R. v. Billyboy, 2023 BCPC 87

Citation: R. v. Billyboy 2023 BCPC 87 Date: 20230206 File No: 36539-8 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. THOMAS BILLYBOY RULING ON APPLICATION OF THE HONOURABLE JUDGE L THOMAS Counsel for the Crown: Alexander Clarkson Counsel for the Defendant: George Wool Place of Hearing: Williams Lake , B.C.

Date of Hearing: October 27, December 19, 2022 Date of Judgment: February 6, 2023 Introduction [ 1 ] The Crown brings an application to summarily dismiss Mr. Wool’s application to recuse me on the basis of an alleged reasonable apprehension of bias because it discloses no reasonable prospect of success. This is my ruling on whether the recusal application should be dismissed. [ 2 ] This is the second recusal application filed by Mr. Wool on behalf of Thomas Billyboy. In this application, filed On October 27, 2022, which is entitled, Application for Oral History , Mr.

Billyboy asserts that there are historical differences between the Tsilhqot’in people and the Tk’emlúps te Secwepemc people and since the Court identified herself as a Tk’emlúps te Secwepemc (Tk’emlúps) member, he does not trust her and she should not continue to hear the trial. [ 3 ] In the trial matter before the Court, Thomas Billyboy is charged on Information 36539-1 that on September 5, 2019, he did unlawfully possess sockeye salmon caught in contravention of the Fisheries Act or regulations, contrary to s.33 of the Fisheries Act . [ 4 ] The circumstances allege that on September 5, 2019, during a DFO check stop, fishery officers found Mr.

Billyboy in possession of 20 sockeye salmon. Crown’s position is that Mr. Billyboy was in possession of these fish when member bands of the Tsilhqot’in National Government had not been issued a Food, Social and Ceremonial communal license to permit fishing. [ 5 ] Mr. Billyboy’s trial, which was initially scheduled for 2 days, began in September 16, 2021. To date there have been 10 days of trial with two further trial dates scheduled. According to the provincial court scheduling system the matter is over 1000 days old. Issue [ 6 ] The issue for the Court is whether Mr.

Wool’s application for recusal on the basis of an apprehension of bias has shown a reasonable prospect of success or in other words, has he met the threshold test. [ 7 ] For reference as these names are used in these reasons,?Esdilagh First Nations is one of the six bands that are part of the Tsilhqot’in National Government. It is also known as the Alexandria Band and is located near Quesnel, British Columbia. Tk’emlúps te Secwepemc is one of the Secwepemc bands located with the southern Secwepemc Nation territory.

It was formerly called the Kamloops Indian Band and is located adjacent to the city of Kamloops, British Columbia. Background [ 8 ] This recusal application was initiated by Mr. Wool in response to my ruling on the admissibility of a document that he tried to tender through Mr. Billyboy’s witness, Ervin Charleyboy on September 20, 2022. At trial the next day, without an application or notice to Crown, or to the court, Mr. Wool sought to proceed with his recusal application instead of resuming the trial. [ 9 ] Mr.

Wool informed me that his recusal application was not only initiated in response to my evidentiary ruling it was also prompted by a perceived conflict that Mr. Billyboy had with me because of my membership or my affiliation with the Tk’emlúps te Secwepemc. Mr. Wool proposed that Mr. Charleyboy provide expert evidence about the historical conflict between the Tsilhqot’in and the Tk’emlúps te Secwepemc to the Court. [ 10 ] When Crown opposed that this application proceed without a proper application before the Court and without notice of an expert witness, I directed Mr.

Wool to file a written recusal application outlining the basis for recusal, evidence he intends to call, and provide to the Crown notice of expert witness, the qualification of the expert and an outline of expert witness evidence. Crown informed Mr. Wool that he would be seeking dismissal of this application. In my view, his application falls short of the directions. [ 11 ] Turning now to the application filed on October 27, 2022, titled “Oral History”. In the introductory paragraph, Mr.

