Section 3.1 and the Effect of Judicial Acts: Episode Four Ideablawg Podcast on the Criminal Code of Canada

The following is the text version of Episode Four of the Ideablawg Podcasts on the Criminal Code of Canada. At the bottom of the text is the actual podcast. However, I do encourage you to read the text as well and follow the hyperlinks to the cases and other websites to which I refer. Enjoy!

Welcome to Episode Four of the Ideablawg Podcasts on the Criminal Code of Canada. My name is Lisa Silver and today we are discussing section 3.1 of the Code, which is entitled “Effect of Judicial Acts.” When I started researching this seemingly innocuous procedure section I uncovered some extremely interesting connections that I am really excited to share with you. So let’s dig deep into section 3.1!

First, I want to set the stage, so to speak, on this section and there are many ways to do this. As I already said, this section is a procedure section. What does that mean? A procedure section involves the process in criminal law as opposed to a substantive law section, which sets out the essential elements of criminal offences or the substance of criminal law.  Criminal procedure is just a set of rules on how that substantive law is enforced and implemented through the criminal justice system. I will reserve a fuller explanation for my blog “basics of Canadian criminal law” series – coming soon.  So, section 3.1 involves the rules of criminal process.

The placement of s. 3.1 is also of importance. Last podcast, when I introduced s. 3.1 as my next podcast, I did so by identifying the section with its place in the Code. I said that s. 3.1 was the first section to come under Part I of the Code, known as the “General” Part. Oddly enough, when I looked at my annotated Criminal Code, being Martin’s Annual Criminal Code, section 3.1 is not placed under Part 1 General Part but is found under the previous interpretation segment discussed in the last three previous podcasts! To make sure I was not mistaken in my podcast placement, I checked the actual statute as found on both the Department of Justice website and canlii (Canadian Legal Information Institute) website and found that s. 3.1 is found under the General Part as I indicated.

So is s. 3.1 an interpretation section or is it a General Part section? With all due respect to my favourite annotated Code, I submit section 3.1 properly comes under the General Part as a matter of process as opposed to a matter of interpretation. Also, Martin’s rival, Tremeer’s Criminal Code, which my husband favours, places section 3.1 as the statute does, under the General Part I. Now that would make a good future blog discussion on the various Criminal Codes, both annotated and not, and their history. Now back to this podcast.

You may wonder how there can be such a discrepancy. I can only speculate but as this section is a fairly recent amendment to the Code, from 2002, the publishers of Martin’s, Canada Law Book, simply placed it after section 3 as opposed to separating the two sections by placing them under different segments. Logically s. 3.1 should come after section 3 but really when the government amends the Code there is often no rhyme or reason to the numbering, as we will see. I mean, where else could they have put this section? I’ll have to think about that.

So we have physically placed the section and now I will read it to you:

Unless otherwise provided or ordered, anything done by a court, justice or judge is effective from the moment it is done, whether or not it is reduced to writing.

What exactly is this section doing? It is in essence creating a presumption. A presumption, which I will later argue is contrary to the common law. This section is telling us that when a court or a specific judicial officer does something – any action such as an order – that act is effective immediately, no matter how it is communicated. So, the presumption is for immediacy. The presumption is however rebuttable, meaning that the court or judge when he does the act can say the act does not take effect immediately. However, if the court or judge says nothing about the time of effectiveness, the presumption is for immediacy.

Okay. That makes sense. When someone does something they mean it to be done asap unless they indicate otherwise – brings to mind Yul Brynner as Ramses II in the Ten Commandments when he says “so let it be written, so let it be done.” Of course, this is as opposed to Yul as the King of Siam in the King and I where he adds onto all of his orders “etc., etc., etc.”

It makes sense to be sure but why did the government add this and why did they only add this in 2002?  In order to find out why they added this section, we turn to the Parliamentary records. This section was part of an omnibus Bill C-15 also known as the Criminal Law Amendment Act of 2001, brought in by the then Liberal Government and sponsored by the then Minister of Justice and Attorney-General, the Honourable Anne McLellan. It is amusing and ironic to read the debate on this bill as the opposition, namely the then Canadian Alliance through Vic Toews as the Justice critic, bash the bill because of its omnibus nature. Agreed the bill is an odd mix of Criminal Code amendments, everything from procedural changes such as 3.1 to “animal cruelty, child pornography, and firearms,” but this practice of kitchen-sink amending appears to be pro forma today.

