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In a criminal court, a trial is where the Crown and the accused’s lawyer present evidence and make arguments to a judge to determine if the accused is guilty of a criminal offence. The accused is always innocent until proven guilty, and the Crown has to prove its case ‘beyond a reasonable doubt.’ Criminal trials can be short, taking only a couple of hours, or very long, taking several months or longer to complete.

What is a fitness hearing?

A fitness hearing is like a short trial where a judge decides whether or not an accused is “unfit to stand trial”. This occurs after the accused has been assessed by a psychiatrist, and has returned to court.

Unlike an actual criminal trial, it is only necessary to prove the accused is unfit to stand trial on a “balance of probabilities,” and not “beyond a reasonable doubt.” A “balance of probabilities” basically means “more likely than not.” If the accused does not have a lawyer, sometimes a judge will appoint a lawyer to represent them at a fitness hearing. If the accused does not want a lawyer, the judge can still appoint a lawyer to assist the court with the hearing, even if they are not directly representing the accused.

At a fitness hearing, witnesses are called to give evidence by testifying in court. In many fitness hearings, the psychiatrist who assessed the accused will testify. However, in some cases the psychiatrist will not testify in person, but the report that he/she produced will be filed as an exhibit. Quite often, the accused will also testify. After the judge has heard all the evidence at the hearing, they will ask the Crown and the accused’s lawyer (or the accused themselves) to make submissions on whether or the accused has been proven to be “unfit to stand trial.” Submissions are an argument made by the lawyers that summarize the evidence and try to convince the judge to accept their position. After hearing the submissions of the lawyers, the judge will make a decision (often called a ruling) on whether or not the accused has been shown, on a balance of probabilities, to be unfit to stand trial or not.

Mental health:

What happens if an accused is found “unfit to stand trial” after a fitness hearing?

If an accused is found unfit to stand trial after a fitness hearing, the regular criminal law process remains on hold.

An accused person who is unfit to stand trial is often in a difficult position, as they are unable to move forward and deal with the charge(s) by setting a trial date or pleading guilty, and they are usually not eligible for bail. It is possible, under the Criminal Code, for the judge to refer an unfit accused to something called the Ontario Review Board but it is much more common for the Crown (or the accused’s lawyer) to seek an order from the judge called a treatment order.

Mental health:

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