Publication ban imposed in trial of shot Niagara cop

Parker trial adjourned to Oct. 4 as proceedings remain at standstill

The long and winding legal saga of shot Niagara police Const. Nathan Parker remains at a standstill.

The Crown is trying Parker on charges of assaulting a police officer, resisting arrest and assault with a weapon (his retractable baton), but the trial has now been adjourned for a second time.

That was after Ontario Court Justice Anthony Leitch decided to enforce a publication ban, declaring the day’s proceedings had taken place under the retroactively invoked protection of a voir dire. Voir dire is a legal phrase for a variety of court procedures, usually, though not always, connected with jury trials.

Leitch, who is hearing the trial without a jury, offered a clear explanation on the necessity of the publication ban for Wednesday’s hearing. The ban on what was said Wednesday will stay in place until the trial ends.

Leitch adjourned the proceedings until Oct. 4 to give lawyers more time to extricate themselves and the judge from the legal thicket created by a Special Investigations Unit file Sgt. Shane Donovan had.

The SIU is the agency that independently investigates police actions resulting in serious injury, sexual assault, or death and recommended the Crown file charges against Donovan, who shot Parker. The Crown withdrew charges of attempted murder, assault and assault with a weapon when it became clear there was no chance for a conviction.

Leitch strongly advised Donovan to retain third-party counsel on the disclosure issue, which might result in a violation of his attorney-client privileges if unchecked.

Last week, Parker’s attorney, Joe Markson, suggested Donovan’s testimony might be tainted because he had access to statements from other witnesses while preparing for Parker’s trial. Markson told the court legal “remedies” may be in order, though he hasn’t declared what he wants from Leitch yet. The grand slam, from Parker’s perspective, would be a stay of the charges.

Markson has said it is clear Donovan was entitled to the disclosure, but only for his trial. The SIU disclosure includes a USB stick containing thousands of pages of evidence as well as crime-scene photos and witness statements.

After those proceedings ended, the file should have been returned, Markson said.

Markson told the court last week the SIU disclosure likely included an undertaking, written or implied, instructing Donovan and his attorney to not use the evidence for any legal purpose other than his own defence.

Under Markson’s cross-examination, Donovan, who returned to work after his charges were dropped, testified he had only reviewed his own statements to prepare for the Parker trial. However, as the cross-examination continued, Donovan was unclear about what he had done on the dates and times recorded in his police-issued memo book under “trial preparation.”

Complicating the matter in this trial is the possibility that the disclosure and its USB stick might contain additional communications subject to attorney-client privilege. Those communications, along with the disclosure, were provided to Donovan by his criminal attorney, Joanne Mulcahy of Toronto, the court had already heard.

The same holds for another copy of the disclosure and the USB stick, which is in the hands of Donovan’s civil attorney, Margaret Hoy of Niagara Falls. Donovan has filed lawsuits asking for millions of dollars from the SIU, Niagara Regional Police and Parker.

The Standard can’t report on whether or not Hoy has taken a position on the issue because of the publication ban.

After a series of miscommunications about a bathroom break, Donovan said he shot Parker 10 times in self-defence on a rural road in Pelham on Nov. 29, 2018. He said an unhinged Parker pushed, punched, and drew his retractable police baton after the two exchanged words over Parker leaving his post without permission.

Medical records from the agreed statement of facts said Parker was wounded through his cheek and nose, shoulder and upper thigh. In addition, he was shot four times in the calf and once in the hip. He also had entry wounds in his abdomen and the back of his foot. He was rushed to a Hamilton hospital by air ambulance in critical condition and hasn’t returned to work.

Donovan testified earlier in the trial he was taken to headquarters, questioned and released. The Crown charged him a year later after the SIU completed its investigation.

He has since returned to duty with the NRP.