R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 SCR 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 treatment, it does not do so arbitrarily. It operates in a restricted fashion and applies only to insane acquittees charged with an indictable offence. Moreover, the trial judge has a discretion as to the place and the manner of the initial detention. In determining whether or not a provision operates arbitrarily, one must look at the operation of the provision in its entire context.

In attempting to address the unique position of the insane acquittee, Parliament has set up a comprehensive system of assessment and review. Mere literal reference to the text of the Criminal Code goes only a short distance towards an understanding of its working and its practical complexity. While Parliament has not devised the best scheme, it has in the context of the issues raised here, made constitutionally permissable choices. In any evaluation of complex legislative schemes the judiciary has an obligation to respect the integrity of the scheme and to measure it against constitutional guarantees with this integrity in mind. In the absence of some constitutional imperative, this Court cannot act as a "super‑legislature" and tinker with a legitimate legislative scheme. In light of the complex structure provided by Parliament, any redrafting of the legislation is properly left to reform and legislative bodies.

Cases Cited

By Lamer C.J.

Applied: R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; considered: Andrews v. Law Society of British Columbia, 1989 2 (SCC), [1989] 1 S.C.R. 143; R. v. Turpin, 1989 98 (SCC), [1989] 1 S.C.R. 1296; Schneider v. The Queen, 1982 26 (SCC), [1982] 2 S.C.R. 112; overturned: R. v. Simpson (1977), 1977 1142 (ON CA), 35 C.C.C. (2d) 337; R. v. Saxell (1980), 1980 1623 (ON CA), 59 C.C.C. (2d) 176; distinguished: Fowler v. The Queen, 1980 201 (SCC), [1980] 2 S.C.R. 213; referred to: Kjeldsen v. The Queen, 1981 218 (SCC), [1981] 2 S.C.R. 617; Singh v. Minister of Employment and Immigration, 1985 65 (SCC), [1985] 1 S.C.R. 177; R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30, reversing (1985), 1985 116 (ON CA), 22 C.C.C. (3d) 353; RWDSU v. Dolphin Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573; R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613; Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486; R. v. Chaulk, 1990 34 (SCC), [1990], 3 S.C.R. 1303; Faretta v. California, 422 U.S. 806 (1975); Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342; R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151; Phillips v. Ford Motor Co. of Canada Ltd. (1971), 1971 389 (ON CA), 18 D.L.R. (3d) 641; R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199; R. v. Edwards Books and Art Ltd., 1986 12 (SCC), [1986] 2 S.C.R. 713; Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927; Reference re: ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 105 (SCC), [1990] 1 S.C.R. 1123; McKinney v. University of Guelph, 1990 60 (SCC), [1990] 3 S.C.R. 229; Canadian Federation of Agriculture v. Attorney-General for Quebec, 1950 342 (UK JCPC), [1951] A.C. 179; Reference re Validity of Section 5(a) of the Dairy Industry Act, 1948 2 (SCC), [1949] S.C.R. 1; Goodyear Tire and Rubber Company of Canada Limited v. The Queen, 1956 4 (SCC), [1956] S.C.R. 303; R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309; Attorney General of Canada v. Pattison (1981), 1981 ABCA 98, 59 C.C.C. (2d) 138; MacDonald v. Vapour Canada Ltd., 1976 181 (SCC), [1977] 2 S.C.R. 134; Re Rebic and The Queen (1986), 1986 1052 (BC CA), 28 C.C.C. (3d) 154; Lingley v. New Brunswick Board of Review (1973), 1973 2214 (FC), 13 C.C.C. (2d) 303; Attorney General of British Columbia v. Smith, 1967 65 (SCC), [1967] S.C.R. 702; Slaight Communications Inc. v. Davidson, 1989 92 (SCC), [1989] 1 S.C.R. 1038; Jones v. United States, 463 U.S. 354 (1983); Re Manitoba Language Rights, 1985 33 (SCC), [1985] 1 S.C.R. 721; R. v. Brydges, 1990 123 (SCC), [1990] 1 S.C.R. 190.

By Gonthier J.

Referred to: R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103.

By Wilson J.

Overturned: R. v. Simpson (1977), 1977 1142 (ON CA), 35 C.C.C. (2d) 337; R. v. Saxell (1980), 1980 1623 (ON CA), 59 C.C.C. (2d) 176; referred to: Manitoba (Attorney General) v. Metropolitan Stores Ltd., 1987 79 (SCC), [1987] 1 S.C.R. 110; Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145; R. v. Turpin, 1989 98 (SCC), [1989] 1 S.C.R. 1296; Whalem v. United States, 346 F.2d 812 (1965); Frendak v. United States, 408 A.2d 364 (1979); R. v. Edwards Books and Art Ltd., 1986 12 (SCC), [1986] 2 S.C.R. 713; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927; Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 135 (SCC), [1990] 1 S.C.R. 425.

