Inequality From Ontario’s Cuts To Legal Aid Is A Further Step In Wrong Direction

In the field of motor vehicle collision reconstruction I have occasions to examine how the legal system functions with respect to persons charged with various crimes related to motor vehicle collisions. At times I have been approached by persons looking to defend themselves while also possessing limited resources. Over the years I have also observed various legal entities discussing the problems with self-representation before the courts. These self-representations occur because those charged do not have the funds to hire lawyers and associated collision reconstruction experts. It has been noted that these self-representations add to the wasting of court time when the self-representing individual does not have a clue about court proceedings. It also leads to the obvious problems that individuals are found guilty of crimes, or of greater crimes, not because they are more deserving but because their financial situation causes their poor performance before the courts.

In the most recent budget of Premier Ford’s Ontario government which was disclosed this week, it was revealed that the Legal Aid system in Ontario will see a cut of $133 million, or almost 30%, from the system’s budget. While the Ford government claimed that this will enhance the program’s search for innovative ways of delivering aid, the obvious reality is that this is a clear cutting of the funds that provide a minimal level of justice to those who cannot be properly represented in court.

The repercussions of such cuts may be difficult to match, one-to-one, as direct relationships of cause and effect. Those persons who are charged and convicted will likely be sent to jail or face other punishments more than their wealthy neighbours. But, over time, there will be repercussions.Those repercussions may not show up in government statistics as related to legal aid cuts. Those repercussions will exhibit themselves in the increased numbers of individuals who are sent to jail, come out, repeat their crimes, and are sent back to jail. There will be more homeless persons who will never escape their plight. There will be more persons who become regularly involved in petty crimes and who graduate to more serious crimes that become dangerous to our society. There will be more children, observing the injustices done to their parents, who will harbour their resentments that will be difficult to detect and more difficult to erase.They will relate to more gangs and criminal organizations who will prey on society even more than they do now. When we scratch our heads and wonder where all these dangerous persons came from we can be sure that actions such as cutting legal aid and many similar social programs will be well hidden from our conscious psyche.

Mr. Ford is a patient gardener who is dutifully incubating his precious seedlings of baby criminals. Watering and fertilizing them through the cutting of social programs, such that in 5, 10 or 20 years he will have a very fine crop of criminals that will be roaming our streets for a generation to come.

School Bus Low Speed Rollover Could Have Been Deadly

A very low speed rollover of a school bus in north-west of Toronto yesterday could have been deadly – so what made it a successful non-event?

Was it pure luck, engineering, or a combination of both that led to minor consequences in this school bus rollover?

To begin with, there was no information about the specific location of the mishap. It reportedly occurred on Cold Springs Camp Road “Ganaraska Forest”. This remote area may have specific road conditions relevant to the cause of the collision. Although this is a hard top road surface many tar and chip surfaces contain substantial bumps and upheavals, particularly in the springtime and it would help to know what the road surface conditions were like.

Every person who has ridden in a school knows their childhood experiences whenever a school bus travelled over a bumpy road. In fact many adventurous boys would specifically sit in the back of the bus on these occasions because this would be the location where the bus would exhibit the largest vertical motion while traversing the bumps. While children find this entertaining there is a darker side to the issue.

School buses have stiff suspensions. When riding over bumps they exhibit large motions in their sprung mass. The sprung mass is that portion of the body that is riding on the suspension, or the mass minus the wheels, axles and suspension. That is why bus drivers and the companies that operate school buses need to pay attention to where the bus will be travelling. Especially in springtime when roads may change their character due to the warmth/frost cycle that causes road surface upheavals.

In documenting the road surface conditions of a particular section of roadway several years ago that was travelled by school buses I documented the conditions noted in the two photos below.

Example of a road surface upheaval on a roadway regularly travelled by school buses.

A crack in the pavement producing several inches difference in elevation can be a significant issue to the safety of a school bus.

These surface ruptures existed through several locations along this road. When documenting schools buses travelling over the bumps I was approached by a local police officer who interpreted that my documentations were a way of stalking the bus drivers who had observed me videotaping them and photographing the school buses on several occasions. When I pointed out to the officer that the road surface conditions were a danger to the safe operation of the school buses and that he should be reporting that danger to the municipality, he merely concluded that this would be of no use as the municipality would not listen to him. He also threatened that I discontinue my documentations or I would be charged.

