Criminal Code

AuthorRichard D. Schneider
Chapter 8: Criminal Code
Criminal Code, R .S.C. 1985, c. C-46 , as amended by R.S. , c. C-46, Part X XVIII; R.S., 1985,
c. 27 (1st Supp.), ss. 101(E), 184, 203, c. 1 (4th Supp.), ss. 17, 18(F), c. 42 (4th Supp.), ss.
6–8; 1991, c. 43, s. 8; 1992, c. 1, s. 58; 1993, c. 45, ss. 12–14; 1994, c. 44, s. 84; 1995, c.
22, ss. 9, 10, 18; 1997, c. 18, s. 115, c. 30, s. 3, c. 39, s. 3; 1998, c. 37, s. 24; 1999, c. 3, s.
58, c. 5, ss. 45–47, c. 25, ss. 24–27 (Preamble); 2000, c. 10, s. 24; 2002, c. 1, ss. 185, 186,
c. 13, ss. 85, 86(F).
Def‌i nitions
“feeble-minded person” [Repealed, 1991, c. 43, s. 9]
“mental disorder” means a disease of the m ind;
“unf‌i t to stand trial” means u nable on account of mental disorder to conduct a defence at
any stage of the proceedin gs before a verdict is rendered or to instr uct counsel to do
so, and, in particu lar, unable on account of mental disorder to
(a) understand the natu re or object of the proceedings,
(b) understand the possible consequences of the proceedings, or
(c) communicate with counse l;
The requirement that an accused be “f‌i t to stand trial” stems from the ancient notion that
an accused must be present to respond to accusations of the state. That basic require-
ment developed into a more ref‌i ned view that the accused must not only be physically
present but mentally present as well. Accordingly, rules originally developed at common
law were codif‌i ed in 1992 and are contained in section 2 of the Criminal Code.
The procedures for dealing with the issue of unf‌i tness to stand trial, and mental disor-
der in general, are set out below in Part XX.1 of the Criminal Code.
Current State of Affairs
Recently we have seen an unprecedented increase in t he number of mentally disordered ac-
cused entering the criminal justice system in respect of whom the issue of “f‌i tness” arises.
St atis ti cs s how tha t ov er t he l as t de cad e th e nu mbe r o f me nta lly dis ord ere d ac cus ed e nt eri ng
the criminal justice system has been escalating at a minimum of 10 percent annually while
overall arrest and prosecution rates have been declining. (See R.D. Schneider, Statistical Sur-
vey of Provincial and Territorial Review B oards (Otta wa: Fede ral Depa rtmen t of Justi ce, 20 00);
Canadian Crime Statistics (Ottawa: Canadian Centre for Justice Statistics, 2002)).
There have been a number of hypotheses offered to explain this growth, which include
the following: (1) cutbacks in mental-health care (civil) spending; (2) a perception that
the new Part XX.1 of the Criminal Code is less harsh and is therefore inviting the issue; (3)
inadequate civil legislation; and (4) a climate of “zero tolerance” re garding criminal activ-
ity, whether or not it is the product of mental disorder. These explanations are specula-
tive and, if valid, may be complementary and overlapping. What is very clear is that the
criminal justice system now has to deal with mentally disordered accused in numbers
that are diff‌i cult to accommodate.
When May the Issue Arise?
The issue of f‌i tness may arise at any point in the proceedings. Most often, the issue arises
at f‌i rst appearance an d is resolved prior to arraignment. However, the issue may ar ise
during the course of a trial or preliminary hearing and may arise on multiple occasions:
subsection 672 .23(1).
Court may direc t issue to be tried
672.23 (1) Where the court has reasonable grounds, at a ny stage of the proceedings
before a verdict is rendered, to believe that the acc used is unf‌i t to stand trial, the cour t
may direct, of its own motion or on application of the accu sed or the prosecutor, that the
issue of f‌i t ness of the accused be tr ied.
As is apparent from the def‌i nition of “unf‌i t to stand trial,” now contained in section 2 of
the Criminal Code, as set out above, the statutor y provisions only relate to “unf‌i tness”
prior to a verdict.
