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...