A shot in the dark: An inside look at how a murder trial went off the rails

The bar closed and the patrons spilled out into the warm September night.

They walked a block south from the now-defunct CD Bar at the corner of Ottawa and Cannon streets to the parking lot of a little strip plaza on the corner at Roxborough Avenue to hang out in small groups, keeping the night alive a bit longer.

In the early hours of Sept. 9, 2005, 22-year-old Michael Parmer and four of his friends were in the parking lot chatting up some young women.

Parmer and his pals, all of whom are Black, had driven up from Niagara Falls, N.Y., for a night of drinking and dancing at CD because they believed Canadian clubs were safer and more welcoming.

They weren't as judgmental with who we were," said Eugene Banks, one of Parmer's friends who was at CD that night.

We just liked Canadians," said Banks, now 39 and living in Pittsburgh. We could just be kids and have a good time and flirt with the ladies."

Then, a bang.

Parmer was on the ground, bleeding heavily. Just chaos all around," Banks said. It was wild - probably the longest five minutes of my life."

It was a fatal shot to Parmer's eye in a parking lot filled with dozens of potential witnesses.

And yet, nothing for the next 12 years. The case remained an open, unsolved murder.

Then, finally, a break in 2017.

A woman who was previously a confidential informant for Hamilton police had been arrested in Kingston.

The woman, who had a substantial criminal record, said she had information about a murder. She was prepared to make a statement, hoping it would help get her children back from the Children's Aid Society after her residence was targeted in a home invasion.

The woman - her identity remains protected by a publication ban - said in a statement given under oath to Hamilton police in February 2017 that she witnessed Parmer's murder.

There was an argument outside the front door of the bar, she said, and Jermaine Dunkley, a former Hamilton high school basketball star, shot Parmer.

Dunkley was charged with first-degree murder. The weight of the case rested heavily on the confidential informant, the only person put forward as an eyewitness to the actual shooting.

Last September, Dunkley was found not guilty after Superior Court Justice Joseph Henderson shredded the confidential informant's credibility about what she saw.

But it was what the woman said about the Hamilton Police Service (HPS) that attracted more attention than what she had to say about the shooting of Michael Parmer.

Her testimony was a stunning sideshow to the main event.

By the time she'd finished testifying, she had made shocking allegations about corrupt practices - and corrupt officers - within Hamilton police. Her testimony raised serious questions about Hamilton police's investigative techniques, the thoroughness of its investigations and the police service's process for handling confidential informants.

Some of her allegations had been made to Hamilton police back in 2017 and, according to testimony, she provided specific examples of bad behaviour.

And yet again, nothing. Her allegations about corruption and corrupt officers appear to have been dismissed by Hamilton police.

She was believable enough to police and the Crown when it came to a first-degree murder case but the nagging question, Dunkley's lawyer wonders, is why does it seem she wasn't considered believable when it came to police corruption? Was this a case that fell apart because of one unreliable confidential informant? Or was this, Dunkley's lawyer suggested, an investigation marred by police tunnel vision?"

The police were prepared to rely on (her) whenever she implicated Jermaine Dunkley," said Nathan Gorham, Dunkley's lawyer, and they showed little if any interest in relying on what she had to say when it implicated Hamilton police officers."

A spokesperson for Hamilton police said the Parmer investigation was undertaken in good faith by investigators who formed reasonable grounds to lay a charge in the homicide."

The judge ruled that the charges were not proven to the appropriate standard of beyond a reasonable doubt,'" said Jackie Penman, corporate communicator for HPS. While this finding was open to the judge on evidence, it does not follow that the investigating officers acted unprofessionally or contrary to their oath of office."

Steve Kim, one of the two Crown attorneys who prosecuted the case, said that while there were other witnesses called who were at the parking lot that night, only the confidential informant came forward as an eyewitness to the actual shooting.

The Crown knew there were going to be real challenges with the witness's evidence and presenting her testimony proved to be even more difficult at trial," Kim stated to The Spectator.

The Crown knew that the witness's allegations about police corruption added to the complexity of the matter, but in spite of this, the witness told police she had observed the murder," Kim added.

Members of the Parmer family declined to comment to The Spectator.

When reached by The Spectator, the confidential informant indicated she would be prepared to speak about the case but only if she was paid. The Spectator's policy is to not pay interview subjects for information.

As far as key witnesses go, the confidential informant was problematic.

