Assessment for Fitness and Criminal Responsibility

This page was last substantively updated or reviewed January 2021. (Rev. # 84031)

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General Principles

A court may order an assessment under s. 672.11 for the purpose of determining if the accused is unfit to stand trial or was suffering from a mental disorder so as to be exempt from criminal responsibility. Before a Court may order such an assessment, it is necessary that the Court have "reasonable grounds to believe" that the evidence from an assessment would be necessary to determine the issue in question.

Assessment order

672.11 A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine

(a) whether the accused is unfit to stand trial;

(b) whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1) [defence of mental disorder];

(c) whether the balance of the mind of the accused was disturbed at the time of commission of the alleged offence, where the accused is a female person charged with an offence arising out of the death of her newly-born child;

(d) the appropriate disposition to be made, where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial has been rendered in respect of the accused;

(d.1) whether a finding that the accused is a high-risk accused should be revoked under subsection 672.84(3) [high-risk accused – review]; or

(e) whether an order should be made under section 672.851 [recommendation by review board – requirements] for a stay of proceedings, where a verdict of unfit to stand trial has been rendered against the accused.

1991, c. 43, s. 4; 1995, c. 22, s. 10; 2005, c. 22, s. 2; 2014, c. 6, s. 3.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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When an assessment order is made under section 672.1 an accused can be directed into the custody of either the hospital or the detention center. There is nothing prohibiting do use of either facility throughout the detention process.

The list of circumstances permitting an assessment is exhaustive. It is not available post-conviction.

Fitness/NCR Assessment Order vs a DO/LTO Assessment Order

A s. 672.11 order is separate from a DO/LTO Assessment which is made under s. 752.21.

Ordering Assessment

The authority to order an assessment for criminal responsibility or fitness to stand trial is found in s. 672.12 which states:

Where court may order assessment

672.12 (1) The court may make an assessment order at any stage of proceedings against the accused of its own motion, on application of the accused or, subject to subsections (2) [limitation on prosecutor’s application for assessment of fitness] and (3) [limitation on prosecutor’s application for assessment of criminal responsibility], on application of the prosecutor.

Limitation on prosecutor’s application for assessment of fitness

(2) Where the prosecutor applies for an assessment in order to determine whether the accused is unfit to stand trial for an offence that is prosecuted by way of summary conviction, the court may only order the assessment if

(a) the accused raised the issue of fitness; or

(b) the prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is fit to stand trial.

Limitation on prosecutor’s application for assessment

(3) Where the prosecutor applies for an assessment in order to determine whether the accused was suffering from a mental disorder at the time of the offence so as to be exempt from criminal responsibility, the court may only order the assessment if

(a) the accused puts his or her mental capacity for criminal intent into issue; or

(b) the prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is criminally responsible for the alleged offence, on account of mental disorder.

1991, c. 43, s. 4.

– CCC (CanLII), (DOJ)

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Onus and Burden

Every person is presumed sane (s. 16(2)) until established otherwise by the party advancing the issue (s. 16(3)). It must be proven on a balance of probabilities.

Defence of mental disorder

16 [omitted (1)]

Presumption

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1) [defence of mental disorder], until the contrary is proved on the balance of probabilities.

Burden of proof

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.
R.S., 1985, c. C-46, s. 16; R.S., 1985, c. 27 (1st Supp.), s. 185(F); 1991, c. 43, s. 2.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Standard of Proof

The standard does not need to amount to a level of balance of probabilities.

The court just be satisfied on a "credibility based probability" to believe that the assessment is "necessary for one of the enumerated purposes."

"reasonable grounds"

An accused who merely exhibits "odd behaviour" in the course of the offence is not sufficient to warrant "reasonable grounds" and permit the ordering of the assessment.

The fact that there is an opinion that NCR is a viable defence to the charges is also not sufficient to form reasonable grounds to order the assessment.

The presence of a mental disorder by itself is not sufficient to order an assessment.

Party Requesting Assessments

Assessments can be ordered under s. 672.12 by either the court, accused, or crown. The judge cannot order an assessment where it is not requested by either side and is explicitly opposed by both.

The Crown has a further restrictions under s. 672.12(2) and (3) to make the request. The accused must raise their fitness or responsibility and further there must be "reasonable grounds" to doubt the accused fitness or criminal responsibility.

Court Jurisdiction

The Court of Appeal has no power to order an assessment under s.672.11(b) to determine if the accused was not criminally responsible.

Timing

An application for an assessment can be made "at any stage of proceedings against the accused" (s. 672.12(1)).