Wool states the following: Defence seeks to qualify and have Ervin Charleyboy testify concerning historical indifferences between Tsilquotin [sic] people and Shuswap people from Kamloops for the purposes of having Judge Thomas recuse herself from continuing to hear the trial of Thomas Billyboy on the grounds that Judge Thomas has identified herself as a member of the Kamloops Indian Band. [ 12 ] In the body of the application, Mr. Wool sets out several points in order to qualify Ervin Charleyboy as an expert witness. In the two brief paragraphs that follow Mr. Wool sets out Mr.

Charleyboy’s intended testimony about the historical event between the Tsilhqot’in and the Tk’emlúps people. Mr. Wool attached an excerpt of a jury selection from R. v. Frank , 2010, unreported, which he writes/states; “to prove racism in context to what happened in Kamloops from the accused’s perspective. Four out of twenty prospective jurors could not judge Mr. Martin because he was Aboriginal.” [ 13 ] Below I have summarized the submissions of both counsel in respect to the application for

summary dismissal of the recusal application. Crown’s Position [ 14 ] Crown asks the Court to summarily dismiss this recusal application relying on its case management powers to minimize delay and to dismiss frivolous applications. Crown submits that the Supreme Court of Canada in Cody established a threshold test where the trial judge must determine on the basis of a

summary of applicants’ evidence whether the application has a reasonable prospect of

success. [15] Crown submits that this recusal application does not have any reasonable prospect of success because Mr. Wool’s application ispremised on at least three legal or logical errors. [16] Crown argues that the application: 1. Is premised on a repugnant generalization that does not follow from the purported testimony. It is also an unfounded and frivolousracial generalization; 2. Does not address the legal prerequisites to demonstrate any real likelihood of bias; and 3.

Is based on the subjective analysis from the perspective of the accused person. [17] Crown argues that the reliance on a historical incident that occurred in Kamloops involving the disappearance of two Tsilhqot’inmen - where “presumably” another Tsilhqot’in person murdered a Tk’emlúps band member - to establish that an indifference betweenthe Tsilhqot’in people and Tk’emlúps people exists is an offensive and repugnant racial generalization. [18] Crown submits that there is no evidence that Mr.

Charleyboy can establish that since this historical event indifference betweenthese two nations exists generally and specifically that this indifference exists within each individual of the respective nations. Crownargues that Mr. Charleyboy’s purported evidence is an unfounded generalization of the contemporary view of thousands of differentindividuals. Crown says that no expert witness could give an opinion about the personal views of thousands of people. [19] Crown submits that this application fails to address the likelihood of bias and lack of impartiality.

Crown submits that thisapplication is not based on the correct legal analysis rather it is based on the subjective analysis from the perspective of the accusedwhich is a legal error. Crown argues that this application cannot succeed because it lacks a legal or factual basis. [20] Crown argues that this is the second unfounded application for recusal based on a reasonable apprehension of bias made by Mr.Wool in this case. Crown points out that Mr. Wool has made similar allegations in other cases that were dismissed such as in R. v.Seymour and Seymour, 2014 BCSC 1886; R. v. Fan, 2013 BCSC 1851; R. v.

Recknagel, 2015 BCCA 398. [21] To support its position, Crown relied on the following case authorities: R. v. Cody, 2017 SCC 31, R. v. S.(R.D.); (SCC), 1997 3 SCR 484, Yukon Francophone School Board v. Yukon (Attorney General), 2015 SCC 25; R. v. Dunbar, 2003 BCCA667 at para 333; and R. v. Hexamer, 2019 BCCA 285. Mr. Wool’s position [22] Mr. Wool’s submissions in response to the Crown’s application for

summary dismissal did not include any explanation abouthow his recusal application would succeed based on the legal principles of reasonable apprehension of bias. On the contrary, Mr. Woolargued that the recusal application should be determined based on Mr. Billyboy’s perspective and on the fact that his client, Mr.Billyboy does not trust me because: 1. Of a statement that I made in the pre-trial conference about Mr. Harper exercising his s.35 rights. [23] Mr. Harper was one of the seven accused that Mr. Wool appeared for at this particular pre-trial conference. Mr.

Wool asserts thathe is entitled under the principles of full answer and defence to respond to be able to say to me, “that this is not correct and commentaryby the Court at the pre-trial conference, in the absence of the accused, led to my client saying that’s not right, that’s wrong.” Mr. Woolsubmitted that his client did not interpret this comment the way I did and they are totally entitled to say “we disagree”. Mr. Wool furthersubmits that his clients are entitled to tell their lawyer to tell the judge why they disagree. [24] Mr. Wool submitted that my comment was wrong in law relying on R. v.

