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.