Federal Appeal


Denial of ministerial review of conviction for second degree murder upheld on judicial review and further appeal

Accused appealed judgment dismissing his application for judicial review of denial of ministerial review of conviction for second degree murder of his estranged wife. Accused and his wife had been engaged in bitter divorce proceedings. Accused arrived at house on family farm to pick up their children. Children were not there and fight between parties ensued. Wife’s car was crashed into front porch of house, house caught on fire, and wife was found dead at bottom of basement stairs. Wife had died in fire from carbon monoxide poisoning but she had been beaten severely beforehand. Accused admitted to beating wife with hockey stick. Accused claimed he became aware that porch had caught on fire, perhaps as result of car crashing into it and went upstairs and tried to smother flames with his jacket, but could not smother fire and left. Trial judge found accused severely beat his wife, then left her incapacitated in burning farmhouse, and accused then intentionally set fire. Accused’s application was based upon three new arson experts’ opinions that challenge trial judge’s conclusion that fire was intentionally set with accelerant. All three experts were of view that, contrary to Crown expert’s opinion at trial on which trial judge relied, accelerant was not used to start fire and disagreed with Crown expert’s opinion that cause of fire was not electrical in nature. Criminal Conviction Review Group of Department of Justice retained independent arson expert. That expert agreed with new experts that no accelerant was present. Minister concluded that while new expert reports cast doubt on whether accelerant was used to start fire, there was sufficient remaining evidence that pointed to accused intentionally killing victim. Appeal dismissed. Minister’s decision was reasonable. Decision noted that accused failed to immediately notify anyone of victim’s presence in home while firefighters were attempting to extinguish fire, had lamented fact whole house did not go up and destroy evidence to cell plant, and had made serious threats toward victim. Court made its decision, giving all benefit to accused, and assumed for moment that new expert evidence conclusively proved that accused did not set fire in any way. Evidence, much of it admitted by accused, showed that he factually and legally caused wife’s death. Accused beat wife with hockey stick so forcefully that shaft of stick broke, leaving her incapacitated or unconscious in basement of burning house. Wife’s injuries were severe to such degree she may have died from them without fire intervening.

Walchuk v. Canada (Minister of Justice) (Apr. 7, 2015, F.C.A., Eleanor R. Dawson J.A., David Stratas J.A., and D.G. Near J.A., File No. A-351-13) Decision at 109 W.C.B. (2d) 525 was affirmed.  121 W.C.B. (2d) 56.

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