What is a fitness hearing?

A fitness hearing is like a short trial where a judge decides whether or not an accused is “unfit to stand trial”. This occurs after the accused has been assessed by a psychiatrist, and has returned to court.

Unlike an actual criminal trial, it is only necessary to prove the accused is unfit to stand trial on a “balance of probabilities,” and not “beyond a reasonable doubt.” A “balance of probabilities” basically means “more likely than not.” If the accused does not have a lawyer, sometimes a judge will appoint a lawyer to represent them at a fitness hearing. If the accused does not want a lawyer, the judge can still appoint a lawyer to assist the court with the hearing, even if they are not directly representing the accused.

At a fitness hearing, witnesses are called to give evidence by testifying in court. In many fitness hearings, the psychiatrist who assessed the accused will testify. However, in some cases the psychiatrist will not testify in person, but the report that he/she produced will be filed as an exhibit. Quite often, the accused will also testify. After the judge has heard all the evidence at the hearing, they will ask the Crown and the accused’s lawyer (or the accused themselves) to make submissions on whether or the accused has been proven to be “unfit to stand trial.” Submissions are an argument made by the lawyers that summarize the evidence and try to convince the judge to accept their position. After hearing the submissions of the lawyers, the judge will make a decision (often called a ruling) on whether or not the accused has been shown, on a balance of probabilities, to be unfit to stand trial or not.