Court File and Parties

COURT FILE NO.: CR-15-50000082-00AP DATE: 20160530 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – SHAH KHAN Appellant

Counsel: Darren Hogan, for the Crown Self-represented

HEARD: April 22, 2016

Reasons for Judgment

[On Appeal from the Judgment of Justice Lloyd Budzinski of the Ontario Court of Justice dated May 5, 2015]

B. P. O’Marra, J.

[1] The appellant represented himself at trial and on appeal. He was found guilty of uttering a death threat contrary to s. 264.1(1)(a) of the Criminal Code. The complainant and another witness named Darryl Welsh testified that they heard the threat. The appellant testified and denied the offence. A further witness named Nasrin Islam testified for the defence. The judgment turned on issues of credibility.

[2] The trial judge rejected the appellant’s evidence and found that it did not raise a reasonable doubt. The appellant was placed on 18 months’ probation.

[3] The appellant seeks a new trial based on the following:

(1) The trial judge failed to provide adequate assistance to the self-represented appellant; (2) The verdict was unreasonable; and (3) The trial judge failed to consider the evidence of Nasrin Islam.

[4] There is no merit to any of the grounds of appeal.

[5] Before arraignment, the trial judge carefully canvassed with the appellant the potential challenges of proceeding without counsel. The appellant made clear he wished to represent himself. He declined a potential adjournment to obtain counsel. The trial judge explained the difference between cross-examination, potential defence evidence and final submissions. The trial judge assisted the appellant by asking questions of the Crown witnesses based on issues raised by the appellant. The trial judge patiently allowed the appellant and his witness to speak extensively on topics of dubious relevance. On occasion, the trial judge interjected when the defence evidence was clearly irrelevant or prolix.

[6] The reasons for judgment make clear why the trial judge accepted the evidence of the Crown witnesses and rejected the evidence of the appellant. There was no explicit reference to the evidence of Nasrin Islam. However, her evidence related to observations after the offence had occurred. The failure to refer to that evidence was not a misapprehension that could have affected the verdict.

[7] The appeal is dismissed.

B. P. O’Marra, J. Released: May 30, 2016