Court of Appeal for Ontario

Date: 2025-04-24
Docket: COA-24-CR-1133
Before: Paciocco, Zarnett and Dawe JJ.A.

In the Matter of: Ernest Clayton

An Appeal under Part XX.1 of the Criminal Code

Appearances:
Anita Szigeti, for the appellant
Martin Heslop, for the respondent Attorney General of Ontario
Julie Zamprogna Ballès, for the respondent Person in Charge of Southwest Centre for Forensic Mental Health Care

Heard: 2025-04-01

On appeal from the disposition of the Ontario Review Board, dated October 7, 2024, with reasons dated November 1, 2024.

Paciocco J.A.:

Overview

[1] In June 2022, Ernest Clayton allegedly spat at his neighbour and punched her in the collarbone. A few days later, he allegedly threatened her while brandishing a knife. Almost a year later, in March 2023, he allegedly exchanged words with her and threatened to kill her again. He was charged criminally in relation to each alleged incident, ultimately facing two counts of assault arising from the first instance, two counts of uttering threats, and two counts of failing to comply with a release order or undertaking. On June 30, 2023, a judge found him unfit to stand trial on those charges. The judge did not make a disposition, and Mr. Clayton was placed under the jurisdiction of the Ontario Review Board (the “Board”).

[2] The Board’s initial fitness hearing occurred on September 21, 2023, within 90 days of the judge’s fitness determination as required by s. 672.47 of the Criminal Code, RSC 1985, c C-46. On October 2, 2023, the Board found that Mr. Clayton was unfit to stand trial, notwithstanding that the parties accepted that he was fit, a position supported by assessments done by his then attending psychiatrist, Dr. Prakash. The Board’s decision was based on submissions made by Mr. Clayton’s then lawyer about difficulties he was experiencing in getting instructions and rested primarily on a finding that Mr. Clayton was unfit to instruct counsel. The Board then went on to find that Mr. Clayton posed a serious risk to the safety of the public and ordered his detention.

[3] On October 7, 2024, after his first review hearing and now represented by new counsel, the Board again found Mr. Clayton to be unfit, indeed “permanently unfit”, because of his chronic, life-long intellectual development disorder. It concluded that he would not be “meaningfully present” at his trial, and “would not be able to meaningfully participate, and instruct counsel, in a criminal proceeding.” The Board relied primarily on evidence from a fitness assessment and mock adjournment exercise conducted by his current attending psychiatrist, Dr. Mokhber, proximate in time to the hearing. The Board concluded that the evidence showed that Mr. Clayton was unable to understand “some basic fitness concepts”, to retain information, to achieve a realistic appreciation of his options or the consequences he was facing, or to make choices without simply parroting back answers. The Board continued his detention after finding that he represented a significant threat to the safety of the public.

Issues

[4] Mr. Clayton now appeals the disposition from this 2024 review hearing. The challenges he mounts are wide-ranging. Although he did not cast his grounds of appeal this way, the submissions he pursued can be distilled into four grounds of appeal, each of which the respondents engaged with before us:
(1) the Board misapplied the legal test by failing to apply it contextually;
(2) the determination that Mr. Clayton was not fit to stand trial is unreasonable, based on flawed reasoning;
(3) the hearing was procedurally unfair; and
(4) the decision that Mr. Clayton is permanently unfit is unreasonable and was made without sufficient reasons.

[5] I would allow the appeal based on ground of appeal (1). I also agree with Mr. Clayton’s submissions relating to ground of appeal (4), but the finding that Mr. Clayton was “permanently” unfit is not a basis for interfering with the disposition. This is because the disposition rests on the unfitness finding, whether that unfitness is permanent or not. I will address these two grounds of appeal but need not address the remaining grounds.

Analysis

A. Did the Board misapply the legal test by failing to apply it contextually?

[6] As the Supreme Court of Canada recognized in R. v. Owen, 2003 SCC 33, para 31, s. 672.78 of the Criminal Code permits a court of appeal to set aside a disposition of the Review Board only if:

(a) the decision is unreasonable or cannot be supported by the evidence; or,
(b) the decision is based on a wrong decision on a question of law (unless no substantial wrong or miscarriage of justice has occurred); or
(c) there was a miscarriage of justice.

