Below, please find, for the record, newly minted Court of Queen’s Bench Justice Vic Toews’s complete remarks made at his swearing-in ceremony in courtroom 210 of the Law Courts Complex on May 2, 2014.
[Free Press photo by Phil Hossack, as credited]
[Reblogged from the Winnipeg Free Press ‘Crime Scene‘ blog.]
In any jury trial, the judge’s reading of the charge and her instructions to jurors are right up there with the most important of tasks and developments in the court process.
In a complex case, the crafting of an appropriate charge can take many days, many re-drafts and much collaboration and input from the lawyers from all sides.
In the Davis case, it was no different.
The beauty of the charge is not only does it lay out the law for jurors and the guide it provides them to try and reach a just verdict, it also offers a review of the most salient points of evidence from all sides of the case.
It’s this key document and these words from Justice Brenda Keyser that jurors took with them to their room to secretly deliberate the first-degree murder case against Corey Tymchyshyn and Kristopher Brincheski.
Both men have now signalled their intentions to appeal their convictions, and Brincheski, his sentence.
One of Tymchyshyn’s complaints to the appeals court is that he feels Keyser’s instructions in reference to the evidence went off the rails and contributed in some way to his wrongful conviction.
We’ll see how that claim pans out down the road.
This will be my last post on the Davis trial, barring any urgent matters that might crop up.
I had more planned, but given the appeals are forthcoming, It’s likely better use of time to focus on that instead of dredging up stuff from the past that obviously didn’t have much relevance at the trial proper.
I’ll revisit that decision should an unexpected issue involving some undlsclosed element crop up during the appeals process.
It probably goes without saying that through this blog, I’ve hopefully been able to at least try and give readers a comprehensive sense of the Crown’s case, the evidence presented and the amount of dogged work RCMP and Winnipeg police did to figure out what happened and prove it in court.
To me, what better way to cap the trial coverage than to give people the one thing they’d need to read to understand how it came together, the serious issues at stake and an official review of all that was disclosed publicly?
(Reblogged from the Winnipeg Free Press ‘Crime Scene’ blog, minor revisions for formatting and clarity)
“Ironically, had Ms. W died from the shooting it would have been easier to prove murder, because that can be done in two ways. Including the less onerous route of meaning to cause bodily harm that the accused knows is likely to cause death and is reckless whether death ensues or not.” Justice Chris Martin
Attempted murder: those two words, strung together, strike fear to any warm-blooded heart for sure.
Sadly, the charge seems to be more frequently seen in Winnipeg than ever before.
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.)
“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.
[Reblogged from the Winnipeg Free Press ‘Crime Scene’ blog]
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.
Allegations made in the Crown’s opening argument can be found here [required reading, really].
[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.]
[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.]
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?
[Justice Keyser issues yet another warning to the jury at this time, basically as noted earlier, above.]
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:
[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)
(it goes on like this for a while – see Crown timeline)
Court adjourns to deal with an issue with the cell-tower map
DAY 13 – Court not sitting
Tillotson, direct continued.
[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].
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.
RCMP Cpl. Maria Forester (third appearance)
[Jury excused at this point]
DAY 7 – JURY NOT SITTING
DAY 8 – Lancaster returns, cross-exam continues
RCMP Cpl. Maria Forester (Fourth appearance)
Agreed statement of facts from Tymchyshyn’s ex-girlfriend, C.C.
Dr. Kimberly Kenny, to provide expert opinion evidence on identification and comparison of polymer materials, including paint.
Cpl. Maria Forester (Fifth appearance)
Agreed facts from Sgt. Randy Hooker
Dr. Greg Litzenberger, RCMP biology section
[Republished without editing from the Winnipeg Free Press ‘Crime Scene‘ blog on Sunday, Jan. 26, 2014]
Two men on trial for a ghastly crime: The alleged first-degree murder of a handsome young Winnipeg man, a cocaine dealer, who went missing for months and was found July 23, 2008 in a barrel pulled from the Lee River.
Corey Tymchyshyn and Kristopher Brincheski are accused and presumed innocent.
After week one of the hearing, here’s a breakdown of the evidence Crown prosecutors have presented thus far in this deadly serious case, which they say occurred Feb. 6, 2008. Davis’s disappearance after this date was a missing persons investigation until his body was discovered.
