Her Majesty the Queen v. Malicia [Indexed as: R. v. Malicia]

82 O.R. (3d) 772

Court of Appeal for Ontario,

MacPherson, Simmons and Cronk JJ.A.

September 18, 2006

Criminal law -- Drinking and driving offences -- Sentencing -- Trial judge imposing four and one-half year's imprisonment consecutive for accused's tenth impaired driving conviction committed while on bail for ninth -- Accused driving at high speed on city street across three lanes of traffic and crashing into another vehicle -- Accused serving three and one-half year's imprisonment for ninth conviction when consecutive sentence of four and one-half years imposed for tenth conviction -- Sentence for tenth conviction not excessive nor violating principle of totality -- Accused's appeal dismissed.

Criminal law -- Sentencing -- Functus officio -- Judge in criminal trial having power to amend decision after signing of indictment where amendment does not amount to reconsideration and alteration of decision -- Trial judge imposing sentence without stating whether it was to be concurrent or consecutive to time served -- Trial judge having power to clarify reasons to specify that sentence was to be consecutive where record strongly supported trial judge's prompt declaration that it was always her intention to impose consecutive sentence.

Criminal law -- Trial -- Powers and duties of trial judge -- Functus officio -- Judge in criminal trial having power to amend reasons after signing of indictment where amendment does not amount to reconsideration and alteration of reasons.

The accused, who had nine prior convictions for impaired driving, was sentenced to four and a half years' imprisonment for his tenth conviction. At the time of the sentencing hearing, the accused was serving a three and a half year sentence for his ninth conviction. The sentencing judge did not explicitly state, or endorse on the indictment or the warrant of committal, whether the four and a half year sentence was to be concurrent or consecutive to time being served. When she was informed of the omission, after the warrant of committal and the indictment had been signed, she rejected defence counsel's submission that once she endorsed the indictment she became functus officio, so that the sentences were to be served concurrently by operation of law. Rather, she stated that it was always her intention that the sentence be consecutive to time served. An amended warrant of committal was issued indicating that the sentence was to be consecutive. The accused appealed.

Held, the appeal should be dismissed. [page773]

Per MacPherson J.A.: The principle, which has come to be accepted in criminal law jury trials, that correction of an error should be permitted after the jury is discharged if it does not require the jury to reconsider its verdict, should be imported into judge alone criminal trials, including the sentencing part of those trials. Correction or amendment will be permitted after the indictment has been signed, as long as it does not amount to reconsideration and alteration of the original decision. In this case, the amendment to indicate that the sentence was to be served consecutively did not amount to an impermissible reconsideration and alteration of the original sentence. The sentencing judge was in the best position to know what she intended, and her prompt declaration that it was always her intention that the sentence be consecutive should be accepted by an appellate court, absent something powerfully contrary in the record. The record in fact strongly supported the sentencing judge's statement. The sentencing judge did not err when she clarified that the sentence she had imposed on the accused was consecutive to time being served. Rather than reconsidering or altering the original sentence, it simply confirmed and clarified that sentence.

The consecutive sentence did not violate the totality principle. Moreover, a four and a half year sentence for a tenth impaired driving conviction is not excessive. The tenth offence was committed while the accused was on bail with respect to the previous offence, and was coupled with particularly terrible driving. At this point, the safety of other drivers and pedestrians was the paramount consideration, and considerations of rehabilitation or sentences that might crush the accused receded into almost complete insignificance.

Per Simmons J.A. (concurring): While MacPherson J.A.'s analysis of the functus officio issue is agreed with generally, different considerations may inform the proper formulation of an exception to the functus officio doctrine in the context of criminal judge alone trials than are applicable in the context of criminal jury trials.

