Chilliwack Law Courts. (Black Press file)

Chilliwack Law Courts. (Black Press file)

COLUMN: Chilliwack judge refuses to hear guilty plea and sentencing over the phone

‘The sentencing judge must be in a position to confront the offender, meet his eye’ - Judge Kristen Mundstock

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.

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.

• READ MORE: Man gets jail time for posting explicit photos of ex-girlfriends

• READ MORE: Chilliwack Crown asking for nine years prison for prolific offender

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.

Do you have something to add to this story, or something else we should report on? Email:

Like us on Facebook and follow us on Twitter.

Want to support local journalism during the pandemic? Make a donation here.


Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Mackenzie Ashley-Lynn Gilfillan was last seen Jan. 10 in the 45000-block of Menholm Road. (RCMP photo)
RCMP asking for help to find missing Chilliwack woman

Mackenzie Ashley-Lynn Gilfillan was last seen Jan. 10 in the 45000-block of Menholm Road

Chilliwack Chiefs
Chilliwack Chiefs acquire forward Ben Woodhouse from Wellington Dukes

The BCHL club swapped future considerations to the Dukes for the 20-year-old forward

Chilliwack is still one of B.C.’s COVID hot-spots, according to the latest weekly numbers from the B.C. Centre for Disease Control.
Chilliwack records 140 COVID cases over seven-day period

Chilliwack’s case count per 100,000 people is among the highest in the province

An Abbotsford man was killed in a motor vehicle accident on Highway 3 on Monday, Jan. 18. (Black Press file photo)
Abbotsford man killed in Highway 3 crash near Hedley

Fatality was discovered by passing tow truck driver

Light boxes installed recently near Five Corners, seen here on Jan. 18, 2021. (Paul Henderson/ Chilliwack Progress)
Mystery of the large light boxes in downtown Chilliwack revealed

Some suggested ‘warming stations’ for the homeless; others guessed ‘public art’ installations

Provincial health officer Dr. Bonnie Henry prepares a daily update on the coronavirus pandemic, April 21, 2020. (B.C. Government)
B.C. adjusts COVID-19 vaccine rollout for delivery slowdown

Daily cases decline over weekend, 31 more deaths

A female prisoner sent Langford police officers a thank-you card after she spent days in their custody. (Twitter/West Shore RCMP)
Woman gives Victoria-area jail 4.5-star review in handwritten card to police after arrest

‘We don’t often get thank you cards from people who stay with us, but this was sure nice to see’: RCMP

An elk got his antlers caught up in a zip line in Youbou over the weekend. (Conservation Officer Service Photo)
Elk rescued from zip line in Youbou on Vancouver Island

Officials urge people to manage items on their property that can hurt animals

A Trail man has a lucky tin for a keepsake after it saved him from a stabbing last week. File photo
Small tin in Kootenay man’s jacket pocket saved him from stabbing: RCMP

The man was uninjured thanks to a tin in his jacket

Tla-o-qui-aht First Nation Chantel Moore, 26, was fatally shot by a police officer during a wellness check in the early morning of June 4, 2020, in Edmundston, N.B. (Facebook)
Frustrated family denied access to B.C. Indigenous woman’s police shooting report

Independent investigation into B.C. woman’s fatal shooting in New Brunswick filed to Crown

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

Delta Police Constable Jason Martens and Dezi, a nine-year-old German Shepherd that recently retired after 10 years with Delta Police. (Photo submitted)
Dezi, a Delta police dog, retires on a high note after decade of service

Nine-year-old German Shepherd now fights over toys instead of chasing down bad guys

Nurses collect samples from a patient in a COVID suspect room in the COVID-19 intensive care unit at St. Paul’s hospital in downtown Vancouver, Tuesday, April 21, 2020. (THE CANADIAN PRESS/Jonathan Hayward)
5 British Columbians under 20 years old battled COVID-19 in ICU in recent weeks

Overall hospitalizations have fallen but young people battling the virus in hospital has increased

Canada released proposed regulations Jan. 2 for the fisheries minister to maintain Canada’s major fish stocks at sustainable levels and recover those at risk. (File photo)
New laws would cement DFO accountability to depleted fish stocks

Three B.C. salmon stocks first in line for priority attention under proposed regulations

Most Read