DATE: 20051121

DOCKET: C40056

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – MICHAEL KOCH (Appellant)

BEFORE:

BORINS, JURIANSZ and LAFORME JJ.A.

COUNSEL:

Gregory Lafontaine and Vincenzo Rondinelli

for the appellant

Shelley Maria Hallett

for the respondent

HEARD & RELEASED ORALLY:

November 17, 2005

On appeal from the conviction imposed by Justice A. Whitten dated February 17, 2003.

E N D O R S E M E N T

[1] The appellant appeals his conviction for impaired driving causing death, on the basis that the cumulative effect of the judge’s interventions during the examination in chief of the defence’s expert and elsewhere in the trial, raise a reasonable apprehension of bias.

[2] We do not agree. The judge’s interventions must be understood in the context that this was a judge alone trial in which the defence called highly technical expert evidence and in which the defence greatly underestimated the time needed to present that evidence. The judge’s interventions reflect a wish to ensure he understood the defence’s technical evidence, and that trial time not be utilized hearing evidence that was not relevant.

[3] The appellant has not demonstrated that an informed person, viewing the trial realistically and having thought the matter through, would conclude that the trial judge was biased against the appellant. We are satisfied that the appellant received a fair trial.

[4] The appellant also submits that the trial judge misapprehended the theory of the defence and the evidence to support it. The defence theory rested almost entirely on the evidence of its expert. The trial judge rejected this evidence as he was entitled to. His reasons disclose a thorough understanding of the defence theory and the evidence to support it. There was an abundance of evidence to support the trial judge’s finding that the appellant’s impairment was a significant contributing cause of the death of the person the appellant struck with his motor vehicle.

[5] The trial judge correctly applied the law to the facts as he found them and made no error in finding the appellant guilty of impaired driving causing death.

[6] We therefore dismiss appeal.

“S. Borins J.A.”

“R.G. Juriansz J.A.”

“H.S. LaForme J.A.”