Ontario Review Board
Re: Ernest Clayton
ORB File No: 8338
Hearing held on: Monday July 7, 2025
Place of hearing: Southwest Centre for Forensic Mental Health Care 401 Sunset Drive, St. Thomas, Ontario
Pursuant to: Section 672.81(2) and 672.48(1) of the Criminal Code
Before: Alternate Chairperson: Mr. R. Bigelow Members: Dr. A.D. Jones Dr. J. Cheston Mr. D. Sandor Ms. K. Brisson
Parties Appearing: Accused: Ernest Clayton Counsel: Mr. R. Cunningham
The Person in charge of Hospital: Counsel: Ms. J. Zamprogna
Attorney General of Ontario: Counsel: Mr. D. Rose
REASONS FOR DISPOSITION
(Dated August 25, 2025)
Introduction:
On June 30, 2023, Ernest Clayton was found unfit to stand trial on account of mental disorder on charges of uttering a threat to cause death or bodily harm (x2), assault (x2), fail to comply with a release order other than a condition to attend court, and failing to comply with an undertaking, all contrary to the provisions of the Criminal Code of Canada. He is currently subject to a disposition of the Ontario Review Board, dated October 3, 2023, that found him unfit to stand trial and detained him at the Southwest Centre for Forensic Mental Health Care, St. Joseph’s Health Care London (hereinafter referred to as “the Hospital”).
On September 25, 2024, a panel of the Ontario Review Board convened a hearing at the Hospital to review that disposition. That Board concluded that Mr. Clayton continued to be unfit to stand trial and issued a Disposition, dated October 7, 2024, detaining him at the Hospital subject to privileges and conditions that included the privilege of living in the community of Southwestern and Southern Ontario in supervised accommodation approved by the person in charge and conditions that Mr. Clayton abstain absolutely from the non-medical use of alcohol, drugs and any other intoxicant and that he submit samples for the purpose of monitoring his compliance with the abstention condition.
Mr. Clayton appealed that panel’s Decision to the Ontario Court of Appeal, who allowed the appeal with Reasons dated November 1, 2024. The Ontario Court of Appeal quashed the Board’s finding that Mr. Clayton remained unfit to stand trial and directed that the matter be returned to the Board for a new determination on the issue of fitness. That decision is reported at Clayton (Re), 2025 ONCA 308.
On July 7, 2025, a panel of the Ontario Review Board convened a further hearing at the Hospital to reconsider the issue of fitness pursuant to sections 672.48(1), 672.81(2) and the Order of the Ontario Court of Appeal. Mr. Clayton was present for the hearing, represented by his lawyer Mr. Cunningham. It is important to note that, since July 7, 2025, the Supreme Court of Canada has released its decision in the case of R. v. Bharwani, 2025 SCC 26, 2025 S.C.C. 26.
The record for the hearing included the Revised Notice of Hearing and a “Campbell” Notice authored by Dr. R. Ardani on behalf of the Hospital advising that Mr. Clayton had been placed in seclusion for a period of time following which he regained privileges previously enjoyed and advising that the Hospital took the position that the subject use of seclusion did not constitute a Restriction of Liberty pursuant to section 672.56(2)(b) of the Criminal Code. That Notice is dated February 26, 2025.
Further documents forming the record included the last Disposition (mentioned above, dated October 7, 2024), the Reasons for that Decision, and the Decision of the Ontario Court of Appeal. On the consent of all parties, a Hospital Report dated June 26, 2025 was admitted into evidence as exhibit 1.
The parties were canvassed for initial positions at the beginning of the hearing. All agreed that Mr. Clayton was now fit to stand trial and should be referred back to the Court. All agreed that if the Board came to a different conclusion on the issue of fitness, that Mr. Clayton should be subject to a detention disposition with expanded privileges. The parties clarified that this hearing did not represent Mr. Clayton’s annual review which remains scheduled for Fall 2025.
For the following reasons, the Board accepts the joint submission and finds that Mr. Clayton is fit to stand trial applying the direction provided by the Supreme Court of Canada in R. v. Bharwani. Accordingly, he is being 2referred back to the Court for next steps in association with the subject charges.
