R. v. Sabatini, 2015 ONCJ 282

COURT FILE No.: Toronto DATE: 2015-05-06 Citation: R. v. Sabatini , 2015 ONCJ 282 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — CARA SABATINI Before Justice Mara Greene Reasons for Judgment released May 6, 2015 M. Sherwood…………………..……………………………………… for the Crown M. Peck…………………………………..…………………….…...for Cara Sabatini Greene, J: Introduction [ 1 ] On March 15, 2014, Ms. Sabatini was charged with impaired driving and with driving while having over 80 mg of alcohol in 100ml of blood. The charges related to her driving her motor vehicle after attending a party on this same date.

At the close of the trial, Crown counsel invited me to find Ms. Sabatini not guilty on the charge of impaired driving as there was insufficient evidence that her ability to operate a motor vehicle was in fact impaired by alcohol on the day in question. In relation to the remaining count, the bulk of the issues centered around allegations that Ms. Sabatini’s rights under the Charter were violated. The Initial Encounter with Ms. Sabatini [ 2 ] On March 15, 2014, a call came in to the police in relation to a potential impaired driver. D.C. McFadyen and P.C.

Leary, in response to this call, attended at the area of Barton and Euclid to investigate this complaint. [ 3 ] D.C. McFadyen testified that upon arriving on site he saw three males and one female surrounding a vehicle. He identified Ms. Sabatini as the sole female. According to D.C. McFadyen, he spoke to all the persons present and detected an odor of alcohol on everyone present. It was his opinion that all four persons appeared to be drinking and upon being asked, they all admitted to consuming alcohol at a nearby party. D.C.

McFadyen was unable to recall many other details about this initial interaction. [ 4 ] P.C. Leary testified that when he and D.C. McFadyen arrived on scene, only three people were standing outside the vehicle. The fourth person was actually in the driver’s seat of the motor vehicle. P.C. Leary went and spoke to this person. According to P.C. Leary, the male in the driver’s seat of the vehicle appeared very intoxicated, so much so that when P.C. Leary asked the male for the key he was using to start the vehicle, he handed over a bicycle key instead of a car key. [ 5 ] Ms.

Sabatini advised the officers that the vehicle belonged to her and that she had no intention of driving. P.C. Leary and D.C. McFadyen then advised all four of the individuals not to drive. At this point, the officers saw all four persons walk away from the motor vehicle and towards a cab. The officers then left the scene.

The Arrest [ 6 ] Within ten minutes of leaving the scene, the officer received another call from dispatch advising that the vehicle related to the above incident had hit a parked vehicle and was now in motion. D.C. McFadyen and P.C. Leary returned to where the vehicle had originally been parked to investigate and confirmed that the vehicle had moved. P.C. Leary testified that they looked at the nearby parked vehicles for some sign of an accident, but he could not see any damage to the vehicles in the area. [ 7 ] The officers then received a communication that another cruiser had located the subject vehicle.

The officers drove to that area which was near Markham and Harbord arriving on scene at 4:03 a.m. Upon arriving on scene, P.C. Leary spoke to the other officer on scene while D.C. McFadyen investigated Ms. Sabatini who was sitting in the driver’s seat of the motor vehicle. Both officers noticed that the back window was smashed, and that a ski pole was sticking out of the window. D.C. McFadyen also testified that there were scuff marks to the front of the vehicle. P.C. Leary testified that the only damage he had seen was the broken window. [ 8 ] When D.C. McFadyen approached Ms.

Sabatini in the driver’s seat of her motor vehicle, she appeared to not understand why she was stopped. D.C. McFadyen then arrested her for impaired driving. D.C. McFadyen testified that he made the arrest in light of his previous contact with Ms. Sabatini, his opinion that she had been in a car accident, the odor of alcohol on her breath and the fact that she appeared to him to be disoriented. This last opinion was based on the fact that Ms. Sabatini seemed to be surprised that she had been stopped despite the fact that he had told her only ten minutes earlier not to drive. [ 9 ] After her arrest, Ms.

Sabatini was given her rights to counsel and the breath demand. She was then taken to 22 Division. Events at the station [ 10 ] Upon arrival at the station at 4:28am, Ms. Sabatini and the officers remained in the police cruiser for 17 minutes. D.C. McFadyen testified that he did not know why they had to remain in their cruiser for this long. P.C. Leary testified, however, that under the new booking system, all information has to be inputted into the computer system and sent electronically to the booker before the person in custody can be paraded or access counsel.