Desautel, 2021 SCC 17 where the SCC said: Persons who are not Canadian citizens and who do not reside in Canada can exercise an Aboriginal right that is protected by s.35 (1) ofthe Constitution Act. [25] Mr. Wool submits that when he reported to Mr. Billyboy my statement made in the pre-trial, Mr. Billyboy came to certainconclusions about my knowledge of the law, and asked Mr. Wool whether he was going to address it with the judge. 2. I am associated with Tk’emlúps te Secwepemc and a historical conflict exists between the Tk’emlúps te Secwepemc and theTsilhqot’in peoples. [26] Mr.

Wool submits that this is serious from Mr. Billyboy’s perspective, and why he stood up on the last proceeding andannounced to the court that he does not trust people from Kamloops. He does not trust them because of events that occurred many yearsago. Mr. Wool submits that what also triggers the distrust is that Mr. Charleyboy while giving evidence was excused from time to timefrom “conversations that occur in the courtroom”. Mr. Wool says that Mr. Charleyboy told the court how he did not like that. 3. That his witness Mr.

Charleyboy was offended by the Crown asking whether he took notes. [27] On this last point, Mr. Wool explained that this recusal application was triggered by the fact I allowed the Crown to askquestions about whether Mr. Charleyboy took notes after an exchange with the fisheries officer. According to Mr. Wool, notebooks areoffensive to the Tsilhqot’in people and somehow I offended Mr. Charleyboy by not raising an objection to the question. Mr. Wool thendirected me to an

article written by Mel Rothenburger, the former mayor of Kamloops about how the Tsilhqot’in people did not like theirnames written down. [28] Mr. Wool argues that I must take Mr. Billyboy’s perspective into account before dismissing the recusal application.

[29] Mr. Wool submits that the Crown is seeking to dismiss the recusal application in order to foreclose evidence. Mr. Wool arguesthat the Court should hear the evidence first before I dismiss the application. [30] Mr. Wool made no reference to the R v. Frank jury excerpt in his submissions. Legal Principles [31] A trial judge has both the right and duty to control the proceedings of the court to ensure the proper conduct of a trial as a wholeand to manage limited judicial resources. The trial judge must not only ensure a fair trial but an efficient trial.

Throughout Canadian courthistory, these duties have been considered by the courts such as in R v. Fabrikant, (QC CA) where Justice Baudouinopined: (t)he presiding judge who is not only the guardian of equity and justice but also the protector and keeper of the integrity of the criminaljustice system as a whole, has both the unquestionable right and the clear duty to intervene to preclude a travesty or a parody of justice. The complete trust and confidence of the public in its system of justice is a fundamental value of our democracy.

If the very tools andweapons that are given to the accused to ensure his full protection against despotism and arbitrariness are manipulated and used againstthe system itself, a clear danger that the whole structure of criminal justice would become subject to ridicule and that public confidencein it might therefore be eroded: R. v. Fabrikant, supra per Baudouin, J.A. at 576 C.C.C. (3d). [32] More recently, Justice Moldaver writing for the majority in R. v. Samaniego, 2022 SCC 9, para 1 stated “managing a ... trial is ademanding task”.

In this case, the scope of trial management powers was one of the key issues on appeal. Justice Moldaver went on tosay at para. 4 that “…under their trial management power, trial judges are permitted to control their courtroom and streamline thefunctioning of the trial. Exercises of trial management will generally not overlap with evidentiary rulings, but sometimes they do. Thisdoes not mean that erroneous evidentiary rulings can be justified under the guise of trial management.

They cannot.” [33] Trial management powers of the trial judge have been discussed within the context of the accused person’s right to a trial in areasonable time. In 2017, the Supreme Court of Canada in Cody at para. 31 urged courts to weed out applications that have no reasonableprospect of success before an evidentiary hearing commenced in order to prevent delay. At paras. 37 and 38, the Court explained: [37] We reiterate the important role trial judges play in curtailing unnecessary delay and “changing courtroom culture” (Jordan, atpara. 114).

