Tahuite (Re), 2019 ONCA 720

NCR - STATUS OF APPEAL UPON DEATH OF APPELLANT

Background

Appellant was found NCR on account of mental disorder on charge of attempted murder. Ontario Review Board ordered the Appellant be detained in Forensic Unit at hospital in Hamilton. Appellant filed notice of appeal. Prior to the appeal being heard, the Appellant passed away.

What happens when Appellant dies prior to appeal being heard?

As a general rule, an appeal is terminated with the death of the Appellant. An appellate court, however, retains jurisdiction to proceed with the appeal if it is in the interests of justice to do so. This discretion should be used sparingly.

In determining whether to exercise this discretion the court must consider all of the circumstances, including but not limited to: (i) presence of a proper adversarial context, (ii) strength of the grounds of appeal, (iii) existence of special circumstances that transcend death of the individual appellant (such as legal issue of general public importance, a systematic issue related to the administration of justice or collateral consequences to the deceased’s family), (iv) expenditure of limited judicial resources, and (v) 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.

Disposition

ONCA, considering all of the circumstances, chose not to exercise its discretion. Appeal dismissed.