Two recent decisions have called into question the use of police discretion in holding an accused for a show cause hearing. In R v Sabatini, 2015 ONCJ 282, the Ontario Court of Justice considered a situation where an individual charged with impaired driving was an American citizen. During trial, the Court ascertained that the only reason that the accused was held for a bail hearing was because she was an American citizen. On that basis, it was found that the accused’s s. 9 Charter right was violated because the officer had not considered all the factors enumerated under s. 498(1) and 498(1.1) of the Criminal Code, and granted a stay of proceedings under s. 24(1) of the Charter. In so doing, the Court of Justice remarked that the systematic training issues that resulted in the detention of an accused solely on the basis of her citizenship was a serious concern.
The Ontario Court of Justice faced strikingly similar facts with an accused who lived in Quebec in R v Doyon  OJ No 1100, and came to the same decision in staying the charges. This jurisdiction has seen a comparable scenario in R v Hotte, A.J. No. 571 where a blanket police policy resulted in detaining every accused who resided 200 kms outside of Edmonton. The Alberta Court of Queen’s Bench, much like the Ontario Court of Justice concluded that detaining for a show cause hearing strictly based on the address of an accused was an improper application of s. 498(1), and thereby an arbitrary detention under s. 9. These decisions have been clear and consistent in setting out the requirements in meeting s. 498: the discretion granted to police officers by that section is not as one-dimensional as corresponding police policies. A policy that does not take into consideration the various factors enumerated in the Criminal Code will not justify detention for a bail hearing and will in fact result in the systematic breach of an individual’s right to be free from arbitrary detention.