WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court Information

Court of Appeal for Ontario

Date: 2017-03-08

Docket: C61142

Panel: MacPherson, Epstein and Lauwers JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Roman Krouglov Appellant

Counsel

Roman Krouglov, acting in person

Ian R. Smith, duty counsel

Susan Magotiaux, for the respondent

Heard: October 5, 2016

On appeal from: the sentence imposed on September 23, 2015 by Justice J.F. Kenkel of the Ontario Court of Justice.

Decision

Epstein J.A.:

Introduction

1This appeal involves whether the trial judge committed a jurisdictional error in signing a new Warrant of Committal four months after sentencing the appellant to correct an apparent mathematical error.

Background

2The appellant, Roman Krouglov, was convicted of aggravated sexual assault, sexual interference, assault with a weapon, assault and uttering a death threat. All charges related to one victim.

3The aggravated sexual assault and the sexual interference counts arose out of the appellant's sexual relationship with the victim when she was 15 and 16 years old. The appellant was nine years older. The appellant knew he was HIV positive. He did not disclose his status to the victim. He had unprotected sex with her over an extended period of time before finally disclosing his HIV positive status to the victim. The appellant and the victim continued their sexual relationship after the disclosure and she ultimately contracted HIV.

4The appellant also admitted to having "terrorized" the victim during the relationship. The balance of the convictions stems from an incident in February 2014, when he choked the victim, held a knife to her throat and threatened to kill her.

5In submissions as to sentence, the Crown sought a global sentence of six to seven years. The defence argued that the appellant should be given credit for 29.25 months of pre-sentence custody (19.5 months were actually served) and that no further period of custody should be imposed.

The Reasons for Sentence

6At the conclusion of the sentencing hearing, the trial judge recessed to consider the oral and written submissions. When the trial judge returned to court, he delivered oral reasons for sentence.

7The trial judge identified the following as aggravating factors:

…. The prior criminal record, marked as Exhibit Number 3 on sentence. On the aggravated sexual assault count, the fact that the victim was a minor and the nine-year difference in their ages. The breach of trust in failing to inform the complainant, the victim, of his H.I.V. status. The accused's deliberate disregard for safe sexual practices in relation to his H.I.V. illness, despite counselling prior to these offences. The fact that the accused used drugs as part of his manipulation of the complainant, including the use of heroin within the first month or two of their relationship. The accused's lack of remorse, lack of appreciation of the gravity of the offence and his indifference to the impact of the offence on the victim. The impact of the offences upon the complainant as detailed in the presentence report.

8As to the mitigating factors, the trial judge referred to the fact that the accused had spent 19.5 months in pre-sentence custody. He had a history of drug addiction. He had the support of his family. He was intelligent. There was potential for rehabilitation. The trial judge also observed that although the accused did transmit HIV to the victim, the evidence was unclear as to whether the transmission took place before or after the victim was aware of his status.

9The trial judge expressed the view that the facts, particularly the actual transmission of HIV and the vulnerability of the victim, placed the appropriate sentence "closest to the cases where sentences of five years or more had been imposed."

10The trial judge noted that the accused lived in a luxury condominium and drove an expensive car. He provided drugs to the victim. The trial judge described how the combination of what the accused offered the victim and the victim's difficult home life led her to respond quickly to the accused's overtures. Relying on R. v. McGregor, the trial judge found that the accused was in a position of trust in relation to the victim. He concluded that the accused's "manipulation of the [victim] and the toxic relationship that resulted, ultimately had terrible life-long consequences for the victim". The trial judge further found that the accused lacked insight and remorse and was "entirely self-focused and apparently unconcerned about his responsibility for these offences and the impact they have had on the victim." The trial judge further found that the accused posed a high-risk to reoffend.

11That said, in deciding upon a fit sentence the trial judge indicated that he was taking into account the principle of totality and the potential for the accused's rehabilitation.

12At the conclusion of his analysis, the trial judge asked the accused to stand and said:

Mr. Krouglov, you'll be sentenced as follows:

Aggravated sexual assault, five years. Sexual interference with a person under 16, one year consecutive. Assault with a weapon, assault, uttering death threat, six months on each count concurrent to each other but consecutive to the first two counts, for a total sentence of six and a half years.

