Chad Davis murder trial: The evidence of Week 4

[Reblogged from the Winnipeg Free Press ‘Crime Scene’ blog on Feb. 17, 2014. One word was changed, and a sentence about the police statement added in the intro]

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 fourth week of evidence heard in this complex, unusual and largely circumstantial case.

First week recap can be found here. Second week here.Third week here.

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

Stories from the week are here and here if you don’t want the full blow by blow.

Although long, a close reading of Alex Brincheski’s statement is key to understanding his testimony.

This was the final week of the Crown’s evidence, prosecutors have now closed their case and jurors are due back Tuesday [Feb. 18] to see what’s next for them.

Day 15

Alex Brincheski, affirms to tell the truth

Direct testimony, Crown Eyrikson examining

  • 25-years old, brother is Kristopher Brincheski.
  • The last he and Crown spoke was at the preliminary hearing in 2010
  • Not under the influence of intoxicants today.
  • Made a statement to police in 2008, and participated in the prelim in 2010
  • He got transcripts of the preliminary hearing from Gerri Wiebe, Kris’ lawyer.
  • He more looked over his police statement, just read “a little bit” of the prelim transcripts.
  • “I was just more focused on my original statement.”
  • His Sept. 5, 2008 statement to police: reviewed it on “friday night.”
  • No, no threats made to him regarding his in-court testimony.
  • Has lived in Lac du Bonnet, grew up there with Kris.
  • Kris moved out at age 18, “I’m pretty sure.”
  • Kris is not living in LDB now, he’s married to DS.
  • Alex, at age 18-19, came to live with Kris in Winnipeg at 52 Beeston Dr.
  • He worked with Kris at “Brincore” roofing company.
  • “It was just me, Kevin [Marchand] Kris and Corey.”
  • He worked replacing shingles, his brother taught him the ropes.
  • “Most of the time, I was just usually helping my brother.”
  • The only nickname for his brother he knew of: “Burn.”
  • “Skinner” was Tymchyshyn’s nickname.
  • At that time, a young woman named B.B. was his girlfriend.
  • DS had a son that wasn’t Kris’, believed him to be around 7-8 years old at that time.
  • No, wasn’t aware of DS and Tymchyshyn ever having an affair.
  • No, never saw those two texting back and forth that he’s aware of.
  • Did not know a person named Chad Davis.
  • On Sept. 4, 2008 was living at Beeston Dr.
  • Yes, something happened that saw them displaced from the residence.
  • He and Kris were working at a roofing job when Kris got a call from DS, saying that “there was police coming to the home for a search.”
  • He witnessed this call. “He was told the cops were coming to the house to search.”
  • This was around noon or 1 p.m.
  • He and Kris went home to Beeston, might have been a 20-30 minute drive.
  • “It was kind of just like out of nowhere” that they were going home.
  • “He said that police were coming to search the home, he didn’t say exactly why.”
  • “We got there and he started moving stuff around.”
  • Yes, it did seem hurried, leaving the job site they were at.
  • “He just seemed that he was really panicked.”
  • Kris was grabbing “miscellaneous items” and putting them in his truck.
  • “He said that the had to get rid of Chad’s stuff out of the house … cops were coming to search the house.”
  • “I was just kind of in shock.”
  • A surround-sound system and a TV was what was grabbed, loaded into the box of his truck.
  • He’s “pretty sure” Kris didn’t say where Chad’s stuff came from.
  • He didn’t help move the items, seemed “wrong.”
  • “I didn’t want to help him move somebody’s stuff that was stolen — become an accomplice.”
  • At that point, he knew Chad Davis wasn’t alive, and “not very good” was how he felt about that.
  • There was a big-screen TV in their basement.
  • “I remember him saying that he bought it but I don’t know exactly where it came from.”
  • He ID’s photos of items RCMP took at Beeston.
  • They left Beeston and stopped at a 7-11 store to use a pay phone and get a drink.
  • He arranged to go to Assiniboine Park where DS and BB were.
  • Yes, is fair to say Kris seemed “scared,” “frightened” and “frantic.”
  • “I really didn’t know what to think at the time.”
  • Kris dropped him off at the park, took about 45 mins to an hour to get there.
  • He didn’t ask where Kris was going.
  • “I was more or less just wanting to see my girlfriend.”
  • DS was having cheerleader practice, BB was watching.
  • He felt “a little bit freaked out.”
  • “I probably did” talk to BB about the incident.
  • They were allowed to go back to Beeston to get a couple of things.
  • He’s unsure today if he and DS discussed what was going on. “We must have discussed it but I can’t remember that far back.”
  • The drive back to Beeston — with DS, BB and a friend of DS’s — was anywhere from 30-60 minutes.
  • He’s unsure if the fact Kris had a dead person’s stuff was part of the conversation.
  • “It may have. But I can’t remember anything we talked about in that car.”
  • The get there, the place is taped off and police cruisers were there.
  • He doesn’t remember phoning Kris when he got there. DS or BB “may have” called him, is unsure.
  • They were allowed in to get a few things, like a toothbrush and change of clothes, not to “clean out the closets.”
  • “It was kind of obvious they were doing a search,” and Kris had said they were coming to search the house.
  • Yes, the only time he actually knew the cops were at the house was when he saw them there.
  • The RCMP, for “the most part” treated him with respect.
  • They were there for 10-15 minutes, and watched by officers as they gathered things.
  • The went to BB’s uncle’s apartment to stay (He and BB) — can’t remember the street name it was on, but says it took about 20-30 mins to get there, was on the other side of the Chief Peguis trial bridge.
  • They went there because they needed a place to stay.
  • DS was the one who dropped them off.
  • She “was as normal as she could be — she seemed a little worried about Kris at the time.”
  • Said the main doors of the apartment they went to didn’t lock.
  • Can’t remember if BB’s uncle’s family was informed that Beeston was being searched.
  • Yes, he was curious about what Kris may have been involved in.
  • He and BB looked stuff up on the internet. “I was a little bit stressed out.”
  • Can’t remember exactly what he and Kris talked about with respect to Davis being missing — can’t remember.
  • Can’t recall having contact with Kris that night. No, didn’t try calling him.
  • The next morning (this is now Sept. 5) he either texted or called him.
  • BB had had his cellphone the day before, that’s why the 7-11 pay phone was used.
  • Kris knew Alex didn’t have any money, so Kris drove to the apartment to give him some money.
  • He drove a Ford F-150 truck.
  • Kris said he was “sorry about the house being taped off.”
  • “Just that he was sorry that he dropped this on me.”
  • To Alex, that meant: “Stuck in the middle of it,” that Kris meant it was his “fault you can’t go home.”
  • Yes, anybody would have been curious about these circumstances, but can’t remember asking Kris any questions.
  • “He seemed like he was in a hurry and I had to go drive my girlfriend to work.”
  • Kris said “he stayed at a hotel.”
  • BB worked in the downtown, at the Sears building, doing “phone ordering.”
  • He then went back to the apartment and called CS, a friend. “I didn’t want to sit in the apartment the entire day.”
  • May have called his parents, isn’t sure.
  • He had BB’s car for the day, and met with CS at his apartment between 10 a.m.-12 p.m.
  • They drove around and went to buy weed, maybe an 8th or a 1/4 oz. They smoked some of it in the car.
  • “We had a water bong in the car.”
  • “I’m pretty sure we ended up smoking the whole bag” [that day].
  • Believes he gave some to Kris, met up with him at the hotel he was at, possibly the Cavalier.
  • Kris walked over to the car, they gave him 1-2 grams. This was somewhere around 10:30 a.m. to 12:30 p.m.
  • They didn’t discuss the incident at Beeston Drive because CS was there.
  • Can’t remember telling police or the preliminary hearing about the Cavalier meet-up.
  • It may have been in the preliminary hearing he said this, can’t be sure.
  • They were there for 10-20 minutes, then drove around.
  • “I wasn’t really that high at that point,” had only smoked about 1/2 joint before meeting Kris.
  • “Wasn’t completely stoned.”
  • Yes, was a seasoned pot smoker then. He’d smoked it daily at the job sites they worked, before we started around 6-7 a.m.
  • They’d work long days, over the course of the day, he’d smoke 2-4 joints.
  • “Three to four, maybe.”
  • He didn’t use power tools at the sites. Mostly, he moved shingles, cleaned up, stripped them off roofs.
  • Yes, required balance to move shingles up ladders.
  • After the Cavalier, he and CS drove around, smoking weed, sharing it equally.
  • No, he wasn’t concerned about driving, was aware of what’s happening around him. He was driving.
  • No, they didn’t run any lights and had no accidents.
  • They went back to apartment, where BB’s uncle’s partner was “weirded out” by CS being there.
  • They went out to sit in the car to continue to smoke up, were there for about two hours.
  • “I was pretty stoned at that point.”
  • They were more or less cautions about being caught smoking up in the car.
  • He then drove CS back to his downtown apartment, no runned lights, no accidents.
  • This took about an hour, to his knowledge not smoking any more pot.
  • Can’t remember the street CS lived on, maybe Broadway. They went up to his place.
  • He didn’t discuss the previous day’s events with CS, despite that he was one of his “better friends.”
  • They were in the apartment for about an hour, no more drugs, no alcohol was consumed.
  • He then drove from there to get BB, 10-20 mins away in the downtown.
  • He didn’t smoke on the way — but is “getting tired, still kind of feeling the effects.”
  • The bong is on the back seat floor No he didn’t want people to see it.
  • He often left the bong in the car — “I don’t think [BB] enjoyed it being there, but I don’t think she minded it being there.”
  • She got a call from a step-realtive and they went to McDonalds to meet up and get a bite to eat.
  • Yes, this was the first time he’d disclosed they’d gone to McD’s.
  • He had a burger and fries. It took about 45 minutes — it’s now about 4 or 5 p.m.
  • He and BB went back to the apartment, but doors locked and they had no keys, so they sat outside on the front steps, then walked to the car.
  • Two officers pulled up. He felt “burnt out” from the weed and really tired at this point.
  • He was feeling some paranoia, but could still tell right from wrong.
  • The cops were in suits, in unmarked vehicle. No lights or sirens.
  • They ID themselves, were “for the most part” polite.
  • They didn’t cuff him. Asked he and BB to come for a talk.
  • No, not under arrest, not charged with anything.
  • They drove at “normal speed” back to D-Division HQ on Portage.
  • The conversation in the car was “pretty light.”
  • He didn’t find them intimidating, particularly.
  • He believe cops wanted to talk with him because “of our house being taped off — it was because of the search” and Kris’s possible involvement.
  • They went in the front door of D-Division, into the lobby area and sat down with BB.
  • “Tying to both figure out why we were there.”
  • Was pretty sure it was because of the house being taped off.
  • Can’t recall giving BB instructions on what to say to RCMP. “It’s possible.”
  • In front of an interview room, RCMP officer took his particulars.
  • Yes, there was time when he was with Kris on a roof, on Ashmore St.
  • They were alone.
  • Yes there were times he was in a vehicle with Tymchyshyn and Kris.
  • Yes, there was a time when the truck were in pulled over and Tymchyshyn and Kris got out to talk. He stayed in.
  • “It seemed a little bit odd.” — “Seemed weird,” had never seen them do that before.
  • He was with Kevin and watched Tymchyshyn and Kris talk away from the vehicle. Was a 5-10 minute conversation.
  • Yes, at the prelim he testified and told the truth

