Fitness to stand trial in Canada in light of the recent criminal code amendments

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International Journal of Law and Psychiatry, Vol. 17, No. 3, pp. 319-329, 1994 Copyright 0 1994 Elsevier Science Ltd Printed in the USA. All rights reserved

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Fitness to Stand Trial in Canada in Light of the Recent Criminal Code Amendments

Simon Davis*

Introduction

The idea of fitness to stand trial concerns the principle that it is unfair to try a criminal defendant who, because of mental disorder, is not able to comprehend the nature or consequences of the court proceedings. While in theory this is a laudable principle, in practice the situation of persons considered to be unfit to stand trial has been a matter of some concern to the legal and mental health professions in Canada. The relevant provisions in the Criminal Code have been considered by many to be inadequate and outdated (Verdun-Jones, 1981). Briefly, it has been argued that the Criminal Code provisions did not ade- quately protect the civil rights of accused persons, and did not give sufficient direction to the clinicians responsible for assessing fitness. More specifically, fitness assessments could result in unnecessary and inordinate detention of accused persons, the possibility of self-incrimination during assessment, and ultimately - for those found to be unfit after assessment-an indeterminate, in-custody disposition under a Warrant of the Lieutenant Governor (WLG). As well, the Criminal Code was very vague with respect to what standards should be applied in determining fitness.

Amendments to the Criminal Code provisions for mentally disordered offenders have been discussed for a number of years (Law Reform Commission of Canada 1975, 1976, 1986). The Code was finally changed when Bill C-30 was passed by the House of Commons in 1991 and implemented in February, 1992 (although a few of the provisions have been postponed because of admin- istrative reasons). Bill C-30 makes a number of significant changes to the Criminal Code, including the provisions for assessment and disposition of persons considered to be unfit to stand trial. In this paper I will take a critical look at how the issue of fitness has been addressed in the new Code in light of the problems apparent in the old Code. References to the “old” and “new” Code will thus indicate the law before and after the implementation of Bill C-30. In doing this, I will try to utilize a dual perspective, that is, a consider-

*School of Criminology, Simon Fraser University, Burnaby, B.C., V5A lS6, Canada.

319

320 SIMON DAVIS

ation both of the rights of the accused persons and of the concerns -regarding procedural and substantive issues - of forensic clinicians.

The paper shall follow the sequence of events as they arise for accused persons in this process: the raising of the issue of fitness at court, the assessment of the accused’s mental state, the determination of fitness according to legal and clinical standards, and finally the disposition given to persons found to be unfit to stand trial.

Raising the Issue of Fitness

There has been concern about the prosecution’s ability to raise the issue of fitness against the wishes of the defence, and possibly in the absence of a strong prosecution case (Verdun-Jones, 1981). Once raised, pursuing the question of fitness could result in a loss of liberty for the accused. As well, Ogloff (1991) found in his survey of British Columbia defence counsel the concern that fitness remands were being used by the Crown as “fishing expeditions,” to buy time and “gain more information about the accused that may be useful in the trial” (p. 22).

There were some protections in the old statute: section 615(5) (a) stated that “where the issue arises before the close of the case of the prosecution the court . . . may postpone directing the trial of the issue until any time up to the opening of the case for the defence.” And, section 615(8) stated that if the accused were acquitted at the close of the prosecution’s case, the issue of fitness would not be tried.

Critics have argued that provisions for postponing the issue of fitness did not go far enough: in 1976 the Law Reform Commission argued that the fitness issue should not be heard until after the full trial on the merits so that the accused could present a defence. If found innocent, the fitness issue would not be tried; if guilty, a fitness hearing would follow the “conditional” verdict. The Law Reform Commission (1976) however gave the judge the discretion not to postpone the fitness issue if defence counsel were not able to demonstrate a viable case (p.16). Lindsay (1977), on the other hand, argued for postponement until the accused had had “an unqualified right to present his defence” (p. 345).

There have been objections to the idea of holding a full trial, the main argument being that, if the accused is unfit, how can he or she make a proper defence? Roesch (1977) has argued that such a practice would avoid unnecessary fitness remands and also provide an “in situ” method for assessing fitness. However, in a survey of British Columbian judges, Crown Counsel, and defence lawyers there was found to be little support for the provisional trial idea (Eaves, Roesch, Glackman & Valiance, 1982).

