COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Imran-Khan, 2021 ONCA 874

DATE: 20211209

DOCKET: C67105

Fairburn A.C.J.O., Feldman and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sharina Imran-Khan

Appellant

Chris Sewrattan and Ashley Sewrattan, for the appellant

Jerry Brienza, for the respondent

Heard: December 2, 2021

On appeal from the convictions entered on February 28, 2019, by Justice David L. Corbett of the Superior Court of Justice.

REASONS FOR DECISION

[1] The appellant, a real estate agent, was convicted of fraud in relation to three real estate transactions. In the first, she was found to have defrauded the victim by facilitating a mortgage on his commercial property without his knowledge. In the second, she was found to have falsely claimed to consolidate two of an unrelated victim’s mortgages into a third mortgage, not canceling the two previous mortgages, and keeping the funds that were intended to pay those mortgages off. In the third, she was found to have defrauded another couple by keeping funds that were meant to refinance their mortgage.

[2] On appeal, the sole issue raised is whether the trial judge impermissibly intervened during the cross-examination of the appellant and by expressing his disbelief of her evidence during her testimony. The appellant argues that the trial judge’s interventions created two impressions: first, that the trial judge placed the authority of his office on the Crown’s side; and second, that the trial judge disbelieved the appellant. She argues that these impressions, together, constituted a miscarriage of justice that warrants a new trial. Essentially, the claim is that the interventions raised a reasonable apprehension of bias on the part of the trial judge.

[3] We do not agree.

[4] By way of context, we agree with the trial judge’s assessment of the Crown’s case as “not a close call”. There was no doubt that frauds had taken place and the only issue was whether the appellant was a knowing participant. The Crown’s case against the appellant was formidable.

[5] The trial judge’s reasons were detailed, and he carefully considered the evidence before him. In his reasons for decision, the trial judge called the defence, which was largely comprised of the appellant’s evidence, a “pack of lies” albeit “salted with some nuggets of truth”. He made explicit credibility findings with respect to the evidence of the Crown witnesses and generally accepted their evidence. He expressly applied R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, and soundly rejected the appellant’s evidence, finding that it did not raise a reasonable doubt of her guilt.

[6] The appellant bases her appeal on ten allegedly improper interventions that the trial judge made in the course of the cross-examination of the appellant over a day and part of another day. She argues that, taken together, the interventions created the appearance of an unfair trial to a reasonable person present throughout the proceedings, and fell within the impermissible category of questioning an accused person “to such an extent or in a manner which conveys the impression that the trial judge has placed the authority of his or her office on the side of the prosecution and conveys the impression that the trial judge disbelieves the accused or the witness”: see R. v. Murray, 2017 ONCA 393, 138 O.R. (3d) 500, at paras. 96-97; R. v. Stucky, 2009 ONCA 151, 303 D.L.R. (4th) 1, at para. 71, citing R. v. Valley (1986), 1986 CanLII 4609 (ON CA), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 231. Ultimately, the question to be asked is: would a reasonably minded person who had been present throughout the trial consider that the accused had not had a fair trial?

[7] We start with the observation that the appellant and her senior counsel did not object to the trial judge’s interventions.

[8] The interventions do not, read in their entirety, paint a picture of a judge who has compromised trial fairness. It is clear from the transcripts that the appellant’s evidence was frequently confusing. The interventions are virtually all questions seeking clarification in this judge-alone trial. They demonstrate a high level of engagement on the part of the trial judge, which is ultimately reflected in his reasons: he listened carefully to the evidence and sought clarification when he needed it.

[9] The only point at which the trial judge clearly expressed disbelief in the appellant’s evidence was after the cross-examination was complete, when he indicated that the appellant’s evidence did not make sense. In the unusual circumstances of this case, where the record reveals that the appellant’s explanation of the impugned transactions was lacking in any credulity, the trial judge gave the appellant the opportunity to talk to her lawyer regarding obvious problems in her evidence that might be addressed via the production of corroborating documentation in re-examination. The defence chose not to do so.

[10] We do not find that this intervention, read alone or along with the others, was sufficient to raise a reasonable apprehension of bias. Put another way, we are not satisfied that a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial. Rather, the trial judge was seeking clarification of confusing evidence, and when he did express his disbelief of her evidence at the end of her cross-examination, he provided her with the opportunity to provide corroborative evidence.

[11] In short, the evidence that the appellant participated in the frauds alleged was overwhelming, and, considered in context, the trial judge’s interventions did not give rise to a reasonable apprehension of bias that compromised the appellant’s right to a fair trial.

[12] The appeal is therefore dismissed.

“Fairburn A.C.J.O.”

“K. Feldman J.A.”

“A. Harvison Young J.A.”