Ideablawg’s Weekly Connections: The Olympics Edition

Of course, this week is all about the Olympics and when sport and law sometimes intersect.

1.   The Dispute: How does the IOC (International Olympic Committee) decide which sports should be included in the games? Although the Olympics have come a long way since the Ancient Greeks competed in a handful of events, there are a number of sports not included in the games and a few, which have been dropped over the years. Baseball and softball were not on the roster for the London Olympics but considering Tokyo will be hosting in 2020, this may change. Wrestling was off and then on again.  The Olympic rules require all sports to be reviewed after every Olympics with sports to be added or dropped by a two-thirds majority vote. There are, of course, those sports, which have been added to the Olympic lineup, such as golf, rugby (reappearing) and kitesurfing (new) in the 2016 Olympics.   At Sochi there were new events such as team figure skating and the snowboard and ski slopestyle.  Women’s ski jump was a new event this year but not without some controversy. The quest for gender equality in the ski jump event evolved over time, culminating in a legal challenge by high-ranking women ski jumpers before the 2010 Vancouver Olympics and Paralympics. The British Columbia Court of Appeal, in dismissing the women’s case, found that the Charter could not apply to the selection of the 2010 events as and that even if the Charter did apply there was no breach of equality rights under s.15(1). Although, the question of whether VANOC or the Vancouver Olympic Committee was a government entity was easily answered in the negative, however the more difficult question was whether in organizing and staging the event VANOC was carrying out governmental activities. Even though there was governmental support for the Olympics, the Court found that this fact was not decisive on the issue of selection of Olympic events. In deed, neither VANOC nor the governmental agencies supporting the host City were involved in the selection of events. Thus, it could not be said that VANOC was the decision-maker and therefore the Charter could not apply.   Even so, the Court considered the reach of the equality s.15. In finding there was no breach the Court stated, “section 15(1) sets out constitutional guarantees of equality that are broad in scope, but it does not constitute a general guarantee of equality.  Rather, the section guarantees equality only in the way that the law affects individuals.  Where the law is not implicated in discrimination or inequality, is not engaged.” As the law or statutory authority was not engaged by the right or lack thereof to compete in the Olympics, s. 15 was not available and was not breached. A leave application to the Supreme Court of Canada was dismissed with costs. In the end, women’s ski jumping was approved for inclusion in Sochi. Unfortunately, none of the women who brought the court case won a medal in the sport, but what they did, in the end, win a victory for the sport.

2.   The Crime: Remember when Olympic scandals read like soap operas? If your memory needs refreshing, take a backward glance at the Tonya Harding – Nancy Kerrigan incident, when Kerrigan was attacked by a hammer to her knees, before the 1994 Olympics at the Women’s Championship and could not compete. That year Harding won and then lost as it was revealed that she was involved in the conspiracy to assault Kerrigan. But don’t worry, Nancy Kerrigan went on to perform in the Ice Capades while Tonya is now a professional boxer. Irony on ice?

3.   The Sabotage: What is it about skates? The Kerrigan/Harding incident did not stop some members of the American short track team from sabotaging Canadian Olympic gold medalist Oliver Jean’s skates in 2011. Despite this admission, the skater who did the deed accuses the coach for pressuring him to do it. The ISU or International Skating Union’s disciplinary commission considered the case last year and laid the blame for the incident squarely on the coach. This year at Sochi the Canadians were careful to check their skates before competing.

4.   The Dissent: Controversy swirled at the Olympics over the lack of gay rights in the host country and the lack of desire to meet with the Vancouver envoy supporting gay rights. But dissent escalated even further when Pussy Riot, the female punk rock activists, who were jailed last year after performing a “blasphemous” song in the Moscow Cathedral, were arrested but released in Sochi and then whipped by Cossacks – yes, there are still Cossacks. Read about their angry music video on the debacle entitled "Putin Will Teach You To Love Your Country" here. 

Ideablawg’s Weekly Connections: Peace And Violence

This past week there were some defining moments in history all in a background of love, war, violence, and peace.

