R. v. Fitzpatrick

R. v. Fitzpatrick

2026 ONCA 262
Ontario Court of Appeal — Rahman J.A. (Roberts and Pomerance JJ.A. concurring) | April 14, 2026

Background

On June 21, 2018, two men went to Brandon Hall's home and shot him multiple times, killing him. The Crown charged cousins Philip Fitzpatrick and Evan Wright with first degree murder, alleging Wright was the shooter and Fitzpatrick his accomplice. The Crown's theory was that Wright planned to murder Hall because Hall had stolen Wright's guns and money from their illegal firearms business.

The Crown's case against Wright included confessions he allegedly made to friends, Air Jordan sneakers matching those worn by the shooter in surveillance footage, and ammunition matching the murder weapon found at his home. Against Fitzpatrick, the evidence was much weaker — mainly his father and stepmother telling police that one person in the surveillance video "reminded them" of Fitzpatrick, particularly when the person stumbled because it looked like Fitzpatrick's "clumsiness."

Wright testified that he and another friend (MGM) went to steal back his property, thinking Hall wasn't home. He claimed MGM was the actual shooter and Fitzpatrick wasn't involved. Crucially, Hall's mother C.H. — the only eyewitness — initially told police the shooter was "an unmasked Black man." MGM is Black; both appellants are white. At trial, C.H. became uncertain about the shooter's appearance.

Issues

1. Should the trial judge have admitted Fitzpatrick's parents' "resemblance evidence" about him supposedly looking like someone in surveillance video?
2. Did the trial judge err by not including C.H.'s exculpatory eyewitness evidence in his jury instructions about reasonable doubt?
3. Were Crown counsel's closing arguments so prejudicial that they required a mistrial?

The Resemblance Evidence Problem

The Court of Appeal found that Fitzpatrick's father and stepmother's evidence was improperly admitted. Neither witness could actually identify Fitzpatrick in the surveillance video — they merely said certain things (clothing, a stumble) "reminded" them of him. This wasn't true recognition evidence but highly prejudicial speculation. The stumble evidence was particularly problematic because a random trip has "virtually no probative value regarding identity" but significant potential to mislead a jury. The Crown made this evidence central to their case, emphasizing how both parents had the same "initial reaction" to seeing someone stumble, as if this proved something meaningful about identity.

The Missing Jury Instruction

The court also found serious error in the jury instructions. When an eyewitness gives evidence that could exculpate an accused person, the judge must explain that the jury doesn't have to believe that evidence to still have reasonable doubt. Here, C.H.'s initial description of a Black shooter was powerfully exculpatory for Wright, but the judge only told the jury that reasonable doubt could come from Wright's own testimony — not from C.H.'s evidence. This created confusion about how to properly apply the reasonable doubt standard.

Crown Counsel's Improper Closing

Most seriously, Crown counsel tried to undermine C.H.'s eyewitness evidence by referencing a Court of Appeal case about "frailties of eyewitness identification" and adding his own personal experience as a lawyer. He told the jury he "wasn't aware" of how unreliable eyewitness evidence was "until I became a criminal lawyer" — essentially claiming special insider knowledge to discredit defense evidence. The court found this crossed the line from legitimate argument into improper personal opinion, and the corrective instruction five days later couldn't cure the prejudice.

Key Takeaway

Courts cannot rely on weak "resemblance" evidence or allow prosecutors to inject personal opinions and inadmissible "expert" knowledge into their closing arguments.

Both appellants received new trials because the combination of improperly admitted evidence and prejudicial prosecutorial misconduct denied them fair trials. The case shows how multiple trial errors can compound to create fundamental unfairness, even when individual errors might not warrant reversal on their own.