



COURT OF APPEAL FOR ONTARIO

CITATION: Hamill (Re), 2019 ONCA 570

DATE: 20190705

DOCKET: C66836

Watt, Tulloch and Lauwers JJ.A.

IN THE MATTER OF:  Bruce Hamill

AN APPEAL UNDER PART XX.1 OF THE
CODE

Peter Mudry, for the appellant

Leslie Paine, for the respondent, Attorney General for
    Ontario

Janice Blackburn, for the respondent Person in Charge of
    Waypoint Centre for Mental Health Care

Heard in writing and released orally: June 27,
    2019

On appeal against the disposition of the Ontario Review
    Board, dated April 8, 2019.

REASONS FOR
    DECISION

[1]

On December 15, 1992 the appellant was found not criminally responsible
    on account of mental disorder on a single count of first degree murder. The
    trial judge did not conduct a disposition hearing. The Ontario Review Board
    conducted a hearing and ordered that the appellant be detained at what was then
    the Oak Ridge Division of the Mental Health Centre at Penetanguishene.

[2]

On an annual basis since that time, the Board has held hearings to
    determine the disposition that is necessary and appropriate in the
    circumstances as required by ss. 672.54 and 672.81 of the
Criminal Code
.
    The most recent disposition, made on April 8, 2019, for reasons released on
    April 17, 2019, ordered the appellants continued detention at Waypoint Centre
    for Mental Health Care.

[3]

By Notice of Appeal dated the day following the day on which the Board
    released its reasons for decision, the appellant appealed the decision of the
    Board to this Court.

[4]

On June 20, 2019, the court was advised by the respondent, Attorney
    General for Ontario, that the appellant had passed away on May 21, 2019 when
    detained at Waypoint.

[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:
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 the 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
    systemic 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 freestanding
    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 remedy 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 the appeal. We agree
    with that assessment.

[8]

In the result, the appeal abates with the death of the appellant. And
    for that reason it is dismissed.

David Watt J.A.

M. Tulloch J.A.

P. Lauwers J.A.


