COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bharwani, 2023 ONCA 203

DATE: 20230324

DOCKET: C64221

Fairburn A.C.J.O., Doherty, Trotter, Harvison Young and Thorburn JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Mohamed Bharwani

Appellant

Delmar Doucette, Angela Ruffo and Cara Barbisan, for the appellant

Grace Choi and Natalya Odorico, for the respondent

Erin Dann, for the intervener, the Criminal Lawyers’ Association

Heard: June 14 and 15, 2022

On appeal from the conviction entered on March 15, 2017 by Justice David J. McCombs of the Superior Court of Justice, sitting with a jury.

TABLE OF CONTENTS

A. OVERVIEW.. 4

B. BACKGROUND. 8

(1) Appellant’s mental health challenges before the homicide. 8

(2) Arrest and statements to police. 9

(3) Statutory context 11

(a) Part XX.1 of the Criminal Code: The presumption of fitness. 11

(b) “Unfit to stand trial”: Section 2 of the Criminal Code. 13

(4) Pre-trial proceedings. 15

(a) Removal of counsel 15

(b) Psychiatric assessments, fitness hearings and make-fit order 16

(i) Assessments. 16

(ii) First fitness hearing and make-fit order 17

(iii) Second fitness hearing. 19

(5) Trial 19

(a) Fitness. 19

(b) Psychiatric evidence at trial relevant to the NCR claim.. 21

C. DISCUSSION. 22

(1) Fitness to stand trial 22

(a) Overview. 22

(b) Positions on appeal 23

(i) The appellant 23

(ii) The intervener 24

(iii) The respondent 26

(c) Taylor and the “limited cognitive capacity” test 27

(i) Overview. 27

(ii) Taylor says that the s. 2 Criminal Code statutory definition of “unfit to stand trial” governs fitness determinations. 28

(iii) Taylor says that the concept of communicating rationally maintains a limited role in fitness assessments. 29

(iv) Taylor makes meaningful presence and participation at trial by the accused the “touchstones” of the fitness inquiry. 33

(v) Taylor rejects the need for “analytic capacity” or the ability to make rational decisions in one’s best interests. 34

(vi) Conclusion: Propositions from Taylor 36

(d) The call for change to the fitness test: Addressing the arguments on appeal 38

(i) Are the Taylor test questions sufficient?. 38

(ii) Is a rational understanding of one’s legal predicament necessary?. 39

(iii) Must the accused also have the capacity to make decisions and, if so, what does that involve?. 40

(iv) Should this court overturn Taylor and inject “analytic capacity” into the fitness test, so that an accused must have the ability to make rational decisions in their best interests to be fit?. 44

1. Criticisms of Taylor 44

2. Rejection of the two-test approach. 46

3. No reason to overturn Taylor by injecting the ability to make rational decisions in one’s best interests into the fitness test 49

a. The underlying rationale for the fitness rules. 49

b. An accused is entitled to control their own defence. 53

c. The other protections in place. 55

d. Harmony in the law. 56

(v) Conclusion: The fitness test clarified. 57

(e) The appellant was fit to stand trial 58

(i) The second fitness hearing. 59

(ii) The trial 62

(iii) The fresh evidence on the fitness issue. 66

(f) Conclusion on fitness. 69

(2) The voluntariness of statements to Dr. Woodside. 70

(a) Background. 70

(b) The law of voluntariness. 72

(c) The law of voluntariness applied to the facts. 73

(d) Conclusion on voluntariness. 75

(3) NCR, fresh evidence and verdict 76

(a) The NCR defence. 76

(b) The evidence at trial 78

(c) The fresh evidence. 81

(d) Conclusion on NCR, fresh evidence and verdict 86

D. CONCLUSION. 87

Appendix “A” 88

By the Court:

A. OVERVIEW

[1] Many of those who find themselves charged with criminal offences live with mental health challenges. Sometimes they are represented by counsel and sometimes they are not. Regardless, when those who face serious mental health challenges are subject to prosecution, complexities abound and the fairness of the criminal justice system is put to the test. That test begins with the most basic of questions – is the accused, on account of mental disorder, unfit to stand trial?

[2] In answering that question, the criminal justice system must respond fairly, but not paternalistically. The fairness of the process and the integrity of any verdict arrived at through the process hinges on a proper inquiry into the competence of the accused to stand trial. The manner in which that question should be determined is the primary issue on this appeal.

[3] The events giving rise to this appeal occurred a decade ago. In January 2013, after several years of deteriorating mental health, the appellant, who was 18 years old at the time, moved into a basement apartment. Three other tenants lived there, including Nyumai Caroline Mkurazhizha, a 23-year-old international student studying in Canada. Five days later, the appellant killed Ms. Mkurazhizha by striking her with a fireplace poker and then strangling her to death.

[4] Following the homicide, the appellant was diagnosed with schizophrenia.

[5] During the pre-trial proceedings, the appellant’s fitness to stand trial was squarely in issue. The proceedings were complicated for many reasons, including that following the preliminary inquiry, the appellant fired his counsel and, from that point on, continued as a self-represented accused.

[6] In May 2016, a jury found the appellant unfit to stand trial and he was sent to an in-patient treatment facility to see if he could become fit: Criminal Code, R.S.C. 1985, c. C-46, s. 672.58. At a second hearing in August 2016, after spending over three months in hospital, a second jury reversed the first, finding the appellant fit to stand trial.

[7] The trial commenced in January 2017. On the first day of trial, before the appellant was arraigned, the trial judge conducted an inquiry into fitness and was satisfied that the appellant met all the criteria for fitness. This was consistent with the appellant’s position from the beginning that he was fit to stand trial and was anxious to have his trial proceed.

[8] What followed was a 10-week jury trial. Despite the appellant’s clear mental health challenges, which presented in different ways over the course of the trial, no one suggested that the proceedings should be halted so that a fitness hearing could be conducted.

[9] The central issue at trial was whether the appellant was not criminally responsible (“NCR”) for first-degree murder on account of mental disorder. That determination turned on psychiatric evidence about whether the appellant understood the moral wrongfulness of his actions. Three expert forensic psychiatrists assisted with that central issue.

[10] On March 15, 2017, the jury returned a verdict of guilty to first-degree murder. The appellant appeals against the conviction. In doing so, he raises three overarching issues.

[11] The first issue is what all acknowledge is the central issue on appeal, namely whether the appellant was “unfit to stand trial” within the meaning of s. 2 of the Criminal Code. The appellant contends that he was only found fit to stand trial because the judge at the second fitness hearing and the psychiatrist who offered an opinion at that hearing, and later the trial judge, relied upon an overly restrictive test for fitness, one rooted in what has become colloquially known as the “Taylor test questions”, after R. v. Taylor (1992), 1992 CanLII 7412 (ON CA), 11 O.R. (3d) 323 (C.A.). By relying upon such a narrow test, they are said to have failed to consider the essential reason the self-represented appellant was unfit to stand trial: he was incapable of making rational decisions in his own best interests. The appellant urges that if this consideration is not currently part of the fitness test, then this court should add it, even if this means overturning Taylor.

[12] Second, the appellant maintains that the trial judge erred by failing to require a voir dire into the voluntariness of statements that he made to the forensic psychiatrist called by the Crown to testify at trial. The statements relate to the appellant’s sexual preferences. The appellant contends that comments he made at trial should have alerted the trial judge to the fact that the appellant saw the forensic psychiatrist as a person in authority, which should have triggered a voluntariness voir dire.

[13] Finally, if the appeal is allowed on either the fitness or voluntariness issues, the appellant seeks a substituted verdict of NCR. Even if the appeal is not allowed on those points, he asks that an NCR verdict be substituted on the basis of fresh evidence since the weight of the evidence in favour of an NCR verdict is now so overwhelming. The proposed fresh evidence consists of two opinions from forensic psychiatrists, including a psychiatrist retained by the Crown on appeal.

[14] For the reasons that follow, we would dismiss the application to admit the fresh evidence and dismiss the appeal.

B. BACKGROUND

(1) Appellant’s mental health challenges before the homicide

[15] The appellant showed signs of mental health challenges before the homicide. He started to experience difficulties in high school and eventually stopped attending in Grade 11. His use of cannabis and alcohol also became an issue. Increasingly, he became paranoid, believing that people were talking about him and picking on him.

[16] The appellant first saw a doctor for a mental health assessment in 2009, when he was 15 years old. The doctor concluded that he needed help, but the appellant did not attend for a follow-up appointment. In May 2011, when the appellant was almost 17 years old, he was picked up by police and taken to hospital, where he was kept involuntarily for a psychiatric assessment.

[17] A few months later, the appellant was asked to leave the family home because he had become aggressive. After this, he was homeless for periods of time.

[18] In November 2012, just a few months before he killed the victim, the appellant went to a walk-in medical clinic, where he complained of depression, “pressure”, and “obsessive thoughts” requiring “symmetry”. The doctor proposed counselling and prescribed an anti-depressant.

[19] In January 2013, the appellant moved back in with his family for approximately two weeks before moving into the apartment where the homicide occurred. His brother described him as being “very different” and “very abnormal” during his stay.

[20] The appellant returned to the walk-in clinic several times in January 2013. His complaints included intrusive thoughts, worry, and insomnia. At his last visit to the clinic, the appellant complained of vivid dreams and an “inability to control thoughts”. He was referred for a consultation with a psychiatrist, which did not take place because the homicide occurred four days later.

(2) Arrest and statements to police

[21] Within about an hour of the homicide, the appellant called 9-1-1 saying that he wanted to turn himself in because he had just “killed a girl.” When police arrived at the scene, he reiterated his desire to turn himself in and surrendered into custody. A note was found in his room that said: “Yap (dot, dot, dot) Gossip (dot, dot, dot) Judge”.

[22] The appellant was interrogated by police later the same day. He admitted to killing Ms. Mkurazhizha and explained how he had hit and strangled her. He said he wanted to go to jail because “it was right for [him] and good for the law.”

[23] When asked why he had killed Ms. Mkurazhizha, the appellant answered, “that’s a really good question” and said “I really couldn’t think. But I did think before I did it … I didn’t just go crazy and then do it. I did go crazy but not just that.” Asked again near the end of the interview, the appellant answered: “[m]ental poisons…. Poisons from my head.”

[24] The appellant also described how Ms. Mkurazhizha had done something “offensive” to him and that he had been thinking of killing her that day and the day before. He described how she had peeked into his room, gasped because it was a mess, and “gossiped” on the phone about him. He then explained:

Like, if I was normal or if I didn’t have such a bad history… then I would’ve taken it a different way. Maybe I would have talked to her or maybe I would have …just forgot about it and used… the knowledge of her saying that, made me knowing that she said it, I would have just… held it in.

I did something instead of just thinking and thinking bad thoughts. And you know, now that I killed her, I did something. That’s not right and I see how bad it is and … maybe it’s ‘cause from a million different influences, none in particular but, but a whole bunch of things.

[25] He also described his intrusive thoughts:

I knew I would regret it and I knew I wish I didn’t kill her and then again other thoughts come and intrude into my head saying, “this is what I have to do” or you know…. And you know I was finally, I did something. I been doing nothing my whole life and I know it’s easy, it’s pathetic, I killed a girl. And, but I don’t know.

[26] The appellant was charged with first-degree murder.

(3) Statutory context

[27] Before moving on to describe the pre-trial proceedings in this case, we pause to provide some necessary statutory context so that it is easier to understand what happened next.

(a) Part XX.1 of the Criminal Code: The presumption of fitness

[28] Part XX.1 of the Criminal Code, “Mental Disorder”, contains what has been described as a “mini-Code” that deals exclusively with those accused with mental disorders: Richard Schneider & Hy Bloom, Fitness to Stand Trial (Toronto: Irwin Law Inc., 2018), at p. 3. It is beyond the scope of this decision to explore Part XX.1 in any detail. What is important is how presumptions relating to fitness operate.

[29] All accused start with the presumption of fitness to stand trial: Criminal Code, s. 672.22. At any point prior to a verdict being rendered,[^1] a party to the proceedings or a judge of their own motion may raise the issue of fitness: Criminal Code, ss. 672.12, 672.23. If the accused is being tried by a jury, as in this case, the question of fitness must be determined by a jury: Criminal Code, s. 672.26.[^2]

[30] It is important to note that fitness to stand trial and the NCR defence must be kept analytically distinct. The question of fitness has nothing to do with the accused’s guilt or innocence, or whether, pursuant to s. 16 of the Criminal Code, the accused should not be held criminally responsible. This is because the NCR defence is backwards-looking, inquiring into the accused’s mental state at the time of the act or omission that forms the subject of the charge(s) before the court: Criminal Code, s. 16. In contrast, questions of fitness are strictly focussed on the here and now: is the accused fit to stand trial at the time of trial?

[31] Returning to the statutory presumption of fitness, it can only be displaced on a balance of probabilities: Criminal Code, s. 672.22. If at any point the accused is found unfit to stand trial, only then is the presumption of fitness reversed to one of unfit to stand trial. It then falls to whatever party wishes to have the accused found fit to establish his fitness on a balance of probabilities: Criminal Code, s. 672.32.

[32] These provisions recognize the reality that an accused’s mental state and, therefore, their fitness, can fluctuate. That is precisely what happened in this case: the appellant went from presumed fit, to found unfit by a jury in the first fitness proceeding, to found fit by a jury in the second fitness proceeding. His trial then proceeded.

(b) “Unfit to stand trial”: Section 2 of the Criminal Code

[33] Section 2 of the Criminal Code contains the definition of “unfit to stand trial”. This definition, which is at the heart of this case, was enacted in 1991: An act to amend the Criminal Code (mental disorder) and to amend the National Defence Act and the Young Offenders Act in consequence thereof, S.C. 1991, c. 43. The definition is said to represent a codification of the common law as it existed when the provision was enacted: Taylor, at p. 332; R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, at p. 933; and R. v. Morrissey, 2007 ONCA 770, 87 O.R. (3d) 481, at para. 24, leave to appeal refused, [2008] S.C.C.A. No. 102.

[34] Notably, the s. 2 definition is written in the negative, the implication being that if one does not fall within the definition of unfit to stand trial, then one is fit to stand trial. The s. 2 definition reads as follows:

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.

[35] At its core, s. 2 can be broken down into two essential questions, the second of which has two distinct components. Section 2 asks: (i) does the accused have a “mental disorder”; and, if so, (ii) on account of that mental disorder, is the accused unable to either “conduct a defence” or “instruct counsel to do so”?

[36] The term “mental disorder” is also defined in s. 2 of the Criminal Code: it means a “disease of the mind”. A “[d]isease of the mind embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning”: Cooper v. R., 1979 CanLII 63 (SCC), [1980] 1 S.C.R. 1149, at p. 117; Rabey v. R., 1980 CanLII 44 (SCC), [1980] 2 S.C.R. 513, at p. 544. A disease of the mind excludes any self-induced states caused by intoxicants or what were described in Cooper as “transitory mental states”: at p. 117.

[37] It is only if the mental disorder renders the accused unable to either “conduct a defence … or to instruct counsel to do so” that the accused will be found unfit to stand trial: Criminal Code, s. 2 (emphasis added). The placement of the “or” between conducting a defence and instructing counsel to conduct a defence ensures that all accused with a mental disorder, with or without counsel at their side, are protected by the fitness regime.

