At What Point is a Court’s Authority Spent?--The Doctrine of Functus Officio

Functus officio is a Latin phrase which means “having performed his or her office.” A court that is functus officio therefore has no further authority as its duties have been accomplished.

It is clear that the principle of functus officio exists to allow finality of judgments from courts which are subject to appeal.  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.

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

Jury Trials

The power or duty of the trial judge to intervene when a jury verdict is returned and to make inquiries relating to the true nature of the verdict is one to be exercised prior to the discharge of the jury and "before it is too late". It will be too late when the jury is discharged and the court created for the trial of the accused has been dissolved.

Head v. The Queen, [1986] 2 SCR 684, 1986 CanLII 8 (SCC), at para 5.

Judge Alone Trials

Where the Accused is Acquitted

Where the accused is acquitted the trial judge will have exhausted his jurisdiction when the accused is discharged and the trial judge cannot then reopen the case.

Following a Finding of Guilt

Following a finding of guilt, the judge's duties are not spent until after a sentence is imposed. The trial judge can, in exceptional circumstances and before the imposition of the sentence, reopen the case to permit the accused to tender further evidence.

Head v. The Queen,, at para 25.

A trial judge exercising the functions of both judge and jury in a criminal case is not functus following a finding of guilt until he or she has imposed sentence or otherwise finally disposed of the case.

 R. v. Sualim, 2017 ONCA 178, at para 29; R. v. Lessard (1977), 30 C.C.C. (2d) 70 (Ont. C.A.), at paras. 10-12; R. v. Griffith, 2013 ONCA 510, 116 O.R. (3d) 561, at para. 12.

The trial judge possessed jurisdiction to reopen the appellant’s NCR application after she has rendered a verdict but before the conclusion of sentencing.

R. v. Sualim, 2017 ONCA 178.

The exception to the functus officio doctrine

In Head, the Supreme Court of Canada enunciated a bright line rule -- if the jury has been discharged, the trial judge is functus; the judge cannot inquire into or change the jury's verdict.  

The rule prohibiting changes to the verdict after the jury has been discharged was relaxed in R. v. Burke, 2002 SCC 55 (CanLII):

Correction or amendment will be permitted after the indictment has been signed, as long as it does not amount to reconsideration and alteration of the original decision.

R. v. Malacia, 2006 CanLII 31804 (ON CA), [2006] O.J. No. 3676 (C.A.) extended this exception to judge alone trials: 

 A judge in a criminal trial has the power to amend a decision after signing the indictment where the amendment does not amount to a reconsideration and alteration of the decision.

In R. v. Malicia, the sentencing judge imposed sentence (and endorsed the indictment and signed the warrant of committal) but failed to state whether the sentence imposed ran consecutive to or concurrently with the sentence the accused was already serving.  The Court of Appeal for Ontario held that the judge did not err when, days later, she clarified that the sentence she had imposed on the accused was consecutive to the sentence he was already serving.  (The warrant of committal was amended four days after sentence was imposed to reflect this understanding). The judge’s elaboration after sentence had been imposed simply confirmed and clarified an aspect of that sentence, consistent with the trial judge's intention, the clear expectations of counsel, and the nature of the offence and the offender before the court.