NCJ Number
62202
Journal
UNIVERSITY OF TORONTO FACULTY OF LAW REVIEW, 35 Issue: 1 Dated: (SPRING 1977) Pages: 1-25
Date Published
1977
Length
25 pages
Annotation
STATUS FOR PROCEDURES TO DETERMINE FITNESS TO STAND TRIAL IN CANADA, PARTICULARLY IN ONTARIO, ARE SURROUNDED BY AMBIGUITY.
Abstract
PROVISIONS FOR REMAND OF THE ACCUSED FOR PSYCHIATRIC EXAMINATION CONTAINED IN THE CRIMINAL CODE AND MENTAL HEALTH ACT, ARE USUALLY ORDERED BY THE COURT BEFORE THE ISSUE OF FITNESS IS TRIED. A SUBSTANTIAL MAJORITY OF THOSE REMANDED ARE ULTIMATELY FOUND FIT TO STAND TRIAL. ONLY STATUTORY PROVISION FOR A TRIAL OF FITNESS STATES THAT THE ISSUE MAY BE RAISED AT ANY TIME BEFORE THE VERDICT AND THE TRIAL JUDGE RETAINS DISCRETIONARY POWER TO DELAY TRYING THE ISSUE. RECENT AMENDMENTS PROVIDE THAT FITNESS MUST BE TRIED BEFORE AN ALLEGEDLY UNFIT DEFENDANT IS ALLOWED TO PRESENT HIS DEFENSE AND A VERDICT OF UNFITNESS MEANS SUSPENSION OF THE TRIAL AND INDEFINITE DETENTION OF THE ACCUSED IN CUSTODY. NOT ONLY MAY THIS PROCEDURE RESULT IN LONG-TERM IMPRISONMENT OF AN INNOCENT PERSON BUT THE PASSAGE OF TIME MAY ALSO SERIOUSLY JEOPARDIZE THE DEFENSE'S CASE WHEN AND IF IT IS ULTIMATELY PRESENTED. ALTHOUGH CASES HAVE BEEN APPEALED BECAUSE OF A FINDING OF UNFITNESS, NONE HAVE APPEALED THE JUDGE'S TRIAL OF FITNESS DECISION ITSELF AS AN INCORRECT EXCERCISE OF DISCRETION. THE TEST OF FITNESS IS HELD TO DETERMINE WHETHER THE ACCUSED IS UNFIT TO STAND TRIAL ON ACCOUNT OF INSANITY. THIS WORDING SEEMS TO EQUATE FITNESS TO STAND TRIAL WITH CAPACITY TO CONDUCT ONE'S DEFENSE AND THE IMPLICATION IS THAT INSANITY BY ITSELF WILL NOT AMOUNT TO UNFITNESS. THE CRITERIA OF FITNESS INVOLVE UNDERSTANDING OF THE PROCEEDINGS, ABILITY TO INSTRUCT COUNSEL, CHALLENGE JURORS, EXAMINE WITNESSES, AND DISTINGUISH BETWEEN THE PLEAS AVAILABLE. WHILE INSANITY IS UNDERSTOOD BY THE PSYCHIATRISTS TO MEAN PSYCHOSIS, THE LAW HAS TRADITIONALLY APPLIED THIS LABEL TO A VARIETY OF DISORDERS FALLING OUTSIDE THE MEDICAL DEFINITION. THE ONUS OF PROOF OF FITNESS RESTS WITH THE PROSECUTION. WHEN THE RESULTS OF A FITNESS TRIAL ARE POSITIVE, THE TRIAL OF THE GENERAL ISSUE PROCEEDS WITHOUT DELAY. A FINDING OF UNFITNESS SHOULD RESULT IN THE SPEEDY REMOVAL OF THE ACCUSED TO A PSYCHIATRIC FACILITY, BUT THE CODE IS VAGUE, AND THE POSSIBILITY EXISTS THAT SUCH AN ACCUSED PERSON MAY SIMPLY REMAIN JAILED