Judge in pipeline case declines to step aside over alleged bias

The judge who has been handling the case of the protesters arrested at Kinder Morgan’s Trans Mountain pipeline expansion project has declined to step aside over an allegation he has been biased.

Two of the protesters arrested at the Burnaby work site applied last week for B.C. Supreme Court Justice Kenneth Affleck to recuse himself, arguing that the judge had shown a “reasonable apprehension” of bias since he began hearing the case.

In March, the judge imposed an injunction preventing the protesters from blocking the entrance to the site and ever since then has been handling the trials and sentencings of more than 200 protesters who have been arrested.

Rita Wong and Mairy Beam, who were taken into custody Aug. 24 for allegedly breaching the injunction, argued in their application that 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.

But in a ruling released Monday, the judge rejected all of the arguments made by the defendants.

He said the legal test for determining bias included an assessment of whether a reasonable person apprised of all the circumstances could conclude there was any bias by a judge.

Affleck said that judges are required to approach every case with impartiality and an open mind and noted there was a strong presumption of judicial impartiality.

After reviewing the allegations raised by the two defendants, he found that there was no evidence that he had shown any bias in the case. “The recusal application is dismissed,” he told the pair of protesters.

— KEITH FRASER Pipeline protesters Rita Tong, Mairy Beam and Kat Roivas wait outside B.C. Supreme Court on Tednesday to hear the fate of their application that Justice Kenneth Affleck step aside from the proceedings.