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.

-30-

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-

Chad Davis murder trial: The evidence in week two

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

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

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

Corey Tymchyshyn and Kristopher Brincheski are accused and presumed innocent.

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

First week recap can be found here.

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

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

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

RCMP Cpl. Maria Forester (third appearance)

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

George Lancaster

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

CROSS EXAMINATION

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

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

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

E.L.

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

Kevin Marchand

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

Robert Marchand

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


RCMP Cpl. Maria Forester (Fourth appearance)

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

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

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

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

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

Cpl. Maria Forester (Fifth appearance)

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

Day 10
Agreed facts from Sgt. Randy Hooker 

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

Dr. Greg Litzenberger, RCMP biology section

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

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]

A ‘vicious, vicious cycle’ continues

(This post is re-blogged from the Winnipeg Free Press “Crime Scene” blog.)

I have a dream about what I would do if I were to ever win the lottery or otherwise have the good fortune to sign my own paycheques, as it were.

I would travel the province and country for at least two full years to examine the youth justice system as only considerable time and complete, undivided focus, could allow.

I spoke last week to a great group of University of Winnipeg students who are studying the justice system, the court process and criminal law procedure in depth.

They’re looking closely at issues including disclosure, wrongful convictions and other serious systemic problems that can happen and, why.

It was only in the dying minutes of my time with them that I remembered the most important thing I wanted to tell them.

That being: When it comes to youth justice and all that entails in the true meaning of the word “justice,” I believe we’re failing and we either need to do better or find new tools and ways of doing things. I’m just being honest.

We’re not failing in the sense that there aren’t great people, from correctional officers and social workers to lawyers and judges, grinding it out every day, doing the best with the resources they have to work with. There are, and they don’t get nearly enough attention or accolades for their work.

I mean we’re failing systemically. In terms of the Youth Criminal Justice Act’s stated intent to promote a just and safe society and long-term protection of the public by focusing on rehabilitation, and not punishment, as a first principle for young offenders, who have diminished moral culpability because of their ages.

More importantly, we’re failing in how the youth criminal and child-welfare systems intersect and don’t appear to share each other’s objectives.

Well, they may in principle. But in practice, as I’ve continually seen over the years, it’s a very different reality entirely.

I’ll give you just one small example of this.

I call it the ‘how kids fall into a black hole’ scenario. Followers of my blog over the years are familiar with my coverage of this issue, how youth jails become ‘warehouses’ for child-welfare and mental health concerns

This sad drama appears in various permutations, but almost always involves a bewildering and (I say) shameful lack of communication and co-ordination between Child and Family Services and the criminal youth justice system.

Interestingly, it’s seldom that you can just point a blaming finger over this issue – and that’s not my intent here, really. But it never seems to change.

Here’s this week’s example. One where it takes a little time to tease out all the complexities at play. Apologies.

It also bears mentioning that as a member of the public, one doesn’t often get the full, fleshed-out picture in youth court.

Due to CFS privacy and YCJA access provisions, there’s no opportunity to access reports and other documentation which could provide greater detail as to what’s really happening. So you’re left sometimes with what you’re left with in terms of what the various actors put on the record.

But the lack of access to documents doesn’t mean that the issues aren’t valid, that they’re somehow just misunderstandings borne out of a lack of public disclosure.

The problems are real.

In the spring of 2013, the parents of a criminally-involved 14-year-old (‘DD’ we’ll call him here) sign a voluntary placement agreement with CFS for six months. His folks have seven other kids at home and DD’s acting out causes them to ask CFS for help. CFS – Southeast CFS to be exact – steps in to take him.

He’s the only one not living in care (save for an older sister who also came into care due to a pregnancy). He has suspected FASD and ARND, cognitive issues which make him more apt to act impulsively.

In his own words: “I do before I think.”

In May, he’s handed a year of probation for a break-and-enter, failure to appear in court and failing to comply with a bail order. The sentence, given that it’s his first-ever, is a year of probation. In June, he’s arrested again for breaching probation and given a few hours of community-service work.

In September, he pleads to more probation breaches and gets more community-service hours.

What’s important to note: The probation breaches are all because he leaves the various emergency hotel shelters CFS is routinely placing him in, often returning home because he’s upset at the fact all his siblings remain there and he’s not.

Since he came into care, he’s been shunted between eight hotel placements.

It’s not all CFS’s fault for this, however. Court hears more “stable” foster placements can’t be had for him until he gets his behaviour in check. Yes, he’s 14, but some of the responsibility has to fall on his shoulders.

But arrested again in early October, DD plummets into the black hole.

It happens like this: The Crown, rightfully, won’t consent to bail him out unless CFS comes up with a better residence plan than hotel rooms for him to live in.

And it’s pretty clear to the defence it would be a hard sell to a judge to release him if there’s nothing new in DD’s bail plan to satisfy the court it just won’t all end up with him collared again and returned to the Manitoba Youth Centre.

But at the very same time, the skimpy nature of DD’s criminal past and the current charges he’s facing makes himineligible for custody at all if he were to just plead guilty and deal with his charges. In essence, we’re criminalizing a child, largely because of systemic factors beyond his control. I see that as a big problem.

