R. v. Bharwani, 2023 ONCA 203

Background

Many people charged with criminal offences live with mental health challenges. When those who face serious mental health challenges are subjected to the criminal justice system, the first or most basic question to be answered is: is the accused person, on account of mental disorder, unfit to stand trial? This appeal deals with how courts should answer this question in any given case.

Statutory Context

Part XX.1 of the Criminal Code governs accused persons with mental disorders. All accused persons are presumed fit to stand trial: s. 672.22. At any point prior to a verdict being rendered, a party to the proceedings or a judge of their own motion may raise the issue of fitness: ss. 672.12 and 672.23. If the accused is being tried by a jury, the question of fitness must be determined by a jury: s. 672.26.

The question of fitness has nothing to do with the accused’s guilty or innocence, or whether the accused should not be held criminally responsible based on their mental state at the time of the offence. Fitness is focused solely on whether the accused is fit to stand trial at the time of the trial.

The presumption of fitness can only be displaced on a balance of probabilities: s. 672.22. If at any point the accused is found unfit to stand trial, only then is the presumption of fitness reversed to one of unfit to stand trial. It then falls to whatever party wishes to have the accused found fit to establish his fitness on a balance of probabilities: s. 672.32.

Section 2 of the Code defines “unfit to stand trial”. Section 2 essentially asks two questions:

(a)    Does the accused have a “mental disorder”? And, if so,

(b)    On account of that mental disorder, is the accused unable to either “conduct a defence” or “instruct counsel to do so”?

Mental disorder is also defined in s. 2 of the Code as a “disease of the mind” which includes any illness, disorder or abnormal condition which impairs the human mind and its functioning but does not include any self-induced states caused by intoxicants or “transitory mental states”.

In determining whether the definition of “unfit to stand trial” is met, s. 2 also includes helpful considerations: (1) whether the accused is able to understand the nature or object of the proceedings, (2) whether the accused is able to understand the possible consequences of the proceedings, and (3) whether the accused is able to communicate with counsel.

Taylor and the “limited cognitive capacity” test

The Taylor (R. V. Taylor (1992), 11 O.R. (3d) 323 (C.A.) case was decided shortly after the enactment of s. 2 definition of “unfit to stand trial”.

The first takeaway from Taylor is the reminder that, when considering the proper parameters of the fitness test, we must look to the s. 2 definition of “unfit to stand trial”: whether or not the accused is unable on account of mental disorder to conduct a defence or instuct counsel to do so.

The Taylor decision also accepts that in determining fitness to stand trial, some consideration must be given to whether the accused has the ability to converse or communicate rationally with counsel or the court. Taylor, however, also maintains that the concept of “communicating rationally” maintains a limited role in fitness assessments: an accused must simply be able to understand relevant information, apply that information in the context of their decision-making and intelligibly communicate.

Next, the Taylor decision makes “meaningful presence and participation” at trial by the accused the “touchstones” of the fitness inquiry. In other words, the accused must have sufficient mental fitness to participate in the proceedings in a meaningful way. These touchstones, however, do not constitute a stand-alone test for fitness.

Lastly, Taylor rejected the need for “analytic capacity” or an accused person being capable of making decisions in their own best interests in order to be “fit to stand trial”.

Should the Taylor test be revisited to require “analytical capacity”?

The appellant submits that he was only found fit to stand trial because the judge at the second fitness hearing and the psychiatrist who offered an opinion at that hearing, and later the trial judge, relied upon an overly restrictive test for fitness, one rooted in what has become colloquially known as the “Taylor test questions”. By relying upon such a narrow test, they are said to have failed to consider the essential reason the self-represented appellant was unfit to stand trial: he was incapable of making rational decisions in his own best interests. The appellant urges that if this consideration is not currently part of the fitness test, then this court should add it, even if this means overturning Taylor.

Ultimately, the Court of Appeal concludes that there is no reason to overturn Taylor by injecting the ability to make rational decisions in one’s best interests into the fitness test. Courts must respect the autonomy of all accused persons. We do not say to people “you cannot do that”, or “you cannot have a trial until you show more wisdom in your choices”. If we would not say that to someone who faces no mental health challenges, why would we say it to a person who faces mental health challenges? “Inviting the court to decide whether accuseds have made wise decisions” would “smack of paternalism”: R. v. W. (M.A.), 2008 ONCA 555, 237 C.C.C. (3d) 560, at para. 35. This is not the function of the court. All accused persons, whether living with mental health challenges or not, must maintain the right to make decisions based upon choices that others may or may not see as the most sensible or wise, decisions that may even cut against their interests, provided they are fit to stand trial.

What you need to know: the fitness test clarified

1.       There is one fitness test for all accused, whether represented by counsel or not. This test is applied contextually.

2.       The test for fitness is set out in the statutory definition of “unfit to stand trial” in s. 2 of the Criminal Code.

3.       A person is unfit to stand trial if, on account of mental disorder, the person is unable to conduct a defence or to instruct counsel to do so.

4.       The purpose of the s. 2 fitness test is to ensure that the accused can be meaningfully present and meaningfully participate at their trial. These touchstones inform a purposive interpretation and application of the s. 2 fitness test and do not themselves constitute a stand-alone test.

5.       The Taylor test questions are not a sufficient surrogate for assessing fitness but are helpful in providing insights into an accused’s abilities in relation to the s. 2 criteria. Applying the fitness test is more nuanced than the questions recognize.

6.       The accused must have a reality-based understanding of the nature and object and possible consequences of the proceedings.

7.       The accused must have the ability to make decisions. This involves the ability to understand available options, the ability to select from those options, the ability to understand the basic consequences arising from those options, and the ability to intelligibly communicate to either counsel or the court the decision arrived upon.

8.       The accused need not have the capacity to engage in analytic thinking in the sense that the accused need not be capable of making decisions in their own best interests.