The trial in Hamilton of a Niagara police officer who was shot by one of his colleagues has stalled until next week over questions about improper access to evidence.
Const. Nathan Parker is facing assault charges, despite the fact he was the one shot multiple times during a November 2018 confrontation with Det.-Sgt. Shane Donovan that erupted out of a disagreement over a bathroom break.
At the heart of the issue that's slowed the Ontario Court of Justice trial is a hefty packet of disclosure from the Special Investigation Unit (SIU) — Ontario's police watchdog — that was provided to Donovan on a USB stick when he was facing criminal charges for shooting Parker.
"We're navigating an unfortunate development," said Joseph Markson, Parker's defence lawyer, on Thursday. "Sgt. Donovan should never have had possession of the SIU file from Nov. 23  on."
That's the date after the charges filed by the SIU against Donovan, which included attempted murder, were dropped.
Court heard that after his criminal trial, Donovan should have deleted the SIU report or returned it to his lawyer.
But the sergeant said he did not know that was the case.
He testified that while he had continued to review some elements of the SIU report leading up to Parker's trial, the "majority" of his focus was on his own statement to the SIU and photos of the scene where the shooting happened.
A witness with 'all the evidence,' says lawyer
Markson argued there could only be two reasons someone would hold on to that material — to "tailor" their evidence or prepare for a civil trial, which would mean a financial motive.
Donovan has filed a $2-million lawsuit against Parker, the Niagara Regional Police Service and the Niagara police board.
The sergeant testified he spent roughly 40 hours on duty and at least 10 at home preparing for Parker's trial, based on notes he kept in a journal tracking his activities.
"Whether it's 10 hours or 50 hours, it would only take one hour to corrupt your evidence," said Markson, adding that for nearly two years, Donovan has had the opportunity to review witness statements, photos and other details contained in the SIU's file.
"He's a witness in possession of all the evidence in this trial."
Crown prosecutor Jeremy Tatum said he did not believe the USB would be the "smoking gun" that Markson suggested.
The Crown also argued the entire discussion was premature and Donovan should be allowed to finish his testimony before anyone tried to determine if he had attempted to tailor it in any way.
Not clear what's on USB
It's not clear what exactly was included on the USB stick Donovan said was handed to him by his criminal lawyer.
Throughout the day Thursday, Markson painstakingly walked the sergeant through the index of the SIU report, asking him whether he had accessed each item. Donovan repeatedly said he had not as they worked their way down the list.
The sergeant testified the copy of the report he was given did not appear to have several of the items listed in the index.
"It remains unknown whether or not the disclosure was adulterated in some manner either by him or his counsel before he received it," noted Justice Anthony Leitch on Friday.
Donovan has been testifying all week and said the rare "blue on blue" shooting happened while the two men were working at the scene of a car crash in Pelham, Ont., about 20 kilometres west of Niagara Falls.
The sergeant said he drew his gun after Parker pushed him, hit him with "haymaker" punches and pulled out his baton.
Donovan said he started shooting when the other officer went for his gun too and didn't stop firing until Parker went down.
An agreed statement of facts says 10 shell casings were found at the scene, all from Donovan's firearm.
Medical records included in the agreed-upon facts state Parker had a gunshot wound through his cheek and nose, his left shoulder and into his upper thigh; four gunshot wounds on his left calf; one on his left hip; a gunshot entry wound on his lower abdomen; and one wound near the back of his right foot.
On Friday, Donovan turned over his copy of the USB and it was sealed by the court.
Leitch advised the sergeant that issues around solicitor-client privilege will be weighed, and advised him to consider getting independent legal advice.
He adjourned the matter until Wednesday, when court is expecting an update the USB and the questions it presents.