But behind the scenes, one of the more interesting legal battles I’ve seen was playing out.
In June 2013, Roulette sought to have his charges tossed out, alleging a failure by prosecutors to disclose evidence in the case had effectively ruined his chance at defending against the charges.
The unusual move — in which Court of Queen’s Bench Justice Robert Dewar found there was delay caused by the Crown’s slowness to disclose — didn’t work and the trial went ahead a few months later.
The key evidence against Roulette was testimony from two unsavory witnesses, one of whom was (by time of trial) a deceased crack addict and naturally couldn’t be cross-examined beyond what defence lawyer Greg Brodsky was able to do at a preliminary hearing when Russell Glow was still alive and in witness protection.
It came as zero surprise to me that Roulette quickly launched an appeal after being convicted given the quirks in the case.
But this week, he found out he’d lost that fight too. Here’s Court of Appeal Justice Alan MacInnes’s reasons why that’s so.
It remains to be seen if Brodsky will take the case to the Supreme Court in hopes of winning a new trial for Roulette.
[Update/addition: Friday, May 9: In putting this piece together, I neglected to include a city child soldier case which ranks among the worst, if not the worst, Winnipeg’s ever seen: The case of JJT, who was 15 when he and another Indian Posse member shot up a house party on Alexander Avenue in March 2008. Three were killed and three severely injured. There was no motive to the crimes, other than the older IP member, Colton Patchinose, was angry at being ejected from the party just before the shooting. He went to fetch JJT and the two shot up the place with handguns. “My son was taken from me at an early age,” JJT’s dad told court, referencing the street gang influence on his son at his sentencing. JJT recieved a life term. You can, and should, read more about his background here. But I conclude this brief update with Justice Colleen Suche’s comment on her decision to sentence him as an adult:
“It is a chilling but frank reality that J.J.T. is but one of an entire generation of children being recruited as child soldiers in the small armies we know as street gangs, which are constantly at war – with each other, and with society.”)
Sirak Okbazion, 14. Clarky Stevenson, 15, Paris Bruce. 16.
Hearing the names of these three teens should give each and every Winnipegger pause.
They weren’t just teenagers involved in street gangs.
They also represent, respectfully, a decade-long grim lineage of ‘child soldiers’ who were influenced or preyed upon by older gang members to do their dirty work.
These kids are also dead today.
And it’s not right. It reflects a failure of our society that they died so young and so violently.
Beyond that, you can draw a kind of map (and in fact, I have) tracing the lineage of street gang-related mayhem that resulted as spillover from the separate killings of these three city teens.
Action prompts reaction: It’s not just a law of physics. It’s also part of the street gang ethos. You hit us. We hit you.
I’ll give you a very brief breakdown.
Sirak’s homicide was committed when he was 14 in 2004 by the West Broadway-area B-Side gang in response to one of their members being shot at.
It spawned fare more than just greater violent conflict between Sirak’s newly-founded gang, the Mad Cowz and the B-Siders. (Both factions are still with us today, just noting).
Sirak’s death led to internal strife within the Mad Cowz, which saw the creation of the African Mafia in protest of how Sirak’s death was (or was not) avenged. That strife led directly to multiple shootings, firebombings and other violent mayhem.
Worse yet, it directly influenced the death of innocent Phil Haiart, who was gunned down by AM members Corey Spence (15 at the time) and Jeff Cansanay as he simply crossed a West End street.
Cansanay, the triggerman goaded by Spence to ‘shoot, shoot,’ was aiming at two Mad Cowz members, but missed.
The resulting fallout from Haiart’s murder became a kind of chromosome in Winnipeg’s DNA.
How the political and police response shook out to the 17-year-old’s death is part of our essential makeup as a city.
From Haiart, we caught a close-up glimpse of an awful truth: Kids are being used by gangs, and kids, by virtue of their ages, are unpredictable. Maybe I could be next, people wondered.
Stevenson’s stabbing in 2011 in the North End has likely caused more bad blood between entrenched street gangs – he was an Indian Posse associate – than one might believe.
Well liked by many and known for being ferociously fearless, sources tell me Stevenson was on track to taking a place in the IP’s gang hierarchy.
So, when it just so happened he wound up stabbed to death, allegedly by suspects linked to the MOB gang, violence spilled over between the two groups in waves, and to some degree continues to this day.
Soon after, innocent David Michael Vincett, was shot by James Sinclair – just 14 – on Boyd Avenue.
Bruce, aligned with the Mob Squad – a splinter faction of the MOB – was led into a plot hatched by an older gang member to take over an Indian Posse crack house.
Just weeks before Bruce was beaten to death by IP members, the gang superior, Joshua Jeffs, who got Bruce mixed up in the plot that would claim his life, was viciously attacked by four teen IP members with a hatchet and machete for being part of a group that attacked their Boyd Avenue hangout by surprise.
Jeffs, according to prosecutors, also enlisted another teen and an 11-year-old boy to try and take over the Redwood Avenue crack shack.
Bruce, maybe not comprehending fully what he was getting himself into, tried to run when IP guys caught on to what the Mob Squad was trying to do. He wound up beaten and stabbed to death.
It’s no mistake that the Crown used the words “young soldiers” to describe Bruce, the other teen and the 11-year-old and their position within their gang.
Despite how ugly the tactic is, it should be more than patently obvious by now that older gang members are well-aware of the benefits of using younger guys to do the dirty work.
To them, the ‘kids’ are expendable – and, let there be no doubt, in great supply – even if they’re dying off or being sent packing to jail for a time as a result of their involvement in the gang underworld.
I’ll repeat: The fact that any kid winds up in a gang is a signifier to us that something is wrong with our society.
Whether they wind up there because of poverty, addictions, for protection or for a sense of belonging, seeing our youth wind up being used by criminal factions they way they are should be nothing short of alarming to us.
But recruitment continues, relatively unabated, and has done so in Winnipeg for a long time now.
I’ve only presented here three examples of slain “child soldiers.”
What’s to be done about it, I can’t offer a solution other than to say every child needs a baseline of normality in their lives in order to have a chance at success over the long-term.
What I am sure of — and it should be pretty clear by now if you’ve gotten this far — is that “child soldiers,” “young soldiers,” or whatever you want to call them, are a blight not just on the gangs they’re enlisted in, but on us as a society as a whole.
We should be shocked and outraged by the brutal, violent deaths of people in our city who have barely lived.
I get the sense we’re generally just resigned to the fact that this happens to some of our youth. And it’s wrong.
[Reblogged from the Winnipeg Free Press ‘Crime Scene‘ blog.]
In any jury trial, the judge’s reading of the charge and her instructions to jurors are right up there with the most important of tasks and developments in the court process.
In a complex case, the crafting of an appropriate charge can take many days, many re-drafts and much collaboration and input from the lawyers from all sides.
In the Davis case, it was no different.
The beauty of the charge is not only does it lay out the law for jurors and the guide it provides them to try and reach a just verdict, it also offers a review of the most salient points of evidence from all sides of the case.
It’s this key document and these words from Justice Brenda Keyser that jurors took with them to their room to secretly deliberate the first-degree murder case against Corey Tymchyshyn and Kristopher Brincheski.
Both men have now signalled their intentions to appeal their convictions, and Brincheski, his sentence.
One of Tymchyshyn’s complaints to the appeals court is that he feels Keyser’s instructions in reference to the evidence went off the rails and contributed in some way to his wrongful conviction.
We’ll see how that claim pans out down the road.
This will be my last post on the Davis trial, barring any urgent matters that might crop up.
I had more planned, but given the appeals are forthcoming, It’s likely better use of time to focus on that instead of dredging up stuff from the past that obviously didn’t have much relevance at the trial proper.
I’ll revisit that decision should an unexpected issue involving some undlsclosed element crop up during the appeals process.
It probably goes without saying that through this blog, I’ve hopefully been able to at least try and give readers a comprehensive sense of the Crown’s case, the evidence presented and the amount of dogged work RCMP and Winnipeg police did to figure out what happened and prove it in court.
To me, what better way to cap the trial coverage than to give people the one thing they’d need to read to understand how it came together, the serious issues at stake and an official review of all that was disclosed publicly?
A young (apparently) eastern European man with no criminal record or history of trouble with the law is spotted as a suspicious person inside an Elmwood apartment block, where witnesses say they noticed the “unassuming” stranger had a backpack and pick-like objects on him.
And then, boom: he’s charged (and presumed innocent) with 35 break and enter-related counts in connection with police reports which had been piling up in the back offices of the East and West Districts for a year.
