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| John L. Hill |
Yet it is often the case that some evidence, though truthful in itself, must be excluded from jury consideration because it is so damaging that it could be prejudicial to the collective minds of the jurors such that they are unable to make fair consideration of the case.
Recent decisions of Justice Irving André of the Ontario Superior Court attempted to find the proper balance. The case before the judge at its bare bones was simple. An intruder or intruders, in the early morning hours of June 21, 2018, kicked down the front door of the basement apartment occupied by Brandon Hall and shot him. In November, police arrested two suspects: Philip Fitzpatrick and Evan Wright. Both were charged with the first-degree murder of Hall. The job of the jury was to determine a verdict in answer to the traditional true crime story question of “whodunnit.”
In real life as opposed to fiction, there are always complications. Evidence can be adduced that may result in the jury being swayed into a wrong conclusion. The learned trial judge in this case deftly handled trial proceedings in making two rulings of note.
The first of these dealt with a motion by counsel for Wright wherein defence sought to introduce evidence that Hall was a drug trafficker. Defence was attempting to introduce snapshots of the deceased with thousands of dollars and bags of cannabis. By the time the motion was made, it had already been established that evidence found at the scene of the crime could lead to an inference Hall engaged in violent activity. The Crown prosecutor submitted that failure to object was an oversight but may have opened the door for the Crown to lead evidence of the accused’s bad character. On a judgment released March 24, 2022, Justice André held that “inadvertently allowing Ms. Goldlist [defence counsel for Wright] to lead evidence of discreditable conduct does not justify allowing her to do so again.” (R. v. Fitzpatrick 2022 ONSC.) Defence counsel was not permitted to lead evidence in this regard.
A second motion with a judgment released the same day, R. v. Fitzpatrick [2022] O.J. No. 1388 allowed counsel for Wright to exclude Wright’s criminal record from the evidence at trial. That criminal record included criminal convictions for aggravated assault for which he was sentenced to two years imprisonment. That conviction occurred after the June 21, 2018, killing of Hall. He was also convicted in 2020 of two counts of possession of a weapon.
There is always a danger when bringing a federal penitentiary inmate before a jury, that he or she will be perceived negatively and that perception will distort the impression of the jurors of that accused. Of course, the Crown argued that it was necessary to put the accused’s criminal record before him to test credibility. The trial judge agreed. However, cross-examination on that record would be limited to the fact that Wright had been convicted of aggravated assault, but the jury should not hear that a penitentiary term was imposed. Similarly, the weapons possession charge could sway a jury into the belief that a man who carries weapons is more likely than not of being the shooter in this case. This limitation on cross-examination would allow the Crown to test credibility without inordinate attack on character.
Sometimes judges must feel that they are ship captains navigating through the stormy Drake Passage. Yet successful navigation will allow a jury to have the best chance of making a proper verdict. Everyone decries wrongful convictions. It is only when judges prevent, as best they can, the introduction of prejudicial evidence that can sway a jury from finding the truth.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. Contact him at johnlornehill@hotmail.com.
Photo credit / Aleutie ISTOCKPHOTO.COM
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