R. v. Swain

R. v. Swain
Collection
Supreme Court Judgments
Date
1991-05-02
Report
[1991] 1 SCR 933
Case number
19758
Judges
Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 19758
Decision Content
R. v. Swain, [1991] 1 S.C.R. 933
Owen Lloyd Swain Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada,
the Lieutenant Governor's Board of Review of Ontario,
the Canadian Disability Rights Council,
the Canadian Mental Health Association and
the Canadian Association of Community Living Interveners
Indexed as: R. v. Swain
File No.: 19758.
1990: February 19; 1991: May 2.
Present: Lamer C.J.* and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and Cory JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Jurisdiction ‑‑ Division of powers ‑‑ Acquittee on reasons of insanity to be held in strict custody pending Lieutenant Governor's pleasure ‑‑ Provision to protect society and not to punish ‑‑ Treatment a provincial responsibility ‑‑ Whether provision ultra vires ‑‑ Constitution Act, 1867, s. 91(27) ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 542(2).
Constitutional law ‑‑ Charter of Rights ‑‑ Right to liberty ‑‑ Fundamental justice ‑‑ Arbitrary imprisonment ‑‑ Equality before the law ‑‑ Issue of insanity raised by Crown over objection of defence ‑‑ Whether the common law criteria permitting the Crown to adduce evidence of an accused's insanity violated ss. 7 , 9 , and 15 of the Canadian Charter of Rights and Freedoms ‑‑ If so, whether the common law criteria were justified by s. 1 ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 9 , 15 .
Criminal law ‑‑ Defences ‑‑ Right of accused to control own defence ‑‑ Issue of insanity raised by Crown over objection of defence ‑‑ Whether the common law criteria permitting the Crown to adduce evidence of an accused's insanity violated ss. 7 , 9 , and 15 of the Canadian Charter of Rights and Freedoms ‑‑ If so, whether the common law criteria were justified by s. 1 ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 9 , 15 .
Constitutional law ‑‑ Charter of Rights ‑‑ Right to liberty ‑‑ Fundamental justice ‑‑ Arbitrary imprisonment ‑‑ Whether the statutory power to detain a person found not guilty by reason of insanity, pursuant to s. 542(2) of the Criminal Code , violated ss. 7 and 9 of the Canadian Charter of Rights and Freedoms ‑‑ If so, whether that power was justified by s. 1 of the Charter ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 9 ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 542(2).
Criminal law ‑‑ Insanity ‑‑ Statutory power to detain a person found not guilty by reason of insanity ‑‑ Charter of Rights ‑‑ Right to liberty ‑‑ Fundamental justice ‑‑ Arbitrary imprisonment ‑‑ Whether statutory power violated ss. 7 and 9 of the Canadian Charter of Rights and Freedoms ‑‑ If so, whether that power was justified by s. 1 of the Charter ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 9 ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 542(2).
Appellant was arrested and charged with assault and aggravated assault and was transferred from jail to a Mental Health Centre for the criminally insane. His condition improved rapidly with medication and he was conditionally released into the community. Appellant returned briefly to jail and was granted bail on conditions shortly thereafter. He remained on bail until June 10, 1985, and continued to take medication and to see a psychiatrist.
At trial, the Crown sought to adduce evidence with respect to insanity at the time of the offence; the appellant objected. After conducting a voir dire, the trial judge ruled that the Crown could adduce such evidence. Appellant was found not guilty by reason of insanity on all counts. Defence counsel then moved to have s. 542(2) of the Criminal Code (now s. 614 ), which provides for the automatic detention at the pleasure of the Lieutenant Governor of an insanity acquittee, declared inoperative on the basis that it violated the Canadian Charter of Rights and Freedoms . The judge held that appellant's constitutional rights were not infringed by s. 542(2) and ordered that he be kept in strict custody until the Lieutenant Governor's pleasure was known. Appellant appealed and applied for bail pending appeal. This application was adjourned in order to permit an early hearing of the appellant's case by the Advisory Review Board which advised the Lieutenant Governor concerning the detention of insanity acquittees. The Lieutenant Governor issued a warrant further detaining the appellant in safe custody in a mental hospital for assessment and report to the Advisory Review Board within 30 days. Neither the appellant nor his counsel received prior notice of this decision and accordingly neither made submissions with respect to this decision.
