JUDGE CLEARS COP, SMELLS COVERUP

An Ontario court judge has delivered a stinging rebuke of the Hamilton
Police Service in his acquittal of an officer charged in the botched
drug raid and takedown of a 59-year-old Karen refugee.

Justice Paul Currie said the Crown did not prove beyond a reasonable
doubt that Detective Constable Ryan Tocher used excessive force in
subduing Po La Hay in a mistaken raid of Hay's Sanford Avenue North
apartment May 4, 2010.

But while Tocher, 36, walked out of court smiling Thursday, the
Hamilton Police Service wasn't as lucky. Currie suggested the conduct
of four police witnesses in the case "raises the spectre of a coverup."

Currie was particularly concerned that neither Sergeant Paul
Henderson, the raid supervisor, nor Detective Constables Chris
Camalleri, Christopher Button or Angela Weston -- all of whom where in
the kitchen with Hay and the accused -- could positively identify
Tocher as the officer who stomped Hay. Weston has since transferred to
the Niagara Regional Service.

"I find the collective evidence of the witness officers to be
troubling. Their inconsistencies in their version of the evidence and
their apparent inability or unwillingness to identify the person
attached to the leg, as most were easily serving in close proximity to
the person who was attached to it, strains credulity and raises the
spectre of a coverup," Currie said in his ruling.

Indeed the judge hinted that the conduct of the witness officers could
form the basis of a civil award where the burden of proof is not as
high as in a criminal proceeding.

Hay is expected to launch a civil lawsuit against the Hamilton Police
Service in connection with the botched raid and takedown, which left
him with three fractured ribs and a fractured vertebra.

Police Chief Glenn De Caire did not return calls seeking a response to
Currie's remarks. But Sergeant Terri-Lynn Collings said the chief
would not elaborate on the ruling beyond the media release issued
shortly after the verdict.

In that statement, De Caire said Hamilton police "are cognizant of
both the ruling and commentary."

"The Hamilton Police Service accepts and respects the decision of the
court," he said.

De Caire said the service has "assessed our practices and procedures
for entries during search warrants" and changes were put in place a
year ago and have been used in numerous search warrants since.

"The statement speaks for itself. That's pretty much it," Collings
said later.

Tocher declined to comment to The Spectator following the verdict. His
lawyer, Gary Clewley, said he was pleased with the ruling.

"I think the verdict means (Tocher) was doing his job. This was a case
of misadventure not misconduct. (Currie) accepted Mr. Tocher's
evidence that his intent was to subdue him not injure him," Clewley
said.

Clewley said the judge's comment about the conduct of the police
witnesses, while serious, fell short of an indictment of the service
and shouldn't require discipline against the officers.

Tocher admitted stomping the 5-foot-7, 130-pound Hay as he struggled
with Camalleri, Button and Weston on the floor of his apartment just
after 11 officers burst through his door.

Police had a warrant to conduct a bust on suspected cocaine trafficker
Gary Demetries but had the wrong apartment. Demetries lived next door.

Currie said Tocher admitted using force to subdue the struggling Karen
refugee. But the judge said there was reasonable doubt whether that
force could be considered excessive.

"The defendant testified he became concerned and his best option was
to apply his foot to the central left back area of the male to force
him down. The defendant testified he used a lot of force to do that
and stayed in that position for several seconds while Mr. Hay
continued squirming," Currie said.

Hay sent word through a representative of Hamilton's tight-knit Karen
community that he did not wish to comment on the ruling. There are
several hundred Karens -- an ethnic group that faces persecution in
their native Myanmar, also known as Burma -- living in Hamilton.

Hay's lawyer Bob Munroe said the acquittal does not end the
matter.

"The Hamilton Police Service should be held accountable for their
actions. The provincial court trial revealed some information about
that botched raid. The court commented on the troubling
inconsistencies contained in the defence evidence at trial which
'strain credibility' and raised 'the spectre of a coverup.'"

Munroe said a lawsuit against the Hamilton Police Services Board will
be filed Monday. He declined to disclose the amount of damages Hay
will be seeking.

The judge showed compassion for the plight of the complainant, a
single father of three who came to Canada in 2006 after spending 10
years in a Thailand refugee camp.

"This is a tragic case on a number of levels, most from the standpoint
of Mr. Hay, who through consequences entirely beyond Mr. Hay's
control, had his home invaded in error. He suffered significant
injuries from his interaction with police officers there," Currie
said, noting he was aware the complainant has a civil suit pending.

"No one suggests Mr. Hay deserved the fate that befell him last May,"
Currie told court.