While the old system allowed persons in custody to be paraded relatively quickly, the new system frequently takes 15 minutes or longer. [ 11 ] Once inside the station, Ms. Sabatini was paraded and duty counsel was called. After her conversation with duty counsel was over, Ms. Sabatini had to wait an additional five to ten minutes before she was taken out of the phone booth and into the breath room. [ 12 ] The first breath sample was taken at 5:40 a.m., over an hour after she arrived at the police station. The second sample was taken at 6:03 a.m.

She blew 130mg of alcohol in 100ml of blood and 110 mg of alcohol in 100ml of blood respectively. The decision to hold for a bail hearing [ 13 ] Ms. Sabatini is an American citizen. At the time of her arrest she had lived in Toronto for six years, was gainfully employed (at two jobs), had a valid work permit for three years ending in October of 2016, had no prior record and while she blew over 80, she was not displaying any overt signs of impairment. Nonetheless, Ms. Sabatini was not released from the station and instead, was held for a show cause hearing. [ 14 ] D.C.

McFadyen testified that it was not his role to decide whether or not Ms. Sabatini should be released from the station or held for a show cause hearing and he played no role in this decision on the night in question. He further testified, however, that while he did not have a role in this decision on the night in question, he does, as part of his present duties as a detective constable address release issues in

other cases. D.C. McFadyen testified that it was his understanding that there is a Toronto Police Policy that everyone who is not a Canadian citizen must be held for a show cause hearing. In re-examination D.C. McFadyen clarified that anyone “not from Ontario” must be held for a show cause hearing. [ 15 ] D.C. Scott MacNeish was on duty at the division the night that Ms. Sabatini was arrested. He was present when the detective of the station, Detective Choi, made the decision to hold Ms. Sabatini for a show cause hearing and was privy to the discussion surrounding this decision.

He was effectively in training at the time, and hence did not have the authority to make the decision about release but was party to all the discussions. D.C. MacNeish testified that the discussion about whether or not to release Ms. Sabatini from the station focussed solely on the fact that Ms. Sabatini was an American citizen living in Canada on a work permit. D.C. McNeish testified that there was a flight concern in this case because people “can lose their jobs”. When asked more about the decision to detain Mr. Sabatini for a show cause hearing, D.C. MacNeish testified that he knew nothing about Ms.

Sabatini’s actual ties to the community or how long she had lived in Toronto. The discussion focussed solely on the fact that she was here on a work permit which expired in October of 2016 (so 2 ½ years later). [ 16 ] Det. Pravica, an officer not involved directly with this case, testified that he has been a detective for eight or nine years. His sole purpose in testifying was to provide the court with the policies of the Toronto Police Services around the issue of release. Det. Pravica confirmed that there is no policy to hold persons that are only in Toronto on a work permit for a show cause hearing. Ms.

Sabatini’s evidence [ 17 ] Ms. Sabatini testified that on the night in question she went to a party where her boyfriend, David, was the designated driver. The plan was that he would drive her home that night using Ms. Sabatini’s vehicle. As she was not planning on driving, Ms. Sabatini consumed three beers and a shot of whisky at the party. Ms. Sabatini and some friends left the party at approximately 2:30 or 3:00 a.m. One of David’s friends, who was very intoxicated, followed them to the car and started being difficult. This friend entered the vehicle and sat in the driver’s seat and would not leave. Ms.

Sabatini’s boyfriend tried to pull his friend out of the vehicle, but his friend just threw punches at him. [ 18 ] The police arrived a few minutes later and things settled down a bit. According to Ms. Sabatini, it was at this point that the person who had been in the driver’s seat left the area. The rest of them remained near the vehicle. Ms. Sabatini testified that after the police left the area, the trouble maker returned. At this point, Ms. Sabatini’s boyfriend decided to leave, citing safety concerns. He took his belongings out of Ms. Sabatini’s trunk and left. [ 19 ] According to Ms.

Sabatini, the trouble maker left at the same time, leaving Ms. Sabatini and her friend Robyn, alone. At this point, Robyn closed the trunk of the car. As she did this, Ms. Sabatini’s ski pole was sticking out and it smashed the back windshield. [ 20 ] A discussion then ensued between Robyn and Ms. Sabatini about getting home. Ms. Sabatini testified that while she had consumed alcohol on the night in question, she did not feel impaired and felt sober and capable of driving. As a result she decided to drive her and her friend home. [ 21 ] Moments after leaving the area, Ms.

