Court File and Parties

Court File No.: CR-23-1140128
Date: 2025/06/13
Ontario Superior Court of Justice

Between:
His Majesty The King (Crown)
and
Jordan Brennan (Accused)

Counsel:
Jessica Corbeil, Counsel for the Crown
Leo Russomanno, Counsel for the Accused

Heard: June 9, 10 and 11, 2025 (Ottawa)

Ruling on Cross-examination of Constable Ali Saheeb on Prior Judicial Findings

Justice A. Doyle

Overview

[1] Jordan Brennan faces 13 counts including unlawful possession of a firearm, possession of cocaine for the purpose of trafficking, unlawful possession of oxycodone and possession of proceeds of crime.

[2] The defence has brought an application under the Charter of Rights and Freedoms ("Charter") for exclusion of the evidence obtained in the case (including firearm, drugs and proceeds from crime) pursuant to s. 24(2) of the Charter. The trial proceeded in a blended trial/voir dire fashion.

[3] The defence alleges that Mr. Brennan’s Charter rights under s. 8, 9, 10(a) and 10(b) were breached specifically:

• Mr. Brennan’s right to be free from arbitrary detention was infringed when he was stopped for an alleged traffic violation or impaired operation contrary to s. 9 of the Charter;
• In addition, even if the initial detention was found not to be arbitrary, it was rendered arbitrary as he was subjected to prolonged detention;
• The warrantless search of Mr. Brennan’s vehicle was arbitrary;
• There were no reasonable grounds to believe that cannabis was located in the vehicle contrary to Cannabis Control Act (CCA) s. 12;
• A smell of cannabis alone is insufficient to form grounds to search Mr. Brennan’s vehicle under s. 12(3) of CCA;
• Officer Saheeb elicited a statement from Mr. Brennan before he was afforded his rights to counsel;
• Without Mr. Brennan’s statement and his production of a small quantity of cannabis in the grinder, there were insufficient grounds to justify the search of Mr. Brennan’s vehicle;
• The officers’ search of the vehicle went beyond the scope permitted under s. 12(3) of the CCA;
• Mr. Brennan was not given his right to counsel after his detention; and
• Mr. Brennan was not fully informed of the reasons for his arrest.

[4] During the cross-examination of the arresting officer, Constable Ali Sabeeh (Cst Sabeeh), the defence wished to cross-examine him on prior judicial negative findings in R. v. Uniat, the unreported decision dated August 7, 2024 penned by Ontario Court of Justice M. Hoffman.

[5] Crown objected on the basis of irrelevance and lack of linkage.

[6] This case turns on whether the previous findings of Charter breaches and previous credibility findings involving Cst Sabeeh are relevant and material to the issues I must determine in this case.

[7] For the reasons that follow, the court will not permit defence to cross-examine Cst Sabeeh on prior judicial findings made by Justice Hoffman. He may be permitted to be asked on training on Charter issues.

Background

[8] Constable Ali Sabeeh testified that on February 22, 2023, at 00:58 a.m., he observed a vehicle driving northbound on Bank Street towards Wellington Street in Ottawa at a rate of low speed approximately 20 to 30 km/h.

[9] He also saw the vehicle swerve and hit the curb and then over correct to the left crossing over the centre line and then stopped for three seconds on the right before proceeding straight northbound on Bank Street, disobeying a “no straight through” sign into the parking lot of the Confederation building. Cst Sabeeh testified that he stopped the vehicle on the basis of distracted driving and/or impaired driving.

[10] At 00:58, Cst Sabeeh pulled Mr. Brennan over on the north side of Wellington in the Confederation building area. Mr. Brennan had a female passenger in the front seat, Victoria Lamirande.

[11] Cst Sabeeh testified that he told Mr. Brennan the reason for the traffic stop and then made the determination that he did not have suspicion or reasonable grounds that he was impaired by drug or alcohol.

[12] Cst Sabeeh smelled the vegetative smell of cannabis emanating from the vehicle and asked Mr. Brennan whether he had cannabis in the vehicle. Mr. Brennan produced a grinder containing a small amount of broken-down cannabis. He admitted that at the preliminary hearing that this question was an invitation to produce cannabis.

