Top court affirmed and clarified test from Ont. CA, finding accused fit to stand trial
Interpreting the Criminal Code’s definition of “unfit to stand trial” for the first time, the Supreme Court of Canada ruled on Friday that an accused is fit to stand trial if they can make and communicate “reality-based decisions” to defend themselves – even if those decisions are not always in their best interests.
Based on this interpretation, the high court dismissed an accused’s appeal of his first-degree murder conviction.
Being fit to stand trial “necessitates a reality-based understanding of the nature or object and possible consequences of [court] proceedings, as well as an ability to understand the available options and their consequences, and to select between those options when making decisions,” the high court said in a 6-3 ruling.
“The accused is not required to make decisions in their best interests, but cannot be overwhelmed by delusions, hallucinations, or other symptoms of their mental disorder when making and communicating these decisions.”
Justice Michelle O’Bonsawin wrote the opinion for the majority. Justices Andromache Karakatsanis and Sheilah Martin co-authored the dissent. Justice Mary Moreau joined the dissent.
The case involves Mohamed Adam Bharwani, who had a history of mental health challenges dating back to his adolescence. In early 2012, Bharwani went to a medical clinic to report that he was having intrusive thoughts and vivid dreams, and was referred for a psychiatric assessment. Four days later, he attacked and killed his roommate. He turned himself in to the police.
Bharwani’s mental health fluctuated during pre-trial proceedings, raising several concerns about his fitness to stand trial. He discharged his counsel and chose to represent himself, leading the court to appoint an amicus curiae.
A jury found that he was fit to stand trial. Three forensic psychiatrists found that Bharwani had symptoms of schizophrenia. However, one of the psychiatrists, whom the Crown called on, found that Bharwani could appreciate the nature and quality of his actions. A jury convicted him of first-degree murder.
Bharwani appealed his conviction with the Ontario Court of Appeal and filed a motion to introduce fresh evidence from two new psychiatrists who could speak to his fitness to stand trial. The appellate court dismissed both the appeal and the motion, affirming its 1992 decision in a case called R. v. Taylor, which found that the key question in determining whether an accused is fit to stand trial is whether a mental disorder impairs them to the extent that they cannot understand the nature or consequences of the proceedings.
The OCA also affirmed that being fit to stand trial requires the accused to be capable of communicating rationally, either with counsel or with the court.
Bharwani appealed the OCA’s finding to the SCC and again brought a motion to introduce new evidence from the two psychiatrists.
The SCC majority sided with the OCA, with O’Bonsawin writing that the majority agreed with the fitness to stand trial test outlined in Taylor, “subject to certain elaborations and clarifications.”
O’Bonsawin wrote that while the Criminal Code’s definition of “unfit to stand trial” refers to an inability to conduct a defence “at any stage of the proceedings,” courts must assess this inability holistically and recognize that an accused’s mental health may fluctuate.
“Transient mental health symptoms do not necessarily compromise an accused’s ability to conduct a defence,” the justice wrote, adding that “the primary consideration is always assessing the extent to which an accused’s mental disorder impairs their understanding of reality when making decisions in their defence.”
O’Bonsawin said an accused can be considered capable of conducting a defence even if they made ineffective or unwise decisions.
“That an accused may make objectively poor decisions in the conduct of their defence is irrelevant to the issue of their fitness to stand trial,” the justice said. “The fact that an accused is ‘unable’ to mount a defence due to being legally untrained, unsophisticated, or driven by motivations unrelated to the truth-seeking function of the trial (such as vengeance, religious devotion, or obstruction) plays no role in the inquiry.”
The justice noted that Friday’s decision represents the first time the high court has interpreted the Criminal Code’s “unfit to stand trial” provision since its enactment in 1991.
O’Bonsawin also denied Bharwani’s motion to introduce fresh evidence from two psychiatrists, stating that the conclusions from one of the psychiatrists were at odds with the trial record, and that evidence from the other psychiatrist presented no new information that would impact the case.
In their dissent, Karakatsanis and Martin wrote that while they agreed with the majority on the accused’s fitness to stand trial, they believed that the fresh evidence Bharwani sought to introduce “provides new, cogent reasons to doubt the safety of the jury’s verdict that the appellant was criminally responsible for his actions at the time of the killing.”
The justices said the evidence should be admitted and that they would order a new trial.
Karakatsanis and Martin noted that the psychiatric expert whom the Crown relied on at trial was the only expert in the case who concluded that Bharwani was capable of knowing that his actions were morally wrong.
The two other psychiatrists who presented evidence at the trial, and two others appointed by the Crown and the defence, determined that the accused was not criminally responsible.
“For the first time before this Court, the appellant tenders troubling fresh evidence – in the form of transcripts of testimony in other proceedings – impugning the professional competence of the critical psychiatric expert witness called by the Crown at trial,” the justices said.
“Most notably, he admitted that he has a standard practice of copying and pasting sections of his psychiatric reports from reports he previously created for other people,” the justices said. “This process led him to submit evidence, in at least one proceeding, containing grave errors.”
The justices said fresh evidence could cast doubt on the jury’s verdict and “could provide a reasonable, correctly instructed jury with new, cogent reasons to doubt the opinion put forward by this essential witness for the Crown.”
In a statement to Canadian Lawyer on Friday, Delmar Doucette of Furgiuele Law, one of the lawyers who represented Bharwani, said he was disappointed with the majority’s opinion.
However, he said that “although the court substantially reaffirms what has been known for the past three decades as The Taylor Test for unfitness to stand trial in a criminal case, we believe that the court has provided an expansion of that test for unfitness that will provide greater fairness to mentally ill criminal defendants.”
Doucette said the minority’s opinion also provides “greater fairness to mentally ill criminal defendants” by arguing to widen the scope of the “not criminally responsible” defence.
“Last, we are pleased to see, on an issue not addressed by the majority, the minority’s reiteration that an appeal is to be allowed where a verdict is ‘unsafe’ and thus a miscarriage of justice that requires a new trial,” he added.
A spokesperson for the Attorney General of Ontario said the ministry is reviewing the decision.
