R. v. Herntier, 2013 MBPC 15

CITATION: R. v.

Herntier, 2013 MBPC 15 Date: 20130319 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Brian Bell and Kusham Sharma, ) for the Crown ) and ) ) ) Theodore Herntier ) Martin Glazer and Scott Newman, Accused ) for the Accused ) ) Reasons for Decision delivered ) March 19, 2013 ) NOTE: Pursuant to s. 539(1) of the Criminal Code an order was made directing that the evidence taken at the inquiry shall not bepublished in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused, he or she isdischarged or, if he or she is ordered to stand trial, the trial is ended.

Pullan P.J. [1] These are the reasons for decision on the preliminary hearing into the allegation that on or about the 28th day of September,2004, at or near the City of Winnipeg, Theodore Raymond Herntier committed second degree murder on the person of David JosephBoulanger (also known as Divas) contrary to s. 235(1) of the Criminal Code. [2] In considering the evidence presented by counsel at the preliminary inquiry, the Court is bound by, and much assisted by thereasoning in the recent decision of the Manitoba Court of Appeal in Her Majesty the Queen and Susan Maureen Eckstein, [2012] M.J.No. 352, 2012 MBCA 96, delivered October 18, 2012.

Chartier J.A., as he then was, for a unanimous court, opined: A few points need to be made on certain distinctive evidentiary features which exist at the preliminary inquiry stage. At this stage, if theCrown's evidence is capable of belief, it is to be believed. The preliminary inquiry judge is not to assess credibility or generally weighthe evidence, nor is the judge allowed to draw inferences from the circumstantial evidence. Rather, that judge is to assess thereasonableness of the Crown's suggested inferences.

This requires a "limited weighing" of the whole of the Crown's evidence (see R. v.Arcuri, 2001 SCC 54 at paras. 29-30). While the accused may disagree with those inferences or prefer other inferences, such differencesof opinion are not proper considerations at this stage of the proceedings.

Finally, when conducting this assessment, the preliminaryinquiry judge must bear in mind that "where more than one inference can be drawn from the evidence, only the inferences that favour theCrown are to be considered" (Sazant, 2004 SCC 77, at para. 18). (para.18) [3] Further, in analyzing individual pieces of evidence, the Court in Eckstein was clear in its direction as to the appropriate meansof analysis: ….Engaging in such a piecemeal analysis is not the appropriate way to consider circumstantial evidence.

That evidence must be taken asa whole and its cumulative effect is to be considered when making the assessment on the reasonableness of any inferences to be drawn.(at para. 22) [4] The role of the preliminary inquiry was highlighted by my colleague Judge Sandhu in R. v. Castel, (Man.

PC): …A preliminary hearing is not to be a rubber stamp for charges laid by the Crown, and a justice so presiding is not to lose sight of thefact that one of the purposes of such a hearing or inquiry is to "protect the accused from a needless, and indeed improper public trialwhere the enforcement agency in not in possession of evidence to warrant the continuation of the process". R. v. Skogman, (1984) (SCC), 13 C.C.C. (3d) 161 (S.C.C.). (at para. 20) [5] Judge Joyal, as he then was, in Her Majesty the Queen and Danny Desmarais, (Man. PC), in dischargingMr.

Desmarais, commented on the reliability of the evidence adduced by the Crown in that case: …There are many examples of unreliability as it relates to this witness and while they are not factors that can be considered by this courtin its application of the Sheppard test, they nonetheless constitute evidence which supports and emphasizes the witness's owncharacterization of what little she is able to remember and why.

When she says that she was so drunk that she did not know what wasgoing on around her, a preliminary inquiry judge is able to look at that acknowledgement, along with all of the other evidence and safelydetermine that no reasonable jury, properly instructed, could convict the accused of the offences charged. (at para. 14) [6] The evidence in this preliminary inquiry was primarily received through viva voce evidence, together with an AgreedStatement of Facts filed as an exhibit in these proceedings. A. Agreed Statement of Facts [7] David Joseph Boulanger, who was also known as Divas B, lived as a woman.

Some of the witnesses presented by the Crown,who will be referred to in these reasons, also lived as women. David Joseph Boulanger, together with these witnesses, will be referred toas “she” or “her” in accordance with their expressed preference. [8] According to the Agreed Statement of Facts, David Joseph Boulanger was reported missing to the Winnipeg Police Service byher sister Tammy Boulanger. Tammy Boulanger last spoke with Divas on the phone September 28 or 29. [9] Gail Dalman, of Provincial Family Services, last saw David Boulanger at Ms Dalman’s office September 28, 2004.

