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    that could identify the victim or a witness shall not be published in any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 complainants 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(iii)     REPEALED: S.C. 2014, c. 25, s.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).

(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.

(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    the victim shall not be published in any document or broadcast or transmitted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.

(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.

(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.

(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.

(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 OF APPEAL FOR ONTARIO

CITATION: R. v. Kirlew, 2017 ONCA 171

DATE: 20170308

DOCKET: C59932

Cronk, Rouleau and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Kirlew

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Katherine Beaudoin, for the respondent

Heard: February 24, 2017

On appeal from the convictions entered on August 19, 2014
    and the sentence imposed on February 6, 2015 by Justice Alexander Sosna of the
    Superior Court of Justice, sitting with a jury.

By the Court:

Introduction

[1]

Following a trial by judge and jury, the appellant was convicted of the
    possession of child pornography (count one) and making child pornography
    available (count two).  The conviction on the first count was stayed in
    accordance with
R. v. Kienapple
, [1975] 1 S.C.R. 729.  The appellant
    was sentenced on the second count to 21 months in jail, plus three years
    probation.  Various ancillary orders were also imposed.

[2]

The appellant appeals from his conviction on count two, making child
    pornography available.  If his conviction appeal is successful, he seeks leave
    to make submissions on the appropriate sentence for his remaining conviction
    for possession of child pornography.  The appellant does not otherwise seek to
    appeal against his sentence.

Conviction Appeal

[3]

The appellant advances two grounds in support of his conviction appeal.
    First, he argues that the trial judge erred by failing to adequately rectify in
    his jury instructions the trial Crowns violation, in his closing address to
    the jury, of the rule in
Browne v. Dunn
(1893), 6 R. 67 (H.L.).

[4]

Specifically, the appellant says that the trial Crown violated the rule
    in
Browne v. Dunn
by suggesting to the jury, without the matter having
    first been raised in cross-examination, that the evidence of Adrian Walters, a
    computer technician who installed, updated and maintained file-sharing software
    on the appellants home computer, was unreliable because Mr. Walters did not
    have notes of his dealings with the appellant over the years.

[5]

Mr. Walters had testified that, based on his dealings with the
    appellant, he believed that the appellant had a limited understanding of
    computers.  He described the appellants knowledge of the use of computers as a
    five out of 10, said that the appellant had problems opening his e-mail, and
    maintained that the appellant did not know how to transfer data from his inbox
    and create other folders on his computer.

[6]

Mr. Walters evidence was important to the defence because the jury was
    required to determine whether the appellant knew, or was wilfully blind to the
    fact, that he was making child pornography available to others through the
    file-sharing software on his home computer.  The appellant testified at trial
    and claimed that he did not know that the pornography he admittedly downloaded
    on his computer was available for others to upload via the software on his
    computer.

[7]

We do not accept the appellants
Browne v. Dunn
complaint.

[8]

The rule in
Browne v. Dunn
requires that, in the interests of
    fairness, where a party intends to challenge the credibility of a witness, the
    party must provide the witness with an opportunity to address the point upon
    which the witness credibility is attacked.

[9]

However, this is neither a fixed nor inflexible rule.  As this court
    recently explained in
R. v. Quansah
, 2015 ONCA 237, 331 O.A.C. 304, at
    para. 80, the extent of the application of the rule lies within the sound
    discretion of the trial judge and depends on the circumstances of each case
    (citations omitted).  Further, and importantly, compliance with the rule
    requires that the cross-examination should confront the witness with matters
    of
substance
on which the party seeks to impeach the witness
    credibility and on which the witness has not had an opportunity of giving an
    explanation because there has been no suggestion whatever that the witness
    story is not accepted (emphasis in original, citations omitted).

