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.