On July 25, 2025, the top court dismissed 6-3 an appeal brought by an Ontario man convicted of first-degree murder, who argued he was unfit to stand trial and who also moved to introduce fresh evidence on appeal to show that he was not criminally responsible at the time of the killing: R. v. Bharwani, 2025 SCC 26.
Although the Supreme Court bench divided 6-3 over whether to dismiss Mohamed Adam Bharwani’s conviction appeal, all nine judges endorsed the majority reasons regarding the appellant’s fitness to stand trial.
Supreme Court of Canada Justice Michelle O'Bonsawin
In dissenting from the majority decision to affirm Bharwani’s conviction, Justices Andromache Karakatsanis, Sheilah Martin and Mary Moreau would have admitted the fresh defence evidence on appeal, including evidence of two additional psychiatrists and new evidence that impugned the credibility and reliability of a psychiatrist who provided key expert evidence for the Crown at trial.
“We conclude that there is a material risk that the appellant’s criminally responsible verdict was based on potentially unsound, flawed, or unreliable expert evidence,” Justices Karakatsanis and Martin explained in joint reasons, backed by Justice Moreau.
Supreme Court of Canada Justice Andromache Karakatsanis
Justice O’Bonsawin noted that Bharwani’s by-leave appeal provided the court with its first opportunity to interpret the Criminal Code’s s. 2 definition of “unfit to stand trial” since the provision’s enactment in 1991.
(Although every accused is presumed fit to stand trial, that presumption can be rebutted if an accused meets the definition of “unfit to stand trial,” i.e., is “unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to understand the nature or object of the proceedings; understand the possible consequences of the proceedings; or communicate with counsel.”)
Supreme Court of Canada Justice Sheilah Martin
Justice O’Bonsawin said an accused is fit to stand trial “when they are able to make and communicate reality-based decisions in the conduct of their defence or instruct counsel to do so.”
“‘Conducting a defence’ includes making decisions that an accused must always make personally and those which relate to the exercise of their right to full answer and defence, such as decisions about pleas, the mode of trial, selection of counsel, whether to testify, whether to call or cross-examine witnesses, and closing submissions, among others,” the judge explained. “The 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.”
Addressing the “capacity threshold,” Justice O’Bonsawin said that it “is not required that an accused be able to make decisions in their best interests, but they cannot be overwhelmed by delusions, hallucinations, or other symptoms of their mental disorder when making and communicating their decisions.”
She noted that “mental health is a fluctuating concept,” and that an accused’s capacity may differ over time. “However, transient mental health symptoms do not necessarily compromise an accused’s ability to conduct a defence, nor do they necessarily require a new fitness inquiry for each fluctuation,” she explained.
“The primary consideration is always assessing the extent to which an accused’s mental disorder impairs their understanding of reality when making decisions in their defence since only an accused with an understanding of reality can be prosecuted. As such, the fitness to stand trial test allows an accused with a mental disorder to make unwise decisions, so long as they understand the reality of the situation and can intelligibly communicate.”
Justice O’Bonsawin said this “standard of fitness to stand trial applies irrespective of whether the accused is represented by counsel or self-represented.”
In the case of a self-represented accused, the trial judge is always obliged to provide the necessary assistance to ensure a fair trial, she said. “Although a fair trial is not a substitute for fitness, the support that exists to safeguard an accused’s right to a fair trial can factor into the fitness analysis.”
Bharwani, who had a history of mental health challenges, was charged with first-degree murder for killing a 23-year-old international student with whom he shared a basement apartment along with two other tenants. Shortly after her death, he was diagnosed with schizophrenia.
During pretrial proceedings, the accused’s mental health fluctuated and concerns were raised about his fitness to stand trial. The accused discharged his counsel and elected to represent himself, prompting the court to appoint an amicus curiae. A jury ultimately found him fit to stand trial.
At his trial, where the accused raised a defence of not criminally responsible on account of a mental disorder, two forensic psychiatrists called as experts for the defence diagnosed the accused as having symptoms of schizophrenia and psychosis and concluded that his mental disorder prevented him from understanding the moral wrongfulness of his actions at the time of the offence.
The Crown also called a psychiatrist, who diagnosed the accused with schizophrenia but concluded he was capable of appreciating the nature and quality of his actions and that no symptoms would have left him incapable of knowing the moral wrongfulness of his actions at the time of the offence.
The accused appealed his jury conviction to the Ontario Court of Appeal and moved before the appeal court to adduce fresh evidence from two additional psychiatrists, who provided post-trial assessments of his fitness to stand trial and his not-criminally-responsible-by-reason-of-mental-disorder defence.
The appeal court affirmed that the appellant had been fit to stand trial and declined to replace the guilty verdict with an NCRMD verdict.
The Court of Appeal also dismissed the appellant’s motion to adduce fresh evidence from two psychiatrists regarding both his fitness to stand trial and his NCRMD defence — the latter focused specifically on his understanding of the moral wrongfulness of his actions at the time of the offence.
In his appeal to the Supreme Court, Bharwani argued that the fitness to stand trial test, which stems from the definition of “unfit to stand trial” in s. 2 of the Code, “requires an accused to have analytical capacity, meaning that an accused must possess the ability ‘to make rational decisions in the conduct of their defence’ that are not based on delusions.” On this basis, he argued that he was unfit to stand trial and also that the appeal court below erred in dismissing his motion to adduce fresh evidence.
