R v Fedyck: A Question of Evidence
In R v Fedyck, 2019 SCC 3 [Fedyck], the Supreme Court of Canada (“SCC”) convicted a firefighter for theft under $5,000. The case touched on questions of admissible evidence in a criminal trial, but did not satisfactorily answer them. The SCC simply agreed 5-0 with the majority opinion of the Manitoba Court of Appeal (“MBCA”), rather than providing any written reasons of their own. As such, the bulk of this post focuses on the MBCA’s judgment, 2018 MBCA 74 [Fedyck, MBCA]. I discuss the problems of circumstantial evidence and opinion evidence, and why the SCC may have erred in declining to analyze them.
The accused, a firefighter, responded to an “obvious death” call with a team of three other firefighters. They arrived at an apartment to find a deceased elderly woman, and had to quickly exit the apartment because they could not bear the smell. When the firefighters realized that they needed the deceased’s health card information, the accused offered to be the one to go back into the apartment for it. When the other firefighters felt that the accused was taking too long, they became suspicious and went inside to look for him. There, they found the accused with the deceased’s wallet in one hand and health card in the other. The firefighters testified that the accused seemed nervous. One firefighter noticed the accused putting his fire-resistant glove back in his pocket, a glove that the firefighter contended the accused would have not needed for a medical call. The accused continued to do things to make the team suspicious, such as single-handedly packing up the truck afterwards, usually a task shared by the whole team.
The other firefighters checked the truck and found, in the accused’s jacket pockets, about $1,000 in cash and two necklaces (described by the other firefighters as “something [that] an older lady would wear” (Fedyck, MBCA, para 6)). When the firefighters confronted the accused, he claimed the money and jewelry were his, and he had brought them to pay one of the witness firefighters to work on the accused’s car.
The trial judge was not convinced by the defense and convicted the accused. The accused then appealed to the MBCA and then the SCC on both the conviction and the sentence.
The Strength of Circumstantial Evidence
All the evidence surrounding this case was purely circumstantial, so the trial judge chose to base his verdict on the whole of the evidence. He concluded that
[E]ach piece of evidence on its own certainly is not a strong conclusion as to innocence or guilt. But when [the accused]’s actions are taken into consideration as a whole, and together with his explanation when confronted … the only rational explanation is that he stole the money from [the deceased]. (Fedyck, MBCA, para 11, emphasis added)
The accused argued that there was a reasonable alternate explanation for every individual piece of evidence used against him, and that the trial judge had failed to consider them.For example, the accused submitted that he had taken so long to find the health card because the deceased’s apartment was messy, and that he had kept the money and jewelry in the fire truck because there had been rumoured break-ins at fire stations and he did not want to leave valuables there.
The Crown rebutted by insisting that the test for determining whether a verdict is unreasonable is not based on each individual piece of evidence, but instead on “whether the evidence as a whole could reasonably satisfy a trier of fact of the guilt of the accused beyond a reasonable doubt” (Fedyck, MBCA, para 22). The majority of the MBCA agreed with the trial judge, as did the SCC.
The line that the Crown drew is a fuzzy one: What is the difference between an explanation for individual pieces of evidence versus one explanation for the entire narrative? After all, life is made up of a lot of stand-alone incidents and not neatly bundled events. And even if that argument is not convincing, Justice Beard, dissenting, was able to string the alternative explanations for the individual pieces of evidence into a coherent explanation for the evidence as a whole (a more reasonable explanation than theft, she argued). What made Justice Beard’s explanation unreasonable?
Justice Beard also noted several instances where the Crown presumably could have procured some evidence that would have been much more definitive than the circumstantial evidence that was offered, but for unexplained reasons did not (such as in failing to subpoena the accused’s bank records to disprove his alleged withdrawal of the money). The value of circumstantial evidence in such cases is unclear.
The accused also argued that the case against him relied too heavily on opinion evidence regarding his apparent emotional state or the appearance of the jewelry, and should not be accepted. For the majority in the MBCA, Justice Pfuetzner responded by pointing to Graat v The Queen,  2 SCR 819 [Graat], in which the SCC held that such evidence was acceptable: “[t]here has traditionally been a long list of subjects upon which lay witnesses can provide opinion evidence, including the ‘emotional state of a person’ and ‘the condition of things — e.g. worn, shabby, used or new’” (Fedyck, MBCA, para 19, citing Graat, p 835).
Justice Pfuetzner further upheld the admissibility of the opinion evidence provided by the firefighters because it was both relevant and “did not touch on the issue that the trial judge had to decide as the firefighters were not purporting to give their opinions on whether the accused was guilty of the offence. They were merely describing the events surrounding the accused’s attendance at the deceased’s suite” (Fedyck,MBCA, para 20). This is true enough concerning the firefighters’ testimony that the appellant had packed up the truck himself, but is perhaps less convincing in regard to the firefighters’ observations that the appellant appeared “nervous.” Such judgments about another person’s mental state are far too subjective, and are likely meant to influence a conviction. This could easily have been an instance of choice-supportive bias; that is, witnesses exaggerating the strengths of their decision (in this case, that the accused was guilty), just because they made that decision.
The SCC’s (Lack of) Reasons
Despite the issues laid out above, ultimately I do not think the decision in Fedyck was incorrect. The verdict of the MBCA (and, later the SCC) was reasonable. But so, too, seemed Justice Beard’s dissent. Both explanations for the accused’s actions seem plausible.
This makes it all the more frustrating that the SCC did not provide any written reasons. While the case at bar may have seemed to be straightforward to the SCC, it also offered an opportunity to clarify the fair standard for deciding a criminal case based on circumstantial evidence. The SCC did set out the rule previously in R v Villaroman,  1 SCR 1000 [Villaroman], where it said, “[w]here the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”(Fedyck, MBCA, para 23, citing Villaroman, para 55, emphasis added).While it may be true that the trial judge and the majority in the MBCA felt that there was no alternative explanation that made sense, the fact that Justice Beard thought otherwise should have suggested that, at the very least, the case was not so cut-and-dry. Based on the dissent, as well as the weaknesses notes above, it may have been prudent to revisit the subject. Criminal trials can have significant negative repercussions for the accused, and issues of evidence should be carefully dealt with by the SCC.
As the trial judge noted, Fedyck is a particularly important case because:
“[A] very strong message that people who are entrusted to enter homes of vulnerable victims, such as emergency services personnel, has to be sent, and such a message cannot be adequately demonstrated by allowing [the accused] to serve his sentence in the community. . . This is one of those cases where the only appropriate level of denunciation and deterrence can be achieved effectively by incarceration in custody.” (Fedyck, MBCA, para 46)
The MBCA gave thorough consideration to the facts of this case and the issues raised on appeal. It is not surprising that the SCC would agree, though it is disappointing that they did not provide further clarification on the issues of circumstantial and opinion evidence.