FITNESS TO PLEAD GUILTY: THE LIMITED COGNITIVE CAPACITY TEST AND MENTALLY DISORDERED ACCUSED.

• Date: 01 January 2019
• Author: Luimes, Mark

INTRODUCTION 28 I THE "LIMITED COGNITIVE CAPACITY" TEST FROM R VTAYLOR 29 A. Analytic Capacity 30 B. Balancing Competency with Charter Rights 31 C. Fitness to Plead Guilty 32 II AT STAKE: FALSE GUILTY PLEAS AND MENTAL DISORDER 33 III COMPETENT FOR WHAT? DECISION-MAKING AT TRIAL AND IN PLEA NEGOTIATIONS 36 A. Decision-Making at Trial 37 B. Decision-Making in Plea Negotiations 38 IV WAIVING, NOT EXERCISING, CHARTER RIGHTS 41 CONCLUSION 42 INTRODUCTION

The question of competence is central to the participation of mentally disordered and intellectually disabled accused in the criminal justice system. The concern for trial fairness and for justice in the outcome of the proceedings requires that an accused possess a certain level of mental competency. The issue of competence can arise at several points throughout the criminal process. As outlined in R v. Whittle, the courts require that the accused be mentally competent to make a confession to the authorities, to waive the right to counsel, to plead guilty to an offense, and to be found fit for trial. (1)

This paper will question the Supreme Court's conclusion that the competency standard for entering a guilty plea should be the same as it is to be fit to stand trial. Richard Schneider and Hy Bloom have criticized the application of the limited cognitive capacity test to the question of fitness to stand trial, arguing that it disadvantages certain mentally disordered accused. (2) I take no position on the appropriateness of the limited cognitive capacity test for fitness to stand trial. However, I intend to contrast the competencies required of the accused at the plea negotiation stage with those required at the trial stage, and argue that the decision to plead guilty places more crucial demands on the mental competency of the accused than a trial does. In addition, I note that the limited cognitive capacity standard was justified as a means to give the accused access to the constitutional right to a trial. These considerations that justified a low standard for fitness to stand trial do not apply to a guilty plea; in fact, they weigh in the opposite direction. Even if the limited cognitive capacity test is appropriate for fitness to stand trial, it is not appropriate for the decision to plead guilty. Instead, a higher analytic capacity competency threshold is required.

In Part I, I introduce the current legal standard for competence to plead guilty. The limited cognitive capacity test was introduced for fitness to stand trial in R v Taylor. (3) It was then justified as a prudent balance between the need for the accused to be competent and the countervailing Charter rights to stand trial in a reasonable time and make full answer and defence. In R v Whittle, the court confirmed that the limited cognitive capacity was also the standard for competency to enter a guilty plea.

In Part II, I introduce the problem. Innocent people enter false guilty pleas. Cognitive impairment makes the problem worse: innocent accused who have difficulty understanding their situation and foreseeing consequences are at a greater risk of succumbing to institutional incentives to plead guilty. I provide examples of false guilty pleas made by individuals suffering from Fetal Alcohol Spectrum Disorders, a group that comes in frequent contact with the criminal justice system and is particularly vulnerable under the current framework.

In Part III, I argue that competency is a contextual inquiry that depends on the particular task at issue, and posit that plea deals are significantly different from the decisions made at trial. I examine the distribution of the decision-making competencies that have a direct bearing on the outcome of charges at the trial stage and contrast them with the decision to accept a plea deal. I argue that at the latter stages of a resolution discussion, the accused is responsible for a higher percentage of the decision-making competencies that have a bearing on the justice of the outcome than they are at trial.

In Part IV, I argue that the Charter rights to stand trial in a reasonable time and make full answer and defence do not support a low competency threshold for pleading guilty in the same way they do for standing trial. By pleading guilty, the accused is waiving a long list of Charter rights. Allowing an accused who cannot make rational decisions in his own best interests but can recount the facts to counsel reflects the trust our system places on the truth-seeking function of an adversarial trial, to which the accused has a Charter right. Absent that justification, the limited cognitive capacity test would be too low. By contrast, there is no similar justification for allowing an accused to plead guilty, waiving his right to a trial and defence, when he is unable to make rational and beneficial decisions. The value of the Charter rights supports the opposite conclusion: our trust in the adversarial trial should prevent a judge from accepting a guilty plea from an accused who has not passed a higher "analytical capacity" competency threshold.

I THE LIMITED COGNITIVE CAPACITY TEST FROM R V TAYLOR

The limited cognitive capacity test for fitness to stand trial made its first appearance in the Court of Appeal for Ontario's decision in R v Taylor. The test only requires that an accused can recount the facts to their defence counsel sufficiently for counsel to mount a proper defence at trial. The question of whether the accused is capable of making decisions in their own best interests is not to be considered. (4)

Mr. Taylor, a lawyer, was charged with aggravated assault and possession of a weapon with a purpose dangerous to the public peace. (5) Expert psychiatric evidence showed that he was schizophrenic, paranoid, delusional, and that he believed that the medical and legal systems had conspired against him. (6) Crucially, the psychiatrists found that Mr. Taylor would not be able instruct counsel in a manner that would be in his best interests. (7)

At issue was the interpretation of the recently incorporated definition of fitness in Section 2 of the Criminal Code, which states that "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. (8) Prior to Criminal Code revisions that entered into force in 1992, the term "unfit to stand trial" was not defined in the Code, leaving the precise content of the requirement to the common law. (9) In Taylor, the Court had to decide between the limited cognitive capacity test, advanced by Mr. Taylor's counsel, and a higher standard of "analytic capacity".

1. ANALYTIC CAPACITY

   The Respondent in Taylor argued for an "analytic capacity" test that required that the accused be capable of making rational decisions that benefit him. (10) This general approach has been used, in various iterations, in the common law of both Canada and the United States. For example, in the 1975 decision R v Roberts, the British Columbia Court of Appeal stated that the accused must be "physically, intellectually, linguistically, and communicatively present and able to partake to the best of his natural ability in his full answer and defence to the charge against him." 11 In R v Steele, the last appellate decision to interpret the fitness requirement before the Criminal Code revisions, Justice Fish (as he then was) writing for the Quebec Court of Appeal held that the ability to engage in rational analysis was a necessary component of the fitness test. (12) He further stated that

   [f]airness demands that [the accused] be aware of what is going on at trial so as to take whatever steps available to avoid the potential consequences of being found guilty. A trial at which the accused is mentally unable to exercise his rights is really a trial at which these rights do not exist. Exempting him from trial, therefore, protects his rights to make full answer and defence. (13) The competence standard for fitness to stand trial in the United States also has a rationality component. In Dusky v United States the Supreme Court held:

   the test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him. (14) The United States Supreme Court upheld this standard in Godinez v Moran, and equated the requirement for a rational understanding in Dusky with the standard that the defendant must have the capacity for reasoned choice. (15)

   In Taylor, the Court rejected an analytic capacity test and instead chose the limited cognitive capacity test. The Court held that the trial judge had erred in concluding that the accused must be capable of making rational decisions beneficial to him. Instead, the fitness test required only the ability to recount the facts sufficiently for counsel to present a defence. (16) This decision has been subjected to criticism. In response to Taylor, Schneider and Bloom argued that the accused's right to choose and participate in his own defence is only meaningful if "choice" means an "informed, rational choice". (17) Otherwise, they argue, it is less choice than chance, and his right to choose is a "right to commit the...