[You can read Crown attorney Keith Eyrikson’s opening address to the jury here to get the crux of the allegations. This lenghty post is more to ground readers on the actual evidence that’s being presented].
Also, I’ve presented it (with one exception) without distinction of whether the evidence was led on direct by the Crown or cross examination by defence lawyers.
I suspect to the 11-person jury, it’s important they just hear it all and then try to sort out what’s what. It’s the answers, not the questions, that are the evidence.
And remember: the golden guideline is, they can accept all, some or none of what a witness tells them.
RCMP Cpl. Maria Forester, forensic analyst [first appearance]
Day 2: Forensic Pathologist Dr. Thambirajah Balachandra
Courtney Sych, Davis’s girlfriend at time he went missing Feb. 6, 2008.
DAY 3 – Sych returns, cross-examination
Det. Matthew Freeman, Winnipeg police (organized crime as of Feb. 2008, now major crimes unit)
ADMISSION OF AGREED FACTS
Day begins with two questions from jurors, who want to know how much cocaine $18,000 could buy and at what designation [wholesale or retail]. They also want to know if there was a delay in asking Spring Taxi for their dispatch records. Justice Brenda Keyser acknowledges the questions on the record and asks them to be patient and hear all the evidence before deciding to seek answers.
Next witness, Lori Davis
Sgt. Ralph Lucas, WPS forensic identification unit
RCMP Cpl. Maria Forester, forensic analyst [second appearance]
Day 5: Stuart Davis
Det. Sgt. Will Degroot, Winnipeg police organized crime unit
The trial continues.
2174 days ago, Chad Randall Davis vanished.
That’s five years, 11 months and 13 days (Or more than three million minutes).
And after all this time, the public is finally getting a look into what RCMP and Manitoba prosecutors believe happened to the 22-year-old.
I won’t belabour the point other than to say: that’s a heck of a long time to wait for a trial. For all involved, the victim’s family, those accused and yes, the general public.
Corey Tymchyshen and his (ex?) friend and business partner Kristopher Brincheski are accused of murdering Davis on Feb. 6, 2008.
The men, naturally, are presumed innocent, and prosecutors have a large hill to climb to satisfy a jury they’re guilty beyond a reasonable doubt of the most serious offence in Canadian law — first degree murder.
The suspects weren’t arrested by RCMP until weeks after Davis’s body was found in a barrel floating on the Lee River near the town of Lac Du Bonnet on July 23, 2008.
But after the arrests were announced — long before, even — the mystery of just what happened to Davis has lingered for many in Manitoba.
The prosecutor’s opening statement in a trial does more than focus the jury on what it is they may (or may not) get to hear.
(They’re cautioned what is said is not evidence — only a guide to what they may hear and see. It’s what the witnesses say under oath that counts.)
The opening statement also allows the public a preliminary glimpse into what the case is all about.
I thought it important to reproduce the vast bulk of Manitoba Crown attorney Keith Eyrikson’s opening remarks, verbatim. Here they are, for the record.
Again, these are not proven facts, only allegations.
“So what does the Crown say happened?
We say that Chad Davis was with his girlfriend, on Feb. 6, 2008.
He was staying at a hotel room at the Red Lion Inn in Winnipeg. The two were planning to move to Calgary together and start a new chapter in their lives.
Mr. Davis left the Red Lion Inn around noon on Feb. 6 to go meet up with Corey Tymchyshyn at his mother’s house at 703 Prince Rupert here in the city of Winnipeg.
Mr. Tymchyshyn owed a drug debt of somewhere between $18,000 and $28,000.
When Mr. Davis arrived at 703 Prince Rupert, he was led into the detached garage at 703 Prince Rupert, where Mr. Brincheski was waiting.
Mr. Davis was attacked and killed in the garage by them both.
Mr. Davis’s body was then wrapped in plastic, it was put into a large plastic barrel. He was then put in the back of Chad Davis’s Jeep Cherokee and driven to Lac du Bonnet.
The barrel was weighted down, and holes were drilled into it to allow it to sink.
The barrel was then pushed into the Winnipeg River, with Mr. Davis’s body in it.
The barrel with Mr. Davis in it was then found by two unsuspecting cottagers on the Lee River in July of 2008.
Who was Chad Davis?
