R. v. Gamblin, 2022 MBKB 187

Date: 20221005 Docket: CR 21-01-38547 (Winnipeg Centre) Indexed as: R. v. Gamblin Cited as: 2022 MBKB 187 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: ) APPEARANCES : ) HIS MAJESTY THE KING, ) RUSTYN ULLRICH and ) CHANTAL BOUTIN - and - ) for the Crown ) JESSE JORDAN GAMBLIN, ) GERRI F. WIEBE accused. ) for the accused ) ) ) Judgment delivered : October 5, 2022 KEYSER J. [ 1 ] On September 21, 2019, Norma Ellen Andrews (“Andrews”), a.k.a. “Bambi”, was killed on the second floor of 574 Balmoral Street, in the city of Winnipeg. She had been brutally assaulted.

Jesse Jordan Gamblin (“Gamblin”) is charged with second degree murder in her death. For the reasons which follow I find him guilty as charged. [ 2 ] Dr. John Younes is the Chief Medical Examiner of Manitoba, who performed an autopsy on Andrews on September 23, 2019. His qualifications were not challenged. Dr. Younes testified to gruesome injuries inflicted on Andrews. In his autopsy report (Exhibit 16), Dr. Younes stated the cause of death to be exsanguination (or bleeding out) due to multiple sharp force and blunt force injuries which he described in great detail.

There were ligatures around her neck and the fatal wound was a long, deep wound on her neck where the muscles had been cut and the carotid artery severed, resulting in a huge blood loss. He agreed that this wound was consistent with being inflicted by a machete. The scene photos (Exhibit 2, photos 7 and 8) show the arterial spray from the neck wound. In addition, Andrews had two fingers amputated, fractures to fingers and forearms and petechial hemorrhaging which is consistent with neck compression or strangulation. Andrews also had a very strong smell of gas on her body.

Photograph 4 from the autopsy photos (Exhibit 17) showed evidence of fluid run off which Dr. Younes opined was solvent or gas. [ 3 ] Photograph 10 from the autopsy photos shows a large injury to the back of her head consistent with being beaten with a bat. There were also signs of stomping on her lower back. In total, Dr. Younes advised that Andrews suffered at least eight sharp force injuries, two stomping injuries and five to seven blunt force injuries on her scalp and six on her face.

He agreed with the Crown that overall these injuries were consistent with being beaten with a baseball bat, stomped on and cut with a machete. On cross-examination, he agreed that there were a number of other scenarios that could be consistent with these injuries, however, no specific other scenarios were put to him. [ 4 ] Murder is defined in the Criminal Code , R.S.C., 1985, c. C-46 (the “ Code ”) as follows: 229 Culpable homicide is murder (

a) where the person who causes the death of a human being (

i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; . . . [ 5 ] There is no suggestion that the person inflicting the wounds on Andrews would not have intended to cause her death or was not reckless that the harm inflicted would cause her death. Further, there is no suggestion that any substance abuse issues diminished otherwise culpable responsibility to the level of manslaughter. The Crown submits that Gamblin is the person responsible for the killing of Andrews.

Defence counsel argued that there was not enough evidence to establish that Gamblin was the person who was responsible for her death. Nonetheless they agree that whoever killed Andrews would be guilty of murder. Accordingly, the only real question in this case is whether the Crown has successfully proven that Gamblin was the person responsible for the brutal murder of Andrews. [ 6 ] The residence where Andrews was killed was a well-known meth house, where users came and went in large numbers.

Two civilian witnesses, namely S.S. and R.P., testified that Gamblin, also known on the street as “OSIX” was responsible for the murder and that no one else was involved. I am satisfied that when they referred to OSIX as having undertaken what they described, that they are in fact referring to Gamblin. Detective Justin Parry, from the Homicide Unit of the Winnipeg Police Service, arrested Gamblin on October 3, 2019 at the Winnipeg Remand Centre and updated his police file which included an alias of “OSIX”.

