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Criminal - Not Criminally Responsible (Barwhani). R. v. Bharwani
In R. v. Bharwani (Ont CA, 2023) the Court of Appeal considers the Ontario Review Board system and summarizes their latest review of 'unfair to stand trial' law:3. No reason to overturn Taylor by injecting the ability to make rational decisions in one’s best interests into the fitness test
[144] For the reasons that follow, we would not reverse Taylor to incorporate a need for those accused with a mental disorder to have the ability to choose rationally what is in their best interests in order to be fit.
a. The underlying rationale for the fitness rules
[145] Upon a finding that an accused is unfit to stand trial, the accused is removed from the criminal justice system and placed under the jurisdiction of the Review Board: Part XX.1 of the Criminal Code. When this occurs, the implications for an accused, including for their liberty, can be serious.[6]
[146] Being put under the jurisdiction of the Review Board results in serious unpredictability for the unfit accused. Once under the expert board’s jurisdiction, unfit accused will stay there until the Review Board finds them fit to stand trial (Criminal Code, ss. 672.47, 672.48), or the court grants a stay of proceedings on the basis that the accused will remain permanently unfit, is not a significant threat to the safety of the public and a stay is in the proper administration of justice (Criminal Code, s. 672.851). Therefore, and to be clear, once found unfit to stand trial, the still presumed innocent accused, even the still presumed innocent accused who insists on having their trial, is denied their trial.
[147] There are serious powers that accompany the transfer of jurisdiction from the criminal justice system to the Review Board system, including the ability of a judge to order that the accused be medicated to make them fit without the accused’s consent: Criminal Code, s. 672.58. This is a profound power: Centre for Addiction and Mental Health v. R., 2014 SCC 60, [2014] 3 S.C.R. 82, (sub nom. R. v. Conception), at para. 31. Undoubtedly, the Review Board, an expert board in Ontario, executes its responsibilities under the legislation with precision and care. The point is, though, that the accused is out of the criminal justice system, only to be returned when the Review Board deems him fit: Criminal Code, ss. 672.47, 672.48.
[148] Thus, it has been recognized by some who work with those accused with mental disorders that one cannot lose sight of the fact that a finding of unfit to stand trial is not necessarily a panacea for the accused: Michael Davies & Lee Sela, “Fit to be Tried!” (delivered at the County of Carleton Law Association 27th Annual Criminal Law Conference, 27-28 October 2015), 2015 CanLIIDocs 5059. In particular, Mr. Davies and Ms. Sela write:Under the Taylor test only the most profoundly ill will be designated as unfit to stand trial. Individuals who overcome this low threshold will be able to proceed with their cases in the usual fashion. For some accused, proceeding with the case may result in an acquittal and an end to the proceedings against them. For others it will lead to a conviction and sentencing. From some perspectives even these latter individuals may be better off being sentenced over being found unfit. If the sentence involves short custody or no custody at all they will likely find themselves in the community a lot quicker than being found unfit to stand trial. [149] In short, an accused who is found unfit to stand trial could end up with a greater loss of liberty than had they gone to trial and been acquitted or, if convicted, sentenced to a shorter period of time: see e.g., J.P.T. (Re), [2022] O.R.B.D. No. 833; Mamdo (Re), [2022] O.R.B.D. No. 789; Pitawanakwat (Re), [2022] O.R.B.D. No. 376; R. v. Lynch, 2021 ONCJ 595; R. v. McDonald, 2019 ONSC 3819; and R. v. Karimian-Kakolaki, 2016 ONCJ 336.
[150] To be clear, this is not an argument for trying the unfit. Regardless of the implications that may arise from a finding of unfitness, the integrity of a fair criminal justice system demands that we not set the fitness test too low. However, by setting out the preceding context, we hope to demonstrate that casting the net too widely in terms of those who are unfit to stand trial does not come without serious implications for many accused. This is particularly true for those accused who, while living with mental health challenges, want to proceed to trial.
[151] It is also important to train the lens on the wider systemic issues that can result from findings of unfitness. For example, a finding of unfitness will often significantly delay a determination of the merits of the case. Such delay undoubtedly impacts victims of crime, witnesses and the broader community who anxiously await the resolution of criminal charges. Delays may also have an impact on the criminal proceeding itself, given that memories fade, witnesses become unavailable, and evidence degrades: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 20. There can be no serious dispute that, wherever possible, trials should proceed as quickly as possible: Jordan, at para. 84.
