



COURT OF APPEAL FOR ONTARIO

CITATION: Tahuite (Re), 2019 ONCA 720

DATE: 20190916

DOCKET: C64752

Watt, Miller and Fairburn JJ.A.

IN THE MATTER OF: Carlos Tahuite

AN APPEAL UNDER PART XX.1 OF THE
CODE

Stephen Gehl, for the appellant

Andrew Cappell, for the respondent

Lauren Barney, for St. Josephs Healthcare
    Hamilton

Heard: in writing

On appeal from the disposition of the
    Ontario Review Board, dated November 10, 2017.

REASONS FOR DECISION

[1]

After the appellant had been found not
    criminally responsible on account of mental disorder on a charge of attempted
    murder, he became subject to the jurisdiction of the Ontario Review Board.

[2]

On November 10, 2017 the Board ordered that the
    appellant be detained in the Secure Forensic Unit at St. Josephs Heathcare in
    Hamilton. The Board issued its reasons for this disposition on November 17,
    2017.

[3]

On December 17, 2017, the appellant filed a notice
    of appeal from the disposition ordered by the Board.

[4]

On August 21, 2019 counsel for the respondent, the
    Attorney General for Ontario, advised the court that the appellant had passed
    away while detained at St. Josephs Healthcare.

[5]

It is well-settled that, as a general rule, an
    appeal abates with the death of the appellant. Despite this general rule, an
    appellate court retains jurisdiction to proceed to hear the appeal if the court
    considers it in the interests of justice to do so. It is a discretion which
    should be sparingly exercised: see
R. v. Smith
, [2004] 1 S.C.R. 385,
    at paras. 11 and 20.

[6]

To determine whether there are special
    circumstances that make it in the interests of justice to proceed to hear and
    determine an appeal despite the death of an appellant, an appellate court must
    consider all the circumstances. Among, but not dispositive of other factors
    relevant for consideration are these:

i.

the presence of a proper adversarial context;

ii.

the strength of the grounds of appeal;

iii.

the existence of special circumstances that
    transcend the death of the individual appellant, such as a legal issue of
    general public importance, a systematic issue related to the administration of
    justice or collateral consequences to the deceaseds family, other interested
    persons or the public;

iv.

the expenditure of limited judicial resources;
    and

v.

the likelihood that continuing the appeal would
    go beyond the judicial function of resolving concrete disputes and involve the
    court in free-standing legislative-type pronouncements more appropriately the
    role of the legislative branch.

See
Smith
, at para. 15

[7]

The issues raised in the notice of appeal are
    narrow. The relief sought equally so. The arguments proposed and the remedies
    sought do not transcend the boundaries of this litigation. No systemic issue
    related to the administration of justice emerges. Counsel on all sides, for the
    appellant detainee, the respondent Crown and the Hospital agree that there are
    no special circumstances that would merit an exercise of our discretion to hear
    this appeal. We agree with that assessment.

[8]

In the result, the appeal abates with the death
    of the appellant. For that reason, the appeal is dismissed.

David Watt J.A.

B.W. Miller J.A.

Fairburn J.A.