However, Justice O’Bonsawin ruled that the Supreme Court should show deference to the trial judge’s determination in Bharwani’s case that although the accused’s mental disorder prevented him from making decisions in his own best interests, there were no reasonable grounds to believe that he did not understand the reality of his trial.
Moreover, the fresh evidence sought to be tendered at the Court of Appeal could not reasonably be expected to have affected the outcome of the case, and the court made no error that would warrant intervention, Justice O’Bonsawin held.
She also concluded that the new defence evidence sought to be adduced before the court could not reasonably have affected the result of the trial and therefore should not be admitted.
Delmar Doucette, Furgiuele Law
“The position of the defence has always been that the verdict of murder against Mr. Bharwani was a miscarriage of justice,” Doucette said. “In our view, the dissenting reasons … fully capture this.”
However, there are three important legal aspects to the case, he added.
“First, although the court substantially reaffirms what has been known for the past three decades as the Taylor test for unfitness to stand trial in a criminal case, we believe that the court has provided an expansion of that test for unfitness that will provide greater fairness to mentally ill criminal defendants.”
(Bharwani argued that he was found fit to stand trial under an overly narrow interpretation of the “unfit to stand trial” test set out in R. v. Taylor (1992), 11 O.R. (3d) 323 (C.A.).)
Doucette explained that the Taylor test “narrowly asked a series of questions in regard to whether the mentally ill criminal defendant was aware of what was happening at their trial, without taking into account the particulars and complexity of the case that they were facing.”
In Doucette’s opinion, the Supreme Court’s judgment expands the “narrow” Taylor test, in paras. 62 to 65, including where the majority states, in part, that “the fitness to stand trial test is contextual, as the inquiry focuses on the decisions that form part of an accused’s defence in a specific case, and not in the abstract.”
Doucette also highlighted the minority’s holding that a narrow interpretation of the top court’s not-criminally-responsible (NCR) test in R. v. Oommen, [1994] 2 S.C.R. 507 — as it was interpreted by R. v. Dobson, 2018 ONCA 589, is wrong.
He explained that the Ontario Court of Appeal held in Dobson that a mentally ill defendant was not entitled to an NCR defence even if they believed, due to their mental illness, that they had no choice but to act.
“Though the majority of the SCC is silent on this issue, we believe that what is said by the minority now fully reinstates the Oommen test in Ontario, providing wider scope to the NCR defence,” Doucette remarked. “This too will provide greater fairness to mentally ill criminal defendants.”
In that regard, the dissenters wrote (at para. 222) that “this court’s jurisprudence allows for an NCR verdict for an accused with a background understanding of moral wrongfulness, whose mental disorder compels them to act in a way that prevents them from applying that understanding at the moment of their criminal acts. It follows that Dobson impermissibly narrowed Oommen to the extent that it effectively reads out the capacity to choose to act, where an accused is incapable of consciously applying their knowledge that society would view their criminal act as morally wrong.”
Doucette added that, on an issue not addressed by the majority, “We are pleased to see … the minority’s reiteration that an appeal is to be allowed where a verdict is ‘unsafe’ and thus a miscarriage of justice that requires a new trial.”
“This provides greater opportunity for criminal defendants, mentally ill or not, to succeed on appeal where there is good reason to believe that they have been wrongfully convicted of an offence,” Doucette said.
Counsel for the respondent Crown did not respond to a request for comment. Keesha Seaton, a spokesperson for the Ontario Ministry of the Attorney General, told Law360 Canada by email, “We are reviewing the decision and have no further comment.”
Anita Szigeti, Anita Szigeti Advocates
“The fitness test, as articulated in this case both at the Court of Appeal below and by the Supreme Court of Canada, appropriately balances the right of accused persons to be meaningfully present to defend the case against them with ensuring that we do not paternalistically deprive those who are able to participate, despite their mental health challenges, of their liberty,” Szigeti said.
“A finding of unfitness has grave consequences that could result in indefinite detention and forced psychiatric treatment and robs those who are found unfit of their day in court,” she noted. “The ‘meaningful presence’ touchstone for fitness is the correct test and one that the Empowerment Council supported with our submissions.”
Szigeti said that, in her own view, fitness was the easier of the two issues before the court, in some ways.
“The law of NCR is complex and challenging,” Szigeti explained. “It is also fraught with misunderstanding, misapprehension and misapplication in trial courts daily. There is a clear contradiction in some of the jurisprudence as to what we do with accused persons who are aware that their actions would be considered morally wrong by ordinary citizens, but nonetheless feel compelled to commit the criminal act with which they are charged.”
Szigeti said the Bharwani appeal gave the Supreme Court “the perfect opportunity to provide clear guidance on this difficult point” but, at para. 113 of the majority’s reasons, “they expressly declined to do so.”
She said her client is pleased that the minority “did take this issue on board and produced very helpful and thoughtful reasons, which provide clarity that those compelled to act in such circumstances have the NCR defence available to them.”
She added, “While ordinarily, expressions by the minority are not controlling, they are arguably persuasive, particularly where they are not expressly refuted in the majority’s judgment.”
Photo of Justice Andromache Karakatsanis: Jessica Deeks Photography, SCC Collection
Photo of Justice Sheilah Martin: SCC Collection
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