Roulette’s legal chips dwindle

(The multi-plex where gang membersHenderson and Baptiste were killed on Jan 31, 2009)
(The Maryland Street multi-plex where gang members Jesse Henderson and Dennis Baptiste were killed on Jan 31, 2009)

It had all the usual signs of many riveting, yet unbelievably tragic, premeditated murder cases.

Two young, gang-linked men, Jesse Henderson and Dennis Baptiste — mysteriously and savagely cut down in the prime of their lives inside a Maryland Street four-plex after being seen at a cocaine-fuelled party at an Exchange District theme hotel.

A fire set in what appeared to be a failed attempt to destroy evidence at the crime scene. A missing TV set. Some, but not tons, of physical evidence to go on.

Blood everywhere.

And then came months and months of waiting for an arrest as Winnipeg police worked all kinds of different angles to try and get to the truth of things.

Such was the visible the backdrop to Kenneth Roulette’s trial, which ended in his conviction on two counts of first-degree murder.

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.

Justice Sadie Bond: for the record

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

Presented below are the personal comments from the Manitoba Court of Queen’s Bench’s newest Justice, Sadie Bond, from her swearing-in ceremony on Friday.

Her ceremony was jointly held with Justice Vic Toews. But her appointment was no less significant.

I’ve known Justice Bond as a top federal prosecutor over the last few years — ‘known’ in the sense of seeing her in court fairly often.

She was always friendly and approachable to get the obligatory ‘no comment’ from after the latest round of organized-crime suspects were direct indicted to trial.

I say that without sarcasm. Reporters are obligated to ask for comment even though we know none will be forthcoming.

As a Crown prosecutor, Ms. Bond handled some of the biggest and most complex federal cases in Manitoba we’ve seen in the last few years.

It was gratifying to hear what an amazing career she’s had to date, and prior to coming to Manitoba a few years ago — which you too can hear about in her comments.

I have no doubt she’ll be an awesome judge.

(Audio has been ever so slightly edited for privacy reasons.)

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Attempted murder: the prosecution’s uphill battle

(Reblogged from the Winnipeg Free Press ‘Crime Scene’ blog, minor revisions for formatting and clarity)

(USVI)
(USVI)

 “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.

In fact, in what our police service says is a city where serious crime is dropping, attempted murder is one of the only categories of violent criminal activity that’s on the rise.

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.)

Martin, J:

“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.

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Chad Davis murder trial: the evidence in week three

[Reblogged from the Winnipeg Free Press ‘Crime Scene’ blog]

RCMP Map of Cell Towers relating to Davis investigation
RCMP Map of Cell Towers relating to Davis investigation

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.

Screen Shot 2014-02-09 at 11.06.24 AM

[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.]

 

 

 

Screen Shot 2014-02-09 at 11.07.32 AM

 

 

 

 

 

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
  • making.
  • 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
  • courts.”
  • 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.

 
C.H.

 

  • “Very nervous.”
  • 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
  • built.”
  • 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.

Julie Tillotson

 

  • 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.

 
Cross-examination:

 

  • 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.

-Court adjourns-

Making sense of Lamb’s plea bargain: a how-to

(Re-blogged and untouched from the Winnipeg Free Press)

The equation is simple.

No evidence = no case. No case = no conviction.

So it’s curious to me to see so much angst and questioning of the plea deal and joint-recommendation that saw adouble killer sentenced to 20 years without a chance at parole for at least nine (3,285 days) for the killings of Carolyn Sinclair and Lorna Blacksmith. Not to mention he’s already been in for about 18 months.

We should be sending thank-you cards to the Manitoba Prosecution Service for the deal they were able to reach and secure with defence lawyer Martin Glazer in the Shawn Lamb case, which puts Lamb behind bars for a very long time.

In fact, it was said many times in court Lamb could die in jail before he gets out.

Instead, there’s now wide-spread criticism of a very good deal. And a profound lack of understanding, apparently, about the plea bargaining process, how it works and how our justice system would grind to a halt without it.