[38] Finally, s. 2 offers three considerations “in particular” that are helpful in determining if the accused, on account of mental disorder, is unable to conduct a defence or instruct counsel to do so: (1) whether the accused is able to understand the nature or object of the proceedings; (2) whether the accused is able to understand the possible consequences of the proceedings; and (3) whether the accused is able to “communicate with counsel.”

[39] Later in these reasons, we will return to the s. 2 definition of unfit to stand trial. First though, we return to the proceedings in question.

(4) Pre-trial proceedings

(a) Removal of counsel

[40] By early 2014, the appellant had retained defence counsel. However, in September 2015 he informed the court that he wished to discharge his lawyer and proceed on his own. He believed that he could do a “better job” himself than experienced defence counsel. The appellant was vehement that he wanted to represent himself. Ultimately, McMahon J. had no choice but to accede to the appellant’s request. At the same time that counsel was removed from the record, McMahon J. wisely appointed an amicus curiae, a lawyer with significant experience in matters involving accused persons dealing with mental health issues, to assist the appellant and the court.

[41] At various times during the pre-trial proceedings, the appellant expressed paranoid thoughts, including that the vents at the detention centre were releasing gases into his cell, that medication was being put into his food, and that cameras and microphones in his cell were being used to observe and record his every movement. He expressed mistrust of the doctors and amicus curiae, although the record establishes that the appellant and amicus maintained a good working relationship throughout the proceedings.

(b) Psychiatric assessments, fitness hearings and make-fit order

[42] The appellant’s fitness to stand trial was an issue throughout the pre-trial proceedings, such that he became the subject of multiple court-ordered assessments, a treatment disposition and two fitness hearings: Criminal Code, ss. 672.11, 672.58, and 672.23.

(i) Assessments

[43] The first court-ordered assessment was conducted by Dr. Angus McDonald. In his January 11, 2016 report, Dr. McDonald concluded that the appellant was likely unfit to stand trial. However, he stated that his report was limited because the appellant did not cooperate during the assessment.

[44] On January 21, 2016, McMahon J. ordered that the appellant undergo a second assessment, which was conducted by Dr. Treena Wilkie. However, this assessment was also inconclusive because the appellant was uncooperative.

[45] Accordingly, when the matter returned a few weeks later, McMahon J. ordered that the appellant undergo a 30-day inpatient assessment pursuant to s. 672.14 of the Criminal Code. While in hospital, the appellant was assessed by Dr. Mitesh Patel. In his report dated February 25, 2016, Dr. Patel expressed his opinion that the appellant was “fit to stand trial”, based upon how he had answered what Dr. Patel described as the “Taylor Test questions.” (As explained below, these are a series of factual questions that test the accused’s understanding of the charges they are facing and basic criminal procedure.) McMahon J. was “satisfied that at least at this stage” the appellant was fit to stand trial.

[46] Concerns soon resurfaced about the appellant’s fitness about a week before the trial was originally scheduled to begin. Amicus curiae informed the court that the appellant could not properly prepare for trial because he was currently suffering from the delusion that he was being poisoned and inappropriately monitored. McMahon J. then ordered a fourth assessment, adding that the assessor should consider the appellant’s self-represented status when considering whether he was unfit to stand trial.

[47] Dr. Angus McDonald reappeared for this assessment. In a report dated May 2, 2016, he stated that there was “sufficient evidence” of unfitness to displace the presumption of fitness and urged the court to make a treatment order that would include a condition that the appellant receive antipsychotic medication.

(ii) First fitness hearing and make-fit order

[48] In May 2016, a jury was convened to try the issue of fitness. Nordheimer J. (as he then was) presided. We will refer to this as the “first fitness hearing”.

[49] Amicus curiae called Dr. McDonald, who was qualified as an expert witness. Consistent with his report, Dr. McDonald testified that the appellant had a serious mental illness and was likely unfit. Amicus asked the jury to find the appellant unfit to stand trial. That position stood in contrast to the position of Crown counsel, who maintained that the presumption of fitness had not been displaced. It also stood in contrast to the appellant’s position, including as expressed through the lawyer appointed to represent him at the fitness hearing,[^3] that he was fit to stand trial and anxious to proceed. Ultimately, the jury found the appellant unfit.

[50] Nordheimer J. issued a “make-fit” order pursuant to s. 672.58 of the Criminal Code. The appellant was sent to Waypoint Centre for Mental Health Care (“Waypoint”), where he spent three months.

[51] The doctor who was responsible for the appellant’s care at Waypoint, Dr. William Komer, decided that the appellant did not require medication to make him fit to stand trial because he was already fit. After many different interactions and meetings with the appellant, Dr. Komer authored a report dated June 13, 2016, expressing his opinion that the appellant was fit to stand trial. Accordingly, the appellant was returned to court for a second fitness hearing: Criminal Code, s. 672.32.

(iii) Second fitness hearing

[52] In August 2016, Code J. presided over another fitness hearing (the “second fitness hearing”). Again, the appellant, his court-appointed lawyer and Crown counsel maintained that the appellant was fit to stand trial. What changed is that amicus curiae did not take a position on fitness.

[53] Dr. Komer was called by the Crown and provided expert opinion evidence on the issue of fitness. Consistent with his report, he testified that the appellant was fit because he understood the nature and object of the proceedings, the possible consequences of the proceedings, and was able to communicate. The jury decided that the appellant was fit and the matter was set down for trial.

(5) Trial

(a) Fitness

[54] The trial commenced in January 2017 before a very experienced trial judge, McCombs J. At the outset of the trial, he posed several questions to the appellant, all designed to determine whether any reasonable basis then existed to believe that the appellant had, subsequent to August 2016, again become unfit to stand trial.

[55] A telling interaction ensued, one that provides a clear window into the appellant’s understanding of what had happened to date in the proceedings and what was to come, as well as his ability to communicate that understanding to the court. Accordingly, the full interaction has been attached at Appendix “A” to these reasons.

[56] In his own words, the appellant demonstrated that he not only understood where he was, but also who everyone in the courtroom was and what their roles were. He understood what verdicts were available to the jury, that his defence was likely to be one of NCR and that he expected a forensic psychiatrist to testify at trial as part of his defence. Further, he conveyed an understanding of the standard and burden of proof, and he understood that he could retain counsel if he wished to (but did not). He expressed his desire to proceed to trial self-represented.

[57] The trial judge ruled that, in his view, it was “quite clear” the appellant was fit and so the trial commenced.

[58] On appeal, the appellant points to a number of signs that he says show that he was unfit during the course of the trial. These include his repeated complaints about disturbances outside the courtroom, which he says demonstrate that he was experiencing auditory hallucinations. They also include his paranoid beliefs about the “misuse of technology”, that people were talking about him and conspiring against him, that people wanted to “use him” for their “entertainment”, and that the jury was being interfered with.

[59] As discussed below, the trial judge was alive to the fitness issue throughout the trial. Although the trial judge expressed some concerns at various times about the appellant’s ability to “judge what was in his own interests”, he remained satisfied that there was no need for a further fitness hearing.

(b) Psychiatric evidence at trial relevant to the NCR claim

[60] Three forensic psychiatrists gave expert evidence at trial: Dr. Gary Chaimowitz and Dr. Lisa Ramshaw for the defence, and Dr. Scott Woodside for the Crown.

[61] The three psychiatrists agreed that at the time of the offence, the appellant understood the nature and quality of his act and that it was legally wrong. The defence and Crown experts were divided only on whether it could be said, on a balance of probabilities, that the appellant was unable to know that his act was morally wrong due to mental illness.

[62] Dr. Chaimowitz, who first saw the appellant five days after the homicide, opined that the appellant was actively psychotic at the time of the offence, which prevented him from knowing right from wrong.

[63] Dr. Ramshaw opined that it was more likely than not that the appellant was unable to know his act was morally wrong due to his mental illness.

[64] On the other hand, Dr. Woodside opined that the appellant was possibly in the prodromal stage of developing schizophrenia at the time of the offence (i.e., he was not experiencing active symptoms of psychosis). He also opined that even if the appellant were psychotic at the time of the offence, he could not say, on a balance of probabilities, that the appellant was unable to know that his act was morally wrong.

[65] In the end, the jury rejected the NCR defence and found the appellant guilty of first-degree murder.

C. DISCUSSION

(1) Fitness to stand trial

(a) Overview

[66] The appellant maintains that he was erroneously tried for first-degree murder when he was actually unfit to stand trial. He says that an overly restrictive test for fitness was applied at both the second fitness hearing and at trial. Had the right test been applied, one that the appellant says likely extends beyond the current parameters of this court’s decision in Taylor, he would have been found unfit to stand trial and would never have been convicted of first-degree murder.

[67] In addressing this issue on appeal, it is first necessary to set out the current approach to the s. 2 definition of “unfit to stand trial”, as set out in Taylor. Only then can we decide whether a fair justice system demands more.

[68] We will start by summarizing the positions advanced on appeal. We will then move on to consider this court’s seminal decision in Taylorand what it actually decided. This will be followed by a discussion of whether the principles emerging from Taylor are in need of overhaul. We will conclude by explaining why we disagree that the appellant was unfit to stand trial.

(b) Positions on appeal

(i) The appellant

[69] The appellant argues that the Taylor test questions are not appropriate for determining fitness to stand trial. In particular, he takes issue with the psychiatric opinion provided at the second fitness hearing, which he says was strictly based on the appellant’s ability to answer those questions. Generally, those questions include the following:

1. What are the roles of the various people in the courtroom?

2. What are the charges the accused is facing?

3. What are the available pleas?

4. What are the consequences of a conviction?

5. What is the meaning of an oath?

6. What is perjury?

7. What are the consequences of perjury?

See: Schneider & Bloom, at pp. 13-14.

[70] The appellant contends that exclusive reliance on this list of questions to test an accused’s fitness to stand trial far undershoots the mark in terms of adequately exploring whether an accused is unable to “conduct a defence” or “instruct counsel to do so”: Criminal Code, s. 2. If nothing else, the appellant asks that this court unequivocally state that the Taylor test questions are not a surrogate for determining fitness to stand trial. He says there is more. Specifically, he argues that fitness to stand trial, especially for a self-represented accused with a mental disorder, demands that the accused be able to meaningfully participate in their trial, and that meaningful participation means that the accused has the ability to choose rationally what is in their best interests.

[71] The appellant also maintains that the second fitness hearing judge erred by failing to demand an expert psychiatric opinion that would address the appellant’s self-represented status, which would have placed a different lens on whether he had the capacity “to conduct a defence”, in this case, his own. Again, for the self-represented accused, this means having the ability to make rational choices in their best interests.

[72] Further, the appellant contends that, given his behaviour at trial, the trial judge should have directed an inquiry into fitness. In particular, the appellant says that reasonable grounds to believe that he was unfit arose when it was clear that he was not making rational choices or behaving with any semblance of rationality.

(ii) The intervener

[73] The intervener parts ways with the appellant on the question of rationality insofar as it is linked to best interests. The intervener accepts that the accused does not need to be capable of making decisions in their best interests, but contends that “some element of rationality” is fundamental to the accused’s ability to meaningfully participate at trial in their own defence. For instance, the accused must have a rational understanding of their legal predicament and the capacity for rational or reality-based decision making.

[74] The intervener agrees with the appellant that, to the extent that the Taylor fitness test has been interpreted as involving nothing more than a checklist of questions, it must be overruled. The intervener proposes instead that the court endorse a “principled, contextual and functional” approach to fitness. For the intervener, the essential question is whether the accused’s mental disorder renders the accused unable to participate in their trial in a meaningful way.

[75] The intervener says that the criteria set out in paragraphs (a) to (c) of the s. 2 definition for “unfit to stand trial” are necessary considerations when determining fitness but submits they are not necessarily sufficient for assessing the ability to meaningfully participate in one’s trial. This is because they focus on the defendant’s intellectual capacity and ignore other elements of capacity. To this end, a case-specific inquiry into fitness would also take into account other important factors, such as the complexity of the trial, whether the accused is represented by counsel, the anticipated length of the trial and whether there are co-accused.

(iii) The respondent

[76] The respondent acknowledges that the questions that have become known as the “Taylor test questions” do not reflect the fitness test. Rather, the respondent says that the fitness test arising from Taylor is, to borrow the terminology of Taylor, the “limited cognitive capacity” test. To the extent that there is confusion on this point, the respondent supports the appellant’s and intervener’s request that this court make the point clear: the Taylor test questions are not a proxy for determining fitness.

[77] The respondent also acknowledges that there is a need for an accused to be meaningfully present and to meaningfully participate in their trial. However, for the respondent, the concepts of meaningful presence and meaningful participation do not act as a free-standing fitness test, but as values infusing and giving life to the statutory s. 2 definition of “unfit to stand trial”.

[78] The respondent eschews any change within the fitness test that would inquire into an accused’s ability to make rational decisions in their best interests. This idea was rejected in Taylor for good reason, argues the respondent, because it would throw off the fine balance achieved in Taylor, one that ensures fairness for all in criminal proceedings. The respondent also contends that injecting other concepts of “rationality” into the fitness inquiry could be problematic, in the sense that it would introduce an undesirable degree of unpredictability into the test.

(c) Taylor and the “limited cognitive capacity” test

(i) Overview

[79] The Taylor case was decided in the almost immediate wake of the enactment of the s. 2 Criminal Code definition of “unfit to stand trial”.

[80] Mr. Taylor suffered from paranoid schizophrenia. In the proceedings below, a psychiatrist gave evidence that Mr. Taylor would be unable to instruct counsel “in a manner that would be in his best interests” (emphasis added).[^4] Relying upon this psychiatric opinion, the trial judge determined that Mr. Taylor was unfit to stand trial because his “delusions were so pervasive and irrational that he [would be] … unable to perceive his own best interests and how those interests should be addressed in the conduct of his trial”: at pp. 331, 339 (emphasis added).

[81] Mr. Taylor insisted at trial and on appeal that he was fit to stand trial and expressed his keen desire to proceed. On appeal, amicus maintained that the fitness hearing judge erred by applying too high a threshold for a finding of fitness. Amicus argued that the existence of delusions should not vitiate the presumption of fitness unless they interfere with an accused’s rudimentary understanding of the proceedings or the ability to recount “the necessary facts relating to the offence in such a way that counsel can then properly present a defence”: at p. 336. Interestingly, it was the Crown in Taylor that took the position that is advanced on behalf of the appellant in this case, namely that there is a best interests component to determining fitness.

[82] The submissions of amicus in Taylor are often cited as forming the content of what came to be known as the “limited cognitive capacity” test. That is wrong. While the court recounted the submissions of amicus on this point, those submissions were never adopted by the court: Taylor, at p. 336. Blair J.A. made this same observation in Morrissey, at para. 31, where he stated that the Taylor decision does “not say that the Court accepted the contention of amicus curiae in this regard.”

[83] This begs the question, what does the “limited cognitive capacity” test from Taylor involve and, just as importantly, what does it not involve?

(ii) Taylor says that the [s. 2](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) statutory definition of “unfit to stand trial” governs fitness determinations

[84] Taylor makes clear that all fitness determinations made pursuant to the Criminal Code are governed by the s. 2 definition of “unfit to stand trial”: at p. 332. See also p. 335.

[85] For ease of reference, the s. 2 definition is provided again:

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.