As this Court observed in Jordan, the role of the courts in effecting real change involves implementing more efficient procedures, including scheduling practices. Trial courts may wish to review their case management regimesto ensure that they provide the tools for parties to collaborate and conduct cases efficiently. Trial judges should make reasonable effortsto control and manage the conduct of trials. Appellate courts must support these efforts by affording deference to case managementchoices made by courts below.

All courts, including this Court, must be mindful of the impact of their decisions on the conduct of trials.[Jordan at para. 139] In scheduling, for example, a court may deny an adjournment request on the basis that it would result in unacceptably long delay, evenwhere it would be deductible as defence delay. [38] In addition, trial judges should use their case management powers to minimize delay. For example, before permitting anapplication to proceed, a trial judge should consider whether it has a reasonable prospect of success.

This may entail asking defencecounsel to summarize the evidence it anticipates eliciting in the voir dire and, where that

summary reveals no basis upon which theapplication could succeed, dismissing the application summarily (R. v. Kutynec (1992), (ON CA), 7 O.R. (3d) 277(C.A.), at pp. 287-89; R. v. Vukelich (1996), (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.)). And, even where anapplication is permitted to proceed, a trial judge's screening function subsists: trial judges should not hesitate to summarily dismiss"applications and requests the moment it becomes apparent they are frivolous" (Jordan, at para. 63). This screening function appliesequally to Crown applications and requests.

As a best practice, all counsel — Crown and defence — should take appropriateopportunities to ask trial judges to exercise such discretion. [34] In this case, where the Crown brought an application to summarily dismiss Mr. Wool’s application that I recuse myself becauseof a reasonable apprehension of bias, a threshold hearing is conducted. This does not mean at this juncture that I am determining whethera reasonable apprehension of bias exists, based on a

summary of law and facts, rather I am to exercise my gatekeeping role to ensure afair, efficient and effective trial to determine whether there is a reasonable prospect of success in the recusal application or in other wordswhether there is sufficient merit to embark upon a recusal hearing. [35] In the threshold hearing, I am called upon to use my discretion as the trial judge and to exercise my trial management powers toensure that this proceeding is carried out in a manner that is consistent with Mr.

Billyboy’s right to a trial within a reasonable time.Exercise of my trial management power allows me to dismiss applications that have no merit and or are frivolous, and if they werepermitted to proceed whether the hearing could possibly delay matters even longer. [36] During this threshold hearing, I found Mr. Wool’s submissions to be disjointed and difficult to follow. I found that Mr. Wool wasunable to sufficiently to present his argument despite my attempts to focus Mr. Wool on the purpose of this hearing. My generalimpression is that Mr. Wool did not understand the purpose of the threshold hearing.

Although Mr. Wool advanced Mr. Billyboy’sreasons for raising the issue of recusal, Mr. Wool failed to persuade me that the application for recusal would be successful based on theapplicable legal principles. To be clear, I am not making a decision on the merits of the recusal application, and I am not making adecision on whether Mr. Charleyboy can be tendered as an expert witness. Analysis [37] In his submissions, Mr. Wool failed to address how Mr. Billyboy’s distrust of me based on these three reasons; my membershipwith Tk’emlúps in light of the historical conflict, my pre-trial statements in relation to Mr.

Harper and s.35 rights, and that I did not

intervene in the cross-examination of Mr. Charleyboy on the question of whether he took any notes, meets the test of a reasonable apprehension of bias. [ 38 ] Before addressing the test of reasonable apprehension of bias, I will provide my comments on the three reasons for the recusal application as advanced by Mr. Wool beginning with the last two reasons as I have listed above. [ 39 ] In regard to the pre-trial statements, these statements were subject to a previous recusal application and subsequent ruling where I did not recuse myself. As I indicated to Mr.

Wool during his submissions if his client is not pleased with the outcome of that recusal application the proper course of action is to appeal my ruling rather than try to advance it in another recusal application. [ 40 ] Turning to the third reason for Mr. Billyboy’s distrust of me, while Mr. Wool says Mr. Charleyboy was offended by the questions regarding notes, Mr. Wool has no evidence of this other than his own submission. It is trite law to say that submissions by counsel are not evidence. I suspect that the basis for this reason advanced by Mr.