What of the new Criminal Code? Under section 672.25(2)(b) the court may postpone the issue of fitness “until a time not later than the opening of the case for the defence or, on motion of the accused, any later time that the court may direct.” This would seem to indicate that the issue can be postponed until the close of the defence’s case, or until the verdict. Thus, in theory we now have a situation where a provisional trial with a conditional verdict could take place. Whether judges will elect to use this option, given an apparent reluctance to postpone the issue (Mohr, 1978) is another matter.

FITNESS TO STAND TRIAL IN CANADA 321

In practice the issue of fitness usually arises at preliminary hearing, not trial (Grant, unpublished). Postponing the issue at this point is not addressed in the old Code. The new Code states that at preliminary hearing the issue may be postponed until the end of the case for the prosecution (s. 672.25(2)(a)). Thus, there may be a grater burden on the prosecution to make aprimafacie case at this point.

In the case of summary offenses, the prosecution’s ability to request a psychiatric assessment (for fitness) is limited in the new Code : The court may order the assessment only if “the accused raised the issue of fitness” (s. 672.12(2)(a)) or if “the prosecutor satisfies the court that there are reasonable grounds to believe that the accused is unfit” (s. 672.12(2)(b)). In practice, it may not be difficult to come up with “reasonable grounds”. While the prosecutor’s ability to raise the issue is limited, the judge’s, apparently, is not (the two limiting subsections above apply only to the prosecution).

Remand for Psychiatric Assessment

1. Threshold for Remand. Fitness assessments under the old Criminal Code were carried out during a 30 day, court-ordered psychiatric remand. Given the negative consequences that could result from the fitness assessment process, there has been concern expressed that the threshold for deciding to order a psychiatric remand was too low, i.e., it was too easy to “dispose” of accused persons by this route (see Ogloff, 1991). In the old Criminal Code a person could be remanded for psychiatric assessment at preliminary hearing if there was “reason to believe (that he or she) may be mentally ill” (s. 537, italics added).

In the new Code the question of threshold is still somewhat vague: The Code speaks of reasonable grounds being needed to order a fitness assessment (672.11). However, since the standard of proof for determining unfitness - now given in the Code-is on the “balance of probabilities” (a low standard) we may presume that a great degree of mental impairment and/or unfitness will not be necessary to order an assessment, i.e., the threshold may well still be low.

2. Purpose of Remand. In the old Criminal Code the remand order made no reference to fitness, only to mental illness. Thus, a person could be remanded for fitness assessment; (a) on the basis of a possibility of mental illness, and (b) without any reference to how the apparent illness was impairing his or her fitness (although, in practice, point (b) was usually relevant). Because of this, legal and clinical personnel have complained that the purpose of the remand was too vague (Addington 8z Holley, 1987).

Although the implicit purpose of the remand was to assess fitness, it has been found that clinicians may comment on other issues in the remand; for instance Menzies (1989) in Toronto found forensic clinicians, in their reports, commenting on dangerousness and even sentencing recommendations (at the pre-trial stage).

Clinicians may complain that the courts are partly to blame, and that “judges

322 SIMON DAVIS

are not clear or precise about what they expect from psychiatrists” (Owens, Rosner & Harmon, 1985, p. 390). Standardized referral forms may be helpful: Such forms exist already in the British Columbia Forensic Psychiatric Services.

In the new Criminal Code, fitness (not merely mental illness) is explicitly stated as the reason for ordering the assessment: “A court . . . may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine whether the accused is unfit to stand trial (s. 672.1 l).” Further, an actual form now exists (“form 48”) upon which a judge or justice “ . . . must specify the service that or the person who is to make the assessment, or the hospital where it is to be made. (s. 672.13).” One can hope, then, that the purpose of assessment, and consequently the issues addressed by clinicians, will be more specific.

3. Treatment to Restore Fitness. Under the old Criminal Code there was no authorization to involuntarily treat persons remanded for fitness assessments. The usual practice has been to certify the person, if necessary, under the provincial mental health act. A justification for this, in the case of fitness assessments, is that the person may have fitness restored more quickly by treating the psychiatric symptoms with medication. Thus, the person will spend less time in custody than might be the case otherwise.

