R. v. Eisnor, 2015 NSCA 64
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[86] Professor Stuart in his text, Canadian Criminal Law, 6th ed (Scarborough, Ont: Carswell, 2011) referred to a number of scholarly examinations of the history of the rule and the rationale for its existence. He summed up the principles as follows:
Modern rationales are said to include the need to ensure the accuracy of the trial, the maintenance of the dignity of the judicial process (presumably against bizarre behaviour in court), the concern that the accused not be punished unless he is aware of what is going on and, finally, the fairness of the trial. The Law Reform Commission advances the rationale of promoting “fairness to the accused by protecting his right to defend himself and by ensuring that he is an appropriate subject for criminal proceedings”. A fitness procedure seems axiomatic if we consider any aim of punishment. What is the point of applying the criminal sanction to one who cannot understand the condemnatory process of trial and sentence?
p. 407
[87] Fish J.A., as he then was, in R. v. Steele (1991), 1991 CanLII 3882 (QC CA), 63 C.C.C. (3d) 149, [1991] J.Q. No. 240, reviewed the leading Canadian authorities and commentary on the issue of fitness. He made clear that insanity for the purposes of fitness to stand trial is entirely different than insanity at the time of the commission of an offence.
[88] Fitness focuses on the accused’s ability to understand the process, the consequences of what is at stake and to rationally communicate in order to participate, to the best of his natural abilities, in his defence. It has nothing to do with the accused’s mental health at the time of the commission of the act or omission that has led to charges.
[89] Justice Fish referenced some of the commentary on the test for fitness to stand trial, including that of Professor Stuart:
Prof. Stuart writes (on. cit., at pp. 325-6):
Judges using different language can only further confuse witnesses and jurors and there is much to commend the recommendation of the Law Reform Commission that uniform criteria be included in the Code:
A person is unfit if, owing to mental disorder:
(1) he does not understand the nature or object of the proceedings against him, or
(2) he does not understand the personal import of the proceedings, or,
(3) he is unable to communicate with counsel.
Since this approach is merely a clarification of the common law, there is nothing to stop judges from resorting to such language at once. Perhaps the third criterion of inability to communicate with counsel is better generalized to an ability to assist in a defence. This formulation includes not only communication but also the ability of the accused to take the stand and also make important decisions that are his and his alone to make, such as the entry of a plea.
Lindsay, despite his criticism of the Law Reform Commission's recommendation, agrees that "Basically, this formulation is a codification of the common law" (supra, at p. 320).
[90] Justice Fish, from his extensive review of the authorities, summarized the relevant principles. In relation to the actual test, he wrote:
5. An accused is incapable of conducting the defence, within the meaning of s. 615 of the Criminal Code, if he or she:
(a) cannot distinguish between available pleas;
(b) does not understand the nature or purpose of the proceeding including the respective roles of the judge, jury and counsel;
(c) does not understand the personal import of the proceedings;
(d) is unable to communicate with counsel, converse with counsel rationally or make critical decisions on counsel's advice; or
(e) is unable to take the stand, if necessary [Note: These principles are mainly drawn from Gorecki (No. 1), pp. 134-5; McIlvride, pp. 356-7; Woltucky, pp. 46-7; Demontigny, pp. 3-5; Budic, p. 278; Wolfson, pp. 314-5; L.R.C. Report on Mental Disorder in the Criminal Process, p. 14; Don Stuart, op. cit., p. 326.].
[91] The language suggested by the Law Reform Commission of Canada, quoted above, formed the basis of the 1991 legislative package that created Part XX.1 of the Criminal Code. For the first time, fitness was statutorily defined. For ease of reference, I will repeat the provisions of s. 2 of the Criminal Code:
"unfit to stand trial" means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to
(a) understand the nature or object of the proceedings;
(b) understand the possible consequences of the proceedings, or
(c) communicate with counsel;