R. v. Smith, 2004 SCC 14, [2004] 1 SCR 385

R. v. Smith, [2004] 1 S.C.R. 385, 2004 SCC 14

Brian Joseph Smith                                                                                          Appellant

v.

Her Majesty The Queen                                                                               Respondent

and

Attorney General of Ontario                                                                          Intervener

Indexed as:  R. v. Smith

Neutral citation:  2004 SCC 14.

File No.:  29166.

2003:  October 7; 2004:  March 4.

Present:  Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.

on appeal from the court of appeal for newfoundland and labrador

Criminal law — Courts — Jurisdiction — Appeals — Death of appellant — Appellant convicted of second degree murder — Appellant filing notice of appeal but dying before appeal could be heard — Crown moving to abate appeal seven years after appellant’s death — Jurisdiction to hear criminal appeal where appellant dies — Whether Court of Appeal should exercise discretion to hear appeal.

The appellant was convicted of second degree murder in 1985 and sentenced to life imprisonment without eligibility for parole for 10  years.  His notice of appeal was filed promptly but despite his efforts, it remained pending until his death in 1994.  In April 2001, the Crown moved to abate the appeal.  The Court of Appeal held that it had jurisdiction to entertain the appeal notwithstanding the appellant’s death, but exercised its discretion against doing so.

Held:  The appeal should be dismissed.

When an appellant dies, the court retains jurisdiction to proceed “in the interests of justice”, but it is a jurisdiction that should be sparingly exercised.  The continuing jurisdiction of the Court of Appeal in this case rested on the notice of appeal that was properly filed during the appellant’s lifetime.  An appellant exercises his or her “personal right” to appeal when the notice of appeal is filed.  The filing is the root of the appellate court’s jurisdiction.

When an interested party seeks to continue an appeal notwithstanding the death of the appellant (or, in the case of a Crown appeal, the respondent), a motion should be made for substitution of the personal representative or another interested party for the deceased.  The dead can neither give instructions nor are amenable to the direction of the court.  In this case, however, there is no application to quash the appeal for failure to substitute a live appellant.  Furthermore, as the appeal is to be dismissed in any event, it is unnecessary to burden the litigants with this additional procedure.

Once the appeal is properly constituted with a live appellant, the court must then consider whether to exercise its jurisdiction to hear the appeal despite it being rendered moot by the death of the accused, or to abate the appeal.  The general test is whether there exist special circumstances that make it “in the interests of justice” to proceed.  That question may be approached by reference to the following non-exhaustive factors:  the presence of a proper adversarial context; the strength of the grounds of the appeal; the existence of special circumstances that transcend the death of the individual appellant/respondent, such as a legal issue of general public importance, a systematic issue related to the administration of justice, or collateral consequences to the family of the deceased, to other interested persons, or to the public; the expenditure of limited judicial (or court) resources; and whether continuing the appeal would go beyond the judicial function of resolving concrete disputes and involve the court in free-standing legislative-type pronouncements more properly left to the legislature itself.  Those cases in which it will be proper to exercise jurisdiction will be rare and exceptional.

In this case, it is evident that the appeal would proceed in an adversarial context.  Moreover, the grounds for appeal are serious in the sense that a court could have determined in the appellant’s lifetime that a new trial would be the correct result.  With respect to special circumstances, the written correspondence between the appellant and his various lawyers demonstrates that he did everything in his power to move the appeal ahead.  The appellant undoubtedly deserved his day in the Court of Appeal, and the denial of that opportunity, plus the possibility that he could have cleared his name, properly grieves the family.  However, it would not be within the mandate of an appellate court hearing the merits of this appeal to get to the bottom of the causes of the procedural delays in getting on with the appeal.  At the core of the appeal lie the Charter arguments concerning the admissibility of the appellant’s out-of-court statements to the police.  There is nothing exceptional about the consequences to the appellant’s family that would flow from the resolution of these legal points.  Furthermore, there are no other issues of broader public importance or other collateral consequences of the verdict to justify the hearing of this appeal.  The fact that, even if successful, the outcome of the appeal during the appellant’s lifetime would have been a new trial rather than an acquittal, means that the result of an appeal at this stage would be inconclusive with respect to guilt or innocence.  Finally, there is no concern that continuation of this appeal would invade the law-making function of the legislature.  In summary, the insurmountable problem for members of the appellant’s family is not that the continuation of the appeal would run afoul of some positive limitation on the court’s jurisdiction or discretion, but that not enough can be said to differentiate this appeal from the general run of cases where an appellant has died to justify the exercise of the court’s discretion in their favour. Weighing all of the factors together, some of which mitigate in favour of continuation of the appeal but most of which do not, the Court of Appeal concluded that this is not one of those “exceptional” cases in which discretion should be exercised in favour of a continuation.  No reason has been shown for this Court to interfere with the exercise of that discretion.

