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Judges - Cross-Colleague Consultation. R. v. Khill
In R. v. Khill (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal conviction appeal (but allows a sentencing reduction), here from a manslaughter conviction - this in the defendant's second trial, where the first went up to the SCC.
Here, in quite unusual circumstances, the court considered whether the trial judge was functus officio with respect to a post-trial letter (regarding a sentencing error) sent by him to the Associate Chief Justice of Ontario - and the propriety of cross-colleague judicial consultation, which may have played a role in that letter:(2) The Trial Judge’s Letter
[129] On August 12, 2024, 14 months after the imposition of sentence and just over a couple of months before the appeal was scheduled to be heard, the trial judge sent a letter to the Associate Chief Justice of Ontario.[4] In this letter, the trial judge wrote that, although he imposed a sentence of eight years’ imprisonment, he meant to impose a six-year sentence. The appellant applies to admit this letter as fresh evidence. The respondent consents to its admission. We admit the letter as fresh evidence.
[130] The trial judge explained that, throughout his analysis and preparation for the delivery of his reasons, he determined that the appropriate range of sentence was between six and eight years’ imprisonment. As noted above, this range was not reflected in his Reasons for Sentence. He eventually settled on a sentence at the lower end of this range. The trial judge said that he prepared three sets of reasons that were identical, except for the number of years of incarceration (i.e., six, seven, and eight years, respectively). On the day of sentencing, he took the “wrong set of reasons” with him into court. The trial judge said: “In a momentary lapse of judgment, I read out the disposition of eight years. In doing so, I misspoke. That was my first error.” The trial judge then addressed his reaction to this mistake:I confess that I was immediately nonplussed. While not an excuse, my ensuing inaction was perhaps due to a variety of factors, including having just read out a lengthy 53-page ruling before a crowded and divergent audience, with substantial media presence, for this high profile case. Indeed I did not react as I should have in the circumstances.
Thus, the second error was my failure to stand the matter down, or make an immediate indication admitting a mistake and/or properly correct myself and the record at the relevant time. [131] The trial judge explained that, “[i]n the immediate wake of that sentencing,” he consulted with “several experienced, judicial colleagues specializing in criminal law to discuss what steps [he] could take to rectify this error.” The trial judge wrote that he considered having the parties return to court to address the issue; however, he was “dissuaded” from doing so because he considered himself to be functus officio, and the eight-year sentence was within the appropriate range.
(3) The Trial Judge Was Not Functus Officio
[132] We agree with the parties that, based on the scenario described by the trial judge in his letter, he was not functus officio when he realized, in the moment, that he imposed the wrong sentence. Nor was he functus officio in the aftermath of this sentencing when he consulted others about what to do to fix his mistake.
[133] The parties do not dispute the scope of the functus officio doctrine and its application to this case. The doctrine permits the correction of judicial errors where: (1) 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; and (2) the correction does not give rise to a reasonable apprehension of bias or taint and/or cause unfairness to the offender: R. v. Krouglov, 2017 ONCA 197, 346 C.C.C. (3d) 148, at paras. 35-36; R. v. Malicia (2006), 2006 CanLII 31804 (ON CA), 82 O.R. (3d) 772 (C.A.), at paras. 24-27; and R. v. Hasiu, 2018 ONCA 24, 358 C.C.C. (3d) 503, at paras. 35-38. As Epstein J.A. said in Krouglov, at para. 54, the passage of time between the original decision and the purported correction may give rise to a reasonable apprehension of bias or taint – it depends on the circumstances.
[134] The appellant and the respondent accept that the trial judge intended to impose a sentence of six years’ imprisonment, and that his letter does not suggest that he had changed his mind about the appropriate sentence after the fact. In these circumstances, the trial judge would not have been functus officio, neither in the moment when he realized his mistake, nor “in the immediate wake of that sentencing” when he consulted with his colleagues. The parties take this position notwithstanding the trial judge’s delay, which they variously describe as “most unfortunate” and “extreme and concerning”.
[135] We agree with these characterizations of the delay in this case. We also agree with the parties’ submissions that the trial judge was not functus officio. He could have, and should have, corrected his mistake, either in the moment or shortly afterwards. The trial judge attributes his inaction to the advice he received from judicial colleagues. That he was “dissuaded” from taking further action at the time suggests that he considered his initial instincts were correct and, but for the advice of his colleagues, he would have acted differently.
[136] Consultation among colleagues is an important, necessary, and rewarding facet of judicial life. The advice or guidance of a trusted judicial colleague can be a lifeline for a judge who is grappling with a thorny legal issue, or for a judge who needs a sounding board while navigating difficult terrain on the path to achieving justice for the parties. There is nothing inappropriate about this type of consultation. But for a trial judge, it can be no more than that – it is a consultation, not a collaboration. At the end of the day, it is the presiding judge who decides the case, and it is that judge who must “own” their decision.
[137] It was the responsibility of the trial judge, and his alone, to determine whether he was functus officio, and whether any further action was required. It was not the responsibility of his judicial colleagues. Unlike the trial judge, his colleagues have no voice in these proceedings.
[138] Whether or not the trial judge believed he was functus officio, doing nothing was not a reasonable option in the circumstances, especially when he imposed a penitentiary sentence that was 1/3 (i.e., two years) longer than the one he had intended to impose. He should have promptly requested that the parties attend before him, in open court, to address the matter.
[139] Had he done so, counsel would have been able to provide assistance to the trial judge on whether he was in fact functus officio. They could have brought the authorities discussed above to the trial judge’s attention. The submissions of counsel may have caused the trial judge to see things in a different light and correct his mistake at that time. But even if the trial judge was not convinced that he could make the correction, addressing the situation with counsel in open court would have resulted in the creation of a proper record for this court to review; instead, we are left to resolve the issue based on a letter from the trial judge written over a year after the sentence was imposed.
[140] Fundamentally, there is considerable intrinsic value in airing such matters in open court. It permits the parties and the public to know what has happened, and to witness first-hand the steps being taken to rectify a judicial error. This type of openness and accountability enhances the integrity of the administration of justice; inaction does not.
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