What makes this case curious is the apparent level of sophistication.
If what’s been alleged proves true, the burglaries involved the use of lock picks and a special “high frequency” listening device, ostensibly to assist in picking said locks.
In other words, these were no basic smash and grabs.
I’ve mapped out the numerous break-and-enter events and their timing, which all occurred at apartments.
Results of that effort are below.
Now, I had limited data to work with, just the dates of the alleged offences and the block addresses at which they happened, and in most cases a gender of the person who lived there.
But even this small amount of data, when laid out on a map, raises certain questions.
At the top of the inquiry pile is: Were these B&E’s targeted events? Was the culprit somehow led to these specific addresses after being tipped off that something of value could be found there?
Initially, between March 2013 and the end of April, the target sites were apartments in Transcona and North Kildonan.
But then, to kick off May, there was an event on Clayton Drive – many, many kilometres away from the usual area of interest.
By June, it becomes a hodgepodge of locations, stretching into south Pembina Highway. It’s weird.
Then comes a month-long recess in activity that concludes with an event on St. Anne’s Road – but resumes back in Transcona, at a block which had already been hit several times before.
Then, consider the four-month gap in events between 22 October, 2013 and mid-February back in Transcona. What went on in this period? Note, also that the Oct 22, 2013 event took place at the exact apartment where the suspect was collared this past week.
Now, it could be that there were other events in the intervening months which simply weren’t reported to police. That’s entirely possible.
But what we’re left with given the charges and the timing of the allegations is the possibility this was just the tip of the iceberg.
I wonder, as would anyone, about the contents of the suspect’s backpack, and what was discussed — if anything — in his police interview after his arrest.
I also wonder about the story of a note being left behind at the Oct. 22 event on Poplar Avenue — one stating the thefts were as a result of a lack of legitimate employment in Canada for immigrants, and that a group of people was behind that break-in.
As I said: It’s a curious case.
Update: Sorry, it appears WordPress won’t allow the custom Google map to be embedded here. It can be found here.
(Reblogged from the Winnipeg Free Press ‘Crime Scene’ blog, minor revisions for formatting and clarity)
“Ironically, had Ms. W died from the shooting it would have been easier to prove murder, because that can be done in two ways. Including the less onerous route of meaning to cause bodily harm that the accused knows is likely to cause death and is reckless whether death ensues or not.” Justice Chris Martin
Attempted murder: those two words, strung together, strike fear to any warm-blooded heart for sure.
Sadly, the charge seems to be more frequently seen in Winnipeg than ever before.
And while on the surface of things, a case may appear to be one of an attempt to kill, by the time it goes through the court wringer and scrutiny, I’d be willing to bet most, if not all, are never made out to be attempted murder.
An exclusive report I wrote last week about Jared Smoke‘s trial is educational on how difficult attempted murder is to prove, and the uphill battle prosecutors have to try and demonstrate a suspect’s intent and state of mind in all but the most clear-cut cases.
(Perhaps ones where a police officer might hear an assault suspect blurt out: “I’m going to kill you!,” before an arrest takes place stand out as the most obvious.)
Smoke was acquitted after a trial in the Court of Queen’s Bench. But he was found guilty of several lesser, but included offences, aggravated assault and discharge firearm with intent to wound.
The report in the newspaper was cut down substantially to make it fit in the paper, but the acquittal on the most serious charge raised questions about how this could have happened given the facts revealed in the article.
Out of fairness, I thought it would be a good idea to reproduce virtually all of Justice Chris Martin’s decision verbatim in order that the general public who couldn’t be there for the decision could see the systematic nature of how he arrived at it.
Warning: the facts are somewhat graphic in spots. It’s an awful case of cruel violence no matter how you slice it.
Smoke is to be sentenced on the charges he was found guilty of later this year.
It will be interesting to see the position prosecutors Daniel Chaput and Adam Bergen take on how much time he should serve.
Note: names of the victim and witnesses have been redacted by me because they’re not germaine to the decision overall. I urge you to read the explanation of the W.D. analysis as set out in the first link below.
Justice Chris Martin, March 13, 2014 Decision in R v. Jared Smoke – Attempted murder trial (included offences of aggravated assault and discharge firearm at issue, as are several weapons-related charges.)
“Determining Mr. Smoke’s culpability involves an assessment of both non-contentious evidence and the reliability and credibility of several witnesses, including Mr. Smoke, to which a W.D. analysis must be applied.
For the most part, my consideration of the charges and discussion of the evidence will be limited to the legal issues before me. At this point, I intend to outline what I mostly consider to be the non-contentious evidence surrounding or related the shooting.
Later, in the analysis portion in this decision, I will refer more specifically to the elements of the offences, the defence of accident and the more specific evidence that needs to be considered to determine the individual issues.
Turning first, then, to the non-contentious facts:
In the fall of 2009, Ms. W was living in a suite on Furby Street in Winnipeg with her two infant children, aged about four months and two years. Mr. Smoke was her sometimes-boyfriend. He was the biological father of the four-month old. Mr. Smoke would frequently stay at Ms. W’s suite. When he did, he slept in her bedroom at the back of the suite.
In relation to Mr. Smoke, Mr. E.P. was also staying in the suite that October. His girlfriend, E.C., would come over and became friends with Ms. W.
Weeks before the shooting, Mr. Smoke and E.P were together when they got jumped by a group of men, perhaps part of a street gang. After, for his protection, Mr. Smoke acquired a .204 Ruger bolt-action rifle. The rifle was capable of holding one bullet in the firing chamber and one more in the magazine. He had it altered by cutting off part of the barrel on one end, and the stock on the other end. Due to the length of the barrel alone, or the overall length of the rifle – by law, it was a prohibited weapon.
From my handling of the weapon, it is fairly heavy and cumbersome and especially cumbersome to hold with one hand because of the way the stock has been altered or fashioned into a pistol-grip. The bolt action is designed for right-hand operation. The safety is a small lever beside the bolt. To switch the safety off, it must be manually pushed forward to the firing position.
Mr. Smoke did not have bullets for the rifle when he acquired it. So at his request, E.P. arranged for E.C. to buy some on her home reserve. Mr. Smoke testified that he carried the rifle with him, loaded, in a bag or sometimes down his pant leg.
On Oct. 21, 2009, Mr. Smoke, EP and EC were at Ms. W’s with her and her children. Another relation of Mr. Smoke, a man named Darrel, was also there. It was late in the afternoon. Mr. Smoke and Ms. W got into a heated physical altercation over his having another relationship with another woman. He admitted to beating Ms. W in the living room before dragging her to her bedroom where he was going to beat her more.
At the bedroom, she was on the floor near the door threshold. It appears that her head and torso were in the room and her legs out of the room. Mr. Smoke punched her several more times and kicked her. He then quickly turned and got the .204 rifle from a chest of drawers or a closet in the room. He said he had put it there a few hours earlier, when he had a nap in the room. It had been in a bag.
When he turned back to face her as she lay in the doorway area, the gun fired. She was shot in her right arm which she held up in front of her head in a defensive, blocking manner. The gun would have been angled downward when it discharged. The bullet struck her forearm and then her head.
The medical report noted massive destruction to her right forearm, significant soft tissue defect, major nerve damage to the muscles supplying her forearm and hand and arterial injury. The bullet then apparently glanced by her right cheek, right skull area, causing a scalp wound and fracture of both her cheek and skull.
EP and EC were in the bedroom, along with the four-month-old infant when the shooting happened. EP saw what happened but EC did not as she purposely looked away during the assault. Everyone then fled the suite, leaving Ms. W in a pool of blood, the four-month-old on the bed and the two-year-old wandering about.
Mr. Smoke says he tossed the rifle in a nearby dumpster. A neighbour heard the screaming from the suite and a woman yelling, ‘no.’ (inaudible). She also heard a loud bang. She immediately called police. The police broke into the suite and along with paramedics, attended to Mr. W and the children. After, police searched the suite and found several items of interest.
One, a box of .204 bullets … under a cushion on the couch in the living room. Two, a .22 bullet on the fireplace mantel in the living room. Three, a loaded, single-shot, sawed off, .22-calibre rifle in the dresser in Ms. W’s bedroom. They also recovered the .204 calibre rifle from the dumpster. This rifle had one spent bullet casing in the firing chamber, and five live bullets in the magazine.
Mr. Smoke turned himself into police custody about a month later. His police interview and statement was admitted as part of the Crown’s case. While he did not say much in the statement, he did say that he did not intend to kill her, and that it all happened very fast.
