|
When the Supreme Court of Canada (“SCC”) granted leave to appeal in R v Bharwani, 2025 SCC 26 [Bharwani], it represented the first instance in over three decades that the highest court had the opportunity to interpret section 2 of the Criminal Code, RSC 1985, c C-46 [Code] since Parliament established the statutory definition for “unfit to stand trial” in 1991. Canadian mental disorder jurisprudence has come a long way in the previous three decades, but fitness—an issue central to the accused’s autonomy, trial fairness, and the “Not Criminally Responsible on Account of Mental Disorder” (“NCRMD”) regime—remains largely governed by the Ontario Court of Appeal’s (“ONCA”) decision in R v Taylor, 1992 CanLII 7412 [Taylor], an integral, but pre-Charter-evolution decision.
An earlier Appeal Watch on this case anticipated that the SCC would follow Taylor and avoid expanding the fitness inquiry to require consideration of an accused’s ability to engage in rational, self-interested decision-making. It also expected that the Court would provide further nuance to some of the ONCA’s refinements to the test. This article continues where that one left off: how the SCC ultimately responded to those expectations and where it has left the law of fitness to stand trial.
Facts
In 2013, the appellant, Mr. Mohamed Adam Bharwani, killed his roommate and called the police to confess his crime (Bharwani, paras 9-11). Mr. Bharwani had a long-standing history of mental health challenges in the years prior to the killing, challenges that were also evident in his conversations with the police thereafter (Bharwani, paras 9-12).
The Ontario Superior Court of Justice Decision
Prior to trial, Mr. Bharwani’s mental health challenges — including delusions, a diagnosis of schizophrenia, and symptoms consistent with psychosis — became a central aspect of the proceedings due to questions of his ability to stand trial (Bharwani, paras 2, 10, 15-17). Multiple pre-trial fitness assessments followed, wherein a jury ultimately found him fit to stand trial (Bharwani, paras 20-21).
At the resulting trial, Mr. Bharwani, representing himself, raised an NCRMD defence (Bharwani, paras 14, 23). Two defense psychiatrists assessed Mr. Bharwani and “concluded that his mental disorder prevented him from understanding the moral wrongfulness of his actions at the time of the offence” (Bharwani, paras 27-28). Inversely, the Crown’s expert, Dr. Scott Woodside, assessed him as suffering from schizophrenia, but still opined that Mr. Bharwani appreciated his actions as morally wrong (Bharwani, para 29). The jury rejected the NCRMD verdict and convicted Mr. Bharwani of first-degree murder (Bharwani, para 23).
The Ontario Court of Appeal Decision
At ONCA, Mr. Bharwani raised three grounds of appeal: he was unfit to stand trial, his admissions to the Crown’s forensic psychiatrist were not voluntary, and new psychiatric evidence necessitated the substitution of a verdict of NCRMD (Bharwani, para 30). However, much of the Court’s decision centered on the issue of fitness.
Writing unanimously, the Court held that the definition of unfitness from s.2 of the Criminal Code as adopted in Taylor remains binding (Bharwani, para 32). The Court also denied Mr. Bharwani’s suggestion to expand the test to also require someone to have the capacity of making rational decisions motivated by one’s “best interest” about their actions at trial (Bharwani, para 33). The Court found that fitness relates to function: the ability to understand the reality of the trial, the ultimate consequences, and the ability to speak with one’s counsel (Bharwani, para 32). In this respect, even objectively irrational decisions can be upheld if the core capacities of Taylor are met. Effectively, the Court affirmed that when an individual is able to make and communicate reality‑based decisions in the conduct of their defence or instruct counsel to do so, they are fit to stand trial.
The Court also rejected the other claims. They found that there was no evidentiary support to require a voluntariness voir dire about the psychologist’s interview. Finally, the Court found that the proposed new psychiatric evidence was not newly discovered nor likely to render the jury’s verdict displaced (Bharwani, para 34).
The Supreme Court of Canada Decision
Issues
The appellants raised three issues before the SCC:
- What is the proper interpretation of the definition of “unfit to stand trial” in s. 2 of the Criminal Code?
- Did the Court of Appeal err in dismissing the motion to adduce fresh evidence concerning the appellant’s fitness to stand trial and his NCRMD defence?
- Should the motion to adduce new evidence concerning the credibility and reliability of Dr. Woodside be allowed?
The Majority
In a 6-3 split decision, the court ruled against the appellant on all three issues.
Regarding the first issue, the majority reasoning arose from the words within the statute itself and an assessment over whether Parliament had intentionally codified fitness and its associated language. Under s.2, an accused is unfit, when “on account of mental disorder,” they are “unable to conduct a defence or to instruct counsel to do so” (Bharwani, para 47). As held by the SCC, “[t]he capacity required to make those decisions is a reality-based understanding of the nature or object of the proceedings and their possible consequences, an ability to understand the available options and their consequences, and an ability to select between those options when making decisions” (Bharwani, para 6).
The Court, therefore, established the fitness standard to question: whether the accused understands the trial, appreciates the options available to him, and can formulate and express decisions based upon reality instead of delusional fantasies (Bharwani, para 47). But maybe the most important aspect in debunking any proposals for a stricter standard was how the majority rejected Mr. Bharwani’s contention that fitness should encompass one’s ability to make reasonable or objectively sound decisions (Bharwani, para 81). Such a standard would essentially transform fitness from a question of minimum threshold of meaningful participation to a value judgment about the quality of an accused’s reasoning; something incompatible with autonomy, the right to direct one’s defence, and the structural integrity of a criminal trial.
