Chad Davis murder trial: The evidence in week two

The interior of the garage at 703 Prince Rupert Ave. Sometimes, what seems significant doesn't turn out that way.
The interior of the garage at 703 Prince Rupert Ave. Sometimes, what seems significant doesn’t turn out that way.

[Reblogged from the Winnipeg Free Press ‘Crime Scene’ blog, additional exhibit photos are there.]

Two men on trial for a ghastly crime: The alleged first-degree murder of a handsome young Winnipeg man, Chad Davis, who went missing for months and was found July 23, 2008 in a barrel plucked from the Lee River.

Corey Tymchyshyn and Kristopher Brincheski are accused and presumed innocent.

This is a comprehensive recap of the second week of evidence heard in this complex and unusual case.

First week recap can be found here.

Allegations made in the Crown’s opening argument can befound here [required reading, really].

Just a handful of Free Press articles summing up the case so far can be found herehere and here:

I’d note that some of this week’s evidence is abrreviated somewhat, such as the areas where scientists list off their qualifications and research histories to be qualified as experts in court. Also, some of Sgt. Hooker’s agreed facts aren’t listed, as well as some from CoreyTymchyshen’s ex-girlfriend. George Lancaster’s cross-examination was also truncated by me to a very minor degree because it was going over areas (there’s two sets of defence lawyers) he’d already answered to. 
DAY 6:

RCMP Cpl. Maria Forester (third appearance)

  • She visited Dino’s Storage on Orange St. on Aug. 21, 2008, 10:12 a.m.
  • She got key for locker #339 from a colleague.
  • Lockers have open ceilings.
  • She couldn’t recall what kind of door the locker had.
  • The door had a gold coloured padlock on it.
  • “There was nothing. The locker was empty.”
  • She still examined it, using white light forensic technique.
  • There were four areas of staining inside, a hemostick test for blood was negative.
  • A blood reagent test was also negative.
  • They were there about two hours or so.
  • On Sept. 5, 2008, she went to 52 Beeston Dr. (Brincheski’s place at the time) to take photos as serious crime unit officers did a search.
  • At 5:25 p.m. she arrived, scene already taped off.
  • The home was a duplex with brown trim.
  • Other officers pointed out items of interest.
  • Basement was a finished basement, with a bedroom in southwest corner and a washroom off of that.
  • Search began in shed, proceeded to house and then back to shed.
  • Photo #4 was of two boxes, one with a heating pad inside. [Trial exhibit 24]
  • Photo #28 was of a pink pillow. [Trial exhibit 22]
  • She couldn’t say how big the shed was.
  • Photo #30 was of posters inside a box. Box has same company name on it as used at the Davis family’s business.
  • Photo #5 was of upper bedroom, where a JVC DVD player [Exhibit #39 in the trial] was found.
  • Photo #6 was of basement area and lamp [Trial exhibit 21] was seen.
  • Photos 7, 14, 15, 16 were of TV and entertainment stand around TV.
  • Photos 25, 26, 27 were of a blue Tommy Hilfiger blanket found inside an ottoman. [Exhibit 23].
  • Photo 24 was of a Onyko remote for stereo of some kind. A Bose docking station was seized from the home’s upper level.
  • She couldn’t say if the stereo related to the remote was seized. “Not that I’m aware of.”
  • Photo 8 was of a nylon case for CDs.
  • A white Prada jacket was also seized.
  • A gucci box was also seized, it had a wooden jewelry box in it. Contents of the box were also itemized, they included a Breitling wristwatch.
  • Photos 20/21 were of Bose docking station [Exhibit 26]
  • She couldn’t say who the lock on the storage unit’s door belonged to, nor whose key it was she was given.
  • She was not shown anything from 703 Prince Rupert Ave.

George Lancaster

  • “A little nervous.”
  • 54 years old.
  • Lived in MB all his life, has four brothers.
  • Grew up in Transcona.
  • Grandparents had a cabin at Winnipeg Beach, was about 500 sq. ft. About 4-5 years ago built a new one.
  • “All my life,” he went to grandparents’ cabin.
  • “I live there now.”
  • When he separated from his wife she got the house, he got the cabin.
  • He’s currently on worker’s comp. He was working when a building collapsed on him and he fell 39 feet.
  • “All smashed” is how he describes his injuries.
  • He worked on Winnipeg’s TD Centre.
  • “I climbed the steel and put it together” with wrenches.
  • “It’s a lot of fun but kind of dangerous.”
  • His accident happened June 15, 2005 at a building on McPhillips. Was connecting anchor bolts which sheared off.
  • “When the column went over, down I went.”
  • Broken back, legs, collarbone [he walks with a limp]
  • Spent 9 days in hospital.
  • He’s now divorced from wife of 28 years.
  • His job: “it was my whole being.”
  • “I still don’t cope. It was all I had being an iron worker. Now I have nothing.”
  • He now drinks beer morning to night.
  • Had not had a drink before court.
  • “The police were knocking on my door” and they brought him to court.
  • He’s been drinking 15-24 beer a day for about 38 years.
  • Considers himself an alcoholic.
  • But he doesn’t hide it. Isn’t proud of it.
  • He’s used marijuana and cocaine in past.
  • You smoke what you have.
  • Gets $613 weekly in compensation, paid bi-weekly.
  • He keeps close track of when the cheques come.
  • “I have to pay my bills like everybody else.”
  • He rebuilt his cottage, has no mortgage.
  • He gets his money through direct deposit.
  • Pays utilities and taxes, the rest goes to “the vendor.”
  • “Of course” the cash is important for his habits.
  • Grandparents built the cottage in 1929, he started living out there in 2007 after the separation from wife.
  • Has all his belongings out there.
  • Has known “Bonnie,” Corey’s mom [IDs Corey as Tymchyshyn] for 8-9 years.
  • Met her at apartment she used to live in.
  • For “years,” about 22, he used cocaine, mainly crack.
  • Yes, it gets him high but doesn’t affect his memory, same goes for weed.
  • “I hear great.”
  • Yes, alcohol “of course” impairs his behaviour.
  • “You get drunk, you’re drunk.”
  • His behaviour ranges when drunk: “I’m a raging alcoholic … it all depends on what mood I’m in.”
  • Yes, sometimes, he yells and screams and says regretful things when drunk.
  • He stopped using cocaine 2-3 years ago. “Just done.”
  • “Yes and no,” he and Bonnie are still friends today. The allegations of the case have impaired their relationship.
  • They were never in a romantic relationship. “never.”
  • “We were actually friends … she used to live with me.”
  • Yes, he wished in the past their relationship was romantic.
  • Asked if he ever wished she was his wife, he draws a huge laugh when he replies: “Oh no. I’m out of houses.”
  • Bonnie was not OK with his drugging and drinking.
  • He was not allowed to drink around her, and she had him imbibing less.
  • “Just the nature of the beast… you do as you’re told.”
  • When she and her ex split, she got the house on Prince Rupert, he got their cabin in Lac du Bonnet.
  • She came to live with him for a time, they stayed in separate rooms.
  • A fire broke out at his cottage, was a “total loss.”
  • So he went to go live with Bonnie at 703 Prince Rupert.
  • He stayed for about 7 months.
  • Was a two-storey “beautiful house.”
  • Loft upstairs, two bedrooms in basement.
  • Main floor was an “open concept” kitchen, living room.
  • An island separates the two spaces on main floor.
  • “It’s all one big room.”
  • It’s 10-15 feet from island to two couches.
  • There’s two entrances. One off the side which leads into a mudroom. He calls doors “man doors” meaning everyday common doors people use.
  • The mudroom door was the only one that got used.
  • The view from the front windows was onto the front of Prince Rupert Ave.
  • At night the blinds were shut; by day they were open.
  • He knew his ex-wife’s phone number because his comp cheques were mailed to her home before direct deposit.
  • They were made up Tuesdays, so he’d call her on Wednesdays.
  • He did his banking at a credit union on Henderson Highway.
  • He would call them to see how much money he had in his account.
  • He was able to recite the number for the bank.
  • Again, confirms he’s said things to Bonnie he regrets when he’s drunk. “Ranting and raving,” usually over the phone.
  • Sometimes he’d leave messages to this effect.
  • Can’t say how many times this has happened.
  • The house on Prince Rupert had a landline, but can’t say if it worked in the time he lived there.
  • There was a shed and a detached garage on the property.
  • The garage’s man door faces south, and can be seen when one leaves from the main house.
  • He’d been in garage more than once but less than five times.
  • Can’t say how many times prior to Feb. 6, 2008.
  • Said there was a “grow op” inside, had false walls in front of overhead door and the man door.
  • Shown pics of the home, he’d never seen those pictures before.
  • The grow op “was never in operation.”
  • “Non operational grow operation.”
  • There was a door in the fake wall, can’t say if it opened in or out.
  • Inside the garage were special “grow lights.”
  • He’s been in grow ops before.
  • “You want to get as close to the spectrum of the sun” as possible, that’s why the lights.
  • There were 16 or so lights.
  • Never saw plants in there.
  • There was also Malomar material, a vinyl reflective covering on the ceiling and walls.
  • “It’s white on the outside, black on the inside.”
  • It’s usually attached with a staple gun.
  • It’s to reflect the light out to the plants.
  • He can’t remember if the material was on the floor.
  • Says he’s been in “lots” of grow ops in the past. “I used to grow it myself… at my residence.”
  • Never saw plants in 703 Prince Rupert’s main house.
  • “I don’t know” if chemicals or water was present in the garage.
  • Feb 6, 2008: Was still living at the home. Can’t say who else lived there,or if Tymchyshyn lived there at the time.
  • In the early morning, he’s there, as is Bonnie and Tymchyshyn. Can’t say when Tymchyshyn appeared that day.
  • “Maybe a couple of days” before Feb. 6, 2008 was in the garage.
  • Shown his Feb. 5, 2013 police statement, he told police it was “days” before.
  • It was “just a regular day.”
  • Had not had cocaine nor weed. Can’t remember drinking on this day.
  • He’s sitting on LR couch, Bonnie on other couch.
  • He was there when Chad Davis came by.
  • But before Davis arrived, can’t remember what time, a person named “Bern” was there.
  • “Him and Corey used to work together, I was told.”
  • “He was introduced to me as Bern.”
  • Had known of him for couple months. He did shingle and roofing work.
  • Cannot say how many times Burn had been over at 703 Prince Rupert, or if Tymchyshyn had other businesses.
  • On Feb. 6, he didn’t speak to Bern, who was male, about 5′-10″ to 6′ tall, white and wore glasses.
  • Can’t recall what he was wearing on this day.
  • He doesn’t pick Bern out when asked to look around courtroom and see if he’s there.
  • He and Tymchyshyn stood by the island in kitchen talking.
  • He heard a little bit of the conversation. Bern was there for about 10-15 minutes.
  • He remembers very little of what was said, except:
  • “‘Don’t miss,’ Corey says to Bern.”
  • He doesn’t recall any other words that were said.
  • Bern left out the door.
  • Lancaster didn’t see him walk in front of the residence.
  • Tymchyshyn stood in the kitchen after he left.
  • There was a cellphone in the house, one which “everybody” used. It was Bonnie’s but was under the name of a girl he can’t remember.
  • He thinks it was a wednesday because he used that phone to call his wife regarding his cheque.
  • “I think I called the bank, not too sure.”
  • No, Tymchyshyn wouldn’t be calling his ex, as they had no relationship at all.
  • “Chad” came over, can’t say how long after Bern left. Offers a 10-minute estimate.
  • He came in the door, stood by the Kitchen island with Tymchyshyn.
  • Tymchyshyn went to the other side of the island.
  • Davis had a black bag with him. “Like a doctor’s bag.”
  • Was 18 inches wide by about a foot high.
  • Davis left the item on the counter and Tymchyshyn “put it behind the TV.”
  • Lancaster was never told and never asked about it.
  • “Him and Corey went out. They left.”
  • It was a matter of “minutes,” 10-15 or so that they talked. “They were just talking.”
  • He heard nothing of what they talked about.
  • “In one ear and out the other.”
  • They left out the side door, didn’t know where they were going.
  • He didn’t see them go by the front of the house.
  • He never saw Davis again.
  • He can’t recall if Tymchyshyn came back in the house or when he saw him in the house again.
  • Davis’s vehicle was still there, parked in the back yard.
  • “I drove it.” – it was the next day or the day after that.
  • Went in it to Superstore with Bonnie.
  • They had the vehicle for “half an hour.”
  • He didn’t recall seeing a large speaker in the back of the Jeep.
  • He knows that Davis’s dad picked the vehicle up some time later.
  • Yes, he has a criminal record. An impaired driving conviction and a 1986 conviction for narcotics possession.
  • He gave a statement to RCMP on Oct. 31, 2008, was in Winnipeg Beach at the time.
  • He didn’t tell them everything he knew.
  • “I don’t want to be here. Because this is not fun.”
  • He wanted to tell RCMP enough to get them to leave him alone. I didn’t tell them everything.
  • Yes, he lied and withheld information.
  • He gave a second statement, he says.
  • “I wanted to get things straight. I actually gave three statements.”
  • Police and the Crown didn’t believe he was being entirely truthful.
  • Even in 2nd statement, he says, wasn’t being entirely truthful.
  • He didn’t want to testify at all. Even today.
  • He decided to come clean on the advice of his dying dad. “You need to straighten this out, man,” his dad said.
  • It was in his third police statement that for the first time he ever mentioned any words he overheard between
  • Bern and Tymchyshyn.
  • “It’s incriminating.” (The “don’t miss” words, he believes.)
  • He says the jury should believe him.
  • “After I found out what happened, it just seared into your brain. That’s how it is.”