By L'Heureux‑Dubé J. (dissenting)

Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486; R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670; R. v. Simpson (1977), 1977 1142 (ON CA), 35 C.C.C. (2d) 337; R. v. Saxell (1980), 1980 1623 (ON CA), 59 C.C.C. (2d) 176; R. v. Beare; R. v. Higgins, 1988 126 (SCC), [1988] 2 S.C.R. 387; R. v. Potvin, 1989 130 (SCC), [1989] 1 S.C.R. 525; Singh v. Minister of Employment and Immigration, 1985 65 (SCC), [1985] 1 S.C.R. 177; R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309; Re Abel and Advisory Review Board (1980), 1980 1824 (ON CA), 56 C.C.C. (2d) 153; Re McCann and The Queen (1982), 1982 426 (BC CA), 67 C.C.C. (2d) 180; Re Egglestone and Mousseau and Advisory Review Board (1983), 1983 1621 (ON SC), 42 O.R. (2d) 268; Jollimore v. Nova Scotia (A.G.) (1986), 1986 7143 (NS SC), 75 N.S.R. (2d) 191; Attorney General of Ontario v. Grady (1988), 34 C.R.R. 289; R. v. Hufsky, 1988 72 (SCC), [1988] 1 S.C.R. 621; R. v. Luxton, 1990 83 (SCC), [1990] 2 S.C.R. 711.

Statutes and Regulations Cited

Canada Evidence Act, R.S.C. 1970, c. E-10, s. 12.

Canadian Bill of Rights, R.S.C. 1970, App. III.

Canadian Charter of Rights and Freedoms, ss. 1, 7, 9, 11(d), 12, 15(1), (2), 24(1), 32.

Constitution Act, 1867, ss. 91(12), (27), 92(7), (13), (16).

Constitution Act, 1982, s. 52(1).

Criminal Code R.S.C. 1970, c. C‑34, ss. 16, 101, 245, 245.2(2), 465, 542(1), (2), 543, 544, 545, 546, 547, 608.2, 643, 669, 691.

Fisheries Act, R.S.C. 1970, c. F‑14, s. 33(3).

Heroin Treatment Act, S.B.C. 1978, c. 24.

Juvenile Delinquents Act, R.S.C. 1952, c. 160.

Mental Health Act, R.S.O. 1980, c. 262, s. 32, Form 1.

Rules of the Supreme Court of Canada, SOR/83-74, r. 32(1), (4).

Authors Cited

Butler, Brian T. "How Are Assessments Conducted?" in C. D. Webster, R. J. Menzies, M. A. Jackson, et al., Clinical Assessment and the Mentally Disordered Offender. Working Paper in Forensic Psychiatry, No. 27. Toronto: Metropolitan Toronto Forensic Service (Metfors), Clarke Institute of Psychiatry.

Canadian Data Base: Patients Held on Lieutenant-Governor's Warrants, (1988).

Cohn, David S. "Offensive Use of the Insanity Defense: Imposing the Insanity Defense Over the Defendant's Objection" (1988), 15 Hastings Const. L.Q. 295.

Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.

Laskin, Bora. Laskin's Canadian Constitutional Law, vol 2, 5th ed. By Neil Finkelstein. Toronto: Carswells, 1986.

Singer, Anne C. "The Imposition of the Insanity Defense on an Unwilling Defendant" (1980), 41 Ohio St. L.J. 637.

Stuart, Don. Canadian Criminal Law: A Treatise, 2nd ed. Toronto: Carswells, 1987.

Weiler, Paul. "Two Models of Judicial Decision-Making" (1968), 46 Can. Bar Rev. 406.

APPEAL from a judgment of the Ontario Court of Appeal (1986), 1986 2532 (ON CA), 53 O.R. (2d) 609, 24 C.C.C. (3d) 385, 50 C.R. (3d) 97, 13 O.A.C. 161, dismissing an appeal from an acquittal by reason of insanity. Appeal allowed, L'Heureux‑Dubé J. dissenting. 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.

Clayton Ruby, Marlys Edwardh and Michael Code, for the appellant.

Eric Siebenmorgen, for the respondent.

I. G. Whitehall, Q.C. and B. Glendinning, for the intervener the Attorney General of Canada.

Paul J. French, for the intervener the Lieutenant Governor's Board of Review of Ontario.

Gwen Brodsky and Yvonne Peters, for the interveners the Canadian Disability Rights Council, the Canadian Mental Health Association and the Canadian Association of Community Living.

//Lamer C.J.//

The judgment of Lamer C.J. and Sopinka and Cory JJ. was delivered by

Lamer C.J. -- This case raises a number of issues regarding the operation of the insanity defence and the manner in which insanity acquittees are dealt with under our criminal law. This Court has been asked to consider whether the provisions of the Criminal Code, R.S.C. 1970, c. C-34, which set out the legislative scheme relating to insanity acquittees are within Parliament's criminal law power and whether these provisions are inconsistent with the Canadian Charter of Rights and Freedoms. This Court has also been asked to consider whether the common law rule which allows the Crown, in certain circumstances, to raise evidence of insanity over and above an accused's wishes is inconsistent with the Charter.

