R. v. Idris, 2026 ONCJ 254

CITATION: R. v. Idris, 2026 ONCJ 254

DATE: 2026-05-04

Toronto

ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

KHALID PATRICK IDRIS

Before Justice Mara Greene

Reasons for Judgement released May 4, 2026

S. Heeney and D. Quayat….…………………. ………………….……. ……..for the Crown

P. Thorning, A. Banister-Thompson and A. Longo ………….……………….for Mr. Idris

M.B. Greene J.:

1Mr. Idris is charged with dangerous driving causing bodily harm, failure to remain at an accident where bodily harm ensued and obstruct justice. After the completion of evidence but prior to submissions being made, Mr. Idris brought an application to stay the proceedings based on an abuse of process. The trial itself was adjourned so that the motion could be heard.

2In February 2025 Mr. Idris was charged with three offences in relation to an allegation that on August 7, 2024 he intentionally ran into Sgt. Young, fled the scene and then altered his motorcycle to conceal his identity.

3At trial, I heard evidence that on August 7, 2024, Sgt Young and three other officers were working paid duty on the Lakeshore at the Budweiser stadium entrance.

4Sgt. Young attempted to pull over a person on a motorcycle. That person drove into Sgt Young and then fled the scene. After being hit, Sgt. Young turned on his body worn camera so that the moments before the collision and the collision itself were captured on video. The three other paid duty officers that were on scene were interviewed by the police officers that were called to investigate the hit and run. There statements were captured on the body worn camera of one of the investigating officers.

5Ms. Goldenberg was assigned to prosecute this case along with co-counsel, Ms. Hill. Mr. Idris retained Ms. Jamshidi. At trial Ms. Goldenberg called a number of witnesses, most of whom were relevant to the issue of identification. She also called Sgt. Young and played the video of the collision that was captured on Sgt. Young’s body worn camera. Ms. Goldenberg did not call any of the other officers that witnessed the collision.

6Ms. Jamshidi called only one witness at trial, PC Hasanbasic. He was one of the paid duty officers that witnessed the collision. After P.C. Hasanbasic testified both counsel asked to adjourn the matter for two days so that they could prepare fulsome submissions.

7The following day I was advised that counsel would be seeking an adjournment of the trial proper so that they could bring an abuse of process application. This in part was based on an allegation that Ms. Goldenberg berated Officer Hasanbasic after he testified for the defence stating, “we protect our own”. The trial proper was adjourned, and the abuse of process motion was set for March 23, 24 and 26, 2026.

8Shortly after the allegations came to light, Ms. Goldenberg was removed from the case. Mr. Heeney and Mr. Quayat took over the prosecution and responded to the abuse of process motion. Ms. Jamshidi was a witness to some of the events, as such, she did not act as counsel on this application. Instead, Mr. Thorning, Ms. Banister-Thompson and Ms. Longo stepped in. I think it is important to comment on the professionalism of all counsel on this motion. This was a difficult case, and all counsel were respectful and helpful.

9The evidence for this motion was heard on March 23, 24 and 26. This included the viva voce testimony of Ms. Jamshidi, Mr. Idris, P.C. Hasanbasic, P.C. Viera, D.C. Silva and Ms. Goldenberg. I also had the benefit of some trial transcripts, an affidavit from Ms. Goldenberg, an affidavit from Mr. Idris, the notes of the officers, some emails and the videos from the courthouse that captured the interaction between Ms. Goldenberg and Officer Hasanbasic.

Issues raised

10The essence of the abuse application is that Ms. Goldenberg, the assistant crown attorney prosecuting this case, aligned herself with the police, lost objectivity and showed open disdain to the police witness after he provided testimony that ran contrary to the Crown theory. The Applicant alleges that the only reasonable inference is that Ms. Goldenberg attempted to engineer facts to secure a conviction.

11The respondents take the position that Ms. Goldenberg did not lose objectivity, did not align herself with the police and did not in any way attempt to engineer facts that would secure a conviction. Instead, the Crown argues that Ms. Goldenberg, In speaking to P.C. Hasanbasic did so only to advance the proper administration of justice by holding him accountable for his performance in court.

12In making the allegations against the prosecution in this case – and in particular against Ms. Goldenberg the defence relies on the following:

a) That Ms. Goldenberg failed to call any of the eyewitnesses to the collision because they did not support the Crown theory;

b) That Ms. Goldenberg refused to allow this matter to resolve in front a pre-trial judge who indicated he would be open to a non-custodial disposition;

c) That D.C. Silva sent an email to the witness officers reminding them that one of their own was hurt in this offence; and,

d) That Ms. Goldenberg berated P.C. Hasanbasic for testifying for the defence, made veiled threats to his career and said two or three times in one conversation “we protect our own” when yelling at him over his evidence.

13Counsel for Mr. Idris argued that all these events combined establish an intention to secure of conviction at all costs, an alignment by the Crown with the police and an interference with police independence.

Summary of Evidence

14As I understand the sequence of events, the conduct forming the substance of this motion arose after court on January 20, 2026, a short time after P.C. Hasanbasic testified. After he testified Ms. Goldenberg asked D.C. Silva to tell P.C. Hasanbasic to wait for her. The case was adjourned, and Ms. Jamshidi went into an interview room where both P.C. Hasanbasic and P.C. Viera were sitting. P.C. Hasanbasic left the room to speak with Ms. Goldenberg and when he returned, he was very upset. He was red in the face and made comments about what took place between himself and Ms. Goldenberg including that he was “handed a new one” for telling the truth. A short time thereafter, Mr. Idris reported that he overheard a discussion between Ms. Goldenberg and P.C. Hasanbasic. At this point, Ms. Jamshidi contacted P.C. Hasanbasic and asked him to take notes about his conversation with Ms. Goldenberg. In these notes P.C. Hasanbasic noted that Ms. Goldenberg told him that his evidence was the most embarrassing pathetic evidence she has heard in 37 years. He wrote that she was yelling and swearing him. P.C. Hasanbasic further wrote in his notes that when he asked her “what am I supposed to do? Lie?”. Ms. Goldenberg responded, “we protect our own”.

15As a result of this information, the entire prosecution was placed under scrutiny and became the focus of this application.

16In my view the evidence and allegations against the state can be broken down to two distinct yet related areas. The first relates to the way the prosecution was handled up to the point where P.C. Hasanbasic testified. This includes an allegation that Ms. Goldenberg had improper motives when she elected to not call any of the three eyewitness officers. It also includes an allegation of misconduct against D.C. Silva who sent an email to the officers reminding them of the court date and writing at the end of it “remember one of our own was hurt in this collision”. The second area relates to the evidence of Ms. Goldenberg’s exchange with P.C. Hasanbasic, her aligning herself with the police and berating an officer for not testifying in a manner that supported the Crown’s theory at trial.

Manner of Prosecution

[17] Ms. Jamshidi testified about her experience with Ms. Goldenberg during this case. and her understanding of the disclosure. According to Ms. Jamshidi, she received full disclosure in this matter, including the video taped statements of all the officers that witnessed the collision. At a judicial pre-trial, the issue of resolution was raised. The pre-trial judge indicated that he might be amenable to a noncustodial disposition. Upon hearing this, Ms. Goldenberg stated that if Mr. Idris wanted to resolve, she would not consent to Mr. Idris resolving this matter in front of the pre-trial judge.

18At trial, Ms. Goldenberg did not call any of the officers that witnessed the collision. Ms. Jamshidi testified that this was the first time she had ever defended a case where the Crown did not call a single eyewitness. It was Ms. Jamshidi’s view that the eyewitnesses were not called by the Crown because they contradicted Sgt Young’s evidence and the Crown theory that Mr. Idris intentionally drove his motorcycle into Sgt. Young.

19Ms. Goldenberg provided an affidavit and also testified at the abuse of process hearing. According to Ms. Goldenberg she did not call any of the three eyewitness officers because they had no meaningful evidence to give. It was her opinion that since the entire collision was captured on video, this was the best and only evidence necessary. According to Ms. Goldenberg, the three officers that witnessed the collision did not have as good a vantage point as the camera and their evidence would have been largely repetitive.

20In relation to her position at the judicial pre-trial, Ms. Goldenberg testified that it was her opinion that a non-custodial disposition was not in accordance with the standard range of sentence for this kind of offence and as such, she indicated that any resolution would have to take place in front of a different judge. Shortly thereafter trial dates were set.

21On January 9, 2026, D.C. Silva, the officer-in-charge (OIC) of the case, sent an email reminding all the police witnesses of the upcoming trial and that their attendance at court was required. At the end of the email he wrote “ remember it was one of our own that was hurt in this collision”. D.C. Silva in an affidavit filed with the court and during his evidence on the motion testified that he only wrote this phrase to remind the officers what the case was about as it had been a long time since the incident.