CROSS EXAMINATION

  • Yes, these events were about six years ago, and his first statement on Oct. 31, 2008.
  • No, he didn’t write things down or keep a diary to keep things straight.
  • He always dealt with the same RCMP corporal.
  • Yes, there was a meeting with two Crowns and two cops at the Crown’s office. He cannot remember what he said in that meeting.
  • Oct. 31, 2008, first statement.
  • Feb. 5, 2012, spoke with police in their car.
  • Feb. 5, 2012, spoke with police and the Crown at Crown’s office.
  • Feb. 5, 2012 – gave 2nd video statement.
  • Nov. 11, 2013, speaks with police in a bar.
  • Dec. 17, 2013 – his sixth and final contact with police in this case.
  • Yes, he knew the importance of telling RCMP the truth, and that some of his statements were under warning and caution he could be charged for fabricating evidence etc.
  • Yes, he signed a form stating he understood this.
  • Yes, he didn’t always tell the truth.
  • No, has not been prosecuted for an offence because of this.
  • Confirms his beer consumption of 15-24 a day, has been drinking for 38 years.
  • Agrees liquor could “absolutely destroy” his memory.
  • It was police who approached him in the bar. Decided to tell the truth to honour his dad.
  • But admits, he didn’t approach police to say what he knew, that they came to him.
  • He says he never said something along the lines of “Corey pissed (him) off.”
  • He doesn’t remember telling police in the bar that he’d give them a statement when he was done drinking — in about 2 days.
  • He doesn’t recall telling them about a bonfire in Winnipeg Beach where they “burned Chad’s stuff.”
  • “I don’t know what they were burning, but there was a fire.”
  • Affirms that the only other thing he told RCMP was the “don’t miss” comment he overheard. And is now telling court this is true.
  • “Yes I do,” have a good memory, he says.
  • In 1st statement, he told RCMP: “I don’t remember seeing Bern that day.”
  • But then 4.5 years later, told police that Tymchyshyn, Davis and “Bern” left together at the same time.
  • “If I did [say that], I don’t remember.”
  • In Feb. 5, 2012 Warned statement, told RCMP in the room on Feb. 6, 2008 were “me, Bonnie, Kris, and Corey.”
  • “That’s the guy who’s charged.” (When asked why now Kris’s name is used).
  • Again says he can’t remember when Davis got there, but is “100 per cent” sure he was there. “Kris wasn’t there when Chad arrived.”
  • Told police it could have been 10 mins, maybe an hour between ‘Bern/Kris” departure and Davis’s arrival.
  • Agrees 703 Prince Rupert is a “very big house.”
  • It “sounds about right” that it’s 35 feet or so from the couch he was on to the kitchen island where he overheard the comment.
  • In Oct. 2008 told RCMP “I did not know Chad Davis.”
  • In Feb. 2012 statement, said that he knew Chad, had shaken his hand and met him three times, that he was “very respectful.”
  • In 2008, told police he couldn’t hear anything being said at the island, that it could be because it was 35 feet away and the TV was on.
  • “No I do not” just make stuff up.
  • Admits if he had drugs at the time, he’d consume them till they were gone.
  • It was a lie to tell police there were no drugs in the house.
  • It’s true, he’d sometimes do the odd line of cocaine with Tymchyshyn, but not often, because Tymchyshyn “Was cheap.”
  • Never saw ‘clones’ [baby pot plants] in 703 Prince Rupert, but suggestion was that there were some.
  • Yes, Davis’s black bag could have had clones inside. “I never looked in the bag.”
  • He’s questioned about how the “don’t miss” became seared in his mind, but had no knowlege that anything had happened to Davis that day and he had “no idea” where he went to. So why would that be seared in your mind? “I don’t know.”
  • Yes, Tymchyshyn’s mom had called the cops on him and had his guns taken away. He was pissed off. “I guess so,” he says when asked if that’s when he started coming up with new information.
  • Says he doesn’t know why he’d lie to police about their not being a landline phone in the house.
  • No, the times he’s given in his statements are not all that accurate.
  • It’s possible he could have shared a joint that morning with Tymchyshyn and Kris.
  • Yes, he used to hang with dangerous people sometimes, it’s possible he could have told “Bern” how to hit someone so they couldn’t fight back.
  • No, he didn’t call Kris a number of times after Chad left to make sure he was OK.
  • Obliquely agrees that marijuana can affect memory.
  • He didn’t see Davis drive up in the Jeep as it was in the backyard.
  • In October 208, couldn’t be specific with police when he drove the Jeep, telling them: “All I know is day, light, drunk or not drunk.”
  • He can’t remember what was on TV that morning.
  • It was a deliberate lie to not mention “Bern” in his first police statement. He didn’t want to come to court.
  • Agrees by the time he gave 2nd statement, he was aware he was going to have to testify, but lied anyway.
  • “I have no idea” why he continued to lie.
  • No, one can’t see out of the back of the house, and you can’t see the back lane from inside the house.
  • Remembers nothing more about the fire in Wpg. Beach.
  • You lose things, don’t you? (details, memories). “I guess so.”
  • Agrees he didn’t go to RCMP to tell them what he knew after deciding to come clean and do the right thing.
  • He doesn’t recall telling police in conversation that he saw someone handling the body.
  • “No, I didn’t” see that.
  • Yes, he stayed out of Tymchyshyn’s business, and “purposely” tried not to hear what was going on.
  • Doesn’t remember telling RCMP Tymchyshyn was a “crazy f—er.”
  • “I don’t remember saying that.”

[Jury excused at this point]
DAY 7 – JURY NOT SITTING
DAY 8 – Lancaster returns, cross-exam continues

  • Yes, “best estimates” of time is all he can offer.
  • “I did not look in that bag.”
  • “Don’t miss” could mean a lot of things, yes.
  • “Once they pulled him out of the barrel it came to me.”
  • “I just put 2 and 2 together” after Tymchyshyn and Brincheski were arrested.
  • “I didn’t want to be involved. This isn’t jaywalking. This is first-degree murder.”
  • But yes, was only on Dec. 17, 2013 when his “brain not functioning well” that he told police this.
  • “I did not know the evidence,” [he’s queried if he’d known the bail hearing or preliminary hearing material].
  • But, he says, he did know that after the arrests that those words could be related to the case.
  • Yes, to him Kris and Bern are same person.
  • “His nickname is Bern, because he burns a lot of reefers.”
  • He didn’t know Brincheski’s real name before he was arrested.
  • Says “I don’t believe so,” when asked if RCMP ever shared with him the results of text messages obtained in their investigation.

E.L.