Jury excused briefly. 

  • Yes, “I felt like I was” being honest with the police on Sept. 5 — “being as honest as I could.”
  • No, didn’t tell the total truth to the police that day, same thing he said in his “recant.”
  • On Sept. 23, 2008, sent a 1-page document to Wiebe’s office (Brincheski’s lawyer) to “Recant.”
  • The main issue “Just the fact that I said my brother was there.”

Jury excused briefly. 

  • The conversation of Ashmore: was just the two of them (he and Kris) there.
  • The conversation: “Just that he told me what he figured happened to him … what he knew.”
  • “He just told me.”
  • “That that guy had gone to Corey’s and that was the last place he had seen.”
  • Kris had told him about spending the night in “the cop shop,” where he was questioned “about Chad,” “His disappearance.”
  • His assumption is Kris was in Winnipeg police custody.
  • “He didn’t really say anything that involved him directly.”
  • “He never said anything to me that directly involved him.”
  • “The only thing that I know of is that his stuff was at his house.”
  • “He never said he was there. I’ve been in that garage before too.”
  • Kris had said “somebody had snuck up on him when he entered the garage.”
  • “He knew — somebody else had told him.”
  • “He told me what he thought he knew … what he figured he knew.”
  • Didn’t remember Kris saying anything to him about a barrel. “Not that I remember.”
  • “No,” Kris never said anything about weights being put in a barrel.
  • More on what Kris said: “Just that Chad went into the garage and there was someone waiting in there for him.”
  • Kris didn’t say how he knew this information.
  • “I really didn’t want to be involved in it.”
  • Kris said “that he was beaten to death.”
  • “I have no idea” how he knew that.
  • Kris came into Chad’s stuff: “apparently him and Corey split it up at some point.”
  • No, Kris never talked about “luring” Davis to 703 Prince Rupert Ave.
  • “Yeah,” he loves his brother.

Morning break, court resumes

[To spell things out more clearly, am now moving to a mixed Q and A format of exchange between Alex Brincheski and Crown Keith Eyrikson. Note: the answers, not the questions, are the evidence.]

  • No, didn’t discuss his evidence with anyone over the lunch break.

On the rooftop on Ashmore: Did your brother tell you where the homicide of Chad Davis occurred?

  • “Yes he did.”

Where?

  • “Corey’s garage.”

Was he present when it happened? 

  • “I don’t know.” He didn’t ask if Kris was present.

Are you sure of that, sir?

  • “Yes.”

Positive? 

  • “Yes.”
  • No, seeing his police statement to refresh his memory won’t help in that regard.

Not a thing?

  • “Nope.”

It won’t help you at all? 

  • “No.”

And the reason is because you read it already?

  • “Yes.”

Kris didn’t tell you the number of people present in Corey’s garage?

  • “No.”

Did he tell you if he was one of the persons present?

  • “No.”

Or tell you he was forced to participate in the homicide of Chad Davis?

  • “No he didn’t.”

[Paraphrased question] Did he mention a storage locker?

  • “No.”
  • Yes, he did tell RCMP that Kris was present, he concedes.
  • “At that time I thought he actually was there.”
  • A week or two after telling them this, he changed his mind about this.
  • “I don’t remember him telling me he was there … it was nearing the end of my statement and I wanted to leave.”
  • Yes, he went into the RCMP room where BB was and talked to her. “They let me go in there.”

Did you tell her to tell the police the truth? 

  • “Yup … I told her to tell them what they wanted to hear — not drag it out.”

[Jurors hear Eyrikson tell Justice Keyser the Crown is making an application to her under section 9(2) of the Canada Evidence Act.]

Jurors excused briefly, and then they return.

Alex Brincheski, ctd:

  • The only thing he lied to police about on Sept. 5, 2008 was saying that Kris was there. It was to get out of RCMP custody.
  • Everything else in his statement was “completely the truth.”
  • And yes, told police Davis was killed in the garage.
  • “According to what (Kris) told me.”
  • Kris told him the murder happened at Corey’s house in the garage, and was telling the police the truth.

He didn’t tell you anything about a barrel? 

  • “No.”

[Eyrikson challenges him with portions of his police statement]

He told you he was there … what else did Kris tell you? What did they do with him?

  • “Put him in a barrel.”
  • Yes, he could have told police he’d heard about this some other place.
  • “I was trying to do my best to help them [the police].”
  • “I really wanted to leave at that point … I was trying to be as honest as I could.”
  • Knew that he’d be kept there longer if he didn’t tell them something.
  • “After, I realized I wasn’t being truthful about me saying that he was there.”
  • He had no idea there were weights put in the barrel. He just made this up.

How many people did you tell police were there?

  • “I remember just two.”

Police statement: Const. Bairos asks, “who was all there when he was killed?”
A: “As far as I know, it was just him and …

  • “That’s what I assumed.”
  • Yes, he left police with the impression this is what Kris told him directly.

So, you didn’t tell police the truth and instead implicated your brother in a homicide?

  • “Yup.”

[He’s challenged more on things he told police and the court at the preliminary hearing.]

  • “I never asked him how he knew.”
  • Only “yes and no” wanted to know if Kris was actually involved in the killing.
  • “I was worried he was involved in it.”
  • Yes, he did tell police how Davis died, and that information came from Kris.
  • Yes, he was telling police the truth.
  • “He never specified if he saw it happening or knew from somebody else.”
  • He doesn’t know how his brother knew this information.
  • It would surprise him, yes, that Kris wasn’t interviewed by RCMP prior to them approaching him.
  • “I just wanted to get it over and done with and leave.”
  • No, the police never threatened him to say anything.
  • “I know, I swear I’m not lying to you now,” he told RCMP on Sept. 5, 2008.
  • Yes, he was telling the police the truth.
  • Yes, he does want to be in court to testify.