22At the time of trial, Ms. Goldenberg had no knowledge that this email had been sent. By the time Ms. Goldenberg swore her affidavit for this motion she had read it and referenced in her affidavit.

23P.C. Hasanbasic testified that he did receive this email from D.C. Silva but did not consider the comment at the end of the email to be significant.

The Exchange Between Ms. Goldenberg and P.C. Hasanbasic

24On January 21, 2026, P.C. Hasanbasic, at the request of Ms. Jamshidi, wrote notes about an exchange he had with Ms. Goldenberg shortly after he testified. P.C. Hasanbasic, in these notes, wrote that the conversation began by Ms. Goldenberg telling him that his testimony was worst she had heard in 37 years. That it was pathetic. She was yelling and swearing as she said this. The officer responded with a comment that he did not know what she wanted him to do, he was just telling the truth. According to P.C. Hasanbasic’s notes, Ms. Goldenberg continued to call him pathetic, said she was getting emotional and made a comment about “we protect our own”. He further wrote that at one point he asked her if she wanted him to lie, to which Ms. Goldenberg said “we protect our own”.

25At the hearing, P.C. Hasanbasic’s memory of the conversation was less clear. He remembered Ms. Goldenberg being angry at him and that she swore at him. P.C. Hasanbasic could not recall the exact swear words used by Ms. Goldenberg. It was his opinion that she was swearing out of frustration.

26P.C. Hasanbasic testified that he was shocked by the exchange because he had never been spoken to by a Crown that way before. The fact that it was carried out in public was of great concern to P.C. Hasanbasic. In his mind it was unprofessional, he was shocked and embarrassed.

27When asked for specifics of what Ms. Goldenberg said, P.C. Hasanbasic hesitated to provide any real detail. He ultimately did testify that Ms. Goldenberg said his evidence was the worst she had ever heard. He conceded that he was mistaken when he wrote in notes that she said 37 years since she has only been a Crown for 22 years.

28According to P.C. Hasanbasic, Ms. Goldenberg referenced her husband being an officer and while he was hesitant to say it, he ultimately testified that Ms. Goldenberg said “we protect our own” or at least words to this effect and that she made this comment two or three times during their discussion. P.C. Hasanbasic denied knowing what Ms. Goldenberg meant when she said this. He did testify, however, that it was his impression that he did not testify the way she wanted him to, that she wanted him to have lied when he testified as opposed to telling the truth. P.C. Hasanbasic also believed that Ms. Goldenberg was trying to convey that Sgt. Young was hurt and she was upset with his evidence on this point. She commented that Sgt. Young’s attitude in staying and working the rest of his shift was because he was a veteran officer as opposed to a new officer.

29P.C. Hasanbasic testified that he did not remember much else of what was said. He was shocked and embarrassed and his focus in that moment was not on the words said but more on Ms. Goldenberg’s tone and energy. P.C. Hasanbasic conceded that Ms. Goldenberg could have made specific comments about his testimony, but he was too shocked to absorb this.

30P.C. Hasanbasic left the conversation feeling like Ms. Goldenberg wanted him to have lied. She seemed both sad and angry during the exchange.

31P.C. Hasanbasic testified that after Ms. Goldenberg left, he returned to the room where Ms. Jamshidi and P.C. Viera were. He recalled that he commented that Ms. Goldenberg “tore me a new one for being honest”.

32P.C. Hasanbasic denied being flippant when he spoke to Ms. Goldenberg. He did concede that he had made some mistakes when he testified at trial. This included not being fulsome when asked by Ms. Jamshidi about Sgt. Young’s condition after the accident and that he should not have said that Sgt. Young was grazed by the motorcycle as he was in fact hit head on. P.C. Hasanbasic further conceded that someone viewing his mistakes during his evidence might find that did not take his job seriously.

33Mr. Idris also testified on the motion. According to Mr. Idris, he overheard the discussion between Ms. Goldenberg and PC Hasanbasic. Mr. Idris could not recall the entire conversation but did recall that he heard a woman say that she could not believe that you would testify against a sergeant of thirty years. She further said, “what you did today was disgusting”. She went on to say it was “fucking disgusting” and that she had never seen anything like that in her life. Mr Idris provided more detail about what he overheard in the affidavit that was filed with the court on this motion. He wrote:

From where I was sitting, I could hear the Crown raise her voice and say “I can’t believe you fucking testified against a sergeant of 30 years. You’re a young copper and you have many years ahead of you. If you continue this way, you won’t have a lengthy or easy career. You proceeded to say that he was not injured. How would you know? You said he finished his shift.”

The officer replied, “I’m sorry I was called to tell the truth. I was just saying what I had seen that day. I was not taking sides.” To which the Crown answered, “it’s disgusting what you did today. I’ve never witnessed something like this.”

34Ms. Jamshidi and P.C. Viera were not present for the interaction between Ms. Goldenberg and P.C. Hasanbasic. They did see P.C. Hasanbasic moments after the interaction. Both described him as looking upset. Ms. Jamshidi could not recall exactly what P.C. Hasanbasic told them, but it was something to the effect that he got in trouble for telling the truth. P.C. Viera testified that P.C. Hasanbasic said something to the effect that he was supposed to defend his boys or defend his team. When questioned further about what he specifically recalled P.C. Hasanbasic say, P.C. Viera testified that P.C. Hasanbasic said he was an honest officer and that it was not worth his reputation to lie.

35According to P.C. Viera this was a relatively short conversation. The three of them then proceeded to discuss other things.

36Ms. Goldenberg in both her affidavit and in her viva voce testimony maintained a number of things:

a) That she was not angry when she went to speak with P.C. Hasanbasic and only became irritated but not angry, by his flippant attitude.

b) She only wanted to talk to him about the importance of being accurate and taking good notes.

c) P.C. Hasanbasic’s testimony was the worst evidence she had heard in her entire career from an officer and identified five things that in her view were inconsistent in his evidence.

d) That she did not say “we protect our own”, did not swear and did not raise her voice.

e) She denied saying that P.C. Hasanbasic was a “young copper” with many years ahead of him and he will not have a long or easy career if he continues this way.

f) She denied saying his evidence was disgusting.

g) Ms. Goldenberg maintained that her only issue was P.C. Hasanbasic’s carelessness with his evidence and the impact that has on the justice system.

37Ms. Goldenberg testified that she did not view PC Hasanbasic as being an honest and truthful witness and that he failed to stand firm on what he believed.

38DC Silva testified that after P.C. Hasanbasic testified, Ms. Goldenberg asked him to ask P.C. Hasanbasic to stay so she could talk to him. D.C. Silva was present when Ms. Goldenberg spoke to P.C. Hasanbasic. The following day he received a phone call from Ms. Goldenberg asking him to record what happened that day. D.C. Silva did not recall Ms. Goldenberg specifically referencing the conversation with P.C. Hasanbasic but assumed that this was what she wanted him to write about. He had no recollection of why he assumed this. Later in his evidence D.C. Silva conceded that Ms. Goldenberg could have asked him to specifically write about the conversation with P.C. Hasanbasic.

39D.C. Silva testified that during the meeting with P.C. Hasanbasic, Ms. Goldenberg appeared upset and irritated. She was also talking quickly. Later in his evidence he conceded that Ms. Goldenberg was angry.

40According to D.C. Silva, Ms. Goldenberg identified for P.C. Hasanbasic the areas of his testimony that were inconsistent with Sgt. Young’s body worn camera video. P.C. Hasanbasic started to apologize but Ms. Goldenberg interrupted him and said “he was bleeding” she then pointed out that P.C. Hasanbasic testified that Sgt. Young was O.K. This was when Ms. Goldenberg told P.C. Hasanbasic that Sgt Young had been on the force for thirty years and that is what they do. She then commented on the fact that younger officers are more inclined to take time off for a scratch.

41D.C. Silva testified that while he could not recall the exact words used in the conversation, he was certain that Ms. Goldenberg did not swear, did not use the word pathetic and did not say “we protect our own”.

42It D.C. Silva’s opinion that P.C. Hasanbasic was not properly prepared for court and that his notes were not consistent with the video of the accident as captured on Sgt. Young’s body worn camera. D.C. Silva further identified the process for addressing internally issues arising from an officer’s testimony in court.

Position of the Parties

43Mr. Thorning, on behalf of the Applicant, argued that I should reject the evidence of both Ms. Goldenberg and D.C. Silva. He argued that the Crown improperly chose to not call three police eyewitnesses as they provided exculpatory evidence on the charge of dangerous driving. He further argued that Ms. Goldenberg’s conduct in not calling these officers when considered in the context of her chastising P.C. Hasanbasic about his evidence, supports the only inference that Ms. Goldenberg was angry that P.C. Hasanbasic testified for the defence and berated him for not towing the prosecution line. As such Ms. Goldenberg aligned herself with the police and failed to remain objective during this prosecution. Counsel further argued that suggesting to a police officer that he should not testify contrary to other officers is abusive. It is particularly pernicious when a Crown indicates to an officer their evidence needs to support other officers. This raises real concerns about rigging trials and consequences arising to officers, whose truthful evidence runs contrary to the prosecution. Mr. Thorning argued that if you find that those words were used, or that the sentiment was expressed, there needs to be a stay of proceedings as there is no other remedy to preserve the integrity of the administration of justice.

