Share on Facebook Capacity and Fitness to Stand Trial
Introduction
There are two ways in which the mental condition of an accused person can become an issue in a criminal trial.
- Question 1: is the person fit to stand trial at all?
- Question 2: if the person has been tried and found guilty of an offence, should he or she be held criminally responsible for it?
This page gives a brief overview of how the first question is dealt with. The matter of exemption from criminal responsibility on account of mental disorder is dealt with separately.
The rules about mental disorder are found in Part XX.1 (Part 20.1) of the Criminal Code. Please note that, as with all the other topics discussed at this site, we are only providing a glimpse into this particular area of the criminal law. If your interest in it is more than casual, make sure you get legal advice, or at least study the law in much greater detail yourself.
The Principles
As we mention in our notes on trial principles, an accused person has the right to be present at trial, to confront his or her accuser, and to make full answer and defence. When an accused is incapable of understanding the proceedings, he or she cannot really be considered to be "present" for those purposes.
The Criminal Code [s. 2] says a person is unfit to stand trial if he or she suffers from a mental disorder that prevents him or her from conducting a defence, or instructing counsel to do so. In particular, this means an inability to understand the nature or object of the proceedings, or their possible consequences, or to communicate with counsel.
In practice, this most commonly means that a court will try to determine if the person is able to communicate clearly and rationally enough with his or her lawyer, for the lawyer to be able to run at least a reasonably effective case.
There is a presumption of fitness, so the issue only needs to be considered if someone raises it. This person can be either the defence lawyer or the prosecutor, or the trial judge. The issue can be raised at the trial itself, or at the preliminary inquiry, if there is one.
The Procedures
Under section 672.11(a) of the Code, a court can order a psychiatric assessment of the mental condition of the accused, to help determine if he or she is fit to stand trial. If the accused is unrepresented, the court will also order that he or she be supplied with the services of a lawyer.
The issue of fitness is then tried separately from the trial on the charge itself. If that main trial is to be by jury, then a jury also decides the question of fitness, and it can be the same jury. If the main trial is to be by judge alone, or if there is to be a preliminary inquiry, the question of fitness is decided by the judge.
If the accused person is found fit to stand trial, the proceedings go ahead as if the question of fitness had never arisen. If the person is temporarily in custody, though, and the court believes that he or she will become unfit to stand trial if released (perhaps because medication will not be taken), it can order the detention to continue until the trial is over.
If the accused is found unfit to stand trial, any plea he or she has already entered is set aside, and the jury, if there is one, is let go. The accused is no longer automatically remanded into custody at a psychiatric institution, but this is normally what will happen. Even if the person is not committed to a hospital, he or she will usually be ordered to submit to treatment.
If the person later becomes mentally capable of being tried, he or she can be tried at that time. There will be an inquiry every two years, to see if such a change has occurred.
Of course, as time goes by, the prosecution is likely to start having problems with its evidence and witnesses. If at any point there is no longer sufficient evidence available to convict, the accused person is granted an acquittal.
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FIRST LINE CRIMINAL LAW INFORMATION