Fitness to Stand Trial

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General Principles

At common law, an accused must fit to stand trial. The 1892 Criminal Code incorporated the common law requirement.[1] The 1991 Criminal Code amendments creating Part XX.1 defined the meaning of "fitness to stand trial" in the Code as a codification of the common law.[2]

An accused who is subject to an assessment order is entitled to counsel in order to render the trial fair.[3]

Presumption of Fitness

Fitness to Stand Trial
Presumption of fitness
672.22 An accused is presumed fit to stand trial unless the court is satisfied on the balance of probabilities that the accused is unfit to stand trial.
1991, c. 43, s. 4.


  1. R v Jaser, 2015 ONSC 4729 (CanLII) at para 37
  2. Jaser, ibid. at para 38
  3. R v Waranuk, 2010 YKCA 5 (CanLII)

"Unfit to Stand Trial"

Under section 2, the phrase "unfit to stand trial" is defined:

Definitions
2.
...
“unfit to stand trial” means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to

(a) understand the nature or object of the proceedings,
(b) understand the possible consequences of the proceedings, or
(c) communicate with counsel;

...
R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; ... 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371.


CCC

A person in unfit if "owing to mental disorder":[1]

  • does not understand The nature and object of the proceedings against him, or
  • Does not understand the personal import of the proceedings, or,
  • Is unable to communicate with counsel.

The test for fitness is not onerous. It only requires a "limited cognitive capacity" to communicate with counsel and understand the process.[2] Even "the presence of delusions do not vitiate the accused's fitness to stand trial unless the delusion distorts the accused's rudimentary understanding of the judicial process".[3]

The "limited cognitive capacity" test "strikes an effective balance between the objectives of the fitness rules and the constitutional right of the accused to choose his own defence and to have a trial within a reasonable time."[4]

It is not necessary "that he or she be capable of exercising analytical reasoning in making a choice to accept the advice of counsel or in coming to a decision that best serves her interest".[5]

An accused who has no recollection of the incident at issue due to retrograde amnesia does not, on its own, render the accused unable to communicate with counsel.[6]

The mere fact that the accused "may not be capable of acting in his best interests during his trial is not sufficient to warrant a finding that he is unfit to stand trial".[7]

The provisions relating to fitness to stand trial do not apply after a conviction has been rendered and the sentencing phase has begun.[8] This also means that it is not possible to order an assessment for that purpose either.[9]

Conducting the Defence
An accused is incapable of :[10]

  • distinguishing between available pleas;
  • does not understand the nature or purpose of the preceding including the respective roles of the judge, jury and counsel;
  • is unable to understand the nature or purpose of the proceedings;
  • is unable to communicate with counsel, converse with counsel rationally or make critical decisions on counsel's advice; or
  • is unable to take the stand, if necessary.

The absence of memory alone is no in itself sufficient to render the accused unfit to stand trial.[11]

Communicate with Counsel
The requirement that the accused be able to communicate with counsel includes "relat[ing] the facts concerning the offence".[12]

The requirement means the ability to "hear, understand and respond" in a rational but not necessarily self-interested manner.[13]

  1. R v Steele, 1991 CanLII 3882 (QCCA)
    R v Eisner, 2015 NSCA 64 (CanLII) at para 89
  2. R v Taylor, (1992), 77 CCC (3d) 551, [1992] O.J. No. 2394 (Ont. C.A.)
    See also R v Whittle, 1994 CanLII 55 (SCC)
  3. Taylor
    See also R v Micheal, 2015 ONSC 148 (CanLII)
  4. R v Taylor at p.567
  5. R v Whittle
  6. R v Eisnor, 2015 NSCA 64 (CanLII) -- accused shot and killed wife, could not remember incident due to brain damage from shooting self in the head
  7. R v Steele, at para 92
    Micheal at para 12
  8. R v Jaser, at para 45 to 46
  9. Jaser at para 55
  10. Eisner, at para 90
  11. R v Eisner, at para 157
  12. R v Morrissey, 2007 ONCA 770 (CanLII) at para 27
  13. R v Eisner, at para 155

Raising Fitness in the Course of Court Proceedings

Court may direct issue to be tried
672.23 (1) Where the court has reasonable grounds, at any stage of the proceedings before a verdict is rendered, to believe that the accused is unfit to stand trial, the court may direct, of its own motion or on application of the accused or the prosecutor, that the issue of fitness of the accused be tried.
Burden of proof
(2) An accused or a prosecutor who makes an application under subsection (1) has the burden of proof that the accused is unfit to stand trial.
1991, c. 43, s. 4.


Procedure for Determining Fitness

Counsel
672.24 (1) Where the court has reasonable grounds to believe that an accused is unfit to stand trial and the accused is not represented by counsel, the court shall order that the accused be represented by counsel.
Counsel fees and disbursements
(2) Where counsel is assigned pursuant to subsection (1) and legal aid is not granted to the accused pursuant to a provincial legal aid program, the fees and disbursements of counsel shall be paid by the Attorney General to the extent that the accused is unable to pay them.
Taxation of fees and disbursements
(3) Where counsel and the Attorney General cannot agree on the fees or disbursements of counsel, the Attorney General or the counsel may apply to the registrar of the court and the registrar may tax the disputed fees and disbursements.
1991, c. 43, s. 4; 1997, c. 18, s. 82.


