Federal Court


No possibility that trier of fact would not convict accused of second degree murder

Application for judicial review of decision of Minister of Justice denying accused’s request for ministerial review of second-degree murder conviction under s. 696.1(1) of Criminal Code. In 2000, accused was convicted of second degree murder of his wife and sentenced to life in prison with no chance of parole for 16 years. At time of her death they had been separated for four years and were in midst of acrimonious divorce proceedings. Wife died from smoke inhalation after matrimonial home set afire, but she had also suffered severe brain injuries caused by accused beating her with hockey stick. Trial judge adopted prosecution’s theory that accused had severely beaten victim, left her in basement, poured gasoline in house and ignited it with a match, intentionally killing her. Trial judge agreed accelerant was present, and that electrical fire as result of car crash was not cause of fire. At trial, one expert witness testified accelerant was used to start fire; two others testified that electrical source or vehicle fire was not cause of fire. Other circumstantial evidence pointed towards accused’s guilt. Accused’s conviction was upheld on appeal. In 2009, accused submitted application to Minister pursuant to s. 696.1 of Code, including three reports by fire and arson experts contradicting Crown opinion evidence at trial. Minister dismissed application, acknowledging reports “questioned” expert conclusions, but noting remedy under 696.1 extraordinary. Even if fire not started by accelerant, there was sufficient circumstantial evidence for trial judge to determine accused intended to kill victim. Minister’s implied interpretation of “miscarriage of justice”, which focused on whether accused would have been convicted notwithstanding new expert evidence, was reasonable. It was within range of acceptable outcomes that Minister would conclude there was no possibility that trier of fact would not convict accused of second degree murder. Application dismissed.

Walchuk v. Canada (Minister of Justice) (Sep. 17, 2013, F.C., Michael D. Manson J., File No. T-457-12) 109 W.C.B. (2d) 525.

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