A British Columbia provincial court judge who cried during a victim impact statement in a Kelowna courtroom is incapable of delivering a fair sentence, a defence lawyer says.
The lawyer also says Judge Monica McParland scoffed at the defence’s suggestion for an intermittent jail sentence and displayed an “overall tone of bias” against a person who pleaded guilty to the sexual interference of a minor.
“It is not appropriate for a judge to get so emotional during a victim impact statement, period,” defence lawyer Jacqueline Halliburn said Monday in Kelowna provincial court, adding “Judges don’t cry in every sexual interference case.”
But Crown prosecutor Angela Ross said the judge’s actions fell well below the standard of misconduct required for an application of judicial recusal to be granted. “Even gross discourtesy does not amount to judicial error,” Ross said.
As well, Ross said, judges are expected to demonstrate “compassion and humanity” in the fulfilment of their duties.
McParland herself will decide if she should quit the case and refer sentencing to another judge.
After Crown and defence arguments were made, McParland indicated her decision will come before the end of August.
Online court documents show the case is due to return to provincial court in Kelowna for a decision on Aug. 17.
Jeremy Melvin Carlson was charged in 2016 with sexual assault and the sexual interference of a person under the age of 16. Carlson, who is now in the process of transitioning to become a woman, subsequently pleaded guilty to sexual interference of a minor.
The Crown wants a jail sentence up to 20 months, followed by two years of probation. The defence suggested a 90-day intermittent jail term, to be served over 20 weekends.
The judge’s response when Halliburn proposed that sentence is a matter of dispute. Halliburn described it as a “short, sharp scoff”, but the Crown attorney says no such response is audible on court recordings where it’s alleged to have occurred.
Halliburn introduced submissions from people who believed the judge displayed bias earlier in the proceedings. But Ross said those reactions were predictable from friends and family of Carlson, whom she described as “uninformed observers” who perhaps don’t fully understand the court system.
Judges routinely display a wide range of mannerisms and speaking styles in their interactions with counsel during sentencing proceedings, Ross said, and even if they were true, none of the behaviours ascribed to McParland meet the high standard of proof required for a judicial recusal.
Ron Seymour, Kelowna Daily Courier
The Canadian Press