R v Liagon, 2012 ABQB 740

Court of Queen ’ s Bench of Alberta Citation: R v Liagon, 2012 ABQB 740 Date: 20121130 Docket: 101298792S1 Registry: Calgary Between: Her Majesty the Queen Crown/Respondent - and - Richard Nappoling Liagon Accused/Appellant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice M.C. Erb _______________________________________________________ Appeal from the Conviction by The Honourable Judge J. Shriar Convicted on the 05 th day of March, 2012 (R v. Liagon, 2012 ABPC 56 , Docket: 1012987921P1)

[ 1 ] Richard Nappoling Liagon appeals his conviction by a provincial court judge on a charge of operating a motor vehicle with a blood alcohol level in excess of the legal limit of 80 mg of alcohol in 100 ml of blood, contrary to section 253(1) (

b) of the Criminal Code of Canada , RSC 1985, c C-46 . [ 2 ] He bases his appeal on allegations about the trial judge’s comments during the proceedings raising an issue of bias, in addition to her finding on a language-based Charter issue and the sufficiency of her reasons in support of his conviction. [ 3 ] The issues to be determined in this appeal are: (

a) Did the trial judge err in dismissing the Appellant’s application alleging a breach of his Charter rights or fail to provide sufficient reasons? (

b) Did the trial judge engage in commentary which gave rise to a reasonable apprehension of bias? (

c) Did the trial judge err by improperly taking judicial notice of an adjudicative fact? Factual Narrative [ 4 ] At about 2 o’clock in the morning of October 17, 2010, police officers observed the Appellant’s Honda Civic following closely behind another vehicle in sparse traffic, weaving within its lane for eastbound traffic on Memorial Drive in South East Calgary. [ 5 ] Police executed a traffic stop, pulled the Appellant’s vehicle over and had an exchange with him, conversing in the English language. They noted that the Appellant spoke with an accent, and that his first language was not English.

When asked, the Appellant produced his correct driving and insurance documents. The police officers suspected that the Appellant was impaired and because of that, asked him what he had had to drink that evening.

The Appellant stated that he had had one beer. [ 6 ] The officers then recorded the following indicia of alcohol impairment: the Appellant’s breath smelled of alcohol, he had glassy eyes and spoke with slurred speech and the smell of alcohol was emanating from the Honda Civic. [ 7 ] The police officers then read the Appellant a breath demand and asked him to exit his vehicle after which they administered a breath test on an approved screening device. The Appellant provided a suitable sample on his third attempt, which registered a fail.

The officers arrested him, and read the Appellant his rights under the Canadian Charter of Rights and Freedoms verbatim from the police issue charter card. When asked whether the Appellant wanted to contact a free lawyer or any other lawyer, he stated that he did not have one. [ 8 ] The Appellant was taken to a nearby check stop bus. On the way, the Appellant repeatedly said that he was sorry and that he would not do it again. At the check stop bus, the Appellant was directed to the telephone booth and available resources to access legal counsel.

The Appellant informed the police officers twice that the phone was not working properly. The police tested the phone, and determined that the Appellant was correct. They provided the Appellant with a cell phone and asked if he needed help calling. The Appellant asked for assistance contacting Legal Aid following which, he spoke with a lawyer. [ 9 ] After his release from custody, a police officer, following directions provided to him by the Appellant, drove him to his home. [ 10 ] At trial, the Appellant argued that his right to retain and instruct counsel without delay and to be so informed was breached

because he did not understand what the police officers were saying to him due to his lack of proficiency in the English language; he didnot understand everything that the police told him; and at no time was he offered the services of an interpreter nor was he made awarethat this was available to him. He claimed that he was simply being compliant. [11]

Section 10(

b) of the Charter: Everyone has the right on arrest or detention ... (

b) to retain and instruct counsel without delay and to be informed of that right. [12] In his testimony, the Appellant disclosed that he is a native of the Philippines and his first language is the Ifuago dialect ofTuwali. He emigrated to Canada in 2008 and remains here on a work visa. He finished high school and two years of technical school inthe Philippines. In school he was taught English for approximate 30 minutes everyday; however, the Appellant indicated that theinstructor did not speak English during class. The Appellant currently works as a meat cutter.