In Mr. Bharwani’s case, the majority found that despite persisting symptoms of psychosis, he appreciated the role of the trial judge, the nature of the accusation, and the potential consequences he faced (Bharwani, para 99). His submissions—albeit convoluted at times—were connected to reality (Bharwani, para 91). He engaged with judicial instructions, made use of procedural options such as peremptory challenges, reviewed disclosure, and communicated opinions aligned with an appreciation for what had been brought against him (Bharwani, paras 92-98). For the majority, these actions were indicative of the statutorily required minimum cognitive abilities, and they subsequently upheld the trial judge’s finding of fitness.
The SCC bench however, was most fiercely divided over the fresh evidence issue. Ultimately, the majority operated in line with the jurisprudence regarding the discretionary nature of fresh evidence. Per Palmer v The Queen, [1980] 1 SCR 759, “[f]resh evidence should only be admitted if it could not have been adduced at trial through the exercise of due diligence, is relevant to a decisive or potentially decisive issue from the trial, is credible, and is reasonably capable of having affected the result reached at trial” (Bharwani, para 159). The majority found that no proposed evidence warranted a reopening of the NCRMD verdict (Bharwani, para 101). The new psychiatric opinions were cumulative or deemed inconsistent with the trial record (Bharwani, 106). One such report was founded on factual assumptions that did not align with the jury’s evidentiary findings, while the other added little substantive depth to Mr. Bharwani’s defence (Bharwani, para 34). While the majority accepted that portions of Dr. Woodside’s methodology had been questioned in other proceedings; they held that these concerns were sufficiently addressed and considered at trial (Bharwani, para 131).
Without foreclosing discussion completely, the majority avoided the more general question of whether remarks by a judge in an entirely different case are ever admissible as new evidence for the purposes of witness impeachment (Bharwani, para 120). Nonetheless, the majority found that in the present case, such elements did not change the determination of NCRMD, and thus, did not admit such evidence or overturn the conviction.
The Dissent
The dissent, authored by Karakatsanis and Martin J.J. and joined by Moreau J. engaged with a different perspective. While the dissent agreed with the majority on fitness, they differed on the NCRMD inquiry and question of trial fairness. In their view, the proposed new evidence was highly probative of the credibility of the Crown’s psychiatrist and the merits of the NCRMD defence (Bharwani, para 202). The dissent found that the Crown’s position on criminal responsibility was based solely upon Dr. Woodside’s evidence, who was the sole expert who testified that Mr. Bharwani appreciated the moral wrongfulness of his actions (Bharwani, para 147). In return, any credible, fresh evidence undermining the credibility or conclusions of Dr. Woodside, could have reasonably impacted the jury’s assessment of criminal responsibility and, consequently, the verdict (Bharwani, para 147).
In their analysis, the dissent scrutinized the note taking practices, report writing and potential for cognitive bias in prior judicial determinations. They asserted that these considerations raised questions regarding the credibility of Dr. Woodside, who disagreed with two defense psychiatrists. The lower court majority’s emphasis on the “need for finality in criminal verdicts” dismissed the need for Dr. Chatterjee’s opinion, given that it did not introduce “new content” despite differing from Dr. Woodside’s conclusion (Bharwani, para 198). The dissent however, held that “Dr. Chatterjee’s opinion ha[d] novel value because [they had] admitted the fresh evidence of Dr. Woodside’s testimony in other proceedings”. They cautioned against the isolated nature of Dr. Woodside’s opinion, and encouraged the inclusion of Dr. Chatterjee’s finding, in which she opined that the appellant was NCR at the time of the killing. (Bharwani, para 202).
Beyond evidentiary concerns, the dissent provided a nuanced elaboration on the NCRMD test. They articulated that knowing something is morally wrong in the abstract cannot be determinative. Instead, what is relevant is whether the accused could have applied that knowledge to their situation at the time of the offence. When psychosis dictates conduct, thus overwhelming the ability to do otherwise, then NCRMD can be found, despite a general understanding of moral wrongdoing (Bharwani, para 224). While this application aligns with jurisprudence, it also further underscores the complexity of the NCRMD regime in cases involving fluctuating insight and fitness.
Analysis
The Court’s refusal to impose a reasonableness or best-interests test reinforces the minimal threshold in the fitness test. This decision therefore affirms that mental disorder cannot become an unintended, and arbitrary barrier to trial, particularly through the subjective assertion of “best interests”. By grounding the inquiry in reality-based comprehension instead of evaluative assessments of decision-making quality, the Court protects autonomy with respect to the accused while still facilitating integrity in criminal proceedings.
Inversely Bharwani also illuminates the limits of judicial willingness to challenge expert evidence post-trial. The majority’s cautious approach to fresh evidence emphasizes the importance of trial finality and the high threshold afforded for fresh evidence applications in the realm of contentious expert credibility. Conversely, the dissent reflects a growing reluctance to accept previous evidence at face value, especially when doing so could realistically have affected the verdict.
Though in agreement on the accused’s fitness to stand trial, the majority and dissent’s divide has potential to shape future litigation strategy and approaches to criminal proceedings. Defence counsel may rely on the methodological underpinnings of expert opinions and establishing differing expert beliefs. In contrast, trial judges may become more vigilant in assessing the reliability of differing expert evidence, the previous credibility of experts, and the extent to which experts provide new perspectives. Although the dissent did not prevail in this case, its reasoning provides a foundation to influence future discussions about evidentiary standards and post-trial reviews.
Conclusion
Ultimately, Bharwani clarifies longstanding uncertainty on s.2 of the Criminal Code and reaffirms the quasi-minimal, functional and autonomy-preserving fitness standard. It crystalizes the jurisprudential standard for fitness determinations and additionally affirms that criminal responsibility requires participation grounded in reality, not engaging in one’s best interests. Nonetheless, the split on the NCRMD and fresh evidence issues highlight the law’s continued difficulty in grappling with issues of mental disorder and treatment in the criminal justice system.