Instead of haranguing you further, I simply present senior Crown attorney Sheila Leinburd’s fantastic and frank explanation in court regarding the plea deal, why it was arrived at, and what the alternative really was. (The facts of the case are here).

Usually, explanations of the how and why of plea arrangements aren’t nearly as comprehensive.

For the record:

It is clear upon perusal of all the facts before the court, this investigation was inherently both challenging and difficult for the City of Winnipeg police department.

Despite the best efforts and lengthy investigation of the Winnipeg Police Service, there is very limited evidence available to the Crown.

There are no witnesses to these two homicides. There was extremely limited forensic evidence.

And given the passage of time prior to the discovery of the bodies and the consequent deterioration of the bodies due to the exposure to the elements, there were limited medical findings in each of the autopsy reports – to the point in the instance of the death of Lorna Blacksmith there was no determined cause of death.

Consequently, the description of the killing of both of these women is left to be taken exclusively from the accused’s own statement.

The conviction of Shawn Lamb therefore rests solely on his statements to the police, and on the admissibility into evidence of those statements.

Were there to be a voir dire on the admissibility of Lamb’s statements, uncertainty existed as to whether or not the statements would, in fact, be ruled admissible by the court.

There are persuasive arguments that can be made on the part of the Crown as to the admissibility of these statements.

Equally, there are compelling arguments that can be made by the defence to the exclusion of the statements.

Consequently, and after careful examination of this exigency by the Crown, the admission into evidence of these three inculpatory statements which are necessary for the conviction of the accused, cannot be reasonably assured.

It is fair to state that in this particular case there can be no real certainty as to the admission of the accused’s statement. It is equally fairly stated – but for the admission of the accused’s statement into evidence, that the Crown’s case would fail.

Given the lack of any other available evidence to the Crown, the significance of the potential exclusion of the accused’s statement from evidence takes on additional weight.

In fact, its potential for exclusion – in fact, likely exclusion – takes on critical significance in terms of management of the prosecution.

Justice Rick Saull: You said, ‘Likely exclusion?’

Leinburd: Yes. And I say reasonably, likely it would have been excluded. There was a real possibility to that.

Consequently, the evidentiary exigencies in this particular case are such that were the statements to be ruled inadmissible that there would have been little, if any likelihood of the prospect of holding Shawn Lamb responsible for the deaths of either Lorna Blacksmith or Carolyn Sinclair.

There would be no accountability on the part of the accused for those tragic events, nor would there be certainty for two affected families or the public at large.

In return for those exigencies in the evidence, the accused has given up his right to a trial. He has entered guilty pleas to two counts of manslaughter in exchange for consideration.

This consideration has taken the form of a reduction of the original charges from murder to manslaughter and the sexual assault allegations currently before the provincial court will not proceed.

These resolution discussions were the result of lengthy, methodical, comprehensive and scrupulous consideration by both the Crown and defence counsel.

Rather than expose both of these two tragically impacted families and the public at large to the risk that Shawn Lamb may walk free … it is the Crown and defence counsel’s considered opinion that this is in fact the quintessential instance of a true quid pro quo.”

[EDIT 23/11/2013 — CORRECTS TYPOS]

Gerald Crayford’s murder and the duplicity of despair

Screen Shot 2013-03-27 at 10.56.14 PM “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.

-30-

‘Reasonable Suspicion’ at the roadside? It’s the totality of the circumstances

drunk-drivingIn a way, you gotta feel kind of bad for Rhys Mitchell. In a way.

Charged with drive over .08 in early 2009 , he’s now seen his case go through every level of Manitoba’s courts.

The provincial court convicted him. The Court of Queen’s Bench acquitted.

Now, after many months of deliberations, the Court of Appeal has ruled to re-instate his conviction, setting up a potential Supreme Court battle.

His case is one that affects all Manitoba motorists stopped by police who then enter into an impaired driving investigation.

Mitchell’s case focused on whether the RCMP officer who appeared at his window after pulling him over on Roblin Boulevard early one January morning had grounds to form a “reasonable suspicion” Mitchell may be impaired may have alcohol in his body (see below) and request he blow into a roadside testing/screening device [not a breathalyzer, but an ASD].

