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Criminal - Application - Relationship with Related Prosecution. R. v. Bernier
In R. v. Bernier (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, this brought against an order "dismissing an application for certiorari" relating to charges under the Taxation Act (Ontario).
This case again raises [after R v Toole (Ont CA, 2026), below] the interesting issue of the effect of a conviction (though here by guilty plea and respecting a POA charge), when an earlier application (here for certiorari, which in the quasi-criminal context is an accepted method of challenging the court's jurisdiction on an interlocutory basis) was still-afoot on appeal. Here (in Bernier) the court held that:[6] The appeal before this court is presently moot. Any decision we might make with respect to the certiorari decision would have no impact on the appellant’s guilty pleas that resulted in his convictions and sentence. Accordingly, we dismiss the appeal without adjudicating on the merits. If the appellant is successful with his late-breaking appeal in the Superior Court of Justice, it will be open to him to bring an application to re-open this appeal. Contrast this with Toole where the court held that the judge hearing a Charter s.11b [trial delay] application was not functus even after a finding of guilt (though before sentencing).
The upshot is that criminal applications, though they may be brought tactically to achieve the same preliminary dismissal effect as other dismissal motions, are separate from and remain alive after the prosecution proceeding.
Here's the fuller Bernier quote:[1] The appellant was charged with offences under the Taxation Act, 2007, S.O. 2007, c. 11, Sched. A.
[2] In the course of those proceedings, the appellant brought a certiorari application, which was dismissed on March 21, 2022. The appellant filed a Notice of Appeal from that decision on May 25, 2022. The appeal took over three and a half years to be listed for hearing.
[3] However, on September 28, 2022, the appellant entered pleas of guilty to the offences. He was sentenced on October 6, 2022.
[4] The Crown takes the position that, by virtue of his guilty plea, the appellant has waived his right to challenge any interlocutory decisions and, as such, he is no longer entitled to appeal the certiorari ruling: see R. v. Faulkner, 2018 ONCA 174, 407 C.R.R. (2d) 59, at para. 98; R. v. Lopez-Restrepo, 2018 ONCA 887, 369 C.C.C. (3d) 56, at paras. 18-24.
[5] At the hearing of the appeal, the panel was advised that the appellant has sought to set aside his convictions under the Taxation Act. An appeal from those convictions lies to the Superior Court of Justice. At the end of the hearing, we directed both parties to advise the panel of the status of the proceedings in the Superior Court of Justice. We have since been advised that the appellant filed a Notice of Appeal, signed on January 5, 2026, in the Superior Court of Justice in Ottawa. The appeal is to be spoken-to on March 6, 2026.
[6] The appeal before this court is presently moot. Any decision we might make with respect to the certiorari decision would have no impact on the appellant’s guilty pleas that resulted in his convictions and sentence. Accordingly, we dismiss the appeal without adjudicating on the merits. If the appellant is successful with his late-breaking appeal in the Superior Court of Justice, it will be open to him to bring an application to re-open this appeal.
[7] The appeal is dismissed. . R. v. Toole
In R. v. Toole (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal from a Charter s.11b stay of proceedings.
Here the court considered whether the trial judge was functus officio wrt trial delay application after a trial and a finding of guilt, but before sentencing:[3] Prior to the hearing of the appeal, the parties were asked for submissions on the question of whether the application judge had jurisdiction to stay the proceedings following a jury verdict of guilt, or whether the application judge was, at that point, functus officio.
[4] As I will explain, I am of the view that the application judge was not functus officio and committed no error in entering the stay. ....
....
1. The application judge was not functus officio
[30] The first issue requires the court to consider whether two of its prior decisions are binding precedents in the context of s. 11(b) applications: R. v. Gostick (1991), 1991 CanLII 11749 (ON CA), 62 C.C.C. (3d) 276 (Ont. C.A.); R. v. Henderson (2004), 2004 CanLII 33343 (ON CA), 189 C.C.C. (3d) 447 (Ont. C.A.), leave to appeal refused, [2005] S.C.C.A. No. 12. After setting out the parties’ joint position and summarizing Gostick and Henderson, I explain why neither decision holds that a trial judge is functus officio following the jury’s verdict for purposes of a s. 11(b) application. Prior to sentencing, trial judges are not functus officio to hear and decide such applications.
