This week’s top three summaries: R v Fitzpatrick, 2026 ONCA 261: #resemblance ID, R v Applegarth, 2026 ABCA 122: #murder intent, R v Deidun, 2026 ONCA 211: #procuring elements

R v Fitzpatrick, 2026 ONCA 262

[March 25, 2026] Identification Evidence: Resemblance Evidence [Reasons by Rahman J.A. with L.B. Roberts and R. Pomerance JJ.A. concurring]

AUTHOR’S NOTE: Identification evidence is not monolithic. The case law distinguishes between various types of identification evidence including recognition evidence and resemblance evidence, and the classification determines both admissibility and weight.

In this case, two witnesses who were familiar with the accused viewed video footage but did not identify anyone in the video. That alone meant their testimony could not qualify as recognition evidence.

Instead, their evidence centered on an emotive reaction: observing one individual stumble, they were reminded of the accused due to his perceived clumsiness. The Court of Appeal rejected this as having no probative value.

The evidence failed on both fronts:

• It was not recognition evidence, because the witnesses expressly declined to identify the individual; and
• It was not resemblance evidence, which requires some specific, objectively identifiable feature—such as distinctive physical characteristics, gait, or clothing.

A non-distinctive stumble or trip is not a reliable or meaningful point of comparison. To admit such evidence would invite speculation and impermissible reasoning.

The Court concluded that this was inadmissible identification evidence.

A. INTRODUCTION

[1] On June 21, 2018, two men went to Brandon Hall’s home. One of them shot Hall multiple times, killing him. Both appellants were charged with first degree murder in Hall’s death. The Crown alleged that the appellant Wright was the shooter, and that the appellant Fitzpatrick had accompanied him as an accomplice. The Crown’s theory was that Wright went to Hall’s home planning to murder him because Hall had stolen some of Wright’s guns and money, and that Wright enlisted his cousin, Fitzpatrick, to help him.

[2] In support of its theory with respect to Wright, the Crown relied heavily on the testimony of Wright’s friend, Marquis Grant-Mentis (“MGM”), and Wright’s cousin, Jenna Parsons. Both testified that Wright had confessed to them that he shot Hall. Also tying Wright to the murder were Air Jordan sneakers that matched those worn by the alleged shooter and an ammunition cartridge matching the rifle used to kill Hall.

[3] The Crown’s case against Fitzpatrick was weaker. It relied on security camera footage that all parties agreed showed the two assailants on their way to Hall’s home. Fitzpatrick’s father and stepmother told police that one of the men in the video reminded them of Fitzpatrick. Also tying Fitzpatrick to the killing was a latex glove recovered near the crime scene that contained his DNA and resembled a glove worn by one of the men in the security video.

[4] Wright testified in his own defence, advancing an exculpatory theory that was relied on by himself and Fitzpatrick. Wright testified that it was he and MGM who broke into Hall’s home, thinking it was unoccupied, to recover the guns and money Hall had stolen. On this version of events, MGM was the shooter, Fitzpatrick was not involved, and Wright was the person in the security video that the Crown alleged was Fitzpatrick….

[7] After a six-week trial, the jury found Wright guilty of first degree murder and Fitzpatrick guilty of manslaughter. Both appeal their convictions.

[8] ….Respecting Fitzpatrick’s appeal, I conclude that his parents’ “resemblance evidence” should not have been admitted. Its near non-existent probative value, highly prejudicial effect, and centrality to the Crown’s case justify allowing his appeal…..

[24]      Ms Diamond and Shawn Wright were interviewed separately by police after the appellants’ arrests. During these interviews, both were shown the surveillance videos capturing Hall’s killers. Neither could identify Fitzpatrick as one of the persons in the video. Ms Diamond told police that the sweater Person #2 was wearing reminded her of the Raptors sweater she bought Fitzpatrick for his birthday that year. She also said that the shoes Person #2 was wearing looked like Fitzpatrick’s, though Fitzpatrick’s were more “ratty”. Ms Diamond said the green-yellow gloves worn by Person #2 looked like gloves they had around the house.[4] In his police interview, Shawn Wright confirmed Ms Diamond’s evidence on these points, but he also said that Person #2’s gait did not look like Fitzpatrick’s. He also offered mixed evidence as to whether Person #2 looked like Fitzpatrick. Importantly, both Ms Diamond and Shawn Wright also had the same initial reaction to seeing Person #2 stumble or trip on a curb. Both witnesses’ evidence was that this reminded them of Fitzpatrick because of his clumsiness. [Emphasis by PJM]