[152] Therefore, while fairness demands that those who are unfit to stand trial cannot be placed on trial, correctly calibrating the fitness test requires that it be considered within this broader context.
b. An accused is entitled to control their own defence
[153] As we have already noted, it is a principle of fundamental justice under s. 7 of the Charter that an accused has the right to control their own defence: Swain, at p. 936. Of course, if an accused is found unfit to stand trial, then they are no longer in a position to choose their defence. As noted in Taylor, setting too high a threshold for fitness, such as requiring a “best interests” component, derogates from the right to choose one’s defence and present it according to the accused’s choice: Taylor, at p. 338.
[154] This principle of fundamental justice is directly rooted in the autonomy of accused individuals. As recognized in Taylor, we do not demand of those accused without a mental disorder that they be capable of making rational decisions in their best interests. Indeed, anyone in the criminal justice system for any length of time knows that fit accused, some represented and some not, make what appear to be unwise decisions.
[155] The authors of Mental Disorder in Canadian Criminal Law recognize that reality, noting that “[m]any accused persons for whom mental disorder is simply not an issue would not meet the analytical capacity test”: at pp. 3-7. For instance, many accused who have no mental disorder “routinely make decisions contrary to their best interests, whether self-represented – arguably, the ultimate bad decision – or by choosing to ignore their counsel’s advice:” at pp. 3-7. Many of those accused will be incapable of making what the reasonable observer would consider to be sound legal decisions, not because of mental disorder, but for any number of reasons, including rage, conscience, hate, love, frustration, religious beliefs and so on: see e.g., R. v. Jaser, 2015 ONSC 4729, at paras. 8, 21.
[156] We do not say to those people “you cannot do that”, or “you cannot have a trial until you show more wisdom in your choices”. If we would not say that to someone who faces no mental health challenges, why would we say it to a person who faces mental health challenges? As Laskin J.A. said in the context of guilty pleas, “inviting the court to decide whether accuseds have made wise decisions” would “smack of paternalism”: R. v. W. (M.A.), 2008 ONCA 555, 237 C.C.C. (3d) 560, at para. 35. This is not the function of the court.
[157] We must respect the autonomy of all accused persons. Like everyone else, accused persons living with mental health challenges ─ and there are a lot of them ─ must maintain the right to make decisions based upon choices that others may or may not see as the most sensible or wise, decisions that may even cut against their interests, provided they are fit to stand trial.
c. The other protections in place
[158] When considering whether to inject an “analytic capacity” test into the fitness inquiry, it is important to reflect on the supports that are in place for those who may be living with mental health challenges and who find themselves before the criminal courts, even as self-represented accused. They are not alone at trial.
[159] We have a rich history in Canada of a prosecutorial system that is rooted in the requirement that Crown counsel act as quasi-judicial officers: R. v. Boucher, 1954 CanLII 3 (SCC), [1955] S.C.R. 16; R. v. Cook, 1997 CanLII 392 (SCC), [1997] 1 S.C.R. 1113; R. v. Piccirilli, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; and Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214.
[160] Equally, we have a rich history in Canada of trial judges who live up to the obligation of assisting not only self-represented accused, but also accused living with mental health challenges who are sometimes self-represented: R. v. Richards, 2017 ONCA 424, 349 C.C.C. (3d) 284, at para. 112; R. v. Chemama, 2016 ONCA 579, at paras. 13-14; R. v. Mahadeo, 2014 ONSC 1327, 304 C.R.R. (2d) 307, at paras. 4, 17-18.
[161] And then there is the role of amicus curiae. In cases involving self-represented accused with mental disorders, amicus is often appointed to assist the court and the accused, to be a voice of reason and calm in the courtroom, to advance submissions where necessary and to ensure that the justice of the case is met: R. v. Imona-Russell, 2013 SCC 43, [2013] 3 S.C.R. 3.
