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Judges - Functus Officio. 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. . Canada v. Greenwood
In Canada v. Greenwood (Fed CA, 2023) the Federal Court of Appeal briefly considers 'functus officio':(2) Functus officio
[44] Simply put, the functus officio doctrine provides that once a matter is finally ruled upon, the judge has discharged its office and cannot re-open the matter. Indeed, to do so would impede on “orderly appellate procedure” (Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, 461 D.L.R. (4th) 635 at para. 34). . Canadian Broadcasting Corp. v. Manitoba
In Canadian Broadcasting Corp. v. Manitoba (SCC, 2021) the Supreme Court of Canada held that functus officio did not preclude the court from deciding matters of court openness (here the lifting of a publication ban):[1] The principal issue in these appeals concerns a court’s jurisdiction to render, vary or vacate orders — sealing orders, publication bans and the like — that limit the open court principle. The question is whether a court retains jurisdiction over these ancillary matters after it has decided the merits of the case and has entered its formal judgment. Does the doctrine of functus officio — the notion that once a court has performed its function, it has exhausted its authority — preclude that court from revisiting a publication ban that it had ordered or a sealing order put in place in the course of criminal proceedings?
....
[32] In concluding that it lacked jurisdiction to vary or set aside the relevant orders concerning court openness, the Court of Appeal relied, in part, on the doctrine of functus officio. The term functus officio — often rendered as “having performed his or her office” — has traditionally been understood to mean that once a judge decided a matter, they had discharged their office and did not have the ability to return to and correct their decision (A. S. P. Wong, “Doctrine of Functus Officio: The Changing Face of Finality’s Old Guard” (2020), 98 Can. Bar Rev. 543, at pp. 546‑47; see A. Mayrand, Dictionnaire de maximes et locutions latines utilisées en droit (4th ed. 2007), at p. 193, who also uses the term functa officio).
[33] In its contemporary guise, 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 (see Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, at p. 860; Reekie v. Messervey, 1990 CanLII 158 (SCC), [1990] 1 S.C.R. 219, at pp. 222‑23; Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at paras. 77‑79). A court loses jurisdiction, and is thus said to be functus officio, once the formal judgment has been entered (R. v. Adams, 1995 CanLII 56 (SCC), [1995] 4 S.C.R. 707, at para. 29; R. v. Smithen‑Davis, 2020 ONCA 759, 68 C.R. (7th) 75, at paras. 33‑34). After this point, the court is understood only to have the power to amend the judgment in very limited circumstances, such as where there is a statutory basis to do so, where necessary to correct an error in expressing its manifest intention, or where the matter has not been heard on its merits (Chandler, at p. 861, citing Paper Machinery Ltd. v. J.O. Ross Engineering Corp., 1934 CanLII 1 (SCC), [1934] S.C.R. 186; R. v. H. (E.) (1997), 1997 CanLII 418 (ON CA), 33 O.R. (3d) 202 (C.A.), at pp. 214-15, citing The Queen v. Jacobs, 1970 CanLII 143 (SCC), [1971] S.C.R. 92; see also R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, at para. 54).
[34] This rule serves goals of finality and, by stabilizing judgments subject to review, of an orderly appellate procedure (Chandler, at p. 861; H. (E.), at p. 214). As Doherty J.A. wrote in Tsaoussis (Litigation Guardian of) v. Baetz (1998), 1998 CanLII 5454 (ON CA), 41 O.R. (3d) 257 (C.A.), for the parties to litigation, finality meets both an economic and psychological need as well as serving as a practical necessity for the system of justice as a whole (pp. 264‑65). More specifically, if lower courts could continuously reconsider their own decisions, litigants would be denied a reliable basis from which to launch an appeal to a higher court (Doucet‑Boudreau, at para. 79; see also Ayangma v. French School Board, 2011 PECA 3, 306 Nfld. & P.E.I.R. 103, at paras. 11‑12). The appeal record would be written on “shifting sand”, ultimately inhibiting effective review (Wong, at p. 548).
[35] That said, functus officio is only one of several legal principles designed to promote the goal of finality. Indeed, given it is inherently tied to the entering of the formal judgment and its exceptions are relatively restrictive, this Court has described the doctrine of functus officio as narrow in scope (Reekie, at pp. 222‑23; see also Wong, at pp. 555‑56). So, while it is an important norm recognized in our jurisprudence to serve this necessary purpose, no one rule has a monopoly on finality.