You will hear in the next few days from his girlfriend and from his parents. They will no doubt tell you a bit about him – but I wish to be direct with you, ladies and gentleman.
You will hear some evidence that Mr. Davis was no angel. It will become clear as we hear from witnesses in this matter that he was in fact a cocaine dealer and that some of his qualities were less than admirable.
But whomever and whatever Chad Davis was, what occurred here was morally wrong and a criminal act.
I want to tell you about some of the evidence you’ll be hearing in this matter. The first two witnesses you’ll be hearing from today are the gentleman who had the misfortune of finding Mr. Davis’s body.
These two individuals found a barrel that was knocking up against their dock, and they went to deal with it. They discovered that this barrel contained Mr. Davis’s body.
You’ll hear from officer Maria Forrester of the RCMP … she is what is termed an identification officer and will be a guide of sorts to help explain certain locations and areas of interest and precisely what was found during the course of this investigation.
She will be giving you a series of photo booklets, and we suspect you will be hearing from her on a number of occasions throughout this trial.
We will be discussing medical evidence and the cause of death of Mr. Davis with the Chief Medical Examiner for the Province of Manitoba.
This will require us to show you autopsy photos of Mr. Davis. While some of these pictures are graphic, they are necessary to give you a clear picture of his evidence.
The date of Feb. 6, 2008 is one you will hear a lot in this trial. On that date, the girlfriend of Chad Davis *inaudible* (she) will give you information such as what he was wearing, why they were there and what their plans were for the day.
She will be able to tell you that she was familiar with many of Chad’s possessions. Some of which were in a storage unit he rented. Some of which he had in his Jeep Cherokee when he went to 703 Prince Rupert that day.
What you will discover later on in this case is that many of these personal items were in fact found in the possession of Mr. Brincheski when a warrant was executed on his house in early 2008.
Shortly after Feb. 6, 2008, Chad Davis was considered to be a missing person, and Winnipeg police started to investigate. You will hear from a Winnipeg Police Service officer about a conversation he in fact had with Corey Tymchyshyn.
You will hear from (Davis’s parents) …
When you compare (what they said) to what Mr. Tymchyshyn told the police, you may start to think that what he was saying didn’t really make sense.
You will hear about a storage locker that Corey Tymchyshyn helped rent for Chad Davis, but one which was solely for the use of Mr. Davis.
On Feb. 6, in the evening, records indicate Mr. Tymchyshyn was at the storage locker. Weeks later, after the death of Mr. Davis, he and Mr. Brincheski came back and emptied the storage locker of all of Chad’s possessions.
You’re going to hear from a man … he was a friend … to the mother of Mr. Tymchyshyn when Chad came over to 703 Prince Rupert on Feb. 6, 2008.
He will be able to give us some insight as to the events at 703 Prince Rupert that day. You will hear from (a next-door neighbour) … on the day that Mr. Davis’s body was discovered, she heard sounds of demolition in the garage where we say Mr. Davis was murdered.
You will then have (two men) testify about how the interior of the garage at 703 Prince Rupert was torn down, the pieces taken to a property near Anola – to be used in a renovation property.
When the materials were analyzed, the RCMP found that the same type of plastic that Mr. Davis was wrapped in was also taken from the garage of 703 Prince Rupert.
You’re going to hear about some plastic shavings found in the back of Mr. Davis’s Jeep Cherokee. We say that these shavings were created when holes were drilled in the barrel when Mr. Brincheski and Mr. Tymchyshyn were trying to dispose of that body.
You’ll hear about testing done on similar barrels by an RCMP officer, how these tests show drilling into a barrel would create shavings such as these.
You’ll hear about DNA evidence that the RCMP were able to gather from the garage at 703 Prince Rupert. That DNA testing done within this garage revealed that Chad Davis’s blood was on the floor.
You will hear from someone who worked for Mr. Tymchyshen … and his daughter. They will tell you that Mr. Tymchyshyn threatened he had killed a person previously and put him in a barrel in a river.
We will also be calling evidence from cellphone and text message records. We will be calling experts to help explain this technical evidence to you. We feel this evidence will help detail communications between Mr. Davis and the accused persons, and their locations on and around Feb. 6, 2008.
You will also hear from (a relative of Brincheski’s) … he too, will help give an understanding of what happened on Feb. 6, 2008.