Evidence at the hearing
The evidence for the hearing came from the Hospital Report mentioned and the live testimony offered by Dr. R. Ardani, Mr. Clayton’s treating psychiatrist.
Turning first to the Hospital Report, it is cumulative in nature and includes several details regarding Mr. Clayton, his history of struggle with mental illness, his history of struggles with decompensating substance use and his history of difficulties with the criminal justice system. It also outlines and updates his progress while under the jurisdiction of the Ontario Review Board.
Mr. Clayton is now 64 years old. From an early age he was diagnosed with “mild to moderate mental retardation” with observed delays in attaining to developmental milestones. His parents have both passed away, as has a stepfather and one of 4 siblings. He has limited education and has struggled with a long-standing speech impediment. He struggles globally with learning disabilities that affect his ability to read and write. He has been an ODSP recipient since the age of 16.
Mr. Clayton has four daughters from two common-law relationships, all of whom are adults. He has a criminal record that includes convictions for making a false alarm of fire and mischief to private property. He has a history of struggles with mental illness that has been aggravated by alcohol and substances use. He has undergone repeated instances of involuntary admission to hospitals over the years. Some of these admissions have taken place in concerning circumstances, such as in December 2015 when, while under the influence of alcohol, Mr. Clayton threatened to burn down the house where he was living and threatened police with a large knife following which he tried to put his head through a glass window.
The Hospital Report also includes a summary of the alleged Index Offences. It reads as follows:
Assault (x2), June 18, 2022
On the 18th of June 2022 Ontario provincial Police responded to a neighbor dispute/ assault call. 351 Murray Street, unit D7 in the town of Corunna.
Upon arrival police spoke with complainant identified as Patricia BENSON who advised that on today's date at approximately 20:00 hours, she observed her neighbor, identified as Ernest CLAYTON, walking into the rear entrance that is connected to both their properties.
Ernest began yelling at Patricia telling her to stop staring at him. Patricia had no clue what Ernest was talking about as she was looking down at her phone while having a cigarette.
Patricia then got up and started walking towards her door to enter her residence. Due to the yelling, other residents started making their way to where Patricia and Ernest were.
Patricia turned around before entering her residence and this is when Ernest attempted to spit on her. The spit missed Patricia but then Ernest spit again and this time landed on Patricia's right cheek. Ernest then used left fist and punched Patricia's collarbone.
Other residents in the area told Ernest to walk away and go inside the home.
Uttering threats to cause death or bodily harm and failure to comply with undertaking, June 21, & 22, 2022
On June 21, 2022, at approximately 2000 hours, Ontario Provincial Police received a dispatched to 351 Murray St. in the Town of Corunna for a bail violation stemming from a neighbor dispute.
Upon Police arrival, Police spoke with complainant Patricia Benson. She informed Police that her neighbor Ernest Clayton had threatened to kill her while brandishing a knife. He was at his back door yelling profanities, including killing her while she was in the back yard that these two condos share. She went inside, afraid for her safety and called the Police…
[Following investigation], police knocked on the front door of Mr. Clayton’s apartment. Mr. Clayton opened the door, yelling at Police. Mr. Clayton was sitting in a motorized wheelchair, wearing a shirt and underwear only. He appeared to be unkempt and physically debilitated. Police observed Mr. Clayton forcefully punch himself in his face, telling the Police he was going to kill himself. Mr. Clayton continued to tell Police that he was going to kill himself either by strangulation, cutting his wrist or jumping off a bridge. Police entered his residence to affect a mental health apprehension. While still de-escalating Mr. Clayton, he reached to the floor, grabbed a bowl full of cat food and started to place an abundant amount of the food in his mouth, then appeared to be reaching for some knives that were on the coffee table adjacent to him.
Police physically grabbed Mr. Clayton's arms, where a slight struggle ensued but Mr. Clayton was apprehended under the Mental Health Act.
Police were able to de-escalate Mr. Clayton to a point where he was concordant enough to put pants on and place shoes on his feet. He cooperatively walked out of the residence and into the care of the EMS. Mr. Clayton was disoriented, confused, and appeared to not recall some of the recent interactions with Police. Mr. Clayton started to receive medical care and was transported to Bluewater Health, under Police escort. A Bluewater Health Physician assessed Mr. Clayton, finding enough concern to hold Mr. Clayton for further observations.
