Date:
20130917
Docket:
T-457-12
Citation:
2013 FC 958
Ottawa, Ontario,
September 17, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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LEON WALCHUK
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Applicant
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and
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CANADA (MINISTER OF JUSTICE)
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of the decision of the Honourable Rob
Nicholson, Minister of Justice [the Minister], pursuant to section 18.1 of the Federal
Courts Act, RSC 1985, c F-7. The Minister denied the Applicant’s request
for ministerial review of his second-degree murder conviction under s. 696.1
(1) of the Criminal Code, RSC, 1985, c C-46 [the Code].
I. Background
[2]
On
June 14, 2000, the Applicant, Leon Walchuk, was convicted of the second-degree
murder of his wife, Corrine Walchuk [the Victim]. He was sentenced to life in
prison with no chance of parole for 16 years. At the time of her death they had
been separated for four years and were in the midst of acrimonious divorce
proceedings.
[3]
The
general circumstances surrounding the Victim’s death are not in dispute. At
approximately 7:00 pm on March 30, 1998, the Victim drove to the Applicant’s
farmhouse to meet the Applicant. Approximately 20 minutes later, the Victim’s
car had been driven into the farmhouse, the Victim was lying with severe head
injuries in the basement, and the house was on fire. The Applicant called the
fire department via his mother at 7:24pm and some neighbours and the
Applicant’s children arrived soon after. The Applicant did not tell anybody
that the Victim was in the basement until the fire department arrived at 7:40pm.
The immediate cause of the Victim’s death was smoke inhalation from the fire,
but she had also suffered severe brain injuries caused by the Applicant beating
her with a hockey stick. This likely caused her to lose consciousness prior to the
fire. There was also evidence that she had been dragged along the ground and
down the stairs to the basement. Forensic pathologists were called by the
defence and prosecution. While they differed on the severity of the head wounds
suffered by the Victim, they agreed that if her injuries had been treated, she
would have survived.
[4]
The
trial judge adopted the prosecution’s theory that the Applicant had severely
beaten the Victim with a hockey stick, left her in the basement, poured some
gasoline on the stairs and a landing, and ignited it with a match,
intentionally killing her. As part of this conclusion, the trial judge agreed,
at para 26 of his decision, that an accelerant was present, and at para 16,
that an electrical fire as a result of the car crash was not the cause of the
fire. At trial, various expert witnesses were called. Among them were James
Fairbank, who testified that an accelerant was used to start the fire; Wayne
Davies, who testified that an electrical source was not the cause of the fire;
and Arthur Hunter, who testified that the fire was not the result of a vehicle
failure.
[5]
In
addition to this expert evidence, the judge noted other circumstantial evidence
pointing towards the Applicant’s guilt:
• He had severely
beaten the Victim and left her in the basement;
• He did not
immediately tell anyone that she was inside the house;
• He hid personal
items outside the farmhouse, which is a common pre-arson activity;
• He had plans, but
no money, for a new home;
• He
expressed surprise to an undercover police officer that the farmhouse did not
“go up”;
• The
night of the death was the first time the children had not been at the farm
house at 7:00pm for pickup by the Victim;
• He had made
serious threats to the Victim in the past;
• He made it clear
that no one else was welcome on the property that night; and
• His financial
dispute with the Victim may have provided a motive for her murder.
[6]
The
defence’s theory was that the Victim became enraged, drove into the farmhouse
in an attempt to kill the Applicant, and proceeded to hit the Applicant with a
hockey stick, chasing him into the basement. The Applicant then managed to take
the hockey stick from the Victim, and beat her with it. The Applicant then left
the basement, noticed there was a fire, attempted to put it out with his
jacket, and failed. He heard the Victim screaming, but by that point, there was
nothing he could to help her.
[7]
The
Applicant’s conviction was upheld on appeal on March 5, 2001, after the
Saskatchewan Court of Appeal held that James Fairbank was appropriately
qualified as a witness and his investigation methods were appropriate. In
addition, the Court of Appeal held that the trial judge appropriately relied on
the rest of the evidence.