[13] Cst Sabeeh advised Mr. Brennan that he was not permitted to have cannabis within reach of him as a driver and requested his driver’s license and proof of ownership and they were produced. Proof of insurance was shown on Mr. Brennan’s phone.

[14] Cst Sabeeh returned to his cruiser and requested assistance by using his radio. He did a search of the license plate and determined that Mr. Brennan was the owner and driver of the vehicle.

[15] Cst Sabeeh returned to Mr. Brennan who was in his vehicle and informed him that he would be conducting a search under Cannabis Control Act (CCA) and asked him to exit the vehicle and empty his pockets and place the items from his pockets on top of the vehicle.

[16] Mr. Brennan pulled out $995 from his upper left jacket pocket, a bag containing cannabis from his bottom outer left jacket pocket and a prescription bottle containing seven pills of hydrosome and two pills of oxycodone from his bottom outer right jacket pocket.

[17] At 1:10 a.m. Constables Toneguzzi and Kiwan arrived to assist in the search. At the time Mr. Brennan was emptying his pockets Cst Toneguzzi and Kiwan began searching his vehicle. At 1:12 a.m. Cst Smith arrived to assist in the CCA search by searching Ms. Lamirande.

[18] Cst Sabeeh found a 9 mm bullet in a small compartment under the left side of the steering wheel.

[19] Cst Kiwan unzipped a backpack he found near the middle of the backseat passenger seat and removed the laptop in the main pocket of the backpack and found a Glock handgun.

[20] Mr. Brennan had been placed in the cruiser at 1:13 by Cst Sabeeh while the search of his vehicle was conducted. He was given the primary caution that is, the right to remain silent and told that anything he said may be used in a court of law.

[21] At 1:15 a.m. Cst Sabeeh removed Mr. Brennan from his cruiser, handcuffed him and informed him that he was under arrest for the unauthorized possession of a firearm. He was cautioned and read his right to counsel and Mr. Brennan confirmed he wished to speak to a lawyer. He was escorted to cell block at 474 Elgin Street by Cst Sabeeh.

[22] Cst Toneguzzi was also present to conduct the search of Mr. Brennan’s vehicle.

[23] At 1:37 a.m., Mr. Brennan was given his opportunity to speak to a lawyer.

[24] During cross-examination, Cst Sabeeh was asked if he would ever fake an impaired driving investigation or fake a CCA search so he could locate drugs in a car and use his Mobile Data Terminal (MDT) and he denied he would ever do that.

[25] Cst Sabeeh acknowledged his involvement in the case of R. v. Uniat, an unreported decision of Justice Hoffman.

[26] The Crown objected to any questions posed to this witness on the Uniat case based on lack of relevance. Cst Sabeeh was a secondary officer in the Uniat case where the court found that Cst Kiwan, under the ruse of an impaired driving investigation, searched Mr. Uniat’s vehicle as he knew he had prior involvement regarding possession of a firearm.

[27] The Crown provided a book of authorities, and the matter was adjourned to the next morning to permit fulsome arguments and the opportunity for defence to file any further authorities.

R. v. Uniat

[28] In R. v. Uniat, Justice Hoffman was dealing with charges of illegal possession of firearms. On March 3, 2023 (approximately two weeks after Mr. Brennan was arrested) Constables Kiwan and Sabeeh were at a mall at 1:44 a.m. to obtain a meal at A & W restaurant.

[29] They noticed a parked Subaru with a sole occupant sleeping in the reclined front driver’s seat. The engine and headlights were on and the key was in the ignition.

[30] They remarked to each other that the driver may be impaired, and queried his licence plate and Cst Kiwan noted that he himself was involved in a 2021 report where the owner, Mr. Uniat was involved in handgun possession. Cst Kiwan admitted that he was suspicious that it was Mr. Uniat when he walked up to the Subaru.

