Lawyers argue over evidence admissibility in RCMP officer’s assault case

An RCMP officer was back in court Monday as Crown and defence lawyers argued whether an incident report the officer filed can be used as evidence when his assault trial continues later this year.

Const. Luke Tomkinson — who faces a charge of assault with a weapon and uttering threats — appeared in a videoconference alongside Trevor Martin, one of his two lawyers.

The charges stem from an incident that occurred while he was on duty in Arctic Bay on Feb. 15, 2020. Tomkinson and his partner Const. Jesse Byer entered the home of Andrew Muckpa in response to a call that a young woman was overdosing in an apparent suicide attempt.

While the two officers were arresting another man, Ivan Oyoukuluk, who was also in the home at the time, Tomkinson is accused of pulling out his stun gun and telling Muckpa he’d hit him in the face with it.

Muckpa’s son filmed parts of the incident and posted them to Facebook.

The case went to trial before Justice Christian Lyons in Iqaluit, beginning on Oct. 17, 2023.

The Criminal Code considers situations where someone “carries, uses or threatens to use a weapon” as assault with a weapon.

During the trial, Tomkinson’s other defence lawyer, David Butcher, portrayed his client’s actions as a reasonable response to de-escalate a threat.

However, the trial was halted three days later when Crown prosecutor Yoni Rahamim alerted the court of a possible “evidentiary issue.”

The issue in question was the admissibility of Tomkinson’s notes from his subject behaviour/officer response report from the alleged incident, as evidence if Tomkinson is to testify in his own defence.

The RCMP requires the filing of those reports after incidents in which officers use force or weapons.

In a hearing Monday, Martin explained that Tomkinson filed his report, as he was required to, shortly after the incident.

However, he said the report may be considered “compelled” evidence that may violate Tomkinson’s rights against self-incrimination.

Tomkinson wasn’t under investigation for his conduct immediately after the incident.

The charges were laid more than two years later, following a public complaint by Oyoukuluk.

Martin suggested there may be a risk of police officers “over-justifying” use of force if they know they can be prosecuted later over what they write in their incident reports.

Rahamim argued several reasons why the Crown should be allowed to use the report notes on cross-examination.

He said RCMP officers should expect their report notes in their full context to be used as evidence in cases. The role of policing would be “fundamentally compromised” if incident notes were immune from being used, Rahamim said.

He also argued that the lack of those notes as evidence would “impact trial fairness” for the Crown.

Lyons said he expects to make a ruling on this matter before the trial is set to resume the week of Nov. 18.

Another court appearance has been scheduled for Oct. 7 to resolve another matter relating to disclosure of documents.