The new Criminal Code addresses treatment more explicitly. In the case of assessment orders, s. 672.19 states that: “No assessment order may direct that psychiatric or any other treatment of the accused be carried out, or direct the accused to submit to such treatment.” The interpretation of this passage is not clear; while it would seem to be discouraging involuntary treatment, the forensic administrators the author interviewed offered the view that the provision merely restricts involuntary treatment under federal legislation (i.e., the Crimi- nal Code, and that treatment (which, after all, is a provincial jurisdiction) may still be imposed under provincial legislation (i.e.g, the mental health act). It is notable, however, that while treatment may not be ordered as part of a court-ordered assessment, it may be ordered by the courts for persons found to be unfit after the assessment (this is discussed further below).

4. Duration of Assessment. In the old Criminal Code a remand for psychiatric assessment was for (a maximum of) 30 days, although this could be extended to 60 days. The person could be returned to court in less than 30 days, however, Lindsay (1977) suggests that the practice in Canada has been to use the full assessment period. This practice has been criticized since it meant that accused persons, who were often found fit, would be denied bail for an inordinate length of time; Roesch and colleagues (Roesch, 1977; Roesch & Golding, 1979, 1980) have argued that most fit persons can be found so in very brief, out-of-custody assessments.

In the new Code the assessment period to determine fitness has (apparently) been reduced to 5 days (s. 672.14(2)). However, section 672.14(3) permits the court to lengthen the assessment period to 60 days where “compelling circumstances exist.” Some forensic clinicians I spoke to were concerned that a 5 day period was insufficient to do a proper assessment, and, crucially, insufficient to treat a person to restore them to fitness. If this is the case, and


assessment periods are consequently extended, it may mean that, in practice, persons will be spending about the same time under assessment regardless of the changes in the Code. (Interestingly, this phenomenon seems to have already occurred in civil commitment procedures where initial brief emergency assessments may be automatically extended: see Robertson [ 1987. p. 3241. p. 3241.)

5. Location of Assessment. The old Criminal Code did not require that assessments be done in custody (i.e., at a secure facility), but in practice this was usually the case (Grant, unpublished). This was justified by arguing that mentally ill persons are not good at keeping office appointments, that inpatient status allows for better observation, that treatment is easier to administer, and that the “public is protected”. One can see that this is a somewhat discrimina- tory practice (given the “equality provisions” in section 15[1] of the Canadian Charter of Rights) in that “normal” persons might often be granted bail for similar offenses (Roesch, Eaves, Sollner, Normandin & Glackman, 1981).

In the new Code the onus is apparently on the Crown and forensic clinicians to use out-of-custody assessments or argue that in-custody status is necessary (s. 672.16). As with the shorter assessment (see above), some forensic personnel are concerned about the logistical problems that outpatient assessments may present, notwithstanding the literature supporting the feasibility of outpatient forensic assessments (e.g., Grisso, 1986). The logistical problems may be more acute in rural and outlying areas which lack outpatient facilities. On the other hand, it may be that, in practice, it will not be difficult to convince the court of the necessity of secure custody and that it will be routinely granted. At this point in time one can only speculate on the outcome.

6. Self-incrimination. Under the old law, statements made by an accused person to a clinician during a fitness remand could be used against them at a subsequent trial. The Code did not require that the person be warned of this fact, although by “in-house policy,” agencies (such as the British Columbian Forensic Commission) could take it upon themselves to provide the warning. There has been some concern about this serious deficiency in the law, particularly on the part of defence lawyers who have perceived the psychiatric remand as a prosecution ploy to gain information that may be useful at trial (Ogloff, 1991).

The new Code explicitly addresses this matter in section 672.21. In this section it is noted that any statement made during an assessment “to the person specified in the assessment order . . . or to anyone acting under that person’s direction” is “(in)admissable in evidence, without the consent of the accused, in any proceeding before a court.” There are exceptions: a protected statement is admissable if it is used to help determine the person’s fitness; further, a statement is admissable if it contradicts a statement made by the accused later at court.

Criteria for Determining Fitness

I. Defining “Insanity”. Section 615(l) of the old Criminal Code talked about unfitness “on account of insanity”. The problem here is that there was no definition of the term insanity (as it related to fitness) in the old Code (Verdun-

324 SIMON DAVIS

Jones, 1989). Further, there is some judicial authority that the insanity in section 615 is not the same as the insanity in the old section 16 (not guilty by reason of insanity) (Lindsay, 1977, p. 308).

