Trial of the Issue of Fitness

• Author: Richard D. Schneider; Hy Bloom
• Pages: 113-131

113

cHapter 6

Trial of the Issue of Fitness

A. JURISDICTION TO TRY 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.

114Fitness to stand trial

B. COUNSEL FOR THE ACCUSED REQUIRED

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.