R. v. Smith (B.J.), (2004) 235 Nfld. & P.E.I.R. 236 (SCC)

• Judge: Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 07, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2004), 235 Nfld. & P.E.I.R. 236 (SCC);2004 SCC 14;[2004] ACS no 11;17 CR (6th) 203;235 DLR (4th) 587;235 Nfld & PEIR 236;[2004] 1 SCR 385;317 NR 168;181 CCC (3d) 225;[2004] SCJ No 11 (QL)

R. v. Smith (B.J.) (2004), 235 Nfld. & P.E.I.R. 236 (SCC);

    699 A.P.R. 236

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

MLB headnote and full text

Temp. Cite: [2004] Nfld. & P.E.I.R. TBEd. MR.012

Brian Joseph Smith (appellant) v. Her Majesty the Queen (respondent) and Attorney General of Ontario (intervener)

(29166; 2004 SCC 14; 2004 CSC 14)

Indexed As: R. v. Smith (B.J.)

Supreme Court of Canada

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

March 4, 2004.

Summary:

An accused was convicted of murder in 1985. In 1994, the accused died pending his conviction appeal. In 2001, the Crown moved to abate the appeal. The accused's family sought to pursue the appeal.

The Newfoundland and Labrador Court of Appeal, in a decision reported at 209 Nfld. & P.E.I.R. 181; 626 A.P.R. 181, allowed the motion and struck the notice of appeal. The family appealed.

The Supreme Court of Canada dismissed the appeal.

Editor's note: for a related case involving the same parties see 203 Nfld. & P.E.I.R. 90; 610 A.P.R. 90.

Courts - Topic 2106.1

Jurisdiction - Appellate jurisdiction - Crim­inal appeals - Where accused dies - The Supreme Court of Canada stated that when an interested party sought to continue a criminal 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." - See paragraph 10.

Courts - Topic 2106.1

Jurisdiction - Appellate jurisdiction - Crim­inal appeals - Where accused dies - An accused died while pursuing an appeal from his murder conviction - The ac­cused's family sought to continue the ap­peal - The Crown asserted that an appeal could not be allowed under s. 686 of the Criminal Code unless a new trial could be ordered - If the court could not order a new trial, it lacked jurisdiction under s. 686 to stay a new trial - This gap in the remedial authority indicated that Parlia­ment never intended such appeals to be heard - The Supreme Court of Canada re­jected the argument - The quashing of a conviction was an exercise of the court's powers under s. 686(2) - Section s. 686(8) authorized additional orders, which in­cluded a stay of proceedings - An appel­lant exercised his or her "personal right" to appeal when the notice of appeal was filed - The filing was the root of the appellate's court's jurisdiction - Whether the court chose to proceed with the appeal was a discretionary matter - See paragraphs 22 and 23.

Courts - Topic 2106.1

Jurisdiction - Appellate jurisdiction - Crim­inal appeals - Where accused dies - On February 4, 1994, an accused died pending his conviction appeal - The accused's family sought to continue the appeal - The Supreme Court of Canada stated that the ap­peal became irregular on February 4, 1994, because, as of that date, it was in the name of a non-existent person - The irreg­ularity ought to have been addressed by an application by the accused's executor or personal representative to pursue the appeal in substitution for the deceased - If the appeal was to be carried on in the interest of the family, a live appellant had to be substituted - Since neither the Criminal Code nor the Criminal Appeal Rules spoke to substitution on the death of the parties, rule 7.07 of the Newfoundland and La­brador Supreme Court Rules applied with any modification that was necessary - Similar­ly, appeals to the Supreme Court of Canada were governed in this respect by ss. 72 to 78 of the Supreme Court Act - The substitution of a live appellant was important to the retention of jurisdiction - The court noted that no application had been made to quash the appeal for failure to substitute a live appellant - If it had been necessary, the court would have invited counsel to apply to appoint Smith's executor or personal representative nunc pro tunc to continue the appeal on the family's behalf - However, it was unnec­essary where the appeal was to be dis­missed in any event - See paragraphs 26 to 30.