He submitted that he does not speakEnglish to a great extent at work and that his work colleagues are mostly Filipino. He admitted that he communicates with his supervisorin English. The Appellant testified that when he moved to Canada he could understand basic English and that he presently understandsapproximately 40 percent of everyday conversations in English. [13] The Crown Respondent called three witnesses, all police officers, and the Appellant testified on his own behalf.

Standard of Review [14] In appeals grounded on a reasonable apprehension of bias arising from a judge’s words or conduct, the issue is one ofjurisdiction, the standard of review is correctness, and the remedy is a new trial: R v. S(RD), (SCC), [1997] 3 SCR 484at paras 99-100. When the issue to be determined on appeal is whether a fact is the proper subject of judicial notice, it is a question oflaw, and the standard of review is correctness. Where the subject of the appeal is sufficiency of reasons which fall short of facilitatingmeaningful review, the standard is correctness: R v.

M(RE), 2008 SCC 51 , 2008 SCR 51, [2008] 3 SCR 3 at para 56. Trial Judge’s Decision [15] The trial judge in her written reasons issued March 5, 2012, found the Appellant guilty of operating a motor vehicle while hisblood alcohol level exceeded the legal limit and dismissed his application that his Charter rights had been breached based on lack ofproficiency in English resulting in an inability to understand his rights. [16] The evidence upon which the Appellant relied in support of his Charter application includes the following:

a) The Appellant speaks with a discernible accent;

b) The police officers were aware that English was not his first language;

c) The police officers heard the Appellant’s passengers communicating in a language other than English; and

d) The police officers did not advise the Appellant that he could speak to an interpreter. [1] The trial judge discussed the applicable legal principles including the

section 10(

b) right to counsel which places a duty onthe police to inform detained persons of their right to counsel: R v. Bartle, (SCC), [1994] 3 SCR 173 at para 18 . Thisduty encompasses three subsidiary duties:

i) The duty to inform the detainee of his or her right to counsel;

ii) The duty to give the detainee who so wishes a reasonable opportunity to exercise the right to retain and instruct counsel withoutdelay; and iii) The duty to refrain from eliciting evidence from the detainee until the detainee has had a reasonable opportunity to retain andinstruct counsel: Bartle at para 18. [1] In her reasons, the trial judge noted that the police are not required to assure themselves that a detainee understands thesection 10(

b) information, except in “special circumstances”: Bartle at para 20. In circumstances where there is a positive indication thata particular detainee may not understand the information being provided, a mere recitation of the right to counsel will not suffice: Bartleat para 21 citing R v. Evans, (SCC), [1991] 1 SCR 869 at para 39. Rather, in these situations, the police must take stepsto facilitate that understanding: Evans at para 39. [2] The trial judge considered whether the Appellant had established the requisite “special circumstances”.

She reviewed theAppellant’s testimony as well as the evidence of the police officers. The trial judge found that the police officers were aware that theAppellant was of Filipino descent and that throughout the Appellant’s interactions with the police officers, he was neither offered normade aware of the opportunity to speak with an interpreter. The trial judge found that the police officers’ testimony was “consistent andcorroborative”.

She questioned the Appellant’s credibility on his stated lack of facility with the English language by questioning how italigned with his interactions with the police at the relevant time. In her written reasons, she made the following findings of fact, citedhere verbatim: I find that on all material points the evidence of the three officers is consistent and corroborative. They had good recall of theirinteractions with Mr. Liagon that evening and were unshaken on cross-examination. And despite their awareness that Mr.