From the global sentence – from the global 66 months' sentence, 29.23 months must be deducted for time-served leaving 36.75 months or three weeks – three years, three weeks to serve.

Aggravated sexual assault, three years, three weeks. Sexual interference with a person under 16, one year concurrent. Assault with a weapon, assault, uttering death threats, six months on each count concurrent to each other and concurrent to the other counts, for a global sentence of three years and three weeks. [emphasis added]

13The trial judge signed a Warrant of Committal on September 23, 2015. The document recorded a global sentence on all counts of 66 months, less 29.5 months of pre-sentence custody. For reasons that are not apparent on the record, the Warrant of Committal was prepared again to make the notation that the global sentence was 66 months, clearer. Again, the trial judge signed it. Then, because the warrant was "messy", a new Warrant of Committal was prepared that again indicated a sentence of 66 months. This further warrant was signed by the trial judge.

14On January 14, 2016 the trial judge released written reasons for sentence. The released reasons were a virtually verbatim transcription of the oral reasons. The three paragraphs set out above were identified in the transcript as paragraphs 32, 33 and 34.

The Post-Sentence Events

15The appellant sought leave to appeal sentence by way of an inmate notice of appeal dated September 28, 2015. In his notice of appeal he wrote that "In regards to the sentence the judge sentenced me for 5 years for the aggravated sexual assault…."

16On February 18, 2016 while in custody, the appellant was provided with a new Warrant of Committal that indicated that his global sentence was 78 months, not 66 months, as indicated in the September 23, 2015 Warrant of Committal. The appellant contacted the Queen's Prison Law Clinic and obtained an opinion as to the validity of the new warrant. The Queen's Law Clinic provided the appellant with an opinion that the new Warrant of Committal was invalid on the basis that the trial judge became functus after signing the Warrant of Committal on September 23, 2015.

The Inmate Appeal Hearing

17At the hearing of the sentence appeal on October 5, 2016, the Crown, duty counsel and the appellant made submissions solely concerning the validity of the new Warrant of Committal.

18The appellant provided the opinion from the Queen's Prison Law Clinic to the Crown and the panel. The appellant, relying on this opinion and assisted by duty counsel, argued that adding a year to his sentence in these circumstances was unfair. The trial judge was functus.

19The Crown submitted that the trial judge's intent to impose a sentence of 6.5 years was clear and that he was entitled to correct the mathematical error he had made in expressing the sentence in months rather than years.

20The panel adjourned for the purposes of being provided with additional information and submissions. The panel requested all relevant information, including the transcript of the original sentencing, the CSC records specifying when the discrepancy was discovered, and a description of the steps taken to clarify the sentence.

Information Obtained After the Hearing of the Appeal

21In response to the panel's request, the following information and documentation was made available to the panel.

22In January or early February 2016, CSC employees noticed a discrepancy between the Warrant of Committal and the actual length of sentence recorded in the Reasons for Sentence. Specifically, the CSC noted that the trial judge imposed a total sentence of 6.5 years, which equates to 78 months, not 66 months. After deducting the appellant's pre-sentence custody, the time remaining would be 48.75 months, or 4 years and 3 weeks (not 3 years and 3 weeks, as noted on the original Warrant of Committal). The CSC called the Crown, then called and wrote to the Ontario Court of Justice, copying the Crown, to request clarification.

23The court office sent back a new Warrant of Committal that reflected a global sentence of 78 months, less pre-sentence custody. The trial judge had signed but not dated the new Warrant of Committal.

24The CSC file contained a letter dated February 9, 2016 from Anne Staley, a sentence management associate with the CSC, to Ellen Robson, a staff member in court operations at the Newmarket courthouse. In the letter, Ms. Staley referenced a phone call between her and Ms. Robson earlier that day and set out the discrepancy. She enclosed a number of documents, including the original Warrant of Committal, the Information, and portions of the trial judge's reasons on sentence. A document dated February 12, 2016 from the CSC files was provided to the court that contains a hand-written note, apparently authored by Ms. Staley, noting a further phone call she had with Ms. Robson. The hand-written notation reads:

2016.02.12 9:10am called Ellen – she spoke with Justice Kenkel – he made a mathematical error (thought 6 yrs = 60 mos – they have corrected it to a global 78 mos sentence + noted 48.75 mos after deducting psc.