We are very aware there is a lot of evidence for you to listen to … but in a nutshell, we are saying to you, when you are given all of the evidence in this trial and when you look at it together, the Crown will be able to demonstrate that Mr. Tymchyshen and Mr. Brincheski are guilty of first degree murder beyond a reasonable doubt.
At this point, that is all I will say to you about the evidence.”
Thankfully, it happens relatively rarely, but it did happen this week to J.
He’s a now 18-year-old man who, despite signs of some hope in recent months, was deemed unfit to stand trial on some [relatively minor] charges and turned over to await disposition as to his treatment by the Criminal Code Review Board.
As his lawyer put it: “It is a life-altering verdict to him.” And it’s true.
Will he end up in a hospital or on the street? It’s unknown. Winnipeg Child and Family Services is involved and keen to find him assistance wherever it can, but an agency representative was noticeably absent at the Manitoba Youth Centre this week when Judge Sandra Chapman found J unfit and ordered him over to the CCRB. It was surprising because CFS had attended court hearings in the past out of a sincere wish to see him get help, Chapman was told.
J first came to the attention of police and the system on Jan. 9, 2012, when he and his mother got into a fight inside their home.
High on drugs, he became enraged to the point of threatening her. “I don’t care if you guys call the cops — I’ll take you guys all out and kill you,” J said, just before retreating to his bedroom.
Police arrive at the mom’s bidding and find him in his bedroom, high on the anxiety drug Restoril, mellow from marijuana and packing a small kitchen knife. He’s taken to the Manitoba Youth Centre. He gets bail.
Fast forward to Jan. 27, 2013: Police find him at 1:20 a.m. reeking of booze on McPhillips Street. Again, he’s a direct lockup at the MYC, then bailed out shortly after.
The final shot at release he saw ended around 11:50 p.m. March 3, while he’s now staying at a CFS “shelter” which also doubles as a hotel on Pembina Highway.
J became so angry with his CFS watcher he began assaulting him, then proceeded to take a chair outside and hurl it at the social worker’s car several times. Nothing was broken and the worker was uninjured. He was again detained at the youth centre.
And then the psychological assessments begin. Over the coming months, J would have three mental-health assessments conducted by doctors, two of which were tendered in court. The third was excluded because it didn’t deal with mental fitness-related issues.
After the first, it was considered he was “just being difficult,” and a “defiant young man.” One doctor found he “could be fit” at some time, but when, exactly, was naturally unknown. Time marched on.
Months later, J’s advocate told Chapman this week, it was clear the young man was “decompensating” — deteriorating — possibly because he was being held in a jail and had been there for a couple of months.
As one doctor put it: It was “no longer clear where the boundary line was between provocative behaviour (what the earlier doctor saw) and psychosis.”
In one example, the forensic psychiatrist said J would “stare (him) down.” The belief was J was now “presently actively psychotic” — a kid of 17 at that point who admitted he thought he could tolerate life inside Lakewood, the maximum-security youth facility in Manitoba.
There, inmates receive an hour of recreational time each day. The rest is spent in a locked room and under constant observation.
J said ‘no’ many, many times, when Chapman asked him the following: Do you know what’s happening here? Do you know what your lawyer is? Do you know what my role is?
Everyone — Crown, defence and Chapman — expressed reluctance at putting such a young man into “the system” [their words] on such minor charges. But there was little else to do.
Everyone involved hopes he’ll find his way to a hospital and adequate treatment from doctors. He was to be released as soon as practicable from the MYC.
But given some of the stories that have come to light about the mental health regime in Manitoba (and Canada, to be honest) of late, I can’t help but wonder if J is now simply to be cut adrift, possibly lost for good. Maybe institutionalized, possibly to be released and wind up on the street.
I note grimly that immediately, the court ordered the review board was to receive an extension of the time it is required to conduct a disposition hearing for J — to 90 from 45 days.
The ink’s not even dry on the paperwork, but already exceptions are being made.
And they’re not to accommodate J, but to accommodate the system. And it’s sad.
Also sad — and something I wasn’t aware of, is how two cells at the Manitoba Youth Centre are deemed “psychiatric beds,” a reality J’s lawyer called “completely unacceptable.”
What she meant, I believe: Jails are for criminals, suspected and otherwise.