Liagon’s firstlanguage was not English, they clearly understood him and I find they had good reason to think he understood them. Mr. Liagon admitted that at no time in his dealings with any of the officers did he indicate that he was having language comprehensionissues. Officer Woodhall testified that not only did Mr. Liagon respond affirmatively to the specific questions asking if he understood, healso made remarks in English, which caused the officer to think he “did speak perfect English”.He not only provided “yes” and “no”answers but initiated some conversations. Constable Woodhall who dealt with Mr.

Liagon both at the roadside and later on, insisted that he was aware of language

interpretationservices available through the police service and if he had any indication that they were required that night he would have suggested it. Mr. Liagon produced his correct driving documents on being asked. Similarly when asked about what he had to drink that night, Mr.Liagon responded that he had one beer. When asked about when, he said “earlier tonite”. After failing the roadside screening test, Mr. Liagon was arrested and the applicable Charter rights were read to him by OfficerWoodhall. In response to the question about whether he wanted to contact a free lawyer or any other lawyer, Mr.

Liagon said “I don’thave one”. The officer said he reminded that the police provide phone books and a telephone and he could call a free lawyer. Mr. Liagon said, “Okyes”. While sitting in the back of the police vehicle in the course of the process of arrest for impaired driving and reading of rights, Mr. Liagonstated that he was sorry and would not do it anymore. Mr. Liagon was taken to a nearby check stop bus. He was shown the phone booth and the various available resources to help accesscounsel, including the Legal Aid numbers through which he could access free legal advice.

He went into the phone room and a short time later exited the room to inform the officer that the phone was not working properly. The

officer did not make a verbatim note of Mr. Liagon’s comments. He asked if the call was going directly to voice mail, which apparently is not uncommon. Mr. Liagon specified that the phone was not ringing. Mr. Liagon testified that he informed the officers two times that the phone was not working. The first time he knocked on the phone room door to advise the officers the phone was not working properly. He was told to try the other Legal Aid number, which he did. It was not working either so he knocked on the door, again advising the phone was out of order. The officers tested the phone and determined Mr.

Liagon was right. They figured out why the phone might not be working and got a cell phone for him to use instead. Constable Rabichuk the breath technician, who ultimately obtained Mr. Liagon’s breath samples, assisted in resolving the telephone problem, and once the cell phone was provided, he asked Mr. Liagon if he needed help in calling. Mr. Liagon indicated he did and advised he was trying to contact the Legal Aid number. This interaction provides useful insight. It tends to show not only that Mr.

Liagon understood and participated meaningfully in communications with the police officers, but that he was not simply passively following the officers’ directions. The phone incident shows Mr. Liagon asserted himself not once but twice, correctly insisting that the phone provided by the police was non functional despite being told to try again. It tends to show Mr. Liagon was duly diligent in attempting to exercise his Charter rights appropriately. On his release from custody, Cst. Woodhall drove Mr. Liagon home.

The officer said he was unfamiliar with the neighbourhood and the accused told him the address and directed him to the house. [3] After hearing the evidence in a voir dire , the trial judge found that, in all the circumstances and the evidence as she found it, the Appellant had failed to meet the burden of proving that his

section 10(

b) rights were breached, specifically that he had not proven that “special circumstances” existed such that the police officers were required to take additional steps to ensure that he understood his right to counsel under

section 10(b). Accordingly, she dismissed the Appellant’s Charter application. Issues Considered (

a) Did The Trial Judge Err In Her Findings Or Give Insufficient Reasons? [4] Counsel for the Appellant submits that the trial judge did not adequately consider whether the Respondent had established that the Appellant had been given a reasonable opportunity to exercise his Charter

Section 10(

b) right to counsel and failed to address this issue in her decision. There was some dispute between appellate counsel about whether this issue was first raised in these proceedings rather than at trial. [5] Counsel for the Appellant submits the following comments as evidence that the issue was raised at trial: Counsel: [quoting from R v. Tran, 2011 ONCJ 75 ] A necessary concomitant of the right to counsel is the opportunity to meaningfully exercise that right. Effective communication is the cornerstone of the solicitor-client relationship.

