But behind the scenes, one of the more interesting legal battles I’ve seen was playing out.
In June 2013, Roulette sought to have his charges tossed out, alleging a failure by prosecutors to disclose evidence in the case had effectively ruined his chance at defending against the charges.
The unusual move — in which Court of Queen’s Bench Justice Robert Dewar found there was delay caused by the Crown’s slowness to disclose — didn’t work and the trial went ahead a few months later.
The key evidence against Roulette was testimony from two unsavory witnesses, one of whom was (by time of trial) a deceased crack addict and naturally couldn’t be cross-examined beyond what defence lawyer Greg Brodsky was able to do at a preliminary hearing when Russell Glow was still alive and in witness protection.
It came as zero surprise to me that Roulette quickly launched an appeal after being convicted given the quirks in the case.
But this week, he found out he’d lost that fight too. Here’s Court of Appeal Justice Alan MacInnes’s reasons why that’s so.
It remains to be seen if Brodsky will take the case to the Supreme Court in hopes of winning a new trial for Roulette.
[Update/addition: Friday, May 9: In putting this piece together, I neglected to include a city child soldier case which ranks among the worst, if not the worst, Winnipeg’s ever seen: The case of JJT, who was 15 when he and another Indian Posse member shot up a house party on Alexander Avenue in March 2008. Three were killed and three severely injured. There was no motive to the crimes, other than the older IP member, Colton Patchinose, was angry at being ejected from the party just before the shooting. He went to fetch JJT and the two shot up the place with handguns. “My son was taken from me at an early age,” JJT’s dad told court, referencing the street gang influence on his son at his sentencing. JJT recieved a life term. You can, and should, read more about his background here. But I conclude this brief update with Justice Colleen Suche’s comment on her decision to sentence him as an adult:
“It is a chilling but frank reality that J.J.T. is but one of an entire generation of children being recruited as child soldiers in the small armies we know as street gangs, which are constantly at war – with each other, and with society.”)
Sirak Okbazion, 14. Clarky Stevenson, 15, Paris Bruce. 16.
Hearing the names of these three teens should give each and every Winnipegger pause.
They weren’t just teenagers involved in street gangs.
They also represent, respectfully, a decade-long grim lineage of ‘child soldiers’ who were influenced or preyed upon by older gang members to do their dirty work.
These kids are also dead today.
And it’s not right. It reflects a failure of our society that they died so young and so violently.
Beyond that, you can draw a kind of map (and in fact, I have) tracing the lineage of street gang-related mayhem that resulted as spillover from the separate killings of these three city teens.
Action prompts reaction: It’s not just a law of physics. It’s also part of the street gang ethos. You hit us. We hit you.
I’ll give you a very brief breakdown.
Sirak’s homicide was committed when he was 14 in 2004 by the West Broadway-area B-Side gang in response to one of their members being shot at.
It spawned fare more than just greater violent conflict between Sirak’s newly-founded gang, the Mad Cowz and the B-Siders. (Both factions are still with us today, just noting).
Sirak’s death led to internal strife within the Mad Cowz, which saw the creation of the African Mafia in protest of how Sirak’s death was (or was not) avenged. That strife led directly to multiple shootings, firebombings and other violent mayhem.
Worse yet, it directly influenced the death of innocent Phil Haiart, who was gunned down by AM members Corey Spence (15 at the time) and Jeff Cansanay as he simply crossed a West End street.
Cansanay, the triggerman goaded by Spence to ‘shoot, shoot,’ was aiming at two Mad Cowz members, but missed.
The resulting fallout from Haiart’s murder became a kind of chromosome in Winnipeg’s DNA.
How the political and police response shook out to the 17-year-old’s death is part of our essential makeup as a city.
From Haiart, we caught a close-up glimpse of an awful truth: Kids are being used by gangs, and kids, by virtue of their ages, are unpredictable. Maybe I could be next, people wondered.
Stevenson’s stabbing in 2011 in the North End has likely caused more bad blood between entrenched street gangs – he was an Indian Posse associate – than one might believe.
Well liked by many and known for being ferociously fearless, sources tell me Stevenson was on track to taking a place in the IP’s gang hierarchy.
So, when it just so happened he wound up stabbed to death, allegedly by suspects linked to the MOB gang, violence spilled over between the two groups in waves, and to some degree continues to this day.
Soon after, innocent David Michael Vincett, was shot by James Sinclair – just 14 – on Boyd Avenue.
Bruce, aligned with the Mob Squad – a splinter faction of the MOB – was led into a plot hatched by an older gang member to take over an Indian Posse crack house.
Just weeks before Bruce was beaten to death by IP members, the gang superior, Joshua Jeffs, who got Bruce mixed up in the plot that would claim his life, was viciously attacked by four teen IP members with a hatchet and machete for being part of a group that attacked their Boyd Avenue hangout by surprise.
Jeffs, according to prosecutors, also enlisted another teen and an 11-year-old boy to try and take over the Redwood Avenue crack shack.
Bruce, maybe not comprehending fully what he was getting himself into, tried to run when IP guys caught on to what the Mob Squad was trying to do. He wound up beaten and stabbed to death.
It’s no mistake that the Crown used the words “young soldiers” to describe Bruce, the other teen and the 11-year-old and their position within their gang.
Despite how ugly the tactic is, it should be more than patently obvious by now that older gang members are well-aware of the benefits of using younger guys to do the dirty work.
To them, the ‘kids’ are expendable – and, let there be no doubt, in great supply – even if they’re dying off or being sent packing to jail for a time as a result of their involvement in the gang underworld.
I’ll repeat: The fact that any kid winds up in a gang is a signifier to us that something is wrong with our society.
Whether they wind up there because of poverty, addictions, for protection or for a sense of belonging, seeing our youth wind up being used by criminal factions they way they are should be nothing short of alarming to us.
But recruitment continues, relatively unabated, and has done so in Winnipeg for a long time now.
I’ve only presented here three examples of slain “child soldiers.”
What’s to be done about it, I can’t offer a solution other than to say every child needs a baseline of normality in their lives in order to have a chance at success over the long-term.
What I am sure of — and it should be pretty clear by now if you’ve gotten this far — is that “child soldiers,” “young soldiers,” or whatever you want to call them, are a blight not just on the gangs they’re enlisted in, but on us as a society as a whole.
We should be shocked and outraged by the brutal, violent deaths of people in our city who have barely lived.
I get the sense we’re generally just resigned to the fact that this happens to some of our youth. And it’s wrong.
A young (apparently) eastern European man with no criminal record or history of trouble with the law is spotted as a suspicious person inside an Elmwood apartment block, where witnesses say they noticed the “unassuming” stranger had a backpack and pick-like objects on him.
And then, boom: he’s charged (and presumed innocent) with 35 break and enter-related counts in connection with police reports which had been piling up in the back offices of the East and West Districts for a year.
What makes this case curious is the apparent level of sophistication.
If what’s been alleged proves true, the burglaries involved the use of lock picks and a special “high frequency” listening device, ostensibly to assist in picking said locks.
In other words, these were no basic smash and grabs.
I’ve mapped out the numerous break-and-enter events and their timing, which all occurred at apartments.
Results of that effort are below.
Now, I had limited data to work with, just the dates of the alleged offences and the block addresses at which they happened, and in most cases a gender of the person who lived there.
But even this small amount of data, when laid out on a map, raises certain questions.
At the top of the inquiry pile is: Were these B&E’s targeted events? Was the culprit somehow led to these specific addresses after being tipped off that something of value could be found there?
Initially, between March 2013 and the end of April, the target sites were apartments in Transcona and North Kildonan.
But then, to kick off May, there was an event on Clayton Drive – many, many kilometres away from the usual area of interest.
By June, it becomes a hodgepodge of locations, stretching into south Pembina Highway. It’s weird.
Then comes a month-long recess in activity that concludes with an event on St. Anne’s Road – but resumes back in Transcona, at a block which had already been hit several times before.
Then, consider the four-month gap in events between 22 October, 2013 and mid-February back in Transcona. What went on in this period? Note, also that the Oct 22, 2013 event took place at the exact apartment where the suspect was collared this past week.
Now, it could be that there were other events in the intervening months which simply weren’t reported to police. That’s entirely possible.
But what we’re left with given the charges and the timing of the allegations is the possibility this was just the tip of the iceberg.
I wonder, as would anyone, about the contents of the suspect’s backpack, and what was discussed — if anything — in his police interview after his arrest.
I also wonder about the story of a note being left behind at the Oct. 22 event on Poplar Avenue — one stating the thefts were as a result of a lack of legitimate employment in Canada for immigrants, and that a group of people was behind that break-in.
As I said: It’s a curious case.
Update: Sorry, it appears WordPress won’t allow the custom Google map to be embedded here. It can be found here.
(Reblogged from the Winnipeg Free Press ‘Crime Scene’ blog, minor revisions for formatting and clarity)
“Ironically, had Ms. W died from the shooting it would have been easier to prove murder, because that can be done in two ways. Including the less onerous route of meaning to cause bodily harm that the accused knows is likely to cause death and is reckless whether death ensues or not.” Justice Chris Martin
Attempted murder: those two words, strung together, strike fear to any warm-blooded heart for sure.
Sadly, the charge seems to be more frequently seen in Winnipeg than ever before.
And while on the surface of things, a case may appear to be one of an attempt to kill, by the time it goes through the court wringer and scrutiny, I’d be willing to bet most, if not all, are never made out to be attempted murder.
An exclusive report I wrote last week about Jared Smoke‘s trial is educational on how difficult attempted murder is to prove, and the uphill battle prosecutors have to try and demonstrate a suspect’s intent and state of mind in all but the most clear-cut cases.
(Perhaps ones where a police officer might hear an assault suspect blurt out: “I’m going to kill you!,” before an arrest takes place stand out as the most obvious.)
Smoke was acquitted after a trial in the Court of Queen’s Bench. But he was found guilty of several lesser, but included offences, aggravated assault and discharge firearm with intent to wound.
The report in the newspaper was cut down substantially to make it fit in the paper, but the acquittal on the most serious charge raised questions about how this could have happened given the facts revealed in the article.
Out of fairness, I thought it would be a good idea to reproduce virtually all of Justice Chris Martin’s decision verbatim in order that the general public who couldn’t be there for the decision could see the systematic nature of how he arrived at it.
Warning: the facts are somewhat graphic in spots. It’s an awful case of cruel violence no matter how you slice it.
Smoke is to be sentenced on the charges he was found guilty of later this year.
It will be interesting to see the position prosecutors Daniel Chaput and Adam Bergen take on how much time he should serve.
Note: names of the victim and witnesses have been redacted by me because they’re not germaine to the decision overall. I urge you to read the explanation of the W.D. analysis as set out in the first link below.
Justice Chris Martin, March 13, 2014 Decision in R v. Jared Smoke – Attempted murder trial (included offences of aggravated assault and discharge firearm at issue, as are several weapons-related charges.)
“Determining Mr. Smoke’s culpability involves an assessment of both non-contentious evidence and the reliability and credibility of several witnesses, including Mr. Smoke, to which a W.D. analysis must be applied.
For the most part, my consideration of the charges and discussion of the evidence will be limited to the legal issues before me. At this point, I intend to outline what I mostly consider to be the non-contentious evidence surrounding or related the shooting.
Later, in the analysis portion in this decision, I will refer more specifically to the elements of the offences, the defence of accident and the more specific evidence that needs to be considered to determine the individual issues.
Turning first, then, to the non-contentious facts:
In the fall of 2009, Ms. W was living in a suite on Furby Street in Winnipeg with her two infant children, aged about four months and two years. Mr. Smoke was her sometimes-boyfriend. He was the biological father of the four-month old. Mr. Smoke would frequently stay at Ms. W’s suite. When he did, he slept in her bedroom at the back of the suite.
In relation to Mr. Smoke, Mr. E.P. was also staying in the suite that October. His girlfriend, E.C., would come over and became friends with Ms. W.
Weeks before the shooting, Mr. Smoke and E.P were together when they got jumped by a group of men, perhaps part of a street gang. After, for his protection, Mr. Smoke acquired a .204 Ruger bolt-action rifle. The rifle was capable of holding one bullet in the firing chamber and one more in the magazine. He had it altered by cutting off part of the barrel on one end, and the stock on the other end. Due to the length of the barrel alone, or the overall length of the rifle – by law, it was a prohibited weapon.
From my handling of the weapon, it is fairly heavy and cumbersome and especially cumbersome to hold with one hand because of the way the stock has been altered or fashioned into a pistol-grip. The bolt action is designed for right-hand operation. The safety is a small lever beside the bolt. To switch the safety off, it must be manually pushed forward to the firing position.
Mr. Smoke did not have bullets for the rifle when he acquired it. So at his request, E.P. arranged for E.C. to buy some on her home reserve. Mr. Smoke testified that he carried the rifle with him, loaded, in a bag or sometimes down his pant leg.