Uttering threats to cause death or bodily harm and failure to comply with order, March 20, 2023
On Monday, the 20th day of March 2023 Patricia Benson had an altercation with her neighbor Ernest Clayton. She attended the Ontario Provincial Police detachment the following day to provide a statement and photos of the incident.
Benson states that she resides at 351 Murray Street, unit D7 in the town of Corunna. Her neighbor who resides right next door is Ernest CLAYTON. Benson advised that she has had previous dealings with Clayton and based on those incidents Police had charged Clayton on two separate occasions. Clayton is currently on conditions not to communicate with Benson or go within 5 meters of her.
At about 4:00 pm Monday afternoon Benson could hear Clayton yelling at the rear of their property. She went outside and told him to stop. Clayton continued yelling and at one point stated "I'm going to kill you bitch" he also stated "I'll burn my place down and you'll go with me" Benson went back inside her residence and kept an eye on Clayton from her kitchen window, which is out of view of Clayton. She observed him getting a cardboard box and set it on fire. He placed it at the back door in the area of both of their doors. Luckily, the paper burned out and no further damage was caused.
Benson has a serious fear for her safety.
Based on the threat uttered and the breach of "no contact" Police contacted Clayton requesting he turn himself in at the Corunna detachment.
At 5:10pm Clayton attended the OPP detachment [where he was arrested and charged].
The Hospital Report’s update for the purposes of this hearing begins at page 22 of 52. It indicates that Mr. Clayton has continued to present with features of his intellectual developmental disorder and its associated behavioural components. While he has not exhibited any hallucinations, delusional thinking or psychosis-based thought disorganization, he has been reactionary and prone to quick escalations of aggressivity followed by similarly quick returns to baseline, accompanied by sincere apologies. This unpredictability is complicated by the fact that he has repeatedly exhibited this trait when frustrated by circumstances that he had previously experienced or been able to cope with well.
Cognitively, Mr. Clayton has been consistently oriented to person, place and time. He responds well to visual cues and has been able to problem solve around learned tasks that did not involve fluid, social situations. In the case of the latter, he has required more support.
The Hospital Report indicates that, owing to Mr. Clayton’s intellectual disability, he presents with a level of immaturity and childlike reasoning. When irritable or overwhelmed, Mr. Clayton has had difficulty employing de-escalation techniques and has shown rigidity, concrete thinking and entitlement. The Hospital Report includes several examples of this at page 25 under the subheading “Significant Incidents.” Examples have included his engaging in racist epithets and verbal abuse, throwing of chairs, uttering of threats, invasion of others’ personal space in violent and aggressive manners, and spitting towards staff. When in a positive mood state, he has been conversely easy to redirect, prone to following rules and cooperative. When in the former state, periods of seclusion have helped Mr. Clayton return to baseline.
According to the Hospital Report, Mr. Clayton continues to have poor insight into the alleged offences and no insight into his intellectual disability and need for medications. While he continues to show progress in his behaviour modification program, he does not have insight into his risk for future violence. He has been amenable to social work involvement and supports and has been involved with occupational therapy, though his participation has been limited since his transfer to the Hospital’s B1 unit. He requires ongoing assistance with cueing and supervision to perform various aspects of daily living. To his credit, Mr. Clayton was able to tolerate a lengthy ADL assessment undertaken by his occupational therapist that lasted two days and consisted of sessions that lasted approximately 120 minutes each.
Mr. Clayton’s personal supports are limited. While he has family, including a sister and nieces, they have limited contact with Mr. Clayton. His frequent outbursts have caused Mr. Clayton difficulties in forming strong peer-relationships. He has been able to build some rapport with staff. Once he transitions to the community, Mr. Clayton’s primary sources of support will come from community agencies such as Lambton County Developmental Services, Regional Supports Associates, Developmental Services Ontario and the Office of the Public Guardian and Trustee.
