WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court Information

Court of Appeal for Ontario

Date: 2018-11-20

Docket: C62480 & C62612

Panel: Watt, van Rensburg and Fairburn JJ.A.

Parties

Between

Her Majesty the Queen Respondent on C62480/ Appellant on C62616

and

Michael Beaton Appellant on C62480/ Respondent on C62616

Counsel

Howard K. Krongold, for Michael Beaton (deceased)

Hannah Freeman, for the Crown

Hearing and Appeal Information

Heard: June 13, 2018

On appeal from: the conviction entered on June 23, 2016 and on appeal by the Crown from the sentence imposed on August 9, 2016 by Justice Douglas J.A. Rutherford of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

Overview

[1] Michael Beaton was convicted of three sexual offences committed on three different complainants at various times during a professional relationship. He was sentenced to a term of imprisonment of 15 months to be served in the community.

[2] Michael Beaton appealed his convictions. The Crown appealed the sentence. The appeals were heard together on June 13, 2018. The court reserved its decision.

[3] Unfortunately, on September 29, 2018 Michael Beaton died. About one month later, the Registrar was advised of Mr. Beaton's death.

[4] In a conference call with a member of the panel of judges who had heard the appeal, counsel were invited to make written submissions about the legal consequences of Mr. Beaton's death on the outstanding appeals. Counsel have made those submissions. These reasons explain our conclusion that these appeals should be dismissed as moot.

The Positions of the Parties

[5] Although counsel for Mr. Beaton acknowledges that, as a general rule, an appeal abates with the death of a party, he contends that the court has a discretion to decide an appeal after the party's death where it is in the interests of justice to do so. The interests of justice are typically engaged where there is an issue of broad public importance extending beyond the facts of the case. While counsel for the appellant recognizes that there is no issue of broad public importance engaged by this appeal, he says that the interests of justice favour delivery of judgment because a final resolution is of importance to Mr. Beaton's family and friends. Mr. Beaton was for decades a respected professional, and the convictions, which were widely publicized, cast a cloud over his reputation. His family would like closure in the form of the determination of the appeal on the merits.

[6] The Crown says that both appeals should be dismissed. The Crown contends that the court's discretion to determine an appeal after a party's death should only be exercised in exceptional circumstances where there is a continuing controversy which, notwithstanding the death of the person most directly affected, requires resolution in the interests of justice. The Crown maintains that there are no exceptional circumstances in this case.

The Governing Principles

[7] 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.

[8] In Smith, where the accused was the appellant, the Supreme Court of Canada held that the appellant's 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 appellant's death is survived by a continuing controversy which requires resolution in the interests of justice: Smith, at paras. 4, 20.

[9] Three principal rationales 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 litigant's 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.

[10] 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.

[11] 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

[12] We are unable to find any exceptional circumstances in this case to justify departure from the general rule that the death of the accused renders both appeals moot.

[13] First, the controversy in this appeal does not survive Mr. Beaton's unfortunate death. He would not benefit if the conviction appeal were allowed, or from any determination of the Crown's appeal against sentence.

[14] 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.

[15] 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.

Conclusion

[16] In the result, we see no reason to depart from the general rule that the death of an accused renders this appeal from conviction and the Crown's appeal from sentence moot. The appeals are dismissed.

"David Watt J.A." "K. van Rensburg J.A." "Fairburn J.A."