On Oct. 21, 2009, Mr. Smoke, EP and EC were at Ms. W’s with her and her children. Another relation of Mr. Smoke, a man named Darrel, was also there. It was late in the afternoon. Mr. Smoke and Ms. W got into a heated physical altercation over his having another relationship with another woman. He admitted to beating Ms. W in the living room before dragging her to her bedroom where he was going to beat her more.
At the bedroom, she was on the floor near the door threshold. It appears that her head and torso were in the room and her legs out of the room. Mr. Smoke punched her several more times and kicked her. He then quickly turned and got the .204 rifle from a chest of drawers or a closet in the room. He said he had put it there a few hours earlier, when he had a nap in the room. It had been in a bag.
When he turned back to face her as she lay in the doorway area, the gun fired. She was shot in her right arm which she held up in front of her head in a defensive, blocking manner. The gun would have been angled downward when it discharged. The bullet struck her forearm and then her head.
The medical report noted massive destruction to her right forearm, significant soft tissue defect, major nerve damage to the muscles supplying her forearm and hand and arterial injury. The bullet then apparently glanced by her right cheek, right skull area, causing a scalp wound and fracture of both her cheek and skull.
EP and EC were in the bedroom, along with the four-month-old infant when the shooting happened. EP saw what happened but EC did not as she purposely looked away during the assault. Everyone then fled the suite, leaving Ms. W in a pool of blood, the four-month-old on the bed and the two-year-old wandering about.
Mr. Smoke says he tossed the rifle in a nearby dumpster. A neighbour heard the screaming from the suite and a woman yelling, ‘no.’ (inaudible). She also heard a loud bang. She immediately called police. The police broke into the suite and along with paramedics, attended to Mr. W and the children. After, police searched the suite and found several items of interest.
One, a box of .204 bullets … under a cushion on the couch in the living room. Two, a .22 bullet on the fireplace mantel in the living room. Three, a loaded, single-shot, sawed off, .22-calibre rifle in the dresser in Ms. W’s bedroom. They also recovered the .204 calibre rifle from the dumpster. This rifle had one spent bullet casing in the firing chamber, and five live bullets in the magazine.
Mr. Smoke turned himself into police custody about a month later. His police interview and statement was admitted as part of the Crown’s case. While he did not say much in the statement, he did say that he did not intend to kill her, and that it all happened very fast.
Since his arrest about 4 1/2 years ago, Mr. Smoke and Ms. W had many discussions, some about this event. Most notably, police intercepted a telephone call from Mr. Smoke to Ms. W on Feb. 4, 2011, days before his preliminary inquiry. He told her that, and I quote: ‘All you got to do is say it was an accident, it was an honest accident, I love him, it was my fault. He shouldn’t be in jail.’
And he told her what he would say. In cross-examination, Mr. Smoke agreed that passages from the transcript of the intercepted call sound like he did not want her to tell the truth. However he maintained that the point of the phone call was to encourage her to tell the truth.
Finally, by the time of trial, Ms. W mostly recovered from her injuries but she is left with some residual effects and scarring.
With this background in mind, I turn to the consideration of the analysis of the issues.
The first issue in the first portion of the analysis then, is what if any offence has the Crown proven Mr. Smoke committed by handling the .204-calibre rifle when it discharged?
The Crown position is that it’s proven, through evidence that a common-sense inference from the proven facts, that Mr. Smoke specifically intended to kill Ms. W. through the rifle discharge. The facts they rely on include:
1] Mr. Smoke was assaulting Ms. W when he dragged her into the bedroom to continue the assault.
2] That he was ‘seeing red,’ so to speak, in terms of his anger at her.
3] That he retrieved the rifle from where he put it.
4] That he was holding the rifle in a shooting position with his right hand on the pistol grip and finger on the trigger, using his left had to support or hold the rifle by the fore stock.
5] That the safety of the rifle was disengaged so the rifle was in a firing position.
6] The rifle was aimed downward at Ms. W’s head area when it discharged.
7] After shooting he fled the scene without any attempt to check on her, or help her and disposed of the rifle.
The Crown says the inferences to be drawn from these facts are that the only reason for dragging her to the bedroom was to access the gun that he knew was there. And, in shooting her at near point-blank range toward the head, he intended to kill her. Further, his post-offence conduct supports this inference in that it demonstrates the shooting was not an accident.
They say that Mr. Smoke’s and Ms. W’s testimony to the effect the shooting was an accident is a fabrication and both inconsistent with the evidence and logic.
The defence says the opposite. This was an accident, and as such no liability should flow from it. They say his police statement and his testimony supports this, or at the very least ,raises a reasonable doubt. He was trying to leave the bedroom with the rifle when Ms. W – as she testified – grabbed for the rifle and it discharged accidentally. Mr. Smoke would not have known it was loaded because he stored it in a closet or drawer unloaded, just before he took his nap a few hours earlier.
I now turn to Mr. Smoke’s testimony.
The classic WD analysis must be applied to Mr. Smoke’s testimony and police statement. To cut to the quick respecting steps one and two, I neither believe, nor am I left with a reasonable doubt about several key points.
First, while I accept he dragged Ms. W to the bedroom to continue the assault, I reject that he did so to be out of the childrens’ or plain sight or for privacy. Clearly he was angry. He wanted to continue beating her and she was no match for him. There was yelling and screaming for all to hear. So loud, a neighbour could hear it.
Tellingly, Mr. Smoke retrieved the .204-calibre rifle almost immediately after dragging Ms. W to the bedroom. In other words, whatever physical beating he wanted to continue, it wasn’t much. I do not accept that he wanted to continue the beating only in private. Everyone old enough to understand what was going on in that apartment knew what was going on. There was no real reason to drag her to the bedroom except to get the rifle and to use it in some manner as part of his overall assault upon her.
Second, I reject his evidence that he unloaded the rifle before he napped so that it would be safely stored, and his evidence that he did not know the calibre 204 bullets were in the rifle is nonsensical. I say this for three main reasons.
1] It is inconsistent with his testimony that a) he carried the weapon everywhere he went for his protection because he’d been jumped and shot at weeks before and b) he arranged to get the bullets … and they were for the .204 rifle he kept. Clearly it was his rifle and his ammunition. The two go hand in hand. It is far more logical that the stored the rifle loaded while he slept so, if necessary, it was ready for its purpose – for his defence.
2] Further, he testified that the unloaded the weapon at another location and he brought it to the apartment unloaded. This would mean he was effectively unarmed when he made his way over to Ms. W’s, however he came there. And thus the whole point of having a sawed-off gun for protection from others who shot at him before would have been defeated. This also makes no sense.
3] To accept his evidence would be to imply that someone else in the apartment got the rifle from his bag, fully loaded it, cocked it by positioning the bolt, put the safety in the firing position and replaced it where he had put it all while he napped two feet away or had a brief shower. This is farfetched.
Further, none of Ms. W, EP or EC said they did this. (Darrel) did not testify but it would be pure speculation, without a hint of evidence, that he did this. Others would have seen it.
Thus, it follows on these three points that I also reject his evidence that the rifle was not in the bag immediately before the shooting. On the contrary, I find that he removed it from the bag at that point.
Third, I reject his evidence that he had said just before the shooting, ‘f-k this, I’m leaving.’ This is nothing but a fabrication to support his claim that he did not intend to use the rifle as part of the assault. If it were true, there was no reason for him to obtain the rifle out of the bag. If he was leaving the apartment at that moment, there was no reason not to take it sealed in the bag, the same way he brought it into the apartment even if he had concealed it, on other occasions, down his pants.
This is not a small detail that would be overlooked in a state of anger. Further, he admitted in cross-examination that he may have said other things to Ms. W when he grabbed the gun, things such as: ‘is this what you want?’
Fourth, for the reasons I have mentioned and those that follow, I reject his evidence that he did not pull the trigger but it accidentally discharged when Ms. W grabbed the gun. He admitted his finger was on the trigger as he held the rifle, the bolt was closed, the weapon was cocked and the safety was off. Handling the rifle the way he described is completely contrary to his evidence that he was safety-minded with the weapon in the suite.
Further, if Ms. W did grab the gun, or grabbed at the gun three times as she swears – or even once – Mr. Smoke could have easily been able to move beyond her reach as he stood above her or instantly slipped his finger off the trigger. As well, she said she reached up for the rifle, thus it must have been pointed toward her as opposed to hanging down beside his leg toward the ground, as one might have expected, given the nature of the altered stock and pistol grip and its weight.
… this angle at the point of firing is also consistent with forensic evidence.
Finally, her reaction to defensively putting up her right arm means she instinctively perceived danger from his holding the rifle despite his testimony that the way he handled the rifle gave no cause for (inaudible).
Having rejected his evidence as I have, I must also consider what other evidence there is, essentially the third step of the WD analysis.
I start by noting what is likely fairly obvious at this point: I reject Ms. W’s evidence that she grabbed at the rifle three times and it discharged accidentally.
She says she lied to police and lied at the preliminary inquiry. She now says her trial testimony is the truth. On critical points, it is not. The evidence of her earlier versions, the reason for saying what she did when she did, the evidence of the intercepted call from Mr. Smoke to Ms. W during which they discussed their evidence, the context of their relationship which included her accepting fault for being shot because she should not have started the argument – all point to her trial testimony respecting how she got shot as being fiction.
This is distinct from occasional moments of spontaneous honesty that she had in testifying on some critical matters, such as her testifying that she put her arm up for defence.
So what remains?
First, there’s the non-contentious evidence that I referred to earlier. Most material is that Ms. W was shot with the .204-calibre rifle by Mr. Smoke. Second, there’s no credible evidence of anyone else in the suite holding or possessing that weapon or ammunition during any of the relevant timeframe surrounding the shooting.
Third, I have rejected both (Mr.) Smoke’s and (Ms.) W’s evidence of an accidental discharge. Finally, all of this is inconsistent with EP’s evidence he saw everything that took place in the bedroom. He was clear Ms. W did not grab the rifle just before she was shot. I accept this testimony.
Thus on the evidence I have accepted, and in part for reasons set out in the WD analysis I will not repeat, I find that Mr. Smoke possessed the loaded .204 calibre firearm when he entered the suite, that he left it loaded in a bag in a closet or in a drawer in the bedroom and that he retrieved the loaded weapon during the course of beating Ms. W. Further, in the end, there is no credible evidence to support the notion that the gun discharged accidentally.
Indeed there is good evidence and strong inferences to find Mr. Smoke pulled the trigger and meant to do so. In rejecting his and Ms. W’s evidence I find that Mr. Smoke pulled the trigger that caused the shot to Ms. W.
I pause to note that I would have been satisfied based on the Crown’s evidence and submission that the shooting was not accidental even without EP’s evidence. Further, to be clear, I find that neither pulling the trigger, nor where the rifle was pointed with and fired was an accident.
Having rejected, factually, the defence of accident – in other words having been satisfied by the Crown as to the requisite elements in that particular respect, I need not analyze whether or how such defence could have been available to Mr. Smoke, in law, with specific offences he faces especially considering how the shooting occurred while he was committing other unlawful acts namely assault and possession of a loaded prohibited weapon.
The issue, thus becomes what do I find him anything guilty of? The onus remains on the Crown to prove all of the essential elements of the charges, including his intent or state of mind. Three comments are warranted at this point.
First, while I have rejected his explanation of the shooting, I cannot use that rejection to find an inference that he must have intended to kill her.
Second, I disagree with the Crown’s position that his conduct after the shooting points to the offence he committed. I need not rely on his post-offence conduct to be satisfied beyond a reasonable doubt that he pulled the trigger and it was not an accident. This post-offence conduct evidence is also not properly available to consider whether he had the specific intent to kill on firing of the weapon.
And in any event, I find his flight and tossing of the weapon to be equivocal. It is not evidence solely of consciousness of guilt. It is equally indicative of panic knowing that he’d shot Ms. W.
As to the intercepted call evidence, a number of competing inferences arise, but it clear that the phone call was essentially aimed at whether he pulled the trigger, not what his intention was in so doing.
Having made the findings that I have, on the evidence that I’ve accepted, Again, I not need consider this aspect further.
Third, regarding the most serious charge, the attempted murder – it is among the most difficult for the Crown to prove. Because there is only one the of state of mind that will suffice to ground such a conviction. Of course, the Supreme Court of Canada has made this clear in R v [inaudible] and other cases.
As demonstrated by the precedents referred by both counsel, the specific facts, background and nuances of a particular case are critical as to whether proof of a specific intent to kill has been made out.
Ironically, had Ms. W died from the shooting it would have been easier to prove murder, because that can be done in two ways. Including the less onerous route of meaning to cause bodily harm that the accused knows is likely to cause death and is reckless whether death ensues or not.
Having noted these cautions, on my findings, there remains a reasonable inference that Mr. Smoke intended to kill Ms. W. Yet when the Crown must rely on inference to establish the state of mind for attempted murder, it is all the more difficult because one must also ask, on the proven facts, whether there is another reasonable inference to which the benefit of the doubt must be given to the accused.