He also examined a Facebook profile of Gamblin on March 29, 2022 which appeared to be of him and took screenshots from this profile (Exhibit 9). Exhibit 18 contains two photos – the top one was taken by Detective Parry and the bottom one came from a saved report from a crime analyst where the header says “OSIX Keep Six”. Defence counsel did not concede the accuracy of this street name and Detective Parry agreed that anyone can create an account for someone else.

Nonetheless, both S.S. and R.P. knew Gamblin for a lengthy period of time and confirmed this street name for him. [ 7 ] The first civilian who testified as to having seen Gamblin kill Andrews was S.S. When asked why she was in court, S.S. said, “because of Bambi – he killed her – ‘OSIX’”. S.S. was living on the main floor of 574 Balmoral Street but had been staying upstairs in “Drillbit’s” suite where the murder occurred. “Drillbit” was the street name of Delbert Kehler according to Detective Sergeant Jarrett Reid. S.S. and Detective Sergeant Reid both confirmed that Drillbit was deceased.

The other upstairs suite was occupied by Barbara Young (“Young”), a.k.a. “Punky”. S.S. testified that she was in Drillbit’s suite when “Lynette” and her mother came in, followed by OSIX carrying a black duffle bag and bottle. At the time, S.S. was smoking meth and having drinks. Bambi was lying on the bed next to R.P. and Drillbit was pacing back and forth. Suddenly, OSIX put Bambi in a chokehold, called her a rat, and struck her with a bat and machete. S.S. said he hit Bambi with the bat five times or more and said that she deserved to die.

Although she was unable to say where the machete came from, she said “he used the fucking machete on her” and “obviously he swung it”. [ 8 ] S.S. said R.P. was in the room when OSIX started choking Andrews and that everyone began to leave when he pulled out the bat. She left with R.P. but returned to retrieve her phone which she had left in the suite. On direct she testified that OSIX commented that “It was over”, or, “It’s done”. She then left the suite and walked to a residence on Spence Street where she changed clothes and then returned to the front of 574 Balmoral Street but did not go in.

S.S. said she then returned to the Spence Street residence where OSIX was, and then embarked on a “long ass walk” to Beverley Street, then to Gamblin’s father’s residence near Broadway. She believed he had changed his clothes and together they went downtown to Portage Avenue. [ 9 ] Although S.S. denied going back into the residence and insisted she only went by the front of the building, the agreed statement of facts #3 (Exhibit 19) contains evidence that would have been given by Barbara Young (“Young”), the other upstairs tenant of 574 Balmoral Street.

Young had called 911 in the afternoon of September 21, 2019 to report a female lying on the floor in the next door suite and that a male with gas cans and a female had been inside that suite. She identified S.S. as the woman in the suite but was unable to identify the man from a photo lineup that included the photo of Gamblin. S.S. had conceded in her testimony that she had been asked to go back to the suite to clean up but denied that she had done so. [ 10 ] Young may very well have been incorrect in her identification of S.S., although she knew her as the downstairs tenant.

As Young was not called to testify it is difficult to know how much weight to put on this identification by her. In addition, R.P. told police that she was at a nearby residence after the murder when Gamblin arrived at this residence with Lynette and that Gamblin and Lynette then took off with yellow gloves and gas. On cross-examination R.P. confirmed that she ran into Lynette Beardy on September 26, 2019 and that Beardy was crying as she thought someone had sold her out. According to R.P., Beardy said she was only trying to help clean up a mess and burn a body.

Obviously, this is hearsay as Beardy was also not called to testify, but it exposes the difficulty in trying to accurately identify the two people trying to clean up after the murder. [ 11 ] Detective Parry put together a video timeline from video seized from nine locations described by witnesses, and created a map showing the location of these sites (Exhibit 6). The videos (Exhibit 7) showed a number of people in various locations and S.S. identified all of those people except for the person seen in clips 2 and 7.