The Facts

The Facts

In October of 1983, Owen Swain was arrested and charged with assault and aggravated assault, contrary to ss. 245 and 245.2(2) of the Criminal Code (now R.S.C., 1985, c. C-46, ss. 266 and 268). These charges arose from an incident in which the appellant, Mr. Swain, attacked his wife and two infant children in a bizarre manner. Fortunately, Mrs. Swain and the children sustained only superficial physical injuries. At trial, the appellant's wife testified that during the incident Swain appeared to be fighting with the air and talking about spirits. At the time of his arrest, the appellant was very excited and spoke in a "dialect" about religious themes. Mr. Swain testified at trial that, during the incident, he felt his family was being attacked by devils and that he had to protect them by carrying out certain acts.

On November 1, 1983, the appellant was transferred from the Toronto Jail to the Penetanguishene Mental Health Centre pursuant to a Form 1 application under the Mental Health Act, R.S.O. 1980, c. 262. While at the Centre, Swain behaved in a bizarre and regressive manner. Two anti-psychotic drugs were prescribed and administered to him and his condition improved rapidly. By December 19, 1983, the appellant was released into the community (on the condition that he would continue to see a psychiatrist) on the recommendation of Dr. Fleming, the Director of the forensic unit at the Penetanguishene Mental Health Centre. Mr. Swain returned briefly to jail and was granted bail on conditions shortly thereafter. The appellant remained on bail until June 10, 1985, and continued to take medication and to see a psychiatrist.

On May 3, 1985, Mr. Swain's trial took place in the District Court of Ontario before O'Connell Dist. Ct. J. At trial, the Crown sought to adduce evidence with respect to insanity at the time of the offence, to which the appellant objected. After conducting a voir dire, the trial judge ruled that the Crown could adduce such evidence. At the conclusion of the trial, Mr. Swain was found not guilty by reason of insanity on all counts. Defence counsel then moved to have s. 542(2) of the 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 Charter. O'Connell Dist. Ct. J. reserved judgment and on June 10, 1985, held that Mr. Swain's constitutional rights were not infringed by s. 542(2) and ordered that the appellant be kept in strict custody at the Queen Street Mental Health Centre in Toronto until the Lieutenant Governor's pleasure was known. Mr. Swain filed a notice of appeal in the Ontario Court of Appeal and applied for bail pending appeal. Martin J.A., in Chambers, adjourned this application in order to permit an early hearing of the appellant's case by the Advisory Review Board (the body which may be appointed to advise the Lieutenant Governor concerning the detention of insanity acquittees). On June 12, 1985, 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, although it would appear that some attempts were made to notify the appellant's counsel. Accordingly, neither the appellant nor his counsel made submissions with respect to this decision.

Pursuant to the above-mentioned warrant, Mr. Swain was sent for psychiatric examination and assessment to the Clarke Institute of Psychiatry, where he remained a patient in the forensic unit until July 12, 1985. The Advisory Review Board held a review hearing on July 26, 1985, pursuant to the provisions of s. 547 of the Code (now s. 619). The appellant and his counsel were present at this hearing. On August 6, 1985, the Advisory Review Board recommended to the Lieutenant Governor that Mr. Swain should remain in safe custody at the Queen Street Mental Health Centre. Shortly thereafter, the Lieutenant Governor issued a warrant for the further detention of Mr. Swain. The Lieutenant Governor accepted the recommendations of the Board which provided, inter alia, that the administrator of the Queen Street Mental Health Centre have the discretion to permit the appellant to re-enter the community with conditions as to supervision and follow-up treatment.

On two occasions (July 30, 1985 and August 20, 1985), the appellant's counsel wrote to the Lieutenant Governor requesting 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 the further detention of Mr. Swain had issued that the recommendation of the Advisory Review Board was released to the appellant's counsel.

The appeal to the Ontario Court of Appeal was heard in early September, 1985. A majority of the Court of Appeal (per Thorson J.A.) dismissed the appeal, Brooke J.A. dissenting. The appellant sought leave to appeal to this Court, which application was granted on March 26, 1987. At the time that the application for leave to appeal was filed, the appellant was in safe custody. However, on September 4, 1986, the Lieutenant Governor of Ontario ordered that his warrant detaining the appellant be vacated and that the appellant be discharged absolutely.

The Legislative Scheme

The Legislative Scheme

Criminal Code, R.S.C. 1970, c. C-34:

16. (1) No person shall be convicted of an offence in respect of an act or omission on his part while he was insane.

(2) For the purposes of this section a person is insane when the person is in a state of natural imbecility or has disease of the mind to an extent that renders him incapable of appreciating the nature and quality of an act or omission or of knowing that an act or omission is wrong.

(3) A person who has specific delusions, but is in other respects sane, shall not be acquitted on the ground of insanity unless the delusions caused him to believe in the existence of a state of things that, if it existed, would have justified or excused his act or omission.

