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Judge seen as biased, should recuse himself from Trans Mountain case, protesters say

Two anti-pipeline activists accused of criminal contempt of court want a different judge
westridge protest
Pipeline protesters blockaded the Westridge marine terminal on several days in August.

A pair of anti-pipeline protesters have asked a B.C. Supreme Court judge to recuse himself from ruling on their criminal contempt of court case due to a “reasonable apprehension of bias.”

Rita Wong, 50, and Mairy Beam, 69, were both arrested on Aug. 24 for allegedly violating an injunction meant to prevent interference with work on the Trans Mountain pipeline. They have been charged with criminal contempt of court.

Judge Kenneth Affleck, the same judge who granted the injunction, is expected to hear their case Dec. 3, but the defendants argue he should recuse himself from the case. Affleck has ruled on dozens of criminal contempt of court cases following repeated blockades of Trans Mountain facilities in Burnaby by environmental and Indigenous-rights activists.  

Wong and Beam, who are representing themselves in court, argue Affleck has acted in ways that allow the perception of bias.

“Any reasonable observer would perceive Judge Kenneth Affleck as being biased against land and water defenders,” Wong said in an emailed statement to the NOW. “Judge Affleck appears to have a vested self-interest in his own court-ordered injunction.”

They made the arguments in B.C. Supreme Court on Thursday before Affleck, who reserved judgment on whether to recuse himself.

“We believe another judge should hear alleged violations of Judge Affleck’s injunction in order to ensure public confidence in the fairness of the legal system,” Wong said in the statement.

Affleck previously denied an Indigenous defendant’s request for a Gladue report – a report meant to help a judge rule on sentencing Indigenous defendants, Wong and Beam say. 

He also, they claim, departed from norms when he didn’t accept joint submissions from the Crown and defence who recommended a $500 fine for Green MP Elizabeth May following her criminal contempt of court conviction. Affleck imposed a $1,500 fine instead.

Wong and Beam go on to list a number of examples from various injunction-related cases they say would lead an observer to think he is biased.

“Note that we are not alleging actual bias,” Beam and Wong wrote. “We cannot speak for what is in the mind of the presiding judge. However, we nevertheless conclude that a reasonable apprehension of bias exists.”

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