[10]

In this case, the trial Crowns cross-examination of Mr. Walters made
    clear that the reliability of the witness memory and his professed
    recollections of his computer-related dealings with the appellant was directly
    in issue.  The trial Crown put to Mr. Walters, and Mr. Walters agreed, that his
    memory was faded; that he had made no notes of the software version that he had
    downloaded on the appellants computer; that he had no independent recollection
    of installing features of the file-sharing software on the appellants
    computer; and that, in his testimony, he was just going from memory.

[11]

Against this backdrop, the trial Crown suggested to the jury in his
    closing address that Mr. Walters had a poor and non-specific recollection of
    what functions he performed on the appellants computer, unassisted by any
    notes.

[12]

In our view, it is far from clear that
Browne v. Dunn
was even
    implicated in this case.  However, assuming that it was, we are satisfied,
    given the nature of the trial Crowns cross-examination, that this aspect of
    his closing argument did not offend the fairness considerations at which the
    rule in
Browne v. Dunn
is aimed.  Based on the cross-examination, we
    agree with the Crowns submission on appeal that it would have been clear to
    all parties and the jury that the trial Crown was attacking the reliability of
    Mr. Walters memory and recollections.

[13]

The trial judge disagreed.  Although the defence did not object to the
    trial Crowns closing address, the trial judge concluded that a correcting
    instruction to the jury was appropriate on the trial Crowns remarks concerning
    the reliability of Mr. Walters testimony.  In his instruction, the trial judge
    twice observed that Mr. Walters memory had not been tested on
    cross-examination.  With respect, as the appellants counsel candidly
    acknowledges before this court, this observation was incorrect.  That aside,
    the trial judges correcting instruction clearly undercut the trial Crowns
    position that Mr. Walters evidence was unreliable by informing the jury, in
    effect, that no proper foundation had been laid by the trial Crown upon which
    to advance that position.  In this respect, the instruction clearly favoured
    the defence.

[14]

In these circumstances, the appellants
Browne v. Dunn
argument
    fails.  As we have said, we are not persuaded that a violation of the rule in
Browne
    v. Dunn
requiring a correcting instruction occurred.  However, even if it
    did, the trial judges remedial instruction to the jury on the point adequately
    addressed any risk of prejudice to the defence.

[15]

The appellants second ground of appeal concerns the trial judges
    charge on
R. v. W.(D).
, [1991] 1 S.C.R. 742.  In his charge, the trial
    judge limited his
W.(D.)
instruction to the jurys consideration of
    the appellants evidence.  This instruction, the appellant says, runs afoul of
R.
    v. B.D.
, 2011 ONCA 51, 273 O.A.C. 241 and gives rise to the risk that the
    jury in this case may not have properly considered the burden of proof.

[16]

We reject this argument in the particular circumstances of this case.

[17]

In
R. v. B.D.
, at para. 114, this court held that the
    principles underlying
W.(D.)
are not confined to only those cases
    where an accused testifies and his or her evidence conflicts with that of Crown
    witnesses.  Rather, where, on a vital issue, there are credibility findings to
    be made between conflicting evidence called by the defence or arising out of
    evidence favourable to the defence in the Crowns case, the trial judge must
    relate the concept of reasonable doubt to those credibility findings.

[18]

The purpose of a
W.(D.)
instruction is to bring home to the
    jury that, in the face of conflicting evidence, the paramount question for
    their determination is whether, on the whole of the evidence, the jury is left
    with a reasonable doubt about the accuseds guilt:
R. v. C.L.Y.
, 2008
    SCC 2, [2008] 1 S.C.R. 5, at para. 6, citing
R. v. Morin
, [1988] 2
    S.C.R. 345, at para. 361.  For this reason, the analytical steps outlined in
W.(D.)
are intended to ensure that the jury remains focused on the principle of
    reasonable doubt:
C.L.Y.
, at para. 6.

[19]

The
W.(D.)
instruction in this case should not have been
    confined to only the appellants testimony.  By limiting his instruction in
    this respect, the trial judge erred.  That said, we are satisfied that the jury
    charge, read as a whole, was nonetheless adequate to achieve the purpose of a
    proper
W.(D.)
instruction, described above.