“This is what I know. I’m not just guessing giving you false … make shit up just to give you,” he told police.  “From the most of my knowledge, this is what I know,” he said.

  • He told RCMP “they took him into the garage” to get out of the police station.

[More challenges on the contents of his police statement.]

Don’t you think it would have been more helpful to say, ‘you know what — I don’t know where he got this stuff from?

  • He agrees he never mentioned in his interview that he wasn’t certain where Kris got his information from.

[More challenges.]

  • Says his understanding was what he was telling police was to remain between him and the officers.
  • Acknowledges that he knew they were videotaping his statement.

Eyrikson, directly: Your brother admitted this homicide to you.

  • “No.”

You didn’t have any idea … your brother could be arrested for this homicide?

  • Said he called RCMP after Kris’s arrest to complain about police conduct.

Eyrikson, directly: You didn’t know what to do but tell the police the truth that day. 

  • “Yeah.”
  • He and BB returned to the apartment afterwards, yes, RCMP were kind to them.
  • Yes, it was a great weight off his shoulders because his brother had confessed a homicide to him and he’d gotten that information out. “Yes.”
  • He hoped the letter to the lawyer on Sept. 23, 2008 to recant his police statement would be shared with the police and the Crown.
  • He wanted the whole thing gone and his statement quashed.
  • Agrees that in that letter he never says: “I lied.”
  • It was “not the total truth” what he told police.
  • Yes he could have said that Kris got the information he shared from different sources.

Court recesses for the day and subsequent day. 

Day 16 — Alex Brincheski, ctd.

[Jurors are shown the video statement Alex Brincheski gave to police on Sept. 5, 2008]

After it’s shown, Keyser warns the jury they’re only to use it in their deliberation of the case against Brincheski, not Tymchyshyn.

Cross-examination by Gerri Wiebe, for Brincheski:

  • Yes, was 19 at the time came to live on Beeston Drive, Kris was 26. Kris had moved out of the Lac du Bonnet family home when he was 17-18 years old.
  • Up until coming to live with Kris on Beeston, hadn’t lived with him for 8-9 years.
  • He was living in Lac du Bonnet on July 23, 2008 when Davis was found.
  • He then lived with parents and his girlfriend, BB.
  • BB and the parents had a falling out, so he upped and moved with her in a “relative hurry.”
  • They moved in with Kris, DS and her son on Beeston.
  • Yes, it would surprise him to hear that DS’s son was 2-3 years old and not 7-8 as he thought.
  • Kris and DS had been together for about a year, and yes they’d had some troubles. But they seemed like a regular couple.
  • Yes, their relationship [DS and Kris] was “complicated.”
  • No, he’d known nothing about roofing, he’d been a butcher at a Lac du Bonnet store.
  • Kris showed him the roofing ropes, he was his helper, he’d always work with him.
  • ‘Brincor’ was Kris and Corey’s company.
  • Had seen Kris use cocaine once right in front of him, got impression he was using more than he saw.
  • Kris had spent time at Addictions Foundation of Manitoba rehab.
  • Seeing him use cocaine was concerning to him.
  • Alex himself was smoking pot pretty much each day back then.
  • He and others at work would have “safety meetings” where they’d smoke joints in the car couple times a day.
  • The weed would only somewhat affect his ability to work on roofs.
  • Yes, he smoked up the night before testifying at the preliminary inquiry.
  • Marijuana does not make him slur words, stumble around. The more he uses it the easier it is for him to hide the effects it has on him.
  • Yes, weed impairs his ability to make proper decisions, control impulses and what he hears and says.
  • Lac du Bonnet in Summer: its population grows, it’s a “small town.”
  • The body found in the barrel was a big deal, yes.
  • Rumours swirling about who it was, when it happened and how.
  • Before giving statement, he went on the Internet to search out information about the investigation.

[He’s asked about news articles, one from July 24, 2008 where it says two men opened a large plastic barrel with holes in it]

  • He was aware of this information. Was aware of the men saying they’d been hit by a stench, that industrial plastic was inside, that RCMP went to the location where body was found. It also caused a stir in Lac du Bonnet because several officers in the “musical ride” were called away to the scene.
  • He wasn’t aware of an article saying Davis was last seen on Feb. 6, but was aware of a report saying Davis had stepped out to give a friend a ride, was last seen in the 700 block of Prince Rupert Ave.
  • Was aware of an article quoting Courtney Sych that Davis’s disappearance didn’t add up and no taxi was ever dispatched to the home.
  • It was Kris saying he’d been at the “cop shop” that made him ask him what was going on.
  • Kris had said the questioning was about the disappearance of Chad Davis.
  • To him, this meant Kris was under police suspicion, so he asked what’s going on.
  • And this conversation happened on the roof on Ashmore.
  • Yes, he’s “really confused” about what he told RCMP in his statement.
  • Yes, he wanted to help them, and told them the truth, but also lied to them.
  • He wasn’t happy to be in a police station.
  • Past dealings with police had limited his trust in them.
  • He didn’t feel like he had the right to say no to them.
  • He thought that Kris might be involved and didn’t want to talk with them.
  • He had no way of getting home if he just decided to leave the police station.
  • He thought he’d be in trouble for not coming forward with the information he thought he had.
  • Thought police may be trying to trick him into confessing something.

“What I’m trying to do here is figure out what you mean when you say you were telling the truth but that you were lying,” Wiebe tells him.

  • He believed that Kris was telling the truth when he said what he said on the roof.
  • At the time of that disclosure, he knew that the body was found in the river, that Tymchsyhyn had been spoken to and it all made sense.
  • On Sept. 5, 2008, sats he actually believed Kris was involved because of the “cop shop” comment.

[Wiebe suggests to him that Kris never spent the night in police custody, was in fact trying to cover up an affair.]

  • At that time, he believed Kris was involved and it was weighing him down.
  • Yes, he was conflicted because Kris was his brother, but he was also angry for the situation he’d been put in.

What you thought you knew about what happened was all intertwined in your brain, Wiebe says.

  • “I agree,” he replies.
  • Says he doesn’t have the best memory, it’s “pretty average,” that on the best of days isn’t so good.

[Wiebe takes him through his recollection of what he says he did on Sept. 5 before the interview, points out that several things differ from what he said at the preliminary inquiry, including: he previously said he picked Kris up and they went to buy weed together, that the hotel was the Silverado then, and that he’d said CS was driving whereas in direct he said he was. Also, at the prelim he never mentioned going back to CS’s apartment before getting BB from work and that he’s smoked 8 or more joints that day.]

  • He has a pretty hard time remembering things, especially when he’s smoking weed, which is what he was doing on the day of the roof conversation with Kris. He couldn’t tell police exactly when or where this conversation took place.
  • No, doesn’t remember the exact words Kris used in the conversation.
  • Yes, it’s fair to say that what he heard was “all mixed up” with things he’d read on the internet and town gossip.
  • The information he had about the investigation came from a number of different ways.
  • He made assumptions when he was asked what was used to weigh down the barrel [he’d told police “Maybe rocks or something, I don’t know.”]

Wiebe takes him through several passages in his statement, including how he said on Page 15, “I wish I knew, I really don’t know how he was killed.” and, later, “I don’t know” when he’s asked how Davis “got his life taken from him.”

  • He didn’t know that the victim was beaten to death, he tells court.

Wiebe continues to point out vagueness in some of his police statement answers.

  • After giving his statement, Kris was arrested within a couple of days, he tried to find phoning police to complain that what he’d told them he thought wasn’t to be shared.
  • When that didn’t work out, he sent a “recant” fax to Wiebe’s office. He was still angry at the police and blaming them for what happened.
  • He didn’t want police to think he’d lied to them, and yes he got “a little carried away” trying to help them.
  • When blaming the police didn’t work, he retained his own lawyer in October 2008.
  • He had to get a copy of his statement because he couldn’t remember what he’d said.
  • He was allowed to go to the Crown’s office in January 2009 to watch it.
  • He then, with lawyer Kathy Bueti, drew up a 5-page affidavit sworn Jan. 29, 2009 trying to explain what happened.

Wiebe reads it into the record. There are 30 points, including that what he told RCMP was not an “accurate recollection” of events, and that Kris did not say that he was there at the homicide. He also says he felt “paranoid,” emotional and “pressured” into saying things so he could leave police custody. He was “coaxed and led” by police to the point he felt he was telling them what they wanted to hear.