(4) Every one shall, until the contrary is proved, be presumed to be and to have been sane.

542. (1) Where, upon the trial of an accused who is charged with an indictable offence, evidence is given that the accused was insane at the time the offence was committed and the accused is acquitted,

(a) the jury, or

(b) the judge or magistrate, where there is no jury,

shall find whether the accused was insane at the time the offence was committed and shall declare whether he is acquitted on account of insanity.

(2) Where the accused is found to have been insane at the time the offence was committed, the court, judge or magistrate before whom the trial is held shall order that he be kept in strict custody in the place and in the manner that the court, judge or magistrate directs, until the pleasure of the lieutenant governor of the province is known. [Emphasis added.]

545. (1) Where an accused who is, pursuant to this Part, found to be insane, the lieutenant governor of the province in which he is detained may make an order

(a) for the safe custody of the accused in a place and manner directed by him, or

(b) if in his opinion it would be in the best interest of the accused and not contrary to the interest of the public, for the discharge of the accused either absolutely or subject to such conditions as he prescribes.

(2) An accused to whom paragraph (1)(a) applies may, by warrant signed by an officer authorized for that purpose by the lieutenant governor of the province in which he is detained, be transferred for the purposes of his rehabilitation to any other place in Canada specified in the warrant with the consent of the person in charge of such place.

(3) A warrant mentioned in subsection (2) is sufficient authority for any person who has custody of the accused to deliver the accused to the person in charge of the place specified in the warrant and for such last mentioned person to detain the accused in the manner specified in the order mentioned in subsection (1).

547. (1) The lieutenant governor of a province may appoint a board to review the case of every person in custody in a place in that province by virtue of an order made pursuant to section 545 or subsection 546(1) or (2).

(2) The board referred to in subsection (1) shall consist of not less than three and not more than five members of whom one member shall be designated chairman by the members of the board, if no chairman has been designated by the lieutenant governor.

(3) At least two members of the board shall be duly qualified psychiatrists entitled to engage in the practice of medicine under the laws of the province for which the board is appointed, and at least one member of the board shall be a member of the bar of the province.

(4) Three members of the board of review, at least one of whom is a psychiatrist described in subsection (3) and one of whom is a member of the bar of the province, constitute a quorum of the board.

(5) The board shall review the case of every person referred to in subsection (1)

(a) not later than six months after the making of the order referred to in that subsection relating to that person, and

(b) at least once in every twelve month period following the review required pursuant to paragraph (a) so long as the person remains in custody under the order,

and forthwith after each review the board shall report to the lieutenant governor setting out fully the results of such review and stating

(d) where the person in custody was found not guilty on account of insanity, whether, in the opinion of the board, that person has recovered and, if so, whether in its opinion it is in the interest of the public and of that person for the lieutenant governor to order that he be discharged absolutely or subject to such conditions as the lieutenant governor may prescribe,

(f) any recommendations that it considers desirable in the interests of recovery of the person to whom such review relates and that are not contrary to the public interest.

(6) In addition to any review required to be made under subsection (5), the board shall review any case referred to in subsection (1) when requested to do so by the lieutenant governor and shall forthwith after such review report to the lieutenant governor in accordance with subsection (5).

(7) For the purposes of a review under this section, the chairman of a board has all the powers that are conferred by sections 4 and 5 of the Inquiries Act on commissioners appointed under Part I of that Act.

Canadian Charter of Rights and Freedoms

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

2. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

3. Everyone has the right not to be arbitrarily detained or imprisoned.

4. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

5. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Constitution Act, 1982

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

Lower Court Judgments

Lower Court Judgments

District Court of Ontario (O'Connell Dist. Ct. J.)

District Court of Ontario

The appellant was tried by O'Connell Dist. Ct. J. in the District Court of Ontario. During the trial the Crown sought to adduce evidence of insanity. Mr. Swain objected to the issue of insanity being raised and a voir dire was held to determine the admissibility of the evidence. O'Connell Dist. Ct. J. referred to both R. v. Simpson (1977), 1977 1142 (ON CA), 35 C.C.C. (2d) 337, and R. v. Saxell (1980), 1980 1623 (ON CA), 59 C.C.C. (2d) 176, and stated:

...in dealing with the first issue, I must be satisfied that there was what I would indicate the cases refer to as convincing evidence that these offences are of a serious nature and that the evidence that has been adduced satisfies the seriousness of the nature of the offences.

O'Connell Dist. Ct. J. was satisfied that the alleged offences were of a serious nature and that "this is not a trivial matter in any sense of the word". He went on to state that he was satisfied that Mr. Swain suffered from "legal insanity". In concluding that the Crown was entitled to lead evidence of insanity over and above the appellant's wishes, O'Connell Dist. Ct. J. stated that there was convincing evidence that there was conduct which may have endangered the lives of the children and that Mr. Swain was a danger to the public at the time of the alleged incident.