D. FITZPATRICK’S APPEAL

1. The trial judge erred by admitting prejudicial “resemblance evidence”

a. The law

[49] Where there is video evidence relating to the commission of an offence and the identity of the perpetrator is at issue, the Crown may seek to prove that the accused is the perpetrator by adducing evidence from a witness who is sufficiently familiar with the accused to recognize them as the person in the video: Leaney, at p. 413; R. v. Hudson, 2020 ONCA 507, 391 C.C.C. (3d) 208, at para. 28. This recognition evidence is a form of identification evidence, which is itself a form of admissible lay opinion evidence: R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 39; R. v. Brown (2006), 219 O.A.C. 26 (C.A.), at para. 39.

[50] In R. v. Berhe, 2012 ONCA 716, 113 O.R. (3d) 137, Blair J.A. explained the test for threshold admissibility of recognition evidence. He referred, at para. 14, to this test as the “prior acquaintance/better position” test. The trial judge must determine whether: 1) the witness is sufficiently familiar with the accused to have “some basis” for their identification opinion; and 2) the witness, as a result of their prior acquaintance with the accused, is in a better position than the trier of fact to identify the perpetrator, in the sense that they have “some advantage that can shed light on the evidence in question”: Hudson, at para. 30, citing Berhe, at paras. 14, 21.

b. The evidence before the trial judge and his ruling

[51] In support of its application, the Crown relied on excerpts from Ms Diamond and Shawn Wright’s police statements and preliminary inquiry evidence. As discussed above, neither could identify Fitzpatrick in the video footage. However, both said that Fitzpatrick had the same Raptors sweater and the same sneakers as Person #2, albeit a pair that looked “rattier” than the ones on Person #2. Both also said that the green-yellow glove Person #2 was wearing resembled those they had at their home. More importantly, both had told the police that the way Person #2 stumbled reminded them of Fitzpatrick because of his clumsiness. It was on this basis that the Crown sought to admit this purported recognition evidence.

[52] The defence opposed the Leaney application, submitting that the lay opinion was too generic to constitute identifying features of Fitzpatrick. In particular, the defence pointed to the absence of a positive identification from either witness and Shawn Wright’s mixed evidence about whether Person #2 walked and looked like Fitzpatrick. The defence also raised concerns about police tainting because both witnesses knew that the appellants had been arrested.

[53] The trial judge ultimately admitted the evidence, finding that the constellation of factors supposedly going to Fitzpatrick’s resemblance to Person #2, and the witnesses’ familiarity with the appellants could constitute evidence relevant to the issue of identification of those involved in the murder. Relying on this court’s decision in Berhe, at para. 19, he concluded the law did not require a recognition witness to have “familiarity with an [accused’s] unique features to enable a witness to identify an accused’s idiosyncrasies for nonexpert identification evidence to be admissible”, as the defence contended. The trial judge concluded that “the bare conclusory recognition evidence of a person long and closely familiar with the accused may have substantial value, even where the witness does not articulate the particular features or idiosyncrasies that underlie the recognition.” The trial judge similarly concluded that any concerns about tainting only affected the ultimate reliability of the evidence, rather than its admissibility.[Emphasis by PJM]

[54] In concluding that the evidence was admissible, the trial judge said that the witnesses’ evidence about Person #2 stumbling, on its own, was not sufficient to constitute recognition evidence. This was partially because neither witness was purporting to definitively identify anyone in the video. The trial judge also recognized that a trip or stumble could not be the basis for identifying someone because it is not a characteristic of someone’s gait. However, he stated that the stumble was “not the sole basis for [the] proffered identification evidence.” Rather, he found that both witnesses had “given limited identification evidence based on their long knowledge of both accused that may be relevant to the issue of identification of those involved in Mr. Hall’s murder.” The trial judge concluded that any issues with the evidence were ones that concerned the ultimate weight to be given to the evidence and not its admissibility.[Emphasis by PJM]

c. Discussion

[57] I agree with Fitzpatrick that Shawn Wright and Ms Diamond’s evidence about Person #2 supposedly resembling their son should not have been admitted. Their trial evidence about his supposed resemblance to Person #2 was largely just an impression they formed because Person #2’s stumble over a curb reminded them of Fitzpatrick’s clumsiness. The stumble evidence had virtually no probative value regarding identity and a significant prejudicial effect. And the prejudicial effect of the evidence became heightened because of the way the evidence was adduced from the witnesses, particularly Shawn Wright, and reiterated during the Crown’s closing.