  • He was just trying to do what he could to make things right.
  • Tymchyshyn never spoke to him, ever, about the case.
  • It’s “correct” that Tymchyshyn never told him anything.

Day 17

Agreed statement of facts:

  • During the initial search of 703 Prince Rupert Ave, heat lamps and small marijuana plants were found under some stairs, in a crawlspace.
  • During a search of the garage, tools, including a hammer were found.
  • “The hammer was not seized by officers.”

Cpl. Christian (Chris) Rouire, RCMP, sworn

  • 13 years with the RCMP.
  • 8 Years as Major Crime Unit investigator.
  • He was “primary” investigator on Davis file, and team commander.
  • “This is a large investigation.”
  • About 70 police officers involved, more than 400 separate tasks.
  • Disclosure alone ran from 13,000-15,000 pages.
  • “At least” 150 witnesses interviewed.
  • No, not every witness called at trial and not all information gathered was presented.
  • The RCMP took over WPS missing persons investigation because of jurisdiction [Lac du Bonnet] when Davis was found.
  • RCMP met with Winnipeg police, they turned over their missing persons file, “we verified a lot of their information.”
  • A homicide probe is different than a missing persons one.
  • Not every piece of evidence gathered immediately holds significance.
  • “We don’t know what they may mean but we don’t know the importance down the road.”
  • Yes, on Sept. 4, 2008 Beeston Drive was searched by RCMP, Sept. 5 Alex Brincheski was interviewed.
  • On Sept. 4, they had DS in RCMP station, she wasn’t arrested and she gave an interview.
  • Afterwards, she was in the lobby “using a phone,” indicated she was talking to Kris.
  • He was told RCMP was coming to secure the home. That was a concern.
  • “She may be telling him to get rid of stuff.”
  • They didn’t know where Kris was at this point.
  • Kris Brincheski was never interviewed or spoken to by RCMP prior to Sept. 5.
  • A civilian employee’s check of the RCMP records showed he was never interviewed in 2008 prior to Sept. 5.

[Eyrikson takes him through specific bits of the investigation, it switches gears a bit from here].

  • He was the one who checked the numbers for the Super 8 motel on Portage.
  • The 810-20** number the “don’t miss” text was sent to was a prefix in Manitoba that was “not in service.”
  • That prefix in Manitoba did not exist.
  • On Feb. 6, 2013, he drove the distance from 703 Prince Rupert Ave. to the “Pinawa Channel Bridge” near Lac du Bonnet.
  • Left from the back lane at 9:35 a.m., through the city to Highway 59, east onto PR 317, left on PR 11, right on PR 313.
  • It took 1 hour and 13 mins to get there, a distance of 116.6 k.m.
  • He drove the speed limit, largely.
  • “I’m 99 per cent sure it was clear, sunny day that day.”

Holdback information:

  • This is information “we don’t disclose.” “Don’t release to the public.” “We don’t tell to Chad Davis’s family.”
  • The holdback evidence is used to verify the truthfulness of their witnesses.
  • On Sept 5, 2008, holdback evidence included: Cause of death, that objects used to weight barrel down, that a hat was found in the barrel, the description of clothing items.
  • The interview with Alex Brincheski on Sept. 5 was the first they’d heard of garage as possible crime scene.
  • “That’s the first time we heard of it. We never heard anything about it before that.
  • Yes, Prince Rupert Avenue was known to the public as the last place Davis was seen [700 Block].
  • “We didn’t know where it happened until that day.”
  • DNA results would also be holdback, not disclosed.
  • Same goes for the “coiled plastics” such as found in the barrel and cleaning kit.
  • He read four news articles from July 24, 2008, 25th, 27th and Aug. 3, 2008 for court.
  • Cause of death is not mentioned in any of these articles.
  • Nor are metal weights.
  • Nor is the garage on Prince Rupert. “Never seen the word garage.”

George Lancaster

  • Rouire says he was never shown results of text messages
  • They did talk about phone records, because there were some calls that Lancaster was asked to verify were his. The pages of the records were held by Rouire and shown to him. Lancaster never even held the pages.
  • The text messages were not on the records shown to him.
  • No, the hammer was not seized from the garage on Prince Rupert.
  • “I wish we would have (seized it). At the time, we knew the cause of death was blunt force trauma … could have been anything in the garage … just like the black plastic coils (Winnipeg Police saw when searching Davis’s Jeep months earlier), I wish it had been seized.”
  • He knows Cpl. Forester would have seized it if it was deemed an object of interest. “If there was blood on that hammer, it would have been seized.”
  • MTS phone records were sought for Brincheski, but the company only keeps them for 90 days.
  • Brincheski’s name was first ever uttered in connection with the investigation on Aug. 14, 2008.

The taking of Alex Brincheski’s statement

  • He went up to Alex in the lobby of D Division, was only a few feet away from him.
  • Was with him in an interview room for a time.
  • In 13 years as a cop, he’s become familiar with people who are high on marijuana, the indicia of intoxication.
  • Yes, he “absolutely” looks for such signs when interviewing someone.
  • “Not at all” was there a smell emanating from Alex.
  • “Nothing at all” in terms of indicia he was intoxicated.

The plastic sheeting

  • He went online to see if he could locate the “specific plastic” Davis was found wrapped in.
  • Learned that material was available for purchase in bulk in multiple lengths and widths.
  • “Black on one side, white on the other.”
  • He knows its sometimes called “Malomar,” sometimes “poly,”
  • “I call it black and white plastic.”
  • He went to a hydroponics store and found “like plastic.” Store clerk said he could order it in different thicknesses, but only the 6-mm thickness was available.

Exhibits in the case

  • “Hundreds and hundreds” of exhibits were seized in the investigation.
  • He went online to price out the value of a Breitling watch that was seized. It was worth between $6-7,000 online.
  • Davis’s Jeep was unavailable to use for the barrel experiment because it had been written off by then.
  • Stuart Davis had sold it and the new owner had written it off.
  • The actual barrel remains a “biohazard” and could not be brought to court.
  • The barrel “absolutely” would fit in Davis’s Jeep.
  • Phone records weren’t obtained by RCMP until early October 2008.
  • He wasn’t aware that Cpl. Forester didn’t measure the inside of Davis’s Jeep’s hatch. The fact there are wheel-well humps doesn’t change his view the barrel would fit in there.
  • “You could also fold the seats down and slide it in lengthways if you wanted to.”

The plastic bits

  • He’s shown photos of holes drilled in barrel’s lid and of the plastic bits.
  • “The remnants — when you drill a hole — the remnants that fall to the ground.”
  • There were experiments in drilling done on a barrel he sourced that was “as close as I could get” to the original.
  • Drill bits were purchased to try and replicated the ones that were seized.
  • The RCMP used “two sizes up and down” from a 3/8 drill bit to see what they produced. Different speeds and pressures on the drill were also tried.
  • Paper was used to capture anything that fell to the floor.
  • The experiments netted remnants “very similar” to what was recovered from the Davis barrel.
  • “Speed five with a light pressure.”
  • No, he’s not an expert in drilling plastics.

Cross-examination

  • Rouire swears the 810-20** number was checked out by RCMP to see if it belonged to someone. He placed a call to the number on Oct. 16, 2008 and learned the number was “not in service.”
  • “It was checked.” It was another RCMP officer — a ranking one who fills out search warrants — who had the task.
  • It’s not in the police notes that this task was done.
  • He agrees Crown evidence can be put into the public domain at bail hearings.
  • Phone records obtained in Oct. 2008, bail hearings were held in January 2009.
  • “If you go to court” information can get out, he agrees.
    [At that time, Lancaster and Tymchyshyn’s mother were residing together, says defence lawyer Campbell.]
  • Yes, Lancaster said different things to police over the years, some of his statements were inconsistent.
  • Yes, he and partner went to serve him a subpoena on Nov. 22, 2013 at a bar.
  • Agrees Lancaster said: “He will tell you what he knows when he’s done drinking after the weekend.”
  • “That’s what he said.”
  • In that bar, while he was drinking, Lancaster said “he saw them load him up; that he heard them say ‘don’t miss;’ that he didn’t see what happened, but he knows.”
  • Rouire confirms that nobody would have known about anything that was in the barrel.
  • He’s confronted with aspects of Alex’s statement, how he’d asked Rouire to leave, how at no point does he mention a hat, coiled plastic or specific weights in the barrel. How Alex speculated that the barrel was weighted down by rocks.
  • “From what I recall he just said ‘weighted down.'”
  • When pressed, Alex discloses: “they told me they beat him to death.”
  • “I believe he said a hard object … I’m pretty confident that he said it was a hard object.”
  • “He also did not say that he was shot, he did not say that he was stabbed.”
  • Yes, he agrees phone numbers can change subscribers over time.
  • Yes, phone records are an important part of the case.
  • There was a number 218-18** that “popped up a lot” on Davis’s records, had called him a number of times on Feb. 6, 2008.
  • After the “we will be in soon” text (sent from CT’s device) at 12:43:55 p.m., There are no more calls from 218-18** on that day.
  • The next time that number is on Davis’s records is Feb. 9, at 4:09 p.m.
  • It’s not in the police notes that someone looked into who the 218-18** number belonged to.
  • “I’m sure somebody did … somebody would have tried to find it.”