Appellant was sent for psychiatric examination and assessment and remained a patient for 30 days. The Advisory Review Board held a review hearing, pursuant to s. 547 of the Code. Appellant and his counsel were present. The Board recommended that appellant should remain in safe custody and that the administrator of the mental facility in which he was detained have the discretion to permit him to re‑enter the community with conditions as to supervision and follow‑up treatment. Shortly thereafter, the Lieutenant Governor issued a warrant implementing those recommendations.
Appellant's counsel requested the right to appear and make submissions before the Lieutenant Governor at the time when the recommendation of the Advisory Review Board would be considered. This request was not granted. It was not until after the Lieutenant Governor's warrant for appellant's further detention had issued that the recommendation of the Advisory Review Board was released to the appellant's counsel.
A majority of the Ontario Court of Appeal dismissed the appeal.
The constitutional questions queried: (1) whether s. 542(2) of the Criminal Code was intra vires; (2) whether the common law criteria permitting the Crown to adduce evidence of an accused's insanity violated ss. 7 , 9 , and 15 of the Canadian Charter of Rights and Freedoms ; (3) and if so, whether the common law criteria were justified by s. 1 of the Charter ; (4) whether the statutory power to detain a person found not guilty by reason of insanity, pursuant to s. 542(2) of the Criminal Code , violated ss. 7 and 9 of the Canadian Charter of Rights and Freedoms , and (5) if so, whether that power was justified by s. 1 of the Charter .
Held (L'Heureux‑Dubé J. dissenting): The appeal should be allowed. The constitutional questions were answered as follows: (1) s. 542(2) of the Criminal Code was intra vires; (2) the common law criteria limited s. 7 of the Charter ‑‑ it was not necessary to consider ss. 9 and 15 of the Charter ‑‑ and (3) were not justified by s. 1 ; (4) s. 542(2) of the Criminal Code violated ss. 7 and 9 of the Charter and (5) was not justified by s. 1 .
Per Lamer C.J. and Sopinka and Cory JJ.:
1.Does it Violate the Charter for the Crown to Raise Evidence of Insanity Over and Above the Wishes of the Accused?
The common law rule permitting the Crown to adduce evidence of insanity over and above the accused's wishes violates s. 7 of the Charter . The Charter , given that the litigation generally falls within the meaning of s. 32 , applies to common law rules.
Given an actual or potential deprivation of life, liberty or security of the person, which must be established to invoke s. 7 , the question becomes whether the deprivation is in accordance with the principles of fundamental justice. The liberty interest was readily apparent here.
The principles of fundamental justice contemplate an accusatorial and adversarial system of criminal justice which is founded on respect for the autonomy and dignity of the person. These principles require that an accused person have the right to control his or her own defence. An accused will not be in the position of choosing whether to raise the defence of insanity at his or her trial unless he or she is fit to stand trial. If at any time before verdict there is a question as to the accused's ability to conduct his or her defence, the trial judge may direct that the issue of fitness to stand trial be tried before matters proceed further. An accused who has not been found unfit to stand trial must be considered capable of conducting his or her own defence.
The insanity defence is an exemption to criminal liability which is based on an incapacity for criminal intent. The decision whether or not to raise this exemption as a means of negating criminal culpability is part and parcel of the conduct of an accused's overall defence.
