Upon a Verdict of Unfit

• Author: Richard D. Schneider; Hy Bloom
• Pages: 132-148

132

 7

Upon a Verdict of Unfit

In the 1700s in Britain, an accused found to be insane upon arraign-

ment was taken to prison (or sometimes sent home to be supervised by

family) pending a return to sanity and resumption of the trial. Rene-

ment and formalization of the aermath of a verdict of unt to stand

trial came with the proclamation of the Criminal Lunatics Act of 1800,1

which provided that:

If any person indicted for any oence shall be insane, and shall upon

arraignment be found to be by a jury lawfully empaneled for that pur-

pose, so that such person cannot be tried on indictment . . . it shall

be lawful for the Court . . . to direct such nding to be recorded, and

thereupon to order such person to be kept in strict custody until his

Majesty’s pleasure shall be known.

The Criminal Lunatics Act was included along with the other criminal

statutes in a dra criminal code that Britain never adopted but that Can-

ada seized upon as its rst Criminal Code in 1892. Individuals obtaining a

verdict of unt to stand trial could be detained indenitely (typically in

a hospital), with no review required. These provisions remained essen-

tially unchanged until the proclamation of Bill C-30 in 1992.

As discussed in Chapter 1, Section B, much of the content of Bill

C-30 is now contained in Part XX.1 of the Criminal Code of Canada.2 The

lieutenant governor (in lieu of the monarch) is no longer part of the

process. Determinations with respect to tness to stand trial have been

1 Criminal Lunatics Act, 1800 (UK),39 & 40 Geo 3, c 94.

2 Criminal Code, RSC 1985, c C-46.

Chapter 7: Upon a Verdict of Unt 133

put in the hands of quasi-judicial administrative tribunals known as

Review Boards, which have been created for every province and terri-

tory. The decisions of the boards are known as dispositions.

Where an accused remains unt to stand trial and a treatment order

has not been made by the courts (see the discussion in Chapter 6, Sec-

tion H), or has been made but has failed to result in a nding of tness,

a disposition must be made, either by the court or, more typically, by

the Review Board. The trial in respect of which the accused was found

to be unt is held in abeyance until either:

◆the accused becomes t;

◆the Crown fails to demonstrate a prima facie case (per section 672.33

of the Criminal Code); or

◆the proceedings are stayed pursuant to the provisions of section

672.851 of the Criminal Code.

A. CUSTODY OF THE ACCUSED

1) Status Quo Presumed

Subject to the court’s order, if the court does not make a disposition,

any order for the release or detention of the accused shall remain

operative until a disposition by the Review Board is made. However,

the court may, upon application, vary any order for release or deten-

tion, or order that the accused be remanded to hospital pending a dis-

position hearing by the Review Board (section 672.46). (Parliament did

not create a form for an order of this sort; however, the form repro-

duced in Appendix F is commonly used for this purpose.)

B. DISPOSITIONS

1) Assessment Orders to Assist with Disposition

Where the court is considering holding a disposition hearing, it may

order an assessment to assist in the making of an appropriate dispos-

ition where it has reasonable grounds to believe that such evidence is

necessary (section 672.11(d)). In other, albeit rare, circumstances, where

the court renders a verdict of unt to stand trial and the accused is either

out of custody or in jail, it is preferable that an assessment order be made