COURT OF APPEAL FOR ONTARIO

CITATION: Almeida (Re), 2016 ONCA 929

DATE: 20161209

DOCKET: M47230 (C61860)

Watt, van Rensburg and Huscroft JJ.A.

IN THE MATTER OF: Stanley Almeida

AN APPEAL UNDER PART XX.1 OF THE CODE

Stanley A. Almeida, acting in person

Andrea Baiasu, for the Crown

Barbara Walker-Renshaw, for Ontario Shores Centre for Mental Health Sciences

Howard L. Krongold, appearing as amicus curiae via teleconference

Heard: December 2, 2016

On a motion to review the order of a single judge refusing the request to adjourn the hearing of the appeal scheduled for December 19, 2016.

By the Court:

[1] Stanley Almeida is a self-represented appellant. As a result of a finding of NCRMD made nearly two decades ago, he is subject to the jurisdiction of the Ontario Review Board. To be more specific, he is bound by the terms of a disposition made by a panel of that Board on October 9, 2015.

[2] Mr. Almeida has filed an appeal to this court which has been scheduled for hearing on December 19, 2016. He does not quarrel with the disposition made by the Board on October 9, 2015, rather he challenges a ruling released by the Board on February 26, 2016 rejecting a claim for Charter relief he had advanced before the Board.

The Motion

[3] By this motion, Mr. Almeida asks this panel to review and set aside an order made by a single judge dismissing his request to adjourn the hearing of the appeal until February, 2017 and confirming the hearing date of December 19, 2016.

[4] The respondents on the appeal, Ontario Shores Centre for Mental Health Sciences (Ontario Shores) and the Attorney General of Ontario, take different positions on this motion. Ontario Shores takes no position. The Attorney General opposes the request. Mr. Howard Krongold, who has been appointed amicus, appeared on the motion by teleconference. Like Ontario Shores, he took no position in response to the motion.

The Evidentiary Basis for the Motion

[5] In support of his motion, Mr. Almeida says that the decision of the single judge refusing his request for an adjournment of the hearing of his appeal is grounded on a misapprehension of fact and a consideration of an irrelevant factor. The single judge mistakenly said that Mr. Almeida had sought and been granted an adjournment of the hearing of his appeal on a prior occasion. Not so, Mr. Almeida says. Further, the single judge took into account the pendency of Mr. Almeida’s next annual Review Board hearing and the effect the adjournment would have on the timing of that annual review. This, Mr. Almeida contends, is irrelevant.

[6] Mr. Almeida also argues that he was given erroneous advice about the procedure to be followed to review the order of a single judge. This caused unnecessary confusion and added to his level of stress.

[7] The final point Mr. Almeida advances concerns his ability to prepare written materials – more specifically a factum – in advance of the scheduled hearing date. He is unable to do so, he says, because the respondent, Ontario Shores, has been injecting poisonous gas into his condominium depriving him of the concentration necessary to complete his factum on the important Charter issue that is the central focus of his appeal. To make matters worse, Mr. Almeida continues, amicus has filed a “false factum” challenging the disposition of the Board, a decision with which Mr. Almeida has no quarrel, and fails to advance any argument about the Charter issue. Mr. Almeida asks us to disregard the factum of amicus in its entirety.

Discussion

[8] We see no basis upon which to interfere with the decision of the single judge. We have reached this conclusion for several reasons.

[9] First, even if the single judge were mistaken in her reference to a prior adjournment of a scheduled hearing at Mr. Almeida’s request, we are not persuaded that this formed the centerpiece of her reasoning for refusing the adjournment request. She considered, as she was required to do, all the circumstances in reaching her conclusion.

[10] Second, we are satisfied that the pendency of Mr. Almeida’s annual review and the desirability of it being held in a timely way – unlike on prior occasions – was a relevant factor for the single judge to consider. After all, there have been occasions when an appeal of a disposition to this court has been dismissed as moot in light of a subsequent disposition made at an annual hearing before the appeal is heard.

[11] Third, the advice Mr. Almeida was provided when he expressed dissatisfaction with the order of the single judge – that he could apply to the list judge or bring a motion to a panel of the court to review the order of the single judge – was accurate. This advice was provided after the decision of the single judge and can afford no basis upon which to set that decision aside.

[12] Fourth, as a self-represented litigant, Mr. Almeida is under no obligation to file a factum for use of the court on the hearing of his appeal. While facta from self-represented appellants are always welcome and frequently helpful, they are not required.

[13] Fifth, Mr. Krongold as amicus, has made it clear to Mr. Almeida that he welcomes the opportunity to discuss any arguments Mr. Almeida wishes to be advanced and will put those arguments before the court, in accordance with his professional obligations, on the hearing of the appeal, together with his submissions as amicus.

[14] Sixth, Mr. Almeida has the opportunity to make oral submissions himself to the panel hearing the appeal. In other words, the absence of a factum does not deprive him of or dilute in any way his right and opportunity to make submissions in support of his claims.

[15] Further, this court is under a statutory obligation, put in place by s. 672.72(3) of the Criminal Code, to hear appeals from dispositions in or out of the regular sittings of the court as soon as practicable after the day on which the notice of appeal is given. In addition, we must be mindful of the fact that delays in appellate hearings often result in delays of subsequent annual reviews, a consequence often deleterious to the interests of all parties, particularly the detainee.

Conclusion

[16] For these reasons, the motion to review the order of the single judge refusing to adjourn the hearing of the appeal is dismissed. The appeal will be heard on December 19, 2016, in accordance with the Registrar’s notice of September 30, 2016.

Released: December 9, 2016 (DW)

“David Watt J.A.”

“K.M. van Rensburg J.A.”

“Grant Huscroft J.A.”