The assessment can be ordered even after a trial where there is medical evidence, oral or affidavit, that establishes grounds for an assessment.

Evidence

Expert evidence is almost always necessary to make a finding on an accused's sanity.

Procedure

It has been suggested that the court needs sworn evidence either in the form of an affidavit or testimony before an assessment is ordered. Contrary-wise, it has been suggested that no particular form of evidence is needed. The court only needs a "basis for the belief must be clear and plainly appear on the record of the proceedings." It is also said that there only need to be "tangible grounds or arguments that indictable that an assessment order is called for." Where there is no disagreement between parties, there may be less reason to hold to a strict standard of proof.

Form and Content of Order

Contents of assessment order

672.13 (1) An assessment order must specify

(a) the service that or the person who is to make the assessment, or the hospital where it is to be made;

(b) whether the accused is to be detained in custody while the order is in force; and

(c) the period that the order is to be in force, including the time required for the assessment and for the accused to travel to and from the place where the assessment is to be made.

Form

(2) An assessment order may be in Form 48 [forms] or 48.1 [forms].
1991, c. 43, s. 4; 2005, c. 22, s. 4.

– CCC (CanLII), (DOJ)

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Duration of Order

General rule for period

672.14 (1) An assessment order shall not be in force for more than thirty days.

Exception in fitness cases

(2) No assessment order to determine whether the accused is unfit to stand trial shall be in force for more than five days, excluding holidays and the time required for the accused to travel to and from the place where the assessment is to be made, unless the accused and the prosecutor agree to a longer period not exceeding thirty days.

Exception for compelling circumstances

(3) Despite subsections (1) [assessment order maximum 30 days] and (2) [assessment order maximum 30 days – exception for fitness], a court or Review Board may make an assessment order that remains in force for sixty days if the court or Review Board is satisfied that compelling circumstances exist that warrant it.
1991, c. 43, s. 4; 2005, c. 22, s. 5.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Extension

672.15 (1) Subject to subsection (2) [maximum duration of extensions for assessment], a court or Review Board may extend an assessment order, of its own motion or on the application of the accused or the prosecutor made during or at the end of the period during which the order is in force, for any further period that is required, in its opinion, to complete the assessment of the accused.

Maximum duration of extensions

(2) No extension of an assessment order shall exceed thirty days, and the period of the initial order together with all extensions shall not exceed sixty days.
1991, c. 43, s. 4; 2005, c. 22, s. 6.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Consequences of Order

Assessment order takes precedence over bail hearing

672.17 During the period that an assessment order made by a court in respect of an accused charged with an offence is in force, no order for the interim release or detention of the accused may be made by virtue of Part XVI [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)] or section 679 [release pending appeal] in respect of that offence or an included offence.
1991, c. 43, s. 4; 2005, c. 22, s. 8.

– CCC (CanLII), (DOJ)

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Application to vary assessment order

672.18 Where at any time while an assessment order made by a court is in force the prosecutor or an accused shows cause, the court may vary the terms of the order respecting the interim release or detention of the accused in such manner as it considers appropriate in the circumstances.
1991, c. 43, s. 4; 2005, c. 22, s. 9(F).

– CCC (CanLII), (DOJ)

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No treatment order on assessment

672.19 No assessment order may direct that psychiatric or any other treatment of the accused be carried out, or direct the accused to submit to such treatment.
1991, c. 43, s. 4.

– CCC (CanLII), (DOJ)

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When assessment completed

672.191 An accused in respect of whom an assessment order is made shall appear before the court or Review Board that made the order as soon as practicable after the assessment is completed and not later than the last day of the period that the order is to be in force.
1997, c. 18, s. 81; 2005, c. 22, s. 10.

– CCC (CanLII), (DOJ)

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Custody During Order

Presumption against custody

672.16 (1) Subject to subsection (3) [presumption of custody in certain circumstances], an accused shall not be detained in custody under an assessment order of a court unless

(a) the court is satisfied that on the evidence custody is necessary to assess the accused, or that on the evidence of a medical practitioner custody is desirable to assess the accused and the accused consents to custody;

(b) custody of the accused is required in respect of any other matter or by virtue of any other provision of this Act; or

(c) the prosecutor, having been given a reasonable opportunity to do so, shows that detention of the accused in custody is justified on either of the grounds set out in subsection 515(10) [justification for detention in custody].

Presumption against custody — Review Board

(1.1) If the Review Board makes an order for an assessment of an accused under section 672.121 [review board may order assessment], the accused shall not be detained in custody under the order unless

(a) the accused is currently subject to a disposition made under paragraph 672.54(c) [order of detention to a hospital];

(b) the Review Board is satisfied on the evidence that custody is necessary to assess the accused, or that on the evidence of a medical practitioner custody is desirable to assess the accused and the accused consents to custody; or

(c) custody of the accused is required in respect of any other matter or by virtue of any other provision of this Act.