Per Cronk J.A. (concurring): The reasons of MacPherson J.A. are agreed with generally, as is Simmons J.A.'s view that the law for permitting and refusing to permit error corrections should be the same in jury and judge alone trials, to the extent possible, but that the jurisdiction to correct errors in a criminal case is not unlimited, and different considerations governing its invocation may arise under both scenarios. In both situations, the 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). Importantly, it will also be precluded where issues of unfairness or injustice to the accused or reasonable apprehension of bias arise.

APPEAL by the accused from the sentence imposed by Epstein J. of the Superior Court of Justice, [2005] O.J. No. 1716, 26 M.V.R. (5th) 136 (S.C.J.).

Cases referred to Paper Machinery Ltd. v. J.O. Ross Engineering Corp., 1934 1 (SCC), [1934] S.C.R. 186, [1934] 2 D.L.R. 239; R. v. Burke, [2002] 2 S.C.R. 857, [2002] S.C.J. No. 56, 213 D.L.R. (4th) 234, 290 N.R. 71, 164 C.C.C. (3d) 385, 2002 SCC 55, 2 C.R. (6th) 1; R. v. Head, 1986 8 (SCC), [1986] 2 S.C.R. 684, [1986] S.C.J. No. 76, 53 Sask. R. 1, 35 D.L.R. (4th) 321, 70 N.R. 364, [1987] 1 W.W.R. 673, 30 C.C.C. (3d) 481, 55 C.R. (3d) 1; R. v. J.S.P., 1997 ABCA 30, [1997] A.J. No. 160, 196 A.R. 151 (C.A.); R. v. Roberts, [2004] B.C.J. No. 1843, 2004 BCCA 436, 202 B.C.A.C. 169, 63 W.C.B. (2d) 62, consd Other cases referred to Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, [2003] S.C.J. No. 63, 218 N.S.R. (2d) 311, 232 D.L.R. (4th) 577, 312 N.R. 1, 687 A.P.R. 311, 112 C.R.R. (2d) 202, 45 C.P.C. (5th) 1 (sub nom. Nova Scotia (Attorney General) v. Doucet-Boudreau) [page774]

Howard Leibovich, for respondent. Michael Dineen, for appellant.

MACPHERSON J.A.: --

A. Introduction

[1] The appellant, Alvaro Malicia, was convicted -- for the tenth time -- of impaired driving. At the time of the sentence hearing, he was serving a three and a half year sentence for his ninth conviction. The sentencing judge, Epstein J., imposed a sentence of four and a half years imprisonment for the tenth conviction.

[2] The sentencing judge did not say in her reasons, or endorse on the indictment or the warrant of committal, whether the four and a half year sentence was consecutive or concurrent to the three and a half year sentence. When she was informed that the Crown and defence counsel were concerned about this omission, the sentencing judge convened a hearing two days after rendering her initial reasons. She heard submissions from counsel, including defence counsel's submission that once she endorsed the indictment she became functus officio and, therefore, by operation of law the sentences were to be served concurrently.

[3] The sentencing judge did not accept defence counsel's functus officio argument. She stated: "It was always my intention that the sentence be consecutive to that served." She imposed a sentence of four and a half years consecutive to the three and a half years already being served by the appellant.

[4] The appellant appeals his sentence. The principal issue on the appeal is whether the sentencing judge erred in her understanding and application of the functus officio doctrine. A second issue, contingent on the resolution of the functus officio issue, relates to the totality of the appellant's sentences.

B. Facts

[5] On April 5, 2002, the appellant was on bail awaiting sentencing for his ninth impaired driving conviction. In the middle of the night, the appellant drove his van at high speed on Christie Avenue in Toronto. He crossed three lanes of traffic and crashed into another car. The car was demolished and its driver rendered unconscious. The appellant was pulled from his van, which was [page775] on fire. Luckily, neither the appellant nor the other driver was seriously injured.

[6] The appellant was charged with impaired driving, failing to provide a breath sample and dangerous driving. On July 16, 2004, the trial judge convicted the appellant of impaired driving and dangerous driving [See Note 1 below] and acquitted him on the count of failing to provide a breath sample.

