Conclusion

• Author: Richard D. Schneider; Hy Bloom
• Pages: 195-197

195

Conclusion

Canadian courts insist that an accused be t to stand trial because the

common law demands that a trial, in order to be valid, must be “fair.”

And, for a trial to be fair, an accused cannot be prosecuted when they

are unable to conduct a defence on account of mental disorder. Across

Western jurisdictions, there is very little debate that fairness demands

tness. Prosecutors, as “ministers of justice,” should take no pleasure

in, or have any appetite for, a trial process that is not fair. Unlike the

other major psycholegal issue — “criminal responsibility” — the basic

concept of a fairness-based need for an accused to be t is largely

uncontroversial and most oen non-adversarial. The authors are not

aware of any Western jurisdiction that has decided to do away with the

tness requirement.

Yet, while the objectives of ensuring a fair trial are common and have

their roots in antiquity, some considerable debate nonetheless remains

about the tness rules that we have covered in the preceding chapters.

How t does the accused have to be? For how long does the accused

have to be t? Does an accused have to be t to have a bail hearing? Can

others ll in gaps or assist in order to make an otherwise unt accused

t? We have tried to consider all sides of such issues and have come to

a number of conclusions.

First, we are of the view that specically not requiring accused to have

a rational understanding of their legal predicament was, prior to R v

Taylor,1 unprecedented. We would argue that rationality is required for

1 [1992] OJ No 2394 (CA).