  • Lived on Prince Rupert as of July 2008, lived there since 2003.
  • She’s too short to see over fence around backyard, but can see through slats, “spaces between the boards.”
  • Says she’s not a “nosey neighbour” but likes to know what’s going on around her.
  • They have a gazebo attached to their garage. They used it a lot in summer 2008.
  • Usually watches CTV News at 6 p.m. and reads the Free Press every day.
  • She never talked with the young man who lived two houses down. Believed he drove a black 1/2-ton truck.
  • She heard about Davis being found on TV news and then in paper next day.
  • The news broke between early and middle of the week, she thinks, isn’t confident about that.
  • She got up one Saturday morning to see yellow tape all over.
  • She told police something she saw after learning news Davis had been recovered.
  • Was in backyard, when she “heard somebody demolishing something – was quite noisy.”
  • Went to see through fence, then through an inside window and then from the back lane.
  • Work being done at the garage at 703 Prince Rupert.
  • Saw a trailer full, had boards, insulation and wood in it.
  • “The trailer was full.”
  • “I just noticed they were cleaning up,” didn’t get close.
  • Not so sure what kind of wood was in the trailer.
  • In view from back lane, saw “two men,” cleaning, throwing stuff in there. Their backs were turned. Can’t say if Tymchyshyn was one of them.
  • “I didn’t get close enough.”
  • This work was being done between time Davis was found and before RCMP turned up to search the garage.
  • One of the men she saw was in the garage, the other in the trailer.
  • They were hauling things out the overhead door.
  • Took a quick look and left.
  • “I wasn’t interested.”

Kevin Marchand

  • Gave statement to RCMP on Sept. 22, 2008 regarding time he spent with Tymchyshyn and Brincheski.
  • He’s known Tymchyshyn since age 4, through soccer.
  • They’re friends, at times “good friends.”
  • Their relationship is like a circle – ebbs and flows.
  • He started working for Brincore, the roofing company Brincheski and Tymchyshyn owned. “We works together.”
  • This was in May 2008.
  • Tymchyshyn’s nickname was “Principal Skinner.”
  • Brincheski’s nickname was “Burns.”
  • Brincheski’s brother, Alex, worked with them one or two times.
  • They’d do jobs “all over the city,” in St. Andrews and Lac du Bonnet.
  • Between May and Sept. 2008 they went to Lac du Bonnet 2-3 times for work. One time they stayed at the local hotel while out there for a job.
  • Brincheski’s parents lived in the LDB area.
  • Tymchyshyn’s family had a cottage on the Lee River. “I believe it was on the water.”He can’t remember what route was taken to get there.
  • Tymchyshyn drove a white Avalanche.
  • Brincheski a black Ford F-150.
  • They’d do subcontracting jobs for other roofing companies.
  • Brincheski and Tymchyshyn got along well. “They worked as a team, consulted each other.”
  • He saw no problems between them.
  • Can’t say if drugs were consumed at job sites.
  • Alex and Kris Brincheski would sometimes work together.
  • Did some work for Tymchyshyn’s mom “one day.”
  • He can’t say where he was when Davis was found, and not sure how long after the discovery they did work at Tymchyshyn’s.
  • Tymchyshyn asked “if we wanted to make some extra money.”
  • “We tore some stuff down in the garage – walls, whatever.”
  • They took sheets of OSB – particle board – off the walls and roof.
  • Yes, the garage had “false walls.”
  • Shown pics of the garage, he IDs it.
  • They were chipboard walls.
  • He saw no grow op in there.
  • He’s not too sure what Mylomar (I believe it’s Mylar) is. Didn’t see a reflective material in the garage.
  • They loaded the materials into a “dump trailer”
  • It was he, Tymchyshyn and Brincheski doing the work. “I believe there was one other person, but I don’t remember his name.”
  • Maybe some insulation was removed, is unsure.
  • “We recycled the board.” It was in good shape.
  • He called his brother to see if he’d like to use it in a shed he was renovating in Anola.
  • Tymchyshyn didn’t mind.
  • The trailer was driven a few blocks to his dad’s place in North Kildonan. It sat there for a couple of weeks. His brother came to retrieve it.
  • He was aware a search was conducted at Brincheski’s home – “I guess so.”
  • Agrees his cell phone number is ###-5502.
  • He cannot remember why he and Brincheski spoke an hour after the search.
  • They paid him to do the tearout at the garage.
  • There was no discussion of Davis being found in the Lac du Bonnet area.
  • Yes, the interior of 703 Prince Rupert was big, he agrees.
  • He believed the TV was in the front corner of the living room space and the island in the kitchen was “way in back of the house.”
  • Tymchyshyn never told him to burn, destroy or hide the materials he took.
  • When staying in Lac du Bonnet hotel, Brincheski had his own room.
  • Brincheski never appeared to be nor said he was afraid of Tymchyshyn.
  • Shingles weigh about 86 lbs. a bundle. They didn’t use a pulley system on jobs, instead carted the bundles up ladders.
  • Brincheski appeared to be in better shape then either he or Tymchyshyn.
  • Tymchyshyn never borrowed money from him.
  • It appeared Tymchyshyn and Brincheski were friends.
  • Brincheski, he hadn’t known long. He was a “quiet guy, kept to himself.”
  • He didn’t socialize with Brincheski outside work.
  • Tymchyshyn was always present during working hours and at any conversations he may have had with Brincheski.

Robert Marchand

  • Owns property in Anola, in 2008, there was a house, a garage and “couple of outbuildings.”
  • ID’s property from photographs.
  • Garage, shed, horse barn and storage shed.
  • Was modifying horse barn to become a storage shed.
  • He insulated it, put up vapour barrier and OSB on the walls to seal it and store belongings.
  • Before Sept. 23, came into some “free wood” when his brother called him to ask if he wanted it.
  • “All I know is it was delivered to my house.”
  • His dad brought it out, there were 30 pieces or so of OSB, some insulation and some 2x4s, all usable.
  • “Alls I knew is it came from something that was demolished,” not that it was from Tymchyshyn’s.
  • He used the OSB pieces to make the walls, using “almost all” of the wood. He did have to buy some single sheets to finish the job.
  • “It wasn’t new. You could tell it was taken from somewhere.”
  • RCMP turned up at his property to seize the wood.
  • “They had a real bugger of a time (getting it removed.) It took them a while.”
  • There were staples and plastic on them. The new boards he bought didn’t have those staples or holes in it.
  • It was within 2 weeks of having the wood that he got a call from RCMP they were coming to take it.


RCMP Cpl. Maria Forester (Fourth appearance)

  • On Sept 22, 2008 went to the Anola property at the request of the Serious Crime Unit to examine a shed there.
  • Marked wood to be seized, transported back to Winnipeg.
  • 23 Sept, 2008: Analysis of the wood was done.
  • Boards had bits of “black and white” material on them.
  • She found plastic on five boards, 18 bits in all.
  • Five particular bits taken from one board were sent for analysis because they appeared similar to what Davis’s body was found in.

Day 9
Agreed statement of facts from Tymchyshyn’s ex-girlfriend, C.C.

  • Their relationship began in 2006 and ended in late November 2007.
  • During that time, they primarily lived at 703 Prince Rupert.
  • Between February and April 2007, she observed three large barrels on the property.
  • Each was made of plastic and stood about 3 feet high.
  • The two, in the garage: One was blue, the other black.
  • Another outside was yellow.
  • She saw them multiple times.
  • On occasion, they would go to Tymchyshyn’s dad’s cottage in Lac du Bonnet area. Cannot recall the name of the body of water the cottage was on.
  • They would also go to her family cottage, cannot remember the name of the body of water it was on.
  • She and Tymchyshyn would go there and visit friends, sometimes for his business reasons.
  • She saw barrels similar to what she saw at 703 Prince Rupert, believed they were white.
  • She says she knew him to be “very familiar” to with the Lac du Bonnet township and surrounding area.

Dr. Kimberly Kenny, to provide expert opinion evidence on identification and comparison of polymer materials, including paint.

  • No issue made over her qualifications.
  • She’s a scientist with the RCMP trace evidence section.
  • PhD in analytical chemistry.
  • Polymer: a large molecule made up of several repeating units.
  • [Jurors given blow by blow presentation on her job, the types of analysis she does and what tools are used.]
  • Does physical and chemical comparisons of trace items [glass, polymers etc.] to known samples.
  • Talks about the subjective nature of colour comparisons, says having the comparison item is key to ensuring subjectivity is limited.
  • “The comparison cannot be subjective but the descriptors can be.”
  • Key is that it can’t be said with absolute certainty that one exhibit came from another.
  • They’re to be described as physically and/or chemically indistinguishable to one another. They either came from the same source or came from a source that has indistinguishable properties.
  • She compared a piece of the barrel to plastic shavings seized by police from a box of cleaning supplies that had been in Davis’s Jeep, but moved a couple of times in the time he was missing.
  • Comparison showed physical properties (“Firm, smooth black plastic”) were indistinguishable between the two samples.
  • Same goes for chemical analysis. Each was “low density polyethylene”
  • The caveat, however, is that this plastic is common, cheap and widely used.
  • She also compared a control sample of tarp Davis was wrapped in to “glossy” plastic bits seized from the boards in Anola.
  • They were physically indistinguishable from one another.
  • Both layers (one black, one white) were chemically indistinguishable from one another.
  • They either originated from the same source or from another source that had indistinguishable thickness and chemical properties.
  • Agreed there was a very slight difference in measurements of the thickness of tarp and plastic samples.
  • That difference is attributable to an .02 millimetre bias of the callipers used to measure it.

Cpl. Maria Forester (Fifth appearance)

  • Attended to search of property at 703 Prince Rupert Ave. on Sept. 7, 2008.
  • Noted how door to residence was on the east side of the house.
  • Did not do measurements of the interior living room.
  • Did white light exam of home to look for red staining. Swabs taken from a basement doorframe, a shower curtain in upstairs bathroom and an attic door.
  • At 15:42 attended to garage, went in through the “man door.”
  • Did a white light exam looking for black shavings.
  • The structure was insulated with vapour barrier, miscellaneous items on floor.
  • Came back following day with Sgt. Randy Hooker to do bloodstain analysis, she felt a blood spatter expert would be necessary.
  • She did presumptive blood tests on various items, negative results.
  • A black toque was found between BBQ and a blue tub with possible blood on it, was seized.
  • A white piece of cardboard tested positive for presumptive blood.
  • Did further checks on exterior of garage door, and all screws and nailheads.
  • In afternoon, floor was divided into four quadrants, measured.
  • Went back into residence to do another blood test, came back into garage.
  • Luminol blood reagent sprayed on the floor, several areas fluoresced (it’s not a determinative test).
  • From “D” quadrant in southwest corner, rubber markers placed where reactions noted.
  • From “F” quadrant – two areas lit up.
  • “G” Quadrant: one area
  • “E” Quadrant: the northwest corner, a number of areas fluoresced after items moved out of way. SIx separate markers were placed in this area (it butts against overhead doorway).
  • Sgt. Hooker obtained the swabs, several were taken of areas of interest.
  • Sept. 9: A “Star Choice” box in garage presumptively tests positive for blood. A short piece of cut wire “from a cord” is seized.
  • Insulation is tested, negative results.
  • There’s a positive test on a roll of clear plastic.
  • Reattended into house to take further pictures.
  • Left scene at 5:35 p.m.
  • Yes, many things appeared initially significant, but ended up being nothing at all.
  • Yes, only a scientist could explain the significance of any results from testing of areas of interest.