The ability of the Crown to raise evidence of insanity over and above the accused's wishes interferes with the accused's control over the conduct of his or her defence. The mere fact that the Crown is able to raise a defence which the accused does not wish to raise, and thereby to trigger a special verdict which the accused does not wish to trigger, means that the accused has lost a degree of control over the conduct of his or her defence. The Crown's ability to raise independently the issue of insanity could very well interfere with other defences being advanced by the accused and could irreversibly damage an accused's credibility.
An accused's right to control his or her own defence, while a principle of fundamental justice, is not "absolute". In circumstances where the accused's own evidence tends to put his or her mental capacity for criminal intent into question, the Crown will be entitled to put forward its own evidence of insanity and the trial judge will be entitled to charge the jury on s. 16 of the Code. Whether the accused's evidence does, in fact, put mental capacity for criminal intent in issue will be a matter for the trial judge to determine in the particular circumstances of each case.
The common law rule violates a principle of fundamental justice in that the Crown is not limited to raising insanity only in circumstances where an accused's own defence puts his or her mental capacity for criminal intent into issue but rather can raise it over and above the wishes of the accused.
It is not appropriate for the state to thwart the exercise of the accused's right by attempting to bring societal interests into the principles of fundamental justice and to thereby limit an accused's s. 7 rights. Societal interests are to be dealt with under s. 1 of the Charter , where the Crown has the burden of proving that the impugned law is demonstrably justified in a free and democratic society.
It was unnecessary to consider whether the common law rule also restricts the rights enunciated in ss. 9 and 15 of the Charter , unless the limitation on s. 7 were upheld under s. 1 .
The Charter analysis here, because the appeal involved a Charter challenge to a common law, judge‑made rule, involved somewhat different considerations than would apply to a challenge to a legislative provision. It was not strictly necessary to go on to consider the application of s. 1 after the existing common law rule was found to limit the s. 7 Charter rights. It would be appropriate to consider at this stage whether an alternative common law rule could be fashioned which would not be contrary to the principles of fundamental justice. If it is possible to reformulate a common law rule so that it will not conflict with the principles of fundamental justice, such a reformulation should be undertaken. Of course, if it were not possible to reformulate the common law rule so as to avoid an infringement of a constitutionally protected right or freedom, it would be necessary for the Court to consider whether the common law rule could be upheld as a reasonable limit under s. 1 of the Charter .
The Court under s. 1 , in an appeal involving judge‑made law, must construe the overall objective of that common law rule. Here, the objective was two‑fold: (1) avoiding the unfair treatment of the accused while maintaining the integrity of the criminal justice system itself by avoiding the conviction of an insane accused, and (2) protecting the public from presently dangerous persons requiring hospitalization. These objectives relate to pressing and substantial concerns in our society and are of sufficient importance to warrant overriding a constitutionally protected right or freedom.
There was a rational connection between the objectives and the means chosen to attain the objectives. Allowing the Crown to raise evidence of insanity in cases where the accused has chosen not to do so is one way of avoiding the conviction of individuals who were insane at the time the offence was committed, but who do not wish to raise the issue of insanity. It also is a way of protecting the public from people who may be presently dangerous. These methods of achieving the first objective may raise certain problems and may not be the preferred method of achieving the objective, but they are nonetheless logical ways of achieving the desired objectives.
Parliament, because of judicial deference, need not always choose the absolutely least intrusive means to attain its objectives but must come within a range of means which impair Charter rights as little as is reasonably possible. There is no room for judicial deference, however, where a common law, judge‑made rule is challenged under the Charter . The least intrusive common law rule which will attain the objectives without disproportionately affecting rights must be adopted by the Court.
The dual objectives could be met without unnecessarily limiting Charter rights if the existing common law rule were replaced with a rule which would allow the Crown to raise independently the issue of insanity only after the trier of fact had concluded that the accused was otherwise guilty of the offence charged. Under this scheme, the issue of insanity would be tried after a verdict of guilty had been reached, but prior to a conviction being entered. If the trier of fact then subsequently found that the accused was insane at the time of the offence, the verdict of not guilty by reason of insanity would be entered. Conversely, if the trier of fact found that the accused was not insane at the time of the offence, within the meaning of s. 16 , a conviction would then be entered.
