Justice D.J. Gordon of Superior Court of Justice – Ontario ruled Friday that Hamilton Police must disclose the investigative reports into a collision that involved a Hamilton Police officer in early 2008.
The reports are part of a lawsuit seeking damages by Sinong Ben against both drivers of the two vehicles involved a collision, one of the vehicles driven by Hamilton Police Constable Christopher Gates.
At issue – did the investigative report recommend a police officer be charged?
In an affidavit from Enea Cavalluzzo of State Farm Mutual Automobile Insurance Company states she was told by Detective Sergeant Glenn Jarvie that he recommended charges against the officer for failing to stop at a red light.
Justice Gordon’s order is to release these reports to determine the truth of the affidavit.
“There is some evidence from Ms. Cavalluzzo that Detective Sergeant Jarvie had recommended that Officer Gates be charged. This is not denied,” wrote Justice Gordon.
The Factual Background of the court ruling states the collision occurred in the intersection of Barton and Wellington Streets on January 17, 2008 between two vehicles. One was driven by Chinda Kim and the other by Constable Gates.
Ben involvement in the collision is not clarified in the ruling beyond “The plaintiff, Sinong Ben, has sued all defendants [Kim and Gates] seeking damages for injuries resulting from the collision.”
A motor vehicle collision occurred on January 17, 2008 at the intersection of Barton Street East and Wellington Street North, in the City of Hamilton.
One vehicle was operated by the defendant, Chinda Kim. The other vehicle was operated by the defendant, Christopher Gates, a police officer employed by the Hamilton Police Services Board.
“Both drivers claimed to be entering the intersection on a green light,” Justice Gordon wrote. “The standard police accident report regarding this collision contains no reference as to which vehicle was believed to have entered the intersection on a red light nor does it indicate if any charges were laid against either driver.”
Collisions involving police officers are investigated differently than other collisions under the Hamilton Police Services policy “Damage to and/or Collisions Involving Police Vehicles.”
Whereas charges in collisions are normally recommended by the front-line investigative officers, the investigation of a police-involved collision is led by the Divisional Staff Sergeant who makes a recommendation to the Inspector of the Support Services Division.
The Inspector reviews the investigation and recommendation to determine their own recommendation if there should be charges against anyone involved in the collision.
“The standard police accident report regarding this collision contains no reference as to which vehicle was believed to have entered the intersection on a red light,” wrote Justice Gordon. “Nor does it indicate if any charges were laid against either driver.”
Sinong Ben’s suit needs to determine responsibility for the collision.
It is the civilian defendant Kim and not Ben that is seeking further disclosure from Hamilton Police.
Were Charges Recommended?
Enea Cavalluzzo, a claims representative with State Farm, wrote in an affidavit:
“On April 1, 2008 I spoke with Sergeant Jarvie in which discussion he confirmed to me that he had concluded his investigation of the accident and had submitted his recommendation to the Crown’s Office which recommendation was that Officer Gates should be held liable for the collision and would be requesting that he be charged with “red light failed to stop” contrary to Section 144(18) of the Highway Traffic Act.”
Justice Gordon, in his ruling, writes: “On his cross-examination, Detective Sergeant was asked about this conversation with Ms. Cavalluzzo. He acknowledged the event occurring but had no recollection of what was said. In result, he could not dispute Ms. Cavalluzzo’s evidence. The officer, in re-examination stated it was not his practice to advise third party individuals as to what his recommendation was or with officer liability and charges.”
“On his cross-examination, Detective Sergeant Jarvie refused to answer questions regarding his recommendation or the decision of Inspector De Mascio or to produce a copy of the tracking report. At the time, the basis for the refusal was that such questions were not relevant.”
Detective Sergeant Jarvie was following the direction of the Hamilton Police Services’ legal counsel by not answering the questions.
Both Kim and Hamilton Police say it was the other that did not stop for the red right.
Justice Gordon writes the release of the tracking reports is required to assist in determining the truth.
Ruling Analysis by Justice Gordon
Justice Gordon wrote the following, in its entirety, for the analysis section of his ruling:
(Note: paragraph numbers are unedited from the ruling)
 In a collision involving motor vehicles both operated by civilians, the investigating officer, in most cases, will make an assessment of fault and determine if a Highway Traffic Act, or other charge is warranted. In so doing, parties in a subsequent civil action would have the benefit of a complete accident report.
 Such does not occur when one of the vehicle operators is a police officer. A special procedure is followed as previously described, the ultimate assessment and decision as to charges being made by senior officers.
 There is some evidence from Ms. Cavalluzzo that Detective Sergeant Jarvie had recommended that Officer Gates be charged. This is not denied.
 All of the reports, those disclosed and those not disclosed, were made shortly after the collision and long before any notice was given as to the within lawsuit or claim. Litigation privilege is not a factor, the only issue being relevance.
 I am mindful, as I said to counsel, of the obvious conflict of interest in police officers investigating other officers having regard to both potential charges and civil liability. Hence, I am not persuaded that the fact no charge was laid is of any consequence.
 In my view, the moving parties have met the test of relevance, having regard to the pleadings.
 In this case, senior officers are part of the investigation even though their role is said to involve only a review of other reports. These senior officers, as a result of the Policy and Procedure directive, are, in essence, involved in the same task front line officers fulfill in all collisions involving only civilians.
 It is not appropriate to afford police defendants’ special status in civil actions by allowing reports to remain undisclosed.
 An assessment of fault is part of the police officer’s role in the investigative stage. That assessment, as contained in the undisclosed reports, is clearly related to an issue in this lawsuit, namely liability. Having regard to the prior quote from Master Short, the document will enable the moving parties to advance their case or lead to a further train of inquiry. Relevance, not admissibility at trial, is the sole determination at this stage.
Hamilton Police are now required, unless they appeal, to release the tracking reports to the other party involved in the collision.
I’ve requested a copy of the “Damage to and/or Collisions Involving Police Vehicles” policy from Hamilton Police and asked if they will appeal this ruling.
Hamilton Police spokesperson Catherine Martin quickly responded that she is looking into the questions.
Martin says the Hamilton Police Service will respond to the questions on Thursday.