Functus Officio

R. v. Malicia, 2006 CanLII 31804 (ON CA)

C. Issues

[12] There are two issues on the appeal:

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

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

D. Analysis

(1) The functus officio issue

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

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

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

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

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

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

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

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