Historically there has been considerable debate as to how broadly insanity (in the context of fitness) should be defined. Schiffer (1978) notes that while insanity is usually defined by psychiatrists (in the present era) as meaning psychosis, historically, persons could be unfit due to insanity if they were deaf-mute, unable to communicate, or of low intelligence (see also Grubin, 1991). This raises the questions: What if the unfitness is due to non-psychiatric reasons (however one wants to define the term)? Rogers & Mitchell (1991, p. 94) review two recent Canadian cases where the conclusions were that the defendants could not be considered unfit due to insanity, in one case for a brain damaged person and in another for a mentally retarded deaf-mute. The Law Reform Commission of Canada has touched upon this mater and stated that neither cultural or language barriers (L.R.C.C., 1975) nor amnesia (L.R.C.C., 1976) are sufficient justifications for a finding of unfitness. Prob- lematic cases, for instance involving mentally retarded or brain damaged persons, remain unresolved (and are not addressed in the new Code). These sorts of cases are particularly troubling in that the accused persons may never regain fitness.

In the new Criminal Code unfitness on account of insanity has been replaced with unfitness “on account of mental disorder” (s. 2); mental disorder is defined as “a disease of the mind” (s. 2). This definition remains rather vague, and there will likely continue to be disagreements in interpretation; nonethe- less, one may presume that the intent seems to be to remain congruent with (narrower) psychiatric conceptions of mental disorder, and away from condi- tions such as deaf-mutism or mental retardation as causes of unfitness.

2. Legal Ability. The old Criminal Code had no standards by which to evaluate an accused’s legal ability other than to say that he/she could be unfit if “[inlcapable of conducting his defence” (s. 615). With a lack of standards, clinical opinions about what constituted unfitness could be idiosyncratic. Some clinicians, for instance, may wrongly assume that the presence of mental disorder automatically indicates unfitness (Roesch & Golding, 1980). There may be inconsistencies not only between individual clinicians but between systems as well. Webster, Menzies & Jackson (1982) report on a study that found strik- ingly different rates for assessed persons being found unfit between four Cana- dian cities. While standardized fitness assessment instruments do exist, these are apparently not commonly used in Canada (Rogers, Gillis, McMain & Dick- ens, 1988).

Prior to Bill C-30 fitness standards were derived from case law decisions. The Law Reform Commission of Canada (1986) suggested that these standards be explicitly spelled out in revisions of the Code. This has, in fact, taken place, and the new Code (s. 2) states that an accused may be unfit if unable to:

1. understand the nature or object of the proceedings, 2. understand the possible consequences of the proceedings, or 3. communicate with counsel.


The new Code also contains a standard of proof, i.e., unfitness is established on the “balance of probabilities”.

With these standards in place it may be that fitness assessments will be more reliable. On the other hand, it can be seen that the standards provide a rather rough guide; as well, fitness is arguably a relative concept, with criteria varying according to the complexity of the trial (Coles & Pos, 1985).

3. Presumption of Fitness. The new Code states that the accused is pre- sumed fit to stand trial (s. 672.22). This presumption was not addressed in the old Code (unlike the presumption of sanity regarding insanity defenses in the old s. 16). This may represent a raising of the standard‘of unfitness, which, in theory, would mean fewer people found unfit; whether it has any practical effect, particularly in light of the fact that unfitness is judged only on the balance of probabilities, remains to be seen.

4. Burden of Proof. Section 672.23(2) of the new Code states that the burden of proof (that a person is unfit) is on the party that raises it. This matter was not explicitly addressed in the old Code. As with presumption of fitness, this could be interpreted to mean the prosecution would have a harder time demonstrating an accused’s unfitness; in practical terms, however, it may be that the “burden” is not that onerous.

Disposition of Persons Found Unfit

Prior to the Bill C-30 revisions, there was little room for discretion in the Criminal Code concerning the disposition of persons found unit to stand trial. If a person was found unfit, and the Crown elected not to stay charges, the usual outcome was an automatic, indeterminate detention under a Lieutenant Governor’s Warrant (s. 615(7)). While periods of detention varied, this meant in theory that an accused person could spend a lengthy period incarcerated for a relatively minor offense. The Emerson Bonnar case, where the defendant spent 16 years in jail following an alleged purse snatching (Savage & McKague, 1987) is perhaps the most infamous example.