So why is there such a difficulty in officially documenting the road surface conditions, especially when it may involve the safety of innocent children in a school bus? We know that these children will not be seat-belted and that the loss-of-control of a bus could result in a rollover. The kind of rollover that occurred at the Cold Springs Camp Road, but which could potentially result in much more serious consequences.

What can be said about the present collision is that the rollover of the school bus occurred at a very low speed. One can follow the tire marks on the sloped ditch as they terminate near the final rest position of the school bus. The tire marks end precisely in a lateral position next to the bus meaning that, just as the bus was coming to stop it fell over. So the forward speed of the bus was not the important matter. What was important, and potentially dangerous, was the low speed rollover.

This is where school bus design comes in. As an accident investigator under contract  to Transport Canada in the 1980s I and my fellow investigators were required to participate in a Special Projects program where there was an emphasis on documenting school bus collisions. At that time it was recognized that  there were many safety issues with school buses. As an example, sharp, sheet-metal panels installed in the interior body of the bus would separate even in minor collisions resulting in unnecessary lacerations, some of which could be serious. In other instances the seat backs if school buses contained metal tubes along their tops that resulted in unnecessary injury to a child that struck these stiff and narrow structures. Most importantly it was recognized that passenger ejection was a large threat due to the large windows and ease of ejection when rollover was a common mechanism in school bus crashes. There were many changes made to the design of school buses with introduction of “compartmentalization”, or the idea of keeping children confined to the local area where they were seated. Thus high-back seats were installed and the side windows were reinforced to create smaller openings to prevent ejection. And of course the sheet metal junctions were corrected.

The term “dice in a box” is commonly used to refer to the consequences of rollovers in that, one can engineer many things to reduce injury consequences, but no one can actually predict what will happen in an individual rollover as they are so unique. Yes, the general pattern of commencement of loss-of-control is common. But even then loss-of-control can occur, and often does, from an initial, minor impact with a lighter vehicle. Road surface condition is also a major and common factor in school bus loss-of-control. But once the loss-of-control begins the status of many factors comes into play as to what will happen next. What we see in the present case is that the school bus encountered a slope of the ditch next to the road and that was the primary factor in the rollover. But it was fortunate that there were no other objects present where the low speed rollover occurred. So large rocks could be danger. Trees and poles could also be a danger. And a factor that is less publicized is the presence of water.

Springtime and heightened water in ditches is not something that should be unexpected. Yet there is little appreciation of the fact that even shallow amounts of water in a ditch can be lethal to occupants of vehicles that overturn into such ditches. It was fortunate that the overturned school bus did not land in a water-filled ditch, that it was travelling slowly, that the bus was not fully loaded with passengers, and that the collision occurred in relatively warmer conditions and not in a winter blizzard or darkness.

When Transport Canada considered what needed to be done to improve the safety of school buses it was looking precisely at collisions such as this one where there would be a relatively low speed impact, or a loss-of-control, that would eventually lead to a rollover. What was crucially important is the prevention of ejection of the children and, fortunately, in this case, ejection was likely prevented. If a child had been ejected one can imagine that the full mass of the bus could fall onto the child and the consequences could be deadly. But one can never tell what will happen when you have “dice in box”. It is no different than a Monte Carlo casino where, in the vast majority of instances you win nothing or very little, but every so often you have the misfortune of hitting the deadly jackpot that you don’t want.

Investigation of Death of Jake Hughes Demonstrates Systemic Problems

When the public does not have access to the basis for death investigations no questions are asked even when the basis is flawed. This also applies to families who are kept in the dark about how conclusions were reached in assessments of their members’ deaths.  In many instances the recognition that evidence about an investigation is unknown does not reach the public psyche. One only needs to look at the results of the infamous Humboldt Broncos tragedy to see how the holding back of the police investigation report was hardly given any mention in the official news media, yet so many were willing to draw conclusions and instruct the public as to what they should believe.