This rule would safeguard an accused's right to control his or her defence and would achieve the objectives of avoiding the conviction of a person who was insane at the time of the offence and of protecting the public from a person who may be presently dangerous. Of course, an accused would also be entitled, under this scheme, to raise his s. 7 right not to be found guilty if he was insane at the time of the offence. An accused would, if he or she chose not to do so earlier, raise the issue of insanity after the trier of fact had concluded that he or she was guilty of the offence charged, but before a verdict of guilty was entered. This is consistent with the accused's right, under our criminal justice system, to force the Crown to discharge its full burden of proof on the elements of actus reus and mens rea before raising other matters. However, this does not mean that the accused can raise insanity only after both actus reus and mens rea have been proven. While the Crown would be limited to raising evidence of insanity only after the trier of fact was satisfied that the full burden of proof on actus reus and mens rea had been discharged or after the accused's own defence has somehow put his or her mental capacity for criminal intent in issue, the accused would have the option of raising evidence of insanity at any time during the trial. Evidence of mental impairment will, in certain cases, tend to negate the element of mens rea. If during the course of the trial an accused raises evidence of mental impairment which (in the view of the trial judge) tends to put his or her mental capacity in issue, the Crown will be entitled to lead evidence of insanity and the trial judge will be entitled to charge the jury on the insanity defence within the meaning of s. 16. However, if such evidence of mental impairment is, in the view of the trier of fact, insufficient to meet the requirements of s. 16, the accused is still entitled to have such evidence considered with respect to the essential element of mens rea. This accords with the current practice wherein an accused has been able to deny the element of planning and deliberation or the specific intent required for murder despite the fact that s. 16 has not been satisfied. This new common law rule would give an accused the option of waiting until the Crown has discharged its full burden of proof to raise the issue of insanity, without removing the existing right of an accused to raise evidence of his or her mental condition during the course of the trial.
Since a common law rule which attains the original objectives but does not limit s. 7 can be fashioned, the existing rule cannot be said to infringe rights "as little as possible". It was therefore unnecessary to consider the third part of the proportionality test in Oakes.
The new common law rule replacing the one just struck must be considered in relation to all relevant aspects of the Charter and the only relevant provision of the Charter directly applicable to it was s. 15 . (Section 9 was not applicable to the issue of the Crown's raising evidence of insanity.)
The Court must first determine whether the claimant has shown that one of the four basic equality rights has been denied (i.e., equality before the law, equality under the law, equal protection of the law and equal benefit of the law). This inquiry will focus largely on whether the law has drawn a distinction (intentionally or otherwise) between the claimant and others, based on personal characteristics. Next, the Court must determine whether the denial can be said to result in "discrimination". This second inquiry will focus largely on whether the differential treatment has the effect of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to opportunities, benefits and advantages available to others. Further, the Court must consider whether the personal characteristic in question falls within the grounds enumerated in the section or within an analogous ground, so as to ensure that the claim fits within the overall purpose of remedying or preventing discrimination against groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society.
One aspect of the new common law rule draws a distinction between individuals based on the personal characteristic of insanity. If the Crown believes that an accused was insane at the time of the offence, that accused will not be convicted and will instead be subject to a trial on the issue of insanity (with the Crown's being able to lead its evidence of insanity over and above the accused's wishes). This aspect of the new common law rule does not impose the burden or disadvantage of interfering with the conduct of an accused's defence. Rather, it distinguishes between accuseds in that certain accuseds are not convicted and sentenced but, rather, are subject to a hearing on the issue of insanity in order to determine whether they too should be convicted or whether they should instead be subject to the Lieutenant Governor's Warrant system. Any further differences in treatment (i.e., between insanity acquittees and other acquittees) flow from the Code provisions which set out that system, not from the new common law rule.
