A man warning a police officer that there were guns inside a bag as he was being walked over to medical treatment after a fatal crash in 2022 outside Keremeos were voluntary statements a judge ruled on Jan. 6. 

Nicholas Allan James is charged with theft of mail, possession of stolen property, occupying a vehicle knowing there was a firearm present, possessing a firearm without a licence and possessing a prohibited or restricted firearm, stemming from an incident on Feb. 27, 2022.

Police had initially been called out to investigate individuals allegedly breaking into a community mailbox, but were redirected while on route to the scene of a fatal crash out past Standing Rock west of Keremeos involving the possible suspect vehicle. 

James appeared in Penticton Provincial Court on Jan. 6 for his ongoing trial, with a large chunk of the session focused on whether statements he made to police immediately following the fatal crash of the vehicle were voluntary and made with an "operating mind". 

After reviewing case law and transcripts of a voir dire held in 2024, Judge Shannon Keyes determined that James was, despite the shock of the situation, aware of the situation he was in when he spoke with the officer as he was guided away from the crash scene. 

"As he walked to Constable Elensky's vehicle and Mr. James was placed in the back seat with the door open, he and Const. Elensky engaged in further conversation that included Mr. James asking to speak to his deceased friend's wife, and other things of that nature," said Keyes. "In that context, I am of the view that Mr. James did have an operating mind at the time that he made the statements to Const. Elensky"

The judge also noted that James had, unprompted by any question, told the officer his friend was dead and that he, meaning James, was not the one driving the vehicle. 

"Mr. James, however, distressed he was at the time, did have an operating mind. He knew what he was saying and he was speaking to a purpose," said Keyes. 

The other statement that was being challenged by James' defence was a warning he gave to the officer when Elensky grabbed the guitar bag that James was carrying, warning him that there were firearms inside. 

Inside the fabric guitar case were two loaded "assault-rifle-style" firearms and four high-capacity magazines the court heard. James was under two-lifetime firearms prohibitions at the time of the incident. 

Const. Elensky was called to testify on Jan. 6, and in addition to going over the interaction he had with James, spoke to the investigation of the vehicle after it was turned over by Highway Patrol and approval of a search warrant. 

Inside the vehicle, which also contained debris collected from the field by Highway Patrol following the crash, were items identified as stolen pieces of mail addressed to various individuals, as well as items determined to have come from a break-and-enter of residence on the same street as the mailbox.

James' trial was adjourned to give time for his defence to prepare two applications and will resume with his defence and testimony at an unspecified future date.