[31] Cst Kiwan stated he was approaching the Subaru the same way he would a law-abiding citizen and that he did not tell Cst Sabeeh about his suspicion that the driver was Mr. Uniat who was connected to a previous firearm offence.

[32] Constables Sabeeh and Kiwan denied a concern of approaching an occupied vehicle late at night in an isolated area given the information obtained about his connection to firearms found in the police databank.

[33] At the trial before Justice Hoffman, Constables Kiwan and Sabeeh testified that this was an impaired driving investigation.

[34] Cst Kiwan told the accused exit his vehicle and to walk in front of the cruiser for the ASD procedure using the device from the cruiser.

[35] While Cst Kiwan spoke to Mr. Uniat, Cst Sabeeh pointed his flashlight into the vehicle and stated his intention was to look for indicia of alcohol or drugs or paraphernalia.

[36] Cst Sabeeh saw a black Glock handgun magazine and handle inside an open satchel on the rear middle seat and notified Cst Kiwan who was in the mid ASD blow and immediately placed the accused under arrest.

[37] The ASD impaired operation investigation did not continue.

[38] The items seized included: no valid firearms licence, cocaine, methamphetamine and other drugs. Mr. Uniat was bound by a s. 109 firearm prohibition.

[39] Justice Hoffman did not believe the evidence of both Constables Kiwan and Sabeeh and the court found that the ASD blow was stopped midstream and abandoned as they had achieved the sole goal of the unlawful detention of the accused, i.e. searching and finding of the firearm.

[40] Justice Hoffman did not accept that Cst Kiwan did not discuss his suspicions about possible firearms with Cst Sabeeh nor tell Cst Sabeeh when he positively identified Mr. Uniat when he approached the driver’s side window.

[41] Cst Kiwan admitted that he detected no slur or other anomalies in Mr. Uniat’s speech.

[42] The court did not accept his evidence that Mr. Uniat’s eyes were red.

[43] The court found that there was no objective or subjective basis for the Approved Screen Device (ASD) demand on the stated or correct standard.

[44] The court found that Cst Kiwan did tell Cst Sabeeh about Mr. Uniat’s connection to firearms even though he denied it. The court did not accept Cst Sabeeh’s denial that he did not know Cst Kiwan was conducting a firearms investigation.

[45] Justice Hoffman found that Mr. Uniat was detained for the purpose of a search of his vehicle for firearms and that the impaired driving investigation was a ruse. He found that there was an unlawful search for firearms.

[46] The court found that both officers would have discussed the fact that Mr. Uniat had ties to handguns or firearms as they approached the Subaru as this would be a safety concern.

[47] The essence of Justice Hoffman’s decision was found at para. 71 when he stated:

“The only reasonable inference to draw is that his was not an ordinary traffic stop (and I add, or detention, and both initial officers were keenly aware of this before exiting their cruiser). There are occasions in which police conduct a traffic stop in the hope of discovering other criminal activity, but there would be no evidence to support that here. Police were disingenuous in their evidence about the stop, made woefully inadequate notes and deficient memories on the best reading of their evidence. This was an opportunity to investigate the Applicant (and I add, for firearms by illegally detaining him) and the alleged reason for detention was wholly abandoned as soon as evidence other criminality was uncovered.”

[48] The court commented that Cst Kiwan was not being truthful about his reason for the detention. The comments about Cst Sabeeh centred around the fact that he would not admit that Cst Kiwan would not have told him about Mr. Uniat’s past connection to firearms and his lack of notes about events before Mr. Uniat was handcuffed after the handgun was located and the lack of grounds for the ASD.

[49] Justice Hoffman concludes at para. 150 stating that:

• Breaches of s. 9, 10(a) and 10(B) limited s. 8 Charter breaches flow from the ruse of an impaired driving related/ASD investigation based on no evidence of alcohol or drugs in the accused’s body;
• The ASD demand was made solely to continue this ruse and ended in mid demand once the firearm was located;
• The handgun and magazine would not have been located and seized but for the arbitrary detention of the accused because of this ruse.
• Both Constables Kiwan and Sabeeh were disingenuous about their reason for first approaching Mr. Uniat;
• Their actions were solely to investigate the accused for firearm evidence after they realized there were no signs of alcohol or drugs in the accused’s body;
• Their faked reason for detention were abandoned as soon as the firearm and magazine were found;
• Police were required to give true reasons for the detention and advise the accused of right to counsel.

