Court File and Parties

Court File No.: Brampton 14-5313 Date: January 30, 2017 Ontario Court of Justice

Between: Her Majesty the Queen — and — Dwayne Higgins

Before: Justice Patrice F. Band

Reasons for Judgment released on: January 30, 2017

Counsel:

• Ms. A. Simitsis, counsel for the Crown
• Mr. N. Ronka, counsel for the defendant, Dwayne Higgins

I. Introduction

[1] Shortly after midnight on April 24, 2014, the driver of a speeding car lost control during an attempt to turn into the parking lot of a shopping plaza. The car "hopped the curb," struck a sign post and came to a stop in the parking lot below. It suffered significant damage to its front end.

[2] Only Mr. Higgins and his partner Michelle Mompoint were in the car. Police investigated and charged Mr. Higgins with impaired driving and "Over 80." Both of his breath samples yielded results of 140 mg of alcohol in 100 ml of blood.

II. The Issue

[3] The only issue is whether the Crown has proved beyond a reasonable doubt that it was Mr. Higgins, and not Ms. Mompoint, who had been driving.

[4] Erin Patrick, an independent witness who testified on behalf of the Crown, testified that the male had been the driver. She saw the accident and watched the car and its occupants until police arrived.

[5] After the accident, the male came out of the driver's side and walked to the front to look at the damage. The female also got out and looked at the damage. After that, they sat in the car again, but this time they had switched seats.

[6] Ms. Mompoint testified that she had been driving. After the crash, Mr. Higgins wound up in her lap. He then crawled out of the driver's side door. She got out too. Afterwards, each of them returned to the seats they had originally occupied.

[7] Mr. Higgins did not testify.

[8] This is a "W.D. case." Resolution of the issue turns entirely on an assessment of the credibility and reliability of the witnesses who testified at trial.

III. Summary of the Evidence

Ms. Patrick – In-Chief

[9] Ms. Patrick is a 26 year old special needs teacher's assistant with the Peel District School Board. She has a three year diploma in child and youth work from George Brown College.

[10] That night, Ms. Patrick was returning home from a wedding with her father and his girlfriend. She had not consumed any alcohol. Her father was driving. It was a clear night. The roads were dry and well lit.

[11] As they were about to turn left, Ms. Patrick heard an engine revving and breaks squealing. She turned and saw a "muscle car" (a Charger or Challenger) as it made a sharp right turn into a shopping plaza. It hopped the curb, struck a stop sign and eventually came to a stop in the middle of the parking lot.

[12] When she first noticed it, it had been traveling much faster than the posted 50 km/h limit.

[13] Her father stopped the car and she went towards the plaza to call 911. She did not lose sight of the car. According to her evidence, the parking lot was well-lit and the car ended up beside a lamp post. The general area was well-lit because of the streetlights.

[14] She gave the 911 operator information in real time. As she was on the phone, the male got out of the driver's side and walked to the front of the car. He was directly lit by the lamp post. He was "staggering" and "not really walking straight." Then, the female got out and met him by the front of the car.

[15] The male was about 30 years old. He was at least six feet tall, with broad shoulders. The female was younger, and approximately 5'6". She was curvy. She described her as "voluptuous."

[16] As soon as she hung up with 911, the male went to the passenger seat and the female went to the driver's seat.

[17] She continued to watch the car until police arrived. She wanted them to know that she saw the male and female switch seats after the 911 call.

[18] Nothing obstructed her view.

[19] Ms. Patrick identified Mr. Higgins as the driver. She also said she had recognized him outside the courtroom that morning.[^1]

Ms. Patrick – Cross-Examination

[20] In cross-examination, Ms. Patrick did not agree that she told the police officer that the plaza was "dimly-lit." She maintained that it was well-lit.

[21] Ms. Patrick agreed that she had sent a statement to a police officer by email at the request of the Crown. She was quite adamant that she had done so "a couple of months" after the incident. She did not remember the date, but was clear that "it wasn't over a year." In fact, she sent it in April 2015.

[22] In that email, she wrote that the male had "walked over to the passenger seat, and a young black female came out;" she did not specify that the female had come out of the passenger side.

[23] Later in this line of questioning, Ms. Patrick explained that she was

…going back to the 911 phone call and as they were both coming out I was on the phone talk [sic] to 911 describing what was happening at the time and I guess my e-mail wasn't descriptive enough in terms of what I saw at the time. It was a year later so I wasn't really detail by detail remembering where they met up.

[24] Ms. Patrick later testified that she had told the 911 operator where the female had come out of the car from. She was not cross-examined on the contents of the 911 call.

[25] She disagreed with the suggestion that the female had also come out of the driver's side.

PC Chow

[26] PC Chow testified that the lighting in the area was "lit by the plaza and the streetlights."

PC Li

[27] PC Li described the lighting in the parking lot as "fairly dim" except in those spots where the lamp posts were located. In those areas, the lighting was "sufficient."

[28] When he approached the car, the female was in the driver's seat. He then spoke to Ms. Patrick and her father and learned what they had witnessed.

Ms. Mompoint – In-Chief

[29] Ms. Mompoint is a 29 year old woman with several children. She had been living with Mr. Higgins for four years. She works at Tim Horton's and Bath and Body Works.

[30] At the time of the incident, she was three months pregnant. She and Mr. Higgins had been living together for several years.

[31] That night, she and Mr. Higgins had been at a family gathering with her brother and mother. She and her brother did not consume alcohol, but she thought Mr. Higgins and her mother had finished a bottle of Jack Daniels. Mr. Higgins was intoxicated. She drove her brother and mother home. Then, with Mr. Higgins in the passenger seat, the two of them went to the shopping plaza to go to Metro. She did not want to, but he insisted. She relented because she was tired and did not want to argue about it.