 

The overall tension this case presents is clear: On one hand, police can’t, — if they’re to uphold the Charter — just randomly stop and ‘search’ drivers with their ASD test demands.

On the other, they can’t enforce the law and try to keep streets safer if the legal requirements to test people at the roadside are just too onerous.

As Justice Michel Monnin’s 21-page decision to overturn Mitchell’s acquittal shows, the lower courts spent a lot of time fretting over Mitchell’s comments to the officer, namely that he’d had a “couple of beers at a friend’s house” earlier and how that figured into “reasonable suspicion.”

Both those courts also found his Charter rights against unreasonable search and seizure had been breached, but only the QB found the remedy for the breach should be to toss the ASD result.

In the end, Monnin comes to the — in my view — common sense conclusion that it’s the overall circumstances of the stop and totality of the officer’s observations which leads to getting past the “reasonable suspicion” hurdle — that Mitchell’s rights weren’t breached.

From the decision:

I am not prepared to go as far as saying that a simple admission of alcohol consumption by a driver is, in and of itself, sufficient to provide reasonable grounds on which to base an ASD demand, as each case must be considered on its own facts. From a common sense perspective, however, it would be rare, if ever, that there would be an admission of alcohol consumption with nothing else – i.e., evidence as to why the vehicle was stopped, when (especially the time of the day and of the year) and where it was stopped, what was the driver’s condition, how did he or she react to the police, what were the driver’s exact words and how were they spoken, etc. These are all important factors to take into account. It is important to remember that it is the totality of the circumstances known to the officer,viewed together, that must be considered in determining whether there was a reasonable basis for his or her suspicion.

In this case, the trial judge might have found the manner in which the officer conducted his investigation to be wanting, but the facts remain that the accused was driving at night, on a busy thoroughfare, without lights, that there was an odour of alcohol emanating from the car and the accused, inanswer to a legitimate question in the circumstances, acknowledged that hehad consumed alcohol. I find the accused’s answer in this case to be similar to that under consideration by Marceau J. in Kimmel and I find his comments, to which I have previously referred, applicable in this case. Both the trial judge and the appeal judge erred by focussing on the words of the accused’s admission without considering them in the context of all of the evidence known to the officer. In so doing, each misapplied the applicable legal principles, thereby committing an error of law. In my view, after considering all of the evidence known to the officer, he had reasonable grounds to make the ASD demand when he did. It was an error in law by the trial judge to find otherwise.

It’s a fascinating case. Do give it a read:

Mr. Jetz: a cautionary tale on how not to apply for bail

1297232867412_ORIGINAL
(Darrell Ackman/Winnipeg Sun)

Darrell Ackman, AKA the notorious Mr. JetzTV, wants you to know “the truth.”

Those are his words, not mine.

That’s straight from the former MLA hopeful’s lips today after he rejected an opportunity to put a publication ban in place on his case pending trial. He also rejected an opportunity to hire a lawyer to represent him.

Make no mistake. Today was a crucial turning point in the Queen v. Ackman.

It sets the tone for everything that will follow in a case of immense public interest to see prosecuted.

Ackman, arrested on May 8 after a scuffle with Winnipeg cops who were trying to arrest him on breaches of his prior bail order, made another bail application today.

You can read the meat and potatoes of it here.

While that article will get you up to speed, it doesn’t begin to scratch the surface of the details of his life and history he disclosed during his three-hour-long submission to Judge Harvie.

And by and large, virtually everything he had to say was irrelevant to the matter at hand.

It is 100 per cent Ackman’s right to represent himself in court.

But as the pithy truism goes: A person who represents himself has fool for a client.’

Ackman’s situation today, to me, demonstrates the truth in this.

I stand by my position that today’s hearing should have been videotaped (no pun intended) for 1st-year law students as an example of the perils of representing yourself.

If Manitoba Justice hasn’t already ordered a transcript of his three-hour-long, rambling, submission today, I can guarantee you they will in coming days.

Ackman was duly warned: Anything he might say at the hearing — especially statements against his interest — could be used by the Crown at any future hearing.

