Extract
R. v. Smith, [2004] 1 S.C.R. 385, 2004 SCC 14, 2004 SCC 14 (2004)
R. v. Smith, [2004] 1 S.C.R. 385, 2004 SCC 14
Brian Joseph Smith Appellant v.Her Majesty The Queen Respondent andAttorney General of Ontario IntervenerIndexed as: R. v. SmithNeutral 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 labradorCriminal 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...See the full content of this document
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