



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)     Subject to subsection (2),
    the presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)  any of the
    following offences;

(i)     an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)    any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)   REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)  two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in paragraph (a).

(2)   In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)  at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)  on
    application made by the victim, the prosecutor or any such witness, make the
    order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Beaton, 2018 ONCA 924

DATE: 20181120

DOCKET: C62480 & C62612

Watt, van Rensburg and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent on C62480/

Appellant on C62616

and

Michael Beaton

Appellant on C62480/

Respondent on C62616

Howard K. Krongold, for Michael Beaton (deceased)

Hannah Freeman, for the Crown

Heard: June 13, 2018

On appeal from the conviction entered on June 23, 2016
    and on appeal by the Crown from the sentence imposed on August 9, 2016 by
    Justice Douglas J.A. Rutherford of the Superior Court of Justice, sitting
    without a jury.

REASONS FOR DECISION

[1]

Michael Beaton was convicted of three sexual offences committed on three
    different complainants at various times during a professional relationship. He
    was sentenced to a term of imprisonment of 15 months to be served in the
    community.

[2]

Michael Beaton appealed his convictions. The Crown appealed the
    sentence. The appeals were heard together on June 13, 2018. The court reserved
    its decision.

[3]

Unfortunately, on September 29, 2018 Michael Beaton died. About one
    month later, the Registrar was advised of Mr. Beatons death.

[4]

In a conference call with a member of the panel of judges who had heard
    the appeal, counsel were invited to make written submissions about the legal
    consequences of Mr. Beatons death on the outstanding appeals. Counsel have
    made those submissions. These reasons explain our conclusion that these appeals
    should be dismissed as moot.

The Positions of the Parties

[5]

Although counsel for Mr. Beaton acknowledges that, as a general rule, an
    appeal abates with the death of a party, he contends that the court has a
    discretion to decide an appeal after the partys death where it is in the
    interests of justice to do so. The interests of justice are typically engaged
    where there is an issue of broad public importance extending beyond the facts
    of the case. While counsel for the appellant recognizes that there is no issue
    of broad public importance engaged by this appeal, he says that the interests
    of justice favour delivery of judgment because a final resolution is of
    importance to Mr. Beatons family and friends. Mr. Beaton was for decades a
    respected professional, and the convictions, which were widely publicized, cast
    a cloud over his reputation. His family would like closure in the form of the
    determination of the appeal on the merits.

[6]

The Crown says that both appeals should be dismissed. The Crown contends
    that the courts discretion to determine an appeal after a partys death should
    only be exercised in exceptional circumstances where there is a continuing
    controversy which, notwithstanding the death of the person most directly
    affected, requires resolution in the interests of justice. The Crown maintains
    that there are no exceptional circumstances in this case.

The Governing Principles

[7]

The traditional view in Canada is that a criminal appeal ought never to
    survive the death of an accused. The death of the accused causes the appeal to
    abate whether the accused is the appellant or respondent, and abatement occurs
    even if the appeal has been argued and the decision reserved:
R. v. Cadeddu
(1983), 3 C.C.C. (3d) 112 (Ont. C.A.), at p. 114;
R. v. Smith
, 2004
    SCC 14, [2004] 1 S.C.R. 385, at para. 11. Under this traditional rule, the
    courts nonetheless recognized some discretion to proceed to judgment despite
    the death of the accused:
Cadeddu
, at pp. 118-119.

[8]

In
Smith
, where the accused was the appellant, the Supreme
    Court of Canada held that the appellants death rendered the appeal moot. But the
    court acknowledged a discretion to proceed with a moot appeal, provided the
    discretion was exercised in accordance with judicial principles. The court
    emphasized, however, that this discretion should be exercised only in
    exceptional circumstances where the appellants death is survived by a
    continuing controversy which requires resolution in the interests of justice:
Smith
,
    at paras. 4, 20.

[9]

Three principal rationalia underlie the policy or practice governing the
    continuance of moot appeals and inform the exercise of the circumscribed
    discretion to determine the appeal despite the party litigants death:


i.

the existence of a truly adversarial context;


ii.

the presence of particular circumstances which justify the expenditure
    of limited judicial resources to resolve the issue; and


iii.

the respect shown by courts to limit themselves to their proper
    adjudicative role, as opposed to making freestanding legislative-type
    pronouncements.

See
Borowski v. Canada (Attorney General),
[1989]
    1 S.C.R. 342, at p. 358;
Smith
, at para. 39.

[10]

The
Borowski
court outlined a two-step approach to the hearing of moot
    appeals. The first step involves an inquiry and determination whether the
    required tangible and concrete dispute has disappeared and the issues have
    become academic. If the case ascends the first step, the court should then
    determine whether it should exercise its discretion to hear the case:
Borowski,
at p. 353;
Smith,
at para. 33.

[11]

In
    the end, the general test an appellate court should apply when considering
    whether to proceed with an appeal rendered moot by the death of an accused, is
    whether there exist special circumstances that make it in the interests of
    justice to proceed:
Smith
, at para. 50.

The Principles Applied

[12]

We
    are unable to find any exceptional circumstances in this case to justify
    departure from the general rule that the death of the accused renders both
    appeals moot.

[13]

First,
    the controversy in this appeal does not survive Mr. Beatons unfortunate death.
    He would not benefit if the conviction appeal were allowed, or from any
    determination of the Crowns appeal against sentence.

[14]

Second,
    the issues raised on both appeals do not transcend the circumstances of this
    case in their significance to the administration of justice. None of the
    grounds advanced in argument of the appeals raise any issue of importance to
    the administration of criminal justice. Nothing has a constitutional dimension.
    Nothing requires the interpretation of a statutory provision or common law rule
    of frequent application and unresolved controversy in the daily business of our
    trial courts. And no issue raised is evasive of appellate review.

[15]

Third,
    while we recognize that convictions for sexual offences carry with them a
    stigma, most serious crimes carry with them a stigma. But if stigma, coupled
    with media coverage, were sufficient to constitute exceptional circumstances,
    the rule that generally forecloses continuation of an appeal by a deceased
    party would be supplanted by its exception. Put otherwise, the rule would
    become the exception and the exception, the rule.

Conclusion

[16]

In
    the result, we see no reason to depart from the general rule that the death of
    an accused renders this appeal from conviction and the Crowns appeal from
    sentence moot. The appeals are dismissed.

David Watt J.A.
K. van Rensburg J.A.
Fairburn J.A.