Cases Cited

Applied:  Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; R. v. Lewis (1997), 153 D.L.R. (4th) 184; R. v. Jetté (1999), 141 C.C.C. (3d) 52; R. v. Lofthouse (1990), 60 O.A.C. 320; R. v. Mercure, [1988] 1 S.C.R. 234; referred to:  R. v. Hay, [1994] O.J. No. 2598 (QL); Re Collins and The Queen (1973), 13 C.C.C. (2d) 172; Re Cadeddu and The Queen (1983), 4 C.C.C. (3d) 112; R. v. Kearley (No. 2), [1994] 3 All E.R. 246; Dove v. United States, 423 U.S. 325 (1976); State v. Christensen, 866 P.2d 533 (1993); United States v. Rorie, 58 M.J. 399 (2003); Whitehouse v. State, 364 N.E.2d 1015 (1977); Durham v. United States, 401 U.S. 481 (1971); State v. Makaila, 897 P.2d 967 (1995); United States v. Moehlenkamp, 557 F.2d 126 (1977); Griffin v. Illinois, 351 U.S. 12 (1956); United States v. Schumann, 861 F.2d 1234 (1988); United States v. Oberlin, 718 F.2d 894 (1983); United States v. Pauline, 625 F.2d 684 (1980); United States v. Dudley, 739 F.2d 175 (1984); R. v. Noble, [1997] 1 S.C.R. 874; R. v. Farinacci (1993), 86 C.C.C. (3d) 32; Oldfield v. Transamerica Life Insurance Co. of Canada, [2002] 1 S.C.R. 742, 2002 SCC 22; Demeter v. British Pacific Life Insurance Co. (1983), 43 O.R. (2d) 33, aff’d (1984), 48 O.R. (2d) 266; Commonwealth v. Walker, 288 A.2d 741 (1972); State v. Jones, 551 P.2d 801 (1976); State v. McGettrick, 509 N.E.2d 378 (1987); Mills v. The Queen, [1986] 1 S.C.R. 863; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; R. v. Meltzer, [1989] 1 S.C.R. 1764; Welch v. The King, [1950] S.C.R. 412; R. v. Adams, [1995] 4 S.C.R. 707; Forget v. Quebec (Attorney General), [1988] 2 S.C.R. 90; R. v. Finlay, [1993] 3 S.C.R. 103; R. v. Gautreau (1989), 52 C.C.C. (3d) 410; Southam Inc. v. Canada (1990), 55 C.C.C. (3d) 428; Romania (State) v. Cheng (1997), 119 C.C.C. (3d) 561; R. v. Anderson (1982), 1 C.C.C. (3d) 267; R. v. Yarema (1991), 3 O.R. (3d) 459; Morin v. National SHU Review Committee, [1985] 1 F.C. 3; R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38; R. v. Brooks, [2000] 1 S.C.R. 237, 2000 SCC 11; Vetrovec v. The Queen, [1982] 1 S.C.R. 811; R. v. Lifchus, [1997] 3 S.C.R. 320.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , ss. 7 , 10( b ) , 24(2) .

Criminal Appeal Act 1995 (U.K.), 1995, c. 35.

Criminal Appeal Rules of the Supreme Court of Newfoundland, Trial Division, SI/87‑28.

Criminal Code , R.S.C. 1985, c. C‑46 , ss. 674 , 675(1) , 686 , 696.1(1)  [ad. 2002, c. 13, s. 71], 696.3(3) [idem].

Rules of the Supreme Court, 1986, S.N. 1986, c. 42, Sch. D, r. 7.07(1).

Supreme Court Act , R.S.C. 1985, c. S‑26 , ss. 72  to 78 .

Supreme Court of Newfoundland and Labrador — Court of Appeal Criminal Appeal Rules (2002), SI/2002‑96, rr. 3, 27.

Authors Cited

Cole, David P., and Allan Manson.  “Pardons and the Royal Prerogative of Mercy”.  In Release from Imprisonment:  The Law of Sentencing, Parole and Judicial Review.  Toronto:  Carswell, 1990.

APPEAL from a judgment of the Newfoundland and Labrador Court of Appeal (2002), 209 Nfld. & P.E.I.R. 181, 626 A.P.R. 181, 161 C.C.C. (3d) 353, [2002] N.J. No. 34 (QL), 2002 NFCA 8, granting an application for an order striking the accused’s notice of appeal.  Appeal dismissed.

Jerome P. Kennedy, for the appellant. 

Pamela J. Goulding, for the respondent.

Gillian Roberts and Kimberley Crosbie, for the intervener.

The judgment of the Court was delivered by

1                                   Binnie J. — Can a dead man’s conviction be appealed?  On February 22, 1985, the late Brian Joseph Smith was convicted by a jury of second degree murder.  Smith, who testified at his trial, always maintained his innocence.  He was sentenced to life imprisonment without eligibility for parole for 10 years.  His notice of appeal was filed promptly and the trial transcript was completed and filed by October 29, 1985.  Thereafter, he fell out with his first lawyer.  He was without a lawyer between 1988 and October 1990 when he retained a second lawyer who failed to get on with the appeal.  In April 1993, Smith retained his present lawyer and was granted bail in November 1993, over eight years after his initial conviction.  At that time, he was terminally ill with lung cancer, and died on February 4, 1994.  Thereafter the appeal sat until April 16, 2001, over seven years after Smith’s death, and sixteen years after his initial conviction, at which time the Crown moved to abate the appeal.

2                                   The questions before the Newfoundland and Labrador Court of Appeal were whether it had jurisdiction to entertain the appeal notwithstanding Smith’s death seven years earlier, and if so, in what circumstances should the court accept or decline to exercise this jurisdiction.

3                                   That court, after appointing counsel to represent Smith’s family on these issues, concluded that notwithstanding Smith’s death it had jurisdiction to hear the appeal, but exercised its discretion against doing so.  In my view, it reached the correct conclusion with respect both to jurisdiction and the exercise of the discretion and properly abated the appeal.

4                                   The appeal was properly constituted by a notice of appeal filed before Smith’s death.  While the appeal was rendered moot by that death, the court had a discretion to proceed with a moot appeal, provided the discretion was exercised in accordance with judicial principles:  Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at p. 358.  However, the discretion to hear the appeal of an individual who dies pending the hearing of his or her appeal should be exercised only in exceptional circumstances where the death of the appellant is survived by a continuing controversy which, notwithstanding the death of the individual most directly affected by the appeal, requires resolution in the interests of justice.  There are no such exceptional circumstances in this case.  The appeal should therefore be dismissed.

