R. v. Sadozai, 2026 ONSC 4436

CITATION: R. v. Sadozai, 2026 ONSC 4436

COURT FILE NO.: CR-23-27101180-00AP

DATE: 20260730

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

Respondent

– and –

MASIHULLA SADOZAI

Appellant/Defendant

Samantha Herbert, Counsel for the Crown

Rupinjit Singh Bal, Counsel for the Appellant/Defendant

HEARD: July 24, 2026

REASONS FOR DECISION

SUTHERLAND, j.

1After a trial, the appellant was convicted of impaired operation of a motor vehicle. He was sentenced on June 24, 2026 which sentence included a twelve-month driving prohibition. The appellant brings this application seeking a stay of the driving prohibition.

2The appellant has appealed the conviction and sentence. The Notice of Appeal is dated July 2, 2026.

3The trial judge found that the appellant deliberately feigned unconsciousness in an attempt to avoid alcohol testing. The evidence at trial was that the police were notified by a civilian complaint of the bad driving of the appellant. The police also witnessed the appellant weaving across multiple lanes of Highway 401 in the early morning.

4For the reasons below, the stay is granted with conditions.

Legal Framework

5Section 320.25¹ of the Criminal Code indicates that the Court may stay the operation of a driving prohibition pending appeal on any conditions the judge may impose.

6The granting of a stay is discretionary.

7The Ontario Court of Appeal in R. v. Smug² established that an appellant seeking a stay of a driving prohibition pending appeal must establish that:

(a) The appeal is not frivolous;

(b) Continuation of the driving prohibition is not necessary in the public interest; and

(c) Granting the stay would not undermine public confidence in the effective enforcement and administration of justice.

8Code J in R. v. Won³ in reviewing the principles for a stay in the context of impaired driving, explained that the principles require the appellant to establish that:

(a) The appeal raises an arguable issue and is not frivolous;

(b) The appellant will suffer hardship if the stay is refused; and

(c) The appellant does not pose an unacceptable risk to public safety.

9It is not contested that the presumption of innocence no longer applies given that the appellant has been convicted. The onus is on the appellant to persuade the Court that, on a balance of probabilities, a stay pending appeal should be granted.

Analysis and Conclusions

Appeal is not frivolous

10The Crown has conceded that the appeal is not frivolous.

Appellant will suffer hardship

11The appellant has deposed that he will suffer hardship if the driving prohibition is not granted. He is the sole income earner of his family. He supports his wife and three children. He has incurred substantial debt of around $40,000. He cannot work as a delivery driver without his license. He lost his delivery job after he was charged. He cannot obtain other work. The appellant deposes that he works from 7:00 a.m. to 7:00 p.m. and is the sole family means of transportation. Without his ability to drive, the family has to avail itself of public transportation for all transportation needs. This includes attending appointments, groceries and taking the children to school and their activities. The appellant has directed the Court to two cases: R. v. Belleau⁴ and R. v. Bannikova⁵.

12In commenting whether a stay should be provided to Ms. Belleau, Howard J made the following comments:

29Moreover, reconciling the two formulations, I would say that if the continuation of a driving prohibition would cause an applicant to suffer hardship, then it is difficult to see how the public interest would be served by that result. One would have thought that the interests of justice are undermined, not served, where an individual is made to suffer hardship.

30In considering whether it would cause hardship to Ms. Belleau if the stay were not granted, it must be remembered that mere inconvenience does not constitute hardship.

31That said, the courts have also recognized that “loss of employment resulting from the driving prohibition would constitute a hardship.” As Clarke J. observed in R. v. Holloway, it “is obvious that any driving prohibition will entail some inconvenience. Doubtless every motion for a stay can and will contain some circumstances, threadbare, alleging hardship. To have any cogency before the court such allegations require a solid footing, such as a loss of employment or necessity.” (citations omitted)

13Gilmore J in R. v. Bannikova found that the stay should be granted where the appellant was single, with no dependents, no criminal record, and no previous convictions of impaired driving. Justice Gilmore determined that the appellant would suffer financial hardship if his driving prohibition was not stayed. Justice Gilmore did acknowledge that having to take public transportation is not, on its own, financial hardship. But viewing the totality of the circumstances, on the balance of probabilities, financial hardship was found.

14Though I agree with the submissions of the Crown that the evidentiary record could have been more supportive, I do note that there was no challenge to the evidence deposed by the appellant. The evidence is clear that he is the sole income earner and that he supports his family: wife and three children. He has incurred debt. The job before the arrest was as a delivery driver. To perform his job as a delivery driver, a driver’s license is required. Without a driver’s licence, he does not have the ability to work as a delivery driver. He will have no employment to support his family. I agree with Justices Howard and Gilmore that financial hardship is a factor that can be taken into consideration.

15Thus, in the circumstances, I am satisfied that on the balance of probabilities, the appellant will suffer financial hardship if the stay is not granted. The second prong of the test has been met.

Unacceptable public risk

16As mentioned, the evidence is that the appellant does not have a criminal record. He has no prior convictions for impaired driving.

17However, the circumstances of the offence and the offence itself do give the Court concerns.

18First, the offence of impaired driving is serious. The results of a person driving who is intoxicated on the road and particularly on a 400 highway can result in tragedy.

19The circumstances that the appellant was observed driving erratically on Highway 401, weaving between multiple lanes is disconcerting.

20Though there is no evidence that there was a collision or accident due to the appellant’s driving, the fact that he was driving in such a manner on Highway 401 detracts public confidence and presents behaviour that could case a significant risk to the public.

21Since the arrest, there is no evidence that the appellant has acted in a manner that adds risk to the public safety. There is no evidence that he violated any terms of his release. There was no evidence presented that he suffers from drug or alcohol abuse or addiction.

22The Court must assess the cumulative facts known at this time and balance these factors in deciding whether granting the stay will amount to an unacceptable risk to public safety and undermine confidence in the justice system.

23On the evidence provided, and exercising that balancing, I do not conclude that granting the stay to the appellant would result in an unacceptable risk to public safety or a undermine confidence in the judicial system.

24Any risk that may exist can be mitigated by any conditions the Court may deem necessary and reasonable in the circumstances in granting the stay requested.

25I conclude that such terms are warranted here.

Disposition

26The stay requested is granted with the following conditions:

(a) The appellant shall have a zero percent of alcohol in his blood when driving and will provide a breath sample if demanded by the police at any roadside test.

(b) He is not permitted to drive any vehicle between the hours of 11:00 p.m. and 6:00 a.m. except for medical and/or family emergencies.

(c) These conditions remain until the final disposition of the appeal or until further Order of this Court.

Sutherland J.

Released: July 30, 2026

CITATION: R. v. Sadozai, 2026 ONSC 4436

Footnotes

1. 1This provision replaced s. 261(12) as part of the 2018 amendments. Both counsel agree that the amendments did not materially alter the legal principles established before the amendments.
2. 21998 CarswellOnt 4154, 1998 CanLII 14616.at para. 2.
3. 32012 ONSC 775 at paras. 3-7.
4. 42019 ONSC 2546
5. 52016 ONSC 1871