VANCOUVER — Judges can't be expected to be emotionless robots, two legal experts said after a defence lawyer questioned a British Columbia judge's ability to deliver a fair sentence because she cried during a victim impact statement.
Defence lawyer Jacqueline Halliburn has asked provincial court Judge Monica McParland to recuse herself from the Kelowna courtroom because of what she argued was an "overall tone of bias" against a person who pleaded guilty in a sexual interference case. The lawyer also said McParland scoffed at the defence's suggestion for an intermittent jail sentence.
It will be up to McParland to decide if she should quit the case and refer sentencing to another judge.
In my view, to suggest that an emotional response in itself is an indication of bias is a really wrong-headed approach.Annalise Acorn, University of Alberta
Annalise Acorn, a professor of law at the University of Alberta with no involvement to the case, said judges are routinely confronted with facts involving tremendous amounts of human suffering and as human beings can be expected to have an emotional response, just like anyone else.
The case highlights a false expectation that reason has to be independent from emotion, she said. But that is a distorted view of what takes place in the trial process, where there are all kinds of overlap and interplay between reason and emotion.
"Emotions are these kind of physical responses we have to rational evaluations," said Acorn, whose main area of research is the philosophy of emotions in the context of conflict and justice.
"In my view, to suggest that an emotional response in itself is an indication of bias is a really wrong-headed approach."
Judges and juries may be affected by what they see and hear
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 transgender and is in the midst of a male-to-female transition, pleaded guilty to sexual interference of a minor.
Janine Benedet, a law professor at the University of British Columbia, said it's significant that the judge cried during the sentencing stage of the trial, which means the accused had already been convicted.
"As a society, we should have a revulsion to the sexual abuse of children, there's nothing wrong with finding that distressing," she said.
While she wasn't aware of similar cases, Benedet said the courts recognize that judges and juries may be affected by what they see and hear in court. That's why there's a process to determine, for example, whether still photographs of a graphic event might be shown as evidence instead of a full video.
As a society, we should have a revulsion to the sexual abuse of children, there's nothing wrong with finding that distressing.Janine Benedet, University of British Columbia
After the Crown and defence arguments were made on Monday, 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.
The Crown wants a jail sentence up to 20 months, followed by two years of probation. The defence recommended 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 in her submission to the court as a "short, sharp scoff," but Crown prosecutor Angela Ross says no such response is audible on court recordings where it's alleged to have occurred.
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.
— With files from Ron Seymour, the Kelowna Daily Courier
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