[7] A comprehensive sentencing hearing, including testimony from the appellant and eight other witnesses, took place on January 10 and 14, 2005. On January 19, 2005, the sentencing judge imposed a sentence of four and a half years for impaired driving and six months concurrent for dangerous driving.

[8] Shortly after the sentencing hearing, counsel encountered each other in the courthouse hallway. They discussed the reasons for sentence, and in particular whether the sentencing judge had ordered that the sentence be served consecutive to the three and a half year sentence the appellant was already serving for his ninth conviction for impaired driving.

[9] Both counsel went to the court office and asked the registrar for clarification about the sentence. The registrar informed them that the warrant of committal had already been signed and sent to the prison, and that it said nothing about whether the sentence imposed was consecutive to the appellant's existing sentence. The indictment had also been signed by this point, without reference to whether the sentence was to be served consecutively. After consulting with the trial judge, the registrar issued an amended warrant of committal on January 20 indicating that the sentence was consecutive to the sentence the appellant was already serving. The appellant was ordered to appear before the trial judge on January 21 for clarification of the sentence.

[10] The appellant and both counsel appeared before the sentencing judge on January 21. Defence counsel submitted that the judge was functus officio and could not alter the sentence that she had imposed. Crown counsel argued that it was implicit in the sentencing judge's reasons that the sentence was to be consecutive and that the sentencing judge had jurisdiction to clarify her reasons for sentence.

[11] The sentencing judge then delivered these reasons:

I regret the fact that you had to come back simply because of an omission in the wording of my reasons for sentencing, Mr. Malicia. It was always my intention that the sentence be consecutive to that served. And, it was, I [page776] agree with Ms. Humphrey that it was implicit in my reasons, particularly the section having to do with the merger of the two sentences, and there were no submissions made with respect to the possibility that this would run concurrently, and it was never my intention it would be so. I don't consider myself functus. I consider the sentence to have been clear in its intention, although not as clear as it might have been in its wording. So the sentence of four-and-a-half years is consecutive to the sentence now being served.

C. Issues

[12] There are two issues on the appeal:

(1) Was the sentencing judge functus officio and, therefore, without jurisdiction to clarify that the sentence she had imposed on the appellant was consecutive to the sentence he was already serving?

(2) If the sentencing judge was not functus officio, then did the four and a half year sentence consecutive to a three and a half year sentence already being served violate the totality principle?

D. Analysis

(1) The functus officio issue

[13] In Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, [2003] S.C.J. No. 63, at paras. 77 and 79, Iacobucci and Arbour JJ. discussed the definition of, and rationale for, the doctrine of functus officio:

The Oxford Companion to Law (1980), at p. 508, provides the following definition:

Functus officio (having performed his function). Used of an agent who has performed his task and exhausted his authority and of an arbitrator or judge to whom further resort is incompetent, his function being exhausted. . . . . .

It is clear that the principle of functus officio exists to allow finality of judgments from courts which are subject to appeal (see also Reekie v. Messervey, 1990 158 (SCC), [1990] 1 S.C.R. 219, at pp. 222-23). This makes sense: if the court could continually hear applications to vary its decisions, it would assume the function of an appellate court and deny litigants a stable base from which to launch an appeal.

[14] Once the doctrine of functus officio is acknowledged, the crucial question becomes: "how can we know when a judge's function is exhausted?": see Doucet-Boudreau at para. 78. In civil cases, the longstanding answer has been when the judgment is drawn up and entered: see Paper Machinery Ltd. v. J.O. Ross Engineering Corp., 1934 1 (SCC), [1934] S.C.R. 186, [1934] 2 D.L.R. 239. [page777]

[15] However, the general line drawn in civil cases has not been an absolute one. There have been two exceptions, as explained by Rinfret J. in Paper Machinery at p. 188 S.C.R.:

The question really is therefore whether there is power in the court to amend a judgment which has been drawn up and entered. In such a case, the rule followed in England is, we think, -- and we see no reason why it should not be followed by this Court -- that there is no power to amend a judgment which has been drawn up and entered, except in two cases: (1) Where there has been a slip in drawing it up, or (2) Where there has been error in expressing the manifest intention of the court . . .