DavidBoulanger was told to return later in the day to collect an assistance cheque, a procedure followed in the past. David Boulanger neverreturned for her cheque. [10] Shawn Leforte showed David Boulanger a suite the morning of September 29 between 10:00 and 11:00 a.m. David Boulangerrented this suite for October 1, 2004 but Shawn Leforte never saw her again. [11] On November 3, 2004, two hunters advised Portage la Prairie R.C.M.P. they had located what was believed to be a body.

Thehunters stopped to use the washroom in a wayside park about 10 kilometres east of Portage la Prairie, Manitoba, in the median along theTrans Canada Highway. The body was in the trees and brush behind the washroom. [12] Cell phone records show that on September 30, 2004, from 8:40 p.m. to 8:51 p.m., Mr. Herntier’s cell phone moved from aWinnipeg calling area to a Portage la Prairie calling area. At 11:02 p.m., the phone was still in the Portage la Prairie calling area. Thephone was back in the Winnipeg calling area the morning of October 1, 2004.

Phone records do not disclose any other date or time thatthat phone was in the Portage la Prairie calling area for an extended period of time. [13] On September 30, 2004 at 8:40 p.m., Mr. Herntier called his friend Ken Ellison from a rest stop just east of Portage la Prairieoff Highway No. 1. The only rest stop in the area that Mr. Ellison knew of was by a bridge between the two lanes of traffic. Mr. Ellisonassumed that was where Mr. Herntier was calling from. Mr. Herntier told Mr. Ellison he was driving his Toyota truck and had a flat tire.He asked Mr. Ellison to find him a new tire, or come and pick him up. Mr.

Ellison could not locate an appropriate tire and was about toleave to pick Mr. Herntier up, when Mr. Herntier called back. He said he no longer needed Mr. Ellison’s assistance, as his niece wascoming to get him. [14] On September 30, 2004 at 8:52 p.m., 9:06 p.m. and 9:32 p.m., Mr. Herntier called his friend Patrick Catellier from a rest stopon Highway No. 1, east of Portage la Prairie near the river. Mr. Herntier said he had a flat tire on his Toyota pick-up and needed helpfinding a spare. Mr.

Catellier could not help and said that their contact ended shortly after that time. [15] A search of Manitoba Vehicle Branch records showed that licence number BSA 874 was associated with a 1987 Toyotapick-up truck, registered to Theodore R. Herntier of 755 Wall Street, Winnipeg, Manitoba. [16] On November 30, 2004 the police went to 755 Wall Street to locate Theodore Herntier. His brother Sterling Herntier, who wasthere, told police that his brother Ted had moved to Alberta to work on the oil rigs and he last saw his brother one week ago when hereturned to Winnipeg for a short time.

Sterling advised that his brother had travelled to Alberta with a truck and was closing out hisWinnipeg business, as well as another business that he had in Swan River. [17] Mr. Herntier was the subject of a traffic stop January 19, 2005 in Swan River, the only occupant in his 1987 Toyota pick-uptruck. The truck was blue/black in colour. [18] On January 20, 2005 Mr. Herntier called investigators after attempts were made the same day to reach him. He denied knowingDavid Boulanger but agreed to speak with the investigators.

He said he was working in Alberta for the next two weeks but regularlyreturned to Manitoba on his days off. He told police he would call within one week to arrange a time and place to speak. [19] In an undercover operation, on November 9, 2005 police purchased a cube van and contents, the equipment and tools from TedHerntier’s West End machine shop being sold on his behalf by his brother Sterling. Forensic analysis was conducted on all of thematerials found within the van. All of Mr. Herntier’s equipment stored in the van was wrapped in clear, plastic shrink wrap. A roll of theshrink wrap was found in the van.

No blood was located on any equipment or wrapping.

[ 20 ] The “Take Back the Night” march, referred to by some witnesses whose evidence will be later discussed in these reasons, was held on the evening of September 30, 2004. [ 21 ] Mr. Herntier was arrested for the murder of David Joseph Boulanger on July 14, 2010. B. Witnesses

(1) Friends of David Boulanger (

a) Charles Flett [ 22 ] Charles Flett, who preferred to be known as Erin, lived as a woman and was a sex trade worker. She knew David Joseph Boulanger, known to her as Divas, since she was 13. The last time she saw Divas was September 30, 2004. Divas was wearing a velvet skirt and black tank top. At that time, they lived together on Main Street next to the West Hotel. That evening, they went to the “Take Back the Night” march for missing and murdered women. After the march, the two went to work in an area close to the King’s Hotel.

