Fitness to Stand Trial and Presence of a Mental Disorder in the Summary Trial Process

Judge Advocate General Policy Directive: # 047/17
Original Date: 16 August 2017
Subject: Fitness to Stand Trial and Presence of a Mental Disorder in the Summary Trial Process
Cross Reference:
A. National Defence Act: paragraph 163(1)(e), paragraph 164(1)(e);
B. Queen's Regulations and Orders for the Canadian Forces: article 108.16, article 108.28, article 108.34;
C. R. v Swain, [1991] 1 S.C.R. 933;
D. R. v. Rabey, (1977), 37 C.C.C. (2d) 461;
E. R. v. Cooper, [1980] 1 S.C.R. 1149;
F. R. v. Steele, (1991), 63 C.C.C. (3d) 149;
G. R.v. Taylor, (1992) 77 C.C.C. (3d) 551

1. Background

1.1. Subsections 163(1) and 164(1) of the National Defence Act (NDA) provide that commanding officers and superior commanders, respectively, may try accused members by summary trial so long as a number of conditions are satisfied, including that he or she does not have "reasonable grounds to believe¹ that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the commission of the alleged offence".²

1.2. This policy provides direction to all legal officers serving in the Office of the Judge Advocate General when advising presiding officers throughout the summary trial process on issues concerning an accused's fitness to stand trial or the presence of a mental disorder at the time of the commission of the alleged offence.

2. Definitions

2.1. Mental disorder means "a disease of the mind".³

2.2. The term “a disease of the mind” embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion.⁴ It is a legal concept and it is therefore a question of law as to what mental conditions are included within the term.⁵

2.3. Unfit to stand trial means “unable on account of mental disorder to conduct a defence at any stage of the trial, and in particular, unable on account of mental disorder to:

1. understand the nature or object of the proceedings,
2. understand the possible consequences of the proceedings, or
3. communicate with counsel."⁶

3. Timing of Determination of Reasonable Grounds to Believe

Pre-trial Determination

3.1. Pursuant to the Queen's Regulations and Orders (QR&O) 108.16(1 )(a)(iv), prior to the commencement of the summary trial, a presiding officer has an obligation to determine if he or she is precluded from trying the accused because there are reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the alleged offence.

3.2. During the pre-trial phase, where the presiding officer is of the view that he or she may have reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the alleged offence, the unit legal advisor shall advise the presiding officer that, at this point in the summary trial process, he or she only has access to the Record of Disciplinary Proceedings and the investigation report. Therefore, the presiding officer should limit him or herself to those documents in order to make such a determination.

3.3. At this phase of the process, presiding officers should not seek to make such a determination through other means such as consulting with the accused's assisting officer or other members of the accused's chain of command.

3.4. As such a determination must be based on sufficient evidence that would allow a presiding officer to reach such a conclusion, unit legal advisors shall also advise presiding officers to avoid making such a determination based on personal beliefs or opinions that he or she may hold about the accused.

Determination During Summary Trial

3.5. Unit legal advisors shall advise presiding officers that, during the summary trial, should a presiding officer determine that he or she has reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the alleged offence, then he or she shall adjourn the summary trial and take the necessary action in accordance with QR&O 108.34(2).

4. Fitness to Stand Trial or Possible Mental Disorder Raised by an Accused at Summary Trial

4.1. Unit legal advisors should be clear with presiding officers that an accused has the right to raise the issue of fitness to stand trial or that he or she was suffering from a mental disorder at the time of the commission of the alleged offence at the summary trial. Presiding officers must be informed that there is no burden of proof that rests with an accused to prove this; however, if an accused is going to raise either of these issues during the summary trial, he or she must produce sufficient evidence that would allow the presiding officer to determine that there are reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the alleged offence. Such evidence may be provided by an accused or any other witness and may be viva voce or in documentary format.⁷

4.2. Should the issue of fitness to stand trial or the possible presence of a mental disorder be discussed during the course of the summary trial, unit legal advisors should inform presiding officers that they should consider whether the public should be excluded pursuant to QR&O 108.28(2). Although the default position is that summary trials should be open to the public, it may be appropriate in some cases for the public to be excluded on the grounds that it would be in the interests of justice and discipline to exclude the public.⁸