[16] Interestingly, in criminal cases the courts, including until recently the Supreme Court of Canada, have drawn a sharper or less flexible line. Thus, in jury cases, the judge becomes functus officio when the judge discharges the jury: see R. v. Head, 1986 8 (SCC), [1986] 2 S.C.R. 684, [1986] S.C.J. No. 76. In judge alone cases, the point of no return is after the trial judge endorses the indictment: see, for example, R. v. Roberts, [2004] B.C.J. No. 1843, 2004 BCCA 436 and R. v. J.S.P., 1997 ABCA 30, [1997] A.J. No. 160, 196 A.R. 151 (C.A.).

[17] The appellant especially relies on J.S.P. The facts of that case and the Alberta Court of Appeal's disposition are set out at paras. 3-4 of Hunt J.A.'s endorsement:

The sentencing judge imposed a sentence of 18 months secure custody without specifying whether that sentence was to be served concurrently to the other sentences that were being served, or whether it was to be served consecutively. The following day, she arranged to have counsel called back and clarified that she meant these sentences to be served consecutively to the sentences that were being served.

Under the circumstances here, it is our view that the sentencing judge became functus once she imposed the sentence on October 16. Accordingly, she did not have jurisdiction on October 17 to specify that the sentence was to be served consecutively. Thus, we grant leave to appeal and allow the appeal as to the first ground.

[18] I agree with the appellant's submission that the facts in this appeal are indistinguishable from those in J.S.P. Accordingly, the relevant question is whether J.S.P., and other similar cases such as Roberts, supra, should be followed. The answer to this question turns, in my view, on a careful consideration of the decision of the Supreme Court of Canada in R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, [2002] S.C.J. No. 56, 164 C.C.C. (3d) 385.

[19] Burke, I say immediately, is a jury case; this appeal relates to a judge alone trial. I will need to return to this important difference later.

[20] Burke, like Head before it, involves the doctrine of functus officio in the context of a jury verdict. In Head, the Supreme [page778] Court of Canada enunciated a bright line rule -- if the jury has been discharged, the trial judge is functus; the judge cannot inquire into or change the jury's verdict.

[21] In Burke, the court rejected the rule in Head. Justice Major regarded it as too strict. He said at paras. 46-48:

In my opinion, the common law rule in Head must be reformulated. Otherwise, apparent absurdities might result. For instance, where the error in recording the verdict is discovered immediately after the discharge of the jury but before the jurors have left the jury box, Head would say that the error could not be corrected.

I do not think that result can be right. . . . . .

To the contrary, the administration of justice would be brought into disrepute by barring the court from correcting a recorded verdict where there is no perceptible injustice to the accused and no reasonable apprehension of bias.

[22] Justice Major declared that "a more refined and flexible analysis of this sort of problem" (para. 51) was called for and pointed to the United Kingdom where the law had evolved to permit the clarification of a verdict in rare circumstances after the jury has been discharged.

[23] Justice Major proceeded to articulate a new test, the essentials of which are set out in paras. 52 and 54:

[A]lthough Head forms the general rule that prohibits changes to a criminal verdict post-discharge, we would not foreclosure the possibility of a limited and exceptional jurisdiction remaining with the trial judge to recall the jury for the purposes of inquiring into the alleged error, which may result in correction of the recorded verdict. The question then is under what circumstances should this jurisdiction be exercised. . . . . .

