By Cheryl Wierda
A Kelowna judge accused of bias after she allegedly cried during a sentencing hearing has refused to pull herself off the case, the court heard Friday.
In a 13-page written decision, Judge Monica McParland denied defence lawyer Jaqueline Halliburton’s application to recuse herself from the sentencing of an individual who pleaded guilty to sexual interference.
“I must determine if a reasonable, right minded person armed with all of the relevant information would consider it more likely than not that I would, consciously or unconsciously, unfairly decide the matter,” McParland said, referring to the long-standing test for judicial bias.
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Defence accusations against McParland included “crying” during a victim impact statement, “scoffing” at the defence sentencing submission, refusing to accept facts presented by them and “smiling derisively” when the recusal application was made.
Crown disagreed and said the judge did not cry, but briefly dabbed a tear from her eye during an emotional victim impact statement made by the mother of the eight-year-old victim. They also said the judge did not have an inappropriate reaction to the recusal application and did not scoff at the defence sentencing position, but instead looked somewhat surprised, given the disparity between the sentencing requests.
In her decision, McParland concluded the defence accusations were “simply not accurate, when one compares them against the transcript and audio recording.”
“On the issue of the Court’s empathetic response to the victim impact statement, this was perhaps overstated and sensationalized. The Supreme Court of Canada and the Canadian Judicial Council, Commentaries on Judicial Conduct both agree that judges are human, not robots….just because a judge demonstrates human compassion, it does not amount to judicial bias”
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The onus was on defence to prove bias, and the judge noted defence relied on the affidavits of two individuals—a legal assistant not present in at the sentencing hearing and the accused’s aunt—and concluded neither could be considered an objective and informed person with knowledge of all the relevant circumstances in the case.
“The affidavits illustrate that the authors do not have the appropriate or requisite experience in criminal courts to understand that it is a natural and appropriate part of the advocacy process for the Court to engage with both Crown and defence, asking questions, seeking clarification, testing submissions of counsel and having counsel explain and defend their position,” wrote McParland. “In summary, there is no reasonable evidentiary foundation to support a reasonable apprehension of bias from the perspective of an informed reasonable and right minded person whom is fully apprised of the facts.”
Jeremy Melvin Carlson, who is transitioning to a woman, pleaded guilty in November to sexual interference of a minor. The crime is alleged to have taken place between 2015 and 2016. At a sentencing hearing in April, Crown requested a jail sentence of 15 to 20 months, followed by probation. Defence requested a 90-day intermittent jail sentence. The case returns to court later this month to schedule additional sentencing time.
ORIGINAL: 12:25 P.M.
A Kelowna judge accused of bias after she allegedly cried during a sentencing hearing has refused to pull herself off the case, the court heard Friday.
Defence lawyer Jacqueline Halliburton asked that Judge Monica McParland recuse herself because she alleged the judge had a reasonable apprehension of bias during an April sentencing hearing for a person who pled guilty to sexual interference.
Halliburton’s allegations included that the judge scoffed at the sentencing request made by defence and cried during the victim impact statement.
McParland, however, said the allegation she cried was “overstated and sensationalized”, and that the bulk of the allegations made by defence were “simply not accurate” when compared against the transcript and audio recording of the court hearing.
RELATED: Kelowna judge weeps, defence lawyer cries foul
The application for the judge to recuse herself came during the sentencing hearing of Jeremy Melvin Carlson, who is transitioning to a woman. Crown has requested a jail sentence of 15-20 months, followed by probation. Defence requested a 90-day intermittent jail sentence.
RELATED: It’s OK to cry in the courtroom even if you’re a judge
More to come
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