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May 17, 2023 - 6:00 PM
A BC Provincial Court judge was put in an awkward position in a fisheries case earlier this year when the accused asked for her to be removed because she is a Tk’emlups te Secwepemc band member and he is from the Tsilhqot’in.
Thomas Billyboy said he couldn’t trust Judge Linda Thomas because of “historical conflict” between the two bands and alleged cultural insensitivity because she allowed a prosecutor to ask him if he took notes when dealing with Fisheries officers.
The recently published decision says Billyboy was on trial in Williams Lake in February for Fisheries Act violations by possessing sockeye salmon without a proper licence. Before she could render a verdict, Judge Thomas had to address whether she was fit to continue hearing the case.
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Billyboy’s lawyer, George Wool, interrupted the trial itself to ask Thomas to recuse herself because of a "reasonable apprehension of bias". He sought to qualify another Tsilhqot’in band member, Ervin Charleyboy, as an expert about the historical conflicts, particularly a poorly described historical murder.
The application relied on "a historical incident that occurred in Kamloops involving the disappearance of two Tsilhqot’in men - where ‘presumably' another Tsilhqot’in person murdered a Tk’emlúps band member - to establish that an indifference between the Tsilhqot’in people and Tk’emlúps people exists.”
The Crown called the prospect "an offensive and repugnant racial generalization.”
Billyboy was also offended that Thomas allowed the Crown to ask him whether he took notes about his dealings with the Fisheries officers.
"According to Mr. Wool, notebooks are offensive to the Tsilhqot’in people and somehow I offended Mr. (Billyboy) by not raising an objection to the question,” Thomas wrote in her decision. "Mr. Wool then directed me to an article written by Mel Rothenburger, the former mayor of Kamloops, about how the Tsilhqot’in people did not like their names written down.”
It may sound like an usual application, but Wool has made it several times in the past, but not successfully, and he lost this case as well.
"I found that Mr. Wool was unable to sufficiently to present his argument despite my attempts to focus Mr. Wool on the purpose of this hearing,” Thomas wrote. "My general impression is that Mr. Wool did not understand the purpose of the threshold hearing."
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She dismissed the argument and noted the trial was by that point more than 1,000 days old, and the application came on the 10th day of a trial scheduled for two days, all while Billyboy and his lawyer knew well ahead of the trial that Thomas would be the judge — an application could have and should have come before the trial even began. Court records indicate the trial has not yet been resolved.
"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.”
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