APPEAL WATCH: SCC to Opine on Fitness to Stand Trial Test

The Court of Appeal for Ontario (“ONCA”) has re-emphasised that capacity for rational decision-making has no place in the test for fitness to stand trial. In its ruling in R v Bharwani, 2023 ONCA 203 [Bharwani], the ONCA held that fitness to stand trial under s. 2 of the Criminal Code, RSC 1985, c C-46 [Code] does not require an accused person to hold the capacity to make rational decisions in their best interests. The Supreme Court of Canada (“SCC”) has granted leave [40781] for appeal to this case; this appeal offers the SCC its first opportunity to rule directly on the content and scope of the fitness test.

The Case

Factual Background

In January 2023, the appellant, Mr. Mohamed Bharwani, killed another tenant who lived with him in a basement apartment by hitting her with a fireplace poker and strangling her (Bharwani, para 5). He called the police soon after and admitted to killing her (Bharwani, para 21). 

Mr. Bharwani had a long history of mental health challenges leading up to the homicide (Bharwani, paras 15–20). These challenges were also evident in his interactions with police following the homicide, and he was later diagnosed with schizophrenia (Bharwani, paras 4, 21–26). In his pre-trial proceedings, Mr. Bharwani’s fitness to stand trial was brought into question, and he underwent four court-ordered fitness assessments (Bharwani, paras 43–47). In May 2016, Mr. Bharwani was found unfit to stand trial in a fitness hearing, and he was sent to a mental health centre pursuant to a “make-fit” order under s. 672.58 of the Code (Bharwani, paras 48–50). In August 2016, Mr. Bharwani was found to be fit to stand trial in a second fitness hearing, and the trial commenced in January 2017 (Bharwani, paras 52–54). 

Ontario Superior Court of Justice

At the trial’s beginning, McCombs J questioned Mr. Bharwani to test his understanding of the trial and his ability to communicate to the court (Bharwani, paras 54–55; Appendix A). McCombs J commenced the proceedings after finding no evidence that Mr. Bharwani was unfit to stand trial, although he stayed attuned to the issue throughout the trial (Bharwani, paras 57, 59). 

Three forensic psychiatrists testified at trial. Two opined that Mr. Bharwani was unable to know that his act was morally wrong at the time of the homicide and thus should be found not criminally responsible on account of mental disorder (“NCRMD”) (Bharwani, paras 62–63). The third psychiatrist, however, testified that Mr. Bharwani likely was able to know that the homicide was morally wrong (Bharwani, para 57). In light of this and other evidence, the jury found Mr. Bharwani guilty of first-degree murder (Bharwani, para 65). 

Court of Appeal for Ontario

Mr. Bharwani appealed the jury’s decision on three grounds: (1) he was unfit to stand trial; (2) the statements he made to the Crown’s forensic psychologist, an alleged person of authority, were involuntary; and (3) regardless of the success of the first two grounds of appeal, a verdict of NCRMD must be substituted in light of new psychiatric evidence.

In its per curiam decision, the Ontario Court of Appeal (“ONCA”) focused primarily on the issue of Mr. Bharwani’s fitness to stand trial. Here, Mr. Bharwani argued that the test used at both the second fitness hearing and the trial was too strict, and a broader test — one that considered the ability of the accused to rationally make decisions in their best interest — should instead be applied to assess fitness to stand trial (Bharwani, para 11). 

In their analysis of this issue, the ONCA first discussed the current test for fitness to stand trial as articulated in R v Taylor, 1992 CanLII 7412 [Taylor] (Bharwani, paras 79–108). The ONCA, in an attempt to adhere to the meaning intended by Parliament, held in Taylor that the test for unfitness emerges directly from the text of s. 2 of the 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 [emphasis in original]. 

The ONCA in Bharwani thus held that s. 2 constitutes the test for unfitness; the court’s role is not to adopt a new test but instead to apply and interpret that existing statutory test. Therefore, to be found unfit, it must be shown on a balance of probabilities that (1) the accused has a mental disorder that (2) renders them incapable of either conducting an offence or instructing counsel to do so, as evidenced by the enumerated or other analogous (e.g., ability to communicate with the court) indicia. Further, the ONCA held that Taylor allows for purposive application and interpretation of the fitness test in its identification of key values underlying the Code’s s. 2: namely, meaningful presence and meaningful participation in criminal trials. Lastly, the ONCA found that Taylor rejected the approach proposed by Mr. Bharwani in this appeal. In so doing, the court specifically rejected the proposition that an accused must be capable of making rational decisions in their best interests.

