The release of this Judgment in R v. Bharwani from the Supreme Court of Canada was a highly anticipated event, given the importance of the issues before the Court – potentially changing the law in the staples of criminal justice and mental disorder, both FITNESS and NCR.
Now also reported on CanLII here
R. v. Bharwani, 2025 SCC 26 (CanLII), <https://canlii.ca/t/kdfnv>
If you learn best by listening to Podcasts or Watching Webcasts, here is one we did on the heels of the release of the Judgment – as part of WiCCD’s Who Cares? Series – Aug 3
The UPSHOT
On the upside, this affirmation of the Ontario Court of Appeal on the fitness test is the final nail in the coffin of attempts to elevate that test to include decisions in the best interest of the accused. That debate, which has been going on for decades, with strong opinions on both sides, is finally and blissfully, settled.
However:
Ultimately, this Judgment raises more questions than it answers in other respects, and if anything will serve to complicate and prolong litigation of the issue of criminal responsibility on the ground.
After many years of the trial and all the appeals, consideration by five Judges of the Court of Appeal for Ontario and nine Judges of the Supreme Court of Canada of a fundamental tension and divergence in the jurisprudence regarding what is meant by “knowing it was wrong” in the second branch of the section 16 test for criminal responsibility in the Criminal Code, we are somehow, remarkably, no further ahead.
But we’re not necessarily behind either – more like things are gonna get even more interesting going forward.
Here is the Law360 article capturing some of my preliminary thoughts on the Judgment
Law360 Article on Bharwani in the SCC Released July 25 2025
And on my blog here:
This is a super complicated issue, so my blog is for the mental disorder law nerds among you.
Approach it like it’s rocket science!
First, to understand the litigation history and the issues that were squarely before the Court.
BACKGROUNDERS
Sounds a little like Backyardigans but maybe that’s just a trauma response from having been forced to watch many years of toddler programming when my now young adult children were little….
Back to the case at hand – BHARWANI!
Here are a bunch of resources for those who truly want to understand it all.
First, the LAW
I had set out the legal issues in an earlier blog
I had also blogged about my experience of being the lead counsel to our team for the Empowerment Council in this case here:
VIDEO REPLAYS OF CONFERENCE PANELS ON FITNESS AND NCR
The CLA’s 2023 Spring Conference featured a panel on Fitness that considered the impact of Bharwani out of the Court of Appeal for Ontario at that time. This is a particularly useful discussion that provides great background on the law of fitness to that point in particular. Unfitness tangentially engages the role of amicus in mental health matters, explored in great detail in Kahsai at the SCC, which is also covered here.
More recently the Bharwani case and its focus on fitness was discussed by our panel of experts at the LAMDA / WiCCD Mental Disorder and Criminal Law Conference held on April 26, 2025.
You can watch the video of that panel here:
Similarly, the Law of NCR was canvassed in detail by our experts focusing on Bharwani at the same conference here:
BOOK
I’d be remiss if I did not mention here our latest book in which all these issues are thoroughly canvassed by many of these expert presenters – The Canadian Anthology on Mental Health and the Law
Now Available – Order the New CAMHL Volume Here
The great news for students is that there is a much cheaper way to get both the print and the student e-versions online at substantial savings here:
Canadian Anthology on Mental Health and the Law – Student Edition – $140
Much more information about the book on my blog:
THE SCC’S JUDGMENT IN BHARWANI
Now also reported on CanLII here
R. v. Bharwani, 2025 SCC 26 (CanLII), <https://canlii.ca/t/kdfnv>
Bottom Line – My own Analysis
There were really three issues before the Court:
1. The test for fitness
2. What does “knowing it was wrong?” really mean under section 16’s 2nd branch [aka the Oommen vs Dobson contest]; and
3. Whether findings in Minassian about an expert’s note-taking practices, and Nettleton [and arguably or ultimately Hason] which found Dr. Scott Woodside did not fulfill his duties to the Court as an independent expert such that his evidence was excluded (Nettleton) or risked an unsafe Verdict (Hason) could be admitted as fresh evidence in support of the Appellant’s position that his trial constituted a miscarriage of justice?
