IN THE SUPREME COURT OF NOVA SCOTIA
Citation: R. v. Fitzpatrick, 2005 NSSC 298
Date: 20051005
Docket: SH 228523
Registry: Halifax
Between:
Donald Patrick Fitzpatrick
Appellant/Applicant
v.
Her Majesty the Queen
Respondent
Judge: The Honourable Justice Walter R.E. Goodfellow
Heard: October 5, 2005, in Halifax, Nova Scotia
Written Release: November 3, 2005
Counsel: Donald P. Fitzpatrick, self-represented
Christopher W. Morris for the Crown
By the Court, Orally
[1] Donald Patrick Fitzgerald was found guilty of four counts under the Criminal Code of Canada, ss. 267(a) and 264.1(a). They were for assault and unlawful uttering of a threat. His conviction was on March 22, 2004.
[2] Mr. Fitzpatrick was represented at trial by Mr. D.P. Mancini and he had the assistance of Duncan R. Beveridge, Q.C. on filing a Notice of Appeal on August 17, 2004. The appeal is scheduled to be heard November 23, 2005. Before me is Mr. Fitzpatrick’s application to adduce “fresh evidence”. I conclude that, having heard Mr. Fitzpatrick and having read all the material that has been filed, I do not need to call upon the Crown.
[3] In giving this decision, I want to repeat my dismissal of Mr. Fitzpatrick’s motion for a publication ban. The motion was advanced on the basis that the issue involved a matter of national security and also that, on appeal, Mr. Fitzpatrick raises the question of the competency of Mr. Mancini at trial and points out that Mr. Mancini intends to pursue public life. There is no evidence that I see of national security concerns. Although the issue of competency is to be considered in the application to introduce fresh evidence, it is not a matter to be addressed in closed court.
[4] At the outset, I want to say and make it clear that Mr. Fitzpatrick has not nor did he intend to have counsel on this application. I have no difficulty in understanding the dilemma that he faces. There are the wealthy in Canada that can afford lawyers and then there are those that have such limited means they qualify for Legal Aid and there is an ever increasing middle class that simply cannot afford it without losing just about everything they own. Again, I have urged him and I continue to urge him to obtain counsel for the appeal.
[5] Mr. Fitzpatrick, I must say at the outset, has done a very commendable job with respect to the law and in the manner in which he has organized things. Often I wish lawyers would be as well organized because being well organized permits me to do what I am doing now and that is to give a decision at this point. I must say that, although you very clearly understand and have expressed what the law is, I think that what you really lack is objectivity in the manner in which that law will be applied. No objection has been made with respect to the material filed by Mr. Fitzpatrick but normally it is done in an Affidavit form and I am not sure if that issue will arise before the Court of Appeal but, in any event, I have treated it as being evidence before me because he is self represented and there has been no objection.
[6] As I indicated, there is no real dispute with respect to the law. The Supreme Court of Canada in R. v. Levesque, (2001), 148 CCC (3d) 193 referred at pp. 202-203:
In Palmer, supra, this Court considered the discretion of a court of appeal to admit fresh evidence pursuant to s. 610 of the Criminal Code, the predecessor of s. 683. After emphasizing that, in accordance with the wording of s. 610, the overriding consideration must be ‘the interests of justice’, McIntyre J. set out the applicable principles, at p. 775: (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: See McMartin v. The Queen.(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.(3) The evidence must be credible in the sense that it is reasonably capable of belief, and (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[7] As I indicated, Mr. Fitzpatrick has done an excellent job in reviewing the law and, for example, he referred me to R. v. Dunbar, [2003] B.C.J. No. 2767, 2003 BCCA 667, a decision of the British Columbia Court of Appeal in 2003 and I will just make reference to some small portions of it. At p. 32, it deals with the admissibility of fresh evidence which, in that case, was done by Affidavits and sets out the correct approach:
32 Section 683(1) of the Criminal Code gives courts of appeal the power to admit fresh evidence. The general test for determining the admissibility of such evidence going to substantive issues raised at trial is set out in R. v. Palmer (1979), [1980] 1 S.C.R. 759, 50 C.C.C. (2d) 193, 106 D.L.R. (3d) 212.
[8] At para 35, Mr. Fitzpatrick drew to my attention:\
35 The most significant modification of the Palmer principles, where the fresh evidence goes to the integrity of the trial process, is the relaxation of the due diligence criteria: R. v. Appleton (2001), 156 C.C.C. (3d) 321.
[9] At para. 36 where the fresh evidence goes to the integrity of the trial process, appellate courts also have not rigidly adhered to the procedure permitting fresh evidence on appeal set out in R. v. Stolar, [1988] 1 S.C.R. Further, there are cases where the courts admitted fresh evidence so it could properly evaluate the integrity of the trial process. He also acknowledges, as further stated in para. 37:
37 Evidence comprised of hearsay, speculation, opinion or mere argument is no more admissible as fresh evidence on appeal than it is at trial ...
[10] I do not think I need to recite any further aspects of the law as I said at the very outset that the law is very clear and both the Crown and Mr. Fitzpatrick have a clear grasp of it. I must say that the mere statement that the integrity of a court has been comprised or a statement that the competency of a counsel is challenged does not bring it in to fresh evidence. There must be a foundation for these allegations. Of course, the issue of competency is still before the court and is an issue on the appeal itself.
[11] We went through a number of examples of what Mr. Fitzpatrick wants to adduce by way of fresh evidence. We discussed, for example, the wrench aspect and the suggestion that the wrench, to be in evidence, ought to have been weighed and there is a strong view by Mr. Fitzpatrick that the evidence is dramatically different in that there is a determination of swinging and the determination of not swinging but holding the wrench in the manner of a baseball bat. My recollection of the evidence is that Mr. Fitzpatrick acknowledged that he picked up the wrench and it seems to me that that kind of evidence does not fall within fresh evidence that would impact on the determination by the judge. There are several other examples and I do not think there is any need to go through each and every one. For example, the evidence of the conversation of a former lawyer, Mr. Singleton, in my view, would not add in any way shape or form. In my view, the evidence which Mr. Fitzpatrick wishes to have introduced as fresh evidence is full of hearsay. It should be remembered that Mr. Fitzpatrick gave evidence on trial and his “historicity” is really a recanting and expansion of the evidence that he has already presented to the court. In my view, he has already had his day in court and there would never be finality to a proceeding if a party could again give evidence. Events generally that pre-date the court hearing and were either addressed or readily available for evidence at the trial do not constitute fresh evidence. An appeal is not a re-trial. An appeal is not an extension of the trial. It is not a matter of repeating and going from chapter 1 to chapter 2 and so forth.
[12] For the foregoing reasons, and I would also say that I see nothing indicating incompetency on the part of his solicitor but I am not making a determination on the issue of competency. In relation to the number of exhibits that were reviewed and the rest of the material that Mr. Fitzpatrick wants to advance as fresh evidence and, in his view, the failure to bring that forward, in my view, that does not establish any level of incompetency that impacts in any way on the application for fresh evidence. Therefore, the application to introduce what Mr. Fitzpatrick describes as fresh evidence is dismissed. The appeal will be proceeding, of course, on the date set.
J.