The response of the Law Reform Commission (1975) was to recommend “that a finding of unfitness not always lead to detention and that there be a range of dispositional alternatives, some involving little or no deprivation of individual freedom” (p. 41). The changes in the Code concerning the dispositions of persons found unfit will be briefly reviewed below.

1. Review Boards. Under the new Code, review boards are mandatory, which was not the case in the old Code (although most provinces did have them). The role of the lieutenant governor (or provincial cabinet in most cases) in approving review board release decisions has been eliminated. This was considered necessary in that accused persons did not have access to the lieutenant governor, whose release decisions could be politically based (Harris, Rice & Cormier, 1991).

32s SIMON DAVIS

2. Deposition Hearings. Under the new Code a disposition hearing follows initial and subsequent findings that the accused is unfit. The initial hearing may be held by the court, but where the court, in fact, makes no disposition it must be held by the review board. If a ~sposition is made by the court, it is in effect for only 90 days, at which point the review board picks up the case. If the court makes no disposition, the review board must do so within 45 days.

At a disposition hearing the review board may conclude that the person is now fit to stand trial, aud so will be sent back to court. The accused may also be sent back to court, even if fitness is unclear, if the review board chairman feels a disposition will not be made within a “reasonable period” (s. 672.48(3) (b)).

3. Terms of Deposition. The new Code notes that review boards, in making dispositions, should take into account public protection, the reintegration of the accused into society, and the mental condition of the accused, but should also make the “least onerous and least restrictive” dispositions (s. 672.54).

Essentially, for unfit persons, there are three choices: conditional discharge, detention in a hospital, or a treatment order. The treatment ordered (s. 672.54(c)) apparently does not have to be on an inpatient basis. Treatment can only be ordered to restore fitness and only for a 60 day maximum. By ordering treatment or hospital detention, the board delegates authority over the accused’s liberty to the clinician, however, if the person so delegated increases restrictions on the accused, he or she must notify the review board if the restrictions are in force for more than 7 days (s. 672.61(2)(a)).

Dispositions must be reviewed at least once a year (s. 67281(l)) or more frequently at the request “of the accused or any other party” (s. 67282(l)).

4. Capping Dispositions. In the new Code, disposition lengths for unfit persons have been capped: life, if the charge is murder (or any other offense where minimum punishment is life imprisonment); for indictable offenses, 10 years or the maximum period the accused could be sentenced for the offense, whichever is less; for other offenses, 2 years or the m~mum sentence, whichever is less. While this is an improvement over the previous policy of indeterminate detentions, it could still mean an inordinate period of detention bearing in mind that the accused has not been tried or found guilty of the offense.

5. Appeals. Under the old Code an accused could appeal, to the court of appeals, against an initial verdict by the court that he or she was unfit to stand trial (s. 675(3)(a)), but could not appeal subsequent review board decisions that the person was still unfit. This is different than the civil commitment situation, where provision for appeal of review board decisions is cont~ned in some provincial mental health acts (Robertson, 1987). In the new Code this is changed: “Any party may appeal against a disposition or placement decision made by a court or Review Board to the court of appeal” (s. 672,72(l)). Further, the appeal is to be heard “expeditiously” (note to s. 672.72(3)). Nota- bly, filing an appeal dictates that any treatment ordered to restore fitness (under s. 672.54) be ~to~atical~ suspended (s. 672.75).

In responding to the appeal, however, the appeal court judge is given consid-


erable discretionary powers. For instance, where treatment of an unfit person has been suspended pending appeal, this can be overturned if, upon receipt of an application by “any party” (s. 672.76(l)), the judge is satisfied that “the mental condition of the accused justifies it” (s. 672.76(2)). As well, even if a disposition/placement decision is found to be based on a wrong decision on a question of law, an appeal can be dismissed if “the court finds that no substantial wrong or miscarriage of justice has occurred” (s. 672.78(2)(b)). Finally, it is notable that even when an appeal is allowed the disposition/placement may not be overturned, but rather the matter may be referred back to the review board for rehearing (s. 672.78(3)(b)).

6. Onus on Prosecution. Section 672.33 of the new Code dictates that the prosecution must be able to make a prima facie case against an accused found unfit to stand trial every 2 years, or more frequently upon application of the accused. Following such an inquiry, if evidence against the accused is insufficient to make a viable case, “the court shall acquit the accused”.

