Appendices A. Canadian, British, and American Case Summaries

• Author: Richard D. Schneider; Hy Bloom
• Pages: 199-221

199

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Canadian, British, and American

Case Summaries

CANADIAN CASES

Calvert (Litigation Guardian of ) v Calvert (1997), 32 OR (3d) 281 (Gen Div)

A t litigant may have the capacity to make decisions regarding only cer-

tain aspects of a plan rather than all of them.

Canada (Attorney General) v Savard, [1996] YJ No 4 (CA)

With respect to the mandatory appointment of counsel for unt accused

pursuant to the provisions of section 672.24(1) of the Criminal Code, the

court, notwithstanding the provisions of section 672.24(2), does not have

the authority to order the attorney general of Canada to pay counsel who

represents an accused as a result of an order made under that section.

Desmarais v R, [2017] QJ No 3864 (Sup Ct)

Upon the earlier decision from the Court of Appeal in this matter nd-

ing, inter alia, that an accused had to be t to stand trial in order to have

a bail hearing, the Superior Court granted the accused’s application for a

stay of proceedings as a result of the “Kafkaesque procedural nightmare”

experienced by the accused (at para 1). The accused, who suers from a

mental disorder, was in custody for over four years without a bail hearing

while the matter of his tness to stand trial was being batted about. (:

Unfortunately, as a result of the stay, the rather remarkable decision of the

Court of Appeal remains intact.)

Evers v British Columbia (Adult Forensic Psychiatric Services), [2009] BCJ No 2450 (CA)

The provisions of section 672.49 of the Criminal Code pertain only to initial

hearings (section 672.47). Accused, other than those at an initial hear-

ing, maintain their disposition, which remains undisturbed by a Review

Board’s determination of tness.

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HH (Re), [2007] BCRBD No 21

A “keep t” order was made where the accused, presently t, was prone to

decompensation.

Italy v Seifert, [2003] BCJ No 726 (SC)

The concept of tness to stand trial was considered at an extradition hear-

ing. The court found that an extradition hearing is not a trial and that the

same level of tness is not required.

Law Society of Upper Canada v Tollis, [2011] LSDD No 236

The standard that is applied when an appellant relies on mental disorder

to invalidate a plea because of involuntariness is the same test that is used

to determine the tness of an accused to stand trial.

Murphy (Re), [1998] AJ No 826 (Prov Ct)

There was, in respect of the accused’s tness, a question as to whether his

“amnesia” was due to post-traumatic shock or a suicide attempt. Regard-

less, the accused could communicate with counsel and understood the

nature and object of the proceedings and was therefore considered to be

t. (: Compare R v Morrissey which found that amnesia is of no conse-

quence with respect to tness to stand trial.)

Ohenhen (Re), 2018 ONCA 65

The capacity required to consent to a condition under section 672.55(1) of

the Criminal Code is the ability to understand all information relevant to

the operation of the condition and to appreciate all reasonably foreseeable

consequences of agreeing to the condition.

Pintea v Johns, [2017] 1 SCR 470

An unrepresented litigant must be made aware of role played by opposing

counsel.

R v Adam, [2013] OJ No 222 (SCJ)

A test for tness should focus not so much on the individual’s exercise of

good judgment or ability to make the “right choice,” as on whether the

accused’s capacity to judge and choose has not been fettered by mental ill-

ness: “For an accused person in a criminal trial, meaningful participation

can only mean the ability to defend oneself ” (at para 29).

R v Amey, 2009 NSPC 29

An accused’s inability to remember the events leading to the charge as well

as an inability to remember the course of the trial led to a nding of unt-

ness, as, in the instant case, these elements were important to the ability of

the accused to give instructions to counsel.