Day 10
Agreed facts from Sgt. Randy Hooker 

  • That between Sept. 8 and 9, 2008, did forensic testing in the garage at 703 Prince Rupert Ave.
  • Nine swabs of items in total were sent to lab for analysis, including four swabs of Quadrant “E.”

Dr. Greg Litzenberger, RCMP biology section

  • Gives lengthy explanation to jury on DNA, how it’s collected and how it can persist for a long period of time, but can be degraded through natural elements like “freeze-thaw cycle” and active wind and water.
  • DNA cannot be timestamped.
  • That RCMP “presumptive” blood testing through Hemosticks process is not definitive of anything.
  • He did five separate reports in the Davis case regarding analysis he did.
  • He was given a control sample of Davis’s DNA to work with.
  • Police sample 435, taken from Quadrant “E” in the garage, was confirmed to be blood.
  • It matched the DNA profile extracted from the control sample from Davis.
  • “The profiles were the same. They matched one another.”
  • The statistical probability of selecting an unrelated Caucasian male from the Canadian population that had the same DNA was 1 in 220 Billion.
  • It would be expected that DNA could be extracted from such a small drop of blood.
  • You would “absolutely not” need a pool of blood to extract DNA from blood.
  • He cannot say when the blood drop got there, or under what circumstances.
  • He cannot say if efforts had been made to clean up other blood.
  • Blood can be cleaned up with simple water, depending on how soaked into a material it is.
  • Asked if he’s be surprised there was only one blood drop if there had been a “major bloodletting event” in the garage, he says: “Not necessarily, I don’t know what happened in the scenario – what happened in the interim – I don’t know. Without knowing anything else that happened, you can’t make any assumptions on that.”
  • Yes, there was staining seen by officers that was not blood.
  • The DNA profile on the toque belonged to an “unknown male” that was not Chad Davis.
  • The blood swab from shower curtain in the house proper was a mixed profile.
  • He was able to extract 1.92 nanograms of DNA from the Davis blood drop.
  • Mold in a grow op could complicate testing.
  • There was no human DNA on the plastic bits he tested.
  • There was no DNA found on the “Star Choice” box despite police asking him to look again when the first test came back negative.
  • Another swab had DNA on it, but not enough to develop into a profile.

Murder most foul and we don’t care

(The multi-plex where gang membersHenderson and Baptiste were killed on Jan 31, 2009)
(The multi-plex where gang membersHenderson and Baptiste were killed on Jan 31, 2009)

 

[EDIT: A slightly-revised version of this post appeared in the Winnipeg Free Press Sunday edition on Sept. 15. Below is the original version].

I keep wondering why more folk in the general public don’t appear to care all too much that two young aboriginal men were brutally cut down in the prime of their lives, killed brutally inside a shabby suite in a West End multiplex.

Yes, Dennis Baptiste and Jessie Henderson were members of a feared and loathed Winnipeg street gang, the Mad Cowz.

But for many young aboriginal men in a city where baby-faced teens somehow can get their hands on a .357 Magnum and carry it about with seeming impunity to kill over ridiculous notions of revenge, gang membership or association is to people in some particular circumstances, more akin to a Scouts club or after-school sports program might be for semi-affluent kids who live in Winnipeg’s sprawling suburbs.

And therein lies the rub of it. Our ability to look the other way or shrug our shoulders at the deaths of these men speaks to a fundamentally larger problem our society suffers from.

That being: a shocking and profound inability to empathize very much any more. That’s my gut feeling. And I trust my gut.

Live by the sword, die by the sword,” one person replied to me on Twitter tonight when I expressed my angst on this topic.

I celebrate every time one or more of these drug dealer/gangsters gets snuffed,” said another.

Bullshit, I say to them here in reply. These are the answers of cowards.

Dismiss out of hand what you refuse to even try to understand.

Eye for an eye is an exercise in mental gymnastics which will take us nowhere.

Regardless of anything: These two 23-year-old were living, breathing people, goddammit. For example: Baptiste had two young children. He had a long-time partner who cared about him. He lived, he breathed.

And dear God, how he bled.

I never met either of these men. And I’m pretty much sure they would have spat on me — or at least eyed me with extreme suspicion — if I had ever had the courage to walk up and say hello.

That’s not the point. The point is that between my cowardice and what I assume would be their disdain are symptoms of a sickness.

Just as street gangs are symptoms of a larger sickness still — a generational, trickle-down illness of poverty, rampant unfairness, inequality and racism.

I deplore senseless violence. I detest gangs and their uber-profitable, miserable businesses of drug-and-human trafficking, just to name two of the major income streams.

But to the degree an outsider can, I understand why the gangs exist and how they persist.  And I know we don’t (or is it can’t or won’t?) do nearly enough as a society to be able to convince gang members to want to get out, that something better is waiting on the other side.

I find it very, very difficult to simply say, ‘meh‘ to a life cut senselessly, brutally, criminally short.

But that’s what I see happening when it comes to the overall public reaction to the murder trial — a process trying to find some justice for Henderson and Baptiste.

Media coverage, aside from the daily newspapers, has been scant, despite wide-spread coverage of their deaths when they were discovered.

It makes no sense to me how there’s little follow-through.

But I won’t get too deep into that, because we don’t always know what’s going on behind the scenes. This brings me to what I wanted to point out. My appreciation.

I don’t know if the Winnipeg police have it right in charging Ken Roulette – reportedly a friend of these men — with the deaths.

There are things about this case I’ve seen so far that don’t quite add up to me, at least just yet.

But in the end, it’s not up to me, or you, to decide. In this way, we’re just observers to the work six men and six women are now charged with doing.

But what I do know is that homicide investigators and the two seasoned Crown prosecutors now putting in the case didn’t have the choice of saying, ‘Meh,’ and shrugging their shoulders when called on to try and bring some resolution to this awful matter.

What I do know is that two of Winnipeg’s best defence lawyers don’t appear to be conceding one inch of territory to their state adversaries — another hallmark of criminal-legal seriousness. The stakes are huge here.

There’s an aura to the proceedings as a whole which I can only describe as spine-tingling. It hangs over the courtroom like a pregnant dark cloud.

To me, it’s right and just that this feeling persists. The awfulness of what happened here can’t be brushed aside, despite my fear it will.

Ask yourself this. If it had been two 23-year-old white kids from Charleswood or St. Vital who were killed in this fashion — what would the interest be then?

-30-

Manitoba Justice: Proof that the system works

 

(Winnipeg's Old Law Courts Building)
(Winnipeg’s Old Law Courts Building)

Good news stories out of Manitoba’s criminal courts can be few and far between, if media reports and public sentiment are any indication.

But it’s easy to lose sight sometimes that mixed in with all the misery and gloom — in fact, sometimes mixed directly in the midst of it — there’s proof that our court system is not only functioning, but working well.

Last week’s trial of Adelord Campbell is proof. (Articles from days one and two are here and here)

Let me explain.

Campbell, a repeat violent offender with an apparently awful drinking problem which fuels his criminality, isn’t the type to garner much sympathy from the public. He readily admitted last week he has a lengthy criminal record littered with violent acts.

Also, on the day he was arrested for the matter which brought him in front of Judge John Guy, he fully concedes he picked up an $80 welfare cheque after waking up late in the afternoon at a shelter last July 13, cashed it, and went out bar hopping along Main Street, despite being on probation.

Drinking a few here, a few there until he found himself in cuffs near the entrance to the Northern Hotel at Jarvis and Main.

Most people would see a character like Campbell coming towards them, turn the other way and probably run.

But, as the point of this is, that matters little when it comes to his case — one where it became pretty apparent pretty quickly there was (cough) reasonable doubt when the conduct of his accusers were put under the microscope.

I won’t relay the full facts of the 1.5 days of evidence here, but needless to say, there was a ring of some truth to his story of self defence; that he was in fact, the victim of a group who may have seen him flash some cash and pulled a meat cleaver on him in an effort to rob him — a bid which turned sour after the alleged main aggressor dropped the weapon and allowed Campbell to attempt to ward off their unwanted advances after he snatched it up.

When the cops showed up, all they saw was Campbell waving a cleaver around in a dangerous fashion with the three ‘victims’ backed up against the wall. Cops didn’t ask too many questions — quite possibly because one of the three didn’t want to stick around to give a formal statement. Also, Campbell was in no state to try and explain what he believed happened.

Anyohow: the real story here is that Campbell — again, the description ‘low-life’ comes to mind — got a full and vigorous defence as advanced by defence lawyer Sarah Murdoch, an up-and-coming litigator who’s fairly new on the scene.

Murdoch’s defence of Campbell was laudable in many respects — not least of which was the fact she was ultra-professional and clearly well-prepared to advance a believable alternate theory of the case, as well as unafraid to go after those testifying when their answers were unclear or had a ring of convenience.

On the other side of the courtroom was Crown Attorney Cindy Sholdice, a veteran Manitoba Justice prosecutor responsible for putting some of Manitoba’s most heinous criminals behind bars — sometimes for good.

Also coming across as polished and prepared, Sholdice’s presentation of the Crown’s case against Campbell most importantly appeared exactly as all public prosecutions should: Unscrupulously fair.

I’ll give you an example: A key piece of evidence in the case was a 911 call made as the fracas between Campbell and the trio broke out. Made by an independent caller, it cast great doubt that Campbell was the aggressor.

Now, Sholdice could have made a pre-trial motion to have the 911 call thrown out, possibly for lack of reliability or as hearsay evidence. Instead, she fully conceded Campbell should be able to present the call to the court for fairness’ sake.

