COURT OF APPEAL FOR ONTARIO

CITATION: R. v. U.P., 2025 ONCA 567[^1]

DATE: 20250731

DOCKET: COA-23-CR-0103

Roberts, Dawe and Rahman JJ.A.

BETWEEN

His Majesty the King

Respondent

and

U.P.

Appellant

Nate Jackson, for the appellant

Jennifer Epstein, for the respondent

Heard: June 12, 2025

On appeal from the convictions entered on June 16, 2022 by Justice Patrick J. Monahan of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

A. Overview

[1] Following a jury trial the appellant was convicted of three out of six remaining charges of sexual abuse against the then 14-year-old complainant.[^2] The charges arose out of five separate incidents alleged by the complainant. The appellant was between 18 and 19 years of age at the time of the incidents and in the scholars program at the mosque that the complainant also attended.

[2] The counts on which appellant was convicted were: sexual interference in a van on August 4, 2017 (count 1); invitation to sexual touching in the same van on this same occasion on August 4, 2017 (count 2); and sexual interference in a guest room at the mosque on a single occasion between August and December 2017 (count 3).

[3] The counts on which the appellant was acquitted were: invitation to sexual touching in the ablution room at the mosque on a single occasion between August to December 2017 (count 4); exposing genitals in the guest room of the mosque on a single occasion between August to December 2017, different from the incident in count 3 (count 5); and sexual interference on a single occasion in the guest room of the mosque on December 22, 2017, different from the incidents in counts 3 and 5 (count 6).

[4] Pursuant to a joint proposal that the trial judge accepted, on February 9, 2023, the appellant received a sentence of two years less a day plus 18 months’ probation and various ancillary orders.

B. Issues

[5] The appellant appeals only his convictions. He submits that the trial judge made three reversible errors:

1. The trial judge failed to disclose at trial the second part of a jury note delivered at the end of the second day of deliberations in which the jury asked if they could have a “rest day from our work” if they came to a verdict that evening. The appellant argues that the jury note indicates that the jury’s deliberations were rushed and resulted in a compromised verdict, and that the trial judge erred in failing to declare a mistrial.

2. The trial judge failed to give any instruction on the dangers of cross-count reasoning, which the appellant argues was required for a multiple-count indictment.

3. The trial judge failed to give any instruction on the proper use of the complainant’s prior consistent statements. The appellant argues that this instruction was necessary in light of the Crown’s closing remarks that the complainant’s version of events had never changed.

[6] We are not persuaded that the trial judge made any errors and dismiss the appeal.

C. Analysis

(1) The jury note

[7] The jury’s deliberations commenced at around 10:20 a.m. on June 15, 2022 and completed with a verdict delivered late in the evening on June 16. The jury spent the night of June 15 at a hotel, returned the next morning, and resumed their deliberations at around 10:30 a.m. At around 8:10 p.m. on June 16, a one-page jury note, signed by the 11 jurors using their juror numbers (one juror having previously been discharged because of a work commitment), was delivered to the court. The note reads as follows:

Dear Judge Monahan,

1. We have been told to convey to you that our transportation was subpar – we lost 2 hours due to transportation issues. Also, due to being 4 per car (not vans)/motion sickness, one of the jurors had vomited on the way back to the courthouse. Thus, we wanted to inform you about the circumstances of our shortened period for deliberations today.

Thank you again, sincerely, for all of the work that your honour, the court staff and the counsel all do. We truly appreciate it.

2. Is it possible for all of us to take tomorrow as a rest day from our work, should we reach a verdict today?

[8] A few minutes later, before court had been reconvened, the jury notified the court through court staff that they had reached a verdict. The trial judge reconvened court with counsel and read out only the first paragraph of the jury note concerning the transportation issues, and did not read out paragraph 2 of the jury note. He suggested to counsel that he intended to tell the jury that he appreciated their concerns about the transport. Counsel made no comments nor expressed any concerns. The jury note was entered as a lettered exhibit. The jury was then called back into court and delivered its verdict.

[9] The appellant’s trial counsel read the entire jury note when preparing for the sentencing hearing. On August 26, 2022, the appellant brought a mistrial application, which the trial judge dismissed.

[10] In his reasons dismissing the mistrial application, the trial judge first explained why he did not regard it “as appropriate or necessary” to read out the second paragraph of the jury note:

Apart from the fact I had no jurisdiction to grant any such rest day, the jury had gone ahead and reached a verdict without waiting for, or receiving, an answer to their question. I therefore regarded this as a matter that could be addressed administratively through instructions to court staff once the jury had been discharged.

[11] Given that the jury had deliberated well into the evening on two consecutive days, the trial judge exercised his discretion and granted the jury credit for an additional day of jury service for purposes of calculating their jury pay.

[12] The trial judge then turned to the two bases for dismissing the mistrial application. First, he concluded that he lacked jurisdiction to declare a mistrial on the basis of the jury note “since this would involve a consideration of alleged irregularities arising in the course of jury’s deliberations” which “can only be remedied on appeal.” Second, he concluded that nothing in the jury note indicated that the jury’s deliberations were affected or rushed or otherwise met the high bar of a real danger of prejudice to the accused or a danger of a miscarriage of justice.

[13] We see no error in the trial judge’s dismissal of the mistrial application and agree with his treatment of the jury note.

