Judge in sexual assault case asked to excuse herself

The defence lawyer representing a man who has pleaded guilty to sexually interfering with an eightyear-old girl in Kelowna has asked the judge to excuse herself from the case.

Jeremy Melvin Carlson is charged with sexual assault and sexual interference of a person under the age of 16.

He pleaded guilty to the sexual interference charge last November.

Sexual interference is defined in the Criminal Code of Canada as when a person, for a sexual purpose, touches, indirectly or directly, with a part of the body or with an object, any part of the body of a person under the age of 16 years.

On Sept. 21, 2016, the victim, whose identity is protected by a publication ban, told her mother the accused had sexually assaulted her two weekends before.

Her mother called the police and an investigation began.

Carlson was arrested on Sept. 30 in Trail, where he was working.

The victim said Carlson touched her multiple times, and in his warrant statement to police, Carlson admitted he had touched her on nine occasions.

“The accused admitted in his warrant statement that he knew what he was doing was wrong,” said Crown prosecutor Angela Ross.

All the offences occurred during 2016.

The victim’s mother read a victim impact statement aloud in court Monday, expressing the distress this has caused her daughter and their family.

“As a result of this trauma, (my daughter) continues to have nightmares,” she said. “(She) does not feel comfortable walking to school alone or with her siblings . . . . She fears being in public places because she does not want to run into the offender.”

The girl’s self-esteem has been negatively affected since the assaults, her mother said.

“I feel like I have completely failed my daughter as I was not able to protect my baby.”

The Crown is seeking a sentence between 15 and 20 months in jail, followed by two years’ probation.

Defence counsel Jacqueline Halliburn is seeking a 90-day intermittent jail sentence, to be served over 20 weekends, followed by three years’ probation.

The accused, who began hormone replacement therapy earlier this year to become a woman, now goes by the name Rhiley Melvin Carlson.

Uncertainty was expressed in the court concerning whether or not Carlson would serve a jail sentence with men or women, and if sexual offender treatment would be available since it is typically geared toward men.

The decision on whether or not Carlson is to be classified as a man or a woman is up to Correctional Services.

While there was formerly a minimum one-year sentence in place for this offence, that mandatory minimum no longer applies.

The maximum sentence in this case is 14 years in jail.

Following sentencing submissions, Halliburn informed the court she was making an application for Judge Monica McParland to excuse herself from the case.

“I do this with absolute respect and I do not make this application lightly,” said Halliburn. “I spoke to a number of senior counsel at the break who advised me that this was unfortunately what I had to do in this case.”

The application is based on “the appearance in this case that the matter has been prejudged,” she said. “The proceedings need to appear fair.”

McParland interrupted Halliburn and told her she needs to make her application in writing.

“I have to put some things on the record that were not picked up by the transcript,” said Halliburn.

McParland reiterated the application was to be made in writing.

Halliburn’s application needs to be filed with the court by May 9, followed by the Crown’s response by May 23.

Both lawyers will reconvene by phone on May 31 to set a date for McParland to provide a ruling on the application.