Alberta judge explains why murder suspect was told to remove his mask during trial

"Absent the pandemic, the visible face of the accused is a normal part of the trial process," said Justice Douglas Mah.

'The visible face of the accused is a normal part of the trial process'

The accused in an Edmonton murder trial was asked by the judge to remove his mask. (Josee St-Onge/CBC)

A judge has released a written decision explaining why he ordered a murder suspect to remove his COVID-19 mask during a recent trial.

Arnold Anton Stephens was charged with second-degree murder in the stabbing death of 17-year-old Ashton Cardinal in June 2017.

Cardinal's body was found in a parking lot in northeast Edmonton. Witnesses said there had been an early-morning disturbance that included a fight with weapons involving several people.

Last month, a jury convicted Stephens on the lesser charge of manslaughter.

Midway through the trial, Justice Douglas Mah told Stephens to remove the mask he had been wearing up to that point so the jury could see his face.

Lawyer's protest cited self-incrimination

The accused's lawyer, Austin Corbett, argued that his client's charter rights protected him from self-incrimination and he shouldn't be required to do anything to help the prosecution.

In his written reasons, Mah agreed that an accused in a criminal case "is entitled to stand mute and is not required to put forward any sort of evidence until such time as the Crown has established a prima facie case."

But he added that "absent the pandemic, the visible face of the accused is a normal part of the trial process."

"My concern is that if I rule in favour of Mr. Stephens, it will lead to a situation where an accused can mask himself during the trial to avoid identification in cases where identification is the only issue, whether there is a pandemic or not."

The judge pointed out that he himself, counsel and witnesses had gone maskless for periods of time to be heard better in a large courtroom.

Public-health protocols were still observed through barriers and physical distancing.

Mah wrote that Stephens wearing a mask during the trial was "entirely fortuitous and due to the pandemic."

"What I have concluded thus far is that the court does have discretion to require removal of the mask, but that discretion must be exercised with the accused's charter rights in mind."

After the conviction, the judge ordered a Gladue pre-sentence report, which takes an Indigenous offender's background and circumstances into account.

A date for a sentencing hearing is to be set April 9.