1. All You Need Is Love: This week we celebrated the anniversary of The Beatles on the Ed Sullivan Show. In this moment of reflection, let us consider the various ways the boys engaged law and authority. Consider Paul’s marijuana as found by the Japanese authorities in 1980 or John’s deportation battle in the USA. If you want something more uplifting – recall John and Yoko’s bed-in at Montreal’s Queen Elizabeth Hotel. Here is a great legal connection – Allan Rock, lawyer and politician (now President of the University of Ottawa) – managed to convince the couple to go from Montreal to Ottawa in 1969 when he was President of the University of Ottawa Students’ Union. Here is a personal connection – Allan Rock taught me Civil Procedure II while I was at Osgoode Hall Law School. Only two degrees of separation between John Lennon and me!

2. War: Sixty-nine years after the end of World War II and we are still learning something new about the events of the War years. The Monuments Men, a movie that opened this past week, enlightens us on how art and architecture was saved or not saved during the war. I also recommend reading the book but if you do, read it with an iPad nearby to reference not only the art pieces but also the places in which the art was found. This further connects to the ongoing struggle for the return of art stolen during the war. I have written a previous blog on the issue. This past week, Germany considered extending the law allowing Jewish families to recover this art as more caches of such art are being found.

3. Peace: One of my personal heroes is Richard Feynman – the Nobel Prize winner in Physics who passed away 26 years ago on February 14, 1988. Not only was Feynman an engaging man and a tremendous mentor and teacher but he was also a clear thinker with a heart of gold. He’s the one who dropped the O-rings into the ice-cold water to demonstrate how the Challenger disaster accident really occurred. He also ended his minority report on the disaster by stating “For a successful technology, reality must take precedence over public relations, for Nature cannot be fooled.” A dramatization of these events aired on the Science Channel last year with William Hurt playing Feynman. Having read all books Feynman, I recommend the autobiographical What Do You Care What People Think? and his lectures on Physics. Although he was one of the young physicist working on the Manhattan project and was at Los Alamos during the War, he had a very strong reaction to the dropping of the bomb on Hiroshima. I strongly recommend watching his interviews on the subject here.

4. Violence: Is the independence of the judiciary something to fight about? In Turkey, a fistfight broke out over the government’s plan to restrain the judiciary. Certainly, this undemocratic move has political overtones in a country rife with such difficulties. This latest move is unsurprising considering the government’s past treatment of free thinkers such as Orhan Pamuk, the Nobel Prize recipient in Literature, who was charged with a criminal offence after speaking out on the Armenian genocide. Ultimately, the government dropped the charges but certainly this was a precursor to the events of Taksim Square and to the latest round of violence. Orhan Pamuk is another one of my role models – read Snow and My Name Is Red to experience Pamuk’s lyric and unforgettable prose.

Section 4(3) Possession – An Example of Judge-Made Law: Episode Six of the Ideablawg Podcasts on the Criminal Code of Canada

I ended last episode with a bit of a teaser: I said in this episode we would explore the old adage: possession is nine-tenths of the law. Well, sorry to say, this is not the law, particularly in the criminal law meaning of “possession.” What we will explore in this podcast is what section 4(3) tells us about the meaning of “possession” and what it does not.

Once again, we will encounter the difficulty of using the Criminal Code as an inclusive repository of criminal offences. According to section 9 of the Code, which we will be discussing on these podcasts very soon, all crimes in Canada are in the Code, except for the common law crime of contempt of court. However, although all crimes are found under a particular section of the Code, on the plain reading of a particular section one cannot be certain of the requisite elements. Sometimes, we need to look elsewhere in the Code for further illumination, such as s. 2 definitions or the definitions found under the relevant Part.

More often, we need to look at case law for the answer. This reality suggests the concept in s.19 of the Code, that ignorance of the law is no excuse, is a bit of a joke, as certainly the average reasonable person, who has no legal training, could not access with certainty the requirements for each crime. This is even more evident when case law does not just define certain words used in a section but actually reads into the section additional words.