A new revelation has unfolded in an article written by Mark Kelley, Co-host of the CBC “The Fifth Estate” and posted to the CBC website on April 7, 2019. The story revolves around the death of a 19-year-old man, Jake Hughes, who was killed in an ATV incident on August 20, 2012. The official story was originally publicized that Hughes was the driver of the ATV that was travelling along a woodlot trail when an impact occurred with a metal bar of a barrier that was placed across the trail. Another rider of the ATV, Taylor Rivando, 18, was determined to be the rear passenger.

The death of 19-year-old Jake Hughes in an August 20, 2012 ATV collision was the subject of a CBC news article authored by Mark Kelley.

A view of the ATV and the bar of the barrier that was struck and resulted in Jake Hughes’ death.

The father of Jake Hughes, Sam, happened to be a 15-year member of the Niagara Regional Police Service and, in my view, this likely played a large part in why the story did not just disappear like so many other faceless problems of the past. By the accounts noted in the CBC article Sam Hughes did not just lie down and accept the conclusions of the OPP investigation. Through his request made via the Freedom of Information he  “eventually got his hands on the details of the OPP investigation” which led him to more questions. The article described how Sam Hughes was in a better position than most to understand the tricks of the trade in that he recognized what typically happens in police investigations when one of two persons in a vehicle dies and the surviving person claims that the deceased was the driver. “It’s the oldest trick in the book” Hughes was quoted as saying.

A photo of Jake’s parents, Pearl and Sam Hughes, as included in the CBC News article by Mark Kelley.

Well yes, in my experience, it is a very old trick indeed. One that any investigator should consider. But few persons in the public world, who have never been involved with, or have little or no knowledge of police investigations, would think to consider that possibility. The public has grown up bombarded with various TV crime shows where the good guy always wears white, impossibly complex death scenarios are unraveled in 30 minutes, and the perpetrator either admits to his/her crime or meets a deserved, deadly reward. Well, real life is nowhere like that and Sam Hughes was in a position of experience to know.

As the pathology report concluded that Jake Hughes died from the metal bar striking his chest and proceeding into his neck and head, it is easy to see how the OPP investigation would conclude that it was the driver of the ATV seated in the front who would be exposed to such an impact. But the alternative hypothesis was that the driver, Rivando, ducked when he detected the bar at the last instance. At least that was what one witness heard from Rivando shortly after the collision. The OPP however determined that it was not possible for the driver to duck under the bar. Sam Hughes then went on to prove them wrong. He obtained a similar ATV and created a similar barrier and reportedly showed that it could be done.

The re-enactment of the ATV collision created by Sam Hughes showing how the actual driver ducked underneath the bar of the barrier just before impact.

Other information from witnesses at a beach where the two riders were seen before the crash indicated that Hughes was the passenger and that the two could not have changed places as claimed by others.

The most compelling evidence, from my viewpoint, is that scrapes were noted on the helmet of Rivando and red paint was noted on the bar of the barrier which might confirm that Rivando’s helmet just barely slipped underneath the bar. However the OPP did nothing further to match the scrape and paint transfer. Whether this is an incorrect conclusion or not is not the point. The fact that there was no attempt to conduct an inquiry is what matters.

One of the interesting parts of the CBC article is how the OPP delivered the investigation to the Peel Regional Police to review and also to the Missouri State Highway Patrol. The reason given for involving the Missouri police is because the “U.S. had state-of-the-art reconstruction software”.

I have some knowledge of what is available with respect to computer assisted reconstruction and simulation programs. Even when I first joined the University of Western Ontario Accident Research Team on October 1, 1980 there was a small room designated as the living quarters of the massive PDP-11 computer that housed the highly advanced CRASH program. I think the computer had the processing capability of a modern hand-held calculator. But it looked very impressive. You typed in responses to dozens of questions and then waited as CRASH spilled out the precise answers to how the collision occurred. While CRASH was state-of-the-art technology back then and youngens would snicker now at its base computing, it has been refined over the years and the physics behind its calculations is still valid. A similar cousin-program of CRASH was the SMAC simulation program which I later experimented with in the middle 1980s and beyond. Both programs were developed for the U.S NHTSA programs which still run today, operating a slightly different version of CRASH called SMASH I believe. I am also aware of PC-CRASH which is a program that came out of Europe and has become about as common in usage as the CRASH and SMAC programs. Various vendors have also jumped into the marketplace, sometimes using CRASH and SMAC as the basis for their own versions of computer reconstruction and simulation. I have always advocated that police should be exposed to and use computer reconstruction and simulation programs but that has never occurred. With the more recent advancements in event data recorders (EDRs), or “Black Boxes”, police have chosen this technology for their purposes, primarily, I believe, because EDRs provide a blind number to things like travel speed, speed change from impact and other pre-crash values that do not necessarily require much technical knowledge expect in knowing how to download the data and how to interpret it.

