Officer’s reports can be used on cross-examination, Nunavut judge decides

Updated on Monday, Dec. 30, 2024 at 4 p.m. ET

Not allowing a police officer’s incident reports to be used in his own assault trial “would undermine public confidence in our system of justice,” a Nunavut judge says.

Justice Christian Lyons released a written copy of his decision Dec. 17, explaining why he allowed Crown prosecutor Yoni Rahamim to use two incident reports filed by Const. Luke Tomkinson while cross-examining the officer last month.

Tomkinson faces charges of assault with a weapon and uttering threats, stemming from a Feb. 15, 2020, incident in Arctic Bay.

The officer is accused of pointing his stun gun at Andrew Muckpa, a man positioned a few metres away from him, while Tomkinson and another officer were making an arrest.

After the incident, Tomkinson filed two reports — a supplementary occurrence report and a subject behaviour/officer response report — which were mandatory RCMP filings.

Tomkinson’s defence argued that the two reports were compelled statements and that using them in trial would violate his rights against self-incrimination. The Crown argued the opposite.

“Prohibiting cross-examination on Const. Tomkinson’s reports would have the potential effect of hamstringing the truth-seeking function of the trial, as Const. Tomkinson could testify in a way that deviates from what was recorded in his reports and not be impeached in any way,” Lyons wrote in his decision.

“Const. Tomkinson was not coerced by the state to write his reports, and was not in an adversarial relationship with the state when he wrote them,” Lyons wrote.

“If he is cross-examined on his reports at trial, the risks that future police reports would be less reliable, or that future state abuse would result, are minimal.”

This “evidentiary issue,” as Crown prosecutor Rahamim described it in 2023, put Tomkinson’s trial at a standstill for more than a year.

The trial started Oct. 17, 2023, and was halted three days later.

Crown and defence lawyers deliberated in September over whether or not the reports were admissible, before resuming and concluding Tomkinson’s trial in November.

During the November trial, Rahamim scrutinized Tomkinson’s memory of the 2020 incident, drawing upon discrepancies between the reports, video evidence and his recollection of how things unfolded.

Lyons is yet to deliver his verdict on the case as a whole.

Tomkinson is due back in court Jan. 6, 2025.

Correction: The headline on this story has been altered from its originally published version to correctly report that the judge’s decision was about the admissibility of the defendant police officer’s incident reports.