Mark McDiarmid, 38, was found guilty of assault, uttering threats, and resisting a peace officer by Justice David Gates in Yukon Supreme Court in Whitehorse this morning.

He was acquitted of three other charges.

McDiarmid was sentenced to serve 10 months in jail. He has already served two years in pre-sentence custody and has been given time served. He is also required to have no contact with Whitehorse lawyer Jennifer Cunningham for one year.

In his reasons for decision, Gates noted the difficulty in determining intent from an incident that was only 56 seconds long from the time that McDiarmid charged out of his cell to when he was handcuffed by RCMP.

(On Tuesday, the Star reported that the incident was eight minutes long, which was the entirety of the video clip played in court.)

He also noted that Cunningham, who McDiarmid was found guilty of assaulting and uttering threats towards, did not testify that she was afraid and appeared in court with him the same day the assault occurred.

While discussing sentencing, both Crown prosecutor David McWhinnie and Justice Gates agreed that McDiarmid had served more time than he would be sentenced.

However, they disagreed over whether McDiarmid should receive probation.

“I’m very reluctant to put him on probation,” said Gates.

“It’s very clear to me that Mr. McDiarmid is done with the justice system, he wants to live his life.”

He noted that McDiarmid has done well while on release and has no new substantive charges. He also expressed concern that probation would be “setting him up” for trouble with the justice system.

McDiarmid’s mother, Brandy Maude, and sister, Stacey McDiarmid, also spoke about how he prefers to stay out of the city and spend time at his woodlot outside of Dawson City.

“He likes to be out in the bush, that’s what he likes to do,” said his sister, noting he likes to engage in First Nations practices on the land.

The charges stem from an incident on Feb. 7, 2014 in the cell block of the Whitehorse courthouse where McDiarmid “cocked a fist” and charged out of his cell towards Cunningham. He was intervened by RCMP Cpl. Stephen Knaack, who was assisted by Const. Ben Kingdon.

On Tuesday, the second and last day of the trial continued while McDiarmid chose to stay at the Whitehorse Correctional Centre.

The final witness, Antoine Oxford, a jail guard for the RCMP, testified about the video recording system in the Whitehorse court cell block, at the request of the court.

McDiarmid’s mother also spoke to the court about transcripts that she said her son wanted them to see. 

She said they proved the court orders appointing Cunningham as amicus in two of McDiarmid’s separate Supreme Court cases were illegal and unwanted. 

“He doesn’t want an episode, he’s tired of fighting the amicus thing,” she explained.

“This situation has been created because of this amicus issue.”

She also expressed her and her son’s frustration dealing with the legal process, noting that he decided to represent himself after he met a lawyer for the first time at a court appearance 37 days after he requested to see him. 

As well, she detailed difficulties in her son’s past. His father, with whom he was very close, died when he was eight years old in a traffic accident. His younger sister also had numerous surgeries as a child and was diagnosed with cancer twice as a teen.

“He has endured a lot of pain in his life,” she said.

Justice Gates said he would consider the transcripts but stressed that McDiarmid could not both refuse to participate in the trial and have his mother, who had no legal status at the trial, present defence materials.

“He will either participate or he doesn’t, I’m not sure there’s a halfway between,” he said. 

After viewing the documents Gates questioned their relevance to the trial stating of the amicus issue, “the order is the order until it’s set aside.” 

When entering his submission for the charges, McWhinnie and Gates engaged in a long argument about counts one and two; intimidation of a justice system participant and obstructing justice.

Gates failed to find that McWhinnie’s arguments proved intent beyond a reasonable doubt. 

“Mr. McWhinnie, I want you to show me the road map to guilt for obstructing justice, because I don’t see it,” he said.

McWhinnie compared Cunningham’s testimony to that of a survivor of domestic violence who may downplay the severity of a violent event, appearing “as conservative and cautious as possible.” 

“There’s an entirely different power dynamic between a lawyer and a member of the public,” responded Gates. 

McDiarmid appeared briefly in court today to hear that he was being released.

He said he did not want to hear the outcome of the charges and plans to appeal the case regardless.

He also thanked Justice Gates for his patience, noting that the legal process takes a toll on self-represented accused.

“You’re a very smart man and have all sorts of skills to live a happy, peaceful life,” Gates told McDiarmid.

McDiarmid has trials set for April and May on allegations of not reporting to a probation officer and failing to appear at a judge and jury trial.