COURT FILE NO.: CR-22–10000305
DATE: 20220927
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
UBAIDULLAH PATEL
Emma Evans, for the Crown
Rishma Gupta, for Ubaidullah Patel
HEARD: August 26, 2022
Ruling on Mistrial Application
P.J. Monahan J.
[1] Ubaidullah Patel was charged with sexual interference, invitation to sexual touching, and exposure of his genitals, arising from a number of incidents that were alleged to have occurred in late 2017 involving a then-14-year-old complainant. On June 16, 2022, following a two-and-a-half-week trial before me sitting with a jury, the jury found Mr. Patel guilty of counts one to three, and not guilty of counts four to six. The jury was discharged and Mr. Patel was remanded to August 26, 2022 for sentencing.
[2] On July 19, 2022, Mr. Patel served notice that he intended to bring an application for a mistrial, based on a note from the jury that I received just prior to the delivery of the jury’s verdict on the evening of June 16, 2022. Mr. Patel argues that this note is evidence of a miscarriage of justice and/or prejudice to his rights which can only be remedied through a declaration of a mistrial.
[3] The Crown opposes the application on two grounds. First, the Crown says that I have no jurisdiction to consider a mistrial application given that the jury has rendered its verdict and has now been discharged for over two months. Second, even if I did have jurisdiction to consider the mistrial application at this stage, the Crown maintains that Mr. Patel has not established that it would be appropriate to declare a mistrial in the circumstances of this case.
Circumstances Leading to the Mistrial Application
[4] The charges against Mr. Patel arose from five separate incidents that were alleged to have occurred between August 4, 2017, and December 22, 2017. The first two counts in the indictment (sexual interference and invitation to sexual touching) related to the first incident, which was alleged to have taken place on August 4, 2017. The remaining four counts (i.e., two counts of sexual interference, and one count each of invitation to sexual touching and exposure of his genitals) related to the other four incidents.
[5] The charge to the jury was completed on the morning of June 15, 2022, and the jury began deliberations at approximately 10:25 a.m. that morning. The jury continued its deliberations throughout the day and into the early evening.
[6] There were no hotels in the downtown Toronto area that could accommodate the jury and supervising court staff, and thus reservations had been made for them at a hotel in Richmond Hill. The supervising court staff had been instructed to advise the jury that in the event that they had not reached a verdict by 8 p.m., they should then conclude their deliberations for the day, so as to accommodate the travel time required to get to the hotel. At the same time, the jury was also told that, in the event that they believed they were close to a verdict, they could ask to continue deliberating beyond the 8 p.m. notional cut off time.
[7] The jury completed their deliberations for the day at about 8 p.m. on June 15, 2022, without reaching a verdict (and without requesting any additional time for deliberations). They were then transported to the hotel by taxi.
[8] The policy of the Ministry of the Attorney General is that three staff persons are sufficient to provide appropriate overnight jury supervision. Therefore, because each transporting vehicle must include one supervising staff person,[^1] the entire jury must be transported in three vehicles. This necessitates the use of taxi vans as opposed to sedans for jury transport, since only vans have seating to accommodate four jurors and a supervising staff person. Three taxi vans were requested and provided by the taxi company on the evening of June 15, 2022, and the 11-member jury,[^2] along with the three supervising staff persons, were transported to the hotel without incident.
[9] Although three vans were requested for the following morning, the taxi company provided three sedans instead and indicated that no vans were available. It was therefore determined by the jury office that a fourth supervising staff person should be sent from the courthouse to the hotel, so that there would be a sufficient number of staff persons to transport the jury in four separate vehicles. When I arrived at the courthouse on the morning of June 16, 2022, I was apprised of these circumstances and advised that this additional supervising staff person had departed the courthouse at approximately 8 a.m. that morning, en route to the hotel in Richmond Hill. The additional supervising staff person arrived at the hotel shortly after 9 a.m. The jury, which had remained at the hotel awaiting the arrival of the additional supervising staff person, was then transported to the courthouse in four separate taxi sedans. I was further advised that the jury arrived back at the courthouse shortly after 10 a.m., and, by 10:30 a.m., had resumed their deliberations.
[10] I was concerned that this delay would happen again in the event that the jury required hotel accommodation for a second overnight. Accordingly, notwithstanding the Ministry’s policy, I directed the jury office to make a fourth supervising staff person available in case it was necessary to transport the jury back to the hotel that evening, thereby permitting the use of four vehicles as opposed to three.