You want to pick your comments carefully,” Judge Mary Kate Harvie told him, prior to explaining to him how “judicial interim release” works in Canada.

I’m no lawyer by any stretch — but I’ve come to understand a little sage wisdom about bail applications.

Rule number one: Barring a major, glaring hole in the Crown’s case, people seeking interim release should focus on their bail plan and not the allegations of their case; how they will satisfy the court they’ll either a] show up to deal with their charges b] not pose a risk for reoffending.

(I’ll leave out the public confidence aspect as it’s a seldom used ground in release hearings. It was raised today but didn’t form part of Harvie’s decision to deny and revoke).

Objectively speaking, Ackman could have made a succinct argument that for the many months he’s been free in the community [barring his recent breach allegations for sticking up posters at or near schools] he’s been compliant with his bail orders [a release secured by a $25,000 surety in his 79-year-old mom’s name].

He could have argued that the Crown’s concerns on his being free could be met by tightening up his curfew to an absolute one instead of a 6 p.m.-6 a.m. one, for example.

Hell, he could have at least presented the court with a definite address at which he planned to live at pending trial.

He didn’t. Instead, he said he believes he should be allowed to live wherever he wants.

That, even with a judge whose patience bordered on saint-like today, surely cemented the rejection of his application.

Here’s some other things over the course of three hours Ackman did have to say — and remember, it’s all from his lips.

So take that for what it is. Also remember: he was cautioned to pick his comments carefully.