Position of the parties
[31] In response to this court’s request for submissions, both the Crown and the respondent took the position that the application judge was not functus officio. They argued that Gostick and Henderson are distinguishable. Gostick and Henderson held that the trial judge was functus officio following the jury’s verdict, but these decisions involved stay applications outside the s. 11(b) context. In these cases, had the applications been heard before the jury’s verdict, the court would have been able to consider remedies short of a stay.
[32] In the parties’ submission, s. 11(b) applications are different from the situations addressed in Gostick and Henderson because the only remedy available for a breach of s. 11(b) is a stay.
[33] In support of their position, the parties referenced the Quebec Court of Appeal’s decision in Drouin c. R., 2020 QCCA 1378, leave to appeal refused, [2020] S.C.C.A. No. 465 (Lafortune), and [2020] S.C.C.A. No. 468 (Amato). In that case, the court held that infringement of s. 11(b) is a matter entirely independent of the jury’s verdict. The court therefore found that the trial judge was not functus officio in respect of a s. 11(b) application filed after the jury’s guilty verdict, but prior to sentencing.
Gostick
[34] Gostick was an appeal from a stay of proceedings issued after the jury’s verdict of guilt. The defence had argued that courtroom conditions amounted to an abuse of process. Letters from the jury attested that unbearable heat impaired its ability to judge the case. The jury also said that it was at times difficult to hear witnesses because of noise from the fans. The trial judge determined that despite the jury having rendered its verdict, a stay of proceedings was warranted.
[35] This court allowed the appeal. It distinguished the situation before it from the procedure adopted where entrapment is alleged. In entrapment cases, the decision as to whether a stay ought to be granted is made after the jury’s finding of guilt. This procedure is meant to protect the right of the accused to an acquittal if the Crown fails to prove the essential elements of the offence before the issue of entrapment is considered: R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903, at p. 972. The court in Gostick explained, at p. 284, that the abuse of process application at issue was different:There is no reason for an issue of this nature to await the jury’s determination of the accused’s guilt or innocence. If it is alleged that conditions in the courtroom are so oppressive as to prevent the jury from properly performing its function and thereby denying the respondent a fair trial … the jury ought not to be charged and called on to assess the respondent’s guilt or innocence. [36] It followed, therefore, that the trial judge “was not empowered … to reopen the trial proceedings and, by staying the charges, effectively quash the jury’s verdict”: at p. 284. After the verdict, the abuse of process claim could only be properly raised on appeal.
Henderson
[37] Henderson was a Crown appeal from a mistrial order. The defence had applied for a stay after the jury’s verdict because the Crown had failed to preserve and disclose records that had been requested before the trial commenced. The trial judge concluded he had jurisdiction to consider the application, either based on s. 7 of the Charter or the doctrine of abuse of process. He determined that the appropriate remedy was a mistrial.
[38] This court allowed the appeal holding that, after a jury’s verdict, trial judges have an extremely limited jurisdiction to alter the verdict, order a stay, or declare a mistrial. It cited two limited exceptions: (i) cases in which the jury does not render the verdict it intended: R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, and (ii) entrapment: Mack.
[39] The court, relying on Burke and Gostick, held that following the recording of a jury’s verdict of guilt, the trial judge did not have jurisdiction to declare a mistrial “for pre-trial non-disclosure by the Crown which was known to the defence”: at para. 35. The court emphasized that the Crown’s failure to disclose was a live issue before the start of the trial. The court therefore determined, at para. 46, that “counsel cannot save such motions to be brought only if the accused is convicted. Once the jury has delivered its verdict, matters that involve the conduct of the trial and that could have affected the jury’s verdict can only be raised on appeal”.
Analysis
[40] I agree with the parties’ submission. The jury’s verdict of guilty does not render a trial judge functus officio for purposes of a s. 11(b) application. I reach this conclusion for two reasons.