After hearing the Crown's evidence with respect to insanity, O'Connell Dist. Ct. J. discussed the essential elements of the offence of aggravated assault and concluded that this offence had been sufficiently proven. He stated that "[a]s to Mrs. Swain, there is no issue as to the act of common assault".

The trial judge then turned to the issue of insanity and held that Mr. Swain did have a disease of the mind which rendered him incapable of appreciating the nature and quality of the acts on the night in question. Consequently, he found the appellant not guilty by reason of insanity on each of the counts.

Counsel for Mr. Swain then made a motion pursuant to the Charter that s. 542(2) was inconsistent with the provisions of the Charter and should be "read down" so as to allow the Court to inquire into whether Mr. Swain required a custodial setting rather than simply making an order for safe custody. The trial judge took this matter under consideration and gave reasons on June 10, 1985.

O'Connell Dist. Ct. J. held that Mr. Swain's constitutional rights were not infringed by s. 542(2) and ordered that the appellant be kept in strict custody at the Queen Street Mental Health Centre in Toronto until the pleasure of the Lieutenant Governor was known. The trial judge considered ss. 7, 9, 12 and 15 of the Charter and found that none of these constitutional guarantees was infringed by s. 542(2). O'Connell Dist. Ct. J. placed considerable emphasis on the holding in Saxell to the effect that the s. 542(2) was not contrary to the Canadian Bill of Rights, R.S.C. 1970, App. III. He went on to state:

If there is any deprivation in fairness by reason of the actions of the Lieutenant Governor or of the review board, remedies exist at law, in my view, by way of application for the protection of his rights and freedoms under the Charter and in particular under sections 7, 9, 12 and 15 because the sections of the Code, in my view, as submitted by the Crown are a system or scheme flowing from the section of the Code which allows for exceptional cases such as the one we have before us, that is, for complete assessment, observation, consultation and possible speedy releast [sic] into the community. S. 542(2) must be read in conjunction with ss. 545 and 547. The section must deal with insane persons so found and the treatment of such persons considered by law to be ill and considered not to be serving a sentence, that is, not being punished.

O'Connell Dist. Ct. J. then stated that if the section were unconstitutional under the aforementioned provisions of the Charter, it would be saved under s. 1 of the Charter.

Ontario Court of Appeal (per Thorson J.A.; Brooke J.A. dissenting) (1986), 1986 2532 (ON CA), 24 C.C.C. (3d) 385

Ontario Court of Appeal

Mr. Swain appealed the judgment of the trial judge on the grounds that the trial judge erred in permitting the Crown to adduce evidence of insanity over the defence's objections, in finding the appellant not guilty by reason of insanity, and in finding that s. 542(2) of the Code did not violate the Charter (either in general or in this particular case). Furthermore, Mr. Swain appealed on the grounds that s. 542(2) was not a valid exercise of the criminal law power under s. 91(27) of the Constitution Act, 1867.

The majority first dealt with the issue of the Crown's independently raising evidence of insanity. Thorson J.A. noted that a trial judge has a discretion as to whether or not to permit the Crown to introduce evidence of insanity and cited extensively from the Ontario Court of Appeal judgment in Saxell. The majority was of the view that the circumstances of the case at bar strongly suggested that the appellant was insane at the time of the offences. Thorson J.A. also stated that the trial judge had not erred in finding a strong prima facie case of aggravated assault. The majority saw no reason to disagree with the finding of the trial judge that the offences in question were of a serious nature. The majority concluded at p. 401:

To forbid the Crown to adduce psychiatric evidence, and thereby risk convicting a man who lacked the capacity to appreciate the nature and quality of his acts, would not accord with the interests of justice.

The majority went on to consider whether the trial judge had erred in finding Mr. Swain not guilty by reason of insanity and held that the appellant had been properly acquitted on the basis of insanity. Thorson J.A. stated that this Court's judgment in Kjeldsen v. The Queen, 1981 218 (SCC), [1981] 2 S.C.R. 617, established that one who understands the physical character of an act but lacks the normal emotional response (as with a psychopath) still appreciates the nature and quality of the act. However, this did not mean that whenever a person knows the physical characteristics of an act he or she therefore appreciates the nature and quality of the act within the meaning of s. 16(2).

The majority then considered the Charter issues with respect to s. 542(2). Thorson J.A. stated that the impugned provision should not be viewed in isolation, but rather should be considered in light of the entire Criminal Code scheme dealing with insanity acquittees (hereinafter referred to as the "L.G.W. system"). The majority noted that the procedural safeguards contained in s. 32 of the Mental Health Act applied to the detention reviews conducted by the Advisory Review Board.

With respect to s. 7 of the Charter, the majority held (citing Singh v. Minister of Employment and Immigration, 1985 65 (SCC), [1985] 1 S.C.R. 177) that the scheme itself could not be challenged under s. 7 if procedural fairness (an aspect of fundamental justice) is not excluded by it and can be read into the scheme. The majority was of the view that procedural fairness was not excluded by the Criminal Code scheme and could be read into it. Thorson J.A., at p. 410, cited a statement in Saxell, supra, to the effect that permissive language was used in the Code provisions relating to the authority of the Lieutenant Governor to make a custody or discharge order because:

It would be unseemly for Parliament to use imperative language when conferring power on a representative of the Sovereign.... [Emphasis deleted.]