Since his arrest about 4 1/2 years ago, Mr. Smoke and Ms. W had many discussions, some about this event. Most notably, police intercepted a telephone call from Mr. Smoke to Ms. W on Feb. 4, 2011, days before his preliminary inquiry. He told her that, and I quote: ‘All you got to do is say it was an accident, it was an honest accident, I love him, it was my fault. He shouldn’t be in jail.’
And he told her what he would say. In cross-examination, Mr. Smoke agreed that passages from the transcript of the intercepted call sound like he did not want her to tell the truth. However he maintained that the point of the phone call was to encourage her to tell the truth.
Finally, by the time of trial, Ms. W mostly recovered from her injuries but she is left with some residual effects and scarring.
With this background in mind, I turn to the consideration of the analysis of the issues.
The first issue in the first portion of the analysis then, is what if any offence has the Crown proven Mr. Smoke committed by handling the .204-calibre rifle when it discharged?
The Crown position is that it’s proven, through evidence that a common-sense inference from the proven facts, that Mr. Smoke specifically intended to kill Ms. W. through the rifle discharge. The facts they rely on include:
1] Mr. Smoke was assaulting Ms. W when he dragged her into the bedroom to continue the assault.
2] That he was ‘seeing red,’ so to speak, in terms of his anger at her.
3] That he retrieved the rifle from where he put it.
4] That he was holding the rifle in a shooting position with his right hand on the pistol grip and finger on the trigger, using his left had to support or hold the rifle by the fore stock.
5] That the safety of the rifle was disengaged so the rifle was in a firing position.
6] The rifle was aimed downward at Ms. W’s head area when it discharged.
7] After shooting he fled the scene without any attempt to check on her, or help her and disposed of the rifle.
The Crown says the inferences to be drawn from these facts are that the only reason for dragging her to the bedroom was to access the gun that he knew was there. And, in shooting her at near point-blank range toward the head, he intended to kill her. Further, his post-offence conduct supports this inference in that it demonstrates the shooting was not an accident.
They say that Mr. Smoke’s and Ms. W’s testimony to the effect the shooting was an accident is a fabrication and both inconsistent with the evidence and logic.
The defence says the opposite. This was an accident, and as such no liability should flow from it. They say his police statement and his testimony supports this, or at the very least ,raises a reasonable doubt. He was trying to leave the bedroom with the rifle when Ms. W – as she testified – grabbed for the rifle and it discharged accidentally. Mr. Smoke would not have known it was loaded because he stored it in a closet or drawer unloaded, just before he took his nap a few hours earlier.
I now turn to Mr. Smoke’s testimony.
The classic WD analysis must be applied to Mr. Smoke’s testimony and police statement. To cut to the quick respecting steps one and two, I neither believe, nor am I left with a reasonable doubt about several key points.
First, while I accept he dragged Ms. W to the bedroom to continue the assault, I reject that he did so to be out of the childrens’ or plain sight or for privacy. Clearly he was angry. He wanted to continue beating her and she was no match for him. There was yelling and screaming for all to hear. So loud, a neighbour could hear it.
Tellingly, Mr. Smoke retrieved the .204-calibre rifle almost immediately after dragging Ms. W to the bedroom. In other words, whatever physical beating he wanted to continue, it wasn’t much. I do not accept that he wanted to continue the beating only in private. Everyone old enough to understand what was going on in that apartment knew what was going on. There was no real reason to drag her to the bedroom except to get the rifle and to use it in some manner as part of his overall assault upon her.
Second, I reject his evidence that he unloaded the rifle before he napped so that it would be safely stored, and his evidence that he did not know the calibre 204 bullets were in the rifle is nonsensical. I say this for three main reasons.
1] It is inconsistent with his testimony that a) he carried the weapon everywhere he went for his protection because he’d been jumped and shot at weeks before and b) he arranged to get the bullets … and they were for the .204 rifle he kept. Clearly it was his rifle and his ammunition. The two go hand in hand. It is far more logical that the stored the rifle loaded while he slept so, if necessary, it was ready for its purpose – for his defence.
2] Further, he testified that the unloaded the weapon at another location and he brought it to the apartment unloaded. This would mean he was effectively unarmed when he made his way over to Ms. W’s, however he came there. And thus the whole point of having a sawed-off gun for protection from others who shot at him before would have been defeated. This also makes no sense.
3] To accept his evidence would be to imply that someone else in the apartment got the rifle from his bag, fully loaded it, cocked it by positioning the bolt, put the safety in the firing position and replaced it where he had put it all while he napped two feet away or had a brief shower. This is farfetched.
Further, none of Ms. W, EP or EC said they did this. (Darrel) did not testify but it would be pure speculation, without a hint of evidence, that he did this. Others would have seen it.
Thus, it follows on these three points that I also reject his evidence that the rifle was not in the bag immediately before the shooting. On the contrary, I find that he removed it from the bag at that point.
Third, I reject his evidence that he had said just before the shooting, ‘f-k this, I’m leaving.’ This is nothing but a fabrication to support his claim that he did not intend to use the rifle as part of the assault. If it were true, there was no reason for him to obtain the rifle out of the bag. If he was leaving the apartment at that moment, there was no reason not to take it sealed in the bag, the same way he brought it into the apartment even if he had concealed it, on other occasions, down his pants.
This is not a small detail that would be overlooked in a state of anger. Further, he admitted in cross-examination that he may have said other things to Ms. W when he grabbed the gun, things such as: ‘is this what you want?’
Fourth, for the reasons I have mentioned and those that follow, I reject his evidence that he did not pull the trigger but it accidentally discharged when Ms. W grabbed the gun. He admitted his finger was on the trigger as he held the rifle, the bolt was closed, the weapon was cocked and the safety was off. Handling the rifle the way he described is completely contrary to his evidence that he was safety-minded with the weapon in the suite.
Further, if Ms. W did grab the gun, or grabbed at the gun three times as she swears – or even once – Mr. Smoke could have easily been able to move beyond her reach as he stood above her or instantly slipped his finger off the trigger. As well, she said she reached up for the rifle, thus it must have been pointed toward her as opposed to hanging down beside his leg toward the ground, as one might have expected, given the nature of the altered stock and pistol grip and its weight.
… this angle at the point of firing is also consistent with forensic evidence.
Finally, her reaction to defensively putting up her right arm means she instinctively perceived danger from his holding the rifle despite his testimony that the way he handled the rifle gave no cause for (inaudible).
Having rejected his evidence as I have, I must also consider what other evidence there is, essentially the third step of the WD analysis.
I start by noting what is likely fairly obvious at this point: I reject Ms. W’s evidence that she grabbed at the rifle three times and it discharged accidentally.
She says she lied to police and lied at the preliminary inquiry. She now says her trial testimony is the truth. On critical points, it is not. The evidence of her earlier versions, the reason for saying what she did when she did, the evidence of the intercepted call from Mr. Smoke to Ms. W during which they discussed their evidence, the context of their relationship which included her accepting fault for being shot because she should not have started the argument – all point to her trial testimony respecting how she got shot as being fiction.
This is distinct from occasional moments of spontaneous honesty that she had in testifying on some critical matters, such as her testifying that she put her arm up for defence.
So what remains?
First, there’s the non-contentious evidence that I referred to earlier. Most material is that Ms. W was shot with the .204-calibre rifle by Mr. Smoke. Second, there’s no credible evidence of anyone else in the suite holding or possessing that weapon or ammunition during any of the relevant timeframe surrounding the shooting.
Third, I have rejected both (Mr.) Smoke’s and (Ms.) W’s evidence of an accidental discharge. Finally, all of this is inconsistent with EP’s evidence he saw everything that took place in the bedroom. He was clear Ms. W did not grab the rifle just before she was shot. I accept this testimony.
Thus on the evidence I have accepted, and in part for reasons set out in the WD analysis I will not repeat, I find that Mr. Smoke possessed the loaded .204 calibre firearm when he entered the suite, that he left it loaded in a bag in a closet or in a drawer in the bedroom and that he retrieved the loaded weapon during the course of beating Ms. W. Further, in the end, there is no credible evidence to support the notion that the gun discharged accidentally.
Indeed there is good evidence and strong inferences to find Mr. Smoke pulled the trigger and meant to do so. In rejecting his and Ms. W’s evidence I find that Mr. Smoke pulled the trigger that caused the shot to Ms. W.
I pause to note that I would have been satisfied based on the Crown’s evidence and submission that the shooting was not accidental even without EP’s evidence. Further, to be clear, I find that neither pulling the trigger, nor where the rifle was pointed with and fired was an accident.