So coming back to the issue of the “state-of-the-art software” utilized by the Missouri State Police, I am aware of a number of forensic-engineering, consulting firms in the southern Ontario who possess such so-called “state-of-the-art software”. I have been battling it out over the years with many of these experts in exchanging expert reports so that our mutual clients could come to an agreement with respect to civil litigation claims rather than going to trial. While computerized reconstruction and simulation does not guarantee a proper and just analysis it is often said by some sarcastics amongst us that it allows the analyst to get to the wrong answer faster. There is some true to that. But an expert who is honest, properly trained, experienced, and is truly looking for the truth, can be greatly assisted by such programs. The point is that the OPP need not have gone to Missouri to get an opinion, there are many experts in the immediate vicinity in southern Ontario who would be happy to provide an independent opinion, often at no cost, if it meant that justice was properly served.

At the risk of sounding too critical of the OPP I have to respond to the comment reportedly made by Chief Supt. Bernie Murphy, commander of the OPP’s professional standards bureau, in his 2016 letter to Sam Hughes in which he reportedly wrote “Since the time of this motor vehicle accident, a three-tier review process has been put in place in the [Technical Collision Investigation] and Reconstruction Program”. If that statement is meant to provide some assurance that all is well, I can assure everyone that it is not. I will give two instances where I recently gave testimony at criminal trials involved serious motor vehicle collisions that demonstrates just part of the problem with some police investigations and the three-tier program.

With respect to an impaired driving case that involved the death of an innocent party in a head-on collision the OPP investigation was reviewed by two police reviewers. Yet none of these reviews found anything wrong with the following scenario: After a very severe impact one of the severely damaged vehicles sustained major damage to its wheels before it slid several car lengths to its final rest position. In conducting a momentum analysis the police reconstructionist determined that the vehicle had to be travelling at 2 km/h at the time that it separated from impact and it commenced its slide to rest. Think about that for a moment. Picture in your mind this heavily damaged vehicle with heavy damage to (at least) one of its wheels, separating from impact and commencing its travel to rest at 2 km/h, where would you expect it to go? Six inches? But the momentum analysis told the reconstructionist what the answer was. And apparently the two other police experts who reviewed the investigation also relied on the truth of this momentum analysis. But where was the common sense?!!

In a second instance a police reconstructionist had access to an eye-witness account of another police officer who claimed to have since the impaired driver travelling at over 150 km/h before impact. A proper momentum and energy analysis along with physical evidence proved that this could not be so. But to match the witness police officer’s account the reconstructionist conducted an analysis of the post-impact speed of the vehicle and then, knowing he would be in trouble once he completed the collision phase of the reconstruction, simply told the court that the massive destruction that could be seen in the crush of the two vehicles clearly demonstrated that the impaired driver must have been travelling much faster than the partial analysis that he conducted. Perhaps the most outrageous of his acts was to take a yaw mark, that was clearly visible as a yaw mark in the on-site photographs, and use it to decelerate the vehicle at a rate equivalent to a vehicle which is sliding with maximum brake application. When he saw my countering comments in one of my reports he then reduced the level of deceleration by dividing the maximum rate by two. For those unfamiliar the issue here is a break-down.

Maximum deceleration from braking on a dry pavement is often 0.7g or higher. Yaw marks are tire marks that are created when a vehicle rotates but its tires are not locked, thus producing a curved tire mark that contains striations and is very different in appearance from a tire mark produced by maximum braking. Deceleration from a yaw mark varies between 0.2 and 0.4g depending on the degree to which the vehicle has rotated with respect to its travel direction.

