Mental Health Issues -A Provincial
Offences Act Context
Katalin Kirec, Assistant Crown Attorney
Sheilagh Stewart, Crown Counsel
Today’s Presentation




Review Section 44 of the P.O.A., the applicable
forms and related case law
Review “unfit to stand trial” and the Taylor Test
Review the criminal practice and compare the
differences
Provide some practical tips
An Overview



A person who is mentally present at his or her trial is fit
to stand trial.
General Rule: Presumed that persons charged are fit to
stand trial. But sometimes they may not be fit.
To be fit to stand trial, accused must be able to
understand and participate in what is happening at trial.
If the person charged cannot understand and participate,
it is as if they are not present at all. Very unfair to try
that person in those circumstances because not able to
fully answer and defend him/herself.
An Overview




Whether accused is fit to stand trial has nothing to do
with whether guilty/not guilty of any offence.
Law presumes that the person charged is fit to stand
trial.
Test is not mental state at the time of the offence(s)
charged. Fitness has to do with the here and now, not
with some other time or some different place.
See R. v. Krivicic 2011 ONCA 703
Section 44 – Provincial Offences Act


Prescribes how the court is to proceed if there is
reason to believe the defendant is unable to
conduct a defence by reason of mental disorder.
Mental disorder is defined in s.1(1) of the Mental
Health Act: “mental disorder” means any disease
or disability of the mind
Section 44 – Provincial Offences Act


Section 44 is rarely used although in 2013 two
reported cases
Relying upon section 44 can have collateral
consequences such as the need to report the
driver to the Registrar of Motor Vehicles as
potentially unfit to drive.
Section 44 -Provincial Offences Act
(1) Where at any time before a defendant is sentenced a court has reason to
believe, based on,
(a) the evidence of a legally qualified medical practitioner or, with the
consent of the parties, a written report of a legally qualified medical
practitioner; or
(b) the conduct of the defendant in the courtroom,
that the defendant suffers from mental disorder, the court may,
(c) where the justice presiding is a judge, by order suspend the proceeding and
direct the trial of the issue as to whether the defendant is, because of
mental disorder, unable to conduct his or her defence; or
(d) where the justice presiding is a justice of the peace, refer the matter to a
judge who may make an order referred to in clause (c).
Section 44 continued
(2) For the purposes of subsection (1), the court may order the defendant to attend to be
examined under subsection (5).
(3) The trial of the issue shall be presided over by a judge and,
(a) where the judge finds that the defendant is, because of mental
disorder, unable to conduct his or her defence, the judge shall order
that the proceeding remain suspended;
(b) where the judge finds that the defendant is able to conduct his or her
defence, the judge shall order that the suspended proceeding be continued.
(4) At any time within one year after an order is made under subsection (3), either party
may, upon seven days notice to the other, make a motion to a judge to rehear the trial of
the issue and where upon the rehearing the judge finds that the defendant is able to conduct
his or her defence, the judge may order that the suspended proceeding be continued.
Section 44 continued
For the purposes of subsection (1) or a hearing or rehearing under subsection (3) or (4), the
court or judge may order the defendant to attend at such place or before such person and
at or within such time as are specified in the order and submit to an examination for the
purpose of determining whether the defendant is, because of mental disorder, unable to
conduct his or her defence.
(5)
(6) Where the defendant fails or refuses to comply with an order under subsection (5) without
reasonable excuse or where the person conducting the examination satisfies a judge that it is
necessary to do so, the judge may by warrant direct that the defendant be taken into such
custody as is necessary for the purpose of the examination and in any event for not
longer than seven days and, where it is necessary to detain the defendant in a place, the
place shall be, where practicable, a psychiatric facility.
(7) Where an order is made under subsection (3) and one year has elapsed and no
further order is made under subsection (4), no further proceeding shall be taken in
respect of the charge or any other charge arising out of the same circumstance.
What is needed?