And later, Counsel: Your Honour, if you don’t accept that, go one step further. Mr. Liagon has now testified that he doesn’t understand the lawyer at the other end of the phone. Now there’s case law to suggest that the police don’t have an obligation to ask Mr. Liagon if he’s satisfied with the advice he received. There [...] is no obligation to play 20 questions. But, the fact of the matter is [...] he wasn’t able to understand counsel. Now if police had asked one further question, are you satisfied? Do you want to call somebody else? I mean, potentially there, Your

Honour, there’s a further obligation on the police. [6] The Respondent submits that, during the voir dire , counsel for the Appellant limited his argument to the “language issue” and whether special circumstances dictated that the police officers should have made further inquiries into the Appellant’s language comprehension or provide him with translation or interpretative assistance.

The Respondent submits that the trial judge addressed all live issues that counsel for the Appellant raised, and seized the substance of the matters at issue. [7] Reasons in a criminal law case must be sufficient to fulfil their functions of explaining why the accused was convicted, provide public accountability, and permit effective appellate review: M(RE) at para 15 . [8] The only live issue during the voir dire was whether “special circumstances” dictated that an informational duty be exercised by the police officers. [9] Counsel for the Appellant, in his final submissions, referred to the three duties imposed on the police officers as described in Bartle .

This included the second duty – the duty to give the detainee who so wishes a reasonable opportunity to exercise the right to retain and instruct counsel without delay. The trial judge specifically acknowledged these duties in her written reasons. [10] However, counsel for the Appellant did not assert that each of these three duties was breached. Rather, after outlining the Bartle test, counsel for the Appellant clearly limited his claim, stating: Counsel: [A] person who does not understand his or her right cannot be expected to assert it. And essentially, that’s what the argument will be here. That Mr.

Liagon did not fully understand his rights under

section 10(

b) and as a result wasn’t fully able to exercise them. Now the other cases which I have provided deal more specifically with language issues.

Now, from the case law which I’ve provided, the law seems to suggest that in order for a language violation to be established, there must be some special circumstances... [11] Further, the comments that counsel for the Appellant submits as evidence that the reasonable opportunity issue was raised, were made during argument about the applicability of case law in proving special circumstances. [12] The trial judge’s reasons are sufficient about why she ruled that the Appellant had failed to establish special circumstances which if proved would have triggered a police duty to make further inquiries into language comprehension, or the provision of interpretative assistance.

The Appellant cannot re-litigate the matter by bringing new claims on appeal. [13] In any event, even if Appellant’s counsel had sufficiently raised the reasonable opportunity issue, then I find that the trial judge also addressed this issue in her reasons. She outlined much of the evidence concerning the Appellant’s phone call with legal counsel. This included her observations that the Appellant’s interaction with the police officers including the fact that he twice asserted that the telephone was not working and that he needed help calling Legal Aid.

Based on this evidence, in part, she concluded that the Appellant had demonstrated that he was “duly diligent” in attempting to exercise his Charter rights appropriately and by extension understood what they were. The evidence supports a finding that he knew what was going on and was certainly not simply being compliant. [14] The trial judge also preferred the credibility of the police officers over the Appellant, and explained her reasons for that preference. Accordingly, the Appellant’s claims of insufficiency of reasons fails in this appeal. (

b) Did The Trial Judge Make Comments During Trial That Give Rise To A Reasonable Apprehension Of Bias? [15] The presumption of judicial impartiality may only be displaced with clear and cogent evidence of a real likelihood of bias;

mere suspicion is not enough: R v. S(RD), (SCC), [1997] 3 SCR 484 at paras 109, 112. [16] Counsel for the Appellant submits that, over the course of the trial, the trial judge made a number of comments which, takentogether, would cause the reasonable observer to apprehend an appearance of bias. The impugned comments can be grouped into thefollowing categories: (