So imagine the tire mark is 10 metres long. Using the maximum braking deceleration of 0.7g the reconstructionist comes up with a speed loss of about 42 km/h in that 10 metre distance. Since the mark showed that the vehicle had been at an early stage of rotation the reconstructionist should have used the lower end of the yaw deceleration near 0.2g which would have resulted in a speed loss of about 22 km/h. In attempts to repair the erred calculations by dividing the maximum braking deceleration by two he would have used a rate of about 0.35g, which is better, but it is still wrong. It is wrong because that is not the way that the process of analysis works. It demonstrates that either the reconstructionist did not know how to handle a yaw mark deceleration, or worse, he did know but he was attempting to increase the speed calculations where ever he could to match the witness police officer’s statement. The point is that if he had used a computer reconstruction or simulation program the “cleverness of his confusions” would have been easily revealed because his inputs could be easily seen. But by conducting a home-made analysis that sounded plausible to the court these problems were not easily detected.

While I believe that the vast majority of police are good and honest, I have also observed instances like those noted above where either improper training, lack of understanding, or purposeful attempts to reach an unwarranted conviction or result are never drawn out and corrected. That process leaves a black mark on all officers including those who do not deserve it. It is damaging because persons such as myself must spread such news to others in articles like this, who then pass it on to yet others and so on.

Police, like myself, and everyone else around me, are not perfect. We all make honest mistakes and sometimes we twist the truth without recognizing the seriousness of the consequences. What we all need, to control the times when we do not function as perfect snowflakes, is a system that is in place that reduces the frequencies of those imperfections while also reducing the consequences of them.

The OPP had it right, to some degree, in creating a so-called three-tiered review process. But it has failed to understand that even three police officers may not have the technical knowledge, experience or motivation to correct an error. Yet, family members like Sam Hughes are far more motivated to expose problems even though they may, at times, also be in error. The point is that the exposure of police investigations outside of the police community may be uncomfortable to police but this exposure can lead to the correction of errors and may provide greater justice. Surely police have broader shoulders to understand that what criticisms may develop are minimal if an unjust result is overturned as a result of the exposure of their erred conclusions. Alternatively, even when persons like Sam Hughes are wrong, family members can rest with some greater peace through the education they gain by conducting their own analysis and being exposed to countering opinions that demonstrate where their conclusions failed.

Where we presently fail is in the degree to which we hold police investigations secret from the public and particularly family members who deserve the answers to the questions they ask. We are not a society that kicks over the wheelchair of an invalid just for our amusement. We are a society that attempts to be impartial, fair, and unrecognizing of skin colour, gender, sexual orientation, religion, disability and so on. In compliance with those beliefs the majority of us who sit quietly on the sidelines while injustices prevail need to listen and watch more closely, and speak up when we detect that those injustices are at play.

I am very much appreciative of Mark Kelley and the CBC for creating the article about Jake Hughes that may draw attention to the systemic problems in police investigations that are often unexposed.

New Head-Up-Display On Windshields Is Not A Distraction?

What do we define as distraction? Is it additional information that is processed thus slowing a drivers perception/response to the outside environment? If so then more detailed information being displayed on windshields of new vehicles could be viewed as distractions.

New technology like advanced HUD sounds great but does it also bring with it new problems?

In a March, 2019 article by Dan Carney of the Automotive Engineering magazine discussing head-up-displays (HUD) the market for greater information being displayed on vehicle windshields revealed that more information of greater brightness is expected in the future.The article quoted other research sources that indicated the worldwide HUD market in 2017 was 2.9 billion and would rise to 18 billion by 2027. Improvements in the image quality and size being projected on windshields mean than more information will be able to be moved from the instrument cluster and onto the windshield. As noted in the article:

“Larger and brighter full-colour displays provide the opportunity to move more driver information off the instrument panel and onto the windscreen, where it can be seen more effortlessly by the driver. In addition to the typical digital speed reading, the HUD can convey data about the current speed limit, adaptive cruise control system’s status, indicate turn signal use, and flash collision-avoidance warnings. In manual-transmission-equipped sports cars, HUDs provide upshift lights light those in Formula 1 race cars.”

