Appendix A. Fitness to Stand Trial and Criminal Responsibility: An Introductory Overview

• Author: Richard D. Schneider/Caitlin Pakosh/Lora Patton
• Pages: 89-102

89

APPENDIX A

Fitness to Stand Trial and Criminal Responsibility:

An Introductory Overview

THE PRESUMPTION OF FITNESS AND RELEVANT DEFINITIONS

Every accused person is presumed to be t to stand trial until the contrary is proven on a balance

of probabilities, pursuant to section . of the Criminal Code:

Presumption of f‌itness

. An accused is presumed f‌it to stand trial unless the court is satisf‌ied on the balance of prob-

abilities that the accused is unf‌it to stand trial. [, c. , s. ]

The requirement that an accused be “t to stand trial” stems from the ancient notion that an

accused must be present to respond to accusations of the state. That basic requirement developed

into a more rened view that the accused must not only be physically present but mentally present

as well. Accordingly, rules originally developed at common law were codied in  as part of Bill

C- and are contained in section  of the Criminal Code, as set out below:

DEFINITIONS FROM SECTION 2

“mental disorder” means a disease of the mind;

“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

At any stage of the proceedings before a verdict is rendered, the court may direct that the issue

of the accused’s tness be tried if the court has reasonable grounds to believe that the accused

is unt to stand trial, pursuant to section .():

Court may direct issue to be tried

. () 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.

Most often, the tness issue arises at the accused’s rst appearance and is resolved prior to

arraignment. However, the issue may arise during the course of a trial or preliminary hearing and

may arise on multiple occasions. It is therefore not subject to rules regarding res judicata.