[86] Therefore, the first takeaway from Taylor is the reminder that, when considering the proper parameters of the fitness test, we must look to the s. 2 definition that Parliament has provided. Of course, this makes sense. It is not for the court to ignore Parliament’s voice and create a fitness test detached from the statute. Barring a successful constitutional challenge to the provision, it is for the court to interpret and apply the statutory test, taking into account the wording of the definition as understood through a purposive lens.

(iii) Taylor says that the concept of communicating rationally maintains a limited role in fitness assessments

[87] The Taylor decision also makes clear that the s. 2 definition of “unfit to stand trial” reflects nothing more than a statutory entrenchment of the “extensive case-law” that had come before: Taylor, at p. 335, citing the “learned editor [E.L. Greenspan] of Martin’s Annual Criminal Code 1993 [(Aurora, Ontario: Canada Law Book Inc., 1993)]”. Two of those prior authorities are cited in Taylor, both of which support the suggestion that the fitness test takes into account the accused’s ability to “rationally” communicate.

[88] The first decision is Reference Re Regina v. Gorecki (No. 1) (1976), 1976 CanLII 833 (ON CA), 14 O.R. (2d) 212 (C.A.). As noted in Taylor, at p. 336, Gorecki (No. 1) set “out the appropriate test at common law for unfitness.” In Gorecki (No. 1), at p. 218, this court attached considerable importance to the fact that the accused was able to “discuss the case rationally” and that the accused was able to “converse … rationally” with counsel throughout the trial (emphasis added).

[89] In addition to Gorecki (No. 1), the Taylordecision also adopts a lengthy passage from R. v. Steele (1991), 1991 CanLII 3882 (QC CA), 63 C.C.C. (3d) 149 (Que. C.A.), where the court emphasized the ability of the accused to “converse with counsel rationally” as a component of the fitness test: at p. 332 (emphasis added).

[90] Therefore, we understand the Taylor decision as accepting that in determining fitness to stand trial, some consideration must be given to whether the accused has the ability to converse or communicate rationally with counsel or the court. We will pause here for one moment to explain why we add “or the court.”

[91] The fact is that Gorecki (No. 1) and Steele, as well as Taylor at first instance, were all cases involving represented accused. Accordingly, the decisions address that scenario: rationally communicating with counsel. This does not, though, mean that where an accused is self-represented, this communication component of the fitness test evaporates.

[92] We appreciate that the s. 2 definition only makes reference to communicating with “counsel” (see para. (c) of the s. 2 definition of “unfit to stand trial” – “communicate with counsel”). However, read contextually, there is no question that the definition also extends to a self-represented accused communicating with the court. We say this for two reasons.

[93] First, the wording of the s. 2 definition accommodates both represented and unrepresented accused: “unable on account of mental disorder to conduct a defence [self-represented accused] … or to instruct counsel to do so [represented accused]” (emphasis added). Clearly, where a self-represented accused is conducting their own defence, they will communicate directly with the court.

[94] Second, the three specific statutory considerations embedded in the s. 2 definition are prefaced with the term “in particular”: “in particular, unable on account of mental disorder to …” (emphasis added). This expression signals that there “are other circumstances that do not appear on the list”, although “those circumstances must be similar in nature to the ones that are expressly mentioned”: R. v. Rafilovich, 2019 SCC 51, [2019] 3 S.C.R. 838, at paras. 69, 70, citing R. v. Lavigne, 2006 SCC 10, [2006] 1 S.C.R. 392, at para. 24. In our view, the ability of a self-represented accused to communicate with the court in conducting a defence is “similar in nature” to criterion (c), which involves the ability to “communicate with counsel”.

[95] We now return to what Taylor meant when it adopted authorities that accepted the ability to rationally communicate as an indicator of fitness.

[96] The adverb “rationally” can admit of different meanings in different contexts. Admittedly, the reference to “rationally” communicating, especially when it comes to communicating decisions, could be seen as signalling an inquiry into whether a decision is a sensible or reasonable one, or in other words, whether it is objectively in the accused’s best interests. As we will come to shortly, this type of an inquiry was specifically rejected in Taylor. So what, then, does the ability to “rationally” communicate involve?

[97] Taylor did not specifically address what was meant by “rationally” communicating. Therefore, the best we can do is look to Gorecki (No. 1), adopted in Taylor, for some meaning. In that case, this court described how Dr. Gorecki was able to give a detailed account of events to counsel, to instruct counsel not to advance a defence of insanity because he understood the consequences of such a defence, and even to assist counsel in the selection of a jury and the selection of witnesses. In other words, he could understand relevant information, apply that information in the context of his decision-making, and intelligibly communicate.

(iv) Taylor makes meaningful presence and participation at trial by the accused the “touchstones” of the fitness inquiry

[98] The Taylor decision also makes clear that to meet the “limited cognitive capacity” test, “the accused must have sufficient mental fitness to participate in the proceedings in a meaningful way”: Taylor, at p. 338 (emphasis added).

[99] In putting some parameters around what was meant by participating in a “meaningful way”, Taylor is clear that competing interests are at stake. For instance, the Taylor decision emphasizes that, while the dignity of the trial process must be maintained and accurate findings of guilt need to be made, the finality of criminal proceedings and the need to protect the autonomy of accused are also important principles that should not be lost in the mix.

[100] In Morrissey, at para. 36, Blair J.A. elaborated upon the language from Taylor – participating in the proceedings in a “meaningful way” – as including notions of both meaningful participation and meaningful presence at one’s trial, what he described as the “touchstones” of any fitness inquiry:

An accused must be mentally fit to stand trial in order to ensure that the trial meets minimum standards of fairness and accords with principles of fundamental justice such as the right to be present at one's own trial and the right to make full answer and defence: see R. v. Steele (1991), 1991 CanLII 3882 (QC CA), 63 C.C.C. (3d) 149, 4 C.R.R. (4th) 53 (Que. C.A.), at pp. 172-73 and 181 C.R.; R. v. Roberts (1975), 1975 CanLII 1394 (BC CA), 24 C.C.C. (2d) 539 (B.C.C.A.). Meaningful presence and meaningful participation at the trial, therefore, are the touchstones of the inquiry into fitness. [Emphasis added.]

See also: R. v. Adam, 2013 ONSC 373, 294 C.C.C. (3d) 465; R. v. Krivicic, 2011 ONCA 703, at paras. 33, 36; and R. v. Walker, 2019 ONCA 765, 381 C.C.C. (3d) 259, at paras. 40-42.

[101] These touchstones are undoubtedly important in applying the definition of “unfit to stand trial”. However, neither Taylor nor Morrissey suggest that the touchstones are or should become a stand-alone test for fitness. Nor could they be. Parliament has spoken by providing the s. 2 statutory definition for “unfit to stand trial”, and it is not for the court to replace it with another free-standing test. Accordingly, as the respondent suggests, the touchstones do not create a stand-alone fitness test but, rather, inform a purposive interpretation and application of the s. 2 definition of “unfit to stand trial”. In other words, they recognize that the fundamental purpose of the s. 2 definition is to ensure that all accused are able to be meaningfully present and meaningfully participate in their criminal trials, concepts that are rooted in trial fairness.

(v) Taylor rejects the need for “analytic capacity” or the ability to make rational decisions in one’s best interests

[102] Finally, as briefly mentioned already, the Taylor court rejected any notion that fitness to stand trial required an ability to make rational decisions in one’s best interests. As Lacourcière J.A. said, at p. 339, requiring such “analytic capacity” would set the bar too high:

In my opinion, the learned trial judge erred in adopting the “analytic capacity” test which establishes too high a threshold for finding the accused fit to stand trial by requiring that the accused be capable of making rational decisions beneficial to him. [Emphasis added.]

[103] Drawing upon R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933, Lacourcière J.A. expressed concern that imposing a test that inquired into an accused’s capacity to make “rational decisions beneficial to him”, what was referred to as an “analytic capacity” test, would threaten the accused’s “s. 7 right to liberty”: Taylor, at p. 338. This is because it would interfere with the accused’s ability to control their own defence. Lacourcière J.A. noted, at p. 338, that the ability of a fit accused to control their own defence includes the right to act to their own detriment:

An accused who has not been found unfit to stand trial must be permitted to conduct his own defence, even if this means that the accused may act to his own detriment in doing so. The autonomy of the accused in the adversarial system requires that the accused should be able to make such fundamental decisions and assume the risks involved.

[104] In other words, placing the concept of “analytic capacity” into the fitness test would threaten the autonomy of those living with mental health challenges, as it would remove from them certain decisions – even if they turn out to be objectively unwise decisions – that other accused are free to make.

[105] This point was reinforced in Morrissey, where the court firmly rejected any suggestion that an accused with a mental disorder needed to have the capacity to make rational or even sensible or reasonable decisions in their own best interests in order to be found fit to stand trial. In referring to a situation where the accused has counsel, Blair J.A. put it this way: the fitness test “does not require the accused to be capable of giving instructions to counsel that are in his or her best interests”: at para. 31. See also: Krivicic, at paras. 33-36.

[106] The appellant contends that Taylor should be overruled on this point, a submission that will be dealt with below.

(vi) Conclusion: Propositions from Taylor

[107] To summarize, properly interpreted, Taylor stands for the following propositions:

1. The s. 2 definition of “unfit to stand trial” ─ which at its core concerns itself with whether the accused is unable on account of mental disorder to conduct a defence or instruct counsel to do so – is the test for determining fitness. While it is open to the court to interpret that test in accordance with the principles of statutory interpretation, it is not open to the court to ignore the statutory test and create a new one.

2. As the s. 2 definition is a statutory entrenchment of the prior case law in the area, that case law guides the interpretation of its content. Based on that case law, an accused must be capable of communicating “rationally” with counsel or the court in order to be fit. This includes an inquiry into whether an accused is able to understand relevant information, apply that information in the context of their decision-making, and intelligibly communicate.

3. The touchstones of the s. 2 fitness inquiry ─ whether the accused can be meaningfully present and meaningfully participate at their trial ─ inform a purposive interpretation and application of the s. 2 fitness test. They do not constitute a stand-alone test for fitness.

4. The accused need not have the capacity to engage in analytic thinking in the sense that the accused need not be capable of making decisions in their own best interests.

[108] We would end the discussion of Taylor by noting this. There is no magic in the term “limited cognitive capacity”. The test could just as easily be named the “capacity to stand trial” test or, even more simply, the “fitness test”. What the term coined in Taylor – the “limited cognitive capacity” test – nicely signaled, though, was that the fitness test did not require that the accused with a mental disorder have analytic capacity or, as the court put it, the ability to make “rational decisions beneficial to him”: at p. 339. Still, this expression seems to have generated confusion. On a go-forward basis, therefore, particularly with the clarifications below, the fitness test can simply be known as the “fitness test”.

(d) The call for change to the fitness test: Addressing the arguments on appeal

[109] Now that we have a sense of what Taylor decided, we move on to address the ways in which we are asked to change Taylor.

(i) Are the Taylor test questions sufficient?

[110] Some have suggested that the fitness test from Taylor can simply be applied by obtaining answers to the Taylor test questions.

[111] Let us pause here to observe that the label “Taylor test questions” is a bit of a mystery. The questions, as previously set out in these reasons, are of uncertain origin.[^5] However, one thing is for certain: they are not to be found in the Taylor decision.

[112] In any event, for the reasons previously given, we agree with all counsel on appeal that those questions should never be used as the definitive test for fitness. While the questions are undoubtedly helpful in providing insight into an accused’s fitness, they will often fall short of the mark in terms of exploring whether an accused is unfit to stand trial because unfitness, as a state and as a legal standard, is far more complex. Quite simply, as already shown, determining an accused’s fitness to stand trial demands a much more nuanced inquiry than simply placing tick marks beside seven questions that can be answered “correctly”.

(ii) Is a rational understanding of one’s legal predicament necessary?

[113] The intervener says that, to the extent that Taylor did not make it clear, this court should affirm that the fitness test requires that the accused have an understanding of their “legal predicament” that is “rational” or reality-based.

[114] The respondent accepts that the accused must understand their legal predicament, in the sense that they understand the nature or object of the legal proceedings and the possible consequences that could flow, but takes issue with the word “rational”. The respondent contends that the word “rational” injects too much imprecision into the interpretation and application of the fitness assessment, wrongly inviting a qualitative and observer-dependent inquiry into whether the accused is capable of making wise choices in their best interests. Accordingly, while the respondent accepts the need for a “genuine understanding” – similar to what Trotter J. (as he then was) referred to in Adam, at para. 33, as the need for an “authentic” understanding of the nature or object of the proceedings – the respondent does not accept the need for an accused person to have a “rational” understanding of their legal predicament.

[115] In our view, there is no light between the intervener and respondent on this point. They simply use different adjectives to describe the same thing. Those adjectives – rational, genuine, and authentic – are all driving at a similar concern. That concern is whether the accused’s degree of understanding is so impaired by a mental disorder that they cannot understand the true nature or object of the proceedings and the possible consequences that could result. Where this degree of impairment arises from a mental disorder, an accused will be unable to be meaningfully present or meaningfully participate at trial, precisely what the s. 2 definition guards against.

[116] Therefore, whether we call it a rational, a genuine or even an authentic understanding, it makes no practical difference, since these terms all get at the same idea: the accused must have a reality-based understanding of the nature and object and possible consequences of the proceedings such that they can be meaningfully present and meaningfully participate at trial.

(iii) Must the accused also have the capacity to make decisions and, if so, what does that involve?

[117] The intervener relies upon Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, to suggest that an accused requires the capacity to make decisions based upon relevant information and an appreciation of the reasonably foreseeable consequences of those decisions. In advancing this submission, the intervener analogizes to the statutory test for capacity under s. 4(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A: “A person is capable with respect to a treatment … if the person is able to … appreciate the reasonably foreseeable consequences of a decision or a lack of decision” (emphasis added).

[118] We agree that decision-making is part and parcel of the fitness test. This is clear from the s. 2 definition, which concerns itself with whether, on account of a mental disorder, the accused is “unable … to conduct a defence … or to instruct counsel to do so”. Whether conducting a defence as a self-represented accused, or instructing counsel to do so, an accused must have the capacity to make decisions. Even where an accused is represented by counsel, some critical decisions remain those of the accused ─ decisions such as how to plead, how to elect and whether to testify. Quite simply, the purpose of the s. 2 inquiry into fitness cannot be achieved if an accused is incapable of making decisions because, without that capacity, there can be no meaningful presence or participation at trial.

[119] We would add here that the ability to make a decision is only as good as the ability to understand the available options, the ability to select from those options and the ability to intelligibly communicate to either counsel or the court the decision arrived upon. Does that mean the accused must be able to appreciate the reasonably foreseeable consequences of a decision, as the intervener suggests?

[120] The respondent contends that the intervener’s request for a fitness test that includes an inquiry into the accused’s ability to appreciate the reasonably foreseeable consequences of a decision is precluded by operation of Whittle. In Whittle, Sopinka J., on behalf of the court, considered the elements of the confessions rule, the right to silence and the right to counsel. Of course, the first two have acquired constitutional status as principles of fundamental justice under s. 7 of the Charter and the third is expressly recognized under s. 10(b) of the Charter: Whittle, at pp. 931-32. The court was called upon to decide whether the “principle of awareness of the consequences” should form part of any of the tests informing those rights.

[121] Adopting the reasoning in Tayloras applicable to the rights at issue in Whittle, Sopinka J. rejected that an accused must be aware of the actual consequences of their decision to speak to the police or speak with counsel. This rejection was rooted in his view that requiring the accused to have the capacity to reasonably foresee the consequences of individual decisions would have the inappropriate effect of injecting an “analytical reasoning” component into the test, which Sopinka J. specifically noted was rejected by this court in relation to the fitness test in Taylor.