Conclusions

It seems fair to say that the civil rights of accused persons, where fitness to stand trial is an issue, are better protected in canada under the new legislation. The new Criminal Code provisions have redressed some of the aforementioned concerns about arbitrary assessment, self-incrimination, inordinate time in remand, unnecessary detention, indeterminate dispositions, and lack of an appeal process. Some scope for prosecutorial and judicial discretion does remain, however.

What has happened in Canada, regarding fitness law, has some parallels with what has happened in the United States. Concerning standards of legal ability, the standard now in the Canadian Criminal Code (described earlier) has some similarities with the standard suggested in the 1960 US Supreme Court Decision Dusky v. United States (Roesch & Golding, 1980). With respect to limiting the detention of unfit defendants, the U.S. Supreme Court addressed this matter in the 1972 case Jackson v. Indiana, where it was stated that an unfit person “cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future” (quoted in Roesch & Golding, 1979). Two things are, however, notable about the Jackson decision: While it talks of a “reasonable period”, it does not-in contrast to the Canadian law - put definite caps on the detention/disposition. A second point is that, apparently, many states have not enacted legislation consistent with Jackson and may hold unfit defendants for lengthy periods (Davis, 1985). In looking at the situation in England and Wales, recent changes to the mental health statutes provide for out-of-custody dispositions for unfit persons. Prior to this change in the law, the system of dispositions for unfit persons in England and Wales was similar to the situation that existed in Canada prior to Bill C-30.

It is notable that the changes in the Canadian Criminal Code mainly concern procedural law, and that a number of substantive issues remain unresolved. Thus, what constitutes mental disorder, or what constitutes a significant degree

328 SIMON DAVIS

of mental disorder, and the narrowness or broadness of fitness standards, will still be determined in the context of particular cases; as Robertson (1987, p. 367) notes, “the existence of a review mechanism should not deflect attention from the question of whether the committal criteria are substantively just”. On the other hand, the inclusion of standards for legal ability and a standard of proof in the Code will hopefully mean that decisions about fitness will be less idiosyncratic.

It is perhaps not surprising that substantive issues are not easily addressed in the wording of statutes; this is a problem in mental health law in general and fitness to stand trial in particular. Roesch and Golding (1980) argue that fitness must be seen as a construct and that “the meaning of a construct can never be fully reduced to a set of concrete operations and observational terms” (p. 12). As noted earlier, fitness is a relative term, and what constitutes fitness in one case may not be the same in a different case. An implication of this is that some scope for clinical intuition is necessary, although it is submitted that when statutory guidelines are too ambiguous (as they have been in fitness law in Canada) this invites an excessive degree of clinical idiosyncrasy (Bagby, 1992).

Concerns about the new fitness provisions have been expressed by clinicians. As noted, there is the view that the new, more brief, out of custody fitness assessments will be more difficult to administer, particularly in outlying areas, and that treatment to restore fitness in assessment may be more difficult because of lack of time, or the lesser degree of control in the outpatient setting. If these concerns are valid, it may be that the provision for more brief assessments will backfire: Assessment periods might be routinely extended, so that the accused’s time commitment is not in fact brief; or, more persons may return to court as unfit, increasing the number of persons under a disposition order. On the other hand, some have argued that many fitness assessments in the past have been unnecessary, and that they may have been ordered for reasons other than assessing fitness (Roesch & Golding, 1980; Verdun-Jones, 1981; Webster, Me&es & Jackson, 1982); if this is the case, the new provisions will presumably mean lesser periods of detention in the majority of cases.

There is a further complication. It has been suggested to the author that, in the past, the narrowness of the fitness standard has been determined pragmati- cally, not rationally (see also Lindsay, 1977). That is, fewer people have been considered for fitness, or found unfit, than could have been, simply because the result of being found unfit was known by all parties to be onerous. Now that the outcome is apparently less onerous, it is possible that the system may shift in response, with the fitness assessment route becoming a more attractive option for the courts (particularly if diversion into the civil hospital system becomes more inaccessible due to deinstitutionalization). Thus, more people could be subject to the fitness procedure than have been in the past.

In sum, there are a number of competing hypotheses concerning the new fitness law and how it will work out in practice. It is important to stress that many of these questions are empirically testable, and that it is incumbent upon social scientists and policy analysts to evaluate whether the apparent intentions of the new legislation are being realized, and how the changes are impacting on the psychiatric and legal systems involved.


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Fitness to stand trial in Canada in light of the recent criminal code amendments

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