i) comments related to a judge in another court and province; (ii) generalizations about how people behave whenthey are in situations where communication may be an issue; and (iii) use of an inappropriate metaphor during an exchange with counsel. (

i) Comments About Another Judge [17] During the proceedings and immediately prior to issuing her voir dire ruling on the Charter application, the trial judge, inreferring to R v. Hnatusko, 2012 ONCJ 35, 99 WCB (2d) 334 cited by counsel for the Appellant, in referring to the trial judge in thecase, a justice of the Ontario Court of Justice, stated: “[h]e’s never met an immigrant who speaks English well enough”. [18] Counsel for the Appellant argues that the impugned comments about the Ontario judge suggest that cases of this nature boildown to whether “an immigrant speaks English well enough”, trivializes the

section 10 breaches found in similar circumstances andsuggests that the trial judge looked unfavourably on the cases submitted by counsel for the Appellant because of her views about thefinding of a judge in another case. (ii) Generalizations About How People Behave [19] During argument, the trial judge had this exchange with counsel for the Appellant: The Court: I understand that, today, Mr. Liagon says, I didn’t totally understand what was going on. My view is that, you know, people who don’t speak English as a first language who live in an English place or wherever else.

Whenyou’re in a place where you don’t speak that language, if you are an intelligent person and you want to function in the society, you’rerelying a little bit on instinct. And you’re going partly on language that you understand and partly on, as he said, He put the instrument in front of me. I understand.[...] [Y]ou know, that’s how you make your way in the world. That’s what happens [...] whether you’re in France and you don’t speakFrench, or [...] [in] Calgary and you don’t speak English, so -- perfectly.

So, partly it’s on words and partly you figure it out because you’re smart and [...] it’s not your nature to constantly be playing helpless.You sort of understand what’s required of you. ... So, therefore, the officer’s statement that there was no difficulty displayed in comprehending the breath demand seems logical to me. [20] Counsel for the Appellant argues that the trial judge’s generalizations about how people who may not be fluent in Englishbehave and think was stereotyping.

Counsel for the Appellant alleges that the trial judge concluded that if the Appellant was anintelligent person and if he wanted to function in society, he would have comprehended the breath demand based on his “instincts”; thathe would simply “figure it out” because he would not want to be “constantly playing helpless”.

(iii) Inappropriate Metaphor [ 21 ] Also during argument, the trial judge and counsel for the Respondent had this exchange: The Court: And what do we have here? We have him saying he brought forth evidence of the circumstances. He said, [...] it’s not my first language. I was being very compliant. Didn’t understand why I was stopped. And I just said yes. Counsel: And [...] the Crown will concede that there’s nothing in his evidence showing that [...] he’s being untruthful or that he’s trying to be evasive in his evidence.

The Court: Well [...] I’m not sure that I think -- I mean I think there’s a little bit of -- I’m not sure what the word is, but a little bit of silly bugger here. I mean, [...] he’s read paragraphs by the police officers. You know, the -- right to retain and instruct counsel, lawyer will be appointed for you. [...]. But [...] what he remembers is the word “impaired.” In other words -- give me a break.

I mean, we were not born yesterday. [...] [I]f you got the word “impaired,” [...] his language skills are better than he says they are, or his language skills are better than he thinks they are. [ 22 ] Counsel for the Appellant alleges that the trial judge was either calling Mr. Liagon a “silly bugger” or suggesting that “silly buggery” was at play in his testimony.

Counsel for the Appellant submits that the use of this phrase would have left the reasonable person with the impression that the issue was decided on the basis of stereotypical assumptions. [ 23 ] She also submits the these three examples of the trial judge’s conduct amount to a reasonable apprehension of bias. [ 24 ] The test for establishing a reasonable apprehension of bias requires: (

i) the person considering the bias must be reasonable and the apprehension of bias must be reasonable in the circumstances of the case; and (ii) the reviewing judge must ask what an informed person would conclude having viewed the matter realistically and practically - and having thought the matter through: Roberts v. R , 2003 SCC 45 , [2003] 2 SCR 259 at para 60 . The test sets the bar high because an accusation of bias calls into question not only the integrity of the presiding judge, but the administration of justice itself: S(RD) at para 32 .