44Mr. Heeney on behalf of the Crown strongly urged me to accept Ms. Goldenberg’s evidence. He further argued that I should reject P.C. Hasanbasic’s evidence as he was not a good witness. Mr. Heeney’s position was that this is a human process, things can get heated in a courtroom and when a lawyer attempts to correct things out of court, things can get out of hand and sometimes events occur that were unintended. While Ms. Goldenberg’s conduct was unfortunate and unadvisable, the appropriate remedy has already occurred, Ms. Goldenberg has been removed from the case. No other remedy is necessary, and a stay of proceeding is not warranted in this case.

Summary of the Law

(i)Abuse of process

45In the case at bar, counsel for Mr. Idris argues that an abuse of process occurred because Crown counsel’s conduct fell far below that expected of Crown counsel in that she aligned herself with the police and engaged in improper practices in order to secure a conviction no matter the cost.

46The Applicant bears the burden of establishing that an abuse of process has occurred on a balance of probabilities. Abuse of process occurs where the conduct of the prosecution contravenes the community’s sense of decency and fair play (R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411). Abuse of process actions generally fall into two categories:

a) Where the conduct compromises the fairness of the trial (main category)

b) Where the state conduct does not compromise the fairness of the trial, but the conduct is so egregious that it risks undermining the judicial process (R. v. Van Hoof, 2026 ONSC 38 at para 25 and R. v. Babos, 2014 SCC 16).

47In relation to this latter category, the question the court must ask is whether the “state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with the trial in the face of that conduct would be harmful to the integrity of the justice system” (R. v. Van Hoof, supra, at para 27).

48Prosecutorial behaviours amounting to prosecutorial misconduct have been considered in a host of cases. In R. v. Van Hoof, supra, the trial judge noted, at para 28,

Helpfully, the Supreme Court in Anderson highlighted a range of terminology from jurisprudence to describe the type of prosecutorial conduct that constitutes an abuse of process. It cited Kreiger v. Law Society of Alberta for the descriptor “flagrant impropriety” and R. v. Nixon where there is evidence that the Crown’s decision “undermines the integrity of the judicial process”, results in “trial unfairness”, involves “improper motive[s]”, and “bad faith”.

49Not all Crown misconduct will amount to an abuse of process. It is only conduct that undermines the integrity of the judicial process that will amount to an abuse of process.

(ii) Stay of proceedings as a remedy

50Pursuant to section 24(1) of the Charter, as a remedy for a Charter breach, a court can impose any remedy that the court deems appropriate and just in the circumstances. A stay of proceeding can be an appropriate and just remedy, but it is the most drastic remedy. The Supreme Court of Canada has consistently stated that a Stay of Proceedings is a remedy that should only be resorted to in the clearest of cases given society’s interest in having matters tried on their merits. In R. v. Babos, supra, the Supreme Court of Canada summarized the relevant legal principles as they relate to a stay of proceedings:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para 54).

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”.

51Where there is no issue about trial fairness, the question is whether the state has engaged in conduct that is “offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system” (R. v. Babos, supra, at para 35, R. v. Somerville, [2017] ONSC 3311 at para 115).

52As noted in R. v. Somerville, supra, at the second stage the question is whether a remedy short of a stay of proceedings is capable of redressing the prejudice. At the third stage, the court must assess whether “the integrity of the administration of justice is better protected by a stay or by a trial, despite the impugned conduct” (R. v. Somerville, supra, at paragraph 118).

53As noted by Doherty J.A. in R. v. Currado, 2023 ONCA 274, “not every state misstep or failure to comply with various duties and obligations on the prosecution will be sufficiently serious or significant to justify a finding that the state conduct has so offended the notions of fair play and decency as to undermine the integrity of the justice system”. Unwise, unnecessary or even improper misconduct is not enough. In R. v. Regan, 2002 SCC 12 the SCC, the Supreme Court of Canada held that where there is an absence of evidence of a systemic problem that will likely continue if the case proceeds, a stay of proceedings will rarely be the appropriate remedy.

Analysis

(i) Findings of fact and credibility/reliability

54Before addressing the evidence in this case I want to make some preliminary observations. I am in the most difficult of positions as the judge on this motion. I am in the unenviable position of having to make credibility assessments about lawyers that normally appear before this court. In the ordinary case, where a local lawyer is testifying in court an outside judge is called in. This is because the criminal bar is small and most people practicing criminal law in Toronto either know of each other or of the lawyer’s reputation. This case is different because the issue that led to lawyers becoming witnesses arose in the middle of a trial. I am now seized and as such it falls on me to rule on this motion. Neither party has asked me to recuse myself. I have nonetheless considered whether I can objectively assess the evidence in this case. I have concluded that while both Ms. Jamshidi and Ms. Goldenberg have appeared before me as counsel, I am able to put prior notions about them aside and decide this case solely on the evidence before me. I am further of the view, that since the evidence at trial is relevant to this motion, I am best positioned to make factual findings on this motion.

55I further want to note that both Ms. Goldenberg and Ms. Jamshidi are well respected lawyers. They are both hard working, diligent, well versed in the law and have stellar reputations.

56In assessing the evidence in this case, I appreciate how challenging it can be to testify, especially when one’s integrity is being questioned. It is normal and natural to get defensive especially when cross-examined by skilled litigators. Becoming defensive in and of itself is not a basis to reject a witness’s testimony. With this in mind and keeping in mind Ms. Goldenberg’s stellar reputation in the legal community and excellent work ethic, it is with great reluctance that I find that I cannot accept her evidence about what occurred during her discussion with P.C. Hasanbasic. In my view, Ms. Goldenberg’s evidence that a) she was not angry when she spoke to P.C. Hasanbasic b) that she had no theory of her case c) that she did not raise her voice or swear at P.C. Hasanbasic and d) that her issues with his evidence related to meaningful inconstancies in his evidence run contrary to independent objective evidence filed on this motion and also defies common sense. As such I reject her evidence on these points. I will address the remaining issues around whether she said “we protect our own” later in this decision when I address P.C. Hasanbasic’s evidence.

a) Ms. Goldenberg’s assertion that she was not angry.

57Ms. Goldenberg has consistently maintained that she was not angry when she confronted P.C. Hasanbasic. She further maintained that while she became irritated at what she perceived to be his flippant attitude towards his evidence, she was not angry, did not raise her voice and did not point her fingers at him.

58At paragraph 47 of her affidavit, Ms. Goldenberg wrote that at the end of the conversation with P.C. Hasanbasic “[i] realized that, although I was not angry, I was no longer calm”.

59At the hearing, Ms. Goldenberg testified that her tone when speaking to P.C. Hasanbasic was mild. While it was not a “quiet voice”, it was also not a “raised voice”. She testified that it was “regular speak”. Ms. Goldenberg did acknowledge that her voice became “sterner” during the conversation, but maintained it was not raised.

60The video of her interaction with P.C. Hasanbasic was played in court. Ms. Goldenberg, having watched the video maintained that she was not aggressive in the way she used her hands and that there was nothing unusual about the way she spoke to the officer as she always speaks with her hands.

61I have now watched this video many times. I agree that Ms. Goldenberg, much like me, can be animated when speaking and uses her hands. Having said that, while there is no sound to the video there is no doubt in my mind that Ms. Goldenberg is angry. Both her body language and her facial expressions support this conclusion. She is not only using her hands while speaking, her face has an angry expression on it and on more than one occasion she turned away from P.C. Hasanbasic after making some kind of comment and then turned back to continue what on its face appears be a “dressing down”.

62I further note that while I had significant concerns with D.C. Silva’s evidence, which I will address in more detail below, even he, albeit very reluctantly and after some prodding, agreed that Ms. Goldenberg sounded angry. Moreover, Mr. Idris also testified that Ms. Goldenberg’s voice was raised.

63In light of all this evidence, I am satisfied that the Applicant has established that Ms. Goldenberg was angry and raised her voice when talking to P.C. Hasanbasic and I reject Ms. Goldenberg’s evidence that she was not angry.

b) Evidence on Crown theory

64Ms. Goldenberg, in her affidavit filed with the court wrote “the Crown alleges that Mr. Idris intentionally drove his motorcycle into Sgt. Blaine Young”. There is nothing wrong with this statement. That was what I believed to be the Crown’s theory in this case based on how the trial progressed. It was therefore somewhat surprising when Ms. Goldenberg backtracked from this position during her evidence on this motion.