It is only where the error does not engage the deliberations of the jury that the exceptional jurisdiction may be exercised. It is unwise to characterize these types of errors as "clerical errors" or "accidental slips", given the vague meaning of these terms. "Clerical errors" or "accidental slips", as those terms are commonly understood, are administrative and may be corrected by the judge without recalling the jury: . . . Chandler v. Alberta Association of Architects, 1989 41 (SCC), [1989] 2 S.C.R. 848 . . . . . These slips would be minor, such as correcting dates and duties of a similar nature. However, the error in the present appeal and similar cases necessitates a recall of the jury in order to confirm the true and unanimous verdict and the discrepancy with the announced and recorded verdict. Therefore, rather than use the label "clerical error", it is preferable to say that the exceptional post-discharge jurisdiction can only be exercised where the correction of the error, although it requires the presence of the jury, does not require the jury to reconsider its verdict or complete its deliberations with a view to handing down additional verdicts.

(Emphasis added) [page779]

[24] After Burke, the relevant question in this appeal is whether the exception to the functus officio doctrine enunciated in Burke -- namely, correction of the error should be permitted if it does not require the jury to reconsider its verdict -- should be imported into judge alone criminal trials, including the sentence components of those trials. In my view, there is no principled basis for refusing to make this linkage. I say this for two reasons.

[25] First, one of the values of Burke, although not remarked upon in Major J.'s judgment, is that it creates a desirable symmetry between civil and criminal trials in this domain. In civil cases, Paper Machinery established an exception to the application of the functus officio doctrine if there had been an error in expressing the manifest intention of the court. In criminal cases, pre-Burke, there was no such principled exception. Rather, cases like Head enunciated bright line rules -- was the jury discharged? was the indictment endorsed? -- which conclusively triggered a finding of functus officio. Burke changes this and insists on a "more refined and flexible analysis". A crucial component, indeed the linchpin, of the new analysis is whether the potential correction of an error involves reconsideration by the jury of its verdict; if it does, then the doctrine of functus officio prevents correction.

[26] In my view, this is very close to the focus mandated by Paper Machinery, namely, ascertainment of the manifest intention of the court. Both Burke and Paper Machinery permit an inquiry directed toward what a judge or jury intended to say, and in fact said, but without permitting the judge or jury to reconsider and possibly change the verdict. Against the backdrop of this expanded symmetry in the case law, I cannot see any principled reason to prohibit a similar inquiry in a judge alone criminal case, including with respect to sentencing. Retention of a bright line rule -- no inquiry if the sentence has been endorsed on the indictment and/or warrant of committal -- that would trump the principled inquiry set out in Burke and Paper Machinery makes no sense.

[27] Second, the 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.

[28] I turn then to the application of the Burke test (and, essentially, the Paper Machinery test as well) to what the sentencing judge did in this case. The question is: did her decision [page780] on January 21, 2005 to clarify that the sentence she had imposed two days earlier was to be served consecutive to the sentence the appellant was already serving amount to an impermissible reconsideration and alteration of the January 19 sentence? In my view, it clearly did not. I say this for two reasons.

[29] First, and most importantly, the sentencing judge said that "[i]t was always my intention that the sentence be consecutive to that served". The sentencing judge is in the best position to know what she intended. When she explicitly declares her intention (especially where, as here, the declaration is made promptly after the pronouncement of sentence), her declaration should be accepted by an appellate court, absent something powerfully contrary in the record.

[30] Second, the record in this case in fact strongly supports the sentencing judge's statement. Although there was nothing in her January 19 reasons about the merger of the two sentences (contrary to the sentencing judge's comment in her January 21 reasons), the reality is that the sentencing submissions of both counsel and the dialogue between counsel and the judge make it crystal clear that everyone was on the same page -- namely, the sentence imposed for the appellant's tenth impaired driving offence would be consecutive to the sentence he was already serving for his ninth conviction for the same offence.

[31] For these reasons, I conclude that the sentencing judge did not err when she clarified that the sentence she had imposed on the appellant was consecutive to the sentence he was already serving. In the circumstances of this case, the sentencing judge's decision on January 21 did not constitute a reconsideration or alteration of the original sentence imposed. To the contrary, it simply confirmed and clarified that sentence, consistent with the trial judge's intention, the clear expectations of counsel, and the nature of the offence and the offender before the court.

