Functus Officio: Difference between revisions
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[[fr:Functus_Officio]] | |||
{{LevelOne}}{{HeaderTrials}} | {{LevelOne}}{{HeaderTrials}} | ||
==General Principles== | ==General Principles== | ||
The doctrine of "functus officio" (Latin for “having performed his or her office”) determines when the judge no longer has authority or competence over a proceeding they have previously dealt with because their duties are fully accomplished.<ref> | The doctrine of "functus officio" (Latin for “having performed his or her office”) determines when the judge no longer has authority or competence over a proceeding they have previously dealt with because their duties are fully accomplished.<ref> | ||
{{CanLIIRx|E(J)|fxd70|2013 ONCJ 247 (CanLII)}}{{perONCJ|Nakatsuru J}}{{atL|fxd70|17}}<br> | |||
Chandler v Alberta association of architects | {{CanLIIRPC|Chandler v Alberta association of architects|1ft28|1989 CanLII 41 (SCC)|[1989] 2 SCR 848}}{{perSCC-H|Sopinka J}}{{atL|1ft28|19}}</ref> | ||
A judge has jurisdiction over an outstanding charge up to the point where the charge has been resolved by way of a stay, withdraw, dismissal, acquittal, or sentencing. The doctrine of ''functus officio'' refers to the principle that a court no longer has jurisdiction to change any decisions once a charge has reached its ultimate conclusion. | A judge has jurisdiction over an outstanding charge up to the point where the charge has been resolved by way of a stay, withdraw, dismissal, acquittal, or sentencing. The doctrine of ''functus officio'' refers to the principle that a court no longer has jurisdiction to change any decisions once a charge has reached its ultimate conclusion. | ||
In the case of a conviction being entered, the judicial role of the judge ends once a sentence has been imposed. After that, any changes to or issuance of orders are "ministerial or administrative act[s]" | In the case of a conviction being entered, the judicial role of the judge ends once a sentence has been imposed. After that, any changes to or issuance of orders are "ministerial or administrative act[s]."<ref> | ||
{{CanLIIRP|Melvin|1mp1t|2005 NSSC 368 (CanLII)|772 APR 38}}{{perNSSC|Murphy J}}{{atL|1mp1t|13}}<br> | |||
{{CanLIIR-N|Fuller|, [1969] 3 CCC 349}} | |||
</ref> | </ref> | ||
This common law rule states that the final judgement of a court cannot be reopened. <ref> | This common law rule states that the final judgement of a court cannot be reopened. <ref> | ||
originates from Re St. Nazaire Co | originates from {{UKCase|Re St. Nazaire Co| (1879), 12 Ch. D. 88}}<br> | ||
</ref> | </ref> | ||
The power to review a decision is transferred by the Judicature Act to the appellate division. | The power to review a decision is transferred by the Judicature Act to the appellate division. | ||
This rule only applies to judgments that have been drawn up, issued and entered.<ref> | This rule only applies to judgments that have been drawn up, issued and entered.<ref> | ||
Chandler v Alberta association of architects | {{supra1|Chandler v Alberta association of architects}}<br> | ||
{{CanLIIRP|Adams|1frdt|1995 CanLII 56 (SCC)|[1995] 4 SCR 707}}{{perSCC-H|Sopinka J}} {{atL|1frdt|29}} | |||
</ref> | </ref> | ||
The purpose of the doctrine is to provide finality of court judgments to allow for potential review by an appellate level of court.<ref> | The purpose of the doctrine is to provide finality of court judgments to allow for potential review by an appellate level of court.<ref> | ||
Doucet-Boudreau v Nova Scotia (Minister of Education) | {{CanLIIRPC|Doucet-Boudreau v Nova Scotia (Minister of Education)|4nx4|2003 SCC 62 (CanLII)|[2003] 3 SCR 3}}{{perSCC|Iacobucci and Arbour JJ}}{{atL|4nx4|79}}<br> | ||
</ref> | </ref> | ||
A court has limited power to reconsider or vary judgments so long as it is not functus.<ref> | A court has limited power to reconsider or vary judgments so long as it is not functus.<ref> | ||
{{supra1|Adams}} | {{supra1|Adams}} {{atL|1frdt|29}} | ||
</ref> | |||
; History | |||
The doctrine originates from 19th century english case law.<Ref> | |||