In the middle of it all was Judge Guy, who’s known to be a no-nonsense type when it comes to handing down sentences on convicted criminals. Watching him throughout the two-day trial, Guy was attentive, dealt with issues in a common-sense way and ultimately delivered a fair verdict: Not guilty on two of the questionable assault with weapon counts, but guilty on one where Campbell clearly crossed the line by punching a woman much smaller than him.

In his decision, delivered swiftly, Guy didn’t directly deal with the issue of who provoked who, but it seemed apparent he was left in doubt about who was telling the truth.  Convicting Campbell for using excessive force in punching the woman was entirely reasonable in the circumstances.

All of this is just a long way of saying this: If people like Adelord Campbell are seen to get a fair shake, then the courts system is clearly doing something right. 

All of this is also aside from the fact there were no great delays in having Campbell’s matter tried — no prelim to slow the pace of resolution down nor a slew of pre-trial motions.

I’ll take good news where I can get it.

-30-

‘I am not happy’ — a veteran Judge reflects on the state of courtroom 308

(Winnipeg Law Courts/Winnipeg Sun File)
(Winnipeg Law Courts/Winnipeg Sun File)

Are lawyers disrespecting Manitoba’s provincial court?

It’s a question posed today by a frustrated veteran judge, Marvin Garfinkel (appointed in December 1979) as he juggled cases in Courtroom 308 at the law courts complex downtown.

Room 308 is designated as a sentencing or plea-entry court to deal with “summary conviction” criminal matters — matters which aren’t generally complex or overly serious.

It also handles items like motions and bail variations and people who are unrepresented and want to get their cases over with.

It sits each morning and afternoon of the working week except Fridays.

It’s a busy, but smaller room, one that’s hard for the public to find a seat in. It is generally standing-room-only for lawyers from both sides of the Crown-defence divide.

Matters are slotted onto a list and estimates for how long they may take to hear are provided. But, as is often said, the wheels of justice turn slowly — things often take longer to be heard then expected. Questions needing answers arise. Bringing in-custosy accused people into the room from lockup takes time.

In the glacial-paced world which is already Manitoba court system, 15 minutes turns into 30 real quick. And in my view, that’s probably for the best. Rushed, drive-through justice is probably not much better or helpful to society than no justice at all.

Lately, however, the dockets in 308 have been plagued by last-minute add ons and transfers from other courtrooms.

What was once meant as a courtroom to hear motions morphed into a well-intentioned experiment in “summary” dispositions to reduce court backlog — and the demand is now clearly outpacing resources.

Garfinkel today was clearly nonplussed at the state of today’s 308, and refused to hear a couple of cases because they were either not on the official list nor expected to appear that day.

Several times in the afternoon, he made comments about the length of time cases went over the estimated time of hearing as advanced by the lawyers involved.

And, probably rightly, he wondered if similar situations would unfold in the Court of Appeal or Court of Queen’s Bench, the higher levels of court in the province — but due the same respect any court of law requires.

The answer – I think he knew this — is, of course, it wouldn’t be allowed in QB and the appeals court.

This isn’t to say I believe the lawyers are intentionally being disrespectful, but there’s an amount of ‘wiggle room’ at the provincial court level which clearly is being exploited.

Here’s Garfinkel’s own words on the subject, for the record.

“I’m not dealing with this matter,” he told one younger defence lawyer.

“This matter is not on the list and I’m not going to deal with it. It’s not part of this court hearing this afternoon. And I’m glad you raised this now because it gives me the opportunity to vent.

The provincial court is the only court that does not control the length of its docket. I don’t know how this list [shakes it] got to be generated but certainly the judges and the staff of the court did not prepare that list.

If you go into the Court of Appeal on a sentence appeal, there are only four sentence appeals allowed in a half-day. The Court of Appeal staff controls its list and docket.

The provincial court is treated by counsel differently than it treats the Court of Appeal and the Court of Queen’s Bench. And counsel add matters that the court has no control over. We are not dealing with [accused] today – because he’s not on the list.

And I will also add that many of these items on the list have times shown — those times are estimates by counsel of how long the matter will take. As just shown from the first matter we dealt with [Set for 15 mins, but lasted 32] Counsel are frequently wrong in their time estimate.

This court came into being because the judges wanted to deal with motions by counsel. We as judges found that we weren’t getting motions from counsel. Counsel preferred to deal with motions in a different fashion.

So we said, ‘OK — we’ll take un-represented matters from 301 and 302,’ and we found that that didn’t work. And so we said, OK — counsel could put matters into the court. But we never put a cap on it, thinking that counsel would be intelligent enough to know how manny matters can be dealt with in a half day.

In the Court of Appeal, the example given is four matters in a half day, not taking into account transfers from 301 and 302.

I’m not dealing with this matter because it’s not on the list. I don’t know how it got added to the docket. You can put it to whatever courtroom that you like — but I’m not dealing with it today for the reasons stated.

We still have I don’t know how many matters to go — and I’ll venture to guess none of the time limits shown will be followed.”

FAST FORWARD TO A LITTLE LATER IN THE DAY:

(Garfinkel sounded like he was pre-explosion after the final matter came on the docket and his lawyer wasn’t in the room to handle it:)

“How do you have a lawyer put something on a list and then not show up? Would [the lawyer] do that in the Court of Appeal? Would he do that in the Court of Queen’s Bench? Then why do it in the provincial court? Are counsel treating the Court of Appeal differently than it treats provincial court of Manitoba and if so, why?

Just because we’re the lowest court on the hierarchy doesn’t mean we should be treated with disdain. I’m not being critical of you [he tells the Crown] but I appreciate you giving me the opportunity to vent. Why are we doing this?”

[Get a message to the other lawyer, he tells the Crown, and let him know his client is here.]

“I am not happy,” Garfinkel said.

The  duty Crown in attendance tried to explain how the estimations are arrived at, that often they add minutes to the estimates to try and account for extra time just in case it’s needed.

“You can convey the message to the lawyers in your department. That I am not happy with this whole system in 308. It’s not working the way the judges want it to work and we … as the judges are going to have to sit down and talk about it. And we will.

“And if you want to get in some points of view and opinions, you better tell your supervisor to get that information into the chief judge quickly.”

“Yes your honour,” the Crown replies.

A meeting of provincial court judges is coming up in May, Garfinkel says.

-30-

Catch and release: Notes on the Samantha Anderson homicide

(Samantha Anderson)
(Samantha Cherish Anderson)

What does the “supervised” in supervised probation mean in Manitoba, exactly?

It’s a question churning around and around in my head today as I dug into the wealth of justice system-related background available on Shayla Woodford, a 21-year-old Manitoba woman accused by police of murdering her one-time live-in lover Samantha Cherish Anderson.

Anderson died Dec. 21, weeks after police say she was attacked in a Boyd Avenue home on Dec. 2 — the day before her 24th birthday.

Woodford was accused (and she’s presumed innocent) right from the start, arrested just after the incident on aggravated assault and probation breach charges.

She was officially rearrested for second-degree murder earlier this week.

At the time of Anderson’s death, Woodford was out on bail (for the 7th time since late 2009) and bound by two supervised probation orders meant to either keep her in check, help rehabilitate her or, more likely, both of those things.

While the latest two cases she faces have yet to be proven, Woodford’s habit of getting collared for crimes raises questions about the level of supervision to be expected when a sentenced person is placed on supervised probation by the courts.

An unusual feature is how Woodford’s involvement with the justice system only dates back three years, shortly after she turned 18 and began her relationship with Anderson.

Since then, however, she’s been arrested and released multiple times for a variety of different offences, some of them domestic-related and others not.

To try and make sense of it, I crafted a timeline out of the available information. After taking a number of hours to consider it and its implications, I’ve decided to present it here for the record:

November 2008: Woodford and Anderson begin their relationship.

Sept 12, 2009: The couple are now living together on Young Street. Woodford, drunk on 24 Budweiser beer, assaults Anderson — even turning up the stereo to mask the sounds of the attack — and is arrested at the scene by police. She’s released on conditions she have no contact with Anderson as the case makes its way through the courts.

October 2009: The couple are back living together despite the no-contact conditions.

January 25-Feb 1, 2010: Sometime in this period, Woodford assaults Anderson again after getting a call from her lawyer, who reads to her Anderson’s statement from the prior incident.

Feb 12, 2010: Woodford asks Anderson “who she’s trying to look good for.” The incident prompts Anderson to flee their home and she tells police she’s forced to hide in a restaurant for 30 minutes to an hour to evade her lover. She spends the rest of the weekend at a friend’s home.

Feb 14, 2010: Woodford spots Anderson outside, pulls up in a car and drags her into it. Woodford pushes her into her home, pulling off Anderson’s shoes and tossing them in the snow, telling her “She’s never going anywhere again.” She then bites her on the arm.

Feb 16, 2010: Anderson discloses recent events to police and they arrest Woodford.

March 29, 2010: Woodford is released on bail to live with family, ordered to have no contact with Anderson and stay a minimum of two blocks away from her at all times.

Nov. 14, 2010: Anderson’s mother has a phone conversation with her daughter, hears Woodford in the background and calls police out of concern. Police attend and take her into custody.

Dec. 22, 2010: Woodford, granted bail weeks earlier, can’t raise a required surety, so conditions are changed on this day to remove that condition. She’s freed, ordered to abide by a nightly curfew and again, have no contact with Anderson.

March 4, 2011: Cops investigating an unrelated compliant are sent on a goose chase trying to find Woodford. They’re told she left town for her home community of Fairford First Nation for the weekend.

March 8, 2011: Woodford stops signing in at bail supervision.

June 7, 2011: Winnipeg cops finally catch up to her after they nearly hit her with a cruiser car when she walks out in front of it near Logan Avenue and Tecumseh Street. The warrant for her arrest comes to light.

Aug. 5, 2011: Woodford, held in custody now, pleads guilty to three counts of assault and a number of breaches. Judge Tim Preston cautions her about her conduct toward Anderson and apportions some of her dead time to the various charges she pleaded to. She’s released that same day on a two year long supervised probation order, with conditions including avoiding Anderson for the entire term, take domestic violence counselling and a weapons ban. These marked her first-ever convictions. “That relationship was not healthy, it’s over,” Preston tells her. “I don’t want you having anything to do with her.”