[36] It is useful to distinguish between jurisdiction over the merits lost by operation of the doctrine of functus officio and jurisdiction that exists to supervise the court record. As I will endeavour to explain, even when a court has lost jurisdiction over the merits of a matter as a result of having entered its formal judgment, it retains jurisdiction to control its court record with respect to proceedings generally understood to be an ancillary but independent matter (see, e.g., GEA Refrigeration Canada Inc. v. Chang, 2020 BCCA 361, 43 B.C.L.R. (6th) 330, at paras. 185‑86).
[37] Supervisory authority over the court record has long been recognized as a feature of the jurisdiction of all courts (Attorney General of Nova Scotia v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175, at p. 189; see also Canadian Broadcasting Corp. v. The Queen, 2011 SCC 3, [2011] 1 S.C.R. 65, at para. 12). As Goudge J.A. observed in CTV Television Inc. v. Ontario Superior Court of Justice (Toronto Region) (2002), 2002 CanLII 41398 (ON CA), 59 O.R. (3d) 18 (C.A.), “it is important to remember that the court’s jurisdiction over its own records is anchored in the vital public policy favouring public access to the workings of the courts” (para. 13). Specifically, courts must ensure compliance with the robust and constitutionally‑protected principle of court openness, while also remaining responsive to “competing important public interests” that may be put at risk by that openness (Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at paras. 26 and 28).
[38] The need to attend to the appropriate balance between these fundamental public interests does not disappear merely because the order on the merits is final and could have been appealed. Court records may be accessed even when proceedings have come to an end. Indeed, important decisions about the openness of the court record may need to be taken after the proceeding on the merits is over (see, e.g., R. v. Wagner, 2017 ONSC 6603; R. v. Henry, 2012 BCCA 374, 327 B.C.A.C. 190). If jurisdiction over court openness ceased when the formal order on the merits were entered, courts would lose control over their own record without good reason. Consider, for example, a case where no order limiting court openness is made before the formal judgment on the merits is entered, and a need to protect an important public interest is later discovered. In my respectful view, to conclude that this power is wholly lost once the formal order on the merits is entered would risk undermining the proper administration of justice in service of a reading of the doctrine of functus officio unconnected with its purpose.
[39] Recognizing that this jurisdiction survives the end of the underlying proceeding is not inconsistent with the purposes of finality and stability of judgments associated with the doctrine of functus officio. Relief granted pursuant to this power leaves the substance of the underlying proceeding and the reasons that support it undisturbed. While some interlocutory motions, such as motions relating to the admissibility of evidence, may have an impact on the final decision on the merits, deciding public access to the court record has no bearing on the underlying proceeding or its appeal. The doctrine of functus officio reflects the transfer of the decision‑making authority in respect of final judgments from the court of first instance to the appellate court (Chandler, at p. 860, citing In re St. Nazaire Co. (1879), 12 Ch. D. 88). It was never intended to restrict the ability of those lower courts to control their own files in respect of these decisions.
[40] To be clear, this does not mean that functus officio never applies to publication bans or sealing orders. The point is simply that a court is not precluded from deciding a motion concerning court openness merely because it is functus officio with respect to the merits of the underlying proceeding. The court continues to explain why functus officio is excepted in some circumstances [paras 41-57].
. R. v. Smithen-Davis
In R. v. Smithen-Davis (Ont CA, 2020) the Court of Appeal considers, in a criminal case, when an appeal may be re-opened. The consideration includes when the court is functus officio:The Governing Principles
[26] The parties occupy common ground that this Court has jurisdiction to permit re-opening of an appeal. They disagree about the scope of that jurisdiction; whether it extends to appeals heard and decided on the merits, and if it does, when that jurisdiction ends. Upon delivery of reasons for the decision? Or only when the formal order recording the disposition is entered?
[27] As a matter of first principle, appellate rights, procedures on appeal, and jurisdiction of appellate courts are wholly creatures of statute. From this principle, it follows that, if a power to re-open appeals exists, it must be anchored in some statutory authority, whether expressly stated or arising by necessary implication: Kourtessis v. M.N.R., 1993 CanLII 137 (SCC), [1993] 2 S.C.R. 53, at pp. 69-70; R. v. H. (E.F.); R. v. Rhingo (1997), 1997 CanLII 418 (ON CA), 115 C.C.C. (3d) 89 (Ont. C.A.), at pp. 95-96, leave to appeal refused, [1997] S.C.C.A. No. 256.
[28] The statutory rights of appeal for which the Criminal Code makes provision furnish no authority for re-opening appeals, whether heard and decided on the merits or otherwise. Nor does the rule-making authority of ss. 482 and 482.1. The power to make rules is limited to matters which are already within the jurisdiction of the court. Likewise, the referential incorporation by s. 683(3) of the powers exercisable in civil appeals is of no service on this issue. Nor is it advanced as such by either party in this case: H. (E.F.); Rhingo, at pp. 97-100.