A rule which allows the Crown to move an individual from the category of those who will surely be convicted and sentenced to those who may be acquitted, albeit on the grounds of insanity, cannot be said to impose a burden or a disadvantage on that individual. While one aspect of the new common law rule gives rise to differential treatment under the law based on a personal characteristic, it does not result in "discrimination". Accordingly, the new common law rule does not infringe s. 15(1) of the Charter . Given that the parties did not submit argument regarding the application of s. 15(1) to the new common law rule, these reasons do not preclude a future s. 15(1) challenge to the new rule.
2.Is s. 542(2) of the Criminal Code of Canada intra vires the Parliament of Canada?
The insanity provisions fall within the preventative branch of the s. 91(27) criminal law power. They only relate to insane persons whose actions are proscribed by the Criminal Code and the system of Lieutenant Governor warrants protects society in that it prevents further dangerous criminal conduct. The protection of society is one of the aims of the criminal law.
The fact that the criminal committal provisions are not designed to punish the individual acquittee does not incontrovertibly lead to the conclusion that the object of the legislation is treatment and is outside the scope of Parliament's criminal law power. Treatment is not prescribed by the impugned provisions. Rather, treatment is the means to achieving the end of these provisions which is the protection of society.
"Treatment", narrowly defined, is a provincial responsibility. Parliament, however, does not lose its legislative competence by responding to criminal conduct in a manner more sensitive to rehabilitation. Parliament's sensitivity to individual rights also expands its competence to legislate with respect to procedures for review of the Lieutenant Governor's warrants. Although the protection of society rationale may not fully authorize such provisions, Parliament may balance individual rights against the interests of protecting society and provide for some system of review. As the individual becomes less of a threat to society, the criminal law progressively loses authority and the coercive aspects of the warrant are loosened until a point is reached at which the individual is free from any supervision provided under the Criminal Code .
3.Does the Automatic Detention of a Person Found not Guilty by Reason of Insanity Required by s. 542(2) of the Criminal Code Violate the Canadian Charter of Rights and Freedoms ?
The automatic detention required under s. 542(2) deprives the appellant of his right to liberty. The procedural fairness required by the principles of fundamental justice cannot be simply "read in" to this legislation.
When legislation confers a precise discretion that limits a right or freedom under the Charter , the legislation is found to constitute an infringement and the court must proceed to s. 1 .
Section 542(2) does not confer an imprecise discretion on the trial judge. Instead, it requires that the trial judge always act in a manner which would infringe the s. 7 rights of an insanity acquittee. The order of "strict custody" is automatically made immediately following the trial and before any hearing on the issue of current mental state. This is not a situation in which this Court can simply "read in" procedural safeguards to make the legislation accord with constitutional requirements.
The procedural requirements of s. 7 of the Charter are not met by ss. 545 and 547 . Assuming, without deciding, that those subsequent provisions themselves accord with the principles of fundamental justice, any subsequent hearings or review cannot change the fact that the initial remand is ordered by the trial judge under s. 542(2) without any opportunity for a hearing.
The constitutional requirements are not met by the procedural fairness afforded during the trial itself. Procedural safeguards which an accused may have enjoyed during the trial cannot offer any protection in a post‑acquittal committal process.
Section 9 is illustrative of s. 7 , and since the central point of the substantive s. 7 arguments in this case was that the detention was arbitrary, a discussion of s. 9 was sufficient.
The substantive defects in the legislation restrict the appellant's right not to be arbitrarily detained under s. 9 of the Charter . The duty of the trial judge to detain is unqualified by any standards whatsoever.
Although criteria for the operation of s. 542(2) can be found in the statutory scheme and the jurisprudence, the mandatory detention order, even if applied only to persons meeting these criteria, is still arbitrary in the way that it operates with respect to them. Not all of these individuals will be dangerous. Section 542(2) , because it requires a trial judge to automatically order strict custody based on no criteria or standards and before any kind of hearing can be conducted on the issue of present mental condition, infringes the appellant's rights under ss. 7 and 9 of the Charter .