Dec. 10, 2011: A heavily intoxicated Woodford steals a Duffy’s Taxi driver’s cab, only to be arrested behind the wheel not long after. Belligerent, it takes hours for police to get a breath reading off of her. She blows .210, nearly three times the legal limit.

Dec. 12, 2011: She’s released on bail.

Feb 16, 2012: Woodford is again back in court for reasons that weren’t made clear. But they obviously had something to do with Anderson, because her bail conditions are set to include having no contact with her. She is also barred from being in the City of Winnipeg except for probation and court-related meetings or appointments.

April 6, 2012: Anderson and Woodford are riding a city bus together when one of them decides to snatch an iPhone from a passenger’s hands. They flee, but the passenger gives chase. The two women play a game of keep away with the phone until the victim restrains Woodford and Anderson jets off with the phone. Police ultimately arrest both. The charge against Anderson is stayed at a later date. Woodford is charged with the theft and a no-contact breach.

July 6, 2012: Woodford’s second sentencing: Only through her probing the lawyers does Judge Heather Pullan come to discover out a small amount of the troubled past shared by Woodford and Anderson. “What about Ms. Anderson?,” Pullan asks. “(Woodford’s) victimized her before and is now getting in trouble with her,” she says. She’s told it was Anderson who contacted Woodford this time around and that the relationship is “complex.”

Neither the Crown nor defence requests any additional probation as part of this sentence.

Pullan rebuffs that and imposes another two-year term, despite the fact she appears to be holding her nose somewhat due to Woodford’s conduct on the prior order: “This whole line of behaviour tells me you don’t care what the court says, you’re going to do what you’re going to do and victimize people,” she tells Woodford. “You have to understand, Ms. Woodford, you’re running out of chances.”

Pullan did wonder aloud why it was the prior probation term seemed to be failing to help Woodford get straight, but appeared to push the onus right back on her.

“You’re treating this whole thing as a joke. It’s really hard to protect the public from you,” Pullan tells her.

Sept. 12, 2012: Woodford is accused of several new charges, including assault, possession of a weapon for a dangerous purpose and breach of probation. The incident obviously involves Portage Place Mall, as:

Sept 17, 2012: Woodford is released on bail with conditions she live at an address in Gypsumville and not move without permission and to stay away from Portage Place mall.

October 29, 2012: A Probation officer files a report in support of charging Woodford with new breaches as she can’t be located in Fairford, and a relative says she asked for her stuff to be sent down to Winnipeg. The relative refused to give the probation officer the contact number. The officer warns in the letter that Woodford was assessed at “high risk for general criminal conduct” and she has a “propensity to become violent.” A relative told the officer: “She is supposed to be staying with me and I have tried to help her and now I don’t know what to do.”

Dec. 2, 2012: Anderson is attacked with a kitchen knife inside a Boyd Avenue home and police charge Woodford. They say the two were living at the home. A 17-year-old girl is also injured in the attack.

Dec. 21, 2012: Anderson dies of her injuries.

Dec. 24, 2012: Police announce they have charged Woodford with second-degree murder and she remains in custody.

-30-

Court of Appeal to Manitoba Corrections: Gladue ‘lip service’ comes at a cost

(Winnipeg’s Old Law Courts Building)

A single sentence buried deep in a lengthy written decision from Manitoba’s Court of Appeal contains the words many in the city’s legal community — including, no doubt, many judges — have been eagerly waiting to hear from our top court.

They’re worth reading a few times over to soak in their gravity:

“There is presently in this province either a concerning disregard or a systemic impossibility to provide what is required for judges to comply with the dictates of the Supreme Court.”  

Justice Michel Monnin wrote the above in the court’s unanimous decision to slash in half the 10-year-long sentence Queen’s Bench Justice Shane Perlmutter handed to a 23-year-old rapist who sexually assaulted an unconscious woman in her northern Manitoba home in 2010.

Monnin’s cutting words are aimed squarely at Manitoba Corrections, the provincial justice agency responsible for preparing pre-sentencing/Gladue reports for judges, a task its been doing for many years now.

Gladue reports are written to help inform judges about the particular circumstances of individual aboriginal offenders. They look at the community from which an aboriginal person hails from, their family history and what factors may have led them into contact with the criminal justice system.

The overall intent of the reports is to help judges satisfy their legal requirement (enshrined in s. 718.2(e) of the Criminal Code) to consider “all available sanctions other than imprisonment that are reasonable in the circumstances.”

These “should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders,” the law says.

The intent of the Criminal Code provision — put in place in the 90s and often called the “Gladue” section — was to try and address the vast over-representation of aboriginal offenders in Canada’s jails. (Article spelling this out is here)

Roughly 74 per cent of adult inmates in Manitoba jails in 2011 were aboriginal, according to the latest Stats Can numbers.

A shameful total that’s climbed in each of the the last five years despite the intent of the law of the land.

The wake of Ipeelee

Earlier this year, a shockwave went through Manitoba’s courts, prompted by the Supreme Court’s decision in Ipeelee.

Manitoba judges started loudly demanding Gladue-based information, and demanding proper waivers if the offender didn’t wish to pursue a report (they take weeks and weeks to prepare).

The high court in Ottawa had basically issued an edict: Criminal court judges of all stripes weren’t doing their jobs to look long and hard at Gladue factors each and every time they sentence an aboriginal offender. If they didn’t start doing so, the top court implied, judges could expect to start seeing appellate courts retooling their sentences.

That’s what happened in the above rape case.

It is apparent from Monnin’s ruling that the sentencing judge got a poorly/hastily written Gladue report from Manitoba Corrections that appeared to contain ‘cut and pasted’ material from other reports — hardly the individualized effort the law requires. The law, the Supreme Court says, is not to provide a “race-based discount” on sentencing, but to ensure the sentences handed out to aboriginal offenders were made in light of the necessary context.

“The judge had at his disposal a pre-sentence report that also purported to address the Gladue factors that a judge must consider when imposing a sentence on a person of aboriginal descent,” Monnin says.

“I say purported, because the only difference that I can see between the report that was presented to the judge and a commonly-prepared pre-sentence report was that it contained a short history of the accused’s home community and the general loss of culture and identity that has afflicted aboriginal communities generally. That portion of the report is a near mirror image of a report that was submitted [in another case.] …

… Furthermore, although the report states that it “will pay particular attention to the unique circumstances of the aforementioned aboriginal individual,” I remain hard-pressed to understand how it does so, or how it could have been helpful to the judge, or any other judge for that matter, to discharge his obligation to consider the Gladue principles in crafting an appropriate sentence of this accused. 

The report, without wanting to criticize the individual who prepared it, but rather the system that permits it, reflects the problems raised by [Provincial Court Judge Fed Sandhu in an unrelated case where Sandhu talks of the lack of public confidence and respect for Gladue due to a lack of community-based and other resources to really put some teeth into the law.]

I mentioned above a “shockwave” that went through the courts at the time Ipeelee came down. It was apparent.

The net affect of the renewed focus on Gladue was for lawyers to start requesting more Gladue reports from Corrections.

My understanding of what happened is they were caught totally off guard and are still trying to keep up with the increased Gladue workload — including some totally novel requests from certain judges.  [Side note, the report took weeks to prepare, came back and the judge said he didn’t find it helpful at all in a bail setting.]

The pressure on Corrections to produce Gladue materials has sparked complaints from many lawyers who claim probation officers/report writers are simply doing “cut and paste” jobs [as referenced by Justice Monnin above] that may give the impression Gladue considerations are being given attention, but really, they’re not, in many — but not all — circumstances.

Then, quietly, a quandary developed when an NGO stepped in to fill the void.

A private aboriginal restorative justice agency in Winnipeg, Onashowewin, began writing full and comprehensive Gladue reports for offenders — reports that are repeatedly praised by judges for how informative and well-prepared they are.

Defence lawyers hipped to them in droves, many times forgoing the Corrections reports entirely.

I can’t tell you how many times the agency’s reports were lauded by judges. It’s clear from reading them that a lot of time and effort went into them.

Corrections, I’m told, got in a snit partly because the Onashowewin reports didn’t include any risk-analysis of the offender, as their mixed Gladue/pre-sentence reports do. Fair point.

Corrections won’t just write up a Gladue report without an accompanying pre-sentence report to go along with it.

The end result: Onashowewin, which receives government funding, recently introduced a new policy of charging $500 per offender for their Gladue reports.

Now, Legal Aid Manitoba is apparently balking at the notion of funding the private reports, a veteran defence lawyer said today.

Most, if not all, of the reports are written for indigent offenders depending on public representation to resolve their cases.

So I ask you — one way or another — is the system set up to truly honour the law of the land?

Today, the Court of Appeal said, ‘no, it’s not.’

And until that starts to happen, expect to see more sentences overturned.

[Another side note: for those interested in learning about virtually all the in’s and outs of Gladue, its genesis and future uses in Manitoba should read The University of Manitoba’s tremendous ‘Gladue Handbook’ recently produced by the Faculty of Law. A fascinating and worthy read.].

-30-

Shawn Lamb: the record, for the record

(Chris Procaylo/Winnipeg Sun/QMI)


In recent days, many have requested the publication of accused Winnipeg serial killer Shawn Lamb’s extensive record of criminal court convictions in full, given his case has raised so many questions about chronic offending.

I present it here, in full, for the public record.

Entries listed note the court centre where the convictions were entered, the charge and the resulting sentence imposed.

Background on what you’re about to read below can be found here, here, here, and here. And here.

  • 1976/08/18 Toronto

Attempt Fraud

Conditional Discharge, 1 yr probation

  • 1976/11/02 Barrie 

Theft over $200

Theft under $200

Breach probation

Break, enter and commit offence

6 months jail on the theft over, with lesser periods noted concurrent on other charges.

  • 1979/04/13 Barrie

Break, enter and theft

18 months jail, the sentence was appealed and reduced to 9 months

  • 1979/05/30 Barrie

Break, enter and theft

6 months jail consecutive to sentence already being served

  • 1979/09/25 Barrie

Possession of a narcotic

15 days jail

  • 1979/11/27 Guelph

Escape lawful custody

9 months consecutive to sentence already being served, later appealed down to time in custody.

  • 1979/12/14 Port Hope

Mischief

30 days concurrent with sentence already being served

  • 1980/07/07 Barrie

Drug possession

Possess for the purpose of trafficking x2

9 months and probation on possession, 2 years on the trafficking counts.