A legally qualified medical practitioner – in person or written
report (if later, must be consent and provisions of Evidence Act
regarding notice/ documentary evidence apply).
OR
Behaviour in court ( in which case judge may order examination
by legally qualified medical practitioner)
A judge ( yes justice of the peace has more authority under the
Criminal Code than the POA in this regard).
A trial of the issue of ability/ability to conduct a defence
(irrespective of whether a determination has been made in
criminal court)
What is Needed?


If the defendant refuses or fails without
reasonable excuse to submit to the examination,
judge ( not justice of the peace) can issue warrant
to detain defendant in custody for up to seven
days in a psychiatric facility ( preferred) to have
examination done
This presents its own set of issues such as
detention, capacity of facilities, competing
priorities for facilities and so forth.
What is Needed?


All of this assumes that defendant has appeared
before judge in criminal courthouse after having
matter transferred from POA courthouse and
justice of the peace. No authority to simply take
defendant into custody for this purpose.
Also note that if judge orders assessment, local
forensic hospital will need to be called for
appointment to be booked
What does Judge determine?





Judge decides whether proceedings on the charge will continue
or remain suspended
Judge makes decision on ability/ability to conduct a defence
If no ability/ability to conduct a defence, proceedings on the
charge remain suspended for up to one year although during
year either party can apply to judge for a re-hearing on issue of
ability/ability to conduct a defence ( made by motion) – judge
can find now able and order trial on charge
If no order for trial within the year, no further action may be
taken
If able/able to conduct defence, trial resumes – will Judge or
justice of the peace preside over trial of charge? If later then has
to transfer back to POA court facility.
Forms




The forms used under section 44 are prescribed in
S. 32 of Regulation 200
An order to attend for examination under section
44 of the Act shall be in Form 117.
A warrant to take a defendant into custody under
section 44 of the Act shall be in Form 118.
A certificate of execution of a warrant issued
under subsection 44 (6) of the Act shall be in
Form 119.
FORM 117
ORDER TO ATTEND FOR EXAMINATION UNDER SECTION 44 OF THE PROVINCIAL OFFENCES ACT
Courts of Justice Act
FORM 118
WARRANT TO TAKE CUSTODY OF DEFENDANT UNDER SECTION 44 OF THE PROVINCIAL OFFENCES ACT
Courts of Justice Act
FORM 119
CERTIFICATE OF EXECUTION OF WARRANT
Courts of Justice Act
Jurisprudence
3 cases:
1. R. v. P.R.L., 2013 ONCJ 322
2. Real Estate Council of Ontario v. Chua, 2013
ONCJ 251
3. R. v. Taylor, 59 O.A.C. 43
Real Estate Council of Ontario v. Chua





Defendant charged under Real Estate and Business Brokers Act,
2002
Claimed unable to conduct defence – represented at trial by
counsel but did not attend himself – medical evidence that he
did not have ability to testify + unable to respond to simple
questions + claimed to not know where he was or why
Defence applied for stay under s. 44 at end of prosecution’s case
Justice of the peace referred it to judge & court appointed
psychiatrist wrote a report and testified that defendant was
either feigning or exaggerating his symptoms
Judge held defendant capable -Defendant's level of functioning
at hearing inconsistent with other evidence - and ordered
suspended proceedings resumed
Real Estate Council of Ontario v. Chua






As in criminal matters, burden is on person raising the issue
to establish unfit
Test should be the same as in criminal proceedings given
the identical interests at stake
Test is the limited cognitive ability test – not a high
threshold
Defendant must understand the nature and object of the
proceedings and the possible consequences
Defendant must be able to communicate with counsel to
prepare a defence
Not necessary that defendant be capable of acting in his or
her best interests ( per Taylor)
R. v. P.R.L.




