Former firefighter convicted of stealing from dead woman gets appeal at Supreme Court
Dissenting decision from Manitoba Court of Appeal opens case to further review
A former Winnipeg firefighter found guilty of stealing cash and jewelry from the apartment of an elderly woman who had died has been given the chance to challenge his conviction at the Supreme Court of Canada.
Darren Fedyck was found guilty on one count of theft under $5,000 last August and sentenced to six months in jail, but he appealed the decision.
And while the Manitoba Court of Appeal ultimately upheld the original decision Thursday, the decision was split 2-1, meaning Fedyck can now take his appeal to Canada's top court.
Fedyck's lawyer, Sarah Inness, says it's rare to see Appeal Court judges disagree in a decision, and while the majority didn't go her client's way she said he's happy to have the chance to have the case reviewed by the Supreme Court.
"One of the members of the Court of Appeal, of course, agreed with our argument that there was not enough evidence for him to be convicted in this case," she said Friday. "We feel very confident in the dissenting judge's decision."
Co-workers called cops
Fedyck was one of several firefighters sent to a Henderson Highway apartment building on Oct. 2, 2015 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.
Sometime later, the firefighters had exited the suite when 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 to the suite because of the odour, Fedyck volunteered to retrieve the card.
Inside the apartment, Fedyck opened the windows and sprayed air freshener about the room, something Fedyck's co-workers considered "odd behaviour," court heard during the original trial.
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.
Fedyck's co-workers testified they'd seen him returning his fire gloves to his pockets, another move co-workers found 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 suspicions.
Suspecting that Fedyck had taken something from the apartment, the other firefighters secretly checked the pockets of his fleece jacket hanging in the fire truck and found between $800 and $1,000 in cash, and two necklaces.
Confronted by staff, Fedyck claimed the cash was earmarked for car repairs and the necklace belonged to him, but he planned to sell it.
One of Fedyck's co-workers reported the incident to police, who ultimately arrested him.
In her dissenting decision Court of Appeal Justice Holly Beard said provincial court Judge Kael McKenzie hadn't considered all the evidence given at the original trial.
"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 jewelry found in his pocket were his and, in my view, the trial judge erred in not so finding."
Inness says her client has instructed her to start the appeal process with the Supreme Court.
"He's always maintained he's innocent," Inness said.
"He is obviously feeling that it should be reviewed by the Supreme Court of Canada — he has an automatic right to have that happen — and is hopeful that the Supreme Court of Canada will agree with the minority decision … and set aside his conviction."
Fedyck, who has been free on bail pending the Appeal Court decision, will remain on release while the case moves on to the Supreme Court of Canada.