They worked for a couple of hours, went home and called their dealer looking for drugs. The dealer’s phone was off. They went back to work on Sutherland and Main. [ 23 ] Erin saw a truck pull up, and turn off his lights. Divas went to the truck, got in, and said she would be right back. Erin never saw her again. [ 24 ] The truck was a small, two-seater truck, a model from the eighties. It appeared to be raggedly painted grey primer in colour. The taillights were red and orange, and there were black bars on the black rear window. (

b) Elijah McIvor [ 25 ] Elijah McIvor, who preferred to be referred to as Alaya, was 29 at the time of her evidence. She met Divas when she was 12 years old. She last saw Divas September 30, 2004, the night of “Take Back the Night”. After the event, Alaya went to work as a sex trade worker. She saw Divas between Argyle and Waterfront Drive, on Higgins. Divas had a piece of crack, which Alaya bought from her for $5.00. With the $5.00, Divas bought two King cans of beer. Divas was originally alone, but was ultimately joined by Dixie and Erin.

Divas had just made $20.00 through the sex trade, and wanted to purchase crack. Alaya declined to accompany her, as she wished to earn more money before leaving. Erin, Dixie and Divas proceeded westbound towards Main Street. Ms McIvor never saw Divas again. [ 26 ] Alaya first spoke to the police November 5, 2004 in connection with Divas’ disappearance. She spoke to them again ten days later, to discuss an incident that concerned her. [ 27 ] She was picked up by a man on a Saturday or Sunday about 4:00 a.m. A truck was following her, passing her at Austin Street. The truck stopped.

She jumped in. [ 28 ] Alaya had been picked up by this man numerous times before, and agreed to go with him to his place of business. The first time Alaya met this person, he had asked where to find Divas, as he was infatuated with her lips. [ 29 ] At the time the man picked Alaya up, the truck was black. Previously, the truck was grey, appearing as if it were going for a paint job. The truck had a different door than before, no stereo, and a crack on the dash. The man said the truck had been broken into. [ 30 ] The truck was an older model Nissan or Datsun.

Alaya was taken to 755 Wall Street where she had been taken by this man four times before. She had also been to his house on Walnut or Hazelnut Street. On every occasion Alaya met this man, he was driving that truck. They parked in the back, and entered through the back. [ 31 ] The man tried to give Alaya alcohol. The alcohol was not labeled, and in a green bottle. Alaya did not take a drink. [ 32 ] The man said he was closing down his business and going to work in the oil rigs in Alberta. That would be the last time Alaya would see the man. There was an attempt to have sex that did not work out.

Alaya did not feel comfortable. The man did pay Alaya for her time, and dropped her off at home. Alaya recorded his licence plate number – BSA 874. [ 33 ] Alaya described the man as 27 to 34 years of age at that time, and Métis. He had previously told Alaya that he was from Swan River. The man had an eagle tattoo on his arm, his skin had acne, with holes on his face. [ 34 ] Alaya recalled last seeing Divas on the evening of the “Take Back the Night” march around 9:00 p.m. (

c) Matthew Berens [ 35 ] Matthew Berens, who preferred to be referred to as “Berens” was also known as “Dixie”. Around 2004, she worked as a sex trade worker, intermittently living and dressing as a woman. She was David Boulanger’s cousin. The last time she saw David Boulanger was when she bumped into her at Main and Logan around the middle of September, 2004. [ 36 ] Ms Berens had attended the “Take Back the Night” march with Charlene Flett, Alaya McIvor, and other friends from Sage House, a drop-in centre and safe house. [ 37 ] Her last meeting with Divas was prior to the “Take Back the Night” event.

Ms Berens was going to work at the King’s Hotel, just off Waterfront and Higgins. It was dark out when they met around 9:00 p.m. or 10:00 p.m. They decided to go to the West Hotel. They met Charlene Flett. Charlene, Divas and Ms Berens went to Charlene’s place next to the West Hotel. Ms Berens had been drinking beer that day, and later at Charlene’s. Divas had one or two beer at Charlene’s. Charlene Flett was also drinking. They were trying, unsuccessfully, to connect with a crack cocaine dealer. Concluding that the endeavour was unsuccessful, Ms Berens decided to go to work in front of the West Hotel.

[ 38 ] After five or ten minutes, a vehicle pulled up. The vehicle was a grey truck. Divas went up to it. Ms Berens had never seen the vehicle before, has not seen it since, and could not see who was in the truck. Divas opened the vehicle door, turned around, and said she would be right back. The truck was grey, older, dirty, rusty, with tinted windows. The vehicle had bars in the back. Ms Berens guessed the vehicle to be a Ford. It was a two-door, two-seated vehicle. Divas was dressed in black, including Matthew Berens’ leather biker jacket. [ 39 ] Matthew Berens saw Divas getting into that truck between 10:00 p.m. and midnight, and never saw her again.