[41] First, it is settled law that the right “to be tried within a reasonable time” extends beyond the determination of guilt or innocence “up to and including the date upon which sentence is imposed”: R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364, at para. 3. It follows that an accused person can claim a breach of s. 11(b) at any point before sentencing. The jury’s verdict of guilt does not terminate the trial judge’s jurisdiction to hear such an application. It makes no difference that the s. 11(b) application in this case was filed on the eve of the trial and not after the verdict. Either way, it is only at the end of sentencing that the trial judge becomes functus officio for purposes of a s. 11(b) application: R. v. Kazman, 2020 ONCA 22, 452 C.R.R. (2d) 185, at para. 91, leave to appeal refused, [2020] S.C.C.A. No. 58. This conclusion aligns with the temporal scope of s. 11(b).
[42] Second, properly interpreted, the doctrine of functus officio has no application where, as here, the application and remedy sought are unrelated to the jury’s verdict and deliberations. As explained in Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, [2021] 2 S.C.R. 785, at para. 33, the doctrine of functus officio “indicates that a final decision of a court that is susceptible of appeal cannot, as a general rule, be reconsidered by the court that rendered that decision” (emphasis added). As a result, in determining whether the trial judge was functus officio in the present case, the question to ask is whether a s. 11(b) application seeks to “reconsider” the jury’s verdict of guilt. Clearly, it does not.
[43] Seeking a stay as a remedy for a s. 11(b) breach is unrelated to the merits of the prosecution. It neither seeks to reconsider nor alter a jury’s finding of guilt. A s. 11(b) application, whatever its timing, could never lead to a remedy capable of affecting the outcome of a jury’s deliberations. As a result, with respect to such applications, the trial judge will become functus officio only at the end of the trial which, in this context, is the end of sentencing: K.G.K., at para. 27, citing R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45, at para. 19.
[44] This court’s rulings in Gostick and Henderson can thus be distinguished from the present context. In both cases, the post-verdict stay applications involved matters that could have had an impact on the jury’s decision. Unlike s. 11(b) applications, the courtroom conditions in Gostick and the disclosure issue in Henderson pertained to the conduct of the trial. On these facts, our court properly concluded that the trial judges were functus officio and lacked jurisdiction to cast a cloud over the verdict of guilt by remedying a trial fairness issue after the fact. The post-verdict applications sought, in effect, to “reconsider” the jury’s final decision. Such reconsideration would violate the doctrine of functus officio as defined in Canadian Broadcasting.
[45] My conclusion that Gostick and Henderson are distinguishable is also consistent with the view expressed by the Quebec Court of Appeal in Drouin. There, the court held that the trial judge erred in declining to rule on a s. 11(b) application brought after the jury’s verdict. Citing Henderson, among other authorities, the trial judge had found she was functus officio. The Quebec Court of Appeal disagreed and, for reasons similar to those set out herein, distinguished Henderson. As that court explained, the jury’s verdict does not exhaust the trial judge’s jurisdiction in respect of “une question totalement indépendante du verdict prononcé par le jury” [unofficial translation: “a matter entirely independent of the verdict delivered by the jury”]: Drouin, at para. 318.
[46] However, I should not be taken as condoning what occurred in this case. Once trial dates are set, any s. 11(b) application an accused person may wish to bring should be brought and decided on a timely basis. In Superior Court proceedings, subject to the trial judge’s discretion, such applications must be scheduled at the latest 60 days before the first day of trial, as required by Part VI of the Consolidated Provincial Practice Direction Regarding Criminal Proceedings.[2] In this case, compliance with the practice direction would likely have resulted in the application being decided well before the scheduled trial dates, thereby obviating the need for a trial.
[47] Instead, an unnecessary six-day trial was held because the application was filed late, on the eve of the trial, and the trial judge decided that she would nonetheless hear it, but only after the trial was completed. In my view, this outcome is contrary to the efficiencies required by Jordan: see e.g., at paras. 40-43, 45, 116-117. The result was a complainant having to testify and undergo cross-examination unnecessarily, in this case for a second time, and a jury being required to hear and come to a difficult decision of guilt only to see the case stayed by the later ruling. Court time as well as the witnesses’ and jury’s time were, in effect, wasted. Such an outcome does not put the justice system in the best light. It was avoidable and should have been avoided.
[48] In sum, this court’s rulings in Gostick and Henderson have no bearing on the post-verdict jurisdiction of trial judges to hear and decide s. 11(b) applications. Having concluded that the application judge in this case was not functus officio, I now turn to the ground of appeal raised by the Crown.
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