I.      The Facts

5                                   The victim, a young Newfoundlander named Jerome Fleming, was killed by a shotgun blast to the chest at short range.  His body was found in the woods near Bay Bulls.  Smith was seen with the victim a few hours before the likely time of death.  They had been drinking together.  The victim was not again seen alive.  There was circumstantial evidence that linked Smith to the shotgun that was used in the killing.  There was some suggestion in the evidence that a drug deal had gone bad.  The prosecution’s case depended largely on inculpatory statements made to the investigating RCMP officer over a five-day period, and a “confession” to a jail house informant. 

6                                   There is no doubt that Smith’s alleged statements to the RCMP officer, if accepted at face value, were inculpatory.  At one point, he is alleged to have said to the police interrogator, “[T]here is no explanation for dumping your best buddy in the woods” (appellant’s record, at p. 113).  Later, Smith was asked by the police officer if the shotgun used in the killing was still available, to which he replied, “[N]o, the gun is not available.”  He then added that what he meant to say was that if he had done it, then the gun would not be available.

7                                   When a police officer suggested that perhaps Fleming’s death was accidental, Smith said that he would see if his lawyer could work out a “deal”.  If so, he would talk to the police and, if not, he would take his chances on a murder charge.

8                                   As mentioned, Smith was convicted and properly filed a notice of appeal.  However, and despite his efforts, the appeal remained pending until his death.  The Crown moved to have it abated some seven years later.  Counsel retained by Smith shortly before his death was then appointed by the court to represent the interests of the “Smith family”.  There was no formal substitution of a live appellant for the deceased.  (This is an irregularity to be addressed below.)  Counsel’s argument is that the members of Smith’s family still bear the emotional, social and psychological scars of the murder conviction.  They have made every effort to carry on the struggle to clear the family name since his death.  The justice of their struggle and the failure of the legal system to respond adequately to Smith’s original appeal during Smith’s lifetime, he says, merit the post-mortem intervention of the court. 

II.    Analysis

9                                   Death puts an accused beyond any relief which it is within the power of an appellate court to grant.  Therefore, such a death triggers three related areas of concern: first, jurisdiction of the appellate court and the survival of an appeal that may be considered personal to the deceased; second, procedure and the need for a live party to engage in the process before the appellate court; and third, justiciability and the exercise of discretion of the appellate court to hear an appeal that has become moot as between the original parties.  The continuation and disposition of the appeal will depend on how each of these inquiries is resolved.

10                               Accordingly, when an interested party seeks to continue an appeal notwithstanding the death of the appellant (or, in the case of a Crown appeal, the respondent), the following steps should be taken:

1.                A motion, pursuant to the relevant rules of procedure, should be made for substitution of the personal representative or another interested party for the deceased accused, and

2.                The appellate court must consider, in light of the interests of justice, whether it is proper to exercise its jurisdiction to hear the appeal despite it being rendered moot by the death of the accused, or to abate the appeal.  Those cases in which it will be proper to exercise jurisdiction to hear a moot criminal appeal will be rare and exceptional.

11                               The traditional view in Canada was that a criminal appeal ought never to survive the death of the accused, although the courts did not always make it clear whether this was thought to result from a lack of jurisdiction, or a rule of practice and procedure.  See, e.g., R. v. Hay, [1994] O.J. No. 2598 (QL) (C.A.), and R. v. Lewis (1997), 153 D.L.R. (4th) 184 (B.C.C.A.).  Abatement occurred even if the appeal had been argued and the decision reserved (see Re Collins and The Queen (1973), 13 C.C.C. (2d) 172 (Ont. C.A.)), and occurred as well where the appellant was the Crown and it was the accused respondent who died (see Re Cadeddu and The Queen (1983), 4 C.C.C. (3d) 112 (Ont. C.A.)).  The “dead can’t appeal” approach is also followed in England.  See, e.g., R. v. Kearley (No. 2), [1994] 3 All E.R. 246, where the House of Lords held that a criminal appeal abates upon death, leaving the conviction and the sentence intact, per Lord Jauncey, at p. 253:

My Lords, as a pure matter of construction untrammelled by authority I should have had little hesitation in concluding that a right of appeal to the Court of Appeal under Pt I of the 1968 Act was personal to the convicted person.

12                               Although the House of Lords recognized that abatement could cause injustice in some circumstances, it was concluded that reform was a matter for Parliament.  Subsequently, Parliament enacted the Criminal Appeal Act 1995 (U.K.), 1995, c. 35, which established the Criminal Cases Review Commission with power, in specified circumstances, to refer the conviction or sentence for review by the Court of Appeal even in the absence of an appeal commenced in the lifetime of the convicted person.  Abatement of the appeal leaving the conviction intact is also the rule in some of the American jurisdictions:  see Dove v. United States, 423 U.S. 325 (1976); State v. Christensen, 866 P.2d 533 (Utah 1993), at p. 535; United States v. Rorie, 58 M.J. 399 (C.A.A.F. 2003); and Whitehouse v. State, 364 N.E.2d 1015 (Ind. 1977), at pp. 1015-16.

13                               The “dead can’t appeal” rule is supported more strongly by the intervener, the Attorney General of Ontario, than by the respondent Crown.  The former argues that the wording of the right of appeal under the Criminal Code , R.S.C. 1985, c. C-46 , confers a purely personal right which dies with the appellant.  There is, he argues, no provision for an appeal to continue after the appellant’s death, or for anyone to be substituted in his or her place.  As a result, he says, “[W]hen the convicted person dies, there is no jurisdiction to continue with the appeal” (Attorney General of Ontario’s factum, at para. 4 (emphasis added)).

