Walchuk v. Canada (Minister of Justice), (2015) 469 N.R. 360 (FCA)

• Judge: Dawson, Stratas and Near, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: October 15, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2015), 469 N.R. 360 (FCA);2015 FCA 85

Walchuk v. Can. (2015), 469 N.R. 360 (FCA)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2015] N.R. TBEd. AP.005

Leon Walchuk (appellant) v. Canada (Minister of Justice) (respondent)

(A-351-13; 2015 FCA 85; 2015 CAF 85)

Indexed As: Walchuk v. Canada (Minister of Justice)

Federal Court of Appeal

Dawson, Stratas and Near, JJ.A.

April 7, 2015.

Summary:

In 2000, Walchuk was convicted of the second degree murder of his wife. The conviction was upheld. He was sentenced to life in prison with no chance of parole for 16 years. In 2011, Walchuk's application under s. 696.1(1) of the Criminal Code for ministerial review of his conviction was dismissed. He applied for judicial review.

The Federal Court, in a decision reported at (2013), 439 F.T.R. 166, dismissed the application. Walchuk appealed.

The Federal Court of Appeal dismissed the appeal.

Criminal Law - Topic 1263

Murder - General principles - Intention - Walchuk was convicted of the second degree murder of his wife (the victim) - The trial judge accepted the Crown's theory that Walchuk had severely beaten the victim, left her in the basement, poured gasoline on the stairs and ignited the gasoline, intentionally killing the victim - The trial judge concluded that an accelerant had been used and that the fire had not been started by the victim's car crashing into the house - The conviction was upheld - Walchuk applied under s. 696.1(1) of the Criminal Code for ministerial review, submitting three reports that contradicted the Crown's theory that an accelerant was used and that an electrical fire was not a possibility - The Minister of Justice dismissed the application, indicating that, even if the fire had not been started by an accelerant, there was sufficient circumstantial evidence to support the conviction - Walchuk's application for judicial review was dismissed - The Federal Court of Appeal dismissed Walchuk's appeal - The court rejected Walchuk's assertion that, if the fire was not started by an accelerant, the basis for finding that he had an intention to kill was not there - To the extent that the new evidence showed that the fire was non-incendiary, that did not necessarily mean that the conviction was unsafe and that there had been a miscarriage of justice - Further, the proviso in s. 686(1)(b)(iii) offered guidance in that it allowed an appeal court to maintain a trial decision where no "substantial wrong or miscarriage of justice" had occurred - Here, even if Walchuk's possible involvement in the fire was disregarded and if the trial judge's reasons were read as a whole, there was no reasonable possibility that the verdict would have been different - See paragraphs 50 to 54.

Criminal Law - Topic 1268

Offences against person and reputation - Murder - General principles - Second degree murder - What constitutes - [See Criminal Law - Topic 1263 and first Criminal Law - Topic 5086 ].

Criminal Law - Topic 4681

Procedure - Judgments and reasons for judgment - Reasons for judgment - General principles - The Federal Court of Appeal stated that "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'" - See paragraph 52.

Criminal Law - Topic 5071

Appeals - Indictable offences - Review by Minister of Justice - General - The Federal Court of Appeal discussed the Minister's task on a review under s. 696.1(1) of the Criminal Code - The Minister was 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.... 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.... [I]n 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" - See paragraphs 55 and 56.

Criminal Law - Topic 5086

Appeals - Indictable offences - Review by Minister of Justice - Dismissal of application for - Walchuk was convicted of the second degree murder of his wife (the victim) - The trial judge accepted the Crown's theory that Walchuk had severely beaten the victim, left her in the basement, poured gasoline on the stairs and ignited the gasoline, intentionally killing the victim - The trial judge concluded that an accelerant had been used and that the fire had not been started by the victim's car crashing into the house - The conviction was upheld - Walchuk applied under s. 696.1(1) of the Criminal Code for ministerial review, submitting three reports that contradicted the Crown's theory that an accelerant was used and that an electrical fire was not a possibility - The Minister of Justice dismissed the application, indicating that, even if the fire had not been started by an accelerant, there was sufficient circumstantial evidence to support the conviction - Walchuk's application for judicial review was dismissed - The Federal Court of Appeal dismissed Walchuk's appeal - The Minister's decision was reasonable - Having examined each of the elements of second degree murder and how they pertained to Walchuk's case, the court concluded that there was more than enough to support the Minister's decision that a miscarriage of justice had not likely occurred - See paragraphs 36 to 49.

Criminal Law - Topic 5086

Appeals - Indictable offences - Review by Minister of Justice - Dismissal of application for - [See Criminal Law - Topic 1263 ].

Criminal Law - Topic 5089

Appeals - Indictable offences - Review by Minister of Justice - Judicial review - Walchuk applied under s. 696.1(1) of the Criminal Code for ministerial review of his conviction for second degree murder - The Minister of Justice dismissed the application - Walchuk's application for judicial review was dismissed - On Walchuk's appeal, the Federal Court of Appeal discussed the standard of appellate review, stating, "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" - See paragraph 23.

Criminal Law - Topic 5089

Appeals - Indictable offences - Review by Minister of Justice - Judicial review - Walchuk applied under s. 696.1(1) of the Criminal Code for ministerial review of his conviction for second degree murder - The Minister of Justice dismissed the application - Walchuk's application for judicial review was dismissed - At issue on Walchuk's appeal was the standard of review to be applied to the Minister's decision - Walchuk conceded that the standard of review to be applied to the decision as a whole was reasonableness, but asserted that there was a pure question of law embedded in the decision as to what constituted a "reasonable basis to conclude that a miscarriage of justice likely occurred", which was reviewable on a standard of correctness - The Federal Court of Appeal rejected Walchuk's submission - In making a decision under s. 696.4 of the Criminal Code, the Minister was required to take into account "all matters the Minister considers relevant" - This was an inseparable mix of facts and law - To find an extricable question of law would amount to an artificial and unacceptable parsing of the Minister's task - The decision as a whole was reviewable on a standard of reasonableness - See paragraphs 24 to 31.