Defendant, diagnosed with bipolar mood disorder and living
in community under supervision of a Community Treatment
Order ( issued by doctor under s. 33 of Mental Health Act) ,
was charged with multiple offences including speeding, fail
to stop for police officer and fail to surrender permit.
Only evidence regarding mental illness came from social
worker who had worked with defendant for a month.
She did file letter from a doctor indicating that offences
may have resulted from poor judgement due to mental
illness
Letter also stated she had manic psychosis which interfered
with her appreciation of reality
R. v. P.R.L.





Prosecution questioned the use of the mental disorder
defence as the only evidence of the defendant’s state of
mind was based on a medical letter that could be obtained
and used by an accused person inappropriately
Also issue was not raised until second day of trial
Conviction was entered on all charges but one ( unsafe lane
change).
No expert evidence regarding nature and severity of the
bipolar mood disorder and whether she was actually
suffering from the disorder on the day in question.
Defendant failed to establish that her actions were
involuntary actions as a result of her mental disorder.
R. v. P.R.L.





Starting at para. 77 the decision is a thorough review of the
issue
Defendant required to establish an evidentiary basis for the
defence -that defendant acted involuntarily on balance of
probabilities
Meet or satisfy the air of reality threshold ( met in this
case)
Community Treatment Order did not determine the issue on
day of offences
Officer did not take defendant into custody per Mental
Health Act – she did not observe or believe defendant was
in such a mental state as to require psychiatric assessment
R. v. P.R.L.




Physician had not reported P.R.L. to the Registrar as
required under s. 203 of H.T.A. – high risk medical
conditions are conditions that are chronic, deteriorating,
unstable or progressive such as psychiatric disorders……..
Physician legally obligated to have reported her as suffering
from medical condition that could make it dangerous to
drive if he/she thought this – no such report & no DL
suspension
No evidence that driving actions on date of offence were
involuntary actions resulting from her mental disorder.
Diminished mental capacity was not so severe as to prevent
her from appreciating the consequences of her actions
R. v. P.R.L.



With regard to fail to stop for police, held reasonable
doubt regarding mens rea aspect – wilfully continued to
avoid police – in regard to the penalty provision
Criminal law - Evidence of mental disorder may fall short
but may raise a reasonable doubt as to the mental
element required for a particular offence
Convicted of all offences that prosecution proved – one
offence –fail to signal lane change – evidence fell short
and defendant acquitted
R. v. Taylor – Ontario Court of Appeal





Both psychiatrists testified that Taylor ( lawyer) would not
be able to instruct counsel in a manner that would be in his
best interests
He fully understood the nature and object of the
proceedings and its possible consequences
At issue was the proper test to be applied in determining
the accused’s ability to communicate with counsel
Court of Appeal sets out test of fitness to stand trial (
paras. 40 – 55)
Test is not whether or not accused able to act in his own
best interests – not a proper test
R. v. Taylor – Ontario Court of Appeal




One must remain cognizant of the rationale for the fitness rule –
accused must have sufficient mental fitness to participate in
proceedings in a meaningful way
An accused who has been found fit must be permitted to
conduct his own defence even if it means he acts to his own
detriment in doing so.
Limited cognitive ability test strikes balance between objectives
of fitness rules and right of accused to choose his own defence
and have a trial within a reasonable time.
Higher threshold test of “analytical capacity” has been rejected
by courts – fitness does not require that accused is capable of
making rational decisions beneficial to him in his relationship
with counsel.
R. v. Taylor – Ontario Court of Appeal



Possibility of disruption of trial process by misbehaviour or outburst
of accused; difficulty in maintaining a collaborative relationship
with counsel; distrust of counsel; inability to understand and abide
by court rulings – all raise concerns in the conduct of the trial BUT
these concerns do not affect the application of the proper test to
determine whether accused capable of communicating with counsel
for purpose of conducting defence.
Trial judge erred in adopting test requiring accused to be capable
of making rational decisions beneficial to him
As Crown raised fitness burden on Crown ( balance of probabilities)
R. v. Taylor – The Taylor Test
S.2 “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
The Taylor Test – The Usual Questions