(2) The totality issue

[32] The appellant submits that the sentencing judge failed to consider the principle of totality in imposing sentence and that a sentence of four and a half years consecutive to the three and a half year sentence already being served was an excessive sentence, more likely to crush the appellant than to promote his rehabilitation. I disagree.

[33] The trial judge was well aware that the appellant was already serving a penitentiary sentence. The submissions of both counsel were anchored in a shared understanding that any sentence imposed by the judge would be consecutive to the one he [page781] was already serving. The dialogue between counsel and the judge reflected the same point of departure.

[34] Moreover, on the merits, it is difficult to see how a four and a half year sentence for a tenth impaired driving conviction is excessive. This court upheld the three and a half year sentence the appellant received for this ninth conviction. The tenth offence took place when the appellant was on bail with respect to the previous offence. The tenth offence was coupled with particularly terrible driving for which the appellant was convicted of dangerous driving. It also involved an accident which destroyed another vehicle and rendered its driver unconscious. Finally, it is clear that previous periods of incarceration have not deterred the appellant from drinking and driving.

[35] Frankly, at this juncture, considerations of rehabilitation or sentences that might crush the appellant recede into almost complete insignificance. The safety of other drivers and pedestrians is the paramount consideration. The sentence of four and a half years for the tenth conviction is entirely fit. It is still fit when served consecutive to the three and a half year sentence for the ninth offence.

E. Disposition

[36] I would grant leave to the appellant to appeal his sentence and would dismiss the appeal.

SIMMONS J.A. (concurring): --

A. Introduction

[37] I have had the benefit of reading the reasons of my colleague MacPherson J.A. On the facts of this case, I agree with my colleague's conclusion that leave to appeal sentence should be granted and that the sentence appeal should be dismissed.

[38] However, in relation to the functus officio issue, I wish to say that while I agree generally with my colleague's analysis, in my view, different considerations may inform the proper formulation of an exception to the functus officio doctrine in the context of criminal judge alone trials than are applicable in the context of criminal jury trials. Accordingly, I would not foreclose the possibility that my colleague's articulation of the exception to the functus officio doctrine in the context of criminal judge alone trials should, in the future, be refined.

[39] On the facts of this case, in my opinion, no such considerations are in play. I therefore agree that, although the sentencing judge endorsed the indictment without noting that the sentence she had imposed was consecutive to a sentence the appellant was [page782] already serving, the sentencing judge did not err when she subsequently clarified that the sentence was consecutive.

B. Discussion

[40] I begin by noting that on my reading of both R. v. Head, 1986 8 (SCC), [1986] 2 S.C.R. 684, [1986] S.C.J. No. 76 and R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, [2002] S.C.J. No. 56, 164 C.C.C. (3d) 385, the Supreme Court of Canada has recognized that, in relation to doctrine of functus officio, "there are different policy considerations animating criminal law matters that are absent from civil matters" [at para. 44]; moreover, "[t]hese different considerations may warrant a more stringent approach in the criminal law sphere" [at para. 44].

[41] Such considerations include the need to "recognize and protect both the interests of the state and the public, and the particular interest of the accused": Head, supra, at p. 692 S.C.R. In Burke, Major J. identified additional considerations applicable to criminal jury trials "animating the bright-line rule in Head". These included: "preserving the finality of the verdict and the certainty of the trial process; shielding jurors from post-trial harassment and promoting free and frank jury discussions by protecting the secrecy of their deliberations; and preventing the administration of justice from falling into disrepute by ensuring that the jury is not biased" (Burke, supra, at para. 44).