5. Referral to the Director of Military Prosecutions: Fitness to Stand Trial

5.1. In order for the presiding officer to determine whether an accused person is fit to stand trial, the unit legal advisor shall advise the presiding officer to apply the following test:

1. First, the presiding officer must have reasonable grounds to believe that the accused suffers from a mental disorder at the time of trial. As this term is defined as a “disease of the mind”, the presiding officer must determine, at law, if the condition from which the accused suffers is an illness, disorder or abnormal condition which impairs the human mind and its functioning so as to be encompassed by the term “disease of the mind”.⁹
2. Second, the presiding officer must have reasonable grounds to believe that the accused, on account of that mental disorder, is unable to conduct a defence at any stage of the summary trial.
3. In particular the presiding officer must have reasonable grounds to believe that the accused, on account of that mental disorder, is unable to understand the nature or object of the proceedings¹⁰, is unable to understand the possible consequences of the proceedings¹¹ or is unable to communicate with counsel.¹²
4. If the presiding officer is of the view that he or she has reasonable grounds to believe that an accused person is unfit to stand trial, then the presiding officer must conclude that he or she does not have the jurisdiction to preside over the matter at summary trial and he or she must take the necessary action in accordance with QR&O article 108.16.

6. Referral to the Director of Military Prosecutions: Mental Disorder at the Time of the Commission of the Alleged Offence

6.1. Where the presiding officer is of the view that he or she may have reasonable grounds to believe that the accused person was suffering from a mental disorder at the time of the alleged offence, unit legal advisors should advise presiding officers that such a determination requires more than a diagnosis of a particular illness or disorder. Instead, a presiding officer must determine whether the illness, disorder or abnormal condition is one that impaired the human mind and its functioning specifically at the time of the commission of the alleged offence.¹³ As this is a question of law, a diagnosis of a particular illness, disorder or abnormal condition is not necessarily the determining factor.¹⁴

6.2. In making such a determination a presiding officer must take all the surrounding factual circumstances into consideration.¹⁵

6.3. If the presiding officer is of the view that he or she has reasonable grounds to believe that an accused was suffering from an illness, disorder or abnormal condition which impaired the human mind and its functioning specifically at the time of the commission of the alleged offence, then the presiding officer must conclude that he or she does not have the jurisdiction to preside over the matter at summary trial and he or she must take the necessary action in accordance with QR&O article 108.16.¹⁶

7. Review of Decision

7.1. Where a presiding officer concludes that he or she is precluded from trying the accused member by summary trial based on a determination that the accused was either unfit to stand trial or that he or she had reasonable grounds to believe that the accused was suffering from a mental disorder at the time of the commission of the alleged offence and an accused makes a request for review on those grounds, a unit legal advisor shall advise the review authority that such a determination by the presiding officer is a question of jurisdiction and is not reviewable under QR&O article 108.45 or Chapter 116.

7.2. However, where a presiding officer determines that he or she does have jurisdiction to try an accused person by summary trial and subsequently tries the accused by summary trial, an accused may request a review of any subsequent finding made at summary trial on the grounds that the presiding officer erred in his or her determination of jurisdiction and that the presiding officer should have been precluded from trying the matter by summary trial based on the fact that the accused person was unfit to stand trial or was suffering from a mental disorder at the time of the alleged offence.

7.3. In such a case, the unit legal advisor responsible for advising the review authority shall review the file and advise the review authority as to whether the presiding officer was correct in his or her determination of whether he or she had the proper jurisdiction to try the matter by summary trial.

//SIGNED//
Cmdre G. Bernatchez, CD
JAG

992-3019/996-8470

Distribution List
All Legal Officers (Reserve and Regular Force)

Footnotes

¹ Reasonable grounds to believe is a standard that is lower than that of a “balance of probabilities” and includes both a subjective and an objective component. It means that the presiding officer must personally believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the commission of the alleged offence. In addition, this decision must be able to stand the test of whether an objective third person, who is acting reasonably and is informed of the factual circumstances known at the time, would also reach the same conclusion. There is no fixed formula for what constitutes reasonable grounds to believe. Whether grounds exist depends on the factual circumstances present in each case and no one fact can predominate as the sufficiency of the grounds will depend on the totality of the circumstances. The concept is a fluid one, turning on an assessment of probabilities in particular factual situations. It is not readily, or even usefully, reduced to a neat set of legal rules.

