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Criminal - NCR - Reasons. 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: for "significant threat to the safety of the public"] by failing to apply it contextually".
Here the court considers an 'inadequate reasons' argument: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, 155 O.R. (3d) 185, at paras. 49, 55, and 58; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at paras. 69-70, 74-75. 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, at 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”.
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[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. . Manrique (Re)
In Manrique (Re) (Ont CA, 2024) the Ontario Court of Appeal allows an NCR appeal, here remitting the case back to the ORB before a new panel.
The court finds 'inadequate reasons' for the ORB's decision, here on the issue of the 'significant threat' standard:[9] However, while we recognize that the Board set out the proper test for establishing a significant threat to public safety, the Board’s reasons were insufficient to explain how it reached the conclusion that the appellant meets that standard. As noted by the Board, this court has emphasized that the significant threat standard is an onerous one. In our view, the Board’s assertion that there would be “a predictable decline in [the appellant’s] mental status leading to decompensation and a heightened risk to public safety” does not explain how the appellant meets the significant threat standard. Further, the Board’s statements about the treating psychiatrist not being able to guarantee post-discharge forensic support and its reference to the “ideal scenario” of non-forensic support being “adequately in place” suggest the Board may have been focused on minimizing any risk created through granting the appellant an absolute discharge rather than properly assessing whether he met the significant threat threshold. . R. v. Ivins
In R. v. Ivins (Ont CA, 2024) the Ontario Court of Appeal allows an inadequate reasons appeal against the trial judge in an NCR case:[6] We accept the Crown’s concession and allow the appeal on the basis that the trial judge’s reasons were wholly inadequate. In these circumstances, reasons for finding an accused person NCRMD must go beyond merely agreeing to a joint proposal. At a minimum, a trial judge is required to articulate the test under s. 16 of the Criminal Code and explain why the evidence before the court justified the NCRMD verdict: R. v. Laming, 2022 ONCA 370, 413 C.C.C. (3d) 409, at paras. 63-64; R. v. Capano, 2014 ONCA 599, 314 C.C.C. (3d) 135, at paras. 45-52. The appellant was entitled to know in more detail why he was found NCRMD.
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