14                               A review of the jurisprudence of other common law jurisdictions suggests that simple abatement is not the only potential outcome recognized as appropriate upon an appellant’s death.  A second possible outcome, with considerable support in the United States, is that death pending appeal of a criminal conviction from the trial court abates the prosecution ab initio, i.e., vacating all proceedings in the prosecution since its inception including the conviction (Durham v. United States, 401 U.S. 481 (1971), and see summary of this position in State v. Makaila, 897 P.2d 967 (Haw. 1995), at p. 969).  There are several rationales given for vacating the conviction as well as abating the appeal.  Some courts take the view that appellate review of a conviction is so integral to the array of procedural safeguards due an accused that incapacity to obtain such review nullifies the verdict of guilt.  An accused should “not stand convicted without resolution of the merits of his appeal . . . .” (United States v. Moehlenkamp, 557 F.2d 126 (7th  Cir. 1977), at p. 128; see also Griffin v. Illinois, 351 U.S. 12 (1956), at p. 18; United States v. Schumann, 861 F.2d 1234 (11th Cir. 1988); United States v. Oberlin, 718 F.2d 894 (9th Cir. 1983), at p. 896, and United States v. Pauline, 625 F.2d 684 (5th Cir. 1980)). 

15                               Other courts base themselves on the proposition that the role and function of the criminal process is to punish the guilty.  Punishment of a convicted criminal is inherently personal and, as the death of the accused eliminates the possibility of punishment, it therefore eliminates the purpose of the criminal proceeding: 

[P]unishment, incarceration, or rehabilitation have heretofore largely been the exclusive purposes of sentences and so ordinarily should be abated upon death for shuffling off the mortal coil completely forecloses punishment, incarceration, or rehabilitation, this side of the grave at any rate.

(United States v. Dudley, 739 F.2d 175 (4th Cir. 1984), at p. 177)

16                               It is not open to a Canadian court to abate the conviction as well as the appeal.  Firstly, such an outcome is not compatible with the Criminal Code , which is quite specific in s. 686 as to when a conviction may be set aside by an appellate court.  Secondly, the presumption of innocence does not survive the conviction (see R. v. Noble, [1997] 1 S.C.R. 874, at paras. 108-9; R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.), at p. 37).  A convicted criminal appellant must prove error requiring the conviction to be vacated.  Thirdly, there may be collateral consequences of vacating a conviction, such as the disposition of fines or restitution orders.  There seems to be no good reason why abatement should benefit the financial estate of the deceased appellant.  Vacation of a conviction might also enable the estate of a deceased appellant to profit under his or her victim’s will or life insurance policy, and thereby profit from the crime.  Such an outcome would not be acceptable public policy:  see, e.g., Oldfield v. Transamerica Life Insurance Co. of Canada, [2002] 1 S.C.R. 742, 2002 SCC 22, at paras. 11 et seq.; Demeter v. British Pacific Life Insurance Co. (1983), 43 O.R. (2d) 33 (H.C.J.), aff’d (1984), 48 O.R. (2d) 266 (C.A.). 

17                               A third potential outcome when an appellant dies is that the appeal may in some circumstances be prosecuted, notwithstanding his or her death.  This is the view taken by the Quebec Court of Appeal in R. v. Jetté (1999), 141 C.C.C. (3d) 52.  In that case, a manslaughter conviction rested almost entirely on a confession to the police.  After the appeal had been launched, but before it was heard, the convicted person died.  The pending appeal included an application for the court to receive fresh evidence showing that the police officer had recanted.  He admitted that he had lied at trial about the alleged confession, that he had extracted “the confession” by threats and that the accused had been beaten by other police officers.  Further, a contemporaneous tape recording of a conversation between the accused and an informant, said at trial to have been “erased”, had now been found.  It showed that, contrary to the informant’s evidence at trial, the accused had not in fact incriminated himself.  In these circumstances, there was not only a very serious (to say the least) doubt about the fairness of the trial, but the police officer’s recantation suggested that the accused was factually innocent.  Fish J.A. (as he then was)  stated that the court had a discretion whether or not to proceed, and that the discretion should be exercised in favour of hearing the appeal in the following circumstances (at p. 57):

In my view, we should hear the matter on its merits only when the interests of justice require that we do so, notwithstanding absence of any temporal consequences for the accused who inscribed the appeal.  [Emphasis added.]

18                               Jetté was adopted with some qualifications by the Newfoundland and Labrador Court of Appeal in the present case. 

19                               A similar discretion to continue an appeal, which by reason of the appellant’s death is rendered moot, is also accepted in some American jurisdictions.  In Commonwealth v. Walker, 288 A.2d 741 (1972), for example, the Supreme Court of Pennsylvania stated that it was in the interests of the accused’s estate and society that a challenge instituted by the accused in his lifetime to the regularity or constitutionality of a criminal proceeding be fully reviewed and decided by the appeal process, notwithstanding the death of the appellant.  See also State v. Jones, 551 P.2d 801 (Kan. 1976), at p. 804; and State v. McGettrick, 509 N.E.2d 378 (Ohio 1987).

20                               In my view, the correct legal outcome when an appellant dies is that the court retains jurisdiction to proceed “in the interests of justice”, but that it is a jurisdiction that should be sparingly exercised.  I will deal first with the jurisdictional objection.  I will then turn to the circumstances in which the discretion should be exercised to proceed with the appeal, notwithstanding the appellant’s death.

