Part 1: Fitness to Stand Trial
A) What does fitness mean?
•To receive a fair trial people should be able to defend themselves against
A) What if a person is unfit to stand trial
•Person should not stand trial
B) Legal standards for determining fitness
1. Prior to 1836: ability to enter a plea.
•Reasons for not entering a plea:
oMute of malice: deliberately silent
oIf so can use torture to extract a plea
oMute by visitation of god (deaf, mute, insane)
oIf so a person should not be tried.
2. R. V. Pritchard (1836): charged with bestiality. Also a deaf mute so
couldn’t enter plea couldn’t enter plea, couldn’t be tried for the crime
•Court establishes a clearer legal standard:
oAble to enter a plea AND
oMust have sufficient intellect to understand proceedings.
•Canada fitness standard for the next 156 years
3. Canada’s Bill C-30 (1992): revisions to section 2 of Criminal Code
•New fitness standard:
•Person is unfit to stand trial if:
oPerson has a mental disorder
oDisorder interferes with ability to conduct a defence. Three
criteria or elements
•Unable because of mental disorder to
oUnderstand nature and object of proceedings
oUnderstand possible consequences
oCommunicate with counsel
Bill C-30 also established new Part XX.1 of criminal code (deals with mental disorders)
•Fitness is assumed unless unfitness is shown on the balance of probabilities. More
probable than improbable, 51% probability.
oLower standard than beyond reasonable doubt
•Party raising issue has burden or proving unfitness
•The court (judge or jury) determines whether burden is met (whether accused is
fit or unfit)
C) Assessing Fitness to Stand Trial
1. who can make an assessment?
•Prior to 2005 only medical doctors could provide assessments to courts (didn’t
have to be experts n mental disorders)
•In 2005 Part XX.1 expanded to include other qualified professionals includes
2. Another role of psychologists:
•Developing the tests that are used to assess fitness
3. How is fitness assessed?
•Show that person has mental disorder AND
•Disorder interferes with 3 criteria in section 2 above.
•Fitness Interview Test- Revised (FIT-R)
•Has Three sections:
oNature and object of proceedings. Includes
Arrest process and specific charges
Role of the judge the prosecutor, defence attorney and jury.
Court procedures (eg. Can disagree with witnesses who
testify against him or her)
oConsequences of proceedings includes eg
Range and nature of penalties (being sent to prison)
oAbility to communicate with counsel
Can communicate facts of case to lawyers
Can plan legal defence strategy
Can manage courtroom behavior
NOTE: FIT-R does not assess mental disorders (other tests are used, EG DSV-V)
D) What Happens After Assessment?
•Assessment report is submitted to court
•Court makes its own judgment:
•If fit to stand trial case proceeds to trial
oAccused can be detained in custody if reason to believe he/she
might become unfit
•If unfit proceedings are temporarily stopped
oGoal: restore fitness using treatment
oIn Canada usual treatment was medication to control mental
oSince 2005 psychological treatments are more common to achieve
criteria of fitness
•How long can this go on?
oAccused can request that case be reviewed at any time
oEvery 2 years Crown must prove there is still sufficient evidence
for trial if not case is dropped and accused is acquitted.
Part 2: Mental State at the Time of the Offence
“I may appeal to all who hear me, whether there are any causes more difficult as
when insanity becomes the subject of legal consideration and judgment” R. V Hadfield