Understanding and Evaluating Contrasting Unfitness to Stand Trial Practices: A Comparison between Canada and the Netherlands

Abstract

Canada and the Netherlands represent two extremes in unfitness to stand trial practices. In Canada, a substantial number of defendants are found unfit annually, while in the Netherlands the practice has been limited to just a few cases in the past two centuries. In explaining this contrast, most comparisons point solely at differences in criminal procedure. The authors conclude that for a complete understanding, it is necessary also to explore areas of substantive criminal law and (civil) mental health law. The relationship with the responsibility criterion and with the values underlying civil commitment and enforced treatment for example are found to be of significance for the unfitness to stand trial practice. As a result of this improved understanding of the contrast, it is possible to evaluate the two systems, the one in light of the other.

Keywords:

• fitness/competency to stand trial
• comparative law
• human rights
• criminal responsibility
• mental health law and policy

In fall 2008, Michaël van der Wolf was a visiting Scholar at the Mental Health, Law, and Policy Institute, Simon Fraser University, Canada.

Notes

¹Probably constituting the scope of the citation, and certainly defining the scope of this article.

²In countries where no fitness-doctrine is defined in law, like France for example, as an exception trials may still be suspended because of a defendant's mental incapacity (Lamothe & Meunier, 2005).

³Where references to practices in other jurisdictions are to be made, differences in nomenclature are taken into consideration. What is meant by fitness (or competency, US) to stand trial (or to plead, UK) differs significantly per jurisdiction, and may incorporate various aspects of fitness, such as the abilities required to confess, waive counsel, plead, and be sentenced, as is the case in Canada since R. v. Whittle (1994).

⁴Since some of these 13 cases were not published and only noticed through personal involvement of authors, there are likely more cases.

⁵It is of interest to note that Taylor was a lawyer, so he was obviously familiar with the legal procedures and courtroom practices.

⁶Translation by Bal and Koenraadt (2004, p. 83), except for our necessary addition of ‘the intention of.’

⁷Originally the English common law doctrine for unfitness, dating back to the fourteenth century, was (also) demanded for defendants who were (deaf-)mute and therefore could not make a proper defense (e.g., R. v. Pritchard, 1836). But the Pritchard criteria required sufficient intellect to comprehend the course of proceedings, which was later explained as to be possibly compromised by mental dysfunction. So both ‘defects of the senses’ and ‘defects of the mind’ seemed to be included. The Criminal Code of Canada now only speaks of ‘mental disorder,’ probably because mutes have found good means to communicate. In Australian case law also ‘physical difficulties’ have been found to be a possible reason for unfitness (R. v. Mailes, 2001, R. v. Rivkin, 2004). The Law Reform Commission of Canada also discussed in a study paper (1973) whether people of a differentcultural background, who are unable to understand the proceedings and communicate with counsel, should fall under the unfitness rule.

⁸Other possibilities for diversion in Canadian law include the use of community courts.

⁹The TBS is a safety measure of indefinite duration for dangerous mentally disordered offenders, with the goal of treatment aimed at reintegration in society.

¹⁰The unfitness to stand trial doctrine is in this respect closely related to the idea that a convicted person should not be executed while insane, which is still of relevance in jurisdictions such as some U.S. states that have the death penalty. In clinical practice this leads to the ethical dilemma of treating incompetent death row inmates in order to restore competence so that the execution process can proceed (Bonnie, 1990; Brodsky, 1990).

¹¹However its forefather, the English law, does. But Morse (1979) has pointed out the lack of logic in the British way of applying the ‘mens rea’ variant of diminished responsibility, altering the charge from murder to manslaughter, as this seems to be a rather far-fetched way of solving the problem. Moreover, it offers no solution for other kinds of criminal conduct. But since the Dutch are unfamiliar with the mandatory life sentence for murder, taking away other ways of sanctioning which could take the disorder into account, in both jurisdictions diminished responsibility works as a mechanism stirring towards a treatment environment because there is a need for treatment from the point of view of society.

¹²While at the same time some people advocate that since diminished responsibility is not an explicit criterion in the law, a TBS-order should also be applicable to offenders in whom the disorder revealed itself after the offense (see Kooijmans, 2002). Notable is also that in Germany, the country with a similar responsibility-doctrine, there is also no such division (see Bal & Koenraadt, 2004; Nedopil, 2000).

¹³Other jurisdictions have found other ways to solve this problem. In some US states, the possible length of hospitalization after a finding of incompetence is limited, either until reasonably could be determined whether there is a substantial probability that the accused will attain competence in the foreseeable future (Jackson v. Indiana, 1972), or by the maximum length of the possible sentence if the accused would have been fit. If this time has elapsed without fitness, then civil commitment or release may follow. In England the Criminal Procedure (Insanity and Unfitness to Plead) Act of 1991 has changed proceedings providing also for absolute discharge and to the extent that a trial of merits will be held even if someone is found unfit. In reaction to the case of Valerie Hodgson (who plead guilty, was found unfit, and was later found to be not guilty of the murder of her father), they obviously value the certainty of a verdict over its reliability (and fairness). The question is whether the ECHR would have the same opinion (Bal & Koenraadt, 2004). Since there are both advantages and disadvantages to this ‘solution’ it is used in a limited number of cases (Grubin, 1996).

¹⁴In the Dutch Menten case AG Remmelink thought it possible that if the criterion for article 16 would have been met, Menten could have been detained until death.

¹⁵In the U.S. the allowance of involuntary treatment of the unfit may be dependant on the severity of the offense, the probability of serious side effects, the probability of serving the public interest, etc. (see Washington v. Harper, 1990; Riggins v. Nevada, 1992).