[58] First, it is important to properly characterize this evidence according to the framework set out above. It was not identification or recognition evidence. As the trial judge concluded, neither witness purported to identify either Person #1 or Person #2. It follows that this evidence was also not recognition evidence. If neither witness could identify the people in the video, it cannot be said that they recognized either person.[Emphasis by PJM]

[59] The difficulty is that, though it cannot properly be characterized as recognition evidence, that is the way Ms Diamond and Shawn Wright’s evidence was effectively treated by the trial judge and the Crown. The trial judge concluded that the evidence was admissible because of the witnesses’ familiarity with the appellants. But their familiarity was ultimately meaningless because it did not help them recognize either person in the video. Instead, the stumble, and the witnesses’ initial emotive reaction to that stumble, took on an outsized role and became the focal point of their evidence at trial, even though that was not the basis for the evidence’s admission. The stumble evidence had no probative value respecting identity and was not properly admissible as recognition evidence….[Emphasis by PJM]

[60] By the end of the trial, the stumble evidence became a central feature of the Crown’s case against Fitzpatrick. In addition to relying on the witnesses’ reactions when they first saw the video, the Crown also relied on the witnesses’ apparent reluctance to agree at trial that they had told police they saw a resemblance….

[61] Having set up the importance of these initial impressions, Crown counsel then referred to what he described as Shawn Wright and Ms Diamond “back[ing] off” and “water[ing] down” their evidence, noting that these “retreats” from their earlier statements favoured the defence position. Crown counsel highlighted the reticent nature of Shawn Wright’s testimony in particular. He described getting evidence from Shawn Wright as “like pulling teeth”, especially on “his initial reactions” to the surveillance footage, which Crown counsel characterized as “the most important parts of his evidence”.

[63] To be clear, in referring to these passages, I am not suggesting that Crown counsel’s comments about the witnesses’ reluctance were improper. I mention them to underscore how Crown counsel used this evidence during his closing address and how he highlighted that even the witnesses understood the importance of their initial reaction to Person #2’s stumble. This is despite the fact that the evidence of the stumble was not probative and posed a substantial risk of confusing the jury on the issue of identity.

[64] I cannot accept the Crown’s submission that the stumble evidence constituted resemblance evidence that was admissible because there was other inculpatory evidence linking Fitzpatrick to Person #2: see e.g., R. v. Rybak, 2008 ONCA 354, 90 O.R. (3d) 81, at para. 121. Resemblance evidence is typically used to describe something specific about a suspect that resembles the accused. That resemblance may come from a suspect’s physical features, a distinctive gait, or clothing: see e.g., R. v. Boucher (2000), 146 C.C.C. (3d) 52 (Ont. C.A.). In other words, its probative value comes from its specificity. A non-distinctive stumble or trip over a curb cannot reasonably amount to evidence of a suspect resembling the accused. Indeed, this evidence had no bearing on the issue of Person #2’s identity and was accordingly inadmissible: Cloutier v. The Queen, [1979] 2 S.C.R. 709, at pp. 730-31.[Emphasis by PJM]

[66] This evidence was central to the Crown’s case against Fitzpatrick. It went directly to the identity of Person #2, someone all parties agreed participated in Hall’s killing. Thus, its improper admission warrants a new trial: see e.g., R. v. Dupe, 2016 ONCA 653, 340 C.C.C. (3d) 508, at para. 6.

F. DISPOSITION

[128] I would allow Fitzpatrick’s appeal and order a new trial on the charge of manslaughter.

R v Applegarth, 2026 ABCA 122

[April 17, 2026] Murder: Minimum Intent Constitutionally Required [Pentelechuk, Feehan and Feth JJ.A.] 