Sabatini was pulled over by a police officer. Ms. Sabatini testified that she was arrested, put in hand-cuffs and placed in the back of the police cruiser. She was then taken to 22 Division where she provided two samples of her breath into the breathalyzer. Once the breath tests were completed Ms. Sabatini was taken to 14 Division. Ms. Sabatini testified that she thought she was going to be released from 14 division but she was placed in a cell instead, next to someone who was screaming at the top his lungs for ½ an hour. [ 22 ] After some time, D.C. MacNeish advised Ms.

Sabatini that she would be held for a bail hearing. [ 23 ] Ms. Sabatini testified that she told the police that she had lived in Toronto for six years, went to school here and had lived in the same apartment for a long time. The in-car video of Ms. Sabatini on route to the station confirmed that Ms. Sabatini did provide this information to the police.

[ 24 ] The next morning Ms. Sabatini was taken to the court. While on route the officer had to turn back and return to the station because he forgot some paper work. Once at the courthouse, Ms. Sabatini was placed in a cell and told not to use the toilet because it was backed up. Ms. Sabatini testified that she had to sit beside a backed up toilet for hours waiting for her matter to be addressed in court. ISSUES [ 25 ] At trial the following issues were raised:

a) Whether Ms. Sabatini’s rights as guaranteed by

section 8 of the Charter were violated when she was arrested and compelled to provide a breath sample at the station absent sufficient grounds to make the arrest and the demand?

b) Whether the breath tests were taken as soon as practicable; and,

c) Whether Ms. Sabatini’s rights as guaranteed by

section 9 right of the Charter were violated when she was held for a show cause hearing instead of being released from the station.

Section 8 – Grounds to Make the Arrest and the Breath Demand [ 26 ] D.C. McFadyen arrested Ms. Sabatini for impaired driving. He testified that while he had not seen her driving, he had been told by others that she had been driving and was in the driver’s seat of the vehicle when he arrived. In my view this is a sufficient basis for the officer to have reasonable and probable grounds to believe that Ms. Sabatini had been driving her motor vehicle. [ 27 ] In relation to his grounds for believing that Ms. Sabatini’s ability to operate her motor vehicle was impaired by alcohol, D.C. McFadyen cited the following:

a) She admitted to consuming alcohol when he had spoken to her and her friends 10-15 minutes earlier;

b) It had been his opinion when he spoke to her the first time that she was impaired although he was unable to point to any specific conduct that assisted him in reaching this conclusion nor did he have any extended communication with her away from the rest of the group;

c) He had received information that she had been in an accident, although the person who gave this information was not interviewed and there was no sign of an accident at the location where the accident allegedly took place;

d) He detected an odor of alcohol from her at time of vehicle stop; and,

e) She seemed disoriented. [ 28 ] In determining whether the officer had sufficient grounds to arrest Ms. Sabatini for impaired driving, I am mindful that merely because there may be exculpatory explanations for the officer’s observations, this does not detract from the officer’s grounds to make the arrest. The standard of reasonable and probable grounds is lower than a prima facie case. Moreover, trial judges must keep in mind the context of an arrest in that they are often made suddenly and in volatile situations.

In assessing whether an officer has reasonable and probable grounds to arrest someone for impaired driving, the focus should be on the presence or absence of indicia of impairment and the veracity and reliability of the officer’s evidence. [ 29 ] D.C. McFadyen testified that Ms. Sabatini admitted to consuming alcohol. Defence counsel took no issue with this assertion and I

accept that when first approached by the officers, Ms. Sabatini and some of her friends made this admission. I also accept that the officer detected an odor of alcohol from her breath during his second interaction with Ms. Sabatini just prior to her arrest. I place no weight, however, on the officer’s opinion that Ms. Sabatini was impaired during his first interaction with her and her friends. D.C. McFadyen did not have an extensive exchange with Ms. Sabatini during the first interaction and he did not speak to her alone at any point.

When asked to provide the basis for his opinion, the officer could not point to any action that led him to conclude that Ms. Sabatini was impaired other than the fact that she was coming from a party, had admitted to consuming some unknown quantity of alcohol and was part of group that were causing a disturbance. In my view, these factors are not sufficient to support the conclusion that Ms. Sabatini’s ability to operate a motor vehicle were impaired or that she was intoxicated at the time.

It may very well be that his opinion that everyone in the group was impaired was founded on something more at the time, but in the absence of this evidence at trial and taking into account Ms. Sabatini’s evidence that she was not impaired at the time, I place no weight on the officer’s conclusion. [ 30 ] One of the other factors D.C. McFadyen relied on to arrest Ms. Sabatini was that she had been in an accident with a parked car as she was leaving the area.

