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Criminal - Fitness to Stand Trial
MORE CASES
Part 2
. R. v. Bharwani
In R. v. Bharwani (SCC, 2025) the Supreme Court of Canada dismissed a criminal appeal, this from an Ont CA finding that affirmed that he was "fit to stand trial and upheld the first degree murder conviction".
Here the court states the current law of fitness to stand trial, updated at 2025:(2) Proper Interpretation of the Definition of “Unfit to Stand Trial” in Section 2 of the Criminal Code
[51] Criminal law is no exception to the modern principle of statutory interpretation (R. v. Zora, 2020 SCC 14, [2020] 2 S.C.R. 3, at para. 33; R. v. T.J.F., 2024 SCC 38, at para. 52). The words of the definition of “unfit to stand trial” in s. 2 of the Criminal Code are to be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, citing E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; see also Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26; R. v. J.D., 2022 SCC 15, [2022] 1 S.C.R. 287, at para. 21).
[52] The definition of “unfit to stand trial” states that the accused must have a “mental disorder” that leaves them unable “to conduct a defence . . . or to instruct counsel to do so”. Accordingly, a finding of unfitness requires affirmative answers to two questions: (1) Does the accused have a mental disorder and, (2) if so, does that mental disorder render the accused unable to conduct a defence or to instruct counsel to do so?
[53] “Mental disorder” is defined separately in s. 2 of the Criminal Code as a “disease of the mind”. This definition is broadly interpreted and includes “any illness, disorder or abnormal condition which impairs the human mind and its functioning”, excluding “self-induced” and “transitory” mental states (Cooper v. The Queen, 1979 CanLII 63 (SCC), [1980] 1 S.C.R. 1149, at p. 1159; see also R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575, at paras. 59-60). An accused is therefore unfit to stand trial if they suffer from a disease of the mind that renders them unable to conduct a defence or to instruct counsel to do so.
[54] The heart of the definition of “unfit to stand trial” is the term “conduct a defence”. It implies two concepts: the component elements of “a defence” and a capacity threshold to “conduct” that defence.
[55] The parties, the interveners, and the Court of Appeal devoted most of their argument and analysis to the capacity threshold for what it means to “conduct” a defence. Comparatively little attention has been paid to what “a defence” actually entails. However, since these two concepts operate in tandem, I first look to the components of “a defence”. To determine what capacity threshold Parliament intended, it is helpful to canvass the decisions and actions in “a defence” that an accused must be capable of executing or instructing counsel to execute.
(a) Meaning of “a Defence”
[56] A defence requires taking affirmative actions and making deliberate decisions. At a minimum, this includes those actions and decisions that an accused must always make personally and those which relate to the exercise of their right to full answer and defence.
[57] It has long been recognized in our jurisprudence that there are decisions an accused must make personally in every defence, even when represented by counsel. Control over these decisions respects an individual’s autonomy and dignity, has deep roots in our criminal law, and is recognized as a principle of fundamental justice (R. v. Kahsai, 2023 SCC 20, at para. 43). These decisions are part of “a defence” as it is defined in “unfit to stand trial” in the Criminal Code.
[58] The non-exhaustive list of such decisions includes:(1) how to plead (G. A. Martin, “The Role and Responsibility of the Defence Advocate” (1970), 12 C.L.Q. 376, at p. 386; R. v. Trought, 2021 ONCA 379, 156 O.R. (3d) 481, at paras. 46-49; R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 2; Pritchard);
(2) the election of the mode of trial (Martin, at p. 387; R. v. Stark, 2017 ONCA 148, 347 C.C.C. (3d) 73, at para. 18; Trought, at paras. 46‑49; R. v. White, 2022 SCC 7, [2022] 1 S.C.R. 64, at para. 5);
(3) whether to testify in one’s own defence (C.A. reasons, at para. 125; Martin, at p. 387; Trought, at paras. 46-49; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 34);
(4) whether to retain counsel or represent oneself (Vescio v. The King, 1948 CanLII 53 (SCC), [1949] S.C.R. 139, at p. 142, per Taschereau J., and at p. 147, per Rand J.; R. v. Yscuado (1854), 6 Cox C.C. 386 (Hertford Assizes)); and
(5) whether to discharge counsel (R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 9).
