An NWT Supreme Court justice has ordered a hearing into whether blood samples should be excluded as evidence from an impaired driving causing death case due to a Charter breach.
In 2024, RCMP charged Malcolm Nerysoo with one count of impaired driving causing the 2021 death of Kristine McLeod, then deputy grand chief of the Gwich’in Tribal Council, in connection with a single-vehicle crash on the Inuvik-Tuktoyaktuk Highway.
Defence lawyer Alyssa Peeler subsequently challenged the admissibility of laboratory investigation results and two statements Nerysoo gave to police.
She also alleged RCMP had breached Nerysoo’s Charter rights, including his right against arbitrary detention and right to retain and instruct counsel without delay.
In a decision released on Thursday, Justice Elizabeth Hughes ruled against many of the defence’s arguments.
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She did find, however, that Nerysoo’s Charter right to unreasonable search and seizure had been violated related to blood samples being kept at the Inuvik RCMP detachment.
Samples held after detention order expired
According to Hughes’ decision, the samples were taken from Nerysoo at the Inuvik hospital following the vehicle crash on August 8, 2021.
Nine days later, a justice of the peace ordered that the samples could be detained for three months, after which time an application would be required for police to continue holding them as evidence.
The following month, the samples were analyzed at a national forensic laboratory before they were returned to the Inuvik detachment – where they are still being stored.
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While the justice of the peace’s detention order expired in November 2021, the court did not receive an application for the samples to be further detained. Hughes found that, due to Nerysoo’s ongoing privacy interest in his seized blood samples, the lack of a further detention order amounted to a breach of his Charter right.
She said a hearing needs to be scheduled to determine whether the samples should be excluded as evidence under section 24(2) of the Charter. That section states that evidence obtained in a manner that infringes a person’s Charter rights should be excluded if “having regard to all circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”
RCMP had said in 2024 that toxicology results found Nerysoo’s blood alcohol content was at least 80 milligrams of alcohol per 100 milligrams of blood, the minimum concentration for impaired driving charges under the Criminal Code.
Nerysoo set to face trial in July
Nerysoo is set to face trial on the impaired driving causing death charge in Inuvik starting July 13.
According to Hughes’ recent decision, when police responded to the crash, the truck was upside down in a ditch off the Inuvik-Tuktoyaktuk Highway and McLeod was trapped inside.
Nerysoo told police he had been ejected from the vehicle.
McLeod died at the scene.
She has been described by loved ones and colleagues as a kind, generous and dedicated leader who was passionate, caring and an active participant in the Gwich’in Nation from a young age.
In late 2021, the NWT government launched the Kristine McLeod Emerging Indigenous Leader Award to honour her memory and support new Indigenous leaders in the territory as they pursue education, training and development opportunities.
