June 8 and 9 saw the last days of evidence presented in the trial of the man charged with attempted murder for the shooting of another man outside the 202 bar in downtown Whitehorse in 2019.
Malakal Kwony Tuel is charged with attempted murder and aggravated assault relating to the shooting and also faces cocaine possession, possession of cash derived from crime and firearms-related charges.
Another man, Jospeh Wuor, arrested at the same time as Tuel, faces cocaine, firearm and cash derived from crime possession charges.
The final days of evidence saw one more account of the scene outside the 202 bar on the night of the shooting before the crown called police and expert witnesses.
Sgt. Jill McLaren, the RCMP exhibit officer for the investigation, was tasked with seizing and cataloguing items for evidence both at the scene at the 202 and at the residence near Carcross Tuel was renting. On the witness stand she described the empty shell casing and the live 9mm cartridge seized outside the 202 as well as the cocaine, electronic devices, cash and a pistol seized in subsequent searches of the residence and two vehicles.
The crown called Megan Evoy, an expert in the classification and assessment of firearms and the matching of fired ammunition components to a specific firearm. In the course of her work for an RCMP firearms lab in British Columbia, Evoy produced a report based on the firearm seized from Tuel’s truck.
Evoy said the firearm that was seized, a Taurus PT709 slim chambered in 9mm luger, is classified as prohibited because its barrel length was measured as 82.98 mm, less than the 105 mm handguns legally sold in Canada can be.
Part way through Evoy’s testimony, the defence conceded that the expended cartridge case seized outside the 202 was fired from the pistol located on the floorboard of Tuel’s truck.
On cross examination Tuel’s defence lawyer Dale Fedorchuk asked Evoy to comment on the distance shell casings might be thrown from the pistol. She said she couldn’t because it isn’t part of the analysis she conducts. She added there are too many variables at a scene to make accurate determinations about a shooter’s position based on where cartridge casings land.
Evoy acknowledged that her analysis couldn’t determine when the cartridge proven to have come from the gun seized in the investigation was fired. She also said she didn’t receive a bullet to analyze so there was no way for her to say if the bullet from the cartridge found at the scene had entered the victim’s body, or where it ended up after it was fired.
The testimony of the DNA expert called by the crown also focused primarily on the seized firearm. Expert witness Connie Leung described the results of DNA swabs taken from various parts of the firearm.
One portion of the gun, identified in testimony as the frame below its slide, tested positive for Tuel’s DNA and traces of other DNA. Other portions returned mixed DNA samples from either two or more or three or more people depending on the part of the gun the swab was taken from.
Leung acknowledged that the DNA analysis cannot lead to a conclusion that Tuel fired or even held the gun. Her testimony under cross examination acknowledged the possibility of secondary DNA transfer from another item.
RCMP Cpl. Guy Lacroix served as a cocaine trafficking expert for the Crown. He said that the evidence seized from the residence Tuel was renting and from the vehicles investigators searched are consistent with cocaine distribution in his experience. He based this on the quantity of drugs seized which he said is significantly more than he has seen in the hands of a user but still a small enough amount that it could be consistent with street-level distribution as he has seen it in the Yukon. He added that the way the cocaine was packaged into individual portions and the presence of a bag of phenacetin, which he said is commonly added to powder cocaine as a bulking agent, also points to trafficking.
On cross examination from Fedorchuk, Lacroix said he was not presented with evidence of written “score sheets” detailing transactions or debts owed or evidence that the cell phones seized had been used for drug transactions.
Lynn MacDiarmid, representing Wuor, also cross examined Lacroix. She asked the RCMP officer if one of the packages of cocaine seized, weighed at approximately eight grams, could possibly be for personal use. He said he has never seen an end user with crack cocaine bagged in 38 individual portions and described it as atypical but not impossible.
Defence lawyers for Tuel and Wuor did not call evidence.
The court will reconvene on July 11 with written arguments submitted in advance. Chief Justice Suzanne Duncan praised the lawyers on both sides’ efficiency in presenting and examining the evidence. The judge acknowledged that due to the complexity of the case she is likely to reserve judgement and present a decision in writing sometime after hearing arguments on July 11.