Criminal Law Notebook

Fitness to Stand Trial

This page was last substantively updated or reviewed December 2021. (Rev. # 95294)

General Principles

See also: Not Criminally Responsible Due to Mental Disorder
Purpose

The purpose of the fitness to stand trial test is to ensure that the accused is to be able to "participate in the proceedings in a meaningful way" so as to "minimum standards of fairness and accords with principles of fundamental justice."[1]

History

At common law, an accused must fit to stand trial. The 1892 Criminal Code incorporated the common law requirement.[2] 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.[3]

Right to Counsel

An accused who is subject to an assessment order is entitled to counsel in order to render the trial fair.[4]

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.

– CCC (CanLII), (DOJ)

Note up: 672.22

  1. ↑ R v Morrissey, 2007 ONCA 770 (CanLII), 227 CCC (3d) 1, per Blair JA (3:0), at paras 35 to 36
  2. ↑ R v Jaser, 2015 ONSC 4729 (CanLII), per Code J, at para 37
  3. ↑ Jaser, ibid., at para 38
  4. ↑ R v Waranuk, 2010 YKCA 5 (CanLII), 291 BCAC 47, per Bennett JA

"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; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 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; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15; 2018, c. 21, s. 12; 2019, c. 13, s. 140; 2019, c. 25, s. 1; 2022, c. 17, s. 1.

– CCC (CanLII), (DOJ)

Note up: 2

Section 672.22 creates a presumption that the accused is fit to stand trial.

Elements

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.
Standard

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]

"Limited Cognitive Capacity" (LCC)

The proper approach to considering fitness is to apply a "limited cognitive capacity" test, which merely requires that the accused have a "rudimentary understanding of the judicial process."[4]

The "analytic capacity" test has been rejected. That test concerns whether the accused is capable of making rational decisions in their own "best interests."[5]

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."[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 LCC test should fail where the accused's disorder is "so potent and extensive that it cannot be said that the person is capable of following the evidence, communicating rationally with counsel, or giving evidence which is responsive to the case for the Crown."[8]

Inquiry into Fitness

A judge may inquire into fitness to the accused only to the extent of considering the ability to "recount the facts of his offences in such a way that counsel may prepare a defence”.[9]

Testimonial Competence

Testimonial competence is not a component of the test for fitness to stand trial.[10]

Delusions

The presence of "delusions" alone will not vitiate fitness unless it goes to the requirements of fitness.[11]

Conducting the Defence

An accused who is potentially unfit is incapable of :[12]

  • 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.
After Conviction

The provisions relating to fitness to stand trial do not apply after a conviction has been rendered and the sentencing phase has begun.[13] This also means that it is not possible to order an assessment for that purpose either.[14]

That being said, there is no reason an accused cannot be assessed after verdict.[15]

There is authority that this exclusion under s. 672.23(1) violates s. 7 of the Charter of Rights and Freedoms where the accused becomes unfit post-conviction.[16]

  1. ↑ R v Steele, 1991 CanLII 3882 (QC CA), 63 CCC (3d) 149, per curiam
    R v Eisner, 2015 NSCA 64 (CanLII), 327 CCC (3d) 567, per Beveridge JA, at para 89
  2. ↑ R v Taylor, 1992 CanLII 7412 (ON CA), 77 CCC (3d) 551, [1992] OJ No 2394, per Lacourcière JA
    See also R v Whittle, 1994 CanLII 55 (SCC), [1994] 2 SCR 914, per Sopinka J
  3. ↑ Taylor, supra
    See also R v Micheal, 2015 ONSC 148 (CanLII), per Morgan J
  4. ↑ R v Taylor, 1992 CanLII 7412 (ON CA), 77 CCC (3d) 551, per Lacourcière JA, at p. 567 ("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.")
    Whittle, supra, at para 32 ("The test for fitness to stand trial is quite different from the definition of mental disorder in s. 16. It is predicated on the existence of a mental disorder and focuses on the ability to instruct counsel and conduct a defence. That test which was developed under the common law is now codified in s. 2 of the Code", "Accordingly, provided the accused possesses this limited capacity, it is not a prerequisite 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 interests.")
    R v Peepeetch, 2003 SKCA 76 (CanLII), 177 CCC (3d) 37, per Vancise JA
    R v Jobb, 2008 SKCA 156 (CanLII), 239 CCC (3d) 29, per Smith JA
  5. ↑ Taylor, ibid. ("In asking the court to require that the accused be able to act in his own best interests, the respondent is asking this court to adopt the higher threshold "analytic capacity" test for determining the accused's fitness to stand trial. This test has clearly been rejected by the courts.")
  6. ↑ Whittle, supra
  7. ↑ Steele, supra, at para 92
    Micheal, supra, at para 12
  8. ↑ Taylor, ibid.
  9. ↑ R v Jobb, 2008 SKCA 156 (CanLII), 239 CCC (3d) 29, per Smith JA (3:0), at para 43
  10. ↑ Morrissey, supra, at para 25
  11. ↑ Taylor, ibid.
  12. ↑ Eisner, supra, at para 90
  13. ↑ Jaser, supra, at paras 45 to 46
  14. ↑ Jaser, supra, at para 55
  15. ↑ R v Morrison, 2016 SKQB 259 (CanLII), 31 CR (7th) 362, [2016] S.J. No. 437, per Dovell J
  16. ↑ R v CWW, 2023 BCPC 17 (CanLII), per Campbell J
    Morrison, supra
    R v Balliram, 2003 CanLII 64229 (ON SC), 173 CCC (3d) 547, per McWatt J

