R. v. Fitzpatrick (D.P.), (2006) 244 N.S.R.(2d) 304 (CA)

• Judge: Roscoe, Bateman and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 15, 2006
• Jurisdiction: Nova Scotia
• Citations: (2006), 244 N.S.R.(2d) 304 (CA);2006 NSCA 65

R. v. Fitzpatrick (D.P.) (2006), 244 N.S.R.(2d) 304 (CA);

    774 A.P.R. 304

MLB headnote and full text

Temp. Cite: [2006] N.S.R.(2d) TBEd. MY.025

Donald Patrick Fitzpatrick (appellant) v. Her Majesty the Queen (respondent)

(CAC 260404; 2006 NSCA 65)

Indexed As: R. v. Fitzpatrick (D.P.)

Nova Scotia Court of Appeal

Roscoe, Bateman and Oland, JJ.A.

May 25, 2006.

Summary:

The accused appealed from his convictions for two counts of assault with a weapon and two counts of uttering a threat. He also applied to admit fresh evidence on the appeal. The application to admit fresh evidence was heard and dismissed by Goodfellow, J. The conviction appeal was dismissed by Haliburton, J., sitting as the summary conviction appeal court judge. The accused appealed from the dismissal of his appeal by Haliburton, J., and from the dismissal of his fresh evidence application by Goodfellow, J. He also applied to introduce fresh evidence on the appeal.

The Nova Scotia Court of Appeal dismissed the application and the appeal.

Criminal Law - Topic 7463

Summary conviction proceedings - Appeals - General - Scope of appeal - The accused appealed from his convictions for two counts of assault with a weapon and two counts of uttering a threat - The appeal was dismissed by a summary conviction appeal court judge - The accused appealed - The Nova Scotia Court of Appeal dismissed the appeal - The summary conviction appeal court judge applied the appropriate test in reviewing the proceedings in the court below - He re-examined and, to some extent, re-weighed and considered the effect of the evidence to determine on the whole of the evidence whether the verdict was one that a properly instructed jury, acting judicially, could reasonably have rendered - See paragraphs 24 to 28.

Criminal Law - Topic 7471

Summary conviction proceedings - Appeals - General - Evidence on appeal (incl. fresh evidence) - The accused appealed from his convictions for assault with a weapon and uttering a threat - He also applied to admit fresh evidence on the appeal - The application to admit fresh evidence was heard and dismissed by Goodfellow, J. - The conviction appeal was dismissed by Haliburton, J., sitting as the summary conviction appeal court judge - On appeal, the Nova Scotia Court of Appeal considered the fact that the fresh evidence application was not heard by the same judge who presided on the summary conviction appeal - The court held that although the procedure for admitting fresh evidence contemplated that the same court would hear both the application and the appeal, it was satisfied that the irregularity in this case did not prejudice the accused - See paragraphs 14 to 20.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 6].

R. v. Nielsen and Stolar, [1988] 1 S.C.R. 480; 82 N.R. 280; 52 Man.R.(2d) 46; 40 C.C.C.(3d) 1, refd to. [para. 10].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 50 C.C.C.(2d) 193, refd to. [para. 10].

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R. 1; 2003 SCC 70, refd to. [para. 12].

R. v. Dunbar (A.A.) et al. (2003), 191 B.C.A.C. 223; 314 W.A.C. 223; 2003 BCCA 667, refd to. [para. 12].

R. v. W.W. and I.W. (1995), 84 O.A.C. 241; 100 C.C.C.(2d) 225 (C.A.), refd to. [para. 12].

R. v. Davy (1990), 71 Man.R.(2d) 166 (C.A.), refd to. [para. 15].

R. v. Emery (1981), 61 C.C.C.(2d) 84 (B.C.C.A.), refd to. [para. 21].

R. v. Surette (J.R.W.) (1993), 123 N.S.R.(2d) 152; 340 A.P.R. 152 (C.A.), refd to. [para. 22].

R. v. Nickerson (W.S.) (1999), 178 N.S.R.(2d) 189; 549 A.P.R. 189 (C.A.), refd to. [para. 23].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 36 C.C.C.(3d) 417, refd to. [para. 27].

Counsel:

Appellant in person;

Dana W. Giovannetti, Q.C., for the respondent.

This appeal was heard on May 15, 2006, at Halifax, Nova Scotia, before Roscoe, Bateman and Oland, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Bateman, J.A., on May 25, 2006.