In this case, I find that there is such an inference here. Specifically, that he meant to use the gun in the assault and in doing so he discharged the gun but without specifically meaning to kill her. Clearly, the shooting took place during a violent argument that escalated and took place very quickly.
This, in the context of the relationship generally, and more specifically his comments at the time of, ‘f–k this,’ or ‘f–k this, is this what you want’ and his response to police that he did not intend to kill her raise the spectre of a plausible inference that he meant to shoot her, but without the specific intent to kill her.
Thus, to paraphrase the Supreme Court of Canada in [inaudible], respecting the meaning of reasonable doubt, I am not sure that he specifically intended to kill her. And as such he’s entitled to the reasonable count on this issue.
I find him not guilty of attempted murder.
What remains is … ”
Martin goes on to convict Smoke of aggravated assault and discharge firearm with intent to wound. He will be sentenced later this year, also by Martin.
Two men on trial for a brutal crime: The alleged premeditated murder of a handsome young Winnipeg man, Chad Davis, who went missing for months and was found July 23, 2008 in a barrel pulled from the Lee River.
Corey Tymchyshyn, 37, and Kristopher Brincheski, 31, 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. Second week here:
Allegations made in the Crown’s opening argument can be found here [required reading, really].
Stories summing up this week’s developments are here and here.
[Note about the phone record evidence: Pictured this week is a timeline chart provided by the Crown to the jury as created by an RCMP intelligence analyst at the direction of the Crown. When considering this evidence, the timeline is a helpful guide to what the Crown deemed relevant to the Davis investigation, but is not a comprehensive listing of all the cellphone activity in the timeframe described. A careful reading of the cross-examination of the RCMP analystbears this out. I have truncated her direct testimony to some degree because it was so detailed and referred to events already mapped out on the chart provided.]
Day 12 Allan Hallson
55 years old, a carpenter and “jack of all trades”
In 2012, was living at 1091 Manitoba Ave.
Usually drank every day after work.
Five to six beers was his normal routine.
“No it doesn’t” affect his memory.
“I had a drinking problem” [in the past]
“I drink very little now.”
After November 2012, he got it in hand.
“A bit nervous” at testifying in court, before a jury.
Has 1999 conviction for driving over .08
Has April 2000 conviction for assault causing bodily harm and fail to comply with undertaking.
Has two kids, including a daughter, CH
In Spring 2012, wanted to sell a mitre saw, daughter helped him put ad on Kijiji.
“Corey” (Tymchyshyn) was interested, he phoned, came down to look at it.
That turned into a 1.5-2 hour conversation, talked about construction.
Tymchyshyn seemed interested in hiring him, sold him saw, went to work for him three weeks later.
He only learned Tymchyshyn’s last name later on.
Early June 2012, started working for him, home exteriors, “all over Winnipeg,” and some jobs outside.
Hours varied from 8 to 12-14 a day.
He didn’t have car nor driver’s licence. Tymchyshyn picked him up and drove him home.
Usually the two were by themselves in the morning, sometimes one other worker. Same at night.
He was alone with Tymchyshyn for 45 mins to an hour each working day. They’d talk, have coffee in the car.
Tymchyshyn mentioned things, doing “grow-ops” and what he had done to a person.
“He had shot a person,” put him in a barrel, put him in a river by a cottage.
“This person was stealing from him.”
No name. “All’s he mentioned it was his friend.”
Didn’t believe him at first, started to later “because of the threats that were coming to me.”
He understood Tymchyshyn to be on bail – he had a “probation officer” that came to a work site.
“That made me start to believe what he had told me.”
Says he was in shock. “I didn’t believe it at first and then it was coming true.”
On a couple of occasions, his own employees disclosed to him they had committed murders.
After working with Tymchyshyn for a few months, plan was made to “start a grow-op” at Manitoba Ave. home.
“Bugging me to do it, to do it – I know he needed money.” He bother him several times a day.
Also promised was work on a machinery business, meaning “steady employment.”
Tymchyshyn said Hallson would get money on the second round of growing.
The first round’s take would go to his lawyer to pay her, Tymchyshyn told him.
They didn’t talk about what he’d get.
The house was a rental.
He built “couple of rooms” with walls in basement, walled off furnace and laundry area.
Used studs and OSB “plywood” to wall them off.
Also purchased was “white poly” to line the walls and floors and ceiling.
“For the heat, the light – to make sure it was uniform in the room.”
“I know it was for light.”
It was Tymchyshyn who handled the special lights.
A door in wall stopped people from seeing inside.
“The poly came up the door too.”
“They were special, special lights, they had big bulbs, sort of a shield over them”
They gave off a bluish or pinkish glow.
“There was 100 plants brought in” by Tymchyshyn.
Tymchyshyn had a key to the house.
“I was there at night, but Corey looked after the plants.”
[Justice Brenda Keyser issues “special instruction” to jury at this point, saying they had to decide for themselves if Tymchyshyn actually made those comments, to use common sense to do this. They are not to apply any findings from this evidence towards Brincheski. Also, the evidence is only being presented to give them context, and is not to be used by them to imply that Tymchyshyn “is the sort of person” who would commit the crime he’s charged with because of his involvement in the grow as alleged.] Hallson:
His daughter, CH, would drop by sometimes, to do laundry for him.
“She seen what was going on,” in the basement.
“She was upset about it.”
Says his girlfriend’s name was “Mary Jane,” she was staying with him.
Sometimes he’d have people over to socialize, to party.
There was a confrontation with Tymchyshyn regarding this activity.
Tymchyshyn became “very upset.”
“My attitude changed. I wanted out. Wanted nothing to do with it no more.”
In Nov. 2012 – CH shows up at his house. “She was very upset. She was crying.”
They talked about the grow op.
At first, they were alone, but “Mary Jane” was upstairs.
Tymchyshyn then became involved and the confrontation “evolved,” voices were raised, tempers
Tymchyshyn said “I had to leave the house,” hand over keys and cellphone. Warned to not go to police.
“He said that he shot his friend and put him in a barrel, so he said I’d end up in the same way,”
Said he had body bags in his truck. “Garbage bags to dispose of the body,
He left the house that night.
He was eventually charged in connection with the grow op.
There’s no deal with federal or provincial Crown attorneys for his testimony.
Confirms wanted to sell his saw, daughter put ad online, Tymchyshyn responded.
Yes, they spoke for 1-1.5 hours after meeting each other.
The delay in starting work for Tymchyshyn was that he had jobs of his own to finish up.
Working for Tymchyshyn would provide “steady employment.”
He had never met Tymchyshyn before. “Seemed like a nice guy,” he agrees.
No concerns at that time about him.
The times they worked at jobs varied.
There were two occasions that Tymchyshyn talked about a barrel.
He can’t say what led to that conversation. “Just came up. Not sure how it started.”
Tymchyshyn “talked a lot.”
Their in -car conversations were mostly friendly, sometimes not.
The first ‘barrel’ conversation “just came about” at a time when problems with him hadn’t started.
It was before the grow-op.
Agrees second confrontation was in presence of daughter, that it was unpleasant and angry, “tempers flared.”
He was angry. Tymchyshyn was angry.
Repeats how he was told he’d end up in a barrel like “his friend.”
He left the house, and yes, that was an indication of fear. He lost weight because of the stress of the whole situation.
“I had to leave.”
Says he’s had a “significant change” in his drinking.
Would not agree he’s a “chronic alcoholic.”
In earlier testimony agrees he said “a few beers” to him was 10, but that doesn’t make him pass out.
Yes, once in a while had a beer before work in the morning. “Not everyday, not all the time.”
It’s not fair to say he went on drinking binges.
No, the people he invited to the house were not “horrible people.”
“People drank – I don’t know what drugs they did.” [People at the house he’d invite over.]
“I’m responsible when I’m drinking, yes.”
Says he does not exaggerate or lie. “No I don’t.”
Yes, it wasn’t just a saw he was selling online, there were other items too, including a tool rack and a pool table.
No, he doesn’t think “crazy thought” that Tymchyshyn hunted him down on Kijiji.
On Nov. 2, 2012, he gave two statements, and yes, testified at a preliminary hearing in Feb. 2013.
Doesn’t recall telling cops in first statement he was pissed off at the amount of money Tymchyshyn said he was
The amount he made with Tymchyshyn’s employment varied.
It’s possible Tymchyshyn made a lot of money every day – depends on the job.
Says he used to own a farm but wound up penniless on the streets. The $250,000 property was “tied up in the
Yes, he told police he’s personally fought Hells Angels and Zig Zag Crew members, and one time, a fight with a
300 pound Mad Cowz member left him with a split nose.
Says “no” when asked sarcastically if he’s also fought the Indian Posse.
Tymchyshyn knew of his son and daughter.
No, “not very much” did Tymchyshyn discuss his personal affairs.
He knew Tymchyshyn was on charge for murder because Tymchyshyn told him, plus the curfew he was on and the probation officer turning up.
“I wasn’t a drunk.”
Yes, Tymchyshyn said the shooting he did happened in the country. The buddy was stealing crop in the country and got shot with a rifle. “He said he shot him.”
Yes, it was months before talking to police that Tymchyshyn said this.
“I’m not sure how long I worked for him before he told me (first disclosure.)
“He told other people” as well, including Vern. “Vern knew about it, yes.”
He gave cops Vern’s name so they could follow up.
“His wife’s name was Nepinak – she was in a landfill somewhere.”
He doesn’t remember names of his own employees who disclosed to him they had murdered.
That’s because he’s had “so many” people work for him over the years.
Defence [Campbell] – so he tells you he killed the last guy who did a grow op with him and you decide to do a grow-op with him?
Yes, because Tymchyshyn needed money, that he could help him get tools.
That $20,000 would be coming down the pipe from a future harvest.
“I’m not getting no deals.”
Yes, he asked police at first for a deal but they refused, said they couldn’t.
He didn’t recall telling police he was crazy and that his testimony wouldn’t stand up in court.
Shown police statement, he says that comment was just “joking around” “a sense of humour.”
“All the things that went on that day, was just joking around.”
“It wasn’t something serious.”
The cop was also laughing with him.
Having to testify has been on her mind.
She has no criminal record.
Allan Hallson is her dad.
In Spring 2012, helped him put ads online to sell things. “He can’t operate a computer.”
Believes he ended up selling most of his stuff.
He was working with Tymchyshyn after the ads were posted, doing “general contracting” construction.
Met Tymchyshyn for first time at father’s Manitoba Avenue home.
It varied how often she’d visit there. She did his laundry when his washer broke.
Her first impression of Tymchyshyn was that he “seemed like a decent guy – nice. He always helped my dad out.”
Tymchyshyn drove him to work.
Her dad tells stories that may not be true.
“He likes to exaggerate the truth,” but isn’t worried about him being a “chronic liar.”
At Manitoba Ave. home, saw a light “a UV light .. like a purplish blue light … there was walls built – new walls
She thought it was a grow op, “later on” seeing plants. She confronted her father, was “displeased” and told him this.
She once saw Tymchyshyn at the house and the grow-op came up.
[Justice Keyser issues yet another warning to the jury at this time, basically as noted earlier, above.]
In summer or fall 2012, she went to Junior’s restaurant to meet Tymchyshyn.
“Corey asked me to meet him.”
She had his number and he hears in case her dad couldn’t be reached.
She texted him to se if he’d heard from dad, he called her back.
“He said my dad was in a lot of trouble.”
They set the meet at a McDonalds, but then moved it to Juniors on McPhillips.
“He had asked me if I had ever googled him.”
She hadn’t – didn’t know how to spell his last name.
The restaurant was “fairly empty,” nobody around their booth to overhear.
He seemed “kind of anxious and upset.”
“He was upset that my dad was telling too many people about the grow op.”
They talked for maybe an hour about a few things.
“He told me the last person that fucked up ended up in a barrel.”
She didn’t know who he was referring to. It was clear to her that’s what he said.
“It was an odd thing to say. It was a very definite statement.”
She saw the comment being made in relation to too many people finding out about the grow-op.
He said dad wasn’t doing a good job at the grow op.
She texted him, he provided last name so she googled him.
After Juniors, they went to Manitoba Avenue, she got a chance to talk with dad first.
She then saw a confrontation between Tymchyshyn and her dad.
Her dad left the house “at the direction of” Tymchyshyn.
She called a friend who put her in touch with RCMP. On Oct. 29, 2012 she met with them.
The comments about the barrel and their import: “I felt our lives were in danger.”
Confirms her initial impression was Tymchyshyn was decent guy.
Was “late fall” when that impression changed.
Was concerned enough about events that she called RCMP.
It was the barrel comment that triggered in her a need to call police.
“I felt our lives were in danger.”
Yes, she told RCMP she felt dad was “a major alcoholic” at the time.
Yes, told them he liked to exaggerate stories.
Yes, told them he goes on drinking binges and isn’t always responsible when he drinks.