[8]
In
2006, the Applicant approached the Innocence Project at Osgoode Hall for
assistance with his case. On February 12, 2009, the Applicant submitted an
application to the Minister pursuant to section 696.1 of the Code. In support
of this application, the Applicant included three reports contradicting the
opinion evidence introduced by the Crown in his trial. These included reports
by Peter Pendlebury, Gerald Hurst, and Jack Henderson, fire and arson experts.
These reports all agreed on the following:
i)
There
was no evidence supporting the opinion that an accelerant was used; and
ii) The
opinion that it could not have been an electrical fire was erroneous.
[9]
On
September 21, 2010, the Applicant received the Department of Justice Criminal
Conviction Review Group’s [CCRG] investigation report. This report included a
written opinion by Peter Senez, a fire expert consultant retained by the CCRG.
Mr. Senez stated that the theory of the fire as advanced in the Fairbank report
was incorrect, and that the origin and cause theory presented by the Pendlebury,
Hurst and Henderson reports were likely correct. He also noted that there was
still enough circumstantial evidence to warrant consideration of an incendiary
fire, but the weight accorded to that evidence depended on whether the evidence
of Mr. Hunter and Mr. Davies was accepted.
[10]
The
Applicant made final submissions to the Minister in response to the CCRG report
on November 1, 2010.
[11]
On
November 4, 2011, the Minister dismissed the Applicant’s 696.1 application. The
Minister reviewed the reports and acknowledged that they “question” the
conclusions of both Mr. Fairbank and Mr. Davies. However, he noted that a
remedy under 696.1 is extraordinary, and even if the fire was not started by an
accelerant, there would remain sufficient circumstantial evidence for the trial
judge to determine that the Applicant intended to kill the Victim. In support
of this conclusion, the Minister referred to the circumstantial evidence
described above.
II.
Issues
[12]
The
issues raised in the present application are as follows:
A. What
is the meaning of the term “miscarriage of justice?”
B. Was
the Minister’s decision reasonable?
III. Standard of review
A. Applicant’s Position
[13]
The
Applicant contends the standard of review is correctness. First, it is argued
that the question of what constitutes a “miscarriage of justice” is of central
importance to the legal system, whose resolution has significance outside the
operation of the statutory scheme in consideration. It appears throughout the
Code in provisions relating to criminal appeals, empanelling new juries at
trial, and powers of provincial appellate courts, as well as other acts such as
the Supreme Court Act, RSC 1985, c S-26 s 65.1(2) and the National
Defence Act, RSC 1985, c N-5, s 241. Furthermore, interpretation of the
term “miscarriage of justice” is outside the Minister’s area of expertise: the
Code is not the Minister’s home statute or within his core function or
expertise in the sense used to accord deference to other administrative regimes
(Canadian Human Rights Commission v Canada, 2011 SCC 53 at para 24). This
warrants review on the standard of correctness (Dunsmuir v New Brunswick,
2008 SCC 9 at para 89).
[14]
Second,
section 696.3 does not give the Minister power to decide questions of law. In
the absence of explicit authority, the interpretation of a statute by a
minister responsible for its implementation is reviewed on a correctness
standard unless Parliament has decided otherwise (Georgia Strait Alliance v Canada (Minister of Fisheries and Oceans), 2012 FCA 40 at para 86).
[15]
Third,
where there is parallel jurisdiction to interpret a statute, the presumption of
reasonableness will be rebutted (Rogers Communications Inc v Society of
Composers, Authors and Music Publishers of Canada, 2012 SCC 35 at paras
14-15). Interpretation of the term “miscarriage of justice” has occurred in
several cases in different courts (Reference re Milgaard, [1992] 1 SCR
866; Re Truscott, 2007 ONCA 575 at para 58).
B. Respondent’s Position
[16]
The
Respondent argues that the Minister’s decision should be reviewed on the
reasonableness standard. First, subsection 696.3(4) contains a privative clause
relating to any miscarriage of justice application. This supports the
application of the reasonableness standard (Dunsmuir at para 52).
