Court of Appeal for Ontario

Date: 2019-09-16 Docket: C64752

Judges: Watt, Miller and Fairburn JJ.A.

In the Matter of: Carlos Tahuite

An Appeal Under Part XX.1 of the Code

Counsel:

• Stephen Gehl, for the appellant
• Andrew Cappell, for the respondent
• Lauren Barney, for St. Joseph's Healthcare Hamilton

Heard: In writing

On appeal from: the disposition of the Ontario Review Board, dated November 10, 2017.

Reasons for Decision

[1] After the appellant had been found not criminally responsible on account of mental disorder on a charge of attempted murder, he became subject to the jurisdiction of the Ontario Review Board.

[2] On November 10, 2017 the Board ordered that the appellant be detained in the Secure Forensic Unit at St. Joseph's Healthcare in Hamilton. The Board issued its reasons for this disposition on November 17, 2017.

[3] On December 17, 2017, the appellant filed a notice of appeal from the disposition ordered by the Board.

[4] On August 21, 2019 counsel for the respondent, the Attorney General for Ontario, advised the court that the appellant had passed away while detained at St. Joseph's Healthcare.

[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: see R. v. Smith, 2004 SCC 14, [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 other 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 systematic issue related to the administration of justice or collateral consequences to the deceased's 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 free-standing 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 remedies 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 this appeal. We agree with that assessment.

[8] In the result, the appeal abates with the death of the appellant. For that reason, the appeal is dismissed.

"David Watt J.A."

"B.W. Miller J.A."

"Fairburn J.A."