Fitness to Stand Trial

• Author: Hy Bloom
• Pages: 211-247

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CHAPTER 12

Fitness to Stand Trial

Hy Bloom

I. INTRODUCTION

e evaluation of an accused person’s tness, or competency, to stand trial is one of the most common

psycholegal issues that brings psychiatrists into contact with the crimina l courts. is issue is clearly a

signicant matter for the accused, and the assessment of tness is a critical part of forensic psychiatry in

the criminal setting.

e requirement that an accused be “t to stand trial” stems from the ancient practice that an ac-

cused must be present to respond to accusations of the state. at basic requirement developed into a

more rened view that the accused must not only be physically present, but mentally present as well.

Rules originally developed at common law were codied in 1992 and are contained in section 2 of the

Criminal Code, where unt to stand trial (as opposed to t) is dened as follows:

“[U]nt 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 par ticular, 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;

An evaluation of a person’s tness to stand trial involves assessing his functional abilities, behaviour

and capacities in relation to the charges being faced and to the overall legal predicament (Grisso, 1986).

e elements of tness to stand trial include not only the specic knowledge referable to tness, infer-

entially set out in the above denition of “unt,” but also the individual’s beliefs, the capacity to weigh

variables and the aective state, as they relate to being t to stand trial.

e approach to assessing tness to stand trial is similar to the general principle used in the clinical

approach to evaluating all competencies: an individual is competent for a particular task or with respect

to a matter if he or she understands the nature of the matter in issue, and the implications of acquiescing

to or engaging in the task or function, or of foregoing it.

Concerns about the accused person’s tness are usually identied early in the proceedings, oen be-

fore the accused has been brought to court for his rst appearance at a bail hearing (see Section III). Fit-

ness concerns may arise at any point in the proceedings, given the oen oscillating nature of symptoms

experienced by some mentally disordered accused, and the overall policy purpose of the tness require-

ment. e court has the power to order a tness hearing at any stage prior to a verdict being rendered

or a sentencing being completed, should the matter arise aer the commencement of the legal process

(Criminal Code, s. 672.23).

e tness rules ultimately evolved out of a need to protect an accused person from being unfairly

subjected to the criminal process when she is too unwell to respond. One should not forget the pot-

entially onerous implications of nding an accused unt to stand trial. Such a nding could result in

Hy Bloom 

months, or potentially years, of deprivation of the accused’s liberty, under the jurisdiction of a provincial

or territorial review board. Such a deprivation of liberty would ordinarily run afoul of the assumption

that every accused is presumed innocent. at assumption, however, operates dierently when mental

disorder derails the usual course of a criminal prosecution due to the accused being unt. His detention

in the event of a nding of tness is an exception to the presumption of innocence, since the need to

protect the accused from prosecution when he is unable to participate, and to protect the public from a

potentially dangerous accused, temporarily abrogates rights that would otherwise be in place. e tness

rules have evolved to address unique circumstances in which both the interests of justice and the needs

and rights of the accused are balanced as much as possible. Part XX.1 — a code within the Crimina l Code

focused on mentally disordered accused — attempts to achieve that balance.

is chapter will begin with an overview of the clinical and legal considerations involved in as-

sessing tness to stand trial, and (for lawyers) will address legal interests. e chapter will describe the

circumstances in which tness issues arise and how they are dealt with, the current standard or test for

establishing tness and (in the author’s view) its limitations, the various conditions that may result in

problems with tness, and the outcome of tness proceedings.

e chapter will conclude with a review of tness considerations for the self-represented accused.

Courts (and parties) need to contend more and more with accused (and other litigants), especially those

with mental disorders, who for one reason or another choose to represent themselves. e emerging

concept of “tness for self-representation” will be reviewed in detail.

II. HISTORY OF FITNESS RULES

It would not be unreasonable to say that the tness rules evolved over millennia. Limitations in an ac-

cused’s physical well-being, intellect, and/or mental stability historically resulted in dispensations of one

kind or another. Protections against trying a physically unwell or physically absent accused preceded

recognition that, while an accused may be physically present, intellectual and/or emotional weakness

would render his presence meaningless, and would subject him unfairly to legal process.

