Unfit to Stand Trial': The Test

• Author: Richard D. Schneider; Hy Bloom
• Pages: 13-40

13

cHapter 2

“Unfit to Stand Trial”: The Test

As discussed in Chapter 1, the common law regarding the test of

whether someone was unt to stand trial was codied in Canada with

Bill C-30 in 1992. That test is now contained in section 2 of the Criminal

Code. We will come back to this section many times throughout the text.

As well, we will return to discuss the extent to which the common law

was captured with this codication.

A. SECTION  OF THE CRIMINAL CODE

As noted in Chapter 1, “unt to stand trial” is dened in section 2 of

the Criminal Code as

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 and object of the proceedings,

(b) understand the possible consequences of the proceedings, or

(c) communicate with counsel1

Traditionally, the criteria set out in section 2 have been explored

through a set of questions put to the accused, such as, but not limited

to, the following:2

1 RSC 1985, c. C-46, s 2 [emphasis added].

2 Some clinicians/practitioners refer to these as the “Taylor Questions,” a reference

to R v Taylor, [1992] OJ No 2394 (CA) [Taylor]. These questions, in fact, really have

nothing to do with the decision in Taylor. They came from an early Law Reform

14Fitness to stand trial

◆What are the roles of the various people in the courtroom?

◆What are the charges the accused is facing?

◆What are the available pleas?

◆What are the consequences of a conviction?

◆What is the meaning of an oath?

◆What is perjury?

◆What are the consequences of perjury?

In the following sections, we deconstruct the statutory denition and

consider its elements.

1) Ability

The test is not whether the accused knows their legal situation, and so

on, but whether they are able to understand the concepts and com-

municate with counsel. The accused’s capacity is the central concern.

Simple ignorance does not render an accused unt. An accused is unt

to stand trial only if they are unable on account of mental disorder to

conduct a defence. A declaration of inability should be made only aer

didactics have unequivocally failed.

2) Mental Disorder

“Mental disorder” is dened in section 2 of the Criminal Code as “a

disease of the mind,” a phrase preserved and retained from previous

caselaw. A disease of the mind is broadly dened in Canada; it includes

“any illness, disorder or abnormal condition which impairs the human

mind and its functioning.”3 The denition from the perspective of

criminal law is broad and includes, for example, mental retardation.4

Indeed, according to caselaw, an accused who is deaf and unable to

speak could not be said to suer from a mental disorder.5

Commission report as questions that might guide a determination of whether the

accused had sucient wherewithal to conduct a defence. See Law Reform Com-

mission of Canada, General Principles of the Criminal Law Project, “Fitness to

Stand Trial,” Study Paper (May 1973) [Criminal Law General Principles].

3 R v Cooper, [1980] 1 SCR 1149 at 1159.

4 For example, R v Rouse, [1996] OJ No 4688 (Gen Div).

5 R v Isaac, [2009] OJ No 5804 (Ct J).