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Presentation - Mental Health. R. v. Bharwani
In R. v. Bharwani (SCC, 2025) the Supreme Court of Canada dismissed a criminal appeal, this from an Ont CA finding that affirmed that he was "fit to stand trial and upheld the first degree murder conviction".
Here the court considers self-presentation in the 'fitness to stand trial' situation, commenting revealingly on instances from the actual trial:(3) Self-Representation and Fitness to Stand Trial
[82] This standard of fitness to stand trial applies irrespective of whether the accused is represented by counsel or self-represented. As a result, self-represented accused must meet this standard of fitness when making decisions that are always reserved to an accused personally, and must be capable of communicating their decisions to the court.[2]
[83] Again, a reality-based understanding is necessary for those decisions that an accused must make personally and those which relate to the exercise of their right to full answer and defence. All the rights afforded to an accused in the conduct of a defence require that the accused understand the key legal issues that arise in their prosecution. This means that, at a minimum, a self-represented accused must have a reality-based understanding of the elements of the offences they have been charged with. A self-represented accused must also meet the fitness to stand trial standard while reviewing disclosure and making decisions that fall within their right to full answer and defence. Guidance on what other issues are important can be drawn from those which trial judges must explain to a self-represented accused, under their general duty to ensure a fair trial (see, generally, Kahsai, at para. 54; R. v. Jayne, 2008 ONCA 258, 90 O.R. (3d) 37; R. v. McGibbon (1988), 1988 CanLII 149 (ON CA), 45 C.C.C. (3d) 334 (Ont. C.A.), at pp. 347-48).
[84] Mental health is a fluctuating concept, and an accused’s capacity may differ over time. This does not mean that a new fitness inquiry is necessarily required for each fluctuation. The trial judge, the Crown, and amicus may be able, individually or collectively, to impress the reality of the situation upon an accused who experiences occasional delusions, such that they meet the fitness standard when making decisions in their defence.
[85] A trial judge is always obliged to provide a self-represented accused any assistance that is necessary to ensure a fair trial (J.D., at para. 34; R. v. Phillips, 2003 ABCA 4, 172 C.C.C. (3d) 285, at paras. 23-24, aff’d 2003 SCC 57, [2003] 2 S.C.R. 623; R.-A. Laniel, A. Bahary-Dionne and E. Bernheim, “Agir seul en justice: du droit au choix — État de la jurisprudence sur les droits des justiciables non représentés” (2018), 59 C. de D. 495, at pp. 519-20). A trial judge who observes that an accused is drifting from the reality-based capacity threshold can also exercise their inherent trial management powers to give the accused an opportunity to “get back on track” (see, generally, R. v. Samaniego, 2022 SCC 9, [2022] 1 S.C.R. 71, at paras. 19-23). The trial judge’s tools include calling for breaks or adjournments, encouraging the accused to consult with amicus, allowing the accused “do-over” leeway, and explaining court procedures and the accused’s legal options.
[86] However, these actors cannot make an accused fit by simply intervening and conducting a defence on their behalf. A fair trial is not a substitute for fitness. Nonetheless, the support that exists to safeguard an accused’s right to a fair trial can factor into the fitness analysis.
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[89] Overseeing a trial involving a self-represented accused with a mental disorder is one of the most challenging tasks a trial judge can face. The trial judge will have the best perception of the accused’s capacity in the courtroom, and appellate judges should recognize the trial judge’s advantage when reviewing the record to determine whether they erred in not calling a fitness assessment under ss. 672.11(a) and 672.12(1), or a trial of fitness under s. 672.23(1).
[90] I agree with the Court of Appeal’s assessment that the trial judge was a model of patience and fairness, always making sure that the appellant understood what was going on, so that he could make reality-based decisions. The trial judge stated that he would ensure that the appellant was able to control his own defence and make full answer and defence. At the commencement of the trial, the trial judge went through a lengthy discussion with the appellant to make sure he understood the proceedings and the roles of the legal actors involved. This discussion showed no warning signs of unfitness. Amicus agreed that, based on this dialogue and his personal conversations with the appellant, there was no need for a new fitness assessment. Following this initial discussion, neither the appellant, the trial judge, the Crown, nor amicus suggested a need for a new fitness assessment or trial of fitness.
