Fitness to stand trial evaluations in immigration proceedings.

Abstract

In Canada, criminal defendants have the right to participate in their legal defense. Although this right is often interpreted as relating to defendants' physical presence, it also relates to their mental abilities. Fitness to stand trial (FST) refers to defendants' capacity to complete procedural duties and follow court proceedings. The criteria for FST (also known as competency to stand trial) were defined in 1992 in the revision of the Canadian Criminal Code (CCC). Although the ultimate decision regarding competency lies with the court, the decision is traditionally based on the recommendations of mental health professionals (although in Canada, the report must be written by a physician; CCC, s.672.1). FST evaluations are the most commonly conducted forensic mental health assessment (O'Shaughnessy, 2007; van der Wolf et al., 2010). Between 1992 and 2004, approximately 1,860 defendants were found unfit to proceed with their criminal cases (Latimer & Lawrence, 2006). Moreover, Latimer and Lawrence (2006) noted that requests for competency evaluations and the number of persons found unfit have been increasing since the standard's development in 1992.FST, as described by the CCC, is limited to criminal settings and does not directly apply in immigration proceedings. However, a similar criterion exists for those in this type of setting. The Immigration and Refugee Board (IRB) of Canada requires that those members who are responsible for hearing the case and making a decision designate a representative for examinees or detainees who are unable to appreciate the nature of the immigration proceedings (IRB, 2005). Despite the existence of this standard, there are few details and little empirical research to assist in its implementation. The lack of clear guidelines is juxtaposed with an increased burden on the part of the claimants in immigration proceedings, as they often complete these proceedings without legally trained representatives (Rehaag, 2011).Although understudied, the role of FST is especially important in immigration settings (e.g., asylum hearings), where the outcome of the trial may involve a risk of persecution or death. The amount of individuals in Canada who could potentially be impacted by policies relating to immigration proceedings is substantial. Between 2006 and 2011, approximately 1,162,900 foreign-born individuals immigrated to Canada, representing 3.5% of Canada's total population (Statistics Canada, 2013). There were 539,036 refugee claimants from 1995 to 2014 (Citizenship & Immigration Canada, 2014). Although the largest recent immigrant group originated from Asia, individuals from Africa, the Caribbean, Central America, and South America are also immigrating at high rates (Statistics Canada, 2013).Although the standard for fitness in immigration settings does not specify the existence of a mental disorder, the responsibilities associated with fitness are particularly precarious for those with mental health problems. Psychological symptoms could impact individuals' abilities to understand and work effectively on their cases. This is problematic as individuals involved in immigration proceedings are likely to be suffering from symptoms of mental illness (Gros & van Groll, 2015). Cultural factors associated with migration may contribute to the risk of mental disorders, particularly psychotic disorders (Anderson, Cheng, Susser, McKenzie, & Kurdyak, 2015). For example, Anderson and colleagues (2015) found that in Canada, immigrants from the Caribbean and Bermuda and refugees from East Africa and South Asia had high rates of schizophrenia. Even when treatment is available, these individuals might remain untreated. This would likely impact the rates of fitness. As a point of comparison, although the presence of mental illness is not sufficient cause in and of itself, in criminal settings, defendants with psychotic disorders or symptomatology are more likely to be found unfit to stand trial at the time of the evaluations (Cooper & Zapf, 2003; Latimer & Lawrence, 2006; Viljoen, Zapf, & Roesch, 2003). …