[50] Section 24(2) arguments were to follow.

Position of the Defence

[51] The defence argues that Cst Sabeeh’s credibility is front and centre in this case as it was in the Uniat case. The reasons for the traffic stop and detention of Mr. Brennan are very similar to those that were present in Uniat. The defence argues that his stated ground for the traffic stop of distracted driving or impaired driving was a ruse for an investigation for drugs. Within seconds of speaking to Mr. Brennan, he immediately decided that he had no suspicions of signs of impairment. What is of utmost significance is that both incidents occurred with 10 days of each other. This cannot be coincidence.

[52] The defence argues that Cst Sabeeh was justifying a traffic stop on the grounds of distracted driving/impaired driving but it was really a ruse for a search for drugs as he saw an owner of Mr. Brennan’s vehicle and/or the plate had previously been involved in the seizure of drugs.

[53] The grounds for a detention did not exist as there was no foundation on the basis that a driver is going too slow. His notes do not set out the grounds of hitting the curb, over correcting and there is no other confirmatory evidence that there is a sign restricting traffic to go north on Bank through Wellington.

[54] The defence should be able to explore in cross-examination the facts and circumstances in the Uniat case to demonstrate that:

• Cst Sabeeh is not credible;
• That he has disregard for Charter rights;
• His dishonesty with the court;
• The pattern of his behaviour in investigations;
• The lack of training or corrective education regarding Charter issues;
• There is a pattern of not taking complete and detailed notes setting out important features of the investigation, for example the use of the MDT logs.

[55] Defence argues the findings made by Justice Hoffman in the R. v. Uniat are key unequivocal findings based on a detailed factual foundation. A transcript of the full trial that lasted a few weeks is not necessary. Justice Hoffman’s findings are not bald assertions.

[56] There are a number of similarities:

• The events occurring in Uniat occurred in March 2023 only a couple of weeks after this case;
• Cst Sabeeh used intelligence on the Mobile Data Terminal (MDT) in his cruiser which permits him access to information about individuals including Canadian Police Information Centre (CPIC), a system which provides national information sharing system linking law enforcement;
• Lack of details in his duty notes setting out important information such as grounds for the traffic stop and detention, information about what occurred and what information he gathered during the investigation.

[57] Cst Sabeeh was not a peripheral player in Uniat and was present when Cst Kiwan accessed information about Mr. Uniat who was the registered owner of the vehicle. He was also present when Cst Kiwan read the MDT to discover the owner was involved with previous firearm charges and that he was personally involved.

[58] Justice Hoffman made a specific finding that both Cst Sabeeh and Cst Kiwan colluded and were dishonest in court as to the real purpose of the investigation of Mr. Uniat.

[59] Justice Hoffman made a specific finding that common sense dictates that in proper police work and officer safety, the officers would have discussed the fact that, as the officers were approaching his vehicle, Mr. Uniat, the registered owner of this vehicle, that Cst Kiwan found out about his prior firearm charges and his prior involvement.

[60] The officers were found to have lied to the court regarding the reason for approaching Mr. Uniat’s vehicle.

[61] Cst Sabeeh discovered the firearm in the back of Mr. Uniat’s vehicle.

[62] Credibility findings of Cst Sabeeh were front and centre and Cst Sabeeh was a knowing participant.

[63] In this case, Cst Sabeeh used the ruse that he was investigating distracted or impaired driving, but the real reason is that he knew that the vehicle had been associated with prior seizure of drugs.

[64] Cst Sabeeh was not stopping Mr. Brennan’s vehicle on a traffic stop due to his driving. He does not record in his duty notes the reason for the stop. He does not describe his driving.