A.     Jurisdiction to Hear a Criminal Appeal Where the Appellant Dies

21                               It is well established that appeals are solely creatures of statute:  see Mills v. The Queen, [1986] 1 S.C.R. 863, at p. 958; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53, at pp. 69-70; R. v. Meltzer, [1989] 1 S.C.R. 1764, at p. 1773; and Welch v. The King, [1950] S.C.R. 412, at p. 428.  See also s. 674  of the Criminal Code  which provides that, “[n]o proceedings other than those authorized by this Part and Part XXVI shall be taken by way of appeal in proceedings in respect of indictable offences.”  Section 675(1) provides the source of jurisdiction for the appeal, i.e., “[a] person who is convicted . . . may appeal to the court of appeal . . . against his conviction” (emphasis added).  This language presupposes that at the time of the filing of the notice of appeal, the person convicted is alive and thus competent to initiate the appeal.  The relevant procedure is outlined in the Supreme Court of Newfoundland and Labrador — Court of Appeal Criminal Appeal Rules (2002), SI/2002-96, rule 3.  The continuing jurisdiction of the Court of Appeal in this case rested on the notice of appeal that was properly filed during Smith’s lifetime.

22                               The Crown argues that s. 686  of the Criminal Code  is not consistent with hearing the appeals of the dead.  The argument is that an appeal cannot be allowed under s. 686  of the Criminal Code  unless a new trial can be ordered.  The court cannot order the dead to be retried.  If the court cannot order a new trial, the Crown contends, it has no jurisdiction under s. 686(8) to order that the holding of the new trial be stayed.  The Crown says that this gap in the remedial authority of the appellate court indicates that Parliament never intended such appeals to be heard at all.  This is not a convincing objection.  Section 686(2) provides that where a Court of Appeal allows an appeal, “it shall quash the conviction”, and s. 686(8) provides that, on the exercise of “any of the powers” under s. 686(2), the court may make “any order, in addition, that justice requires”.  The quashing of the conviction is an exercise of the court’s power under s. 686(2).  Additional orders authorized by s. 686(8) include a stay of proceedings.  It is not necessary to order a new trial of the dead before imposing a stay of further proceedings.

23                               An appellant thus exercises his or her “personal right” to appeal when the notice of appeal is filed.  The filing is the root of the appellate court’s jurisdiction.  Whether the court chooses to proceed with the appeal or not is a matter of discretion to be exercised according to the principles set out in Borowski and the cases that follow it, including R. v. Adams, [1995] 4 S.C.R. 707, hereinafter discussed.

24                               Nothing in the rules automatically abates an appeal by reason of the death of an accused in a criminal case.  The present appeal sat on the books of the Court of Appeal for seven years before any steps were taken to terminate it.  At that time, the Crown, prompted by the Court Registry, brought a motion to abate.  The issue for the Court of Appeal at that stage was to determine what was to be done with a matter properly pending before it that had, by reason of the death of the appellant, become moot. 

25                               The intervener, the Attorney General of Ontario, suggests that denial of jurisdiction to hear an appeal after the appellant dies would not leave the Smith family without a remedy.  Its members could apply to the Minister of Justice under s. 696.1(1)  of the Criminal Code  to invoke a ministerial authority descended in part from the royal prerogative of mercy.  See D. P. Cole and A. Manson, “Pardons and the Royal Prerogative of Mercy”, in Release from Imprisonment:  The Law of Sentencing, Parole and Judicial Review (1990), 399, at pp. 409-10.  This is not a satisfactory substitute.  The Smith family seeks justice, not mercy, and it seeks justice from the courts that convicted the deceased, not from the Minister.  In any event, the Minister’s power of intervention depends on whether there is “a reasonable basis to conclude that a miscarriage of justice likely occurred” (s. 696.3(3)), whereas the appellant’s case here relates to the fair trial rights of the deceased.  Error in that regard does not necessarily amount to a miscarriage of justice. 

B.     The Need for a Live Appellant

26                               The appeal, as stated, was properly launched by the appellant on March 20, 1985.  The proceeding became irregular upon his death on February 4, 1994 because, as of that date, it was in the name of a non-existent person.  Wells C.J.N.L., at the outset of his reasons, said that “it is convenient to refer to the interests represented by the late appellant and his family as the Smith Family” ((2002), 161 C.C.C. (3d) 353, at para. 1).  However, in my view, with respect, the irregularity ought to have been addressed by an application by the executor or personal representative of the deceased appellant to pursue the appeal in substitution for the deceased:  Lewis, supra, at p. 186, and Jetté, supra, at p. 63.  The dead cannot give instructions.  Nor are the dead any longer amenable to the direction of the court.  If the appeal is to be carried on in the interest of the “Smith family”, a live appellant should be substituted.

27                               This eventuality is covered by rule 27 of the Supreme Court of Newfoundland and Labrador — Court of Appeal Criminal Appeal Rules (2002), which provides as follows:

27.  The rules, with any necessary modifications, of the Supreme Court of Newfoundland and Labrador relating to civil procedure and other related rules of the Court shall, if not inconsistent with these Rules, the Code or any other statute having application, apply to these Rules in all matters not provided for herein.  [Emphasis added.]

Since neither the Criminal Code  nor the Criminal Appeal Rules (SI/87-28) speak to substitution on death of the parties, the rules of civil procedure for Newfoundland are applicable. Rule 7.07 of the Newfoundland civil procedure rules (S.N. 1986, c. 42, Sch. D) provides for substitution of a live party for the deceased party.  Its provisions can therefore be applied, “with any necessary modifications”, to criminal appeals.

28                               Similarly, appeals to this Court are governed in this respect by ss. 72  to 78  of the Supreme Court Act , R.S.C. 1985, c. S-26 , grouped under the heading “Death of Parties”.