And CFS, you ask? They’re hard to track down.

Now, over the years, I’ve heard more than a few defence lawyers complain that they can’t get CFS down to court to answer questions about one of their youth clients.

Despite their complaints, I can count on one hand the number of times I’ve actually seen a judge subpoena a social worker — no small thing — to attend and talk about what the heck is going on with a young person.

It happened this week in DD’s case. On Tuesday, the case comes up in the afternoon, and Judge Catherine Carlson is told his defence lawyer was asked by another judge to call DD’s social worker and get her to come to court and answer questions about the hotel “emergency” placement plan for him. The CFS worker, in the past, had been in court to support him.

The lawyer is candid, says she called and the worker replied, “she’s not available today — she’s not available any day this week and the earliest she could attend is Tuesday (the 12th). And so, she’s not available to the court.”

As well, there is no non-hotel plan available at this time, the lawyer says she was told.

The worker was asked if there was a day she could “squeeze into her schedule” but the lawyer was still awaiting a call back to see if that was possible.

Is there anyone else from the agency that could come? Carlson asks. This isn’t likely. Before her, Carlson has an in-depth forensic psychology report outlining the concerns with DD and CFS’s continued use of a hotel-placement plan for the future.

The Crown relays its position again. It would consent to DD’s bail if there was a “proper plan” in place, but, “we’re doing (DD) a failure because we keep returning him into the same poor circumstances,” the prosecutor says. The hotel placements are “not adequate.”

He says the court has the option of mandating CFS to attend.

“I think that what’s troubling to me is the worker did come down and express concerns, which is why the forensic (report) got ordered. But then she didn’t participate in the forensic and… it seems… that just at this point there’s more questions than answers… I guess we’re stuck.”

“Somebody’s got to come down and answer what’s going on here.”

Judge Carlson agrees: “To say that she’s unavailable till Tuesday is concerning knowing that there’s a young man in custody and needs a better plan.”

So, a subpoena ordering the worker into court for Thursday is drawn up.

That day, the worker duly appears, and hears now from Judge Carena Roller.

“There is, for whatever reason, a lack of plan… he’s remaining in custody when he’s not eligible for custody. That’s a problem for me,” Roller says.

The forensic report hints at the fact an undiagnosed medical or psychological issue is at play in DD’s situation, an issue preventing him from complying with his court orders and therefore prompting his return to custody.

“The irony is we don’t know that because there was no response from the agency, no background provided to the assessor,” Roller says.

Ah, the worker says, that’s not entirely true. She was in touch with the doctor who assessed DD. There was another report done. The other one wasn’t prepared for court purposes and looked at his needs in the community. The worker insists that second report was sent to the doctor who did the forensic evaluation.

Regardless, DD’s impulse control is “severely impaired,” the worker says. It’s possible medication may help calm him — but doctors won’t prescribe it until they’ve had up to three weeks to observe his behaviour. That’s been a problem because DD goes AWOL, she says.

As for where he’ll live upon release, the worker says as follows: “Placement is determined on the day of release based on what beds are available in the system. I can tell you what’s available today, but I couldn’t tell you what would be available on a different day.”

What’s available today, Roller asks.

“An emergency shelter.”

Is that 24-hour supervision?

“No. The shelter we’re talking about is a 16-bed emergency shelter where he would be expected to attend the day program (school)… we haven’t been able to register (DD) in school because he tends to be AWOL before we can stabilize a program,” the worker says.

Why aren’t we talking about a locked setting then?

“For that to happen, we need a social history and approval for that level of funding,” says the worker. “We haven’t had that yet. Now, with these reports, we’re more able to support that application. And that is definitely a plan underway.”

When asked, the worker couldn’t say what date DD’s six-month voluntary placement with CFS expires. “Probably” in the next couple of months, she says.

Roller is curious (as we maybe all should be about a child in care): Why doesn’t CFS already have a social history on DD?

The worker’s answer is evasive. “In order to apply for locked facility… we have to be able to support it by behaviours,” she says.

The hearing is then stood down for a few minutes. A behind-the-scenes discussion results in DD pleading guilty to a handful of breaches and being sentenced to a few extra hours of community service work.

In his sentencing submissions, the Crown sounds unconvinced anything will change. Some of DD’s issues are systemic, he says. Candidly, some are also his as an individual, he says.

“Best we can hope is he goes on his way and starts to listen to his probation officer.”

DD’s defence lawyer tells Roller the youth is confused and upset at the fact he’s not allowed to be at home with his family and that’s why he flees from his hotel placements.

“He thinks that if he acts out and leaves these shelters they’ll give in and let him go home – that’s not the case,” she says.

By now, he’s spent three weeks of his life in custody. The lawyer questions how it appears the CFS position on finding a proper placement is somewhat incumbent on him, based on what the social worker has said. It shouldn’t be “all on him” to prove his way out of the emergency hotel shelter situation, the lawyer says.

“It’s turning out to be… a vicious, vicious cycle.”