[162] As will be discussed, all of these protections were at play in the appellant’s trial.
d. Harmony in the law
[163] At this point, there are a good number of decisions built on the “limited cognitive capacity” test from Taylor, including Whittle. In Whittle, the Supreme Court noted the value of harmonization, stressing that, unless there is some good reason, different standards of competency should not be applied for different aspects of criminal proceedings: at pp. 939-40. Accordingly, as a reflection of that harmony, Whittle adopted Taylor in order to harmonize the law as it relates to “analytic capacity” across boundaries: the law of fitness to stand trial, the law of voluntariness, the right to counsel and the right to silence.
[164] While we agree with the appellant that harmonizing bad law is a bad objective, we do not see Whittle’s rejection of “analytic capacity” as bad law. The decision remains a persuasive, if not binding authority, on this court.
[165] Equally, as already mentioned, the rejection of “analytic capacity” has also found favour in another attempt at harmonization, the guilty plea context: W.(M.A.), at paras. 27-33. See also: R. v. C.K., 2021 ONCA 826, 410 C.C.C. (3d) 428; R. v. Cherrington, 2018 ONCA 653; R. v. Baylis, 2015 ONCA 477, 326 C.C.C. (3d) 18; R. v. Tallio, 2021 BCCA 314; and R. v. Henneberry, 2017 NSCA 71, 351 C.C.C. (3d) 365.
[166] Accordingly, harmony in the law weighs in favour of not reversing Taylor on the point of “analytic capacity”.
(v) Conclusion: The fitness test clarified
[167] To sum up, the following principles should inform all fitness assessments:1. There is one fitness test for all accused, whether represented by counsel or not. This test is applied contextually.
2. The test for fitness is set out in the statutory definition of “unfit to stand trial” in s. 2 of the Criminal Code.
3. A person is unfit to stand trial if, on account of mental disorder, the person is unable to conduct a defence or to instruct counsel to do so.
4. The purpose of the s. 2 fitness test is to ensure that the accused can be meaningfully present and meaningfully participate at their trial. These touchstones inform a purposive interpretation and application of the s. 2 fitness test and do not themselves constitute a stand-alone test.
5. The Taylor test questions are not a sufficient surrogate for assessing fitness but are helpful in providing insights into an accused’s abilities in relation to the s. 2 criteria. Applying the fitness test is more nuanced than the questions recognize.
6. The accused must have a reality-based understanding of the nature and object and possible consequences of the proceedings.
7. The accused must have the ability to make decisions. This involves the ability to understand available options, the ability to select from those options, the ability to understand the basic consequences arising from those options, and the ability to intelligibly communicate to either counsel or the court the decision arrived upon.
8. The accused need not have the capacity to engage in analytic thinking in the sense that the accused need not be capable of making decisions in their own best interests. . R. v. Bharwani
In R. v. Bharwani (Ont CA, 2023) the Court of Appeal reviewed R. v. Taylor (Ont CA, 1992), the leading case on 'unfit to stand trial':(ii) Taylor says that the s. 2 Criminal Code statutory definition of “unfit to stand trial” governs fitness determinations
[84] Taylor makes clear that all fitness determinations made pursuant to the Criminal Code are governed by the s. 2 definition of “unfit to stand trial”: at p. 332. See also p. 335.
[85] For ease of reference, the s. 2 definition is provided again:unfit to stand trial means 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 or object of the proceedings,
(b) understand the possible consequences of the proceedings, or
(c) communicate with counsel. [86] Therefore, the first takeaway from Taylor is the reminder that, when considering the proper parameters of the fitness test, we must look to the s. 2 definition that Parliament has provided. Of course, this makes sense. It is not for the court to ignore Parliament’s voice and create a fitness test detached from the statute. Barring a successful constitutional challenge to the provision, it is for the court to interpret and apply the statutory test, taking into account the wording of the definition as understood through a purposive lens.
(iii) Taylor says that the concept of communicating rationally maintains a limited role in fitness assessments
[87] The Taylor decision also makes clear that the s. 2 definition of “unfit to stand trial” reflects nothing more than a statutory entrenchment of the “extensive case-law” that had come before: Taylor, at p. 335, citing the “learned editor [E.L. Greenspan] of Martin’s Annual Criminal Code 1993 [(Aurora, Ontario: Canada Law Book Inc., 1993)]”. Two of those prior authorities are cited in Taylor, both of which support the suggestion that the fitness test takes into account the accused’s ability to “rationally” communicate.