[11] Just before 8 p.m. on June 16, 2022, supervising court staff advised me that the jury had requested permission to continue their deliberations beyond the notional 8 p.m. cut off time. I agreed and instructed the supervising court staff to so inform the jury.
[12] Approximately ten minutes later, supervising court staff delivered to me a one-page handwritten note from the jury (the “Jury Note”), which read as follows:
Dear Judge Monahan,
- We have been told to convey to you that our transportation was subpar – we lost two hours due to transportation issues. Also, due to being four 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 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.
- Is it possible for all of us to take tomorrow as a rest day from our work, should we reach a verdict today?
[13] The 11 jurors had each signed below paragraph two, using their juror numbers.
[14] My normal practice upon receiving a note from a jury is to reconvene court, in the absence of the jury, to disclose the note to Crown and defence, and to seek their advice as to what, if anything, should be done about it. However, less than five minutes after receiving the Jury Note and before I could reconvene court, I was advised by the supervising court staff that the jury had reached a verdict. I directed court staff to advise the parties that the jury had reached a verdict and that they should come back into court to receive it.
[15] Court was reconvened at approximately 8:30 p.m. that evening. Before calling the jury back into court to receive the verdict, I informed Crown and defence that I had received a note from the jury just moments before, expressing concerns over the transportation from the hotel to the courthouse that morning. I then read the first paragraph of the Juror Note as set out above. I explained to the parties my understanding of the transportation difficulties that had arisen that morning[^3] (noting that, prior to receiving the Jury Note, I had been unaware of the fact that one juror had vomited on the way back to the courthouse). I further advised the parties that I had made arrangements to have an additional staff person made available to supervise the jury in the event that it had been necessary for them to return to the hotel that evening.
[16] I did not regard it as appropriate or necessary to read out the second paragraph of the Juror Note, in which the jurors had asked whether they could be granted a “rest day” from their work the following day in the event that they reached a verdict that evening. 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.[^4]
[17] The Jury Note was entered as a lettered exhibit and the jury was called back into the courtroom. The foreperson delivered their verdicts on the six counts in the indictment, as set out in paragraph one above. I thanked the jury for their service, as well as for bringing the transportation difficulties they had encountered that morning to my attention. I informed them that I had made arrangements to ensure that there would have been sufficient supervising court staff to accompany them in the event that it had proven necessary for them to return to the hotel that evening. The jury was then discharged.
[18] Although the court does not have jurisdiction to direct employers to grant jury members a “rest day”, the court does have discretion to grant jurors credit for an additional day of jury service for purposes of calculating their jury pay. Given that they had deliberated well into the evening on two consecutive days, I regarded it as appropriate to exercise my discretion and grant them credit for an additional day of jury service. Following the discharge of the jury, I instructed supervising court staff to advise the jury of this decision before they departed the courthouse that evening.
Positions of the Parties
[19] Mr. Patel argues that the Jury Note is evidence that the jury did not reach their verdict solely on the basis of the evidence and the law. Rather, their verdict reflected the fact that the jury did not want to return to the hotel that evening, given the transportation difficulties they had encountered. Mr. Patel further argues that the juror who had vomited in the taxi on the way back to the courthouse continued to be ill throughout the day and wanted to get home and recover rather than continue deliberations the next day. In addition, Mr. Patel argues that the jury’s request to receive a “rest day” reflects the fact that they rendered a verdict so that they could be off work the next day.
[20] Relying on the Supreme Court of Canada’s decision in R. v. Burke,[^5] Mr. Patel argues that a trial judge has a discretion to declare a mistrial, even after the jury has been discharged, if there are questions raised concerning the integrity of the jury’s deliberative process. He further argues that the trial judge is in the best position to assess whether the integrity of the deliberative process has been compromised. He claims that, given the circumstances and concerns identified above, it would be a miscarriage of justice not to declare a mistrial in this case.
[21] The Crown takes the position that, although there is a broad common-law power to declare a mistrial prior to a jury rendering a verdict, post-verdict, the general rule is that a trial judge is functus officio and does not have jurisdiction to declare a mistrial based on any alleged irregularity in the jury deliberative process. The sacrosanct nature of the jury verdict is subject to limited and narrow exceptions, including when a verdict is improperly recorded (the situation in Burke), but none of the recognized exceptions applies in circumstances of this case. Notice of Mr. Patel’s intention to bring a mistrial application was not brought to the attention of the Crown or the court until one month after the jury verdict. Accordingly, the Crown argues that I lack jurisdiction to declare a mistrial.