65When first asked about whether this was the Crown theory, Ms. Goldenberg denied having a theory of the case. She was then cross-examined at length about her denial that she had a Crown theory even when it became apparent how illogical this position was. Ms. Goldenberg is a very talented and skilled prosecutor. One of the first things lawyers learn in trial advocacy is to have a theory of the case. There is nothing wrong with having a theory. Having a theory ensures that the case is prosecuted or defended properly. In my view, it runs contrary to common sense that a senior Crown, when starting a trial, would not have a theory of the case. I am unable to accept her evidence on this point.

66It is not the presence or absence of a Crown theory, however, that is of significance in this case and by itself this would not be enough to cause me to reject Ms. Goldenberg’s evidence. In my view, it is her denial that she sought to prove that Mr. Idris intentionally drove into Sgt. Young that is really concerning and not believable. I reach this finding for two reasons. Firstly, Ms. Goldenberg’s evidence on the motion was inconsistent with her affidavit on this particular point. As noted above, Ms. Goldenberg wrote in her affidavit that the Crown alleged that Mr. Idris intentionally drove into Sgt Young. When asked about this at the hearing, once counsel was able to get her past the “theory issue”, Ms. Goldenberg denied that she was trying to prove at trial that Mr. Idris intentionally drove into Sgt Young. In my view this is a meaningful inconsistency. Ms. Goldenberg’s affidavit was not a hurried document where she may have been less than careful with the language used in it. This affidavit is detailed, references specific evidence from the trial and was completed after the receipt of legal advice. This is a substantive change in Ms. Goldenberg’s evidence without any meaningful explanation for the change.

67Secondly, Ms. Goldenberg was internally inconsistent at trial on this point. After extensive cross-examination about what she wrote in her affidavit, Ms. Goldenberg, in my view, appeared to finally agree with what she wrote in her affidavit – that she sought to establish that Mr. Idris intentionally drove into Sgt. Young. Later in her evidence, however, Ms. Goldenberg again denied that she was trying to prove this at trial and instead testified that she was just trying to prove the essential elements of dangerous driving. Thirdly, not only is Ms. Goldenberg’s evidence on this point inconsistent, her denial that she was trying to prove that Mr. Idris intentionally drove into Sgt Young is inconsistent with what happened at trial. I am mindful that the offence of dangerous driving could be made out in a myriad of ways, including by failing to pull over when instructed to do so. But this was not the way the case was run. The evidence she called on this point was only that of Sgt. Young who testified that in his opinion the driver intentionally drove into him.

68In my view, this change in Ms. Goldenberg’s evidence is meaningful when one considers the significance of this piece of evidence. The Applicant’s position on this motion is that Ms. Goldenberg elected to not call the three officers that witnessed the collision because their evidence ran contrary to the Crown’s theory that Mr. Idris intentionally drove into Sgt. Young. If the Crown did not have this theory in mind, then the Applicant’s position has no merit. In these circumstances, I reluctantly conclude that Ms. Goldenberg’s denial that her plan at trial was to prove that Mr. Idris intentionally drove into Sgt. Young is not credible and that she only resiled from her affidavit on this particular point to deflate one of the arguments made by the Applicant on this motion.

c) Tone of voice and profanity

69Ms. Goldenberg wrote in her affidavit and testified at the hearing that she did not raise her voice or use profanity during her discussion with P.C. Hasanbasic. The video of the interaction does not assist in determining whether Ms. Goldenberg used profanity as there is no audio. Mr. Idris provided an affidavit and testified at the hearing. According to Mr. Idris’ affidavit he heard Ms. Goldenberg say “I can’t believe you fucking testified against a sergeant of 30 years”. He further testified that Ms. Goldenberg referred to his evidence as being “fucking disgusting”. P.C. Hasanbasic also testified that Ms. Goldenberg used profanity during his interaction with her.

70Mr. Heaney strongly urged me to reject Mr. Idris’ and P.C. Hasanbasic’s evidence on this point. Mr. Heaney highlighted that Mr. Idris’ evidence was unreliable since his evidence about who left the courtroom first was contradicted by video evidence. I agree that Mr. Idris’ evidence about who left the courtroom first was inaccurate. When the video was put to him, he readily agreed that he made a mistake on this. In my view, this is the kind of mistake one makes about unimportant details. It does not matter who left the courtroom first. This is the kind of mistake that anyone – even honest and otherwise reliable people – could make. It does not, in my view, detract from Mr. Idris’ evidence.

71This error is much like the one Ms. Goldenberg made during her evidence about when she heard about the allegations. She testified at first that she received Ms. Jamshidi’s email giving her the heads up about the motion and then contacted D.C. Silva. When it was pointed out to her that this could not possibly be true because the email from D.C. Silva outlining his memory of what occurred at the elevators was sent prior to Ms. Jamshidi’s email alerting her to the issue, Ms. Goldenberg then recalled that Ms. Jamshidi telephoned first and then sent the email. Much like Mr. Idris’ error, this was clearly just an honest mistake about the timing of events where there was no real reason to remember them.

72In my view, Mr. Idris’ evidence was very credible and very reliable. He admitted that he was eavesdropping on a conversation and that he hid when it was over so that he would not be seen. The video from the courthouse hallway confirms his location and his actions. Mr. Idris’ evidence does not fully align with the other defence witnesses so as to suggest any collusion. While Mr. Idris has a lot to gain if the charges against him are stayed, I note that he did not confirm the use of the words “we protect our own” which is arguably the more egregious comment allegedly made by Ms. Goldenberg. Moreover, there was nothing in his evidence that caused me to disbelieve him.

73In these circumstances, when I look at all the evidence, I completely accept Mr. Idris’ evidence that Ms. Goldenberg used profanity when speaking to PC Hasanbasic and reject Ms. Goldenberg’s evidence on this point.

74I am mindful that D.C. Silva also testified that no profanity was used during this conversation, but I reject most of his evidence. In my view, D.C. Silva came to court and was less than candid in his evidence. I completely reject his evidence that when he wrote “remember one of our own was hurt in this collision” that he did so only to remind the officers about what case they were being called to testify about. As Mr. Thorning pointed out during cross-examination, D.C. Silva sent an email about the same case to the officers just a few days earlier that included a reminder of what the case was about. This, in my view, called into question the necessity of the reminder in the January 9^th email. More importantly, in this previous email, the words used by D.C. Silva to remind the officers what the case was about were “this case involves the motorcycle that struck sergeant Blaine Young a couple of summers ago”. D.C. Silva is an experienced officer. I agree with Mr. Thorning that as an experienced officer, he knows how to properly notify officers about court. Reminding them that “one of [their] own was hurt” is not a reminder of the case; it is a direct message to the officers that this case matters because it was an officer – “one of their own” that was hurt. D.C. Silva’s evidence on this point, in my view, was just not credible.

75There were other issues with D.C. Silva’s testimony that were less significant but fortify my view that his evidence is not credible. D.C. Silva maintained at the hearing that Ms. Goldenberg did not utter the specific words that P.C. Hasanbasic and Mr. Idris attribute to her. He maintained this position during the hearing despite his ultimate concession that he could not recall exactly what words were said. I do not understand how D.C. Silva can be so certain of what was not said if he is not even sure of what was said.

d) P.C. Hasanbasic’s evidence was the worst evidence by a police officer

76Ms. Goldenberg’s evidence at the hearing was that she decided to speak to P.C. Hasanbasic about his evidence because it was the worst evidence of a police officer that Ms. Goldenberg had ever heard in her 22 years as a prosecutor. Given her obligation to the administration of justice it was appropriate for her to discuss the evidence with him. According to Ms. Goldenberg, her intention was to speak to him and tell him “that it is important to be accurate and consistent with notes and a statement”. She further wrote in her affidavit that “It was also to tell him to stand firm on what he knows, which he did not do during cross-examination. As well, if needed to make any changes to his notes or statement, he should have advised the OIC immediately so that it could be disclosed and I can reassess the strength of the Crown’s case”.

77According to Ms. Goldenberg, she only began pointing out specific issues with his evidence when he displayed what she believed to be a flippant attitude towards his own evidence.

78Mr. Heeney on behalf of the Crown argued that Ms. Goldenberg’s position is supportable when one looks at P.C. Hasanbasic’s evidence at trial and on this motion. P.C. Hasanbasic was a frustrating witness who agreed with almost every proposition put to him. Ms. Goldenberg’s description of him being like” butter” was an apt description and it was understandable why one might be frustrated with the evidence. Mr. Thorning, on the other hand argued that Ms. Goldenberg’s comments about P.C. Hasanbasic’s evidence was an after the fact justification for her actions and that her criticisms of his evidence are not supported by the evidence. To that end, he cross-examined Ms. Goldenberg at length about the alleged problems with P.C. Hasanbasic’s evidence.

