Trans Mountain protesters ask judge to step aside

Reasonable ‘apprehension’ of bias alleged

VANCOUVER • Two protesters arrested at Kinder Morgan’s Trans Mountain pipeline project in the summer are asking the judge in their case to step aside over alleged bias.

Rita Wong, 50, and Mairy Beam, 69, gave submissions before B.C. Supreme Court Justice Kenneth Affleck in Vancouver Thursday.

They were taken into custody Aug. 24 for allegedly breaching an injunction that the judge had issued in March forbidding protesters from blocking the pipeline work site in Burnaby.

The two women, who are to go on trial on Dec. 3 and face a minimum of 14 days in jail, were among more than 200 people arrested and charged with criminal contempt of court.

They told the judge that while he hadn’t demonstrated actual bias, there was evidence of a reasonable “apprehension” of bias and that he should recuse himself.

The defendants said the court had repeatedly failed to apply well-settled law, had used language that led to an apprehension of bias and had silenced freedom of expression.

A number of examples of the judge’s alleged shortcomings were given, including his decision to decline a so-called Gladue report for an Indigenous offender being sentenced in June. Kat Roivas, the Indigenous offender, was called as a witness Thursday and said that the failure to order the report, commonly ordered for Aboriginal offenders on sentencing, indicated to her the court did not respect her rights.

She told the judge that she accepted his assertion that he was impartial and that it was his job to judge without any personal feelings.

“However it is my understanding from my observation of the court proceedings that that doesn’t seem to be the case at all times.”

Roivas, who was arrested three times at the protest site, offered the judge an eagle feather and asked him to recuse himself from the proceedings.

The judge later challenged a submission from the defendants that his decision not to consider the impact of the pipeline on the environment was another example of alleged bias.

“My task is to determine whether the injunction was obeyed or not. I’m not entitled to consider all of the ills of the world and whether the pipeline is a wise choice by Trans Mountain or the federal government. That’s not something over which I have control.”

Crown prosecutor Monte Rattan said that the reason that no Gladue report was required for Roivas was that she faced no jail time and that it was a decision clearly within the court’s discretion.

He said taken at their strongest, the defendants’ arguments merely suggested the judge had made some mistakes. Rattan said there were in fact no such errors but even if it could be established that there were mistakes, it would still fall short of proof of bias. “Each of the complaints, when properly viewed by an informed, reasonable person, demonstrate no appearance of bias.”

Following the submissions, the judge said he would consider the matter and give a ruling at a later date.

Earlier, the judge sentenced three other protesters to seven days in jail each for violating the injunction. A fourth protester who had health issues got a seven-day conditional sentence. A fifth protester, an 85-year-old woman with multiple health problems who had pleaded guilty to criminal contempt of court, also received a conditional sentence.