BenchPress--Vol 43-1.

• Author: Peerani, Aaida

1. Judges are Human Too

   This case involved sexual interference by the defendant against a young person. The offender had pled guilty to sexual interference of an 8 year old girl, and the mother presented an emotional and moving victim impact statement. The defendant's lawyer applied to request that the Judge, the Honourable M.F. McParland, to recuse or remove herself from the sentencing hearing, for reasons including allegedly crying while being presented with the victim impact statement.

   In the decision, the Judge noted that she did not cry, but had "briefly dabbed a tear from her eye with a tissue". The Judge also disagreed with defence counsel who alleged that she had scoffed or laughed at the defence's position. The Judge denied several other allegations made by defence.

   The judge refused to recuse herself from the case. In doing so, the Judge discussed the test established by the Supreme Court of Canada which requires the applicant, the defence in this case, to prove that there was a reasonable apprehension of bias on the part of the judge. In this test, an informed person, viewing the matter realistically and practically, and having thought through the matter, would have to conclude that the judge would not be able to decide fairly. In her decision, the judge stated: "[t]here is therefore nothing wrong with the Court showing emotion. Just because a judge demonstrates human compassion, it does not amount to judicial bias."

   R. v. Carlson, 2018 BCPC 209

2. Healthcare Privacy Protected by the Supreme Court of Canada

   The province of British Columbia has an ongoing claim against Philip Morris International and other tobacco manufacturers. Tobacco manufacturers are being sued to recover the cost of health care benefits related to treating disease caused or contributed to by exposure to a tobacco product. In this case, Philip Morris requested that it be given access to health care databases with information that the province intends to use to prove its case.

   At trial, the judge found that the databases should be provided to Philip Morris because the information could be anonymized. According to the trial judge, if the data could be anonymized, it did not have to follow provisions in the Tobacco Damages and Health Care Costs Recovery Act which prevent health care information from being released, where the Government pursues a claim against a manufacturer. The Province of British Columbia appealed, but the British Columbia Court of Appeal agreed...