Docket: A-351-13
Citation: 2015 FCA 85
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CORAM:
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DAWSON J.A.
STRATAS J.A.
NEAR J.A.
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BETWEEN:
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LEON WALCHUK
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Appellant
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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
DAWSON and STRATAS JJ.A.
[1]
On June 14, 2000, Mr.
Walchuk was convicted of the second-degree murder of his estranged wife,
Corrine Walchuk.
[2]
Section 696.1 of the Criminal
Code, R.S.C. 1985, c. C-46, allows a convicted person to seek ministerial
review of the conviction on the grounds of miscarriage of justice. Mr. Walchuk
made such an application, which was denied by the then Minister of Justice, the
Honourable Robert Nicholson. The Minister was not satisfied there was a
reasonable basis upon which to conclude that a miscarriage of justice likely
occurred. A judge of the Federal Court dismissed Mr. Walchuk’s application for
judicial review of that decision (2013 FC 958). This is an appeal from the Federal
Court’s decision. For the reasons that follow, we have concluded that the
Minister’s decision was reasonable and so the appeal should be dismissed.
I.
Factual Background
[3]
By 1998, Mr. and Mrs.
Walchuk had been engaged in bitter divorce proceedings that included a
protracted battle over the division of matrimonial property. They had separated
in 1994 and in the interim shared custody of their two young children.
[4]
On March 30, 1998, Mrs.
Walchuk arrived at the house on the family farm to pick up their children. The
children were not there. A fight between Mr. and Mrs. Walchuk ensued. In the
end, Mrs. Walchuk’s car was crashed into the front porch of the house, the
house caught on fire, and she was found dead at the bottom of the basement
stairs. She had died in the fire from carbon monoxide poisoning. The autopsy
revealed numerous injuries to her body, including severe lacerations to her
skull.
[5]
Mr. Walchuk was charged with
the first-degree murder of his wife. He was tried by a judge sitting alone.
[6]
The case against Mr. Walchuk
was circumstantial, and he exercised his right not to testify. However, shortly
after his arrest and while in custody, Mr. Walchuk made certain statements to a
police officer who was acting undercover as his cellmate. At trial, the police
officer testified about those statements. Neighbours coming to the scene of the
burning house also testified about Mr. Walchuk’s conduct and certain statements
he had made.
[7]
The theory of the defence’s
case, as assisted by some of Mr. Walchuk’s statements, was that Mrs. Walchuk,
after seeing her children were not at the house, became very angry. They
fought. In a fit of rage, Mrs. Walchuk tried to run Mr. Walchuk over with her
car and in so doing drove her car into the porch of the farmhouse, breaking
through the porch and an interior wall of the farmhouse. She then got out of
her car and hit Mr. Walchuk with a hockey stick. They ended up in the basement
where Mr. Walchuk grabbed the hockey stick and struck her repeatedly with it.
He said “I just kept hitting her, I couldn’t stop”.
He became aware that the porch had caught on fire, perhaps as a result of the
car crashing into it. He went upstairs and tried to smother the flames with his
jacket. When he could not smother the fire he left the porch and walked away from
the house. He heard his wife calling for help, but there was nothing he could
do for her.
[8]
The theory of the Crown’s
case was that after leaving his wife unconscious or nearly unconscious at the
bottom of the basement stairs, Mr. Walchuk poured gasoline at the top of the
stairs and around the porch area. He then drove his wife’s car into the porch
wall near the door. At this time the farmhouse was either already burning or
the fire was started shortly after the car was driven into the porch. A fire
investigator, Mr. Fairbank, gave expert testimony that an accelerant was used
on the stairs leading to the basement. Two other experts testified.
Mr. Davies, an electrical inspector, testified it was unlikely that the
source of the fire was electrical in nature. Mr. Hunter, an expert in motor
vehicle examination, testified that the fire did not start from Mrs. Walchuk’s
car.
[9]
For reasons reported as 2000
SKQB 275, a judge of the Court of Queen’s Bench of Saskatchewan (“Judge”)
convicted Mr. Walchuk of second-degree murder. The Judge had no reasonable
doubt that at the time of Mrs. Walchuk’s death, Mr. Walchuk had formed the
intent to kill his wife. Mr. Walchuk severely beat his wife, after the beating
he left her incapacitated in the burning farmhouse, the beating was a principal
factor in his wife’s death and Mr. Walchuk intentionally set the fire. The
Judge had, however, a reasonable doubt that the murder was the subject of
planning and deliberation. Thus, he found Mr. Walchuk guilty of second-degree
murder, not first-degree murder. Mr. Walchuk was sentenced to life
imprisonment, with no chance of parole for 16 years.
[10]
For reasons cited as 2001
SKCA 36, the Saskatchewan Court of Appeal dismissed the appeal against
conviction and dismissed the appeal against the order concerning the period of
parole ineligibility.
[11]
In February 2009, supported
by the Innocence Project at Osgoode Hall, Mr. Walchuk submitted an application
to the Minister of Justice pursuant to section 696.1 of the Criminal Code.
[12]
Mr. Walchuk’s application
was based upon three new arson experts’ opinions that challenge the Judge’s
conclusion that the fire was intentionally set with an accelerant. All three
experts are of the view that, contrary to Mr. Fairbank’s opinion at trial on
which the Judge relied, an accelerant was not used to start the fire. All three
experts also disagree with Mr. Davies’ opinion that the cause of the fire was
not electrical in nature.