(2) Friends of Theodore Herntier (

a) Ivan Fleming [ 40 ] Ivan Fleming had known Theodore Herntier through Mr. Herntier’s parents and his brother Sterling. Mr. Fleming was familiar with Theodore Herntier’s business on Wall Street, set up in the spring of 2004. In 2004, Mr. Herntier and Mr. Fleming saw each other almost daily. Mr. Fleming had a key to the business, permitting him access to both Sterling’s business, Manitoba Vacuum, in the front, and Theodore’s business in the rear. When Theodore closed the business in the fall of 2004, Mr. Fleming recalled that some of the items there were packed in a van, some sold, and some remained in the shop.

Sterling went to Scotland for two weeks, leaving in the beginning of October 2004. Mr. Fleming looked after Sterling’s business in his absence, but it was not very busy. Mr. Fleming might have had to enter the Wall Street premises to deal with a service call, in Sterling’s absence. Sterling also went to Los Angeles for a week or two in the fall or early winter of 2004. There was a problem with the hydro, and the landlord recommended Mr. Fleming remove as much as the contents of the business as possible. [ 41 ] At that time, Mr.

Fleming knew Divas B, through the Main Street Project, the Beat the Street Learning Centre, and through a friend. Their relationship was of passing acquaintance. [ 42 ] Mr. Fleming was aware of David Boulanger’s murder, having heard about it in the news. In response to Crown counsel’s question, he indicated that he had nothing to do with it. (

b) Andre Parisien [ 43 ] Andre Parisien operated an auto mechanics business at 751 Wall Street, Winnipeg, from April 1 st , 2004 to March 31 st , 2005. Ted Herntier operated a machinist shop at 755 Wall Street. In the front of the premise, Ted Herntier’s brother Sterling operated a vacuum shop. Mr. Parisien would see Ted Herntier three to five times a week, primarily at each other’s shops. Mr. Parisien had been inside Ted Herntier’s shop, “too many times to count”. The south wall of Mr. Herntier’s business premise, about 30 feet long, had various pieces of equipment, with space in-between. [ 44 ] Mr.

Parisien had assisted Mr. Herntier with several jobs, including removing and replacing engines in vehicles. He described the nature of their relationship as “acquaintances”. They did not socialize outside of each other’s shops. [ 45 ] Their discussions included cars, trucks, weekend activities, drinking, and prostitutes. Mr. Herntier brought up the topic of prostitutes, saying that he would pick up “the odd prostitute”. Mr. Parisien had been to Mr. Herntier’s residence at 188 Chestnut or Walnut Street, but had never been inside. [ 46 ] Mr. Parisien had seen women at Mr.

Herntier’s shop two or three times, once in the daytime and a couple of times at night. The women appeared to Mr. Parisien to be different on each occasion. [ 47 ] During this time, Mr. Herntier had a Toyota quarter-ton, two-door pickup truck. The vehicle had a modified front and back bumper, and a grill over the back window. Mr. Parisien observed this truck, over the time he knew Mr. Herntier, to be camouflage, then primer grey, and then black. Mr. Herntier told Mr. Parisien that he had changed the colours of the vehicle, to change its appearance. [ 48 ] In the beginning of the fall, Mr.

Parisien recalled a specific conversation with Mr. Herntier in Mr. Herntier’s shop at 755 Wall. Mr. Herntier said that he “killed somebody”, a “scum piece of shit person” that nobody would miss. Mr. Herntier was not his normal self while he was telling Mr. Parisien about this event. Mr. Parisien was scared by this disclosure, and said “You did what you had to do” out of fear. He testified that he said what he had to say to get out. At the time of this conversation, Mr. Parisien believed Mr. Herntier’s vehicle to be black in colour. [ 49 ] Mr. Herntier had done some work on Mr.

Parisien’s burgundy Chevrolet 1989 Beretta. Mr. Parisien did not have the money to pay for the work so, at Mr. Herntier’s suggestion, Mr. Parisien gave him the vehicle in satisfaction of the debt. Mr. Herntier wanted the vehicle to trade for a cube van. As far as Mr. Parisien knew, Mr. Herntier did in fact trade the Beretta for a cube van because Mr. Herntier had told him that he had. Mr. Parisien did see a dirty white cube van at the shop. [ 50 ] Mr. Herntier put his equipment in the cube van. Mr. Parisien helped putting a couple of items in the vehicle.

