UPDATE: Kelowna’s crying judge refuses to pull herself from case

Judge Monica McParland won’t pull herself off of case.

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.

RELATED: Kelowna judge weeps, defence lawyer cries foul

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”

RELATED: It’s OK to cry in the courtroom even if you’re a judge

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. AUG. 17 2018

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 pleaded 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.

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.

More to come

To report a typo, email:
newstips@kelownacapnews.com
.


@KelownaCapNews
newstips@kelownacapnews.com

Like us on Facebook and follow us on Twitter.

Just Posted

Murder charge formally dropped against woman accused in downtown Chilliwack killing

Stay of proceedings ordered for Victoria Purcell; Kirkland Russell to be sentenced for manslaughter

ACES grows the love of gardening with annual seed exchange

The event will be returning to Harrison Mills Community Hall on March 1

PHOTOS: Spirit of the People Powwow

Family Day weekend powwow was a colourful, vivid celebration of Indigenous culture

WATCH: Latest Heritage Minute episode filmed near Hope and features some dark local history

Airing on Feb. 20, the 60-second film tells the story of the Asahi and features the Tashme Museum

How much does your city spend per person on snow removal?

Black Press Media compares 2018 ice and snow removal budgets of various Lower Mainland communities

Students give two thumbs up to no more B.C. student loan interest

Eliminating the loan interest charges could save the average graduate $2,300 over 10 years

Ontario man accused of killing 11-year-old daughter dies in hospital, police say

Roopesh Rajkumar had been hospitalized with what police described as a self-inflicted gunshot wound

Manitoba ‘pauses’ link with ex-B.C. premier Gordon Campbell after allegations

Campbell had been hired to review two major hydro projects

Heritage minute features Japanese-Canadian baseball team, internment

The Vancouver Asahi baseball team won various championships across the Pacific Northwest

UPDATE: Woman, off-duty cop in critical condition after stabbing outside B.C. elementary school

The officer was interceding in an alleged assault when he and the woman were stabbed

$10-a-day child care not in 2019 budget, but advocate not irked

Sharon Gregson with the Coalition of Child Care Advocates of B.C. says NDP on track to deliver promise

B.C. Seniors Advocate questions labour shortage in care homes

Are there really no workers, or are care aide wages too low?

B.C. business groups worry about looming economic decline in wake of NDP budget

The party’s second government budget focused on plenty of spending, business advocates say

Missing Surrey snowshoer caught in avalanche found dead on Vancouver mountain

North Shore Rescue resumed its search today after efforts were temporarily halted Tuesday due to snowstorm

Most Read