Editor’s note: This piece discusses violence and murder in the context of the legal rules around fitness to stand trial, and criminal responsibility.
Over the past two weeks a judge has been overseeing a hearing to determine if Vancouverite Kai-Ji Adam Lo is mentally fit to stand trial.
Lo is accused of killing 11 people at the Lapu-Lapu Day festival in April, where he allegedly drove an SUV through a crowd at the end of the festival honouring a Filipino hero.
Dozens more were injured and, as of June 26, six of them were still in hospital, according to Global News.
Lo is facing 11 counts of second-degree murder. But first, a judge has to determine if he is currently fit to stand trial.
Lo was an involuntary outpatient in the care of a community mental health team at the time of the attack.
Filipino BC chair RJ Aquino told The Tyee that the organization would not be offering comment at this stage of the hearing.
Lo’s hearing is navigating a section of the Criminal Code that most Canadians are unlikely to be familiar with, which lays out what happens when mental illness and the code interact.
The Tyee sat down with Jonathan Blair, a lawyer with the Community Legal Assistance Society’s community law program, for an explainer on what it means to be mentally fit or unfit to stand trial, and, if someone is found fit to stand trial, what it would mean if they were then found not criminally responsible.
Blair is not involved in Lo’s trial in any way and did not comment on Lo’s mental health or trial.
Under the Canadian Criminal Code, Blair said, everyone is assumed to be fit to stand trial, which basically means if you are charged with a crime, you will face some form of justice. What that process looks like is laid out in the Criminal Code; a judge or jury will ultimately determine what form of justice you will be served.
Blair offered two brief explanations for what it means to be unfit to stand trial, and what it means to be found not criminally responsible, before launching into more detailed explanations.
First off: all people have the right to stand trial, but if at any point during the trial an accused person’s mental health declines to the point where they no longer can understand what is going on, they can be determined to be not mentally fit to stand trial, he said. This pauses the trial until a later date when the accused has recovered and the trial can resume.
Being found not criminally responsible is what happens at the end of a trial when a person has been found guilty, but the trial has also determined that they did not understand what they were doing or the consequences of their actions because of a mental disorder, he said.
Now, the detailed explanations.
Mentally unfit to stand trial
The Criminal Code’s section on mental disorders is laid out in Part 20.1. It runs from sections 672.1 to 672.95, which covers a lot of ground.
For a more concise definition on being mentally unfit to stand trial, Blair pointed to paragraphs 77 to 81 of a recent Supreme Court of Canada case, Mohamed Adam Bharwani v. His Majesty the King, which clarified the issue.
That decision lays out that an accused person has to be able to make reality-based decisions and be able to communicate these decisions to counsel or the court. They have to be able to understand the possible consequences of the trial and their options, such as pleading guilty or not guilty. They shouldn’t be overwhelmed by delusions, hallucinations or other symptoms of their mental disorder when making these decisions.
This doesn’t apply to all mental illnesses and is also not designed to prevent people from making bad decisions, as long as they understand the decisions they are making, Blair said. That means if someone has strong beliefs, like believing in conspiracy theories or having strong religious beliefs, they are still fit to stand trial, he said.
In short: as long as a person can understand that they’re on trial, decide if they want to plead guilty or not and communicate that to the court, the trial can proceed, he said.
Multiple medical experts can be brought into a trial to assess or offer their opinion on whether a person is fit or unfit to stand trial, but the decision is ultimately made by a judge, Blair said.
What happens next depends on the severity of what they’re accused of. If someone is accused of, say, stealing a small item from a grocery store, they might be placed in a hospital for mental health care until they can recover and come back to stand trial.
But if a person is accused of a serious crime, such as murder, they will likely be detained in B.C.’s Forensic Psychiatric Hospital in Coquitlam. This facility is designed for people with mental health disorders who are unfit to stand trial or have been found not criminally responsible.
This is a form of detention related to a breach of the Criminal Code, Blair said. A criminal review board will then periodically look at a person’s case and determine if they are still unfit to stand trial, permanently unfit to stand trial or now able to stand trial.
As an example Blair pointed to a 2024 case in which a man was determined to be unfit to stand trial because of a delusional disorder that made him think his lawyer was involved in organized crime and demonology and therefore wasn’t acting in his best interest.
Later, after the man had started taking antipsychotic medication, he was determined to be able to stand trial again.
Not criminally responsible
Being found not criminally responsible essentially means a person didn’t understand the “nature and the consequences” of their actions or that what they were doing was wrong at the time the crime was committed, Blair said.
For example, Blair said, a person with a severe mental health disorder might commit a murder while having a delusion that they are killing Satan. They are able to understand that they are killing someone, which means they understand the nature and consequences of their actions, but might not be able to understand that what they did was wrong, because they thought they were saving the world by committing the murder, he said.
In that case a person would likely be found not criminally responsible for their actions and be sent to the Forensic Psychiatric Hospital.
Criminal law generally says people should be convicted only of criminal offences they did voluntarily, Blair said.
“The idea of criminal responsibility often has this element of: you had to know what you were doing; you intended to do it; and you ought to have known what was going to happen as a result of what you were doing,” Blair said.
If someone commits a crime with a gun to their head, or passes out in a car after a heart attack and crashes into someone, they’re not responsible for the crime in the same way, even though they still committed the crime, he said.
Similarly, if a mental disorder separated a person from reality, they may not have been responsible for the crime, even though it’s acknowledged they are guilty of the crime, he said.
It’s also important to note that being found not criminally responsible doesn’t necessarily mean a person will face more lenient consequences than if convicted, Blair said.
As an example he pointed to a 2010 case in which a man with disorganized schizophrenia was found not criminally responsible for robbing two Vancity credit unions because he wasn’t able to understand that what he was doing was wrong.
In this case the robberies likely wouldn’t have led to lengthy jail time, but because he was found criminally not responsible he was “detained for years, and has essentially been on probation for over a decade after that; far more than if they were simply convicted,” Blair said.