There may be cases where an unexplained accident coupled with the odor of alcohol and an admission of consumption of alcohol will provide sufficient grounds to arrest for impaired driving. In this case, however, by the time of the arrest, the officer did not have a strong basis to believe that an accident had actually taken place. In fact, by the time of the arrest, the investigation suggested that no accident had taken place. I appreciate that an unknown person called in and reported that Ms.

Sabatini’s vehicle hit a parked car, but the officers attended the location and examined the parked cars and saw no damage to any vehicle. This information alone should have called into question the reliably of the information received. Moments later when the officers actually saw Ms. Sabatini’s car the only damage visible was to the back windshield. Moreover, the area of the car where one would expect to find damage if an accident had in fact occurred had no damage. I appreciate that D.C. McFadyen testified that he saw scuff marks to one front panel of Ms.

Sabatini’s car, which would have been consistent with an accident, but I completely reject his evidence on this point and find that there was no damage to the front of the vehicle. I reject his evidence on this point for the following reasons:

a) This observation was not in the officer’s notes;

b) The officer failed to make any reference to this damage in his examination in chief. It only arose when he was being cross- examined about the accident;

c) D.C. McFadyen testified that despite the fact that the damage he claims to have seen on the front panel of the vehicle was not in his notes, he nonetheless has a good recollection of this. It was clear from his evidence, however, that his general memory of the events from this evening was quite poor. D.C. McFadyen could not remember most other details that were not in his notes including the conversation between himself and Ms. Sabatini on route to the station and the conversations and observations made during their first interaction. Notably, both Ms. Sabatini and P.C.

Leary, whose evidence I do accept, testified that during the initial encounter by the parked car, a very impaired male had been in the driver’s seat of the motor vehicle, trying to start it with a bicycle key. D.C. McFadyen testified that no one was in the vehicle when he arrived. D.C. McFadyen could also not recall other important details like whether Ms. Sabatini was unsteady on her feet or whether other common indicia of impairment were present. In light of all this, it is difficult to have any confidence in D.C. McFadyen’s memory about events not recorded in his notes;

d) P.C. Leary who was also at the scene, and whose evidence I do accept, did not see this damage. Moreover, Ms. Sabatini, whose evidence I also accept testified that there was no such damage to her vehicle;

e) No other vehicles in the area where the accident is said to have occurred were damaged; and,

f) Ms Sabatini was not ever charged with any offence related to an accident (for example: leaving the scene of an accident). [ 31 ] When I consider all the evidence, in my view, D.C. Mcfadyen overstated the damage to Ms. Sabatini’s vehicle. I further find that he did so for the sole purpose of bolstering his grounds for arresting Ms. Sabatini. There is no other logical explanation for the officer adding in additional evidence of an accident that did not exist. Given this finding, I have real concerns about the veracity of D.C.

McFadyen’s evidence as it relates to all his grounds for the arrest and I am unable to rely on D.C. McFadyen’s evidence as it relates to his grounds for arrest where there is no confirmatory evidence. [ 32 ] This leads me to the final factor relied upon by D.C. McFadyen in forming his grounds to arrest Ms. Sabatini – the fact that she was “disoriented”. I reject the officer’s conclusion that Ms. Sabatini was disoriented in any way at the roadside or during the ride to the police station. In reaching this conclusion, I note that when asked why he concluded that Ms. Sabatini was disoriented, the main factor

he pointed to was that Ms. Sabatini she seemed surprised that she was stopped. In my view, the fact that Ms. Sabatani was surprised shewas stopped and did not understand why she was stopped when it had not yet been explained to her does not, by itself, support theconclusion that Ms. Sabatini was disoriented. Moreover, a review of the in car video of Ms. Sabatini on route to the police stationestablishes that, at least during the relatively lengthy car ride, Ms. Sabatini did not show any signs of being disoriented. In fact, sheappeared to appreciate exactly what was going on.