She has lived a criminal lifestyle," the judge noted.

She was a drug dealer for many years (primarily crack cocaine), a chronic shoplifter, and had convictions for fraud, theft and uttering forged documents - among others.

She is not the sort of person who is very trustworthy as she has a history of dishonest and unethical behaviour," the judge said.

In her February 2017 statement to Hamilton police, the woman said she saw Dunkley and another woman arguing outside the front door of CD Bar.

Parmer intervened, she claimed, and Dunkley shot him. She told Hamilton police that when she turned back after hearing the gunshot, she saw Dunkley holding the gun by his side.

She even drew a sketch showing where everyone was standing in relation to the front door at the time of the shooting.

But instead of this being a big step forward in the case, the trial showed Hamilton police knew this was a serious problem.

This eyewitness to the shooting had the location horribly wrong. She was off by the length of a football field, the distance between CD's front door and the plaza parking lot.

Det. Sgt. Steve Bereziuk became the case manager of the Parmer murder investigation in 2017.

He knew the informant had provided the wrong location for the murder and in his notebook he wrote, I wouldn't be comfortable charging (Dunkley) if location was off."

Then, another lucky break.

A few months later, on June 5, 2017, the informant called Bereziuk unexpectedly. It was a short call that lasted just a few minutes and it was a call that wasn't recorded.

Out of the blue and without any prompting, Bereziuk testified, the informant blurted out, All I can tell you is that boy was shot in that parking lot." The boy was Parmer and the parking lot she meant was the one at the corner of Ottawa and Roxborough, where the shooting took place.

The case was back on track.

Bereziuk arranged to have the informant interviewed by Det. Troy Ashbaugh, considered to be one of the best interviewers with Hamilton police, Bereziuk testified. Ashbaugh was recently singled out for praise by Justice Toni Skarica for his skilful eight-hour interview of Richard Taylor that helped lead to his convictions for the murders of his mother and stepfather.

Ashbaugh showed the informant a video he had recorded of the Ottawa Street area around CD Bar and the plaza parking lot in the spring of 2017.

The informant tried to show Ashbaugh the location of the shooting as she watched the video, but she still picked the wrong spot. After some discussion, Ashbaugh continued the video and eventually showed her the plaza parking lot where the shooting occurred.

So that's in fact the parking lot that you were talking about?" Ashbaugh asked her, and this time she agreed.

In an unusual twist, Bereziuk had been called to testify as a witness by the defence, not the Crown, so that he could talk about his notes and his interactions with the confidential informant.

It was a rough ride for Bereziuk.

During his testimony, he stated he hadn't prompted the informant when she mentioned the parking lot as the shooting location during their brief phone call. He also testified that it wasn't a make-or-break problem if the woman was wrong about the shooting location.

That caused Gorham, Dunkley's lawyer, to obtain permission from the judge to treat Bereziuk as an adverse witness," meaning he could be questioned more aggressively than would normally be permitted.

Gorham pointed out that Bereziuk had contradicted himself with his testimony because his own notes showed he wasn't prepared to charge Dunkley if the shooting location was inaccurate.

Bereziuk also acknowledged during cross-examination he may have said something to the informant about the parking lot during their phone call before she blurted out her statement.

Justice Henderson went a step further in his decision.

He found that Bereziuk did in fact suggest to (the informant) that the location of the shooting was in the parking lot and that it was his suggestion that caused her to make this change to her evidence."

He found the same with Ashbaugh's interview.

Even though Officer Ashbaugh was intent on having (her) confirm the location as the plaza parking lot, and (she) was intent upon helping him, she clearly did not even select the correct parking lot location until Officer Ashbaugh pointed it out to her," Henderson stated.

Bereziuk and Ashbaugh declined to comment on questions provided to them by The Spectator.

It is important to note that the Crown did not raise any issues about police conduct in respect of the Parmer homicide case," Penman stated.

Kim said that he and Andrew McLean, the other Crown attorney on the case, have both worked closely with Det. Sgt. Bereziuk and Det. Ashbaugh over the years and have found them to be diligent, forthright and honest officers."

Kim said the Crown was aware prior to the trial that the informant had previously erred in describing the shooting location.

Any time a witness is inaccurate or inconsistent on a material point it raises concern and also a recognition of a weakness in the case, which was the case in this matter," Kim stated.