Residency as a condition of disposition

(1.2) Subject to paragraphs (1.1)(b) [presumption against custody (review board) – necessary for assessment] and (c) [presumption against custody (review board) – necessary for other reasons], if the accused is subject to a disposition made under paragraph 672.54(b) [conditional discharge – review board] that requires the accused to reside at a specified place, an assessment ordered under section 672.121 [review board may order assessment] shall require the accused to reside at the same place.

Report of medical practitioner

(2) For the purposes of paragraphs (1)(a) [presumption against custody – necessary for assessment] and (1.1)(b) [presumption against custody (review board) – necessary for assessment], if the prosecutor and the accused agree, the evidence of a medical practitioner may be received in the form of a report in writing.

Presumption of custody in certain circumstances

(3) An assessment order made in respect of an accused who is detained under subsection 515(6) [reverse onus offences] or 522(2) [order detention for 469 offences unless accused shows cause] shall order that the accused be detained in custody under the same circumstances referred to in that subsection, unless the accused shows that custody is not justified under the terms of that subsection.
1991, c. 43, s. 4; 2005, c. 22, s. 7.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Assessment Reports

Assessment report

672.2 (1) An assessment order may require the person who makes the assessment to submit in writing an assessment report on the mental condition of the accused.

Assessment report to be filed

(2) An assessment report shall be filed with the court or Review Board that ordered it, within the period fixed by the court or Review Board, as the case may be.

Court to send assessment report to Review Board

(3) The court shall send to the Review Board without delay a copy of any report filed with it pursuant to subsection (2) [assessment report to be filed with review board], to assist in determining the appropriate disposition to be made in respect of the accused.

Copies of reports to accused and prosecutor

(4) Subject to subsection 672.51(3) [exception where disclosure dangerous to any person], copies of any report filed with a court or Review Board under subsection (2) [assessment report to be filed with review board] shall be provided without delay to the prosecutor, the accused and any counsel representing the accused.
1991, c. 43, s. 4; 2005, c. 22, s. 11.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Admissibility of Assessment Reports

Section 672.21 designates statements by accused in the course of assessments or treatments to be "protected". These protected statements are not admissible except for the purpose of determining fitness, determining placement or disposition, perjury proceedings, and other limited purposes.

Definition of “protected statement”

672.21 (1) In this section, “protected statement” means a statement made by the accused during the course and for the purposes of an assessment or treatment directed by a disposition, to the person specified in the assessment order or the disposition, or to anyone acting under that person’s direction.

Protected statements not admissible against accused

(2) No protected statement or reference to a protected statement made by an accused is admissible in evidence, without the consent of the accused, in any proceeding before a court, tribunal, body or person with jurisdiction to compel the production of evidence.
[omitted (3)]
1991, c. 43, s. 4; 2005, c. 22, s. 12; 2014, c. 6, s. 5.

– CCC (CanLII), (DOJ)

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Accused statements made in the assessment report are not admissible at sentencing.

The consent to undergo an assessment does not translate to consent to collect evidence against the accused. The statements cannot be used for establishing planning or deliberation.

The results of an assessment report are admissible at sentencing and can be challenged by the accused.

Exceptions

672.21
[omitted (1) and (2)]

Exceptions

(3) Notwithstanding subsection (2) [protected statements not admissible against accused], evidence of a protected statement is admissible for the purpose of

(a) determining whether the accused is unfit to stand trial;

(b) making a disposition or placement decision respecting the accused;

(c) determining, under section 672.84 [review of finding – high-risk accused], whether to refer to the court for review a finding that an accused is a high-risk accused or whether to revoke such a finding;

(d) determining whether the balance of the mind of the accused was disturbed at the time of commission of the alleged offence, where the accused is a female person charged with an offence arising out of the death of her newly-born child;

(e) determining whether the accused was, at the time of the commission of an alleged offence, suffering from automatism or a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1) [defence of mental disorder], if the accused puts his or her mental capacity for criminal intent into issue, or if the prosecutor raises the issue after verdict;

(f) challenging the credibility of an accused in any proceeding where the testimony of the accused is inconsistent in a material particular with a protected statement that the accused made previously; or

(g) establishing the perjury of an accused who is charged with perjury in respect of a statement made in any proceeding.

1991, c. 43, s. 4; 2005, c. 22, s. 12; 2014, c. 6, s. 5.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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