79I agree with some of Mr. Heeney’s observations about the difficulties with P.C. Hasanbasic’s evidence. He was a malleable witness who tended to agree with most of the questions put to him in cross-examination and did not “stand firm”. Having said that, when I consider P.C. Hasanbasic’s trial evidence, his evidence on this motion, the video evidence and Ms. Goldenberg’s evidence, it is my view, that Ms. Goldenberg’s explanation for why she originally wanted to speak to the officer about is not supported by the evidence. It is also my view that Ms. Goldenberg’s position that P.C. Hasanbasic’s evidence was the worst she had ever heard is objectively unreasonable. To understand my conclusion, it is helpful to first review the concerns raised by Ms. Goldenberg.

80Ms. Goldenberg identified five areas that caused her to be troubled by P.C. Hasanbasic’s evidence:

a) Distance from Sgt Young at time of accident

b) Distance Sgt. Young moved by motorcycle

c) Injury to Sgt. Young

d) Impact of collision

e) What bike did prior to collision

81Ms. Goldenberg was very clear that it was not a single inconsistency that caused her to be concerned it was the cumulative effect of the evidence. I will nonetheless address each inconsistency as this is the only reasonable way to assess whether Ms. Goldenberg’s opinion about the evidence is objectively reasonable.

82Before I address each of these alleged inconsistences, it is helpful to first explain the history of P.C. Hasanbasic’s evidence. P.C. Hasanbasic and others were on paid duty on the night of the collision outside of Budweiser stadium. The collision was unexpected. P.C. Hasanbasic was an eyewitness to the event as opposed to an investigating officer on this case. P.C. Hasanbasic and the other police eyewitnesses were interviewed within an hour of the collision. Their interviews were captured on video. P.C. Hasanbasic also wrote brief notes of the event in his memo book. Other eyewitness officers did not. P.C. Hasanbasic’s video statement, recorded that night, reflected his perception of what occurred. As I understand it, he had not seen the video from Sgt. Young’s body worn camera that actually captured the collision at the time he made his statement and made his notes. As such, to the extent that his notes and statement differ from the video, it is understandable. He was reporting what he saw, not what was on the video. P.C. Hasanbasic, did however, review all this material the day before he testified. This is important for a couple of reasons. Firstly, the first time P.C. Hasanbasic would have become aware of any inconsistency between his statement to police (or his memory of what occurred) and the video of the accident would have been just prior to trial. There was not a lot of time to then reach out to the OIC about any potential changes that arose from watching the video. It therefore defies common sense that Ms. Goldenberg was legitimately planning on speaking to P.C. Hasanbasic about notifying an OIC about any changes to his notes. Secondly, as I will review in more detail below, P.C. Hasanbasic’s evidence was largely, albeit not completely, consistent with his notes, making it unlikely that the issue Ms. Goldenberg wanted to discuss with P.C. Hasanbasic was related to his note taking.

83The first two inconsistencies raised by Ms. Goldenberg relate to distances; where P.C. Hasanbasic was standing at time of collision and how far Sgt Young was moved when hit by the motorcycle. P.C. Hasanbasic gave his evidence in chief on both these points. During cross-examination he was shown the video of the accident. Ms. Goldenberg paused the video at times and focused in on specific details in the video that in my view are not necessarily the focus when watching the video for the first time. When the video was broken down and P.C. Hasanbasic was taken to his specific location at the time of the collision and the distance Sgt. Young was moved by the motorcycle, P.C. Hasanbasic admitted that his evidence about distance was inaccurate. I first note, and Ms. Goldenberg conceded, eyewitnesses are often mistaken about distances. In fact, Sgt. Young himself was mistaken about how far he was moved by the motorcycle. This is a common, understandable error that should not have yielded such strong disdain from the Crown. Secondly, when pressed about why this evidence was so offensive to Ms. Goldenberg, she stated that what bothered her was that P.C. Hasanbasic did not stand firm in his evidence. I find this answer very troubling. P.C. Hasanbasic did what I would expect an honest witness to do. He testified about his perception of an event and when faced with independent evidence that contradicted him, he admitted his mistake. That is the sign of an honest witness. Honest witnesses can be mistaken – and in this case P.C. Hasanbasic was mistaken about distances in the same way Sgt. Young was mistaken.

84The next area that troubled Ms. Goldenberg was that she believed P.C. Hasanbasic was inconsistent and completely wrong in his testimony about the injury suffered by Sgt Young. I agree with Mr. Thorning that P.C. Hasanbasic’s evidence was not necessarily inconstant and Ms. Goldenberg’s failure to concede this is, in my view, unreasonable.

85P.C. Hasanbasic at the conclusion of his testimony in-chief was asked about Sgt. Young’s condition after the accident. P.C. Hasanbasic testified that Sgt. Young was fine, that he came to tend to Sgt. Young but he said he was fine. P.C. Hasanbasic further stated that Sgt. Young was still standing. In cross-examination Ms. Goldenberg asked P.C. Hasanbasic about there being blood on Sgt. Young. P.C. Hasanbasic replied that he did not know the extent of his injuries but knew he was injured.

86In assessing if this is even an inconsistency it is important to note a number of things. Firstly, Ms. Goldenberg did not ask P.C. Hasanbasic to explain what he meant by his evidence in chief that he thought Sgt Young was fine, nor did she put what she alleges is an inconsistency to him. Secondly, a thorough review of all the information that was available at the time supports a finding that despite having a cut to his leg, Sgt. Young was fine. Sgt. Young was asked many times if he was alright and he repeatedly stated he was fine. He did not want to sit down, did not fall down after the accident, did not want a ride home, called his injury a “nick” and completed his shift. In light of all this evidence, P.C. Hasanbasic’s evidence that Sgt. Young’s “condition” was fine is not inaccurate and not inconsistent with his own notes or the independent evidence. There was nothing about this aspect of P.C. Hasanbasic’s evidence that reasonably leads to the necessity of a conversation about his notes or the accuracy of his evidence. Having said that, I do accept that Ms. Goldenberg believed that P.C. Hasanbasic was not truthful or understated the harm done to Sgt. Young. It is view, however, that this was an unreasonable conclusion and is linked her lack of objectivity in this case.

87The next area identified by Ms. Goldenberg that caused her to find P.C. Hasanbasic to not be credible and to be so awful that he had to be spoken to was that at trial he testified that Sgt Young was grazed by the motorcycle where as in his notes he wrote that the motorcycle made contact with Sgt Young and hit him. He did not use the word graze in his notes and if one watches the video, it does not appear to be a graze. I agree that this is a meaningful inconsistency.

88The final area that Ms. Goldenberg referred to in her evidence was that P.C. Hasanbasic was inconsistent in his evidence about what the motorcycle did prior to contact. In reality, there is no meaningful inconsistency here. At trial P.C. Hasanbasic testified that the motorcycle kind of weaved and looked like it was going to fall and then went through. He further testified that it looked like he either lost his balance or tried to avoid the officer. The inconsistency identified by Ms. Goldenberg is that P.C. Hasanbasic did not use the words “lost his balance” in his notes. When pressed about the importance of this at the hearing, Ms. Goldenberg indicated that P.C. Viera used this same language in his notes which raised the spectre of collusion. I note that she never put this to P.C. Hasanbasic. He was never given the opportunity to address this accusation. When I read P.C. Hasanbasic’s notes, while he does not use the words potential loss of balance, he did write “ back and forth /side to side motion”. He then wrote “unknown if trying to avoid or intentionally hit”. It is reasonable to infer loss of balance when someone is seen weaving side to side and is unclear if they accidentally ran into a pedestrian. This evidence, in my view, also did not call out for a discussion about the importance of taking accurate notes.

89When I look at P.C. Hasanbasic’s trial evidence in its totality, his evidence, while not perfect, was not particularly awful. Moreover, his errors do not call into question his honestly, but instead his recollection of events. Even looking at the above errors cumulatively, it is my view that objectively P.C. Hasanbasic’s evidence just was not that bad. As such, it is inconceivable that his evidence was the worst evidence of a police officer that Ms. Goldenberg has heard. I appreciate that I do not know the details of all the cases that Ms. Goldenberg has prosecuted over the years, but it seems difficult to imagine that our exposure is so vastly different as to make her claim reasonable.

90Having concluded that P.C. Hasanbasic’s evidence objectively was not as bad as Ms. Goldenberg claims, the question I ask myself is why she made this claim. Mr. Thorning argued that this was an after the fact justifications for inappropriately chastising P.C. Hasanbasic after he testified. I agree this is one available inference. The other inference is that Ms. Goldenberg truly believed his evidence was the worst she had ever heard. In face of how unreasonable this assessment is, if this is true, then the only reasonable inference is that she believed his evidence was so terrible only because she lost all objectivity in prosecuting this case and became angry that P.C. Hasanbasic did not support the Crown theory on both the extent of the injuries suffered by Sgt. Young and the reason for the collision. It was his failure to align himself with the prosecution and with a 30 year officer that made her so angry and it was this aspect of his evidence that Ms. Goldenberg wanted to talk to him about. This is consistent with what Mr. Idris heard Ms. Goldenberg say to P.C. Hasanbasic.