Given this evidence and my previous comments about my overall concern with theofficer’s veracity, I reject the officer’s testimony that Ms. Sabatini was disoriented at the relevant time. [33] Given these findings of fact, the question I must address is whether considering all the evidence I do accept, did the officer havegrounds to arrest Ms. Sabatini. In other words, did D.C. McFadyen have reasonable and probable grounds to believe that Ms. Sabatiniwas driving while her ability to do so was impaired by alcohol or drug? To that end, I accept the following;

a) During the first interaction with the officers, Ms. Sabatini admitted to having consumed some alcohol;

b) There was an odor of alcohol on her breath;

c) There was damage to her rear windshield;

d) She had been told ten minutes earlier not to drive, but nonetheless drove;

e) The officers had the impression that the people by the car, including Ms. Sabatini had been drinking but could not recall thefoundation for this opinion; and,

f) The officer arrested Ms. Sabatini moments after arriving on scene. [34] I appreciate that one would hope than when an officer instructs someone not to drive (as long as there is a basis for this instruction),that person would not drive. The decision to nonetheless drive, by itself does not give sufficient grounds to arrest. The odor of alcoholcoupled with an admission that alcohol had been consumed absent other indicia of impairment is also not a sufficient basis to arrest forimpaired driving.

In my view, when I consider all the grounds outlined above, the officer did not have sufficient basis to formreasonable and probable grounds to arrest. In my view, D.C. McFadyen attended on scene, pre-judged the situation without making anyinquires or conducting any investigation. Within moments of approaching Ms. Sabatini, without making any further inquiries, hearrested her. While the officer clearly had grounds to make the ASD demand or conduct further investigations, in my view, he did nothave sufficient grounds to arrest. [35] As the officer had no basis to arrest Ms.

Sabatini, he also had insufficient grounds to make a breath demand. As a result, I find thatsamples of her breath that were taken at the station were taken in violation of Ms. Sabatini’s

section 8 Charter rights. Section 24(2) of the Charter Relevant legal principles [36] Pursuant to section 24(2) of the Charter, the Applicant has the burden of establishing on a balance of probabilities that admission ofthe evidence would put the administration of justice into disrepute. In R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, theSupreme Court of Canada outlined the test for exclusion of evidence under section 24(2). The Court stated at paragraph 71: When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence onsociety’s confidence in the justice system having regard to:

(1) The seriousness of the Charter -infringing state conduct (admission may send a message the justice system condones serious state misconduct)

(2) The impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and

(3) Society’s interest in the adjudication of the case on its merits. The Court’s role on a section 24(2) application is to balance the assessment under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Application of the law to the case at bar (

i) Seriousness of the Charter-infringing state conduct [ 37 ] In the case at bar, Ms. Sabatini was arrested for an offence where the officer had no grounds to make this arrest. He did, however, have the grounds to make an ASD demand. This reality, in most cases, would lead to the conclusion that while jumping the gun, so to speak, should not be condoned, the behaviour in question is not so egregious as to warrant exclusion of the evidence. Under this prong, however, I am entitled to consider the overall police conduct including the presence or absence of a pattern of non-compliance with the Charter . In the case at bar, in addition to the

section 8 breach outlined above, the officers also breached Ms. Sabatini’s

section 9 rights by failing to release her from the police station and holding her for a show cause hearing instead. As outlined in my reasons below, the officers had no basis to hold Ms. Sabatini for a show cause hearing and only did so because they mis-understood the law on this point and thought they had to hold anyone who was not a permanent resident in Ontario for a show cause hearing.

While I have no basis to conclude that the officers were acting maliciously, there is evidence that the officers did not appreciate relevant, long standing laws. [ 38 ] In light of the fact that there were two charter breaches, one of which was very significant, and both based on mis-apprehension of well-established laws, this prong militates in favour of exclusion of the evidence. (ii) Impact of the breach on the Charter-protected interests of the accused [ 39 ] In my view, the impact of the

section 8 charter breach alone is not substantial. Realistically, given the results of the breathalyzer tests at the station, it is likely that Ms. Sabatini, had she been given the opportunity to provide a sample of her breath into an approved screening device, would have blown a fail, thereby giving the officers grounds for arrest. Having said that, I cannot ignore the

section 9 Charter breach that occurred at the station immediately following the

section 8 breach. Ms. Sabatini was kept in custody for many hours longer than required, was taken to court and placed in a cell with a toilet that was backed up. When I consider the impact of all the breaches on Ms. Sabatini, I am of the view this prong militates in favour of exclusion of the breath samples. (iii) Society’s interests in adjudication on its merits [ 40 ] There is a strong societal interest in trying cases of impaired driving on their merits. This is a serious offence that has the potential of risking the lives of many innocent persons.

