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| John L. Hill |
While the Crown portrayed them as close, both maintained they were not friends and had minimal interaction beyond family ties.
Wright had a close relationship with the victim, Brandon Hall, beginning in 2017. They jointly engaged in an illegal firearms-trafficking venture that later deteriorated. Wright believed Hall had stolen money and guns from him and, according to witnesses, expressed anger, fear and a desire for revenge. He reportedly said he might have to kill Hall before Hall killed him. There was no evidence that Fitzpatrick knew Hall or had any motive to harm him.
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Video footage showed two masked individuals (“Person #1” and “Person #2”) approaching the scene and then fleeing. One wore a blue jacket and carried a sports bag (alleged to contain the murder weapon), while the other wore a black Raptors hoodie and distinctive gloves. The Crown alleged that Wright and Fitzpatrick were the two individuals; the defence claimed that Wright and a third party, MGM, were involved instead.
Fitzpatrick’s father and stepmother testified that Person #2 resembled Fitzpatrick in clothing, build and mannerisms (including clumsiness), though neither could definitively identify him. This “resemblance evidence” was admitted at trial.
Two witnesses, Jenna Parsons and MGM, testified that Wright confessed to killing Hall. Wright allegedly described the incident and the weapon used. MGM’s credibility was challenged because he initially lied to police, implicating Wright only after being arrested and later released when charges against him were dropped.
Police recovered ammunition from Wright’s home that matched shell casings at the scene. Gloves found near the scene contained DNA evidence. One glove strongly implicated Fitzpatrick, while another implicated Wright more strongly.
Surveillance footage showed Person #1 wearing Air Jordan shoes, later linked to Wright, who had given them to MGM after the shooting.
Wright admitted being present but claimed that MGM was the shooter. He testified that the plan was only to steal firearms and that he did not know MGM had a gun. He denied Fitzpatrick’s involvement and said he wore Fitzpatrick’s borrowed Raptors hoodie during the event. Wright acknowledged lying to the police and falsely confessing to Parsons.
Fitzpatrick challenged the admission of resemblance evidence, the jury instructions, the Crown’s closing address and the reasonableness of the verdict. Wright challenged the jury instructions (including the lack of a proper instruction on exculpatory eyewitness evidence) and the Crown’s closing submissions. Both argued that these errors warranted a new trial.
The Court of Appeal allowed Fitzpatrick’s appeal and ordered a new trial, finding the trial unfair because of the improper admission of highly prejudicial evidence. However, it declined to enter an acquittal because the remaining evidence could still support a conviction.
The central issue was the trial judge’s decision to admit evidence from Fitzpatrick’s father and stepmother, who suggested that Person #2 in surveillance footage resembled Fitzpatrick. The appellate court held that this was not proper identification or recognition evidence. Neither witness could identify Fitzpatrick. Their opinions were based largely on a brief stumble in the video that reminded them of Fitzpatrick’s clumsiness.
The court found that the stumble had little probative value in identifying the perpetrator. It also posed a significant risk of prejudice, particularly because the Crown emphasized it heavily at trial. The evidence was treated as identification evidence, even though it did not meet the legal test for admissibility. The court concluded that this evidence should not have been admitted.
The Court of Appeal allowed Wright’s appeal and ordered a new trial, finding that errors in the jury instructions and the Crown’s closing address compromised the trial’s fairness.
The court identified two key problems with the trial judge’s instructions on reasonable doubt. The first was the omission of key exculpatory evidence. The trial judge failed to refer to C.H.’s initial description of the shooter as a Black man in the W.(D.) instruction. R. v. W.(D.), [1991] 1 SCR 742 is the oft-cited case that sets out the three-step legal framework used in Canadian criminal trials to guide juries in assessing credibility when an accused testifies.
This evidence was exculpatory because it was inconsistent with Wright being the shooter. The jury was not told that, even if they did not fully accept C.H.’s evidence, it could still raise a reasonable doubt, either on its own or when combined with Wright’s testimony. This omission risked leaving the jury with the impression that only Wright’s own evidence could create reasonable doubt.
The court held that a modified W.(D.) instruction was required, given the importance of this evidence to the defence.
Secondly, the instructions were overly inclusive. The jury was repeatedly told that if they believed Wright or had a reasonable doubt based on his evidence, they must acquit him entirely. This was incorrect because Wright could still be guilty of manslaughter or murder as a party, even if he were not the shooter. These instructions risked confusing the jury and improperly limiting their consideration of the available verdicts.
On top of that, the court found that the Crown’s closing submissions seriously prejudiced the trial. Crown counsel improperly cited legal authority and psychological research, including R. v. Miaponoose, (1996) 30 O.R.(3d) 419 (C.A.), on the unreliability of eyewitness evidence. He went further by personalizing this information, suggesting that lawyers and judges possess special knowledge of such unreliability. This amounted to introducing inadmissible “expert-like” evidence and expressing a personal opinion, both of which are prohibited.
The comments directly undermined C.H.’s evidence, which was central to Wright’s defence. The prejudice was not cured by the trial judge’s later instruction, which came five days later, after the jury had time to absorb the improper comments.
Further, it did not clarify that C.H.’s evidence could still raise a reasonable doubt, even if not fully accepted. The personalization of the comments risked the jury trusting the Crown’s “insider” knowledge over the judge’s correction.
The court emphasized that the combined effect of the deficient W.(D.) instructions and the prejudicial closing address left the jury improperly equipped to apply the standard of reasonable doubt, particularly regarding the identity of the shooter.
The court concluded that Wright did not receive a fair trial, primarily because the jury was misdirected on how to assess critical exculpatory evidence.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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