What is a “fitness to stand trial” assessment?

This type of assessment is probably the most common situation when a judge wants to determine whether or not an accused is “unfit to stand trial”. This type of assessment is usually called a “fitness to stand trial” assessment, or simply a “fitness assessment”, or a “Form 48”.

If an accused is sent for this type of assessment, it’s as if the regular criminal process is put on hold until a judge has made a decision about whether the accused is unfit to stand trial or not.

It is helpful to think of a fitness to stand trial assessment as stage two in a three-stage process:

Stage one:

The judge makes a decision about whether or not to send the accused to be assessed by a psychiatrist. At this stage, the judge is only concerned with deciding whether or not there are reasonable grounds to believe that the accused is unfit to stand trial.

The judge listens to the Crown, the accused’s lawyer (or duty counsel), and usually the accused person to make this decision.At this stage, the lawyer or judge may ask the accused questions in court. If, based on what he/she has heard, the judge believes that the accused is unfit to stand trial, the judge will make an order for a psychiatrist to assess the accused’s current mental state.

Stage two:

A psychiatrist assesses the accused’s current mental state. This usually occurs in a secure psychiatric hospital, but it sometimes happens in the courthouse.

The psychiatrist assesses the accused by interviewing them, sometimes more than once (depending on the length of the assessment order). The psychiatrist will prepare a report indicating his/her psychiatric opinion on whether or not the accused is unfit to stand trial or not.

Stage three:

A “fitness hearing” occurs in court. It is like a brief trial, with witnesses and evidence called.

At a fitness hearing, the judge makes a decision, with the help of the psychiatrist’s opinion, about whether the accused is “unfit to stand trial” or not. The judge will listen to the Crown, the accused’s lawyer, the psychiatrist (either in‑person or by reading the report) and the accused.

The judge, at the end of the hearing, will decide whether the accused is “unfit to stand trial” or not.