[13]
Mr. Walchuk’s application
was reviewed by the Criminal Conviction Review Group of the Department of
Justice which retained an independent arson expert, Mr. Senez. Mr. Senez
agreed with the new experts that no accelerant was present, and that there was
strong evidence to suggest that the fire originated at the exterior of the
farmhouse, entering the house through the kitchen window and patio door. The
damage, in his view, correlated “to ignition scenarios
relating to the vehicle or the building electrical systems”. He further
concluded that:
There is ample
circumstantial evidence that is unexplained to warrant consideration of an
incendiary fire. … [T]he weight as to whether this is an incendiary fire is
dependent on the Court’s confidence that Arthur Hunter (the expert who examined
the automobile as a possible cause of the fire) is correct that the fire did
not occur as a result of a vehicle failure and that the electrical inspector,
Mr. Wayne Davies, satisfactorily eliminated the building wiring as being a
potential cause.
[14]
Subsequently, the Review
Group prepared an investigative report to assist the Minister. A copy was
provided to the Innocence Project, which made submissions responding to issues
raised in the investigative report.
II.
The Minister’s Decision
[15]
The Minister carefully
summarized the new expert evidence. He concluded that all of the experts question
the conclusion reached by Mr. Fairbank that an accelerant was used to start the
fire. This seriously undermined the Crown’s theory that Mr. Walchuk
intentionally started the fire using an accelerant. The Minister noted that
several of the experts also questioned the conclusions reached by Mr. Davies
that ruled out an electrical cause of the fire. Notwithstanding, in the
Minister’s view none of the experts could conclude that Mr. Walchuk did not
intentionally start the fire in another manner or in another location; the
experts concluded only that an accelerant was not used on the basement stairs
to start the fire.
[16]
The Minister went on
to consider his role in this type of application. He noted that sections 696.1
to 696.6 of the Criminal Code (set out in the appendix to these reasons)
authorize him to order a new trial or to refer a case to a Court of Appeal if
he is satisfied that there is a reasonable basis to conclude that a miscarriage
of justice likely occurred. The Minister went on to observe that this remedy is
extraordinary, and can be exercised only when he is satisfied that there are
new matters of significance that cast doubt on the correctness of the
conviction. In this circumstance, the Minister stated it “is not my role to review the same evidence and arguments
previously presented to a court and substitute my opinion for that of the
court.”
[17]
The Minister went on to note
that when determining whether evidence is new and significant the Minister
traditionally looks to the test developed by appellate courts in assessing the
admissibility of fresh evidence on appeal, citing Palmer and Palmer v. The
Queen, [1980] 1 S.C.R. 759, (1979), 50 C.C.C. (2d) 193. The
Minister set out the four relevant factors applied by appellate courts, of
which the Minister said the most important factor was that the new evidence, if
believed, could reasonably have affected the verdict.
[18]
Ultimately, the Minister
concluded as follows:
I have carefully
reviewed all the evidence tendered at your client’s trial as well as the findings
of fact by the trial judge that are not disturbed by any findings in relation
to whether an accelerant was used to start the fire that killed the victim. I
am mindful that in exercising my discretion I must consider all information
that I consider to be relevant. With this in mind, I refer to several specific
findings of the trial judge that:
• Corrine Walchuk was left dead or dying at
the bottom [of] the basement stairs, having been beaten by Leon Walchuk to a
point where she was either unconscious or in any event unable to escape the
fire as a result of her injuries.
• Mr. Walchuk did not immediately tell anyone
including the firefighters on site that the victim was trapped in the basement
of the house.
• Mr. Walchuk hid personal items outside of the
farmhouse, none of which would have been of interest to the victim.
• Hiding items is a frequent pre-arson
activity that suggests that Mr. Walchuk was planning to set the fire.
• Mr. Walchuk had plans, but no money, for a new home.
• During his conversation with an undercover
officer while in lock-up, Mr. Walchuk stated on four occasions that the
farmhouse should have “gone up” and, had it done so, evidence of the nature of
the victim’s death would have been far less clear than it was.
• The night of the victim’s death was the
first time the children were not ready for pick-up.
• There was no doubt that Mr. Walchuk had made
serious threats towards the victim.
• In order to ensure that the victim would be
alone and more vulnerable when picking up the children, Mr. Walchuk made it
clear that no one else was welcome on his property.
• The impending divorce trial and property
division that was at stake may have been the motive for the victim’s murder.
The judge also concluded that he had no reasonable doubt that
your client had intentionally started the fire that caused the victim’s death,
that his severe beating of the victim was a principal factor in her death, and
that he had formed the intent to kill her.
…
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:
the trial judge’s findings that the beating he administered to her was a
principal factor in her death; that he left her in a burning building incapable
of leaving on her own; and that he failed to immediately notify anyone of the
victim’s presence in the home while the firefighters were attempting to
extinguish the fire.
While it may now be impossible to establish conclusively
the origins of the fire, there were many findings of fact by the trial judge
that point to Mr. Walchuk’s guilt that are not disturbed by the Saskatchewan
Court of Appeal; nor do the conclusions of any of the reports touch the core of
those findings. 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.
Thus I conclude that while the new expert reports cast
doubt on whether an accelerant was used to start the fire, there is sufficient
remaining evidence that points to Mr. Walchuk intentionally killing the victim.
Given this remaining evidence, I am not satisfied that there is a reasonable
basis to conclude that a miscarriage of justice likely occurred in your
client’s case and, under the circumstances, I should not exercise my discretion
and grant the extraordinary remedy sought.
