Video trial an example why cases need to be heard despite pandemic, judge says

A Newfoundland and Labrador provincial court judge is warning against justice being needlessly hindered by the COVID-19 outbreak, saying there is no reason prosecutors cannot still bring matters forward during the pandemic.

In a decision released Wednesday, Judge Wayne Gorman said Sheldon Mitchell, 40, sat in jail for more than two months, in part, for crimes he was later absolved of, and said the matter could have been resolved much sooner. 

"At the close of the Crown's case, [Crown attorney Alison] Manning asked that the charges be dismissed. It was appropriate for her to do so based upon the lack of evidence the Crown presented, but this decision should have been made before the trial commenced, not at such a late stage," said Gorman, who, while located in Corner Brook, oversaw the case on the Burin Peninsula.

"The lateness of the decision is particularly concerning in this case because Mr. Mitchell was denied bail and has been in custody, primarily because of these charges, since March 3, 2020."

Gorman cited a recent advisory from the provincial court announcing that as of May 19 more cases on the docket will be dealt with if they can be heard remotely. 

"The successful implementation of this plan requires the assistance of counsel. There is no longer any reason for the Crown failing to bring matters forward," he said.

One day later, however, Gorman released a second decision involving Sheldon Mitchell. In that incident, Gorman sentenced Mitchell to 180 days of imprisonment, followed by 12 months of probation, for having committed the offences of assault and breach of undertaking. 

Mitchell had pleaded guilty to a number of serious incidents of intimate partner violence.

Intimate partner violence

Michell was arrested on Nov. 18, 2019, after the mother of a woman — whose name was not disclosed — contacted police to say her daughter had been assaulted.

The decision, released Thursday, said Mitchell and the woman were in a relationship and began arguing after he told her to move out of his home in St. Lawrence.

The two got into a "wrestling match" in which Mitchell used excessive force.

"This excessive force resulted in Ms. X receiving significant bruising to her arms; her leg; and to her behind," the decision said. "The photographs entered as an exhibit show areas of large bruising to these portions of Ms. X's body."

He was released on conditions not to contact the woman and members of her family two days later but immediately breached those conditions when he sent a text message to her father asking for his vehicle keys. He then repeatedly messaged her former partner on social media.

The next day, police found the woman hiding in the man's closet after leaving her home following an argument with her parents.

By being in contact with the woman, Mitchell, again, breached his conditions.

On Dec. 22, a civilian employee of the RCMP saw the two together at the No Frills store — again, against orders to do so.

After pleading guilty, Mitchell was sentenced this week. He also, went to trial, on separate charges involving intimate partner violence.

2nd case

Also on May 12, Gorman conducted a trial remotely with five people testifying by video — two from their homes, one in another province, and two police officers from their detachment. He said it went off without a hitch, and mirrored the process that would have happened in a courtroom.

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

Mitchell was arrested following an incident with his then partner on March 3, in Marystown. He was charged with assault with a weapon — his truck — assault, and breach of undertaking. All of those charges would be dismissed.

The trial heard that an argument started around suppertime, in the parking lot of a grocery store, and resulted in Mitchell kicking his partner out of the truck twice.

Witnesses testified that the woman got into the pan of his truck, took his keys and ran, and hit the hood of Mitchell's truck before throwing her body against it. Mitchell testified he tried to drive around her but she grabbed hold of his side mirror. 

"She was there dragging and soon as I seen that, obviously I stopped and got out and she was sat down in the puddle of water," he said. "And I got out and helped her up."

Two witnesses said Mitchell himself during the ordeal asked them to call police, or made note that he would call police himself. The woman did not tell police or the trial that Mitchell assaulted her.

The Crown later told the court to dismiss the charges — something Gorman said should have happened long before the trial began.

"This case illustrates why the Crown should be reviewing outstanding charges and bringing forward the ones for which there is insufficient evidence to proceed with."

Backlog of cases

Chief Judge Pamela Goulding said cases have been piling up because of the pandemic, creating a backlog.

Goulding paints a picture of a system set to burst. After courts were shuttered, only bail hearings, and trials involving people denied bail, were being heard.

In a statement to CBC News, she said, "There are approximately 20 criminal trials set to be heard in [Newfoundland and Labrador] in 10 court centres every day. Hundreds of other charges are called before judges for the purposes of plea and imposition of sentence," Goulding wrote.

"None of these cases are being heard."

Goulding said it's dangerous for society when the court system operates on a limited capacity.

"The police can investigate crimes, arrest and charge people, but it falls to the courts to try and punish them in an effort to change offending behaviours to protect victims and prevent further crime," she said.

"We must be concerned every day that passes that this critical function is not being efficiently and effectively carried out."

Starting next week, provincial court will be able to use audio and videoconferencing. But Goulding stressed that prosecutors, defence lawyers and all who want their cases heard need to step forward.

"At the best of times we are looking for ways to do this job better. At times like these we must find a way to do all that we can within the limitations imposed on us."

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