[29] A potential source of authority to permit re-opening inhabits the inherent or ancillary jurisdiction of a court, including a statutory court like the court of appeal, to control its own process. This jurisdiction includes the authority to regulate the manner in which the parties exercise any statutory right of appeal: H. (E.F.); Rhingo, at pp. 100-101.
[30] The jurisdiction of an appellate court to re-open an appeal has been authoritatively recognized. The scope of that authority, however, less clearly marked out.
[31] In H. (E.F.); Rhingo, two unrelated parties sought to have their appeals re-opened. Each appeal had been argued on the merits and decided. Formal orders dismissing each appeal had been issued. This court concluded that the jurisdiction to re-open an appeal was limited to appeals that had not been heard on their merits. The jurisdiction did not extend to permit re-opening of appeals that had been heard and decided on the merits: H. (E.F.); Rhingo, at pp. 106-107.
[32] In a footnote, the court in H. (E.F.); Rhingo, appears to accept that a court is not functus officio when it delivers its reasons for decision, but only when the order recording the court’s disposition has been entered: H. (E.F.); Rhingo, at footnote 10, p. 106. In other words, for the purpose of determining whether a court is functus officio, there is a difference between giving reasons for decision and entering the formal order reflecting the disposition of the appeal: R. v. Hummel, 2003 YKCA 4, 175 CCC (3d) 1 at para. 11, leave to appeal refused, [2002] S.C.C.A. No. 434.
[33] In courts that have considered the issue, the prevailing view is that the defining event for the purposes of the application of the doctrine of functus officio is the entry of the order disposing of the appeal not the giving or release of reasons for the decision: Hummel, at para. 11; H. (E.F.); Rhingo, footnote 10 at p. 106; R. v. Chudley, 2015 BCCA 391, 125 W.C.B. (2d) 129 at para. 9; R. v. Villeda, 2010 ABCA 410, 44 Alta. L.R. (5th) 300 at para. 7; R. v. Moura (2003), 2003 CanLII 46485 (ON CA), 172 C.C.C. (3d) 340 (Ont. C.A.), at para. 20.
[34] Where an appellate court hears an appeal on its merits and issues reasons for its dismissal of that appeal, but does not issue a formal order recording that dismissal, the court is not functus officio. Thus, functus officio does not erect a bar to re-opening. The authorities support the existence of a discretion in those circumstances to permit re-opening: Hummel, at paras. 3, 14-15; Chudley, at para. 7; R. v. Chow, 2003 BCCA 248, 57 W.C.B. (2d) 297 at para. 10; R. v. Blaker (1983), 1983 CanLII 308 (BC CA), 6 C.C.C. (3d) 385 (B.C. C.A.), at p. 387. See also, R. v. Adams, 1995 CanLII 56 (SCC), [1995] 4 S.C.R. 707, at para. 29.
[35] The circumstances in which a court may exercise its authority to permit re-opening are closely circumscribed. The core question is whether the applicant has established a clear and compelling case that a miscarriage of justice will likely occur absent re-opening. This requires a searching evaluation of the importance of the issues the applicant seeks to raise on the re-opening: Chow, at para. 11; Villeda, at para. 11.
[36] Among the relevant factors a court might consider in deciding whether to permit re-opening of an appeal previously argued and decided on the merits are:
i. the principle of finality;
ii. the interests of justice including finality and the risk of a miscarriage of justice;
iii. whether the applicant has established a clear and compelling case to justify a re-opening;
iv. whether, in hearing and deciding the appeal on the merits, the court overlooked or misapprehended the evidence or an argument advanced by counsel; and
v. whether the error alleged concerns a significant aspect of the case.
See, Hummel, at para. 24; Chow, at paras. 9, 11.
[37] What emerges from the authorities is a rule prohibiting re-opening of an appeal when the court is functus officio. The court is functus officio when:
i. the appeal has been argued and decided on the merits;
ii. the court has issued reasons for its decision; and
iii. a formal order has been entered or issued recording the disposition of the appeal.
This principle is consistent with the Ontario cases of H. (E.F.); Rhingo; Moura; R. v. Dennis (2005), 2005 CanLII 44168 (ON CA), 208 O.A.C. 8 (C.A.); and R. v. Perkins, 2017 ONCA 152, 347 C.C.C. (3d) 58.
[38] What remains less clear in this province is whether, absent a formal order recording the disposition of an appeal, the court has jurisdiction to permit re-opening where the appeal has been argued and decided on the merits. . 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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