29                               The substitution of a live appellant is important to the retention of jurisdiction.  In R. v. Lofthouse (1990), 60 O.A.C. 320, a case under the Supreme Court Act , R.S.C. 1985, c. S-26 , Sopinka J. noted that where a statute or regulation provides for the continuation of an appeal upon death of a party, that procedure must be followed, failing which the Court will quash the appeal (at para. 1):

Entirely apart from the doctrine of mootness, an appeal to this Court cannot be prosecuted or continued by a party who has since died.  An application must be made to continue the appeal pursuant to s. 73(1)  of the Supreme Court Act , R.S.C. 1985, c. S-26 .  This application must be made by a personal representative who is either the executor or the administrator of the estate.  The application under s. 73(1) is therefore dismissed.  The application to quash is granted and the appeal is therefore quashed.

30                               No application is before us to quash the appeal for failure to substitute a live appellant.  If it were necessary to do so, I would invite counsel to apply to appoint Smith’s executor or personal representative nunc pro tunc to continue the appeal on behalf of the Smith family.  However, as the appeal is to be dismissed in any event, it seems unnecessary to burden the litigants with additional procedures at this late stage.

31                               Once the appeal is properly reconstituted with a live appellant (or live respondent, in the case of a Crown appeal), the court must then turn to the exercise of its discretion to hear, or not to hear, the appeal rendered moot by the death of the party.

C.     The Two-Stage Approach to Mootness in Criminal Appeals

32                               The doctrine of mootness is an aspect of the general policy that a court may decline to decide a case which presents no live controversy affecting the rights of the parties, including the situation where one of the parties has died and the controversy has essentially been interred with the deceased.  However, it is recognized that in some cases an appeal thus rendered moot can still be heard on its merits where the court retains jurisdiction (as it does here).  The question is whether the appeal would go forward in an adversarial context and presents special features which make it in the interests of justice to resolve:  Forget v. Quebec (Attorney General), [1988] 2 S.C.R. 90, at p. 97.

33                               The two-step approach applicable to the hearing of moot appeals was outlined in the civil context by Sopinka J. in Borowski, supra, at p. 353:

First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic.  Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. . . .  In the interest of clarity, I consider that a case is moot if it fails to meet the “live controversy” test.  A court may nonetheless elect to address a moot issue if the circumstances warrant. 

34                               It is apparent that the “tangible and concrete dispute” between Brian Smith and the Crown could not survive Smith’s death.  He cannot now benefit from the new trial that he sought.  Sopinka J., in Borowski, gave as an example of mootness the death of the appellant (at p. 355):

The particular circumstances of the parties to an action may also eliminate the tangible nature of a dispute.  The death of parties challenging the validity of a parole revocation hearing (Re Cadeddu and The Queen (1983), 41 O.R. (2d) 481 (C.A.)) and a speeding ticket (R. v. Mercure, [1988] 1 S.C.R. 234) ended any concrete controversy between the parties.

35                               In R. v. Mercure, [1988] 1 S.C.R. 234, this Court heard an appeal after the death of the appellant in a quasi-criminal prosecution initiated pursuant to the Saskatchewan Vehicles Act, R.S.S. 1978, c. V-3.  The appellant had sought and been granted leave to appeal to this Court, but had died before the appeal could be heard.  The deceased had obviously lost any direct or personal interest in whether or not surviving residents of Saskatchewan are entitled to have the relevant statutory provision governing a speeding ticket expressed in French and to have a trial conducted in French.  The Court exercised its discretion to hear the appeal notwithstanding its mootness because the case not only raised an important legal issue but satisfied the other criteria for the hearing of a moot appeal, including the continued existence of a proper adversarial context.

36                               Other Canadian courts have applied Borowski to resolve issues of mootness in relation to appeals in criminal cases:  Adams, supra; R. v. Finlay, [1993] 3 S.C.R. 103, at p. 112; R. v. Gautreau (1989), 52 C.C.C. (3d) 410 (Que. C.A.), at p. 418; Southam Inc. v. Canada (1990), 55 C.C.C. (3d) 428 (Ont. C.A.), at p. 431; and Lewis, supra, at p. 186.

37                               The general reluctance of Canadian courts to proceed with a moot criminal appeal is justified by the fact that, in the overwhelming majority of cases, the Borowski criteria are not satisfied.  In some cases, there is missing an appropriate adversarial context in which to determine the outstanding issues:  Southam, supra, at p. 431.  In other cases, the court expressed a concern not to dedicate scarce judicial resources to an appeal whose usefulness of result was not commensurate with its cost:  Romania (State) v. Cheng (1997), 119 C.C.C. (3d) 561 (N.S.C.A.), at p. 563; R. v. Anderson (1982), 1 C.C.C. (3d) 267 (Ont. C.A.), at p. 268; Lewis, supra, at p. 186; and Cadeddu, supra, at p. 116.  In other cases, the court was sensitive to the constitutional limitations on the role of the courts whose function, apart from references authorized by statute, is to decide concrete disputes and not to pronounce generally on questions of law in the absence of a “live controversy” presented for resolution:  Cadeddu, supra, at p. 116, and Borowski, supra, at p. 362.

38                               Nevertheless, the infrequency of cases in which a moot appeal would properly proceed is no reason to altogether exclude the possibility.  A similar reluctance to proceed is encountered in moot civil appeals.

D.     The Test for the Exercise of Discretion

39                               Borowski identified three principal “underlying rationalia” for the “policy or practice” governing the continuance of moot appeals:

(a)               the existence of a truly adversarial context;

(b)               the presence of particular circumstances which justify the expenditure of limited judicial resources to resolve moot cases;

(c)               the respect shown by the courts to limit themselves to their proper adjudicative role as opposed to making free-standing, legislative-type pronouncements.

