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.
[Reblogged from the Winnipeg Free Press ‘Crime Scene‘ blog.]
In any jury trial, the judge’s reading of the charge and her instructions to jurors are right up there with the most important of tasks and developments in the court process.
In a complex case, the crafting of an appropriate charge can take many days, many re-drafts and much collaboration and input from the lawyers from all sides.
In the Davis case, it was no different.
The beauty of the charge is not only does it lay out the law for jurors and the guide it provides them to try and reach a just verdict, it also offers a review of the most salient points of evidence from all sides of the case.
It’s this key document and these words from Justice Brenda Keyser that jurors took with them to their room to secretly deliberate the first-degree murder case against Corey Tymchyshyn and Kristopher Brincheski.
Both men have now signalled their intentions to appeal their convictions, and Brincheski, his sentence.
One of Tymchyshyn’s complaints to the appeals court is that he feels Keyser’s instructions in reference to the evidence went off the rails and contributed in some way to his wrongful conviction.
We’ll see how that claim pans out down the road.
This will be my last post on the Davis trial, barring any urgent matters that might crop up.
I had more planned, but given the appeals are forthcoming, It’s likely better use of time to focus on that instead of dredging up stuff from the past that obviously didn’t have much relevance at the trial proper.
I’ll revisit that decision should an unexpected issue involving some undlsclosed element crop up during the appeals process.
It probably goes without saying that through this blog, I’ve hopefully been able to at least try and give readers a comprehensive sense of the Crown’s case, the evidence presented and the amount of dogged work RCMP and Winnipeg police did to figure out what happened and prove it in court.
To me, what better way to cap the trial coverage than to give people the one thing they’d need to read to understand how it came together, the serious issues at stake and an official review of all that was disclosed publicly?
[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.”
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.”
What to do with people who routinely breach their probation orders?
It’s the question that loomed in the air in Provincial Court today as Judge Rocky Pollack dealt with an accused who had amassed a staggering 41 breaches of probation over the last few years.
He has an alcohol problem. He dislikes authority. It’s pretty clear he doesn’t care if some cop or a judge tells him to behave.
But nonetheless, our courts must still pass a sentence.
I write this not to belabour this man’s case. Booze is his problem. He knows it. His high-risk probation officer knows it. Until he deals with it, not much will change.
I am writing this because Judge Pollack mentioned how a sentencing decision given to him in the case, one crafted in April by colleague Judge Don Slough really grabbed him.
Pollack called it “one of the best sentencing decisions I have ever read.”
The comment peaked my curiosity, so I sought it out today.
Slough’s reasons in Janelle Francois’s case were pretty well on point with the case Pollack was dealing with — more than a dozen breaches in a short amount of time, which netted her “short shots” in jail meant to arrest her breaching behaviour. But they didn’t, apparently work. It got Slough wondering why this is.
From his decision (presented in full below):
People like Ms. Francois form a significant portion of the individuals appearing in Canadian courts. The Adult Court Criminal Survey, Canadian Centre for Judicial Statistics, Statistics Canada 2011: indicates that 21 percent of all cases in adult court are administration of justice offences. Administration of justice offences include failure to appear in court, unlawfully at large, failure to comply with a court order, and breach of probation. Nor is the use of short incarceratory sentences in response to these offences unusual.
In Canada, 55 percent of all custodial sentences are 30 days or less. Sentences of six months or less comprise 80.4 percent of all custodial sentences imposed upon men and 91.2 percent of all sentences imposed on women: Adult Criminal Court Survey, Canadian Centre for Judicial Statistics, Statistics Canada 2011. While these individuals form a significant portion of the workload of the criminal justice system, in many ways they are virtually invisible. Short sentence rarely attract appellate review. Instead, accused like Ms. Francois are part of a group of individuals who are constantly in and out of remand centres and jails.
The crux of Slough’s reasons, to me, appeared to be this: Six months or less isn’t enough time to let any in-custody rehabilitation (like anger management or alcohol-programming) take shape, if not get off the ground at all.
So what’s the use, then? If jail isn’t a deterrent to keep people out of jail from fear of being in jail, and their time in jail isn’t enough to do much good to address the underlying behaviour which put them there in the first place — aren’t we just throwing good money after bad?
Remember — at $174 a day, the province will spend $15,660 in taxpayer dollars to keep one person behind bars for a 90-day stint, not inclusive of other costs [police, courts or probation].
But the fact of the matter is this: It’s the law of the land that aboriginal offenders are to receive special consideration when being sentenced.
(Note, please, the intentional use of the word *consideration* — which, loosely, means to ‘think about’ in this context, not to confer a benefit, reward, or as Gladue is often dumbed down to: ‘A race-based discount.’
But I won’t get into all that today. I just finally in the last few weeks came across a Manitoba judge who explains what this all means so clearly and concisely — in 156 words no less — that I wanted to share it as a reference to readers, other interested parties and to myself for the future.
In the last two weeks, I’ve heard provincial court Judge Dale Schille use variants of the same explanation when giving reasons on sentencing.
