COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Monney, 2020 ONCA 6
DATE: 20200106
DOCKET: C65929
Watt, Brown and Nordheimer JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Michael Monney
Appellant
Daniel C. Santoro, for Michael Monney (deceased)
No one appearing for the Crown
Heard: In writing
On appeal from the conviction entered on November 30, 2016 by Justice Robert A. Clark of the Superior Court of Justice, sitting with a jury.
REASONS FOR DECISION
[1] On November 30, 2016 a jury found Michael Monney (“the appellant”) guilty of second degree murder. On February 10, 2017 the trial judge sentenced the appellant to imprisonment for life.
[2] In accordance with s. 745.4 of the Criminal Code, the judge ordered that the appellant serve 15 years of his sentence before he would become eligible for release on parole.
[3] The appellant filed an inmate notice of appeal against conviction. On October 1, 2018 a solicitor’s notice of appeal against conviction was filed. As a result, the court file created when the inmate notice of appeal was filed was closed.
[4] On November 19, 2019 counsel for the appellant notified the Registrar of this court that the appellant had died. The notification was given by filing a document, styled “Notice of Abatement”, which reads:
TAKE NOTICE that the Appellant, Michael Monney, is deceased, and therefore the appeal should be noted as abated.
This notice was served on the respondent Crown.
The Positions of the Parties
[5] In accordance with the notice he has filed, counsel for the appellant asks that “the appeal…be noted as abated”. The Crown respondent, although served with the notice filed on the appellant’s behalf, has filed no material in response to the notice.
The Governing Principles
[6] 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 have recognized some discretion to proceed to judgment despite the death of the accused: Cadeddu, at pp. 118-119.
[7] 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.
[8] Three principal rationalia 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:
the existence of a truly adversarial context;
the presence of particular circumstances which justify the expenditure of limited judicial resources to resolve the issue; and
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 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at p. 358; Smith, at para. 39.
[9] 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.
[10] 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
[11] In our view, the record in this case reveals no exceptional circumstances which would warrant a departure from the general rule that the death of an accused appellant renders his appeal from conviction moot.
[12] First, the controversy in this appeal does not survive the appellant’s unfortunate death. He would obtain no apparent benefit were his appeal from conviction to be allowed.
[13] Second, the grounds of appeal advanced do not transcend the circumstances of this case in their significance to the administration of criminal justice. Each of the grounds is governed by well-established and binding precedent in no apparent need of re-examination or repair. 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 to be advanced is elusive of appellate review save in the circumstances apparent here.
[14] Third, while we readily acknowledge that a conviction of second degree murder carries with it a stigma, most serious crimes bear a similar brand. But if stigma were sufficient on its own to engage the exception to the rule which generally forecloses continuation of an appeal by a deceased party, then the exception would overtake the rule. Said in another way, the rule would become the exception, and the exception, the rule.
Disposition
[15] In the result, we see no reason to depart from the general rule that the death of an accused appellant renders his appeal from conviction moot. The appeal from conviction abates with the appellant’s death and is dismissed as moot.
“David Watt J.A.”
“David Brown J.A.”
“I.V.B Nordheimer J.A.”