[122] Sopinka J. explained that under the “operating mind test”, which is an aspect of the confessions rule, the accused need have only a “limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in the proceedings against [them]”: at p. 941 (emphasis added). As Sopinka J. pointed out, the test goes “no further and no inquiry is necessary as to whether the accused is capable of making a good or wise choice or one that is in his or her interest”: at p. 939.

[123] The court was clear, though, that the test included the accused’s capacity to understand what he was saying and what others were saying. This included the ability to understand a caution that any statement given could be used against them.

[124] Therefore, properly understood, Whittle is not inconsistent with the idea that, at a basic level, an accused must be able to appreciate the possible consequences of a decision. In other words, the accused must understand the options available to them and the consequences that may arise from exercising those options. However, at the end of the day, the fact that the accused may make an objectively poor decision is irrelevant to the fitness assessment.

[125] In conclusion on this point, it may be helpful to provide an example. There comes a time in a trial where all accused, whether self-represented or not, must decide whether to testify. In making that decision, the accused must be able to understand that this is their decision alone. The accused must also be able to understand that the consequence of not testifying will be that their version of events will not form part of the evidence considered by the trier of fact. And, the accused must be able to understand that the consequence of testifying is that they may or may not be believed. In addition, the accused must be able to understand that if they testify, they will be open to cross-examination. Provided that the accused has the ability to understand these things, it matters not whether their actual decision is objectively unwise in the circumstances.

(iv) Should this court overturn Taylor and inject “analytic capacity” into the fitness test, so that an accused must have the ability to make rational decisions in their best interests to be fit?

1. Criticisms of Taylor

[126] The appellant finds himself in the company of others when he argues that Taylor set the bar for a finding of fitness to stand trial too low, such that a large group of accused are tried when they are actually unfit to stand trial: Morrissey, at para. 27; Joan Barrett & Riun Shandler, Mental Disorder in Canadian Criminal Law (Toronto: Thompson Carswell, 2022), at pp. 3-2, 3-7 to 3-14; Schneider & Bloom, at p. 77; Melody Martin, “Defending the Mentally Ill Client in Criminal Matters: Ethics, Advocacy, and Responsibility” (1993) 52 U. Toronto Fac. L. Rev. 73; Adam, at paras. 25-26; and R. v. Xu, [2007] O.J. No. 5796 (Ont. C.J.).

[127] Many of these criticisms suggest that Taylor wrongly rejected the “analytic capacity” test, i.e., the capacity for rational decision-making in one’s best interests. To this end, a sentence from Trotter J.’s decision in Adam has been interpreted by some, including the appellant, as eroding the “limited cognitive capacity” test from Taylor by injecting an element of “analytic capacity” into the test. The sentence from Adam, at para. 29, begins: “It cannot seriously be contended that rationality has no role to play” in determining if an accused is unable on account of mental disorder to conduct a defence or instruct counsel to do so.

[128] This sentence is not helpful to the appellant’s position.

[129] We do not read the Adam decision as suggesting that analytic capacity is a prerequisite to a finding of fitness. Indeed, in the very next paragraph following the reference to “rationality”, the decision states the question at issue as being whether, because of mental disorder, the accused was able to “meaningfully participate in his trial by defending himself”: at para. 30. This was clearly a reference to the reasons of Blair J.A. in Morrissey, at para. 36 (reproduced above at para. 100).

[130] In answering that question, the trial judge went directly to the s. 2 fitness criteria. He noted concerns with Mr. Adam’s understanding of the nature and object of the proceedings and his “fundamental deficits in communication.” Ultimately, while the trial judge concluded that Mr. Adam was not behaving “rationally”, it was in the following sense, as described by the trial judge at para. 29: “Moreover, the three arms of the fitness test (in s. 2(a) to (c)) are not free-standing fitness criteria to be mechanically applied; instead, they are tools to assist in determining whether a mentally ill accused person is able to defend him or herself.”

[131] We see nothing in Adam to support the proposition that a form of “analytic capacity” should be a measure of fitness to stand trial.

[132] The question remains, should this court add it? As we will explain, the answer is no.

2. Rejection of the two-test approach

[133] The appellant’s position does not simply ask that we add to the pre-existing fitness test. Rather, it asks that we specifically overturn what this court said in Taylor. While the appellant acknowledges that this is the likely outcome of moving to a rational decision-making/best interests test, he offers a way around overturning Taylor with a two-test approach.

[134] To this end, the appellant contends that Taylor can be interpreted narrowly, as only applying to those accused with a mental disorder who are represented by counsel at trial. After all, in those situations, counsel can make the rational decisions designed to meet the accused’s best interests. The appellant argues that, if we were to interpret Taylor as only applying to the represented accused, then we could have two different tests for fitness, the “limited cognitive capacity” test from Taylor for represented accused and an augmented test for self-represented accused. Only the latter would be supplemented to include the prerequisite that the accused be capable of rational decision-making in their best interests.

[135] There are two reasons why we would reject the call for two tests.

[136] First, as already mentioned, even represented accused have fundamental decisions to make about their defence, such as mode of trial, how to plead and whether to testify: G.A. Martin, “The Role and Responsibility of the Defence Advocate” (1970)12 Crim. L.Q. 376, at p. 378. These are fundamentally the decisions of the accused. We reject the notion that if a self-represented accused requires the ability to make rational choices in their best interests, this would not apply with equal force in the case of fundamental decisions that remain exclusively within the domain of even those accused who are represented at trial.

[137] Second, as previously noted, it is a simple reality that, particularly in the context of those accused with mental disorders, there can be frequent pre-trial and mid-trial transitions between represented and self-represented status. Disparate tests for fitness to stand trial would undoubtedly wreak havoc on trials involving those with mental disorders.

[138] In summary, there needs to be a single test for fitness that is applied equally to all accused. That does not mean, however, that an assessment of fitness should be made in a contextual vacuum. All criminal cases take context into account, and fitness assessments are no exception to the rule.

[139] The intervener submits that there are a multitude of contextual factors that may inform whether an accused is fit to stand trial. For instance, the intervener points to the complexity of the proceedings, the anticipated length of the trial, whether there are co-accused, and whether the accused is self-represented or not.

[140] The respondent expresses concern regarding the proposed contextual approach because some contextual factors may be unknown or unpredictable at the time the fitness issue arises and, indeed, some may change over the course of a trial. This is because, despite best efforts at case management, trials are notoriously elastic in nature: they take completely unexpected turns.

[141] While we agree with the respondent that contextual factors may be unknown or unpredictable at the time that fitness determinations are made, and may even vary over time, this is not a reason to disregard context. In our view, fitness determinations simply cannot be made in the abstract because, at their core, fitness hearings are focussed on this accused who is facing a specific legal predicament in a specific context in the here and now. That context forms the backdrop against which the statutory test – whether the accused is unable on account of mental disorder to conduct a defence or instruct counsel to do so – is applied.

[142] At the same time, we note that contextual factors must not be permitted to hijack fitness hearings. At all times, those hearings must remain focussed on the single statutory test. While the application of that test is informed by context, it is not definitively governed by context.

[143] While it is true that some contextual factors may change over the course of a trial, those changes should not be seen as free-standing invitations to relitigate fitness. New fitness assessments should only be ordered and new fitness hearings held where the statutory criteria for taking these steps are met: see, for example, Criminal Code, ss. 672.11(a), 672.12(1), and 672.23. Trial judges are well-positioned to make that assessment.

3. No reason to overturn Taylor by injecting the ability to make rational decisions in one’s best interests into the fitness test

[144] For the reasons that follow, we would not reverse Taylor to incorporate a need for those accused with a mental disorder to have the ability to choose rationally what is in their best interests in order to be fit.

####### a. The underlying rationale for the fitness rules

[145] Upon a finding that an accused is unfit to stand trial, the accused is removed from the criminal justice system and placed under the jurisdiction of the Review Board: Part XX.1 of the Criminal Code. When this occurs, the implications for an accused, including for their liberty, can be serious.[^6]

[146] Being put under the jurisdiction of the Review Board results in serious unpredictability for the unfit accused. Once under the expert board’s jurisdiction, unfit accused will stay there until the Review Board finds them fit to stand trial (Criminal Code, ss. 672.47, 672.48), or the court grants a stay of proceedings on the basis that the accused will remain permanently unfit, is not a significant threat to the safety of the public and a stay is in the proper administration of justice (Criminal Code, s. 672.851). Therefore, and to be clear, once found unfit to stand trial, the still presumed innocent accused, even the still presumed innocent accused who insists on having their trial, is denied their trial.

[147] There are serious powers that accompany the transfer of jurisdiction from the criminal justice system to the Review Board system, including the ability of a judge to order that the accused be medicated to make them fit without the accused’s consent: Criminal Code, s. 672.58. This is a profound power: Centre for Addiction and Mental Health v. R., 2014 SCC 60, [2014] 3 S.C.R. 82, (sub nom. R. v. Conception), at para. 31. Undoubtedly, the Review Board, an expert board in Ontario, executes its responsibilities under the legislation with precision and care. The point is, though, that the accused is out of the criminal justice system, only to be returned when the Review Board deems him fit: Criminal Code, ss. 672.47, 672.48.

[148] Thus, it has been recognized by some who work with those accused with mental disorders that one cannot lose sight of the fact that a finding of unfit to stand trial is not necessarily a panacea for the accused: Michael Davies & Lee Sela, “Fit to be Tried!” (delivered at the County of Carleton Law Association 27th Annual Criminal Law Conference, 27-28 October 2015), 2015 CanLIIDocs 5059. In particular, Mr. Davies and Ms. Sela write:

Under the Taylor test only the most profoundly ill will be designated as unfit to stand trial. Individuals who overcome this low threshold will be able to proceed with their cases in the usual fashion. For some accused, proceeding with the case may result in an acquittal and an end to the proceedings against them. For others it will lead to a conviction and sentencing. From some perspectives even these latter individuals may be better off being sentenced over being found unfit. If the sentence involves short custody or no custody at all they will likely find themselves in the community a lot quicker than being found unfit to stand trial.

[149] In short, an accused who is found unfit to stand trial could end up with a greater loss of liberty than had they gone to trial and been acquitted or, if convicted, sentenced to a shorter period of time: see e.g., J.P.T. (Re),[2022] O.R.B.D. No. 833; Mamdo (Re), [2022] O.R.B.D. No. 789; Pitawanakwat (Re), [2022] O.R.B.D. No. 376; R. v. Lynch, 2021 ONCJ 595; R. v. McDonald, 2019 ONSC 3819; and R. v. Karimian-Kakolaki, 2016 ONCJ 336.

[150] To be clear, this is not an argument for trying the unfit. Regardless of the implications that may arise from a finding of unfitness, the integrity of a fair criminal justice system demands that we not set the fitness test too low. However, by setting out the preceding context, we hope to demonstrate that casting the net too widely in terms of those who are unfit to stand trial does not come without serious implications for many accused. This is particularly true for those accused who, while living with mental health challenges, want to proceed to trial.

[151] It is also important to train the lens on the wider systemic issues that can result from findings of unfitness. For example, a finding of unfitness will often significantly delay a determination of the merits of the case. Such delay undoubtedly impacts victims of crime, witnesses and the broader community who anxiously await the resolution of criminal charges. Delays may also have an impact on the criminal proceeding itself, given that memories fade, witnesses become unavailable, and evidence degrades: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 20. There can be no serious dispute that, wherever possible, trials should proceed as quickly as possible: Jordan, at para. 84.

[152] Therefore, while fairness demands that those who are unfit to stand trial cannot be placed on trial, correctly calibrating the fitness test requires that it be considered within this broader context.

####### b. An accused is entitled to control their own defence

[153] As we have already noted, it is a principle of fundamental justice under s. 7 of the Charter that an accused has the right to control their own defence: Swain, at p. 936. Of course, if an accused is found unfit to stand trial, then they are no longer in a position to choose their defence. As noted in Taylor, setting too high a threshold for fitness, such as requiring a “best interests” component, derogates from the right to choose one’s defence and present it according to the accused’s choice: Taylor, at p. 338.

[154] This principle of fundamental justice is directly rooted in the autonomy of accused individuals. As recognized in Taylor, we do not demand of those accused without a mental disorder that they be capable of making rational decisions in their best interests. Indeed, anyone in the criminal justice system for any length of time knows that fit accused, some represented and some not, make what appear to be unwise decisions.

[155] The authors of Mental Disorder in Canadian Criminal Law recognize that reality, noting that “[m]any accused persons for whom mental disorder is simply not an issue would not meet the analytical capacity test”: at pp. 3-7. For instance, many accused who have no mental disorder “routinely make decisions contrary to their best interests, whether self-represented – arguably, the ultimate bad decision – or by choosing to ignore their counsel’s advice:” at pp. 3-7. Many of those accused will be incapable of making what the reasonable observer would consider to be sound legal decisions, not because of mental disorder, but for any number of reasons, including rage, conscience, hate, love, frustration, religious beliefs and so on: see e.g., R. v. Jaser, 2015 ONSC 4729, at paras. 8, 21.

[156] We do not say to those people “you cannot do that”, or “you cannot have a trial until you show more wisdom in your choices”. If we would not say that to someone who faces no mental health challenges, why would we say it to a person who faces mental health challenges? As Laskin J.A. said in the context of guilty pleas, “inviting the court to decide whether accuseds have made wise decisions” would “smack of paternalism”: R. v. W. (M.A.), 2008 ONCA 555, 237 C.C.C. (3d) 560, at para. 35. This is not the function of the court.

[157] We must respect the autonomy of all accused persons. Like everyone else, accused persons living with mental health challenges ─ and there are a lot of them ─ must maintain the right to make decisions based upon choices that others may or may not see as the most sensible or wise, decisions that may even cut against their interests, provided they are fit to stand trial.

####### c. The other protections in place

[158] When considering whether to inject an “analytic capacity” test into the fitness inquiry, it is important to reflect on the supports that are in place for those who may be living with mental health challenges and who find themselves before the criminal courts, even as self-represented accused. They are not alone at trial.

[159] We have a rich history in Canada of a prosecutorial system that is rooted in the requirement that Crown counsel act as quasi-judicial officers: R. v. Boucher, 1954 CanLII 3 (SCC), [1955] S.C.R. 16; R. v. Cook, 1997 CanLII 392 (SCC), [1997] 1 S.C.R. 1113; R. v. Piccirilli, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; and Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214.

[160] Equally, we have a rich history in Canada of trial judges who live up to the obligation of assisting not only self-represented accused, but also accused living with mental health challenges who are sometimes self-represented: R. v. Richards, 2017 ONCA 424, 349 C.C.C. (3d) 284, at para. 112; R. v. Chemama, 2016 ONCA 579, at paras. 13-14; R. v. Mahadeo, 2014 ONSC 1327, 304 C.R.R. (2d) 307, at paras. 4, 17-18.

[161] And then there is the role of amicus curiae. In cases involving self-represented accused with mental disorders, amicus is often appointed to assist the court and the accused, to be a voice of reason and calm in the courtroom, to advance submissions where necessary and to ensure that the justice of the case is met: R. v. Imona-Russell, 2013 SCC 43, [2013] 3 S.C.R. 3.

[162] As will be discussed, all of these protections were at play in the appellant’s trial.