[14] First, we agree with the trial judge’s conclusion that he lacked the jurisdiction to declare a mistrial post verdict in the circumstances of this case. As he concluded, the verdict having been reached and the jury discharged on June 16, the trial judge did not have jurisdiction to correct or alter the verdict in the circumstances of this case, as they did not involve the exceptional post-discharge jurisdiction permitting the trial judge to correct an error in the conveying or recording of the jury verdict: R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, at para. 52. The issues raised by the appellant on the mistrial application challenge the integrity of the jury’s deliberations; the role of the trial judge in those circumstances is limited to creating a record for appellate review, which was not requested here: R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 72, leave to appeal refused, [2015] S.C.C.A. No. 478.

[15] Second, we further agree with the trial judge’s determination that the high bar for a mistrial was not reached in this case. The trial judge correctly adverted to the governing principles concerning the granting of mistrials:

It is well established that mistrials are a remedy of last resort and should only be granted in the clearest of cases where no remedy short of a mistrial will redress the harm [citing R. v. Toutissani, 2007 ONCA 773, at para. 9; R. v. McDonald, 2022 ONCA 574, 416 C.C.C. (3d), at para. 64]. Before ordering a mistrial, there must be either a “real danger” of prejudice to the accused or a danger of a miscarriage of justice citing McDonald, at para. [64](https://www.canlii.org/en/on/onca/doc/2022/2022onca574/2022onca574.html), citing Burke, at para. [74]].

[16] There was no danger of prejudice or a miscarriage of justice in this case. The jury note does not indicate that the jury was rushed and did not want to continue its deliberations. Rather, it indicates what it says: as instructed by court staff, the jury informed the court about the transportation issues and sought a day off from work if they deliberated late into the evening. The jury did not wait for a response and delivered their verdict minutes after they sent their note. Any suggestion that the jury’s deliberations were compromised is speculative and not borne out by the time that the jury spent in reaching its verdict and by the verdict itself that indicated a nuanced consideration of the different charges.

[17] Finally, the trial judge made no error in treating paragraph 2 of the jury note as an administrative matter. It was therefore unnecessary to disclose it in the presence of all parties and to give counsel an opportunity to make submissions and to answer the question in open court. For the reasons we have already indicated, nothing in the jury’s request for a rest day affected the integrity of their deliberations and therefore had no “bearing on the procedural and substantive rights of the parties”: R. v. Tran, 1994 56 (SCC), [1994] 2 S.C.R. 951, at pp. 993-994; R. v. Fontaine, 2002 MBCA 107, 166 Man. R. (2d), at paras. 55-60.

[18] We therefore dismiss this ground of appeal.

(2) No additional jury instructions were necessary

[19] As for the additional jury instructions that the appellant now submits were essential, we start by noting that neither instruction was mandatory or necessary in the circumstances of this case. We also note that defence counsel at trial did not request these instructions. While not fatal, the failure of trial counsel to request instructions is a good indication that they were not deemed necessary for a fair trial: R. v. B.B., 2024 ONCA 766, 442 C.C.C. (3d) 402, at paras. 37-38. That is the case here.

(i) Cross-count instruction

[20] As a general proposition, the purpose of the cross-count instruction in multi-count indictments, where there is a real risk that the jury will misuse evidence from one count as proof that the accused committed the offences in the other counts, is to caution the jury against drawing this prohibited inference: R. v. MRS, 2020 ONCA 667, at paras. 67-69.

[21] We are not persuaded that the cross-count instruction was necessary in this case. Here, there was no risk that the jury would engage in such reasoning. The charges were all based on allegations by a single complainant. Two of the counts for which the appellant was convicted arose from the same factual incident. Further, the jury was not invited directly or indirectly to use cross-count reasoning. Indeed, the trial judge addressed and instructed the jury to consider each of the counts separately. Finally, the jury’s acquittal on three counts demonstrates that they did not engage in prohibited propensity reasoning. The jury clearly did not rely on their finding of the appellant’s guilt on three counts to reason that he committed the three counts on which he was acquitted.

(ii) Prior consistent statement instruction

[22] The general object of a prior consistent statement instruction is to caution the jury against impermissibly relying on a witness’s prior consistent statements to bolster his or her credibility or reliability. Specifically, the fact that someone said the same thing on a prior occasion is not probative of whether a witness, including a complainant, is offering truthful testimony in court. Allowing a witness to bolster their trial testimony with their own prior statements is self-serving: see R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 36; R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para. 25, leave to appeal refused, [2017] S.C.C.A. No. 139; and R. v. Mackenzie, 2015 ONCA 93, 19 C.R. (7th) 150, at para. 11.

[23] The prior consistent statement instruction had no application in the circumstances of this case because the Crown did not seek to rely on any prior consistent statements by the complainant. The complainant’s video statement to the police was not a prior consistent statement but admitted as part of his evidence at trial.

[24] Moreover, and importantly, the Crown’s closing remarks about the consistency of the complainant’s account were properly made in direct response to defence argument that the complainant’s evidence was riddled with inconsistencies. Defence was entitled to vigorously attack the complainant’s credibility and reliability and the Crown was equally entitled to attempt to rebut those attacks with the contention that the complainant’s account was consistent: R. v. L.O., 2015 ONCA 394, 324 C.C.C. (3d) 562, at para. 40; R. v. Perkins, 2015 ONCA 521, at para. 9.

[25] The appellant received a fair trial before a properly instructed jury. There is no basis to intervene.

D. Disposition

[26] For these reasons, we dismiss the appeal.

“L.B. Roberts J.A.”

“J. Dawe J.A.”

“M. Rahman 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.

[^2]: Prior to closing, the Crown withdrew count 7 – forcible confinement in the guest room at the mosque on December 22, 2017.