[20]

The issue in this case was the reliability of Mr. Walters memory and
    recollections and whether his evidence and the other evidence at trial gave
    rise to a reasonable doubt.  In his charge, the trial judge repeatedly told the
    jury that it was obliged to consider all the evidence before determining
    whether the appellant was guilty to the requisite criminal standard.  He also
    provided the jury with an otherwise standard
W.(D.)
instruction and
    standard instructions on the presumption of innocence, the Crowns burden to
    prove its case beyond a reasonable doubt, and the standard of proof beyond a
    reasonable doubt.

[21]

Further, in accordance with
W.(D.)
, the trial judge instructed
    the jury that:

Even if [the appellants] evidence does not leave you with a
    reasonable doubt about his guilt, or about an essential element of the
    [offence] charged,
you may convict him only if the rest of the evidence
    that you do accept proves his guilt beyond a reasonable doubt
.  [Emphasis
    added.]

[22]

When the charge is read in its entirety, we are not persuaded that the
    impugned sentences in the trial judges otherwise unobjectionable
W.(D.)
instruction tainted the whole of the charge.  In our opinion, based on all the
    trial judges instructions, this jury can have been under no misapprehension
    about its obligation to consider all the evidence in determining whether it
    raised a reasonable doubt about the appellants guilt.

Disposition

[23]

For these reasons, the conviction appeal is dismissed.  We therefore do
    not reach the appellants proposed appeal against sentence on his possession of
    child pornography conviction.

Released:

EAC                                                            E.A.
    Cronk J.A.

MAR -8 2017                                    Paul
    Rouleau J.A.

B.W.
    Miller J.A.


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 complainants 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).

(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.

(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.

(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.

(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.

(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.

(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 OF APPEAL FOR ONTARIO

CITATION: R. v. Krouglov, 2017 ONCA 197

DATE: 20170308

DOCKET: C61142

MacPherson, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roman Krouglov

Appellant

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.

Epstein J.A.:

[1]

This 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

[2]

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

[3]

The aggravated
    sexual assault and the sexual interference counts arose out of the appellants
    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.

[4]

The 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.

[5]

In 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

[6]

At 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.

[7]

The 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.

[8]

As 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.

[9]

The 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.

[10]

The 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 victims difficult home life led
    her to respond quickly to the accuseds overtures.  Relying on
R. v. McGregor
(2008), 94 O.R. (3d) 500 (Ont. C.A.),
t
he trial judge found that the accused was in a position of trust in
    relation to the victim.  He concluded that the accuseds 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.

[11]

That 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 accuseds
    rehabilitation.

[12]

At 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]

[13]

The 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.

[14]

On 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

[15]

The 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.

[16]

On 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 Queens Prison Law Clinic and obtained an opinion as to the validity of the
    new warrant.  The Queens 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

[17]

At 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.

[18]

The appellant
    provided the opinion from the Queens 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
.

[19]

The Crown
    submitted that the trial judges 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.

[20]

The 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

[21]

In response to
    the panels request, the following information and documentation was made
    available to the panel.

[22]

In 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 appellants 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.

[23]

The 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.

[24]

The 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 judges
    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.

[25]

This 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.

[26]

The appellants
    trial counsel was not notified when the error was discovered or corrected.

THE
    ISSUE

[27]

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

THE
    ANALYSIS

The Arguments on Appeal

[28]

The 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 courts 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 judges intention
    (the hand-written note from Ms. Staley) is hearsay.

[29]

In 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
    Crowns argument to the contrary depends on finding that the trial judges
    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 judges
    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.

[30]

The 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 judges intention as demonstrated by both a plain
    reading of the reasons for sentence and the trial judges 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.

[31]

The 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.

[32]

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

[33]

On 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.