91In a similar vein, I reject Ms. Goldenberg’s evidence that any emotions she felt were related to P.C. Hasanbasic’s flippant attitude as opposed to his evidence. Having heard P.C. Hasanbasic testify at both the trial and this motion, and having watched the video of the exchange between him and Ms. Goldenberg, it is my view that there was nothing flippant about P.C. Hasanbasic and that his comment about being uncomfortable was a sincere expression of how he felt.

92I now turn to P.C. Hasanbasic’s evidence.

93I agree with Mr. Heeney that P.C. Hasanbasic’s evidence was not ideal. He was incredibly malleable and willing to agree with almost every suggestion Mr. Heeney put to him in cross-examination. His manner of testimony was exactly the opposite of the way Ms. Goldenberg testified. Ms. Goldenberg stayed firm, so much so that she at times refused to even admit the obvious for the sake of staying firm. P.C. Hasanbasic, on the other hand, consistently agreed with suggestions put to him and admitted over and over that he could be mistaken. I found P.C. Hasanbasic to be an honest, but not necessarily completely reliable witness.

94The reliability issues that arise in P.C. Hasanbasic’s evidence relate to his own admission that he could not recall a lot of what Ms. Goldenberg said to him in their brief conversation, admitted that his memory of parts of the conversation could be incorrect and admitted that he was wrong when he testified that Ms. Goldenberg said his evidence was the worst she had heard in her 37 years as a Crown as she has only been a Crown for 22 years.

95Despite these issues, I do not completely reject his evidence. Firstly, I note that P.C. Hasanbasic’s evidence on the abuse of process motion was far worse than his evidence at trial. In my view, one of the reasons for his poor testimony at this hearing was that he did not want to testify about his meeting with Ms. Goldenberg. He was a very “reluctant’ witness. This reluctance was evident during examination-in-chief. In the notes that he wrote the day after the incident, P.C. Hasanbasic wrote that Ms. Goldenberg said, “we protect our own” more than once and in particular she said this after he asked, “what was I supposed to do, lie?”. When asked about this phrase at the abuse of process motion, the following exchange occurred:

Q: the next sentence says she said, and that you have the quotations again. In the quotations it says, “we protect our own”. Why are those words in quotation? A. Because I remember her saying something along those lines of that.

Q. Okay, you don’t want to say it. You don’t want to say what she said? A. I’d rather not

Q. Why? Tell us why

A. Just it’s – an uncomfortable position I’m in.

Q. I understand. I get it. Those words, you have them in quotations, though?

A. yes, I do

Q. So, I guess my question is, is there a reason why they’re in quotations? A. Because to the best of my recollection, something along those lines was said.

Q. Okay what did you understand that to mean, that phrase? A. Honestly, I don’t even remember

96Mr. Thorning pushed P.C. Hasanbasic a bit more about what that phrase meant and ultimately P.C. Hasanbasic conceded that it was self explanatory but still refused to testify about what this phrase meant to Ms. Goldenberg.

97Secondly, P.C. Hasanbasic explained at trial that certain comments made by Ms. Goldenberg stood out to him while others he could not recall at all because he was so shocked by what was taking place he could not absorb all that was said. He further explained that he was so shocked and embarrassed by Ms. Goldenberg’s actions that he was more focused on Ms. Goldenberg’s tone, energy and his embarrassment than the actual words being uttered. This makes complete sense. It is such a human response to only focus in on a few phrases when one is unexpectedly confronted in public while at work.

98Thirdly, as I will explain in more detail below, some of his evidence was in fact corroborated by other evidence that I do accept.

99In relation to P.C. Hasanbasic’s credibility, I note that he admitted to facts that did not put him in the best light. For example, he testified that his reaction to Ms. Goldenberg in that moment was largely linked to being chastised in public. He further admitted that his trial evidence was not great. In my view, P.C. Hasanbasic did his best to tell the truth when he testified.

100When I consider all the evidence, I accept the following from P.C. Hasanbasic’s evidence:

a) that Ms. Goldenberg said that his evidence was the most embarrassing and pathetic evidence she has ever heard

b) that Ms. Goldenberg swore at him

c) that Ms. Goldenberg was angry about his evidence in relation to Sgt Young’s injuries and commented about the attitudes of newer officers and in doing so also spoke about her husband

d) that Ms. Goldenberg said, “we protect our own” or words to that effect after P.C. Hasanbasic said “what am I supposed to do? lie?”

101In relation to the comments about the quality of his evidence, P.C. Hasanbasic testified that Ms. Goldenberg said to him that it was the most pathetic and embarrassing evidence that she has heard in 37 years. P.C. Hasanbasic admitted Ms. Goldenberg could not have said 37 years since she has only been prosecuting cases for 22 years. He was clearly mistaken about this. While he may have been mistaken about the number of years Ms. Goldenberg said she has been working as a Crown, his evidence that she commented that his evidence was most pathetic and embarrassing she has ever heard is completely believable. Firstly, the number “37” did not come out of thin air. Ms. Goldenberg testified that this is how many years her husband had been an officer. When someone is yelling at you in the hallway after you just gave evidence, mixing up these numbers is completely understandable. Secondly, on Ms. Goldenberg’s own evidence she thought his evidence was the worst she ever heard. Given her obvious anger and her stated views about his evidence, it is easy for me to accept that when yelling at him in the court hallways she said his evidence was the most embarrassing and pathetic she has ever heard.

102In relation to the profanity, P.C. Hasanbasic’s evidence does not stand alone. Mr. Idris, whose evidence I do accept, also testified to hearing Ms. Goldenberg use profanity. This assists me in being confident, that despite the reliability issues with P.C. Hasanbasic’s evidence, he was accurate on this point.

103In relation to the comments about Sgt. Young’s injuries, her husband and the behaviour of younger officers this evidence came from a variety of witnesses. There is no doubt Ms. Goldenberg commented on the difference in attitudes between new and older officers and in doing so commented that her husband is an officer.

104The final and most contentious comment alleged to have been made by Ms. Goldenberg is the comment “ we protect our own”. Mr. Heeney argued that given the frailties in P.C. Hasanbasic’s evidence, his admission that she said, “something like that”, the fact that no other witness heard Ms. Goldenberg say this and P.C. Hasanbasic’s failure to report this phrase to Ms. Jamshidi and P.C. Viera, I should find that Ms. Goldenberg did not make this comment. Despite counsel’s very able arguments, I respectfully disagree.

105The starting point to my assessment is that I accept that P.C. Hasanbasic left this brief meeting with the belief that Ms. Goldenberg was mad at him for telling the truth. This was his evidence on the motion and is consistent with his reaction right after the meeting. Moreover, while I appreciate that P.C. Hasanbasic’s memory is less than stellar, I note that immediately after this meeting, he made a comment to both P.C. Viera and Ms. Jamshidi about getting in trouble for telling the truth or being told to lie. This is important not because it is a prior consistent statement but because it rebuts any suggestion of recent fabrication or mistake due to the passage of time.

106In my view, Ms. Goldenberg saying “we protect our own”, or words that convey the exact same meaning in response to P.C. Hasanbasic’s comment “what was I supposed to do, lie?” is consistent with P.C. Hasanbasic leaving the meeting with the belief that he got in trouble for telling the truth. This in my view, supports a finding that P.C. Hasanbasic’s evidence on this point was accurate. That is, his feeling after leaving the meeting is consistent with Ms. Goldenberg saying, “we protect our own”. On the flip side, nothing in Ms. Goldenberg’s version of events explains why P.C. Hasanbasic felt like he was in trouble for telling the truth.

107I further note that P.C. Hasanbasic testified that he only recalled a few phrases made by Ms. Goldenberg and this was one of them. The other phrases he recalled were in fact confirmed by other parties – in particular the profanity and being told his evidence was pathetic. This provides further support for his evidence on this point.

108Crown counsel argued that I should accept Ms. Goldenberg’s evidence that she did not say “we protect our own” because even P.C. Hasanbasic admitted that he could not recall the exact words used by Ms. Goldenberg. When I consider P.C. Hasanbasic’s evidence as a whole, I do not take this to mean that P.C. Hasanbasic was admitting that the essence of this phrase was not said. Instead, as I read his evidence, Ms. Goldenberg used this phrase or used other words that conveyed the exact same thing two or three times during his discussion with her. This was one of the few areas in his evidence where P.C. Hasanbasic remained firm.