CROWN CLOSES CASE

-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.

Brincheski/Tymchyshyn (Chad Davis) murder trial: The opening

Chad Davis
Chad Davis

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.”

-30-

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

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

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

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

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

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

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

 

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

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

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

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

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

From the decision:

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

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

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

Natasha Moar homicide: An accounting and some questions

(Natasha Linda Moar/Facebook)
(Natasha Linda Moar/Facebook)

“See this girl she was treated like a nobody noone came to help her fight in court,not one person came forward to say hey i seen him abuse her.where was everyone fat mouths when she needed help today.there was no fucken justice today not even a fair trial…56 months for taking a life so brutally.” — Relative of Natasha Moar

And in the end, When it came to investigating Natasha Linda Moar’s homicide, RCMP and the Crown were ultimately left with two stories: The one told by her living, breathing killer and his family, and another told by her lifeless, battered body.

What follows I’m presenting for two reasons. One, I believe there has to be some complete record of what was put on the record about this case. A 400 word newspaper story, while adequate for many reports, fails here. And the initial RCMP press release obviously is useless to come to any understanding.

(And that release could be considered forthcoming by today’s standard of police to-public disclosure of most criminal events).

Two: I completely understand the need for plea deals in the criminal justice system. I’m just not sure I fully comprehend the one that saw Leslie Grant McDonald, 27, receive an effective sentence of five years for manslaughter in connection with her death, with 56 months left to serve going forward.

It bears remembering at the outset: Moar was pronounced dead in hospital on July 12, 2009, nearly four years ago. The case came to a sudden conclusion Monday after McDonald elected to plead guilty on the day his trial was set to begin. His preliminary hearing concluded in May 2011, two years ago.

Here’s how things proceeded Monday in the Dauphin Court of Queen’s Bench, with senior Crown attorney Dale Harvey representing the state, and veteran defence lawyer Roberta Campbell acting for McDonald. Justice Robert Cummings is the presiding judge.

The case begins with McDonald freely and voluntarily pleading guilty to manslaughter for his former common-law’s death. The plea is accepted by Cummings, with the usual caution that the judge is not bound by any joint-recommendation presented to the court and can impose any sentence he feels is fit.

Harvey begins by explaining the matter was set for trial, and that no pre-sentencing or Gladue report examining McDonald’s background will be presented. Cummings is told McDonald has been in touch with an elder in his home community of Crane River — and it’s possible arrangements will be made for him to apply to go to a Correctional Service of Canada “healing lodge” after he gets to Stony Mountain.

Harvey explains the joint-recommendation which the court will hear about factors in the relevant Gladue factors which apply to McDonald’s case, and the sentence being sought [which isn’t revealed at the outset] has been adjusted “downward” from what the Crown would ordinarily seek in similar circumstances based on that consideration.

There are no victim impact statements filed. The Crown explains one of the sides of Moar’s family have what was termed an “acrimonious” relationship with justice officials due to their “lack of faith in the justice system to do its job properly.”

Harvey then begins relaying the facts of the case for Cummings.

The morning of July 12, 2009: McDonald’s mom’s common-law calls RCMP to say Moar was unconscious and not breathing “due to cardiac arrest.” “That’s how it was reported,” Harvey says. The caller relays that Moar was “cold and stiff” and CPR was not being initiated.

RCMP Const. St. Cyr of the Ste. Rose du Lac detachment — located 72 kilometres from Crane River, is dispatched to a suite at the Crane River “elderly person’s home.”

The community is some distance away from the detachment, about 70 k.m.

At 12:37 p.m., two rural paramedics went to the suite — getting there before St. Cyr — and radios that Moar “was breathing” and would be taken to the Ste. Rose hospital for treatment.

RCMP are told no police attendance is required.

“That’s still confusing from the Crown’s perspective,” Harvey says. “As it was clear that Ms. Moar had been dead for some time.”

Around 1:52 p.m. St. Cyr and his partner are then at the hospital on an unrelated matter when the partner is approached by the on-call ER doctor. Moar was pronounced dead, the cop is told, and the doctor believed the death “was suspicious” as she had a number of bruises on her face and legs.

The partner tells St. Cyr this and he takes off to Crane River. The partner then looks at Moar in the exam room and noted she has “obvious signs of trauma” and bruising on her face and body.

2:43 p.m. — St. Cyr arrives in Crane River, and finds the local band constable there securing the crime scene. The band constable says when he arrived there, there were people inside the suite attending to Moar. He took photos of the scene and spoke with a number of people. “Quite frankly, he did his best to keep people out of the actual crime scene in and of itself,” Harvey says.

The photos are given to the RCMP. The band cop “did a remarkable job in the circumstances,” with limited training, court is told. He “had enough common sense to try and preserve the scene as much as possible,” says Harvey.

St. Cyr then begins the interview process. He first speaks to the man who called the RCMP earlier and McDonald’s mother. They were sitting at a picnic table just outside the residence. St. Cyr noted it appeared there had been a party of sorts at the table the evening before.

At 2:47, the investigation takes a major turn when St. Cyr arrests Leslie McDonald for second-degree murder and assault causing bodily harm. Asked if he understood his rights, McDonald replied: “I had a fight with her last night — we were drinking.”

At 3 p.m. he’s again told the RCMP warning of his rights and police caution. McDonald says he understands. “Yeah, but can I make a statement?,” he asks.

At 3:14, McDonald and St. Cyr start talking. The cop only has his notebook and is recording the comments as best he can on the fly.

“About the murder, man, I don’t know. I agree that I assaulted her but after we were done fighting we blacked out. We came to later, we had sex. She wanted me out of the room. I went in the living room, watched TV, fell asleep. I got up, looked outside, it was daylight. I could hear her gurgling in the bedroom. At that time I didn’t think nothing of it. I fell asleep again. I got up around 10-10:30, went to the washroom. Then went to the bedroom to check up on her. She had brown puke coming out of her mouth, out of her nose. I started to shake her, to wake her up. I tried to get an answer from her. I put my hand on her stomach to see if she was breathing. I checked her pulse. She had no pulse. I know CPR. I started it, opened her mouth, removed the brown stuff. I tried to make her gag. I panicked, yelled at her. I tried calling my mom four or five times. I got in my car, went to my mum’s … told her what was going on. She came back with me to the house. My mom tried calling people as [her common-law] called the ambulance…”

“I just stayed back and waited outside with my mother,” St. Cyr recorded McDonald as saying.

At 3:23, another cop comes to relieve St. Cyr and he drives McDonald back to the Ste. Rose detachment.

At 5:00, McDonald spoke with a lawyer who calls back at 6:17. They talk till 6:40 p.m.

Meanwhile, an RCMP forensic specialist examines Moar at the hospital. He notes there’s some blood on her face and ear, bruising on face, a slap mark on her cheek, bruising on her right wrist and a discolouration below her knees.

(The remoteness of Crane River, located on the right of this map)
(The remoteness of Crane River, located on the right of this map)

That afternoon, McDonald’s mom’s common-law also gives a statement. Says he was at home that morning when Leslie “arrived screaming and yelling that Natasha was not breathing and he wanted his mom to help.” He went to the old folks home 25 minutes later after being called to the scene as well. He says he went in and found Moar on the bed, no pulse. He says he called the hospital and spoke to a clerk who told him to call for an ambulance. He tells police McDonald, Moar and two others — including McDonald’s dad — were drinking at the residence the night before. He says McDonald told him the two other men left there and McDonald said he went to bed around 3:30 a.m. He also said McDonald disclosed fighting with Moar but said they made up.

Leslie McDonald’s mom told police a similar story, saying her son came to her home yelling and screaming, that Moar wasn’t breathing and had a cold forehead.

The next day, an RCMP corporal with the Serious Crime Unit comes to interview McDonald on video. McDonald discloses he and Moar had been drinking beer and whiskey, smoking hash and doing some cocaine for most of July 11, the day before she died. An argument they had led to a fight, he says. “He admitted to slapping her many times” with “full force” as well as knocking her down at least three or four times. He denied using any weapons, a closed fist or kicking Moar. After their fight, she calmed down somewhat and asked him to get her something cold.”

