The Conduct of an Appeal Blog

Supreme Court of Canada splits 4-3 on whether to proceed with moot appeal

Oct 21, 2019 6 MIN READ
Mark A. Gelowitz

Partner, Disputes, Toronto

W. David Rankin

Partner, Disputes, Toronto

Appellate courts will rarely exercise their jurisdiction to hear a moot criminal appeal. Such a circumstance recently arose in R. v. Poulin, 2019 SCC 47, where the Supreme Court of Canada split 4-3 on whether to proceed with an appeal despite the death of the respondent. The majority decided to entertain the appeal and proceeded to overrule 30 years of consistent jurisprudence regarding the interpretation of section 11(i) of the Canadian Charter of Rights and Freedoms (the right to the benefit of the lesser punishment where the punishment for the offence has varied between the time of commission and the time of sentencing). The new “binary” approach to that provision—which reduces the scope of the constitutional right from the consistent case law—is beyond the scope of this publication. However, the split between the majority and the dissent regarding whether to proceed with the moot appeal raises interesting issues of appellate practice.

Mootness in criminal appeals

Criminal appeals are rendered moot when the accused/offender dies. The traditional approach in Canada was that the appeal abates in such circumstances. However, the Supreme Court clarified in R. v. Smith in 2004 that appellate courts retain a limited discretion to continue with the appeal in “exceptional circumstances” where it is “in the interests of justice” to proceed. This is a discretionary but intentionally restrictive test. For example, an appeal may be continued where highly significant fresh evidence suggests the factual innocence of the appellant. This is discussed in more detail in Sopinka and Gelowitz on the Conduct of an Appeal, Fourth Edition, §3.130-131.

The mootness issue in Poulin

In Poulin, the respondent passed away shortly before the hearing of the sentence appeal. This was after the appellant Crown had filed its factum and after the Court had granted leave to intervene to three interveners, but before the respondent had filed his responding factum. The Crown brought a motion to the Court under section 76 of the Supreme Court Act to proceed with the appeal notwithstanding the respondent’s death. This motion was heard together with the appeal.

The deceased’s executor gave instructions to defend the respondent’s position should the Court decide to proceed with the appeal despite his death. However, in a fact mentioned by the dissent but not the majority, the executor (the deceased’s daughter) did not wish to proceed with the appeal.

Majority decision on mootness in Poulin

Justice Martin delivered the majority reasons in Poulin. Largely tracking the non-exhaustive factors outlined in Smith, Martin J. held that this was one of the “rare and exceptional” cases to proceed with an appeal despite the respondent’s death. Those factors, in summary, were as follows:

  1. There was a proper adversarial context because the deceased’s counsel submitted a full length factum and advocated for the deceased’s position at the hearing. Additionally, two of the three interveners made submissions that aligned with the respondent’s perspective.
  2. The Crown’s appeal was “clearly more than ‘arguable’” because the interpretation of section 11(i) “has not yet received comprehensive treatment in the jurisprudence”. More on that below.
  3. The constitutional question was a “legal issue of general public importance” which “trancend[s] the death” of the respondent, and “[b]y granting leave to appeal, this Court signaled that it considers the binary/global question to be of public importance and to merit closer analysis (see Supreme Court Act, s. 40(1))”.
  4. It was more efficient and fair to decide the questions of national importance on this appeal, as opposed to imposing the costs of doing so on other courts and justice system participants.
  5. Deciding the appeal would not intrude into the legislative role because interpreting the scope of Charter rights was for the courts, not Parliament.

It is worth pausing on the majority’s second and third factors. Regarding the Crown’s “clearly more than arguable” appeal, this was a case (as recognized by the majority) where the Crown’s argument depended on rejecting 30 years of consistent jurisprudence against the Crown’s position. The majority ultimately rejected that jurisprudence on the merits, holding that the earlier cases failed to properly consider the purposes underlying section 11(i). This is interesting because before the majority weighed in on the merits and overturned decades of law, the Crown had a weak appeal.

Based on the majority’s reasoning, it appears that where the motion to proceed with the moot appeal and the appeal itself are heard together, the “strength of the appeal” factor does not do much independent analytical work. If a plurality of judges would allow the appeal, clearly the appeal is strong, and this favours entertaining the moot appeal and determining the points of law. In contrast, if the judges would dismiss the appeal, there is less of a reason to proceed in light of its mootness.

Regarding the third factor, the majority stressed that the Court “signaled” the importance of the issues by granting leave to appeal. This is interesting because this factor will often be present in appeals to the Supreme Court of Canada (except appeals as of right). Every time the Supreme Court grants leave to appeal, there are—by definition—issues of public importance to be decided. This arguably should not weigh heavily in the analysis whether to proceed with a moot criminal appeal, as exercising this discretion in the criminal context is supposed to be rare and exceptional.

Dissent reasons on mootness

Justice Karakatsanis wrote for the dissent, which would have neither proceeded with the moot appeal nor overturned 30 years of consistent jurisprudence regarding the constitutional issue. Karakatsanis J. noted the following factors which militated against this case being one of the exceptional few where it is in the interests of justice to proceed with a moot criminal appeal:

  1. Regarding the adversarial context, the reasons of the courts below regarding section 11(i) were particularly brief. This was “hardly surprising” because since 1989 there had been 15 judicial decisions (including five from courts of appeal) which had all adopted the same interpretation of section 11(i) as applied in the courts below (which the majority rejected).
  2. There were no special circumstances transcending the death of the respondent, as there were no conflicting lines of cases (as the existing case law was unanimous), nor was the issue evasive of appellate review (as there was a long line of cases going back 30 years).
  3. It was inequitable and excessive to proceed with an appeal against a deceased person where there was opposition from his family.

Regarding the final consideration, Karakatsanis J. noted the actual relief that the Crown was seeking. The Crown sought an order “to set aside a sentence imposed on a deceased man and to substitute it for the sentence the Court considers appropriate before simply staying the new sentence”. In other words, the Crown sought an order sentencing the deceased to imprisonment he could not serve. That is not the relief that the majority ultimately granted. Although the majority allowed the appeal, it declined to pass a new sentence or to remit the matter to the sentencing court.


Poulin does not change the test regarding mootness in criminal appeals, but it potentially eases the path to arguing that an appeal is sufficiently “rare and exceptional” where the matter: (1) has been fully briefed; (2) raises constitutional issues; and (3) comes before the Supreme Court by leave as opposed to by right. It also shows that it can be favourable to the appellant for the motion to continue with the appeal to be heard together with the appeal itself. In a case like Poulin, an appeal that is weak under the existing law can become “clearly more than ‘arguable’” if the appellant can convince the majority to reject the existing law and substitute a new constitutional interpretation.