III.
The Decision of the Federal
Court
[19]
After setting out the background
facts, the Judge concluded that the standard of review to be applied to the
Minister’s decision was reasonableness (reasons of the Judge at paragraph 21).
[20]
The Judge then considered
whether the Minister’s interpretation of what constitutes a miscarriage of
justice was reasonable. He found that the Minister’s implied interpretation of
that phrase was whether the appellant would have been convicted notwithstanding
the new expert evidence; the Judge found this interpretation to be reasonable
(reasons of the Judge at paragraph 24).
[21]
The Judge next considered
whether the Minister’s decision was reasonable. In his view, none of the new
expert reports concluded that the fire was accidentally set, or precluded the
possibility that Mr. Walchuk had set the fire some other way. As the Judge
stated, “[t]he 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” (reasons of the Judge at paragraph 38). In the result, the Judge
dismissed the application for judicial review.
IV.
The Issues
[22]
In our view, the issues to
be determined on this appeal are:
i.
What is the standard of
appellate review to be applied to the decision of the Federal Court?
ii.
What is the standard of
review to be applied to the decision of the Minister?
iii.
Applying the proper standard
of review, should the Minister’s decision be set aside?
V.
The Standard of Appellate
Review
[23]
The law in this respect is
well-settled: did the Federal Court select the appropriate standard of review
and apply it correctly? This requires the reviewing court to “step into the shoes” of the lower court so to focus
on the administrative decision at issue (Agraira v. Canada (Public Safety
and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paragraphs
45 and 46).
VI.
The Standard of Review to be
Applied to the Minister’s Decision
[24]
Counsel for Mr. Walchuk
concede that the standard of review to be applied to the Minister’s decision as
a whole is reasonableness. However, they argue that a pure question of law is
embedded in the decision: what constitutes a
“reasonable basis to conclude that a miscarriage of justice likely occurred”?
This extricable question is said to be reviewable on the standard of
correctness.
[25]
The Judge rejected this
submission (reasons of the Judge at paragraph 21). In our view, he was correct
to do so. The Judge reasoned that in Agraira the Supreme Court rejected
the bifurcated standard of review proposed by the appellant.
[26]
Before us, counsel for Mr.
Walchuk argue that Agraira is distinguishable because there a completely
different context was before the court: the question involved the meaning of “national interest”. This required the relevant
Minister to assess public policy and exercise discretion. Counsel for Mr.
Walchuk argue that in our case the Minister is to embark “on a single legal and forensic inquiry”. Further,
relief from statutory inadmissibility, the issue in Agraira, is a
privilege, whereas an application under section 696.1 and its consideration by
the Minister is a right. Finally, counsel argued that the Minister of
Citizenship and Immigration is responsible for the administration of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 in a way that the Minister of
Justice is not responsible under the Criminal Code.
[27]
In our view, Agraira
is not distinguishable for the following reasons.
[28]
First, there is nothing in Agraira
to suggest that the Supreme Court intended to confine its reasons to the
particular context before it.
[29]
Second, we do not agree that
the Minister was faced with an extricable question of law that he was obliged
to answer correctly. The Minister was required to consider whether he was “satisfied that there is a reasonable basis to conclude that
a miscarriage of justice likely occurred” (subsection 696.3(3) of
the Criminal Code), a matter involving an inseparable mix of facts and
law. In making this decision pursuant to section 696.4, the Minister was
required to take into account “all matters the Minister considers relevant”
including, as pertinent to the facts of this case:
i.
whether the application is
supported by new matters of significance that were not considered by the
courts;
ii.
the relevance and
reliability of the information presented in connection with the application;
and
iii.
an application under section
696.1 is not intended to serve as a further appeal and any remedy available on
such an application is an extraordinary remedy.
[30]
The language of this
legislative scheme does not suggest that the Minister was faced with an
extricable question of law that had to be answered correctly. As stated by this
Court in Farwaha v. Canada (Minister of Transport, Infrastructure and
Communities), 2014 FCA 56, 455 N.R. 157 at paragraph 81 (albeit in a
different statutory context), to find an extricable question of law would
amount to an artificial and unacceptable parsing of the Minister’s task.
[31]
The Judge was of the view
that the Minister’s decision as a whole was reviewable on the standard of
reasonableness. In our view, he was correct although the governing authority
was not cited by him. That authority is the decision of this Court in Daoulov
v. Canada (Attorney General), 2009 FCA 12, 388 N.R. 54 at paragraph 11.
VII.
The margin of appreciation
we should afford to the Minister
[32]
Under reasonableness review,
the range of acceptable and defensible
outcomes available to the Minister – or the margin of appreciation we should
afford to him – depends on “all relevant factors” surrounding the decision-making: Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1
S.C.R. 5 at paragraphs 17-18 and 23 and Halifax (Regional
Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364 at paragraph 44. In McLean v. British Columbia
(Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895 at paragraph 38,
Justice Moldaver noted that in the context of statutory interpretation, the
range of reasonable outcomes can sometimes be limited to a single outcome, i.e.,
no margin of appreciation at all.
[33]
Certain factors can shed
light on the margin of appreciation: Farwaha, above at paragraphs 90-92.
In the context of this particular decision, there are factors narrowing the
margin of appreciation:
i.
the importance of the
decision to Mr. Walchuk;
ii.
the importance to the
criminal justice system of what has been called the
final safety net for those who are the victims of wrongful conviction.
