



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Monney, 2020 ONCA 6

DATE: 20200106

DOCKET: C65929

Watt, Brown and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Monney

Appellant

Daniel C. Santoro, for Michael Monney
    (deceased)

No one appearing for the Crown

Heard: In writing

On appeal from the conviction entered on
    November 30, 2016 by Justice Robert A. Clark of the Superior Court of Justice,
    sitting with a jury.

REASONS FOR DECISION


[1]

On November 30, 2016 a jury found Michael Monney
    (the appellant) guilty of second degree murder. On February 10, 2017 the
    trial judge sentenced the appellant to imprisonment for life.

[2]

In accordance with s. 745.4 of the
Criminal

Code
, the judge ordered that the appellant serve 15 years of his
    sentence before he would become eligible for release on parole.

[3]

The appellant filed an inmate notice of appeal
    against conviction. On October 1, 2018 a solicitors notice of appeal against
    conviction was filed. As a result, the court file created when the inmate
    notice of appeal was filed was closed.

[4]

On November 19, 2019 counsel for the appellant
    notified the Registrar of this court that the appellant had died. The
    notification was given by filing a document, styled Notice of Abatement,
    which reads:

TAKE NOTICE that the Appellant, Michael
    Monney, is deceased, and therefore the appeal should be noted as abated.

This notice was served on the
    respondent Crown.

The Positions of the Parties

[5]

In accordance with the notice he has filed,
    counsel for the appellant asks that the appealbe noted as abated. The Crown
    respondent, although served with the notice filed on the appellants behalf,
    has filed no material in response to the notice.

The Governing Principles

[6]

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 have recognized
    some discretion to proceed to judgment despite the death of the accused:
Cadeddu
,
    at pp. 118-119.

[7]

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.

[8]

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:


1.

the existence of a truly adversarial context;


2.

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


3.

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.
[9]

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.
[10]

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
[11]

In our view, the record in this case reveals no
    exceptional circumstances which would warrant a departure from the general rule
    that the death of an accused appellant renders his appeal from conviction moot.
[12]

First, the controversy in this appeal does not survive
    the appellants unfortunate death. He would obtain no apparent benefit were his
    appeal from conviction to be allowed.
[13]

Second, the grounds of appeal advanced do not
    transcend the circumstances of this case in their significance to the
    administration of criminal justice. Each of the grounds is governed by
    well-established and binding precedent in no apparent need of re-examination or
    repair. 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 to be advanced is elusive of appellate review save in the
    circumstances apparent here.
[14]

Third, while we readily acknowledge that a
    conviction of second degree murder carries with it a stigma, most serious
    crimes bear a similar brand. But if stigma were sufficient on its own to engage
    the exception to the rule which generally forecloses continuation of an appeal
    by a deceased party, then the exception would overtake the rule. Said in
    another way, the rule would become the exception, and the exception, the rule.
Disposition
[15]

In the result, we see no reason to depart from
    the general rule that the death of an accused appellant renders his appeal from
    conviction moot. The appeal from conviction abates with the appellants death
    and is dismissed as moot.
David Watt J.A.
David Brown J.A.
I.V.B Nordheimer J.A.