Court of Appeal Identifies a Second Step in the Functus Officio Doctrine (Fairness & Apprehension of Taint)


In the recent R. v. Krouglov, 2017 ONCA 197, the Court of Appeal for Ontario clearly identified that in determining the applicability of the functus officio doctrine, the fairness of the procedure followed to correct a perceived mistake maybe an important consideration.  In doctrinal terms, the Court has recognized/affirmed a second step in the legal test of whether a court has the authority to correct an error after it has imposed sentence or discharged an accused following an acquittal.

The functus officio doctrine does not prevent the correction of errors where no reconsideration of a judicial decision is required and where the court’s intention is manifest, such that the correction is consistent with that intention.

Step One

Does the potential correction of an error involve reconsideration of the trial judge’s decision?

In R. v. Malicia, the Court of Appeal for Ontario held that the test set out by the Supreme Court of Canada in R. v. Burke, [2002] 2 S.C.R. 857 (S.C.C.), in which Major J. articulated a test for functus officio in the context of jury trials, should apply equally to judge alone criminal trials.

R. v. Malicia, 2006 CanLII 31804 (ON CA), at para. 26.

In so doing, the Court of Appeal for Ontario expressly adopted the first step of Major J.’s test from Burke; namely, does the potential correction of an error involve reconsideration of the trial judge’s decision? If it does involve reconsideration, then the doctrine of functus officio prevents the correction after the indictment is signed.  If it does not, then the correction can be made.



Step Two

Reasonable apprehension of taint and fairness to the appellant

In the recent R. v. Krouglov, the Court of Appeal (drawing from the concurring opinions of Justices Simmons and Cronk in Malicia) accepted that in Burke, Major J. had identified a second part of the analysis – one that can be summarized as a consideration of whether the jurisdiction to correct an error that does not require judicial reconsideration should be exercised, having regard for reasonable apprehension of taint/bias and fairness to the accused.

R. v. Krouglov, 2017 ONCA 197, at para. 47.

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