Moreover, the results of the breath tests are reliable and are necessary for the successful prosecution of this case. In my view, this prong militates in favour of inclusion of the evidence. [ 41 ] In balancing all three factors, in my view this case is a very close call. The

section 8 breach standing alone would not in the ordinary course result in the exclusion of the evidence. The

section 8 breach, however, does not stand alone. There is a second serious

breach that this court must also consider. I am mindful that impaired drivers are a menace to society and that they place the safety of allpersons on the road and sidewalks at risk. The offence of impaired driving is so serious and dangerous that Parliament has enactedlegislation to give police special powers to investigate and detect impaired drivers. Without the highly reliable results from thebreathalyser test, the Crown will be unable to successfully prosecute this case. There is always a very strong societal interest in tryingimpaired driving charges on their merits.

Having said that, when I balance all the relevant factors, I am satisfied that the defence hasestablished that inclusion of the breathalyser readings, given the nature of violations, would bring the administration of justice intodisrepute and I will exclude the blood-alcohol readings. As soon as practicable [42] Counsel for Ms. Sabatini argued that the presumption of identity cannot be relied upon in the case at bar because the tests taken atthe station were not taken as soon as practicable.

Counsel for the Crown argued that while there was a slight delay at the station, thedelay was reasonable and as such the presumption of identity should apply. [43] It is well established that for the presumption of identity to apply, the breath tests taken at the station must be taken as soon aspracticable. In assessing whether or not the tests were taken as soon as practicable, the court is required to look at the whole chain ofevents. The Crown is obligated to demonstrate that in all the circumstances “the breath samples were taken within a reasonably prompttime”.

There is no requirement, however, that the Crown provide a detailed explanation of every minute that has passed (see R. v.Vandenbruggen, (ON CA), [2006] O.J. No. 1138 (C.A.) at paragraphs 13 and 14). [44] In the case at bar, counsel for Ms. Sabatini points to two different periods of delay that occurred at the police station. The first timeperiod is the approximately 17 minutes spent in the sally port while the officers inputted the data from the arrest into the computer. TheToronto police service has implemented a new system for booking in people that are charged with offences.

This new process requiresthe police to input the data into a computer system prior to entering the station. While under the old process, the delay in the sally porttook only minutes, according to P.C. Leary, under the new system, the time in the sally port can take as long as 30 minutes. Theevidence before me is that at the time of this offence, the booking process was relatively new. Like most new systems, they take time toget used to and are often slow at first. There is also no evidence that this new process is unnecessary or inappropriate.

When I considerall this evidence, while the booking process may have been slow it was justified and appropriate in the circumstances. [45] The second delay relates to a time frame of five to ten minutes when Ms. Sabatini had completed her call to counsel but was waitingin the phone booth for the officers. There is no exact time for how long Ms. Sabatini waited in the phone booth. Ms. Sabatini thought itfelt like ten minutes and the officers thought it was five minutes. In my view, either way this is a very short delay.

When I consider bothperiods of delay raised by counsel, I am satisfied that the breath tests were taken in a reasonably prompt time.

Section 9 of the Charter [46] At the time of her arrest, Ms. Sabatini was an American citizen. She was nonetheless, an ordinary resident of Toronto. She hadgone to school in Toronto, had an apartment in Toronto, had a job in Toronto and had a valid work permit for three years. It was clearthat Ms. Sabatini had lived in Toronto for quite some time by the time of her arrest. Ms. Sabatini had no criminal record and her breathresults, while over 80, were not so high that they raised concerns about her safety if released and she was not visibly impaired. Nonetheless, Ms.

Sabatini was held in custody for a show cause hearing. [47] The officer who made the decision to detain Ms. Sabatini for a bail hearing did not testify at trial, but another officer from thestation, who had been in training and who had been privy to the reason for holding Ms. Sabatini for a bail hearing, did testify. According to this officer, D.C. MacNeish, the only discussion that took place around release was that Ms. Sabatini was an Americancitizen. It was his understanding that it was because of this fact alone that the decision was made to hold Ms. Sabatini for a bail hearing.

The Crown conceded that this was incorrect. She further conceded that Ms. Sabatini’s rights as guaranteed by

section 9 of the Charterwere violated when she was held for a show cause hearing. I agree. The fact of being an American citizen is not an automatic bar torelease from the station.

Section 498 of the Code provides;

(1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a personwho has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peaceofficer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) for an offence described inparagraph 496(a), (

b) or (c), or any other offence that is punishable by imprisonment for five years or less, and has not been taken before

a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon aspracticable, (

a) release the person with the intention of compelling their appearance by way of summons; (

b) release the person on their giving a promise to appear; (

c) release the person on the person's entering into a recognizance before the officer in charge or another peace officer without suretiesin an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or (

d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200kilometres of the place in which the person is in custody, release the person on the person's entering into a recognizance before theofficer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer sodirects, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officerdirects.