[65] Defence argues that he should be able to cross-examine Cst Sabeeh on the following:

• Cross-examine the constables on prior negative credibility findings;
• Using the ruse of an impaired driving investigation to conduct a search of the vehicle in both cases;
• Improper note taking;
• Pattern of disregard of breach of Charter rights which becomes relevant in a s. 24(2) analysis under Grant; and
• Explore what training the OPS has with respect to Charter issues.

Position of the Crown

[66] The Crown questions the relevance of this cross-examination.

[67] She submits there is no relevance of asking Cst Sabeeh questions about the prior breaches in Uniat when he was a secondary player in that case but rather it was Cst Kiwan who played the lead role in that case.

[68] In this case, Cst Kiwan was a secondary player and did not form grounds but rather assisted in the search based on Cst Sabeeh finding grounds.

[69] A full transcript of Uniat if the defence wishes to ask questions about credibility.

[70] In addition, cross-examination on the Uniat case would lead to a “trial within a trial” which would run contrary to the collateral fact rule as stated in R. v. Karaibrahimovic, 2002 ABCA 102 at para. 11 where the Alberta Court of Appeal explains this rule “is to avoid mini-trials within trials on collateral issues….”. In that case, the Court of Appeal allowed an appeal where the Crown cited instances where the witness’ evidence had been rejected in another trial.

[71] The Crown admits that Mr. Brennan’s s. 10(b) rights were breached considering the recent Court of Appeal case in R. v. McGowan-Morris 2025 ONCA 349 but that the evidence should not be excluded under s. 24(2) of the Charter. This case settled the law in this area after the incident that brings this matter to the court. However, Cst Sabeeh was alive to Charter issues and did provide Mr. Brennan with his right to remain silent.

Legal Framework

[72] In the recent case of R. v. Sangster and Thompson, 2025 ONSC 1390 at para. 29, this court set out the legal principles involved when cross-examining a witness on a prior judicial hearing.

[73] The main legal principles to consider are as follows:

• The applicant who wishes to rely upon previous Charter breaches should be restricted to circumstances in which those violations are very similar to those already found and “in addition, have some very specific relevance or probative value based on the particular circumstances of a given case” (R. v. Merritt 2017 ONSC 2245 at para. 41);

• The applicant must establish a linkage between the violation and the evidence sought to be excluded (R. v. Goldhart);

• A high degree of similarity in the nature of the violations is not required in order to demonstrate “a pattern of abuse” but there must be some identifiable connection or relationship between the violations (R. v. Mian 2014 SCC 54 at para. 68);

• “If circumstances warrant” a police officer’s prior conduct including violations of the Charter can be admissible at a subsequent hearing (R. v. Holloway 2021 ONSC 6136 at para. 99);

• At para. 1527 of R. v. Thompson 2013 ONSC 1527, Justice Hill stated that:

  “cross-examination of a witness about whether or not his testimony was rejected or disbelieved in another proceeding is irrelevant…Equally, the credibility conclusions of another court, or findings respecting a police witness’ compliance with Charter rights are generally irrelevant to determinations to be made by a court in a subsequent and different trial dealing with similar issues. However, and while it is not strictly necessary to decide the point in this case, I am of the view that a trial court would not be foreclosed, in considering as a factor relating to the seriousness of a Charter breach, relevant history of a particular police officer, squad or force as unambiguously characterised by judicial officers in other cases”.

• The court can admit evidence of prior credibility findings and racial profiling where there are obvious connections between the facts in the case and prior rulings as was found by Harris J in Holloway.

[74] In R. v. Ghorvei and R. v. Hason, 2024 ONCA 369, the court held that the full transcript should be available to ensure that the full evidentiary record was before the court when a prior court makes credibility findings. The transcript is not available at this time.

[75] In R. v. Baksh, 2022 ONCA 481, the Court of Appeal approved the trial judge’s ruling prohibiting questions about the findings of credibility that asked the witness if he agreed or disagreed with the previous rulings of a prior court. The Court of Appeal found it was quite proper for the witness to be asked questions surround the circumstances of the events leading to the Judge’s ruling.

