Legal Explainer: Yes, an accused can still make an 'insanity' plea after a determination of 'fit to stand trial'

An ability to understand the proceedings in court now does not necessarily mean the mens rea existed for criminal responsibility then

The man charged with murdering 11 people and injuring more than 30 others in a massacre at the Lapu Lapu festival in Vancouver on April 26, 2025 was possibly in the midst of a schizophrenic episode.

Or maybe not.

Kai-Ji Adam Lo drove an Audi SUV into a crowd of people indiscriminately, an act that seems like it had to be the product of a mentally disturbed mind. But that doesn’t mean it was. Lo had multiple interactions with police in the months leading up to the massacre. He also wrote on a fundraising page for his murdered brother’s (yes, that’s another story) funeral costs in a way that was coherent and sure seemed sane: “Our reality has abruptly shifted. Despite our disagreements, the harsh truth that he’s no longer with us hits me with an overwhelming force.”

A Vancouver judge determined on Wednesday (Sept. 10, 2025) that Lo is indeed fit to stand trial, which was received as good news for families of victims.

The decision immediately brings up another question: If Lo is fit to stand trial, does that mean he can’t plead insanity? 

The short answer is “no.” There are several reasons why a person might be considered mentally unable to form the mens rea (Latin for “guilty mind”) to understand their actions in one moment but be perfectly capable in another. A person who is deeply schizophrenic but is properly medicated could certainly understand their actions. Just as an otherwise sane person in a drug-induced psychosis might not be able to.

An example in case law

On April 5, 2005 in Minto, New Brunswick, Gregory Allan Despres stabbed his neighbours 74-year-old Fred Fulton and 70-year-old Veronica Decarie to death.

Despres suffered from paranoid-schizophrenia-led delusions. 

He also decapitated Fulton with a homemade sword then put the murder weapons in his car, drove to the U.S. border crossing at Calais, Maine. He made no effort to hide the homemade sword, as well as a knife, a hatchet, and a chainsaw stained with blood to U.S. border officials. He claimed he was a U.S.-government assassin who had killed 700 people. 

Despite provisions in Maine law making it able to detain someone based on mental illness or federal law for lying to border officers – obviously he didn’t kill 700 people – they couldn’t find a reason to detain him because he was a U.S. citizen. They took his weapons, fingerprinted him, and let him enter.

After hitchhiking to Massachusetts, on April 27 Despres was arrested wandering on the side of the road and detained on an outstanding warrant for an assault of Fulton’s son-in-law in New Brunswick a year before. A day before that, the bodies were found. The RCMP suspected Despres so he was extradited from Boston to Fredericton.

During his first trial he lashed out at defence counsel making outlandish claims that his lawyer worked for Al-Qaeda. The judge ordered a psychological examination and Despres was found unfit to stand trial by a psychiatric expert due to paranoid schizophrenia, and the judge determined he was unfit to stand trial.

Two months later, on July 11, 2007, the mental health review board in New Brunswick found that Despres was responding well to treatment and was fit to stand trial.

A second trial was held in which he was found not criminally responsible by mental defect, formerly referred to as not guilty by reason of insanity.

Crazy now or then?

This precedent illustrates a principle in Canadian law, namely, being able to stand in court today understanding the proceedings doesn’t mean you were legally culpable when you acted under the haze of a severe mental disorder. 

Our system separates “Can you now?” from “Were you then?”

Fitness to stand trial deals with whether an accused can participate in the process. Under section 2 of the Criminal Code, a person is unfit if, because of mental disorder, they cannot understand the nature or object of the proceedings, understand the possible consequences of the proceedings, or communicate with counsel. It’s about present ability to stand in court and defend oneself. If someone is found unfit, the trial can’t proceed until they are restored to fitness, which is what happened in the Dupres case after the first trial.

Not criminally responsible (NCR) is covered in section 16 of the criminal code. It applies if, at the time of the offence, the person was suffering from a mental disorder that made them incapable of appreciating the nature and quality of their act or of knowing it was wrong. A person can be fit to stand trial by understanding the courtroom, following the evidence, talking to their lawyer, and still be found NCR because their mental state during the offence deprived them of criminal responsibility.

So the answer is yes: it’s entirely possible to be found fit to stand trial and then later be found not criminally responsible on account of mental disorder. The first is about “can you be tried now,” the second is about “were you responsible then.”

Individuals with mental disorders are in B.C. courtrooms every day charged with everything from shoplifting to homicide. The vast majority of people who commit serious crimes are not mentally ill, and the vast majority of people who are mentally ill do not commit crimes. 

Sometimes, however, as we have seen time and again, one of these ticking time bombs go off. And while we would never go back to popping straight jackets on people who are fighting their own demons and warehousing them to be overseen in One Flew Over the Cuckoo’s Nest-style asylums, the public discourse around cases such as this inevitably circles back to the subject of involuntary care of individuals who are clearly ill and a threat to themselves or others.

In September 2024, the provincial government announced a plan to increase involuntary care, first with a correctional site at the Surrey Pretrial Services Centre, which opened with 10 beds in April 2025. The second is a housing facility on the grounds of the Alouette Correctional Centre in Maple Ridge, which hasn't opened yet.

Some advocates, frontline workers, and family members of those suffering with mental disorder and/or addiction say hold on, let's make sure there is enough voluntary care long before we start locking people up against their will.

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Paul J. Henderson
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