Yes, told them he was always hard up for money.
Yes, told them that he said “$20,000 in two months sounds pretty good to me,” to her.
Yes, he was hanging with some pretty horrible people at this time.
Yes, those people used cocaine and drank.
Yes, it was a matter of weeks between seeing the grow op and going to police.
Yes, part of reason Tymchyshyn was upset was her dad was showing other people the grow-op.
Day 12 A female juror is excused from duty for a medical issue. The panel is now standing at five men and five women. Jurors are informed of the woman’s dismissal on the record. PHONE RECORD EVIDENCE PUT BEFORE JURY through: David Bmak of Rogers Communications Don Calpito of Telus Note: the evidence of these gentlemen was largely administrative and foundational to inform jury generally regarding cellular communications, cell towers, SMS messaging. Through them, jurors were provided with the phone records of the Rogers BlackBerry believed to be used by Chad Davis and the Telus records of the cellphone believed to be used by Corey Tymchyshyn between Feb. 1 and Feb. 23, 2008.
It’s important to note: It’s impossible to really tell if a call or text these phones produced was actually made by the person the device is linked to. For example, we see through coming evidence that appears George Lancaster [see prior evidence summary] used Tymchyshyn’s device on the afternoon of Feb. 6, 2008 to telephone his ex wife and his bank.
Notable, from Calpito’s evidence:
Telus’s phone records: “As far as I’m aware, they’re extremely accurate.”
There was no Telus service available in Lac du Bonnet in 2008.
A criminal intelligence analyst with RCMP D Division
Was tasked by serious crime unit officers with sifting through “overwhelming” amount of phone data in the case.
Has bachelor’s degree in criminology, an MA in sociology, needs dissertation to finish PhD.
Analysed records from Davis’s blackberry cellphone 204-296-6036.
Provided a listing of cellphone tower sites.
995-8224 was the number associated to Tymchyshyn.
She prepared a “timeline” chart [see photos] on direction of the Crown, for the jury.
The range of the chart is from Feb. 4-7, 2008, they don’t capture all calls or tower hits or texts, only select “notations” from that time period.
She explains timeline chart, how the lines move horizontally through time.
She does not know who was actually using the devices, only that raw data shows contact from number to number.
[Defer to chart photographs to understand this – she takes jury through specific items on timeline.]
February 6, 2008, select call records show (times reflect when call hit a cell tower)
(Key: DS Cell/Landline = Brincheski’s wife’s landline, cell; CT = Tymchyshyn cell; CD = Davis cell)
An incoming call from DS landline to to CT at 8:30 a.m., 28 seconds duration.
Outgoing from CT to 204-831-658# at 10:26:38 for 13 seconds.
Outgoing from CT to CD 10:27:20, 14 seconds.
Incoming to CT’s phone from 204-831-658#, 327 seconds.
Outgoing from CT to DS landline 10:33:44, 24 seconds.
Outgoing from CT to CD 10:50:59, 31 seconds.
TEXT: sent from CT to CD at 10:56:25 – “call me before you come, Kirk mite come by before you.”
Outgoing from CT to CD at 11:05:55, 31 seconds.
TEXT from CT to CD at 11:07:08 – “Bring a splif.”
TEXT from CT to CD at 11:09:49 – “don’t bring poop here.”
Incoming from CD to CT at 11:18:49, 59 seconds.
Outgoing from CT to DS cell 11:33:40, 40 seconds.
Outgoing from CT to CD at 12:21:06, 8 seconds.
Outgoing from CT to CD at 12:26:51, 24 seconds.
Outgoing from CT to DS cell 12:27:22, 10 seconds.
TEXT from CD’s cell hits a tower at 650 Raleigh St. at 12:41:45 (content unavailable)
“All further calls go directly to voice mail” – regarding CD’s cell.
From Feb. 3 to this date, 16 calls of CD went to voicemail. After this, all 186 calls go to voicemail.
“After this day, all calls go directly to voicemail.”
CD’s phone was never picked up again after 12:26:51
“There was no outgoing activity off that device after that time.”
TEXT from CT to DS cell at 12:43:55 – “we will be in soon.”
TEXT from CT to 204-810-2081 – “he’s wearing a hat don’t miss.”
DS Cell number was 204-801-2081.
The 810 number was never dialled by CT’s phone before or after this date. It was the only time the 810 number came up in the data she had.
Outgoing from CT at 13:13:08 to S. Lancaster, 23 seconds.
Outgoing from CT at 13:19:10 to Assiniboine Credit Union, 88 seconds.
Outgoing from CT at 13:31:54 to Assinibojne Credit Union, 62 seconds.
Outgoing from CT at 13:36:38 to S. Lancaster, 28 seconds.
Incoming to CT from DS Cell at 13:47:13, 9 seconds.
Outgoing from CT to ? at 14:12:39, 47 seconds
Outgoing from CT to ? at 14:17:29, 21 seconds
Outgoing from CT to DS cell at 14:2?, 18 seconds.
TEXT outgoing from CT at 16:23:33 – “like my underwear.”
TEXT into CD’s phone at 19:14:32 – hits off a tower in Selkirk/St. Andrews area.
There are no other calls on CT’s phone between 15:07 and 17:48
“There are no phone calls” – for three hours and 24 minutes there’s no activity with CT’s phone.
At 19:51, 53 and 55 three calls totalling 170 seconds hit off tower at 311 Partridge St.
At 19:56 and 19:58, two calls totalling 67 seconds go in to CT cell off King Edward and Notre Dame tower.
(it goes on like this for a while – see Crown timeline)
On Feb. 7 at 13:24 a TEXT from CT states: “not sure bro, all I know is he need me to pick him up in a few days.”
On Feb. 7 incoming TEXT from woman, TG to CT at 22:29 states: “Hey I talked to Courtney, and I just played dumb to everything. She doesn’t think I have your new number either, so if anything’s said, just pretend we haven’t talked.”
CD’s phone never gets a call from DS landline or cell in the records Tillotson had.
Court adjourns to deal with an issue with the cell-tower map
DAY 13 – Court not sitting Day 14 Tillotson, direct continued.
Takes jurors through the cell tower map [see photo]
States it’s “absolutely not” easy to make changes to the map because of the complexity of how data compiled.
Lawyers for Brincheski introduce their own chart of phone records.
Agrees there’s a lot of numbers and names not included on the Crown’s timeline.
14 numbers are listed off, two she was unable to confirm subscriber information for after checking RCMP database records. Checking the subscriber information was not part of what she was tasked with.
“Fair to say” it’s difficult to just look at the data and sort it all out.
“I’ve never been asked to do a full call analysis on this file.”
Was provided phone numbers of interest and asked to plot them on the timeline.
Questioned about the “various numbers” line on the chart, asked why it was done this way.
Without it: “The chart would have gone on to infinity.”
The 810 (“don’t miss”) text was left hanging on the timeline because it was so similar in nature to the 801 number.
She can’t recall being asked to look for subscriber information for the 810 number.
There’s an error with one of the numbers for the Super 8 motel on the chart.
Between 9:44:58 on Feb. 6 and 10:21:38, CT’s phone makes 8 calls to various people/voicemail that aren’t on the chart.
There’s discrepancies in the “duration” of calls between CD and CT records.
This is because outgoing calls start clocking when ringing starts on other end, clock on other end when answered.
(For example, CT’s records show a call to CD at 11:05:55 that lasted 31 seconds, while CD’s records show it was a 6-second call that went to voicemail.)
CT’s records were used for the timeline for continuity “across the board.”
Davis’s records show he made/received a number of calls that morning not on the timeline, including to RMG at 12:05:41 and five calls to/from SW between 11:39:33 and 12:21:50.
She wasn’t asked to add those on the timeline.
“That’s not a number I was provided” (SW’s).
There’s an instance on chart where number for S. Lancaster is incorrect by one digit.
She was only provided “very limited” information about the RCMP investigation, attended briefings. Did not have access to witness or other statements.
On the (suspicious?) texts that were included on the timeline: “They stood out as being unusual.”
There were several calls between CT and KZ that day that weren’t mapped.
This includes a 74-second call at 11:27:40 and another at 11:42:43
No, these calls were not included on the timeline meant to assist the jury.
“The request from the investigators at the time was very limited and specific.”
A call from AB at 21:04:20 should have been mapped to the “various calls” line, not to DS cell as the timeline indicates.
For Feb 4, CT’s device got/sent 37 total calls and 4 texts were sent. On the chart only three of the calls were plotted, and no texts.
For Feb. 5, CT’s device got/sent 23 total calls and 15 total texts, 5 calls were plotted and one text for the timeline.
On Feb. 6, CT’s device got/sent 69 calls total and 12 texts.
[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.
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 here, here 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.
“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.”
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.
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.”
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.
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.
[Republished without editing from the Winnipeg Free Press ‘Crime Scene‘ blog on Sunday, Jan. 26, 2014]
Two men on trial for a ghastly crime: The alleged first-degree murder of a handsome young Winnipeg man, a cocaine dealer, who went missing for months and was found July 23, 2008 in a barrel pulled from the Lee River.
Corey Tymchyshyn and Kristopher Brincheski are accused and presumed innocent.
After week one of the hearing, here’s a breakdown of the evidence Crown prosecutors have presented thus far in this deadly serious case, which they say occurred Feb. 6, 2008. Davis’s disappearance after this date was a missing persons investigation until his body was discovered.
[You can read Crown attorney Keith Eyrikson’s opening address to the jury here to get the crux of the allegations. This lenghty post is more to ground readers on the actual evidence that’s being presented].
Also, I’ve presented it (with one exception) without distinction of whether the evidence was led on direct by the Crown or cross examination by defence lawyers.
I suspect to the 11-person jury, it’s important they just hear it all and then try to sort out what’s what. It’s the answers, not the questions, that are the evidence.
And remember: the golden guideline is, they can accept all, some or none of what a witness tells them.
Lives in Winnipeg, owns cottage on the Lee River since 1989 that he built himself. Goes almost every weekend in the summer, not as often in wintertime.
Has never seen the Winnipeg River completely frozen, “not really.”
The current of the water on the Lee River at his cottage flows north to south, is “fairly strong” in the centre. “Not much” from east to west.
A public walkway to a dock next to his cottage is meant for cottagers in the area, “backlotters,” who don’t have waterfront property.
On July 5, 2008, saw barrel in water. Thought it may be debris from a dock that had broken up elsewhere. On this day, he rolled it onto the shore as far as he could. It was black and had holes near the plastic lid, which was sealed with a steel snap ring.
He left the item there until July 23 when he and another cottager moved to move and dispose of it. He unsnapped it and saw a white/black tarp inside. The friend pulled on it until he saw a “belt and pants” inside. The friend had a better look and told him to get out.
They did and called police, who arrived in 5 minutes. He did not take anything out of the barrel.
Says he didn’t open it at first because he was alone, that’s why he left it for two weeks.
Admits anyone could have come and gone up and down the public walkway to use the public dock, which isn’t supervised.
Shown picture of current winter conditions in the area, can’t disagree the water appears frozen over.
RCMP Cpl. Maria Forester, forensic analyst [first appearance]
July 23, 2008: learned at 1:30 pm she was being dispatched to Lee River scene. Arrived there at 4:23 p.m.
Serious Crime Unit and RCMP divers there already.
Barrel is now turned upright, wrapped in a shroud and then fished out with a winch.
Her next involvement was next day at autopsy at HSC.
The “pebbled texture” of the barrel not good for fingerprinting.
Barrel is cut to extract the person carefully from the Barrel.
Victim is wearing grey socks, a Versace black jacket, blue jeans and a grey hoodie.
He has a black extension cord around his neck.
A baseball cap with rhino symbol and gloves are also in the barrel.
Samples taken for DNA analysis.
A “black coil” is found amongst the materials post removal
Barrel was seized and taken back to the RCMP forensic lab on Academy Road for testing.
A room is set aside specifically for this case.
The barrel is 90 cm tall and 58-59cm wide.
Fingerprinting done on it.
May 20, 2009: Further testing on barrel and tarp [a laser-light exam]
Day 2: Forensic Pathologist Dr. Thambirajah Balachandra
He’s Manitoba’s Chief Medical Examiner, has been since 1999, directed autopsy of Chad Davis
Says barrel was cut with a saw to preserve as much as possible.
“Heavy objects” like a large square piece of metal and some pulleys found in the barrel.
The small bit of black plastic recovered “appeared like a corkscrew,” “probably came from the barrel.”
The victim has a tattoo, the word “Davis” in Old English lettering on back of left upper arm.
Weighed 130 lbs at time of autopsy.
Cause of death ruled to be: blunt force to the head, “multiple blows received to the head.”
Just one of the skull wounds the victim received may have caused incapacitation, a fall and perhaps death.
“He did not die within weeks, probably months.”
Temperature of the water would have an effect on the degradation of the body.
Rice could be identified in his stomach contents.
“An object, something like a hammer,” could have caused the wounds to head.