Any wrongful conviction undermines public confidence in the justice system; and
iii.
the terms of the relevant
sections in Part XXI.1 of the Criminal Code and associated settled law
constrain the Minister’s discretion (see paragraph 56, below). This is not a
discretionary decision based on policy.
[34]
Although these are narrowing
factors, the Minister will often be entitled to leeway. In the context of the
weighing and assessment of the evidence, the words “satisfied,”
“reasonable,” “likely”
and “extraordinary” appear in paragraphs
696.3(3)(a) and 696.4(c) – words admitting of some subjectivity
and impression. This is buttressed by the strong privative clause declaring
that the Minister’s decision is “final” and “not subject to appeal”: Criminal Code,
subsection 696.3(4).
[35]
In the end, we do not
believe the result of this particular appeal turns on the margin of
appreciation we give to the Minister. For argument’s sake, we will review the
Minister’s decision on a strict basis, granting him no margin of appreciation.
Even on an exacting basis, there are no grounds to set aside the Minister’s
decision.
VIII.
Reasonableness Review of the
Minister’s Decision
(1) Preliminary considerations
[36]
We shall proceed on the
basis that under section 396.3 of the Criminal Code, the Minister would
have to find a “miscarriage of justice” if
credible evidence is established that could reasonably be expected to have
affected the verdict at trial: Reference re Milgaard (Can.), [1992] 1
S.C.R. 866, 90 D.L.R. (4th) 1. We express no other comment on the meaning of “miscarriage of justice” under this section.
(2) The requirements for second
degree murder
[37]
Second degree murder has
three essential elements, each of which must be proven beyond a reasonable
doubt:
(a)
Mr. Walchuk caused Mrs.
Walchuk’s death. For an act or
omission to cause someone’s death, it must be at least a significant
contributing cause, one that is beyond something that is trifling or minor in
nature. There must not be anything that somebody else does later that
results in Mr. Walchuk’s act or omission no longer being a contributing cause
of Mrs. Walchuk’s death. See generally R. v. Maybin, 2012 SCC 24, [2012]
2 S.C.R. 30; R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488; R. v.
Harbottle, [1993] 3 S.C.R. 306, 84 C.C.C. (3d) 1; R. v. Smithers,
[1978] 1 S.C.R. 506.
(b)
Mr. Walchuk caused Mrs.
Walchuk’s death unlawfully. In
considering this, one should consider all the circumstances of Mr. Walchuk’s
conduct, including the nature of the act alleged, and anything said at or about
the same time.
(c)
Mr. Walchuk had the state
of mind required for murder. Key
to a conviction for murder is subjective mens rea: R. v. Martineau,
[1990] 2 S.C.R. 633, 58 C.C.C. (3d) 353. Specifically, it must be shown that
Mr. Walchuk meant either to kill Mrs. Walchuk or to cause her bodily harm that
Mr. Walchuk knew was likely to kill her, and he was reckless whether she died
or not: Criminal Code, paragraph 229(a); R. v. Cooper,
[1993] 1 S.C.R. 146, 78 C.C.C. (3d) 289. The Crown does not have to prove both.
One is enough. If the foregoing elements are present but the Crown has failed
to prove either mental state, Mr. Walchuk committed manslaughter.
(3)
Assessing
whether the requirements were met
[38]
As mentioned above, three
expert reports were tendered as fresh evidence to the Minister and the Minister
considered them. They state that Mr. Walchuk did not set the fire using an
accelerant in the manner posited by the Crown and accepted by the trial judge.
We shall assume that that is true. We shall go even further and assume for the
moment that they conclusively prove that Mr. Walchuk did not set the fire
in any way.
[39]
At trial, the theory of
counsel for Mr. Walchuk was that Mrs. Walchuk, in anger, crashed her car into
the porch of the house and that is how the fire started: reasons of the Judge
at paragraph 30. We shall also make the assumption – favourable to Mr. Walchuk
– that that is exactly what happened.
[40]
In our view, there is more
than enough to support the Minister’s conclusion that a miscarriage of justice
had not likely occurred. We shall examine each of the elements of the offence
of second degree murder and how they pertain to Mr. Walchuk’s case.
(a)
Mr. Walchuk caused Mrs.
Walchuk’s death
[41]
The evidence – much of it
admitted by Mr. Walchuk – shows that he factually and legally caused Mrs.
Walchuk’s death. He beat her with a
hockey stick so forcefully that the shaft of the stick broke, leaving her
incapacitated or unconscious in the basement of the burning house: reasons of
the Judge at paragraphs 20 and 25. Her injuries, described in more detail
below, were most severe. Left untreated, they may have ultimately led to her
death: reasons of the Judge at paragraph 14; Appeal Book at pages
332-333 (autopsy report). But, in the end, she died from carbon monoxide
poisoning from the fire: reasons of the Judge at paragraph 14.
[42]
Mr. Walchuk’s act of beating
Mrs. Walchuk in the burning house to the point of incapacitation or
unconsciousness left her unable to escape, exposing her to lethal carbon
monoxide fumes. But for Mr. Walchuk’s act, Mrs. Walchuk could have escaped the
fire and survived. Mr. Walchuk’s act set in motion a series of events that led
to her death. His act was a “principal factor in her death”: reasons of the
Judge at paragraph 41. The first element of the offence of second degree murder
is present.