  • “You know who I am right?,” he told the court near the very start of his submission. “Some people call me Mr. JetzTV.”
  • He gave the court a wealth of detail of his years (2003-2010) in Miami FLA, how he was charged down there but wound up bailed out in less than 24 hours after being picked up in a prostitution sting, how he was soon back on the streets with access to his cellphone and computer, but without his beloved/signature “bumblebee” Camaro. He came back to Winnipeg on a trip to visit family. He says he tried to go back to deal with the related charges — Ackman says a deal with reached for probation and all he needed to do was go back and sign the papers — but was turned back at the Winnipeg airport.
  • A self-proclaimed Winnipeg Jets fanatic, Ackman says losing the team in the 90s was like having the “heart ripped out of the city.” He told a story about being a Winnipeg Free Press carrier when he was pre-teen and could buy tickets for $5.
  • The “Mr. Jetz” persona was partially created because of his vast arcane trivia knowledge of the hockey team and its players. His Google YouTube channel, he says, was set up in 2010-2011? with help from his teenaged niece — whom he called his “best friend” — a relative he can’t have contact with due to his pending charges.
  • His mom was a veteran Kindergarten teacher — he says he remembers being taken to school by her at a very young age. In fact, he says his memory is amazing. He went on to go to school at Jefferson Jr. high and then Garden City Collegiate.
  • He objected to his Florida mug shot being used by city newspapers. “Is it allowed to be in a Winnipeg newspaper?,” he asked, also wondering if media publishing his release conditions violated a prior publication ban in his case (it didn’t).
  • “I don’t want to get in trouble ever again,” he said.
  • He spent a very long time challenging the most minor allegation he faces — a mischief charge from winter 2012 where he’s accused of scratching the Mr. Jetz logo into a car at the Highland Arena. “Mr. Jetz is not into damaging things,” he said. [note the 3rd-person usage]. The case lacks evidence, he claims.
  • Several times he referenced being a major fan of CSI: Miami and its main detective character, Horatio Caine and that fictional character’s lines regarding the quality of evidence.
  • He says Mr. Jetz has achieved “celebrity status” in a city like Winnipeg, where “there’s not much going on.”
  • He then talked about backing off from the persona to help his niece get a start with a music career. “I don’t think my YouTube videos they’re going to go anywhere,” he says he told her.
  • He then moves on to the fact one of the vulnerable girls related to his case has died, apparently from suicide. “I don’t like people dying,” he said.
  • “I really feel like I’m being bullied right now,” he says, later saying he has a solution to the growing problem of cyberbullying, should the court wish to hear it.
  • He says a number of people he’s met at Headingley Correctional — he says he’s made more than 40 “friends” — “don’t look guilty.” He talks about the case of Matthew Emmerling, the Ohio trucker facing a potential two-year term for bringing child pornography across the border and recently pleaded guilty. “Guilty seems to be the popular thing,” he said of the Manitoba justice system. Cops are “not the most honest people,” Ackman says. “They all know where I live. They all carry guns.” He denies biting one cop in his recent arrest, saying biting is not his thing.
  • He loves “cars, pretty girls, beaches.”
  • Cops can say “whatever they want” in their reports and there’s no refuting it. How “discovery” (perhaps he meant ‘disclosure’) is really just one person’s opinion.
  • He spent a long time talking about acquiring a voice recorder to use as a diary, to tape calls and conversations.
  • He says the Winnipeg press has “murdered” his reputation — that his big mistake was calling local CBC to see if they wanted to talk about his story.
  • He says his run for MLA of Whyte Ridge was well-intentioned to “turn Mr. Jetz into something positive,” a redemptive effort, but was quickly spun in the media as “How come the criminal is running for an election?”
  • “I love girls that look adult. And if they say they’re adult, I trust them.”
  • Says his alleged young victims may have criminal histories and he wants to see documentation. “There’s going to be some cross-examining going on.” Ackman says the girls — whom he considered his friends — didn’t have “a problem with me then.”
  • If the Winnipeg police have to comb Facebook for evidence, he says, then there’s a major problem. He accused police of doing “sloppy” policework.
  • “That’s one hell of a poster,” he told Harvie of his casting-call efforts [full disclosure: he even asked two cops if they ‘wanted to be in a movie on the courthouse steps one day. This was witnessed by me and a local defence lawyer].
  • He talked about how cops told him things might be different if he had signed “contracts” with the alleged victims.
  • “Right now it just kind of feels like my eggs are being crushed before they hatched,” he said after relaying some anecdote about being a boy and seeing some birds near his home.
  • He claims police came seeking a blood sample from him one day, apparently in connection to the death of a woman. He said a name I won’t repeat here. He says his mom freaked out at their request.
  • Police, it seems, “have a voodoo doll with my name on it” and are sticking pins into it until he “disappears,” Ackman says.
  • He says at Headingley, he was housed in a cell with two hard-looking inmates, whom he quickly won over. “That’s what Mr. Jetz does. Makes friends.”
  • In jail, he plays video games, basketball and ping-pong. “I actually feel safe because there’s no police harassing me.”
  • He says a police supervisor told him: “You’re not going to be getting out on bail this time, Mr. Jetz.”
  • Most lawyers he’s consulted, he says, just advised him to “plead out” but he’s not going to admit to something he didn’t do.
  • “The police have my passport. I have nowhere to go. I have no intention of going anywhere right now.”
  • Missing women in Manitoba are “a huge problem for police, and I agree its a major problem.”
  • “Maybe I’ll change my name legally,” to Mr. Jetz, he says.
  • Will he show up to court if bailed out? “Yes I will. Check that.” Later, he answers the same question: “I think so.”
  • He says he wasn’t offered his “Miranda rights” (his actual words) in his last arrest. “They let me call a lawyer,” but didn’t give him his rights.
  • Some of his prior bail conditions could be considered “comical,” he says, in terms of their enforceability.
  • Being in jail on remand is “kind of like a vacation, really.”
  • He claimed the fact he can’t use computers was “wasting” his talents.
  • “Will I reoffend? No.”
  • The girls: “They told me they were legal, but they weren’t.”
  • In Florida, he felt like “Hugh Hefner.”
  • If we’re going to stop abusive police behaviour in Manitoba: Mr. Jetz has the solution, he says. “Videotape everything.”
  • His ten months problems free on bail and turning up to every court date? Ackman says he deserves a “gold medal.”
  • “I don’t see why I would be a threat to anybody.”
  • The alleged victims, he says, could have walked out the door or jumped out of the car.
  • “I really should be able to go wherever I want.”
  • “You’re putting me on the spot,” he told Harvie toward the end of the hearing, when she asked him to focus on the plan for his release.
  • He can’t defend himself unless he has access to Facebook and a computer.
  • His mother is “shaken” by the whole affair, he says. Instead of returning to live with her, he’d rather live with his friend. How much of a surety might be available, isn’t clear.