[22] The Crown further argues that, even if I did have jurisdiction to declare a mistrial post-verdict, Mr. Patel has not established that there is a real danger of prejudice to him or of a miscarriage of justice should the verdict be allowed to stand. The Crown argues that mistrials are a remedy of last resort and should only be granted in the clearest of cases where no remedy short of the mistrial will redress the harm. Mr. Patel’s claim for a mistrial is based on mere speculation as to what was in the minds of the jury and falls far short of the high bar that must be met for a trial judge to declare a mistrial. Accordingly, even if I had jurisdiction to declare a mistrial, I should decline to do so in the circumstances of this case.
Analysis: No Jurisdiction to Declare a Mistrial in this Case
[23] In R. v. Head,[^6] the Supreme Court of Canada affirmed the general common-law rule that prohibits changes to a criminal verdict once the jury had been discharged. In Head, the jury rendered a verdict of “not guilty” and the accused was discharged. Immediately afterwards, the foreperson indicated that, although the jury had found the accused not guilty of the charge as laid, it also intended to find him guilty of a lesser and included offence upon which the jury had been instructed. The Supreme Court of Canada held that it was well settled that, once the accused and the jury have been discharged, the trial judge is functus officio and does not have jurisdiction to correct or alter the verdict. McIntyre J., who wrote the Court’s majority opinion, held that the final and sacrosanct nature of the jury verdict in criminal cases is necessary, given the fact that the state, the accused, and members of the public all have vital interests at stake in a criminal prosecution.
[24] In its subsequent decision in Burke, the Supreme Court reaffirmed this “bright line rule” on the basis that any departure from the finality of jury verdicts once rendered would erode Canadians’ confidence in the jury system. Major J., who wrote the plurality opinion of the Court, noted that there are many policy considerations underlying this strict rule in criminal cases, including preserving the finality of the verdict and the certainty of the trial process, shielding jurors from posttrial harassment, and promoting free and frank jury discussions by protecting the secrecy of their deliberations.[^7]
[25] While affirming the general rule that jury verdicts in criminal cases are final, Burke did recognize an exceptional post-discharge jurisdiction permitting the trial judge to correct an error in the conveying or recording of the jury verdict. Major J. noted that correcting such an error does not involve the jury continuing its deliberations or reconsidering its verdict, since the trial judge is merely ensuring that the verdict as recorded reflects the “true verdict” of the jury. Such an inquiry would not expose the deliberations of the jury to undue scrutiny or subject them to the risk of posttrial harassment, and thus would not undermine the policy considerations that had animated the Court’s decision in Head.
[26] At the same time, Major J. held that a trial judge’s jurisdiction to correct an error in the recording of the jury verdict was not unlimited. In particular, he concluded that, if, following their discharge, the jury had been exposed to external influences which could affect their understanding of or approach to the case, it would be too late for the trial judge to try to correct the verdict. This is because exposure to such outside influences could give rise to the perception of a “reasonable apprehension of bias” on the part of the jury, making it inappropriate to reconvene the jurors and inquire into whether the verdict had been correctly recorded. Where the trial judge concludes that such a reasonable apprehension of bias has arisen, the only available remedy is to declare a mistrial.
[27] The important point to note is that the “reasonable apprehension of bias” identified by Major J. relates to circumstances arising following the jury’s discharge, as opposed to irregularities that may have occurred while the jury was deliberating. This is made plain by the following passage in Major J.’s opinion:[^8]
…[O]nce the jurors have dispersed, they are no longer functioning as a single, cohesive unit, and are exposed to outside contacts which may reasonably raise the apprehension of bias. The jury’s dispersal is relevant only in so far as it establishes the presence or absence of the reasonable apprehension of bias. Logically, if the jurors have left the controlled courtroom environment, then the more time that has passed between the announcement of the verdict and the reconvening of the jury, the more convincing the argument becomes for establishing a reasonable apprehension of bias.