In addressing DD, Roller seemed to agree.

“I know that you haven’t had a stable placement since you came into agency care,” she told him. “And I’m convinced that the people who are working with you aren’t talking to each other like we need them to do. We need you to have a team in place to work together and I hope that’s what’s going to happen going forward. Because we need your behaviour to improve,” she said.

She also reminded him of his CFS worker’s implicit promise to the court to get moving on finding a more palatable solution for him, to find him at least a place, “where you can unpack.”

“And she’s going to do all of that right away because we don’t want you bouncing around,” said Roller.

———————–

If you’re still with me by now, you’ll have perhaps noted some of the questions DD’s case — but one of many hundreds of youth court cases in Manitoba — raises.

At the top of my mind are:

  • How can a child be taken into agency care and the agency doesn’t have a “social history” on him months into his stay?
  • What exactly is a “social history?” It was clear his parents called in CFS, so why don’t they have such information at hand?
  • How can a social worker be subpoenaed into court and not have exact answers (like the date of expiry of DD’s placement agreement) at hand about the case she’s there to talk about?
  • Is a hotel room for a potentially mentally challenged and certainly confused teen boy really the best we can do for him? It personally strikes me as disingenuous to say it’s somewhat incumbent on DD, given the circumstances as presented, to “earn” his way out of the emergency shelter system. If it’s the case that it is, then isn’t that a problem? It strikes me DD was stopped into care by way of a voluntary agreement with no case planning as to what to do with him once he was there.
  • What prevented the two systems from “talking” to each other in this case and perhaps finding a better — or at least more expedient — outcome here? Resources? Stubbornness?

We can say “justice” has been served in the sense that a sentence was meted out, but I think we all know it wasn’t here. I fully expect to see DD back on the court docket in the coming months.

There’s many, many more questions, obviously. Finding answers without taking a long and focused look will be impossible.

The “vicious, vicious cycle” will continue until there’s pressure enough to end it.

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Short Shots: (Nearly) disappearing repeat breachers

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].

So I ask — what’s the answer?

Gladue: ‘the why’ in 156 words

It beguiles. It combozzles. It sometimes enrages.

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.’

“Gladue” principles and the application of same in criminal courts are hands down one of the most controversial features of the Canadian justice system in terms of public acceptance and understanding of why they exist.

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.

For your attention.

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[Edit: 7:30 p.m. — minor tweaks, nothing more]

Guilt derived by ‘force,’ and the abolition of preliminary inquiries

“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.

Yes. Preliminary hearings are necessary.

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.

Some quick, sad, math

Last weekend, I wrote about chronic offender/public nuisance Perry Antoine, his release from prison and his upcoming fight with the province over the peace bond justice officials want to put him on for the next two years to try and keep him in check.

The background is all in the story. And it’s quite possible that now, at age 52 and confined largely to a wheelchair, Mr. Antoine won’t reoffend again.

But today, it occurred to me to look more closely at his record since 1979, since he became an adult, and do some math.

In that time, his record notates he’s done 5,746 days behind bars (just shy of 16 years) since ’79.

Using the recently cited provincial inmate housing costs of $174 a day to keep him in custody, that equals:

 $1,005,550 — simply to keep him in jail in that time. (This is low-balled. See *note below on why — factoring in federal prison costs would bring us to a staggering $1,610,109).

That’s not counting the cost to the taxpayer for police to arrest and process him, nor the cost to prosecute or judge him.

That’s simply to keep him detained.

More importantly, that doesn’t count the cost of probation services.

Since 1979, he’s been given the equivalent of 16.5 years worth of probation across various orders.

(Let’s say for the sake of argument he had one appointment a week at an arbitrary cost of $75 for 858 weeks. that’s $64,350).

I couldn’t tell you what the actual value of that in terms of dollars would be, but probation officers — especially the ones working the highest-risk offenders — don’t come cheap. The actual cost is much, much higher, no doubt.

Going forward, there will be more probation costs incurred as the Criminal Organization High Risk Offenders Unit (COHROU) are the Corrections unit tasked with hawking him now that he’s free.

Neither does it count the cost of storing Mr. Antoine in the drunk tank, nor the hospital visits or community health services.

Nor the victim services.

I’d peg the dollar cost to society of dealing with Mr. Antoine at well over $2 million since he turned 18.

While that’s huge, especially since he’s just one chronic offender in a province with many of them, the greater concern to me is the loss of human potential. What a seeming waste of a precious lifetime.

The other thorny issue is how despite our ‘investment’ over the years in Mr. Antoine’s — and society’s — safety and well-being, not much seems to have changed for that.

Something to ponder.

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* naturally, he’d be earning parole at some points along the way in both provincial and federal systems. But any decrease in time spent would be counterbalanced by the fact it costs double to house an inmate in the federal system [where he recently served each and every day of an 8-year bit] That cost, Stats Can says, is $357 a day (2010-11 data). Factoring in that figure, it’s $1,610,109. Trust me, I’m a journalist.

[EDIT to correct date of Stats Can data]

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.

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