The objective of s. 542(2) ‑‑ the protection of the public and the prevention of crime through the detention of those insanity acquittees who are dangerous because still insane, pending the decision of the Lieutenant Governor ‑‑ was "pressing and substantial".
The lack of a hearing in s. 542(2) deprives the appellant of his s. 7 right to liberty in a way that is not in accordance with the principles of fundamental justice. His s. 9 right not to be detained arbitrarily is restricted because there are no criteria for the exercise of the trial judge's power to detain.
The assumption that persons found not guilty by reason of insanity pose a threat to society may well be rational but is not always valid. Not everyone acquitted by reason of insanity has a personal history of violent conduct and such conduct and previous mental disorder does not necessarily indicate a greater possibility of future dangerous conduct. The connection between the objective and means is nevertheless rational. By ordering the detention of all insane acquittees pending the decision of the Lieutenant Governor, Parliament is ensuring that society will be protected from the ones who are dangerous.
Whatever the actual length of time between court judgment and the issuance of a Lieutenant Governor's Warrant, s. 542(2) does not meet the minimal impairment component of the proportionality test and should be struck. The indeterminate nature of the strict custody order under s. 542(2) infringes on the right to liberty (in a manner that is not in accordance with the principles of fundamental justice) to an unacceptable degree.
A gap in time between the acquittal by reason of insanity and the decision whether to release or detain under a Lieutenant Governor's Warrant will necessarily occur given that the determination of present mental condition and dangerousness must be made prior to release and given the nature of the issues to be determined. Automatic detention following an acquittal by reason of insanity is to some extent, then, a codification of practical reality. If individuals acquitted by reason of insanity are immediately ordered into custody, they cannot pose a threat to society in the short term. Further, if observation of the individual on an inpatient basis results in more accurate predictions of recurring mental illness, crime is prevented and society protected in the future.
Insanity acquittees, however, should be detained no longer than necessary to determine whether they are currently dangerous due to their insanity. Because s. 542(2) provides for indeterminate detention, the minimal impairment component of the Oakes test is not met and the s. 7 restriction cannot be justified.
The order of the trial judge would be no less arbitrary if it was only in effect for a limited period of time. The effect on an individual of a period of automatic and arbitrary detention without consideration of any criteria may not be disproportionate to the importance of achieving the objective. However, the fact that the means chosen by Parliament in s. 542(2) is a period of indeterminate detention tips the balance and renders the effect of the limitation disproportionate to the objective. Therefore, s. 542(2) cannot satisfy the Oakes test and therefore cannot be justified with respect to s. 9 of the Charter either.
A period of temporary validity will extend for a period of six months because of the serious consequences of striking s. 542(2). During this period, detention ordered under s. 542(2) will be limited to 30 days in most instances, or to a maximum of 60 days where the Crown establishes that a longer period is required in the particular circumstances of the case. Courts may choose to limit their orders under s. 542(2) to between 30 and 60 days. If they do not, the writ of habeas corpus will be available to the individual acquittee at the expiration of 30 days.
Per La Forest and Gonthier JJ.: The reasons of Lamer C.J. were substantially agreed with. Conformity of the existing common law rule to the Charter need not be assessed under the Oakes test particularly as neither of the two principles of freedom of the accused in the conduct of his defence and of sanity as an essential element to criminal responsibility was preeminent. Both are to be implemented to the greatest possible extent. The requirement of sanity, which is stated in mandatory terms in s. 16 of the Criminal Code , pertains to the integrity of the justice system itself. It must therefore enter into the determination of a breach of fundamental justice. While an accused in exercising his right to conduct his defence as he sees fit may choose not to invoke this principle, it remains incumbent upon the justice system to ensure that it is respected. It is not open to the accused to deny it effect.