{{Supra1|Doucet-Boudreau}}{{AtL|4nx4|113}}<Br> | |||
{{UKCase|In re St. Nazaire Co.|(1879), 12 Ch. D. 88}} | |||
</ref> | </ref> | ||
| Line 34: | Line 41: | ||
===Timing of Conclusion=== | ===Timing of Conclusion=== | ||
It is said that a court is functus if and only if "the duties and functions of the [court’s] original commission have been fully accomplished"<ref> | It is said that a court is functus if and only if "the duties and functions of the [court’s] original commission have been fully accomplished"<ref> | ||
Jacobs Catalytic Ltd. vs International Brotherhood of Electrical Workers, Local #353 | {{CanLIIRPC|Jacobs Catalytic Ltd. vs International Brotherhood of Electrical Workers, Local #353|26ct9|2009 ONCA 749 (CanLII)|312 DLR (4th) 250}}{{perONCA|Epstein JA}}{{atL|26ct9|60}}</ref> | ||
A trial judge sitting without a jury is ''functus officio'' only after he has imposed his sentence.<ref> | A trial judge sitting without a jury is ''functus officio'' only after he has imposed his sentence.<ref> | ||
{{CanLIIRP|MacDonald|1mrt1|1991 CanLII 2424 (NSCA)| NSR (2d) 374}}{{perNSCA|Clarke CJ}} | |||
</ref> | </ref> | ||
In a judge-alone case, the judge becomes functus when he "endorses the indictment" | In a judge-alone case, the judge becomes functus when he "endorses the indictment."<ref> | ||
{{CanLIIRP|Malicia|1pd42|2006 CanLII 31804 (ON CA)|211 CCC (3d) 449}}{{perONCA| MacPherson JA}}{{atL|1pd42|16}}<br> | |||
</ref> | </ref> | ||
An intermittent jail sentence cannot be varied by the sentencing court to a non-intermittent.<ref> | An intermittent jail sentence cannot be varied by the sentencing court to a non-intermittent.<ref> | ||
{{CanLIIRP|Germaine|jskq7|1980 CanLII 4374 (NS CA)|39 NSR (2d) 177}}{{perNSCA-H|MacDonald JA}}{{at-|5}} - no jurisdiction to make intermittent to non-intermittent because not in text of 732<br> | |||
{{CanLIIR-N|Jules|, [1988] BCJ 1605}}<br> | |||
</ref> | </ref> | ||
There is some authority suggesting that the court may vary the entry and exit times of the intermittent sentence based on the power of the court to control its own process.<ref> | There is some authority suggesting that the court may vary the entry and exit times of the intermittent sentence based on the power of the court to control its own process.<ref> | ||
{{CanLIIRx|EK|frc2s|2012 BCPC 132 (CanLII)}}{{perBCPC|Gouge J}}<br> | |||
cf. | cf. {{CanLIIRx|Crocker|fs5sw|2012 CanLII 42379 (NL PC)}}{{perNLPC|Gorman J}}<br> | ||
</ref> | </ref> | ||
A judge is not '' | A judge is not ''functus'' simply by reason that he has given a decision for conviction. In certain circumstances, the judge may hear further evidence on an issue raised in trial after finding of guilt and has the option to reopen the case.<ref> | ||
e.g. | e.g. {{CanLIIRP|Boyne|fvgx3|2012 SKCA 124 (CanLII)| 293 CCC (3d) 304}}{{perSKCA| Ottenbreit JA}} - judge heard disclosure arguments after conviction at trial</ref> | ||
An error made in making a SOIRA order of an illegal duration cannot be amended unless it was the judge's manifest intention to make an order of a lawful duration in which case the court has inherent jurisdiction to amend.<ref> | An error made in making a SOIRA order of an illegal duration cannot be amended unless it was the judge's manifest intention to make an order of a lawful duration in which case the court has inherent jurisdiction to amend.<ref> | ||
{{CanLIIRP|DM|fvkkx|2013 ONSC 141 (CanLII)|[2013] OJ No 83 (SCJ)}}{{perONSC|Daley J}}<br> | |||
{{CanLIIRx|E(J)|fxd70|2013 ONCJ 247 (CanLII)}}{{perONCJ|Nataksuru J}}<br> | |||
</ref> | </ref> | ||
A court will not be ''functus'' up until the Court enters an official judgement into the rolls.<ref> | A court will not be ''functus'' up until the Court enters an official judgement into the rolls.<ref> | ||
{{CanLIIRP|Villeda|2f2f5|2010 ABCA 410 (CanLII)| 502 AR 78}}{{TheCourtABCA}} | |||
</ref> | </ref> | ||
Where a mandatory order such as a DNA or 109 Weapons order was omitted there is some suggestion that the court may go back and remedy the omission.<ref> | Where a mandatory order such as a DNA or 109 Weapons order was omitted there is some suggestion that the court may go back and remedy the omission.<ref> | ||