There can be a conflict between useful information and too much information, even when the information being displayed appears to be relevant to the driving task. When a driver needs to detect information about the exterior environment he/she does not need to know that the turn signal has been activated or other non-emergency information. While some information is nice to have, too much information can also distract the driver from detecting the most important information for the current scenario at hand. This can be no different than texting on a smartphone as some portion of the driver’s information processing is taken away from detecting the most relevant information.

City Using Deep Public Pockets In An Unreasonable Court Challenge

When you have unlimited tax dollars to pay the costs you can challenge court rulings all the way up to the Supreme Court of Canada (SCC). That is the knowledge that can be gained from the recently released judgment of the SCC involving the liability of the City of Hamilton with respect to a 2007 collision at the intersection of Upper Centennial Parkway and Green Mountain Road.

“Gentlemen, it is obvious that I have struck out, however, I am The Mighty Casey, and Article 56 of the Municipal rules governing baseball etiquette indicates that I get another try because I am so nice”

The subject collision involved a female driver, Dawn Safranyos, who attempted to make a left turn from westbound Green Mountain Road, onto southbound Upper Centennial Parkway. A northbound Chevrolet Cavalier driven by Daryl McHugh struck the Safranyhos vehicle in the intersection thus causing serious injuries to several child occupants. This collision occurred at approximately 0100 hours and therefore the darkness would have been a factor in Ms. Safranyos’ evaluation of where she should stop at the stop-sign-controlled intersection governing her direction of travel. A traffic stop bar (a wide, white painted line) is generally painted at such a location to guide drivers to the correct stop position where she could properly see approaching traffic on Upper Centennial Parkway. Because the City of Hamilton removed the stop bar Ms. Safraynos testified that she stopped at the stop sign, further back from where she would if the line had been present. This, along with the presence of a guardrail which partially obstructed her line of sight, were the key features of the site that led the trial judge to determine that the City of Hamilton was 25% at fault. Ms. Safranyhos was judged 50% at fault and Mr. McHugh was 25% at fault for the collision.

The Appeal Court enlightened the ongoings of the original trial which were not published. For example the trial judge observed that the City of Hamilton failed to deliver three key witnesses who were City officials that would have explained the intersection design and the City’s policies with respect to matters such as painting stop bars. The judge inferred that this was because, had those municipal officials testified at trial they would have prejudiced the City’s stance. If this tactic by the City appears unusual it is not. It is something that I have personally experienced while testifying at trial. In some instances a judge recognizes the tactic for what it is while in other very similar instances it is never addressed.

By common sense the City of Hamilton should have recognized that it shared some liability for the collison. The 25% determined by the trial judge should have been accepted and the matter should have been done with. But that was not the case. The City first appealed the matter to the Ontario Court of Appeal. The Appeal court judgment was written by Justice Paciocco. In the Appeal judgment the liability of the City of Hamilton was upheld whereas the liability of Mr. McHugh was dismissed. If I read the result correctly, If McHugh’s 25% was removed from the equation then the remaining liability was shared by the two remaining parties, Safranyhos and the City of Hamilton. So it would seem that the Appeal process would result in the City of Hamilton being responsible for more of the damages after the appeal than beforehand. Not satisfied the City of Hamilton then Appealed to the Supreme Court of Canada, where it lost that appeal without explanation.

While I am not a legal expert I recognize the substantial costs that would be incurred by the City of Hamilton in the two Appeals that it lost. These costs are not borne by the City’s representatives, whether they be the staff or politicians. They are borne by the general taxpayers of Hamilton. What notice is made to the general taxpayers of the conclusions of these legal proceedings is likely to be very minimal. Although the Hamilton Spectator newspaper published an article about the matter it also published another article explaining that the latest tax hike would be 2.5%. No doubt the average taxpayer would pay attention to the second article because it is a direct reference to his/her pocketbook. But the taxpayer would be clueless to the implications of that first article.

The point is, certain deficiencies in roadways do not need to exist. They can be simply identified by conducting regular inspections of roads. Does the City of Hamilton conduct such regular inspections of their roadways? And if they do why were these problems, that became so costly to the City, not identified and corrected? In my experience  the City of Hamilton is not an exceptional case. The very problem of identifying and correcting road safety hazards before they become deadly exists throughout Ontario and beyond.