AuthorRichard D. Schneider; Hy Bloom
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).

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