So, that’s certainly not all of it. But I have to stop.

But all the while I was hearing this, I couldn’t help but think if Ackman instinctively knew his application was doomed to fail as presented: that the whole hearing was just another publicity stunt in the name of Mr. JetzTV.

But again, today marked a turning point in his case — a case which he says he “knows better than anyone” and was willing to take to a trial tomorrow.

-30-

The injured hospital

 

1297171642844_ORIGINALWe’ll never know what good the $1.2 million Michelle Cadger, 49, somehow managed to pilfer from the Misericordia Health Centre over a decade might have done if it had gone to public health services or capital projects instead of her raging VLT habit and penchant for gold.

Cadger will spend at least a year locked in Stony Mountain prison after being sentenced to three years this week for theft over $5,000. [Article here].

But, like Judge Wanda Garreck said, this was far from a victimless crime. Ultimately, as she says, it’s the public left holding the bag.

I can’t explain how an audit found $1.46 million was missing, but Cadger — who says she didn’t track her many thefts — only pleaded to stealing the million two.

I can’t explain how her husband of 25 years didn’t know something was amiss given they suddenly had a new Toyota and his wife — who made a $40,000 annual salary — had acquired luxury goods including:

  • A Louis Vuitton wallet
  • A Christian Dior purse
  • Many pieces of gold jewelry, some crusted with diamonds
  • A Tag Heuer watch
  • Diamond earrings

And while those items — along with the thousands left in bank account balances, the Toyota Corolla Sport [?] and envelopes stuffed with cash found in Cadger’s apartment — have been forfeited to the Crown, it was admitted it barely makes a dent to compensate what she took.

And then there’s the intangibles and ancillary costs the hospital [read: the taxpayer] incurred as a result of the colossal ripoff Cadger managed to perpetrate.

But I won’t hector you on it. Instead, below is presented the bulk of the victim impact statement the hospital’s CEO, Rosie Jacuzzi, filed in the sentencing hearing, for the record. An offer to read it into the record was declined, but the Oct. 28 statement was left in the hands of the judge to take into account.

The theft by Ms. Cadger has had a significant impact upon this small finance staff, other heath centre staff, the executive and the board of directors. MHC has never experienced a theft by an employee. Management and staff felt a sense of betrayal and violation of trust, a core value of the health centre and our founders, the Misericordia Sisters.

The large size of this theft, and the lengthy period of time over which it occurred has had a negative impact on the morale of staff. The review and interviewing process which have been necessary due to this theft has caused a high level of stress and anxiety to all involved.

Staff felt isolated and the morale plummeted resulting in turnover within the finance department. In addition, there was a loss of confidence in the finance department’s ability to steward resources effectively.

Given that MHC is a health care facility which is funded largely by public funds, I am also concerned that this theft has negatively impacted the excellent reputation of MHC and the Misericordia Health Centre Foundation, which is a charitable foundation providing further financial support for MHC.

This case has been widely reported on in the media. The negative publicity has potentially compromised donations and donor confidence in how the health centre steward their funds. MHC is in a 43 million dollar redevelopment campaign where out foundation is responsible to raise 7 million dollars from private donors toward the overall capital costs.

“The money that was stolen had a direct impact on the health centre’s ability to provide enhanced patient equipment, services and upgrades not funded by government and public dollars. The health centre’s operating and capital budgets are lean and ancillary funding is relied upon to provide enhancements that improve the quality of life for our patients and residents.

“In addition, the time spent by staff, executive and board of directors as a result of this theft has been significant.

The theft was first uncovered in January 2010, when the finance manager became aware that an excessive cash amount was ordered for the ATM located ay MHC in December.

As a result of this discovery, an internal review in January 2010 took months of time of the finance manager as it was necessary that she carry out an analysis of the physical flow of cash, how the cash was used and how it was recorded in the books.