(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officerbelieves, on reasonable grounds, (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealtwith under another provision of this Part, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (

b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. [48] It is clear from this long standing

section of the Criminal Code that one need not be held for a show cause hearing merely becausethe person arrested is an American citizen. Instead, the officer must consider the factors set out in s. 498 of the Criminal Code. Theofficers in the case at bar did not consider these factors. In fact the officers did not even discuss Ms. Sabatini’s long standing residence inToronto or whether or not this person, with no criminal record, would attend court. I therefore find that when Ms. Sabatini was held fora show cause hearing, entirely because she is an American citizen who was ordinarily a resident of Toronto, her

section 9 rights wereviolated. The detention was unlawful and arbitrary. Section 24(1) of the Charter and the Stay of Proceedings [49] It is well established that the remedy of a stay of proceedings is a remedy that should only be resorted to in the clearest of casesgiven society’s interest in having matters tried on their merits. In R. v. Zarinchang, 2010 ONCA 286 , [2010] O.J. No. 1548(CA), the court summarized the relevant legal principles as they relate to a stay of proceedings:

(1) There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of anindividual’s trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, butinvolves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.

(2) In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must besatisfied: (

i) The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of thetrial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and (ii) No other remedy is reasonably capable of removing that prejudice.

(3) In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficientlyserious to create the prejudice to warrant a stay, there is a third criterion that the court may consider- the balancing of the interest ingranting a stay against society’s interest in having a trial on the merits.

[50] The court went on to state that where the residual category is being relied upon, the focus is on the integrity of the justice system. The residual category, however, is not a means for courts to address all on going systemic problems. Instead, the court must “consider ifthe price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against theaccused outweigh the interest in having the case decided on the merits?” [51] In the case at bar, trial fairness is not impacted by the charter breach.

The defendant therefore is relying on the residual category tosupport the remedy of a stay of proceedings. To that end, counsel for Ms. Sabatini provided numerous cases where trial judges havestayed the proceedings where the police improperly failed to release a defendant from the station (see R. v. Boyce [2003] O.J. No. 598(OCJ) and R. v. Waisanen, [2014] O.J. No. 5021 (OCJ)).

In most of the cases provided, however, the defendant suffered additionalprejudice beyond his or her mere detention because of the breach including strip searches, being held for many many hours in a cell orbeing videotaped while using the washroom. [52] In pointing out these differences, I do not mean to minimize the impact of the breach on Ms. Sabatini. She was held for a number ofhours at the police station before being taken to court.

She was worried that she would not arrive at court in time to be released given thedelays in leaving the station, when she was finally arrived at court she was placed in a cell with a toilet that was backed up and had theongoing fear that she would not have her matter dealt with that day. I have no doubt that this was extremely stressful for Ms. Sabatiniand as the Crown conceded, it was completely unnecessary.

Having said that, in many of the cases I have reviewed, the personalprejudice suffered by the defendant was greater and this clearly had an impact on the decision on whether or not to stay the charges. [53] It is also an important consideration that the

section 9 breach is not temporally or causally connected to the investigation. In R. v.Iseler, (ON CA), [2004] O.J. No. 4332 (CA), in assessing the appropriateness of granting a stay of proceedingswhere the police held Mr. Iseler in a cell for 11 hours without any police contact or explanation for the detention, the Court noted thatthe conduct in question took place after the investigation had been completed and did not impact trial fairness. The court concluded thata stay of proceedings was not warranted.

The Crown argued that given the similarities between the two cases, the charge in this caseought not be stayed. [54] In R. v. Mok 2014 ONSC 64 , [2014] O.J. No. 44 (S.C.J.) the reviewing court, in assessing the appropriateness of a stay ofproceedings for a

section 8 breach, stated: When assessing whether any case is one of the "clearest of cases" requiring a stay, the Court must keep in mind that a stay ofproceedings is a prospective remedy. This Court must follow the instruction of the Supreme Court, as set out at para. 91 of Tobiass, asabove, • A stay of proceedings does not redress a wrong that has already been done. It aims to prevent the perpetuation of a wrong that, ifleft alone, will continue to trouble the parties and the community as a whole in the future. See O'Connor, at para. 82 ...