####### d. Harmony in the law

[163] At this point, there are a good number of decisions built on the “limited cognitive capacity” test from Taylor, including Whittle. In Whittle, the Supreme Court noted the value of harmonization, stressing that, unless there is some good reason, different standards of competency should not be applied for different aspects of criminal proceedings: at pp. 939-40. Accordingly, as a reflection of that harmony, Whittle adopted Taylor in order to harmonize the law as it relates to “analytic capacity” across boundaries: the law of fitness to stand trial, the law of voluntariness, the right to counsel and the right to silence.

[164] While we agree with the appellant that harmonizing bad law is a bad objective, we do not see Whittle’s rejection of “analytic capacity” as bad law. The decision remains a persuasive, if not binding authority, on this court.

[165] Equally, as already mentioned, the rejection of “analytic capacity” has also found favour in another attempt at harmonization, the guilty plea context: W.(M.A.), at paras. 27-33. See also: R. v. C.K., 2021 ONCA 826, 410 C.C.C. (3d) 428; R. v. Cherrington, 2018 ONCA 653; R. v. Baylis, 2015 ONCA 477, 326 C.C.C. (3d) 18; R. v. Tallio, 2021 BCCA 314; and R. v. Henneberry, 2017 NSCA 71, 351 C.C.C. (3d) 365.

[166] Accordingly, harmony in the law weighs in favour of not reversing Taylor on the point of “analytic capacity”.

(v) Conclusion: The fitness test clarified

[167] To sum up, the following principles should inform all fitness assessments:

1. There is one fitness test for all accused, whether represented by counsel or not. This test is applied contextually.

2. The test for fitness is set out in the statutory definition of “unfit to stand trial” in s. 2 of the Criminal Code.

3. A person is unfit to stand trial if, on account of mental disorder, the person is unable to conduct a defence or to instruct counsel to do so.

4. The purpose of the s. 2 fitness test is to ensure that the accused can be meaningfully present and meaningfully participate at their trial. These touchstones inform a purposive interpretation and application of the s. 2 fitness test and do not themselves constitute a stand-alone test.

5. The Taylor test questions are not a sufficient surrogate for assessing fitness but are helpful in providing insights into an accused’s abilities in relation to the s. 2 criteria. Applying the fitness test is more nuanced than the questions recognize.

6. The accused must have a reality-based understanding of the nature and object and possible consequences of the proceedings.

7. The accused must have the ability to make decisions. This involves the ability to understand available options, the ability to select from those options, the ability to understand the basic consequences arising from those options, and the ability to intelligibly communicate to either counsel or the court the decision arrived upon.

8. The accused need not have the capacity to engage in analytic thinking in the sense that the accused need not be capable of making decisions in their own best interests.

[168] With the above principles summarized, we now turn to address the appellant’s submissions with respect to his own fitness in the proceedings below.

(e) Theappellant was fit to stand trial

[169] The appellant says that he was not fit to stand trial and was wrongly tried for first-degree murder. He points to alleged errors with respect to the second fitness hearing and the trial.

(i) The second fitness hearing

[170] The appellant takes issue with the fitness assessment conducted by the psychiatrist who testified at the second fitness hearing. He also takes issue with Code J.’s failure to require an assessment that took into account the appellant’s self-represented status and with the adequacy of Code J.’s instruction. Before addressing his specific concerns, we begin by providing some context.

[171] The appellant says that it was clear, all the way up to the second fitness hearing, that everyone appreciated he was unfit to stand trial. He points to various passages in the transcript where McMahon J., the very experienced case management judge, and Crown counsel expressed concern over his fitness even though, in their view, the fitness test fell short of identifying him as unfit.

[172] At that point in time, the appellant was engaging in long ramblings in court, where he expressed the view that medication was being surreptitiously put in his food, that gases were being released into his jail cell, that people were “using” him for the “benefit of their entertainment” and to “spread dirty things” about him, that people were using technology to “mock” him and that people were attempting to “weaken” him right before trial.

[173] At one point, the very experienced trial Crown expressed the view that there appeared to be a “gap in the fitness criteria” that required expansion to accommodate a “man who is incapable of defending himself”.

[174] Ultimately, as has already been explained, the appellant was found unfit to stand trial by the first fitness jury. He was then made the subject of a make-fit order under s. 672.58 of the Criminal Code and sent to Waypoint. While at Waypoint, he met with Dr. Komer seven times. He also met with Dr. Komer once more at the courthouse on the morning of the second fitness hearing.

[175] At the second fitness hearing, the appellant and Crown counsel took the position he was fit to stand trial. Notably, amicus, who had submitted to the first fitness jury that the appellant was unfit to stand trial, did not raise any issues regarding fitness. This was despite the fact that Code J. specifically invited amicus to raise any concerns he might have.

[176] Dr. Komer testified at the hearing that the appellant was fit to stand trial. He also explained that, despite the make-fit order, which would have allowed him to take the extraordinary step of medicating the appellant without his consent, he saw no need to medicate the appellant because the appellant was not at that time presenting with any active symptoms of a psychotic illness. Dr. Komer, who had conducted thousands of fitness assessments and had been a psychiatrist for 26 years, emphasized the “highly unusual situation” he faced, dealing with a patient who had come to the hospital on a treatment order, but who did not need to be medicated. Indeed, he could think of only a “very few cases” where that had ever happened in his experience.

[177] Turning to the appellant’s submissions, he first argues that Code J. erred by failing to require that the fitness assessment done by Dr. Komer address his self-represented status. While Dr. Komer’s report made no mention of the fact he was self-represented, the transcript makes clear that Dr. Komer knew the appellant was self-represented but determined that he would “be able to communicate in the court if necessary”.

[178] The appellant also argues that the result at the second fitness hearing came from the fact that Dr. Komer and, by inference, the jury, because of inadequate jury instructions, only considered the appellant’s responses to the Taylor test questions when determining his fitness. However, this is not consistent with Dr. Komer’s evidence or the charge delivered by Code J.

[179] Dr. Komer testified well beyond the colloquially named Taylor test questions. Indeed, he spent a good deal of time making reference to the appellant’s ability to communicate “well”. For instance, given the appellant’s self-represented status, Dr. Komer was asked during the hearing whether the appellant had the capacity to communicate with the court. Dr. Komer testified that, in his opinion, the appellant had no difficulty understanding and effectively communicating his answers to questions appropriately. While the appellant did not answer certain questions, in Dr. Komer’s view, he was able to answer, but simply made a choice not to do so.

[180] As for the jury charge, it is a long distance from simply asking the jury to consider the Taylor test questions in determining the appellant’s fitness. To give you a flavour of the charge, the jury was told to consider whether the appellant was able to:

• “speak rationally with the court”;

• “understand questions”;

• “answer questions”; and

• “make decisions after receiving instructions from the court”.

[181] The jury was also asked to consider whether the appellant could “engage in discourse back and forth with the court or with counsel about the court proceedings and about the events in question”.

[182] We will not go on. The point is that the jury charge was a long distance from simply looking to place tick marks beside the Taylor test questions. It was consistent with the principles previously set out.

(ii) The trial

[183] The appellant argues that the trial judge erred by failing to order a further fitness hearing during the trial. The appellant contends that, between his comments and behaviour at trial, there were reasonable grounds to believe that he was unfit and that the trial judge erred by not ordering that the issue of fitness be tried again. With respect, we do not agree.

[184] Under s. 672.12 of the Criminal Code, the trial judge on his own motion, or the parties, could have asked that an assessment order be made. And, under s. 672.23 of the Criminal Code, the trial judge on his own motion, or the parties, could have asked that a hearing into fitness be directed. There are two reasons why that did not happen.

[185] First, no one asked for any order relating to the appellant’s fitness. Of particular note is the fact that the experienced amicus curiae did not ask. Nor did the experienced trial Crown.

[186] Second, the trial judge was without grounds to believe the appellant’s fitness was in issue: Criminal Code, ss. 672.11(a), 672.23. Indeed, the trial judge was actually of the view that the appellant remained fit. How do we know this? Because the trial judge said it at the opening of trial (see Appendix “A”) and then repeated it a few times throughout the trial. For instance, four weeks into the trial, the trial judge said: “[the appellant] remains fit to stand trial, and my observations of him throughout these proceedings reinforces my opinion that there was no need to require a further fitness hearing. In other words, I am satisfied that [the appellant] remains fit to stand trial.”

[187] It is true that on more than one occasion during the trial the appellant demonstrated that he was suffering from paranoia, delusions and auditory hallucinations. It is not disputed on appeal that the appellant had mental health challenges and that managing his symptoms over the course of a 10-week trial posed a difficult task for all trial participants. However, as will be clear from these reasons, the transient presence of mid-trial delusions or paranoia does not automatically reverse the presumption of fitness. What matters is whether the appellant was able to be meaningfully present and a meaningful participant in his trial, viewed through the lens of the s. 2 criteria.

[188] In the end, despite his mental health challenges, the appellant never lost the ability to understand the nature and object of the proceedings, or its consequences or his ability to make decisions and communicate with the court. He was able to meaningfully present his defence with the assistance of amicus curiae, with whom he maintained a relationship.

[189] There are numerous examples of the appellant’s engagement in the trial process. For instance, while the appellant gave an opening address that expressed clearly paranoid ideas, he was permitted to give a second opening address to the jury. That opening included the following relevant statement, reflecting his ability to understand the nature of the proceedings, his legal predicament, and the roles of various participants at trial, and to communicate with the court:

I intend to call witnesses who bear witness to my behaviour, my actions, my appearance, my tendencies, what had changed me and what was different in me. There are experts who you should see who shall speak about mental illness and other factors that are related to it. There is much to learn.

[190] Another example is the appellant’s delivery of an intelligible and on-point closing address to the jury where he spoke about the fact that, at the time of the offence, he could not access the moral wrongfulness of his actions. Yet another example relates to him having provided his notes to the trial judge, summarizing the defence position, prior to closing arguments. The trial judge referred to the notes as “thoughtful”. The appellant was also able to call numerous relevant and helpful witnesses in his defence and in so doing made important tactical decisions, such as whether to permit the assistance of amicus. For example, while he conducted many of the examinations in-chief, he entrusted amicus with the important examinations of the defence psychiatrists who were instrumental to his NCR defence.

[191] The point is that the appellant was engaged in this trial and demonstrated through his words and actions that, while he undoubtedly faced mental health challenges, he was fit to stand trial. The record demonstrates that he had the ability to and did understand the nature and object of the proceedings, and their possible consequences. He was able to communicate well with the court and, indeed, with amicus curiae. He was meaningfully present at his trial and fully engaged in the proceedings. He participated well at trial. He was not only capable of making decisions, but did make decisions. When his symptoms of mental illness impacted the proceedings, the record clearly displays that the trial judge was able to sensitively and patiently work with the appellant to address concerns as they arose.

[192] In conclusion, the trial judge was without grounds to believe the appellant’s fitness was in issue and thus made no error in failing to order a fitness assessment.

(iii) The fresh evidence on the fitness issue

[193] The appellant seeks the admission of fresh evidence from two psychiatrists ─ Dr. Derek Pallandi and Dr. Sumeeta Chatterjee ─ who were asked to provide post-trial opinions on the appellant’s fitness at trial. Dr. Pallandi was retained by the appellant and Dr. Chatterjee by the respondent.

[194] Section 683(1) of the Criminal Code allows this court to receive fresh evidence where it is in the interests of justice to do so. In determining where the interests of justice lie, we look to the Palmer test, which hinges on the admissibility of the evidence, its cogency and the explanation for its lateness: R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 760; Krivicic, at para. 42; and R. v. Manasseri, 2016 ONCA 703, 344 C.C.C. (3d) 181, at paras. 197-225. In assessing cogency, the court will consider whether the evidence touches on decisive or potentially decisive issues, whether it is credible (reasonably capable of belief) and whether it is sufficiently probative that, when taken with other evidence from trial, it would reasonably be expected to have affected the result.

[195] Given our decision not to admit the proposed fresh evidence on the fitness issue, we do not intend to discuss it in detail.

[196] We reject Dr. Pallandi’s evidence.

[197] Dr. Pallandi suggests that the appellant was unfit to stand trial. He says that the appellant’s decision to proceed as a self-represented accused was a direct result of his “misperception of the process”, one where he was “unable (not unwilling) to trust the process”, which in turn led him not to allow anyone to assist him.

[198] By contrast, as part of her assessment, Dr. Chatterjee actually asked the appellant why he represented himself. The appellant said he was self-represented because he had an argument with his lawyer and so he fired him. She also asked the appellant about his relationship with amicus, and he acknowledged that he had come to trust the amicus who had “helped [him] with … a number of things.” The trial record reveals that the appellant actually did entrust fundamental duties to amicus at trial. Accordingly, we would reject Dr. Pallandi’s evidence on this point.

[199] There is another difficulty with Dr. Pallandi’s opinion. He opined that by self-representing, the appellant had “effectively” disqualified himself from making “viable tactical considerations at trial”. In cross-examination, Dr. Pallandi said that this was because the appellant had poor insight into the fact that he has a mental illness and so was “unable to apply concepts regarding mental disorder to himself”. As a result, Dr. Pallandi said that had the appellant been represented by counsel, they “could have … considered a mental health defence at the time.” This opinion is inconsistent with the record that Dr. Pallandi had to review in preparing his fitness opinion, a record that demonstrates that an NCR defence was advanced.

[200] Accordingly, we would not admit Dr. Pallandi’s evidence on the fitness issue.

[201] Nor would we admit Dr. Chatterjee’s evidence on this point. She opined that, on an overall basis, the appellant was fit to stand trial, but she did admit in cross-examination that she was “not suggesting that at every point in time [the appellant] would have met [the] threshold for fitness.”

[202] We agree with the respondent that, whatever the length of time that the appellant may have appeared unfit at trial, ordering an assessment at those moments in time would have made no difference to the outcome. As Dr. Chatterjee put it:

[W]hen he does go off the rails, within a reasonable amount of time through my retrospective analysis he is able to get back on track, stay on point and to mount a rational defence that arguably, even in the best interest threshold, may have been in his best interest if he’s raising NCR or trying to diminish his first degree murder charge to manslaughter.

[203] This comment is true to the record. While the appellant undoubtedly expressed, at various times, various paranoid ideations, with the trial judge’s assistance, he would just as quickly get back on track.

[204] This does not constitute evidence that could reasonably be expected to have affected the result, because it adds nothing new. We would not admit the evidence on this point.

(f) Conclusion on fitness

[205] It is difficult to think of a more demanding test for the proper administration of justice than a first-degree murder trial with a self-represented accused with a mental disorder. Despite the mental health challenges he faced, the appellant was able to meaningfully participate in his trial by conducting a defence with the assistance of amicus.

[206] Counsel and the trial judge kept their focus trained on ensuring the fairness of the proceedings. The amicus played an invaluable role in the administration of justice. So too did the Crown counsel, who clearly understood the need to perform in the highest traditions of the Crown, as a quasi-judicial officer. As for the trial judge, he had a full command of the courtroom. He had a deep understanding of the complexities of the individual before the court. He understood the law and applied it.

[207] This ground of appeal must fail.

(2) The voluntariness of statements to Dr. Woodside

[208] The appellant takes issue with the trial judge’s failure to direct a voir dire of his own motion to determine whether Dr. Woodside, who was a Crown expert at trial, was a person in authority for purposes of the confessions rule and, if so, whether statements the appellant made to him were made voluntarily.

