Charges have been stayed in another prosecution involving a veteran Crown attorney whose heated hallway exchange with a Toronto police officer prompted a judge to toss out charges in that case last month.
In a decision released on May 15, Ontario Court Justice Sean Gaudet found that prosecutor Marnie Goldenberg breached her duty to disclose when she failed to turn over video evidence pertaining to an accused’s Drug Recognition Evaluation (DRE).
The judge said the accused was found slumped over in the driver’s seat of his vehicle on Queen Street West on Dec. 6, 2023 with the ignition running.
When he was taken to a police station and given a DRE, the officer in charge of administering the test determined that he was in fact impaired by drugs. A urine sample was then requested, revealing the presence of controlled drugs, including methamphetamine.
Prior to the start of the trial, Gaudet said the defence requested “all available disclosure” in the case, including a specific request for the DRE video recording.
In response to the request, Gaudet said Goldenberg responded, “There is no video of the DRE.”
“According to defence counsel, the issue of the failure to record the DRE testing procedure was also raised during a judicial pre-trial conducted in August 2024,” the judge wrote.
“The Crown’s explanation for the lack of a DRE video recording at that time was that video recording capacity had not been set up at Traffic Services on the date of the applicant’s arrest on December 6, 2023.”
But during cross-examination of the officer who conducted the exam during the trial in May of 2025, he testified that the room where the DREs are conducted did have video recording capabilities on that date.
“He further testified that the video recording in the DRE room was engaged automatically and did not have to be activated manually, and that it was his belief that the DRE he conducted of the applicant was being video recorded,” the judge wrote.
When the Crown later learned that the process of recording the exams actually began in April 2023, she advised that there was a one-year retention period so any video that existed of the accused’s DRE would no longer be available.
The judge noted that at the time the defence requested disclosure of the DRE recording on June 25 and on July 24, the video recording would still have existed in the Genetec system and “could have been produced.”
“I find unacceptable negligence on the part of the police and Crown in failing to ensure the preservation and disclosure of the video recording,” Gaudet wrote.
“The Crown’s failure to preserve and disclose the DRE video recording has prejudiced the applicant’s section 7 right to make full answer and defence. Given the importance of this evidence the only remedy available to removing the prejudice to the applicant is a stay of proceedings.”
Toronto police, Marnie Goldenberg, and the Ministry of the Attorney General did not respond to emails requesting comment on the judge’s findings.
In a statement sent to CTV News Toronto, Lesley Pasquino, the president of the Ontario Crown Attorney’s Association, said it would not provide comment about cases still before the courts.
“This case is currently still within the jurisdiction of the Court, as it is within an active appeal period. The Ontario Crown Attorneys’ Association does not issue public statements about cases still before the courts,” the statement read.
Hallway exchange ‘sends a message,’ judge says
It is the second stay of proceedings in the last month that has been attributed to Goldenberg’s conduct.
An Ontario court justice tossed out a case on May 4 when they said Goldenberg lost her objectivity, swore at, and berated a police officer in a courthouse hallway over testimony he gave, allegedly telling the cop that “we protect our own.”
In previous comments she made in court, Goldenberg denied getting angry and calling the officer’s testimony “disgusting” and “pathetic” because it didn’t support her case.
The charges involved a 36-year-old man who was accused of intentionally driving into a Toronto police sergeant on Aug. 7, 2024 during a paid duty assigning on Lakeshore Boulevard.
Justice Mara Greene said she was skeptical of Goldenberg’s evidence because it was not supported by other eyewitness accounts of the hallway exchange.
Greene stopped short of saying that she thought Goldenberg, who the justice noted is married to a police officer, lied.
“In my view, an officer being berated by a Crown attorney in the presence of the officer in charge for testifying for the ‘wrong side’ and saying ‘we protect our own’ sends a message to the entire police community: you stay on side or there will be consequences,” Greene said.
“It is that conduct that impacts the integrity of the justice system.”
With files from CTV News Toronto’s Jon Woodward