e.g. | e.g. {{CanLIIRx|Field|g1qhl|2013 NSPC 92 (CanLII)}}{{perNSPC|Scovil J}} | ||
</ref> | |||
; Appeal Court | |||
An appellate court is not functus until the formal judgement has been drawn up and entered.<Ref> | |||
{{CanLIIP|Smithen-Davis|jbvd0|2020 ONCA 759 (CanLII)}}{{perONCA-H|Watt JA}}{{AtL|jbvd0|40}}<br> | |||
</ref> | |||
The essential elements for an appellate court to be ''functus'' is:<Ref> | |||
{{ibid1|Smithen-Davis}}{{AtL|jbvd0|37}}<br> | |||
</ref> | |||
# the appeal has been argued and decided on the merits; | |||
# the court has issued reasons for its decision; and | |||
# a formal order has been entered or issued recording the disposition of the appeal. | |||
To prevent the appeal from being re-opened, the respondent must establish that there is "no reasonable prospect of success."<REf> | |||
{{supra1|Smithen-Davis}}{{AtL|jbvd0|68}} ("To succeed in quashing the respondent's application to re-open the appeal, the Crown must be able to establish on the record, as it currently exists, that the application to re-open has no reasonable prospect of success.") | |||
</ref> | |||
The court should consider as factors to re-open an appeal that has been decided:<ref> | |||
{{supra1|Smithen-Davis}}{{AtL|jbvd0|37}} | |||
</ref> | </ref> | ||
# the principle of finality; | |||
# the interests of justice including finality and the risk of a miscarriage of justice; | |||
# whether the applicant has established a clear and compelling case to justify a re-opening; | |||
# whether, in hearing and deciding the appeal on the merits, the court overlooked or misapprehended the evidence or an argument advanced by counsel; and | |||
# whether the error alleged concerns a significant aspect of the case. | |||
{{reflist|2}} | {{reflist|2}} | ||
==Exception== | ==Exception== | ||
There are exceptions to this rule. The court may still interfere with a prior decision where:<ref>Chandler v Alberta association of architects | There are exceptions to this rule. The court may still interfere with a prior decision where:<ref> | ||
{{CanLIIRPC|Chandler v Alberta association of architects|1ft28|1989 CanLII 41 (SCC)|[1989] 2 SCR 848}}{{perSCC-H|Sopinka J}}</ref> | |||
# where there had been a slip in drawing it up, and, | # where there had been a slip in drawing it up, and, | ||
# where there was an error in expressing the manifest intention of the court | # where there was an error in expressing the manifest intention of the court | ||
A error on the notation of a jury verdict by a judge may be corrected if spotted shortly after the verdict is rendered.<ref> | A error on the notation of a jury verdict by a judge may be corrected if spotted shortly after the verdict is rendered.<ref> | ||
{{CanLIIRP|Burke|51r4|2002 SCC 55 (CanLII)|[2002] 2 SCR 857}}{{perSCC-H|Major J}} | |||
</ref> | </ref> | ||
However where the error correction is "in reality" a "reconsideration of the verdict (or sentence}" then it is prohibited.<ref> | However where the error correction is "in reality" a "reconsideration of the verdict (or sentence}" then it is prohibited.<ref> | ||
{{CanLIIRP|Krouglov|h0nqm|2017 ONCA 197 (CanLII)|346 CCC (3d) 148}}{{perONCA| Epstein JA}}{{atL|h0nqm|40}}<br> | |||
</ref> | </ref> | ||
It is also in error "where issues of unfairness or injustice to the accused or reasonable apprehension of bias arise.”<ref> | It is also in error "where issues of unfairness or injustice to the accused or reasonable apprehension of bias arise.”<ref> | ||
{{ibid1|Krouglov}}{{ | {{ibid1|Krouglov}}{{atL|h0nqm|40}}<br> | ||
</ref> | </ref> | ||
; Administrative Amendments | ; Administrative Amendments | ||
The judge may make corrections to warrants of committal as an administrative act through the clerk of the court.<ref> | The judge may make corrections to warrants of committal as an administrative act through the clerk of the court.<ref> | ||
{{CanLIIRP|Melvin|1mp1t|2005 NSSC 368 (CanLII)|772 APR 38}}{{perNSSC|Murphy J}}{{atL|1mp1t|14}}<br> | |||
Ewing v Warden of Mission Institution | {{CanLIIRPC|Ewing v Warden of Mission Institution|1dctw|1994 CanLII 2390 (BCCA)|92 CCC (3d) 484}}{{perBCCA|Ryan JA}} - regarding warrants of committal | ||