The majority went on to note that it was not disputed that procedural fairness was accorded to Mr. Swain in the case at bar. If an individual felt that he or she had not been accorded procedural due process, the majority was of the view that he or she could seek the remedy of certiorari or could seek a remedy under s. 24(1) of the Charter.

With respect to s. 9 of the Charter, the majority held that the automatic detention provided for in s. 542(2) does not amount to arbitrary detention. Thorson J.A. stated, at pp. 415-16:

In my opinion, the deten­tion authorized by s. 542(2) is not arbitrary. Some period of time is required before an assessment can be made by the authorities of the acquittee's dangerousness and his therapeutic needs. No such assessment is made at his trial. . . .

Further, the finding of not guilty by reason of insanity raises what I accept to be a reasonable concern that the accused may remain a danger to the public and in need of further treatment. Under the statute, it is only after such a finding has been made that the State acquires the right to deprive him for the time being of his liberty in order that these matters may be properly assessed, under conditions that ensure the protection of the public.

With respect to s. 12 of the Charter, the majority held that s. 542(2) did not authorize indeterminate confinement because, in its view, the Lieutenant Governor was required to act "forthwith" to terminate a s. 542(2) order and substitute his or her own order for custody or discharge.

With respect to s. 15, the majority stated, at p. 422:

As was held by this Court in Re McDonald and The Queen, s. 15(1) of the Charter requires that those who are similarly situated be treated similarly. [Citations omitted.]

In the view of the majority, an insane acquittee and a person who has been acquitted simpliciter are not similarly situated, nor are an insane acquittee and a mentally disordered civil committee similarly situated. Furthermore the fact that the L.G.W. system may be administered differently in different provinces did not mean that s. 542(2) violated s. 15. Referring to the Ontario Court of Appeal decision in R. v. Morgentaler (1985), 1985 116 (ON CA), 22 C.C.C. (3d) 353, Thorson J.A. stated at p. 424:

By the same token, s. 542(2) does not violate s. 15, since the subsection, of itself, does not discriminate. The alleged uneven administration of the system into which the insane acquittee is placed by virtue of s. 542(2) is not a matter to be redressed by this Court on an appeal challenging the constitutionality of the subsection.

The majority noted that, if s. 542(2) did violate any of the relevant sections of the Charter, the provision was a reasonable limit which could be justified under s. 1.

In determining whether s. 542(2) was intra vires Parliament's criminal law power, the majority noted that one must consider the purpose and object of the impugned legislation. Thorson J.A. stated, at p. 429:

The initial detention pursuant to s. 542(2) is to give the authorities the opportunity to assess the mental condition of the accused and decide on appropriate medical treatment. The detention is also based on the notion of protecting the public from someone who has committed an act which would have been a criminal act, had he not been insane when the act was committed. As in Pattison, the legislation in the case at bar has the twofold purpose of preventing crime and protecting the public, and is therefore, in my opinion, a valid exercise of the criminal law power under s. 91(27).

Brooke J.A. dissented from the judgment of the majority. In his view, at p. 434, following the Code's scheme for insanity acquittees in the case at bar was "tantamount to using the criminal process to obtain a certification which could not be obtained through the civil process because the individual's condition would not justify it".

Brooke J.A. stated that he would have found s. 542(2) inoperative with respect to Mr. Swain and would have made an order discharging the appellant on the condition that he continue with treatment. He stated at p. 436:

In my respectful view, the learned trial judge erred in refusing the motion which was brought pursuant to s. 24 of the Charter.... He should have held that s. 542(2) offended the appellant's rights guaranteed by s. 7 of the Charter. To sentence the appellant to be held in strict custody until the Lieutenant Governor's pleasure was known, was to deny him his liberty in a way that did not accord with the principles of fundamental justice.

Brooke J.A. noted that the Lieutenant Governor does not hear evidence and hears no submissions from the person whose liberty is at stake. Furthermore the decision-making process takes place after the fact of incarceration. Brooke J.A. concluded from this that an insanity acquittee does not receive a fair, public hearing before losing his or her liberty.

Issues

Issues

The following constitutional questions were stated by former Dickson C.J. on September 25, 1987:

1.Is s. 542(2) of the Criminal Code of Canada intra vires the Parliament of Canada?

2.Do the common law criteria, enunciated by the Ontario Court of Appeal, permitting the Crown to adduce evidence of an accused's insanity, violate ss. 7, 9, and 15 of the Canadian Charter of Rights and Freedoms?

3.If the answer to question 2 is affirmative, are the common law criteria, enunciated by the Ontario Court of Appeal, permitting the Crown to adduce evidence of an accused's insanity, justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?