Having rejected, factually, the defence of accident – in other words having been satisfied by the Crown as to the requisite elements in that particular respect, I need not analyze whether or how such defence could have been available to Mr. Smoke, in law, with specific offences he faces especially considering how the shooting occurred while he was committing other unlawful acts namely assault and possession of a loaded prohibited weapon.
The issue, thus becomes what do I find him anything guilty of? The onus remains on the Crown to prove all of the essential elements of the charges, including his intent or state of mind. Three comments are warranted at this point.
First, while I have rejected his explanation of the shooting, I cannot use that rejection to find an inference that he must have intended to kill her.
Second, I disagree with the Crown’s position that his conduct after the shooting points to the offence he committed. I need not rely on his post-offence conduct to be satisfied beyond a reasonable doubt that he pulled the trigger and it was not an accident. This post-offence conduct evidence is also not properly available to consider whether he had the specific intent to kill on firing of the weapon.
And in any event, I find his flight and tossing of the weapon to be equivocal. It is not evidence solely of consciousness of guilt. It is equally indicative of panic knowing that he’d shot Ms. W.
As to the intercepted call evidence, a number of competing inferences arise, but it clear that the phone call was essentially aimed at whether he pulled the trigger, not what his intention was in so doing.
Having made the findings that I have, on the evidence that I’ve accepted, Again, I not need consider this aspect further.
Third, regarding the most serious charge, the attempted murder – it is among the most difficult for the Crown to prove. Because there is only one the of state of mind that will suffice to ground such a conviction. Of course, the Supreme Court of Canada has made this clear in R v [inaudible] and other cases.
As demonstrated by the precedents referred by both counsel, the specific facts, background and nuances of a particular case are critical as to whether proof of a specific intent to kill has been made out.
Ironically, had Ms. W died from the shooting it would have been easier to prove murder, because that can be done in two ways. Including the less onerous route of meaning to cause bodily harm that the accused knows is likely to cause death and is reckless whether death ensues or not.
Having noted these cautions, on my findings, there remains a reasonable inference that Mr. Smoke intended to kill Ms. W. Yet when the Crown must rely on inference to establish the state of mind for attempted murder, it is all the more difficult because one must also ask, on the proven facts, whether there is another reasonable inference to which the benefit of the doubt must be given to the accused.
In this case, I find that there is such an inference here. Specifically, that he meant to use the gun in the assault and in doing so he discharged the gun but without specifically meaning to kill her. Clearly, the shooting took place during a violent argument that escalated and took place very quickly.
This, in the context of the relationship generally, and more specifically his comments at the time of, ‘f–k this,’ or ‘f–k this, is this what you want’ and his response to police that he did not intend to kill her raise the spectre of a plausible inference that he meant to shoot her, but without the specific intent to kill her.
Thus, to paraphrase the Supreme Court of Canada in [inaudible], respecting the meaning of reasonable doubt, I am not sure that he specifically intended to kill her. And as such he’s entitled to the reasonable count on this issue.
I find him not guilty of attempted murder.
What remains is … ”
Martin goes on to convict Smoke of aggravated assault and discharge firearm with intent to wound. He will be sentenced later this year, also by Martin.
[Reblogged from the Winnipeg Free Press ‘Crime Scene’ blog 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.
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.”
Was he present when it happened?
“I don’t know.” He didn’t ask if Kris was present.
Are you sure of that, sir?
No, seeing his police statement to refresh his memory won’t help in that regard.
Not a thing?
It won’t help you at all?
And the reason is because you read it already?
Kris didn’t tell you the number of people present in Corey’s garage?
Did he tell you if he was one of the persons present?
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?
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?
[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?
[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.
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.
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.
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.
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.”
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.”
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.
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.”
[Republished without editing from the Winnipeg Free Press ‘Crime Scene‘ blog on Sunday, Jan. 26, 2014]
Two men on trial for a ghastly crime: The alleged first-degree murder of a handsome young Winnipeg man, a cocaine dealer, who went missing for months and was found July 23, 2008 in a barrel pulled from the Lee River.
Corey Tymchyshyn and Kristopher Brincheski are accused and presumed innocent.
After week one of the hearing, here’s a breakdown of the evidence Crown prosecutors have presented thus far in this deadly serious case, which they say occurred Feb. 6, 2008. Davis’s disappearance after this date was a missing persons investigation until his body was discovered.
[You can read Crown attorney Keith Eyrikson’s opening address to the jury here to get the crux of the allegations. This lenghty post is more to ground readers on the actual evidence that’s being presented].
Also, I’ve presented it (with one exception) without distinction of whether the evidence was led on direct by the Crown or cross examination by defence lawyers.
I suspect to the 11-person jury, it’s important they just hear it all and then try to sort out what’s what. It’s the answers, not the questions, that are the evidence.
And remember: the golden guideline is, they can accept all, some or none of what a witness tells them.
Lives in Winnipeg, owns cottage on the Lee River since 1989 that he built himself. Goes almost every weekend in the summer, not as often in wintertime.
Has never seen the Winnipeg River completely frozen, “not really.”
The current of the water on the Lee River at his cottage flows north to south, is “fairly strong” in the centre. “Not much” from east to west.
A public walkway to a dock next to his cottage is meant for cottagers in the area, “backlotters,” who don’t have waterfront property.
On July 5, 2008, saw barrel in water. Thought it may be debris from a dock that had broken up elsewhere. On this day, he rolled it onto the shore as far as he could. It was black and had holes near the plastic lid, which was sealed with a steel snap ring.
He left the item there until July 23 when he and another cottager moved to move and dispose of it. He unsnapped it and saw a white/black tarp inside. The friend pulled on it until he saw a “belt and pants” inside. The friend had a better look and told him to get out.
They did and called police, who arrived in 5 minutes. He did not take anything out of the barrel.
Says he didn’t open it at first because he was alone, that’s why he left it for two weeks.
Admits anyone could have come and gone up and down the public walkway to use the public dock, which isn’t supervised.
Shown picture of current winter conditions in the area, can’t disagree the water appears frozen over.
RCMP Cpl. Maria Forester, forensic analyst [first appearance]
July 23, 2008: learned at 1:30 pm she was being dispatched to Lee River scene. Arrived there at 4:23 p.m.
Serious Crime Unit and RCMP divers there already.
Barrel is now turned upright, wrapped in a shroud and then fished out with a winch.
Her next involvement was next day at autopsy at HSC.
The “pebbled texture” of the barrel not good for fingerprinting.
Barrel is cut to extract the person carefully from the Barrel.
Victim is wearing grey socks, a Versace black jacket, blue jeans and a grey hoodie.
He has a black extension cord around his neck.
A baseball cap with rhino symbol and gloves are also in the barrel.
Samples taken for DNA analysis.
A “black coil” is found amongst the materials post removal
Barrel was seized and taken back to the RCMP forensic lab on Academy Road for testing.
A room is set aside specifically for this case.
The barrel is 90 cm tall and 58-59cm wide.
Fingerprinting done on it.
May 20, 2009: Further testing on barrel and tarp [a laser-light exam]
Day 2: Forensic Pathologist Dr. Thambirajah Balachandra
He’s Manitoba’s Chief Medical Examiner, has been since 1999, directed autopsy of Chad Davis
Says barrel was cut with a saw to preserve as much as possible.
“Heavy objects” like a large square piece of metal and some pulleys found in the barrel.
The small bit of black plastic recovered “appeared like a corkscrew,” “probably came from the barrel.”
The victim has a tattoo, the word “Davis” in Old English lettering on back of left upper arm.
Weighed 130 lbs at time of autopsy.
Cause of death ruled to be: blunt force to the head, “multiple blows received to the head.”
Just one of the skull wounds the victim received may have caused incapacitation, a fall and perhaps death.
“He did not die within weeks, probably months.”
Temperature of the water would have an effect on the degradation of the body.
Rice could be identified in his stomach contents.
“An object, something like a hammer,” could have caused the wounds to head.
It’s consistent with findings that he was hit from behind with hammer.
Evidence of drowning: none he could find.
The cord around his neck was loose, and no associated trauma from it.
No evidence of defensive wounds on his body.
Couldn’t say if victim bent over, already down or standing when struck.
“I can’t say with certainty how this happened.”
Injuries to front of face not consistent with being hit there, more likely from fall.
Again: “I can’t say exactly how this happened.”
Can’t say if one attacker or two.
Courtney Sych, Davis’s girlfriend at time he went missing Feb. 6, 2008.