To rely on the exercise of prosecutorial discretion to ensure respect for the principle that sanity is essential to criminal responsibility entails substituting such discretion to adjudication and is a denial of judicial process. The trial process itself must allow for the recognition and implementation of the principle.
The other reasons and conclusions of Lamer C.J. were agreed with, including those dealing with the present common law rule and the new common law rule.
Per Wilson J.: Section 542(2) of the Criminal Code , while a valid exercise of the federal criminal law power, infringes an accused's rights under both s. 7 and s. 9 of the Charter and is not saved by s. 1 . The reasons of Lamer C.J. were agreed with subject to the reservation that discretionary powers conferred by statute should not be interpreted so as to comply with the Charter on the basis of a presumption of constitutionality.
It was unnecessary to deal with ss. 9 and 15 of the Charter since the common law rule infringes the accused's s. 7 right to liberty in that it deprives the accused of control over his own defences contrary to the principles of fundamental justice. To permit the Crown to tender evidence of insanity against the wishes of the accused is to countenance too great an interference with the fundamental right of an accused to advance whichever defences he considers to be in his best interests and to waive those which he considers are not. It could completely distort the trial process because of the impact it can have on other defences raised by the accused, on the jury's assessment of his credibility, and on the traditional role played by defence counsel in an adversary system.
While it is a basic tenet of our criminal justice system that insane persons not be convicted of criminal offences, to permit the prosecution to introduce evidence of insanity in the course of the trial does not always promote this principle or promote it in a way which is in accord with the principles of fundamental justice. It may totally defeat the defence strategy and deprive the accused of the chance of an outright acquittal. The accused may well face consequences more harmful to him than a conviction. Society's interest in ensuring that persons who are not criminally responsible are not convicted cannot override the right of an accused to control his own defences and to forego the defence of insanity if this is in his interests. If an accused freely and with full knowledge of the alternatives and consequences waives the insanity defence, then the court cannot independently impose the defence.
The goal that insane persons not be convicted of criminal offences is sufficiently important to warrant overriding a constitutionally guaranteed right and allowing the Crown to raise the issue of insanity during the trial is a rational means of furthering this objective. There are, however, alternative means of ensuring that the insane not be convicted which do not impinge as severely upon an accused's s. 7 rights. The present common law rule cannot constitute a reasonable limit because of the dramatic impact it has on defence strategy and the role of defence counsel.
There is no room for judicial deference in dealing with the common law: the task of making "difficult choices" falls squarely on the Court.
The state here was acting as the "singular antagonist" seeking to limit the accused's s. 7 interests. If a limit on a s. 7 right has been achieved through a violation of the principles of fundamental justice, the enquiry comes to an end and there is no need to consider the application of s. 1 .
If the Court, in applying the minimal impairment branch of Oakes, attempts to fashion a new common law rule, the new rule must itself meet all the tests of constitutionality. It must also comply with the Criminal Code . Section 16(1) of the Code mandates an inquiry into the sanity of the accused at some point prior to the entry of a conviction. Permitting the Crown to raise insanity during the course of the trial, even if that permission is conditional, still infringes upon the accused's right to control his defences. Nor can it satisfy the minimal impairment branch of the Oakes test because, although it is a less intrusive means of accomplishing the government's objective, it is not the least intrusive means of doing so.
Conferring on the prosecution a conditional right to raise the issue of insanity during the course of the trial infringes upon the equality rights of the mentally disabled under s. 15 of the Charter . It denies the mentally disabled, a group in our society which has been negatively stereotyped and historically disadvantaged, the control over their defences reposed in other accused persons and does so in a way which is discriminatory. In denying the mentally disabled personal autonomy in decision‑making it reinforces the stereotype that they are incapable of rational thought and the ability to look after their own interests. The prosecution's conditional right will only pass constitutional muster if it can be shown that there exists no alternative that achieves the same objective without limiting the accused's s. 7 or s. 15 rights or at least limiting them to a significantly lesser degree.