According to Slovenko (1998), the earliest English statute dealing with tness to stand trial was

passed in Henry VIII’s thirty-third year of reign. Of interest, An Act for Due Process to be Had in High

Treasons, in Cases of Lunacy or Madness (33 Henry VIII, CH. XX; quoted in Slovenko) concerned itself

not only with whether the accused was mentally unwell, but whether his uncommunicative presentation

was authentic (“mute by visitation” (i.e., based on mental disorder)), or contrived (“mute of malice”) to

evade prosecution.

e concept of tness to stand trial was fairly well established in England by the eighteenth century,

owing substantially to the inuential writings of British legal commentator, Sir William Blackstone, who

addressed the issue head on, as follows:

If a man in his sound memory commits a capital oence, a nd before arraignment for it, he becomes mad,

he ought not to be arraigned for it: because he is not able to plead to it with that advice and caution that he

ought. And if, aer he has pleaded, the prisoner becomes mad, he shall not be tr ied: for how can he make

his defence? If, aer he be tried and found guilty, he loses his senses before judgment, judgment shall not

be pronounced; and if, aer judgment, he becomes of nonsane memory, execution shall be stayed: for

peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might

have alleged something in stay of judgment or execution. (Blackstone, 1769, p. 24)

In their review of the historical background to the law and procedure relating to competence to stand

trial in the United States, Zapf and Roesch (2008) reference the importance of United States v. Lawrence

(1835), a case in which the accused was found incompetent (and spent the rest of his life in mental institu-

tions) to stand trial following his attempt to assassinate President Andrew Jackson. ey also reference

Fitness to Stand Trial 

Youtsey v. United States (1899) in which the Court of Appeals reversed the nding of a trial court, and

found the accused incompetent due to its doubts about the accused’s capacity to appreciate his legal pre-

dicament a nd intelligently instruct his lawyer about his defence (emphasis added).

e jurisprudential narrative of tness to stand trial in Canada begins with the English case of R. v.

Pritchard (1836). In the context of considering whether a potentially mentally ill accused should proceed

to trial, the trial judge suggested that three issues be considered:

First, whether the prisoner is mute of malice (i.e., wilful ly mute) or not; secondly, whether he can plead

to the indictment or not; thirdly, whether he is of sucient intellect to comprehend the course of the

proceedings on the trial, so as to ma ke a proper defence — to know that he might challenge any of you

to whom he may object — and to comprehend the details of the ev idence, which in a case of this nature

must constitute a minute investigation.

e above review of the historical evolution of the tness rules makes clear that it is fundamental to our

system of criminal justice that an accused be able to participate in the judicial process in a meaningful

way. In R. v. Taylor (1992), generally considered to be the most authoritative case on point in Canada, Mr.

Justice Lacourcière of the Ontario Court of Appeal, articulated it in this way:

In order to ensure that the process of determining gui lt is as accurate as possible, that the accused can

participate in the proceedings or assist counsel in his/her defence, that the dignity of the trial process is

maintained, and that , if necessary, the determination of a t sentence is made possible, the accused must

have sucient mental tness to participate in the proceedings in a mean ingful way (page 567).

III. HOW AND WHEN DO FITNESS ISSUES ARISE?

A. First Evidence of a Fitness Concern

e issue of tness may arise at any point in the proceedings. Most oen, the issue arises at rst court

appearance (bail hearing before a justice of the peace) and is resolved prior to arraignment. e issue

may arise, however, at any point during the trial, before a verdict is reached, and post-verdict, up to the

point the accused is sentenced. In these situations, the trial is postponed until the issue is dealt with

(s. 672.25(2)). Interruptions of this kind are more likely to occur with an accused whose mental state —

and consequently tness — is uctuating (see Section VIII(B)).

When a jury is trying the accused, it is the jury that decides whether or not the accused is t. e

decision is made aer appropriate direction from the trial judge, once the judge has concluded that there

is reason to doubt the accused’s tness (Criminal Code, s. 672.26).

B. Evidence Suggestive of Unf‌itness

Signs that an accused is mentally unwell and could have diculty managing the legal process may have

been observed on arrest or once in custody at the police station or detention centre. Similarly, rst ob-

servations of something amiss with the accused may have been noted by court sta and agged for duty

counsel, the prosecutor, or the judge. Table 12.1 below describes some of the more commonly seen be-

haviours that raise concerns about tness.