  • 1980/12/21 Winnipeg 

Armed robbery

Assault peace officer x2

2 years on the robbery, 6 months on each of the assault PO counts (consecutive)

  • 1984-04-18 Winnipeg

Assault causing bodily harm

5 months jail

  • 1984-11-29 Winnipeg

Theft under $200

1 month jail

  • 1985-02-28 Winnipeg

Assault cause bodily harm

Mischief

6 months on the assault, 1 month concurrent on mischief. Assault sentence was hiked on appeal to 12 months to be followed by 18 months of probation.

  • 1987-03-11 Barrie

Assault x2

Assault

Fail comply with bail conditions

6 months consecutive on the first two assaults, 3 months each on the other assault and bail breach, consecutive.

  • 1987-08-20 Guelph

Attempted obstruction of justice

Assault

Fail comply with bail conditions

Fail attend court (in Calgary, Alberta)

Theft over $1,000

Fail comply with probation order

5 months less a day on each charge, concurrent

  • 1988-06-06 Chilliwack, British Columbia

Assault

30 days and 2 years of probation

  • 1988-08-05 Vancouver

Care and control of a vehicle while over .08

$600 fine and 40 days time in custody noted

  • 1989-04-19 Edmonton

Mischief

$250 fine and 10 days time in custody noted

  • 1989-11-15 Edmonton

Utter threats

Possession of a weapon

1 day jail on each charge.

  • 1990-01-29 Edmonton

Uttering a forged document

30 days jail

  • 1990-07-12 Edmonton

Theft under $1,000

Obstruct peace officer

$200 and 15 days time served on the theft; $50 and three days time served on the obstruct

  • 1990-07-16 Edmonton

Theft over $1,000

3 months

  • 1991-02-21 Edmonton (RCMP High Prairie arrest)

Theft under $1,000 x2

Fail to appear

Fail to attend court

Fail bail condition

$200 fine on thefts plus 20 days jail, $100 fine on fail appear plus 10 days, $100 fine plus 10 days on attend court breach, $200 plus 20 days on bail breach

  • 1991-03-13 Slave Lake

Assault

5 months jail 

  • 1991-08-01 Edmonton

Theft under $1,000

$50 fine and 10 days TIC

  • 1992-02-06 Slave Lake (Slave Lake RCMP arrest)

Sexual assault

4 years prison plus a 5 year firearms prohibition

  • 1992-06-08 Innisfail 

Fail to comply with probation order

30 days concurrent with prison sentence

1993-06-17

PAROLED

1994-06-29

PAROLE VIOLATION, RECOMMITTED TO PRISON

1995-11-28

STATUTORY RELEASE

1995-11-28

STAT RELEASE VIOLATION, RECOMMITTED TO PRISON

  • 1996-07-05 Edmonton

Assault

9 months

  • 1997-07-09 Edmonton

Fail to appear

Theft under $5,000

1 day on fail to appear, $150 fine and three days TIC on theft

  • 1997-12-19 Edmonton

Break, enter and theft

4 month conditional sentence and 1 year probation

  • 1998-09-17 Winnipeg

Possession of property obtained by crime over $5,000

Public mischief

3 months on each charge consecutive plus two years of probation

  • 1999-06-23 Winnipeg

Utter forged document

Possession of property obtained by crime

30 days jail and a restitution order

  • 2000-01-14 Winnipeg

Utter forged document

Possess property obtained by crime over $5,000

Utter forged document

Possess property obtained by crime under $5,000

Fail to comply with bail condition

45-day intermittent sentence on first 2 charges, 30-days intermittent on next two, 1 day on the bail breach

  • 2000-04-06 Winnipeg

Unlawfully at large

30 days consecutive to sentence already being served

  • 2000-09-11 Winnipeg

Unlawfully in a dwelling house

Assault cause bodily harm

Fail to comply with probation order

2 years jail and two years of probation

  • 2001-09-11 Winnipeg

Possess property obtained by crime under $5,000

Fraud over $5,000

1 year jail on each charge concurrent

2001-09-22 Winnipeg

Possess property obtained by crime under $5,000

Fraud over $5,000

1 year concurrent with sentence already running

  • 2002-03-26 Winnipeg

Utter threats

Time served of 68 days

  • 2003-04-25 Winnipeg

Theft under $5,000

Utter threats

Assault peace officer

Time served of 6 months and 7 days

  • 2004-12-24 Winnipeg

Fail to comply with bail order x2

Fail to appear

Time served of 45 days on each charge concurrent

  • 2005-06-30 Winnipeg

Utter forged document

Break, enter and theft

Theft under $5,000

Theft over $5,000

Posess. property obtained by crime under $5,000

12 months jail with 11 months TIC noted and 3 years probation

  • 2006-08-31 Winnipeg

Assault peace officer

Possess property obtained by crime under $5,000

Time served of 115 days

  • 2007-09-07 Winnipeg

Possession of property obtained by crime under $5,000

Theft under $5,000

Posession of stolen credit card

6 months jail and 274 days of pre-sentence custody noted

  • 2008-11-07 Winnipeg

Carry concealed weapon

Possess property obtained by crime

Time served of 205 days

  • 2009-01-16 Winnipeg

Attempted Robbery

18 months conditional sentence, 3 years probation, supervised

  • 2010-05-26 Winnipeg

Possession of property obtained by crime — motor vehicle

Forgery x9

Theft under $5,000

Robbery with violence x2

13.5 months at double credit (27 months) noted, 19 months going forward AND the resumption of the 2009 conditional sentence order and the 3 years supervised probation.

-30-


Accused serial killer Shawn Lamb and ‘the pain of being a rabbit’

(Shawn Lamb is arrested by Winnipeg police/Chris Procaylo/Winnipeg Sun/QMI)

Accused serial killer Shawn Lamb didn’t want to talk to me today, instead referring me to his lawyer, Evan Roitenberg through a very polite officer at the Winnipeg Remand Centre.

Roitenberg, always a gentleman, politely declined to discuss the triple second-degree murder case, in which Lamb is presumed innocent. He said he had little information and was awaiting disclosure from the Crown via police.

But that doesn’t mean Lamb, a career criminal with more than 100 convictions on his record, doesn’t have things to say.

Below, is a verbatim reprint of a handwritten piece of his original musings submitted to Judge Linda Giesbrecht on May 26, 2010 — the day where Giesbrecht sentenced him to serve 19 more months and Lamb ended up serving 13, despite his record.

“I’m just a coward pretending not to be afraid, sounding confident powerful, looking bold and fearsome as I could rip off the heads of my opponents.

But in my belly the wee bottom of my little belly is a boy still afraid, feeling alone, unknown if what he has will be enough to win to survive.

Hoping only hoping in its place I could feel the anger slowly filling up my empty belly and I loved the anger. It killed fear. It was easier to attack than to run.

It felt better to be lion not a rabbit. Oh, the pain of being a rabbit.

Once upon a time there was born a baby boy, a lovely indian boy as sweet and fat cheeked and gifted by the crater as any baby anywhere.

Except for the slightly darker hair and skin, he would have looked like your little boy and like your little boy he was born innocent, as innocent as a puppy.

Now take a puppy, when he comes up to you, tail wagging, you pick him up and love him, if you kick that innocent puppy instead “just kick him” and when he’s hungry you throw him out in the cold without food, and when he wants to be warm and safe you let the vicious neighbourhood dogs rip and tear at him, well, what about that, puppy?

How will that innocent puppy grow up?

A baby doesn’t choose where or to whom he is born, nor nationality, think, the nationality of an innocent baby is judged, treated.

An innocent baby deserves not to be torn apart from its mother, well the baby is the wrong nationality, expendable, send the child away, damn the damage this may cause.

The innocent child’s mind can not understand, “who are these strangers?” “WHY?” Why do they tease and torment and hurt this child body and soul?

The child’s psyche tortured, and with the innocent wonder of a child he can’t understand why the rights that even a puppy understands were taken from him, why as a member of this human species on the face of the earth he was do despised when he was so innocent.

He has only loved his mother, he had only done no wrong, but he was so despised and he felt the horrid heat of hate against him — why did they stomp out the last tiny vestiges of self-worth from this child? What wrong had he committed? Why was he kicked and beaten, raped and abused in both mind and body? Why?

The pain, the shame, the guilt, the confusion, this lost soul of a child (illegible word).

A path of anger, stealing, living on the streets, never enough drugs to escape the pain, dull the memories, the nightmares. A young boy in a man prison, a lost young man in prison, a middle-aged man in prison throughout all, a dim light, glimmer of hope a feeling of worth.

Ask for help unload the shame.

I’m wanting and worthy of a better life!”

-30-

Why was Shawn Lamb out of jail?

 

(Carolyn Sinclair)

Looking at the math, either I’m missing something about the recent release date of accused serial killer Shawn Lamb, or we need to seriously re-examine the early-release provisions regarding career criminals.

Today, Lamb is facing three second-degree murder charges in connection to the deaths of:

Tanya Nepinak (on Sept. 13, 2011)

Carolyn Sinclair (Dec. 18, 2011)

Lorna Blacksmith (Jan. 11, 2012)

On May 26, 2010, Lamb was sentenced by Judge Linda Giesbrecht (now retired) to the following after admitting guilt to 16 charges, including two violent robberies of innocent people.

27 months at double credit (his charges pre-dated the legislative amendment forbidding granting this to him) for time served on the robberies.

PLUS 19 months going forward of real jail for possession of property obtained by crime and forgery and theft, fraud and utter forged documents.

ONLY after this period of jail was served would the many months remaining on a Conditional Sentence he was given in Jan. 2009 for attempted robbery then begin to resume (to be followed by three years of supervised probation — court heard the sentence handed down in May 2010 would ultimately mean he’d be supervised in various forms for six years).

The Crown attorney was very specific in how she wanted the sentence structured.

If he was sentenced to 19 months real jail, that takes us to December 2011 before that in-custody period expired.

Looking at the offence dates police say the women were killed, that raises an issue. It would appear, on the surface, that Lamb was released many months prior to when he was supposed to be from a provincial jail.

I can accept in some cases early-release provisions apply for both federal and provincial inmates.

But in Lamb’s case, I can’t. This is an accused person with more than 100 prior convictions, many of them for violent acts and court order breaches — along with parole and statutory release violations.