Do you know where you are?
Do you know what you are charged with?
What is the role of defence csl/whose side are
they on?
What is the role of the crown/whose side are they
on?
The Taylor Test – The Usual Questions




What is the role of the judge/their job in court?
What pleas are available?
What can happen if a judge finds someone guilty?
Not guilty?
What is perjury/meaning of an oath?
Consequences of lying to court?
R. v. Taylor – The Taylor Test



There are no questions for (c); crown relies on csl
to inform the court if they can’t get instructions.
The questioning is usually conducted by csl, but
crown &/or court can do it too.
Note accused who have criminal records or were
lawyers know the jargon, but 1 or 2 deeper
probing questions will show their true
understanding (eg ‘the judge judges” is a common
answer, so ask what that means/what the judge
judges).
Criminal Code Provisions




S. 672.672.22 = presumption of fitness.
S. 672.23 court may direct the issue be tried;
onus is on party raising, on balance of
probabilities.
S. 672.11(a) court can order a psychiatric
assessment to help determine fitness.
S. 672.58 & 672.59 allow court to order accused
to be treated in order to make them fit.
Toronto Practice


Matter can be referred to 102 for a psychiatrist’s opinion
(Dr arrives at 1 pm every day); if Dr says fit, matter
continues on as if nothing had happened (presumption
not displaced; no need to have a hearing);
If Dr says unfit, can have a hearing in 102, followed by
either a Treatment Order (where mental disorder is
treatable)(60 day order, return date in 30 days for checkin) or a Warrant of Committal to CAMH/designate (ie, to
the ORB)(no return date).
Criminal Code versus P.O.A.
Unfitness findings are only by Judges in BOTH;
however some key differences:
 Can TREAT unfitness ( Code) vs. Can’t (P.O.A.)
 Unfit accused remain in the hospital under the
Ontario Review Board (subject to prima facie
hearings and ORB hearings proscribed by law)
(Code) vs. Case is suspended and no ORB (P.O.A.)
Recent Decisions of Note:
R. v. Capano [2014] O.J. No. 3829 (QL) (C.A.):The mental
disorder must render an accused incapable of appreciating the
nature and quality of the criminal act he committed or it must
render the accused incapable of knowing that the act was wrong.
R. v. Triano, [2014] O.J. No. 2303 (QL) (C.J.) + [2014] O.J. No.
3384 (QL) (C.J.): Accused suffering from dementia -Lack of
memory in and of itself not sufficient to render accused unfitAccused could not meaningfully participate in court process, could
not meaningfully instruct counsel, receive advice or testifyAccused found unfit & stay of proceedings entered
Sentencing -R. v. Ellis 2013 ONCA 739




Appellant with bipolar disorder knew what he was doing
was wrong
Was otherwise functional at work
When sentencing a mentally ill offender, jurist must
consider the extent to which the mental illness contributed
to the conduct in question – was there a causal connection
between the mental illness and the commission of the
offence and, if so, does it diminish the offender’s culpability.
When an offender is mentally ill, principles of general
deterrence and denunciation become less important and
rehabilitation becomes more important
Practical Tips





Keep in mind section 44 and the jurists role
Keep in mind – whoever raises it has to prove it on a
balance of probabilities
Keep in mind – it is mental illness in context of fitness
or ability to stand trial – not whether person is
mentally ill – Taylor Test
You can consent if necessary evidence or you can
oppose
Review the case law while waiting for hearing before
judge- Remind paralegal of that case law and what
statute says
Practical Tips




Consider offences charged – will evidence go more
to sentence (wilfully)?
Consider context – generally driving offences
Duty to report to Registrar? To LSUC?
No specific court services procedures for s. 44
matters – best suggestion is to follow the
procedures for transfers of appeals ( incl. retaining
a certified copy of charging document)
Discussion/Questions