R v Swain

[1991] 1 RCS
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Swain was arrested and charged with assault and aggravated assault. Due to his bizarre conduct during the incident and at the time of his arrest, Swain was transferred from jail to a mental health centre before trial. His condition improved with medication, and he was conditionally released into the community before trial. Swain continued to take medication and see a psychiatrist over the course of this period.

At trial, the Crown sought to adduce evidence of Swain’s insanity at the time of the offence, despite Swain’s objections. This was permissible under a common law rule, and Swain was found not guilty by reason of insanity against his wishes. Under section 542(2) of the Criminal Code, an insanity acquitee is automatically subject to detainment.

Swain appealed this decision and argued that the common law rule violated his constitutional rights under ss 7, 9, and 15 of the Canadian Charter of Rights and Freedom. Swain also argued that s 542(2) of the Criminal Code violated ss 7 and 9 of the Charter.

The central issues were whether (a) the common law rule permitting the Crown to adduce evidence of an accused’s insanity above and beyond the accused’s wishes and (b) s 542(2) of the Criminal Code were unconstitutional.

 

The Court found that the common law rule and s 542(2) of the Criminal Code violated s 7 of the Charter and neither could be saved by s 1.

The Court found that the common law rule permitting the Crown to adduce evidence of the accused’s insanity over and above the accused’s interests violated section 7 of the Charter. The liberty interest of section 7 was engaged. It is a principle of fundamental justice that an accused person has the right to control their own defence. The decision to raise evidence of insanity is part and parcel of the conduct of an accused’s defence. The Crown’s ability to raise evidence of insanity over and above the accused’s wishes therefore interferes with the accused’s control over their defence.

The Court found that the common law rule could not be justified under section 1 of the Charter. The rule had the valid dual objectives of (1) avoiding the unfair treatment of the accused while avoiding the conviction of an insane accused and (2) protecting the public from dangerous persons in need of hospitalization. However, a rule could be created that would not interfere with an accused’s right to control their defence while still achieving these objectives.

The Court found that the automatic detention required by s 542(2) violated section 7. The section requires that a trial judge always act in a manner that interferes with an insanity acquittee’s liberty rights, regardless of the acquittee’s current mental state. As a result, the procedural requirements of section 7 were not met.

An accused person has control over the decision of whether to have counsel, whether to testify on his or her own behalf, and what witnesses to call. This is a reflection of our society’s traditional respect for individual autonomy within an adversarial system. In R v Chaulk…I indicated that the insanity defence is best characterized as an exemption to criminal liability which is based on an incapacity for criminal intent. In my view, 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.” (p 972) 

The common law rule is aimed not only at avoiding the unfair treatment of the accused but also at maintaining the integrity of the criminal justice system itself. The accused is not the only person who has an interest in the outcome of the trial; society itself has an interest in ensuring that the system does not incorrectly label insane people as criminals. The second objective was aptly characterized by the appellant as the protection of the public from presently dangerous persons requiring hospitalization.” (p 981)

The dual objectives discussed above 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.” (p 986)

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