The Court indicated that these three “rationales” are not exhaustive (p. 358), nor is their application a “mechanical” process (p. 363), but the Court must exercise its discretion “judicially . . . with due regard for established principles” (p. 358).

40                               In Adams, supra, the Court exercised its discretion to proceed with the moot appeal because, per Sopinka J., at p. 719, it was “in the public interest” to do so.

41                               Jetté, supra, made no reference to Borowski or Adams or to the more general principles developed to deal with moot appeals, but the factors mentioned by the Quebec Court of Appeal are compatible with those principles, namely:

1.                that there are serious grounds of appeal;

2.                that the verdict carried with it significant consequences for the party seeking to continue the proceedings;

3.                that it is in the interests of justice to do so.

The fundamental criterion is “the interests of justice”.  The two preliminary Jetté factors can be subsumed in the “interests of justice”, which is a broad and flexible concept, and deliberately chosen on that account.  Borowski supplies the principled framework within which “the interests of justice” can be evaluated.

42                               It is apparent that if there are no “serious grounds of appeal”, the appeal should be abated.  Equally, under the second Jetté factor, where a verdict carries no significant consequences for the party seeking to continue it, a court should not exercise its discretion in favour of continuing the appeal.  However, this factor will, in most cases, be self-fulfilling.  If there were no significant consequences for the survivors, they would be unlikely to resist the Crown’s motion to quash the appeal. 

43                               The second Jetté factor is nevertheless a useful reminder of the need to differentiate between the potential benefits of the appeal to the original appellant, who can no longer be comforted, and the collateral consequences or potential benefits, if any, to those who have survived him or her, and to the public.

44                               Reference to the “significant consequences for the party seeking to continue the proceedings” may, in some senses, be both too narrow and too broad.  It may be too narrow because the consequences to the public may be as important, if not more so, as those motivating the survivors of the deceased appellant seeking to continue the appeal:  R. v. Yarema (1991), 3 O.R. (3d) 459 (C.A.).

45                               Viewed in another light, the second Jetté factor could also be seen as too broad, because any criminal conviction potentially carries significant consequences in a subjective sense in the eyes of the executor, or personal representative, and members of the family of the deceased.  In the present appeal, for example, counsel for the appellant argues that murder is the most serious of criminal offences and carries with it a stigma that imposed a burden not only on the deceased but on his family.  Yet most serious crimes carry a stigma, and if that, combined with serious grounds of appeal, were sufficient, the continuation of the appeal of a dead appellant would become the rule rather than the exception in criminal matters.  Conviction of almost any offence involving sexual abuse or fraud, for example, attracts stigma, and could also be expected to agitate a supportive family.

46                               It is “the interests of justice” on which Wells C.J.N.L. laid his emphasis, and I think he was correct to do so.  This was clearly the primary consideration of Fish J.A. in Jetté.  The “interests of justice” test captures the flexibility urged by Sopinka J. in Borowski (at p. 358).  It signals the need not to be too dogmatic about the various criteria for its application.  The exercise of the court’s discretion should turn on a consideration of all the relevant circumstances, keeping in mind the general rule that in the overwhelming number of cases the death of the appellant abates his or her appeal leaving the conviction intact.

47                               In Jetté, the “interests of justice” test was clearly satisfied.  The grounds of appeal were not only serious, but overwhelming.  The Quebec Court of Appeal was confronted with fresh evidence that suggested the factual innocence of the convicted offender.  The opportunity to clear the name of the deceased appellant was of major significance to his family, and their determination to establish his factual innocence supplied the adversarial context.  In the presence of such an apparent miscarriage of justice, “scarce judicial resources” could seldom be a disqualifying consideration.  The issues surrounding the perjured testimony were quintessentially for the courts, not the legislature, to resolve.  For the court to have declined to look into a serious abuse of its own process would clearly not have been “in the interests of justice”. 

48                               Jetté raised issues of broad public importance concerning police conduct and a potential systemic failure in the justice system, as well as the spectre of a serious injustice to the deceased and his family.  In other words, continuance of the appeal had important collateral consequences above and beyond the potential impact on the verdict itself.

49                               The existence of such collateral consequences for the administration of justice, quite apart from the interest of the particular convicted individual or his family, is an important consideration.  In Morin v. National SHU Review Committee, [1985] 1 F.C. 3 (C.A.), for example, a legal point arose which recurs with some frequency but, due to the nature of the proceedings in which it generally arises, is ordinarily evasive of appellate review.  In such cases, assuming the existence of a proper adversarial context, a court may consider it to be a good use of judicial resources to resolve the legal controversy if it is otherwise “in the interests of justice” to proceed.  Such was the case in Adams, supra, where the Court dealt with an appeal of revocation of a publication ban in the knowledge that such bans are frequently spent before appeals can be exhausted.  A moot appeal may also raise questions about systemic failures in the justice system, as with the allegation of police brutality in Jetté, which transcend the interests of the immediate parties, and may justify the continuation of the appeal provided the appropriate adversarial context exists.

50                               In summary, when an appellate court is considering whether to proceed with an appeal rendered moot by the death of the appellant (or, in a Crown appeal, the respondent), the general test is whether there exists special circumstances that make it “in the interests of justice” to proceed.  That question may be approached by reference to the following factors, which are intended to be helpful rather than exhaustive.  Not all factors will necessarily be present in a particular case, and their strength will vary according to the circumstances:

1.                whether the appeal will proceed in a proper adversarial context;

2.                the strength of the grounds of the appeal;

3.                whether there are special circumstances that transcend the death of the individual appellant/respondent, including:

(a)       a legal issue of general public importance, particularly if it is otherwise evasive of appellate review;

(b)      a systemic issue related to the administration of justice;

(c)       collateral consequences to the family of the deceased or to other interested persons or to the public;

4.                whether the nature of the order which could be made by the appellate court justifies the expenditure of limited judicial (or court) resources to resolve a moot appeal;

5.                whether continuing the appeal would go beyond the judicial function of resolving concrete disputes and involve the court in free-standing, legislative-type pronouncements more properly left to the legislature itself.