[42] In Burke, supra, at para. 47, Major J. went on to note that when an error is discovered rapidly "after discharge but prior to the jury having separated or dispersed, many of the policy concerns supporting the rule in Head are not engaged". For example, he indicated that if the error is discovered immediately after discharge, finality of the verdict would not be a pressing concern. Further, he stated [at para. 47]:

An immediate discovery of the error would mean that the accused and the court could not have been under the illusion of the incorrectly recorded verdict for very long. An error made only in conveying or recording the verdict can be corrected without exposing the deliberations of the jury to undue scrutiny and subjecting them to the risk of post-trial harassment. If the jury has not dispersed beyond the jury box, then there is no realistic possibility that outside influences have tainted the jury. Thus, there is no danger to the administration of justice.

[43] As indicated by my colleague, at para. 48 of Burke, Major J. enunciated the policy rationale for permitting correction to errors in criminal jury cases as follows:

. . . the administration of justice would be brought into disrepute by barring the court from correcting a recorded verdict where there is no perceptible injustice to the accused and no reasonable apprehension of bias.

(Emphasis added) [page783]

[44] However, it is important to note that at the outset of his analysis in Burke, Major J. stated that, in the context of his reasons, he intended "bias" to be interchangeable with taint. Accordingly, an alternate formulation of the policy justification would be -- 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 taint.

[45] Based on this policy justification, Major J. went on to formulate a two-step test for applying an exception to the functus officio doctrine within the context of a criminal jury trial. Step one involves inquiring into the nature of the alleged error, i.e., determining whether the error requires reconsideration of the verdict -- if reconsideration is required no correction is possible. Where reconsideration of the verdict is not required, step two involves determining whether the remedial jurisdiction to correct the verdict should be exercised.

[46] Within the context of a criminal jury trial, Major J. stated, at para. 60 of Burke, that the driving consideration informing the test for exercising the remedial jurisdiction should be "the fear of a tainted or biased jury, or the appearance of unfairness". Accordingly, he formulated step two of the test for applying an exception to the functus officio doctrine as "reasonable apprehension of bias", with the essence of the test being the likelihood of a reasonable apprehension that the jury may have been tainted by outside influences.

[47] In identifying this test, Major J. referred, at para. 60 of Burke, to the potential for exposure to outside contacts, and to the fact that an argument that a reasonable apprehension of bias exists becomes more convincing with the passage of time:

The appropriate cut-off point beyond which the verdict cannot be corrected is found in the rationale underlying the "dispersal" case law. The reason for using dispersal as the outside limit is that once the jurors have dispersed, they are no longer functioning as a single, cohesive unit, and are exposed to outside contacts which may reasonably raise the apprehension of bias. Logically, if the jurors have left the controlled courtroom environment, then the more time that has passed between the announcement of the verdict and the reconvening of the jury, the more convincing the argument becomes for establishing a reasonable apprehension of bias.

[48] As I read my colleague's reasons, in importing the Burke test into criminal judge alone cases, he has adopted step one of the test but not step two. While I agree that in the context of judge alone criminal trials there is no realistic basis for concern that a judge will become influenced by outside contacts, I do not foreclose the possibility that other factors could raise a reasonable apprehension of taint. [page784]

[49] Similarly, I do not foreclose the possibility that because of the inherent differences between criminal jury trials and criminal judge alone trials, different policy concerns should feature more prominently in formulating an appropriate test for exercising the remedial jurisdiction to correct a verdict.

[50] Without commenting on whether it would raise a reasonable apprehension of taint, as an example, I would cite delay between the time of rendering a decision and the time of identifying an error as the type of circumstance that might be considered in the future. Similarly, I would not foreclose the possibility that the fact that judges typically give reasons for their decisions might be a factor that could influence whether the remedial jurisdiction to correct a verdict in criminal judge alone trial should be exercised.

[51] As already noted, in my opinion, on the facts of this case, there are no such considerations in play that militate against permitting the trial judge to correct the sentence that was imposed in this case.