[59] However, a “defence” includes more than just entering a plea, electing the mode of trial, testifying in one’s own defence, selecting or discharging counsel, or choosing to represent oneself. [60] The common law characterized fitness to stand trial by reference to an accused’s capacity to make full answer and defence and their right to be physically and mentally present at trial, which in turn reflect basic principles of fairness in criminal law (Roberts, at p. 545; Woltucky, at pp. 46-47; Steele, at pp. 172-73 and 181). Parliament built on this common law when enacting the statutory definition of “unfit to stand trial”, and we can continue to take guidance from this source in determining what other decisions are captured in the meaning “conduct a defence” (see R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at paras. 13-18). While legislation may prevail over the common law, “it must be presumed that a legislature does not intend to change existing common law rules in the absence of a clear provision to that effect” (Basque, at para. 40, quoting Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521, at para. 56).
[61] Accordingly, other defence decisions include those encompassed within the right to full answer and defence, a right rooted in the pre-Charter common law and now enshrined and guaranteed under ss. 7 and 11(d) of the Charter (see, generally, Criminal Code, 1892, s. 659; The Queen v. Laliberté (1877), 1877 CanLII 24 (SCC), 1 S.C.R. 117, at p. 140, per Ritchie J.; Roberts, at p. 545; Woltucky, at pp. 46-47; Steele, at pp. 172-73 and 181; R. v. J.J., 2022 SCC 28, [2022] 2 S.C.R. 3, at paras. 113-14). This right guarantees the accused a fair opportunity to challenge the evidence and present a defence (R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, at para. 13).
[62] The relevance of the right to full answer and defence to the fitness test is apparent, as it aligns with the principle “that a prosecution not proceed where an accused is not able to adequately respond to the state. Th[is] rul[e] [is] in place to protect the accused” (R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489, at para. 21, quoting R. D. Schneider, “Mental Disorder in the Courts: Absolute Discharge for Unfits?” (2000), 21 For The Defence 36, at p. 38).
[63] As a result, for the purpose of interpreting the meaning of “a defence”, the right to full answer and defence includes at least three relevant components:(1) the right to challenge the Crown’s case, which primarily manifests itself in the right to cross-examine Crown witnesses to challenge their credibility and reliability (R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 2);
(2) the right to advance a defence, which includes the right to elicit evidence from Crown witnesses, to call witnesses, and to lead relevant evidence with a probative value not substantially outweighed by its prejudicial effect (R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at pp. 611-12; J.J., at para. 133). This right is also a feature of a right to be present at their own trial (s. 650 Cr. C.; R. v. Hertrich (1982), 1982 CanLII 3307 (ON CA), 67 C.C.C. (2d) 510 (Ont. C.A.), at p. 537, per Martin J.A.); and
(3) the right to address the trier of fact, which includes the right to make a closing address to the jury, or where there is no jury, to the trial judge (Aucoin v. The Queen, 1979 CanLII 29 (SCC), [1979] 1 S.C.R. 554; Criminal Code, 1892, s. 661(2); Kahsai, at para. 52). [64] This list is not intended to be comprehensive. Trials are complex and unpredictable. No two trials are alike, and no two defences will necessarily be conducted in the same way. In Pritchard, the trial judge instructed the jury that “[i]t is not enough that [the accused] may have a general capacity of communicating on ordinary matters”; the accused must “comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation” (p. 135 (emphasis added)).
[65] An accused may be required to make other decisions at trial that will form part of their defence. In this sense, the fitness to stand trial test is contextual, as the inquiry focuses on the decisions that form part of an accused’s defence in a specific case, and not in the abstract.