Most of the items were shrink-wrapped in plastic which came from a roll. Mr. Parisien saw the shrink wrap in the shop before putting the items in the truck. The truck was stored in the shop, and Mr. Herntier said he was going to weld the doors shut on the vehicle so no one could steal the equipment. Mr. Parisien recalled these events occurring in October, 2004. [ 51 ] The conversation when Mr. Herntier told Mr. Parisien he killed somebody occurred before he got the cube van. Mr. Herntier said he was moving to Alberta to go to the oil rigs. Mr. Parisien recalled that in fact Mr.

Herntier did go before Christmas, came back at Christmas, and left again after Christmas. [ 52 ] Mr. Parisien recalled a telephone call from Mr. Herntier right before Christmas, asking if anybody was around or looking for him. Mr. Parisien responded that it did not appear that anyone was around. After Christmas, Mr. Parisien saw Mr. Herntier in the shop working on the front end of the cube van.

[ 53 ] Mr. Parisien thought it possible that he had received two telephone calls from Ted Herntier on the cell phone he was using at that time, the evening of September 30, 2004.

(3) Forensic Evidence (

a) Dr. Charles Littman [ 54 ] Dr. Charles Littman performed the autopsy on the body of David Joseph Boulanger. The injuries observed by Dr. Littman included a four-centimetre oblique laceration to the skull, requiring a significant amount of force commonly caused by an object resembling a baseball bat, bar, pole or some other rod-like object. A second laceration, similar to the first and right below the first injury, was five centimetres long. A third laceration to the skull, to the left of the other two, also required a substantial degree of force. Dr.

Littman concluded that all three would require a sizeable degree of force, as all three were full thickness lacerations. David Boulanger had a full head of hair, which normally would protect the skin surface. [ 55 ] The fourth laceration, somewhat larger at 6.5 centimetres, was split at the ends. There was underlying fracture, and Dr. Littman felt it quite possible that the laceration was associated with that underlying fracture. The fifth laceration was cross-like in presentation. Injury number six was a four-centimetre laceration in the right parietal scalp.

The seventh injury was a five-centimetre laceration in the back of the scalp. Injury number eight was an oblique laceration on the parietal scalp. Injury number nine was a long laceration between injury seven and injury eight. [ 56 ] The tenth injury reflected fractures of the skull, in the areas underlying the lacerations. A depressed skull fracture under injuries seven, eight and nine impacted the area around the brain causing more damage than a skull fracture that is not depressed.

A depressed skull fracture also indicates a degree of force at the extreme end. [ 57 ] The skull, in this case, was thicker than usual. Dr. Littman believed that each of the nine lacerations was caused by a separate blow. Any of the nine injuries could have been fatal. The depressed skull fracture almost certainly would result in unconsciousness. [ 58 ] The blood alcohol level was 229 milligrams percent, the urine 336 milligrams percent, and the bile 270 milligrams percent. Dr. Littman felt that of the three readings, the urine was probably the most reliable given the impact of decomposition on the others.

It was Dr. Littman’s opinion that the deceased had stopped drinking, and was in the elimination phase, at the time of death. [ 59 ] Cocaine, codeine, acetaminophen, and naproxen were found in the urine. The quantity of drugs in the system could not be determined. [ 60 ] Dr. Littman determined that the cause of death was blunt trauma to the head. The blows to the head were significant, and sufficient to cause the death. (

b) Vivian Mohrbutter [ 61 ] Vivian Mohrbutter, at the time of her evidence, was employed in the reporting unit of the biology

section at the National Centre for Forensic Services in Edmonton, Alberta. She had worked in the Edmonton lab since 2007. In 2004, she was employed in the R.C.M.P. lab in Regina, Saskatchewan. She testified in the area of Statistical

Interpretation and Comparison of STR DNA Profiles as an expert witness. As a result of her testing and analysis, her conclusions included: • The DNA typing profile obtained from swabs taken from the wall at 755 Wall Street, Winnipeg, matched the profile of the known sample from David Boulanger. • The DNA sample from the discard glass and straw from Theodore Herntier was designated as male 2. • A hair with the root taken from an end piece of tape was compared to the male 2 (Herntier) profile.

The DNA profile from the hair root from the tape matched male 2 (Herntier). • The DNA profile from the known hair sample from Theodore Herntier was compared to male 2 from the discard sample from the glass and straw, and matched. • The known DNA profile from Theodore Herntier was compared to the unknown sample from the hair from the tape. The DNA typing profiles matched. (

c) Dr. Gail Anderson [ 62 ] Dr. Gail Anderson, Forensic Entomologist, gave expert evidence in the area of the rearing, development and identification of insects associated with human remains and estimation of elapsed time since death. [ 63 ] Dr. Anderson examined the development of two species of blowflies provided for analysis by the R.C.M.P. It was her understanding that the flies were obtained by police at the autopsy of David Boulanger. It was Dr. Anderson’s opinion that the insect development was consistent with the date of death on or before October 6 or 7, 2004 from one group of insects.

