Assault cases show why pandemic should no longer delay court matters: N.L. judge

ST. JOHN’S, N.L. — A Newfoundland judge says the resolution of two court cases involving a man charged with assaulting his partner demonstrates why cases must continue to be heard during the COVID-19 pandemic.

In written decisions released this month, provincial court Judge Wayne Gorman detailed how technology was used effectively to resolve a trial and sentencing matter, arguing that the pandemic is no longer a valid reason for court delays.

Gorman cited a recent notice from the provincial court notifying lawyers that applications are opening on the dockets to hear more cases remotely.

“There is no longer any reason for the Crown failing to bring matters forward,” Gorman wrote. “By delaying matters that can be heard, the Crown is denying access to justice for accused persons, complainants and victims.”

Gorman acquitted 40-year-old Sheldon Mitchell of assault, assault with a weapon and breach of undertaking in the first judgment dated May 12, citing a lack of evidence that Mitchell used his truck as a weapon during an argument with his former girlfriend in March.

Gorman wrote that given the lack of evidence, the charges should have been withdrawn before the trial commenced.

He said the delay in the case being heard was “particularly concerning” because Mitchell had been denied bail and had been in jail since March 3, the night of the incident.

“The trial of this matter illustrates why the pandemic is no longer a reason for the hearing of trials to be delayed,” Gorman wrote.

The judge described how video-conferencing made the trial possible with parties joining virtually from across the country, including one witness who testified from Manitoba.

He said lawyers appeared from their offices, the court clerk participated from a courthouse in Grand Bank and the judge presided from Corner Brook.

“The sound and picture quality was excellent,” he wrote. “As a result, this trial was conducted in the same fashion as it would have been if the parties were personally present in a courtroom.”

In a second judgment dated May 14, Gorman sentenced Mitchell to 180 days of imprisonment and twelve months of probation for a November 2019 assault of the same woman, and for breaching an undertaking that he not make contact with her.

Both parties agreed to a statement of facts stating that Mitchell used excessive force during a “wrestling match” with his partner that left her severely bruised. He was released under order not to contact the woman or her family, but breached that order four times.

At the May 12 hearing, Gorman wrote, technology allowed witnesses, counsel and judges to appear by video and for a journalist to observe to observe proceedings.

He said the success shows that the Crown should not delay in bringing such matters forward, especially because the pandemic has put victims of intimate partner violence at greater risk.

“Victims of intimate violence are often very vulnerable and the pandemic has increased their vulnerability,” he wrote. “Cases involving intimate violence should not be placed on hold when the court has the technology and has expressed a willingness to hear additional matters.”

Gorman wrote that the offences in the case were “too serious to warrant a sentence other than a custodial one,” and Mitchell was ordered to serve an additional 72 days after taking into account time spent in custody awaiting trial.

But Gorman rejected an argument from Mitchell’s lawyer that his client’s pre-sentence custody should count for more than the standard because of the risk of exposure to COVID-19 in jails.

This report by The Canadian Press was first published May 20, 2020.

Holly McKenzie-Sutter, The Canadian Press