Fitness to Stand Trial

• Author: Hy Bloom, Richard D Schneider
• Pages: 76-152

76

chapter three

Fitness to Stand Trial

A. INTRODUCTION/BRIEF HISTORY OF THE FITNESS RULES

The requirement that an accused be “f‌it to sta nd trial” stems from the an-

cient notion that an accused must be present to respond to accusations of the

state. That basic requirement developed into a more ref‌ined view that t he ac-

cused must not only be physically present but mentally present as well. Ac-

cordingly, rules original ly developed at common law were codif‌ied in 1992

and are contained in section 2 of the Cr iminal Code:1

“unf‌it to stand tr ial”

“unf‌it to stand tr ial” means unable on account of mental disorder to conduct

a defence at any stage of the proceedi ngs before a verdict is rendered or to

instruct cou nsel to do so, and, in part icular, unable on account of mental

disorder to

(a) underst and the nature or object of the proceeding s

(b) understand the p ossible consequences of the proceedings, or

(c) commu nicate with counsel.

The procedures for dealing with t he issue of unf‌itness to stand tri al, and

mental disorder in general, are set out in Part X X.1 of the Criminal Code.

1) Current State of Affairs

Commencing in the early 1990s, we have seen an unprecedented increase

in the number of mentally disordered accused enterin g the criminal justice

system in respect of whom the issue of “f‌itness” arises. Statist ics show that

over these years the number of mentally disordered accused enteri ng the

1 RSC 1985, c C-46.

Chapter Three: Fitness to Stand Trial 77

criminal just ice system has been escalating by as much as 10 percent annu-

ally while overall ar rest and prosecution rates have been declini ng.2

There have been a number of hypotheses offered to ex plain this growt h

which include: (1) cutbacks in mental health care (civ il) spending; (2) a per-

ception that the new Part X X.1 of the Crimin al Code is less harsh and is

therefore inviting the issue; (3) inadequate civ il legislation; and (4) a climate

of “zero tolerance” regarding criminal act ivity, whether or not it is the prod-

uct of mental disorder. These explanations are spec ulative and, if valid, may

be complementary and overlapping. What is very clear is that t he criminal

justice system is having to deal w ith mentally disordered accused in vol-

umes that are diff‌ic ult to accommodate.

B. WHEN MAY THE ISSUE ARISE?

The issue of f‌itness may arise at any point in the proceed ings. Most often, the

issue arises at f‌irst appearance and is resolved prior to arrai gnment; however,

the issue may arise durin g the course of a trial or prelimi nary hearing a nd

may arise on multiple occasions (subsection 672.23(1)). Where the accused

disputes the Crown’s ability to prove a prima fac ie case, this must be proved

before commencing a trial of the issue of f‌itness (see R v Taylor).

In R v Flowers, Spies J stated th at prior to raising the issue of f‌itness the

trial judge must be satisf‌ie d that the

Crown is in a position to establish t hat the accused commit ted the act al-

leged or, that there is some basis to put that accus ed on trial. The court may

postpone the f‌itness hea ring until the end of the Crown’s case pursuant to

section 672.25 (2) (b) of the Criminal Code or even later on motion of t he ac-

cused. The pu rpose of the section is to permit t he accused to be discharged

at the close of the Crown’s case if there is in suff‌icient evidence to put h im

to a defence.3

Court may direct is sue to be tried

672.23(1) Where the court has reasonable grou nds, at any stage of the

proceedings before a verdict i s rendered, to believe that the accused is unf‌it

to stand tria l, the court may direct, of its ow n motion or on application of the

accused or the prosecutor, that t he issue of f‌itness of the accused be tried.

2 See Richard D Schneider, Statis tical Survey of Pro vincial and Territo rial Review Bo ards

(Ottawa: Dep artment of Justice, 2000); Canad ian Centre for Justice Statist ics, Canadi-

an Crime Statis tics (Ottawa: Can adian Centre for Justice Statist ics, 2002).

3 R v Flowers, [2008] OJ No 4642 at 7 (SC J).

78 MENTAL DISORDER AND THE LAW

As is apparent from the def‌inition of “unf‌it to stand tr ial” now contained

in section 2 of the Crimin al Code, as set out above, the stat utory provisions

only relate to “unf‌itness” prior to a verdict. Where the issue arises a fter a ver-

dict is pronounced and prior to sentencing or during t he course of senten-

cing, the statutor y provisions do not apply. It may be that, from a common

law or Charter of Rights perspective, the prosec ution may not be able to pro-

ceed. This issue, and the problem created by the def‌in ition in section 2, has

been raised before Parliamentary committees.

1) Unf‌itness Post-Verdict?

As discussed above, the relevant sect ions indicate that the statutory provi-

sions dealing with unf‌it ness to stand trial only p ertain up to the point of a

verdict. Therefore, if the accused becomes “unf‌it ” after a verdict and prior

to sentencing, Part XX .1 of the Criminal Code is not avai lable.4 Although not

frequently encountered — because most accused are sentenced immediately

upon their conviction — this problem does arise from time-to-t ime. A Stand-

ing Committee on Justice has recommended section 2 of the Cr iminal Code

be amended so as to include the sentencing phase of the prosecution. A s it

stands now, the provisions have been modif‌ied (at least for Ontario) with

Justice McWatt’s recent decision in R v GB.5 Justice McWatt “read-in” the

words “at any stage of the proceedings before a verdict is rendered or sen-

tence imposed.”6

However, more recently, Code J encountered the same issue in R v Jaser.7

Justice Code found that while the Crimin al Code provisions do not exte nd to

the sentencing phase of proceedings, it may be th at common law authority

exists. However, no common law rule was artic ulated. Justice Code did not

adopt the reasoning of McWatt J with respect to a Chart er remedy as no Char-

ter issue was raised before him. And, as the c ase before him evolved, there was

no need to arrive at an alternative solution. In Ontar io, we have had two Su-

perior Cou rt considerations of the issue wit hout a clear re solution of the m at-

ter. Also, of some assistance and, consistent with both Code and McWatt JJ’s

fundamental f‌indi ng, the Court of Appeal in Tay lo r stated as follows:

4 For a more thorough discussion of t his problem, consult Richard D Sch neider, “Fitness

to Be Sentenced” (1998) 41 Crimina l Law Quarterly 261 .

5 R v GB, [2003] OJ No 784 (SCJ).

6 Ibid at para 48.

7 R v Jase r, 2015 ONSC 4729 [Jase r].