[28] This understanding of Burke is reflected in the ultimate result in the case. In Burke, the foreperson announced the verdict but, in doing so, had either stuttered or cleared his throat such that different people in the courtroom heard different versions of the verdict. The trial judge heard “not guilty” and recorded the verdict as such, whereas the jury had actually intended to find the appellant “guilty”.
[29] After recording the verdict of “not guilty”, the trial judge excused the jury and discharged the accused. Soon after the jury’s discharge, a court officer discovered that the foreperson believed that the jury had delivered a verdict of guilty. Upon being informed of the error, the trial judge reconvened the jury the next day and held several inquiries into what had taken place. The trial judge concluded that he had jurisdiction to change the recorded verdict to “guilty as charged” and register a conviction.
[30] Major J. held that the irregularity in this case lay in the faulty transmission and recording of the verdict, rather than in the deliberations leading to the verdict. Therefore, the trial judge had residual jurisdiction to inquire into the error, since it did not involve recalling the jury to complete its deliberations or reconsider its verdict. However, by the time the error was discovered, the accused had been released and the jurors had gone their separate ways in the large metropolitan city of Toronto, exposing them to questions from the curious and potentially prejudicial media coverage of the case. Major J. therefore found that the dispersal of the jury gave rise to a reasonable apprehension of bias, with the result that the trial judge should not have reconvened the jury and attempted to correct the irregularity. The Crown’s appeal was allowed, and a new trial was ordered.
[31] Since Burke, the Court of Appeal has confirmed on a number of occasions that, following a jury verdict, the trial judge has no jurisdiction to remedy any irregularities that may have occurred during the trial. In R. v. Henderson,[^9] the accused, following his conviction by a jury and at the sentencing stage, brought a motion for a stay on the basis that the Crown had failed to provide proper disclosure. The trial judge found that the Crown’s breach of its disclosure obligations constituted an abuse of process. He therefore declined to sentence the accused and, instead, declared a mistrial.
[32] The Court of Appeal allowed the Crown’s appeal on the basis that, post-verdict, the trial judge’s jurisdiction is limited to inquiring into whether there had been an error with respect to the recording or communication of the verdict. It followed that the trial judge lacked jurisdiction to order a stay or declare a mistrial on the basis of any deficiencies in Crown disclosure, a matter that could only be addressed on appeal. It was argued that Burke had expanded the jurisdiction of the trial judge, so as to authorize a mistrial declaration if there was a reasonable apprehension of bias on the part of the jury. Feldman J.A. rejected this argument, pointing out that Major J.’s discussion in Burke of a “reasonable apprehension of bias” was focused on bias resulting from the jury’s exposure to outside influences following their dispersal, rather than concerns arising during the trial.[^10] The Court of Appeal referred the matter back to the trial judge for sentencing, without prejudice to the right of the accused to raise issues relating to Crown disclosure on appeal.
[33] Subsequent cases have proceeded on the assumption that, post-verdict, a trial judge has no jurisdiction to declare a mistrial, although it has been acknowledged that a trial judge may inquire into concerns over jury deliberation in order to create a more complete record for the purposes of an appeal. Thus in R. v. Phillips,[^11] after the jury had delivered a verdict of guilty on a charge of importing cocaine, the judge learned that one juror had apparently told court staff that she had felt threatened by the others. It was also claimed that this juror had said that she would never convict someone for importing drugs because of an experience that her boyfriend had 20 years earlier. When counsel for the appellant was informed of these allegations, he initially sought a declaration of a mistrial. However, the mistrial application was subsequently abandoned on the basis that the trial judge had no jurisdiction post-verdict to declare a mistrial. The trial judge declined to take any further action based on these allegations, which was upheld on appeal.