[88] The first decision is Reference Re Regina v. Gorecki (No. 1) (1976), 1976 CanLII 833 (ON CA), 14 O.R. (2d) 212 (C.A.). As noted in Taylor, at p. 336, Gorecki (No. 1) set “out the appropriate test at common law for unfitness.” In Gorecki (No. 1), at p. 218, this court attached considerable importance to the fact that the accused was able to “discuss the case rationally” and that the accused was able to “converse … rationally” with counsel throughout the trial (emphasis added).
[89] In addition to Gorecki (No. 1), the Taylor decision also adopts a lengthy passage from R. v. Steele (1991), 1991 CanLII 3882 (QC CA), 63 C.C.C. (3d) 149 (Que. C.A.), where the court emphasized the ability of the accused to “converse with counsel rationally” as a component of the fitness test: at p. 332 (emphasis added).
[90] Therefore, we understand the Taylor decision as accepting that in determining fitness to stand trial, some consideration must be given to whether the accused has the ability to converse or communicate rationally with counsel or the court. We will pause here for one moment to explain why we add “or the court.”
[91] The fact is that Gorecki (No. 1) and Steele, as well as Taylor at first instance, were all cases involving represented accused. Accordingly, the decisions address that scenario: rationally communicating with counsel. This does not, though, mean that where an accused is self-represented, this communication component of the fitness test evaporates.
[92] We appreciate that the s. 2 definition only makes reference to communicating with “counsel” (see para. (c) of the s. 2 definition of “unfit to stand trial” – “communicate with counsel”). However, read contextually, there is no question that the definition also extends to a self-represented accused communicating with the court. We say this for two reasons.
[93] First, the wording of the s. 2 definition accommodates both represented and unrepresented accused: “unable on account of mental disorder to conduct a defence [self-represented accused] … or to instruct counsel to do so [represented accused]” (emphasis added). Clearly, where a self-represented accused is conducting their own defence, they will communicate directly with the court.
[94] Second, the three specific statutory considerations embedded in the s. 2 definition are prefaced with the term “in particular”: “in particular, unable on account of mental disorder to …” (emphasis added). This expression signals that there “are other circumstances that do not appear on the list”, although “those circumstances must be similar in nature to the ones that are expressly mentioned”: R. v. Rafilovich, 2019 SCC 51, [2019] 3 S.C.R. 838, at paras. 69, 70, citing R. v. Lavigne, 2006 SCC 10, [2006] 1 S.C.R. 392, at para. 24. In our view, the ability of a self-represented accused to communicate with the court in conducting a defence is “similar in nature” to criterion (c), which involves the ability to “communicate with counsel”.
[95] We now return to what Taylor meant when it adopted authorities that accepted the ability to rationally communicate as an indicator of fitness.
[96] The adverb “rationally” can admit of different meanings in different contexts. Admittedly, the reference to “rationally” communicating, especially when it comes to communicating decisions, could be seen as signalling an inquiry into whether a decision is a sensible or reasonable one, or in other words, whether it is objectively in the accused’s best interests. As we will come to shortly, this type of an inquiry was specifically rejected in Taylor. So what, then, does the ability to “rationally” communicate involve?
[97] Taylor did not specifically address what was meant by “rationally” communicating. Therefore, the best we can do is look to Gorecki (No. 1), adopted in Taylor, for some meaning. In that case, this court described how Dr. Gorecki was able to give a detailed account of events to counsel, to instruct counsel not to advance a defence of insanity because he understood the consequences of such a defence, and even to assist counsel in the selection of a jury and the selection of witnesses. In other words, he could understand relevant information, apply that information in the context of his decision-making, and intelligibly communicate.
(iv) Taylor makes meaningful presence and participation at trial by the accused the “touchstones” of the fitness inquiry
[98] The Taylor decision also makes clear that to meet the “limited cognitive capacity” test, “the accused must have sufficient mental fitness to participate in the proceedings in a meaningful way”: Taylor, at p. 338 (emphasis added).
[99] In putting some parameters around what was meant by participating in a “meaningful way”, Taylor is clear that competing interests are at stake. For instance, the Taylor decision emphasizes that, while the dignity of the trial process must be maintained and accurate findings of guilt need to be made, the finality of criminal proceedings and the need to protect the autonomy of accused are also important principles that should not be lost in the mix.