Davis had been her boyfriend on and off for 1.5 years.
“At that point, he was my world. He was all I had.”
Not always the nicest guy, especially towards start of their relationship, as it progressed, “he was a great guy.”
Fall 2007 into winter 2008, they were on/off a few times.
Says they got back together on Dec. 27, 2007.
Jan. 12, 2008, she left Winnipeg to go to B.C. for work, was “kind of looking for a fresh start,” mom in BC offered her one.
“We cried a lot when I left for that airport.”
She came back to Wpg on Jan 30, 2008 when Chad asked her to come back and paid her ticket.
She went to meet him at Hargrave Street apartment where he lived with “Corey” [Tymchyshyn] at the time, stayed with him a couple of nights there.
They talked of going to Calgary together.
Tymchyshyn was moving back with mom at 703 Prince Rupert Ave. because he didn’t have rent money.
She and Davis started staying in hotels, first the Capri, then the Westwood Super 8 and then the Red Lion Inn.
He’d call his mom once a day. Parents are “amazing people” he was close with.
Davis wasn’t skinny.
He was “OCD” about his appearance. “Everything had to be perfect”
He wore expensive brand-name clothes because he wanted to look sharp. He wouldn’t go out unless he looked good, clothes matched.
He was protective of his possessions.
Never saw him lend things to friends.
Was he cheap? “He wouldn’t waste money.” Not flashy with cash.
“He wouldn’t ever” take cabs, even if drinking. “He had to do it himself. He wouldn’t rely on a cab driver or a ride.”
Never saw him leave things at friend’s house.
Knew he had a storage locker at Dino’s Storage – thought that Corey hooked him up with it.
They went there once, put boxes in there they didn’t want to take to Calgary.
Admits he sold drugs, and that no-contact order was in place between them after incident at her workplace.
She has no criminal record.
On Feb. 6, 2008, they were “the best they ever were” at that time.
They moved this day to the Red Lion Inn on Portage. Was a “cheap place” and she hated it.
Were to leave to Calgary on Feb. 8.
He said before they left, he had to have something fixed on his truck and “collect a few debts from a few people.”
Prior to arriving at Red Lion, he and Tymchyshyn spoke, he said he needed a ride.
They arrive at Red Lion at 11:30 a.m. checked in
Had lunch at Chinese food place attached to hotel. She’s not 100 per cent sure if he had rice to eat.
They then grabbed small amount of things from his Jeep, which was full of stuff for their move.
They went to room, it was “cheap,” and “only for a few nights,” he told her.
He said he had to go give Corey a ride and he’d be back in half an hour – his last words to her.
“All of his luggage” was in the Jeep, including a black Swiss army suitcase. There was also a Rubbermaid container.
She left a duffle bag in there, boxes.
He left his “perfect” eyebrow tweezers in the room and a laptop bag and a day planner.
“I was a nosey girlfriend. He’d tell me stuff. But he wouldn’t tell me everything.”
“Raspy” was Tymchyshyn’s nickname.
The planner was to keep track of who owed him what money. He never used real names, but nicknames.
On a loose slip of yellow paper in it, “Raspy” is listed [among other names] with the numbers 21,850 and 26,850
He left his wallet in the hotel room with ID in it and credit card.
She discovered $5,000 cash in his laptop bag. “Thank God he did” as she was totally broke.
Two hours pass, and he’s not back. Using pay phone in hotel, she decided to phone him repeatedly.
Called him that day “as much as I possibly could have.”
He only had the number of 296-6036 to her knowledge.
Called Tymchyshyn’s mom’s line to leave him a message.
The next day, tried calling hospitals and his friends, who didn’t seem concerned at all.
“I don’t care about you. I don’t care about Chad,” one told her.
She ended up living on the $5,000 she found.
When he left, he was wearing a “Hardy” belt, name brand jeans, hat with rhino symbol on it and black Versace jacket.
Davis “really liked watches.”
His jewelry box was in the Jeep, wooden with mirrored back. She ID’s box shown to her in court [in evidence bag] as being his.
Says she saw him pack “not neatly” when leaving Tymchyshyn’s Hargrave apartment.
She’s shown other items – a cardboard box with Davis’s family’s business logo on it and her handwriting, a floor lamp and a nylon DVD case – IDs them as his.
Says the lamp was in the storage unit at Dino’s. Her pillow, pink, was also shown to her.
She spoke to RCMP on three occasions in the homicide probe.
She’s positive the heating pad she’s shown was in the Jeep at the time she last saw Chad.
Sych describes watches Davis wore – one of them slightly broken, missing a strap pin – and posters he had, including a “Scarface” poster.
Davis’s key to get into the lock on the storage unit door at Dino’s was kept in his Jeep’s cupholder.
He owned two TV sets, one a “flatscreen” the other heavy and “old school.”
She was at Davis’s funeral. Tymchyshyn was not.
The message she left on Tymchyshyn’s mother’s line on Feb. 6, 2008 was not returned.
DAY 3 – Sych returns, cross-examination
Had been to Tymchyshyn’s mother’s home on Prince Rupert “a while previous.”
Agrees the distance between Red Lion Inn and Tymchyshyn’s mom’s is “polar opposite” ends of city.
Davis’s half-hour estimate of being away was a casual statement, not a definitive timeline.
He could have gotten texts or other calls when they were eating at the Chinese restaurant.
She can’t recall Davis getting other calls other than the one from Tymchyshyn.
She remembers seeing the phone lying on the bed, seeing it was Tymchyshyn’s number.
“I have no idea” if Davis got call from another friend, SW, when they were eating.
SW was a “nice boy” whom Chad would smoke up with sometimes.
SW was one of the only people who seemed concerned after Davis went missing.
His other friends: “I always told him they weren’t his real friends – more like business associates.”
Another of Davis’s friends said: “go f’ yourself, and you and Chad go f’ yourself.”
Another, CC, suggested she had something to do with his disappearance on first conversation, on second, he was more helpful. Told her to “wait it out,” because “Chad’s a little on the weird side sometimes.”
She couldn’t say if these men worked for Chad in his drug business or were friends. “I fully 100 per cent do not know.”
Admits he had vanished without telling her once before, in 2007 when he upped and left for Toronto. This upset her.
He had also not called her when he was arrested for a drug matter and stopped answering her phone.
Admits after Davis went missing on Feb. 6, she found the money in the bag and went for a friend to have a drink.
Talk of going to Calgary was not spontaneous or out of the blue, it had been discussed before.
She says she doesn’t remember telling Davis’s mother in Feb. 14, 2008 call that he was taking her out to Calgary and then coming back.
Admits there was a no-contact order between them at the time. “I was looking to get the charges dropped … the no-contact order.”
There’s a note in the day planner for Feb. 5 to call Legal Aid and a phone number, but can’t recall if that call was made that day. “There was a few phone calls.”
She and Davis planned to leave without dealing with his outstanding warrants ASAP. The assumption was he’d come back and deal with them.
How drunk did she get on Feb 6 with her friend? “I’ve never been incredibly drunk that I didn’t know what was going on. I was not stumbling … slurring my words – I have never been that way.” But is a lightweight when comes to drinking. (Statement) Told police on Aug. 7, 2008 that she and friend ended up getting “right retarded” after going for the drink on Feb. 6, 2008.
“I was never a disaster drunk.” – can only tolerate so much, saying she hadn’t eaten all day.
Over next few weeks: “I really drank myself stupid every day.” “Because I really didn’t know what was going on.”
Yes, it was Davis who paid her way back to Winnipeg from B.C.
The list of names and numbers in the day planner was, to her, a score sheet. “That’s what I get out of it. That they owed him money for drugs.”
Yes, Davis had a temper and would sometimes take it out on her. But he had “softened up … with me.”
“His whole self, toward the end (became) more gentle, caring, thoughtful.”
The worst he’d even been to her was in their initial weeks of dating. “A lot of girls like the bad boys.”
Saw hope in him, that he needed love in his life.
“Me staying with him made him a better person in the end. He needed my love … I gave him chances, and I’m glad that I did.”
Yes, his lifestyle was risky
He had “tons” of people who didn’t like him. “I don’t know how many times i had to fight, to say there’s a different side to him.”
In one of her police statements, she said there’s a typo in that one of his perceived enemies was not SW, his friend, but a Hells Angels guy. (She couldn’t say that he definitely was an HA).
He and another friend, MK – had a falling out and over money, now they “hated” each other.
Davis would have no problem punching someone out. He had access to a gun in the past. “He wouldn’t carry it with him, per se.”