(b) Capacity Threshold to “Conduct” a Defence
[66] With this understanding of “a defence” in mind, I now interpret what it means to be able to “conduct” such a defence. Specifically, it is necessary to determine what threshold of capacity Parliament intended for an accused to meet when making decisions in their defence or instructing counsel to do so.
[67] The text of the statutory definition of “unfit to stand trial” provides some guidance on the requisite capacity threshold that an accused must possess. The definition notes “in particular” that an accused is unfit if they are unable to (1) understand the nature or object of the proceedings, (2) understand the possible consequences of the proceedings, or (3) communicate with counsel. The use of “or” between these requirements suggests that if the court is satisfied that the accused is unable to meet one of them, they are unfit to stand trial, as they lack the capacity to “conduct” a defence.
[68] These three requirements are clearly non-exhaustive, as indicated by the term “in particular” (R. v. Rafilovich, 2019 SCC 51, [2019] 3 S.C.R. 838, at para. 69; R. v. Lavigne, 2006 SCC 10, [2006] 1 S.C.R. 392, at para. 24). They are simply illustrative of the level of capacity that the term “conduct” seeks to convey and are based in comprehension and communication. Importantly, none of these requirements suggest that an accused must be capable of acting at an advanced analytical capacity or in their own best interests.
[69] However, capacity to conduct a defence requires more than a mere understanding of the nature or object of the proceedings and their possible consequences, and being able to communicate. For example, the right to full answer and defence includes the right to receive disclosure from the Crown, before trial, of all relevant, non-privileged information in its possession or control (R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, at p. 336; R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35, at para. 18). The right to full answer and defence rings hollow if an accused learns of the Crown’s evidence for the first time in the courtroom. To conduct a defence, an accused must therefore understand the concept of disclosure. The capacity threshold must accordingly include the capacity to understand the nature of disclosure. If, due to a mental disorder, an accused is unable to understand that disclosure is evidence that can potentially be used at their trial, then they will be incapable of conducting a defence.
[70] In sum, as the Court of Appeal noted, the following guidance can be discerned from the text of the statutory definition. First, an accused must have a reality‑based understanding of the nature or object and possible consequences of the proceedings (see C.A. reasons, at para. 116). Second, an accused must have the capacity to make decisions. This requires “the ability to understand available options, the ability to select from those options, [and] the ability to understand the basic consequences arising from those options” (para. 167). Finally, an accused must have the capacity to intelligibly communicate with the court, as well as counsel, since a defence invariably requires informing both of the decisions one has made (see para. 119).
[71] Having considered the text of the definition of “unfit to stand trial”, I now turn to the statutory context and legislative purpose.
(c) Statutory Context and Legislative Purpose
[72] The statutory context and legislative purpose both confirm that the definition of “unfit to stand trial” in s. 2 of the Criminal Code seeks to ensure that, while the accused must be physically and mentally present at trial and be able to participate in proceedings, it is not required that they have advanced analytical capacity or act in their best interests.
[73] The statutory context illustrates the high stakes of a finding of unfitness. If an accused is found unfit to stand trial, s. 672.31 of the Criminal Code directs that any plea made be set aside and any jury discharged. An unfit accused is placed under the jurisdiction of a Review Board until they are either found fit to stand trial or permanently unfit to stand trial (ss. 672.47, 672.48 and 672.851 Cr. C.). The unfit accused is denied their trial until found fit. Under the jurisdiction of a Review Board, an accused can be detained for prolonged periods and be subjected to forced medical treatment (ss. 672.54 and 672.58 Cr. C.; R. v. Conception, 2014 SCC 60, [2014] 3 S.C.R. 82, at para. 31). In short, a finding of unfitness can precipitate profound limitations on an accused’s liberty (see C.A. reasons, at paras. 145-52). Given the wide number of decisions that form part of “a defence”, applying a high bar for capacity to “conduct” that defence could potentially subject many accused to such limitations. On the other hand, a test that is set too low is also undesirable as it can result in findings of fitness for accused who may be unable to meaningfully exercise their right to be physically and mentally present at trial, to control their defence and to make full answer and defence.
