A judge has acquitted four Hamilton police officers accused of writing fake tickets.
The verdict in the trial of four members of the service's high-profile ACTION team came Friday, the latest step in a legal saga that began with the discovery of paper tickets in a Hamilton Police Service shredder in September 2014.
Five officers were charged with faking tickets, and four of them elected to have their case heard together: Constables Bhupesh Gulati, Dan Williams, Stephen Travale and Shawn Smith. The officers appeared visibly relieved as Justice Pamela Borghesan deemed them not guilty, count by count.
But the officers didn't escape the verdict unscathed, after admitting as part of their defence to careless habits and poor note-taking.
Justice Borghesan said "laziness and complacency" had "permeated all four officers' practice," especially as it pertained to writing provincial offence notices to many of the poor, homeless and people with addictions commonly ticketed in the downtown core.
Testimony showed the officers had ticketed that same small group of people over and over, and that doing so had no apparent effect on the behaviour of those getting the tickets.
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Those downtown street-involved people testified they owed tens of thousands of dollars in unpaid fines.
She said, that on a few of the charges, while she didn't believe the officers' accounts, she had a doubt whether they faked the tickets, and that was enough to acquit them.
Borghesan expressed disbelief that police officers would or could be so sloppy with their time-keeping and note-taking — crucial components to building criminal cases against offenders in the legal system.
"I am unable to conclude that fabrication is the only inference from poor note-taking," she said, calling the lack of notes a "poor habit fuelled by the officers' knowledge that the ticket would not be disputed."
Const. Dan Williams
Borghesan called the charges against Williams the "most straightforward" of the four. He was charged with writing two tickets. And while the copies of the tickets that were supposed to be handed to the offender were found in the police shredder box, Borghesan found Williams' testimony believable that he'd seen other officers do that with tickets that had been refused.
Williams took responsibility for his "careless note-taking," she said, and was believable.
Williams wiped away tears as the judge declared him not guilty of two counts of fabricating evidence.
Const. Bhupesh Gulati
Borghesan said there was no doubt there were issues with Gulati's tickets, and said she was suspicious of the circumstances surrounding at least one of the three he was charged with.
But the judge said there were enough details that left her with doubts he'd fabricated the tickets. For example, if an officer was making up an interaction out of whole cloth, why would he write a different address than the one he'd written on a previous ticket to the same individual?
She said that left enough room to believe that the officer might have obtained the new address when he talked to the individual to issue the ticket, even if the time on the ticket didn't fit with other evidence about when he was in the station.
She declared him not guilty on three charges of fabricating evidence.
Gary Clewley defended officers Gulati and Williams. Said he's very pleased with decision, and that the judge believed their testimony. pic.twitter.com/V4QGpXhHRv— @kellyrbennett
Const. Shawn Smith
Borghesan ascribed some weight to the fact that Smith didn't remove Post-It notes containing some names and addresses of the "regulars" from his notebooks before he turned them over for the investigation.
The Post-Its "could have easily been removed or destroyed" if they were put there for a nefarious reason, she said.
She quoted Smith's lawyer, Daniel Moore, as saying that "Mr. Smith is not the world's greatest police officer," but said she couldn't conclude that the Post-It was an aid to fake tickets.
She concluded there was room for human error on the times and dates written on two of the tickets Smith was charged with faking.
On another ticket, when Smith said he pulled over the van driving the horse trailer downtown to give a ticket, which the Crown found unbelievable, the judge said she was not satisfied the interaction was fabricated.
On the fourth charge against Smith, the judge said the "concerns regarding the legitimacy (of the ticket) are real." She said she did not accept his evidence that a woman he said he was ticketing for panhandling didn't have any pockets and thus didn't take her copy of the ticket — where would she put the money she was collecting?
Borghesan said that ticket "likely was fabricated, but that does not meet the criminal standard of proof." She declared him not guilty on all four counts.
Daniel Moore, attorney for mounted unit officer Shawn Smith: even though judge didn't believe him on all counts, she made proper decision. pic.twitter.com/BOhtJ9jSYj— @kellyrbennett
Const. Stephen Travale
The judge appeared to have the most problems with Travale's testimony. The Crown had alleged that Travale had doctored his notes, which Travale emphatically denied.
Borghesan found a "troubling inconsistency" in the chronology of some notes, but ultimately said Travale was not guilty of faking two tickets issued on the same night at a time the Crown alleged was impossible.
She found him not guilty on another ticket with the wrong date and an inconsistent address for one of the "regulars", Thomas Groves, and on another ticket he said he wrote outside of the typical ACTION boundaries.
On two more charges, Borghesan had more issues.
On one, Travale explained conflicting time stamps with a story that the judge did not believe: that he got hungry in the middle of the administrative tasks, and hopped in a cruiser to go get a slice of pizza at National Pizza at King and James streets downtown, when he got out of the car to give an open-liquor ticket to Thomas Groves.
She said that was "an attempt to shoehorn a story into the time frame given by the electronic data." But she said while she didn't believe his evidence, she retained some doubt, and declared him not guilty.
On the sixth and final charge he faced, the judge said his story again seemed to "tailor a version of events that will dovetail with other evidence," but said she could be satisfied he faked the ticket.
'It's a relief'
After court, Hamilton Police Association president Clint Twolan called the verdict a "relief."
He said the experience has been "troubling and unsettling" because of the discord there was between members of the same police service. And he also commented on something the Hamilton Police Service has been pushing the province to change: Suspending officers without pay.
"This is a great example of four police officers, had they been suspended without pay two years ago, they wouldn't have been able to defend themselves," he said. "And would they have had to take a position that they probably weren't comfortable with because they weren't guilty of anything."
Now that their criminal charges have wrapped up, it's expected the officers will next face Police Services Act disciplinary charges.