51                               What is necessary is that, at the end of the day, the court weigh up the different factors relevant to a particular appeal, some of which may favour continuation and others not, to determine whether in the particular case, notwithstanding the general rule favouring abatement, it is in the interests of justice to proceed.

E.      Application of This Test to the Facts of the Present Appeal

52                               I propose to address separately the different considerations mentioned earlier, bearing in mind that no one factor is necessarily dispositive, and all must be weighed together.

1.     Adversarial Context

53                               Counsel for the Smith family has amply demonstrated that, if the appeal were allowed to proceed, it would do so in a proper adversarial context.  This factor thus supports continuation.

2.     Grounds of Appeal

54                               The grounds of appeal are “serious” in the sense that a court could have determined in Smith’s lifetime that a new trial would be the correct result.  The grounds, essentially, are that the inculpatory statements were improperly obtained in violation of his Charter  rights to counsel (s. 10(b)) and to remain silent (s. 7), and ought therefore to have been excluded (s. 24(2)).  On this point, reliance is placed on the principles outlined in R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38.  As to the jail house confession, the argument is that jail house informants are notoriously unreliable, and the evidence here was admitted without proper scrutiny:  R. v. Brooks, [2000] 1 S.C.R. 237, 2000 SCC 11.  In any event, no Vetrovec warning was given to the jury about the frailties of alleged jail house confessions:  Vetrovec v. The Queen, [1982] 1 S.C.R. 811.  It is also contended that the trial judge’s jury instruction in 1985 did not comply with the guidelines set out in R. v. Lifchus, [1997] 3 S.C.R. 320, decided 12 years later.

55                               The submissions made on behalf of the Smith family can be put no higher than some good arguable points.  Unlike Jetté, there is no application to adduce fresh evidence.  The most defence counsel can say is that if he were now given access to the police records, he might discover evidence helpful to the defence.

3.     Special Circumstances

56                               On first impression (as the merits were not argued before us), it is not at all obvious that this appeal reveals a miscarriage of justice.  The special circumstance urged by counsel for the Smith family is the failure of the legal system to respond adequately and in a timely manner to the attempt of the deceased appellant “to clear his name” in his lifetime.  There is no proper explanation on the record of the failure of those responsible to have the appeal heard in the nine years between his conviction in February 1985 and his death in February 1994.  The written correspondence between the appellant and his various lawyers, reviewed in the careful judgment of Wells C.J.N.L., demonstrates that Smith did everything in his power to move his appeal ahead.  Brian Joseph Smith undoubtedly deserved his day in the Court of Appeal, and the denial of that opportunity, plus the possibility that he could in the end have cleared his name, properly grieves his family.  However, as Wells C.J.N.L. pointed out, it would not be within the mandate of an appellate court hearing the merits of this appeal to get to the bottom of the causes of the procedural delays in getting on with the appeal.  It is not alleged that there is systemic delay in the hearing of appeals in Newfoundland and Labrador. 

57                               At the core of the appeal lie the Charter  arguments concerning the admissibility of Smith’s out-of-court statements to the police.  There is nothing exceptional about the “consequences” to the Smith family that would flow from resolution of these legal points.

58                               There are no other issues of broader public importance or other collateral consequences of the verdict to justify the hearing of this appeal.

4.     Investment of Judicial (Court) Resources

59                               In my view, the fact that, even if successful, the outcome of the appeal would be inconclusive is a factor that militates against its continuation.  Defence counsel concedes that, on the record, the proper order would be a new trial, not an acquittal.  Smith cannot be fully vindicated because the issue of guilt or innocence can never be retried.  The stigma may be reduced if the conviction were set aside, which would be of some comfort to his family, but the late Brian Joseph Smith’s name cannot now be fully cleared in a judicial process because his name would remain subject to the charges against him.

5.     Judicial Role

60                               There is no concern that continuation of this appeal would invade the law-making function of the legislature.

61                               In summary, the insurmountable problem for members of the Smith family is not that continuation of the appeal would run afoul of some positive limitation on the court’s jurisdiction or discretion, but that not enough can be said to differentiate this appeal from the general run of cases where an appellant has died to justify the exercise of the court’s discretion in their favour.  Weighing all of the factors together, some of which militate in favour of continuation of the appeal but most of which do not, the Court of Appeal properly concluded that this is not one of those “exceptional” cases in which its discretion should be exercised in favour of a continuation.

62                               I should add a final observation.  This appeal did not proceed before the Newfoundland and Labrador Court of Appeal until nine years after Smith’s death.  One reason for this delay, counsel explained, is that until Jetté was decided, he had little case law to support his argument for a continuation of the appeal.  However, the same jurisprudential dilemma confronted counsel in Jetté, who moved expeditiously notwithstanding the mootness obstacle, and won.  The law seeks to promote finality.  Appeals pending at an appellant’s death should be proceeded with promptly.  Failure to do so for an extended period (as here) could be a factor against the exercise of the court’s discretion.

III.    Disposition

63                               There is no reason in this case to interfere with the discretion exercised by the Newfoundland and Labrador Court of Appeal.  In my view, accordingly, the appeal should be dismissed.

Appeal dismissed.

Solicitors for the appellant:  Simmonds, Kennedy, St. John’s, Nfld.

Solicitor for the respondent:  Department of Justice, St. John’s, Nfld.

Solicitor for the intervener:  Ministry of the Attorney General, Toronto.