[43]
Indeed, this case resembles
three other homicide cases where causation has been found:
•
R. v. Sinclair et al., 2009 MBCA 71, 245 C.C.C. (3d) 331, rev’d on a
different point, 2011 SCC 40, [2011] 3 S.C.R. 3. Three accused beat the victim
and left him incapacitated in the middle of a road. Ten minutes later, a car
ran him over, killing him. Was the car a new intervening cause that broke the
chain of causation such that the accused could not be found guilty? No. But for
the beating of the victim and his vulnerable location in the middle of the
road, he would not have died.
•
R. v. Hallett, [1969] S.A.S.R. 141 (S. Aust. S.C.), cited
with approval by the Supreme Court of Canada in Maybin, Nette,
and Harbottle, all above. The accused beat the victim and left him
unconscious at the edge of the sea. The tide rose and he drowned. Here, as in Sinclair,
the accused’s conduct was a sufficient cause of death. But for the beating of
the victim to unconsciousness at the edge of the sea, he would not have died.
•
Maybin, above. In a bar, the two accused repeatedly
punched the victim in the face and head, leaving him unconscious. Seconds
later, reacting to the commotion, a bouncer naturally arrived on the scene to
restore order. He punched the victim, who died soon afterward. The Supreme
Court of Canada held that the accuseds’ punches were either the direct cause of
death or they rendered the victim vulnerable to the bouncer’s intervention that
resulted in death. In short, but for the accuseds’ actions, the victim would
not have died.
(b)
Mr. Walchuk caused Mrs.
Walchuk’s death unlawfully
[44]
Before the Minister, it does
not seem to have been disputed that Mr. Walchuk committed an unlawful act, a
brutal assault, in causing Mrs. Walchuk’s death. Rather, Mr. Walchuk contends
that, at most, he should have been convicted for manslaughter because he did
not have the mental state, or mens rea, of murder.
[45]
We now turn to that issue.
In doing so, the assumptions favourable to Mr. Walchuk continue to apply.
(c)
Mr. Walchuk had the state of
mind required for murder
[46]
After the car crashed into
the porch but before he went into the house, Mr. Walchuk saw sparks and fire
coming from a wire leading to the porch: Appeal Book at pages 619 and 624
(transcript of evidence). This is consistent with one of the new experts’ view
that the car or the electrical apparatus in the porch area damaged by the car
started the fire: Appeal Book at page 420. Despite the sparks and fire, Mr.
Walchuk followed Mrs. Walchuk downstairs into the basement and beat her
savagely.
[47]
There is plenty of evidence
showing that Mr. Walchuk meant either to kill Mrs. Walchuk or meant to cause
her bodily harm that Mr. Walchuk knew was likely to kill her. The evidence is
circumstantial. But intention can be found from the totality of the
circumstances, both specific and general, from acts, words and motives: see, e.g.,
R. v. K.(A.) (2002), 169 C.C.C. (3d) 313 (Ont. C.A.); R. v. MacDonald,
2008 ONCA 572, 92 O.R. (3d) 180; R. v. Bigras, 2004 CanLII 21267; R.
v. Bouchard, 2013 ONCA 791, 314 O.A.C. 113 at paragraphs 47-53; R. v.
Dahr, 2012 ONCA 433, 294 O.A.C. 301 at paragraphs 13-14. The totality of
the circumstances includes the following:
•
Mr. and Mrs. Walchuk were
embroiled in a bitter divorce, with an acrimonious dispute over property and
support: reasons of the Judge at paragraphs 2, 3 and 39; Appeal Book at pages
629 and 655-656 (transcript of evidence);
•
at the time of Mrs.
Walchuk’s death, a court hearing to determine that dispute was to be held in a
couple of weeks: reasons of the Judge at paragraphs 2, 3 and 39;
•
Mr. Walchuk had made
numerous death threats against his wife, some of which were recorded on a tape
recorder found beside her body: reasons of the Judge at paragraphs 35 and 36;
Appeal Book at page 656 (transcript of evidence);
•
on previous occasions when
Mrs. Walchuk was to receive the children into her care, she would pick them up
at 19:00 from the house and they would be ready; unusually, on the day Mrs.
