Criminal Law

No system fix for defendants found fit yet mentally ill: Zita

By Peter Small Contributor

The justice system must do a better job of handling defendants who, although deemed fit to stand trial, are mentally ill, says Toronto criminal lawyer Jessica Zita.

Many defendants fall into a grey area between full cognitive capacity on the one hand and mental unfitness for trial on the other, says Zita, an associate with Hicks Adams LLP.

“The criminal justice system has not yet figured out how to properly cater to these people,” she tells “How do you deal with people who fall into that grey area?”

Under the Taylor test, used by Canadian courts to determine whether accused people are fit to stand trial, they need only be shown to have a “limited cognitive capacity” to understand the process and communicate with counsel, according to the Library of Parliament research branch.

Some argue this test, articulated in a 1992 decision by the Ontario Court of Appeal, sets the bar too low for allowing mentally ill defendants to be tried, the library article says.

Zita agrees.

“The standard for fitness is too low and the standard for unfitness is too high,” she says. “People get stuck in the middle where they know that they are before the court, they know that they’ve been charged with something, but they are still unable to properly give instructions to counsel.”

Often these defendants are unaware or won’t admit they have mental health issues, she says. “They’re in complete denial of it. Either they don’t appreciate why they’re there, or they suffer from paranoia. Sometimes there’s an issue of brain damage,” she says.

And their symptoms waver, making it difficult to predict their behaviour, she says. “They’re fit one minute and not fit the next.”

Zita recalls having a client who seemed to know what was happening in the morning but exhibited severe mental health concerns in the afternoon. “All of a sudden the courtroom was a circus,” she says.

In the wake of the Supreme Court of Canada's Jordan decision, which has placed a limit on the time it takes for criminal cases to go through the system, the federal government has tabled Bill C-75, a reform package it claims will speed up the process, she notes.

But the government has not addressed the day-to-day inefficiencies created by the gap this group of people inevitably falls into, as they are often left to their own devices, Zita adds.

“Delay is often the result because they're unable to properly decide, or provide clear instruction on, how to move forward with their cases,” she says.

Defence lawyers are continually grappling with how to address the mental health problems of their clients without harming them or ignoring their instructions, she says.

Zita recalls having a client who was in complete denial about his mental illness, which was obvious to everyone in court. Every time the client heard the words “mental health” he would start yelling, she says.

“The client forbade me from mentioning anything to do with the possibility that he might have a mental illness,” she says. “All I could do was advocate within those limited confines.”

Such defendants do not fit into any neat category, she says. Many are unsuitable for designated mental health courts because they won’t acknowledge they have a problem, she says.

“It just doesn’t seem right that this group of people is adjudicated in the same way as people who have more of an appreciation of what’s going on,” she says.

There is no easy fix for the problem, Zita says. “But we need a systemic sensitivity to these issues. It’s not black and white — fit or unfit — and that’s how we’re looking at it right now.”

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