(a) Background

[209] On September 16, 2015, Dr. Woodside prepared an opinion indicating that the appellant was not NCR under s. 16 of the Criminal Code. That opinion rested in part upon statements made by the appellant about his sexual preferences. Specifically, the appellant told Dr. Woodside that he had considered certain things, including an act of necrophilia. This raised the possibility that the murder was sexually motivated.

[210] Given that he advanced an NCR defence, the appellant’s otherwise protected statements to Dr. Woodside were no longer protected: Criminal Code, s. 672.21(3)(e).

[211] The trial judge canvassed the extent to which Dr. Woodside’s evidence should be heard by the jury. In particular, the trial judge was concerned that the appellant’s statements about his sexual preferences were too prejudicial, which could outstrip their probative value. Accordingly, an admissibility voir dire was held.

[212] Prior to examining Dr. Woodside on that voir dire, the appellant made submissions to the court, claiming that Dr. Woodside’s conduct had been inappropriate, that Dr. Woodside had made a comment that the appellant found to be disparaging and that Dr. Woodside had “pressured” and “intimidate[d]” him during the interviews by “emphasizing on the questions related to sexual topics and sexual ideation.” The Crown took the position that the entirety of Dr. Woodside’s opinion should be allowed.

[213] Ultimately, the trial judge allowed Dr. Woodside’s evidence in full, finding that the probative value of the sexual preference evidence was not outweighed by its potential for prejudice.

[214] For the first time, in this court, the appellant argues that the trial judge erred in failing to direct a voir dire of his own motion to determine whether Dr. Woodside was a person in authority for purposes of the confessions rule and, if so, whether the statements the appellant made to him were made voluntarily. The appellant says that the trial judge’s duty to hold a voluntariness voir dire was engaged because of statements made by the appellant at the admissibility voir dire, the fact that the appellant was self-represented and the fact that Dr. Woodside was a court-ordered assessor upon the Crown’s request. The appellant argues that, to make this error out on appeal, he is not required to show that the statement was in fact involuntary but only that, on an objective basis, this was an exceptionally rare case where a voir dire should have been held.

[215] It is, however, telling that no one at trial raised the issue of voluntariness. The experienced trial judge was clearly satisfied that a voir dire was not required. In any event, as we will explain, the interview statements did not attract the doctrine of voluntariness.

(b) The law of voluntariness

[216] The voluntariness doctrine is only triggered where the recipient of the statement is a person in authority. Only where this is established must the Crown prove beyond a reasonable doubt that the statement was voluntary: R. v. Hodgson, 1998 CanLII 798 (SCC), [1998] 2 S.C.R. 449, at para. 48; R. v. T.(S.G.), 2010 SCC 20, [2010] 1 S.C.R. 688, at paras. 20, 22; R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at para. 35; R. v. Oickle, 2000 SCC 38, [2000] S.C.R. 3, at paras. 41-71; and R. v. Tessier, 2022 SCC 35, 473 D.L.R. (4th) 317, at paras. 39, 68.

[217] There is no absolute definition of a person in authority. While those in authority tend to be individuals involved in the arrest, detention, interrogation or prosecution of the accused, others can fall within this list: Hodgson, at para. 32; R. v. A.B. (1986), 1986 CanLII 4624 (ON CA), 26 C.C.C. (3d) 17 (Ont. C.A.), at p. 26. The test is a largely subjective one, inquiring into “whether the accused, based on his or her perception of the recipient’s ability to influence the prosecution, believed either that refusing to make a statement to the person would result in prejudice, or that making one would result in favourable treatment”: Grandinetti, at para. 38.

[218] However, there is also an objective component that accompanies the subjective. For the receiver of a statement to be categorized as a person in authority the accused’s subjectively-held belief must be reasonable: Hodgson, at para. 34; Grandinetti, at paras. 37-39.

[219] There is nothing to support the suggestion that a psychiatrist is necessarily a person in authority. While some courts have found that a psychiatrist is a person in authority, those cases turn on their specific facts: R. v. Getkate, [1998] O.J. No. 6329 (Gen. Div.); R. v. Feldberg, 1999 ABQB 738, 252 A.R. 158; R. v. Leggo, 2003 BCCA 392, 133 C.C.C. 149; and R. v. Fowler (1982), 1982 CanLII 3843 (NL CA), 4 C.C.C. (3d) 481 (Nfld. C.A). Other decisions have concluded that psychiatrists are not persons in authority: R. v. Bertrand (1991), 1991 CanLII 7392 (ON SC), 2 O.R. (3d) 659 (Gen. Div.); R. v. Perras (1972), 1972 CanLII 868 (SK CA), 8 C.C.C. (2d) 209 (Sask. C.A.), aff’d 1973 CanLII 157 (SCC), [1974] S.C.R. 659; and R. v. Parnerkar (1974), 1974 CanLII 1521 (SK CA), 17 C.C.C. (2d) 113 (Sask. C.A.). Therefore, a case-specific analysis is required.

(c) The law of voluntariness applied to the facts

[220] The fact is that here, objectively, there is minimal evidence to suggest that the trial judge should have conducted a voir dire into the issue of whether Dr. Woodside was, in these circumstances, a person in authority.

[221] The evidence in support of the appellant’s submission on this point is not strong. The appellant’s position rests upon his unsworn comments at the admissibility voir dire that he felt “pressured” and “intimidate[d]” by Dr. Woodside. It also rests upon the fact that Dr. Woodside performed the examination as a court-ordered and Crown-requested assessor, which the appellant contends bolsters his claim that a voluntariness voir dire was clearly necessary on an objective view of the circumstances.

[222] We do not agree. The appellant’s submissions at the admissibility voir dire did not trigger the need for a voir dire into voluntariness because it was not “clear” that there was a voluntariness concern: Hodgson, at para. 45.

[223] Indeed, the evidence that we have contradicts the suggestion that Dr. Woodside was closely connected to the authorities or that he could influence or control the proceedings. Not only was he an expert witness with no interest in the outcome, but he also specifically noted in his evidence that his “task [was] to try to answer the question asked of [him] to the best of [his] ability”: see White Burgess Langille Inman v. Abbott and Haliburton, 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 32; Hodgson, at paras. 24, 32-36, and 48; and Grandinetti, at paras. 35, 38-45.

[224] Moreover, there is evidence that Dr. Woodside endeavoured to ensure that the appellant understood the nature of his expert role. For instance, Dr. Woodside testified that he explained to the appellant the purpose of the assessment, the areas that would be explored and that he was under “no obligation to answer questions” or even to participate in the assessment.

[225] According to Dr. Woodside, the appellant was not dazed, lost, confused, sedated, unaware, drowsy, weak, or forgetful during the interview. His speech was normal. And he had no trouble understanding Dr. Woodside’s questions. In short, even if Dr. Woodside was a person in authority, the interview met all of the criteria of a voluntary interview.

(d) Conclusion on voluntariness

[226] It will only be in “extremely rare cases” that the duty of the trial judge to hold a voluntariness voir dire of their own motion is triggered: Hodgson, at para. 48. This was not one of those cases. There is no concern that Dr. Woodside was deputized by the Crown or the court, that he elicited an involuntary statement from the appellant, or that he was acting as anything more than a doctor.

[227] Even if there was evidence that supported the appellant’s subjective belief that Dr. Woodside was a person in authority, it was not a reasonable belief. Moreover, there is no evidence to support the suggestion that there were any concerns with the voluntariness of the appellant’s statements to Dr. Woodside. This is only bolstered by the fact that amicus, who forcefully opposed the admission of the impugned statements on the basis that they were too prejudicial, did not raise any voluntariness concerns.

[228] This ground of appeal must fail.

(3) NCR, fresh evidence and verdict

[229] Finally, the appellant asks that if the appeal is allowed on either the fitness or voluntariness points, an NCR verdict be substituted for the conviction on first-degree murder: Criminal Code, s. 686(1)(d). Even if the appeal is not allowed on those points, he asks that an NCR verdict be substituted on the basis of the fresh evidence filed: Criminal Code, s. 683(1). We would not do this.

(a) The NCR defence

[230] Section 16(1) of the Criminal Code provides that an accused is not criminally responsible for an act done or omission made while suffering from a mental disorder that rendered them “incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.” The burden of proof is on the party raising the NCR issue: Criminal Code, s. 16(2). This burden is met on a balance of probabilities.

[231] In the s. 16(1) context, the word “wrong” means both legally and morally wrong: R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, at pp. 1354-55. In R. v. Woodward, 2009 ONCA 911, at para. 5, this court reiterated that an accused cannot know the moral wrongfulness of his acts if he “was incapable of understanding that his acts were wrong according to the ordinary moral standards of reasonable members of the community.”

[232] An NCR determination depends upon whether an accused person was, at the time of the offence, capable of rationally evaluating their conduct: R. v. Oommen, 1994 CanLII 101 (SCC), [1994] 2 S.C.R. 507, at p. 518. Indeed, in Oommen, the court explained that the “crux” of the s. 16(1) inquiry is to determine “whether the accused [lacked] the capacity to rationally decide whether the act [was] right or wrong and hence to make a rational choice about whether to do it or not”: at p. 518.

[233] In R. v. Dobson, 2018 ONCA 589, 48 C.R. (7th) 410, at para. 24, leave to appeal refused, [2019] S.C.C.A. No. 70, Doherty J.A. had this to say about the interpretation of Oommen:

Oommen, as interpreted in the judgments of this court, holds that an accused who has the capacity to know that society regards his actions as morally wrong and proceeds to commit those acts cannot be said to lack the capacity to know right from wrong. As a result, he is not NCR, even if he believed that he had no choice but to act, or that his acts were justified.

However, an accused who, through the distorted lens of his mental illness, sees his conduct as justified, not only according to his own view, but also according to the norms of society, lacks the capacity to know that his act is wrong. That accused has an NCR defence. Similarly, an accused who, on account of mental disorder, lacks the capacity to assess the wrongfulness of his conduct against societal norms lacks the capacity to know his act is wrong and is entitled to an NCR defence.

[234] This interpretation of Oommen was recently adopted by Pepall J.A. in R. v. Worrie, 2022 ONCA 471, 415 C.C.C. (3d) 45, at para. 95.

(b) The evidence at trial

[235] There was no dispute at trial that the appellant had a mental disorder. Nor was there a dispute that he was able to appreciate the nature and quality of his conduct, or that he knew that his actions were legally wrong. The sole dispute was whether he knew that his conduct was morally wrong.

[236] Recall that three expert psychiatrists testified at trial. Dr. Chaimowitz and Dr. Ramshaw testified that the appellant was NCR because he did not know that his actions were morally wrong. Dr. Woodside came to the opposite conclusion. The jury heard all of that evidence.

[237] Dr. Chaimowitz said that the appellant’s schizophrenia precluded him from understanding the moral wrongfulness of his actions. He saw the appellant within five days of the murder.

[238] Dr. Chaimowitz testified that, in his opinion, the appellant was actively psychotic at the time of the murder and was one of the most ill patients he had seen. According to Dr. Chaimowitz, the appellant’s psychosis was “sufficiently active that it distorted any sense of right or wrong and precluded him from knowing what he was doing was morally wrong.”

[239] Dr. Ramshaw said that the appellant was actively psychotic at the time he killed the victim. According to Dr. Ramshaw, the appellant held psychotic beliefs stemming from his schizophrenia and that it was “more likely than not” that he was “unable to access the moral wrongfulness on account of his mental illness.”

[240] Dr. Woodside took a different view. First, he opined that there was not strong evidence that the appellant was actively psychotic at the time of the murder. Indeed, Dr. Woodside thought that the appellant may have been prodromal at that time, or in other words, not experiencing active symptoms of psychosis. Second, Dr. Woodside opined that even if the appellant was actively psychotic at that time, the evidence did not support the view that the appellant was not capable of knowing his actions were morally wrong.

[241] To the contrary, Dr. Woodside said that the statements given by the appellant in the immediate wake of the murder demonstrated that he knew the moral wrongfulness of his actions. For instance, Dr. Woodside noted that the appellant had acknowledged to the police that he “felt guilty” and knew he would have to go to jail.

[242] We pause here to address the appellant’s claim that Dr. Woodside’s reference to the appellant feeling “guilty” demonstrates an Oommen error. The appellant says this reference reflects an error because the question is not whether the accused feels guilty after the offence for purposes of an NCR defence but instead whether at the time of the offence the accused lacked the ability to assess the moral wrongfulness of his actions. We do not agree that Dr. Woodside misapplied the test in Oommen. To the contrary, Dr. Woodside’s reference to the appellant’s acknowledgement that he felt guilty was simply one of many statements made by the appellant that Dr. Woodside saw as informative of the appellant’s appreciation of the moral wrongfulness of his actions.

[243] For instance, Dr. Woodside also considered the fact that the appellant had acknowledged that he had picked up the fireplace poker ahead of time, that he knew he was going to kill Ms. Mkurazhizha and that “it took some courage.” Dr. Woodside also relied upon the appellant’s observation that killing the victim was “not right” and that turning himself into the police was the “right thing to do” although he could have run away. Among other things, Dr. Woodside also noted that the appellant acknowledged that he could “see how bad it is”, although he said that he may have killed the victim because of any number of influences in his mind.

[244] Importantly, the jury heard all of these psychiatric opinions and had the entire evidentiary underpinning that informed those opinions, including the transcribed police statement taken in the immediate wake of the murder. While the appellant led relevant evidence through Dr. Chaimowitz and Dr. Ramshaw to support his position that he was not capable of knowing that his acts were morally wrong at the time of the homicide, it was open to the jury to reject that evidence.

[245] What matters is that the jury was well-positioned to decide the NCR defence. This is particularly true given that amicus curiae was heavily involved in advancing the defence. Indeed, the appellant gave amicus the responsibility of taking the lead in advancing the evidence of the defence experts and in cross-examining Dr. Woodside.

[246] As well, and notably for purposes of considering the fresh evidence application, there is no objection to the portion of the jury charge setting out the NCR defence, including the summary of the NCR evidence. In short, the jury was well-positioned to decide this issue. That decision is owed deference.

(c) The fresh evidence

[247] It is against that backdrop that we now look to the fresh evidence.

[248] The appellant also seeks to adduce the opinions of Dr. Pallandi and Dr. Chatterjee on the NCR issue. In addition to opining on fitness, both Dr. Pallandi and Dr. Chatterjee also opine that he was NCR at the time of the homicide. The appellant says that those opinions should be received as fresh evidence because, when added to the mix, they cast doubt on the jury’s finding of guilt. He says the new opinions put it beyond dispute that, on a balance of probabilities, he was NCR at the time of the offence.

[249] In opposing the admission of the fresh evidence, it is the respondent’s position that the new opinions lack cogency and could have been obtained with due diligence. Put simply, the respondent says the new opinions spark the same dispute about the most appropriate verdict, which was already settled by a properly charged jury. According to the respondent, this evidence does not meet the criteria set out in Palmer.

