R. v. Pirani

R. v. Pirani Collection Decisions of the Court of Appeal Date 1999-05-14 Docket numbers C25477 Judges Weiler, Karen Merle Magnuson; Charron, Louise Vivianne; Goudge, Stephen Thomas Subject Criminal Decision Content DATE: 19990514 DOCKET: C25477 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) -and- ZEENAT PIRANI and PHARMACORP GROUP INCORPORATED (Appellants) BEFORE: WEILER, CHARRON and GOUDGE JJ.A. COUNSEL: David E. Harris, for the appellants David Lepofsky, for the respondent HEARD: May 4, 1999 On appeal from the conviction on May 23, 1996, imposed by Thompson J. sitting with a jury and from the sentence imposed by Thompson J. on September 3, 1996. ENDORSEMENT [1] The appellant seeks to introduce fresh evidence concerning a discussion between counsel and the trial judge. The discussion took place in the judge’s chambers at some point during the trial, after the appellant had commenced her testimony. [2] Counsel for the appellant seeks to rely on this evidence in further support of the allegation that the trial judge’s conduct during the course of the trial created an apprehension of bias or gave the appearance of unfairness. We did not call upon the Crown to respond to this application. In our view, the fresh evidence should not be admitted. At its highest, the trial judge’s remark consisted of a gratuitous comment to counsel as to the observations he was making of the jury. The evidence does not support the appellant’s contention that the trial judge embarked on plea negotiations. [3] In any event, the trial judge was not the trier of fact. The cases relied upon by the appellant, in our view, have no application to the circumstances of this case and, further, the proposed evidence, in our view, not give rise to any suggestion of apprehension of bias. [4] We also find it worthy to note that no issue was raised with respect to this chambers discussion, either at trial or at the time the appeal was initiated. The affidavits of counsel were not obtained until some three years after the event. They attempt to reconstruct what constituted unrecorded proceedings at trial. Any allegation of bias is serious. It would be unfair to call upon the respondent to respond to this allegation long after the event when the memories are bound have failed. This delay in obtaining the proposed fresh evidence also affects its reliability. [5] In all the circumstances, we are of the view that it would not be in the interest of justice to admit this evidence and the application is denied. [6] The appellant appeals her conviction and sentence on three counts of fraud. Of the several grounds of appeal advanced on conviction, we called upon the Crown only with respect to the question of the appearance of bias. In our opinion, although the questions asked by the trial judge at the conclusion of the re- examination of the appellant were better left unasked, the appellant could not reasonably have considered that she had not had a fair trial. A reasonably-minded person who had been present throughout the trial would consider that the appellant had had a fair trial. We would dismiss the appeal as to conviction. [7] With respect to sentence, we agree that a custodial sentence was an appropriate consideration in this case. We note that, at the time the appellant was sentenced, the provisions with respect to conditional sentences had only just come into force and no reference was made to them by anyone. The appellant is a first offender. She is not a danger to the community. Having regard to the fresh evidence concerning her health problems, we are of the opinion that it would be appropriate to grant leave to appeal the sentence, set aside the sentence of ninety days imprisonment to be served intermittently and order that the appellant serve her sentence in the community by way of a conditional sentence of ninety days. The probation order of one year shall be reduced to a period of six months. “Karen M. Weiler J.A.” “Louise Charron J.A.” “S.T. Goudge J.A.”