As a result of her review with which revealed the cash shortage, MHC hired KPMG to carry out a forensic audit. This process took weeks to months of extensive interviews of the finance department staff by KPMG and a review involving an analysis of transactions for a ten year period.

Given the nature of this audit, finance department staff spent weeks retrieving and reviewing financial records and documents and meeting with accountants and the police in the course of the investigation.

Both the executive and the board of directors have also spent significant time reviewing these issues and providing direction. An extensive amount of staff timer and energy has been diverted to this theft which could have been utilized in a more constructive manner.

In addition to financial losses as a result the staff time spent on this extensive investigation, there have also been significant costs incurred by MHC, including the costs of the KMPG forensic audit, internal audit and legal fees incurred in providing advice to MHC.”

While it remains a mystery how nobody noticed the missing money for so long, it would be wrong to blame the victim. Misericordia does good work.

It would be wrong to let the actions of one dowdy gambling addict derail the public good they’re trying to do for the benefit of the sick and elderly in the city.

More information on the centre’s “future of care” program can be found here.

“Lack of care must be serious enough to merit punishment.”

(The wreck that was Violet Gooding’s car on Dec. 3, 2008/Marcel Cretain/Winnipeg Sun)

The full facts of John Casanova’s acquittal for dangerous driving in the fatality of Violet Gooding, 90, on Dec. 3, 2008 can be found here. I won’t repeat them.

But it’s important to point out Judge Marvin Garfinkel’s ruling today followed from a consideration of a large number of applicable cases presented by the Crown and defence that dealt with dangerous driving, “the standard of care” and the continuum of negligence with respect to dangerous drive offences.

In other words, Garfinkel surveyed and interpreted the law of the land in Canada as presented to him and arrived at the following (you’ll get the import of the law and his analysis in what’s presented below).

“It is with the principles of these cases that the facts in this case involving Mr. Casanova must be considered and assessed.

Consequences of the collision in this case were tragic. Violet Gooding died. There is nothing that this court can do that can repair that harm.

It is a tragedy.

However, the principles of previous cases show that the consequences are not a determinative factor. The manner of driving in this context must be assessed.

The cases, the principles cited show that there is a continuum of negligence. A departure from a standard of care expected of a prudent driver may give rise to civil liability.

For a criminal sanction to be imposed, it must be proven there was a marked departure from the standard of care of a prudent driver.

The lack of proper care must be sufficiently serious to merit criminal punishment.

Mr. Casanova was operating his motor vehicle on St. Mary’s Road between 10 and 10:30 a.m.  The vehicle was equipped with studded tires, but it can’t be said with certaintly what effect that had on the collision.

The road was clear, the sun was shining. There was no obstruction to vision.

Mr. Casanova was speeding. His speed was excessive. He left the red light quickly and moved into the left lane.

It would appear that vehicles speeding on St. Mary’s Road in this area were not unusual.

However, Mr. Casanova’s speed was excessive.

Violet Gooding had vision problems. What effect that had on the circumstances cannot be stated. It is not known. Moreover, there is no contributory negligence factor in a criminal prosecution.

It is not known when Mr. Casanova saw the turning vehicle.

Infrences from testimony of the witnesses can be drawn that Mr. Casanova did not try to brake soon enough, or that he was traveling too fast to stop safely.

That leads to the conclusion that there was a departure from a standard of care that would justify civil liability.

However, the manner of driving did not amount to a marked departure of a standard of care warranting of criminal sanction.

The lack of prudence by speeding is a manner of driving that even the most careful driver may occasionally perform.

I am unconvinced that Mr. Casanova’s manner of driving constituted a marked departure from the standard of care of a reasonably prudent driver in similar circumstances.

Therefore I find the accused not guilty.”

I feel a Crown appeal coming on, but that’s just a hunch. What’s a bet if there is, a ground will involve the line bolded above.

Do speed limits matter in law? Stay tuned.

For the record: Saul Simmonds was Casanova’s lawyer. John Barr acted on behalf of Manitoba Prosecution Service.