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| John L. Hill |
The board conducted hearings in September and October 2023 and found Clayton unfit to stand trial, citing his inability to instruct counsel or meaningfully participate in his defence due to a chronic intellectual disability. The board found that he represented a public safety risk and ordered his detention. The board also found that he represented a significant threat to the public and continued his detention. He was seen to be permanently unfit. Clayton appealed the board’s decision to the Ontario Court of Appeal. The reasons for
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Clayton had appealed the board’s decision on four main grounds:
- The board misapplied the legal test by failing to consider the context of his case.
- The finding that Clayton was unfit was unreasonable.
- The hearing was procedurally unfair.
- The decision that Clayton was permanently unfit was unreasonable and lacked sufficient reasoning.
The court agreed with the first and fourth grounds of appeal. The Appeal Court seems to have addressed the second and third points in its analysis of the first grounds of appeal. That first error the Appeal Court dealt with was the misapplication of the legal test that was derived from R. v. Bharwani, 2023 ONCA 203, which requires that the fitness test be applied contextually, meaning it did not consider relevant evidence about the specific charges Clayton faced or his ability to understand those charges, which was crucial to assessing his fitness. Clayton denied the allegations against him, thus showing he understood the accusations that were made and could communicate the denial to prove his innocence. This was relevant evidence that the board could have used to decide the fitness issue.
Failure to accept pertinent evidence can be seen as an error in law. An improper omission of context amounts to an unjustified failure to apply a legal rule (R. v. Tayo Tompouba, 2024 SCC 16). It can also be seen as an unreasonable decision by misapprehending the evidence or for failing to account for the evidence before it (Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] S.C.J. No. 65; Nguyen (Re), 2020 ONCA 247). The board did not permit Clayton’s counsel to question a psychiatrist about the charges Clayton was facing and the explanation Clayton wanted to present. Counsel had pointed out to the board chairperson that context was crucial in determining the client’s ability to participate in a trial.
The Appeal Court also found fault in the board’s determination of the permanency of the unfitness. The court found that the board’s conclusion that Clayton was “permanently” unfit lacked sufficient reasoning and did not fully consider all available evidence. The board did not explain why it made the “permanent unfitness” finding, which raised concerns about its justification. The reasons set out by the board require an explanation of findings that allow meaningful review (Marmojelo (Re), 2021 ONCA 130; R. v. G.F., 2021 SCC 20; R. v. Leonard, 2025 ONCA 63).
The board gave no reasons for its permanent unfitness finding. Neither the record of proceedings nor the live issues that arose during the hearing disclose why such a finding was made.
The Crown objected that defence counsel at the hearing accepted a permanently unfit finding once it became apparent that the board would find Clayton unfit. The Appeal Court decided that even if the parties to the hearing agreed that a finding of permanent unfitness should be made, such consensus should not be the basis for a finding that disregards other evidence to the contrary that the board had before it. Automatic acceptance of a joint submission is inconsistent with the board’s statutory mandate (Benjamin (Re), 2016 ONCA 118).
It is highly likely that Clayton’s counsel saw a tactical advantage if he were found permanently unfit. Such a finding would be a precondition for a Review Board to recommend to the court that criminal proceedings be stayed under s. 672.851 of the Criminal Code. A joint submission is different in the Review Board context. Such proceedings are not purely adversarial (Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625). Surely, suppose the board finds a patient permanently unfit to instruct counsel at trial. Why would the board accept that counsel’s consent to be found permanently unfit should reflect the client’s decision?
The court allowed the appeal because the board misapplied the legal test and failed to provide adequate reasons for finding Clayton permanently unfit. The matter was returned to a differently constituted board for a new determination of Clayton’s fitness to stand trial.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the [True Crime] Story (AOS Publishing). The Rest of the [True Crime] Story has been shortlisted for a prestigious Brass Knuckles Award, which is the Crime Writers’ of Canada’s prize for best nonfiction crime book of the year. Contact him at johnlornehill@hotmail.com.
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