[100] In Morrissey, at para. 36, Blair J.A. elaborated upon the language from Taylor – participating in the proceedings in a “meaningful way” – as including notions of both meaningful participation and meaningful presence at one’s trial, what he described as the “touchstones” of any fitness inquiry:An accused must be mentally fit to stand trial in order to ensure that the trial meets minimum standards of fairness and accords with principles of fundamental justice such as the right to be present at one's own trial and the right to make full answer and defence: see R. v. Steele (1991), 1991 CanLII 3882 (QC CA), 63 C.C.C. (3d) 149, 4 C.R.R. (4th) 53 (Que. C.A.), at pp. 172-73 and 181 C.R.; R. v. Roberts (1975), 1975 CanLII 1394 (BC CA), 24 C.C.C. (2d) 539 (B.C.C.A.). Meaningful presence and meaningful participation at the trial, therefore, are the touchstones of the inquiry into fitness. [Emphasis added.]
See also: R. v. Adam, 2013 ONSC 373, 294 C.C.C. (3d) 465; R. v. Krivicic, 2011 ONCA 703, at paras. 33, 36; and R. v. Walker, 2019 ONCA 765, 381 C.C.C. (3d) 259, at paras. 40-42. [101] These touchstones are undoubtedly important in applying the definition of “unfit to stand trial”. However, neither Taylor nor Morrissey suggest that the touchstones are or should become a stand-alone test for fitness. Nor could they be. Parliament has spoken by providing the s. 2 statutory definition for “unfit to stand trial”, and it is not for the court to replace it with another free-standing test. Accordingly, as the respondent suggests, the touchstones do not create a stand-alone fitness test but, rather, inform a purposive interpretation and application of the s. 2 definition of “unfit to stand trial”. In other words, they recognize that the fundamental purpose of the s. 2 definition is to ensure that all accused are able to be meaningfully present and meaningfully participate in their criminal trials, concepts that are rooted in trial fairness.
(v) Taylor rejects the need for “analytic capacity” or the ability to make rational decisions in one’s best interests
[102] Finally, as briefly mentioned already, the Taylor court rejected any notion that fitness to stand trial required an ability to make rational decisions in one’s best interests. As Lacourcière J.A. said, at p. 339, requiring such “analytic capacity” would set the bar too high:In my opinion, the learned trial judge erred in adopting the “analytic capacity” test which establishes too high a threshold for finding the accused fit to stand trial by requiring that the accused be capable of making rational decisions beneficial to him. [Emphasis added.] [103] Drawing upon R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933, Lacourcière J.A. expressed concern that imposing a test that inquired into an accused’s capacity to make “rational decisions beneficial to him”, what was referred to as an “analytic capacity” test, would threaten the accused’s “s. 7 right to liberty”: Taylor, at p. 338. This is because it would interfere with the accused’s ability to control their own defence. Lacourcière J.A. noted, at p. 338, that the ability of a fit accused to control their own defence includes the right to act to their own detriment:An accused who has not been found unfit to stand trial must be permitted to conduct his own defence, even if this means that the accused may act to his own detriment in doing so. The autonomy of the accused in the adversarial system requires that the accused should be able to make such fundamental decisions and assume the risks involved. [104] In other words, placing the concept of “analytic capacity” into the fitness test would threaten the autonomy of those living with mental health challenges, as it would remove from them certain decisions – even if they turn out to be objectively unwise decisions – that other accused are free to make.
[105] This point was reinforced in Morrissey, where the court firmly rejected any suggestion that an accused with a mental disorder needed to have the capacity to make rational or even sensible or reasonable decisions in their own best interests in order to be found fit to stand trial. In referring to a situation where the accused has counsel, Blair J.A. put it this way: the fitness test “does not require the accused to be capable of giving instructions to counsel that are in his or her best interests”: at para. 31. See also: Krivicic, at paras. 33-36.
[106] The appellant contends that Taylor should be overruled on this point, a submission that will be dealt with below.
(vi) Conclusion: Propositions from Taylor
[107] To summarize, properly interpreted, Taylor stands for the following propositions:1. The s. 2 definition of “unfit to stand trial” ─ which at its core concerns itself with whether the accused is unable on account of mental disorder to conduct a defence or instruct counsel to do so – is the test for determining fitness. While it is open to the court to interpret that test in accordance with the principles of statutory interpretation, it is not open to the court to ignore the statutory test and create a new one.
