Criminal Code of Canada - section 672.26 - Trial of issue by judge and jury

section 672.26

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the process for trying an accused persons fitness before a judge and jury in a criminal trial.

SECTION WORDING

672.26 Where an accused is tried or is to be tried before a court composed of a judge and jury, (a) if the judge directs that the issue of fitness of the accused be tried before the accused is given in charge to a jury for trial on the indictment, a jury composed of the number of jurors required in respect of the indictment in the province where the trial is to be held shall be sworn to try that issue and, with the consent of the accused, the issues to be tried on the indictment; and (b) if the judge directs that the issue of fitness of the accused be tried after the accused has been given in charge to a jury for trial on the indictment, the jury shall be sworn to try that issue in addition to the issues in respect of which it is already sworn.

EXPLANATION

Section 672.26 of the Criminal Code of Canada deals with the issue of fitness of an accused person in a trial by judge and jury. The section provides for two scenarios in which an accused's fitness may become an issue. Firstly, if the judge determines that the issue of fitness of the accused needs to be tried before the jury is given the case to deliberate on the indictment, then a separate jury will be sworn to try that issue. The number of jurors will be the same as required for the indictment in the province where the trial is taking place. In this situation, if the accused consents, the same jury may also try the issues to be tried on the indictment. Secondly, if the judge determines that the issue of fitness of the accused needs to be tried after the jury has been given the case to deliberate on the indictment, then the same jury will be required to try that issue in addition to the issues in respect of which it is already sworn. In other words, the fitness of the accused will be considered along with the main issues of the trial. This section is significant because it recognizes that an accused person's fitness to stand trial is important and cannot be ignored. If an accused is not fit to stand trial, it could be a violation of their rights and could lead to an unfair trial. By ensuring that the issue of fitness is dealt with separately, or considered alongside the main issues of the trial, this section ensures that accused persons are afforded fair trials.

COMMENTARY

Section 672.26 of the Criminal Code of Canada deals with situations where the fitness of an accused person needs to be determined before their trial can begin. This issue arises when there are concerns about the accused's ability to understand the charges against them, communicate with their lawyer, or participate in their own defense. In some cases, the accused may have a mental illness, a developmental disability, or an intellectual impairment that affects their capacity to stand trial. The purpose of this section is to ensure that accused persons are only tried if they are fit to do so. This protects their rights to a fair trial and upholds the values of justice and due process. If an accused person is unfit to stand trial, they cannot be held responsible for their actions and cannot be convicted of the charges against them. Therefore, it is essential that their fitness is determined before the trial proceeds. Section 672.26 outlines two scenarios in which the issue of fitness can be addressed. The first scenario is when the judge directs that the issue of fitness be tried before the accused is given in charge to a jury for trial on the indictment. In this case, a separate jury will be selected to determine the accused's fitness. This jury must be composed of the same number of jurors required for the trial on the indictment in the province where the trial is being held. If the accused consents, the same jury can consider both the fitness issue and the issues on the indictment. The second scenario outlined in Section 672.26 is when the issue of fitness is dealt with after the accused has been given in charge to a jury for trial on the indictment. In this situation, the same jury that is hearing the case will be sworn to try the fitness issue in addition to the issues on the indictment. The approach taken in Section 672.26 is consistent with the principles of procedural fairness and efficiency. By dealing with the fitness issue separately, the trial can proceed without delay or interruption. This reduces the burden on the court and the parties involved in the trial, and ensures that justice is served in a timely manner. However, it is important to note that determining fitness is a complex and sensitive process. It requires a thorough assessment of the accused's mental and physical health, as well as their ability to understand the charges and participate in their defense. The assessment must be carried out by qualified professionals, such as psychiatrists or psychologists, who have expertise in this area. In addition, the process of determining fitness must be conducted in a manner that respects the rights and dignity of the accused. They must be given the opportunity to participate fully in the assessment process, and their views and preferences must be taken into account. If the accused is found to be unfit to stand trial, appropriate measures must be taken to ensure their health and safety, and to facilitate their recovery. In conclusion, Section 672.26 of the Criminal Code of Canada provides a framework for addressing issues of fitness in criminal proceedings. It reflects the importance of ensuring that accused persons are fit to stand trial, while also respecting the principles of procedural fairness and efficiency. However, it is crucial that the process of determining fitness is carried out with sensitivity, expertise, and compassion, in order to uphold the rights and well-being of the accused.

STRATEGY

Section 672.26 of the Criminal Code of Canada deals with the issue of fitness of an accused to stand trial before a court composed of a judge and jury. Fitness refers to the mental ability of the accused to understand the charges against them and to participate in their own defence. If there are concerns about the accused's fitness, the trial judge may direct that this issue be tried before the jury is given the opportunity to try the case. This section raises some strategic considerations for the prosecution and defence counsel, which can impact the outcome of the trial. For defence counsel, the primary consideration is the mental health assessment of the accused. Counsel must be aware of the potential negative effects that a finding of unfitness can have on their client's ability to defend themselves. If the accused is found unfit to stand trial, they will be committed to a psychiatric facility until they are deemed fit. This can result in lengthy delays before the accused's case is heard and can cause difficulties for counsel in preparing a defence since they cannot communicate directly with their client. It may also be challenging for the accused to receive proper treatment and care while waiting for their fitness to be restored. Therefore, defence counsel may employ strategies to challenge the findings of unfitness. For example, they may challenge the qualifications of the psychiatrist who conducted the assessment or request a second opinion. They could also argue that the accused is able to participate in their defence, even if they require additional support or accommodations, such as an interpreter or special assistance in understanding legal concepts. On the other hand, the prosecution will aim to prove that the accused is unfit to stand trial. This is because they want to avoid the risk of an acquittal due to a finding of unfitness. If the accused is found unfit, the prosecution can request that the accused be remanded in custody until they are deemed fit to stand trial. It may also be in their interest to have the accused receive treatment or counselling to reduce the likelihood of re-offending or to assist the accused in the event that they are eventually found guilty. Prosecution counsel may pursue strategies such as presenting strong evidence of the accused's mental health issues, including any previous psychiatric assessments or history of mental illness. They may call upon expert witnesses to testify to the accused's lack of fitness and argue that the accused is unable to communicate effectively with their counsel or assist in their own defence. They could also suggest a treatment plan or rehabilitation program for the accused that may help to restore their fitness. In conclusion, Section 672.26 of the Criminal Code of Canada requires strategic considerations for both the defence and prosecution counsel when dealing with the issue of fitness of an accused. Defence counsel must be mindful of the negative impacts of a finding of unfitness on their client's ability to defend themselves, while prosecution counsel must provide strong evidence of the accused's mental health issues to support a finding of unfitness. Careful consideration of the available options and strategic planning can help to ensure that justice is served for all parties involved.