This is the case with the s.4 (3) meaning of “possession.” This section is a perfect example of how the Courts have restricted or narrowed the prohibited act of a crime, as originally conceived by Parliament, through legal interpretation. Of course the courts do not do this whimsically. There is a method to their madness and the modifications ensure the integrity of the criminal law as a whole. In the case of possession the added requirements ensure the law is not overly broad and does not capture those whom we would consider legally and perhaps, although not necessarily, even morally innocent. The big puzzle is why Parliament doesn’t take the hint and, in the next round of omnibus Criminal Code changes, amend the section accordingly. To not do this smacks of “ostrich-in-the-sand” kind of mentality. Or better yet, is to liken the attitude to the Ravenous Bugblatter Beast of Traal from the Hitchhiker’s Guide To The Galaxy– what you can’t see isn’t there.

In any event, with this lengthy introductory rant, let’s look at section 4 (3), which reads as follows:

For the purposes of this Act,(a) a person has anything in possession when he has it in his personal possession or knowingly(i) has it in the actual possession or custody of another person, or(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

What we really want to focus on is the concept of joint or constructive possession under s. 4 (3)(b), which requires “knowledge and consent.” The difficulty with this definition started with the Alberta case, from the sixties, Marshall.  The teenager, Daniel Marshall hitched a ride with some friends from B.C. intending to make his way home to Alberta. During the ride, the other teens smoked a hookah pipe filled with marijuana, which Marshall passed along but did not partake. When the Alberta police stopped the car for a broken headlamp, billows of marijuana smoke drifted out of the open windows. Everyone was charged with joint possession of marijuana on the basis of s. 4(3). Marshall was convicted at trial on the basis there was knowledge and consent per the wording of the section. The Alberta Supreme Court, Appellate Division, as it then was, disagreed, finding that consent required more than the mere presence of Marshall in the car and that although he consented to be in the car, that did not mean he consented to the presence of the drugs. Furthermore, the court, in discussing whether or not Marshall was a party to the possession, noted that Marshall had no power to control the people with the drugs nor was he the driver of the car.

This control aspect was applied directly to the meaning of possession in the 1983 Supreme Court of Canada Terrence case. In this case, the issue was possession of a stolen vehicle and Terrence’s presence in the vehicle as a mere passenger. In referring to and approving of the lower Court of Appeal for Ontario decision in the case, the SCC agreed that an element of control was required for proof of possession. In their view, if control was required for proof of being a party to an offence, then, similarly, control was required for joint possession, which was also a mechanism for deeming multiple parties legally responsible for a crime.

This case law restricting the meaning of joint or constructive possession under s. 4(3) does make sense and does ensure that responsibility is properly meted out. However, the concept can be a bit of a stretch. Take for example the 2001 Mraz case from the Saskatchewan Provincial Court wherein the accused was acquitted of possession of marijuana. There the judge found there was no control, even though the accused shared a “joint,” one of the many euphemisms for a rolled marijuana cigarette and apropos here as we are talking about joint possession, with his co-accused. There was no control because the co-accused had full control of the bagful of marijuana from which the previously smoked “joint” came. There was some dispute as to where the bag was found, as the accused believed his co-accused kept it on his person, while the bag was actually found in the car under the seat.

As a quick aside, this leads me to consider the origin of the slang “joint” used to describe a rolled marijuana cigarette. Although I am loath to use Wikipedia, the webpage on the etymology of the slang “joint” seems credible. “Joint,” which is derived from the French word “joined” was used in the 1800s to refer to an annex to a main room. The term picked up an unsavoury flavour when in the late 1800s it was then used in reference to a run-down bar or even an opium den. In the thirties the slang was used in reference to a heroin hypodermic needle because the needle was often shared. The same reasoning is applied to the use of the word “joint” for a marijuana cigarette, as it too, as seen in the cases of Marshall and Mraz, is usually shared.

Thank you for joining me. In the next podcast we will complete our discussion of section 4 when we look at the three “esses;” subjects, sexual intercourse, and service.

Episode Six Ideablawg Podcasts on the Criminal Code of Canada Section 4(3) Possession as an Example of Judge-Made Law

Section 4 Of Cabbages and Kings and Stamps!: Episode Five of the Ideablawg Podcast on the Criminal Code of Canada

The following is the text of episode 5 of the Ideablawg Podcasts on the Criminal Code  of Canada. The podcast is found at the end of the text. Enjoy!