RCMP asked her to describe various objects to them. She was not shown items by them. “They said it wasn’t allowed.”
Says she initially tried to pass day planner off as her own in an effort to shield Davis from police scrutiny (before he was found dead). They ended up taking it anyways.
In police interview on March 10, 2008, was not trying to mislead police in any way.
Yes, told police “he can be a puke,” that Davis, “mentally, he wasn’t all there, that he had problems.”
Yes, told police he didn’t have a lot of friends because he can be “cocky.”
The history of domestic violence between them was “not severe.”
Dec 27, 2007 was the date she moved in with Davis on Taylor. He had been living with a friend, RMG, but he told her it was Tymchyshyn. So he lied to you? “Yeah.” (shrugged).
Davis was paranoid about police.
“He was a secretive person” and wouldn’t surprise her he didn’t tell his parents about moving to Calgary with her.
Tymchyshyn had the password to Davis’s laptop when they lived together. She didn’t.
Yes, he had used steroids in the past and his temper was worse when he did.
Agreed she told police in statement that she didn’t know what to believe when Davis said things. “Sometimes, yeah.”
On back of “scoresheet” was numbers totalling up to 287,000 (this is imputed to be dollars).
No, he never mentioned having that much money.
Davis and Tymchyshyn had been “good friends,” but sometimes called him “a goof.” But then, they’d hang out again.
She wasn’t 100 per cent sure they had a grow-operation together, Davis said it was Tymchyshyn’s but he’d help with it.
Yes, Davis used BBM “Pin” function a lot to ensure security of communications.
No, one of his oldest friends, RMG, was not at his funeral. A lot of people expected there were not.
Corey didn’t like you. “I know.” And you didn’t like Corey. “I know.”
Det. Matthew Freeman, Winnipeg police (organized crime as of Feb. 2008, now major crimes unit)
Has taken hundreds of statements from people over his 14+ years as a cop
Feb. 12, 2008 – was assigned with other OCU’s to look into General Patrol report made by Sych that Davis was missing. OCU involved because of Davis’s connection to drug trade.
Spoke with Tymchyshyn’s mom on Feb. 15, 2008, at home on Prince Rupert, last place Davis had been heard from or seen.
Spoke with her in kitchen for 20-25 minutes: “I found she was incredibly nervous and incredibly anxious.”
That led to Feb. 19, 2008 conversation with Tymchyshyn at Prince Rupert after playing “phone tag” with him for a couple of days.
He asked to speak with Tymchyshyn in cruiser car for privacy. He was not under arrest, could have left.
The tone was “fairly genial, fairly light.”
“There was no other information at that time to suggest anything else had happened” (it was missing persons case).
Tymchyshyn said he met Davis via mutual friends in summer 2007, were former roommates on Hargrave.
That he and his girlfriend had a rocky relationship.
Took Tymchyshyn’s phone number and DOB.
What Tymchyshyn told him: (according to Freeman’s notes and recall, in italics) he last saw Davis on Feb. 6-7 in early afternoon at Tymchyshyn’s mom’s home. He came over there.
They were supposed to go to a hydroponics store in Davis’s Jeep.
Said Davis visited with him and mom for 30-60 mins, “was in good spirits.”
Had seen him using his BB and texting.
A white-coloured cab came, he couldn’t say what company.
The driver was an East Indian male who was clean shaven and had black hair.
Davis appeared to be familiar with him because they shook hands.
Davis took a black suitcase and a blue Rubbermaid container out of his Jeep and put them in cab.
Was not aware where he was going.
Davis said he “was going out of town for a few days, that (Tymchyshyn) needs to come to pick him up when he returns.”
His other friend, RMG, was to come get the Jeep from Tymchyshyn, that the keys were left with Tymchyshyn for that purpose.
Tymchyshyn admitted he owed Davis money for cocaine, $18,000.
“He made it clear to us it was for personal cocaine use.”
The debt had accumulated over 30-45 days,
He had repaid that amount to Davis through income at his legitimate job;
And also by lending Davis the use of his Chevy Avalanche “for a period of time.”
The Avalanche had been returned to him by RMG on Feb. 12 or 13. “The debt had been paid, and now it was OK to have the truck returned.”
Some East Indian males had been using the Avalanche.
Tymchyshyn said “he was concerned about Chad and had no idea where he’d gone.”
Birth certificate of a man named Siran was found in the Avalanche when he got it back, Tymchyshyn had said.
Freeman: Kris Brincheski’s name never once came up in missing person’s investigation.
Freeman says he never got a call from a man named Michael Goulet or from Dino’s storage.
Admits he had no “baseline” to judge Tymchyshyn’s mom’s behaviours and mannerisms.
Tymchyshyn never said he sold cocaine.
“I was actually kind of surprised he (Tymchyshyn) acknowledged the debt in the first place.”
ADMISSION OF AGREED FACTS
Police were tasked with finding out of taxis (white ones) dispatched to 703 Prince Rupert after 12 noon on Feb. 6, 2008
There’s no record of any cab being dispatched.
Spring Taxi could not provide records because they no longer existed. The company does have white cabs in its fleet.
Day begins with two questions from jurors, who want to know how much cocaine $18,000 could buy and at what designation [wholesale or retail]. They also want to know if there was a delay in asking Spring Taxi for their dispatch records. Justice Brenda Keyser acknowledges the questions on the record and asks them to be patient and hear all the evidence before deciding to seek answers.
Next witness, Lori Davis
Is Chad Davis’s mother.
Calls Davis, “my baby boy,”
Says he was a “physical fit buff” and thought he was a good-looking guy.
Davis struggled in school, “he had to learn everything the hard way … like a wild stallion sometimes.”
“I talked to him all the time. He called me daily, generally … it was the norm for us to talk to Chad every single day.”
Even if he left town, he’d still phone, even if the details he gave were sketchy
“It would be abnormal, absolutely” to no hear from him every day.
He liked to look good, liked “bling” like jewelry and watches.
He was “meticulous” about caring for his car, “it was his prized possession.”
“He told us he would trust no one with his car except for his dad.”
Davis had two big screen TVs.
“Chad would always make it clear to us he didn’t trust his friends … he didn’t lend anything out. He didn’t trust anybody.”
She did not know him to take taxi cabs, that if he ever needed a ride, he’d call his dad.
Phone was attached to dad’s hip: “the Chad phone.”
“The bottom line is we loved our little boy, we wanted to keep him safe. For 22 years all we wanted to do was keep him safe and we couldn’t.”
Davis “didn’t like rules … was extremely defiant.”
She became aware when he was 19 that he was selling drugs. She says she sort of “stalked him” to keep tabs on what he was up to.
She and Davis had talked about him getting out of town to get a fresh start.
As of fall 2007, he had been living in suite on Taylor, alone.
He asked for help moving out of there because he wound up in jail for a short time.
She and husband “put his stuff into storage.” – Dino’s Storage.
For the couple of months before he went missing, had been living with Tymchyshyn.
She didn’t know he moved again after living with Tymchyshyn.
Some of his things – like a black sectional – wound up in her home because Davis was afraid it would get wrecked in storage.
Davis came for dinner on Sunday, Feb. 3, 2008, stayed about 1-1.5 hours (usual amount of time).
Saw him next day, Feb. 4, when he “popped by” to deal with a car issue.
After this day, 48 hours passed and she began getting worried because they hadn’t heard from him.
The only time he had stayed out of touch for more than 48 hours in past was when he was in lockup and couldn’t access phone.
He drove a Jeep Grand Cherokee. She saw it when she and husband went to go pick it up from Tymchyshyn “the next week.”
It was Chad’s dad who went to door to get keys. They drove vehicle to their business.
Says she quickly looked inside it, saw a case of water bottles and a box of cleaning supplies. And, a big speaker.
She did not see a suitcase nor a rubbermaid container inside.
This was around Feb. 11-12.
Police eventually called to ask to search the Jeep, now parked in their driveway. “I can’t recall the exact date.”
Police took vehicle and then gave it back.
After Davis’s homicide was discovered after he was missing for 189 days, RCMP wanted the Jeep.
On March 6, 2008 told WPS missing persons investigator she believed Sych, the girlfriend, “had lied in the past,” was emotional and temperamental in her view.
Davis was a “hot head,” had a temper.
She knew Davis had a tattoo.
“Yes, he was secretive, absolutely.”
He wouldn’t give parents his apartment number on Hargrave.
“He kept us absolutely totally protected from his friends – he trusted absolutely no one.”