[17]
Second,
the considerations that the Minister is required to take into account under s.
696.4 when deciding on a miscarriage of justice application are extremely
broad, and this power ought to be exercised only in “extraordinary”
circumstances. This suggests deference is owed (Dunsmuir at para 89).
[18]
Third,
section 696.3 is based in the royal prerogative of mercy, which was
traditionally not reviewable by the court (Thatcher v Canada (Attorney
General), [1997] 1 FC 289). While the reference to this prerogative was
removed in 2002, introductory marks by the then-Minister of Justice, Anne
McLellan, indicated the new provisions were likewise based on the prerogative
of mercy (Debates of the Standing Senate Committee on Legal and
Constitutional Affairs, Issue 20 – Evidence, (5 Dec, 2001), [Debates of
the Standing Senate Committee]).
[19]
This
discretionary power remains rooted in the royal prerogative (Bilodeau c Canada, 2009 QCCA 746 at para 25; McArthur v Ontario (Attorney General), 2012 ONSC 5773
at para 22). Furthermore, its exercise has since been held to be reviewable on
the standard of reasonableness (Bilodeau v Canada (Minister of Justice), 2011
FC 886 at para 64; Daoulov v Canada (Attorney General), 2008 FC 544 at
para 22).
C. What is the Applicable
Standard?
[20]
The
correct approach for determining the standard of review is stated in Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para
48:
As this Court held in Dunsmuir, a court
deciding an application for judicial review must engage in a two-step process
to identify the proper standard of review. First, it must consider whether the
level of deference to be accorded with regard to the type of question raised on
the application has been established satisfactorily in the jurisprudence. The
second inquiry becomes relevant if the first is unfruitful or if the relevant
precedents appear to be inconsistent with recent developments in the common law
principles of judicial review. At this second stage, the court performs a full
analysis in order to determine what the applicable standard is.
[21]
Notwithstanding
the persuasive and well-argued position of the Applicant’s counsel that I
should deviate from the decisions in Thatcher, Bilodeau (2009),
Bilodeau (2011), McArthur, and Daoulov, I must decline
to do so. In
my opinion, the standard of review is satisfactorily established on the basis
of this jurisprudence and the Supreme Court’s recent decision in Agraira. In
Agraira, the Court addressed the exercise of ministerial discretion in a
context which required the concurrent interpretation of the term “national
interest.” In so doing, the court rejected the bifurcated standard of review
proposed by the Federal Court of Appeal and applied the reasonableness standard
to both the exercise of discretion and the interpretation of the term “national
interest.” While the term “national interest” involves different considerations
than those underlying the interpretation of the term “miscarriage of justice,”
I am satisfied that Agraira, when read with the other jurisprudence
cited by the Respondent, is determinative that the reasonableness standard of
review applies in the instant application.
IV. Analysis
A. Was
the Minister’s interpretation of the term “Miscarriage of Justice” reasonable?
[22]
The
Minister did not offer an express definition of the term “miscarriage of
justice” in his decision. As in Agraira, this Court is left to assess
the reasonableness of the Minister’s implied interpretation, an exercise in
which the deference owed to the Minister is not diminished by the absence of an
explicit definition (Agraira at para 63).
[23]
On
page 7 of his decision, the Minister states:
Even assuming that the fire that killed the victim
was not started by an accelerant, I am of the view that there is compelling
evidence remaining that Mr. Walchuk intended to kill the victim based on the
following…I am of the view that based on the trial judge’s findings, these new
reports-whether considered alone or together-would not have impacted the trial
judge’s decision to convict in any event”
[24]
In
my mind, the Minister’s implied interpretation, which focuses on whether the
Applicant would have been convicted notwithstanding the additional expert
evidence, was reasonable. This implied interpretation is reasonable owing to
its congruence with an analysis using the modern approach to statutory
interpretation, which requires consideration of the “plain words of the
provision, its legislative history, its evident purpose, and its statutory
context” (Agraira at para 64).