"The time has come," the Walrus said,
 "To talk of many things:
 Of shoes--and ships--and sealing-wax--
Of cabbages--and kings--
And why the sea is boiling hot--
And whether pigs have wings."

- Lewis Carroll from The Walrus and The Carpenter

Welcome to Episode Five of the Ideablawg Podcasts on the Criminal Code of Canada. Today’s episode is a kickoff as we begin to tackle the potpourri we call section 4 – a housekeeping section, which tidies up the various loose ends of criminal law. It brings to mind Lewis Carroll’s poem The Walrus and the Carpenter and particularly the excerpt I quoted at the start of the podcast. But instead of cabbages and kings, we will chat about postcards, stamps, valuable securities, chattels, possession and joint possession, expressions, sexual intercourse, service and notification, and attendance.

But no oysters – theft of oyster beds will come much later down the road – probably next year - when we discuss section 323.

The task today will involve a discussion of section 4 in subsection (1) and (2), and remember we are in Part I of the Code called the General Part. These subsections, as I said, tidy up some of the definitions we encountered in s. 2. Section 4 (1) reads as follows:

For the purposes of this Act, a postal card or stamp referred to in paragraph (c) of the definition “property” in section 2 shall be deemed to be a chattel and to be equal in value to the amount of the postage, rate or duty expressed on its face.

We see a few words in this paragraph that call out for definition. We are told the section is referring to the definition of “property” under that section 2 definition, but the paragraph really begs the question because now of course we also want to know the definition of “postal card” and “stamp” and “chattel.”

First let’s take a look at s. 2(c) “property.” It says:

any postal card, postage stamp or other stamp issued or prepared for issue under the authority of Parliament or the legislature of a province for the payment to the Crown or a corporate body of any fee, rate or duty, whether or not it is in the possession of the Crown or of any person;

That is of course important to know because the term “property” is used throughout the Code. Indeed a simple word search reveals that the word “property” appears in 161 sections of the Code. Take note that the word “property” is not found under s.322, which is the offence of theft, as the crime involves the taking of “anything, whether animate or inanimate.” Property, as defined under s. 2 is much more restrictive, as the definition in (a) and (b) actually refers to itself - “property.” It is only (c) which gives a concrete example of what property may be – postal cards, postage stamp or other stamp issued by the federal or provincial governments.

However, a word of caution: case law has considered the seemingly broad actus reus or prohibited act in the theft section and has overlaid a concept of property. Thus, in the 1988 Supreme Court of Canada Stewart case, confidential information was not considered “anything” in accordance with the theft section. Even so, as explained in the SCC 1992 Milne case, the criminal law concept of property does differ from the civil law, just as the purpose of criminal law differs from the purpose of civil law. More on this when we get to that section.

So s. 4(1) is adding onto that (c) definition – clarifying it for us – by advising us that “postal cards, postage stamp or other stamp” is a chattel with a value equal to the amount expressed on its face. So if you have a stamp for 5 cents its value is 5 cents. Now, that may be a problem as I now purchase stamps with no number value but with a “p” embossed on a nice red maple leaf placed in the stamp’s corner, which, so the post office assures me, means the stamp is “permanent” and can be used anytime as it is worth the going rate no matter when it is used or when it was bought. The other problem is that a 5 cent stamp may actually be a rare stamp and worth much more than the face value. The offender may be charged with theft but which punishment section applies under s. 334? Is it theft of property valued over $5000, which is an indictable offence and punishable by a maximum of ten years? Or is the stamp valued under $5000, which is a summary conviction offence with a maximum of eighteen months imprisonment?

To answer that question, we need to look at the definition of “stamp.” “Stamp” is only defined under the counterfeit stamp section 376 as “an impressed or adhesive stamp used for the purpose of revenue by the government of Canada or a province or by the government of a state other than Canada.” Not a very helpful definition for the police who want to charge the thief with the theft of the priceless 5 cent stamp, which is worth over $5000 dollars.