109Crown counsel also argued that I should reject P.C. Hasanbasic’s evidence that Ms. Goldenberg said “we protect our own” because he did not relay this to P.C. Viera and Ms. Jamshidi right after the event. Respectfully, I disagree. P.C. Viera while testifying that P.C. Hasanbasic did not tell him that Ms. Goldenberg said, “we protect our own, he did testify that P.C. Hasanbasic made a comment about how he was supposed to “defend the team” or “defend the boys” which is very close to “we protect our own” and, in my view, conveys the exact same message.

110Ms. Goldenberg in her affidavit suggests that perhaps P.C. Hasanbasic was thinking about D.C. Silva’s comments in his email “it was one of our own that was hurt in the collision” which he in error attributed to her. This argument has its appeal given the limits on P.C. Hasanbasic’s memory of events. Having said that, the email in question was sent a week or more before the exchange and P.C. Hasanbasic would have had no reason to revisit it when he wrote his notes. This makes it unlikely that he was conflating the two events. Moreover, P.C. Hasanbasic’s narrative has the comment coming at the heals of his question about wanting him to lie, which is clearly what upset him the most in this conversation. What ever his flaws may be, P.C. Hasanbasic is an honest officer, who clearly prides himself in his honesty and integrity.

111I am mindful that Ms. Goldenberg denies making this comment. As I previously stated, I have rejected large portions of her evidence in particular as it relates to her conversation with P.C. Hasanbasic. In my view, Ms. Goldenberg did not provide the court with a fair and fulsome account of what took place. On this particular point, I accept that P.C. Hasanbasic’s evidence and reject Ms. Goldenberg’s evidence.

112There are two other comments that are attributed to Ms. Goldenberg that she denies making. These come from Mr. Idris. Mr. Idris testified that he heard Ms. Goldenberg comment on P.C. Hasanbasic’s career and that she said that she could not believe he testified against a copper of 30 years. I have already indicated that I found Mr. Idris to be a very credible witness, and I accept his evidence that Ms. Goldenberg made these comments. I am mindful that P.C. Hasanbasic did not confirm this, but he did not recall much of this conversation. His failure to recall these comments does not lead me to doubt that these comments were made. I am mindful that Ms. Goldenberg has denied making these statements but Ms. Goldenberg’s account of what was said during this meeting is not credible and as such her evidence does not cause me to doubt Mr. Idris’ evidence on this point. I therefore find that Ms. Goldenberg made these comments.

113In light of my credibly and reliability findings I make the following findings of fact:

• Ms. Goldenberg was angry after P.C. Hasanbasic’s evidence because he testified for the defence and in manner that contradicted her theory of the case and her personal belief about Sgt. Young’s injuries.
• In her anger, Ms. Goldenberg confronted P.C. Hasanbasic and yelled at him in the courthouse hallway, in the presence of the OIC.
• Ms. Goldenberg used profanity and called his evidence pathetic and disgusting.
• Ms. Goldenberg was particularly angry about his evidence that Sgt. Young’s injury was not severe.
• Ms. Goldenberg commented that she could not believe he would testify against a 30 year copper.
• Ms. Goldenberg made some comment about P.C. Hasanbasic’s career.
• Ms. Goldenberg commented on younger officers taking time off for a scratch.
• That at some point in the discussion P.C. Hasanbasic asked her if he was supposed to lie.
• That after this was said Ms. Goldenberg replied “we protect our own” or words that conveyed the exact same meaning.

(ii) Was there an abuse of process?

114In the case at bar, it is alleged that the Crown engaged in flagrant improprieties, doing anything to win and improperly aligned herself with the police as opposed to being an objective advocate. It has long been recognized that the Crown is a minister of justice who does not win or lose. As was expressed in Boucher v. The Queen, 1954 3 (SCC), [1955] SCR 16,

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

115Independence from the police is a key component of a Crown Attorney’s role in the justice system. As was stated in Ontario A.G. v. Clark 2021 SCC 18, [2021] 1 S.C.R. 607 at para 41 “One of the critical dimensions of a prosecutor’s independence that is protected by immunity is, in fact, independence from the police”. The court further noted that “Crown objectivity and the separation of Crown from police functions are elements of the judicial process which must be safeguarded” (Ontario A.G. v. Clark, supra, at para 43). The court specifically commented on the potential harm to the process if this independence is not strictly adhered to. Most notably the court observed that the “need for a separation between police and Crown functions has been reiterated in reports inquiring into miscarriages of justice which have sent innocent men to jail (Ontario A.G. v. Clark, supra at para 42).

116In the case at bar the Applicant raises two concerns: trial process and aligning with police by confronting P.C. Hasanbasic.

117The trial process issues arise from D.C. Silva’s email stating “remember one of our own was hurt in this collision”, Ms. Goldenberg’s decision not to call the three eyewitness officers and Ms. Goldenberg’s comments at the Judicial Pre-Trial.

118In relation to D.C. Silva’s email, it is my view this was an inappropriate email to send. I further find that D.C. Silva then came to court and was not honest about why he wrote the offending phrase. While this is troubling, I have no evidence that it impacted the evidence at trial in anyway. While the email is irresponsible, I cannot find that it is so egregious to amount to an abuse of process on its own. In my view, on this particular piece of evidence, the cover up is worse than the original offending conduct.

119In relation to the calling of witnesses and not permitting the JPT judge to hear a plea if the case resolved, I do not view this as improper. While the Crown does not win or lose, they are still required to be diligent in their prosecution and present their best case to the court. In the case at bar, Ms. Goldenberg provided full disclosure to the defence and made the eyewitness officers available to be called at trial. She is permitted to call the case as she sees fit. Judges encourage counsel to run focused trials, only call necessary witnesses and be mindful of the fact that judicial resources are not limitless. Pairing down a witness list to the essential witnesses is laudable. It may be that Ms. Goldenberg chose not to call these witnesses because their evidence did not support her theory, but as long as she makes full disclosure, she is entitled to do this. I note that Ms. Jamshidi did not complain about this during the trial nor did she bring an application to have the court call the witnesses. Moreover, Ms. Jamshidi only called one of these three witnesses. I am therefore unable to find that Ms. Goldenberg improperly used her discretion by failing to call the offices.

120Similarly, where a judge gives a somewhat firm position on sentence at a JPT, the risk is always that the party unhappy with the position will not consent to that judge hearing the plea. This is how our system works and as such I cannot find that Ms. Goldenberg acted improperly at the JPT.

121The only conclusion that I can draw from this conduct is that Ms. Goldenberg took her role as a prosecutor seriously and was going to prosecute this serious case to the fullest as she is supposed to do.

122I now turn to the issue of Ms. Goldenberg aligning herself with the police and then failing to be forthright with the court about her communications with P.C. Hasanbasic. I think a more accurate way of saying this, is that Ms. Goldenberg aligned herself with the victim officer, loss objectively and interfered with police independence.

123In the case at bar, Ms. Goldenberg chastised a police officer who just testified for the defence. She did so in a public place and in front of the officer-in-charge. The Crown expressed clear anger in relation to the officer’s evidence that Sgt. Young was “fine” in circumstances where he had a reasonable basis for this belief, used profanity in relation to his evidence, made a comment about his career and when asked if she should have lied, he was told “we protect our own”. In addition, the OIC who witnessed the exchange said nothing while this was taking place. When the allegations came to light, this same OIC was less than truthful about a phrase he wrote in an email to officers and then was less than forthright in his evidence about what transpired between Ms. Goldenberg and P.C. Hasanbasic. The final relevant factor is that Ms. Goldenberg herself testified on this motion. She was less than candid with the court about a number of issues and in my view displayed a complete lack of objectivity about this case.

124The abusive conduct in this case all occurred after all the evidence was presented. There is no evidence that the Crown’s alignment with the victim police officer and her conduct towards P.C. Hasanbasic impacted the trial testimony of the witnesses. As such, I cannot find that there is any risk to trial fairness in this case. As such, this case engages the aspect of abuse of process that relates to maintaining the integrity of the justice system.

125Crown counsel provided a host of cases where the Crown conduct was viewed as being reprehensible but not bad enough to amount to an abuse of process. For example in R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12, there were issues with the police investigation and the Crown engaged in some judge shopping. While the court found the behaviour to be inappropriate, it did not rise to the level of abuse of process. Similarly, in R. v. Currado 2023 ONCA 274 Doherty J.A. found that the misconduct did not call for a remedy. In that case there were allegations of material nondisclosure and allegations against the London police force, all of which were resolved by trial.

126In R. v. I.B., 2014 ONCJ 368, the assistant Crown attorney prosecuting the case yelled at a young, underaged witness. The trial judge found that the conduct of the assistant Crown attorney was not sufficiently egregious to warrant a remedy. Crown counsel argued that the conduct of the Crown in R. v. I.B., was worse than the conduct of Ms. Goldenberg. If there was no abuse in R. v. I.B., then there was no abuse in the case at bar.