[250] Respectfully, the fresh evidence really constitutes more of the same and begs all kinds of concerns over the finality of verdicts. The following passage from R. v. Forcillo, 2018 ONCA 402, 141 O.R. (3d) 752, at para. 109, is apt:

Even assuming that the report would be admissible as expert opinion evidence, the fresh evidence application should still fail. In general, fresh evidence on appeal is not meant to provide an opportunity to tender concurring expert opinions on issues canvassed at trial, nor is it a platform for offering expert reports to repair defects in expert evidence adduced at trial. As this court said in R. v. M. (P.S.) (1992), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.), at pp. 411-412, fresh evidence will not be admitted merely to add a "third voice" to the issues canvassed at trial. See also R. v. Smith (2001), 2001 CanLII 20968 (ON CA), 161 C.C.C. (3d) 1 (Ont. C.A.), at para. 71, leave to appeal refused: [2002] S.C.C.A. No. 156; and R. v. Phillion, 2009 ONCA 202, 241 C.C.C. (3d) 193, at para. 233.

[251] The fact of the matter is that there is nothing new here. We say this for several reasons.

[252] Like Dr. Chaimowitz and Dr. Ramshaw, Dr. Pallandi and Dr. Chatterjee opine that the appellant did not know the moral wrongfulness of his actions.

[253] Dr. Pallandi concluded that the appellant was NCR at the time of the homicide: while the appellant appreciated the “wrongfulness of his actions from a legal perspective … his mental disorder appeared to eclipse his knowledge of the moral wrongfulness of his actions at the critical moments” (emphasis in original).

[254] Dr. Pallandi gave evidence that the appellant’s mental disorder “eclipsed” his “moral sort of braking mechanism that would have kept him from” killing the victim. According to Dr. Pallandi, this was because the appellant’s psychosis made him feel monitored, intruded and invaded upon, agitated and distressed, and that as a result, his psychosis “caused him to behave in the fashion that he did.”

[255] Dr. Chatterjee, who was retained by the respondent on appeal, also formed the opinion that the appellant was NCR at the time that he killed the victim. She authored a report agreeing with Dr. Chaimowitz, Dr. Ramshaw and Dr. Pallandi that the appellant was not prodromal at the time of the killing, but rather was suffering from active schizophrenia at the time. She gave evidence that, in her view, the appellant was deprived of the capacity to know that his actions were wrong at the material time.

[256] Dr. Woodside was given the opportunity to revisit his opinion on appeal. Upon reviewing the opinions of Dr. Pallandi and Dr. Chatterjee, Dr. Woodside reinforced his opinion that, in the period leading up to the homicide, there was no strong evidence of the appellant being actively psychotic. He remained of the opinion that the appellant may well have been simply prodromal at the time.

[257] Dr. Woodside also reinforced that, even if the appellant was suffering from an active mental disorder at the time of the homicide, the best evidence for assessing his capacity to know that his acts were morally wrongful remained his clear statements to the police that he knew what he did was morally wrong. On any account, Dr. Woodside remained satisfied that an NCR defence was not available to the appellant.

[258] In our view, the fresh evidence filed by the appellant is much the same as what the jury already had before it. Quite simply, there is nothing new. While we agree with the appellant that it is unusual that the psychiatrist retained by the respondent on appeal offered an opinion that the appellant was NCR, that does not change the nature of the Palmer admissibility analysis.

[259] In light of the evidence that was before the jury and the jury’s verdict in this case, the appellant cannot overcome the cogency test for admissibility. The fresh evidence, when taken with the other evidence adduced at trial, cannot be expected to have affected the result.

[260] The jury had the 9-1-1 call and the police statement available for consideration. The jury also had two powerful psychiatric opinions, that of Dr. Chaimowitz and Dr. Ramshaw, both of whom inferred from the statement that the appellant did not know it was morally wrong to kill the victim.

[261] Therefore, there is nothing new in the newly minted opinions.

[262] Moreover, we agree with the respondent that Dr. Chatterjee’s opinion on NCR does not align with the law. Specifically, her analysis cannot be reconciled with a proper interpretation of the word “wrong” under s. 16(1), as reflected in the post-Oommen jurisprudence of this court: see R. v. Ross, 2009 ONCA 149, 246 O.A.C. 201, at paras. 24-27; R. v. Szostak, 2012 ONCA 503, 111 O.R. (3d) 241, at paras. 56-58; R. v. Campione, 2015 ONCA 67, 321 C.C.C. (3d) 63, at para. 30; Worrie, at paras. 94-95; and Dobson, at para. 24.

[263] For instance, Dr. Chatterjee acknowledged that the appellant was “generally capable of knowing the act of murder was morally wrong, through the distorted lens of a severely psychotic individual experiencing intense distress.” For Dr. Chatterjee, however, the appellant’s difficulty was that “he was unable to apply [that] knowledge to his decision-making at the material time” because his psychotic state compelled him to act in an extreme fashion. She testified that while her opinion was that the appellant knew his actions were morally wrong, he felt compelled to act because of his psychosis:

… he was unable to apply his understanding of moral wrongfulness to his actions at the material time because of the intensity of his psychotic symptoms. The choice to do so, or whether he was compelled to do so in either case in the scenarios you presented were still based on a psychotic rationale that he felt compelled to act upon… I see that he was intensively psychotic and that his actions were predicated on that psychosis that led to him feeling compelled, or him deciding, if you will, that he had no other option available to him. But that doesn’t take away that he did know it was wrong in some background way.

[264] Respectfully, Dr. Chatterjee’s conclusion does not accord with this court’s decision in Dobson, at para. 24, where Doherty J.A. held that an accused is not NCR if they knew that society regarded their actions as morally wrong yet proceeded to commit the actions anyway. Importantly, this is true “even if” the accused “believed that he had no choice but to act, or that his acts were justified”: Dobson, at para. 24.

[265] In our view, Dr. Chatterjee’s conclusion that the appellant knew his actions were morally wrong but felt compelled to act cannot establish that at the material time the appellant was incapable of knowing his conduct was wrong according to the ordinary moral standards of reasonable members of society.

(d) Conclusion on NCR, fresh evidence and verdict

[266] There is a need for finality in criminal verdicts and certainty of the trial process. Everyone at trial knew that NCR was in issue. The appellant, with the assistance of amicus curiae, led impressive expert evidence on this point. They could have led more but did not.

[267] The jury was well-equipped to decide the issue, in part because they had the appellant’s statement given in the immediate wake of the murder. They also had the benefit of the jury charge that has carried no criticism on the point. While there are now two new opinions advanced, they say nothing new. The contrary evidence, coming from Dr. Woodside, which was before the jury, has been reinforced on appeal.

[268] In conclusion, we would not admit the fresh evidence because it could not reasonably be expected to have affected the result at trial.

D. CONCLUSION

[269] To conclude, we would like to express our gratitude to all counsel for their very thoughtful and able submissions on this appeal.

[270] We would dismiss the application to admit the fresh evidence and dismiss the appeal.

Released: “March 24, 2023 JMF”

“Fairburn A.C.J.O.”

“Doherty J.A.”

“G.T. Trotter J.A.”

“A. Harvison Young J.A.”

“J.A. Thorburn J.A.”

Appendix “A”

THE COURT: Mr. Bharwani, if at any time you find you can’t hear what the lawyers are saying because they’re talking to me and they have their back to you so if you can’t hear something I want you to raise your hand right away and let us know, okay.

Obviously it’s very important that you hear everything that is going on in the courtroom and that’s because every person is entitled to be present at their trial and being present means being able to hear what’s being said and also to understand what’s happening in the courtroom.

So I am going to ask you some questions now just to satisfy myself that you understand what the situation is, okay?

MR. BHARWANI: Yes.

THE COURT: Do you know why you are in this courtroom?

MR. BHARWANI: Yes, I do.

THE COURT: I’m sorry?

MR. BHARWANI: Yes, I do.

THE COURT: Can you tell me, please?

MR. BHARWANI: I’m here to defend a charge against me.

THE COURT: Do you know what the charge is, sir?

MR. BHARWANI: First-degree murder.

THE COURT: And do you understand who I am...

MR. BHARWANI: Yes.

THE COURT: ...what my role is too?

MR. BHARWANI: Yes, I do.

THE COURT: Can you please tell me what you understand my role to be?

MR. BHARWANI: You are the justice of the peace. You are to determine whether I am found guilty or not guilty. Also the – also with 12 juries [sic].

THE COURT: All right, you’ve described me as a justice of the peace, now that’s understandable. I’m actually a judge of the Superior Court of Justice, but you understand that my role here is as a judge?

MR. BHARWANI: Understand.

THE COURT: And you mentioned the jury, do you understand what the jury’s role is, sir?

MR. BHARWANI: Yes, I do.

THE COURT: And can you just tell me in your own words what your understanding of that is?

MR. BHARWANI: The jury is to be present during most of the proceedings that take place here. They’re to determine a verdict, guilty or not guilty.

THE COURT: Now I am going to have a couple more questions but just give me a moment. You understand the possible consequences of, of the jury’s verdict in this case?

MR. BHARWANI: Yes, I do.

THE COURT: I’d like you to tell me in your own words what you understand the possible consequences to be.

MR. BHARWANI: The jury can provide a verdict as to whether I’m guilty or not guilty, to find out I’m – either to find that I’m guilty of first-degree murder or that I’m not guilty of first-degree murder. They can, they can judge based on facts, the evidence.

There should be no issues within this. This has been an issue in the past and I’ve had more than one fitness hearings [sic] and it was, it was around August last year when I was found fit to stand trial. If you would like a bit of a recap I could tell you about it if that would help.

THE COURT: Well I’m aware of the history of this but perhaps you can tell me what your understanding is, that will help me to decide whether we need to have a further hearing or not.

MR. BHARWANI: There was a fitness hearing – the last fitness hearing there was a doctor who came to testify. His name was Dr. Komer and he gave testimony and I met with him. He did an assessment. He assessed me, he found that I was fit and he also assessed that – he also tried to look for how, how fitness could change so he interviewed me on a number of occasions over a course of a few weeks and at the end he concluded that I was fit to stand trial.

THE COURT: Thank you. I have a few more questions for you, sir. One of the issues is whether or not a person - where there’s an issue of fitness that a judge has to consider, whether the person understands the potential consequences of a verdict.

If the jury were to return a verdict of guilty of first-degree murder, are you aware of, of what the court is required to do?

MR. BHARWANI: Yes, I am.

THE COURT: Tell me, please, in your own words.

MR. BHARWANI: That would be to sentence me to 20 – to life in a – to life in prison with 25 years before parole eligibility.

THE COURT: As well do you understand that the jury has available to it other verdicts besides a verdict of guilty of first-degree murder?

MR. BHARWANI: Could you repeat the question?

THE COURT: Yeah, I didn’t frame it very well, sorry about that. Do you understand that there are other possible verdicts that the jury could render?

MR. BHARWANI: I understand.

THE COURT: Can you tell me what your understanding of that is?

MR. BHARWANI: The jury can decide whether I’m guilty or not guilty of this charge. From what I’ve heard they can decide whether I’m guilty or not guilty of a second-degree murder or a manslaughter.

THE COURT: And you understand as well, I presume, that the jury has a fourth option and that is to return a verdict of not guilty, all right, understand that?

MR. BHARWANI: Yes.

THE COURT: The other area of inquiry that I want to have with you, in other words, the other questions I want to ask you have to do with your ability to communicate with Counsel. Now I understand that you have made the decision that you wish to represent yourself at your trial, am I correct?

MR. BHARWANI: I wish to represent myself at my trial.

THE COURT: Well put another way, you have refused the offer that apparently was made by Justice McMahon to appoint a lawyer to be your lawyer, am I correct about that?

MR. BHARWANI: That’s correct.

THE COURT: But Mr. Embry is here. Do you understand what Mr. Embry’s role is?

MR. BHARWANI: Yes.

THE COURT: Can you explain to me in your own words what do you understand his role to be?

MR. BHARWANI: The Amicus Curiae, he’s the lawyer for the court to assist the court.

THE COURT: And how is he to assist the court?

MR. BHARWANI: He has his own work that he could do. He can, he can take notes. He can intercede between me and members of the courtroom. He can pass on messages.

THE COURT: You’ve indicated that you choose to represent yourself and that is your entitlement, you’re entitled to represent yourself but there is still the issue of whether you are able to communicate with, with a lawyer. You have had communication? I don’t want you to tell me any of the communication but can you tell me whether or not you have communicated with Mr. Embry?

MR. BHARWANI: Yes, we have communicated. We are able to communicate with each other.

THE COURT: All right. Thank you, you may have a seat, sir. Have I overlooked anything that should be part of the inquiry that I have conducted?

MR. RINALDI: Other than perhaps the role of the Crown but I, I – having dealt with Mr. Bharwani...

THE COURT: Now, that’s a good point, thank you for that. Anything else? Mr. Embry, did I overlook anything?

MR. EMBRY: No, Your Honour.

THE COURT: All right. Just now, Mr. Bharwani, you heard me ask if I had overlooked anything. I was seeking the assistance of the lawyers to determine whether there was something that I had overlooked and Mr. Rinaldi, who is one of the, one of the lawyers here, said that I perhaps should inquire about whether you understand what the role of the lawyers are sitting in front of you, the two lawyers. Can you tell me what you understand their roles to be?

MR. BHARWANI: I understand what their roles are. Mr., Mr. Rinaldi is the Crown Attorney and I believe the man sitting next to him is his assistant, I (indiscernible) he is...

THE COURT: His name is Mr. Bloch. Am I pronouncing it right?

MR. BLOCH: Yes, that’s right, thank you.

MR. BHARWANI: Yes, I understand what their roles are. I understand how things work inside the courtroom, I’m well aware and will participate. It should not be an issue. It should not have been an issue in the past. I’m fit to stand trial.

THE COURT: Right now I just want you to tell me what you understand their roles to be.

MR. BHARWANI: The Crown Attorney’s role is to try and put – try and prove my guilt beyond a reasonable doubt. The burden of proof to prove my guilt is on the Crown Attorney.

THE COURT: All right, that’s your understanding of it. I’ll just clarify it slightly that it’s probably more accurate – the responsibility of the Crown is to present the evidence in support of the claim of guilt but they have an obligation to be fair and to put all the evidence before the court whether it favours the Crown or not. Do you understand that, sir?

MR. BHARWANI: Yes, I do.

THE COURT: All right. You can have a seat then.

MR. RINALDI: There is one other issue, Your Honour, which if we get to that stage will be in play here in terms of verdicts. There is one other possible...

THE COURT: I purposely have not addressed that at this point.

MR. RINALDI: Okay.

THE COURT: Mr. Embry, I turn to you now and ask you to just sort of let me know how things are going in terms of your communications with Mr. Bharwani. As you know, the case law makes it quite clear that the role of amicus can cover a relatively broad spectrum depending on the circumstances of the particular case and I’d just like to understand where on the continuum you find yourself in your role as amicus in terms of your ability to discuss legal matters with Mr. Bharwani and so on.

MR. EMBRY: At this stage, Your Honour, I believe through my role generally, Mr. Bharwani and myself, may find ourselves at cross purposes during the proceedings in some respects. That said, Mr. Bharwani has been open with me in terms of asking for assistance when he needs assistance and asking, sort of pointed questions when he has a question that he needs answered.

So Mr. Bharwani and myself are able to communicate. There are times when Mr. Bharwani does not want to communicate with me but that doesn’t seem to be an inability, it seems to be a choice that he does not want to, to do that. So I would say that our relationship at this point is a fair one.

THE COURT: All right, thank you.

MR. EMBRY: I think it would be fair to say also at this point, Mr. Bharwani has not been – and need not be completely forthcoming to me about his, his plan in terms of defending the case so there’s a lot of that, that will be up to him and I’ll be here to assist as he moves through that but that’s one part of the communication that’s been...