[34]

The 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 judges 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

[35]

Both parties
    agree that the applicable principles are found in this courts decision in
R. v. Malicia

(2006), 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
    courts 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]
    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 judges
    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.

Principles
    Applied

Step 1: The Trial Judges Intentions

[41]

As 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 judges
    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 judges
    intention focuses solely on the reasons for sentence.

[42]

In my
    view, a fair and complete reading of the reasons for sentence reflects the trial
    judges 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 judges 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.

[43]

It 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.

[44]

Paragraphs
    33 (where the mathematical error first occurred) and 34, in my view, do not
    reflect, nor can they be interpreted as reflecting, the trial judges
    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.

[45]

In 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 judges intention.  While
    it may suggest inattentiveness, it does not create ambiguity where his
    intention is clear on a plain reading of his reasons.

[46]

In
    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

[47]

I
    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.

[48]

On
    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.)
, [1997] 3 S.C.R. 484
(S.C.C.), 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)

(1976),
    [1978] 1 S.C.R. 369

(S.C.C.),
    at p. 394.

[50]

This
    court also had occasion to comment on the definition in
R. v. Arnaout
, 2015 ONCA 655, 2015 CarswellOnt 14643, 127 O.R. (3d)
    241, 328 C.C.C. (3d) 15, 339 O.A.C. 379
. 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].

[51]

In 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
    judges independence and/or impartiality on the matter.

[52]

I 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.

[53]

First,
    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 judges intent (and the
    error) were obvious  a mathematical error had to be corrected.

[54]

Although
    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.

[55]

Arnaout
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 judges 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.

[56]

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

[57]

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

[58]

At 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.

[59]

Furthermore, 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.

[60]

There 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.

[61]

However, 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.

[62]

In 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.

[63]

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

DISPOSITION

[64]

For these
    reasons, I would dismiss the appeal.

Released:
    March 8, 2017 ("GE")

"Gloria
    Epstein J.A."

"I
    agree. J.C. MacPherson J.A."

"I
    agree. P. Lauwers J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lira, 2017 ONCA 214

DATE: 20170315

DOCKET: C59102

Rouleau, Pepall, and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ivan David Lira

Appellant

Ivan David Lira, acting in person

Amy Ohler, appearing as duty counsel

Matthew Asma, for the respondent

Heard: March 7, 2017

On appeal from the convictions
    entered on June 4, 2014
by Justice J.
    Macdonald of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant appeals his convictions arising out of a
    robbery of a Cash in a Flash store on November 14, 2010. After a trial by
    jury, the appellant and his co-accused, Guled Ismail, were convicted of the
    robbery. The appellant has abandoned his sentence appeal.

[2]

The main issue at trial was the identification of the two masked men
    shown on the video recording of the robbery in the store. This recording and
    other video recordings were critical elements of the Crowns identification
    evidence.

[3]

Through duty counsel, the appellant advances one ground of appeal: he
    submits that the jurys verdict was unreasonable and should be set aside under
    s. 686(1)(a)(i) of the
Criminal Code
, because the evidence did not
    allow for identification of him as one of the robbers. Indeed, the trial judge gave
    a strong caution that the video evidence was extremely poor and unreliable for
    the purposes of identification and created the risk of wrongful conviction.

[4]

We do not accept these submissions. The appellant has not satisfied the
    test to overturn the jurys verdict under s. 686(1)(a)(i).

[5]

As recently noted by this court in
R. v. Wills
, 2014 ONCA 178, [2014]
    O.J. No. 1069, at para. 27, jury verdicts are regarded as the gold standard
    in criminal law, although, as the court also observed, juries can make
    mistakes. Appellate review under s. 686(1)(a)(i) serves to protect against jury
    error in those cases where the trial is free of legal error and is entirely
    fair, but the evidence cannot justify the conviction of the accused: see
R.
    v. W.H.
, 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 39.

