The Crime Scene
with James Turner
03/10/2014 9:07 AM
The practical reality of policing in a city like Winnipeg can be summed up like this:
There's a finite number of officers to deal with consistently increasing demands on their time and efforts, and the court system isn't necessarily in tune with the weight of this reality, at the end of the day.
That's the bottom-line message Winnipeg Police Association President Mike Sutherland had for me Monday morning.
Sutherland called to discuss a column I wrote this weekend on "gating" — what's been described as a police tactic where offenders in jail are suddenly picked up on months (and sometimes years) old outstanding arrest warrants soon after they leave the confines of custody.
The column was written as a result of two court cases in which repercussions came about as a result of arrest warrants being served by police in an untimely way.
The column focused on what I see as the need for procedural fairness for all accused persons at all levels within the justice system and called for an end to the practice as described.
Based on what was disclosed on the court record, and the absolute lack of any explanation of why events unfolded as they did, I stand behind the piece and the conclusions made.
Sutherland didn't call me up to criticize or chide. He called to have a productive discussion.
In the decades of being a police officer, he told me directly, he's never seen a suspect intentionally "gated." Nor has he seen a colleague intentionally engage in the practice.
"I never did it. I don't know of any officers that did it," he said.
Look at the numbers, he urged. Based on 2013 records, 640 new warrants were added to the system each month of that year.
Based on the 2013 figures, said Sutherland, there were between 15,000-20,000 individuals in the system and between 25,000 and 30,000 warrants outstanding.
That's a staggering volume, for sure.
"We only have so much capacity to execute warrants," said Sutherland. "There's a lot of warrants, a lot of criminal activity in this jurisdiction."
In addition to the volume of outstanding warrants, there's good reason to believe officers aren't even aware a warrant for a suspect exists, given their need to prioritize workload and tasks in their days.
In addition, there's only a handful of officers working on the warrant apprehension squad, he said.
And largely, their focus is on tackling the most serious outstanding warrants (public safety being the priority) first.
They can't get to all of them, and - this is key to the police mindset - an offender sitting in custody is considered to be a low threat to public safety, as one might reasonably expect.
Also, Sutherland believes, workload and budgetary constraints have resulted in the WPS internal court and arrest processing units no longer checking for outstanding warrants on suspects detained at the remand centre, ones who appear for a bail hearing from inside there.
Staff at Headingley Correctional do a check for outstanding warrants when offenders are admitted to custody, but not on release, said Sutherland.
Then there's the hurdles officers face when executing a new arrest warrant at federal institutions like Stony Mountain.
In effect, Sutherland said, it's a mountain of paperwork and a significant procedural effort to get a warrant served there.
It's worth noting that the two cases that led to the reports on "gating" both involved offenders serving time at Stony [and elsewhere in the federal system].
In the end, officers have to carefully prioritize work hours in order to maximize the benefit they bring to public order, he said.
The responsibility for police is huge and the workload requirements in processing and executing warrants equals that, said Sutherland.
UPDATE: 6:55 p.m.
Winnipeg police Chief Devon Clunis sent out the WPS official response to the gating contoversy this afternoon. Here it is, in full, for the record.
A Letter to the Public from Chief Clunis
"The Justice System is made up of many parts including; The Judiciary, Prosecutions, Corrections, Police, and the most important in my view, The Public. It is critical that we work cooperatively in fostering and maintaining confidence in our justice system.
It is not my intent to malign any member of the system by responding to recent allegations leveled at the police service. My preferred practice is to address issues with respective leaders in a constructive manner and I've taken those steps in response to the recent articles regarding "gating". However, as this issue was brought to the public's attention casting a negative light on the Service and its members, I must respond in order to accurately inform the public.
It is important that the public understand the reality of warrants within the justice system.
- At any given time there are over 20,000 warrants in the system.
- In 2013, the WPS added 7,668 new warrants to the system (average of 639 per month).
- The WPS executed 7,412 warrants in 2013.
- Our officers have an immense workload. Persons who are in custody do not take priority over subjects who may pose an immediate threat to the public.
- In the instances recently reported, police were notified of the location of the subjects and the warrants by a third party. We responded to deal with those warrants.
To dedicate our time to processing sentenced prisoners holding warrants is challenging. The process for arresting an in-custody prisoner is time consuming and in some instances, requires obtaining a warrant as well as a removal order to release the prisoner from the institution for processing. Current calls for service wait while we process the prisoner.
This is simply a matter of priority in making the best use of limited resources.