THE COURT: Thank you. And I want Mr. Bharwani to know that I respect Mr. Bharwani’s entitlement to defend himself and my responsibility is to make all of the decisions concerning legal matters but the ultimate responsibility to determine the appropriate verdict in this case rests with the jury. They are the judges of the facts. Do you understand that, sir?

MR. BHARWANI: Yes, I do.

THE COURT: And you’ve explained to me your understanding what the role of Mr. Embry as, as amicus is – amicus as you probably know is just a Latin word for friend, friend of the court. He’s here to assist the court, okay. So you’re entitled to talk to him and get his advice if you ask for it. If you do not want his advice you’re entitled to tell him that you do not want his advice.

But I will be turning to him from time to time during the trial to ask for his assistance with issues that may impact on – if I have a concern about your – the fairness of your trial, okay.

MR. BHARWANI: Yes.

THE COURT: You understand all of that, sir?

MR. BHARWANI: Yes.

THE COURT: I think now it’s – when I’m speaking with you, I appreciate your politeness in standing up when I address you but I don’t want to ask you to stand when I’m addressing you. If you are going to address the court then it would be appropriate for you to stand up but otherwise you may be seated, okay. So you can have a seat if you wish. You can stand if you prefer but it’s up to you, okay?

MR. BHARWANI: Yes, sir.

THE COURT: You prefer to stand?

MR. BHARWANI: I understand.

THE COURT: You can sit down if you want to. I’m just going to be saying a few more things. So, the one area that hasn’t been talked about is the question of the psychiatric opinion evidence. We talked about the fitness hearings, there have been two of them, okay. They’re not – I’m made aware of the fact that Mr. Justice McMahon has contemplated the idea of a two stage trial in which the jury first determines whether or not it has been proved beyond a reasonable doubt that Mr. Bharwani committed the unlawful act that resulted in the death of the victim.

I have reflected on this quite carefully and with great respect for Mr. Justice McMahon, my view is and it’s very much tentative at this time but I want to say this in front of Mr. Bharwani, I want him to understand. Are you following me so far, Mr. Bharwani?

MR. BHARWANI: Yes, I am.

THE COURT: Okay. Because here’s the problem, Mr. Bharwani, sometimes in murder cases even if a person does not want to be found not guilty – sorry, not criminally responsible because of a mental disorder, psychiatric evidence can still be relevant and important in deciding whether or not – let’s say the jury decides that they – that the Crown can prove that you caused this woman’s death, okay - following me so far?

MR. BHARWANI: Yes, I am.

THE COURT: All right. So let’s assume that the jury is able to unanimously conclude that the Crown has proved that you caused this death. The judge would have the responsibility to say to the jury if, if Mr. Bharwani’s mental health issues interfered with his ability to plan to kill – plan and deliberate which is [sic] the two components of first-degree murder, then a judge would have to tell the jury, look, if you, if you have a reasonable doubt about planning and deliberation because of the mental health issues that Mr. Bharwani has, then Mr. Bharwani is entitled to the benefit of that doubt and you would not return a verdict of first-degree murder but of second-degree murder.

And the judge would also tell the jury that if you have a reasonable doubt as to whether Mr. Bharwani intended to cause the death or intended to cause the bodily harm that led to the death then the appropriate verdict would be manslaughter.

So, the mental health issues are not relevant only to whether or not a person is not criminally responsible by reason of mental disorder, they are also relevant to the fault element for murder.

Now I know that’s quite a mouthful that I’ve just delivered and I – so I just want to be sure that you have an idea of what I’m – what I have explained. Do you understand me, sir?

MR. BHARWANI: I understand.

THE COURT: Because I’m quite prepared to afford you an opportunity to consult with Mr. Embry and ask him any questions in which in my absence I can, I can take a recess now, give you a chance to talk to him to make sure that you’re satisfied that you understand what I am getting at.

MR. BHARWANI: I understand.

THE COURT: Okay. Down the road, if we proceed to trial today, down the road I am going to have to decide whether it’s appropriate that the jury hear psychiatric opinion evidence during the trial, okay, because it is directly relevant to your state of mind in the event that the Crown is able to prove that you caused the death of this woman. Do you understand?

MR. BHARWANI: Yes.

THE COURT: Okay. If I could just share with you, I have presided in trials where people who have mental health problems are – but were not so mentally ill that they were – that the jury was persuaded that they should return a verdict of not criminally responsible. And I’ve had trials like that where the jury has returned a verdict of a lesser offence than first-degree murder because of the psychiatric evidence.

So what I’m trying to get at here is that it can help you, okay. This evidence can work to your advantage, not to your disadvantage depending on the circumstances. Do you, do you understand, sir?

MR. BHARWANI: I understand.

THE COURT: Just bear with me here, Mr. Bharwani, because I want to make sure that I am not overlooking anything that is important - making sure that you have a fair trial, okay.

A standard instruction for a judge to give to the jury where there’s – where the jury has heard from psychiatrists about a person’s mental health is not only the issue of whether a person should be found not criminally responsible because of a mental disorder but also to explain to the jury that even if they’re not, not persuaded that that’s the correct verdict that they still have to take into account the psychiatric evidence in deciding whether or not the Crown has proved guilt to murder.

Because all criminal offences, in order to – for a conviction to be registered, the Crown must prove not only that the act was done but also that the person had the intent to commit the act. Do you understand that, sir?

MR. BHARWANI: Yes.

THE COURT: So a standard instruction to the jury would be to say that you must consider the evidence of a person’s mental health when deciding whether the Crown has proved the person had the intent to commit murder. Do you understand what I’m saying to you?

MR. BHARWANI: Yes.

THE COURT: Okay, I’d like you to tell me in your own words, I want to satisfy myself that you actually do understand it. You said that you do but I, I’d just like you to tell me in your own words.

MR. BHARWANI: Mental health can impact a jury’s decision. A jury can consider how mental health had (indiscernible) in the offence and what, what I, as the accused person would have been facing, could have been going through, could have had troubles with and how it impacted my decision to do what I allegedly did.

THE COURT: All right, sir, thank you very much. You may have a seat, sir. Are there any other further inquiries (indiscernible)? At some point we are going to have to talk about this question of calling psychiatric evidence at the trial. I’m advised that Justice McMahon had in mind potentially a bifurcated trial. Bifurcated is not a word that everybody uses every day so I am going to use different language, it’s like having two aspects to the trial.

The first, first being a determination as to whether or not the Crown can prove that Mr. Bharwani committed the act. And then the second part - so the jury would come back with a, with a verdict on that and the second part would involve the psychiatric evidence. For the reasons that I’ve already explained, with the greatest respect of Justice McMahon’s view, I do not think it’s correct because the psychiatric opinion evidence is relevant to the issue of intent for murder and to deprive the jury of that evidence and have the jury render a verdict without hearing that evidence would not be fair to the accused.

But that’s for down the road. I’m just giving you - both sides a head’s up that at some point it seems likely that I am going to direct that psychiatric opinion evidence be placed before the jury. Mr. Bharwani, you’ve stood up, I presume you would like to address the court?

MR. BHARWANI: There is a doctor on call to give testimony.

THE COURT: I’m sorry, sir?

MR. BHARWANI: There’s a doctor on call to give testimony.

THE COURT: Can you just speak a little louder, I’m having a bit of trouble hearing you?

MR. BHARWANI: There is a doctor on call to give testimony.

THE COURT: You did call or you want to call?

MR. BHARWANI: I did call. That was, that was over 30 days ago. He...

THE COURT: I see.

MR. BHARWANI: ...he should be here during the trial.

THE COURT: And what is the doctor’s name, sir?

MR. BHARWANI: Dr. Chaimowitz.

THE COURT: Can you – sorry, what’s the – C-H- A-I-T-O-W-I-T-Z [sic]?

MR. BHARWANI: Yes.

THE COURT: That’s how it’s spelled?

MR. BHARWANI: Yes.

THE COURT: Yes. And you say he should be here during the trial?

MR. BHARWANI: Yes.

THE COURT: You want him to hear the evidence as a – is that what you mean? You want him to sit in during the trial?

MR. BHARWANI: No, I said he should be here during the trial so he can give an opinion from a psychiatric point of view.

THE COURT: All right, I see, all right. You understand that you – again, we’re getting – I’m getting ahead of myself here but I just want to alert you at the outset of this trial that the psychiatric evidence is likely going to go before this jury and you’re perfectly entitled to call the psychiatrist on your own behalf as well, okay. You understand that?

MR. BHARWANI: Yes.

THE COURT: Okay, have a seat then. All right, I would like to hear submissions from Counsel on the issue of whether or not, in light of Mr. Bharwani’s responses whether there is any need to conduct a further fitness hearing and empanel a jury to have them determine the issue of fitness?

Speaking for myself it seems quite clear that Mr. Bharwani meets all of the criteria for fitness, a fitness determination. It is not apparent to me that there is a need to conduct a further fitness inquiry. I think maybe it’s appropriate to hear from amicus first. Mr. Embry, what do you say?

MR. EMBRY: Yes, I’m in agreement with Your Honour. Given Mr. Bharwani’s responses this morning, I don’t think any further inquiry to his fitness is necessary. I can say also there’s nothing that causes me concern that hasn’t happened before the court this morning.

THE COURT: So then in addition to what I’ve heard in the courtroom you’re also stating that as an officer of the court in terms of your own communications with him that there has been nothing occur [sic] that gives rise to a concern on your part?

MR. EMBRY: That’s correct.

THE COURT: Thank you. Mr. Rinaldi – I’m going to turn to Mr. Rinaldi on the assumption that he is going to be the one getting up and down the most but I’m sure, Mr. Bloch, you’re not just going to be sitting there the whole time.

MR. RINALDI: I need the most exercise, Your Honour. I agree with Your Honour and Mr. Embry in terms of what we’ve heard from Mr. Bharwani today and given my four years of experience with him, having dealt with him from day one, I agree with Your Honour’s position and Mr. Embry’s.

THE COURT: All right, I’m going to rule on this now.

R U L I N G

MCCOMBS J. (Orally):

I take the issue of fitness for trial very seriously. Mr. Rinaldi, when Mr. Rinaldi was responding to a question I put to him earlier he, he pointed out that it’s not simply a matter of experience but it’s established in the jurisprudence. I want to do my best to steer clear of words like jurisprudence because Mr. Bharwani is not a lawyer although he certainly strikes me as quite an intelligent person.

So I don’t mean to – when I use ordinary language, I don’t mean to be assuming that you don’t understand it’s just, it’s like doctors, you know how when doctors when they talk to each other they use all sorts of language that you don’t hear every day.

So to return to the issue of whether a further fitness hearing is required, it is a matter that I take quite seriously. The decided cases simply reflect what I said which is that experience has taught us that people with mental health issues can go from being fit to not being fit and that is why judges need to be very cautious.

I take this very seriously and that is the reason why I have put all these questions to Mr. Bharwani this morning. The responses that I’ve heard persuade me that Mr. Bharwani meets all the criteria for fitness to stand trial and it would be an unnecessary exercise to empanel a jury to have yet another fitness hearing.

In the result, I am persuaded that Mr. Bharwani is fit to stand trial and that he understands that it may well be that the court will direct that psychiatric opinion evidence be placed before this jury. I do that out of a concern to protect the fairness of this process for Mr. Bharwani and also the fairness of this process from the perspective of the Crown. Therefore, I declare that I am satisfied that Mr. Bharwani is fit to stand trial.

Is it appropriate that I now ask the registrar to arraign Mr. Bharwani and have him enter his plea?

MR. RINALDI: Yes, please.

MR. EMBRY: Yes, Your Honour.

THE COURT: Madam Registrar. Mr. Bharwani, do you understand what is about to happen? It’s called the arraignment, do you understand what that means?

MR. BHARWANI: Yes.

THE COURT: The charge is going to be read to you and you are going to be asked to, to enter your plea whether it be guilty or not guilty, all right?

MR. BHARWANI: Yes.

THE COURT: All right.

COURTROOM REGISTRAR: The accused will rise. You stand indicted by the name of Mohamed Adam Bharwani as follows, count one, Mohamed Adam Bharwani stands charged that he on or about the 2nd day of February in the year 2013 in the City of Toronto, in the Toronto Region, did kill Nyumwai Caroline Mkurazhizha and thereby committed first-degree murder contrary to Section 235(1) of the Criminal Code.

Upon this indictment how do you plea?

MR. BHARWANI: Not guilty.

COURTROOM REGISTRAR: Are you ready for your trial?

MR. BHARWANI: Yes.

[^1]: There is some dispute as to whether a fitness hearing can be held following a verdict having been rendered and, if so, whether the jurisdiction for that hearing falls under Part XX.1 of the Criminal Code, under the common law, or as a Canadian Charter of Rights and Freedoms or constitutional remedy. See, for instance, R. v. Walker, 2019 ONCA 765, 381 C.C.C. (3d) 259, at paras. 54-58; R. v. R.M.P., 2019 ONSC 1416, at paras. 15-21; R. v. Nehass, 2016 YKSC 63; R. v. Jaser, 2015 ONSC 4729; Canada (Attorney General) v. Balliram (2003), 2003 CanLII 64229 (ON SC), 173 C.C.C. (3d) 547 (Ont. S.C.); and R. v. Morrison, 2016 SKQB 259, 31 C.R. (7th) 362. See also: Schneider & Bloom, at pp. 46-49. This issue need not be resolved in this appeal.

[^2]: If the issue of fitness is to be determined after the accused has been given in charge to a jury, then the same jury will be sworn to try the issue of fitness: Criminal Code, s. 672.26(b). If the accused is found fit, then the “proceeding shall continue as if the issue of fitness of the accused had never arisen”: Criminal Code, s. 672.28. In these circumstances, the court may order that an otherwise detained accused remain in a hospital until the completion of the trial: Criminal Code, s. 672.29.

In contrast, if the accused is found unfit to stand trial, regardless of the stage of proceedings or the length of time that the accused may remain unfit, any plea previously made “shall be set aside and any jury shall be discharged”: Criminal Code, s. 672.31.

[^3]: Section 672.24 requires that where the court “has reasonable grounds to believe that an accused is unfit to stand trial and the accused is not represented by counsel, the court shall order that the accused be represented by counsel” (emphasis added).

[^4]: At an Ontario Criminal Code Review Board hearing held after Mr. Taylor was found unfit to stand trial, another psychiatrist opined that Mr. Taylor was “locked in his delusional system” which would cause him to “inevitably act in a way that’s counterproductive or not in his best interest”: at p. 331 (emphasis added).

[^5]: While it has been suggested that they may have come from a 1973 Law Reform Commission of Canada report, Fitness to Stand Trial (Study Paper) (Ottawa: Law Reform Commission of Canada, 1973), they do not appear to be in that report. Experienced counsel on this appeal were unable to assist with their genesis.

[^6]: Statistics for the period of April 2020 to March 2021 show that, in Ontario alone, 158 new accused came under the jurisdiction of the Ontario Review Board: Ontario Review Board, Annual Report 2020-2021 (Toronto: Ontario Review Board), at p. 7. Of those, 50 were brought under the Review Board’s jurisdiction on account of being found unfit to stand trial: at pp. 7-8. This number appears relatively static, year-to-year: at pp. 7-8. This means that, on the fitness test as it currently exists, on average, one accused per week is found unfit to stand trial within the province of Ontario alone.