[25]
A
useful starting point is provided by the Applicant’s citation of Black’s Law
Dictionary, which defines a miscarriage of justice as a situation where “[a]
grossly unfair outcome in a judicial proceeding, as when a defendant is convicted
despite a lack of evidence on an essential element of the crime.”
[26]
The
Applicant and the Respondent do not seem to disagree that at a broad level, a
plain reading of the term “miscarriage of justice” involves an individual being
convicted for a crime that they did not commit.
[27]
This
plain meaning approach is supported by legislative history that evinces the
purpose of the provision. In the Debates of the Standing Senate Committee, then-Minister
McLellan described the amendment to include the term “miscarriage of justice”
as being:
…reserved for people who have already exhausted all
judicial avenues of appeal concerning their conviction and who allege that they
have suffered a wrongful conviction.”
[28]
The
Applicant also argues that the interpretation can be supported with reference
to the curative proviso in 686(1)(b)(iii) of the Code. This provision allows a
Court to dismiss an appeal despite the presence of an error at trial, where the
court believes there has been no “substantial wrong or miscarriage of justice.”
[29]
In
defining the circumstances which preclude the use of the curative proviso,
various cases have shaped the interpretation of the term “miscarriage of
justice.” This includes:
• “…whether
there is any possibility that a trial judge would have a reasonable doubt on
the admissible evidence.” (R v S (PL), [1991] 1 S.C.R. 909 at para 14);
• “…the
verdict would necessarily have been the same if such error had not occurred” (R
v Bevan, [1993] 2 S.C.R. 599 at para 42);
• “…the
miscarriage of justice lies…in maintaining the conviction in the face of new
evidence that renders the conviction factually unreliable.” (Re Truscott,
2007 ONCA 575 at para 110).
[30]
The
Applicant suggests that an inquiry into the other existing evidence is not
relevant, citing Reference re Milgaard, [1992] S.C.R. 166 at para 19, for
the proposition that despite the continued presence of admissible evidence, a
continued conviction would amount to a miscarriage of justice if an opportunity
were not provided to consider the fresh evidence. In so doing, the Applicant
suggests that the appropriate inquiry on a miscarriage of justice application
is whether there is “any possibility that a trier of fact would have a
reasonable doubt on the admissible evidence.”
[31]
The
root of former s.690 of the Code mercy prerogative and, I believe, equally of section
696.1 of the Code, is a safeguard against mistakes in the criminal justice
system that result in a wrong conviction. In this context, a mistake occurs
when new evidence would inevitably lead to a wrongful conviction. Accordingly,
I do not agree with the Applicant that the other evidence ought not to be
considered when considering if there has been a miscarriage of justice. While
the Applicant cites R v John, [1985] 2 S.C.R. 476 at para 9, for the
proposition that a reviewing court cannot be expected to extract or insert
certain evidence into the record and consider whether the verdict would be the
same, that is precisely the task undertaken when considering fresh evidence on
appeal under the test from R v Palmer, [1980] 1 S.C.R. 759. There
seems no principled reason not to do so in the context of section 696.1 of the
Code.
[32]
Given
the above, I am of the opinion that the Minister’s implied interpretation of
the term “miscarriage of justice”, which focused on whether the Applicant would
have been convicted notwithstanding the new expert evidence, was reasonable.
B. Was
the Minister’s Decision Reasonable?
[33]
I
agree that the Minister’s decision is reasonable.
[34]
The
Applicant argues that the Minister did not turn his mind to the distinction
between murder and manslaughter in the Code. In order to establish murder, the
Crown needs to prove beyond a reasonable doubt that the Applicant either
intended the Victim’s death or was aware that there was a danger his conduct could
bring about his wife’s death, but persisted despite the risk (section 229 of
the Code, R v Hinchey, [1996] 3 S.C.R. 1128 at para 110).