[91] While the appellant occasionally showed signs of delusional behaviour at trial, he was always brought “back on track” by the trial judge and amicus. His delusions therefore did not prevent him from conducting his defence as he wished, at a reality-based level of competence.
[92] For example, after the appellant devoted his first opening submissions to paranoid concerns rather than to issues in the trial, the trial judge granted him leave to make a second opening. This second opening demonstrated reality-based thinking. The appellant explained the basis of his NCRMD defence and outlined the evidence he intended to present.
[93] There are other instances in the record where the appellant showed reality‑based defence decisions. For instance, he demonstrated an advanced understanding of the applicable law on peremptory challenges. During jury selection, the appellant used his peremptory challenges, with a stated goal of “aiming to see 12 male jurors” (R.R., vol. VI, at p. 393). His questions and submissions also revealed that he had reviewed the disclosure in his case and understood its nature.
[94] The appellant demonstrated an understanding of the key legal questions at issue. He challenged the voluntariness of his statement to the police, in submissions that the trial judge stated were of assistance. Later, he argued that his mental health was relevant to the planning and deliberation element of first degree murder, over and above his NCRMD defence. The trial judge referred to the appellant’s closing submissions, provided in writing for incorporation into the jury charge, as “very thoughtful” (R.R., vol. XV, at p. 304). These actions show that the appellant understood what was going on at his trial, and that he was pursuing trial tactics and strategies to avoid a conviction.
[95] During the hearing before this Court, the appellant’s counsel argued that one passage in the record suggested that the appellant “believed if he named his witnesses his witnesses would be in danger of being killed” (transcript, at p. 13). If true, this claim would raise concerns about delusional thinking that could have prevented the accused from meeting the reality-based capacity threshold for exercising his right to full answer and defence. However, I disagree that the record supports this inference.
[96] Early in the trial, the appellant expressed an intention to call witnesses. He asked the court for help in understanding the procedures for doing so and the procedural implication it would have on the Crown’s right to a rebuttal. This displayed reality‑based thinking on the question of calling witnesses.
[97] Some time later, when prompted by the trial judge to provide more details on the witnesses he intended to call, the appellant gave a long, rambling answer. This answer included the statement “What must be understood is that the people who try to interfere in the proceedings which take place here do much harm for me, but that is not the only thing, they do much harm for other people as well” (R.R., vol. X, at p. 11). Before this Court, the appellant argues that this passage demonstrates a delusional fear that his witnesses were at risk of physical harm and death. However, at trial, the appellant particularized his concerns about “harm” as meaning negative publicity. After a discussion with the trial judge, the appellant requested that he be allowed to hold back on declaring to the jury whether he would call witnesses until after the trial judge ruled on an outstanding voir dire. Shortly after, the appellant outlined specific witnesses he intended to call. The trial judge was very patient and ordered a recess so the appellant could consult with amicus.
[98] Ultimately, the appellant did call witnesses in his own defence. These witnesses provided relevant evidence about the long history of his mental health challenges. I therefore do not accept the appellant’s argument that his delusions prevented him from calling witnesses in the conduct of his defence. It is not borne out on the record.
[99] The appellant directs this Court to other instances in the record where he made tactical decisions that hurt his interests, such as insisting on asking a police witness a question that risked eliciting evidence of his criminal record. In my view, at their highest, these examples show that the appellant’s mental disorder may have prevented him from making decisions at trial in his best interests. The fitness to stand trial test allows an accused with a mental disorder to make unwise decisions, so long as they understand the reality of the situation and can intelligibly communicate. The trial judge recognized that the appellant’s mental disorder prevented him from making decisions “in his own best interests” (R.R., vol. IX, at p. 291), but did not find reasonable grounds to believe that the appellant did not understand the reality of his trial. I would defer to that determination.
[100] In conclusion, there is no basis to interfere with the Court of Appeal’s review of the trial judge’s decision not to order another fitness assessment or another trial of fitness.
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[108] The Court of Appeal correctly concluded that, although the record reflected instances of paranoid ideation, the appellant was always quick to get back on track (para. 203). The record therefore supports the conclusion that the appellant was fit to stand trial, and the fresh evidence provided by Dr. Chatterjee could not reasonably be expected to have affected the outcome.
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