Although defence argued that these identifications were unreliable because they were not shown to R.P., S.S. was never questioned about the authenticity of her identifications. The people she identified in the video clips were all people with whom she was acquainted. As a result, I have no trouble accepting her identifications as reliable. [ 12 ] S.S. came into police custody on September 30, 2019 after her arrest on an outstanding warrant. This was nine days after the murder. S.S. was initially questioned about the murder and told police she did not know what they were talking about.

She later cooperated with police and provided a statement about what she had witnessed. She admitted on cross-examination that she had received information from others about what they had seen in the suite. She was vague about times, but told police she had gotten to 574 Balmoral Street about 11:00 p.m. the night before and it was 3:00 or 4:00 a.m. when OSIX arrived. S.S. further testified on cross-examination that OSIX talked to people in the suite for a few minutes before he attacked Bambi, put her in a chokehold, and then hit her with a bat. She did not recall whether it was a wooden or metal bat.

Everyone in the suite left after OSIX hit Bambi with the bat, except S.S., R.P. and Drillbit. Drillbit left next, then she and R.P. left, but S.S. then returned to get her phone. She conceded that she did not hear OSIX say “It’s done”, or, “It’s finished” in the hallway or at all. However, on direct examination she had never said he had said “It’s finished”. On reply, she reiterated that she did hear him say “It’s over” when she was in the hallway.

[ 13 ] S.S. admitted that she had not told police she returned to the Spence Street residence and conceded that she told police she was with OSIX and had waited for him to come out of the suite to see where he lived and to get information from him. She agreed that Gamblin did not force her to go with him and that the first time she mentioned going to Spence Street was in a meeting with the Crown on April 27, 2022.

Also, she admitted being with a man known as “Big Mike” but had never mentioned him to police as she insisted she had forgotten that information. [ 14 ] When Detective Sergeant Reid executed the warrant on S.S. on September 30, 2019, she gave him a different name, but was otherwise sober and cooperative. He took a sworn statement from her and she identified Gamblin as OSIX and picked him out of a photo lineup.

She was obviously concerned about any repercussions from this identification of him, as she started to cry before picking him out and expressed concerns for her safety. [ 15 ] S.S. then took police on the path where she had gone after the murder. As a result, Detective Sergeant Reid was able to check video surveillance tapes from a number of establishments and seized videos which then led to the production of the map (Exhibit 6) and video clips.

Detective Sergeant Reid confirmed on cross-examination that S.S. remarked that she wanted to say sorry as “everyone is putting shit on me” and that “they said I did this but I didn’t”. S.S. at first agreed to provide the shoes she had been wearing that day but never did in fact. S.S. explained on reply that it would have looked odd if the police came by to get her shoes from the Spence Street residence. [ 16 ] The video clips, put together by Detective Parry after receiving information from a number of witnesses (Exhibit 7), were shown to S.S.

In slide 2, a male was seen in the back lane at 9:28 a.m. on September 21, 2019. S.S. was unable to identify this person. Slide 3 at 9:29 a.m. was that of a woman in the back lane. S.S. identified her as R.P. from her walk. Slide 4 at 9:32 a.m. was of a woman with a black Nike backpack. S.S. said that was her. This is consistent with R.P. leaving the residence several minutes before S.S. [ 17 ] Slide 5 at 9:39 a.m. was of a person walking quickly. S.S. said that was R.P.’s father, F.B. Slide 6 at 9:43 a.m. showed S.S. and OSIX according to her.

She did not know who was in Slide 7 at 9:45 a.m. between 574 and 576 Balmoral Street. Slide 8 at 9:49 a.m. was a person in shorts followed by a person with a Nike backpack. S.S. said that was her and Big Mike, although he had not been in the suite. Slide 9 at 11:40 a.m. showed her and OSIX walking south down Beverley Street. Slide 12 from 1:14 p.m. was her and OSIX at the Hi-Rise Food Mart at 521 St. Mary Avenue and slide 15 from 1:56 p.m. was the two of them at Dollarama in Portage Place mall. [ 18 ] The timeline from the video seems to belie the time estimates from S.S. and R.P., the other civilian witness.