² The same conditions must be satisfied for delegated officers as commanding officers have the power to delegate their powers of trial and punishment pursuant to s. 163(4) of the NDA.

³ See section 2 of the NDA.

⁴ R. v. Cooper, [1980] 1 S.C.R. 1149.

⁵ R. v. Rabey (1977), 37 C.C.C. (2d) 461.

⁶ The term “unfit to stand trial” is defined in s. 2 of the NDA but that definition is limited to trial by court martial. The definition of this term in this policy directive mirrors that definition in the NDA except that it does not limit it to trial by court martial.

⁷ In accordance with Note E of QR&O 108.21, in order to ensure that the trial record is as complete as possible the presiding officer should prepare a list to identify the witnesses heard and all documentary or real evidence accepted at the summary trial, including witnesses and evidence called or presented by or on behalf of the accused. A presiding officer should not keep any medical records provided by an accused during the course of the summary trial although it should be noted that medical records were provided.

⁸ See Canadian Broadcasting Corp. v. New Brunswick (Attorney General) [1996] 3 S.C.R. 480 for those considerations that a court must take into account when determining whether the public should be excluded during specific portions of the trial.

⁹ Such a determination by a presiding officer is based on more than a diagnosis of a particular illness or disorder. Instead, as the term “mental disorder” is defined as a “disease of the mind”, a presiding officer must determine whether the illness, disorder or abnormal condition is one that impairs the human mind and its functioning excluding self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion.

¹⁰ A determination of whether an accused is able to understand the nature and object of the proceedings includes an understanding of the respective roles of the presiding officer, the assisting officer and, if present, counsel and whether the accused is able to make critical decisions throughout the summary trial process or is able to testify if necessary. See R. v. Steele (1991), 63 C.C.C. (3d) 149.

¹¹ Whether an accused understands the nature and object of the proceedings or understands the possible consequences is a matter of cognitive ability. It is not necessary that the accused be able to meet some higher test of analytic capacity to make rational decisions beneficial to himself. See R. v. Taylor, (1992) 77 C.C.C. (3d) 551.

¹² Should an accused at summary trial be represented by counsel, an assessment of an accused's ability to conduct a defence and communicate with counsel is limited to an inquiry into whether an accused can recount to his or her counsel the necessary facts relating to the offence in such a way that counsel can properly present a defence.

¹³ This would not include self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion.

¹⁴ For example, it is possible that a presiding officer may find that although an accused has been diagnosed with a particular illness, disorder or abnormal condition, the accused may not have necessarily been suffering from a mental disorder at the time of the commission of the alleged offence as the illness, disorder or abnormal condition did not impair the human mind and its functioning at the relevant time.

¹⁵ For example, it may be that an accused suffers from a particular illness, disorder or abnormal condition which may vary in intensity from time to time or may be controlled through the use of medication.Therefore, although a particular illness, disorder or abnormal condition may impair the human mind and its functioning at certain periods of time, the question that a presiding officer must satisfy him or herself of is whether he or she, taking all circumstances into account, has reasonable grounds to believe that the accused was suffering from an illness, disorder or abnormal condition which impaired the human mind and its functioning specifically at the time of the commission of the alleged offence.

¹⁶ Presiding officers should be reminded that the threshold for determining whether a presiding officer is precluded from trying the matter by summary trial is “reasonable grounds to believe” which is lower than that of a “balance of probabilities”. As there is no fixed formula for what constitutes “reasonable grounds to believe”, a presiding officer, after making the necessary inquiries, may be uncertain as to whether he or she has reasonable grounds to believe that the accused person was suffering from a mental disorder at the time of the commission of alleged offence. In those cases where the presiding officer is uncertain, in order to ensure that an accused benefits from those protections that are available at court martial, the presiding officer should take the decision that he or she does not have the jurisdiction to preside over the matter at summary trial.