Postponing trial of issue
672.25 (1) The court shall postpone directing the trial of the issue of fitness of an accused in proceedings for an offence for which the accused may be prosecuted by indictment or that is punishable on summary conviction, until the prosecutor has elected to proceed by way of indictment or summary conviction.
Idem
(2) The court may postpone directing the trial of the issue of fitness of an accused

(a) where the issue arises before the close of the case for the prosecution at a preliminary inquiry, until a time that is not later than the time the accused is called on to answer to the charge; or
(b) where the issue arises before the close of the case for the prosecution at trial, until a time not later than the opening of the case for the defence or, on motion of the accused, any later time that the court may direct.


1991, c. 43, s. 4.


Trial of issue by judge and jury
672.26 Where an accused is tried or is to be tried before a court composed of a judge and jury,

(a) if the judge directs that the issue of fitness of the accused be tried before the accused is given in charge to a jury for trial on the indictment, a jury composed of the number of jurors required in respect of the indictment in the province where the trial is to be held shall be sworn to try that issue and, with the consent of the accused, the issues to be tried on the indictment; and
(b) if the judge directs that the issue of fitness of the accused be tried after the accused has been given in charge to a jury for trial on the indictment, the jury shall be sworn to try that issue in addition to the issues in respect of which it is already sworn.


1991, c. 43, s. 4.


Trial of issue by court
672.27 The court shall try the issue of fitness of an accused and render a verdict where the issue arises

(a) in respect of an accused who is tried or is to be tried before a court other than a court composed of a judge and jury; or
(b) before a court at a preliminary inquiry or at any other stage of the proceedings.

1991, c. 43, s. 4.


Verdict on Fitness

When fitness finding not necessary

Acquittal
672.3 Where the court has postponed directing the trial of the issue of fitness of an accused pursuant to subsection 672.25(2) and the accused is discharged or acquitted before the issue is tried, it shall not be tried.
1991, c. 43, s. 4.


Finding Accused Fit

Proceeding continues where accused is fit
672.28 Where the verdict on trial of the issue is that an accused is fit to stand trial, the arraignment, preliminary inquiry, trial or other stage of the proceeding shall continue as if the issue of fitness of the accused had never arisen.
1991, c. 43, s. 4.


Where continued detention in custody
672.29 Where an accused is detained in custody on delivery of a verdict that the accused is fit to stand trial, the court may order the accused to be detained in a hospital until the completion of the trial, if the court has reasonable grounds to believe that the accused would become unfit to stand trial if released.
1991, c. 43, s. 4.


Finding Accused Unfit

Verdict of unfit to stand trial
672.31 Where the verdict on trial of the issue is that an accused is unfit to stand trial, any plea that has been made shall be set aside and any jury shall be discharged.
1991, c. 43, s. 4.


Subsequent proceedings
672.32 (1) A verdict of unfit to stand trial shall not prevent the accused from being tried subsequently where the accused becomes fit to stand trial.
Burden of proof
(2) The burden of proof that the accused has subsequently become fit to stand trial is on the party who asserts it, and is discharged by proof on the balance of probabilities.
1991, c. 43, s. 4.


Prima facie case to be made every two years
672.33 (1) The court that has jurisdiction in respect of the offence charged against an accused who is found unfit to stand trial shall hold an inquiry, not later than two years after the verdict is rendered and every two years thereafter until the accused is acquitted pursuant to subsection (6) or tried, to decide whether sufficient evidence can be adduced at that time to put the accused on trial.
Extension of time for holding inquiry
(1.1) Despite subsection (1), the court may extend the period for holding an inquiry where it is satisfied on the basis of an application by the prosecutor or the accused that the extension is necessary for the proper administration of justice.
Court may order inquiry to be held
(2) On application of the accused, the court may order an inquiry under this section to be held at any time if it is satisfied, on the basis of the application and any written material submitted by the accused, that there is reason to doubt that there is a prima facie case against the accused.
Burden of proof
(3) At an inquiry under this section, the burden of proof that sufficient evidence can be adduced to put the accused on trial is on the prosecutor.
Admissible evidence at an inquiry
(4) In an inquiry under this section, the court shall admit as evidence

(a) any affidavit containing evidence that would be admissible if given by the person making the affidavit as a witness in court; or
(b) any certified copy of the oral testimony given at a previous inquiry or hearing held before a court in respect of the offence with which the accused is charged.

Conduct of inquiry
(5) The court may determine the manner in which an inquiry under this section is conducted and may follow the practices and procedures in respect of a preliminary inquiry under Part XVIII where it concludes that the interests of justice so require.
Where prima facie case not made
(6) Where, on the completion of an inquiry under this section, the court is satisfied that sufficient evidence cannot be adduced to put the accused on trial, the court shall acquit the accused.
1991, c. 43, s. 4; 2005, c. 22, ss. 13, 42(F).


Treatment

Case Digests

See Also