However, Detective Parry had checked all the video from 574 Balmoral Street from the time of an earlier assault in that building on September 15, 2019 up until the homicide of Andrews and, thus, the times from the video clips would appear to be more reliable as estimates for when the murder occurred. [ 19 ] The timeline is also consistent with agreed evidence from Young (Exhibit 19). She said that her friend Melanie came to her suite sometime between 8:00 and 9:00 a.m. on September 21, 2019.

A short time after Melanie arrived, Young heard sounds of both male and female voices arguing and possibly something “falling down” coming from the suite next door. Asked for her time estimate, Young replied that it was around 9:30 a.m., 10ish but that it was hard for her because she didn’t keep time. [ 20 ] R.P. was the other civilian witness who testified that Gamblin was responsible for Andrews’ murder. When asked on direct why she was in court, her response was “She (Andrews) was killed by Gamblin, OSIX”.

R.P. had been arrested on a witness warrant for failing to appear at the start of this trial and held in custody until her testimony was over. She was not happy to be in the courtroom at all, however, she did say “I know it was him because I was there when it happened”. [ 21 ] On direct examination, R.P. testified that she got to 574 Balmoral Street the day before the murder. She was sick so she laid down and slept. She testified that Bambi came in during the morning and laid on the bed beside her. She testified as to people coming in and out of the suite and that Gamblin came back around 5:00 or 6:00 a.m.

He was swearing and called someone a “rat” and said “they were fucking up on dope”. She said he was waving around a machete at this time. R.P. testified that Gamblin grabbed Andrews off the bed, stomping on her head, beating and punching her, and then hitting her with a bat and machete until “she couldn’t scream no more”. R.P. said when he was done, she and S.S. left the suite and went their separate ways. [ 22 ] In her statement to police given September 26, 2019, R.P. said that Gamblin and Lynette Beardy got to the Spence Street address and got yellow gloves and gas then took off.

This was the morning of the murder. R.P. said it seemed like they were going to do something. She also confirmed to police that the bat was wooden, but she did not know how many times OSIX hit Andrews with it. [ 23 ] On cross-examination, R.P. was extremely hostile to the defence. She had been held in custody for approximately two days and wanted a cigarette very badly.

She agreed with defence that she had never mentioned the existence of a machete when she initially talked to police and she could not remember if the bat she said she saw was wooden or metal. [ 24 ] She agreed that everyone was talking about the murder and that she had talked with S.S. and Drillbit about it. She also talked about it with some man known as “Q” who wanted to know if R.P. had had anything to do with the murder. She only told Q she had been there when it happened after she started dating him, as she was scared of why he wanted to know who had killed Bambi.

She also talked to a woman called Tessa and to Lynette Beardy who thought someone had sold her out. R.P. was not shown the video clips by Crown or defence and not asked to identify the people in the clips. [ 25 ] Other than the eyewitness testimony from S.S. and R.P., there is little else pointing to Gamblin. A number of exhibits were sent to the RCMP DNA lab for analysis, including a new gas can, cap and siphon located in the vicinity and a saw which had been laying on Andrews’ body and which was placed on the bed by police. Nothing of significance was found on those exhibits.

Also found on the bed was a bandana (photo 7 of Exhibit 3). Blood was found in two locations; one where the blood belonged to Andrews and one with mixed DNA from Andrews and a male but without enough material for a comparison. Near the centre of the bandana was biological material that matched Gamblin. There was, however, no ability to determine when that was deposited on the bandana or if it had been put there at the same time as the blood. [ 26 ] The position of the Crown is that there is ample evidence that Gamblin was responsible for the murder of Andrews. S.S.’s time

estimates are not reliable but the video clips show in actuality when the people in 574 Balmoral Street left the residence, which is consistent with the evidence of Young that she heard a ruckus from next door at around 9:30 or 10:00 a.m. that fateful morning. She also confirms that she saw S.S. there that morning. S.S. was able to give information to Detective Sergeant Reid some nine days after the murder as to where she went with Gamblin, and as a result, he was able to pull the video footage from various establishments.