Wool is that I overruled his objection of the Crown’s question whether Mr. Charleyboy took notes during or after his interaction with the fishery officers. Mr. Wool and Mr. Billyboy’s disagreement with my ruling should not serve as a basis for a recusal application. I rely on the comments of Justice Robertson in R. v. Moya, 2021 SKQB 128 at para 19 : Judges hear argument and make decisions. Usually someone is disappointed with the decision. Sometimes both parties. Disappointment or disagreement with decisions does not establish bias. [ 41 ] While Mr. Wool raised other issues which led to Mr.

Billyboy’s distrust of me, such as his witness Mr. Charleyboy being excused from the courtroom or Mr. Charleyboy being excluded from the “courtroom discussions” during the course of these proceedings, I find that Mr. Wool has failed to show how these actions serve as a basis for a recusal application. [ 42 ] While I may agree on the face of Mr. Wool’s recusal application that Mr. Billyboy may not trust me because I am associated with the Tk’emlúps te Secwepemc and a historical conflict exists between the Tk’emlúps te Secwepemc peoples and the Tsilhqot’in peoples, Mr.

Wool simply failed to address how this perceived conflict could possibly meet the test of a reasonable apprehension of bias. [ 43 ] On this point, I question the timing of this application particularly brought before the close of the Crown’s case, after 10 days of trial held over the course of a year, because Mr. Wool has known since before the pre-trial conference that I was the judge assigned to this trial.

In fact, he wrote a letter on June 2, 2021, to the Crown indicating that because I am a member of the Tk’emlúps te Secwepemc I may have a conflict of interest as it relates to disclosure of the Northern Shuswap Tribal Council Society agreements. While these agreements were never introduced as evidence, in my view Mr.

Wool and his client were aware of my membership to Tk’emlúps before this trial started. [ 44 ] Membership with Tk’emlúps should not disqualify me for a reasonable apprehension of bias from continuing to hear this matter, Justice Abella’s observations in Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General) , 2015 SCC 25 are instructive on this point: [59] … Judges, as Benjamin Cardozo said, do not stand on “chill and distant heights”: The Nature of the Judicial Process (1921), at p. 168. They should not and cannot be expected to leave their identities at the courtroom door.

What they can be expected to do, however, is remain, in fact and in appearance, open in spite of them. I find the following observations by Lord Bingham of Cornhill C.J., Lord Woolf M.R. and Sir Richard Scott V.-C. in Locabail (U.K.) Ltd. v.

Bayfield Properties Ltd. , [2000] Q.B. 451 (C.A.), to provide a persuasive instructional template on how to view the relationship between a judge’s identity, organizational affiliation, and impartiality: We cannot . . . conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge.

Nor, at any rate ordinarily, could an objection be soundly based on the judge’s social or educational or service or employment background or history, nor that of any member of the judge’s family; or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extra- curricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers); or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; or membership of the same Inn, circuit, local Law Society or chambers . . . .

By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person’s evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind . . . ; or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. [Citations omitted; para. 25.] … [61] Membership in an association affiliated with the interests of a particular race, nationality, religion, or language is not, without more, a basis for concluding that a perception of bias can reasonably be said to arise.

We expect a degree of mature judgment on the part of an informed public which recognizes that not everything a judge does or joins predetermines how he or she will judge a case. Canada has devoted a great deal of effort to creating a more diverse bench. That very diversity should not operate as a presumption that a judge’s identity closes the judicial mind. [ 45 ] The Nova Scotia Court of Appeal canvassed the principles governing a claim of judicial bias, or reasonable apprehension thereof in Nova Scotia (Attorney General) v. MacLean , 2017 NSCA 24 .

There, Saunders J.A. wrote: [39] First, as a matter of law, there is a strong presumption of judicial impartiality, which is not easily displaced. Second, there is a

heavy burden of proof upon the person making the allegation to present cogent evidence establishing “serious grounds” sufficient tojustify a finding that the decision-maker should be disqualified on account of bias. Third, whether a reasonable apprehension of biasexists is “highly fact-specific”. Such an inquiry is one where the context, and the particular circumstances, are of supreme importance.The allegation can only be addressed carefully in light of the entire context. There are no shortcuts.