“Psychiatric beds” are for sick people who need treatment, not incarceration.
As well, two beds at the above-mentioned Lakewood max facility are also designated for psychiatric-related inmates, court heard.
This was a situation described as, “not ideal.”
[EDIT: A slightly-revised version of this post appeared in the Winnipeg Free Press Sunday edition on Sept. 15. Below is the original version].
I keep wondering why more folk in the general public don’t appear to care all too much that two young aboriginal men were brutally cut down in the prime of their lives, killed brutally inside a shabby suite in a West End multiplex.
Yes, Dennis Baptiste and Jessie Henderson were members of a feared and loathed Winnipeg street gang, the Mad Cowz.
But for many young aboriginal men in a city where baby-faced teens somehow can get their hands on a .357 Magnum and carry it about with seeming impunity to kill over ridiculous notions of revenge, gang membership or association is to people in some particular circumstances, more akin to a Scouts club or after-school sports program might be for semi-affluent kids who live in Winnipeg’s sprawling suburbs.
And therein lies the rub of it. Our ability to look the other way or shrug our shoulders at the deaths of these men speaks to a fundamentally larger problem our society suffers from.
That being: a shocking and profound inability to empathize very much any more. That’s my gut feeling. And I trust my gut.
“Live by the sword, die by the sword,” one person replied to me on Twitter tonight when I expressed my angst on this topic.
“I celebrate every time one or more of these drug dealer/gangsters gets snuffed,” said another.
Bullshit, I say to them here in reply. These are the answers of cowards.
Dismiss out of hand what you refuse to even try to understand.
Eye for an eye is an exercise in mental gymnastics which will take us nowhere.
Regardless of anything: These two 23-year-old were living, breathing people, goddammit. For example: Baptiste had two young children. He had a long-time partner who cared about him. He lived, he breathed.
And dear God, how he bled.
I never met either of these men. And I’m pretty much sure they would have spat on me — or at least eyed me with extreme suspicion — if I had ever had the courage to walk up and say hello.
That’s not the point. The point is that between my cowardice and what I assume would be their disdain are symptoms of a sickness.
Just as street gangs are symptoms of a larger sickness still — a generational, trickle-down illness of poverty, rampant unfairness, inequality and racism.
I deplore senseless violence. I detest gangs and their uber-profitable, miserable businesses of drug-and-human trafficking, just to name two of the major income streams.
But to the degree an outsider can, I understand why the gangs exist and how they persist. And I know we don’t (or is it can’t or won’t?) do nearly enough as a society to be able to convince gang members to want to get out, that something better is waiting on the other side.
I find it very, very difficult to simply say, ‘meh‘ to a life cut senselessly, brutally, criminally short.
But that’s what I see happening when it comes to the overall public reaction to the murder trial — a process trying to find some justice for Henderson and Baptiste.
Media coverage, aside from the daily newspapers, has been scant, despite wide-spread coverage of their deaths when they were discovered.
It makes no sense to me how there’s little follow-through.
But I won’t get too deep into that, because we don’t always know what’s going on behind the scenes. This brings me to what I wanted to point out. My appreciation.
I don’t know if the Winnipeg police have it right in charging Ken Roulette – reportedly a friend of these men — with the deaths.
There are things about this case I’ve seen so far that don’t quite add up to me, at least just yet.
But in the end, it’s not up to me, or you, to decide. In this way, we’re just observers to the work six men and six women are now charged with doing.
But what I do know is that homicide investigators and the two seasoned Crown prosecutors now putting in the case didn’t have the choice of saying, ‘Meh,’ and shrugging their shoulders when called on to try and bring some resolution to this awful matter.
What I do know is that two of Winnipeg’s best defence lawyers don’t appear to be conceding one inch of territory to their state adversaries — another hallmark of criminal-legal seriousness. The stakes are huge here.
There’s an aura to the proceedings as a whole which I can only describe as spine-tingling. It hangs over the courtroom like a pregnant dark cloud.
To me, it’s right and just that this feeling persists. The awfulness of what happened here can’t be brushed aside, despite my fear it will.
Ask yourself this. If it had been two 23-year-old white kids from Charleswood or St. Vital who were killed in this fashion — what would the interest be then?
