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

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.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Possible COVID-19 exposures may have occurred at Alexander Elementary School on Jan. 13, 14 and 15. (Google Maps)
Alexander Elementary in Duncan announces possible COVID-19 exposures

Exposures may have occurred on Jan. 13, 14 and 15

Seven streets in downtown Duncan, including Station Street, will soon have new native names added to their signage. (Submitted graphic)
New street signs in Duncan in English and Hul’q’umi’num

Seven streets to get additional native names on signs

North Cowichan to add three more off-leash dog areas in the new year. (File photo)
North Cowichan adds three new off-leash areas

Trial program runs through 2021, but not the summer months

Principal Marie-Claude Carrier has overseen the opening of the Cowichan Valley’s first francophone school. (Citizen file)
Registration now open for Duncan Francophone school

École francophone de Duncan opened last fall with six students

Reggie went missing in Duncan’s McAdam Park on Jan. 3 and owner Brittny Bukva is hoping for his safe return. (Submitted)
Have you seen Reggie? Dog went missing in Duncan’s McAdam Park

Have you seen Reggie? Dog went missing in Duncan’s McAdam Park

A woman writes a message on a memorial mural wall by street artist James “Smokey Devil” Hardy during a memorial to remember victims of illicit drug overdose deaths on International Overdose Awareness Day, in the Downtown Eastside of Vancouver, on Monday, August 31, 2020. THE CANADIAN PRESS/Darryl Dyck
B.C. paramedics respond to record-breaking number of overdose calls in 2020

On the front lines, COVID-19 has not only led to more calls, but increased the complexity

Throughout December, RCMP conducted CounterAttack road checks as police worked to keep roads free of impaired drivers. (BLACK PRESS file photo)
From the “You can’t make this stuff up” file – stories from the BC CounterAttack campaign

Amusing, yes, but a reminder impaired driving affects ability to drive and to make good decisions

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

(Thesendboys/Instagram)
Video of man doing backflip off Vancouver bridge draws police condemnation

Group says in Instagram story that they ‘don’t do it for the clout’

The RCMP are reminding drivers to find alternative ways home if they have consumed anything that impairs their ability to drive. (Black Press file photo)
Impaired Island driver flees road check twice on the same night

The officer issued the driver numerous violation tickets, and a four-month driving suspension

Inspection of bridge crossing on a B.C. forest service road. (B.C. Forest Practices Board)
B.C. falling behind in maintenance of forest service roads

Auditor finds nearly half of bridges overdue for repair

(Black Press Media files)
Woman steals bottles of wine after brandishing stun baton in New Westminster

Police say the female suspect was wearing a beige trench coat with fur lining

Toronto’s Mass Vaccination Clinic is shown on Sunday January 17, 2021. THE CANADIAN PRESS/Frank Gunn
Canadian malls, conference centres, hotels offer up space for COVID vaccination centres

Commercial real estate association REALPAC said that a similar initiative was seeing success in the U.K.

Kamala Harris and Joe Biden are sworn into office on Wednesday, Jan. 20, 2021, at the U.S. Capitol in Washington, D.C. (Saul Loeb/Pool Photo via AP)
Joe Biden has been sworn in as the 46th president of the United States

About 25,000 National Guard members have been dispatched to Washington

Most Read