The general rule is that 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. 

The discretion to hear the appeal of an individual who dies pending the hearing of his or her appeal should be exercised only in exceptional circumstances where the death of the appellant is survived by a continuing controversy which, notwithstanding the death of the individual most directly affected by the appeal, requires resolution in the interests of justice. 

See Smith, at paras. 4, 20, 50.

R. v. Slingerland, 2020 ONCA 417, at para. 12.

In R. v. Singerland, 2020 ONCA 417 the ONCA found no exceptional circumstances to justify departing form the general rule that the death of an accused appellant renders the appeals against conviction and sentence moot, notably– 

  • The appeal did not raise any issues of public importance to the administration of justice; 
  • While stigma attaches to those who are convicted of sexual offences, that stigma is not an exceptional circumstance. 

“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.”

R. v. Slingerland, at para. 19.

 Stuart O’Connell (Barrister/Solicitor)