He said there are a number of reasons why witnesses can be mistaken about important points including the passage of time affecting memories, witnesses not being precise in information they are providing, the emotional state of a person when providing a statement, and simply the frailties and imperfections of all people in their memories and observations."

And then there was the sideshow testimony of the informant's allegations of corruption within Hamilton police.

The confidential informant shocked court when she said she hadn't come forward earlier with her information because she had been told not to speak to other officers by her police handler, Craig Ruthowsky.

She told court she believed Ruthowsky and Dunkley were part of a scheme in which Ruthowsky would seize drugs and give them to Dunkley to sell so they could split the profits.

The informant called Ruthowsky her get out of jail free" card - he would protect her if she got arrested and she would set up drug targets so they could be raided. After the raids, she testified, Officer Ruthowsky would give (her) cash money or some of the drugs that he had seized as compensation," according to the decision.

Ruthowsky, now an ex-police officer, was convicted of three corruption-related charges and one count of trafficking in 2018 and sentenced to 13 years in prison. He is appealing his verdict and sentence, and was released on bail in 2020 at the start of the pandemic.

Another Hamilton officer testified in the Dunkley trial that a search of the police databases showed Ruthowsky hadn't submitted any intelligence reports related to the informant even though he was her handler for several years.

Ruthowsky's lawyer, Scott Hutchison, did not respond to requests for Ruthowsky to comment on questions provided by The Spectator.

During the Dunkley trial, Hutchison provided a written statement on behalf of Ruthowsky denying the allegations.

Neither the police nor the Crown have ever sought to speak to Mr. Ruthowsky about any of these allegations," Hutchison stated. We have learned of them from press reports about the prosecution's opening argument. Mr. Ruthowsky denies in the strongest possible terms any of the wrongdoing alleged."

The Ruthowsky allegations aren't the only example of Hamilton police's problems with confidential informants in recent years.

• There's the case of Robert Hansen, once Ruthowsky's partner in the gangs and weapons enforcement unit.

In 2016, Hansen was sentenced to five years in prison after being convicted of perjury and two counts of attempting to obstruct justice.

Hansen had encouraged one of his confidential informants to plant a gun in a suspected drug dealer's house and then lied about it to obtain a search warrant. The search warrant was being used to find the gun that had been planted by the informant.

Following an investigation after Hansen's arrest, the Crown decided to stay or withdraw charges in 10 drug and weapons cases in which Hansen would have been a key witness.

• There's the case of Det. Const. Ryan Smutnicki, who was found by a Hamilton judge in 2019 to have engaged in carelessness with the truth" and giving misleading and contrived in-court testimony" in an attempt to substantiate information he had received from a confidential informant.

The informant told Smutnicki that a Hamilton drug dealer was selling a mix of heroin and fentanyl known as popcorn" out of a store across the street from his house on Beach Boulevard.

There are only houses across the street from the dealer's home. Smutnicki adjusted his testimony to say it could have been a restaurant or a pub that looked like a store.

He was then shown a picture of a Beach Boulevard pub and he agreed that was the place he was referencing.

The pub was about a kilometre away from the dealer's home, not across the street.

The judge excluded the drug evidence obtained during the arrest because the man's Charter rights had been violated and found him not guilty of a drug-trafficking charge.

Smutnicki declined to comment on questions provided to him by The Spectator.

• And there's an internal Hamilton police report from March 2017 in which the confidential informant in the Dunkley case complained to the professional standards branch of Hamilton police because an officer had revealed the name of another confidential informant to her in a conversation.

She was extremely upset because she does not believe that the officer who spoke with her yesterday should have given her (the informant's) name," the report states.

She is very concerned that the officer she was speaking to is now going to give her name to (the informant) and others" and she feared her safety would be jeopardized.

The confidential informant didn't just point the finger at Ruthowsky for corruption within Hamilton police.

According to Bereziuk's testimony, she told him there were other dirty cops and she named at least one of them - Det. Sgt. Greg Slack of the gangs and weapons unit - along with some disturbing allegations about his behaviour as an officer.

Slack declined to comment on questions provided to him by The Spectator.

Hamilton police investigated the allegations against Det. Sgt. Greg Slack and found no evidence to support misconduct," Penman stated. Hamilton police did not elaborate on what the investigation entailed.

The informant also described an incident where some drugs were seized from her by another Hamilton officer. She told the officer that she was working with Ruthowsky and she was released with no charge.