“He changed phones like he changed underwear,” she told police.
The last number he had came up under the name ‘Ray Sanchez.’
“He never appreciated rules,” “didn’t have a firm grasp of cause and effect,” told police.
She didn’t know Sych was even in town prior to Feb. 6, 2008.
Sych had once asked Davis’s parents for $100 when he upped and left her with no money. She never asked again.
She was totally worried about the lifestyle Davis lived, was aware violence was sometimes involved.
She cannot recall Davis having a red Infiniti prior to his Jeep.
Was not aware that Davis had loaned the Infiniti to Tymchyshyn when he was in jail, as defence contends.
“He could be mean … to others. He wasn’t mean to me.”
At the Sunday dinner on Feb. 3, 2008, Davis didn’t mention Sych was back in town.
Sgt. Ralph Lucas, WPS forensic identification unit
Twenty-eight year veteran of the service, 12 years in ident.
Was assigned to Davis missing persons investigation on March 5, 2008, to examine Jeep. Reviewed prior reports.
Yes, there are things now he wished he had seized as part of the investigation.
10:50 a.m. March 5, Jeep (1999 black Grand Cherokee) at PSB for exams. No exterior damage found.
An older am/fm unit inside the back, looked as if new stereo installed.
A “box speaker” in the back cargo area.
Also in cargo area: “little bits of black coiled plastic.” He thought likely related to installation of stereo.
Two packs of gum, CDs, vehicle registration and a “U-type” lock in glove box.
He taped for hair and fibre, swabbed areas for DNA and tested for blood. None found. Fingerprinted as well.
The bits of plastic were not seized, only a photograph of them remains.
Was not aware of any DNA results as a result of his work this day. He agrees the police procedure of testing for blood with “hemosticks” can result in false positives.
Automotive installer, had met Davis through the Canad Inns club scene and agreed to install a new system in his Jeep.
Thinks he worked on the vehicle – over a two day period – before Christmas 2007.
Says the Jeep had a factory stereo which he removed. He cut, not drilled a new bracket plate.
No plastic was drilled by him. It’s all metal, he said.
The subwoofer box was not drilled at all.
The small plastic shavings Lucas noted [shown picture] were not from any work he did.
He cannot remember if he did any vacuuming of the vehicle when he had it.
RCMP Cpl. Maria Forester, forensic analyst [second appearance]
At 3 p.m on July 28, 2008, she met with lead homicide investigator for RCMP, was given a speaker box and a box of cleaning supplies from the Jeep.
July 29, 2008: Did a white light exam of the Jeep, “particularly in the hatch area.”
Also did hair and fibre tapings, used forensic light source as a “followup,” was aware WPS went over the vehicle.
Tests for blood in the hatch area were negative.
Box of cleaning supplies: There was a bit of black plastic attached to a green cloth in the box, and a second bit found as well.
“They were very similar to the black coil found at the autopsy.”
Dec. 11, 2010: A reexamination of the vehicle to get measurements of the hatch. Was 100 cm across the top, 115 cm at the bottom and 78 cm high.
The barrel, she recounted, was 90 cm tall and 59 cm in diameter.
The barrel fits in the back. “Yes it does. If it’s lying down.”
Sept 19, 2012: Experiments done with a similar vehicle to see if barrel of similar kind and size fits.
That vehicle, however, has different wheel-well humps than Davis’s vehicle.
The interior of the hatch not measured.
The shavings WPS noticed and photographed were never on the RCMP homicide file.
Day 5: Stuart Davis
Chad Davis was his son.
“Chad would talk to me every day, every other day.”
They had very open and “very specific” communication.
He didn’t pry into Chad’s business out of a desire to not drive him away by making him angry.
He carried his cell with him at all times, Chad would call him anytime.
It would be “very abnormal” for the two not to talk.
“Not to my knowledge” would Chad take cabs.
“He took real pride in his possessions and his looks.”
Chad would not lend his things out.
Chad was “very leery” about his his friends, didn’t trust them.
He was aware of his having a red car before, it had been delivered to Stuart one day at his office, didn’t know by whom. This was the summer before his disappearance.
⁃Chad came around all the time, every other weekend for Sunday dinners.
⁃Chad always had a cellphone, a variety of names would come up on the call display.
While he didn’t see any activity directly, “I assume he dealt drugs.”
Chad had expensive tastes, including a $10,000 watch
In fall 2007, he knew Chad was in jail.
He went into his Hargrave St. apartment at the time to pack up his things – using boxes from his business to put smaller items in.
He took them to Dino’s Storage and rented a locker there using his own credit card.
Jan. 13, 2008: Chad was moving out of his Victor Lewis (Taylor?) apartment and used the same mover as Stuart had previously in the fall.
Chad brought furniture to their house. In the moving van, saw his projection and plasma TVs, along with boxes Stuart had given him to pack with.
His understanding is the truck was bound for Dino’s Storage, but couldn’t say for sure.
On this day, Chad gave him the key to the storage locker, but not an electronic passcode.
Feb. 3, 2008: Chad came for Sunday dinner. Was “pleasant” that day. Was to see his son the next day to take his Jeep (Stuart was its registered owner) to get an immobilizer installed.
They traded vehicles on the 4th of February, trade back.
Spoke to him on Feb. 5 – Chad called him. He wasn’t aware of any impending “big life change” for Chad.
Started to get worried the next couple of days when he didn’t hear from him.
By that Friday, his wife called police to see if they had any information.
He contacted Tymchyshyn’s mom on Feb. 12. He went to 703 Prince Rupert Ave., spoke with Tymchyshyn and was given the Jeep’s keys.
He drove the Jeep back to his business.
He looked inside it. There was a package of water bottles, a box with cleaning supplies.
He took the box out of the vehicle and stored it in an officer storage area. There are no plastics in that area or anything from which “plastic shavings” could be derived from.
“There’s no chance of anything coming from that end.” “We just used it for storage.”
All people at the business had access to the room. In the garage of the workplace, there’s no tools that could generate plastic shavings.
He was asked to bring the box – which he’d moved to his personal garage around summertime – to RCMP in July 2008.
“The Jeep was very clean.” He himself had noticed the plastic shavings inside after putting the seat down.
“It’s a black car, so anything black would be hard to pick out.”
He spoke with Courtney Sych who told him about the key to the storage locker in the Jeep. He didn’t find it.
He matched up the key he had to those in the vehicle. They didn’t match.
On Feb. 12, 2008 – had given key he had to locker to WPS.
On March 1, 2008 – he went to Tymchyshyn’s mom’s again. Led to a phone call from Tymchyshyn that day.
He wrote down the number Tymchyshyn called from.
They spoke of storage locker. Tymchyshyn said he had one at Dino’s, where he kept his stuff, his “coke,” but Chad didn’t have one there.
“He was claiming it was his locker, not Chad’s.” “He said Chad did not have a locker at Dino’s.”
March 5, 2008: WPS came to take car for missing persons investigation. Stuart said he didn’t clean it, wanting to “preserve it” for the police.
Police ultimately told him he could come and collect it. He asked what he should do with it. “You can do whatever you want with it,” he said he was told. “They were finished with it.”
July 28, 2008: RCMP want the Jeep. He also handed over the cleaning supplies that were inside.
He was aware Chad’s credit card statements came to his house. After Feb. 6, there was no activity on them.
Tymchyshyn’s cell number as of March 1 was 995-8224.
He identified a DVD player seized by RCMP in the homicide probe, along with two remote controls – one he said he bought Chad and programmed himself.
Through pictures he was shown, identified two TV sets as belonging to Chad.
When he first rented a storage locker at Dino’s in fall 2007, said he doesn’t remember if he had to supply a lock for the locker or not.
Yes, he kept conversations with Chad to “non-threatening topics” out of fear of losing relationship with him.
“To my knowledge,” Chad didn’t take cabs, but acknowledged that if he did in connection with his drug-activities, he wouldn’t know that.
He had trouble understanding why Chad and Courtney were together.
He had 8-9 numbers in his cellphone which Chad had used in the past.
“I did not spend a lot of time” going through Chad’s Jeep after picking it up.
He had only been in the Jeep once before – the day he took it to immobilizer appointment.
Couldn’t say how long Chad had the vehicle at that point.
Says no, he didn’t have eyes on the box in the storage room at all times.
There’s no reason why Davis couldn’t rent a locker on his own, he agreed.
He had no knowledge of the locker being Tymchyshyn’s since Jan. 31, 2007.
A red G35 Infiniti “rings a bell” for him.
