A North Vancouver judge has turned down an application to reopen a trial for a man convicted of aggravated assault against a Squamish transgender woman.
During a hearing in North Vancouver Provincial Court on Aug. 29, Judge Patricia Bond said it would not be appropriate to reopen the trial for Cody Jamie Eric Nelson.
Before Bond rendered her decision, Nelson's lawyer, Kate Kirkpatrick, argued that the case should be reopened to allow Nelson to testify.
On June 25, 2020, Nelson was convicted of aggravated assault against Jayme Schmetterling.
This decision was rendered after Nelson punched Schmetterling outside the Dollar Tree in downtown Squamish on Oct. 15, 2018. Schmetterling suffered injuries to her face, including broken orbital bones, and bleeding in her brain, which led to lasting brain damage.
Kirkpatrick said that after Bond convicted Nelson, new information came forward.
"On March 19, 2021, the new trial Crown provided an email to Mr. Nelson via counsel indicating that the prior CPIC [Canadian Police Information Centre] record provided to Mr. Nelson was incorrect," said Kirkpatrick.
The CPIC contains or provides digital access to various criminal record data banks.
Kirkpatrick said this changed the outcome of the trial, because, based on the revised records, Nelson's then-lawyer, David Forsyth, swore in an affidavit he would've made Nelson testify. Nelson did not take the stand during the trial.
"On the basis of the first CPIC record that was disclosed, defence counsel advised Mr. Nelson that he should not testify," she said. "After reviewing the corrected CPIC information, defence counsel determined that he would have advised Mr. Nelson to testify."
Nelson was scheduled to be convicted in April this year, but that was delayed, as the new information prompted the defence to file an application to reopen the trial.
If the trial was reopened, this would allow Nelson to testify, possibly creating a different outcome for the case.
On the other hand, the Crown prosecutor, Michaela Donnelly, argued that this was an attempt to reverse what she called "tactical decision" to keep Nelson from testifying in court.
"A trial judge must consider whether the application to reopen is, in reality, an attempt to reverse a tactical decision made at trial," said Donnelly.
"Counsel must make tactical decisions in every case. Assuming those decisions are within the boundaries of competence, the accused must ordinarily live with the consequences of those decisions."
Bond said in her decision that Nelson's circumstances did not meet the bar for reopening the trial.
"First of all, defence counsel was in possession of the evidence which they have characterized for the purpose of this application as being new evidence from Jan. 16, 2019," said the judge.
"Had they exercised due diligence back then, they would have seen the same evidence that became apparent to them back in March of 2021."
Bond also echoed Crown's opinions that there is a need to consider the need for timeliness and finality in this case, as this matter has unexpectedly taken a long time.
Nelson is next scheduled to appear in North Vancouver court on Sept. 29.