It has been a generally accepted legal principle in English common law that incompetent defendants should not be allowed to proceed with a trial (1–3). To have a fair trial in Canada, criminal defendants must be able to understand the nature of the proceedings and assist counsel. If, because of mental disorder, an individual is unable to participate in his or her own defence, he or she may be found unfit to stand trial. Judicial proceedings will then be suspended until the individual becomes fit. Until recently, unfit defendants were committed to inpatient facilities for an indeterminate period until they became fit.

In 1992 the Criminal Code of Canada (4) was revised, and the changes affected legal procedures related to the determination of fitness to stand trial as well as those related to criminal responsibility. Section 2 of the Criminal Code defines the term “unfit to stand trial” as follows:

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.

Manuscript received June 2000, revised, and accepted March 2001.
¹Assistant Professor, Department of Psychology, University of Alabama, Tuscaloosa, Alabama.
²Professor and Director, Mental Health Law and Policy Institute, Simon Fraser University, Burnaby, British Columbia.
³Graduate Student, Department of Psychology, Simon Fraser University, Burnaby, British Columbia.
Address for Correspondence: Dr PA Zapf, Department of Psychology, University of Alabama, Box 870348, Tuscaloosa, AL 35487-0348

The Assessment of Fitness

Traditionally, the courts have relied upon mental health professionals—both psychiatrists and psychologists (although in Canada a physician must write the report to court)— to assess fitness to stand trial. Although an assessment report to the court recommends that a particular individual be found fit or unfit, it is the court, however, that finally determines fitness. For fitness assessments to be conducted uniformly throughout the country, it is important to have consistent criteria for evaluating how the presence of a mental disorder affects an accused’s participation in his or her own defence, specifically, with respect to the 3 psycholegal abilities outlined in Section 2 of the Criminal Code. It is common for an individual with a mental disorder to be found fit to stand trial. Roesch and others found that, while nearly all defendants who had been found unfit to stand trial had some form of psychosis, almost one-third of those found fit to stand trial were also considered to suffer from psychosis (5). Presence of a mental disorder is a necessary but not a sufficient condition to determine that a defendant is unfit (6): it must be demonstrated that the mental disorder affects the accused’s performance on 1 or more of the 3 psycholegal abilities defined above.

Since 1992, there have also been finer distinctions made with regard to these 3 psycholegal abilities. The Ontario Court of Appeal decision in Regina v Taylor indicated that the “test to be applied in determining the accused’s ability to communicate with counsel is one of limited cognitive capacity” (7, p 553).