How it was determined that he be granted early release — given his prior history — needs to be examined in detail.

‘We’re treating your body as a crime scene’ — Laporte trial notebook 2

(Winnipeg Law Courts/Winnipeg Sun File)

Editor’s note: This post contains foul language. 

“We’re treating your body as a crime scene.”

That’s what Peter Laporte was told while cuffed and being held at bay by three police officers in a third-floor interview room at the city’s Public Safety Building early on Nov. 24, 2008.

The comment was made by now-Det. Sgt. Mark Philippot of the Winnipeg Police Service, called to testify this week in Laporte’s ongoing sexual assault trial in Winnipeg.

Laporte has pleaded not guilty and is presumed innocent of all charges he currently faces.

Currently, the Crown and Laporte are locked in a high-stakes Charter rights-related battle over the admissibility of evidence gathered from penile swabs taken about five hours after his arrest at a Cumberland Avenue apartment block.

Laporte is arguing police stomped on his fundamental rights in how the swabs (a non-invasive procedure where cops use a wet and dry cotton swab to mop a suspect’s penis to gather evidence) were collected.

Philippot testified that after almost immediately after receiving information from child abuse investigators that a boy had disclosed been anally raped, it was his right to go in and get the swab samples.

“There’s no warrant required here,” Philippot said, explaining that in his experience, there’s no need for cops to get a warrant to take the samples, even if Laporte was unwilling to offer them as it’s considered incident to arrest.

One of the major issues Queen’s Bench Justice Perry Schulman will have to wrestle with is this: Laporte repeatedly requested (I’m being generous here, see below) to speak with a lawyer prior to the samples being taken, but cops didn’t comply.

Why is that? Don’t they have to? (Question is silently mine, sitting watching the proceedings)

According to Philippot, then a sex-crimes unit investigator (now homicide detective), the denial of Laporte’s “phone call” (to be cliche about it) had a lot to do with his demeanour and attitude.

A video of Laporte’s interactions with Philippot was played in court, starting from the time general patrol officers brought him into the interview room and put him on continuous video.

The video starts with a short haired, moustachioed Laporte, wearing a black T-shirt and shorts, being escorted into the room. “Do not kick,” he’s warned.

Earlier this week, we covered how cops viewed Laporte as combative and violent with them.

22:28 Nov 23, 2008: Philippot, not necessarily an imposing physical presence, enters the room.

“I’ve done nothing,” Laporte tells him.

“What’s your first name?” asks Philippot, trying to fill out a required prisoner’s log sheet that asks a number of questions of a suspect (it’s a matter of routine).

“I want to talk to my lawyer,” he’s told. Laporte moves to cradle his arms on the small table in front of him.

Philippot gets up and leaves for about an hour. The video is skipped ahead by Crown John Field.

 23:36: Laporte is seen lying on the floor of the interview room. Oddly, the sounds of Radiohead’s ‘Karma Police’ can be heard in the hallway outside the door. (cops play music so suspects can’t hear anything that’s going on in the office).

 ‘For a minute there, I lost myself, I lost myself,’ wails Thom Yorke.

The music ends.

In the process, Laporte gets up, gets back in the chair as Philippot re-enters the room, again, ostensibly to try and get the log sheet filled out. Laporte again requests to speak with a lawyer.

Philippot asks him the standard question: Are you part of a gang?

“Go fuck yourself,” says Laporte.

Philippot repeats the question, prompting anger to literally erupt out of Laporte.

“Look at me, take a good look at me you fucking piece of shit,” he barks. “Go fuck yourself.”

Philippot doesn’t waver.

“I’ll put you as uncooperative right now for your behaviour,” he says in a measured tone, apparently unmoved or riled by Laporte’s ire. He verbally notes and jots down a few minor scrapes and cuts he has on him.

The “interview” progresses to the point that Philippot tells him he’s being arrested for sexual assault “or some similar offence” times three, and offers Laporte notice of his rights to counsel.

“Beat it you fucking clown, you fucking monkey,” Laporte spits.

His rant continues, rising and ducking in force.

“Go fuck yourself you fucking goof… you fucking piece of shit,” he exclaims.

He’s asked again if he wants to call a lawyer.

“Beat it — take your suit and shove it up your ass,” Laporte spits.

“Beat it clown. Beat it. Beat it.”

Philippot exits, and reemerges a few minutes later.

 12:12 (Nov. 24, 2008) Laporte says he wants to call lawyer Ian Garber. He’s asked if he has his number. The angry tirade renews.

“I’m being reasonable with you,” says Philippot. Do you want a lawyer?

“Poop your fucking head,” Laporte says.

“Poop my head, is that what you’re saying?,” Philippot asks, and again leaves.

Laporte lays his head on the table.

The tone changes roughly six minutes later.

 00:19 Philippot re-enters, this time with latex gloves on and patrol cops in tow. He tells Laporte officers are seizing his clothing as part of their investigation.

“No, you don’t get my clothes,” he says.

Laporte is told cops are going to take penile swabs from him.

“I think not,” he says. “You guys remember the last time you took one. We’ll do this on (inaudible) way. Call my lawyer and fuck off,” he says, moments later adding if cops want his clothes, they going to have to “tear ’em off me.”

So, essentially, they do. Not tear, anyways, but remove by the application of force.

Laporte is pushed up against a wall out of camera sight and cuffed.

“Stop resisting,” he’s told. “Keep that foot down.”

Then, dear reader, the screaming begins. It’s hard to hear.

Laporte howls and cries and then howls some more in what sounds like — sounds like — sheer, utter agony.

His clothes are removed and bagged, piece by piece.

They move to take his shorts. More howls.

“I’m not doing anything to you. That’s just you screaming,” one of the four cops says.

When they move for the white socks Laporte’s wearing, the screams take on a tone of unadulterated rage.

He’s told he’s just fine. “Fuck you,” he responds. “Get the fucking handcuffs off me,” he shouts.

“Because you’re being aggressive with us this is what we’re forced to do here,” a cop says.

 At this point, the tape is stopped. Philippot is still on the witness stand.

“You’ve heard screaming several times. What’s that?” asked Field.

“I can only give you my opinion,” said Philippot, explaining the cuffs were placed on Laporte for officer safety.

“No one was applying any pressure to him,” he says. He’d just scream,” later testifying: “I don’t know why he’s screaming.”

The video is started again. Now, cops are obtaining the contentious penile swabs.

“We’re treating your body as a crime scene,” Philippot tells Laporte.

The process is explained again.

“I’m HIV positive,” Laporte says.

“Thanks for sharing it with us,” says Philippot.

More yowls of rage.

“Just relax now,” Laporte is told.

“Fuck you,” he says.

 The tape again is stopped. “What’s he screaming about?,” Field asks.

Philippot explains that the process is non-invasive. Basically, one of two swabs obtained is soaked with distilled water and then rubbed on the shaft and tip of the penis. The other is bone dry.

 The video resumes.

Prior to the first swab being taken, Laporte cries: “Why are you doing this to me?” and then asks to use the washroom. “Okay, enough,” he exclaims.

“I gave you the opportunity to do this yourself,” says Philippot.

“It hurts!,” cries Laporte. “My fucking wrists!” He comments that his wrists were bleeding.

 The video is again halted. Philippot says there’s no indication Laporte’s wrists were bleeding, cops in fact, by this point, had loosened his cuffs somewhat.

Field: We’ve just heard copious amounts of screaming,” he says.

“I don’t know why he was screaming,” says Philippot.

 The video resumes, largely more of the same.

“Fuck you, Not fair, not fucking fair,” Laporte is heard saying.

“What’s not fair?,” he’s asked.

He doesn’t reply.

Oddly, Philippot asks the court to stop the video so he can comment. As you can see, he tells Schulman, we loosened his cuffs.

“I don’t see why the screaming was happening,” he says.

 Tape resumes: Laporte is escorted to the washroom, and then given some water and left alone in the room again by 00:37.

Video ends. 

Field: A decision was made to take the swabs. How did that come to pass?

Philippot: It’s part of the sex crimes investigative process. In Laporte’s case, he testified, his “hostile and volatile” demeanour kind of predicated how it would go down, that the decision to take the swabs was made after a boy disclosed being anally raped, and  cops wanted to preserve evidence. The boy’s disclosure was “grounds enough” to get the swabs.

Philippot says it was the first time in his career he’s ever had to use force to get the swabs, that usually the suspect is allowed to gather them under their own power. “Normally,” he said, “They do it themselves.”

Interestingly, Philippot remarked that studies have shown how 75 per cent of penile swabs net DNA evidence, compared with 25 per cent of vaginal swabs.

The key is gathering the sample in time, he said. “The longer you wait … the more opportunity you have to lose it,” he says.

But why do it with four cops and handcuffs?

Philippot: considering Laporte’s “hostile and volatile” demeanour, it was necessary. “I just felt as best practice for officer safety” — and Laporte’s own safety.

“In this case, for safety reasons, because of his attitude, we decided to go that way.” “It took four officers just to get has arms behind him,” said Philippot.

As for giving Laporte a phonebook to look up a lawyer’s number, his demeanour precluded that from happening, the cop said.

 The cross-examination: 

Philippot is asked how many people could have walked by and seen what was happening in the interview room (privacy rights breach?).

Philippot says setting aside the four in the room itself, there were about 18 other cops that could have walked past.

What about Laporte’s repeated demands to speak to a lawyer when the interview first began?

Well, Philippot said, there was the matter of getting that preliminary, but mandatory, prisoner log sheet taken care of first.

He said as the interviewer, he was required to feel comfortable to know that Laporte was, in fact, Laporte.

“I want to know who I’m dealing with. Get a bit of a background here,” he said.

What about when he specifically mentions wanting to speak with Ian Garber?

“I’m not going to give him a phonebook at that time,” said Philippot, “(Or) introduce any kind of weapon into the room,” he said, again referencing Laporte’s demeanour.

 How can you take a potentially-incriminating swab from a suspect when they haven’t talked to a lawyer yet?

It’s a matter of generally-accepted practice, said Philippot. “Generally, I would take the swab before giving them access to counsel,” he said, later adding it was taken as soon as possible after learning there may be evidence to be gained from it.

He was unyielding in his answers: There is no requirement to let a person talk to a lawyer prior to obtaining the swab, even though it could be incriminating. 

“There’s no warrant required here,” he said.

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