Trial of the Issue of Fitness

AuthorRichard D. Schneider; Hy Bloom
cHapter 6
Trial of the Issue of Fitness
In order for the court to have jurisdiction to try the issue of tness,
“reasonable grounds,” as set out in subsection 672.23(1) of the Criminal
Code1 (see Chapter 3), are required to believe that the accused is unt
to stand trial.2 Such grounds are most oen supported by medical or
psychological evidence obtained as a result of an assessment order,
although this is not strictly necessary. Without more information, evi-
dence that the accused “may be mentally ill” is insucient to provide
the court with reasonable grounds to believe that the accused may be
unt to stand trial.3 Under subsection 672.22, all accused are presumed
to be t to stand trial until the contrary is proven on a “balance of
probabilities” (i.e., more likely than not). Similarly, a verdict of unt is
displaced upon a balance of probabilities.
In cases where an accused has previously been found unt to stand
trial, the court may “retry” the issue of tness. In these circumstances,
a determination of tness by a Review Board (a quasi-judicial admin-
istrative tribunal) may provide the court with reasonable grounds to
retry the issue, although a determination by the Review Board is not a
prerequisite for such a retrial.4 A retrial may be initiated by the court on
its own or on application by a party. In either case, the presumption at
this juncture is that the accused remains unt.
114 Fitness to stand trial
Where the court has reasonable grounds to believe that an accused may
be unt to stand trial (grounds most oen supported by an assess-
ment) and the accused is not represented by counsel, the court shall
order that the accused be represented by counsel (subsection 672.24(1)).
Counsel must be appointed prior to the making of an assessment order.
As the British Columbia Court of Appeal found in R v Verma, it could
not be concluded “that the [trial court’s] failure to order the appellant’s
representation by counsel at the assessment stage of the proceedings
and failure to address the tness issue with counsel present aer an
assessment was ordered were inevitably harmless and resulted in no
prejudice to the appellant.”5
The threshold for ordering an assessment is not “reasonable
grounds to believe that the accused is unt to stand trial” (as in sec-
tion 672.24(1)) but rather “reasonable grounds to believe that evidence
is necessary to determine whether the accused is unt” (section 672.11
[emphasis added]). Nevertheless, the accused is quite vulnerable at this
stage of the process. Fairness dictates that an accused who is so unwell
as to cause the court this concern should clearly have the assistance
of counsel. It is arguable whether, strictly speaking, the provisions
of section 672.24 pertain at this juncture; however, it would be most
prudent and consistent with the court’s objective in ensuring fairness
that counsel be appointed at this early stage. There may be compelling
arguments to be made that would be greatly assisted by counsel. Once
the assessment has been ordered, the process for which the accused
should have had counsel present may all be a fait accompli. We submit
that, in accordance with the Yukon Territory decision in R v Waranuk,6
to the extent that there is ambiguity, erring on the side of appointing
counsel is most appropriate.
Where counsel is appointed pursuant to these provisions and the
accused is not covered by legal aid and is unable to pay, counsel’s fees
will be paid by the provincial or territorial attorney general. How-
ever, in Canada (Attorney General) v Savard, an interesting decision from
Yukon, the Court of Appeal found that, with respect to the mandatory
appointment of counsel for unt accused pursuant to the provisions
5 R v Verma, [2011] BCJ No 165 at para 25 (CA); see also R v Waranuk, [2008] YJ No 48 (SC).
6 R v Waranuk, ibid.

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