AUTHOR’S NOTE: Murder carries a constitutionally mandated minimum mens rea: the Crown must prove that the accused knew the bodily harm inflicted was likely to cause death. Recklessness plays a secondary role—addressing whether the accused was indifferent to the risk of death once that primary level of foresight is established.

In this case, the trial judge’s reasons repeatedly omitted the requirement of knowledge. Instead, the analysis effectively reduced the mental element to whether death was a “possible consequence” of the accused’s actions. That formulation falls below the constitutional threshold for murder.

The Court of Appeal held that this was not a mere slip in language but a substantive legal error that diluted the mens rea requirement. By lowering the standard from “likely to cause death” to “possible consequence,” the trial judge applied an incorrect legal test.

A new trial was ordered.

Takeaway:
The distinction between “likely” and “possible” is not semantic—it is constitutional. Any reasoning that collapses that distinction risks invalidating a murder conviction.

Overview

[1] Ryan Applegarth appeals his conviction for the second-degree murder of his common-law spouse, Chantelle Firingstoney. Ms Firingstoney died in her Ponoka home sometime around 9 pm on November 5, 2020. Earlier that evening, she was drinking at a friend’s house and left around 8 pm, showing no signs of injury. She made it home sometime within the next hour. There was no dispute at trial that, immediately before her death, Ms Firingstoney and the appellant were the only adults in the home. Shortly after 9 pm, the appellant went to his neighbour’s place and asked that she call an ambulance. Medics soon arrived. They found Ms Firingstoney unresponsive and were unable to revive her.

[2] An autopsy conducted the following day revealed that Ms Firingstoney suffered multiple blunt-force traumatic injuries to her head, face, neck, torso, and extremities. She had 12 broken ribs. Her liver was lacerated and there was 1,400 millilitres of blood in her abdominal cavity. Testing showed she was heavily intoxicated at the time of her death. The medical examiner concluded that her death was caused by the combination of blood loss and loss of oxygen flowing to her vital organs.

[3] The Crown’s case at trial was entirely circumstantial. The defence called no evidence. There was no direct evidence as to where or how Ms Firingstoney suffered the injuries that led to her death. After a five-day trial in May 2023, the trial judge convicted the appellant, concluding guilt was the only reasonable inference available from the evidence….

Mens Rea for Second-Degree Murder

Subjective Foresight of Death is a Constitutional Imperative

[5] Murder is a crime attracting the gravest sanction and stigma under Canadian criminal law. Because of the harsh stigma and punishment associated with murder, subjective foresight of death is a constitutional requirement for a murder conviction: R v Martineau, [1990] 2 SCR 633, 1990 CanLII 80 (SCC).

[6] The requisite intent for murder is set out in s 229 of the Criminal Code and requires “an intent to kill or an intent to cause bodily harm that the offender knows is likely to cause death and is reckless as to whether or not death ensues”: R v Walle, 2012 SCC 41 at para 3; see also R v Hodgson, 2024 SCC 25 at para 48. In contrast, the mens rea for manslaughter requires an objective foreseeability of a risk of bodily harm that was neither trivial nor transitory in the context of a dangerous act: Hodgson at para 47.

[10] In Hodgson, the Supreme Court of Canada cautioned that “any slippage from the high bar of subjective intent required for murder must be avoided”: at para 50. In that case, the Crown appealed from an acquittal on a second-degree murder charge. The Court of Appeal allowed the appeal, finding the trial judge had erred in failing to consider whether a chokehold was an inherently dangerous act. The Supreme Court restored the acquittal on the basis that the Court of Appeal had injected an objective element into the subjective mens rea test by requiring the trial judge to consider “what the accused ought to have known about the inherent dangerousness of a chokehold”: at para 50 (emphasis in original). Hodgson emphasizes the importance of a trial judge grappling with, and making clear findings about, what was in the accused’s mind when they inflicted bodily harm that resulted in death.