[76] At paras. 39 and 40 the Court of Appeal in Baksh said this:

[39] Both the appellant and the respondent referred to the Superior Court’s decision in R. v. Holloway, 2021 ONSC 6136, where Harris J. discussed the extent to which Ghorvei prohibits certain lines of questioning. On the basis of the reasons in Holloway, both parties suggested that Ghorvei should not be read as imposing a prohibition on asking witnesses questions about prior negative credibility findings. Instead, the parties suggested that Ghorvei should be read as requiring some degree of evidentiary foundation before such questions can be asked, although they disagreed about how much of a foundation was necessary.

[40] In my view, it is not necessary to decide the precise scope and limits of cross-examination permitted and precluded by Ghorvei in this case. The determination of this issue is not determinative of the appeal. Ultimately, after the trial judge made his ruling, trial counsel only asked two or three more questions related to the circumstances in Upper and then moved onto other matters. The trial judge’s ruling only narrowly circumscribed trial counsel’s ability to cross-examine DC Galiotos. Trial counsel could have gone far beyond the scope of the questions he asked regarding the underlying conduct giving rise to Block J.’s adverse credibility findings about DC Galiotos in Upper, but he chose not to do so. Moreover, given that there were no Charter applications and that the circumstances of the appellant’s arrest were peripheral to the issues at trial – unlike the circumstances in Holloway – the trial judge’s ruling regarding the one question he precluded trial counsel from asking on cross-examination would not have had any impact on the outcome at trial.

[77] In R. v. Hason, 2024 ONCA 369, the Court of Appeal was dealing with prior credibility findings involving an expert’s careless preparation of unreliable dangerous offender reports which revealed a specific pattern of conduct, specifically his careless conduct and the use of boilerplate in certain sections of the reports.

[78] At para. 113 of Hason, the court of appeal stated that “Ghorvei does not create an absolute prohibitive rule barring courts from considering judicial assessments of witness testimony in other cases”.

[79] The Court of Appeal further encapsulated the principle and stated: “Rather, Ghorvei only prohibits considering those judicial assessments if the court lacks a proper factual foundation to evaluate them.”

Discussion

[80] For the reasons further articulated below, the court finds that the admission of evidence of the cross-examination of Cst Sabeeh regarding prior judicial rulings on another case has no or marginal relevance to this case and is outweighed by the prejudicial effect.

[81] The court finds that the evidence that could be gleaned from delving into the facts and circumstances of the Uniat case and the court’s findings of Charter breaches and credibility findings would not assist the court in the case at bar.

[82] Although there are some similarities in both the Uniat matter and Brennan matter, the conclusions of the court in Uniat are findings of facts particular to that case.

[83] I will now explore various areas which I consider pertinent when determining whether officers should be cross-examined on prior judicial rulings which include adverse credibility findings.

Nature of the Evidence

[84] The court has heard that Cst Sabeeh was the instrumental officer involved in the traffic stop of Mr. Brennan as he was concerned that he may be impaired or involved in distracted driving.

[85] Cst Sabeeh admitted that based on his observations and interactions of Mr. Brennan after he spoke to him at his vehicle, that he had no suspicion that he was driving impaired or was involved in distracted driving.

[86] However, Cst Sabeeh indicated he smelled vegetative cannabis.

[87] Given this smell of fresh cannabis (as opposed to burnt cannabis) he asked Mr. Brennan if he had cannabis in the vehicle and Mr. Brennan immediately showed Cst Sabeeh his grinder with a small quantity of cannabis.

[88] Cst Sabeeh did not give him his right to counsel before he asked these questions and Cst Sabeeh testified he thought there was some law that supported the proposition that s. 10(b) rights are suspended during a CCA search as it is a regulatory regime as opposed to a criminal matter.

[89] However, he admitted that there seemed to various points of view expressed by the various Crowns at a recent training session and he was just advised of the McGowan-Morris case.

[90] First, defence wishes to cross-examine Cst Sabeeh regarding the credibility findings made against him. Hoffman J’s findings of facts are based on his assessment of the number of witnesses, the circumstances and applying common sense. He did not believe Cst Saleh’s testimony that he did not discuss with Cst Kiwan the possibility that the driver of the vehicle was Mr. Uniat who had prior criminal involvement with firearms.

