Multiple missed hearings cost McDiarmid right to jury trial

A Dawson City man has lost his right to a jury trial because he didn’t show up to court for jury selection last October, a judge ruled Jan. 21.

A Dawson City man has lost his right to a jury trial because he didn’t show up to court for jury selection last October, a judge ruled Jan. 21.

Yukon Supreme Court Justice David Gates made the decision during a special Saturday sitting, at which Mark McDiarmid also failed to appear in person.

McDiarmid, 38, failed to appear on Oct. 31, 2016, which was supposed to be the first day of his jury trial on assault charges.

He claimed he had to go to the hospital that day over a health emergency and applied to have his jury trial rescheduled.

Several dozen potential jurors were sent home that day.

The Criminal Code says it’s up to the accused to prove there was a justifiable reason for missing a jury trial in order to get a new one.

On Jan. 21 McDiarmid was due to appear in court to be cross-examined by Crown prosecutor David McWhinnie over his health claims.

Courts don’t usually sit on the weekend and the hearing required the approval of the Supreme Court’s senior judge.

But McDiarmid called the court from Dawson City, saying he wasn’t told he had to appear in person.

Because he lives outside of town, McDiarmid said he had to walk for 20 kilometres in -40C weather to get to an area with cell service.

“I went to the hospital for fucking hypothermia,” McDiarmid told Gates. “I haven’t had a great day.”

That didn’t sit well with judge Gates, who is in the middle of a murder trial in Calgary and had to fly from Alberta late Friday night for the Saturday hearing.

“I haven’t had a great day either,” Gates said. “But it’s not helpful for you to get angry at me.”

The judge scolded McDiarmid for using the weather as an excuse.

“This is the Yukon territory, “ Gates said, “Winter shouldn’t come as a surprise. It happens every year.”

Time was of the essence because McDiarmid’s trial is scheduled for Feb. 20 and were the judge rule in favour of a jury trial, the sheriff’s office would have had to send dozens of summons letters to potential jurors.

“We can’t hold off anymore,” Gates told McDiarmid.

After a short break — McDiarmid hung up on the court saying he needed time to warm up and prepare — trial coordinator Shauna Frizzell testified she had emailed and phoned McDiarmid, insisting on the obligation to appear in person.

She also faxed McDiarmid’s sister the hearing notice.

McDiarmid said that he didn’t receive any of the emails and that when Frizzell called him he was working on his truck and couldn’t take notes.

It was up to McDiarmid to prove that he had a legitimate excuse to not show up on Oct. 31, Gates said, and McDiarmid failed to do so.

He ordered that McDiarmid surrender himself to the RCMP the Friday before his trial to ensure his attendance.

As the hearing came to an end, McDiarmid tried to have a publication ban imposed on the hearing, which the judge promptly rejected.

“Your jury trial has been forfeited as a result of your conduct,” Gates said.

McDiarmid kept arguing, but Gates offered a quick lesson on the importance of open court and media access.

“The free press is a foundation of our democratic society,” he said, adding that publication bans are the exception.

McDiarmid is accused of assaulting a lawyer and an RCMP officer in Whitehorse court in February 2014.

His judge-only trial will start Feb. 20 in Yukon Supreme Court, that will temporarily be relocated at the Westmark Hotel because of another trial happening at the courthouse at the same time.

Contact Pierre Chauvin at pierre.chauvin@yukon-news.com

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