B.C. judge refuses to recuse herself for crying in court

A B.C. provincial court judge has ruled not to recuse herself from presiding over a sexual interference case after a defence lawyer accused her of not being able to deliver a fair sentence because she cried during a victim impact statement.

Judge dismissed defence lawyer's claim she could not fairly rule on case because she showed emotion in court

B.C. Judge Monica McParland has ruled not to recuse herself from a Kelowna trial after allegations she showed bias against the offender by crying during a sentencing hearing. (Brady Strachan/CBC)

A B.C. provincial court judge has ruled not to recuse herself from presiding over a sexual interference case after a defence lawyer accused her of not being able to deliver a fair sentence because she cried during a victim impact statement.

Judge Monica McParland read from her 13-page written decision in Kelowna provincial court on Friday.

"I must determine if a reasonable, right minded person armed with all the relevant information would consider it more likely than not that I would, consciously or unconsciously, unfairly decide the matter," McParland said.

"I refuse to recuse myself."

Accused of an overall tone of bias

During a sentencing hearing in April, McParland teared up during what court documents describe as a 'highly emotional and moving' victim impact statement.

At the end of the day's proceedings, defence lawyer Jacquelin Halliburn made an application that the judge pull herself off the case.

Halliburn also argued McParland scoffed at the defence's suggestion for a 90 day intermittent jail sentence for her client, and that her tone, facial expression and demeanour throughout the proceedings indicated an "overall tone of bias" against her client.

Halliburn's client Jeremy Melvin Carlson, who now goes by the name Rhiley Melvin Carlson, pleaded guilty in 2017 to the sexual interference of a young person. 

The Crown is seeking a jail sentence of 15 to 20 months.

Carlson's sentencing hearing will continue in the fall when the court is expected to hear from more Crown and defence witnesses.

'Dabbed a tear from her eye'

Crown prosecutor Angela Ross argued "the judge was not crying as was being reported in the media, but rather briefly dabbed a tear from her eye with a tissue."

Ross also disagreed that McParland scoffed at the defence lawyer's sentencing suggestion but rather looked "somewhat surprised" which she called warranted "given the defence's extremely lenient sentencing position for an offence of this nature."

In her decision the judge ruled, "the bulk of the allegations made by defence are simply not accurate" when compared to the transcript and audio recording of the sentencing hearing.

On the issue of her tearing up during the victim impact statement, McParland stated "just because a judge demonstrates human compassion, it does not amount to judicial bias."

A well reasoned decision

Bill Sundhu, a retired B.C. provincial court judge and current defence lawyer with no involvement in the case, called McParland's decision carefully considered and well-reasoned.

"In the end, the judge has carefully provided reasons including what the law says in saying, 'No, I need not recuse myself and this is not a reasonable application,'" he said.

Sundhu said that a presiding judge should be able to determine if they should recuse themselves because the judge is the one in the courtroom and able to evaluate the merits of the application.

He called the defence lawyer's decision to apply for McParland to remove herself from the case an exceptional and rare circumstance.

"It think it was an ill advised application," he said.

"Ultimately, if you think a judge has made an error in law and imposed an improper sentence, you can appeal it."

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Clarifications

  • A previous version of this story contained personal details about the defendant that were not relevant to the story. They have been removed.
    Aug 28, 2018 1:39 PM PT