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Rosie DiManno: Years later, man recounts ‘unlawful’ arrest by officer wounded in cop-on-cop shooting

Rosie DiManno: Years later, man recounts ‘unlawful’ arrest by officer wounded in cop-on-cop shooting
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And what caused all this chaos in St. Catharines on Jan. 28, 2003?

The husband of an accused representing herself, sitting in the public gallery, was set upon — in the courtroom — by two members of the Niagara Region police, allegedly for having made remarks under his breath.

One of the constables had just left the stand and taken a seat next to his colleague. There were words exchanged between the officers and Wayne Penner, spouse of Marlene Penner, who’d been charged with driving a motor vehicle without properly displaying its plates. (It was lying on the dashboard.)

The officer who’d just testified leaned forward to speak with Wayne Penner. “His remarks were to the effect that Mr. Penner could or would be arrested for his conduct.”

Those comments are contained in a judgment by the Ontario Civilian Police Commission against one Const. Nathan Parker.

“The two officers dragged Wayne Penner from the courtroom and wrestled him to the ground in the hallway,” the statement of facts continues. “His glasses got lost in the struggle. After the application of empty hand and knee strikes by both officers, Wayne Penner’s hands were cuffed behind his back. He was charged with causing a disturbance, breach of probation and resisting arrest.

“It was our conclusion that this arrest was both unlawful and unnecessary and that the corresponding use of force was unjustified.”

Parker is, of course, the veteran officer who was struck by up to five bullets in a cop-on-cop shooting last week .

He has a long record of disciplinary hearings under the Police Act — either found guilty or pleading guilty in every incident.

Yet this courtroom incident doesn’t seem to appear in police tribunal records, perhaps because the civilian complaint against Parker and his police colleague — alleging unlawful arrest and unnecessary use of force — was dismissed. At which point, Wayne Penner appealed to the Ontario Civilian Commission on Police Services, which reversed the hearing officer’s decision, as stated above. Parker was docked 32 hours pay.

Penner was taken to the police station, downstairs, and, he claims, beaten, suffering a black eye, a bruised knee and other injuries, requiring hospital treatment. Afterwards, returned to the station, he was charged with causing a disturbance, breach of probation and resisting arrest.

He revisited the incident Thursday in a telephone interview with the Star.

“In court, he said to me, ‘if you ever look at me again or speak to me, you’re going to get arrested. Then he grabbed me, put me in a chokehold and tried to carry me out by my neck.

“He made me kneel down. He hit me in the eye.”

At the police station, “I knew he was going to beat me up. The only reason he stopped is because someone else came down the stairs.”

Penner is 6-foot-3 and 250 pounds. Parker — an avid bodybuilder and, according to his brother Phillip Parker, a user of steroids — weighed about 240 pounds at the time, Penner estimates.

“He’s built like a little tank, a wild tank.”

The story didn’t end with the police commission ruling.

Parker appealed to Divisional Court, which concluded the officers had legal authority to make the arrest and restored the hearing decision.

“I represented myself,” says Penner, a mason by trade. “It was me against four police lawyers. I lost.”

Penner had simultaneously launched a civil suit against the officers and the Niagara police service. The civil action appeared dead in the water as a result of the court’s decision.

But then Penner received a call from Toronto lawyer Julian Falconer, who has decades’ experience representing civilians in complaints against police officers. Falconer took on the case pro bono.

The officers moved on to Superior Court, successfully seeking to have many of the claims in the civil action struck on the basis of estoppel — a judicial device whereby a court may “estop” a person from making certain assertions. Penner lost again at the Ontario Court of Appeal level.

Falconer, however, took the matter all the way to the Supreme Court of Canada, which agreed to hear the case. In 2013, Falconer and Penner, stunningly, won the landmark case by a 4-3 decision.

Barring Penner from proceeding with his civil suit was a “serious affront to basic principles of fairness,” the Supremes wrote, and “had the effect of permitting the chief of police to become the judge of his own case, with the result that his designate’s decision had the effect of exonerating the chief and his police service from civil liability.”

At 11 p.m., on the night before Penner’s civil suit was to be heard, he got a call. Niagara police and the officers wanted to settle out of court. Penner agreed. He also signed a nondisclosure agreement, thus is unable to reveal how much money he received.

“Ten years it took,” Penner said Thursday, adding that, during the original arrest of his wife, Parker had “gone ballistic on her, she was shaking.”

Last week, when the couple heard on the news about the cop-on-cop shooting, Maureen Penner turned to her husband and said: “Too bad it wasn’t Parker.”

The Special Investigations Unit, which has carriage of the case, hasn’t released the names of the officers involved. But multiple reports have identified the “victim” as Const. Nathan Parker and the subject officer as Det.-Sgt. Shane Donovan. They had been on the scene, about 22 kilometres south of St. Catharines, reconstructing an impaired driving collision which had occurred 17 days prior.

Thirteen cops have been designated witness officers by the SIU, which means they are compelled to submit to interviews and turn over their notes. SIU spokesperson Monica Hudon points out that doesn’t mean all the officers were there when the shooting occurred. It could be officers who showed up afterwards and might have information about what they saw or were told. Hudon would neither confirm or deny that the “altercation” between Parker and Donovan — which purportedly had deteriorated into a fist fight before the shooting — had been captured on cellphone video by some of the officers present.

Over the course of his policing career, Parker has been docked at least 226 hours pay, arising from disciplinary hearings, in offences including unnecessary use of force. He’s been ordered to take anger management counselling. His brother, Phillip, recently told the Star that Parker has had lifelong rage issues — a “red mist.” A retired staff sergeant with Niagara told the Star in an email that he was concerned about Parker’s rumoured steroid use as early as the ’90s and he knew of several complaints from Parker’s neighbours who had called police to his home address.

The Star could find no record of a disciplinary matter involving Donovan.

The SIU is probing whether the shooting could have been an accident or self-defence by Donovan, or whether criminal charges are warranted.

Parker, who was last reported in stable condition in hospital, could not be reached by the Star on Thursday for comment.
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