See Wewaykum Indian Band v.Canada, 2003 SCC 45. [46] The test for bias is an objective test and is not based on the subjective views of Mr. Billyboy or Mr. Wool. Contrary to Mr.Wool’s submission that the recusal application should be assessed from Mr. Billyboy’s perspective, the test for recusal is whether aninformed, reasonable, and right-minded person viewing the matter with knowledge of the relevant circumstances including the integrityof the court to remain impartial would conclude it more likely than not that I would, consciously or unconsciously, not decide the trialfairly. [47] In R v.

Werner, 2005 NWTCA 5, the Northwest Territories Court of Appeal at para 14 discusses the test to displace judicialimpartiality: There is a strong presumption of judicial impartiality and the threshold for a finding of bias, real or apprehended, is necessarily high.Thus, there must be cogent grounds. Mere suspicion is not enough.

And it is important to note that the test is not whether a party to theproceeding (such as the applicant) would reasonably apprehend bias but whether the reasonable and informed member of the publicwould apprehend it. [48] The test for a reasonable apprehension of bias was affirmed in Yukon Francophone School Board, Education Area #23 v.

Yukon(Attorney General), 2015 SCC 25, [2015] 2 SCR 282 at para 20: [20] The test for a reasonable apprehension of bias is undisputed and was first articulated by this court as follows: ….what would an informed person, viewing the matter realistically and practically…and having thought the matter through.. Would hethink that it is more likely than that [the decision maker], whether consciously or unconsciously, would not decide fairly. There exists astrong presumption of judicial impartiality that is not easily displaced. [Citation omitted.] (Committee for Justice and Liberty v.

National Energy Board, (SCC), [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J.(dissenting)) [49] In addition, I am mindful about the comments about the reasonable person the court made in R. v. S(R.D.), (SCC), [1997] 3 SCR 484: [48] …is a person who approaches the question of whether there exists a reasonable apprehension of bias with a complex andcontextualized understanding of the issues in the case. The reasonable person understands the impossibility of judicial neutrality, butdemands judicial impartiality.

The reasonable person is cognizant of the racial dynamics in the local community, and, as a member of theCanadian community, is supportive of the principles of equality. [49] Before concluding that there exists a reasonable apprehension of bias in the conduct of a judge, the reasonable person wouldrequire some clear evidence that the judge in question had improperly used his or her perspective in the decision-making process; thisflows from the presumption of impartiality of the judiciary. There must be some indication that the judge was not approaching the casewith an open mind fair to all parties.

Awareness of the context within which a case occurred would not constitute such evidence; on thecontrary, such awareness is consistent with the highest tradition of judicial impartiality. [50] In my view, Mr. Wool has not established on a

summary basis that there is any evidence where a reasonable person wouldconclude that I would not exercise my judicial duties free from bias. Conclusion [51] In conclusion, after careful consideration of counsel’s submissions, the applicable legal principles, and in the exercise of my trialmanagement duties, I will grant the Crown’s application to summarily dismiss Mr. Billyboy’s application for recusal. Mr. Wool hasfailed to satisfy me that there is merit to Mr.

Billyboy’s application for recusal and that there is a reasonable prospect of success. [52] For all these reasons I have set out above, the recusal application is dismissed. _____________________________ The Honourable Judge L. Thomas Provincial Court of British Columbia CORRIGENDUM - Released April 12, 2023 In the Ruling on Application dated February 6, 2023, the following changes have been made: [1] Paragraph 48 should read: The test for a reasonable apprehension of bias was affirmed in Yukon Francophone School Board, Education Area #23 v. Yukon(Attorney General), 2015 SCC 25, [2015] 2 SCR 282 at para 20:

[20] The test for a reasonable apprehension of bias is undisputed and was first articulated by this court as follows: . . . what would an informed person, viewing the matter realistically and practically — and having thought the matter through —conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would notdecide fairly. [Citation omitted.] (Committee for Justice and Liberty v. National Energy Board, (SCC), [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J.(dissenting)) _____________________________ The Honourable Judge L. Thomas Provincial Court of British Columbia