Should a judge be able to look into the eyes of a criminal offender when accepting a guilty plea and handing down a sentence?
In rejecting an over-the-phone attempt by a man to do just that in Chilliwack provincial court on May 27, Judge Kristen Mundstock responded with a firm “yes.”
J.S. is charged with one count of publication of an intimate image without consent, an act known colloquially as revenge porn. The details of the case have not yet come out in court as the matter did not go to trial because of the intended guilty plea.
That hearing took place in courtroom 204 with just three human beings physically present. Judge Mundstock, the court clerk, and yours truly. On speaker phone at the hearing were J.S, his lawyer David Duncan, and Crown counsel James Whiting.
It was worth waiting for, for a legal nerd like me. Three of us in the courtroom: judge, clerk, myself. Three on the phone: Crown, defence, accused.— Paul J. Henderson (@PeeJayAitch) May 28, 2020
The plan was for Judge Mundstock to accept the guilty plea over the phone followed by a joint submission for a 15-month conditional sentence order.
“We did come to full agreement on virtually 100 per cent of what we are going to put forward as a resolution package,” Whiting told the court.
On May 8, 2020, the Provincial Court of B.C. put forth a “notice to the profession and the public” regarding the commencement of “some court operations” under the current COVID-19 pandemic. Under the category of “process for resolution of non-urgent criminal disposition matters” regarding individuals who are not in custody, there are three conditions to allow for this: the accused and counsel agree to appear by telephone; both sides agree to a similar sentence not involving incarceration; and the disposition is done in 45 minutes.
Anyone who has ever participated in criminal court proceedings knows that nothing takes just 45 minutes.
After pre-ambles, brief questions and answers from Mundstock, Whiting and Duncan, a request by Duncan to disconnect to talk to his client, and a publication ban application on the victim’s name where even I was asked for input, we were 25 minutes into the proposed 45-minute hearing.
Judge Mundstock’s hesitation about the process was evident from the outset.
“I want to hear from counsel with respect to your submissions on why it is I should exercise my discretion in the absence of Mr. J.S.,” she said.
Speaking for the Crown, Whiting explained that the case was to be scheduled for three days of voir dire (trials within trials), and six days of trial involving witnesses across four provinces. A “fairly extensive undertaking,” according to Whiting, one that J.S.’s lawyer suggested would “help the court to clear its backlog” by dealing with a guilty plea and joint sentencing over the phone.
But Mundstock pointed out that the matter is indictable, i.e., very serious, and there is a fundamental principle in our justice system that the judge be able to confront the offender to deliver not only the sentence but the reasons for sentence.
I have covered countless trials, pleas, bail and sentencing hearings, and I’ve always seen the offender’s face, observing mannerisms and emotions that can only be properly identified, even if imperfectly, in flesh.
Speaking one or two words as he did over the phone in that hearing, it occurred to me that J.S. might have been sitting on a wooden bench weeping with contrition. Or, maybe, his eyes were rolling back into his head, feet up, gin and tonic in hand on a sunny patio.
His physical positioning and attitude was much more likely somewhere in between, but did he feel closer to eye-rolling or contrition?
We simply don’t know, and this is not an insignificant fact. Some human interactions simply do not lend themselves to audio only. We can never truly know what another person is feeling, but vastly less so if they are communicating with us over the phone.
Justice Mundstock could not come around to the idea of taking a plea and handing down sentence to a man over the phone, let alone hearing submissions from both sides including case law in 45 minutes. Mundstock pointed to section 650 (1) of the criminal code that states an accused “shall be present in court.”
This didn’t cut it.
“The sentencing judge must be in a position to confront the offender, meet his eye and explain the wrong in the sentencing and the reasons for sentencing,” Mundstock told the two lawyers. “The offender must participate in the justice system in a meaningful way and I’m not satisfied that participating by telephone is meaningful.”
The plea and sentencing was put over to a date in August with J.S. present.
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