4.Does the statutory power to detain a person found not guilty by reason of insanity, pursuant to s. 542(2) of the Criminal Code of Canada violate ss. 7 and 9 of the Canadian Charter of Rights and Freedoms?

5.If the answer to question 4 is affirmative, is the statutory power to detain a person found not guilty by reason of insanity, pursuant to s. 542(2) of the Criminal Code of Canada, justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?

Analysis

Analysis

Given that there are two separate constitutional challenges to s. 542(2), I will deal with constitutional questions 1, 4 and 5 following my analysis of questions 2 and 3.

1.Does it Violate the Charter for the Crown to Raise Evidence of Insanity Over and Above the Wishes of the Accused?

1. Does it Violate the Charter for the Crown to Raise Evidence of Insanity Over and Above the Wishes of the Accused?

The appellant argues that the common law rule for permitting the Crown to adduce evidence of insanity over and above the accused's wishes, which was enunciated by the Ontario Court of Appeal in R. v. Simpson, supra, and R. v. Saxell, supra, violates s. 7 of the Charter. The interveners, the Canadian Disability Rights Council et al. (hereinafter "C.D.R.C."), support the appellant in challenging the constitutionality of the common law rule under s. 15 of the Charter.

It should be noted that this Court has indicated, in RWDSU v. Dolphin Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573, at pp. 592-93, that in cases where the Charter is generally applicable to the litigation in question (within the meaning of s. 32), the Charter applies to common law rules as well as to statutes and regulations. Furthermore, in R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613, at p. 645, Le Dain J. (dissenting, although not on this point) made the following statement with respect to s. 1 of the Charter:

The limit will be prescribed by law within the meaning of s. 1 if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from its operating requirements. The limit may also result from the application of a common law rule. [Emphasis added.]

Therefore, if a common law rule is inconsistent with the provisions of the Constitution, it is, to the extent of the inconsistency, of no force or effect (s. 52(1)). Having said that, I will begin by considering the appellant's argument under s. 7.

Section 7

For ease of reference, I have reproduced the text of s. 7 below:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

In order to invoke the protection of s. 7, an individual must establish an actual or potential deprivation of life, liberty or security of the person. Once a life, liberty, or security of the person interest is established, the question becomes whether the deprivation of liberty or security of the person is or is not in accordance with the principles of fundamental justice.

In my view, the liberty interest of Mr. Swain is readily apparent in the case at bar. The common law rule allows the Crown, in certain circumstances, to raise evidence of the accused's insanity over and above the wishes of the accused. If the Crown is successful in establishing that the accused is insane, within the meaning of s. 16 of the Code, the accused will be subject to the legislative scheme, contained in ss. 542-547 of the Code, which provides for warrants of the Lieutenant Governor of the province. This means that the accused will be detained in strict custody until the pleasure of the Lieutenant Governor of the province is known. Depending on the order of the Lieutenant Governor, the accused may continue to be detained indefinitely, subject to periodic reviews (where a board of review has been appointed). The details of the L.G.W. system will be discussed in greater length below. I have given this brief overview simply to illustrate that when the Crown raises the issue of insanity, the liberty of the accused is clearly imperilled. That being so, it is necessary to address the issue of whether the deprivation of liberty is in accordance with the principles of fundamental justice.

In Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486, it was stated (at pp. 503 and 513):

...the principles of fundamental justice are to be found in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system.

Whether any given principle may be said to be a principle of fundamental justice within the meaning of s. 7 will rest upon an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in our legal system, as it evolves.

It is therefore necessary to consider whether it is inconsistent with the basic tenets of our legal system for the Crown to be able to adduce evidence of insanity over and above the wishes of the accused.

The appellant argues that it is a principle of fundamental justice that an accused person be able to participate in a meaningful way in his or her defence and to make fundamental decisions about the conduct of his or her defence -- such as waiving the defence of insanity. (I pause here to note that I will use the term "defence" in the broad sense of "any answer which defeats a criminal charge"; see my reasons for judgment in R. v. Chaulk, 1990 34 (SCC), [1990] 3 S.C.R. 1303, at p. 1318.) It is argued that the functioning of the adversarial system is premised on the autonomy of an accused to make fundamental decisions about his or her defence which require certain consequences and risks to be weighed. The appellant's argument is reflected in the words of Stewart J. in Faretta v. California, 422 U.S. 806 (Calif. C.A., 1975), at p. 834:

The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of "that respect for the individual which is the lifeblood of the law".

This Court has, on numerous occasions, acknowledged that the basic principles underlying our legal system are built on respect for the autonomy and intrinsic value of all individuals. In Re B.C. Motor Vehicle Act, supra, at p. 503, I referred to the principles of fundamental justice as:

...essential elements of a system for the administration of justice which is founded upon a belief in "the dignity and worth of the human person" (preamble to the Canadian Bill of Rights, R.S.C. 1970, App. III) and on "the rule of law" (preamble to the Canadian Charter of Rights and Freedoms).

