Mental Health and the Criminal Code (14:IX)

A. Fitness to Stand Trial

An accused is presumed fit to stand trial until the contrary is proven on a balance of probabilities (s 672.22 of the Criminal Code). The burden of proof is on whichever side raises the issue (s 672.23(2)).

An accused is deemed “unfit to stand trial” under s 2 of the Criminal Code if he or she is incapable of understanding the nature, object or possible consequences of the criminal proceedings, or is unable to communicate with counsel on account of mental illness. If the verdict is that the accused is unfit to stand trial, any plea that has been made will be set aside and the jury will be discharged (s 672.31). Under s 672.32 the accused may stand trial once he or she is fit to do so. For more information on the test of fitness see R. v Taylor (1992), 77 CCC (3d) 551.

The court may order a trial (not an assessment) on the issue of the accused’s fitness to stand trial at any stage in the proceedings prior to a verdict, either on its own motion or on an application of either the prosecution or the defence (s 672.23).

If a person is found unfit to stand trial, he or she may be detained in a mental health facility until he or she recovers sufficiently to be able to proceed with the trial. An inquiry must be held not later than two years after the verdict and every two years after that. The court may now extend the period for holding an inquiry where it is satisfied that such an extension is necessary to determine if sufficient evidence can be adduced to put the person on trial (s 672.33).

After the court finds a person unfit to stand trial, a disposition hearing must be held by the review board within 45 days, taking into account the safety of the public and the needs of the accused, and must make a disposition that is the least onerous and restrictive to the accused pursuant to s 672.54. A recent case, Evers v British Columbia (Adult Forensic Psychiatric Services), 2009 BCCA 560, stated that the review board erred in proceeding with a disposition hearing in the absence of the accused without first attempting to ensure the accused’s presence by issuing a warrant or allowing a short adjournment. Further, the court stated that fear of non-compliance with medical treatment cannot be the main objective motivating a detention order, nor can the Review Board impose treatment as a condition on the accused.

In Demers v Attorney General of Canada, 2004 SCC 46, the court found that the former sections 672.33, 672.54 and 672.81(1) violated the Charter rights of permanently unfit, non-dangerous accused persons. The court wanted to ensure that an accused found unfit will not be detained unnecessarily when he or she poses no risk to the public. Pursuant to this decision, these sections have been amended.

Now, a review board may make a recommendation to the court to enter a stay of proceedings if it has held a hearing and is of the opinion that the accused remains chronically unfit and does not pose a significant threat to public safety. Notice of intent to make such a recommendation must be given to all parties with a substantial interest in the proceedings (s 672.851).

The review board, the prosecutor, or the accused may apply to order an assessment of the accused’s mental condition if necessary to make a recommendation for a stay of proceedings, or to make a disposition if no recent assessment has been made (s 672.121). A medical practitioner or any person designated by the Attorney General may also make an assessment. An assessment order cannot be used to detail an accused in custody unless it is necessary to assess the accused, or the accused is already in custody or it is otherwise required.

Appeal for an order for a stay of proceedings may be allowed if the Court of Appeal finds the assessment order unreasonable or unsupported by evidence. A recent case (R v J.J.G. (2014) BCSC 2497) considered the issue of whether statements made by an accused during the fitness to stand trial hearing are admissible in the trial. In this case, the accused