Judges must be particularly sensitive to the need to be not only fair but to be perceived to be fair to all Canadians of every race, religion, nationality and ethnic origin: S(RD) at para 95 . [ 25 ] While the trial judge’s comments about another judge were unfortunate and ill advised, in the context of all that was being discussed they do not support what counsel for the Appellant suggests. The trial judge made her remark after the voir dire , and after she had almost completed her written reasons. She brought counsels’ attention to an Ontario case and gave them an opportunity to comment.

A reasonable person would apprehend that the trial judge raised the case with counsel in order to inform them that she was not going to refer to or rely on it in her written reasons because it added nothing to the discussion, offered no new principles, and could be distinguished on its facts. The trial judge’s active discussion with counsel during argument, later reflected in her written reasons, shows that she was cognizant of the legal principles at issue and nothing more. [ 26 ] With respect to her generalizations about how people behave, this also arose during her banter with counsel.

The trial judge engaged in a searching review of the evidence in order to test the credibility of both the police officers and the Appellant. Her banter assisted counsel in determining what issues and arguments she had concerns about before making her ultimate decision, giving them an opportunity to address them. A reasonable person would apprehend that her comments amounted to an inquiry into the logic of the Appellant’s behaviour in all the circumstances from the moment of the traffic stop forward. Ultimately, the trial judge found that the police officers offered “consistent and corroborative” evidence.

She registered her concerns about inconsistencies in the Appellant’s testimony. [ 27 ] In general, a trier of fact is entitled to apply common sense and human experience in weighing the credibility of evidence:

S(RD) at para 39. Judicial inquiry into the factual, social and psychological context within which litigation arises is not unusual: S(RD) atpara 42. An understanding of the context or background essential to judging may be gained from the judge’s personal understanding andexperience in the society in which [s]he lives and works: S(RD) at para 44.

The Supreme Court of Canada in a case alleging policemisconduct in denying an accused his right to counsel addressed the approach this way: [i]n a case involving alleged police misconduct in denying an accused’s right to counsel, this Court...used a contextual approach toensure that the purpose of the constitutionally protected right was fulfilled...The Court, placing itself in the position of the accused, askedhow the accused would have experienced and responded to the arrest and detentio[n]: S(RD) at para 43. [28] The trial judge’s inappropriate metaphor was made in response to the Respondent’s concession that there was no evidenceshowing that the Appellant was being untruthful or evasive.

The trial judge qualifies her “silly bugger” comment by stating, “I’m notsure what the word is...” and follows it with an explanation. The record shows that the trial judge had concerns about the Appellant’scredibility. In this context, a reasonable person would neither apprehend that the trial judge was calling the Appellant a “silly bugger”,nor that she was suggesting that “silly buggery” was at play, but rather voicing her concerns about the Appellant’s testimony. [29] In conclusion, the trial judge’s comments, fall short of the test for a reasonable apprehension of bias.

What a reasonableperson might perceive must be considered in the context of the whole of the proceedings. The record shows that the trial judge activelyinteracted with counsel during argument at the end of hearing the evidence presented during the voir dire, and that she appropriatelyengaged in contextual judging. While her comments were unfortunate, unnecessary and unbecoming, a reasonable person considering thewhole of the circumstances, would not apprehend that the trial judge decided the matter unfairly. (

c) Did The Trial Judge Err By Improperly Taking Judicial Notice Of An Adjudicative Fact? [30] Counsel for the Appellant submits that the trial judge improperly took judicial notice of the fact that “[e]veryone knowsyou’re not supposed to drink and drive”. The Appellant alleges that, for the trial judge to make generalizations about impaired drivinglaw which is “nuance and complicated”, is inaccurate and unfair. [31] Counsel for the Respondent submits that the comments were part of the dialectic and not judicial pronouncements.

