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

Defence lawyer has asked provincial court Judge Monica McParland to recuse herself

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.

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.”

READ MORE: Kelowna judge weeps, defence lawyer cries foul

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.

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.

Amy Smart, The Canadian Press

Like us on Facebook and follow us on Twitter.

Just Posted

Mid-Vancouver Island air quality risk very high

Residents of the mid-Island area went to bed last night and awoke… Continue reading

RCMP looking for missing Duncan teen

Dallas Macleod, 18, was last seen on Aug. 10

‘Beauty amongst such tragedy:’ B.C. photographer captures nature’s trifecta

David Luggi’s photo from a beach in Fraser Lake shows Shovel Lake wildfire, Big Dipper and an aurora

Vancouver Island woman to attempt historic swim across Juan de Fuca Strait today

Ultra-marathon swimmer Susan Simmons to attempt to swim from Victoria to Port Angeles and back

BC Wildfire crew rescues lost puppies

They were just leaving the Monashee Complex of fires when they found the cutest creatures.

VIDEO: Fires break out in scrap piles at Harmac mill

Nanaimo firefighters got blazes under control in early morning hours Saturday

Canadians fear for relatives trapped amid flooding in Indian state of Kerala

More than 800,000people have been displaced by floods and landslides

IndyCar driver Wickens flown to hospital after scary crash

IndyCar said Wickens was awake and alert as he was taken to a hospital

Ex-BCTF president ‘undeterred’ after early release from pipeline protest jail term

Susan Lambert and Order of Canada recipient Jean Swanson released early

Fast food chains look to capitalize on vegetarian, vegan trend with new items

Seven per cent of Canadians consider themselves vegetarians and 2.3 per cent identify as vegans

B.C. swimmer halts journey across Strait of Juan de Fuca after hypothermia sets in

Victoria MS athlete Susan Simmons swam for eight-and-a-half hours in 9 C choppy waters

‘Hard on water:’ Smoke not the only long-range effect of wildfires

The project began more than 10 years ago after southern Alberta’s 2003 Lost Creek fire

Most Read