How much emotion should a judge show in the courtroom?

A retired judge and an Ottawa defence lawyer weigh on the case of a B.C. judge who had her impartiality questioned after she cried while hearing a victim impact statement.

Former judge, Ottawa lawyer weigh in on controversial B.C. case

An Ottawa defence lawyer and a retired Ontario judge are offering their thoughts on how much emotion — if any — judges should show when they're sitting on the bench. (Sean Kilpatrick/The Canadian Press)

It almost goes without saying that a judge's job is to make fair, independent and impartial decisions.

But for one B.C judge, there's a question of exactly how impartial one of her decisions might be.

Monica McParland was seen wiping away tears while hearing a victim impact statement, and now a defence lawyer is questioning her ability to deliver a fair sentence.

It's now up to McParland to decide if she should quit the case and let another judge decide the sentence.

But McParland's situation has raised questions about how much emotion, if any, is acceptable for judges while on the bench.

Former Ontario Superior Court Judge Marie Corbett: 'We don't expect emotional reaction from judges. The law is not based on emotion.' (CBC)

Appearances matter

While she wouldn't talk about the specifics of the B.C case, former Ontario Superior Court Judge Marie Corbett offered some clear general parameters during an interview last week on CBC Radio's Ottawa Morning.

"A judge must not only be impartial, but appear to be impartial. A judge must be fair and appear to be fair," she said.

For Corbett, there is no room for emotion in the courtroom.

"Decisions should not be made based on emotion," she said. "As judges, we instruct juries all the time: your decisions have to be based on reason. They have to be based on the facts."

But Ottawa criminal defence lawyer Michael Spratt doesn't see it as quite so black and white.

"Some of the most sensitive and emotional issues end up in front of our courts," said Spratt in an interview on CBC Radio's All In A Day. 

Spratt said studies from the House of Commons Justice Committee have confirmed that cases take a toll on all members of the justice system, from jurors and witnesses to lawyers and judges.

In this case, it was after a plea of guilt. So it was after the Crown's case was proved beyond a reasonable doubt.- Michael Spratt, defence lawyer

He said it's possible that a judge expressing emotion may cross a line, but he doesn't believe that happened with McParland.

"In this case, it was after a plea of guilt. So it was after the Crown's case was proved beyond a reasonable doubt and the presumption of  innocence was displaced," he said. 

Spratt said it would be different if a judge was hearing a case with a jury, and in the middle of the trial —  when the complainant started offering evidence — they started crying. 

"That could be seen as an expression of opinion, as a signal to the jury about what they should do," Spratt said. "But that is not what we have here." 

Ottawa criminal defence lawyer Michael Spratt questions whether we want human judges judging our cases or robot judges. 'I think the answer is we want human judges.' (Marc-André Cossette/CBC)

Double standard?

Spratt also said that he's seen judges express frustration by slamming their books and storming off the bench.

"If that is done in front of a jury there's a problem. If it's done out of frustration with counsel it may not be a problem," Spratt said.

"And so just like everything in our court, it's a grey area — and it all comes down to the specific circumstances of the case."

Spratt also suggested the B.C case could represent a double standard because McParland is a woman.

"Quite often it's male judges that we see act in ways that express frustration or anger. And we don't have this similar reaction necessarily in those cases," he said.

"The question I ask myself is, do we want humans judging our cases, or do we want robot judges?  And I think the answer is we want human judges."

'Do not smile'

Corbett said she doesn't think judges should be emotionless robots — but they are expected to control and manage their emotions.

When you are in court, do not smile. Never look like you are favouring one side or the other.- Marie Corbett, retired judge

When she was first appointed, Corbett said, she got some good advice from another judge.

"When you are in court, do not smile. Never look like you are favouring one side or the other," she said.

Corbett said it was hard to learn to be a stone-faced judge, and she would bite her lip if she was ever tempted to laugh at jokes from either the defence or the Crown.

"I still have a mark on my lip to this day from biting it so much," she said.

As for Spratt he said that — at the end of the day — there are no rules set in stone about what constitutes acceptable or unacceptable emotional behaviour on the bench.

"The overarching principle is that the proceedings must be fair," he said. "And they must appear to be fair."