The mental disorder defence applies to an accused who, at the time that the criminal act was committed, suffered from a mental disorder that made him or her incapable of appreciating the nature or quality of the act or omission or of knowing that it was wrong. It is possible that a person who suffered from a mental disorder at the time of the crime will continue to suffer from that condition and be found unfit to stand trial. Conversely, a person who was sane when the crime was committed might subsequently suffer a severe mental disorder that would make it unfair to have a trial. Section 672.23(1) allows the court on its own motion, or on an application from the accused or the prosecutor, to determine whether an accused is fit to be tried. A person is unfit to stand trial if he or she is 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.2
The accused is presumed to be fit to stand trial, and unfitness must be proven on a balance of probabilities.3It is not necessary that a person be able to act in his or her own best interests or to employ analytical reasoning, but it is necessary that he or she have "limited cognitive capacity to understand the process and to communicate with counsel."4
This standard is a legal one that focuses on the fairness of the trial process and the accused’s ability to participate in the trial process and not whether the accused clinically requires psychiatric treatment. A person who satisfies the minimal standards of the cognitive capacity test may still be found at trial to have a mental disorder defence. Courts of Appeal have found that accused who lack testimonial competence and could not remember the crime were nevertheless fit to stand trial. They have found that accused with the permanent brain injury caused by fetal alcohol spectrum disorder were also fit to stand trial as were accused who were delusional.5Some lower courts, however, have argued for higher standards that would require accused persons be able to make rational decisions especially in relation to their defence.6A person found unfit to stand trial is subject to the same disposition hearing as a person found not criminally responsible because of a mental disorder. The difference, however, is that where an accused is found unfit to stand trial, the Crown may not have proven beyond a reasonable doubt that the accused committed the criminal act. For this reason, judges have the power to postpone the determination of fitness until the Crown has made its case and the accused has been found not to be entitled to an acquittal or a discharge. If the accused is found unfit to stand trial, the Crown is required to establish a prima facie case against the accused every two years until the accused is either found fit to be tried or is acquitted because the Crown cannot establish a prima facie case.7These safeguards are designed to ensure that a factually in-
nocent accused is not subject to detention in the same manner as an accused who committed the criminal act, but was found not guilty by reason of a mental disorder.
A person with Down’s Syndrome accused of sexual assault who was found unfit to stand trial and released after two months challenged the constitutionality of the provisions. The Supreme Court found Parliament had jurisdiction under the division of powers to legislate with respect to those unfit to stand trial because of concerns about trying the accused and also about preventing crime by the mentally disordered accused. The Court also rejected the accused’s argument that subjecting him to review board proceedings violated the presumption of innocence under section 11(d) of the Charter given that the aim of review proceedings was not to punish the accused. The Court did, however, find the unfitness to stand trial scheme violated section 7 of the Charter because it did not provide for an absolute discharge for an accused who is permanently unfit to stand trial and who did not present a continuing danger to the public. The Court ruled that the scheme was overbroad to the objectives of social protection by effectively providing that such a person could only be released subject to indeterminate conditions.8Parliament responded to this ruling with a new provision that allows a trial court to enter a stay of proceedings in such circumstances where an accused is not likely to ever become fit to stand trial, but also does not pose a significant threat to the safety of the public.9
Canadian courts have been more willing than British or American courts to allow the prosecutor to raise the mental disorder defence. The rationale is that society has an interest in not convicting an accused who may not be responsible because of a mental disorder, but who has chosen not to advance the insanity defence. This latitude presents dangers that 1) the Crown could bolster a weak case by presenting evidence of the accused’s mental disorder, and 2) an accused could be
exposed to indeterminate detention as a person found not guilty on grounds of mental disorder when he or she wishes either to plead guilty or to contest his or her innocence.
In R. v. Swain,10the Supreme Court found that the common law practice of allowing the Crown to raise the insanity defence violated the accused’s right under section 7 of the Charter to control his or her own defence. Lamer C.J. stated:
The mere fact that the Crown is able to raise a defence which the accused does not wish to raise, and thereby to trigger a special verdict which the accused does not wish to...