The issue of the accused's insanity should be raised at the conclusion of the trial in cases where the defences put forward by the accused have been rejected and the essential elements of the offence have been established by the prosecution beyond a reasonable doubt. At that point either party should be free to raise the issue of the accused's insanity. This approach respects the accused's right to waive the defence of insanity and ensures that any resultant prejudice he suffers in the finding of guilt flows from his own decision not to avail himself of the defence and not as a consequence of the prosecution's having raised the issue in the middle of the trial process.
Restricting the Crown's right to introduce the issue of insanity only after an accused has been found guilty may well result in some accuseds who are in fact insane being acquitted of criminal charges and thereby escaping incarceration under the Criminal Code entirely. The incarceration of those persons in institutes for the criminally insane is neither mandated by the principles of fundamental justice nor by the Criminal Code . The potential risk of the criminally insane eluding the reach of the criminal law remains a matter for Parliament if it views the provincial civil commitment procedures as inadequate for the proper protection of the public.
A transitional period is required in order to deal with the consequences of a finding by this Court that s. 542(2) is of no force and effect.
Per L'Heureux‑Dubé J. (dissenting): The common law rule allowing the Crown to raise evidence of insanity independently is a principle of fundamental justice consonant with and reflective of the values substantively embodied in s. 7 "principles of fundamental justice". Section 542(2) of the Criminal Code is intra vires, and, viewed within its legislative and operative context, is also fully consistent with Charter guarantees.
The common law rule was crafted with precision: it operates within strict parameters. The two distinct principles of fundamental justice ‑‑ that of an accused's right to fully control his or her defence and the fundamental rule that insane persons not responsible for their conduct should not be convicted for otherwise criminal behaviour ‑‑ find appropriate expression in the balance achieved through the proper application of the common law rule. These two principles are properly labelled "fundamental", in the language of s. 7 , and are not violated by the common law rule at issue here. The principle that an individual should not be convicted absent fault is, in this case, not properly dealt with under s. 1 . As the common law rule reflects an appropriate balance between the two principles, both of these principles will be addressed within s. 7 .
A narrow approach is not warranted and should be avoided in a discussion of the principles of fundamental justice; these principles and their alleged violations should be viewed within the broader context of the legal system within which these principles have been found to repose. The principles of fundamental justice do not spring up independently of one another but evolve gradually in a mutually nourishing process. Any analysis requiring an examination of these principles must respect this integrity.
The two fundamental principles of justice combine to fashion a larger principle, one informed in appropriate measure by concerns underlying the principles that nourish it. When viewed within the broad context in which it operates, the common law rule, and its application in any given case, is consonant with the principles of fundamental justice.
The Crown's ability to raise evidence of insanity over and above the wishes of the accused will occur only in circumstances where the guilt of the accused is in no serious doubt, the evidence of insanity is overwhelming, the offence is of a serious nature and the accused represents a continuing threat to society due to his or her present dangerousness. In no small way does this rule avert to the right of an accused to control his or her defence as its potential application is strictly and severely limited. In light of the Charter , future courts will tread cautiously, endeavouring to apply the rule in the strict manner in which it was intended, and thus, apply it in a fashion consistent with the principles of fundamental justice.
The legislative scheme in issue here is consistent with the guarantees set out in ss. 7 and 9 of the Charter . It does not offend the principles of fundamental justice and, furthermore, s. 542(2) is not arbitrary within the meaning of s. 9 of the Charter . While the section presumes, in effect, that all those found not guilty by reason of insanity should be detained as they may still be dangerous and/or in need of treatment, this presumption is one of common, practical sense and one that Parliament is constitutionally empowered to act upon. While the impugned section confers the power to detain acquittees who may not be presently dangerous or in need of treatm