[7] The Board stated the fitness test correctly by reproducing the principles summarized in R. v. Bharwani, 2023 ONCA 203, para 167, leave to appeal granted and appeal heard and reserved on October 10, 2024, [2023] S.C.C.A. No. 236. It did not, however, respect the first principle summarized in Bharwani, at para. 167, that “[t]his test is applied contextually.” As a result, the Board failed to consider relevant evidence that could have altered its determination.

[8] It may be possible to characterize the failure of the Board to apply the fitness test contextually as an error of law, on the basis that this is an “improper omission” from the test, amounting to an “unjustified failure to apply a legal rule”: see R. v. Tompouba, 2024 SCC 16, para 63. It is also possible that a fundamental misapprehension of the evidence or a failure by a tribunal to account for the evidence before it can result in an unreasonable decision: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, para 126; Nguyen (Re), 2020 ONCA 247, para 28. As I will explain, the failure by the Board to apply the test contextually in this case consisted of its refusal to consider material evidence crucial to the contextual examination it was required to undertake. In my view it is therefore best identified as a miscarriage of justice, consisting of “a failure to consider evidence relevant to a material issue” on a matter of substance that is essential rather than peripheral to the reasoning process: R. v. Morrissey, pp. 538, 541; R. v. Lohrer, 2004 SCC 80, paras 1-2.

[9] This court explained the importance of context in Bharwani, at para. 141:

[F]itness determinations simply cannot be made in the abstract because, at their core, fitness hearings are focussed on this accused who is facing a specific legal predicament in a specific context in the here and now. That context forms the backdrop against which the statutory test – whether the accused is unable on account of mental disorder to conduct a defence or instruct counsel to do so – is applied. [Emphasis added.]

[10] Mr. Clayton wanted to give the Board context for its fitness inquiry with evidence and arguments about how basic the factual allegations and charges he faced were, and with evidence showing that he understood those allegations and was able to communicate the basis for his claimed innocence. There can be no question about the relevance of this case specific information.

[11] First, the nature of the charges and allegations are important because the simpler the case is, the easier it is to understand, appreciate and talk about. Yet during the hearing, when Mr. Clayton’s lawyer was for this purpose confronting Dr. Mokhber with questions about the nature of the specific charges that Mr. Clayton was facing and the explanations Mr. Clayton had been offering, he was stopped by the Board Chairperson who told him that these issues were not before the Board, because the hearing was concerned with fitness. The Chairperson continued, commenting that since the charges were not proven in court, “the doctor cannot opine one way or the other on the charges.” Mr. Clayton’s lawyer responded:

Fair enough … but Mr. Chair, do you not recognize that the context of the case and the meaningful pursuit, participation of the defendant in the case, the nature of the charges, what he said in the past with respect to those charges has a bearing on whether he can … meaningfully participate?

The Chairperson replied: “No.”

[12] Although Mr. Clayton’s lawyer managed to pose some, perhaps even most, of the questions he wanted to ask in this regard and made appropriate submissions regarding this evidence, it is plain from its reasons for decision that the Board did not recognize the relevance and importance of this information. Although it narrated the circumstances of the alleged index offences, in its analysis it did not engage with the “specific legal predicament” or the “specific context” in which the fitness inquiry must be conducted: Bharwani, at para. 141. Given the Chairperson’s mistaken insistence that this information was irrelevant, this is not an appropriate case to rely on the proposition that tribunals are not required to address all the evidence before them. I am satisfied that the Board failed to consider this relevant information.

[13] During the same colloquy, the Chairperson made clear his view that evidence that Mr. Clayton may have been able, in the past, to respond to the allegations and provide what he believed to be an innocent explanation for the charges, is not relevant at his fitness hearing because “fitness is fluctuating.” He said: “It is what is he today as [of] this hearing. That’s what we’re limited to, not will he be fit tomorrow, not was he unfit yesterday. If he is fit today, then we find him fit.” This is true as a general proposition, but the issue in this case was whether Mr. Clayton’s chronic life-long intellectual challenge rendered him unfit. Evidence from prior occasions demonstrating that he has been able to understand, communicate, and participate in exchanges about the very charges he is facing, notwithstanding his chronic condition, was surely relevant to his intellectual capacity. Yet this evidence was not addressed in the decision, apart from a passing reference to Mr. Clayton’s claim that he cannot spit, as he was alleged to have done in the first June 2022 incident. Once again, I can only conclude that it was not considered.