The mere fact thatthe state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings. For a stay of proceedings to beappropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or thatthe carrying forward of the prosecution will offend society's sense of justice. Ordinarily, the latter condition will not be met unless theformer is as well -- society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form ofmisconduct will continue.

There may be exceptional cases in which the past misconduct is so egregious that the mere fact of goingforward in the light of it will be offensive. But such cases should be relatively very rare. [55] In finding that a stay of proceedings was not appropriate, the appellate Court in R. v. Mok, reminded itself that a stay of proceedingis a remedy of last resort and in the absence of evidence that the breach was a result of systemic issues, the police should have beengiven an opportunity to remedy the problem. [56] In the case at bar, unlike the facts in R. v. Mok, supra and R. v.

Iseler, supra, there is actual evidence of a systemic problem withinthe police force as it relates to understanding the longstanding laws relating to release. 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 section498 of the Criminal Code. Counsel were able to provide me with quite a few cases where accused persons were held for show causehearings when they ought to have been released from the station. Moreover, just recently Justice Bornstein in R. v. Doyon, 2015 ONCA8 , [2015] O.J.

No. 100 (O.C.J.) stayed the charges against Mr. Doyon in part because of the police failure to properlyunderstand

section 498 of the Criminal Code.. In reaching this decision, Justice Bornstein noted at paragraph 48, Finally, the evidence leads to the strong inference that it is the policy of both police divisions, at a minimum, to require a bond but morelikely, to hold for a show cause persons who are from out of Province. There is no reason to think this was isolated to Ms. Doyon.Everything moved inevitably to that outcome. Her attempt to question or reason with the officers was ignored or dismissed out of hand.

[ 57 ] Secondly, there was evidence presented during Ms. Sabatini’s trial that officers in training are being led to believe that non- permanent residents must be held for a show cause hearing and the officers are not being trained to consider the factors set out in the Criminal Code . At the time of Ms. Sabatini’s arrest, D.C. McFadyen was not a detective and was not in a position to make decisions about release. Since Ms. Sabatini’s arrest, however, he has been promoted. As part of his new duties, D.C. McFadyen does make the final decision on release. D.C.

Mcfadyen testified that it was his understanding that it was a policy of the Toronto Police to hold accused persons who are not from Ontario (which as is clear from his evidence, he interpreted as meaning non-permanent residents) for show cause hearings (the Crown concedes no such policy exists). So despite his relatively recent training, D.C. McFadyen does not have a proper understanding of police policy or of the law around releasing accused persons from the station. This is not surprising in light of D.C. MacNeish’s evidence on this point. D.C. MacNeish, was a detective in training at the time of Ms.

Sabatini’s arrest, as a trainee, the only issue that the detectives at the station raised with him about why Ms. Sabatini should be held for a show cause hearing was that she was not a permanent resident of Canada and as such she was a flight risk. [ 58 ] I appreciate that Detective Pravica, who came to court solely to provide a copy of the Toronto Police Policies, confirmed that there is no policy to detain non-citizens for a show cause hearing. I further appreciate that he understood the application of

section 498 of the Criminal Code , but in my view, this does not lead me to conclude that the problem is not systemic. Fortunately, some officers are being trained properly. Nonetheless, on the evidence before me, there is clearly an ongoing training issue on the factors officers must consider in determining whether or not a person should be released from the station or held for a show cause hearing. [ 59 ] I appreciate that Ms.

Sabatini’s focus is on her individual prejudice, but the prejudice that concerns this court is the evidence that despite it being well established by Parliament what factors the police must consider in determining whether to release someone from the station, many officers are not being taught this.

Instead people who should be released from the station are being detained in custody until they can be brought to court for a show cause hearing. [ 60 ] At the end of the day, the question I must really ask is whether a stay of the proceedings is an appropriate price for society to pay to correct this systemic training issue keeping in mind society’s strong interests in a trial on the merits. As noted above, drinking and driving is a very serious offence that puts the lives of people at risk. A systemic training issue that impacts individual’s liberty, however, is equally serious. Moreover, Ms.

Sabatini has already received a significant punishment in that she was held in a cell at the police station for hours, and then in a cell at the court that had a backed up toilet. I also note that the Crown has invited me to find Ms. Sabatini not guilty on the charge of impaired driving given the absence of evidence of actual impairment. Furthermore, I accept Ms. Sabatini’s evidence that she was not impaired at the time of driving. [ 61 ] Balancing all these factors, I am satisfied this is one of the clearest of cases where a stay should be granted.

Released May 6, 2015 ________________________ Justice Mara Greene