25This hand-written notation was made on a photocopy of an email from Ms. Robson to Ms. Staley dated February 12, 2016, in which Ms. Robson indicated she had the trial judge "correct the numbers on this WOC". The court office then sent back a new Warrant of Committal, signed (but not dated) by the trial judge, which reflected a global sentence of 78 months, less pre-sentence custody.

26The appellant's trial counsel was not notified when the error was discovered or corrected.

The Issue

27The issue is whether, in these circumstances, the trial judge had jurisdiction to issue a new Warrant of Committal?

The Analysis

The Arguments on Appeal

28The appellant submits that in determining the applicability of the functus officio doctrine, the fairness of the procedure followed to correct a perceived mistake will be an important consideration. The passage of time between the court's original decision and the proposed correction is a relevant factor, although time is not the only factor that can compromise the appearance or reality of trial fairness. Here, the appellant notes the following aspects of the process followed which, in his submission, compromised the appearance or reality of trial fairness:

• The trial judge issued a judgment that was internally inconsistent as to the sentence (paras. 32 and 33), but signed an Information and three times signed a Warrant of Committal that indicated that the sentence imposed was one of 66 months (consistent with para. 33).

• Four months later, CSC discovered the inconsistency in the reasons for sentence.

• Crown counsel was consulted but no one contacted defence counsel, the appellant was never given an opportunity to address the question, and the process happened in camera and ex parte.

• There was no hearing before the trial judge on the issue.

• The document purporting to convey the trial judge's intention (the hand-written note from Ms. Staley) is hearsay.

29In particular, the appellant argues that the complete exclusion of defence counsel or the appellant from the process cannot be defended. The appellant submits that the Crown's argument to the contrary depends on finding that the trial judge's intention was manifest and therefore, in issuing a new Warrant of Committal, he was engaged in a "non-judicial function" that did not require all parties to be consulted. The appellant argues that, on this record, the trial judge's intentions were not manifest. He says it is equally possible that the error in the reasons for sentence resides in para. 32 (where the trial judge indicated a global sentence of 6.5 years) and not in para. 33 (where the trial judge noted the global sentence as 66 months). Because there was no hearing on the matter, it is impossible to know whether the trial judge had a clear memory of the case and his intention, if he refreshed his memory somehow, or if he relied on the communication from the CSC to establish his intention. The fact that the trial judge signed the new Warrant of Committal endorsing a 78 month sentence is not evidence of his intention.

30The respondent submits that issuing the new Warrant of Committal to correspond to the sentence as initially pronounced by the trial judge was not in error because it was a correction that did not involve exercise of a judicial function. Rather, it was a reflection of the trial judge's intention as demonstrated by both a plain reading of the reasons for sentence and the trial judge's subsequent conduct. When the trial judge was made aware that the conversion to months did not match up with the statement of the total sentence in years, he did not need to engage in any weighing of factors, reconsideration of analysis or application of legal principles. All he needed to do was correct the mathematical error he had made in converting years to months. In so doing he was exercising an administrative not a judicial function.

31The respondent submits that it is manifestly apparent that the trial judge intended to sentence the appellant to a term of 6.5 years in custody less credit for pre-sentence custody. The transcript of the reasons for sentence makes this clear. The trial judge made a simple mathematical error – 6.5 years was mistakenly converted to 66 months.

32The respondent further submits that had there been any doubt about judicial intention, it is cleared up entirely by the judge's subsequent response to the CSC inquiry. The communications between the trial judge and court staff indicates his acknowledgment of the mathematical error.

33On the issue of fairness, the respondent argues that the error correction was not so long after the original sentencing so as to cause the appellant any injustice. His appeal was already underway and his statutory release date was not yet reached. He had not been granted parole.

34The respondent fairly admits that it would have been preferable to notify defence counsel so that the error would be corrected with submissions, or at least with advance notice to both parties. However, the respondent points out that there would have been no submissions of any import to make, given the trial judge's clear intention to impose a custodial term of 6.5 years. Had the parties been brought together, the result would have been no different.

The Governing Principles

35Both parties agree that the applicable principles are found in this court's decision in R. v. Malicia. 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.