From another, her estimate was that the insect development would have been consistent with egg deposit around September 29 or 30, 2004. [ 64 ] Subsequent to Dr. Anderson’s original report, she was contacted by the R.C.M.P. asking whether the date of death could be as early as September 28, 2004. Dr. Anderson was of the view that the insect development would be consistent with the date of death of September 28, 2004. (

d) Staff Sergeant Geoffrey Michael Ellis [ 65 ] Staff Sergeant Ellis is the Forensic Identification Services Manager for the R.C.M.P. in Manitoba. Previously, he was part of

Forensic Identification Support Services based out of the forensic lab in Winnipeg, providing services to the Forensic Identification Sections with relation to bloodstain pattern analysis. He was qualified to give expert evidence in that area. [ 66 ] Between February 21 and 22, 2005, he attended 755 Wall Street in Winnipeg to search for, and examine, bloodstain patterns.

In the garage area, at the back of the premise on the south wall, Staff Sergeant Ellis located two distinct areas of blood spatter. [ 67 ] The first stain pattern observed started 42 centimetres above the floor, and projected to 152 centimetres above the floor. The second stain pattern started right above the floor and extended to 90 centimetres above the floor. The smaller the stain, the greater the force applied to produce the stain. [ 68 ] Staff Sergeant Ellis concluded that the stain patterns are consistent with the injuries in the autopsy report relating to David Joseph Boulanger.

(4) Evidence from Law Enforcement (

a) Sergeant William Crawford [ 69 ] Sergeant William Crawford retired from the Royal Canadian Mounted Police in 2005 after 30 years of service. His final posting was the Winnipeg Forensic Identification Section. He was a Forensic Identification Specialist, for 15 years in total. He attended approximately 100 homicide scenes over the course of his career. [ 70 ] He became involved in the investigation of the death of David Boulanger on November 3, 2004.

The scene was 57 kilometres west of the west Perimeter Highway, by the Trans Canada Highway at a rest stop between two sections of highway where the Assiniboine River crosses. In addition to his other duties, he took photographs of the scene filed as an exhibit, and described the scene. [ 71 ] His attention was first directed to a wrapped bundle consistent with a body, located approximately 60 feet west behind a washroom located on the property. The body was removed from the scene and transferred to the Health Sciences Centre for autopsy the next morning.

Sergeant Crawford remained at the scene November 3, 4 and 5, 2004. [ 72 ] Sergeant Crawford, together with other officers, prepared the body and related exhibits for analysis over several days. On November 17, various exhibits in connection with the body were processed, including tape ends from the plastic wrap around the body. It was Sergeant Crawford’s impression that the body was not wrapped at the scene where it was discovered. (

b) Sergeant Nolan Losness [ 73 ] Sergeant Losness has been with the Royal Canadian Mounted Police for 21 years. At the time of his evidence, he had been posted to the North Battleford Forensic Identification

Section for six years. [ 74 ] On November 4, 2004, while working in Winnipeg, he was instructed to attend an autopsy at the Health Sciences Centre. His colleagues were still busy at the scene. His purpose, in attending the autopsy, was to examine any evidence exterior to the body, and assist the pathologist with photographic documentation. He examined the body and wrappings for insects, and seized samples for Dr. Anderson. He examined the body for forensically significant materials, and took a set of fingerprints of the deceased.

Sergeant Losness seized samples of various specimens from the deceased’s body, and vegetation from the area he was lying on, for forensic analysis. He re-attended the next day, at Dr. Littman’s request, to photograph the skull fracture. (

c) Constable Darren Skomoroh [ 75 ] Constable Skomoroh has been a member of the Winnipeg Police Service for 18 years, working, in 2004, in the Missing Persons Unit. Constable Skomoroh was assigned to the short-term, rather than long-term, cases. On October 19, 2004, his unit was assigned the case of missing person David Joseph Boulanger. The report was filed by David Joseph Boulanger’s sister, Tammy Boulanger, indicating that David Boulanger had been missing since September 30, 2004. She was last seen in the area of Sargent and Young getting into a grey pick-up, with no plate number provided.

Tips came in, including some forwarded from Tammy Boulanger. All tips were followed up, with no results. Constable Skomoroh contacted Shelley Glover, who issued a media release October 20, 2004. [ 76 ] On October 28, 2004, Constable Skomoroh was instructed by Detective Sergeant Glen Smyth to search an area not far from the Higgins area, including an open field not far from Ogilvie Mills on Higgins, a roadway into Gateway Packers, behind the Medallion Enterprises at 1111 Higgins, the boat launch by the Louise Bridge.