Lest this be perceived as a personal criticism of Winnipeg Police Board Chair Coun. Scott Fielding, it’s not.
It is, however, a critique of his motion (sadly, the very first of our new police board to foist upon the WPS) which now ties up police time to study and report back on the idea that city police officers wearing body cameras would be a step forward for public safety and foster greater accountability.
First, this isn’t a new idea. For years, $1-million taxpayer bucks has been earmarked in the city’s 2016 projected capital budget for this proposal. Why it’s suddenly necessary to bring forward now, who knows? More on this below.
The upside, we’re told, is police uniform cameras would lead to fewer accusations against police, and secure iron-clad evidence to be used in court against suspects, leading to speedier convictions.
I agree with Chief Devon Clunis when he says the actual amount of legitimate officer-misconduct complaints are pretty low in Winnipeg.
Therefore, the benefit of blowing a million bucks on videotaping arrests as an accountability seems a waste.
And the thing is, it’s not just a million bucks.
That may be the projected initial cost of equipping 800 officers in the scheme, but the better, more practical, question to ask is: OK. We have all this great video footage. Now what?
Clunis estimated the true cost of cops wearing cameras would be double or triple the $1-million price tag.
I’d be willing to guess it may be even more than that. It’s not just as simple as a cop coming off shift and dropping off a flash card at the desk and saying. ‘see ya.’
Should that footage be requested for court purposes, it would require someone to review, annotate and transcribe it for it to be disclosed and used in a legally-appropriate manner.
One conservatively staffed 10-hour shift of 54 general patrol officers would equal [assuming the whole shift is recorded] is 540 hours of video. At three shifts a day that’s 1,620 hours of video a day to be catalogued, maintained and preserved by somebody for some potential eventual use.
Who does that work and at what cost remains the huge unanswered question. How Charter and privacy rights are affected is also an unknown at this point.
Second, video evidence, in my experience, seldom speeds up the court process.
Instead, it becomes another legitimate avenue for the defence to carefully assess and weigh a case, leading to delay. In the recent Pizza Hotline murder of Gerald Crayford, for example, there was video evidence from in the store where it happened.
From Judge Rocky Pollack’s recent decision in the D.S. case [emphasis mine].
With clarity, the store security camera recorded D.V.J.S. walking in first, hiding his face with a black toque and a bandanna. Over his shoulder, requiring two hands to hold it, was an axe. Mr. B… was wearing a hood and he was carrying a knife. They came in quickly, demanding to know where the money was. When Mr. Passawe ran toward the rear, the youths ran out the front door, crossed the street to a hospital and called 911 to report the robbery.
 D.V.J.S. and Mr. B…. caught Mr. Passawe before he could escape. D.V.J.S. held the axe in a threatening manner and demanded that the man open the till. He went through his pockets and took his phone, headphones, a bank card and some change. Then the robbers moved toward the front of the store.
 Mr. Passawe was able to run out through the back door and hide. Heading toward the front of the store, D.V.J.S. came upon Mr. Crayford and demanded his phone. Mr. Crayford struggled with him, trying to get the axe. He was able to pull the toque off during that struggle, during which he was punched by D.V.J.S. When the attacker cried out for help, Mr. B… provided help by pulling Mr. Crayford off D.V.J.S. That is when D.V.J.S. struck Mr. Crayford with the axe, raised it again and hit him a second time. Both blows were with the blunt end of the axe to Mr. Crayford’s head.
 After that, neither gave Mr. Crayford so much as a glance as they struggled with the cash register. Because they were unable to get it to open, they just picked it up and left with it.
Crayford was murdered in May 2011. D.S.’ case wasn’t finalized till this July, despite the availability of video evidence. An adult co-accused has yet to face trial or deal with his matter.
The other major issue is: How can it be that at a time where the WPS is facing budget cuts that City Hall would be at all still willing to spend a million bucks on this?
More importantly, how can the police board countenance the lost police time and resources that must now be spent examining the proposal and crafting a report for their consideration?
Fielding is right when he says innovation is key if we’re to find greater efficiencies. I totally agree.
But there’s innovation backed by some kind of necessary purpose, and innovation for novelty’s sake or to score a few headlines.
This cop camera proposal falls directly in the latter camp.
If this board is to succeed, it must learn to not fall prey to go-nowhere distractions like this one will end up being.