COURT OF APPEAL FOR ONTARIO

CITATION: R. v. S.K., 2025 ONCA 149[^1]

DATE: 20250226

DOCKET: COA-23-CR-0430

Simmons, George and Pomerance JJ.A.

BETWEEN

His Majesty the King

Respondent

and

S.K.

Appellant

Nate Jackson, for the appellant

Deepa Negandhi, for the respondent

Heard: February 24, 2025

On appeal from the conviction entered on December 15, 2022, by Justice James Stribopoulos of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1] Following the oral hearing, we allowed this appeal for reasons to follow. These are our reasons.

[2] A jury found the appellant guilty of sexual interference but was unable to reach a verdict on a count of sexual assault. The trial judge declared a mistrial in relation to the sexual assault charge. The appellant appeals his conviction for sexual interference.

[3] The complainant in relation to both charges was the appellant’s first cousin. She alleged that the appellant repeatedly sexually abused her when she was between the ages of 8 and 18. The sexual interference charge related to allegations arising before her sixteenth birthday, the sexual assault charge to allegations arising thereafter. The self-represented appellant testified at trial and denied all allegations.

[4] The appellant raised three issues on appeal. We did not call on the Crown to address the second and third issues, which were related to jury instructions. The appellant failed to demonstrate error in the trial judge’s instructions on prior consistent statements. Nor was this a case in which additional caution about count to count reasoning was required: R. v. Sandhu, 2009 ONCA 102, 242 C.C.C. (3d) 262, at paras. 11-18.

[5] As for his first ground of appeal, the appellant submitted that, at trial, the Crown invited the jury to engage in impermissible reasoning by submitting as part of his closing address that the appellant’s sustained lack of romantic relationships with women since approximately 2008 or 2009 somehow provided him with a motive to commit the alleged offences. He asserts that the trial judge erred by not only failing to correct this improper submission but also by exacerbating the prejudice it caused by including the Crown’s statement of this position in his jury charge.

[6] In his closing address to the jury, the trial Crown said, in part, the following:

[The appellant], in my view, was a sexual opportunist. Having no romantic relationships with women during that time period in his life, when he saw opportunities to satisfy his sexual urges through his cousin, he took those opportunities. [Emphasis added.]

[7] At the request of the trial Crown, the trial judge included the following in his statement of the Crown’s position in his jury charge:

Further, [the Crown] argues that [the appellant’s] evidence also provided a motive for him to commit these crimes; namely, a sustained lack of romantic relationships with women since approximately 2008 or 2009. [Emphasis added.]

[8] We accept the appellant’s submission that these references to, and suggested use of, the appellant’s lack of romantic relationships were irrelevant, prejudicial and unfair.

[9] The references were irrelevant because the fact of the appellant having no such relationships had no bearing on a material fact in issue at the trial. On appeal, the Crown asserted that the Crown’s closing address at trial were directed to the issue of opportunity and also pointed out that the appellant volunteered the evidence of his lack of relationships as part of his testimony in-chief. We reject these submissions. Standing alone, the fact that the appellant was, or was not, involved in a romantic relationship at the time of the alleged offences made it no more or less likely that he committed them and shed no light on his opportunity to do so. That the self-represented appellant volunteered irrelevant evidence adds nothing to the Crown’s position.

[10] To be sure, inviting the jury to find that the appellant acted opportunistically would not have been improper. However, the Crown’s expression of a personal opinion in that respect was both improper and prejudicial. It added the stature of Crown counsel’s opinion to what should have been a submission.

[11] More importantly, the references to the appellant’s lack of romantic relationships in the Crown’s closing and in the jury charge were prejudicial because they invited the jury to engage in an impermissible form of reasoning: that the appellant was somehow incentivized or motivated to commit a criminal offence — a sexual assault — because he was not involved in a romantic relationship.

[12] Finally, the references to the appellant's lack of romantic relationships was unfair because the trial Crown did not cross-examine the appellant at trial on this alleged motive. He was therefore deprived of any opportunity to neutralize the improper suggestion.

[13] Based on the foregoing reasons, we are satisfied that the trial judge erred in failing to correct the Crown’s improper suggestion in his closing and also by incorporating into the jury charge a statement of the Crown’s position that escalated the improper suggestion into a motive. In fairness to the trial judge, because the appellant was self-represented, the trial judge did not have the benefit he generally would have from the assistance of defence counsel.

[14] We reject the Crown’s submission that this was a trivial error that we can be satisfied led to no substantial wrong or miscarriage of justice, warranting application of the proviso. The trial judge provided no other instructions on the subject of motive in his jury charge. As was observed by the appellant’s counsel in his reply submissions, the fact that the improper references in both the trial Crown’s closing and the trial judge’s jury instructions were isolated does not mean they were buried. Elevating the absence of romantic relationships to a possible motive had the potential to capture the attention of one or more members of the jury. We are not in a position to say it had no impact on the verdict.

[15] We therefore allowed the appeal, set aside the appellant’s conviction and ordered a new trial.

“Janet Simmons J.A.”

“J. George J.A.”

“R. Pomerance J.A.”

[^1]: This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.