[32] Because she wanted to get home quickly, she drove too fast. She lost control and the car hopped the curb and ended up in the parking lot below. The fact that the car was a rental was also a factor. It was more powerful than her car.

[33] Mr. Higgins must not have been wearing his seatbelt because he ended up in her lap. This was uncomfortable for her, so she tried to get him off. He climbed out of the car through the driver's side door. A couple of minutes later, she got out of the driver's side door and went to assess the damage.

[34] While she did not think the car was next to a lamp post, she described the lighting as "average."

[35] She had returned to the driver's seat by the time police arrived.

Ms. Mompoint – Cross-Examination

[36] Ms. Mompoint was 5'7" and would have weighed 210 lbs at the time of the incident. As she put it, she is a "bigger girl." Her hair would have been shoulder length at the time.

[37] Mr. Higgins is 6'2", and she estimated that he weighed 180-200 lbs. She agreed that he is much taller and broader than her. His hair was short at the time.

[38] She agreed that she was familiar with the plaza and had been there many times. The lighting was sufficient to enable her to assess the damage to the car.

[39] She described the car as average in terms of roominess. It had an armrest between the front seats.

[40] When Mr. Higgins was in her lap, her reaction was not to push him back to his seat but to push him forward into the steering wheel. His reaction was to get out of the car.

[41] When pressed as to how Mr. Higgins got out of the car, she gave the following answers:

• He climbed over her body and fell out the door "more or less;"
• He didn't fall out head first, he crawled out; and
• If someone was watching, they'd see big tall man coming out hands first.

[42] She maintained that she had been the driver and that she had not switched seats with Mr. Higgins.

[43] When asked about her criminal record, Ms. Mompoint indicated that she believed she had a record for theft. She then agreed that she had been found guilty of fraud in 2015.

IV. Analysis

Ms. Mompoint's Evidence

[44] Ms. Mompoint's evidence about how Mr. Higgins wound up in her lap and then got out of the car through the driver's side door is far-fetched and incredible. Both of them are large of stature and she was three months pregnant. It is simply not possible that he would end up on her lap, between her and the steering wheel in an average sized car with an armrest between the front seats. It is even more incredible that the easiest way out would be through the driver's side door.

[45] What is more, Ms. Mompoint's evidence as to how Mr. Higgins did so was evolving as she was testifying.

[46] I would also point out that the suggestion was never put to Ms. Patrick that Mr. Higgins had crawled out of the driver's side door hands first. Certainly, the rule in Browne v. Dunn does not require counsel to "slog through a witness's evidence-in-chief putting him on notice of every detail that the defence does not accept." However, crawling out of a car on one's hands is highly unusual. It strikes me as a different kind of detail than Justice Finlayson was concerned with in Verney.

[47] Ms. Mompoint's recent finding of guilt for fraud, and her apparent forgetfulness about it, did not help her credibility.

[48] I reject her account of what transpired in the period surrounding the accident. It does not leave me in a state of reasonable doubt when considered in the context of the evidence as a whole.

The Crown's Case

[49] The defence argues that the Crown's case is unreliable for two main reasons. First, it is suggested that Ms. Patrick's evidence is insufficient to prove identity. Second, the defence points to the fact that Ms. Patrick gave inconsistent evidence concerning where the male and female met outside the car, that her email did not state explicitly that the female had gotten out of the passenger side and that she was forgetful about when she sent the email.

[50] If identity in the classic sense were at issue, I would agree with the defence. Ms. Patrick gave a generic description of the male to police, and was unable to give specifics later. However, the Crown's case depends not on identity but on the continuity of Ms. Patrick's observations.

[51] Mr. Higgins and Ms. Mompoint were of dramatically different physical shape and size, and the lighting conditions were sufficient for Ms. Patrick to distinguish between them. Crucially, Ms. Patrick had a continuous bead on them from the moment the car stopped to the time police arrived.

[52] Whether they met near the front of the car or near the passenger door is not a material inconsistency.

[53] That Ms. Patrick did not specify that Ms. Mompoint exited the car from the passenger door in her email is immaterial. In my view, as a matter of common experience, that was implicit in the fact that she said she saw the male exiting from the driver's side. A witness cannot be faulted for failing to point out the obvious. I also repeat here that she was not cross-examined as to the contents of the 911 call.

[54] Ms. Patrick was clearly wrong about when she sent the email, and by a large margin. But her evidence about it left me with the impression that, unlike the 911 call in which she related her observations in real time, the email was not a significant event in her life. That is reasonable in the context of this case. Her mistake did not affect her reliability.

[55] In sum, I found Ms. Patrick's evidence abundantly credible and reliable.

V. Conclusion

[56] I have no doubt whatsoever that Ms. Patrick initially saw Mr. Higgins get out of the driver's side and Ms. Mompoint get out of the passenger side. I also have no doubt that she later saw them switch seats.

[57] For these reasons, I am convinced beyond a reasonable doubt that Mr. Higgins was the driver of the car.

[58] I therefore find him guilty as charged.

[59] The Crown is invited to seek a stay of one of the counts pursuant to the rule in Kienapple.

Released: January 30, 2017

Justice Patrice F. Band

[^1]: Mr. Higgins was the only black male in the courtroom. Also, Ms. Patrick's description of him was generic. I place no weight on her "in-dock" identification.

[^2]: PC Li's notes did not constitute a statement reduced to writing for purposes of s. 10 of the Canada Evidence Act.

[^3]: R. v. Verney, [1993] O.J. No. 2632 (C.A.).