Part of what Schille says it is a direct lift from the recent fundamental Supreme Court decision in R v. Ipeelee, which goes exactly like this:
“Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely — if ever — attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability.”
It appears from this point, the judge puts his own stamp on the issue:
“It is clear from that articulation that 718.2(e) seeks to recognize that there exists residual effects stemming from the historical mistreatment of the aboriginal population. The reality is that that treatment has disadvantaged aboriginal people in a number of ways including: decreased levels of education, lessened opportunities for employment, higher frequencies of violence and substance abuse when compared to the non-aboriginal population. All of these factors impact or detract from the moral blameworthiness of the aboriginal offender.”
When you stop to think about it, it explains a lot of things quite nicely, and in short order.
“Progressive Conservative justice critic Reg Helwer said Swan could reduce the number of inmates on remand further by eliminating preliminary hearings and forcing more plea bargains. “Is it necessary to have a preliminary hearing in any case?” Helwer said.” — Jails looking less crowded, WFP article by Bruce Owen, Sept. 20, 2013
“I cannot tell you how many times a case has folded at or soon after prelim because the evidence was so weak. And better the weak cases get dumped after a 5 day prelim as opposed to a month long trial.” — Winnipeg criminal defence lawyer
Let’s start today by offering the simple answer to Mr. Helwer’s question.
As a newspaper reporter who covers courts, it chagrins me to some degree that I typed that.
But as a member of the public interested in seeing we have the fairest criminal justice system possible, however, I see why “prelims” (as they’re often dubbed), are 100 per cent necessary.
I won’t belabour my first point: prelims are viewed as a pain for the media because they’re largely — but not totally — off-limits for publication. When you want to tell people about what’s happening and why in their court system, sitting in a prelim is seldom the way to accomplish this. Whatever. It’s just a professional reality at the end of the day.
The justice system doesn’t exist for the media’s benefit.
As a member of the general Canadian citizenry, however, I’m heartened prelims exist. They’re a necessary fail-safe in serious cases where the stakes are high [such as homicides and major assaults of all various types].
It’s an unpopular sentiment, admittedly, but the fact is, the more procedural protections we can offer an accused person facing serious jeopardy to test their case, the better chance we’ll be able to weed out wrongful or unjust convictions. Nobody wants to see those.
Over the course of about 20 years in several common-law countries, preliminary inquiries or “committal hearings” have been the whipping boy for justice reformers, identified by them as a key source of court inefficiency and waste. In some jurisdictions, their use has been curtailed.
But looking at the Manitoba situation in particular, I can’t see how eliminating the prelim process would help speed up the course of criminal justice. In fact, I believe it would actually slow it down and simply clog superior courts with addition pre-trial motions and other legal procedural issues. (** See below for a good example of this **).
Contrary to what Mr. Helwer suggests, Taking away a suspect’s option of testing the Crown’s evidence won’t strong-arm them into pleading guilty, even if deals are proffered.
More importantly, who wants any part of a system where people are denied — however tacitly — their fundamental right to have their day in court if they so choose?
No judge would even accept a person’s plea if they caught a whiff that it was being forced in any way.
The often-heard complaints about preliminary inquiries seem to go like this, and it’s not an exhaustive list:
The bar the Crown must clear is low to move the case on to trial in superior court. All it needs to show is that evidence exists on which a reasonable jury, properly instructed, could find an accused person guilty. Some wonder why this step is needed at all, given that a trial proper appears to accomplish this task just nicely, thanks.
I won’t pretend to be a legal expert on the matter, but just this week, I was reminded of the importance of prelims in a case I’m prohibited yet from spilling the full details of.
In essence, a person accused of a very serious crime was not committed to stand trial for manslaughter. The Crown fought that provincial court judge’s decision to quash the charge and lost.
The judge’s reasons to not put the case forward to trial were complex and technical. And after thinking about it over many days now, it was the right decision to make, in my opinion.
Putting it in front of a jury, with respect, would likely result in a misapprehension of the law and could have resulted in a wrongful conviction. It’s very easy to opine that the accused skated on a technicality, but that’s simply not the case.
Score one for the preliminary hearing, in my books. More on this when it all resolves.
If I were to offer an honest complaint about preliminary hearings, I would say it revolves around a tactic used by the defence in domestic violence cases.
Basically: it’s not uncommon to see a case set down for a prelim just to see if the complainant will show up to testify. Many, many such cases fall apart at this stage because they don’t.
In the end, though, that’s not a fault of the process, but speaks to larger societal issues.
The defence has a job to do, just as the system itself does. Preliminary inquiries are an important part of that work.
One example of how taking away an accused’s prelim will just trigger more pre-trial motions: Earlier this year, Manitoba Justice directly indicted Terrence Hanska to trial in the Court of Queen’s Bench on two attempted murder and other charges relating to separate incidents about two hours apart in May 2012. In response, Hanska is now battling to see the two incidents severed off into two separate trials. Reasons include how he believes allowing the Crown to lead evidence of the second incident would amount to “bad character evidence” and prejudice his fair-trial rights. He may have a point, may not. The point is: taking away a prelim for Hanska by directly indicting him likely won’t result in the case being heard any sooner. We’ll see.