[34] Similarly, in R. v. Bains,[^12] a question was raised about the integrity of the jury deliberative process when it was learned that the foreperson had created and distributed to other jury members a document referring to a highly publicized American murder trial. At an initial hearing following the discovery of the document, trial counsel for one of the accused invited the trial judge to declare a mistrial or enter a stay of proceedings. Counsel for the other accused submitted that the trial judge had no jurisdiction to grant a mistrial or stay of proceedings since the jury had delivered its verdict and, instead, asked the trial judge to conduct an inquiry into what happened to create a record for appellate review. The trial Crown agreed that the trial judge was functus and could not declare a mistrial or enter a stay of proceedings once the jury had delivered its verdict. The trial judge declined to declare a mistrial, although he did conduct an inquiry into the matter in order to form the evidentiary basis for appeal. No appeal was taken from the refusal of the trial judge to declare a mistrial, with Watt J.A. noting in the course of his analysis that, post-verdict, the role of the trial judge is limited to creating a record for appellate review.[^13]
[35] In short, it is settled law that once a jury has delivered its verdict, the trial judge has no jurisdiction to declare a mistrial on the basis of irregularities that may have occurred during the course of the trial.[^14] Any such irregularities can only be remedied on appeal. It follows that I have no 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 the jury’s deliberations. I also note that, although Mr. Patel has not asked me to reconvene the jurors for the more limited purpose of creating a more fulsome record for appellate review, it would obviously be impractical and unwise to attempt to do so now, more than three months after the jury was discharged.
[36] On this basis, Mr. Patel’s application for a mistrial is dismissed.
Even if I had Jurisdiction to Declare a Mistrial, I Would Decline to do so in the Circumstances of this Case
[37] 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.[^15] Before ordering a mistrial, there must be either a “real danger” of prejudice to the accused or a danger of a miscarriage of justice.[^16]
[38] The high bar that must be met before declaring a mistrial is confirmed by the numerous cases in which the Court of Appeal has declined to order a mistrial even in the face of significant concerns regarding the deliberations of a jury. For example, in Zvolensky, there were numerous complaints about the behaviour of the jury, including that they were consuming significant amounts of alcohol late at night, socializing in small unsupervised groups, expressing contempt for the trial judge and the trial process, and complaining about multiple delays in the process.
[39] Despite these concerns, the Court of Appeal held that there had been no miscarriage of justice and no basis for declaring a mistrial. Pardu J.A. noted that jurors are entitled to the same strong presumption of impartiality as judges and that there is a “heavy burden on a party who seeks to rebut this presumption.”[^17] Jurors are also presumed to govern themselves by the oath they swore to try the accused on the evidence adduced in the courtroom. Pardu J.A. found that there was no evidence that the jury’s ability to do their job had been impaired by alcohol, while momentary expressions of frustration by jurors are commonplace and do not give rise to a miscarriage of justice. Watt J.A., who wrote brief concurring reasons, noted that jury trials often take unexpected turns and “judges are not provided with a Manual of Jury Management or a crystal ball that would permit preemptive strikes to avoid events that might compromise trial integrity.”[^18]
[40] Similarly, in Bains, extrinsic material about a high-profile American murder trial was brought into the jury room during deliberations by the foreperson and given to the other jurors. Watt J.A. observed that it is presumed that jurors will perform their duties according to their oath or solemn affirmation and will understand and follow the instructions they are given.[^19] An appearance of a miscarriage of justice requiring a new trial exists only where the irregularity is sufficiently significant or pronounced such that it would taint the administration of justice in the eyes of a reasonable observer.[^20] In that case, the extraneous information was only available for a short period of time and it was not clear how many jurors had actually read it. It was also unclear whether the extraneous information was discussed or considered by the jury. In these circumstances, Watt J.A. held that what had occurred fell short of establishing a miscarriage of justice through an appearance of unfairness.
[41] More recently, in R. v. Wise,[^21] it came to light during jury deliberations that one juror had threatened the others. The trial judge held an inquiry into the conduct of the juror and, during that process, the impugned juror’s vote was inadvertently revealed. The trial judge discharged the impugned juror and cautioned the jury that the juror had been discharged due to his conduct and not his vote, but refused the Crown’s application for a mistrial. The jury ultimately acquitted the accused and the Crown appealed. In dismissing the appeal, the Court of Appeal held that while it was unfortunate that the impugned juror’s voted been disclosed by another juror, the trial judge had conducted a careful and limited inquiry into the jury’s misconduct which did not give rise to a miscarriage of justice. Accordingly, the trial judge’s refusal to declare a mistrial was upheld.