127In my view, the facts in the case at bar differ in some significant ways from that in I.B. Firstly, in R. v. I.B., the judge found that there was “conflicting testimony on whether Mr. Amenta was threatening K.P. or simply imploring him to tell the truth”. In light of this, it appears that the conduct that Otter J. found to be so reprehensible was yelling at a young witness and using profanity. In this context, Otter J. found that the conduct was best addressed at a tribunal who has jurisdiction to address unprofessional conduct as opposed to at I.B.’s trial. In the case at bar, the conduct goes far beyond yelling at a witness to tell the truth. It involves being angry at a police witness for telling the truth because it ran contrary to the Crown’s case.

128Secondly, in R. v. I.B, there is no suggestion that the Crown or other state witnesses were not candid with the court when they testified on the motion. In fact, it appears that Mr. Amenta did not testify or make excuses for his actions. In the case at bar, I am hesitant to say that Ms. Goldenberg “lied”, but I was unable to accept her evidence, and, in my view, she minimized her level of anger and her reason for confronting P.C. Hasanbasic.

129Mr. Heeney made a very compelling argument for why this single 90 second exchange does not amount to an abuse of process. Trials are a human process. They can be challenging, emotional and exhausting. Prosecuting, defending and judging criminal cases is hard. Ms. Goldenberg clearly works many hours and like so many others working in the justice system is overworked and under resourced. We all have bad days and do not behave our best on those days. We raise our voices when we should not and at time are not as patient as we should be. Those in glass houses should not throw stones. I am not immune to the challenges of this profession and have no doubt that one could scour my cases and find that I have not always behaved perfectly. This is why merely yelling and even swearing at a witness, like in R. v. I.B, is not enough to amount to an abuse of process. An abuse of process requires more. It requires that the conduct in question be so bad that it calls into question the integrity of the justice system.

130Two factors exist in this case that raises the offending conduct from improper to the level of flagrant impropriety that undermines the integrity of the justice system. First, an officer was chastised after testifying for the defence. In saying “we protect our own” (or words to that effect), the Crown conveyed that the officer should not have testified for the defence. I do not think that Ms. Goldenberg was intentionally trying to convey that P.C. Hasanbasic should have lied. I appreciate this is how the officer felt, and his feelings are reasonable given the words uttered, but I accept Ms. Goldenberg’s evidence that she would not intentionally tell a witness to lie. Nonetheless, Ms. Goldenberg did chastise an officer for not standing on the side of the victim police officer and the prosecution. 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. It is that conduct that the impacts the integrity of the justice system.

131Secondly, neither the OIC nor Ms. Goldenberg has taken any responsibility for their actions and in fact have completely denied any wrongdoing. A denial that I have rejected. I appreciate Mr. Heeney argued that this could have been just a bad day. That Ms. Goldenberg could have been annoyed by the officer’s evidence and wanted him to tell the truth. If that was the evidence, it would be a compelling argument for not finding an abuse of process. But that is not Ms. Goldenberg’s evidence. She denied being frustrated or mad by his evidence.

132When I look at the overall conduct in this case, it is my view that it calls into question the integrity of the justice system and that an abuse of process has been made out.

(iii) Should a Stay of Proceedings be Ordered?

133As previously stated, the fairness of the trial was not affected by the misconduct. As such, it is the residual category that is engaged. Having found that the conduct in question undermines the integrity of the justice system, I must now assess whether “prejudice to the integrity of the justice system will be manifested, perpetuated or aggravated” if the trial were to proceed and whether there is an alternative remedy to address the prejudice. Even if there is no other remedy, I must still balance the public interest in a trial on the merits with the interests of granting a stay, such as denouncing the misconduct and preserving the integrity of the justice system.

134Mr. Heeney, in his submissions essentially conceded that if I find that Ms. Goldenberg lied and that she said, “we protect our own”, the charges should be stayed. I am hesitant to go so far as to say that Ms. Goldenberg lied. While I have rejected her evidence and found that she was not completely forthright with the court the word “lie” is a strong word and I am not comfortable making this finding.

135In assessing whether the integrity of the justice system will be manifested, perpetuated or aggravated if the trial were to proceed, I am mindful that Ms. Goldenberg has been removed from the case. This was done when the allegations came to light. In many cases this is sufficient. There are times, however, where the conduct is so egregious where the continuation of a trial will compromise the integrity of a justice system even where the Crown has been removed. In my view this is one of those cases.

136The case of R. v. Babos, supra, is frequently cited to support the proposition that removing the Crown from the case is a sufficient remedy for Crown misconduct that does not affect the fairness of the trial. In R. v. Babos, supra, the Crown threatened the accused that “he would be hit by a train” if he did not plead guilty. The Court found that the Crown’s threats were intended to put pressure on the accused to plead guilty. The Supreme Court of Canada held that “manifestly it is the type of conduct the court should dissociate itself from” ( R. v. Babos, supra, at para 61). In deciding that a stay of proceedings was not appropriate the court noted that the threats were made 18 months before the issue was raised. The court held that this delay “sheds some light on how seriously they took the threats”. In other words, not at all seriously (R. v. Babos, supra, at para 63). The Supreme Court of Canada went on to state that instead of raising the issue immediately, the defence waited until mid-trial to express concern about the conduct. By then the Crown had already been removed from the case. Despite the fact that the court questioned whether the threats were even taken seriously, the Court still held that that there was sufficient harm to pass this first stage. In doing so the court stated “Manifestly, Ms. Tremblay’s misconduct was serious enough to warrant proceeding to the second stage of the test. That said, in my respectful view, when the mitigating factors which the trial judge failed to consider are taken into account, the trial judge’s conclusion that the threats amount to “an abuse of the worst kind’ is simply not borne out” ( R. v. Babos, at para 66).

137In my view, much like in Babos, the misconduct in this case warrants proceeding to the second stage of the test. It is my view that the acts of the Crown in berating an officer for testifying for the defence and in doing so said “we protect our own” and commented on his career, compromises police independence from the Crown to a degree that continuing the prosecution would prejudice the integrity of the administration of justice. In my view, through her comments to P.C. Hasanbasic, the Crown improperly aligned herself with the victim police officer and sent a message that the police should testify in accordance with the Crown or else. Moreover, the fact that the OIC was present and did not interject supports this message. This is not about a state actor just having a bad day and losing their temper. In my view, this goes further than that.

138In relation to the presence of an alternate remedy I am mindful that Ms. Goldenberg has already been removed from the case. This goes some distance to address the specific prejudice in this case. It does not, however, in my view address the ongoing harm to the administration of justice. The prejudice to the integrity of the justice system extends beyond this case. It is the message being relayed though the conduct of the Crown and the silence of the OIC that there is a consequence for not doing what the prosecuting wants. I note that while the OIC did not remain on as OIC for this motion as he was a witness, there is no suggestion that he has been removed from the case.

139I have turned my mind to other potential remedies, but in my view, there are no other remedies short of stay of proceedings that can address the harm caused to the administration of justice in this case.

140Despite the above findings, I must still balance the seriousness of the misconduct with the public interest in a trial on the merits. This includes consideration of the serious nature of the charges as well as the need to denounce the offending conduct (R. v. Babos, supra, at para 69). In R. v. Babos, the accused was facing 22 charges concerning firearms, illegal drugs and organized crime. In this context the court held

Society has a profound interest in seeing justice done by having the guilt or innocence of the appellants determined through a full trial on the merits. When the impugned misconduct – threats uttered more than a year before trial by a Crown no longer on the case – is weighed against society’s interest in a trial, I am satisfied that this is not one of the clearest of cases where the exceptional remedy of a stay of proceedings is warranted”. (at para 69).

141I do not want to minimize the seriousness of the offences before this court. Failing to yield to an officer who is pulling you over, then running into the officer, even at a slow speed, fleeing the scene of the accident and then attempting to obstruct justice are serious charges even where the crown elects to proceed summarily, as they did in this case. I am, however, mindful that there is a difference between gun and organized crime cases where the average sentence exceeds five years and the charges in the case at bar. Driving offenses, however, do impact public safety, and leaving the scene of an accident is a morally reprehensible offence. As such, there is a strong societal interest in a trial on the merits. Having said that, the impropriety engaged in this case has implications well beyond this case. I am mindful that I have no direct evidence on this point, but given what took place between Ms. Goldenberg and P.C. Hasanbasic, and D.C. Silva’s silence at the meeting, it is reasonable to infer that this has the real potential of having a chilling effect on officers testifying contrary to the prosecution’s theory. In my view, the only way to preserve the integrity of the justice system is for this court to disassociate itself from the conduct and enter a stay of proceedings.

141It is my view this is one of those rare instances where the clearest of cases standard is met. The charges against Mr. Idris are therefore stayed.