Memory and Recall

The accused's ability to recall and recite recollections of the events immediately before a surrounding the offence at issue is not a pre-condition for fitness to stand trial.[1]

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.[2]

  1. ↑ Morrissey, supra
  2. ↑ R v Eisnor, 2015 NSCA 64 (CanLII), 327 CCC (3d) 567, per Beveridge JA, at para 157 -- accused shot and killed wife, could not remember incident due to brain damage from shooting self in the head
    Morrissey, supra

Communication

The main inquiry on the element of "communication" with legal counsel should be upon whether the accused has the "ability to seek and receive legal advice."[1]

Communicate with Counsel

The inquiry into the capacity to communicate with counsel is limited to whether the accused can recount facts so that counsel can present a defence.[2]

The requirement means the ability to "hear, understand and respond" in a rational but not necessarily self-interested manner.[3]

  1. ↑ R v Morrissey, 2007 ONCA 770 (CanLII), 227 CCC (3d) 1, per Blair JA (3:0), at para 29
  2. ↑ R v Jobb, 2008 SKCA 156 (CanLII), 239 CCC (3d) 29, per Smith JA ("According to that test, the court’s assessment of an accused’s ability to conduct a defence and to communicate with and instruct counsel is limited to an inquiry into whether an accused can recount to his or her counsel the necessary facts relating to the offence in such a way that counsel can then properly present a defence. ")
    Morrissey, supra, at para 27 (The requirement that the accused be able to communicate with counsel includes "relat[ing] the facts concerning the offence".)
  3. ↑ Eisner, supra, at para 155

Applicable Conditions

The most frequent disorders that have rendered a person unfit include:[1]

  • Psychotic Disorders (e.g. Schizophrenia),
  • Neurocognitive Disorders (e.g., Major Neurocognitive Disorder, including Dementia such as Parkinson's and Alzheimer’s)[2], and
  • Mood Disorders (e.g., Mania in Bipolar Disorder or Depression with Psychosis)
  1. ↑ Shauna Sawich and Hygiea Casiano, Fitness to Stand Trial and Dementia: Considering Changes to Assessment to Meet Demographic Need, 2021 44-4 Manitoba Law Journal 177 2021 CanLIIDocs 13401 at p. 184
  2. ↑ R v Jachetta, 2020 MBPC 21 (CanLII), per Krahn J
    R v Amey, 2009 NSPC 29 (CanLII), per Ross J
    R v Miller, 2011 BCSC 1292 (CanLII), per Joyce J
    R v Blackjack, 2010 YKTC 117 (CanLII) per Ruddy J

Procedure for Determining Fitness

The first step for determination of fitness is to request a fitness assessment under s. 672.11.[1]

  1. ↑ see more Assessment for Fitness and Criminal Responsibility

Court Obligation to Try Fitness When Raised

Obligation to Try Issue (Judge trial)
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.

– CCC (CanLII), (DOJ)

Note up: 672.27

Obligation to Try Issue (Judge and Jury)
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.

– CCC (CanLII), (DOJ)

Note up: 672.26

Court May Raise Issue
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) [power of court to try issue of fitness at any time] has the burden of proof that the accused is unfit to stand trial.
1991, c. 43, s. 4.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 672.23(1) and (2)

Delay Trying Issue Until Crown Election is Made
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.

– CCC (CanLII), (DOJ)

Note up: 672.25(1) and (2)

Power to Appoint of Counsel

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) [order counsel for believed unfit self-rep person] 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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 672.24(1), (2) and (3)

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) [circumstances where issue of fitness is postponed] and the accused is discharged or acquitted before the issue is tried, it shall not be tried.
1991, c. 43, s. 4.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 672.3

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.

– CCC (CanLII), (DOJ)

Note up: 672.28

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.

– CCC (CanLII), (DOJ)

Note up: 672.29

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.

– CCC (CanLII), (DOJ)

Note up: 672.31

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.

– CCC (CanLII), (DOJ)

Note up: 672.32(1) and (2)

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) [where prima facie case not made] 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) [prima facie case to be made every two years], 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 [Pt. XVIII – Procedure on Preliminary Inquiry (ss. 535 to 551)] 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).
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 672.33(1), (1.1), (2), (3), (4), (5), and (6)

Treatment

Case Digests

See Also

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