All the searches yielded no results. [ 77 ] The tips were typical for this kind of missing persons investigation. The investigation was concluded with the discovery of the body on November 3, 2004 and confirmation of the identity on November 4, 2004. (

d) Constable Andrea Cain [ 78 ] Constable Cain has been with the Winnipeg Police Service for 16 years. In 2004, Constable Cain was working in the long-term Missing Persons Unit. Although the investigation relating to David Joseph Boulanger never made it to the long-term unit, Constable Cain was aware of the investigation. [ 79 ] When the report came in, it twigged a memory for Constable Cain of an event October 15, 2004 around noon. A striking individual was standing on the street corner, appearing to be working the streets.

Constable Cain and Constable Skomoroh drove around, executing a u-turn in their unmarked cruiser. By the time they got back to the spot, the person was gone. The person had been on the opposite side of the intersection, standing behind the New West Hotel. The person was male, presenting as female. [ 80 ] When the missing persons report came in with a picture, Constable Cain thought that could have been the person she saw standing on the corner. She had not known David Joseph Boulanger.

[81] She told her sergeant that she saw David Joseph Boulanger. In evidence she said that she should never have reported havingseen the individual without an appropriate identification. (

e) Patrol Sergeant Cameron Jones [82] At the time of his evidence, Patrol Sergeant Cam Jones was a member of the Canadian Navy, having retired from 22 yearsservice with the Winnipeg Police Service. On October 7, 2004, he attended a community meeting at Main Street and Pritchard Avenue inCosmopolitan Florists with Constable Mark Lafreniere. The meeting ended at around 7:30 at night.

After the meeting, Patrol SergeantJones and Constable Lafreniere stood outside on the sidewalk speaking to some of the community members. [83] Patrol Sergeant Jones’ attention was drawn to an individual walking southbound on Main Street, wearing a mini-skirt. Themini-skirt struck him as unusual, because it was chilly out. Patrol Sergeant Jones’ ability to view the individual was for about tenseconds at a distance of six to seven feet.

He saw the person’s face very briefly, and it appeared to be a woman. [84] On October 20, when Patrol Sergeant Jones was watching the news, the Winnipeg Police Service had posted a missing personsreport. He thought the picture on television might have been the person he saw October 7, 2004. He called Missing Persons, and reportedthat he may have seen the person. He was not certain, and intended the information to be in the nature of a tip. (

f) Constable Mark Lafreniere [85] At the time of his evidence, Constable Lafreniere was retired from the Winnipeg Police Service, where he served for 30 years.On October 7, 2004, he attended a community meeting at Main Street and Pritchard Avenue with Sergeant Jones. After the meeting,Constable Lafreniere walked outside with Patrol Sergeant Jones and stood on the sidewalk in front of Cosmopolitan Florists. He did notknow David Joseph Boulanger at that time. A person in a red mini-skirt walking past them caught Constable Lafreniere’s attention.

Thesituation just seemed a little out of place for Main Street, based on Constable Lafreniere’s experience walking a beat on Main Street forfive years. He had never seen that person before. He looked at the person for under ten seconds. Constable Lafreniere made no notes ofthis, and reported it to no one. C. Other Evidence

(1) In-Court Statement of Theodore Herntier [86] After the close of the Crown’s case on the preliminary hearing, defence counsel indicated that his client had something to say.At that point, Mr. Herntier rose and read an apparently prepared statement proclaiming his innocence. He said he did not kill DavidBoulanger. He described the “baseless charge” as a “nightmare”, and asserted his view of some of the evidence presented by the Crown.At the end of Mr.

Herntier’s two-minute statement, defence counsel announced that defence was not calling evidence. [87] The nature and effect of this statement, and its impact on the proceedings, was a matter of further argument. [88] Consideration was given, in argument by counsel, to whether this statement was to be appropriately received pursuant tos. 541(2) and (3) of the Criminal Code:

(2) Before hearing any witness called by an accused who is not represented by counsel, the justice shall address the accused as followsor to the like effect: “Do you wish to say anything in answer to these charges or to any other charges which might have arisen from the evidence led by theprosecution? You are not obliged to say anything, but whatever you do say may be given in evidence against you at your trial. Youshould not make any confession or admission of guilt because of any promise or threat made to you but if you do make any statement itmay be given in evidence against you at your trial in spite of the promise or threat.”

(3) Where the accused who is not represented by counsel says anything in answer to the address made by the justice pursuant tosubsection (2), the answer shall be taken down in writing and shall be signed by the justice and kept with the evidence of the witnessesand dealt with in accordance with this Part. [89] The matter was adjourned for counsel to argue the issue of Mr. Herntier’s statement and whether, having heard Mr.