In McLellan’s speech to kick-start the debate on the second reading of the Bill, she stated:

Let me turn briefly to the area of criminal procedure reform. The Department of Justice has been working closely with the provinces and territories on criminal procedure reform for some years. This work is now in its third phase. The objectives of phase three are to simplify trial procedure, modernize the criminal justice system and enhance its efficiency through the increased use of technology, better protect victims and witnesses in criminal trials, and provide speedy trials in accordance with charter requirements. We are trying to bring criminal procedure into the 21st century. This phase reflects our efforts to modernize our procedure without in any way reducing the measure of justice provided by the system. As I said at the outset, the provinces and territories support these reforms. As they are responsible for the administration of justice, I believe that we should do our best to give them the tools they need to ensure the efficient and effective operation of the criminal justice system.

It appears then the amendment was for efficiency and modernization, particularly as a result of the increased use of technology. This is consistent with the legislative history of the amendments, which gives the “key thrust” of the bill is to provide for the use of electronic documents. In terms of section 3.1, the document states:

As a general matter, clause 2 of the bill ensures the legality and immediate effectiveness of judicial acts from the moment they are done, whether or not they are reduced to writing.  This provision ensures the validity of judicial acts made in a number of circumstances where hard-copy documentary proof of the act is not immediately generated.   Such situations could include judicial decisions in the form of orders or warrants which may be issued electronically or orally by telephone or some other form of audio or audio-visual communications link.

There may be another reason for this change as well. Such a rule, albeit worded differently, is found in some provincial rules of court. Each court level has rules to assist them in the nuts and bolts of the organization and maintenance of the courts as well as procedure. Criminal procedure, as a result of s. 91(27) the Constitution Act, 1867, is within the power of Parliament, while s. 92(14) gives the provinces the power to administer justice in the province through rules on civil procedure and the “constitution, maintenance, and organization” of the civil and criminal courts. In terms of civil procedure each provinces rules of court apply. There are also criminal rules, which tend to the organizational side, leaving the procedure, as required by the Constitution Act, with the feds.

Just looking at the Alberta Rules of Court, which were completely overhauled in 2010, rule 9.6 states that the effective date of “every judgment and every order” is on the “date of pronouncement” unless the court orders otherwise. It is similar to section 3.1 yet different. The civil rule is restricted to judgments and orders and to “pronouncements.” According to various dictionaries, “pronouncement” means a formal declaration, usually a judgment. Of course, the Criminal Code section applies to any act of the court and is therefore much broader.

Now we understand why the government decided to put this section into the Code but what is the effect of this effect of judicial acts? For that we are going to look at some case law and the concept of functus. The word functus is from the Latin word fungor, which means to execute or administer or to discharge. When used in its legal sense, it refers to the phrase functus officio, when a judge has exhausted his or her authority over the matter and can no longer alter his or her decision. It typically applies to final decisions of the court. A judge would be functus officio when he or she acquits an accused of a criminal offence. That finding is final, in the sense, that judge no longer has any power over the accused and the case. In other words, the judge cannot re-open the case or amend a final decision unless there has been an administrative “slip” in the decision or “error in expressing the manifest intention of the court.” Instead, there are appellate remedies but the trial judge is now functus and out of the game.

The concept or doctrine of functus officio originally comes from English common law on the premise that we need some finality in court in order for parties to an action to have finality as well. However, this common law rule applied to the final formal judgment and did not apply to any and all acts done by the judge. In fact the common law rule made allowances for informal reasons that may be changed. That is still the law in England, where there is “within the powers of a judge to reconsider his or her decision at any time before it is entered and perfected.” Section 3.1 has now changed the common law. This was recognized in 2004 in the Alberta Queen’s Bench decision in R. v. Harris.

Next podcast, we will be dealing with section 4, which can be viewed as an omnibus section of unrelated statements regarding interpretation of the application of criminal law. It does sound as if this section should be in that interpretation segment but we will see that this section goes further than interpretation to position all users of the Criminal Code on common ground. In this way, this section truly deals with generalities and thus properly in the General Part of the Code.

Episode Four Ideablawg Podcast on Section 3.1 and the effect of Judicial Acts