The Hospital Report includes a risk assessment at page 37 of 52. Inasmuch as this hearing has focused on the narrow issue of Mr. Clayton’s fitness, it is not necessary to provide a comprehensive study of this assessment, other than to indicate that it summarizes the concerns noted above, notes that Mr. Clayton has gone through periods of noncompliance with medications over the course of this period of review, and, were he found to be unfit, and remained on a detention disposition, his risk would be considered moderate, shifting to high under any form of discharge.
Of greater importance is the further assessment Mr. Clayton has undergone on the issue of his fitness to stand trial. On May 8, May 15, May 30 and June 12, 2025. Over the course of these multiple assessments, Mr. Clayton was able to maintain his attention for nearly an hour, was able to process and respond, albeit with some delay, to questions. He understood the basic nature of the charges associated with the index offences. He understood throughout the multiple assessments the nature and object of trial proceedings and the role of the several participants in those proceedings. He showed consistent understanding of his plea options and their consequences, of the consequences of a guilty or not guilty finding, of the meaning and importance of taking an oath and of perjury. He showed an ability to communicate his points of view with regard to each of the allegations facing him though not asked explicitly to do so.
Throughout the assessments, Mr. Clayton’s answers, and participation supported the conclusion that he would be able to communicate his thoughts coherently with his lawyer to facilitate a defence, subject to the court’s ability to ensure supports and provide accommodations that recognized his cognitive limitations. Mr. Clayton’s understanding is grounded in reality. He suffers from no psychotic disorder but would require the assistance of a court support worker and/or some accommodations over the course of the trial process to facilitate understanding and coping with both the rigid procedural structure of trial proceedings juxtapositioned with the fluid nature of the social interactions and exchange of dialogue that inform the trial process, given his processing delays. Details provided in the Hospital Report of each of the fitness assessments show the importance of accommodations and supports over the course of a trial process so as to ensure Mr. Clayton’s understanding and to minimize elevation should there be circumstances of cognitive overwhelm.
Dr. Ardani provided a helpful update over the course of his evidence. He confirmed that Mr. Clayton shows no sign of psychosis and added that while Mr. Clayton can still be aggressive and unpredictable, displays of aggressivity have become less frequent. This was attributed in part to Mr. Clayton’s antipsychotic medications and mood stabilizers. Dr. Ardani addressed the importance of these medications and of Mr. Clayton’s need for supports in their acquisition and administration. This need for support concurred with Mr. Clayton’s global need for supports in the community relative to the functions of daily living.
Dr. Ardani testified that Mr. Clayton has undergone a 5th fitness assessment, the last being on July 4, 2025. He testified that, from a psychiatric perspective, Mr. Clayton is aware of the charges, is able to narrate his perspective on every charge, is aware of the roles played by the different participants in the trial process and understands the nature and consequences of his plea options. His understanding and processing of his options is based in reality. He understands the importance of telling the truth and can meaningfully participate in the legal process. He is able to communicate with counsel effectively though, again, accommodations in terms of a court support worker and breaks to help with his processing of what is taking place over the course of a trial will be of assistance in managing frustration that could lead to difficulties or disruptions in the trial process.
Submissions
- At the end of the hearing, the panel was presented with a joint submission that Mr. Clayton was fit to stand trial and should be referred back to the court at this time. The parties highlighted that Mr. Clayton has now been assessed five times. They submitted that their positions on Mr. Clayton’s fitness were informed by both the context of his cognitive limitations and the relative lack of complexity, as it would seem, of the charges. They pointed to the improvement noted by Dr. Ardani and highlighted that Mr. Clayton has a version of events to put forward that was reality-based. While all acknowledged that in terms of processing and communication, Mr. Clayton requires supports and accommodation so as to be able to express his thoughts and articulate his understanding, this can be accommodated by a court support worker and through deliberate undertaking of a slower court process that provides Mr. Clayton and a court support worker the opportunity to meaningfully communicate with his lawyer as trial unfolds. All counsel submitted that a “keep fit” order is not necessary and agreed with the panel in its opinion that it lacks the jurisdiction to make such an order in any event inasmuch as there was no evidence that Mr. Clayton’s fitness is fragile and requires such an order to preserve it (see British Columbia (Adult Forensic Psychiatric Services) v. Noddle, 2023 BCCA 396).