Walchuk was killed, Mr. Walchuk was with the children at his mother’s house at
18:30; at 19:00, he arrived at the house to meet Mrs. Walchuk but the children
were not with him: reasons of the Judge at paragraphs 4-5 and 34; Appeal Book,
pages 493 and 498 (Investigation Report) and pages 652-655, 662 and 664-665
(transcript of evidence);
•
Mr. Walchuk took steps to
ensure that on the day of the killing Mrs. Walchuk’s father, who visited the
house regularly, was not there; similarly, he took steps to ensure that a best
friend and cousin of Mrs. Walchuk, who normally accompanied Mrs. Walchuk to
pick up the children, was not there: reasons of the Judge at paragraphs 37 and
38;
•
as for what took place in
the basement of the burning house, Mr. Walchuk later admitted, “I just kept hitting her”: reasons of the Judge at
paragraph 20; that admission and the severity of Mrs. Walchuk’s wounds tend to
show an intention not just to hurt, but to kill;
•
the beating was “without mercy”; Mrs. Walchuk suffered “severe craniocerebral injury,” “diffuse hemorrhagic cerebral damage,” injuries
suggestive of an “unleashing of hostile, aggressive
impulses by the assailant,” “significant blood
loss,” “subdural hematoma,” “subarachroid
hemorrhage,” and “intra-cerebral bleeding
including brain stem hemorrhages” and an exposed skull; these would have
led to “a rapid loss of consciousness” and “without any other injuries and/or trauma, were potentially
fatal”: reasons of the Judge at paragraphs 14 and 25; Appeal Book, page
333 (autopsy report);
•
the severe injuries would
have “rendered the victim pregnable to fire” and
it was “likely” that Mr. Walchuk’s beating left
her “unconscious at the time of the conflagration”:
reasons of the Judge at paragraphs 14, 15 and 25;
•
having escaped the burning
house, Mr. Walchuk was only mildly injured and, it can be inferred, could
capably and knowingly interact with those who arrived on the scene: reasons of
the Judge at paragraphs 22 and 28;
•
when reporting the fire to
his mother, Mr. Walchuk did not advise that his wife was unconscious and
trapped in the basement: reasons of the Judge at paragraphs 7 and 26;
•
when three neighbours
arrived soon after the incident, Mr. Walchuk did not tell them his wife was
unconscious in the basement: reasons of the Judge at paragraphs 7-10 and
26;
•
when one of the neighbours
asked where Mrs. Walchuk was, Mr. Walchuk replied that he did not know: reasons
of the Judge at paragraph 9; Appeal Book, page 493 (Investigation Report);
•
when his daughter expressed
concern about her cat, Mr. Walchuk assured her the cat was out of the house and
safe but he did not tell her that her mother was unconscious in the basement:
reasons of the Judge at paragraphs 26 and 27; and
•
only after the house was
fully engulfed in flames – well after the porch first caught on fire, ten
minutes after the neighbours arrived, and fifteen minutes after Mr. Walchuk had
spoken to his mother – did he tell anyone that his wife was in the basement:
reasons of the Judge at paragraph 10.
[48]
We note that these
circumstances are far stronger than cases such as K.(A.) and MacDonald,
both above, where the evidence was sufficient to establish the state of mind
for murder. They are also quite similar to Bigras, above, where the
accused created an opportunity to beat the victim, the accused beat the victim
senseless, and then the victim was left immobile in circumstances where death
was a real risk.
[49]
If we relax the assumption
that the car started the fire when Mrs. Walchuk crashed it into the house,
there is additional evidence that Mr. Walchuk intended to kill. Relaxing the
assumption is warranted, as the new experts’ reports disproved only the theory
that Mr. Walchuk used an accelerant to set fire to the house. The reports leave
open the possibility that Mr. Walchuk still set fire to the house in some other
way, perhaps using matches, perhaps crashing Mrs. Walchuk’s car into the porch.
Here is the additional evidence:
•
Mrs. Walchuk, a minimum wage
earner, would not likely have crashed her only car into the house: reasons of
the Judge at paragraph 30;
•
when two neighbours arrived
at Mr. Walchuk’s farm and noticed a slight injury to his forehead, Mr. Walchuk
said that he hit his head while driving a car: reasons of the Judge at
paragraph 8;
•
Mr. Walchuk came to the
house with a book of matches from his wedding ten years ago in his pocket and,
after the fire, three matches were missing: Appeal Book, pages 640 and 665
(transcript of evidence); reasons of the Judge at paragraph 18;
•
before the incident, Mr.
Walchuk had secreted certain items from the house before the fire – items with
sentimental value only to him – a behaviour common to many arsonists: reasons
of the Judge at paragraphs 17 and 29; and
•
before the incident, he also
removed his son’s all terrain vehicle from the porch and secreted it in the
barn, he left the propane tank on the porch; the car ended up crashing into the
porch; later, four times in jail, Mr. Walchuk told an undercover police officer
posing as his cell mate that the house “should have all
gone up; what with a barbeque, gasoline, gas in an antifreeze container, I
can’t figure out why it didn’t”; had it exploded, evidence as to the
nature of Mrs. Walchuk’s death would have been less clear: reasons of the Judge
at paragraph 33; Appeal Book, page 496 (Investigation Report) and pages 619,
623-624, 630 and 634 (transcript of evidence).
IX.
The Reasons of the Trial
Court
[50]
Mr. Walchuk places
considerable emphasis on the reasons of the trial judge. On a construction of
those reasons, he notes that the Judge seemed to emphasize the incendiary
nature of the fire in finding that Mr. Walchuk had the intention to murder. In
Mr. Walchuk’s view, if the fire were not incendiary, the basis for a finding
that he had an intention to kill falls away.
[51]
We disagree with this
submission for the following reasons.
[52]
First, in our view, reasons
for judgment of a trial judge in a criminal matter should not be seen as an
expression of everything the judge was thinking about the facts and law in the
case. When drafting reasons, a trial judge need not be encyclopaedic. Reasons
need not “set out every finding or conclusion in the
process of arriving at the verdict,” “describe
every landmark along the way,” or “verbaliz[e]…the
entire process engaged in by the trial judge in reaching a verdict”: R.
v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at paragraphs 18 and 35; R. v.
Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at
paragraph 30; R. v. Morrissey (1995),
22 O.R. (3d) 514 at page 525, 138 C.R. (4th) 4 (C.A.). In his reasons,
the Judge did emphasize the incendiary nature of the fire in support of his
conclusion that Mr. Walchuk intended to murder his wife. But to the extent that
the new evidence shows that the fire was non-incendiary, that does not
necessarily mean that the conviction is unsafe and there has been a miscarriage
of justice.
