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Death of the Appellant. R. v. Xue
In R. v. Xue (Ont CA, 2021) the Court of Appeal used the term 'abated' to refer to the status of an appeal when the appellant dies.
. Hamill Re
In Hamill Re (Ont CA, 2019) the Court of Appeal articulated the criteria for the hearing of an appeal despite the death of the appellant:[5] It is well-settled that, as a general rule, an appeal abates with the death of the appellant. Despite this general rule, an appellate court retains jurisdiction to proceed to hear the appeal if the court considers it in the interests of justice to do so. It is a discretion which should be sparingly exercised: R. v. Smith, 2004 SCC 14 (CanLII), [2004] 1 S.C.R. 385, at paras. 11 and 20.
[6] To determine whether there are special circumstances that make it in the interests of justice to proceed to hear and determine an appeal despite the death of an appellant, an appellate court must consider all the circumstances. Among, but not dispositive of the factors relevant for consideration are these:
i. the presence of a proper adversarial context;
ii. the strength of the grounds of appeal;
iii. the existence of special circumstances that transcend the death of the individual appellant, such as a legal issue of general public importance, a systemic issue related to the administration of justice or collateral consequences to the deceased’s family, other interested persons or the public;
iv. the expenditure of limited judicial resources; and
v. the likelihood that continuing the appeal would go beyond the judicial function of resolving concrete disputes and involve the court in freestanding legislative-type pronouncements more appropriately the role of the legislative branch.
See Smith, at para. 15. . R. v. Slingerland
In R. v. Slingerland (Ont CA, 2020) the Court of Appeal considered a criminal appeal rendered moot by the death of the defendant:The Governing Principles
[8] The traditional view in Canada is that a criminal appeal ought never to survive the death of an accused. The death of the accused causes the appeal to abate whether the accused is the appellant or respondent, and abatement occurs even if the appeal has been argued and the decision reserved: R. v. Cadeddu (1983), 3 C.C.C. (3d) 112 (Ont. C.A.), at p. 114; R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385, at para. 11. Under this traditional rule, the courts nonetheless recognized some discretion to proceed to judgment despite the death of the accused: Cadeddu, at pp. 118-119.
[9] In Smith, where the accused was the appellant, the Supreme Court of Canada held that the appellant’s death rendered the appeal moot. But the court acknowledged a discretion to proceed with a moot appeal, provided the discretion was exercised in accordance with judicial principles. The court emphasized, however, that this discretion should be exercised only in exceptional circumstances where the appellant’s death is survived by a continuing controversy which requires resolution in the interests of justice: Smith, at paras. 4, 20.
[10] Three principal rationalia underlie the policy or practice governing the continuance of moot appeals and inform the exercise of the circumscribed discretion to determine the appeal despite the party litigant’s death:i. the existence of a truly adversarial context;
ii. the presence of particular circumstances which justify the expenditure of limited judicial resources to resolve the issue; and
iii. the respect shown by courts to limit themselves to their proper adjudicative role, as opposed to making freestanding legislative-type pronouncements. See Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at p. 358; Smith, at para. 39.
[11] The Borowski court outlined a two-step approach to the hearing of moot appeals. The first step involves an inquiry and determination whether the required tangible and concrete dispute has disappeared and the issues have become academic. If the case ascends the first step, the court should then determine whether it should exercise its discretion to hear the case: Borowski, at p. 353; Smith, at para. 33.
[12] In the end, the general test an appellate court should apply when considering whether to proceed with an appeal rendered moot by the death of an accused, is whether there exist special circumstances that make it “in the interests of justice” to proceed: Smith, at para. 50.
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