Finally ruling on the shooting of John Thomas Papequash outside the 202 bar in downtown Whitehorse, the Yukon Supreme Court found that the accused man fired the gun but could not conclude that his actions amounted to attempted murder.
Malakal Tuel, who has been in jail in Whitehorse since his arrest hours after the shooting in the early hours of Dec. 1 2019, was convicted on nine of the 13 charges he faced. The most serious of the offences the Crown was able to secure a conviction on was one of aggravated assault for the shooting, but he also faced charges relating to drug trafficking, a prohibited firearm and cash derived from crime.
The decision on Tuel’s guilt took more than three hours for Chief Justice Suzanne Duncan to read out. It detailed the complex circumstantial case the Crown had to build up based on forensic evidence, witness testimony and various video angles inside and outside the bar, none of which captured the shooting itself. The judge said that the defence had argued that the Crown’s circumstantial case amounted to a “tapestry of chaos” and had also convinced her to discount at least some portions of what some of the witnesses had to say.
For all that, Duncan stated she was unable to infer that anyone other than Tuel could have fired the bullet that struck Papequash in the head.
Both Tuel and his co-accused on some of the lesser drug trafficking and firearms possession charges, Joseph Wuor, attended the court date by video. Tuel was dressed in a blue jail uniform and sunglasses and appeared from a room at the Whitehorse Correctional Centre and Wuor appeared to be sitting on a living room couch as he is not in custody. When the judge ruled that Tuel must have fired the gun, he remained expressionless while Wuor turned to the side and visibly exhaled.
Although Duncan found that Tuel shot Papequash, the court heard that the legal tests for proving attempted murder were not met. Lacking firm evidence of Tuel’s intent to kill Papequash or on the interaction they were having outside the bar before the shot rang out, Duncan passed a not-guilty verdict for the attempted murder charge.
The other charges Tuel was found guilty of included possession of drugs for the purpose of trafficking and other charges related to a drug dealing operation that the crown alleged both he and Wuor were a part of. The two men were arrested in a truck registered to Tuel, outside a residence near Carcross that he was renting. The court heard that the gun used to shoot Papequash was found in the truck as was more than $8,000 in cash and a significant quantity of cocaine. The quantity of cocaine found as well as the presence of other items including a substance often used to cut cocaine for distribution and several cell phones led an RCMP expert witness to testify in support of the crown’s case that this was a drug trafficking operation.
While Tuel was found guilty of possession for the purposes of trafficking, Wuor was not, with the judge unable to conclude that he had been a part of the trafficking operation, noting that the degree of association between the two that was proven in court did not necessarily prove his involvement. Wuor had been charged with possession for the purposes of trafficking, possession of the proceeds of crime, possession of a loaded prohibited firearm and possessing a firearm while prohibited. He was only found guilty of being in the truck where police located the illegal firearm under the passenger seat he was sitting in.
The judge and lawyers set plans to meet again and fix a date for sentencing on March 7. Both Tuel’s defence lawyer Dale Fedorchuk and Wuor’s lawyer Lynn MacDiarmid stated they were investigating having Impact of Race and Culture Assessments to be presented at sentencing.
Crown Counsel Leo Lane said he would likely be filing a victim impact statement on behalf of Papequash, who sat in court alongside his mother and other supporters as the decision was read.
Contact Jim Elliot at jim.elliot@yukon-news.com