36In Malicia, MacPherson J.A. held that the test set out by Major J. in R. v. Burke, 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.

37MacPherson 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.

38In 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".

39While 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.

40Similarly, 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."

Principles Applied

Step 1: The Trial Judge's Intentions

41As a preliminary point, the appellant objects to any reliance on the CSC correspondence and, in particular, the letter produced from Ms. Staley to Ms. Robson and the subsequent hand-written note purporting to capture the trial judge's explanation for his error. I agree with the appellant that, absent a concession on the admissibility of these documents, they are hearsay (and indeed double and triple hearsay). Therefore, my analysis of the judge's intention focuses solely on the reasons for sentence.

42In my view, a fair and complete reading of the reasons for sentence reflects the trial judge's manifest intention to sentence the appellant to a global sentence of 6.5 years in custody, less credit for his pre-sentence custody. It follows that the trial judge's mathematical error in converting 6.5 years into months does not render his intention ambiguous. The fact that this error was copied several times on other documents does not, in my view, alter the fact that it was unintentional.

43It is clear that para. 32 of the reasons for sentence is the paragraph in which the trial judge issued his sentence. The paragraph starts with the phrase: "Mr. Krouglov, you will be sentenced as follows." The trial judge then immediately proceeded to break down the sentence per count: five years on the aggravated sexual assault, one year consecutive on the sexual interference with a person under the age of 16, and six months on each of the assault with a weapon, assault and uttering death threats, concurrent to each other, but consecutive to the first two counts. Adding these sentences together, the sentence is 6.5 years. The trial judge reinforced this global sentence by explicitly stating at the end of the paragraph"…for a total of six and a half years."

44Paragraphs 33 (where the mathematical error first occurred) and 34, in my view, do not reflect, nor can they be interpreted as reflecting, the trial judge's disposition on sentence. Rather, para. 33 provides a calculation of the time remaining after pre-sentence custody is taken into account, and para. 34 provides a breakdown of the remaining time among the counts. These paragraphs are administrative in nature.

45In my view, the fact that the trial judge then signed further documents – the Information and a number of Warrants of Committal reflecting the mathematical error - is not relevant to the assessment of the trial judge's intention. While it may suggest inattentiveness, it does not create ambiguity where his intention is clear on a plain reading of his reasons.

46In these circumstances, I am of the view that the correction of what was clearly a mathematical error did not require reconsideration of the sentence by the trial judge. His intention was, and remained, manifest – to impose a sentence of 6.5 years in the aggregate. It follows that step 1 of the test set out in Malicia is met to establish an exception to the functus officio doctrine.

Step 2: Reasonable Apprehension of Taint and Fairness to the Appellant

47I agree with Cronk J.A. and Simmons J.A. that in Burke, Major J. identified a second part of the analysis – one that can be summarized as a consideration of whether the jurisdiction to correct an error that does not require judicial reconsideration should be exercised, having regard for reasonable apprehension of taint/bias and fairness to the accused. I do not read MacPherson J.A.'s reasons in Malicia as saying that these other factors are not relevant. In deciding the case before him, he implicitly reasoned what Simmons J.A. and Cronk J.A. stated explicitly - that the record did not raise any concerns about taint or fairness.

48On this record, I am of the view that this second step requires analysis. I therefore turn to whether the trial judge should have exercised his jurisdiction to correct the error, having regard to the considerations of reasonable apprehension of taint or bias, or unfairness to the appellant.

49"Reasonable apprehension of bias" or "reasonable apprehension of taint" was described in Burke as follows:

As stated in R. v. S. (R.D.), at para. 111, the precise phrasing of the test is not crucial, if the substance is plain. It is interchangeably expressed as a "reasonable apprehension""real likelihood" or "real danger" of bias, a "reasonable suspicion" of prejudice or taint, and so forth. Whatever the exact formulation of the test, the essence of the inquiry is the same; namely, the test is "what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude": S. (R.D.), supra, at para. 111, per de Grandpré J., dissenting in Committee for Justice & Liberty v. Canada (National Energy Board), at p. 394.