Courts - Topic 2106.1

Jurisdiction - Appellate jurisdiction - Crim­inal appeals - Where accused dies - The Supreme Court of Canada held that when an appellant (or, in a Crown appeal, the respondent) dies, the appellate court re­tained jurisdiction to proceed "in the inter­ests of justice", but that it was a juris­dic­tion that should be sparingly exercised - The court provided the following non-exhaus­tive list of factors relevant to that determination: "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." - Not all factors would necessarily be present and their strength would vary according to the circumstances - The court had to weigh the different factors relevant to a particular appeal to determine whether notwithstand­ing the general rule favouring abatement, it was in the interests of justice to proceed - See paragraphs 9 to 51.

Courts - Topic 2106.1

Jurisdiction - Appellate jurisdiction - Crim­inal appeals - Where accused dies - In 1994, an accused died pending his appeal from a 1985 murder conviction - In 2001, the Crown moved to abate the appeal - The accused's family sought to continue the appeal - The Supreme Court of Canada affirmed that the interests of justice did not require that the appeal be heard - There was a proper adversarial context - How­ever, the most that could be said for the grounds of appeal was that there were good arguable points - The family was not seeking to admit fresh evidence - Rather, they were suggesting that access to the police records might result in the discovery of exculpatory evidence - There was noth­ing exceptional about the consequences to the family that would flow from the resol­ution of the legal points - Even if success­ful, the outcome of the appeal would be inconclusive with respect to the appellant's guilt or innocence - The court added that appeals pending an appellant's death should be proceeded with promptly - Fail­ure to do so for an extended period (as in this case), might be a factor against the exercise of the court's discretion - See paragraphs 51 to 61.

Cases Noticed:

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 4].

R. v. Hay, [1994] O.J. No. 2598 (C.A.), refd to. [para. 11].

R. v. Lewis (M.W.) (1997), 98 B.C.A.C. 96; 161 W.A.C. 96; 153 D.L.R.(4th) 184 (C.A.), refd to. [para. 11].

R. v. Collins (1973), 13 C.C.C.(2d) 172 (Ont. C.A.), refd to. [para. 11].

R. v. Cadeddu (1983), 4 C.C.C.(3d) 112 (Ont. C.A.), refd to. [para. 11].

R. v. Kearley (No. 2), [1994] 3 All E.R. 246 (H.L.), refd to. [para. 11].

Dove v. United States (1976), 423 U.S. 325, refd to. [para. 12].

State v. Christensen (1993), 866 P.2d 533 (Utah), refd to. [para. 12].

United States v. Rorie (2003), 58 M.J. 244 (C.A.A.F.), refd to. [para. 12].

Whitehouse v. State (1977), 364 N.E.2d 1015 (Ind.), refd to. [para. 12].

Durham v. United States (1971), 401 U.S. 481, refd to. [para. 14].

State v. Makaila (1995), 897 P.2d 967 (Haw.), refd to. [para. 14].

United States v. Mochlenkamp (1977), 557 F.2d 126, refd to. [para. 14].

Griffin v. Illinois (1956), 351 U.S. 12, refd to. [para. 14].

United States v. Schumann (1988), 861 F.2d 1234 (11 Cir.), refd to. [para. 14].

United States v. Oberlin (1983), 718 F.2d 894 (9th Cir.), refd to. [para. 14].

United States v. Pauline (1980), 625 F.2d 684 (5th Cir.), refd to. [para. 14].

United States v. Dudley (1984), 739 F.2d 175 (4th Cir.), refd to. [para. 15].

R. v. Noble (S.I.), [1997] 1 S.C.R. 874; 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1, refd to. [para. 16].

R. v. Farinacci (L.W.) et al. (1993), 67 O.A.C. 197; 86 C.C.C.(3d) 32 (C.A.), refd to. [para. 16].

Oldfield v. Transamerica Life Insurance Co. of Canada et al., [2002] 1 S.C.R. 742; 284 N.R. 104; 156 O.A.C. 310; 2002 SCC 22, refd to. [para. 16].

Demeter v. British Pacific Life Insurance Co. (1983), 43 O.R.(2d) 33 (H.C.), affd. (1984), 7 O.A.C. 143; 48 O.R.(2d) 266 (C.A.), refd to. [para. 16].