[14] I am mindful that contextual factors cannot be permitted to hijack a fitness hearing: Bharwani, at para. 142. But in my view, the Board’s decision disregarded necessary context that, if considered, could have influenced the Board’s ultimate determination. The inquiry the Board conducted was largely confined to a snapshot view of Mr. Clayton’s apparent capacities at the time of the assessment and the mock adjournment hearing, without due regard to the broader record of his capacities and the specific legal context Mr. Clayton was facing. In my view, this left the inquiry too abstract to permit a proper determination.

[15] The final related contextual point that makes no appearance in the decision is more general, but equally important. In Bharwani, at paras. 150-152, the court emphasized that fairness demands that the unfitness test not be cast too widely, and that fitness is to be considered in the broader context of the impact of an unfitness finding. It is necessary to calibrate the test in this way because unfitness is a powerful finding. It not only places presumptively innocent individuals under the authority of the Review Board system, with its significant powers, it also results in their removal from the criminal justice system thereby depriving them of their day in court: Bharwani, at paras. 145-147. This results in “serious unpredictability” for these individuals and creates the risk that they “could end up with a greater loss of liberty than had they gone to trial and been … convicted”: Bharwani, at paras. 146, 149. This, of course, is the outcome in Mr. Clayton’s case. There is no apparent recognition by the Board in its reasons that it was to apply the test in a manner that was sensitive to these concerns.

[16] Instead, the Board cast the test too widely by taking an unduly narrow and technical approach. It gave questionable emphasis in its decision to challenges Mr. Clayton experienced during the assessment and mock adjournment exercise in giving clear and technically correct answers to the Taylor questions on issues that bear no relationship to the reality of his case, such as his understanding of what a fine was and the meaning of community service, both wholly unrealistic sentencing options in this case. And as discussed above, the Board gave insufficient attention to the context of Mr. Clayton’s specific legal predicament, and to how the nature of the mental disorder causing his challenges necessarily required a broader factual inquiry into his general capacity.

[17] To be clear, I do not intend to suggest that Mr. Clayton should have been found fit. My point is that the inquiry that resulted in the unfitness finding was not properly calibrated and was too decontextualized to fairly determine whether Mr. Clayton could, with ongoing assistance, achieve a reality-based understanding of the nature and object and possible consequences of his proceedings given his legal predicament, and whether he could be meaningfully present and meaningfully participate in a trial of the charges and allegations he faced.

B. Was the decision that Mr. Clayton is permanently unfit unreasonable, made without sufficient reasons?

[18] The Board found that Mr. Clayton was not only unfit, but “permanently unfit”. I agree with Mr. Clayton that the Board’s reasons for doing so are insufficient. It is not necessary to consider the reasonableness of the decision, but as I note below, there is reason for concern about its justifiability.

[19] In terms of the sufficiency of reasons, the Review Board will err if its reasons prevent meaningful appellate review, when approached functionally in the context of the record and the live issues at trial: Marmolejo (Re), 2021 ONCA 130, para 49; R. v. G.F., 2021 SCC 20, paras 69-70. To be sufficient to permit meaningful appellate review, “reasons must make clear what was decided and why, and the logical connection between the two”: R. v. Leonard, 2025 ONCA 63, para 6.

[20] In this case, the Board gave no reasons for its permanent unfitness finding, and neither the record nor the live issues at the hearing disclose why that finding was made. The only evidence of “permanent” unfitness was a bald opinion offered by Dr. Mokhber that Mr. Clayton was likely permanently unfit. This conclusion arguably flew in the face of her own testimony, as understood by the Board, that “Mr. Clayton’s fitness to stand trial has fluctuated during this past reporting year.” This finding is also challenged by other evidence, including Dr. Prakash’s conclusion offered at the September 2023 initial hearing that Mr. Clayton was fit at that time, and by an assessment from August 2023 summarized in the Hospital Report which strongly suggests that he was fit at that time, as well. None of these difficulties with the conclusion are addressed in the reasons, leaving the question of why that decision was made unanswered. Nor did the Board explain how it pivoted to addressing permanent unfitness given its stance, as explained by the Chairperson during the hearing, that it was not addressing “will he be fit tomorrow”.