</ref> | </ref> | ||
| Line 96: | Line 128: | ||
==See Also== | ==See Also== | ||
* [[Role of Trial Judge]] | * [[Role of the Trial Judge]] | ||
* [[Reasonable Apprehension of Bias]] | * [[Reasonable Apprehension of Bias]] | ||
Latest revision as of 14:19, 14 July 2024
General Principles
The doctrine of "functus officio" (Latin for “having performed his or her office”) determines when the judge no longer has authority or competence over a proceeding they have previously dealt with because their duties are fully accomplished.[1]
A judge has jurisdiction over an outstanding charge up to the point where the charge has been resolved by way of a stay, withdraw, dismissal, acquittal, or sentencing. The doctrine of functus officio refers to the principle that a court no longer has jurisdiction to change any decisions once a charge has reached its ultimate conclusion.
In the case of a conviction being entered, the judicial role of the judge ends once a sentence has been imposed. After that, any changes to or issuance of orders are "ministerial or administrative act[s]."[2]
This common law rule states that the final judgement of a court cannot be reopened. [3] The power to review a decision is transferred by the Judicature Act to the appellate division.
This rule only applies to judgments that have been drawn up, issued and entered.[4]
The purpose of the doctrine is to provide finality of court judgments to allow for potential review by an appellate level of court.[5]
A court has limited power to reconsider or vary judgments so long as it is not functus.[6]
- History
The doctrine originates from 19th century english case law.[7]
- ↑
R v E(J), 2013 ONCJ 247 (CanLII), per Nakatsuru J, at para 17
Chandler v Alberta association of architects, 1989 CanLII 41 (SCC), [1989] 2 SCR 848, per Sopinka J, at para 19 - ↑
R v Melvin, 2005 NSSC 368 (CanLII), 772 APR 38, per Murphy J, at para 13
R v Fuller, [1969] 3 CCC 349(*no CanLII links) - ↑
originates from Re St. Nazaire Co (1879), 12 Ch. D. 88 (UK)
- ↑
Chandler v Alberta association of architects, supra
R v Adams, 1995 CanLII 56 (SCC), [1995] 4 SCR 707, per Sopinka J , at para 29 - ↑
Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 (CanLII), [2003] 3 SCR 3, per Iacobucci and Arbour JJ, at para 79
- ↑ Adams, supra , at para 29
- ↑
Doucet-Boudreau, supra, at para 113
In re St. Nazaire Co. (1879), 12 Ch. D. 88 (UK)
Timing of Conclusion
It is said that a court is functus if and only if "the duties and functions of the [court’s] original commission have been fully accomplished"[1]
A trial judge sitting without a jury is functus officio only after he has imposed his sentence.[2]
In a judge-alone case, the judge becomes functus when he "endorses the indictment."[3]
An intermittent jail sentence cannot be varied by the sentencing court to a non-intermittent.[4] There is some authority suggesting that the court may vary the entry and exit times of the intermittent sentence based on the power of the court to control its own process.[5]
A judge is not functus simply by reason that he has given a decision for conviction. In certain circumstances, the judge may hear further evidence on an issue raised in trial after finding of guilt and has the option to reopen the case.[6]
An error made in making a SOIRA order of an illegal duration cannot be amended unless it was the judge's manifest intention to make an order of a lawful duration in which case the court has inherent jurisdiction to amend.[7]
A court will not be functus up until the Court enters an official judgement into the rolls.[8]
Where a mandatory order such as a DNA or 109 Weapons order was omitted there is some suggestion that the court may go back and remedy the omission.[9]
- Appeal Court
An appellate court is not functus until the formal judgement has been drawn up and entered.[10] The essential elements for an appellate court to be functus is:[11]
- the appeal has been argued and decided on the merits;
- the court has issued reasons for its decision; and
- a formal order has been entered or issued recording the disposition of the appeal.
