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Niagara Regional Police Constable Nathan Parker, right, seen outside court in Hamilton with lawyer Joseph Markson, was charged with assaulting a peace officer, assault with a weapon and assault with intent to resist arrest.Molly Hayes/The Globe and Mail

The trial of a Niagara police constable charged with attacking his sergeant at a rural crash scene before being shot 10 times in response came to an abrupt end on Monday after the Crown concluded the prospect of conviction was tenuous.

Niagara Regional Police Constable Nathan Parker, 55, was charged with assaulting a peace officer, assault with a weapon and assault with intent to resist arrest after allegedly shoving and punching Detective-Sergeant Shane Donovan, then charging at him with a baton. In self-defence, court heard, Det. Sgt. Donovan shot him 10 times.

“I appreciate that there is often a public interest in prosecuting allegations of criminal conduct by a police officer,” Crown attorney Jason Nicol told Ontario Court Justice Anthony Leitch on Monday. “However, after considerable time and effort to evaluate the viability of this case … it is the Crown’s conclusion that the prospect of conviction is now tenuous and that this prosecution is no longer in the public interest.”

He said the primary issue was the credibility of Det.-Sgt. Donovan as the key witness.

The unusual “blue-on-blue” case stems from a dispute over a bathroom break on Nov. 29, 2018.

Constable Parker, a uniformed officer, was assigned to help Det.-Sgt. Donovan block a road near Pelham, Ont., so the collision reconstruction unit could collect evidence for a crash investigation.

At some point, the court heard, Constable Parker left his post, allowing traffic to flow through. When he returned, the two officers got into an argument. The sergeant testified that the constable got out of his cruiser and shoved him. Det.-Sgt. Donovan told Constable Parker he was under arrest for assault. But the officer kept coming at him, he said, throwing “haymaker” punches. From there came the baton, and then the two officers drew their guns. Det.-Sgt. Donovan fired.

The province’s Special Investigations Unit (SIU), which probes cases involving police that lead to serious injury, death or allegations of sexual assault, at first charged Det.-Sgt. Donovan. Within months, the Crown withdrew the charges (attempted murder, aggravated assault and assault with a weapon) after concluding he fired in self-defence.

The Ontario Provincial Police then charged Constable Parker with assaulting a peace officer, assault with a weapon and assault with intent to resist arrest.

Almost as soon as the trial began in September, it was derailed.

During cross-examination by Joseph Markson, Constable Parker’s defence lawyer, Det.-Sgt. Donovan said the evidence disclosure package provided to him while he was still facing charges had never been collected – and that he’d had access to it ever since.

Although Det.-Sgt. Donovan said he’d reviewed only a file or two, the trial was immediately halted and the USB stick containing those disclosure files was subpoenaed for forensic examination.

“That examination indicates that numerous files on that drive were accessed on various dates after November, 2019, including a number of dates before our trial commenced on Sept. 13, 2021,” Mr. Nicol told the court on Monday.

“The important conclusion is that based on the OPP’s forensic examination of the USB drive, Sgt. Donovan’s trial testimony, and the evidence gleaned from his duty book notes, at the very least, it is a reasonable inference that he accessed other key evidence after his criminal charge was withdrawn.”

The OPP forensic examination suggests the reviewed materials included Constable Parker’s SIU statement and medical records, scene photos and statements of key civilian witnesses.

“The tainting implications of such conduct with respect to Sgt. Donovan are obvious,” Mr. Nicol said.

He added that the continuation of the trial would no longer serve the public interest.

Although the fact that Det.-Sgt. Donovan fired 10 shots at his colleague was an explosive element of the case, Mr. Nicol pointed out that the shooting is “a by-product of the altercation and a secondary issue in this trial.”

Mr. Nicol also noted on Monday that the significant amount of time it would have taken to examine the complex disclosure issues must be weighed against the backlog in the courts the COVID-19 pandemic has created.

Mr. Markson said he commended the Crown for this “just conclusion,” but reiterated his belief in his client’s innocence.

“It is the position of the defence that the charges against Sgt. Donovan should never have been stayed by the Crown …,” Mr. Markson said in court. “His apparent perjury in this matter is simply a hallmark of the injustice that has occurred against P.C. [police constable] Nathan Parker.”

The Niagara Regional Police Service would not comment on Monday on what the resolution means for the employment status of Constable Parker, who was suspended with pay upon his arrest. “We will need to conduct a fulsome review to determine next steps in regards to the outstanding Police Services Act matters,” spokesperson Stephanie Sabourin wrote in an e-mail. “As such, it would be inappropriate to comment further at this time.”

Also unclear is what will come of two lawsuits filed by Det.-Sgt. Donovan. One, for $2-million, is against Constable Parker, the Niagara Regional Police Service and the police services board that alleges the force failed to train, supervise or properly discipline Constable Parker on previous occasions “when they knew or ought to have known he was dangerous and violent.”

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