[6]

Section 686(1)(a)(i) provides:

686(1)  On the hearing of an appeal against a conviction  the
    court of appeal

(a) may allow the appeal where it is of the opinion that

(i)  the verdict should be set aside on the ground that it is
    unreasonable or cannot be supported by the evidence.

[7]

Section 686(1)(a)(i) requires this court to assess the jurys verdict through
    the lens of judicial experience, in accordance with a reasonableness
    standard:  was the verdict one that a properly instructed jury, acting
    judicially, could reasonably have rendered:
R. v. Biniaris
, 2000 SCC
    15, [2000] 1 S.C.R. 381, at para. 40;
Wills
, at para. 28. In
    conducting this assessment, this court must independently weigh the totality of
    the evidence and examine its cogency, as informed by the courts awareness of
    the risk of wrongful convictions associated with certain kinds of cases and
    certain kinds of evidence:
Wills
, at paras. 29-30. The courts role in
    this assessment is not to make its own judgment as to the appropriate verdict,
    but to determine whether the verdict is beyond the reasonableness limit:
Wills
,
    at para. 31.

[8]

The appellant does not argue that there was any trial unfairness or that
    the trial judge made any error. On the contrary, the parties agree that the
    trial judges thorough charge was extremely fair to the defence. Indeed, duty
    counsel frankly stated that she could do no better than adopt as her
    submissions on appeal the trial judges detailed warnings to the jury
    concerning the frailties of the video identification evidence.

[9]

Notwithstanding duty counsels able submissions, we are not persuaded
    that the jurys verdict in this case was unreasonable or cannot be supported by
    the evidence.

[10]

First,
    having watched the video recordings, we cannot say that they are so inadequate
    that no reasonable reliance could have been placed on them for the purpose of
    accurate identification.

[11]

Indeed,
    it is possible to see distinctive identifying details in the video recordings.
    The clearest of the video recordings were taken on March 2, 2010 in a Canadian
    Tire store, and during daylight on November 13, 2010, the day before the
    robbery, in the alleyway outside the Cash in a Flash store. These video
    recordings plainly show the faces and body shapes and sizes of the appellant
    and Mr. Ismail, and Mr. Ismails pronounced and idiosyncratic limp.  The
    November 13, 2010 daylight video recording also reveals the appellants
    distinctive tan shoes with red laces (which a police officer had seen him
    wearing two weeks before the robbery), and Mr. Ismails unusual
    horizontal-striped jacket.  Most significantly, in the video recordings taken
    on November 14, 2010at nighttime, in the alleyway outside the store, moments
    before the robbery, and in the store during the robberyMr. Ismails distinctive
    gait and striped jacket, as well as his and the appellants relative stature
    and size, are apparent. In the video recording taken on November 14, 2010, in
    the store during the robbery, the appellants shoes with red laces are visible.

[12]

Moreover,
    the Crowns case against the appellant did not depend solely on the video
    evidence. It also included admitted photographic evidence, a balaclava
    containing Mr. Ismails DNA, and gloves and a firearm that resembled those used
    in the robbery, as shown in the video recording taken in the store. These three
    items were discovered in the boiler room of the appellants apartment
    building.  All of this evidence taken together with the video evidence created
    a close association between the appellant and Mr. Ismail and supported a
    finding that the appellant was one of the perpetrators of the robbery.

[13]

While
    each of the various pieces of evidence proffered by the Crown, taken
    individually, may not have been sufficient to support the jurys verdict, the
    totality of this evidence, when viewed and weighed by the jury as a whole,
    provided a reasonable and sufficient foundation for the verdict. As a result,
    we conclude that the verdict in this case is one that a properly instructed
    jury, acting judicially, could reasonably have rendered.

[14]

For
    these reasons, the appeal is dismissed.

Paul Rouleau
    J.A.

S.E. Pepall J.A.

L.B. Roberts
    J.A.