The officer involved then allegedly filed a false occurrence report that only listed half the amount of drugs that were seized. The report also indicated that the informant was released because her Charter rights had been violated but the actual reason was because she had identified her working relationship with Ruthowsky.

Ashbaugh investigated the incident and, when questioned about it during Dunkley's trial, he said the officer only required some counselling.

The trial of Jermaine Dunkley raised a number of serious questions for Hamilton police and the Crown.

Why did a first-degree murder charge proceed when the case's only alleged eyewitness to the shooting repeatedly misidentified the location where it took place?

That's the million-dollar question," said Gorham, Dunkley's lawyer. It's a pretty stark picture of tunnel vision."

Penman, the HPS spokesperson, said the credibility of a confidential informant is often challenged by the defence in court.

We are acutely aware that investigations involving confidential informants are often subject to significant risk in respect of witness credibility," Penman stated. The credibility of an informant is critical to the successful outcome of an investigation."

The judge found two officers - Bereziuk and Ashbaugh - caused the confidential informant to change the shooting location she'd given under oath to match the evidence.

Did Hamilton police and the Crown not expect that information to come out during the trial?

Have Hamilton police looked into their process for handling confidential informants?

Penman said Hamilton police have developed a source-management unit to mitigate some of the inherent risks involved with the handling of confidential informants."

HPS will also be introducing a secure online system to better manage confidential informant files.

We have recognized the importance in ensuring that our officers have the proper training and supervision when it comes to the handling of informants," Penman stated. Police investigations and court rulings have exposed many areas where improvement was needed and mistakes have been made."

What happened with the allegations made by the informant about corrupt practices and officers within Hamilton police? Did Hamilton police investigate any officers other than Ruthowsky and Slack?

Bereziuk said Hamilton police had begun looking into the confidential informant's allegations about Ruthowsky's behaviour in March 2017.

After the Dunkley trial concluded in September 2021, Bereziuk told The Spectator the investigation into Ruthowsky was abandoned after the judge crippled the credibility of the informant. No new charges were laid against Ruthowsky.

Based on the judge's finding, it wouldn't be a fair process for anybody" for the investigation into Ruthowsky to continue, Bereziuk told The Spectator last year.

But that was four years after the investigation apparently started. What happened during those four years? According to his lawyer's statement, Ruthowsky was never questioned about the allegations during that time and he only learned of the allegations from news stories at the start of the Dunkley trial.

And why did it take a judge's finding on credibility to bring the investigation to a close?

Penman said Hamilton police thoroughly investigated the allegations Ruthowsky tampered with the investigation of Parmer's shooting.

Given the circumstances and the timing, it was decided to proceed with the homicide trial prior to laying any additional charges against Mr. Ruthowsky," Penman stated.

Following Justice Henderson's adverse ruling on the credibility of the witness, who was central to the Ruthowsky investigation, a determination was made that the charges against Mr. Ruthowsky were no longer viable."

And perhaps the most fundamental question raised by the trial. Why was the confidential informant considered believable when it came to the shooting of Michael Parmer? Did Hamilton police not consider her believable when it came to her allegations of corruption within Hamilton police?

They had objective evidence that supported her claims," Gorham said. There was shockingly little effort to investigate her claims when it related to other officers.

A reasonable member of the public could look at what happened and wonder if this was just a show investigation - We had an anomalous situation here, one bad apple, we investigated, nothing to see here.'"

For Dunkley, his acquittal in the Parmer murder won't have much impact on his current situation.

The one-time Toronto gang leader and rapper is currently serving a life sentence with no chance of parole for 25 years for the first-degree murder of Neeko Mitchell in 2013. Dunkley was convicted of orchestrating a hit on Mitchell as revenge for the murder of Dunkley's younger brother a few months earlier.

But for Parmer's family and his friend, Eugene Banks, Dunkley's acquittal has left a hole. A chance at seeing justice done has slipped away from them.

Mike deserved justice and his family deserves peace," said Banks.

He remembers his friend bleeding on the parking lot pavement. He took off his jacket and used it to wrap Parmer's head until the paramedics arrived.

Since that night, Banks said, he's been through some of the darkest depressions, you know, suicide attempts."

I vowed never to visit Canada again," said Banks. I'm going to try my best to move on with my life."

Steve Buist is a reporter at The Spectator. sbuist@thespec.com