living in Toronto for several years.

“The fact of being an American citizen is not an automatic bar to release from the station,” wrote Ontario Court Justice Mara Greene in R. v. Sabatini, a case involving a charge of intoxicated driving against C. Sabatini.

As part of her consideration of whether police actions had breached the s. 9 protection in the Charter of Rights and Freedoms against arbitrary detention, Greene looked at the provisions for release under s. 498 of the Criminal Code.

It provides that if the someone isn’t ordinarily resident in the province or doesn’t reside within 200 kilometres of where he or she is in custody, police shall “release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs.”

In Sabatini’s case, she had been living in Toronto for six years and had two jobs and a valid work permit ending in October 2016 when police charged her on March 15, 2014. She had no prior record and wasn’t displaying any overt signs of impairment, according to Greene.

Instead of releasing her from the station, police placed her in a cell next to someone “who was screaming at the top [of] his lungs” for a half hour, Greene noted. When taken to the courthouse the next day, she had to wait for hours next to a backed-up toilet for the court to address her matter.

It’s clear from the case that police had varying perspectives on whether they could release a non-citizen. One officer testified his understanding was there was a Toronto police policy to hold anyone who’s not a Canadian citizen or, as he later clarified, those who aren’t from Ontario. A detective not directly involved with the case, however, testified there was no policy to hold those who are in Toronto on a work permit.

In considering the Charter breach, Greene found the officers had failed to consider the factors under s. 498 for releasing someone.

“In fact the officers did not even discuss Ms. Sabatini’s long standing residence in Toronto or whether or not this person, with no criminal record, would attend court,” wrote the judge. “I therefore find that when Ms. Sabatini was held for a show cause hearing, entirely because she is an American citizen who was ordinarily a resident of Toronto, her section 9 rights were violated. The detention was unlawful and arbitrary.”

Leo Adler, a lawyer who dealt with a similar issue involving a defendant from another province, says he has seen this type of situation arise before.

“Certainly, for drinking and driving offences . . . there’s no room for this type of shenanigans,” says Adler, a partner at Adler Bytensky Prutschi Shikhman who represented a Montreal resident in R. v. Doyon earlier this year.

He considers police actions in these types of cases to be a significant Charter breach.

“Also, as a Canadian, we have one Criminal Code and it doesn’t make sense to subject people to different standards just because they come from different parts of the country,” he adds.

In deciding as to whether to grant a stay of the proceedings in Sabatini, Greene found the personal prejudice suffered by the defendants in other cases where police had improperly failed to release them was greater than in Sabatini’s. However, she did note a significant concern about police practices in regards to the issue in general.

“In the case at bar . . . there is actual evidence of a systemic problem within the police force as it relates to understanding the longstanding laws relating to release,” she wrote.

“In reaching this conclusion, I note that firstly, this is not the first case where a non-citizen has been held for a show cause hearing because the police improperly understood section 498 of the Criminal Code.”

Noting the concern about “a systemic training issue that impacts individual’s liberty,” Greene granted the stay.

“Balancing all these factors, I am satisfied this is one of the clearest of cases where a stay should be granted,” she wrote.


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