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Fitness to stand trial
Fitness to stand trial

What is a “fitness to stand trial” assessment?

This type of assessment is probably the most common situation when a judge wants to determine whether or not an accused is “unfit to stand trial”. This type of assessment is usually called a “fitness to stand trial” assessment, or simply a “fitness assessment”, or a “Form 48”.

If an accused is sent for this type of assessment, it’s as if the regular criminal process is put on hold until a judge has made a decision about whether the accused is unfit to stand trial or not.

It is helpful to think of a fitness to stand trial assessment as stage two in a three-stage process:

  • Stage one:

    The judge makes a decision about whether or not to send the accused to be assessed by a psychiatrist. At this stage, the judge is only concerned with deciding whether or not there are reasonable grounds to believe that the accused is unfit to stand trial.

    The judge listens to the Crown, the accused’s lawyer (or duty counsel), and usually the accused person to make this decision.At this stage, the lawyer or judge may ask the accused questions in court. If, based on what he/she has heard, the judge believes that the accused is unfit to stand trial, the judge will make an order for a psychiatrist to assess the accused’s current mental state.

  • Stage two:

    A psychiatrist assesses the accused’s current mental state. This usually occurs in a secure psychiatric hospital, but it sometimes happens in the courthouse.

    The psychiatrist assesses the accused by interviewing them, sometimes more than once (depending on the length of the assessment order). The psychiatrist will prepare a report indicating his/her psychiatric opinion on whether or not the accused is unfit to stand trial or not.

  • Stage three:

    A “fitness hearing” occurs in court. It is like a brief trial, with witnesses and evidence called.

    At a fitness hearing, the judge makes a decision, with the help of the psychiatrist’s opinion, about whether the accused is “unfit to stand trial” or not. The judge will listen to the Crown, the accused’s lawyer, the psychiatrist (either in-person or by reading the report) and the accused.

    The judge, at the end of the hearing, will decide whether the accused is “unfit to stand trial” or not.

   

Mental health:

What does “unfit to stand trial” mean?

“Unfit to stand trial” is defined in the Criminal Code.

It means that the accused person is unable, because of a mental disorder, to defend against the charge(s) they are facing or to tell their lawyer what they want to do with their case. Specifically, “unfit to stand trial” means:

  1. The accused is not able to understand that they are in a courtroom, who the people in the courtroom are (i.e., the judge, the Crown, their lawyer) and why they are there; OR
  2. The accused is not able to understand what they are charged with, what kinds of pleas they can enter (i.e., guilty or not guilty), what can happen to them if they plead guilty, or what can happen if they don’t tell the truth in court; OR
  3. The accused is not able to communicate with their lawyer and tell them, even in basic terms, what they want to do with their case.

If a judge has reasonable grounds to believe that any or all of 1, 2 or 3 are true, a judge will likely order a fitness assessment.   An accused who is not “unfit to stand trial” is usually referred to in court as “fit to stand trial” or simply as “fit.”

The law assumes that every accused person is “fit”, unless it is determined by a judge, after a fitness hearing that the accused is “unfit to stand trial.” This is called the “presumption of fitness” and is in the Criminal Code.

Mental health:

When will a judge usually make a fitness assessment order?

Judges can make a fitness assessment order at any point from the time an accused first appears in court, right up to (or during) sentencing. Most fitness assessments are usually ordered shortly after an accused has made an appearance in bail court.

In fact, if a fitness assessment is ordered, a bail hearing can’t occur until the issue of fitness to stand trial has been decided by a judge. Often, once the accused has appeared in bail court, and the Crown or the accused’s lawyer (or duty counsel) feel the accused may be “unfit to stand trial,” they will be brought in front of a judge to see if a fitness assessment can be ordered. Sometimes, the accused’s lawyer or the accused will ask the judge to make the order. Other times, only the Crown will ask.

In many cases, the accused’s lawyer (or the accused person) and the Crown will ask together. Less often, the judge will make the order after questioning the accused without either the Crown or defence asking for it. If the judge makes an order for a fitness assessment, they will usually send the accused to a secure psychiatric hospital for a period of time.

In some courthouses, there is a psychiatrist available to assess the accused right in the courthouse, so the assessment can occur that same day.

Mental health:

How does a judge determine whether to order a fitness assessment?

In order to decide whether or not there are reasonable grounds to believe the accused is “unfit to stand trial” and order an assessment, the judge or the accused’s lawyer may ask the accused things like:

  • Do you know what you’re charged with?
  • Do you know what the job of the judge is?
  • (Pointing to the Crown) Do you know who that man/woman is?

Remember that it only matters how the accused acts in court in front of the judge, and not at the time of the offence they are said to have committed.

Whether an accused is “fit” or not can change from day to day, or even hour to hour. The accused may only need to show a very basic understanding of the process in order to satisfy the judge that he/she is “fit”. The accused doesn’t even have to act in his/her own best interests in order to be legally “fit”.

Mental health:

How long is a fitness assessment for?

The length of a fitness assessment mostly depends on whether or not the accused agrees with the order.

If the accused agrees with the order (either personally or though his/her lawyer), then the order can be for up to 30 days, not including holidays and the time needed to transport them to and from the place where the assessment happens.

If the accused does not agree with the order (i.e., he or she doesn’t want to be assessed), then the order can only be for up to five days, not including holidays and the time needed for transport. However, a judge can extend a fitness assessment order (either a five day or a 30 day order) for up to 30 more days in order to finish an assessment.

The total time of any assessment order, including any extension, cannot be for more than 60 days (excluding holiday and transport time). In rare cases, a judge can make the original fitness assessment order (i.e. not an extension) for 60 days. On the expiration date of a fitness assessment order, the accused must be brought to court for a fitness hearing. However, if the assessment is finished before the expiration date of the order, the accused will usually be brought to court before the order expires.

Mental health:

Can an accused on a fitness assessment order be forced to take medication or treatment?

No, not unless they agree to it.

However, they may be offered the option of taking medication and/or treatment during the time of their assessment.

People often mistakenly believe that an accused with mental health issues can be ordered by a judge to be treated against their will. However, only accused persons who have been found to be “unfit to stand trial” after a fitness hearing, and are then subject to a treatment order can be treated against their will.

Mental health:

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