Finally with S.S.’s evidence, the Crown submits that she was never challenged on her identification of the people in the video clips nor on her assertion that Gamblin killed Andrews. And, she had no motive to lie. [ 27 ] The Crown further relies on the similar evidence from R.P. who testified that Gamblin and no one else was responsible for the murder of Andrews. R.P. was also at the residence and saw what occurred.

The Crown stressed that there was no suggestion that S.S. and R.P. were mistaken, that they were too impaired to recall what occurred, that someone else was responsible, that either of them had an axe to grind against Gamblin or that they colluded to frame him. [ 28 ] The position of the defence is that in order to convict Gamblin it is necessary to be satisfied of the accuracy of the recall of S.S. and R.P. as nothing else puts Gamblin in the suite at the time of the murder.

The video clips were not shown to R.P. and one clip at 9:28 a.m. shows a male with a black bag walking down the alley, who was unidentified by S.S. There is no video of Gamblin leaving the Balmoral Street address. The defence questions why he would leave out the front door to go to Spence Street when there is a shorter and well-travelled path out the back way. Defence submits that the Court is being asked to “hodgepodge” evidence together to make things try to fit. [ 29 ] The defence stresses the glaring lies and deliberate omissions of both S.S. and R.P.

For example, Young saw S.S. coming out of the suite along with a male who had a gas can. She did not identify the male. S.S. insisted she only returned to the front of Balmoral Street but did not go back inside the suite. R.P., for her part, had never mentioned the existence of a machete to police even though she had been asked whether weapons other than a bat were used on Andrews. All in all, the defence says that S.S. and R.P. were members of the meth community who should not be seen as corroborative of each other because they had spoken to others about the incident and the opportunity for collusion existed.

They were both incredible and unreliable and, therefore, this must result in reasonable doubt about the guilt of Gamblin. [ 30 ] Courts tell juries about the importance of being satisfied beyond a reasonable doubt of the guilt of an accused. We tell them that a reasonable doubt is not a farfetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt that logically arises from the evidence, or the lack of evidence.

However, Crown counsel is not required to prove anything with absolute certainty as that is a standard of proof that is impossibly high. [ 31 ] Despite their hostility and unsurprising difficulty with details, S.S. and R.P. were ultimately not challenged on whether or not OSIX killed Bambi. S.S. was not challenged on the identification of the people she identified on the video clips. There is no suggestion of motive for either to lie. In fact, neither wanted to testify. S.S. was clearly terrified of repercussions from identifying OSIX.

Exhibit 13 was a video of S.S. doing a video line-up and before she identified Gamblin, her comments were “I’m scared” – “What if he comes looking for me?” [ 32 ] A trier of fact is entitled to accept all of a witnesses’ testimony, some of it, or none of it. There were a myriad of problems with the details they gave, their demeanour on the stand, their lack of clarity on times and concessions made to defence counsel.

Yet, when all was said and done, neither resiled from their testimony that Gamblin, and Gamblin alone, was responsible for the murder of Andrews. [ 33 ] The accounts from S.S. and R.P. were not identical which is not surprising, but at the end of the day, despite their difficulty with recall and detail, there is no suggestion that they were mistaken. There is no suggestion that someone else was responsible for the murder of Andrews, and there was no suggestion that either S.S. or R.P. had any axe to grind against Gamblin.

Finally, despite the fact that there may have been discussions about what they had seen, there was no evidence whatsoever of collusion. [ 34 ] Therefore, recognizing the obvious difficulties with some of S.S. and R.P.’s recall and details, at the end of the day I am satisfied beyond any reasonable doubt that they correctly identified Gamblin as the person responsible for the murder of Andrews. He will, therefore, be convicted of second degree murder. __________________________ J.