$3.2 million lawsuit filed against Windsor police, Chief Bellaire, three officers, and plaintiff's own lawyer
A $3.2 million lawsuit has been filed against the Windsor Police Service, Windsor Police Chief Jason Bellaire, three officers, and the plaintiff's own lawyer after a man was wrongfully convicted in a fatal crash.
Philip Hayes, the plaintiff, alleges he was convicted of a crime he didn't commit based on flawed police evidence.
He is further arguing his own lawyer Dan Scott was 'negligent' in the defence he prepared for Hayes' trial on two counts of dangerous driving causing death.
The accident
On Jan. 4, 2020, Hayes was driving southbound on Lauzon Parkway when a north-facing SUV 'suddenly and without warning' attempted to turn left onto Quality Way.
'Unable to avoid the collision, (Hayes') motor vehicle struck the Dodge Journey motor vehicle, resulting in the deaths of the two occupants of that motor vehicle,' the statement of claim reads.
CTV News learned at trial in 2023, Brett Blanford and Diane Salter were the victims.
The investigation
According to the statement of claim, Hayes alleges the WPS 'jumped to conclusions' and failed to give Hayes 'the benefit of the doubt' in the ensuing investigation.
'The Windsor police defendants failed to conduct a proper investigation, ignored material evidence from multiple independent witnesses, failed to wait for a competent reconstruction,' the statement concluded.
The first officer to investigate, Const. Maria Liu prepared a 'materially inaccurate synopsis' of the accident.
She theorized Hayes failed to stop at the red light on Lauzon Parkway at Forest Glade Drive, causing him to strike the SUV.
This even though Hayes alleged two independent eyewitnesses told police at the scene the truck proceeded through a green or amber light.
Another officer at the scene, Const. Warren Braganza is also named in the suit but it's not clear what role he played in the accident investigation.
The reconstruction
One of the key pieces of evidence used at trial against Hayes was the report written by Const. Michael Rettig.
'The Police Reconstruction resulted in the wrongful arrest, prosecution, and conviction of (Hayes),' it said.
Rettig had only just completed his training in reconstructing serious accidents using crash data recorders (CDR) and analysis of airbag control modules (ACM).
'PC Rettig negligently overlooked an important data category on the CDR report pertaining to the steering angle of the Dodge Journey motor vehicle,' the statement alleges.
Rettig agreed with Liu's interpretation of the accident that Hayes' pickup truck entered the intersection illegally causing the two deaths.
The suit alleged the physical evidence of the mangled vehicles, eyewitness accounts, and Hayes' own version of the story were all inconsistent with the Police Reconstruction report.
The arrest
Hayes was arrested at the scene, handcuffed, taken to cells at headquarters where he stayed 'for a number of days', before being released under strict bail conditions.
The publication of Hayes' arrest and charges 'publicly embarrassed Philip, despite their (police) own negligence and his innocence.'
The lawyer
Hayes hired criminal defence lawyer Dan Scott and paid an undisclosed retainer in three installments.
The suit alleged Scott never gave Hayes an invoice or a trust ledger for how the money was spent on his defence.
Hayes also alleged Scott delegated his defence to unsupervised employees, did not properly prepare Hayes for trial, and the lawyer didn't disclose a 'conflict of interest' having previously represented officer Braganza.
Most critically, Hayes accused Scott of failing to hire an independent accident reconstructionist before the trial.
The trial
Rettig's report would be the main piece of evidence during Hayes' retrial on two counts of dangerous driving causing death in June 2023 in front of Justice Russell Raikes.
Raikes found Hayes guilty on Oct. 3, 2023.
'I was surprised to be honest with you,' Scott told CTV News at the time.
'Some of the witnesses where he rejected their evidence frankly suggested that the light was green or yellow, but it appears Justice Raikes rejected their evidence,' Scott said.
The retrial
After his conviction, Hayes fired Scott and hired a new lawyer, Michael Lacy, for his sentencing hearing.
In the meantime, Lacy hired an 'experienced forensic engineer', Barry Raftery, to assess Rettig's reconstruction and provide his own opinion.
'The available evidence is inconsistent with the police theory,' Raftery concluded.
'When the Dodge Journey started to move forward from a stopped position, its steering wheel was already turned sharply to the left.'
He also found the SUV was initially stopped facing north on Lauzon Parkway, not on Forest Glade Drive.
The retrial
Lacy brought an application in March 2024 to vacate the conviction and re-open a trial based on Raftery's findings.
Before the May hearing, Rettig was asked to review Raftery's conclusions; the officer ultimately agreed he was wrong.
'At the time of my analysis in 2020, I had just returned from the CDR Analyst course and was still learning all the nuances between different ACMs,' Rettig wrote to the court.
'I missed one (very important) data category on the CDR Report, that being the steering angle.'
A second Windsor police accident reconstructionist also verified Raftery's report over Rettig's.
In May 2024, Justice Raikes admitted the fresh evidence, set aside the conviction and accepted the Crown request to withdraw the charges.
He said Rettig's report was 'fundamentally flawed' and that Raftery's report provided 'a complete change in perspective as to what happened and how it happened.'
Justice Raikes commented on the allegations against Scott that he 'could have (and) maybe should have' hired an independent reconstructionist knowing the Crown was relying on Rettig's, but the judge said he was 'not going to send somebody to jail because their lawyer messed up', according to the statement of claim.
The lawsuit
Hayes' lawyer, Justin Linden, intends to argue his clients Charter rights to security of person were breached by all the defendants.
Their actions, the statement of claim alleges, were 'unconscionable, wanton, shocking to the conscience, intentional, deliberate, malicious, high handed, in total and reckless disregard to (Hayes) and, as such, merits an award of aggravated, punitive, and exemplary damages.'
As a result of the accident, arrest, bail, trial, conviction, and withdrawal of all charges, Hayes is suffering from 'depression, anxiety, physical and emotional trauma, loss of reputation, stigma, a past loss of income and a loss of competitive advantage.'
He is seeking general damages of $200,000, special damages of $1.5 million, and punitive damages of another $1.5 million.
He also wants back the money he gave Scott as a retainer.
In addition to the errors Hayes alleges the police officers made, the suit seeks to have Chief Jason Bellaire, and its board found liable for failing to hire and train qualified employees.
The reaction
The WPS (on behalf of Chief Bellaire and the three officers), the Windsor Police Services Board, and Dan Scott have all declined to comment as the matter is before the courts.
In a comment to CTV News, the Windsor Police Association said:
'The Windsor Police Association is aware of the civil proceedings initiated by Mr. Hayes and the allegations made against the Windsor Police Services Board, the Police Service, and several of our members. While we cannot comment on the specifics of an ongoing legal matter, we want to express both our full support for the officers involved and our sincere sympathy to the families affected by this tragic incident.
Our members perform their duties based on the information available to them at the time of an investigation. They are guided by their training, departmental policies, and the high standards expected of professional policing. Incidents of this nature are often complex and unfold rapidly, requiring officers to make difficult decisions under intense pressure. In this case, our members acted with the intent to uphold the law and protect public safety.
We respect the legal process and Mr. Hayes' right to bring forward his claim. At the same time, we remain confident our officers conducted themselves with professionalism, sound judgment, and in good faith throughout."
CTV News has reached out to Linden for comment.
None of the allegations have been proven in court.
- With files from CTV Windsor's Bob Bellacicco.
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