Law Times

Law Times • June 8, 2015 Page 5 www.lawtimesnews.com Judge sends warning about holding non-citizens in custody BY GLENN KAUTH Law Times n 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 To- ronto for several years. "The Criminal Code does not allow for that distinction," says Margaux Peck, the Toronto lawyer who represented the defendant in R. v. Sabatini. In a ruling last month, Ontario Court Justice Mara Greene took issue with the police practice of holding non-citizens in custody on charges where they would normally release them. "The fact of being an American citizen is not an automatic bar to release from the station," wrote Ontario Court Justice Mara Greene in Sabatini, a case involving a charge of driving with more than 80 milligrams of alcohol in 100 millilitres of blood against Cara Sabatini. As part of her consideration of wheth- er police actions had breached the s. 9 protection in the Charter of Rights and Freedoms against arbitrary detention, Greene looked at the provisions for re- lease under s. 498 of the Criminal Code. It provides that if someone isn't ordinar- ily resident in the province or doesn't re- side 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 Oc- tober 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. In- stead of releasing her from the station, police placed her in a cell next to some- one "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. "There seems to be a misunderstand- ing by the officers of what the law is," says Peck, who notes the law doesn't bar non- residents from release and points out her client actually lived very close to the po- lice station. One officer testified that his under- standing was there was a Toronto police policy to hold anyone who's not a Cana- dian 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 re- leasing someone. "The officers in the case at bar did not consider these factors," she wrote. "In fact the officers did not even discuss Ms. Sabatini's long standing resi- dence in Toronto or whether or not this person, with no criminal record, would attend court. I therefore find that when Ms. Sabatini was held for a show cause hearing, entirely because she is an Ameri- can citizen who was ordinarily a resident of Toronto, her section 9 rights were vio- lated. 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 shenani- gans," says Adler, a partner at Adler Byten- sky Prutschi Shikhman who represented a Montreal resident in R. v. Doyon earlier this year and 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 whether to grant a stay of the proceedings in Sabatini, Greene found that the personal prejudice suf- fered by the defendants in other cases where police had improperly failed to release them was greater than in Saba- tini'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 re- lates 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 hear- ing because the police improperly under- stood section 498 of the Criminal Code." Noting the concern about "a systemic training issue that impacts individual's liberty," Greene granted the stay. "Bal- ancing all these factors, I am satisfied this is one of the clearest of cases where a stay should be granted," she wrote. Toronto police didn't respond to a re- quest for comment last week. LT NEWS Untitled-2 1 2015-01-06 8:56 AM I 'There seems to be a misunderstanding by the officers of what the law is,' says Margaux Peck.

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