[91] This is a finding the court made despite Cst Sabeeh’s evidence to the contrary.

[92] Courts are entitled to make inferences.

[93] Second, there is no pattern of judicial findings of adverse findings against Cst Sabeeh. However, that is not to say that one prior judicial finding with very similar facts and same level of and nature of involvement may not give rise to right to cross-examination.

[94] Also, to properly assess these adverse credibility findings based on the facts as they unfolded in Mr. Uniat’s trial, which I understand was weeks long, would require a full transcript and the court delving in the evidence heard by the court.

[95] While I acknowledge that Justice Hoffman’s decision is detailed and provides some of the factual background for his findings, the court is reminded that a court should have the full transcript if defence wishes to cross-examine on prior credibility findings. See Ghorvei.

[96] In addition, with respect to Justice Hoffman’s findings regarding note-taking, the court would require the full record and testimony and transcript on what were the facts and circumstances that led to the findings regarding the inadequacy of Cst Sabeeh’s notes and/or IA report.

[97] Here, Cst Sabeeh completed a much more thorough Investigative Action (IA) report. On the report itself it purports to indicate that the start time of the recording of the report was 2:23 a.m. on February 22, 2023 which was about 1 hour 23 minutes after he initiated the traffic stop and approximately 1 hour after he transported Mr. Brennan to cell block at 474 Elgin Street.

[98] His IA notes are 4 full single-spaced notes that explain what had happened in this traffic stop and the searches made of Mr. Brennan and the vehicle.

[99] In Wood v. Schaeffer, 2013 SCC 71, the Supreme Court reminded police officers about the significance of their roles in society. At para. 1 the court stated:

[1] Police officers are entrusted by the communities they serve with significant legal authority, including, in some circumstances, the power to use deadly force against their fellow citizens. The indispensible foundation for such authority is the community’s steadfast trust in the police. Each and every day, thousands of officers across this country work diligently to earn that trust, often putting their own lives on the line.

[100] With this responsibility, the court stated that note taking permits accountability and transparency when officers execute their duties. The importance of recording their notes of what occurred is not only for refreshing memory but also to assist the court when it scrutinizes the grounds for detention and the events following the detention and/or arrest of an accused person.

[101] At para. 64, the court confirmed that officers have a duty to take notes:

For example, in their 1993 report to the Attorney General of Ontario on charge screening, disclosure, and resolution discussions, a committee made up of experienced counsel and police officers and led by the Honourable G. A. Martin, observed that:

. . . the duty to make careful notes pertaining to an investigation is an important part of the investigator’s broader duty to ensure that those who commit crimes are held accountable for them.

. . . inadequate note-taking, while it can hamper the conduct of the defence, also risks hampering an investigation and/or a prosecution. In short, inadequate note-taking does a disservice to both an accused and the community, [which] is entitled to expect that innocent people will be acquitted and guilty people properly convicted. [Emphasis added.]

[102] I find that the notes in his IA were sufficient to set out the grounds.

[103] Whether those events leading to the traffic stop occurred, that is, hitting the curb and overcorrecting and if a sign stating no straight through traffic actually existed, will be for my ultimate determination after I hear all the evidence.

[104] But at this point of the voir dire, I only have his evidence of what he observed and at this point, his IA report confirms what he observed. The Uniat trial and what occurred there is of margin relevance and has no linkage.

Materiality of the Evidence

[105] How helpful would Justice Hoffman’s prior findings be to this case?

[106] There are certain similarities including the fact that Mr. Brennan was stopped in February 2023 and Mr. Uniat was detained in March 2023. The defence argues that the proximity of time establishes a pattern.

[107] In addition, both cases involving officers reviewing the MDT data by making queries regarding the name of the registered owner. However, in the Uniat case, Cst Kiwan completed the inquiry and viewed that Mr. Uniat was an individual who had prior criminal involvement with firearms and he himself was also involved.

