Unfit to Stand Trial': The Test

AuthorRichard D. Schneider; Hy Bloom
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.
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
14 Fitness 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).

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