2. As the s. 2 definition is a statutory entrenchment of the prior case law in the area, that case law guides the interpretation of its content. Based on that case law, an accused must be capable of communicating “rationally” with counsel or the court in order to be fit. This includes an inquiry into whether an accused is able to understand relevant information, apply that information in the context of their decision-making, and intelligibly communicate.
3. The touchstones of the s. 2 fitness inquiry ─ whether the accused can be meaningfully present and meaningfully participate at their trial ─ inform a purposive interpretation and application of the s. 2 fitness test. They do not constitute a stand-alone test for fitness.
4. The accused need not have the capacity to engage in analytic thinking in the sense that the accused need not be capable of making decisions in their own best interests. [108] We would end the discussion of Taylor by noting this. There is no magic in the term “limited cognitive capacity”. The test could just as easily be named the “capacity to stand trial” test or, even more simply, the “fitness test”. What the term coined in Taylor – the “limited cognitive capacity” test – nicely signaled, though, was that the fitness test did not require that the accused with a mental disorder have analytic capacity or, as the court put it, the ability to make “rational decisions beneficial to him”: at p. 339. Still, this expression seems to have generated confusion. On a go-forward basis, therefore, particularly with the clarifications below, the fitness test can simply be known as the “fitness test”. . R. v. Bharwani
In R. v. Bharwani (Ont CA, 2023) the Court of Appeal reviews the statutory law of 'not criminally responsible':(3) Statutory context
[27] Before moving on to describe the pre-trial proceedings in this case, we pause to provide some necessary statutory context so that it is easier to understand what happened next.
(a) Part XX.1 of the Criminal Code: The presumption of fitness
[28] Part XX.1 of the Criminal Code, “Mental Disorder”, contains what has been described as a “mini-Code” that deals exclusively with those accused with mental disorders: Richard Schneider & Hy Bloom, Fitness to Stand Trial (Toronto: Irwin Law Inc., 2018), at p. 3. It is beyond the scope of this decision to explore Part XX.1 in any detail. What is important is how presumptions relating to fitness operate.
[29] All accused start with the presumption of fitness to stand trial: Criminal Code, s. 672.22. At any point prior to a verdict being rendered,[1] a party to the proceedings or a judge of their own motion may raise the issue of fitness: Criminal Code, ss. 672.12, 672.23. If the accused is being tried by a jury, as in this case, the question of fitness must be determined by a jury: Criminal Code, s. 672.26.[2]
[30] It is important to note that fitness to stand trial and the NCR defence must be kept analytically distinct. The question of fitness has nothing to do with the accused’s guilt or innocence, or whether, pursuant to s. 16 of the Criminal Code, the accused should not be held criminally responsible. This is because the NCR defence is backwards-looking, inquiring into the accused’s mental state at the time of the act or omission that forms the subject of the charge(s) before the court: Criminal Code, s. 16. In contrast, questions of fitness are strictly focussed on the here and now: is the accused fit to stand trial at the time of trial?
[31] Returning to the statutory presumption of fitness, it can only be displaced on a balance of probabilities: Criminal Code, s. 672.22. If at any point the accused is found unfit to stand trial, only then is the presumption of fitness reversed to one of unfit to stand trial. It then falls to whatever party wishes to have the accused found fit to establish his fitness on a balance of probabilities: Criminal Code, s. 672.32.
[32] These provisions recognize the reality that an accused’s mental state and, therefore, their fitness, can fluctuate. That is precisely what happened in this case: the appellant went from presumed fit, to found unfit by a jury in the first fitness proceeding, to found fit by a jury in the second fitness proceeding. His trial then proceeded.
(b) “Unfit to stand trial”: Section 2 of the Criminal Code
[33] Section 2 of the Criminal Code contains the definition of “unfit to stand trial”. This definition, which is at the heart of this case, was enacted in 1991: An act to amend the Criminal Code (mental disorder) and to amend the National Defence Act and the Young Offenders Act in consequence thereof, S.C. 1991, c. 43. The definition is said to represent a codification of the common law as it existed when the provision was enacted: Taylor, at p. 332; R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, at p. 933; and R. v. Morrissey, 2007 ONCA 770, 87 O.R. (3d) 481, at para. 24, leave to appeal refused, [2008] S.C.C.A. No. 102.
