A provincial court judge in British Columbia who wiped away a tear during a victim impact statement in a sexual interference case says she won’t recuse herself from sentencing because there’s no reliable evidence of bias.
Justice Monica McParland said in her decision Friday that just because a judge demonstrates human compassion, it doesn’t mean there’s judicial bias.
She noted that her emotional reaction was “perhaps” overstated and sensationalized, but she said the Supreme Court of Canada and the Canadian Judicial Council “both agree that judges are human, they are not expected to be robots.”
“There is therefore nothing wrong with the court showing emotion. Just because a judge demonstrates human compassion, it does not amount to judicial bias,” she said.
Affidavits presented by a defence lawyer who asked Justice McParland to recuse herself depended on inappropriate opinion and speculation about what the judge must have been thinking and how she must have been feeling, she said.
The affidavits were from a legal assistant and an aunt of the offender. Justice McParland said those individuals wouldn’t have the criminal court experience to know that it’s part of the process for judges to ask questions, test submissions and determine court processes, such as scheduling.
Defence lawyer Jacqueline Halliburn had asked the judge to recuse herself from sentencing in Kelowna on Aug. 1, saying judges don’t cry in every sexual interference case and that she displayed bias when she scoffed at the suggestion of a 90-day intermittent jail term.
Ms. Halliburn argued the judge refused to accept facts as proven by the defence and reacted inappropriately to the recusal application by “smiling derisively” and insisting the application be made in writing.
Ms. Halliburn also questioned the judge’s overall tone, facial expression and demeanour throughout the court proceedings.
Crown prosecutor Angela Ross countered that judges are expected to demonstrate compassion and no scoff was heard on the court recording.
She said the judge was not “crying” but, rather, “briefly dabbed a tear from her eye with a tissue.” There was no evidence showing inappropriate vocal tone, facial expression or demeanour, Ms. Ross argued.
Justice McParland said she agreed with the Crown that the bulk of allegations against her were “simply not accurate.”
Ms. Halliburn declined comment outside court on Friday.
Jeremy Carlson, also known as Rhiley Carlson, was charged with assault and sexual interference of a person under the age of 16 and later pleaded guilty to sexual interference of a minor.
The Crown has asked for up to 20 months in jail, followed by probation.
The case has been adjourned until Aug. 30 because the Crown said it wanted to present new evidence.