He told RCMP he brought her two packs of frozen meat to put on her swollen face and “at that point realized he had gone too far.”

The meat was exchanged for a bag of frozen French fries. He says they had sex at 12 a.m. and afterwards he left the room to watch TV. He woke up around 3 a.m. and says he could hear her gurgling “like she was having trouble breathing but thought it was nothing out of the ordinary.” McDonald continued to watch TV until her fell asleep again. At 10 a.m he says he awoke and found her lying in bad with her hands up by her head — saw vomit, cleared it away and tried to induce more vomiting and CPR. “He knew then that she was gone,” Cummings was told of his statement.

McDonald admitted at one point in the fight, he had pushed Moar down and she fell onto a coffee mug which broke beneath her. She had also hit her head on a “fabric covered recliner” in the bedroom. “He was unsure if she has hit her head on anything else.”

McDonald then admitted to using a dish towel to snap at her in the face — a blow he knew had hurt her. He also says he noted blood by her head and her pillow. There was another blood pool of blood seen, but McDonald says it was his.

This same day, Dr. Charles Littman conducts the autopsy on Moar, with RCMP in attendance. More on this below.

July 14: RCMP execute two search warrants — two days after Moar’s death. One is for the crime scene and another for a vehicle outside the old folks home.

McDonald’s dad also gives a statement. It was his home where Moar died. He says he had been sitting outside with the couple and others as they drank rye and Labatt’s Lite beer. While McDonald and Moar were outside, they appeared to be fine, not fighting. He says Moar went inside first, followed by McDonald. “It was still daylight,” when they went in, he says.

Another man present at the table also says the couple “seemed to be fine.” He says he, a woman and another man left around 9 p.m. on July 11.

Harvey tells the court: As in so many violent cases, the description of the crime scene has varied widely. “It has been the source of several unfortunate rumours throughout the community as to people having cleaned up the scene. It’s obvious, I think, from the photographs taken by the community constable and the police that very little, if anything was done to clean up the scene and there’s significant evidence of a fight and trauma apparent from the photographs.”

He then tells court a database check shows McDonald had been charged with assault with a weapon in 2008 with respect to a suspected attack on Moar. “Ultimately that allegation went nowhere as she declined to testify. So no conviction arising from that.” The allegation was McDonald had hit Moar with a bottle in the head. At the time of her death, he was also wanted in Calgary where he was charged for mischief but skipped out on court. He has no convictions whatsoever, Harvey tells Cummings.

Harvey then moves on to the findings of Dr. Littman’s autopsy.

Littman found “multiple layers of trauma all over the entire body, primarily the head and face.”

  • 27 areas of trauma to her head
  • 18 to her torso
  • 11 to her upper limbs
  • 14 to her lower limbs
  • 14 to her hands, with some described as “offensive” wounds from her fighting back.

The degree of force, Littman found, was at the “severe” end — missing the mark on the “extreme” end of the spectrum because her skull wasn’t fractured.

Her head injuries were consistent of being struck with fists or the open heels of hands. She also has “linear abrasions” on her body “suggestive of dragging of the body,” Harvey says. Her liver had a small laceration.

She had sustained a large “acute” subdural haemorrhage which was attributed as the cause of death. It’s possible a hit in the head with the heel of the hand caused it. The pathologist also found a prior subdural haemorrhage which had “resolved naturally.”

A toxicology report found significant levels of alcohol consumption and traces of cocaine and marijuana in Moar’s blood.

Having presented the autopsy findings, Harvey then moves to the point: “We know there has been previous incidents of violence,” he says, telling Cummings that several people RCMP spoke to in the investigation recalled seeing Moar in the community showing “signs of trauma” and sometimes seeking shelter “briefly.”

“All of which of course — the nature of the relationship begs the question as how someone could do this to someone they supposedly love is beyond comprehension to most people. In our society … and I’m sure the court would agree — this is unfortunately an all too common event that leads to tragic results.” Their dysfunctional relationship and substance abuse fuelled the tragedy, Harvey said.

He then moved on to talk about the Criminal Code sentencing objective as set out in 718 [e]:

“To provide reparations for harm done to victims or to the community.”

This was unlikely to happen here in this case, Harvey suggested.

“There is nothing that will happen here today that will make up for the sense of loss ….”

He then presented the aggravating factors of the case: Spousal abuse being the first and most concerning. He pointed to 718.2 [ii] as a statutory aggravating factor:

“(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,”

He then pointed to factors in mitigation for McDonald, restating his lack of prior criminal record and the fact he pleaded guilty.

The Crown then went on to talk about the “extreme distrust” and “animosity” Moar’s family has of the system, noting how an altercation at the conclusion of the preliminary hearing required extra security to be brought in for the cancelled trial and sentencing.

They may not recognize the criminal justice system is a “place of last resort,” Hervey said.

“We deal with events after they have happened and that the criminal justice system cannot undo what has been done. And that the prevention of similar tragedies begins in the home as well as society generally. Where and when it works, there’s no need for the criminal justice system,” he said.

Still, he told Cummings, we must still try to do what’s possible within the law. He then relays the joint recommendation of five years, saying it’s within the range of sentences when Gladue factors are accounted for.

THE DEFENCE

Lawyer Roberta Campbell noted McDonald had only elected to have a trial given the nature of the abusive relationship he and Moar shared.

It wasn’t just a “one-sided” volatility — “but in fact bent both ways,” she said. Campbell noted how McDonald had once had one of his tattoos bitten off by Moar in a fight and also had been attacked by her to the point he needed stitches on his head and legs.

“It was just an incredibly volatile, violent and unfortunately, (a) relationship based around substance abuse … it really is a tragedy, a really great tragedy.”

McDonald’s version of their final fight was again put forward: He says the fight began as verbal, he tried to leave and she held on to him and a fistfight broke out. “this was a fight, a brawl .. initially he was trying to extract himself from the situation and it deteriorated.”

After making up, they were getting along again. Campbell noted how he ran for help, didn’t run from and co-operated with police. “He didn’t run away. He was completely forthright about what happened,” she said. McDonald wanted to plead guilty “immediately” he felt so bad — but agreed not to on legal advice to wait until the medical reports were in and what the cause of death was.

“It was obviously one of the slaps (that killed her), it was hard,” she says.

Campbell reiterated how he was just 23 when it happened. McDonald, born and raised in Crane River, was granted bail and was released to the Teen Challenge program for 18 months. His troubles with alcohol led him back to the streets — where in Winnipeg he was stabbed in the face, and needed 40 stitches. McDonald also faced bail breach charges, which he was set to deal with after the manslaughter sentencing was over.

“When he does mess up, it’s always with alcohol,” Campbell said.

Offered a chance to speak, McDonald indicated he was at a loss for words. He said he was happy the matter was getting dealt with.

“I’ve waited a long time for this time to come,” he said.

———

We know what the court decided, so I won’t repeat it.

I want to be clear: None of this is meant as a criticism of the Crown, the court or the other players involved in resolving this case. It bears repeating Harvey’s comment from above, because I agree with him. I’m also not presenting it to play up the horrific violence Moar was subjected to.

“We deal with events after they have happened and that the criminal justice system cannot undo what has been done. And that the prevention of similar tragedies begins in the home as well as society generally. Where and when it works, there’s no need for the criminal justice system.”

But I’m honestly trying to consider the evidence as presented to determine how five years was arrived at. I don’t know what to think about it. It’s clear Moar’s family isn’t happy with the result, and others too are questioning what message the sentence sends.

But aside from that, there’s other important questions here too.

Such as: What intervention and resources were available to Moar given the remote and tiny — and clearly tight-knit — community in which she and McDonald lived? If others saw her bruised and battered time and again, was there something they should or could have done? This isn’t the first domestic homicide case in recent memory where a paucity of resources was a factor to consider.

As well, there’s obvious questions about the remoteness of RCMP from this community, which may have played a role in the evidence-gathering and investigative process. How is a band constable with limited training supposed to handle a homicide scene in a community where he’s likely to be slammed for playing the heavy, if he/she should do that?

Members of Moar’s family have an “acrimonious” view of the justice system and no faith it would fulfil its purpose Why is that? What can be done to fix it, if anything?

These are just a few of the questions which this case brings to mind for me.

Maybe they’re ones Manitoba’s Domestic Violence Death Review Committee might undertake to examine.