In thealternative, her argues that the fact at issue in the overall context of the case, is most properly characterized as “all licenced drivers inAlberta know that is it wrong to drive while impaired by alcohol”.

He submits that this fact is so “notorious or generally accepted” as notto be the subject of debate among reasonable persons. [32] A court may properly take judicial notice of facts that are either: (i.) so notorious or generally accepted as not to be the subjectof debate among reasonable persons; or (ii.) capable of immediate and accurate demonstration by resort to readily accessible sources ofindisputable accuracy: R v. Find, 2001 SCC 32 , [2001] 1 SCR 863 at para 48.

If this test is not met, and the fact is“adjudicative” in nature, the fact will not be judicially recognized, and that is the end of the matter: R v. Spense, 2005 SCC 71, [2005] 3SCR 458 at paras 61-62. [33] The trial judge’s comments during argument which have raised the Appellant’s concern are extracted here from the trialtranscript: The Court: You know, no one ever asked him -- I mean, [...] he did the [...] driver’s test in English. That’s important for a driver’s testin English and without a translator and, you know. And then he [...] says, I know some of the rules.

There isn’t a person with a driver’s licence who doesn’t know you’re [...] not supposed to drink and drive. Everyone knows you’re notsupposed to drink and drive. [...] [P]robably in the Philippines you can’t drink and drive. And what does he understand yet -- and again, I don’t want to go too deep into what he says now that he understood. [.. .]

All right. Anything further? I haven’t been transparent enough where I’m coming from? [ 34 ] By “everyone”, the trial judge was referring to Canadians who hold driver’s licences. This is discernable from the trial judge’s previous sentence: “[t]here isn’t a person with a driver’s licence...” and her next sentence which recognized that this might not apply in every country.

To interpret “everyone” in its ordinary grammatical sense would lead to an obviously absurd conclusion which, given the circumstances, the trial judge could not have meant. [ 35 ] In this context, the trial judge was not taking judicial notice of anything. Rather, she was weighing testimony in order to assess the police officers’ and the Appellant’s credibility. At trial, counsel for the Appellant argued that the Appellant knew some driving laws but not the impaired driving laws.

The trial judge did not err in voicing her concerns about the plausibility of this, in particular that the Appellant, the holder of an Alberta driver’s license was ignorant of an arguably well-known requirement, compared to an obscure law. This is also evident in her conclusion. She asked counsel for the Appellant if he understood where she was coming from. No judicially noted fact appears in the trial judge’s written reasons. [ 36 ] Counsel for the Appellant is correct in stating that Canada’s impaired driving laws may appear to some as complicated given the overlap of federal and provincial jurisdiction.

However, the trial judge did not err in stating during hearing counsels’ final submissions: “you’re not supposed to drink and drive”. The trial judge is not required to cite the law verbatim during argument. Conclusion [ 37 ] This appeal is largely focussed on what the trial judge did and did not do during the proceedings. While there is something to be desired in the manner in which the trial judge commented on certain of the issues, in particular her use of the vernacular, none of the impugned comments appear in her pronouncement.

The context of the words and references used amounted to a working through or weighing of the evidence she had heard and the credibility issues to be reconciled. I am not satisfied that the trial judge made any decision that could be characterised as based on bias against the Appellant, improperly took judicial notice of any fact that should have been proven, failed to give sufficient reasons or made any error in law in her ultimate decision. [ 38 ] Accordingly this appeal is dismissed. Heard on the 11 th day of October, 2012. Dated at the City of Calgary, Alberta this 30 th day of November, 2012. M.C.

Erb J.C.Q.B.A. Appearances:

Jason Wuttunee for the Crown/Respondent Heather D. Ferg for the Accused/Appellant