Where the issue arises after a verdict is pronounced and prior to sentencing or during
the course of sentencing, the statutory provisions do not apply. It may be that, from a
common law or Charter of Rights perspective, the prosecution may not be able to pro-
ceed. This issue, and the problem created by the def‌i nition in section 2, is currently being
considered by Parliament and may result in an amendment that would cure this rare but
diff‌i cult situation.
Unf‌i tness Post-Verdict?
The relevant sections indicate that the statutory provisions dealing with unf‌i tness to
stand trial only pertain up to the point of a verdict. Therefore, if the accused becomes
“unf‌i t” after a verdict and prior to sentencing, Part XX.1 of the Criminal Code is not
available. (For a fuller discussion of this problem consult R.D. Schneider, “Fitness to be
Sentenced” (1998) 41 Crim L.Q. 261.)
Although not frequently encountered because most accused are sentenced immedi-
ately upon their conviction, this problem does arise from time to time. The Standing
Committee on Justice has recommended section 2 of the Code be amended so as to
include the sentencing phase of the prosecution. As it stands now, the provisions have
been modif‌i ed (at least for Ontario) with Justice McWatt’s recent decision in R. v. G.B.,
[2003] O.J. No. 784 at para. 48 (S.C.J.). Justice McWatt “read-in” the words “at any stage
of the proceedings before a verdict is rendered or sentence imposed.”
Unable: the test is not whether the accused knows his or her legal situation, etc.,
but whether he is able to understand the concepts and communicate with counsel.
The accused’s capacity is the central concern. Simple ignorance does not render
an accused unf‌i t.
Mental disorder: is def‌i ned as “disease of the mind.” Disease of the mind “embra-
ces any illness, disorder or abnormal condition which impairs the human mind and
its functioning”: R. v. Cooper (1979), [1980] 1 S.C.R. 1149. The def‌i nition from the
perspective of criminal law is broad and includes, for example, mental retardation.
See, for example, R. v. Rouse, [1996] O.J. No. 4688 (Gen. Div.).
To conduct a defence: suggests that any dysfunction caused by a mental disorder
that would render the accused unable to conduct his or her defence (or instruct
counsel to do so), in addition to the examples contained in section 2, would render
an accused unf‌i t. The operative consideration is the accused’s ability “to conduct a
defence.” The three particulars listed in subsections (a), (b), and (c) are seemingly
examples of the most common domains of inquiry in the accused’s ability to con-
duct a defence. In addition, given that a “defence” may require competence over a
considerable period of time, depending on the nature of the litigation, f‌i tness argu-
ably requires a prospective component to the test.
Before a verdict is rendered: the statutory provisions dealing with unf‌i tness to stand
trial only pertain until the time of a verdict.
Traditionally, the criteria set out in section 2 have been explored through a set of ques-
tions such as the following:
What are the roles of the various people in the courtroom?
What are the charges the accused is facing?
What are the available pleas?
What are the consequences of a conviction?
What is the meaning of an oath?
What is perjury?
Limited Cognitive Capacity Test
R. v. Taylor (1992), 11 O.R. (3d) 323 (C.A.) sets the test for f‌i tness to stand trial as the
“limited cognitive capacity test.” This test requires that the accused have only a rudiment-
ary factual understanding of his legal predicament. A “rational” understanding is not re-
quired, nor is it necessary that the accused be able to act in his own best interests. (For a
critique of the Tayl or decision, see R.D. Schneider and H. Bloom, “R. v. Taylo r : A Decision
Not in the Best Interests of Some Mentally Ill Accused” (1995) 38 Crim. L.Q. 183).
Time of Unf‌i tness
While the assessment pertains to the accused’s present abilities rather than his or her
mental state at the time of the alleged offence, as mentioned above, the conduct of a de-
fence may require assurance that, notwithstanding present competence, the accused will
remain f‌i t through to a specif‌i c point in the future. This prospective element is generally
Criminal Code, s. 2 411

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