Kines heading back for new murder trial: The Court of Appeal’s reasons

Manitoba’s top court issued reasons Wednesday on why it sent accused killer Jason Allen Kines back to trial on charges of first-degree murder, aggravated sexual assault and sexual interference in connection to the death of Venecia Audy, 3, in August 2006.

Justice Brian Midwinter acquitted Kines after weeks of evidence being put forward at a Dauphin jury trial earlier this year.

The Court of Appeal ruled last week that Midwinter was wrong to take the case out of the hands of the jury after ruling bite-mark evidence put forward by the Crown though a dental expert didn’t go far enough to prove Kines was the biter “beyond a reasonable doubt.”

Below are excerpts of the appeals court panel’s reasons. A new trial date for Kines is pending and he remains free on bail in Saskatoon. He is presumed innocent.

[Reasons authored by Justice Richard Chartier, on behalf of Barbara Hamilton, Marc Monnin and himself.]

“The autopsy revealed that the cause of death was multiple blunt-force trauma resulting from non-accidental trauma. The victim had a combination of lacerations, bruises and human bite marks all over her body. Her vagina had been torn and bite marks were found just above her vagina.”

“A forensic odontologist testified that [Kines] had a “very highly unusual” dentition that lined up with most of the bite marks on the body. He definitively excluded the other member of the household as being the biter for all but one bite mark. The expert testified that the accused was “most likely” the biter. He also said that he was “very confident” in his identification of the accused and explained that “probable” identification was as definite a designation as his discipline allowed, except in rare circumstances.”

Midwinter’s principal reason he took the case from jury, Chartier said,  was “his conclusion that the evidence identifying the accused as the biter did “not give rise at law to proof beyond a reasonable doubt.” Because it was only “probable,” that led him to conclude there was insufficient evidence to support a conviction.

“The judge in this case appears to have failed to differentiate the question of whether the Crown met its burden on a directed verdict test (the evidentiary burden) with whether the Crown met its burden of proof beyond a reasonable doubt (the burden of proof).”

Evidentiary Burden = determines whether an issue should be left with trier of fact. 

Burden of Proof = “determines how the issue should be decided.”

“The first is for the judge; the second is for the jury.” “Moreover, the “proof beyond a reasonable doubt standard” has no direct application on a judge’s consideration of a directed verdict motion.”

“The judge’s conflation of the evidentiary burden with the ultimate burden of proof caused him to engage, to an impermissible degree, in a weighing of the evidence, to the point of determining questions which fell within the jury’s purview. We also agree with the Crown that the judge failed to consider the circumstantial evidence in its totality. Given that we are ordering a new trial, we will simply state that there was other contextual evidence which the judge did not seem to consider. In our view, the Crown’s suggested inferences fall within a range of inferences a jury could reasonably draw. As such, there was some evidence that the person accused of the offences was the perpetrator of the offences.”

“… In the end, the judge’s conclusion that the identification evidence in this case does not meet the test on a directed verdict motion cannot be allowed to stand. Whether the evidence adduced but he Crown will ultimately be sufficient to meet the burden of proof beyond a reasonable count will be for the jury to decide.”

-30-

Answers needed in Malcolm domestic-violence murder case

(Sandi-Lynn Malcolm/Facebook)

The provincial government, Justice Minister Andrew Swan and those sitting on the provincial domestic violence Death Review Committee must turn their minds to investigating what happened to Sandi-Lynn Malcolm.

Nothing short of a full and frank examination into how a young aboriginal girl can be serially abused by her ex-partner on a small reserve — only to end up brutally killed by his hands, will suffice.

It’s my view the public should be protesting — as Malcolm’s family and friends have done — to bring attention to her case in hopes of rooting out others like it before it’s too late.

What happened to this girl should not have happened and we should be sickened by it. 

After sitting with the facts of Malcolm’s killing for only a short time now, I believe she was failed on a fundamental level, for a number of reasons:

She lived in an isolated environment that had few resources or opportunities for intervention.

Warning signs — including those expressed through her own words to police — that something awful was going to happen weren’t heeded to the degree they should have.

And, (I suppose it goes without saying) Malcolm suffered a fatal consequence in her continued association with a violent human being who urged her to “trust him.”

He repaid her undeserved trust with unspeakable violence.

She was only 17 years old, though. A kid. We can’t lose sight of this.

Answers must be sought.

Here’s why.

“There. I done what had to be done.” — Ronald Racette Jr.

On the night of Jan. 30, 2010 RCMP who police the Ebb and Flow community got a call from Malcolm’s mother, saying her teen daughter was covered with cuts and had black eyes.

Sandi-Lynn gives an official statement, in which she alleges her ex-boyfriend, Ronald Racette Jr., 19, had brutally assaulted her at his father’s home. He punched her, hit her with a lamp, whipped her with the lamp’s cord and then tried to choke her with it.

A check of Racette’s record on CPIC would have alerted police to the fact of his prior domestic-abuse history.

“I should just kill you,” she reported Racette Jr. as telling her. There were no other witnesses, she told police, who photographed her bruises and cuts.

Less than two weeks later, on Feb. 8, Sandi-Lynn picks up the phone wanting to report the violence Racette Jr. put her through a day prior .

She gives another statement: Sandi-Lynn, covered in bruises, tells RCMP that her vow to stay away from Racette Jr. collapsed when he phoned her, pitifully saying he hadn’t eaten in two days.

“She said she had a soft heart and felt sorry for him,” court was told. “He told her to trust him … she did.”

Sandi-Lynn brings Racette Jr. something to eat. They were “getting along fine,” she said.

But when she said she had to go to work on her resume — she hoped to get a job as a cashier in a store — he grew angry.

While out for a walk, Sandi-Lynn was made to run through deep snow, was knocked down and kicked and pummelled while being accused of being unfaithful while he was in jail.

“She told him she didn’t want to die like that.”

Sandi-Lynn’s next words to police were alarmingly prophetic:

“Everybody had told her not to take him back because the next time, he’ll kill you, but she didn’t listen,” court heard of her police statement.

A raging Racette Jr. continually asked her if “she wanted to die.”

“I should just kill you and kill myself,” he said. They were near a creek in the community. He threatened to just throw her in there, “where no-one would find her.”

Sandi-Lynn’s survival skills kicked in. She offset his volatility by “pretending to love him” — putting on a “big front” in hopes of getting away from him alive.

He kept beating her, and made her stay outside, shoeless, in the freezing cold. “She said she felt like she was being kept hostage or something,” RCMP heard.

Racette Jr. wasn’t drinking, Sandi-Lynn said.

After giving her statement, RCMP set out to look for him. At the second community home they came to, Racette Jr. is seen fleeing into some bushes.

Cops chased him on foot but couldn’t catch up. A warrant issues but he’s not caught.

He’d re-emerge just over two weeks later for his last night of freedom.

A recounting of Sandi-Lynn’s last hours were presented to the court through witness testimony from people who were around Sandi-Lynn in her last hours and minutes.

On the evening of Feb. 26, Sandi-Lynn and a group of girlfriends scored a 30-pack of beer, but didn’t set about drinking heavily. She used the phone at one point, and reported the party was happening at Racette Jr.’s dad’s home.

It’s believed she was talking to Racette Jr. in this call. He turned up not long after.

Before he came to get the girls and their remaining 24 cans of beer, Sandi-Lynn asked her friends to “watch over her and not let him be alone with her.”

He picked them up in a nondescript “black car.”

Instead of driving directly to the party, Racette Jr. took a route past a local cemetery and stopped the vehicle.

“This is where we are all going to end up,” he said.

A ‘trail of knives’

Once at the party, it didn’t take long for Racette Jr. to become irate. Sandi-Lynn refused him a request to go alone with him to another room.

Not long after, Sandi-Lynn and another friend were horsing around, just being girls. “She’s my girl now,” the friend joked to Racette Jr.

Racette Jr. responds by punching the friend in the face four times, an assault only stopped after others intervened to pull him off.

He goes outside for a few moments. Returns. Another request of Sandi-Lynn is made for the two to be alone. Another refusal from her.

This. The last straw. He tosses an ashtray in her direction and begins grabbing knives.

“A number of people went and hid in Ronald Sr.’s bedroom because they feared something terrible was going to happen,” Justice Midwinter was told.

They had no idea how awful it was going to get. Sandi-Lynn and another woman who had come to collect her young son from the home fled to a bathroom.

Another witness reported seeing a “trail of knives” leading to the bathroom door.

‘The cops are coming’

I won’t recount what happens next, other than to say a jealous and enraged Racette Jr. committed acts of such brutal and extreme violence on Sandi-Lynn that hearing the extent of her injuries was truly jarring.

