Court Information

CITATION: R. v. Kishun, 2008 ONCA 270

DATE: 20080414

DOCKET: C47307

COURT OF APPEAL FOR ONTARIO

SIMMONS AND GILLESE JJ.A. AND WHALEN J. (AD HOC)

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

And

DOODNAUTH KISHUN

Applicant/Appellant

Counsel

Peter Lindsay for the appellant

Craig Harper for the respondent

Heard and released orally: April 9, 2008

On appeal from the decision of Justice Nancy Spies of the Summary Conviction Appeal Court (Superior Court of Justice) dated June 15, 2007.

ENDORSEMENT

[1] On March 28, 2006, the appellant was convicted by Kerr J. of impaired driving and of driving with a blood alcohol level in excess of the legal limit. On June 15, 2007, Spies J. dismissed the appellant’s appeal to the Summary Conviction Appeal Court.

[2] The appellant raises four issues on his application for leave to appeal to this court.

[3] First, the appellant claims that the trial judge demonstrated a reasonable apprehension of bias by improper interference in the conduct of the defence. The appellant asserts that the Summary Conviction Appeal Court judge erred in law by failing to give effect to this ground of appeal.

[4] We disagree. In our view, the Summary Conviction Appeal Court judge set out the proper legal test and conducted a careful assessment of each impugned aspect of the trial judge’s conduct as well as an overall assessment of the effect of the trial judge’s conduct on the fairness of the trial. Although she found that aspects of the trial judge’s conduct were both inappropriate and unfortunate, she concluded that the trial judge’s conduct did not go so far as to compromise the appearance of fairness of the trial. On our review of the trial transcript, we see no error in the Summary Conviction Appeal Court judge’s reasons and we agree with her conclusions.

[5] Second, the appellant says that the trial judge erred in improperly rejecting the evidence of the appellant’s family members on the basis of their relationship to the appellant and that the Summary Conviction Appeal Court judge erred in failing to give effect to this ground of appeal.

[6] We reject this submission. Read fairly, in our view, the trial judge’s reasons indicate that he rejected the evidence of the appellant’s family members for more than one reason, including his assessment that their evidence was incredible when considered in context. It was open to him to reach this conclusion.

[7] Third, the appellant says the trial judge erred by improperly taking judicial notice of the effects of alcohol in rejecting the appellant’s evidence and that the Summary Conviction Appeal Court judge erred in failing to give effect to this ground of appeal. We disagree. In our view, the Summary Conviction Appeal Court judge was correct in concluding that the impugned statement by the trial judge was a rhetorical question and that even if it was not, there was no prejudice as the trial judge articulated other reasons which would have led inevitably to the same result.

[8] The appellant did not deal with his fourth ground of appeal in oral argument and we did not call on the Crown to address it. In our view, it is clear from the trial judge’s reasons why he accepted the evidence of Officer Fitzgerald. Reasons are not to be held to a standard of health perfection.

[9] Based on the foregoing reasons while leave to appeal is granted, the appeal is dismissed.

“Janet Simmons J.A.”

“E.E. Gillese J.A.”

“W.L. Whalen J. ad hoc”