He couldn’t say who had the red vehicle when Chad was in jail.
It could be that Chad’s friend RMG was the person who brought it to him at the office that day. From all he knows is someone had access to use it, possibly just to deliver it to Chad.
He had no impression of Tymchyshyn as “a thug” or was difficult to deal with.
Det. Sgt. Will Degroot, Winnipeg police organized crime unit
Winnipeg police for 15 years, variety of roles/assignments.
Feb. 13, 2008, had met with Davis’s parents to search for ways to further the missing persons investigation.
Stuart Davis gave him key to Dino’s Storage locker.
Wanted to go there to see if anything had been take to suggest Davis had moved.
Met with Michael Goulet, the manager there.
Found out from him that Davis had a locker there, but in Tymchyshyn’s name.
They walked over to it and Degroot allowed to look inside.
Used the key Stuart Davis gave him to unlock it.
Just odds and ends inside, nothing of apparent significance. “Just furniture and household items.”
Got a printout showing times when facility had been entered.
Knew of Tymchyshyn. Never got a call from him asking if he could clear out the locker, knew nothing of any such request.
Price of cocaine fluctuates on supply and demand.
In 2008, he said price was lower than today. A half-kilo would be about $18,000.
“The more you buy, the better the price.”
Could not speak to consumption, as in how much of the drug a person could consume over a period of time.
On Feb. 13, 2008, Degroot also contacted Blueline Taxi and Duffy’s. No record of dispatches. Other officers were looking into other cab companies.
He saw two mattresses, some stereo equipment and other belongings in the locker.
In 2008, was facility manager of Dino’s Storage on Orange Street, not far drive from Polo Park.
Most popular locker to rent is a 10×10 [100 sq. foot] space.
It’s a private locked facility.
The lockers have “roll-style” doors about 4 ft. wide, like a small garage door.
People drive onto property, there’s loading docks.
One has to key in a unique 5-digit passcode at one door to get in, then again just past that door to get inside the facility proper and access the lockers.
Photo ID is required to rent a locker. Each person is given own code only known to them unless they give it to someone else.
That means there’s multiple codes to open the same main doors.
The tenant is required to either buy a lock for the locker from Dino’s or bring their own.
The ones they sold then came with two keys.
Dec. 31, 2007. Davis and Tymchyshyn came in to rent a locker. It was for Davis, but he couldn’t rent it because he lacked ID.
Tymchyshyn rented it for him. He witnessed this.
He took photocopy of Tymchyshyn’s driver’s licence, identified it in court.
Was shown contract which he said he saw Tymchyshyn sign and initial.
Locker #339 was rented. A 10×10 space.
The security code to the electronic locks is on the lease agreement.
Both men knew the code.
Didn’t see them use the locker that day, but said “it’s a big building.”
Cameras watch over areas [not in lockers themselves]. They record 7 days and then loop back and record over the footage.
On Feb. 13, video of Feb. 6 was no longer available.
In March 2008, there was a “catastrophic” failure of the hard drive.
Some of the facility’s doors close automatically, some don’t.
When the electronic code is used for entry and exit, the computer records it, along with the time.
Records show on Jan. 20, 2008, Tymchyshyn’s name, passcode was used at door #3 at 2:20 p.m.
On Feb. 6, 2008, the code was used at 8:02 pm for entry at door number 3. At 8:13 and 8:14 pm code was used again for exit.
Then again on Feb. 12.
On the Feb. 6 occasion, it appeared one door didn’t close properly – may have been propped open – and triggered an internal-use-only alarm in the computer. It was resolved when door shut.
On Feb. 8, access was denied initially because the code wasn’t punched properly when only 4 of 5 numbers were punched.
On Feb. 12 at 11:25 a.m., the code was successfully used.
On Feb. 13, got visit from WPS officer who wanted to look in locker for missing persons investigation.
The police produced a key. It was just household items inside.
Feb. 22, Tymchyshyn showed up and he called police. “I told them that Corey was there emptying out the locker … was it Ok for the stuff to be removed.” “They told me yes, it was OK.”
Tymchyshyn was with another man, shorter, smaller build and maybe wearing glasses (ed note: Brincheski has been wearing glasses in court).
He only said hello, no other interactions with them.
on Sept. 4, 2008, he went to RCMP where he was shown random photos. “One I recognized,” he said. It was someone he saw at the facility in February.
He was about “70 per cent” it was the person. “Seven out of 10” was what he told RCMP.
There’s possibly fewer things as despairing in our youth justice system than witnessing a young future handed over to an overtaxed and overstressed mental health system to figure out.
Thankfully, it happens relatively rarely, but it did happen this week to J.
He’s a now 18-year-old man who, despite signs of some hope in recent months, was deemed unfit to stand trial on some [relatively minor] charges and turned over to await disposition as to his treatment by the Criminal Code Review Board.
As his lawyer put it: “It is a life-altering verdict to him.” And it’s true.
Will he end up in a hospital or on the street? It’s unknown. Winnipeg Child and Family Services is involved and keen to find him assistance wherever it can, but an agency representative was noticeably absent at the Manitoba Youth Centre this week when Judge Sandra Chapman found J unfit and ordered him over to the CCRB. It was surprising because CFS had attended court hearings in the past out of a sincere wish to see him get help, Chapman was told.
J first came to the attention of police and the system on Jan. 9, 2012, when he and his mother got into a fight inside their home.
High on drugs, he became enraged to the point of threatening her. “I don’t care if you guys call the cops — I’ll take you guys all out and kill you,” J said, just before retreating to his bedroom.
Police arrive at the mom’s bidding and find him in his bedroom, high on the anxiety drug Restoril, mellow from marijuana and packing a small kitchen knife. He’s taken to the Manitoba Youth Centre. He gets bail.
Fast forward to Jan. 27, 2013: Police find him at 1:20 a.m. reeking of booze on McPhillips Street. Again, he’s a direct lockup at the MYC, then bailed out shortly after.
The final shot at release he saw ended around 11:50 p.m. March 3, while he’s now staying at a CFS “shelter” which also doubles as a hotel on Pembina Highway.
J became so angry with his CFS watcher he began assaulting him, then proceeded to take a chair outside and hurl it at the social worker’s car several times. Nothing was broken and the worker was uninjured. He was again detained at the youth centre.
And then the psychological assessments begin. Over the coming months, J would have three mental-health assessments conducted by doctors, two of which were tendered in court. The third was excluded because it didn’t deal with mental fitness-related issues.
After the first, it was considered he was “just being difficult,” and a “defiant young man.” One doctor found he “could be fit” at some time, but when, exactly, was naturally unknown. Time marched on.
Months later, J’s advocate told Chapman this week, it was clear the young man was “decompensating” — deteriorating — possibly because he was being held in a jail and had been there for a couple of months.
As one doctor put it: It was “no longer clear where the boundary line was between provocative behaviour (what the earlier doctor saw) and psychosis.”
In one example, the forensic psychiatrist said J would “stare (him) down.” The belief was J was now “presently actively psychotic” — a kid of 17 at that point who admitted he thought he could tolerate life inside Lakewood, the maximum-security youth facility in Manitoba.
There, inmates receive an hour of recreational time each day. The rest is spent in a locked room and under constant observation.
J said ‘no’ many, many times, when Chapman asked him the following: Do you know what’s happening here? Do you know what your lawyer is? Do you know what my role is?
Everyone — Crown, defence and Chapman — expressed reluctance at putting such a young man into “the system” [their words] on such minor charges. But there was little else to do.
Everyone involved hopes he’ll find his way to a hospital and adequate treatment from doctors. He was to be released as soon as practicable from the MYC.
But given some of the stories that have come to light about the mental health regime in Manitoba (and Canada, to be honest) of late, I can’t help but wonder if J is now simply to be cut adrift, possibly lost for good. Maybe institutionalized, possibly to be released and wind up on the street.
I note grimly that immediately, the court ordered the review board was to receive an extension of the time it is required to conduct a disposition hearing for J — to 90 from 45 days.
The ink’s not even dry on the paperwork, but already exceptions are being made.
And they’re not to accommodate J, but to accommodate the system. And it’s sad.
Also sad — and something I wasn’t aware of, is how two cells at the Manitoba Youth Centre are deemed “psychiatric beds,” a reality J’s lawyer called “completely unacceptable.”
What she meant, I believe: Jails are for criminals, suspected and otherwise.
“Psychiatric beds” are for sick people who need treatment, not incarceration.
As well, two beds at the above-mentioned Lakewood max facility are also designated for psychiatric-related inmates, court heard.