The Trial Judge Erred in Law Regarding the Mens Rea Required for Second-Degree Murder

[11] Having satisfied herself that the appellant was the killer, the trial judge next considered whether the Crown had proven beyond a reasonable doubt that the appellant had the necessary intent for second-degree murder when he assaulted Ms Firingstoney. The trial judge made no finding that the appellant had the specific intent to kill as described in s 229(a)(i). The parties agree that her reasons can only be read as basing the conviction on finding the appellant had the necessary intent under s 229(a)(ii). Therefore, to convict the appellant of second-degree murder, the trial judge had to be satisfied beyond a reasonable doubt that:

1) the appellant intended to cause Ms Firingstoney bodily harm;

2) that he knew was likely to cause death (the “knowledge” component); and

3) he was reckless as to whether death ensued (the “recklessness” component).[Emphasis by PJM]

[13] In her oral reasons, the trial judge concluded that “Mr. Applegarth intended to cause bodily harm to Ms. Firingstoney, and he was reckless as to whether or not death ensued.” On no less than five other occasions in her reasons, including in her opening statement of the law, the trial judge set out the requisite intent for second-degree murder by referencing only the requirements that the appellant intended to cause Ms Firingstoney bodily harm and was reckless as to whether death ensued, and not that he knew his actions were likely to cause death. Further, the trial judge repeated her omission of the second component of s 229(a)(ii) in her oral and written reasons on sentence, after specifically turning her mind to and addressing the accuracy of her reasons for conviction: see R v Applegarth, 2024 ABKB 54 at paras 10 and footnote 1, 71. Conspicuously absent from the conviction or sentencing reasons is any explicit finding that the appellant knew the bodily harm he inflicted on Ms Firingstoney was likely to cause her death.[Emphasis by PJM]

[15] The trial judge’s repeated references to the recklessness component of s 229(a)(ii) do not satisfy us that she correctly applied the knowledge component. A finding of recklessness does not equate to, or subsume within it, a finding of the level of knowledge required for a second-degree murder conviction. The recklessness component invokes a lesser standard of probability of death. An accused is reckless where they foresee a risk, possibility, danger, or chance of death: R v Roks, 2011 ONCA 526 at para 134; Cooper at 155. However, the knowledge component of s 229(a)(ii) requires more. It is not interchangeable with or equivalent to a requirement that the accused knows the bodily harm they are inflicting “could” cause death: R v Weng, 2022 BCCA 332 at para 41, leave to appeal ref’d, 40472 (14 March 2024); R v Balbar, 2013 BCCA 315 at para 36. Section 229(a)(ii) requires “a substantial degree of probability” of death; the accused must foresee death as a “probable consequence”: Weng at para 41; R v Tolchinsky, 2025 ABCA 15 at para 35, leave to appeal ref’d, 41901 (20 November 2025).[Emphasis by PJM]

[16] Accordingly, the trial judge’s finding that the appellant was reckless as to whether Ms Firingstoney lived or died amounted – at most – to a finding that he knew death was a possible consequence of the assault he intentionally inflicted upon her. It did not amount to the required finding that he caused Ms Firingstoney bodily harm that he knew was likely to kill her.

[17] We are not satisfied that the trial judge’s inferential reasoning path demonstrates that she correctly applied the knowledge component of s 229(a)(ii). As noted, this was a circumstantial case. In circumstantial cases, the necessary intent for murder may be inferred from the nature of the accused’s actions. For example, slashing the victim’s throat, repeated stabbings, or shooting the victim at close range are actions from which subjective intent may be readily inferred based on the common-sense inference that a competent person intends the natural and probable consequences of their actions: see eg R v Dhiblawe, 2025 ABCA 155 at para 25, leave to appeal ref’d, 41911 (8 January 2026), citing Walle at paras 3, 67-68.

[18] Inferences of intent are best supported by a foundation of clear and specific fact findings. The trial judge’s reasons, read functionally and holistically, are bereft of clear fact findings that could ground an inference that the judge found the appellant intended to cause bodily harm he knew was likely to be fatal….

[19] …., in this case, the trial judge repeatedly omitted the crucial requirement that, to be convicted of second-degree murder, the appellant had to have subjectively known that the bodily harm he inflicted upon Ms Firingstoney was likely to kill her. In the circumstances, we are not satisfied the trial judge correctly turned her mind to and applied all the requirements of s 229(a)(ii). By failing to do so, the trial judge erred in law.

Conclusion

[25] The appeal is allowed and a new trial is ordered. It is therefore not necessary to address the other grounds of appeal raised by the appellant. His application to admit new evidence on the ground of ineffective assistance of counsel is dismissed.