50This court also had occasion to comment on the definition in R. v. Arnaout. There, the court dealt specifically with the principle of the presumption of integrity of a trial judge, but stated at para. 19:

The test to displace the presumption of integrity is similar to the test to show a reasonable apprehension of bias. Bias, partiality and lack of integrity are all similar concepts; the bar to establish any one of them is high because each calls into question both the integrity of the presiding judge and the administration of justice itself: Teskey, at para. 32. To rebut the presumption of integrity in cases featuring post-decision reasons, the appellant must present cogent evidence showing that, in all the circumstances, an informed and reasonable observer would think that the reasons are an after-the-fact justification for the decision rather than an articulation of the reasoning that led to the decision: Teskey, at para. 21. [Emphasis added].

51In my view, there is no basis to conclude that there is a reasonable apprehension of taint in this case. An "informed person, viewing the matter realistically and practically – and having thought the matter through", would conclude that nothing interfered with the trial judge's independence and/or impartiality on the matter.

52I do not see that the two points the appellant stresses, leaving the defence out of the process that resulted in the correction of a mathematical error and the passage of time, created a reasonable apprehension of bias or taint.

53First, there is no suggestion that the defence was deliberately left out of the steps that were taken to sort out the discrepancy that the CSC employees noticed between the Warrant of Committal and the actual length of sentence recorded in the Reasons for Sentence. The evidence does not support a finding other than the Crown approached the trial judge directly for the simple reason that the judge's intent (and the error) were obvious – a mathematical error had to be corrected.

54Although the passage of time can give rise to a reasonable apprehension of bias or taint, in this case there is no evidentiary basis to support such a conclusion.

55Arnaout is a good illustration of the passage of time giving rise to a conclusion that an informed and reasonable observer would think the amendments were an after-the-fact justification for the verdict. In Arnaout, the trial judge amended his reasons for conviction 17 months after giving his reasons and in the course of a dangerous offender application, in order to include an alternative basis for culpability on a count. The trial judge's stated reason for doing so was that the omission was an oversight on his part. This court stated, at para. 50"[…] the longer the passage of time between a decision and the reasons for the decision, or substantive amendments to those reasons, the greater the concern that the requisite link between the two does not exist" [citation omitted]. The court went on to note that in the 17 month period between the original reasons and the amendment, the parties had numerous appearances before the trial judge on the dangerous offender application and that there was ample opportunity for the trial judge to have considered and re-considered his reasons, but did not. It was not until the sentencing proceedings that the trial judge reviewed his reasons for judgment and indicated that the reasons required amendments to "fully reflect" certain aspects of his reasoning.

56Here, there is nothing in the record to suggest that the trial judge undertook after-the-fact reasoning to justify the outcome.

57Moreover, in my view, there was no unfairness to the appellant in having the error corrected.

58At the outset, I note that the appellant was present in court and heard the trial judge sentence him to 6.5 years of incarceration. The appellant may well have ascertained, when he heard the trial judge read the reasons for sentence, that a mistake had been made and have been under the impression, for four months, that he was going to benefit from this mistake by serving a sentence one year less than the one imposed. However, that impression was expeditiously corrected once the error was discovered. As Simmons J.A. noted in Malicia, at para. 56"Accordingly, even if the appellant was under an "illusion" as to the true nature of the sentence, […] that impression was swiftly corrected."

59Furthermore, as the Crown pointed out, the delay did not cause the appellant any injustice. His appeal was already underway and his statutory release date was not yet reached. He had not been granted parole.

60There can be no doubt that where a verdict or sentence has to be revisited for any reason, it would be preferable that the matter be addressed expeditiously and all parties be given the opportunity to participate in the process.

61However, based on the above analysis, I see no reason why the trial judge should not be entitled to correct the Warrant of Committal so that it reflected the sentence imposed.

62In this case, reasonable members of the public would easily understand that the trial judge intended to impose a sentence of 6.5 years. Unfortunately, he made an error in converting that sentence from years to months. In my view, allowing the appellant to take advantage of this error and obtain a one year reduction in a fit sentence imposed for the serious crimes for which he has been convicted would erode public confidence in the integrity of the criminal justice system.

63I conclude that the trial judge had jurisdiction to amend the Warrant of Committal to reflect the sentence he imposed.

Disposition

64For these reasons, I would dismiss the appeal.