[74] Bill C-30’s legislative history also helps understand the capacity threshold intended by Parliament. Bill C-30 furthered two main objectives: enhancing societal protection against those accused with mental disorders who are dangerous, and ensuring that accused with mental disorders are afforded due process, fundamental fairness, and rights for their protection in the criminal justice system (Minutes of Proceedings and Evidence of the Standing Committee on Justice and the Solicitor General, No. 7, 3rd Sess., 34th Parl., October 9, 1991, at p. 7:6). During parliamentary debates, the Minister responsible acknowledged that some accused who are fit to stand trial may nonetheless be “acutely mentally ill” (House of Commons Debates, vol. III, 3rd Sess., 34th Parl., October 4, 1991, at p. 3298). This suggests that Parliament did not intend to impose a stringent standard for fitness, such as requiring the capacity to act in one’s best interests.
[75] The purpose underlying the requirement of fitness is rooted in the rights that underpin our understanding of procedural fairness in criminal law. The definition of “unfit to stand trial” in s. 2 recognizes that because our system of criminal justice is “founded on respect for the autonomy and dignity of human beings”, an accused person has the right to control their own defence (Swain, at p. 972). This includes the right to be meaningfully present at one’s own trial and the right to make full answer and defence (R. v. Morrissey, 2007 ONCA 770, 87 O.R. (3d) 481, at para. 36).
[76] Parliament aimed to strike a careful and effective balance between these competing interests. The appellant’s position that the presence of any delusional thinking must render an accused unfit to stand trial would undermine this legislative equilibrium. Such an approach fails to reflect the purpose underpinning the definition of “unfit to stand trial” in s. 2 of the Criminal Code.
(d) Conclusion
[77] To conclude, the text, statutory context, and purpose of the definition of “unfit to stand trial” support an interpretation of the capacity threshold that requires an accused to be able to make reality-based decisions in the conduct of their defence and intelligibly communicate these decisions to counsel or the court. This necessitates a reality-based understanding of the nature or object and possible consequences of the proceedings, as well as an ability to understand the available options and their consequences, and to select between those options when making decisions. The accused is not required to make decisions in their best interests, but cannot be overwhelmed by delusions, hallucinations, or other symptoms of their mental disorder when making and communicating these decisions.
[78] While the Criminal Code defines “unfit to stand trial” with reference to the inability to conduct a defence “at any stage of the proceedings”, this incapacity must be assessed holistically, recognizing that an accused’s mental state may fluctuate. Transient mental health symptoms do not necessarily compromise an accused’s ability to conduct a defence. A momentary delusion that prevents an accused from making reality-based decisions does not render the accused unfit, so long as the trial judge and other courtroom participants can help the accused get back on track to meet the capacity threshold when decisions in their defence must be made. The primary consideration is always assessing the extent to which an accused’s mental disorder impairs their understanding of reality when making decisions in their defence.
[79] The capacity threshold applies, at a minimum, when an accused is making decisions that are integral to conducting a defence. These include those that the accused must make personally and those which relate to the exercise of the accused’s right to full answer and defence. Accordingly, to be fit to stand trial, an accused must be able to make and intelligibly communicate reality-based decisions about pleas, the mode of trial, selection of counsel, whether to testify, whether to call or cross-examine witnesses, and closing submissions, among others.
[80] This definition of the capacity threshold sets minimum standards of fairness by ensuring that only accused with an understanding of reality are prosecuted. This prevents inaccurate determinations of guilt and punishment, allows the accused to meaningfully participate in the proceedings with the aim of protecting their constitutional rights, and upholds the dignity and ultimate fairness of the trial.
