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A judge previously tossed a separate case after finding veteran prosecutor Marnie Goldenberg angrily berated a Toronto cop over his testimony, saying: “We protect our own.”
By Jacques Gallant Courts and Justice Reporter
A veteran Crown attorney who caused a criminal case to collapse after she berated a Toronto police officer in a courthouse hallway has seen a second case thrown out in the same month over her conduct.
A man’s charges of drug possession and operating a motor vehicle while impaired by a drug were stayed on May 15 due to the “unacceptable negligence” of Crown attorney Marnie Goldenberg and Toronto police in failing to preserve and disclose “highly important” video evidence that ended up being erased from police servers.
Ontario Court Justice Sean Gaudet concluded that the failure to provide the video — which Goldenberg initially said didn’t exist — had breached the accused man’s right to make full answer and defence to the charges.
It was the second judgment issued in May to be critical of Goldenberg, a prosecutor of 22 years who specializes in driving offences. On May 4, Ontario Court Justice Mara Greene stayed charges against a man accused of striking a police officer with a motorcycle after the judge found Goldenberg angrily told a cop who testified for the defence and whose evidence risked hurting the Crown’s case: “We protect our own.” Greene also found that Goldenberg was “less than candid” in her testimony about the courthouse hallway encounter and “did not provide the court with a fair and fulsome account of what took place.”
The Ontario Crown Attorneys’ Association, the prosecutors’ union, voiced its support for Goldenberg after Greene’s ruling, describing her as “one of our finest Crowns” in an email to all Ontario prosecutors obtained by the Star.
“The Ontario Crown Attorneys’ Association stands behind and supports Marnie,” says the email.
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The Ministry of the Attorney General, Goldenberg’s publicly-funded employer, has never answered questions, including for this story, about the judges’ findings regarding Goldenberg, whether she’s faced any disciplinary action, and if a review is being undertaken of her cases.
In the second case to crumble, the accused man was arrested on Dec. 6, 2023, after he was found slumped over in the driver’s seat of a car parked on Queen Street West with the ignition running. He was taken to Toronto police’s traffic services unit and given what’s known as the drug recognition evaluation (DRE), where an officer assesses through a series of tests whether an individual may be impaired by drugs. Officer Joseph Mate concluded that the accused was impaired and demanded a urine sample, which came back positive for methamphetamine.
At issue in the case was the video of the man’s DRE. Defence lawyer Arvin Ross first requested it in June 2024, and followed up a month later, at which point Goldenberg said: “There is no video of the DRE.”
It only emerged a year later, in May 2025, during Ross’ cross-examination of Mate at the accused man’s trial, that the DRE room did, in fact, have a camera and Mate believed it had recorded the evaluation.
But any video from December 2023 that wasn’t uploaded to the police’s digital evidence repository within a 12-month retention period no longer existed by the time of the man’s trial — but would have existed at the time Goldenberg told the
defence it didn’t.
“I find unacceptable negligence on the part of the police and Crown in failing to ensure the preservation and disclosure of the video recording,” Gaudet wrote. “Given the importance of this evidence, the only remedy available to removing the prejudice to the applicant is a stay of proceedings.”
The judge noted that when Ross first began questioning Mate about video recording in the DRE room, Goldenberg objected, saying the topic was “irrelevant” because she had already told the defence that there was no DRE video. But then Goldenberg requested a recess to get more information, and came back to tell the court that she learned police had been recording DRE procedures since April 2023, several months before the accused man’s arrest.
Toronto police spokesperson Nadine Ramadan said the force takes “judicial comments on our processes and conduct seriously,” and that findings calling into question police conduct would spark an investigation.
Ross, the defence lawyer, told the Star that the case highlights the importance of every participant in the justice system being diligent in their duties, saying it’s something his firm takes seriously.
“We believe due diligence is not optional in criminal law; it is an ethical obligation,” he said. “That means actively verifying disclosure, questioning inconsistencies, following up repeatedly when necessary, and never presuming that something does or does not exist without confirmation.”
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The defence brought a “lost evidence” application, leading to the charges being stayed. A police digital evidence specialist testified that a disclosure request form had to be submitted to his department by an officer in order to manually download the DRE video and upload it to the force’s online digital repository so that it wouldn’t be lost. He confirmed that no disclosure request form was ever submitted in this case.
Gaudet wrote “it is important to emphasize that the Crown did not provide any evidence” on a number of issues, including why Goldenberg told the defence in 2024 that there was no video of the DRE procedure, and what steps, if any, she took to inquire about its existence with the police.
“Where the Crown gives no explanation why the evidence was lost, the Crown has failed to meet its disclosure obligation,” the judge said.
Gaudet wrote that it’s possible the police initially provided erroneous information to Goldenberg that the DRE room wasn’t video-recorded in December 2023 — “However, no evidence was called to this effect.”
The judge said the video, which would have had no sound, was “highly important evidence,” as it could have helped bolster the accused man’s claims that Mate’s observations of him in the DRE room were not accurate. “Without this evidence, it was just his word against that of an experienced police officer,” Gaudet wrote.
Goldenberg argued the lost evidence application should be dismissed because the accused failed to show that a video existed in the first place. But Gaudet concluded based on the evidence that the DRE of the accused was recorded, but was now erased because it had not been downloaded before the end of the 12-month retention period. He wrote that it was “clearly negligent” of the police not to download the video.
“I also find that it ill behooves the Crown to take the position that the applicant has not proven that the video recording ever existed, when she informed applicant’s counsel on July 25, 2024, that the video recording did not exist, at a time when the video recording could have been downloaded,” Gaudet wrote, emphasis his.
