When the Issue of Fitness May Arise

• Author: Richard D. Schneider; Hy Bloom
• Pages: 41-66

41

cHapter 3

When the Issue of Fitness May Arise

The issue of tness may arise at any point in the proceedings. However,

it may not be considered where there is any dispute as to the Crown’s

ability to demonstrate (prima facie) that the accused committed the act

or acts alleged in the indictment.1 Most oen, the issue arises at rst

appearance and is resolved prior to arraignment. Alternatively, the

issue may arise during the course of a trial or preliminary hearing, and

it may arise on multiple occasions (per subsection 672.23(1) of the Crim-

inal Code),2 particularly when an accused has signicant uctuations in

his mental state (and tness). Where the accused disputes the Crown’s

ability to prove a prima facie case, this ability must be proved before

commencing a trial of the issue of tness. This, of course, makes good

sense: the state should take no interest in tness to stand trial if there

is no case to meet (i.e., no trial to be held).

In R v Flowers, Justice Spies stated that, prior to raising the issue of

tness, the trial judge must be satised that

the Crown is in a position to establish that the accused committed

the act alleged or . . . that there is some basis to put that accused on

trial. The court may postpone the tness hearing until the end of the

Crown’s case pursuant to section 672.25 (2)(b) of the Criminal Code or

even later on motion of the accused. The manifest purpose of that

1 R v Taylor, [1992] OJ No 2394 at para 37 (CA).

2 RSC 1985, c C-46.

42 Fitness to stand trial

section is to permit the accused to be discharged at the close of the

Crown’s case if there is insucient evidence to put him to a defence.3

A. WHEN SHOULD COUNSEL DISCLOSE CONCERNS TO

THECOURT?

It may be that counsel has concerns with respect to their client’s mental

abilities and the adequacy of the instructions they are receiving from

them. In general, as long as counsel is not receiving instructions that

would cause the court to be misled or lead to an illegal result, those

instructions should be followed whether or not counsel views those

instructions as “optimal.” Counsel may advise their clients as to the

relative merits of several courses of action but, ultimately, the decision

is that of the accused. Where frankly “bad” decisions on the part of the

accused are the product of a mental disorder, counsel must be vigilant.

Nevertheless, an accused’s disinclination to follow counsel’s advice

cannot be taken, without more information concerning mental state

and/or behaviour, as the basis upon which to order an assessment.4

When their client is apparently deteriorating during the trial, is delu-

sional, and/or is responding in a way that does not comport with real-

ity, counsel have an obligation to bring the issue to the attention of the

court.5 In general, as the Ontario Court of Appeal observed in R v Szostak,6

where counsel are of the view that their client may not be t to stand trial,

they have an obligation to bring the matter to the attention of the court.7

This point was made by the court in R c Brigham: “If Mr. Brigham was

convicted though unt, he was in eect not ‘present at his trial’ . . . . If he

was t, but not called, he was deprived of his right to testify in his own

defence.”8 With this the court underscores the importance of counsel

raising the issue of tness noting the peril that could result.

3 R v Flowers, [2008] OJ No 4642 at para 7 (SCJ).

4 R v Michael, 2015 ONSC 148, where the court followed the reasoning in R v Steele

(1991), 63 CCC (3d) 149 (Que CA).

5 R c Brigham, [1992] JQ no 2283 (CA).

6 [2012] OJ No 3330 (CA).

7 In addition, upon a nding of tness, counsel may not raise the issue of criminal

responsibility without clear instructions.

8 R c Brigham, above note 5.