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Criminal - NCR - Bharwani (2). Clayton (Re)
In Clayton (Re) (Ont CA, 2025) the Ontario Court of Appeal allowed an NCR appeal from the ORB, here where the ORB "misapplied the legal test [SS: under 672.78 'Powers of court of appeal'] by failing to apply it contextually", resulting in the matter being remitted to the ORB again: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, [2003] 1 S.C.R. 779, at 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, 166 O.R. (3d) 1, at 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, 491 D.L.R. (4th) 195, at 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, [2019] 4 S.C.R. 653, at para. 126; Nguyen (Re), 2020 ONCA 247, 387 C.C.C. (3d) 13, at 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 (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at pp. 538, 541; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at 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.] ....
[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.
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