[53]
Second, the proviso in
subparagraph 686(1)(b)(iii) offers us some guidance. It allows an appeal
court to maintain a trial decision where no “substantial
wrong or miscarriage of justice” has occurred. For example, it may be
that a trial judge, in convicting an accused, has improperly ruled against the
accused on the admissibility of some evidence. But if, upon a review of all of
the other evidence, there is no reasonable possibility that the verdict would
have been different had the error not been made, the conviction will be upheld
under the proviso: R. v. Bevan, [1993] 2 S.C.R. 599, 82 C.C.C. (3d) 310;
R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823.
[54]
Here, as we have
demonstrated, if Mr. Walchuk’s possible involvement in the fire is disregarded
and if one reads the Judge’s reasons organically and contextually alongside the
record – as we must (see R.E.M., above at paragraphs 16-17) – one must
conclude that there is no reasonable possibility that the verdict would have
been different: see, in particular, the summary of evidence at paragraphs 38-49
above; see also the Judge’s explicit consideration of some of that evidence at
paragraphs 38-39 and 41 of his reasons. One cannot be “satisfied”
that it is “likely” that there has been a
miscarriage of justice – one of the statutory standards under paragraph
696.3(3)(a) that must be met in order for the Minister to grant relief.
[55]
Further, the Minister’s task
is not to act like an appellate court sitting over what earlier courts have
done or to stand in the trial judge’s shoes and re-do the fact-finding: Criminal
Code, paragraph 696.4(c). Nor is the Minister’s task as simple as
blue-pencilling any unsustainable portions of the trial judge’s reasons and
examining what is left in the trial judge’s reasons. The Minister’s proper task
is larger.
[56]
What is the Minister’s task?
In our view, in order to make a decision that passes muster under reasonableness
review, the Minister must examine the trial judge’s reasons, all of the
evidence (both helpful and unhelpful to the applicant), any admissible fresh
evidence, and any other new evidence, advice and insights obtained by using the
department’s resources and the Minister’s investigatory powers under section
696.2 of the Criminal Code. Then, following the recipe and standards set
out in section 696.3 and 696.4 and the relevant Regulations and acting in a
procedurally fair manner, the Minister must reach conclusions that are
acceptable and defensible on the facts and the law. In doing all this, the
Minister must single-mindedly focus on the administration of justice as a true
minister of justice, putting aside any pre-conceived views or partisanship: Boucher
v. The Queen, [1955] S.C.R. 16, 110 C.C.C. 263.
X.
Conclusion
[57]
In this case, much of the
record before the Minister was prepared on his own initiative. There is no
suggestion it is inadequate to the task at hand. Overall, its tone is
appropriate and its substance is fair. The Minister’s reasons show that he
followed the correct methodology in carrying out his task, especially when his
reasons are viewed in the context of this record. The outcome reached – the
dismissal of Mr. Walchuk’s application under section 696.1 of the Criminal
Code – was acceptable and defensible based on this record. Therefore, the
Minister’s decision was reasonable.
XI.
Proposed disposition
[58]
For all the foregoing
reasons, we would dismiss Mr. Walchuk’s appeal. In these circumstances, we would
exercise our discretion on costs as the Federal Court did. Therefore, we would
not award costs.
"Eleanor R. Dawson"
"David Stratas"
“I agree
D.G. Near J.A.”
APPENDIX
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696.1 (1)
An application for ministerial review on the grounds of miscarriage of
justice may be made to the Minister of Justice by or on behalf of a person
who has been convicted of an offence under an Act of Parliament or a
regulation made under an Act of Parliament or has been found to be a
dangerous offender or a long-term offender under Part XXIV and whose rights
of judicial review or appeal with respect to the conviction or finding have
been exhausted.
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696.1 (1) Une demande de révision auprès du
ministre au motif qu’une erreur judiciaire aurait été commise peut être
présentée au ministre de la Justice par ou pour une personne qui a été
condamnée pour une infraction à une loi fédérale ou à ses règlements ou qui a
été déclarée délinquant dangereux ou délinquant à contrôler en application de
la partie XXIV, si toutes les voies de recours relativement à la condamnation
ou à la déclaration ont été épuisées.
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(2) The application must be in the form, contain the information and
be accompanied by any documents prescribed by the regulations.
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(2) La demande est présentée en la forme réglementaire, comporte les
renseignements réglementaires et est accompagnée des documents prévus par
règlement.
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696.2 (1)
On receipt of an application under this Part, the Minister of Justice shall
review it in accordance with the regulations.
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696.2 (1) Sur réception d’une demande présentée
sous le régime de la présente partie, le ministre de la Justice l’examine
conformément aux règlements.
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(2) For the purpose of any investigation in relation to an application
under this Part, the Minister of Justice has and may exercise the powers of a
commissioner under Part I of the Inquiries Act and the powers that may be
conferred on a commissioner under section 11 of that Act.
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(2) Dans le cadre d’une enquête relative à une demande présentée sous
le régime de la présente partie, le ministre de la Justice possède tous les
pouvoirs accordés à un commissaire en vertu de la partie I de la Loi sur les
enquêtes et ceux qui peuvent lui être accordés en vertu de l’article 11 de
cette loi.
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(3) Despite subsection 11(3) of the Inquiries Act, the Minister of
Justice may delegate in writing to any member in good standing of the bar of
a province, retired judge or any other individual who, in the opinion of the
Minister, has similar background or experience the powers of the Minister to
take evidence, issue subpoenas, enforce the attendance of witnesses, compel
them to give evidence and otherwise conduct an investigation under subsection
(2).