To prevent the appeal from being re-opened, the respondent must establish that there is "no reasonable prospect of success."[12]
The court should consider as factors to re-open an appeal that has been decided:[13]
- the principle of finality;
- the interests of justice including finality and the risk of a miscarriage of justice;
- whether the applicant has established a clear and compelling case to justify a re-opening;
- whether, in hearing and deciding the appeal on the merits, the court overlooked or misapprehended the evidence or an argument advanced by counsel; and
- whether the error alleged concerns a significant aspect of the case.
- ↑ Jacobs Catalytic Ltd. vs International Brotherhood of Electrical Workers, Local #353, 2009 ONCA 749 (CanLII), 312 DLR (4th) 250, per Epstein JA, at para 60
- ↑ R v MacDonald, 1991 CanLII 2424 (NSCA), NSR (2d) 374, per Clarke CJ
- ↑
R v Malicia, 2006 CanLII 31804 (ON CA), 211 CCC (3d) 449, per MacPherson JA, at para 16
- ↑
R v Germaine, 1980 CanLII 4374 (NS CA), 39 NSR (2d) 177, per MacDonald JA, at para 5 - no jurisdiction to make intermittent to non-intermittent because not in text of 732
R v Jules, [1988] BCJ 1605(*no CanLII links)
- ↑
R v EK, 2012 BCPC 132 (CanLII), per Gouge J
cf. R v Crocker, 2012 CanLII 42379 (NL PC), per Gorman J
- ↑ e.g. R v Boyne, 2012 SKCA 124 (CanLII), 293 CCC (3d) 304, per Ottenbreit JA - judge heard disclosure arguments after conviction at trial
- ↑
R v DM, 2013 ONSC 141 (CanLII), [2013] OJ No 83 (SCJ), per Daley J
R v E(J), 2013 ONCJ 247 (CanLII), per Nataksuru J
- ↑ R v Villeda, 2010 ABCA 410 (CanLII), 502 AR 78, per curiam
- ↑ e.g. R v Field, 2013 NSPC 92 (CanLII), per Scovil J
- ↑
jbvd0, 2020 ONCA 759 (CanLII), per Watt JA, at para 40
- ↑
Smithen-Davis, ibid., at para 37
- ↑ Smithen-Davis, supra, at para 68 ("To succeed in quashing the respondent's application to re-open the appeal, the Crown must be able to establish on the record, as it currently exists, that the application to re-open has no reasonable prospect of success.")
- ↑ Smithen-Davis, supra, at para 37
Exception
There are exceptions to this rule. The court may still interfere with a prior decision where:[1]
- where there had been a slip in drawing it up, and,
- where there was an error in expressing the manifest intention of the court
A error on the notation of a jury verdict by a judge may be corrected if spotted shortly after the verdict is rendered.[2]
However where the error correction is "in reality" a "reconsideration of the verdict (or sentence}" then it is prohibited.[3] It is also in error "where issues of unfairness or injustice to the accused or reasonable apprehension of bias arise.”[4]
- Administrative Amendments
The judge may make corrections to warrants of committal as an administrative act through the clerk of the court.[5]
- ↑ Chandler v Alberta association of architects, 1989 CanLII 41 (SCC), [1989] 2 SCR 848, per Sopinka J
- ↑ R v Burke, 2002 SCC 55 (CanLII), [2002] 2 SCR 857, per Major J
- ↑
R v Krouglov, 2017 ONCA 197 (CanLII), 346 CCC (3d) 148, per Epstein JA, at para 40
- ↑
Krouglov, ibid., at para 40
- ↑
R v Melvin, 2005 NSSC 368 (CanLII), 772 APR 38, per Murphy J, at para 14
Ewing v Warden of Mission Institution, 1994 CanLII 2390 (BCCA), 92 CCC (3d) 484, per Ryan JA - regarding warrants of committal