Why a man with schizophrenia will likely be found fit to stand trial for attempted murder

The family of a man with schizophrenia charged with two counts of attempted murder is bracing for an aspect of the criminal justice system that is almost inevitable.

Despite any symptoms Mitchell Rose may have been suffering from when he attacked his neighbours in a St. John’s apartment building last week, there is a high degree of probability he’ll be found mentally fit to stand trial.

The fitness test under Canadian law only requires an accused person to be able to communicate with their lawyer and have a basic understanding of proceedings.

“We don’t want to think of Mitchell going to trial, but that is a very scary thought that we may have to deal with very soon,” said his sister, Janaya Rose, in an interview on Friday.

“He’s not going to talk to a lawyer. He’s not going to talk to anybody about anything,” added his mother, Trudy Hickey. “He’s not fit to stand trial.”

Critics have panned the test for decades, arguing it sends people with complex mental health issues headfirst into the justice system, often unable to participate in their defence or make decisions in their own best interest.

The Supreme Court of Canada clarified the test in a decision earlier this year, stressing the importance of an accused person’s autonomy and dignity in the legal process — even if they are hurting their own defence.

“The accused is not required to make decisions in their best interests, but cannot be overwhelmed by delusions, hallucinations, or other symptoms of their mental disorder when making and communicating these decisions,” the court’s decision reads.

Retired Crown prosecutor Mike Murray said it’s important to note fitness has nothing to do with a person’s mental state at the time of the alleged offences,  but their mental state in the days, weeks and months afterwards.

“Fitness can be fluid,” Murray explained, noting that a person can be found unfit when they’re first arrested but later become fit as they receive medical treatment.

That could be the case for Rose, he said.

Rose was sent for a psychiatric evaluation after his arrest, but the court heard he refused to speak with a psychiatrist. He was sent back to the hospital for another seven days so the doctors could try again.

Murray said people are often held at the psychiatric hospital for 30 days before a determination is made. 

The longer the process goes, the more likely a person’s condition stabilizes, and the more likely they’ll be found fit to stand trial.

Murray said it’s important to note there’s a fundamental difference between being found fit to stand trial, and being found criminally responsible.

Fitness to stand trial only relates to a person’s mental state during court proceedings, and is decided by a psychiatrist. Criminal responsibility relates to a person’s mental state at the time of the alleged offence and is decided by a judge or jury.

The high-profile cases of Graham Veitch or Anne Norris are examples.

Both were suffering from schizophrenia when they committed acts of murder. Both were found fit to stand trial based on their ability to participate in the legal process, but were later found not criminally responsible for their actions based on their mental state at the time of the incidents.

Family, advocate hope for hospital over jail

Anita Szigeti said there are valid arguments on both sides of the fitness bar, but she’s more concerned with what comes after.

The Ontario-based lawyer and mental health advocate said it’s not uncommon for people with mental illnesses to be housed in jail cells while awaiting trial, only to be found not criminally responsible and sent to a psychiatric facility in the end.

That was the case for both Veitch and Norris.

“There’s no justification for that,” Szigeti said. “That’s just time lost in the person’s treatment, rehabilitation and any prospect of reintegration.”

In a more recent case, Thomas Parsley — a Newfoundland man who was living in a psychiatric hospital when he fatally attacked another patient — was found fit to stand trial, but was allowed to remain in hospital while awaiting trial. 

Janaya Rose is hoping the same will apply for her brother.

“We believe that he needs to stay in the hospital. He should not be in a jail cell. Not to say that what he did was justifiable, because he did something terrible. He did do a criminal act, we know that, and there’s people in the hospital,” she said. “But we want to see Mitchell long-term in the hospital getting the medical help he needs. Not in a jail.”

Szigeti agrees.

“Jails and prisons are no place for people who have serious mental health issues,” she said. “They are at risk of being harmed by others, they are at risk of being placed in segregation. Their mental health will not improve and is likely to worsen in the correctional system.”

Mitchell Rose is due in court Wednesday at 2 p.m. NT for the results of his psychiatric assessment.

Download our free CBC News app to sign up for push alerts for CBC Newfoundland and Labrador. Sign up for our daily headlines newsletter here. Click here to visit our landing page.