[21] In opposition to this ground of appeal, the Crown points out that all parties agreed that the permanent unfitness finding should be made, after Mr. Clayton’s counsel ultimately joined in asking the Board that if it was going to find Mr. Clayton unfit, it should find him permanently unfit. I do not accept that this consensus, such as it is, provides a sufficient explanation for the Board’s finding.

[22] First, under s. 672.851(1)(b) findings that the “accused … is not likely to ever become fit to stand trial” (i.e. that they are permanently unfit) are to be made “on the basis of any relevant information”. This does not mean that joint submissions should be disregarded. They play an important role in Board matters since they can narrow the issues, improve efficiency, and make a review hearing less taxing on those whose dispositions are under consideration: Osawe (Re), 2015 ONCA 280, para 47; Benjamin (Re), 2016 ONCA 118, para 19; Nguyen (Re), 2020 ONCA 247, para 19. However, “[a]utomatic acceptance of a joint submission is inconsistent with the Board’s statutory mandate”: Benjamin (Re), at para. 20. A Board therefore has a duty to ensure that joint submissions meet the requirements of the Criminal Code: Osawe (Re), at para. 33; Nguyen (Re), at para. 19. In my view, it should not make fitness findings based on joint submissions that do not have support in the evidentiary record before the Board.

[23] This obligation is in keeping with the caveat that Board processes are not purely adversarial: Winko v. British Columbia (Forensic Psychiatric Institute), para 54; R. v. Lepage, para 73, aff’d. The Board has inquisitorial obligations to discharge before exercising the powers it possesses: Winko, at para. 54; Nguyen (Re), at para. 19. It is particularly problematic to base a decision that individuals like Mr. Clayton are permanently unfit to instruct counsel on the positions their counsel have taken, when ex hypothesi they may not be fit to instruct their counsel to do so. To the extent that notions of estoppel support the authority of tribunals to base decisions on positions taken, those notions have no place in this context.

[24] Finally, it is evident that Mr. Clayton’s counsel’s position was purely tactical. He continued to oppose any finding of unfitness, but asked, in the alternative, for a finding of permanent unfitness because that finding is a necessary precondition for a stay of proceedings, pursuant to s. 672.851, that counsel wanted to achieve if the Board found Mr. Clayton unfit. For all these reasons, the agreement of the parties cannot be taken as explaining the Board’s permanent unfitness finding. That decision remains unsupported by sufficient reasons.

[25] The Crown asked us not to address this issue because, in its view, this finding cannot prejudice Mr. Clayton. It argues that the sole effect of a finding of permanent unfitness is to open a possible gateway to a court-based stay of proceedings, and whether that finding of permanence was made or not would not change the outcome of the disposition under appeal. The Crown cautions us against restricting permanent unfitness findings to the detriment of the liberty interests of accused persons. The Crown is correct in describing the limited and non-prejudicial legal effect of a permanent unfitness finding, but I do not accept that such a finding carries no risk of prejudice. Boards almost invariably look at the prior decisions involving an accused before rendering their decisions. There is real reason for concern that a prior determination of permanent unfitness could have a dampening effect on future claims of fitness.

[26] I do agree with the Crown, however, that in this case the Board’s failure to give sufficient reasons for the permanency component of its “permanent unfitness” finding does not provide a basis for interfering with the Board’s disposition. Still, the Board should not have made the finding of permanent unfitness without explanation. Indeed, it arguably should not have made that finding at all, given that there is good reason to doubt its justifiability on this record.

Conclusion

[27] The appeal is allowed on ground of appeal (1), the finding that Mr. Clayton is unfit to stand trial is quashed, and the matter is returned to a differently constituted Board for a new determination of fitness.

Released: April 24, 2025

“D.M.P.”
“David M. Paciocco J.A.”
“I agree. B. Zarnett J.A.”
“I agree. J. Dawe J.A.”