Following their analysis of the Taylor decision, the ONCA turned their focus to clarifying the fitness test based on the arguments raised on appeal. First, the court found that the fitness test requires the accused to have both (1) “a reality-based understanding of the nature and object and possible consequences of the proceedings…” and (2) a capacity to make decisions based on an understanding of the options available to them and the possible consequences of each (Bharwani, paras 116, 118). If the accused holds this requisite level of understanding, then it is irrelevant to the fitness test if the accused makes objectively wrong/bad decisions using that understanding. 

Next, the ONCA considered criticisms raised by Mr. Bharwani (as well as case law and academic scholarship) regarding the strictness of the fitness test from Taylor (Bharwani, paras 126–127). They rejected both Mr. Bharwani’s submission that a broader test should be applied to self-represented litigants and the alternative argument that the Taylor decision should be overturned. Specifically, the court affirmed the holding in Taylor that capacity to make decisions in one’s best interests is not a relevant consideration in the fitness test. First, the ONCA cautioned against a broad understanding of unfitness due to the severe loss of liberty potentially experienced by those found to be unfit (Bharwani, para 149). Second, they emphasised the principle that an accused is entitled to control their defence and cautioned against an interpretation of fitness that would grant paternalistic powers to a court (i.e., by granting it the power to declare an accused’s decisions ‘irrational’) (Bharwani, para 156). Third, they pointed to the other supports available to accused persons with mental health challenges (e.g., trial judges; amicus curiae) (Bharwani, paras 158–161). Lastly, they emphasised the need for harmony in standards of competency in different areas of law — a harmony that exists with the current Taylor test (Bharwani, para 166).

In applying the above discussions to the facts of the case, the ONCA found no error in the application of the fitness test in both the second fitness hearing and the trial itself (Bharwani, paras 175–182, 192).

With respect to the second issue — regarding the voluntariness of statements made to the Crown’s psychologist — the ONCA held that there was not enough evidence of involuntariness to place a duty on McCombs J to order a voir dire. There was little evidence to objectively suggest that the Crown’s forensic psychologist was a person of authority over Mr. Bharwani. Additionally, even if the psychologist was in such a position, there was no evidence to suggest that Mr. Bharwani made the statements at issue involuntarily. 

On the third issue — whether Mr. Bharwani’s guilty verdict should be substituted for a NCRMD verdict — the ONCA held that the fresh evidence presented by Mr. Bharwani did not differ in content from that presented at trial and thus could not justify the substitution of a NCRMD verdict. 

Moving Forward: The Supreme Court of Canada

As noted by the ONCA, the central issue in this appeal is the application of the fitness test (Bharwani, para 11). This case thus offers the SCC an opportunity to provide direction to lower courts on this application. Since the introduction of “unfit to stand trial” to s. 2 of the Code (see: An act to amend the Criminal Code (mental disorder) and to amend the National Defence Act and the Young Offenders Act in consequence thereof, SC 1991, c 43), the SCC has not issued a detailed ruling on its interpretation. While Taylor was affirmed in the SCC’s decision in R v Whittle, [1994] 2 SCR 914 [Whittle] — a case that did not deal directly with the fitness of the accused to stand trial — the SCC has not directly or extensively discussed the content of the fitness test. 

Following the precedent set by Whittle, I predict that the SCC in this appeal will closely adhere to the Taylor framework. Additionally, they will likely not import into the test a requirement for the accused to have the capacity to make rational decisions in their best interest. However, the SCC may reverse some of the clarifications made by the ONCA in this case and will likely make some novel changes to the fitness test that will alter its application. Additionally, the SCC may introduce a more structured/detailed test for fitness to give clearer direction to judges making these assessments. Overall, therefore, the precedential value of this case will come through its interpretation of the fitness test.