We won't apologize for placing priority on citizen's calls for service and dealing with more pressing public concerns. The resources within our system are inadequate to meet the demand. Many processes within the justice system are arguably antiquated, inefficient, and challenging. Reform is needed. I'm hopeful that we can work cooperatively with our partners in finding mutually supportive solutions to these system challenges. Until that time, we will continue to utilize our resources to effectively meet the needs of all citizens."
[Bold emphasis added]
03/8/2014 5:33 PM
As one might expect in a first-degree murder case, there was a lot more going on under the hood than surfaced at the trial proper in front of the jury.
The trial of Corey Tymchyshyn and Kristopher Brincheski for the Feb. 6, 2008 killing of Chad Davis was no different in this respect.
Over the coming weeks, in dribs and drabs as time allows, I'll be presenting a series of posts related to pre-trial issues and other evidence that came up over the many years this case took to investigate and get to a hearing.
By now, it's not news to anyone that the two accused were convicted of the charge and have begun serving their life sentences without a chance at parole for 25 years [or 15 if 'faint hope' is granted].
Appeals are widely expected, but have yet to be filed. It may well be that the decision, presented in full below, could form a major part of any appeal Tymchyshyn may file.
Followers of this blog will know that recaps of the Crown's fascinating circumstantial case were presented in full as much as was possible, and can be accessed here.
Today's post centres on a key 2011 pre-trial decision by Justice Brenda Keyser who, aside from the preliminary hearing in provincial court in 2010, appears to have held conduct of the case from the bail stage right through the trial.
Tymchyshyn moved to have his case severed from that of Brincheski's, largely on the grounds the statement of Alex Brincheski was deemed by him to be uber-prejudicial to him.
In the end, the Brincheski statement was edited at trial by the Crown to remove any comments he may have made relating to Tymchychyn.
Keyser's decision is a quick, but informative, read on the legal hoops needed to jump through in order to sever an accused from what the Crown says was really a conspiracy case where it was impossible to separate the two men's cases.
Note how Keyser signals the Crown was uncertain at this stage whether Alex Brincheski's statement would ever be heard by the jury at all. It wound up being a key factor in the case against Brincheski, by my reading.
03/3/2014 6:22 PM
Just a quick breakdown of what the Winnipeg Police Service helicopter got up to last year. Full report presented below.
- Budgeted: 1,000 flight hours (986.2 flown in 2013)
- Bird Strikes: 3 -- the last being in May 2013 (no significant damage or injury)
- Laser 'attacks' -- 21 between program inception and end of 2013
- Suspects in laser attacks apprehended -- 8
- Noise complaints -- 20 by 17 people (2011); 10 in 2012; 4 in 2013
- Public 'on ground' displays of helicopter -- 4 listed
- Busiest month -- May 2013 (105.7 hours of flight time)
- Average -- 82.2 hours a month flown
- Days of flight time lost -- 61 (maintenance); 32.5 (weather); 20 (staffing)
- Most frequent incident attended -- (domestic disturbance) 283 calls
- Least common -- (Stolen vehicle, abduction, graffiti, bomb threat, shoplifting) 1 each (not inclusive)
- Total incidents attended in 2013 -- 2,793
- Arrests linked to these calls -- 200
- Vehicle pursuits Air1 involved in in some fashion -- 30
- Call for service, busiest month in 2013 -- May (320 calls with 33 calls pre-empted)
- Flight density -- greatest over North and West ends of Winnipeg
- Operational costs billed to the province -- $1.518 million (2013), a rise of $190,621 over 2012
- Rough cost per flight hour to province -- $1,539.24 ($1.58 million divided by 986.2)
02/17/2014 3:00 AM
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.
Allegations made in the Crown's opening argument can be found here [required reading, really].
Although long, a close reading of Alex Brincheski's statement below 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."
- "Corey's garage."
Was he present when it happened?
- "I don't know." He didn't ask if Kris was present.
Are you sure of that, sir?
- 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 their 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."
CROWN CLOSES CASE
About James Turner
James Turner rejoined the Free Press as a justice-beat reporter in August 2013 after a number of years away working at other media outlets, including the Winnipeg Sun and CBC Manitoba.
A reporter in Winnipeg since 2005, he got his first taste of the justice beat as a former Free Press intern, then as the newspaper's police reporter from 2008-09.
Among the topics he's eager to cover are youth crime, street gangs, child-welfare and how the mental health and justice systems intersect.
An avid blogger and early adopter of Twitter, James (@heyjturner) loves to write long, much to the frustration of his editors.
He despises animal cruelty. He loves 80s music and his tubby labrador retriever.
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