Herntier’sunsworn statement, not subject to cross-examination, in circumstances where he was represented by counsel throughout, the Court couldappropriately continue with preliminary inquiry. [90] Counsel were unable to identify authority directly on point to assist. In R. v. Jenkins (1996), (ON SC), 108C.C.C. (3d) 565 (Ont. Ct. J. (Gen. Div.)), Watt J. highlighted the s. 541(2) address relates solely to an unrepresented accused: Under s. 541(2), it is incumbent upon the justice at preliminary inquiry to address or warn an accused who is unrepresented before anydefence evidence is heard.

There is no equivalent obligation where the accused is represented by counsel, as was formerly the case. (atpage 573) [91] Defence argued that Parliament could not have intended for an accused represented by counsel to be in a worse position than anunrepresented accused, and prevented from making a statement at the end of the Crown’s case.

Counsel for the Crown submitted that thedefence course of action was plainly wrong, but as the role of a justice at a preliminary hearing precluded weighing the evidence, if theuntested statement in this case merely contradicts evidence presented by the Crown, it ought not to be considered in arriving at a decisionon committal: Although a defence can be made, the presiding justice cannot weigh its merits. If, at the conclusion of the preliminary inquiry,there is admissible evidence which if believed would result in a conviction, the accused is committed for trial.

( R. v. Hynes , 2001 SCC 82 , (2001) 159 C.C.C. (3d) 359 (S.C.C.) , at para. 52 .) D.

Analysis [ 92 ] The evidence presented by the Crown at the preliminary inquiry could support the following facts: • David Joseph Boulanger lived as a woman, and was involved in the sex trade. • Theodore Herntier operated a machinist shop at 755 Wall Street, Winnipeg. • David Joseph Boulanger disappeared on or about the 28 th day of September, 2004. • Theodore Herntier had, on occasion, picked up prostitutes and taken them to both his residence and his shop at 755 Wall Street, Winnipeg. • Theodore Herntier had a Toyota pick-up truck that was grey at the time of David Boulanger’s disappearance. • In the fall of 2004, Mr.

Herntier said that he “killed somebody”, a “scum piece of shit person” that nobody would miss. • David Joseph Boulanger’s blood was found on the wall of Mr.

Herntier’s business at 755 Wall Street. • A hair belonging to Theodore Herntier was found adhered to the tape securing the wrapping on the body of David Joseph Boulanger, when it was found wrapped in plastic behind the washroom at a wayside stop on the Trans Canada Highway. • The development of the insects found in the wrapping on David Boulanger’s body was consistent with the date of David Boulanger’s disappearance. • The bloodstain patterns on the wall of Theodore Herntier’s premise at 755 Wall Street were consistent with the injuries observed by Dr.

Littman on David Boulanger. • The place Theodore Herntier called his friends Patrick Catellier and Ken Ellison from on September 30, 2004 was the same rest stop where the body was located. • David Joseph Boulanger was last seen getting into a grey pick-up truck similar to that owned by Theodore Herntier. • David Joseph Boulanger suffered nine blows to the head with sufficient force to cause a depressed skull fracture.

The injuries on his skull were caused by a linear object resembling a baseball bat, pole, or some other rod-like object. [ 93 ] I have carefully considered the defence submission that because the evidence of Charles Flett, Elijah McIvor and Matthew Berens could be assessed as placing David Joseph Boulanger alive in Winnipeg at or after the time phone records could put Mr. Herntier at the Trans Canada Highway wayside stop, that Mr. Herntier is afforded an alibi. To come to that conclusion is beyond the scope of the preliminary inquiry judge and would usurp the function of the jury.

It is not the role of the preliminary inquiry judge to attempt to reconcile this issue. It is for the jury to weigh the evidence, assess credibility, and after so doing, draw the appropriate inferences. [ 94 ] In assessing the impact of Mr. Herntier’s in-court statement at the close of the Crown’s case, I agree with the Crown that it is not the role of the preliminary inquiry to weigh the merits of this statement.

If it is to be considered at all, the focus of the Court’s consideration must be whether there is admissible evidence, which, if believed, could result in a conviction. [ 95 ] Considering the evidence taken on the preliminary inquiry, as a whole, the cumulative effect is that there is evidence on each of the essential elements of the offence upon which a reasonable jury properly instructed could return a verdict of guilty. E. Conclusion [ 96 ] Theodore Herntier is ordered to stand trial on the charge of second degree murder on David Joseph Boulanger. Original signed by Judge H. R. Pullan P.J.