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(3) Malgré le paragraphe 11(3) de la Loi sur les enquêtes, le ministre
de la Justice peut déléguer par écrit à tout membre en règle du barreau d’une
province, juge à la retraite, ou tout autre individu qui, de l’avis du
ministre, possède une formation ou une expérience similaires ses pouvoirs en
ce qui touche le recueil de témoignages, la délivrance des assignations, la
contrainte à comparution et à déposition et, de façon générale, la conduite
de l’enquête visée au paragraphe (2).
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696.3 (1)
In this section, “the court of appeal” means the court of appeal, as defined
by the definition “court of appeal” in section 2, for the province in which
the person to whom an application under this Part relates was tried.
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696.3 (1) Dans le présent article, « cour d’appel »
s’entend de la cour d’appel, au sens de l’article 2, de la province où a été
instruite l’affaire pour laquelle une demande est présentée sous le régime de
la présente partie.
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(2) The Minister of Justice may, at any time, refer to the court of
appeal, for its opinion, any question in relation to an application under
this Part on which the Minister desires the assistance of that court, and the
court shall furnish its opinion accordingly.
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(2) The Minister of Justice may, at any time, refer to the court of
appeal, for its opinion, any question in relation to an application under
this Part on which the Minister desires the assistance of that court, and the
court shall furnish its opinion accordingly.
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(3) On an application under this Part, the Minister of Justice may
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(3) Le ministre de la Justice peut, à l’égard d’une demande présentée
sous le régime de la présente partie :
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(a) if the Minister is satisfied that there is a reasonable
basis to conclude that a miscarriage of justice likely occurred,
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a) s’il est convaincu qu’il y a des motifs
raisonnables de conclure qu’une erreur judiciaire s’est probablement produite
:
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(i) direct, by order in writing, a new trial before any court that the
Minister thinks proper or, in the case of a person found to be a dangerous
offender or a long-term offender under Part XXIV, a new hearing under that
Part, or
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(i) prescrire, au moyen d’une ordonnance écrite, un nouveau procès
devant tout tribunal qu’il juge approprié ou, dans le cas d’une personne
déclarée délinquant dangereux ou délinquant à contrôler en vertu de la partie
XXIV, une nouvelle audition en vertu de cette partie,
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(ii) refer the matter at any time to the court of appeal for hearing
and determination by that court as if it were an appeal by the convicted
person or the person found to be a dangerous offender or a long-term offender
under Part XXIV, as the case may be; or
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(ii) à tout moment, renvoyer la cause devant la cour d’appel pour
audition et décision comme s’il s’agissait d’un appel interjeté par la
personne déclarée coupable ou par la personne déclarée délinquant dangereux
ou délinquant à contrôler en vertu de la partie XXIV, selon le cas;
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(b) dismiss the application.
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b) rejeter la demande.
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(4) A decision of the Minister of Justice made under subsection (3) is
final and is not subject to appeal.
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(4) La décision du ministre de la Justice prise en vertu du
paragraphe (3) est sans appel.
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696.4 In
making a decision under subsection 696.3(3), the Minister of Justice shall
take into account all matters that the Minister considers relevant, including
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696.4 Lorsqu’il rend sa décision en vertu du
paragraphe 696.3(3), le ministre de la Justice prend en compte tous les
éléments qu’il estime se rapporter à la demande, notamment :
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(a) whether the application is supported by new matters of
significance that were not considered by the courts or previously considered
by the Minister in an application in relation to the same conviction or
finding under Part XXIV;
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a) la question de savoir si la demande repose
sur de nouvelles questions importantes qui n’ont pas été étudiées par les
tribunaux ou prises en considération par le ministre dans une demande
précédente concernant la même condamnation ou la déclaration en vertu de la
partie XXIV;
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(b) the relevance and reliability of information that is
presented in connection with the application; and
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b) la pertinence et la fiabilité des
renseignements présentés relativement à la demande;
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(c) the fact that an application under this Part is not
intended to serve as a further appeal and any remedy available on such an
application is an extraordinary remedy.
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c) le fait que la demande présentée sous le
régime de la présente partie ne doit pas tenir lieu d’appel ultérieur et les
mesures de redressement prévues sont des recours extraordinaires.
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696.5 The
Minister of Justice shall within six months after the end of each financial
year submit an annual report to Parliament in relation to applications under
this Part.
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696.5 Dans les six mois suivant la fin de chaque
exercice, le ministre de la Justice présente au Parlement un rapport sur les
demandes présentées sous le régime de la présente partie.
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696.6 The
Governor in Council may make regulations
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696.6 Le gouverneur en conseil peut prendre des
règlements :
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(a) prescribing the form of, the information required to be
contained in and any documents that must accompany an application under this
Part;
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a) concernant la forme et le contenu de la
demande présentée en vertu de la présente partie et les documents qui doivent
l’accompagner;
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(b) prescribing the process of review in relation to
applications under this Part, which may include the following stages, namely,
preliminary assessment, investigation, reporting on investigation and
decision; and
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b) décrivant le processus d’instruction d’une
demande présentée sous le régime de la présente partie, notamment les étapes
suivantes : l’évaluation préliminaire, l’enquête, le sommaire d’enquête et la
décision;
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(c) respecting the form and content of the annual report under
section 696.5.
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c) concernant la forme et le contenu du rapport
annuel visé à l’article 696.5.
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