Whitehorse Daily Star

Accused tried to charge at lawyer, court told

The trial of a Dawson City man has continued in his absence.

By Emily Blake on February 21, 2017

The trial of a Dawson City man has continued in his absence.

Mark McDiarmid refused to participate in his trial Monday in Yukon Supreme Court in Whitehorse, claiming the courts had lost jurisdiction.

In a rare decision based on common law, the trial continued without him. As McDiarmid is self-represented, Justice David Gates took on the responsibility of cross-examining Crown witnesses.

“Judges are normally very reluctant to become engaged in the examination or cross-examination of witnesses,” said Justice Gates.

But he explained that in McDiarmid’s absence, “the onus is on me at law to ensure the evidence addresses any concerns I would anticipate he may have.”

Opportunities were given to McDiarmid to consult with a lawyer or view the trial via CCTV from a witness room. He refused to leave the courthouse cells.

McDiarmid’s mother spoke to the judge about her son’s frustrations.

She noted he was required to turn himself in to RCMP last Friday in Dawson City and was unable to access a computer nor print materials at the Whitehorse Correctional Centre (WCC).

“I know my son very well; he’s frustrated, he’s frustrated with the process,” she said.

She noted on past occasions while he was in custody, his writing material was confiscated, and claimed that two months of work was erased from his computer.

“How does one go about trying to do their court case with all of these things happening? He wants to get this done,” she said.

However, Justice Gates noted McDiarmid was released from custody in August 2015 and has had over a year and a half to prepare for the trial.

“I’m not unsympathetic to Mr. McDiarmid’s issues with WCC but they are not new,” he said.

“Today’s the day.”

McDiarmid is charged with the intimidation of a justice system participant, obstructing justice, uttering threats, assault, assaulting a peace officer, and resisting a peace officer.

The charges stem from an alleged incident on Feb. 7, 2014 in the Whitehorse courthouse cell block.

The first Crown witness, RCMP Cpl. Stephen Knaack, the former NCO in charge of the Whitehorse provo unit (responsible for escorting inmates), testified about the incident while playing clips from video recorded by the courthouse’s CCTV system.

He testified that Jennifer Cunningham, who had been appointed amicus in McDiarmid’s case at the time, had visited him in the courthouse cells to bring him paperwork.

On the video, which did not record audio, she is seen nodding and speaking to McDiarmid, who is off-screen inside a cell, while Knaack holds the cell door open.

Knaack described the conversation as “extremely civil” and said “nothing was said or done to make me believe what happened next was about to happen.”

After Cunningham hands McDiarmid some papers, their conversation continues briefly until he is seen coming quickly out of his cell towards her.

“Mr. McDiarmid, with papers in one hand, cocked a fist with his other hand and made an attempt to charge at her out of the cell,” testified Knaack.

He said he caught McDiarmid, and a struggle ensued between them, while Cunningham backed away behind him and moved toward the end of the hall into a “blind corner.

“He was making every effort to get past me,” said Cpl. Knaack.

“At one point, we were in a push-pull match as I held onto him and he tried to get at her.”

The struggle is seen progressing down the hallway toward Cunningham, then McDiarmid is taken to the floor.

Const. Ben Kingdon enters and helps Knaack to detain McDiarmid. He is put in handcuffs and leg shackles and dragged into the closest cell.

Knaack testified that in a “calm voice,” McDiarmid repeated, “I’m going to get you, Jenny” to Cunningham while he was pinned on the floor and after he had been taken to a cell.

The entire incident took eight minutes.

In previous court appearances, McDiarmid expressed concerns about the authenticity and potential tampering of the video shown in court.

However, at a pre-trial conference, he failed to make an application to have the video examined by an expert.

Knaack testified that while McDiarmid was not happy that Cunningham was appointed amicus by the court, “over time, she became a resource he requested.”

She helped him with legal research, gave him documents and even assisted with making calls on a cell phone, as he did not trust the court’s phone system.

Cunningham also testified as a Crown witness based on her memory of the event and what McDiarmid had said in open court.

She testified that she initially thought McDiarmid was unhappy that she had been appointed amicus in general, but through this case learned that he was also upset with her personally.

She stated she did not remember what McDiarmid had said to during the incident other than, “just general words of perhaps what he might do if he got away.”

Later that afternoon, she appeared with him as amicus in Yukon Supreme Court.

She noted that if she had a choice, she would not press charges.

Before he ended the trial for the day Monday, Justice Gates asked Crown prosecutor David McWhinnie to consider whether a threat that is not heard by the intended recipient is legally a threat.

The trial continued today.

Comments (1)

Up 4 Down 1

jc on Feb 21, 2017 at 5:56 pm

He knows the system and using to his advantage. These guys are smarter than the judges and lawyers.

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