Some police forces appear to have trouble understanding when it is appropriate — to say nothing of legal — to hold people in custody pending a bail hearing, three judges have recently noted in strongly worded rulings, going so far as to call the problem “systemic.”
In the span of just three months, three cases against alleged impaired drivers in Toronto and Mississauga were thrown out because the courts found police had violated the accused person’s rights by erroneously asserting they had to be detained as they were not considered residents of Ontario.
“I infer that this practice is entrenched in the (Toronto Police Service) release process and likely has [been] for some time and will continue unless the court denounces that practice in the strongest terms available,” Justice Howard Borenstein wrote on March 5, staying proceedings against Melanie Doyon, a Montrealer arrested while in Toronto for business.
Two months later, the issue was back before a different Toronto judge.
“There is actual evidence of a systemic problem within the police force as it relates to understanding the longstanding laws relating to release,” said Justice Mara Greene in May, putting a halt to proceedings against Cara Sabatini, an American citizen who had actually been living in Toronto for six years with a valid work permit at the time of her arrest.
And earlier this month, Justice Andras Schreck threw out Breathalyzer tests at the trial of Michigan resident Stephen Provo — killing the prosecution’s case.
He wrote of Peel Regional Police conduct: “What occurred in this case seems to be a systemic problem in Ontario. Previous judicial condemnation of the practice appears to have gone unheeded. This also renders the breach more serious.”
The Crown did not appeal the Doyon and Sabatini cases. A spokesperson for the Ministry of the Attorney General said it would be inappropriate to comment on the Crown’s intentions in the Provo matter because it is still within the 30-day appeal period.
Residency is “not explicitly listed” among the criteria in the arrest procedure used by Toronto police for detaining individuals, said police spokesperson Meaghan Gray.
She said, “Our officers are trained on our procedures and on the relevant sections of the (Criminal) Code,” without explaining why procedure was not followed in the two cases, or whether the service has attempted to raise awareness among its officers, given the recent rulings.
Peel police did not return a request for comment.
Doyon spent time in two separate police cells in summer 2013 and videotaped, including while using the toilet, the judge wrote. She was also kept in a cell at College Park court, and was finally released from custody more than 14 hours after her first completed breath test.
“When she protested or complained, she was effectively ignored,” wrote Borenstein, who also found police violated Doyon’s right to a lawyer.
Sabatini testified that in March 2014 she was put in a police cell next to someone “who was screaming at the top of his lungs for half an hour,” Greene wrote, and that she ended up sitting next to a backed-up toilet in a court cell for hours while waiting for her matter to be called.
Before staying the proceedings against Sabatini, the judge had already thrown out her breath samples from the police station, finding that the arresting officer had not formed enough of a reasonable basis to arrest Sabatini and to make the breath demand.
Provo spent more than four days in custody before being released in December 2013, Schreck wrote. He was kept overnight in a police cell, where he was also videotaped urinating, prior to his bail hearing. The judge also found his right to a lawyer was violated.
He initially wanted to plead guilty, but decided against it when he learned of the consequences. So he was then taken to Maplehurst Detention Centre, where he was strip-searched and placed in a cell, Schreck wrote. He was released by the court about three days later on a $1,000 recognizance with deposit.
Doyon’s lawyer, Leo Adler, and Margaux Peck, who represented Sabatini, said it’s clear officers need better training on the issue of release.
“This is a deliberate abuse of the Charter,” said Adler. “This is something for which the courts have continuously criticized the police, and the police have done nothing, so the only way to maybe get their attention is to say: ‘Well, we’re going to throw out the charge.’”
Provo’s lawyer, Anthony Andreopoulos, declined comment.
At the centre of all three cases is section 498 of the Criminal Code, which deals with arrests such as those for impaired driving. It does not say that a person who is not a resident should automatically be detained.
What it does say is that “if the person is not ordinarily a resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody,” the person can be released if he or she enters into a recognizance with the police in an amount of no more than $500, or pays a deposit not exceeding $500.
The three accused people in these cases were not offered this option at the station, according to the rulings.
According to the code, an accused person should not be released if, among other things, the officer has trouble establishing the person’s identity, needs to preserve evidence, or has found that the person will not show up for the court appearance.
“When you think about the global cost of unnecessarily detaining people who could be released, it’s a staggering cost to us as a society, as well as to the individuals whose lives are disrupted because they are kept in detention,” said Laura Berger, acting director of the public safety program at the Canadian Civil Liberties Association.
The executive director of the Ontario Association of Chiefs of Police said he disagrees that the issue is “systemic.”
“I would suspect,” said Ron Bain, “that there was some indication that the person was not going to abide by the recognizance or appear in court, not because the person was simply a non-resident.”
Source: thestar.com/
Author: Jacques Gallant
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