[52] In particular, counsel requested clarification from the court registrar of the sentence that was imposed very soon after the sentencing hearing was completed on January 19, 2005. Subsequently, after consulting with the trial judge, the court registrar issued an amended warrant of committal on January 20, 2005. While it is not clear when exactly the issue was brought to the trial judge's attention, it is apparent that it was within about a day of the delivery of her reasons for sentence. Further, when court reconvened on January 21, 2005, the trial judge was unequivocal in her statement of her original intention.

[53] Accordingly, even if reasonable apprehension of taint forms part of the test for determining when the remedial jurisdiction to correct a verdict may be exercised, there are no facts in this case that support such an apprehension. Similarly, policy concerns for the finality of the verdict would not appear to be engaged.

[54] Finally, I see no basis for a perception of unfairness to the accused. During sentencing submissions there was no suggestion that the sentence imposed should be concurrent. On the contrary, both counsel requested consecutive sentences -- that was undoubtedly what the appellant expected.

[55] Further, while the sentencing judge was not bound by the submissions of counsel and could have, had she deemed it appropriate, imposed a concurrent sentence in order to "jump" the most recent sentence and at the same time afford the appellant some consideration for health issues, her reasons give no indication that that was her intention.

[56] Accordingly, even if the appellant was under an "illusion" as to the true nature of the sentence because of the failure of the [page785] trial judge to utter the word "consecutive", that impression was swiftly corrected: see Burke, supra, at para. 47.

[57] In my view, there is little practical difference for the appellant between what occurred here and what happens in cases where a sentencing judge reads what has been written on the indictment in open court before endorsing it and an error is caught at that time. In the latter case, there is no issue that the sentencing judge has jurisdiction to correct the error. As already noted, in my opinion, the sentencing judge did not err in this case when she clarified that the sentence she had imposed was consecutive.

[58] Accordingly, while I would grant leave to appeal sentence, I would dismiss the sentence appeal.

CRONK J.A. (concurring): --

[59] I have read the reasons for judgment of my colleagues MacPherson and Simmons JJ.A. on this appeal. For the reasons expressed by MacPherson J.A., I agree that leave to appeal sentence should be granted and the sentence appeal should be dismissed. However, because I also agree with one important aspect of the reasons of Simmons J.A. not directly addressed by MacPherson J.A., I respectfully deliver these brief additional concurring reasons.

[60] I agree with MacPherson J.A. that the law for permitting and refusing to permit error corrections should be the same in jury and judge alone criminal trials, to the extent possible. But I also share Simmons J.A.'s view that the jurisdiction to correct errors in a criminal case is not unlimited and that different considerations governing its invocation may arise under both scenarios.

[61] Given the applicable jurisprudence, I would describe the error correction jurisdiction in this fashion. The jurisdiction to effect error corrections in jury and judge alone criminal cases should be animated by the same controlling principles, including the same limitations. In both situations, the exercise of the curative authority for error correction -- encompassed by the "more refined and flexible analysis" mandated by R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, [2002] S.C.J. No. 56, 164 C.C.C. (3d) 385 and referenced by MacPherson J.A. in his reasons -- will be precluded where the proposed correction, in reality, is tantamount to a reconsideration of the verdict (or sentence). Importantly, it will also be precluded where issues of unfairness or injustice to the accused or reasonable apprehension of bias arise.

[62] It follows that in a proper case, as indicated by Simmons J.A., the passage of time between the pronouncement of a verdict (or sentence) and the identification of the error, 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. [page786] The nature and import of such factors, in a given criminal case, may differ materially depending on whether the trial has been conducted by a judge and jury, or by a judge alone.

[63] In this case, however, as explained by my colleagues, such limiting considerations do not arise on the record before this court. Accordingly, while I would grant leave to appeal sentence, I would dismiss the sentence appeal.

Appeal dismissed.

Notes

Note 1: The appellant appealed his convictions. His appeal was heard and dismissed on June 20, 2006.