At 2 a.m. one night in March 2023, two Ottawa police officers pulled into a shopping plaza at the corner of Merivale and Baseline roads to get food at a fast food restaurant when they noticed something strange in the lot: a parked red Subaru, which was running, with someone asleep in the driver’s seat.
That someone turned out to be a 29-year-old man known to police. And inside the vehicle, Const. Anthony Kiwan and Const. Ali Sabeeh found everything they needed to put him away for a while.
In plain view on the back seat was a prohibited Glock handgun with a round in the chamber and a prohibited over-capacity magazine capable of holding 30 rounds attached. The officers also found significant quantities of meth, cocaine, crack and Oxycodone pills. And to top it off, on his cellphone were pictures and videos of the man:
But last month, he walked out of the Ottawa Courthouse a free and innocent man after the trial against him collapsed.
All the evidence found in the Subaru was excluded because the officers had seriously breached the man’s Charter rights. They’d detained him under the guise of a sham impaired driving investigation, falsified their reports, then continued the lie in court under oath, according to the transcript of a decision read in court last month by Ontario Court Justice Mitch Hoffman.
The judge found that the officers quickly realized who the man was, that he had a history of firearms offences, and that he wasn’t impaired. They should have told him the real reason he was being detained — a firearms investigation — instead of continuing the ruse that they thought he was intoxicated.
With the critical evidence no longer usable, the Crown agreed the man should be found not guilty on the more than two dozen firearm, drug and other charges he faced.
CBC is not naming him because he was acquitted.
Hoffman told court the Ottawa police breaches of the man’s Charter rights were “wilful,” “intentional,” “flagrant, shocking and brazen.
“It was a planned, audacious, contemptuous and abhorrent abuse of an already vast power given to the police from the first steps to its implementation, and significantly exacerbated by the joint venture of both officers to mislead and deceive the court,” the judge said.
“This was almost as far as possible from a technical breach or an understandable mistake as police officers can
get.”
The man’s defence lawyer, Mark Ertel, called the ruling “courageous.” It’s important to uphold the rights of all Canadians, he said — even if some people might find it offensive in cases like this — “because we have to maintain the integrity of a criminal justice system that has to be above reproach.”
Charter breaches are routinely argued in criminal courts, but after 33 years in defence law, Ertel said he’s never come away with such a strongly written decision, and that it’s rare for a judge to make findings of intentional deceit in police investigations and testimony. As well, the tossed-out prohibited handgun evidence was significant.
“It takes a very serious affront to the administration of justice for an illegal firearm to be excluded from evidence,” Ertel said.
In January, CBC News reported on another Ottawa officer found by a judge to have deliberately lied in court. In that case, half a kilo of seized fentanyl and other evidence was excluded, collapsing the prosecution. Hoffman relied heavily on that Superior Court judge’s decision in his ruling.
Kiwan, who was hired by Ottawa police in March 2020, no longer works for the force. He resigned in May 2024, according to Ottawa Police Association president Matthew Cox. That was a few months before Hoffman ruled in August 2024 that the investigation had breached the man’s Charter rights. (The decision last month was to exclude the evidence because of those breaches.)
Sabeeh remains with the service on patrol.
Ertel doesn’t think the Ottawa Police Service has any system in place to track Charter breaches by its officers, re-educate, re-train or discipline them about those breaches, or even let them know when breaches are found to have happened in court.
Cox, the head of the union representing civilian and sworn members of the Ottawa Police Service, confirmed it.
“There is no system in place,” said Cox, who has 21 years of policing experience. “Your regular officer is just going from call to call to call, and then having to attend court for a number of different cases, and they don’t really follow up and have any knowledge of what actually happened in the case.”
Such a system should “absolutely” be created, Cox said — perhaps more of a buffer between police and the Crown to act as a liaison. Crown prosecutors, who see what becomes of police testimony and evidence, should be relaying any breach findings so that the officers involved can get more training and learn from it, or even be disciplined if it happens repeatedly, he said.
Cox respects Hoffman’s decision, but he added that “a lot” of Charter breach cases don’t involve police actually lying in court. More often, it’s junior officers who haven’t testified much, getting tripped up by highly experienced defence lawyers.
The Ottawa Police Service did not answer questions by deadline, and did not respond to similar questions about the previous case in January.