It’s consistent with findings that he was hit from behind with hammer.
Evidence of drowning: none he could find.
The cord around his neck was loose, and no associated trauma from it.
No evidence of defensive wounds on his body.
Couldn’t say if victim bent over, already down or standing when struck.
“I can’t say with certainty how this happened.”
Injuries to front of face not consistent with being hit there, more likely from fall.
Again: “I can’t say exactly how this happened.”
Can’t say if one attacker or two.
Courtney Sych, Davis’s girlfriend at time he went missing Feb. 6, 2008.
Davis had been her boyfriend on and off for 1.5 years.
“At that point, he was my world. He was all I had.”
Not always the nicest guy, especially towards start of their relationship, as it progressed, “he was a great guy.”
Fall 2007 into winter 2008, they were on/off a few times.
Says they got back together on Dec. 27, 2007.
Jan. 12, 2008, she left Winnipeg to go to B.C. for work, was “kind of looking for a fresh start,” mom in BC offered her one.
“We cried a lot when I left for that airport.”
She came back to Wpg on Jan 30, 2008 when Chad asked her to come back and paid her ticket.
She went to meet him at Hargrave Street apartment where he lived with “Corey” [Tymchyshyn] at the time, stayed with him a couple of nights there.
They talked of going to Calgary together.
Tymchyshyn was moving back with mom at 703 Prince Rupert Ave. because he didn’t have rent money.
She and Davis started staying in hotels, first the Capri, then the Westwood Super 8 and then the Red Lion Inn.
He’d call his mom once a day. Parents are “amazing people” he was close with.
Davis wasn’t skinny.
He was “OCD” about his appearance. “Everything had to be perfect”
He wore expensive brand-name clothes because he wanted to look sharp. He wouldn’t go out unless he looked good, clothes matched.
He was protective of his possessions.
Never saw him lend things to friends.
Was he cheap? “He wouldn’t waste money.” Not flashy with cash.
“He wouldn’t ever” take cabs, even if drinking. “He had to do it himself. He wouldn’t rely on a cab driver or a ride.”
Never saw him leave things at friend’s house.
Knew he had a storage locker at Dino’s Storage – thought that Corey hooked him up with it.
They went there once, put boxes in there they didn’t want to take to Calgary.
Admits he sold drugs, and that no-contact order was in place between them after incident at her workplace.
She has no criminal record.
On Feb. 6, 2008, they were “the best they ever were” at that time.
They moved this day to the Red Lion Inn on Portage. Was a “cheap place” and she hated it.
Were to leave to Calgary on Feb. 8.
He said before they left, he had to have something fixed on his truck and “collect a few debts from a few people.”
Prior to arriving at Red Lion, he and Tymchyshyn spoke, he said he needed a ride.
They arrive at Red Lion at 11:30 a.m. checked in
Had lunch at Chinese food place attached to hotel. She’s not 100 per cent sure if he had rice to eat.
They then grabbed small amount of things from his Jeep, which was full of stuff for their move.
They went to room, it was “cheap,” and “only for a few nights,” he told her.
He said he had to go give Corey a ride and he’d be back in half an hour – his last words to her.
“All of his luggage” was in the Jeep, including a black Swiss army suitcase. There was also a Rubbermaid container.
She left a duffle bag in there, boxes.
He left his “perfect” eyebrow tweezers in the room and a laptop bag and a day planner.
“I was a nosey girlfriend. He’d tell me stuff. But he wouldn’t tell me everything.”
“Raspy” was Tymchyshyn’s nickname.
The planner was to keep track of who owed him what money. He never used real names, but nicknames.
On a loose slip of yellow paper in it, “Raspy” is listed [among other names] with the numbers 21,850 and 26,850
He left his wallet in the hotel room with ID in it and credit card.
She discovered $5,000 cash in his laptop bag. “Thank God he did” as she was totally broke.
Two hours pass, and he’s not back. Using pay phone in hotel, she decided to phone him repeatedly.
Called him that day “as much as I possibly could have.”
He only had the number of 296-6036 to her knowledge.
Called Tymchyshyn’s mom’s line to leave him a message.
The next day, tried calling hospitals and his friends, who didn’t seem concerned at all.
“I don’t care about you. I don’t care about Chad,” one told her.
She ended up living on the $5,000 she found.
When he left, he was wearing a “Hardy” belt, name brand jeans, hat with rhino symbol on it and black Versace jacket.
Davis “really liked watches.”
His jewelry box was in the Jeep, wooden with mirrored back. She ID’s box shown to her in court [in evidence bag] as being his.
Says she saw him pack “not neatly” when leaving Tymchyshyn’s Hargrave apartment.
She’s shown other items – a cardboard box with Davis’s family’s business logo on it and her handwriting, a floor lamp and a nylon DVD case – IDs them as his.
Says the lamp was in the storage unit at Dino’s. Her pillow, pink, was also shown to her.
She spoke to RCMP on three occasions in the homicide probe.
She’s positive the heating pad she’s shown was in the Jeep at the time she last saw Chad.
Sych describes watches Davis wore – one of them slightly broken, missing a strap pin – and posters he had, including a “Scarface” poster.
Davis’s key to get into the lock on the storage unit door at Dino’s was kept in his Jeep’s cupholder.
He owned two TV sets, one a “flatscreen” the other heavy and “old school.”
She was at Davis’s funeral. Tymchyshyn was not.
The message she left on Tymchyshyn’s mother’s line on Feb. 6, 2008 was not returned.
DAY 3 – Sych returns, cross-examination
Had been to Tymchyshyn’s mother’s home on Prince Rupert “a while previous.”
Agrees the distance between Red Lion Inn and Tymchyshyn’s mom’s is “polar opposite” ends of city.
Davis’s half-hour estimate of being away was a casual statement, not a definitive timeline.
He could have gotten texts or other calls when they were eating at the Chinese restaurant.
She can’t recall Davis getting other calls other than the one from Tymchyshyn.
She remembers seeing the phone lying on the bed, seeing it was Tymchyshyn’s number.
“I have no idea” if Davis got call from another friend, SW, when they were eating.
SW was a “nice boy” whom Chad would smoke up with sometimes.
SW was one of the only people who seemed concerned after Davis went missing.
His other friends: “I always told him they weren’t his real friends – more like business associates.”
Another of Davis’s friends said: “go f’ yourself, and you and Chad go f’ yourself.”
Another, CC, suggested she had something to do with his disappearance on first conversation, on second, he was more helpful. Told her to “wait it out,” because “Chad’s a little on the weird side sometimes.”
She couldn’t say if these men worked for Chad in his drug business or were friends. “I fully 100 per cent do not know.”
Admits he had vanished without telling her once before, in 2007 when he upped and left for Toronto. This upset her.
He had also not called her when he was arrested for a drug matter and stopped answering her phone.
Admits after Davis went missing on Feb. 6, she found the money in the bag and went for a friend to have a drink.
Talk of going to Calgary was not spontaneous or out of the blue, it had been discussed before.
She says she doesn’t remember telling Davis’s mother in Feb. 14, 2008 call that he was taking her out to Calgary and then coming back.
Admits there was a no-contact order between them at the time. “I was looking to get the charges dropped … the no-contact order.”
There’s a note in the day planner for Feb. 5 to call Legal Aid and a phone number, but can’t recall if that call was made that day. “There was a few phone calls.”
She and Davis planned to leave without dealing with his outstanding warrants ASAP. The assumption was he’d come back and deal with them.
How drunk did she get on Feb 6 with her friend? “I’ve never been incredibly drunk that I didn’t know what was going on. I was not stumbling … slurring my words – I have never been that way.” But is a lightweight when comes to drinking. (Statement) Told police on Aug. 7, 2008 that she and friend ended up getting “right retarded” after going for the drink on Feb. 6, 2008.
“I was never a disaster drunk.” – can only tolerate so much, saying she hadn’t eaten all day.
Over next few weeks: “I really drank myself stupid every day.” “Because I really didn’t know what was going on.”
Yes, it was Davis who paid her way back to Winnipeg from B.C.
The list of names and numbers in the day planner was, to her, a score sheet. “That’s what I get out of it. That they owed him money for drugs.”
Yes, Davis had a temper and would sometimes take it out on her. But he had “softened up … with me.”
“His whole self, toward the end (became) more gentle, caring, thoughtful.”
The worst he’d even been to her was in their initial weeks of dating. “A lot of girls like the bad boys.”
Saw hope in him, that he needed love in his life.
“Me staying with him made him a better person in the end. He needed my love … I gave him chances, and I’m glad that I did.”
Yes, his lifestyle was risky
He had “tons” of people who didn’t like him. “I don’t know how many times i had to fight, to say there’s a different side to him.”
In one of her police statements, she said there’s a typo in that one of his perceived enemies was not SW, his friend, but a Hells Angels guy. (She couldn’t say that he definitely was an HA).
He and another friend, MK – had a falling out and over money, now they “hated” each other.
Davis would have no problem punching someone out. He had access to a gun in the past. “He wouldn’t carry it with him, per se.”
RCMP asked her to describe various objects to them. She was not shown items by them. “They said it wasn’t allowed.”
Says she initially tried to pass day planner off as her own in an effort to shield Davis from police scrutiny (before he was found dead). They ended up taking it anyways.
In police interview on March 10, 2008, was not trying to mislead police in any way.
Yes, told police “he can be a puke,” that Davis, “mentally, he wasn’t all there, that he had problems.”
Yes, told police he didn’t have a lot of friends because he can be “cocky.”
The history of domestic violence between them was “not severe.”
Dec 27, 2007 was the date she moved in with Davis on Taylor. He had been living with a friend, RMG, but he told her it was Tymchyshyn. So he lied to you? “Yeah.” (shrugged).
Davis was paranoid about police.
“He was a secretive person” and wouldn’t surprise her he didn’t tell his parents about moving to Calgary with her.
Tymchyshyn had the password to Davis’s laptop when they lived together. She didn’t.
Yes, he had used steroids in the past and his temper was worse when he did.
Agreed she told police in statement that she didn’t know what to believe when Davis said things. “Sometimes, yeah.”
On back of “scoresheet” was numbers totalling up to 287,000 (this is imputed to be dollars).
No, he never mentioned having that much money.
Davis and Tymchyshyn had been “good friends,” but sometimes called him “a goof.” But then, they’d hang out again.
She wasn’t 100 per cent sure they had a grow-operation together, Davis said it was Tymchyshyn’s but he’d help with it.
Yes, Davis used BBM “Pin” function a lot to ensure security of communications.
No, one of his oldest friends, RMG, was not at his funeral. A lot of people expected there were not.
Corey didn’t like you. “I know.” And you didn’t like Corey. “I know.”
Det. Matthew Freeman, Winnipeg police (organized crime as of Feb. 2008, now major crimes unit)
Has taken hundreds of statements from people over his 14+ years as a cop
Feb. 12, 2008 – was assigned with other OCU’s to look into General Patrol report made by Sych that Davis was missing. OCU involved because of Davis’s connection to drug trade.
Spoke with Tymchyshyn’s mom on Feb. 15, 2008, at home on Prince Rupert, last place Davis had been heard from or seen.
Spoke with her in kitchen for 20-25 minutes: “I found she was incredibly nervous and incredibly anxious.”
That led to Feb. 19, 2008 conversation with Tymchyshyn at Prince Rupert after playing “phone tag” with him for a couple of days.
He asked to speak with Tymchyshyn in cruiser car for privacy. He was not under arrest, could have left.
The tone was “fairly genial, fairly light.”
“There was no other information at that time to suggest anything else had happened” (it was missing persons case).
Tymchyshyn said he met Davis via mutual friends in summer 2007, were former roommates on Hargrave.
That he and his girlfriend had a rocky relationship.
Took Tymchyshyn’s phone number and DOB.
What Tymchyshyn told him: (according to Freeman’s notes and recall, in italics) he last saw Davis on Feb. 6-7 in early afternoon at Tymchyshyn’s mom’s home. He came over there.
They were supposed to go to a hydroponics store in Davis’s Jeep.
Said Davis visited with him and mom for 30-60 mins, “was in good spirits.”
Had seen him using his BB and texting.
A white-coloured cab came, he couldn’t say what company.
The driver was an East Indian male who was clean shaven and had black hair.
Davis appeared to be familiar with him because they shook hands.
Davis took a black suitcase and a blue Rubbermaid container out of his Jeep and put them in cab.
Was not aware where he was going.
Davis said he “was going out of town for a few days, that (Tymchyshyn) needs to come to pick him up when he returns.”
His other friend, RMG, was to come get the Jeep from Tymchyshyn, that the keys were left with Tymchyshyn for that purpose.
Tymchyshyn admitted he owed Davis money for cocaine, $18,000.
“He made it clear to us it was for personal cocaine use.”
The debt had accumulated over 30-45 days,
He had repaid that amount to Davis through income at his legitimate job;
And also by lending Davis the use of his Chevy Avalanche “for a period of time.”
