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1. General
2. Functus Officio

1. General

Most of the judges dealt within this guide are judges of the Superior Court of Ontario, and those 'above' them in the Ontario Court of Appeal. These judges are appointed under s.96 of the Constitution Act. There are numerous other types of judges appointed under Ontario's Courts of Justice Act (family, criminal and small claims court), and under the Federal Court Act and Supreme Court of Canada Act.

2. Functus Officio

. R v Krouglov

In R v Krouglov (Ont CA, 2017) the Court of Appeal usefully reviews the doctrine of functus officio in the context of a consideration over error correction in a ruling:
[35] Both parties agree that the applicable principles are found in this court’s decision in R. v. Malicia (2006), 2006 CanLII 31804 (ON CA), 2006 CarswellOnt 5539, 216 O.A.C. 252, 36 M.V.R. (5th) 1, 270 D.L.R. (4th) 280, 211 C.C.C. (3d) 449, 82 O.R. (3d) 772 (Ont. C.A.). 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: Malicia, at paras. 26-31.

[36] In Malicia, MacPherson J.A. held that the test set out by Major J. in R. v. Burke, 2002 SCC 55 (CanLII), [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: Malicia, at paras. 25-26. In doing so, MacPherson J.A. 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.

[37] MacPherson J.A. noted, at para. 27, the underlying policy rationale for allowing correction of errors that do not involve reconsideration of a judicial decision:
[T]he policy rationale enunciated in Burke for permitting correction of errors in jury cases – namely, the administration of justice would be brought into disrepute if a court were barred from correcting a recorded verdict where there is no perceptible injustice to the accused and no reasonable apprehension of bias – is precisely the same in judge alone criminal trials. A jury can make an error in recording a verdict; so can a judge. The law for permitting (and refusing to permit) corrections of errors should be, as much as possible, the same in both scenarios.
[38] In concurring reasons, Simmons J.A. agreed with the result in Malicia, and generally agreed with MacPherson J.A.’s analysis, but noted that Major J. in Burke included a second step in his test – a determination of whether the remedial jurisdiction to correct errors should be exercised: see Burke at para. 56. Simmons J.A. noted, at para. 46, that Major J. identified the driving consideration informing the test for exercising the remedial jurisdiction to be “the fear of a tainted or biased jury, or the appearance of unfairness”.

[39] While Simmons J.A. recognized, at para. 48, that in the context of judge alone trials, there is no realistic basis for concern that a judge will become influenced by outside contacts, she concluded that there may be other factors that could raise a reasonable apprehension of taint in a judge alone context. She cited, at para. 50, delay between the time of rendering the decision and the time of identifying an error as the type of circumstance that might be considered in the future. She further pointed to the fact that judges typically give reasons for their decisions as another factor that could influence whether the remedial jurisdiction to correct a verdict in criminal judge alone trial should be exercised.

[40] Similarly, in her concurring reasons, Cronk J.A. agreed with MacPherson J.A.’s general analysis that the test for permitting and refusing to permit error corrections should be the same in criminal judge alone and judge and jury trials. However, she also agreed with Simmons J.A. that different considerations may arise under the judge alone scenario, and that exercise of the curative authority for error correction will be precluded where the proposed correction, in reality, is “tantamount to a reconsideration of the verdict (or sentence)”, and “[…] where issues of unfairness or injustice to the accused or reasonable apprehension of bias arise.”: Malicia, at para. 61 [Emphasis added]. She stated, at para. 62, that factors such as the passage of time, or other factors might “so compromise the appearance or reality of trial fairness as to prevent correction of the error in the interests of justice.”


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