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Criminal - Functus Officio. R. v. Nettleton
In R. v. Nettleton (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal appeal, here from guilty pleas (which were struck) where there was confusion as to the arraignments and charges made.
Here the court usefully considers functus officio in this criminal context:[49] Duty counsel argues that when the parties reconvened some two-and-a-half months later, the trial judge was functus officio and therefore did not have the authority to make the orders he did.
[50] Duty counsel relies on this court’s decision in R. v. Thompson, 2010 ONCA 463, 256 C.C.C. (3d) 51, at para. 20, which followed its earlier decision in R. v. Malicia (2006), 2006 CanLII 31804 (ON CA), 211 C.C.C. (3d) 449 (Ont. C.A.):In [Malicia], this court affirmed that “[i]n judge alone cases, the point of no return is after the trial judge endorses the indictment”. Once the indictment is endorsed, the trial judge is functus officio, and normally may not alter his or her order. Malicia allows only that in limited circumstances a judge can correct errors made in recording his or her manifest intent, or otherwise confirm or clarify the substance of the decision made, so long as it does not involve a reconsideration of the decision. . R. v. Nnane [jury context]
In R. v. Nnane (Ont CA, 2024) the Ontario Court of Appeal dismissed a first degree murder appeal.
Here the court considered the doctrine of functus officio, here in a jury trial context:[82] The appellant sought a mistrial and, in the alternative, asked the court to conduct a juror inquiry to create a record for consideration on appeal. Relying on R. v. Henderson (2004), 2004 CanLII 33343 (ON CA), 191 O.A.C. 201 (C.A.), the trial judge concluded that she was functus after the jury rendered its verdict and that neither of two narrow exceptions applied: there was no indication that the verdict recorded was not the one reached by the jury, nor did the appellant raise the defence of entrapment. The trial judge determined, further, that it would not be appropriate to conduct an inquiry for the purpose of establishing an appeal record, as nothing in the letter amounted to or suggested exposure to extrinsic information or outside sources.
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