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:

“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.


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


Case Digests

See Also