47 stab wounds don’t even amount to half of the total number of injuries a pathologist totalled up. Dr. Charles Littman noted 105 “incidents of trauma” on her.

One of Sandi-Lynn’s friends tried to stop the attack by stabbing Racette Jr. in the back as he murdered the teen. It only served to anger him more.

“He looks at her with an evil look and went charging after her.”

He made his way to his father’s bedroom — they unlocked the door to let him in — where people cowered in fear. Children had to be out out the window for fear of their safety.

“Why did you do that? You killed that girl,” his dad told him. “You better get out of here, the cops are coming.”

Racette Jr. didn’t reply. He went back to the bathroom where Sandi-Lynn was and turned on the shower.

A witness says he left the house shortly after, leaving these haunting words in the gloom:

“There. I done what had to be done.”

Efforts to revive Sandi-Lynn didn’t work. It took 45 minutes for the ambulance to arrive.

Police caught up with Racette Jr. at his aunt’s home, where he was wrapped in a blanket, being comforted by a relative.

 ‘Our little reserve is not a war zone’

There was little defence lawyer Todd Bourcier could say in defence of what Racette Jr. did — acts the now 21-year-old pleaded guilty to doing.

But Bourcier raised some credible points about the lack of intervention and other resources in the community for domestic abusers and abuse victims alike.

The nearest women’s shelter from Ebb and Flow (on-reserve population of 1,200 or so) is in Dauphin, a distance of 50 kilometres away.

Options for counselling for men is limited, even to address what he termed the “surface concerns” for offenders with histories of abusing their partners.

And certainly nothing to address Racette Jr.’s specific needs as an angry, jealous, ill-educated, booze-and-drug abusing violent offender of a horrible background, now convicted murderer.

There’s one band constable on reserve, and the nearest RCMP detachment is in St. Rose du Lac, about 35 or 40 kilometres away, according to an online description of the band’s operations.

Despite the small number of people living in the community, between December, January and February, cops responded to 465 service calls, 78 of them regarding violence, Bourcier said.

It goes without saying Sandi-Lynn’s family and friends have been wrecked by not just her death, but also how she died. She was just weeks away from her 18th birthday.

I was there at the Manitoba Legislature a few days after Racette Jr. was charged with her murder when Sandi-Lynn’s relatives and friends travelled the 300 k.m. into the city to hold a candlelit vigil and peaceful protest to condemn domestic violence.

(Malcolm’s family and friends hold candlelight vigil at the legislature)

“Our little reserve is not a war zone. Things like this should not happen,” her dad, Kingsley Malcolm, told me at the time.

They did the same thing in 2011, this time, her cousin calling for more attention to be paid to what happened:

“At the time of Sandi’s death the Olympics were closing, so there was not much coverage about her. We needed to bring it to the public’s attention,” she said. “I felt I needed to do this so we could honour her and bring people together to support one another. (from missingmanitobawomen.blogspot.ca published Sunday, Feb. 27, 2011)

Racette Jr.’s sentencing judge, Justice Brian Midwinter, was clearly aggrieved at the underlying circumstances informing Sandi-Lynn’s death, telling the gallery:

 There were no resources in the community for Mr. Racette to access … and I have to deal with a vicious attack unprovoked by anything the victim did.

Would it be too much of a stretch to believe that the simply sad domestic-violence resource situation in Ebb and Flow is markedly different from countless other isolated Manitoba communities out there?

Today, using the only tiny power I have — this forum — I’m calling on the Manitoba government to task its domestic violence Death Review Committee to investigate Sandi-Lynn’s murder, the circumstances that led up to it and issue a public report on its findings. 

Further reading:

Father of slain teen condemns domestic abuse

Missing and Murdered Manitoba Women on the Malcolm case

Sandi-Lynn Malcolm Obituary

Domestic violence on the docket

Domestic violence: Province of Manitoba

Domestic Violence Death Review Committee (Free Press, update article in 2011)

Province announces Domestic Violence Death Review Committee (2010)

In Mark Stobbe’s defence, for the record

(Chris Procaylo/Sun Media/QMI Agency)

Mark Stobbe’s lawyer spoke with media following his acquittal on Thursday.

Tim Killeen makes a number of insightful comments about the case and Stobbe’s defence, presented here in full for the record.

On fighting the Crown’s circumstantial murder case

We focused on what had occurred. And the difficulty in this case is it was always clear that there was no motive whatsoever advanced, and there was no connection. She clearly had been killed in the yard and her body moved.

We focused on that and unfortunately, there was a tremendous amount of evidence dealing with the possibility that somebody had ridden a cycle back — sadly disregarded the fact that there was a pretty clear indication right from Oct. 25th that the car wasn’t there until well after the time when all the cyclists were talking about.

The other issue had been always, the DNA was an issue — I don’t know how it was disregarded.

On the decision to prosecute Stobbe after Alberta said ‘no,’ and the false widespread impression something had evolved about the evidence  in the case over the years. 

Frankly, I don’t know why this prosecution proceeded the way it did.

“As some of you know, the original opinions — plural — from prosecutors in Alberta was not to lay a charge and that decision was countermanded, effectively when it was sent to British Columbia for a decision on prosecution.

Nothing whatsoever had changed. The difficulty in deciding to prosecute this case was that you had the entire community left with the impression that there was something new or different or more substantial than there had been before and there wasn’t.

There was never additional evidence.

“Inaccurate, unflattering and disrespectful”

The way in which the case proceeded with the motive left a very inaccurate and unflattering and disrespectful picture that really shouldn’t have been put forward. It wasn’t accurate at all.

 On the decision to have Stobbe testify and lose last word to the jury
 It was pretty clear at the end of the Crown’s case that there really was not anything there that had not been anticipated, and at the end of the day I thought there was a big problem.
The tough decision, always, is when you have somebody who says ‘I didn’t do it,’ and wants to be able to advance that story you have to consider the tactical disadvantage that comes from then having to address the jury first and not have the final word.
Nothing to ‘tie him in’

What we wanted to establish all always was that what occurred here was a horrible tragedy — the most tragic thing that could of occurred.

Clearly whatever had happened it would naturally cause suspicion to be pointed at Mr. Stobbe.

But as you heard after an extraordinarily thorough investigation involving 100s of witnesses, 100s of wiretap conversations … there really was nothing whatsoever to tie him in and at the end of the day that clearly is the way the case ended.

There just was nothing there to tie him into this.

The RCMP and ‘tunnel vision’

As I said, there was a very thorough investigation. Most of the investigation did exactly what it should have done.

There was … some concern — bear in mind that we didn’t know what the case was until Mr. Stobbe was charged many years later.

It, I think it would be fair to say, that the DNA which seemed critical to us really wasn’t given much consideration.

And the fact of this bicycle issue really was important to them but at the time we looked at it seemed to be an absurd issue. It was clear that despite the fact the witnesses said they only saw one cyclist, there were clearly at least four different cyclists out there.

It was also clear … that the car (Rowbotham was found dead in) wasn’t there until after 1 a.m.

An (inconclusive) answer to a question that’s always plagued me

(We're obviously talking about a different kind of Warrant)

Just how many warrants are in Manitoba police computers gathering dust?

It’s something I continually have asked myself for the last few years until today, when I was given something of an answer.

It’s 20,000, give or take a few.

That was Det. Sgt. John O’Donovan’s reply to my question at the official unveiling of an RCMP-Winnipeg police warrant (read: ‘Fugitive’) squad today.

His official reply was “more or less.”

You can read all about it here. The unit is already claiming some success in catching crafty crooks who evade the law — sometimes for years,

Now, while that number seems quite large, it’s important to remember that a single offender can be the subject of several warrants at a time.

That person’s arrest can lead to the execution of several warrants.

But realistically, the quoted number of 20,000 really means nothing has changed on the outstanding warrants front since late 2006.

From Mike McIntyre (@mikeoncrime) and the Winnipeg Free Press (@winnipegnews), Nov. 6, 2006 (Can’t provide a link, sorry):

Unexecuted warrants gather dust in system

… Winnipeg police have long complained they don’t have the adequate resources to execute the majority of arrest warrants, which end up simply gathering dust in their system.

Police told the Free Press last month there are more than 20,000 outstanding warrants currently in the system for a number of alleged offences, including federal parole violations.

Sgt. Kelly Dennison said many offenders have more than one warrant against them, sometimes as many as 10.

 Here’s hoping the new warrant squad makes a dent in a number that has apparently stayed unchanged in the last five years.
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