Dr. Mokhber

The appellant challenged an annual Review Board disposition that maintained a conditional discharge based on a finding of significant threat to public safety.

On appeal under Part XX.1 of the Criminal Code, the court admitted post-hearing psychiatric evidence showing medication discontinuation without decompensation, a revised diagnosis, and a materially lower structured risk assessment.

Applying the interests of justice framework for fresh evidence in NCRMD appeals, the court held the new record required allowing the appeal.

The court found remittal unnecessary because an absolute discharge was the only reasonable disposition on the updated evidence.

The Court of Appeal for Ontario allowed Ernest Clayton’s appeal from a Review Board disposition finding him unfit and “permanently unfit” to stand trial.

The court held that the Board failed to apply the fitness test contextually, as required by law, and did not consider relevant evidence about the simplicity of the charges and Clayton’s ability to understand and respond to them.

The Board’s finding of permanent unfitness was also unsupported by sufficient reasons.

The matter was remitted to a differently constituted Board for a new determination of fitness.