Ontario Court of Justice

Date: 2017-07-27 Court File No.: Newmarket 16-00721

Between:

Her Majesty the Queen

— AND —

Carl Phillpotts

Judgment

Evidence heard July 27, 2017.

Delivered: July 27, 2017.

Counsel:

• Mr. A. Linds, counsel for the Crown
• Mr. D. Butler, counsel for the defendant

KENKEL J.:

[1] The Ontario Provincial Police investigated a motor vehicle crash on the 407 at the 400 ramp where an SUV cut late across several lanes and drove into the bullnose barrier. The driver fled on foot leaving a heavily damaged vehicle and injured passengers who were taken to hospital. The passengers did not identify the driver, but the police investigation led to Mr. Phillpotts being charged with driving while disqualified contrary to s. 259(4) of the Criminal Code along with several highway traffic offences.

[2] The Crown has proved that Mr. Phillpotts was prohibited from driving at the time of the crash as alleged. The sole remaining issue is identification – whether the Crown has proved that he drove the SUV and fled from the crash as alleged.

[3] The Crown called two witnesses who saw a person in and around the driver's seat in circumstances that prove he'd been driving the vehicle to the point of the crash. One witness gave a detailed description of the driver's clothing and said the driver was a black male with dreadlocks almost to his shoulder, about 5 foot 10, full lips, dark complexion, around 30 who was limping after the crash. The second witness simply described the driver as a black male with dreadlocks. That witness didn't see the driver limping.

[4] The Crown's case rests on the dock identification of the first ID witness and the second vague but consistent description of the second witness. Neither witness participated in a photo lineup. I agree with the Crown that the first ID witness spent up to 2 minutes with the driver and was able to observe particulars as to clothing and some physical features. However, the very particular observations regarding clothing were never linked to the accused. The physical observations were general and cannot reasonably identify any one person. The second ID witness was consistent on two general points but inconsistent as to whether the driver was limping.

[5] The opinion expressed in the in-dock identification, not tested by a photo lineup, and based only on a few general observations cannot be given much weight. See: R v Jack, 2013 ONCA 80. I find the whole of the evidence fails to prove the identity of the driver beyond a reasonable doubt. The charge is dismissed.

Released: July 27, 2017.

Justice Joseph F. Kenkel