[81] This level of capacity falls short of requiring effective or wise decisions. That an accused may make objectively poor decisions in the conduct of their defence is irrelevant to the issue of their fitness to stand trial. The fact that an accused is “unable” to mount a defence due to being legally untrained, unsophisticated, or driven by motivations unrelated to the truth-seeking function of the trial (such as vengeance, religious devotion, or obstruction) plays no role in the inquiry. The accused may still be fit to stand trial even if they face difficulties commonly encountered by self‑represented accused in legal proceedings (see Kahsai, at para. 43; R. v. Walker, 2019 ONCA 765, 381 C.C.C. (3d) 259, at para. 63). The accused has a constitutional right to control their own defence, including the right to forgo viable defence strategies, or to present no defence at all (Swain, at p. 972; Kahsai, at para. 43).
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[88] Under s. 672.22 of the Criminal Code, an accused is presumed fit to stand trial. Section 672.11(a) states that a court may order an assessment of an accused’s “mental condition” if it has reasonable grounds to believe that such evidence is necessary to determine whether the accused is unfit to stand trial. Section 672.12(1) makes clear that a court may make such an order of its own motion, or on application by the accused or prosecution. Closely related, s. 672.23(1) states that “[w]here the court has reasonable grounds . . . to believe that the accused is unfit to stand trial, the court may direct, of its own motion or on application of the accused or the prosecutor, that the issue of fitness of the accused be tried.”
[89] Overseeing a trial involving a self-represented accused with a mental disorder is one of the most challenging tasks a trial judge can face. The trial judge will have the best perception of the accused’s capacity in the courtroom, and appellate judges should recognize the trial judge’s advantage when reviewing the record to determine whether they erred in not calling a fitness assessment under ss. 672.11(a) and 672.12(1), or a trial of fitness under s. 672.23(1). . R. v. Bharwani
In R. v. Bharwani (SCC, 2025) the Supreme Court of Canada dismissed a criminal appeal, this from an Ont CA finding that affirmed that he was "fit to stand trial and upheld the first degree murder conviction".
Here the court reviews the Canadian criminal legal history of 'fitness to stand trial':A. Fitness to Stand Trial Test
(1) Common Law Origins of Fitness to Stand Trial
[41] The requirement for an accused to be fit to stand trial, now codified in the Criminal Code through the definition of “unfit to stand trial”, has its origin in the common law and dates back to at least the ninth century (R. D. Schneider and H. Bloom, “R. v. Taylor: A Decision Not in the Best Interests of Some Mentally Ill Accused” (1995), 38 C.L.Q. 183, at p. 184). A brief review of the history of the fitness to stand trial requirement provides insight into the legal roots from which the current statutory definition of “unfit to stand trial” has evolved (R. v. Basque, 2023 SCC 18, at para. 41).
[42] The modern fitness to stand trial doctrine in the common law stems from the 1836 case of R. v. Pritchard (1836), 7 C. & P. 303, 173 E.R. 135, where Baron Alderson of the English Court of King’s Bench articulated the following factors for jurors to consider when deciding an accused’s fitness: “. . . whether he is of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence — to know that he might challenge any of you to whom he may object — and to comprehend the details of the evidence . . .” (p. 135).
[43] Early English common law laid the foundation for fitness assessments in various common law jurisdictions (P. Brown, “Unfitness to plead in England and Wales: Historical development and contemporary dilemmas” (2019), 59 Med. Sci. Law 187, at p. 188). Commonwealth countries have adopted a flexible approach in the determination of fitness to stand trial, but none have required proof that an accused have analytical capacity or be able to act in their own best interests (W. J. Brookbanks and R. D. Mackay, “Decisional Competence and ‘Best Interests’: Establishing the Threshold for Fitness to Stand Trial” (2010), 12 Otago L.R. 265, at p. 267; see also Reference Re Regina v. Gorecki (No. 1) (1976), 1976 CanLII 833 (ON CA), 14 O.R. (2d) 212 (C.A.), at p. 217, citing R. v. Robertson (1968), 52 Cr. App. R. 690 (Eng. C.A.)).
