Supreme Court douses appeal of former firefighter convicted of stealing from dead woman

A panel of five Supreme Court judges rejected Darren Fedyck's appeal on Tuesday, about two years after the former Winnipeg firefighter was convicted of stealing cash and jewelry from the apartment of a dead woman.

Canada's top court upheld a trial judge's 2017 conviction and a previous majority ruling from Manitoba's Court of Appeal, which dismissed Fedyck's appeal at the provincial level last year. One of those three judges, Justice Holly Beard, thought Fedyck should've been acquitted and that awarded him the right to take his case to the Supreme Court.

Fedyck was found guilty of theft under $5,000 for stealing gold necklaces and $800-$1,000 from a dead elderly woman's apartment during a service call on Oct. 2, 2015.

He was convicted and sentenced to six months in jail in the summer of 2017 but stayed out on bail as the case worked its way through the Supreme Court.

"The conviction has had a devastating impact on the appellant," Fedyck's Winnipeg lawyer, Sarah Inness, told Supreme Court judges during the appeal that was streamed online. "He lost his long-standing career as a firefighter, his reputation and his liberty."

Inness argued there was no hard evidence the cash and jewelry belonged to the dead woman, and no one witnessed Fedyck remove the items from the suite. She contended the case was solely based on circumstantial evidence and that the trial judge erred in finding Fedyck's guilt was the only reasonable explanation for what happened.

'Highly unusual' circumstances

"The circumstances of this case were highly unusual," Inness argued. "Purely circumstantial cases increase the risk of a miscarriage of justice and a wrongful conviction."

Inness said firefighters who attended the call that day and testified at trial had a "suspicious and pre-formed mindset" that Fedyck took something from the apartment suite. 

Firefighters were called to the apartment after reports of a foul smell and found the elderly woman dead. At one point, some of Fedyck's co-workers grew suspicious after he went back inside the suite for about five minutes to retrieve the woman's health card. They entered to find him with the woman's wallet and health card in one hand, and his fire gloves stuffed into his pocket, which they testified seemed odd since no fire had occurred in the suite, court heard.

They later found cash and jewelry inside Fedyck's fleece in the fire truck. Court heard Fedyck denied he stole the items and offered up another explanation: that the jewlery was his and he planned to have it melted down or pawned because of an allergic reaction. He also said he took out the cash to pay for repairs one of the testifying firefighters had agreed to do on his personal vehicle.

'Out of the norm'

Crown attorney Jennifer Mann said the firefighters knew Fedyck well and testified he was acting "out of the norm that day."

"He voluntarily spent about five minutes alone in a small apartment that had an overpowering odour," Mann said Tuesday. "This period of time seemed to be long enough to the other firefighters that they went on to check on him."

Though the woman's own daughter didn't report anything missing after going through her mother's things, court heard she found it odd there was no cash in her mother's suite. It was routine for the pair to go to the bank at the first of every month so her mother could take out $200-$1,000 in cash, court heard. She also testified the necklaces submitted as evidence looked like something her mother would wear.

Lack of bank records questioned

Inness said the Crown failed to obtain Fedyck's bank records during the course of the trial to prove or disprove whether he had recently taken out the money.

Mann said Fedyck never disclosed where he banked, so it would've been logistically unrealistic to think the Crown could approach all banks in Winnipeg to prove he hadn't withdrawn the cash.

"There are many financial institutions in Winnipeg," said Mann. "The appellant could easily have had an account somewhere else. Proving a negative in these circumstances, quite frankly, is impossible."

Mann asserted it was Fedyck's decision not to testify or provide those bank records.

"The appellant's banking records were entirely within his control. Surely he would've produced these records that would, if he is correct, have fully exonerated him. They would've ended the prosecution."

Justice Michael Moldaver said another judge may have acquitted, but the one on the case rejected the "self-serving evidence" offered by Fedyck.

"If he took the money out of the bank that day or day before, simplest thing to do is just go and get a receipt, show the money being taken out of the bank, show it to the police, and none of us is sitting here now. That's what defies logic," said Moldaver. 

"When the trial judge is looking at this explanation, it's totally open to him to reject it as being completely unreasonable, making no sense whatsoever."