[108] In this case, in the 2 minutes from 00:56 when he first spotted Mr. Brennan’s vehicle, Cst Sabeeh ran the plate, ran the name of the registered owner and nothing came up with respect to Mr. Brennan regarding outstanding warrants or criminal record. But two further queries were made by Cst Sabeeh on the licence plate and the MDT log do show references to drugs seized with respect to two other individuals in June 2022.

[109] In answer to questions from defence, Cst Sabeeh in the two minutes from when he makes his queries and stops Mr. Brennan, Cst Sabeeh did not make note of that reference to previous drug seizures.

[110] During the lengthy cross-examination of MDT transactions of that evening, Cst Sabeeh stated that he does not view those transactions in that format on the screen. He was unable to answer some of the acronyms or words such as “in complaint” that appeared on the MDT transactions.

[111] His evidence was that when he saw records of June 26, 2022, regarding a previous owner: it did not raise a red flag, it could be anyone driving the vehicle, and he did not consider it as potentially significant. He does not recall that a previous owner had drugs seized and charges laid, and the RMS (the OPS own data base) showed there was a breach of probation but he did not know if any drugs were seized. He also does not recall if he saw that drugs were seized by a previous owner of the vehicle or plate.

[112] There are few similarities here. The police access the data base including MDT and RMS and CPIC and MOT. This is the procedure and Cst Sabeeh was following procedure.

[113] There are many differences. In Uniat, it was Cst Kiwan who saw the information about Uniat and admitted that he was suspicious as he was approaching the Uniat vehicle that he was the person with the previous criminal involvement with firearms.

[114] There is no evidence of collusion with the officers involved in this case as there was a finding made in Uniat.

[115] The court acknowledges that on a note from the prep meeting Cst Sabeeh had with Detective Danford in preparation for the preliminary hearing, Detective Danford records indicate that they reviewed his notes and IA and the words “previous police involvement” was recorded. These are Detective Danford’s notes and the context of those words is not something that could be answered by this witness. Cst Sabeeh does not know Detective Danford he did not record the fact that he said that Mr. Brennan was swerving and crossing the centre line or stopping.

Inferences that are being sought to be made

[116] Defence will argue that because Cst Saheeb was found to have used a ruse of impaired driving in a previous case when it was really a firearm investigation, he did so in this case.

[117] In the R. v. Sangster and Thompson matter, there was an allegation that there was a pattern of violations of Charter breaches by the OPS drug squad. The court discussed that in the first line of inquiry under s. 24(2) the seriousness of the Charter-infringing state conduct asks whether the police engaged in misconduct from which the court should dissociate itself. See R. v. Grant 2009 SCC 32 at para. 72.

[118] The defence has not established a pattern of violations for Cst Sabeeh that will permit him to cross-examine him on the prior ruling which is helpful in the s. 24(2) analysis.

Probative Value and Prejudicial Effect

[119] Given the limited similarities in both cases, the court finds that there is limited probative value in using extensive court time to delve into the Uniat case.

[120] The prejudicial effect of allowing cross-examination is that the court would use up court time when the evidence of another case was based on findings made by another judge on different set of circumstances. Had there been more linkage between the cases, the result could have been different. As stated by the Ontario Court of Appeal in R. v. Hassan at para. 115, the court may consider “defence-led judicial assessments of witness testimony if their probative value is not substantially outweighed by their prejudicial effect.” See also R. v. Grant 2015 SCC 9 at para. 19.

[121] Prior misconduct of police officers should be fully explored if it is relevant, material and it has probative value that exceeds its prejudicial effect.

Conclusion

[122] Accordingly, the defence’s request to cross-examine Cst Sabeeh on prior court rulings regarding Charter violations, and adverse credibility findings and findings regarding notetaking is dismissed.

[123] The defence will be permitted to explore what training the OPS has with respect to Charter issues and specifically when he was made aware of the Uniat ruling and what action or training has been provided by the OPS. This is an area that the court should hear evidence as it is relevant in the Grant analysis under s. 24(2).

Date: June 13, 2025
Justice A. Doyle