The Avalanche had been returned to him by RMG on Feb. 12 or 13. “The debt had been paid, and now it was OK to have the truck returned.”
Some East Indian males had been using the Avalanche.
Tymchyshyn said “he was concerned about Chad and had no idea where he’d gone.”
Birth certificate of a man named Siran was found in the Avalanche when he got it back, Tymchyshyn had said.
Freeman: Kris Brincheski’s name never once came up in missing person’s investigation.
Freeman says he never got a call from a man named Michael Goulet or from Dino’s storage.
Admits he had no “baseline” to judge Tymchyshyn’s mom’s behaviours and mannerisms.
Tymchyshyn never said he sold cocaine.
“I was actually kind of surprised he (Tymchyshyn) acknowledged the debt in the first place.”
ADMISSION OF AGREED FACTS
Police were tasked with finding out of taxis (white ones) dispatched to 703 Prince Rupert after 12 noon on Feb. 6, 2008
There’s no record of any cab being dispatched.
Spring Taxi could not provide records because they no longer existed. The company does have white cabs in its fleet.
Day begins with two questions from jurors, who want to know how much cocaine $18,000 could buy and at what designation [wholesale or retail]. They also want to know if there was a delay in asking Spring Taxi for their dispatch records. Justice Brenda Keyser acknowledges the questions on the record and asks them to be patient and hear all the evidence before deciding to seek answers.
Next witness, Lori Davis
Is Chad Davis’s mother.
Calls Davis, “my baby boy,”
Says he was a “physical fit buff” and thought he was a good-looking guy.
Davis struggled in school, “he had to learn everything the hard way … like a wild stallion sometimes.”
“I talked to him all the time. He called me daily, generally … it was the norm for us to talk to Chad every single day.”
Even if he left town, he’d still phone, even if the details he gave were sketchy
“It would be abnormal, absolutely” to no hear from him every day.
He liked to look good, liked “bling” like jewelry and watches.
He was “meticulous” about caring for his car, “it was his prized possession.”
“He told us he would trust no one with his car except for his dad.”
Davis had two big screen TVs.
“Chad would always make it clear to us he didn’t trust his friends … he didn’t lend anything out. He didn’t trust anybody.”
She did not know him to take taxi cabs, that if he ever needed a ride, he’d call his dad.
Phone was attached to dad’s hip: “the Chad phone.”
“The bottom line is we loved our little boy, we wanted to keep him safe. For 22 years all we wanted to do was keep him safe and we couldn’t.”
Davis “didn’t like rules … was extremely defiant.”
She became aware when he was 19 that he was selling drugs. She says she sort of “stalked him” to keep tabs on what he was up to.
She and Davis had talked about him getting out of town to get a fresh start.
As of fall 2007, he had been living in suite on Taylor, alone.
He asked for help moving out of there because he wound up in jail for a short time.
She and husband “put his stuff into storage.” – Dino’s Storage.
For the couple of months before he went missing, had been living with Tymchyshyn.
She didn’t know he moved again after living with Tymchyshyn.
Some of his things – like a black sectional – wound up in her home because Davis was afraid it would get wrecked in storage.
Davis came for dinner on Sunday, Feb. 3, 2008, stayed about 1-1.5 hours (usual amount of time).
Saw him next day, Feb. 4, when he “popped by” to deal with a car issue.
After this day, 48 hours passed and she began getting worried because they hadn’t heard from him.
The only time he had stayed out of touch for more than 48 hours in past was when he was in lockup and couldn’t access phone.
He drove a Jeep Grand Cherokee. She saw it when she and husband went to go pick it up from Tymchyshyn “the next week.”
It was Chad’s dad who went to door to get keys. They drove vehicle to their business.
Says she quickly looked inside it, saw a case of water bottles and a box of cleaning supplies. And, a big speaker.
She did not see a suitcase nor a rubbermaid container inside.
This was around Feb. 11-12.
Police eventually called to ask to search the Jeep, now parked in their driveway. “I can’t recall the exact date.”
Police took vehicle and then gave it back.
After Davis’s homicide was discovered after he was missing for 189 days, RCMP wanted the Jeep.
On March 6, 2008 told WPS missing persons investigator she believed Sych, the girlfriend, “had lied in the past,” was emotional and temperamental in her view.
Davis was a “hot head,” had a temper.
She knew Davis had a tattoo.
“Yes, he was secretive, absolutely.”
He wouldn’t give parents his apartment number on Hargrave.
“He kept us absolutely totally protected from his friends – he trusted absolutely no one.”
“He changed phones like he changed underwear,” she told police.
The last number he had came up under the name ‘Ray Sanchez.’
“He never appreciated rules,” “didn’t have a firm grasp of cause and effect,” told police.
She didn’t know Sych was even in town prior to Feb. 6, 2008.
Sych had once asked Davis’s parents for $100 when he upped and left her with no money. She never asked again.
She was totally worried about the lifestyle Davis lived, was aware violence was sometimes involved.
She cannot recall Davis having a red Infiniti prior to his Jeep.
Was not aware that Davis had loaned the Infiniti to Tymchyshyn when he was in jail, as defence contends.
“He could be mean … to others. He wasn’t mean to me.”
At the Sunday dinner on Feb. 3, 2008, Davis didn’t mention Sych was back in town.
Sgt. Ralph Lucas, WPS forensic identification unit
Twenty-eight year veteran of the service, 12 years in ident.
Was assigned to Davis missing persons investigation on March 5, 2008, to examine Jeep. Reviewed prior reports.
Yes, there are things now he wished he had seized as part of the investigation.
10:50 a.m. March 5, Jeep (1999 black Grand Cherokee) at PSB for exams. No exterior damage found.
An older am/fm unit inside the back, looked as if new stereo installed.
A “box speaker” in the back cargo area.
Also in cargo area: “little bits of black coiled plastic.” He thought likely related to installation of stereo.
Two packs of gum, CDs, vehicle registration and a “U-type” lock in glove box.
He taped for hair and fibre, swabbed areas for DNA and tested for blood. None found. Fingerprinted as well.
The bits of plastic were not seized, only a photograph of them remains.
Was not aware of any DNA results as a result of his work this day. He agrees the police procedure of testing for blood with “hemosticks” can result in false positives.
Automotive installer, had met Davis through the Canad Inns club scene and agreed to install a new system in his Jeep.
Thinks he worked on the vehicle – over a two day period – before Christmas 2007.
Says the Jeep had a factory stereo which he removed. He cut, not drilled a new bracket plate.
No plastic was drilled by him. It’s all metal, he said.
The subwoofer box was not drilled at all.
The small plastic shavings Lucas noted [shown picture] were not from any work he did.
He cannot remember if he did any vacuuming of the vehicle when he had it.
RCMP Cpl. Maria Forester, forensic analyst [second appearance]
At 3 p.m on July 28, 2008, she met with lead homicide investigator for RCMP, was given a speaker box and a box of cleaning supplies from the Jeep.
July 29, 2008: Did a white light exam of the Jeep, “particularly in the hatch area.”
Also did hair and fibre tapings, used forensic light source as a “followup,” was aware WPS went over the vehicle.
Tests for blood in the hatch area were negative.
Box of cleaning supplies: There was a bit of black plastic attached to a green cloth in the box, and a second bit found as well.
“They were very similar to the black coil found at the autopsy.”
Dec. 11, 2010: A reexamination of the vehicle to get measurements of the hatch. Was 100 cm across the top, 115 cm at the bottom and 78 cm high.
The barrel, she recounted, was 90 cm tall and 59 cm in diameter.
The barrel fits in the back. “Yes it does. If it’s lying down.”
Sept 19, 2012: Experiments done with a similar vehicle to see if barrel of similar kind and size fits.
That vehicle, however, has different wheel-well humps than Davis’s vehicle.
The interior of the hatch not measured.
The shavings WPS noticed and photographed were never on the RCMP homicide file.
Day 5: Stuart Davis
Chad Davis was his son.
“Chad would talk to me every day, every other day.”
They had very open and “very specific” communication.
He didn’t pry into Chad’s business out of a desire to not drive him away by making him angry.
He carried his cell with him at all times, Chad would call him anytime.
It would be “very abnormal” for the two not to talk.
“Not to my knowledge” would Chad take cabs.
“He took real pride in his possessions and his looks.”
Chad would not lend his things out.
Chad was “very leery” about his his friends, didn’t trust them.
He was aware of his having a red car before, it had been delivered to Stuart one day at his office, didn’t know by whom. This was the summer before his disappearance.
⁃Chad came around all the time, every other weekend for Sunday dinners.
⁃Chad always had a cellphone, a variety of names would come up on the call display.
While he didn’t see any activity directly, “I assume he dealt drugs.”
Chad had expensive tastes, including a $10,000 watch
In fall 2007, he knew Chad was in jail.
He went into his Hargrave St. apartment at the time to pack up his things – using boxes from his business to put smaller items in.
He took them to Dino’s Storage and rented a locker there using his own credit card.
Jan. 13, 2008: Chad was moving out of his Victor Lewis (Taylor?) apartment and used the same mover as Stuart had previously in the fall.
Chad brought furniture to their house. In the moving van, saw his projection and plasma TVs, along with boxes Stuart had given him to pack with.
His understanding is the truck was bound for Dino’s Storage, but couldn’t say for sure.
On this day, Chad gave him the key to the storage locker, but not an electronic passcode.
Feb. 3, 2008: Chad came for Sunday dinner. Was “pleasant” that day. Was to see his son the next day to take his Jeep (Stuart was its registered owner) to get an immobilizer installed.
They traded vehicles on the 4th of February, trade back.
Spoke to him on Feb. 5 – Chad called him. He wasn’t aware of any impending “big life change” for Chad.
Started to get worried the next couple of days when he didn’t hear from him.
By that Friday, his wife called police to see if they had any information.
He contacted Tymchyshyn’s mom on Feb. 12. He went to 703 Prince Rupert Ave., spoke with Tymchyshyn and was given the Jeep’s keys.
He drove the Jeep back to his business.
He looked inside it. There was a package of water bottles, a box with cleaning supplies.
He took the box out of the vehicle and stored it in an officer storage area. There are no plastics in that area or anything from which “plastic shavings” could be derived from.
“There’s no chance of anything coming from that end.” “We just used it for storage.”
All people at the business had access to the room. In the garage of the workplace, there’s no tools that could generate plastic shavings.
He was asked to bring the box – which he’d moved to his personal garage around summertime – to RCMP in July 2008.
“The Jeep was very clean.” He himself had noticed the plastic shavings inside after putting the seat down.
“It’s a black car, so anything black would be hard to pick out.”
He spoke with Courtney Sych who told him about the key to the storage locker in the Jeep. He didn’t find it.
He matched up the key he had to those in the vehicle. They didn’t match.
On Feb. 12, 2008 – had given key he had to locker to WPS.
On March 1, 2008 – he went to Tymchyshyn’s mom’s again. Led to a phone call from Tymchyshyn that day.
He wrote down the number Tymchyshyn called from.
They spoke of storage locker. Tymchyshyn said he had one at Dino’s, where he kept his stuff, his “coke,” but Chad didn’t have one there.
“He was claiming it was his locker, not Chad’s.” “He said Chad did not have a locker at Dino’s.”
March 5, 2008: WPS came to take car for missing persons investigation. Stuart said he didn’t clean it, wanting to “preserve it” for the police.
Police ultimately told him he could come and collect it. He asked what he should do with it. “You can do whatever you want with it,” he said he was told. “They were finished with it.”
July 28, 2008: RCMP want the Jeep. He also handed over the cleaning supplies that were inside.
He was aware Chad’s credit card statements came to his house. After Feb. 6, there was no activity on them.
Tymchyshyn’s cell number as of March 1 was 995-8224.
He identified a DVD player seized by RCMP in the homicide probe, along with two remote controls – one he said he bought Chad and programmed himself.
Through pictures he was shown, identified two TV sets as belonging to Chad.
When he first rented a storage locker at Dino’s in fall 2007, said he doesn’t remember if he had to supply a lock for the locker or not.
Yes, he kept conversations with Chad to “non-threatening topics” out of fear of losing relationship with him.
“To my knowledge,” Chad didn’t take cabs, but acknowledged that if he did in connection with his drug-activities, he wouldn’t know that.
He had trouble understanding why Chad and Courtney were together.
He had 8-9 numbers in his cellphone which Chad had used in the past.
“I did not spend a lot of time” going through Chad’s Jeep after picking it up.
He had only been in the Jeep once before – the day he took it to immobilizer appointment.
Couldn’t say how long Chad had the vehicle at that point.
Says no, he didn’t have eyes on the box in the storage room at all times.
There’s no reason why Davis couldn’t rent a locker on his own, he agreed.
He had no knowledge of the locker being Tymchyshyn’s since Jan. 31, 2007.
A red G35 Infiniti “rings a bell” for him.
He couldn’t say who had the red vehicle when Chad was in jail.