[42] Taking in account these governing principles, I see no basis for declaring a mistrial in the circumstances of this case. There is no doubt that the transportation difficulties inconvenienced the jury and even resulted in one of the jurors vomiting on their way back to the courthouse. However, there is no evidence to suggest that these transportation difficulties affected the jury’s deliberations, apart from shortening the period of time for deliberations on the second day. On its face, the purpose of the Jury Note was simply to bring these matters to the court’s attention, as reflected in the jury’s statements to the effect that, “[w]e have been told to convey to you that our transportation was subpar …Thus, we wanted to inform you about the circumstances of our shortened deliberations today.” The jury does not suggest that their deliberations were rushed or concluded prematurely simply in order to avoid travelling back to the hotel that evening. Nor is there any suggestion that the juror who had vomited on their way back to the courthouse had thereafter been impaired in their ability to participate in deliberations throughout that day. Nor, moreover, had the jury advised supervising court staff at any time during the day that they were experiencing any residual difficulties resulting from the “subpar transportation” that morning. In short, Mr. Patel’s suggestions that the jury deliberations had been compromised due to these transportation difficulties is based on speculation rather than evidence.
[43] The jury’s request to be granted a “rest day” the following day if they proceeded to reach a verdict that evening does not affect this conclusion. It is difficult to know precisely what to make of this request. It may simply reflect the fact that the jury had for all intents and purposes completed its deliberations and was ready to deliver a verdict, and simply wanted to know whether doing so immediately as opposed to waiting until the next morning would affect their regular work obligation the following day. Regardless, there is no evidence that the jury reached their verdicts in order to receive a rest day, since they went ahead and delivered their verdicts without knowing one way or the other whether their request for a rest day would be granted.
[44] As noted above, jurors swear an oath to fairly determine the case and are presumed to have reached their verdicts on the basis of the evidence and the law as presented to them in the courtroom. Mr. Patel has not provided any evidence that would rebut or displace this presumption, and his claims in that regard are based on speculation as to what was in the minds of the jury. Accordingly, even if I had jurisdiction to declare a mistrial, I would decline to do so in the circumstances of this case.
Disposition
[45] Mr. Patel’s application for a mistrial is dismissed.
P. J. Monahan J.
Released: September 27, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
UBAIDULLAH PATEL
Ruling on Mistrial Application
P. J. Monahan J.
Released: September 27, 2022
[^1]: See Criminal Code of Canada, R.S.C. 1985, c. C-46, s. 647 (2).
[^2]: One of the jurors had been discharged because of a work commitment and there were 11 jurors remaining when the jury began its deliberations on June 15, 2022.
[^3]: That is, as set out in paragraphs 8 to 9 above.
[^4]: See R. v. Zvolensky, 2017 ONCA 273, [2017] O.J. No. 1655 (C.A.), at para. 258, per Watt J.A. (concurring) (“Zvolensky”). Note, however, as is explained below, that the court does have discretion to grant credit for an additional day of jury service, which was in fact approved by me after the jury was discharged.
[^5]: 2002 SCC 55, [2002] 2 S.C.R. 857 ("Burke").
[^6]: 1986 CanLII 8 (SCC), [1986] 2 S.C.R. 684 ("Head").
[^7]: Burke, at para. 44.
[^8]: Burke, at para. 60.
[^9]: 2004 CanLII 33343 (ON CA), [2004] O.J. No. 4157 (C.A.), leave to appeal dismissed, [2005] S.C.C.A. No. 12 (“Henderson”).
[^10]: Henderson, at para. 37.
[^11]: 2008 ONCA 726, [2008] O.J. No. 4194 (C.A.).
[^12]: 2015 ONCA 677, 127 O.R. (3d) 545 (C.A.) (“Bains”).
[^13]: Bains, at para. 72.
[^14]: Mr. Patel cited R. v. Chizanga and Meredith, 2020 ONSC 2749, a recent decision of D.E. Harris J. of this court, for the proposition that a trial judge has jurisdiction to declare a mistrial post-verdict on the basis of an alleged legal error or miscarriage of justice occurring at trial. In fact, I read this decision as stating the opposite, since Harris J. declined to declare a mistrial, holding that any error of law or miscarriage of justice must be addressed on appeal.
[^15]: R. v. Toutissani, 2007 ONCA 773, [2007] O.J. No. 4363, at para. 9; R. v. McDonald, 2022 ONCA 574, 2022 CarswellOnt 11113, at para. 64 ("McDonald").
[^16]: McDonald, at para. 64, citing Burke, at para. 74.
[^17]: Zvolensky, at para. 230.
[^18]: Zvolensky, at para. 257.
[^19]: Bains, at para. 61.
[^20]: Bains, at para. 91.
[^21]: 2022 ONCA 586, 2002 CarswellOnt 11827.