



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Slingerland, 2020 ONCA 417

DATE: 20200625

DOCKET:
M
51576 (
C
58040)

Watt, Harvison Young and Coroza
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Owen Slingerland

Moving Party

Brian H. Greenspan, for the moving
    party

Katherine Beaudoin, for the
    respondent

Heard: In-writing

REASONS FOR DECISION


[1]

After a trial before a judge of the Superior
    Court of Justice sitting without a jury, the appellant, who was then 90 years
    old and in poor health, was convicted of four counts of indecent assault. The
    trial judge sentenced the appellant to imprisonment for a term of two years and
    imposed the usual array of ancillary orders.

[2]

The offences of which the appellant was
    convicted arose out of conduct alleged to have occurred over a half-century
    earlier when the appellant was a practising family physician. It was alleged
    that the appellant indecently assaulted all four complainants during medical
    examinations and, on one occasion, two of  the complainants at their home.

[3]

The appellant appealed both conviction and
    sentence. Counsel perfected the appeal on April 8, 2015.

[4]

Unfortunately, on May 14, 2015, about six weeks
    after his appeal had been perfected, the appellant passed away.

[5]

Sometime after the appellant's death, family
    members contacted appellate counsel. They wanted to pursue the appeal. The
    reasons were twofold. They wanted to clear the appellant's reputation. And they
    wanted to have the conviction quashed so that they could properly defend civil
    actions commenced by two of the complainants.

[6]

After several discussions with members of the
    appellants family, appellate counsel received instructions to ask this court
    to dismiss the appeal as an abated appeal due to the death of the appellant.

The Positions of the Parties

[7]

The parties jointly consent to the dismissal of
    the appeal as an abated appeal.

The Governing Principles

[8]

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.

[9]

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.

[10]

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.

[11]

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.

[12]

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

[13]

We are satisfied that this is an appropriate
    case in which to give effect to the joint position advanced by the parties. In
    addition, we are unable to find any exceptional circumstances that would
    justify departure from the general rule that the death of an accused appellant
    renders the appeals against conviction and sentence moot.

[14]

First, the controversy in the appeal does not
    survive the appellant's unfortunate death. He would not benefit if the
    conviction appeal were allowed, nor from any reduction or alteration in the
    manner in which the sentence imposed is to be served.

[15]

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.

[16]

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.

Disposition

[17]

In the result, we see no reason to reject the
    agreement of the parties or to depart from the general rule that the death of
    the appellant renders his appeals from conviction and sentence moot. The
    appeals against conviction and sentence are dismissed as abated appeals without
    any adjudication of their merits.

David Watt J.A

A. Harvison Young J.A.

S. Coroza J.A.