[34] Notably, the s. 2 definition is written in the negative, the implication being that if one does not fall within the definition of unfit to stand trial, then one is fit to stand trial. The s. 2 definition reads as follows:unfit to stand trial means 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 or object of the proceedings,
(b) understand the possible consequences of the proceedings, or
(c) communicate with counsel. [35] At its core, s. 2 can be broken down into two essential questions, the second of which has two distinct components. Section 2 asks: (i) does the accused have a “mental disorder”; and, if so, (ii) on account of that mental disorder, is the accused unable to either “conduct a defence” or “instruct counsel to do so”?
[36] The term “mental disorder” is also defined in s. 2 of the Criminal Code: it means a “disease of the mind”. A “[d]isease of the mind embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning”: Cooper v. R., 1979 CanLII 63 (SCC), [1980] 1 S.C.R. 1149, at p. 117; Rabey v. R., 1980 CanLII 44 (SCC), [1980] 2 S.C.R. 513, at p. 544. A disease of the mind excludes any self-induced states caused by intoxicants or what were described in Cooper as “transitory mental states”: at p. 117.
[37] It is only if the mental disorder renders the accused unable to either “conduct a defence … or to instruct counsel to do so” that the accused will be found unfit to stand trial: Criminal Code, s. 2 (emphasis added). The placement of the “or” between conducting a defence and instructing counsel to conduct a defence ensures that all accused with a mental disorder, with or without counsel at their side, are protected by the fitness regime.
[38] Finally, s. 2 offers three considerations “in particular” that are helpful in determining if the accused, on account of mental disorder, is unable to conduct a defence or instruct counsel to do so: (1) whether the accused is able to understand the nature or object of the proceedings; (2) whether the accused is able to understand the possible consequences of the proceedings; and (3) whether the accused is able to “communicate with counsel.”
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(a) The NCR defence
[230] Section 16(1) of the Criminal Code provides that an accused is not criminally responsible for an act done or omission made while suffering from a mental disorder that rendered them “incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.” The burden of proof is on the party raising the NCR issue: Criminal Code, s. 16(2). This burden is met on a balance of probabilities.
[231] In the s. 16(1) context, the word “wrong” means both legally and morally wrong: R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, at pp. 1354-55. In R. v. Woodward, 2009 ONCA 911, at para. 5, this court reiterated that an accused cannot know the moral wrongfulness of his acts if he “was incapable of understanding that his acts were wrong according to the ordinary moral standards of reasonable members of the community.”
[232] An NCR determination depends upon whether an accused person was, at the time of the offence, capable of rationally evaluating their conduct: R. v. Oommen, 1994 CanLII 101 (SCC), [1994] 2 S.C.R. 507, at p. 518. Indeed, in Oommen, the court explained that the “crux” of the s. 16(1) inquiry is to determine “whether the accused [lacked] the capacity to rationally decide whether the act [was] right or wrong and hence to make a rational choice about whether to do it or not”: at p. 518.
[233] In R. v. Dobson, 2018 ONCA 589, 48 C.R. (7th) 410, at para. 24, leave to appeal refused, [2019] S.C.C.A. No. 70, Doherty J.A. had this to say about the interpretation of Oommen:Oommen, as interpreted in the judgments of this court, holds that an accused who has the capacity to know that society regards his actions as morally wrong and proceeds to commit those acts cannot be said to lack the capacity to know right from wrong. As a result, he is not NCR, even if he believed that he had no choice but to act, or that his acts were justified.
However, an accused who, through the distorted lens of his mental illness, sees his conduct as justified, not only according to his own view, but also according to the norms of society, lacks the capacity to know that his act is wrong. That accused has an NCR defence. Similarly, an accused who, on account of mental disorder, lacks the capacity to assess the wrongfulness of his conduct against societal norms lacks the capacity to know his act is wrong and is entitled to an NCR defence. [234] This interpretation of Oommen was recently adopted by Pepall J.A. in R. v. Worrie, 2022 ONCA 471, 415 C.C.C. (3d) 45, at para. 95.
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