INTRODUCTION AND BRIEF DESCRIPTION
2. In this Act, "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;
In a criminal prosecution, if a person is unfit to stand trial the court has several options with how to proceed. Upon a finding of unfitness, the court may make a "get fit" order, which allows a psychiatric facility to administer medication for the purpose of rendering the person fit. This order may last up to sixty days. Beyond that, a verdict of unfit to stand trial will be rendered and the matter referred to the Review Board of the governing province.
Section 2 of the Criminal Code of Canada defines the term unfit to stand trial" and outlines the criteria used to determine whether someone is incapable of participating in a trial due to a mental disorder. This section is important because it protects the rights of individuals who may not be able to fully comprehend or participate in the legal proceedings against them. Mental illness and disability are significant factors that can impact an individual's ability to stand trial. The justice system has a responsibility to ensure that individuals are not subjected to legal proceedings they cannot comprehend or participate in due to their mental disorder. If someone is unfit to stand trial, they will not be held accountable for their actions in the same way as someone who is fit to stand trial. According to section 2 of the Criminal Code of Canada, an individual may be deemed unfit to stand trial if they are 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. This means that the person is incapable of advocating for themselves or directing their defence counsel. Furthermore, the section outlines specific criteria that must be met for someone to be deemed unfit to stand trial. These include the inability to understand the nature or object of the proceedings, the possible consequences of the proceedings, or to communicate with counsel. An individual who meets any of these criteria is unlikely to be able to participate in their trial effectively, which impacts their ability to understand what is happening and to defend themselves appropriately. The criteria outlined in this section are crucial because they provide a clear and objective standard for determining whether someone is capable of participating in a trial. They ensure that individuals with mental disorders are not subjected to legal proceedings they cannot fully comprehend, which would be unfair and unjust. This also ensures that the trial process is fair, as an individual who cannot understand or participate in the legal proceedings against them would not receive a proper defence. However, while section 2 provides clear criteria for determining fitness to stand trial, there are still some challenges involved in applying this section in practice. Mental illness and disability can be complex, and determining whether someone is unfit to stand trial may require a comprehensive assessment from a mental health professional. There may also be challenges in ensuring that individuals with mental disorders receive adequate support to participate in their legal proceedings, such as access to mental health treatment or the provision of assistive technology. In conclusion, section 2 of the Criminal Code of Canada is an essential provision that ensures that individuals with mental disorders are not unfairly subjected to legal proceedings they cannot comprehend or participate in effectively. The criteria outlined in this section provide an objective standard for determining whether someone is unfit to stand trial, which protects the rights of both the accused and the justice system. While there may be challenges in applying this provision in practice, it is crucial to ensuring a fair and just legal system for all individuals.
The overlap of mental health issues in a criminal trial is not uncommon. The test for fitness, however, is a relatively low burden. An accused must be able to understand the proceedings against them and instruct counsel. In this respect, in situations where a client is having difficulty communicating with counsel because of disjointed thoughts, counsel must be vigilant, yet cautious, about explore fitness issues. A verdict of unfit to stand trial can result in a client being held before the review board theoretically for an indeterminate period, consequences that can often significantly dwarf the length of custody that would otherwise have been imposed. The ability to communicate with and instruct counsel is relatively low. Poor instructions, or instructions from a client that run contrary to a lawyer's best advice to not suffice. A client is permitted to make "bad" decisions. It is only when a client is unable to understand the nature of the proceedings against them and the consequences thereof, that the client's mental status will fall below the level of fitness required to participate in a trial. In situations where it becomes apparent the a client may be unfit, counsel should raise this at the earliest opportunity or risk delaying the proceedings of their own accord. Most jurisdictions have a mental health court, or access to a court appointed psychiatrist or facility that is equipped to conduct a fitness assessment. From there, a psychiatrist is likely to make a recommendation as to treatment. While the question of fitness is independent of the question of criminal responsibility, the exploration of fitness soon after a criminal offence has been perpetrated, is often instrumental in laying the foundation for the exploration of the issue of criminal responsibility. If a client is sufficiently unfit as to be unable to instruct counsel, immediately or soon after a crime has been committed, it is likely that there are larger psychiatric issues worth potentially exploring.
QUESTIONS AND ANSWERS
No. The question of fitness for trial is concerned with whether an accused is able to understand the proceedings against them, and instruct counsel. In contrast, an assessment of criminal responsibility is concerned with whether an accused understood the nature and consequences of their criminal act, such as their alleged assault or threat. While practically, there may be overlap between the two issues, they are distinct. It is not uncommon that an accused is fit to stand trial, but found to be not criminally responsible by reason of mental disorder, as the bar set for fitness for trial is seen to be low.