Judge Monica McParland began her work day on Friday by handing down a simple sentence in what was a simple assault case.
One hour later, she handed down a more complex decision, one involving herself.
In the case of Regina vs. Jeremy Melvin Carlson, a sexual interference case involving a person under age of 16, McParland was asked to recuse herself by the defence.
According to Carlson’s lawyer, McParland allegedly cried during a victim-impact statement and scoffed at defence’s sentencing suggestion.
Crown wants 20 months of jail time, followed by two years of probation. Meanwhile, defence suggested a 90-day intermittent jail term.
McParland dismissed defence’s application for recusal, and spent approximately 30 minutes explaining why, reading from a 13-page statement.
In her statement, McParland wrote:
“The defence argument for recusal may be summarized as follows: defence alleges there is a reasonable apprehension of bias based on the cumulative effect of several issues including the following:
- The court was “crying” during the victim impact statement;
- The court laughed or “scoffed” when defence stated its sentencing position;
- The court “demanded” defence call evidence on an admitted mitigating factor;
- The court refused to accept facts as proven by defence;
- The court reacted inappropriately to the recusal application, including smiling derisively and insisting the application be made in writing;
- The court’s tone, facial expression and demeanour throughout the proceedings;
- Scheduling issues, communicated to defence through the judicial case manager.
“The Crown opposes the defence for recusal. The Crown disputes the majority of the “facts” alleged by defence as misleading and inaccurate. In the written and oral arguments, Crown asserted, inter alia:
- The judge was not “crying” as was being reported in the media, but rather briefly dabbed a tear from eye with a tissue. The Crown notes the victim impact statement presented the distraught mother of the eight-year-old victim was highly emotional and moving. The Crown argues there is nothing wrong with the court having a compassionate or empathetic response to it. The Crown submits that showing empathy does not mean judicial bias.
- The court did not scoff/laugh at the defence position. The court looked somewhat surprised when defence stated its position. The Crown noted the significant disparity in sentencing positions; the Crown seeks 15 to 20 months in custody and two years of probation, while defence seeks a 90-day intermittent sentence. The Crown submits a look of surprise by the court is not unwarranted given the defence’s extremely lenient sentencing position for an offence of this nature.
- The Crown reiterated that it did not admit the mitigating factor of suicidal ideation as was suggested by the defence.
- The court did not refuse to accept facts proven by the defence.
- The Crown submits there was no inappropriate reaction to the recusal application in either in the transcript or on the audio recording.
- There was no evidence the Crown used an inappropriate tone of voice, facial expression or demeanour with defence. The audio recording reflects that the court asked both counsel questions and asked them to clarify their position but was polite and courteous to both defence and crown throughout.
McParland then referred to several cases across the nation discussing judicial bias and showing emotion.
In discussing “application of the law to the facts,” McParland gave 10 points as to why she was dimissing the recusal.
Her first point was: “Applying these well settled legal principles to the present case I cannot accept the defence’s contention that there is a reasonable apprehension of bias in the context of this sentencing hearing.”
Her last point was: “In summary, there is no reliable evidentiary foundation to support a reasonable apprehension of bias from the perspective of an informed reasonable and right minded person who is fully apprised of the facts. The application for recusal is therefore dismissed.”
Comments