[35]
To
meet the threshold for murder, an accused’s actions must have amounted to a
significant contributing cause of death, and their mental state must require
subjective foresight of death (R v Nette, 201 SCC 78 at para 69; R v
Martineau, [1990] 2 S.C.R. 633 at para 12). The requirements for manslaughter
(death by means of an unlawful act or criminal negligence) are distinct. For
death by means of an unlawful act, the crown must prove the mens rea of the
unlawful act and prove that the accused ought to have had foresight of a risk
of bodily harm which is neither trivial nor transitory (R v Creighton, [1993]
3 SCR 3 at para 78). This distinction is relevant, because mandatory minimums,
increased stigma, and restricted parole eligibility apply to murder versus
manslaughter. The Applicant argues that the new evidence provided requires a
more detailed causation analysis, given that the physical evidence relied on by
the trial judge (use of a accelerant to cause the fire), in convicting the
Applicant of murder has been effectively proven to be wrong.
[36]
The
Applicant also disputes a number of the Minister’s assertions regarding the circumstantial
evidence. Most relevant is that the Minister erred when he relied solely on the
circumstantial evidence. As the Senez report warned, such evidence is only
probative if the evidence of Davies and Hunter is accepted. Given that the
Davies evidence has also been proven to be unlikely, the Applicant submits that
the Minister was unreasonable in relying on it.
[37]
The
Respondent paraphrases WR v Canada (Minister of Justice), [1999] FCJ No
1059 at para 10 [WR], for a set of governing principles that should
guide the Minister when deciding to exercise what was then the royal
prerogative. The Respondent chiefly draws on these principles to illustrate
that the Minister’s role is not to exercise appellate jurisdiction over the
courts, and that a remedy under this section should only be given after a
careful consideration of the proper roles of each of the decision-makers
involved, as well as the circumstances of the case at issue.
[38]
None
of the new expert reports concluded that the fire was accidentally set, or
preclude the possibility that the Applicant had set the fire some other way.
The reports are consistent with the possibility that the Applicant had set the
fire after driving the Victim’s car into the porch. Combined with the other
circumstantial evidence, there is a sufficient basis to reasonably find that
the Applicant intentionally set the fire. The Minister also notes that these
reports “could not conclude that (the Applicant) did not intentionally start
the fire in another manner or in another location.”
[39]
The
Senez report notes that the weight as to whether an incendiary fire occurred is
dependent on the court’s confidence that both a vehicular or electrical fire
can be ruled out as sources. The Minister is correct that it is unlikely that
the origins of the fire will ever be conclusively established. As a result, the
Applicant’s conviction for murder leans more heavily on the circumstantial
evidence before the trial judge.
[40]
Furthermore,
the other issues raised by the Applicant regarding the Minister’s consideration
of the circumstantial evidence is an attempt to re-argue issues that were not
raised on appeal.
[41]
While
the new expert evidence changes the variables necessary to conclude, beyond a
reasonable doubt, that the Applicant was guilty of second-degree murder, the
Minister should be accorded deference in reaching his decision. I agree that as
in WR, a decision to exercise discretion under this section is an
extraordinary remedy and one that must consider the different decision-makers
involved. It is not a forth level of appeal.
[42]
I
do not agree with the Applicant’s argument that the Minister failed to turn his
mind to the distinction between manslaughter and murder. The Minister states in
his decision that he found, regardless of the content of the expert evidence,
that the Applicant intentionally started the fire that killed the Victim.
This is a necessary finding to conclude that the Applicant was guilty of
second-degree murder.
[43]
In
light of the deference to be accorded the Minister’s decision under section
696.1 of the Code, the Minister’s decision was reasonable. There is still a
great deal of circumstantial evidence supporting the Applicant’s conviction for
murder and it is within the range of acceptable outcomes that the Minister
would conclude that there is no possibility that a trier of fact would not
convict the Applicant of second degree murder, notwithstanding the conclusion
of the new expert reports concerning the cause of the fire that ultimately
resulted in the victim’s death. The Minister justified this outcome in an
intelligible manner with reference to the relevant circumstantial evidence.
JUDGMENT
THIS
COURT’S JUDGMENT is that the Application is dismissed.
"Michael D.
Manson"
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