



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 victims 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 judges interventions created two
    impressions: first, that the trial judge placed the authority of his office on
    the Crowns 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
    judges assessment of the Crowns 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 Crowns case against the appellant was
    formidable.

[5]

The trial judges 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 appellants
    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] 1 S.C.R. 742, and soundly rejected the appellants
    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), 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 judges 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 appellants 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 appellants evidence was after the cross-examination
    was complete, when he indicated that the appellants evidence did not make
    sense. In the unusual circumstances of this case, where the record reveals that
    the appellants 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 judges interventions did not give rise to a reasonable
    apprehension of bias that compromised the appellants 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.