The next question is: what is a chattel and why does this section 4(1) insist on deeming the post card and/or stamp as one?  A chattel is an item of personal property, either animate or inanimate, which is moveable as opposed to real property, which includes land and improvements, which is not moveable. For example, when you purchase a house, which is real property, the items inside the house tend to be chattels, like the furniture, unless it is affixed to the house like the glass fireplace doors. Those items affixed to the real property stay and those, which are moveable, the chattels, usually go with the seller unless the item is specifically referred to in the purchase agreement. What does this mean for our postal card and stamp? It means these items are personal property even though they are government issued. Also they are moveable and thus chattels.

Onto s. 4(2) for which the marginal note explains is on “value of valuable security.” This subsection helps us determine the value of a valuable security, where value is material, in the context of the Criminal Code by expanding on the definition as found under section 2. So the purpose of this subsection is similar to subsection (1). Before I read this subsection, let’s go to the section 2 definition that reads as follows:

“valuable security” includes

            (a) an order, exchequer acquittance or other security that entitles or evidences the title of any perso

(i) to a share or interest in a public stock or fund or in any fund of a body corporate, company or society, or

(ii) to a deposit in a financial institution,

(b) any debenture, deed, bond, bill, note, warrant, order or other security for money or for payment of money,

(c) a document of title to lands or goods wherever situated,

(d) a stamp or writing that secures or evidences title to or an interest in a chattel personal, or that evidences delivery of a chattel personal, and

(e) a release, receipt, discharge or other instrument evidencing payment of money;

 Section 4 (2) further defines “valuable security” as:

  (a) where the valuable security is one mentioned in paragraph (a) or (b) of the definition “valuable security” in section 2, the value is the value of the share, interest, deposit or unpaid money, as the case may be, that is secured by the valuable security; 

(b) where the valuable security is one mentioned in paragraph (c) or (d) of the definition “valuable security” in section 2, the value is the value of the lands, goods, chattel personal or interest in the chattel personal, as the case may be; and 

(c) where the valuable security is one mentioned in paragraph (e) of the definition “valuable security” in section 2, the value is the amount of money that has been paid.

How ironic that the purpose of this subsection is to clarify the intrinsic value of the security as opposed to subsection 1, which speaks only of face value. Of course this kind of clarity is required as the valuable security may be a deed to property, which is a document showing land ownership, and is therefore merely a representation of the actual property. Thus, the deed itself is a piece of paper with very little value but it represents much greater value in accordance with the value of the actual land.

For those of you wondering what “exchequer acquittance” means, the term comes to us from English law, in fact I found a similar definition of “valuable security” in the Irish Larceny Act 1861. The “Exchequer” is the Royal Treasury. Originally, the Exchequer was also a Court of Law concerned with revenue, like our Tax Court, but later merged with the then King’s Bench. As a government department, the Exchequer was in charge of the national revenue of the United Kingdom. An “acquittance” is a document, which acquits or discharges an obligation and acts as a “receipt in full.” So an “exchequer acquittance” is a receipt for payment of revenue to the government. Clearly, the relevancy of this term today is questionable. Just another example of how our Criminal Code needs to be streamlined and updated.

On that note, I will end this podcast with Shakespeare’s Henry the IV, Part I Act 3 Scene 3 and an exchange between Sir John Falstaff and the future Henry V or as he was known then, Prince Hal, wherein they discuss Falstaff’s bumbled robbery and the positive resolution of it at court. By the way, as an aside, that is a Shakespeare aside, the PBS Hollow Crown series presenting the history plays of Richard II, Henry IV Part 1 and Part 2, and Henry V is outstanding and very worthwhile to watch. In any event, Hal then boasts “I am good friends with my father and may do any thing.” Without skipping a beat, Falstaff urges the Prince to “Rob me the exchequer the first thing thou doest, and do it with unwashed hands too.”

Thank you and come back next time when we continue our discussion of section 4 of the Criminal Code and whether or not possession is really nine-tenths of the law.

Episode 5 Section 4 Of cabbages and Kings and Stamps!

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