R. v. Jetté (1999), 141 C.C.C.(3d) 52 (Que. C.A.), refd to. [para. 17].

Commonwealth v. Walker (1972), 447 Pa. 146 (S.C.), refd to. [para. 19].

State v. Jones (1976), 220 Kan. 136, refd to. [para. 19].

State v. McGettrick (1987), 509 N.E.2d 378 (Ohio), refd to. [para. 19].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 52 C.R.(3d) 1; 26 C.C.C.(3d) 481, refd to. [para. 21].

Kourtessis et al. v. Minister of National Revenue et al., [1993] 2 S.C.R. 53; 153 N.R. 1; 27 B.C.A.C. 81; 45 W.A.C. 81, refd to. [para. 21].

R. v. Meltzer, [1989] 1 S.C.R. 1764; 96 N.R. 391, refd to. [para. 21].

R. v. Welch, [1950] S.C.R. 412, refd to. [para. 21].

R. v. Adams (J.R.), [1995] 4 S.C.R. 707; 190 N.R. 161; 178 A.R. 161; 110 W.A.C. 161; 103 C.C.C.(3d) 262; 44 C.R.(4th) 195; 131 D.L.R.(4th) 1, refd to. [para. 23].

R. v. Lofthouse (1990), 149 N.R. 236; 60 O.A.C. 320 (S.C.C.), refd to. [para. 29].

Forget v. Québec (Procureur général) and Office de la langue française, [1988] 2 S.C.R. 90; 87 N.R. 37; 17 Q.A.C. 241, refd to. [para. 32].

Mercure v. Saskatchewan, [1988] 1 S.C.R. 234; 83 N.R. 81; 65 Sask.R. 1; 39 C.C.C.(3d) 385; [1988] 2 W.W.R. 577; 48 D.L.R.(4th) 1, refd to. [para. 35].

R. v. Finlay, [1993] 3 S.C.R. 103; 156 N.R. 374; 113 Sask.R. 241; 52 W.A.C. 241, refd to. [para. 36].

R. v. Gautreau (1989), 52 C.C.C.(3d) 410 (Que. C.A.), refd to. [para. 36].

Southam Inc. v. Canada - see R. v. Veinotte.

R. v. Veinotte (1990), 38 O.A.C. 142; 55 C.C.C.(3d) 428 (C.A.), refd to. [para. 36].

Roumania v. Cheng et al. (1997), 162 N.S.R.(2d) 395; 485 A.P.R. 395; 119 C.C.C.(3d) 561 (C.A.), refd to. [para. 37].

R. v. Anderson (1982), 1 C.C.C.(3d) 267 (Ont. C.A.), refd to. [para. 37].

R. v. Yarema (1991), 53 O.A.C. 387; 3 O.R.(3d) 459 (C.A.), refd to. [para. 44].

Morin v. Comité National, [1985] 1 F.C. 3; 60 N.R. 121; 46 C.R.(3d) 238; 20 C.C.C.(3d) 123 (F.C.A.), refd to. [para. 49].

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 2000 SCC 38, refd to. [para. 54].

R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 250 N.R. 103; 129 O.A.C. 205; 2000 SCC 11, refd to. [para. 54].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606; 136 D.L.R.(3d) 89, refd to. [para. 54].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 54].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686 [para. 22].

Rules of Court (Nfld. & Lab.), Supreme Court Rules, rule 7.07 [para. 27].

Supreme Court Act, R.S.C. 1985, c. S-26, sect. 72 to 78 [para. 28].

Authors and Works Noticed:

Cole, David P., and Manson, Allan, Par­dons and the Royal Prerogative of Mercy in Release from Imprisonment: The Law of Sentencing, Parole and Judicial Review (1990), pp. 409, 410 [para. 25].

Counsel:

Jerome P. Kennedy, for the appellant;

Pamela J. Goulding, for the respondent;

Gillian Roberts and Kimberley Crosbie, for the intervener.

Solicitors of Record:

Simmonds, Kennedy, St. John's, New­foundland, for the appellant;

Department of Justice, St. John's, New­foundland, for the respondent;

Ministry of the Attorney General, Toronto, Ontario, for the intervener.

This appeal was heard on October 7, 2003, by Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ., of the Supreme Court of Canada. Binnie, J., de­livered the following judgment of the Court in both official languages on March 4, 2004.