Fitness to Stand Trial

Fitness to Stand Trial

Legal Standards for Fitness

The legal standard that applies to determine fitness is provided for in section 2 of the Criminal Code, where “unfit to stand trial” is defined.

“‘unfit to stand trial’ means unable on account of mental disorder to conduct a defence at any stage in the proceedings before a verdict is rendered or to instruct counsel to do so, and in particular, on account of mental disorder to

(a)  understand the nature or object of the proceedings,

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

(c)  communicate with counsel;”

In determining whether the accused person is unfit, the “Taylor test” is applied. the Taylor test calls only for “limited cognitive capacity”. The standard for fitness is therefore not high. It requires only a “relatively rudimentary understanding of the judicial process” (R. v. Morrissey 2007 ONCA 770 (CanLII), [2007] O.J. No. 4340 at para 27 (Ont, C.A)) and a basic but meaningful ability to communicate about the case.

 R. v. Taylor 1992 CanLII 7412 (ON CA), [1992] O.J. No. 2394 (Ont. C.A.)

Specifically, the mental capacity of the accused must be “sufficient to comprehend the course of the proceedings in the trial, so as to make a proper defence … and to comprehend the details of the evidence”:

R v. Taylor, supra at para 47.

In R. v. Thompson [2011] O.J. No. 1869 (Ont. C.J.), at para 8, Justice J.S. Nadel provides a helpful list of considerations, namely, that an accused person is fit:

·         If he understands the nature of the proceedings and the functions of the persons involved in them;

·         If he knows what the issues are and the possible outcomes of the proceedings;

·         If he is able to follow the evidence generally, even though he may misinterpret it;

·         If he is capable of instructing counsel although he may disagree with counsel as to how the case should be conducted and he (the accused) may not act with good judgment.

So long as the accused can understand the material concepts at the time decisions by him are required – even if after explanation – his fitness is not undermined by an inability to retain those concepts subsequently.

R. v. A-Noor, 2017 ONCJ 168, at para 23.

Summary

An accused person will be unfit to stand trial if they are mentally ill at the time, and that mental illness either leaves them incapable of understanding the course of a trial (including the nature or object or possible consequences of the proceeding), or that mental illness leaves them incapable of instructing counsel because of an inability to follow the evidence, or an inability to discuss issues, or make decisions, on matters of basic importance to the case. An accused person will not be unfit, however, simply because their mental illness influences their decisions or choices, including by depriving them of the ability to make wise choices.

R. v. A-Noor, 2017 ONCJ 168, at para 13.