It could be that Chad’s friend RMG was the person who brought it to him at the office that day. From all he knows is someone had access to use it, possibly just to deliver it to Chad.
He had no impression of Tymchyshyn as “a thug” or was difficult to deal with.
Det. Sgt. Will Degroot, Winnipeg police organized crime unit
Winnipeg police for 15 years, variety of roles/assignments.
Feb. 13, 2008, had met with Davis’s parents to search for ways to further the missing persons investigation.
Stuart Davis gave him key to Dino’s Storage locker.
Wanted to go there to see if anything had been take to suggest Davis had moved.
Met with Michael Goulet, the manager there.
Found out from him that Davis had a locker there, but in Tymchyshyn’s name.
They walked over to it and Degroot allowed to look inside.
Used the key Stuart Davis gave him to unlock it.
Just odds and ends inside, nothing of apparent significance. “Just furniture and household items.”
Got a printout showing times when facility had been entered.
Knew of Tymchyshyn. Never got a call from him asking if he could clear out the locker, knew nothing of any such request.
Price of cocaine fluctuates on supply and demand.
In 2008, he said price was lower than today. A half-kilo would be about $18,000.
“The more you buy, the better the price.”
Could not speak to consumption, as in how much of the drug a person could consume over a period of time.
On Feb. 13, 2008, Degroot also contacted Blueline Taxi and Duffy’s. No record of dispatches. Other officers were looking into other cab companies.
He saw two mattresses, some stereo equipment and other belongings in the locker.
In 2008, was facility manager of Dino’s Storage on Orange Street, not far drive from Polo Park.
Most popular locker to rent is a 10×10 [100 sq. foot] space.
It’s a private locked facility.
The lockers have “roll-style” doors about 4 ft. wide, like a small garage door.
People drive onto property, there’s loading docks.
One has to key in a unique 5-digit passcode at one door to get in, then again just past that door to get inside the facility proper and access the lockers.
Photo ID is required to rent a locker. Each person is given own code only known to them unless they give it to someone else.
That means there’s multiple codes to open the same main doors.
The tenant is required to either buy a lock for the locker from Dino’s or bring their own.
The ones they sold then came with two keys.
Dec. 31, 2007. Davis and Tymchyshyn came in to rent a locker. It was for Davis, but he couldn’t rent it because he lacked ID.
Tymchyshyn rented it for him. He witnessed this.
He took photocopy of Tymchyshyn’s driver’s licence, identified it in court.
Was shown contract which he said he saw Tymchyshyn sign and initial.
Locker #339 was rented. A 10×10 space.
The security code to the electronic locks is on the lease agreement.
Both men knew the code.
Didn’t see them use the locker that day, but said “it’s a big building.”
Cameras watch over areas [not in lockers themselves]. They record 7 days and then loop back and record over the footage.
On Feb. 13, video of Feb. 6 was no longer available.
In March 2008, there was a “catastrophic” failure of the hard drive.
Some of the facility’s doors close automatically, some don’t.
When the electronic code is used for entry and exit, the computer records it, along with the time.
Records show on Jan. 20, 2008, Tymchyshyn’s name, passcode was used at door #3 at 2:20 p.m.
On Feb. 6, 2008, the code was used at 8:02 pm for entry at door number 3. At 8:13 and 8:14 pm code was used again for exit.
Then again on Feb. 12.
On the Feb. 6 occasion, it appeared one door didn’t close properly – may have been propped open – and triggered an internal-use-only alarm in the computer. It was resolved when door shut.
On Feb. 8, access was denied initially because the code wasn’t punched properly when only 4 of 5 numbers were punched.
On Feb. 12 at 11:25 a.m., the code was successfully used.
On Feb. 13, got visit from WPS officer who wanted to look in locker for missing persons investigation.
The police produced a key. It was just household items inside.
Feb. 22, Tymchyshyn showed up and he called police. “I told them that Corey was there emptying out the locker … was it Ok for the stuff to be removed.” “They told me yes, it was OK.”
Tymchyshyn was with another man, shorter, smaller build and maybe wearing glasses (ed note: Brincheski has been wearing glasses in court).
He only said hello, no other interactions with them.
on Sept. 4, 2008, he went to RCMP where he was shown random photos. “One I recognized,” he said. It was someone he saw at the facility in February.
He was about “70 per cent” it was the person. “Seven out of 10” was what he told RCMP.
That’s five years, 11 months and 13 days (Or more than three million minutes).
And after all this time, the public is finally getting a look into what RCMP and Manitoba prosecutors believe happened to the 22-year-old.
I won’t belabour the point other than to say: that’s a heck of a long time to wait for a trial. For all involved, the victim’s family, those accused and yes, the general public.
Corey Tymchyshen and his (ex?) friend and business partner Kristopher Brincheski are accused of murdering Davis on Feb. 6, 2008.
The men, naturally, are presumed innocent, and prosecutors have a large hill to climb to satisfy a jury they’re guilty beyond a reasonable doubt of the most serious offence in Canadian law — first degree murder.
The suspects weren’t arrested by RCMP until weeks after Davis’s body was found in a barrel floating on the Lee River near the town of Lac Du Bonnet on July 23, 2008.
But after the arrests were announced — long before, even — the mystery of just what happened to Davis has lingered for many in Manitoba.
The prosecutor’s opening statement in a trial does more than focus the jury on what it is they may (or may not) get to hear.
(They’re cautioned what is said is not evidence — only a guide to what they may hear and see. It’s what the witnesses say under oath that counts.)
The opening statement also allows the public a preliminary glimpse into what the case is all about.
I thought it important to reproduce the vast bulk of Manitoba Crown attorney Keith Eyrikson’s opening remarks, verbatim. Here they are, for the record.
Again, these are not proven facts, only allegations.
“So what does the Crown say happened?
We say that Chad Davis was with his girlfriend, on Feb. 6, 2008.
He was staying at a hotel room at the Red Lion Inn in Winnipeg. The two were planning to move to Calgary together and start a new chapter in their lives.
Mr. Davis left the Red Lion Inn around noon on Feb. 6 to go meet up with Corey Tymchyshyn at his mother’s house at 703 Prince Rupert here in the city of Winnipeg.
Mr. Tymchyshyn owed a drug debt of somewhere between $18,000 and $28,000.
When Mr. Davis arrived at 703 Prince Rupert, he was led into the detached garage at 703 Prince Rupert, where Mr. Brincheski was waiting.
Mr. Davis was attacked and killed in the garage by them both.
Mr. Davis’s body was then wrapped in plastic, it was put into a large plastic barrel. He was then put in the back of Chad Davis’s Jeep Cherokee and driven to Lac du Bonnet.
The barrel was weighted down, and holes were drilled into it to allow it to sink.
The barrel was then pushed into the Winnipeg River, with Mr. Davis’s body in it.
The barrel with Mr. Davis in it was then found by two unsuspecting cottagers on the Lee River in July of 2008.
Who was Chad Davis?
You will hear in the next few days from his girlfriend and from his parents. They will no doubt tell you a bit about him – but I wish to be direct with you, ladies and gentleman.
You will hear some evidence that Mr. Davis was no angel. It will become clear as we hear from witnesses in this matter that he was in fact a cocaine dealer and that some of his qualities were less than admirable.
But whomever and whatever Chad Davis was, what occurred here was morally wrong and a criminal act.
I want to tell you about some of the evidence you’ll be hearing in this matter. The first two witnesses you’ll be hearing from today are the gentleman who had the misfortune of finding Mr. Davis’s body.
These two individuals found a barrel that was knocking up against their dock, and they went to deal with it. They discovered that this barrel contained Mr. Davis’s body.
You’ll hear from officer Maria Forrester of the RCMP … she is what is termed an identification officer and will be a guide of sorts to help explain certain locations and areas of interest and precisely what was found during the course of this investigation.
She will be giving you a series of photo booklets, and we suspect you will be hearing from her on a number of occasions throughout this trial.
We will be discussing medical evidence and the cause of death of Mr. Davis with the Chief Medical Examiner for the Province of Manitoba.
This will require us to show you autopsy photos of Mr. Davis. While some of these pictures are graphic, they are necessary to give you a clear picture of his evidence.
The date of Feb. 6, 2008 is one you will hear a lot in this trial. On that date, the girlfriend of Chad Davis *inaudible* (she) will give you information such as what he was wearing, why they were there and what their plans were for the day.
She will be able to tell you that she was familiar with many of Chad’s possessions. Some of which were in a storage unit he rented. Some of which he had in his Jeep Cherokee when he went to 703 Prince Rupert that day.
What you will discover later on in this case is that many of these personal items were in fact found in the possession of Mr. Brincheski when a warrant was executed on his house in early 2008.
Shortly after Feb. 6, 2008, Chad Davis was considered to be a missing person, and Winnipeg police started to investigate. You will hear from a Winnipeg Police Service officer about a conversation he in fact had with Corey Tymchyshyn.
You will hear from (Davis’s parents) …
When you compare (what they said) to what Mr. Tymchyshyn told the police, you may start to think that what he was saying didn’t really make sense.
You will hear about a storage locker that Corey Tymchyshyn helped rent for Chad Davis, but one which was solely for the use of Mr. Davis.
On Feb. 6, in the evening, records indicate Mr. Tymchyshyn was at the storage locker. Weeks later, after the death of Mr. Davis, he and Mr. Brincheski came back and emptied the storage locker of all of Chad’s possessions.
You’re going to hear from a man … he was a friend … to the mother of Mr. Tymchyshyn when Chad came over to 703 Prince Rupert on Feb. 6, 2008.
He will be able to give us some insight as to the events at 703 Prince Rupert that day. You will hear from (a next-door neighbour) … on the day that Mr. Davis’s body was discovered, she heard sounds of demolition in the garage where we say Mr. Davis was murdered.
You will then have (two men) testify about how the interior of the garage at 703 Prince Rupert was torn down, the pieces taken to a property near Anola – to be used in a renovation property.
When the materials were analyzed, the RCMP found that the same type of plastic that Mr. Davis was wrapped in was also taken from the garage of 703 Prince Rupert.
You’re going to hear about some plastic shavings found in the back of Mr. Davis’s Jeep Cherokee. We say that these shavings were created when holes were drilled in the barrel when Mr. Brincheski and Mr. Tymchyshyn were trying to dispose of that body.
You’ll hear about testing done on similar barrels by an RCMP officer, how these tests show drilling into a barrel would create shavings such as these.
You’ll hear about DNA evidence that the RCMP were able to gather from the garage at 703 Prince Rupert. That DNA testing done within this garage revealed that Chad Davis’s blood was on the floor.
You will hear from someone who worked for Mr. Tymchyshen … and his daughter. They will tell you that Mr. Tymchyshyn threatened he had killed a person previously and put him in a barrel in a river.
We will also be calling evidence from cellphone and text message records. We will be calling experts to help explain this technical evidence to you. We feel this evidence will help detail communications between Mr. Davis and the accused persons, and their locations on and around Feb. 6, 2008.
You will also hear from (a relative of Brincheski’s) … he too, will help give an understanding of what happened on Feb. 6, 2008.
We are very aware there is a lot of evidence for you to listen to … but in a nutshell, we are saying to you, when you are given all of the evidence in this trial and when you look at it together, the Crown will be able to demonstrate that Mr. Tymchyshen and Mr. Brincheski are guilty of first degree murder beyond a reasonable doubt.
At this point, that is all I will say to you about the evidence.”
(This post is re-blogged from the Winnipeg Free Press “Crime Scene” blog.)
I have a dream about what I would do if I were to ever win the lottery or otherwise have the good fortune to sign my own paycheques, as it were.
I would travel the province and country for at least two full years to examine the youth justice system as only considerable time and complete, undivided focus, could allow.
I spoke last week to a great group of University of Winnipeg students who are studying the justice system, the court process and criminal law procedure in depth.
They’re looking closely at issues including disclosure, wrongful convictions and other serious systemic problems that can happen and, why.
It was only in the dying minutes of my time with them that I remembered the most important thing I wanted to tell them.
That being: When it comes to youth justice and all that entails in the true meaning of the word “justice,” I believe we’re failing and we either need to do better or find new tools and ways of doing things. I’m just being honest.
We’re not failing in the sense that there aren’t great people, from correctional officers and social workers to lawyers and judges, grinding it out every day, doing the best with the resources they have to work with. There are, and they don’t get nearly enough attention or accolades for their work.
I mean we’re failing systemically. In terms of the Youth Criminal Justice Act’s stated intent to promote a just and safe society and long-term protection of the public by focusing on rehabilitation, and not punishment, as a first principle for young offenders, who have diminished moral culpability because of their ages.
More importantly, we’re failing in how the youth criminal and child-welfare systems intersect and don’t appear to share each other’s objectives.
Well, they may in principle. But in practice, as I’ve continually seen over the years, it’s a very different reality entirely.
I’ll give you just one small example of this.
