Convicted of theft, Winnipeg firefighter aims to extinguish conviction at Supreme Court

An entirely circumstantial case and a seemingly overlooked alibi.

Police statements from key witnesses that changed right before trial.

A rebuffed offer of proof to show where a wad of suspected stolen cash came from.

These are three of the main thrusts of an upcoming appeal by a former Winnipeg firefighter now battling to see his theft conviction tossed out by the country's top court.

Darren Fedyck was sentenced to serve six months in jail last summer after being found guilty of stealing cash and jewelery from the apartment of an elderly woman who had died in October 2015.

He remains on bail as his case works its way through the highest level of Canadian justice.

"The case was unusual to say the least," Fedyck's Winnipeg lawyers, Sarah Inness and Kristen Jones, state in documents recently filed with the Supreme Court of Canada.  

Fedyck was accused of stealing between $800 to $900 in cash as well as some necklaces.

• Former firefighter headed to jail for stealing from dead woman's apartment
• Former firefighter convicted of stealing from dead woman gets appeal at Supreme Court

"No one saw [Fedyck] remove anything from the apartment. The deceased's daughter never noticed any items missing … when she cleaned it out. She couldn't say whether the money or jewelery shown to her in a photograph belonged to her mother or not," the lawyers say. 

"When confronted by his colleagues as to their suspicions, [Fedyck] denied taking anything … he provided an explanation … that was never disproven. To say that the verdict rests on shaky ground is an understatement."

Manitoba provincial court Judge Kael McKenzie convicted Fedyck after a trial in 2017, but he won the right to go to the Supreme Court this year after a justice of the Manitoba Court of Appeal found he should have been acquitted (two other justices ruled to uphold his conviction).

Justice Holly Beard said McKenzie wrongly came to the decision Fedyck's guilt was the only reasonable conclusion.

"In this case, the accused has provided a reasonable explanation for having the money and jewellery in his fleece, and his explanation is supported by objective facts in evidence that were accepted by the trial judge as being credible," Beard wrote in her decision.

"The evidence reasonably supports the accused's alternative explanation that money and jewelery found in his pocket were his and, in my view, the trial judge erred in not so finding."

Actions at scene raised suspicions

Fedyck was one of four firefighters sent to a Henderson Highway apartment building after receiving a report of a strong odour coming from one of the suites.

Upon entering the suite, the firefighters found the deceased female tenant.

After the firefighters had exited the suite one of Fedyck's co-workers realized he had forgotten to retrieve the dead woman's medical card.

When the co-worker balked at returning inside because of the odour, Fedyck volunteered to retrieve the card.

After waiting for Fedyck to come out of the suite, two co-workers went inside and found him in a bedroom, holding the woman's wallet in one hand and her medical card in the other.

One of Fedyck's co-workers testified they'd seen him returning his fire gloves to his pockets, a move deemed unusual, since there was no reason for him to have them out.

Outside the apartment, Fedyck volunteered to return all of the crew's equipment to the fire truck, another move that raised some suspicion.

Suspecting that Fedyck had taken something from the apartment, the other firefighters secretly checked the pockets of his fleece jacket rolled up in the fire truck and found the cash and necklaces.

When confronted, Fedyck claimed the money was earmarked for car repairs and the necklaces belonged to him but he planned to sell them.

One of Fedyck's co-workers later reported the incident to police, who ultimately arrested him.

Witnesses 'maintained their lie to police': lawyers

In the Supreme Court appeal documents, Fedyck's lawyers say the firefighter witnesses lied to police about how they "accidentally" found the allegedly stolen items inside Fedyck's fleece.

The witnesses "interpreted" Fedyck's actions at the call to support their conclusion he was guilty of theft, the lawyers state.

"They lied to police about in their statements about how they 'found' the items. The firefighters talked among themselves and maintained their 'lie' about how they found the items until shortly before trial when challenged by the Crown in a meeting," the lawyers say.

Fedyck also offered to provide a bank receipt to show he withdrew the money, "but he was told not to bother," the lawyers say. "It would be extremely unlikely that [he] would have made that offer if he couldn't produce the receipt," they write.

Further, the Crown never sought to check this out, they say, adding the prosecution could "easily" have attempted to disprove Fedyck's explanation by subpoenaing his bank records  — or those of the deceased woman — but didn't do so.

The Crown has not yet replied to the defence lawyers' arguments.

A tentative date of Jan. 24, 2019 has been set for the Supreme Court to hear Fedyck's appeal.