Criminal Law - Topic 5089

Appeals - Indictable offences - Review by Minister of Justice - Judicial review - Walchuk applied under s. 696.1(1) of the Criminal Code for ministerial review of his conviction for second degree murder - The Minister of Justice dismissed the application - Walchuk's application for judicial review was dismissed - On Walchuk's appeal, the Federal Court of Appeal discussed the "margin of appreciation" to be afforded to the Minister - On a reasonableness review, the range of acceptable and defensible outcomes available to the Minister (the "margin of appreciation") depended on all of the relevant factors surrounding the decision-making - Factors narrowing the margin here included the importance of the decision to Walchuk and to public confidence in the justice system and the fact that the Minister's decision was constrained by the Code and the settled law - This was not a discretionary decision based on policy - However, the Minister would often be entitled to leeway as words "admitting of some subjectivity and impression" were included in the legislation - This was buttressed by a strong privative clause - Here, the court reviewed the Minister's decision on a strict basis, granting no margin of appreciation - See paragraphs 32 to 35.

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 50 C.C.C.(2d) 193, refd to. [para. 17].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, refd to. [para. 23].

Farwaha v. Canada (Minister of Transport, Infrastructure and Communities) (2014), 455 N.R. 157; 2014 FCA 56, refd to. [para. 30].

Daoulov v. Canada (Attorney General) et al. (2008), 329 F.T.R. 72; 2008 FC 544, refd to. [para. 31].

Catalyst Paper Corp. v. North Cowichan (District), [2012] 1 S.C.R. 5; 425 N.R. 22; 316 B.C.A.C. 1; 537 W.A.C. 1; 2012 SCC 2, refd to. [para. 32].

Halifax (Regional Municipality) v. Human Rights Commission (N.S.) et al., [2012] 1 S.C.R. 364; 428 N.R. 107; 316 N.S.R.(2d) 1; 1002 A.P.R. 1; 2012 SCC 10, refd to. [para. 32].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 32].

Reference Re Milgaard, [1992] 1 S.C.R. 866; 135 N.R. 81; 100 Sask.R. 183; 18 W.A.C. 183, refd to. [para. 36].

R. v. Maybin (M.L.) et al., [2012] 2 S.C.R. 30; 430 N.R. 33; 321 B.C.A.C. 83; 547 W.A.C. 83; 2012 SCC 24, refd to. [para. 37].

R. v. Nette (D.M.), [2001] 3 S.C.R. 488; 277 N.R. 301; 158 B.C.A.C. 98; 258 W.A.C. 98; 2001 SCC 78, refd to. [para. 37].

R. v. Harbottle (J.), [1993] 3 S.C.R. 306; 157 N.R. 349; 66 O.A.C. 35; 84 C.C.C.(3d) 1, refd to. [para. 37].

R. v. Smithers, [1978] 1 S.C.R. 506; 15 N.R. 287, refd to. [para. 37].

R. v. Martineau, [1990] 2 S.C.R. 633; 112 N.R. 83; 109 A.R. 321; 58 C.C.C.(3d) 353, refd to. [para. 37].

R. v. Cooper, [1993] 1 S.C.R. 146; 146 N.R. 367; 103 Nfld. & P.E.I.R. 209; 326 A.P.R. 209; 78 C.C.C.(3d) 289, refd to. [para. 37].

R. v. Sinclair (T.) (2009), 240 Man.R.(2d) 135; 456 W.A.C. 135; 245 C.C.C.(3d) 331; 2009 MBCA 71, revd., [2011] 3 S.C.R. 3; 418 N.R. 282; 268 Man.R.(2d) 225; 520 W.A.C. 225; 2011 SCC 40, refd to. [para. 43].

R. v. Hallett, [1969] S.A.S.R. 141 (S.C.), refd to. [para. 43].

R. v. A.K. (2002), 169 C.C.C.(3d) 313 (Ont. C.A.), refd to. [para. 47].

R. v. MacDonald (P.D.) (2008), 239 O.A.C. 199; 92 O.R.(3d) 180; 2008 ONCA 572, refd to. [para. 47].

R. v. Bigras (E.) et al., [2004] O.A.C. Uned. 426; 2004 CanLII 21267 (C.A.), refd to. [para. 47].

R. v. Bouchard (S.) (2013), 314 O.A.C. 113; 2013 ONCA 791, refd to. [para. 47].

R. v. Dahr (J.) (2012), 294 O.A.C. 301; 2012 ONCA 433, refd to. [para. 47].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 52].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 52].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 22 O.R.(3d) 514; 138 C.R.(4th) 4 (C.A.), refd to. [para. 52].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 53].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 53].

Boucher v. R., [1955] S.C.R. 16; 110 C.C.C. 263, refd to. [para. 56].

Counsel:

Brian Gover and Fredrick Schumann, for the applicant;

Sean Gaudet, for the respondent.

Solicitors of Record:

Stockwoods LLP, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard at Toronto, Ontario, on October 15, 2014, by Dawson, Stratas and Near, JJ.A., of the Federal Court of Appeal. On April 7, 2015, Dawson and Stratas, JJ.A., delivered the following reasons for judgment for the court.