[44] In Canada, the first provision regulating an accused’s fitness to stand trial originated from the United Kingdom’s Criminal Lunatics Act, 1800, 39 & 40 Geo. 3, c. 94. This provision was incorporated into Canada’s original 1892 Criminal Code under s. 737, allowing courts to inquire whether the accused was “on account of insanity unfit to take his trial” (The Criminal Code, 1892, S.C. 1892, c. 29). At the time, the Criminal Code, 1892, did not define unfitness. The rule that an accused must be mentally fit to be tried was seen as “securely anchored in principles of justice as ancient and fundamental as the rule against trials in absentia and the right of an accused to make full answer and defence”, thus ensuring fairness to the accused (R. v. Steele (1991), 1991 CanLII 3882 (QC CA), 63 C.C.C. (3d) 149 (Que. C.A.), at p. 172; see also R. v. Roberts (1975), 1975 CanLII 1394 (BC CA), 24 C.C.C. (2d) 539 (B.C.C.A.), at p. 545; R. v. Gibbons, 1946 CanLII 113 (ON CA), [1946] O.R. 464 (C.A.), at pp. 473-74; R. v. Woltucky (1952), 1952 CanLII 186 (SK CA), 103 C.C.C. 43 (Sask. C.A.), at pp. 46-47).
[45] Approximately a century after the enactment of s. 737, Parliament enacted Bill C-30, 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, which codified the definitions of “unfit to stand trial” and “mental disorder” in s. 2 of the Criminal Code.
[46] Section 2 of the current Criminal Code defines when an accused is unfit to stand trial 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; [47] For over 30 years, the Court of Appeal for Ontario’s decision in Taylor and its interpretation of the definition of “unfit to stand trial” has been “generally considered to be the most authoritative case on point” regarding fitness to stand trial (H. Bloom, “Fitness to Stand Trial”, in H. Bloom and R. D. Schneider, eds., Law and Mental Disorder (2013), 211, at p. 213). As the Court of Appeal in this case summarized, a person is unfit to stand trial if, on account of mental disorder, they are unable to conduct a defence or to instruct counsel to do so. To be fit, an accused needs to have the ability to understand available options, select from those options, appreciate the basic consequences arising from those options, and intelligibly communicate their decision to either counsel or the court. Accordingly, an accused must possess a reality‑based understanding of the nature or object and possible consequences of the proceedings, as well as the ability to make decisions. However, an accused does not need to have the capacity to engage in analytic thinking and make decisions in their own best interests (C.A. reasons, at para. 167). . R. v. Bharwani
In R. v. Bharwani (SCC, 2025) the Supreme Court of Canada summarizes the current law of 'fitness to stand trial':[1] In our criminal justice system, every accused is presumed fit to stand trial. However, when a person with a mental disorder faces prosecution, their condition may impair their ability to exercise fundamental rights that ensure a fair trial. These rights include the accused’s right to control their own defence, to make full answer and defence, and to be present at their trial. To protect these rights and preserve the accused’s autonomy and dignity, the presumption of fitness can be rebutted if the accused meets the definition of “unfit to stand trial” in s. 2 of the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”). This appeal provides the first opportunity for this Court to interpret that definition since its enactment in 1991.
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[6] .... an accused is fit to stand trial when they are able to make and communicate reality-based decisions in the conduct of their defence or instruct counsel to do so. Conducting a defence includes making decisions that an accused must always make personally and those which relate to the exercise of their right to full answer and defence, such as decisions about pleas, the mode of trial, selection of counsel, whether to testify, whether to call or cross-examine witnesses, and closing submissions, among others. The capacity required to make those decisions is a reality-based understanding of the nature or object of the proceedings and their possible consequences, an ability to understand the available options and their consequences, and an ability to select between those options when making decisions. Fitness to stand trial does not require an accused to make decisions in their best interests. Rather, it requires making decisions based on an understanding of reality that is not overwhelmed by delusions, hallucinations, or other symptoms of their mental disorder. Transient mental health symptoms do not necessarily compromise an accused’s ability to conduct a defence. The focus is always on assessing the extent to which an accused’s mental disorder impairs their understanding of reality when making and communicating decisions in their defence.
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