Analysis and conclusion
As stated, the panel agrees with the joint submission.
In its recent decision in R. v. Bharwani, 2025 SCC 26, the Supreme Court of Canada stated the test for fitness to stand trial in a criminal context. Writing for the majority, the honourable Supreme Court of Canada Justice O’Bonsawin explained at para. 6 that:
An accused is fit to stand trial when they are able to make and communicate reality-based decisions in the conduct of their defence or instruct counsel to do so. Conducting a defence includes making decisions that an accused must always make personally and those which relate to the exercise of their right to full answer and defence, such as decisions about pleas, the mode of trial, selection of counsel, whether to testify, whether to call or cross-examine witnesses, and closing submissions, among others. The capacity required to make those decisions is a reality-based understanding of the nature or object of the proceedings and their possible consequences, an ability to understand the available options and their consequences, and an ability to select between those options when making decisions. Fitness to stand trial does not require an accused to make decisions in their best interests. Rather, it requires making decisions based on an understanding of reality that is not overwhelmed by delusions, hallucinations, or other symptoms of their mental disorder. Transient mental health symptoms do not necessarily compromise an accused’s ability to conduct a defence. The focus is always on assessing the extent to which an accused’s mental disorder impairs their understanding of reality when making and communicating decisions in their defence.
Expanding on this at paragraph 75, the honourable Court, citing the Ontario Court of Appeal in (. R. v. Morrissey, 2007 ONCA 770, 87 O.R. (3d) 481, at para. 36, explained that
“The purpose underlying the requirement of fitness is rooted in the rights that underpin our understanding of procedural fairness in criminal law. The definition of “unfit to stand trial” in s. 2 recognizes that because our system of criminal justice is “founded on respect for the autonomy and dignity of human beings”, an accused person has the right to control their own defence (Swain, at p. 972). This includes the right to be meaningfully present at one’s own trial and the right to make full answer and defence.
The Court further confirmed that the fitness to stand trial test is contextual and that the fitness inquiry focuses on the decisions that form part of an accused’s defence in a specific case, and not in the abstract. The accused must be able to make reality-based decisions in the process of meaningful participation in the trial process. The importance of the consideration of an accused’s ability to make reality-based decisions, considered in a holistic sense that includes considerations of complexity ensures that overreliance on accommodating an accused does not lead to the conclusion that a fair trial is a substitute for fitness.
Applying Bharwani to Mr. Clayton, the evidence is clear and undisputed that he is currently fit to stand trial. Not only has he been able to describe the nature and character of the proceedings he faces associated with the alleged offences, but he has also demonstrated a sustained reality-based understanding of both the trial process and the allegations facing him. He has been assessed as to fitness now on five separation occasions spanning the course of May, June, and July. In each instance the evidence has supported the conclusion that he is fit to stand trial. While he continues to experience cognitive difficulties associated with his major mental illness, these are no longer sufficient to rebut the presumption of fitness when placed in the context of the relative lack of complexity of the charges he is facing together with a consideration of the accommodations that can be made by the court to assure trial fairness.
Under the further direction provided by the Supreme Court of Canada for trial judges and having regard to the supports that can be offered to him through the Hospital, the community, and the valuable work undertaken regularly by court support workers, it is clear that the trial process, and the procedure leading to trial can be undertaken in a manner that facilitates Mr. Clayton’s meaningful participation from a comprehension, processing and communication perspective. To put it simply, Mr. Clayton’s understanding and ability to participate in the trial process is grounded in reality and is able to be exercised within the framework of the supports and accommodations that can be offered to him by the court.
Accordingly, this panel has concluded that Mr. Clayton is fit to stand trial and his matter will return to the court for next steps.
The panel thanks all who have participated in this hearing and encourages Mr. Clayton in his continued involvement with the supports and treatments that have assisted him since coming under the jurisdiction of the Ontario Review Board.
DATED this 25th day of August 2025, at the City of Toronto, in the Toronto Region.
D. Sandor Legal Member
Office of the Registrar Ontario Review Board