I call it the ‘how kids fall into a black hole’ scenario. Followers of my blog over the years are familiar with my coverage of this issue, how youth jails become ‘warehouses’ for child-welfare and mental health concerns
This sad drama appears in various permutations, but almost always involves a bewildering and (I say) shameful lack of communication and co-ordination between Child and Family Services and the criminal youth justice system.
Interestingly, it’s seldom that you can just point a blaming finger over this issue – and that’s not my intent here, really. But it never seems to change.
Here’s this week’s example. One where it takes a little time to tease out all the complexities at play. Apologies.
It also bears mentioning that as a member of the public, one doesn’t often get the full, fleshed-out picture in youth court.
Due to CFS privacy and YCJA access provisions, there’s no opportunity to access reports and other documentation which could provide greater detail as to what’s really happening. So you’re left sometimes with what you’re left with in terms of what the various actors put on the record.
But the lack of access to documents doesn’t mean that the issues aren’t valid, that they’re somehow just misunderstandings borne out of a lack of public disclosure.
The problems are real.
In the spring of 2013, the parents of a criminally-involved 14-year-old (‘DD’ we’ll call him here) sign a voluntary placement agreement with CFS for six months. His folks have seven other kids at home and DD’s acting out causes them to ask CFS for help. CFS – Southeast CFS to be exact – steps in to take him.
He’s the only one not living in care (save for an older sister who also came into care due to a pregnancy). He has suspected FASD and ARND, cognitive issues which make him more apt to act impulsively.
In his own words: “I do before I think.”
In May, he’s handed a year of probation for a break-and-enter, failure to appear in court and failing to comply with a bail order. The sentence, given that it’s his first-ever, is a year of probation. In June, he’s arrested again for breaching probation and given a few hours of community-service work.
In September, he pleads to more probation breaches and gets more community-service hours.
What’s important to note: The probation breaches are all because he leaves the various emergency hotel shelters CFS is routinely placing him in, often returning home because he’s upset at the fact all his siblings remain there and he’s not.
Since he came into care, he’s been shunted between eight hotel placements.
It’s not all CFS’s fault for this, however. Court hears more “stable” foster placements can’t be had for him until he gets his behaviour in check. Yes, he’s 14, but some of the responsibility has to fall on his shoulders.
But arrested again in early October, DD plummets into the black hole.
It happens like this: The Crown, rightfully, won’t consent to bail him out unless CFS comes up with a better residence plan than hotel rooms for him to live in.
And it’s pretty clear to the defence it would be a hard sell to a judge to release him if there’s nothing new in DD’s bail plan to satisfy the court it just won’t all end up with him collared again and returned to the Manitoba Youth Centre.
But at the very same time, the skimpy nature of DD’s criminal past and the current charges he’s facing makes himineligible for custody at all if he were to just plead guilty and deal with his charges. In essence, we’re criminalizing a child, largely because of systemic factors beyond his control. I see that as a big problem.
And CFS, you ask? They’re hard to track down.
Now, over the years, I’ve heard more than a few defence lawyers complain that they can’t get CFS down to court to answer questions about one of their youth clients.
Despite their complaints, I can count on one hand the number of times I’ve actually seen a judge subpoena a social worker — no small thing — to attend and talk about what the heck is going on with a young person.
It happened this week in DD’s case. On Tuesday, the case comes up in the afternoon, and Judge Catherine Carlson is told his defence lawyer was asked by another judge to call DD’s social worker and get her to come to court and answer questions about the hotel “emergency” placement plan for him. The CFS worker, in the past, had been in court to support him.
The lawyer is candid, says she called and the worker replied, “she’s not available today — she’s not available any day this week and the earliest she could attend is Tuesday (the 12th). And so, she’s not available to the court.”
As well, there is no non-hotel plan available at this time, the lawyer says she was told.
The worker was asked if there was a day she could “squeeze into her schedule” but the lawyer was still awaiting a call back to see if that was possible.
Is there anyone else from the agency that could come? Carlson asks. This isn’t likely. Before her, Carlson has an in-depth forensic psychology report outlining the concerns with DD and CFS’s continued use of a hotel-placement plan for the future.
The Crown relays its position again. It would consent to DD’s bail if there was a “proper plan” in place, but, “we’re doing (DD) a failure because we keep returning him into the same poor circumstances,” the prosecutor says. The hotel placements are “not adequate.”
He says the court has the option of mandating CFS to attend.
“I think that what’s troubling to me is the worker did come down and express concerns, which is why the forensic (report) got ordered. But then she didn’t participate in the forensic and… it seems… that just at this point there’s more questions than answers… I guess we’re stuck.”
“Somebody’s got to come down and answer what’s going on here.”
Judge Carlson agrees: “To say that she’s unavailable till Tuesday is concerning knowing that there’s a young man in custody and needs a better plan.”
So, a subpoena ordering the worker into court for Thursday is drawn up.
That day, the worker duly appears, and hears now from Judge Carena Roller.
“There is, for whatever reason, a lack of plan… he’s remaining in custody when he’s not eligible for custody. That’s a problem for me,” Roller says.
The forensic report hints at the fact an undiagnosed medical or psychological issue is at play in DD’s situation, an issue preventing him from complying with his court orders and therefore prompting his return to custody.
“The irony is we don’t know that because there was no response from the agency, no background provided to the assessor,” Roller says.
Ah, the worker says, that’s not entirely true. She was in touch with the doctor who assessed DD. There was another report done. The other one wasn’t prepared for court purposes and looked at his needs in the community. The worker insists that second report was sent to the doctor who did the forensic evaluation.
Regardless, DD’s impulse control is “severely impaired,” the worker says. It’s possible medication may help calm him — but doctors won’t prescribe it until they’ve had up to three weeks to observe his behaviour. That’s been a problem because DD goes AWOL, she says.
As for where he’ll live upon release, the worker says as follows: “Placement is determined on the day of release based on what beds are available in the system. I can tell you what’s available today, but I couldn’t tell you what would be available on a different day.”
What’s available today, Roller asks.
“An emergency shelter.”
Is that 24-hour supervision?
“No. The shelter we’re talking about is a 16-bed emergency shelter where he would be expected to attend the day program (school)… we haven’t been able to register (DD) in school because he tends to be AWOL before we can stabilize a program,” the worker says.
Why aren’t we talking about a locked setting then?
“For that to happen, we need a social history and approval for that level of funding,” says the worker. “We haven’t had that yet. Now, with these reports, we’re more able to support that application. And that is definitely a plan underway.”
When asked, the worker couldn’t say what date DD’s six-month voluntary placement with CFS expires. “Probably” in the next couple of months, she says.
Roller is curious (as we maybe all should be about a child in care): Why doesn’t CFS already have a social history on DD?
The worker’s answer is evasive. “In order to apply for locked facility… we have to be able to support it by behaviours,” she says.
The hearing is then stood down for a few minutes. A behind-the-scenes discussion results in DD pleading guilty to a handful of breaches and being sentenced to a few extra hours of community service work.
In his sentencing submissions, the Crown sounds unconvinced anything will change. Some of DD’s issues are systemic, he says. Candidly, some are also his as an individual, he says.
“Best we can hope is he goes on his way and starts to listen to his probation officer.”
DD’s defence lawyer tells Roller the youth is confused and upset at the fact he’s not allowed to be at home with his family and that’s why he flees from his hotel placements.
“He thinks that if he acts out and leaves these shelters they’ll give in and let him go home – that’s not the case,” she says.
By now, he’s spent three weeks of his life in custody. The lawyer questions how it appears the CFS position on finding a proper placement is somewhat incumbent on him, based on what the social worker has said. It shouldn’t be “all on him” to prove his way out of the emergency hotel shelter situation, the lawyer says.
“It’s turning out to be… a vicious, vicious cycle.”
In addressing DD, Roller seemed to agree.
“I know that you haven’t had a stable placement since you came into agency care,” she told him. “And I’m convinced that the people who are working with you aren’t talking to each other like we need them to do. We need you to have a team in place to work together and I hope that’s what’s going to happen going forward. Because we need your behaviour to improve,” she said.
She also reminded him of his CFS worker’s implicit promise to the court to get moving on finding a more palatable solution for him, to find him at least a place, “where you can unpack.”
“And she’s going to do all of that right away because we don’t want you bouncing around,” said Roller.
If you’re still with me by now, you’ll have perhaps noted some of the questions DD’s case — but one of many hundreds of youth court cases in Manitoba — raises.
At the top of my mind are:
How can a child be taken into agency care and the agency doesn’t have a “social history” on him months into his stay?
What exactly is a “social history?” It was clear his parents called in CFS, so why don’t they have such information at hand?
How can a social worker be subpoenaed into court and not have exact answers (like the date of expiry of DD’s placement agreement) at hand about the case she’s there to talk about?
Is a hotel room for a potentially mentally challenged and certainly confused teen boy really the best we can do for him? It personally strikes me as disingenuous to say it’s somewhat incumbent on DD, given the circumstances as presented, to “earn” his way out of the emergency shelter system. If it’s the case that it is, then isn’t that a problem? It strikes me DD was stopped into care by way of a voluntary agreement with no case planning as to what to do with him once he was there.
What prevented the two systems from “talking” to each other in this case and perhaps finding a better — or at least more expedient — outcome here? Resources? Stubbornness?
We can say “justice” has been served in the sense that a sentence was meted out, but I think we all know it wasn’t here. I fully expect to see DD back on the court docket in the coming months.
There’s many, many more questions, obviously. Finding answers without taking a long and focused look will be impossible.
The “vicious, vicious cycle” will continue until there’s pressure enough to end it.
“I knew that Gerald Crayford was a hero before his wife, children and other family members read their victim impact statements to me. From the preliminary inquiry evidence I learned that he struggled to stop a man armed with an axe from robbing him and his employer. Then the victim impact statements arrived and they gave me a character sketch of what a hero he was in other ways. But what stood out as I listened to some of the words being read was that I was hearing from angry people yet they were in anguish over the fact that they were so angry. Their anger gave them neither consolation nor respite and undoubtedly none relished the opportunity to ventilate anger in the courtroom. Their participation was an important component of the solemnity of the sentencing hearing.” Judge Rocky Pollack
Maybe it’s just the first anniversary of my dear Dad’s death tomorrow affecting my brain’s beta waves, but having to hear today the sniffles and sobs of people related to a teen who brutally murdered an innocent man for really, no reason, as he was sentenced to ‘life’ in prison really irked me.
Now, my (possibly faulty) assumption is their tears weren’t being shed for the victim, Gerald Crayford, 54, but instead for their young relative in the prisoner’s dock — someone they went so far as to help try and destroy evidence of his hideous conduct after he did it.
“At some point before he was arrested, his sister, mother, grandmother and a friend helped D.V.J.S. hide the axe. It was recovered by police when the friend decided to notify them.” — Pollack, decision on adult sentence
(I’d still love to know why nobody was charged with obstruction or aiding and abetting, but I won’t expect any answer.)
At least that’s what the timing of the tears in court today suggested to me.
The pitiful sniffles started just after the prosecutor outlined today — once again — the aggravating factors of this absolutely horrific murder of an innocent.
And then they ramped up once again (morphing into sobs), later in the day, as Judge Rocky Pollack passed down the harshest available sentence he was able to.
Some of those aggravating factors included:
It was a “planned” event
The accused fully expected it to be a 2 on 1 robbery, easy pickings
The “significant, gratuitous violence” inflicted on innocent Mr. Crayford
A video was made after the robbery “acting out” the crime and comments about how it “felt cool” to kill someone
On the other side of shabby courtroom 404 sat some of Crayford’s family and friends, along with a handful of city homicide cops who wanted to see this one through.
I’ve come to learn over the years this doesn’t always happen. It was gratifying to see the officers there.
Not a single cry or sniffle or sob could be heard from that side of the room.
They instead sat silently, washed over with that sheen of mute blankness and silent resignation I’ve seen infect so many bereft families and friends of crime victims.
Maybe it’s the fatigue from the court process — likely something none of them were familiar with or ever wanted to be. Maybe I’m totally misreading it.
But on the other side — the side of the killer — they likely had to be somewhat in the know of how the system works, given how the offender — the murderer — was on ‘supervised’ probation stemming from a knifepoint robbery of a separate store at the time he bludgeoned poor Gerry Crayford to death inside that nondescript little Pizza Hotline shop a few years back.
I’m not upset at the sentence. It is what it is.
I’m not upset with the lawyers, who performed and acted as professionally as they usually do. in such a serious matter.
I am upset that people who knowingly tried to shield a murderer from responsibility by attempting to destroy evidence had the temerity to show up in a court of law and weep for him; ostensibly weeping for what the system was ‘doing’ to him.
Judge Pollack was clear in his reasons today: the decision to hand this offender the max was directly influenced by what he saw on the store surveillance camera. The level of violence “sickened” him, he said.
It’s these things, combined with the senseless death of an innocent man who never did nothing to nobody is what truly sickens me.
Judge Pollack’s full decision on the case is here. It’s a worthwhile read.