FITNESS Redux
The Court unanimously upholds the Court of Appeal’s analysis on the test for fitness.
This may frustrate many criminal defence lawyers who believe the test is too low, but at least the debate is finally settled on that score.
We have a somewhat expanded Taylor test, that puts a higher emphasis than was in practice previously placed on the accused person’s ability to communicate intelligibly with counsel, identifies “reality-based” as a qualifier for understanding the role of justice system participants and the case you’re facing and also emphasizes the contextual nature of the fitness analysis and determination, as specific to the particulars of the individual accused’s circumstances.
But apart from that, Taylor test it remains. Importantly, fit accused do not have to make decisions that are in their best interest. They just have to make decisions, like everyone else.
NCR and the Fresh Evidence Motion
Both the 6 member Majority and the 3 member Minority conflate issues 3 and 2 in that order.
In other words both determine that the law of NCR only becomes relevant if the judicial findings in Minassian and Nettleton constitute admissible fresh evidence (as they did in Hason) that reasonably could have altered the verdict at trial.
As a result, the Majority [at para 113] declines to comment on the law of NCR at all, once they determine the fresh evidence is not admissible because it could not have reasonably led the Jury to a different verdict (NCR).
The Minority however rolls up their sleeves and does a deep-dive on the law of NCR and rejects the approach taken at the Court of Appeal for Ontario in this case, following their own Judgment in Dobson, which would deny NCR’s availability to any accused who appreciates that others would find their actions morally wrong, even if they feel they have no choice but to act.
Instead the Minority affirms the SCC’s own Judgment in Oommen, which they say makes it clear that acting under a compulsion driven by psychosis means you’re NCR if that compulsion means you’re not able to apply to your actions the rational process of choosing not to commit the act you know to be wrong.
Para 222 of the Minority’s Judgment
“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.”
Where does this leave us all?
The short answer is nobody really knows right now.
It’s not common, and probably nearly unprecedented, to have a long and exhaustive dissent on an issue the Majority ultimately chooses not to weigh in on at all.
A minority judgment is not binding or maybe it is in these unique circumstances?
Not binding, probably.
But bloody persuasive, though, given that there is nothing to refute it on the other side.
The Supreme Court has not said that Dobson is alive and well. Nor did the Majority engage in the analysis to suggest that there is a way to reconcile Dobson with Oommen.
We only have the Minority’s examination of this thorny issue.
There are several ways defence can use these pronouncements and for completely different purposes depending on what a client is looking to establish or gain.
I’ll leave those strategic tips out of this blog because they’re best left to counsel to litigate on each case as they come up.
But I see this as the beginning of a beautiful jurisprudence!
Which is great, apart from the fact that it was supposed to be the end of this particular road.
Finally, here is WiCCD’s Who Cares? About Fitness and NCR – Bharwani in the SCC Episode Aug 3
In this episode, an expert panel of Sarah Rankin, Carter Martell and Anita Szigeti share their insight into the Supreme Court’s recent decision in R. v. Bharwani.
Link: https://youtu.be/PE02YwBVi1k
Description:
The counsel team who represented one of the interveners, the Empowerment Council, in this case, explore the potential implications of this interesting Judgment, in which a six member Majority declined to comment on the application of the NCR test and in particular what is meant by “knowing it was wrong” regarding the offences the accused committed. Three Judges of the Court writing for the Minority do squarely address some pre-existing tensions in this complex area of the law. Sarah Rankin, Carter Martell and Anita Szigeti discuss the case with Maya Shukairy.
This case was our highest Court’s first substantive consideration of these constituting issues in the criminal law and mental disorder realm in decades.
Tune in and join us in a high level exchange about how we got here, where we are now and where we may be headed next.
anitaszigeti 