A judge has adjourned the assault trial Const. Nathan Parker, shot by another police officer in 2018, amid issues around a key witness who had access to content from a related investigation by Ontario’s police watchdog.
On Friday Parker’s counsel continued an action which began the previous day suggesting the cross-examination of Sgt. Shane Donovan may be tainted since he possessed a USB stick received from the Crown when he was a defendant charged with attempted murder.
Judge Anthony Leitch closed the days proceedings by asking Donovan to turn over the storage device which contained thousands of pages of statements, photos and recordings from an Special Investigations Unit (SIU) file.
The drive was sealed as an exhibit until an application is made by counsel to examine it.
Leitch also advised Donovan – still on the stand for cross-examination – that he is free to obtain independent legal advice and discuss what’s transpired so far in the trial.
“I have ordered a transcript of your evidence for the court so it’ll be available and I’m happy to have a second copy in case you hire a lawyer to give you some advice,” Leitch told Donovan.
On Wednesday, counsel Joseph Markson suggested to Leitch that Donovan’s possession of the USB stick put his credibility in question since he was just a witness.
Typically, witnesses receive exclusion orders from a judge which limits contact to prevent potential bias in testimony.
“This is an unfortunate development because Sgt. Donovan should never have had possession of the SIU file after the charges were dismissed,” Markson told the court Wednesday.
Donovan received the SIU disclosure data as a tool for his defence when he was charged with attempted murder, aggravated assault and assault with a weapon after shooting Parker 10 times amid an altercation tied to a traffic investigation in 2018.
The Crown would later drop those charges, saying there was no reasonable prospect of conviction.
Leitch on day four of the trial acknowledged that Donovan could have access to other people’s statements and materials witnesses don’t usually get.
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“When he accessed those materials and if they influenced his current testimony in the trial are relevant and important issues for the defence. I totally understand that,” Leitch told the court.
During Friday’s session, Markson suggested Donovan’s possession of the files “give rise” to a pair of ulterior purposes – to tailor trial evidence as a complainant not a witness and also use it in anticipation of civil litigation.
The Crown’s Jeremy Tatum said their submission was to continue with the cross-examination of Sgt. Donovan suggesting “there is no prejudice against doing so.”
“Constable Parker is entitled to a fair trial, not a perfect one. Two days of trial time have now been lost.”
Tatum went on to say there’s no forgone conclusion that any additional evidence Donovan may have reviewed would impact his credibility as a witness.
However, Leitch suggested that if Parker’s SIU statement shows up on the USB drive and analysis of metadata on the drive reveals Donovan had accessed it, that would be something the defence could challenge.
“So if the USB goes to the defense through whatever route it’s going to go and it shows that he accessed defendant Parker’s statement, that would have, in my view, at least arguably an impact on his credibility,” Leitch said.
Parker, 55, has pleaded not guilty in the assault of Donovan prior to being shot in broad daylight on Nov. 29, 2018 on Roland Road and Effingham Street in Pelham, Ont.
The trial is set to resume on Wednesday, Sept. 22 with Sgt. Donovan still in cross-examination.
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