Similarly, in R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30, Wilson J. stated, at p. 171:

In my opinion, the respect for individual decision-making in matters of fundamental personal importance reflected in the American jurisprudence also informs the Canadian Charter. Indeed, as the Chief Justice pointed out in R. v. Big M Drug Mart Ltd., beliefs about human worth and dignity "are the sine qua non of the political tradition underlying the Charter".

This Court has also recognized the constructs of the adversarial system as a fundamental part of our legal system. In Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342, Sopinka J., in analyzing the doctrine of mootness, stated, at pp. 358-59:

The first rationale for the policy and practice referred to above is that a court's competence to resolve legal disputes is rooted in the adversary system. The requirement of an adversarial context is a fundamental tenet of our legal system and helps guarantee that issues are well and fully argued by parties who have a stake in the outcome.

Similarly, in R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, at p. 195, Sopinka J. referred to "our accusatorial and adversarial system of criminal justice". The Ontario Court of Appeal has also acknowledged the adversarial process as an integral part of our system of justice. In Phillips v. Ford Motor Co. of Canada Ltd. (1971), 1971 389 (ON CA), 18 D.L.R. (3d) 641, Evans J.A. stated, at p. 661:

A trial is not intended to be a scientific exploration with the presiding Judge assuming the role of a research director; it is a forum established for the purpose of providing justice for the litigants.

Professor Weiler, in "Two Models of Judicial Decision-Making" (1968), 46 Can. Bar Rev. 406, at p. 412, has characterized the adversarial process as follows:

An adversary process is one which satisfies, more or less, this factual description: as a prelude to the dispute being solved, the interested parties have the opportunity of adducing evidence (or proof) and making arguments to a disinterested and impartial arbiter who decides the case on the basis of this evidence and these arguments. This is by contrast with the public processes of decision by "legitimated power" and "mediation-agreement", where the guaranteed private modes of participation are voting and negotiation respectively. Adjudication is distinctive because it guarantees to each of the parties who are affected the right to prepare for themselves the representations on the basis of which their dispute is to be resolved.

Given that 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 human beings, it seems clear to me that the principles of fundamental justice must also require that an accused person have the right to control his or her own defence. The appellant has properly pointed out that 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 (see Criminal Code, s. 543, now s. 615). Thus, an accused who has not been found unfit to stand trial must be considered capable of conducting his or her own defence.

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, supra, 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.

The question remains, does the ability of the Crown to raise evidence of insanity over and above the accused's wishes interfere 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. In my view, this in itself is sufficient to answer the question posed above. However, the appellant has argued that an accused's control over his or her defence is threatened in a more immediate sense when the Crown is able to raise independently the issue of insanity. The appellant contends that the Crown's ability to raise insanity permits the prosecution to place an accused in a position where inconsistent defences must be advanced, discredits and undermines the accused's credibility so that other defences are prejudiced, and has a tendency to leave the jury with the impression that the accused is, because of mental illness, the "type of person" who would have committed the offence.

It is not difficult to see that the Crown's ability to raise independently the issue of insanity could very well interfere with other defences being advanced by the accused. For example, an accused who wishes to defend on the basis of alibi could very well be thwarted in this approach by the Crown's raising the inconsistent defence of insanity. It is also apparent that the Crown's ability to raise insanity could undermine an accused's credibility with the jury and could give rise to the inference that the accused is someone who would likely commit a crime. The mentally ill have historically been the subjects of abuse, neglect and discrimination in our society. The stigma of mental illness can be very damaging. The intervener, C.D.R.C., describes the historical treatment of the mentally ill as follows:

For centuries, persons with a mental disability have been systematically isolated, segregated from the mainstream of society, devalued, ridiculed, and excluded from participation in ordinary social and political processes.

The above description is, in my view, unfortunately accurate and appears to stem from an irrational fear of the mentally ill in our society. While I have a very high regard for the intelligence and good faith of Canadian juries, it is nonetheless apparent that an accused's credibility could be irreversibly damaged by the Crown's raising evidence of insanity.

The Crown has argued that the right of an accused to control the conduct of his or her defence is adequately safeguarded by the exercise of judicial discretion which was contemplated in both Simpson and Saxell, supra. In Saxell, the Ontario Court of Appeal held that the Crown may adduce evidence of insanity only with leave of the trial judge, who may first require that a voir dire be held. The court indicated that the exercise of discretion should be based on the following factors, at pp. 188-89:

The overriding consideration is that the interest of justice demands that the accused should not be convicted of the offence charged. There must be convincing evidence that the accused has committed the act alleged. Manifestly, it would be wrong if evidence of insanity were to influence the jury's decision on that issue, either by affecting his credibility in case he testified, or by leading to the conclusion that the accused was the sort of person likely to have committed the act.

The evidence of insanity at the time of commission of the act must be sufficiently substantial, and create such a grave question whether the accused had the capacity to commit the offence, that the interests of justice require it to be adduced.

Although not expressly so stated in the reasons for judgment in R. v. Simpson, supra, I consider that in exercising his discretion whether to permit the Crown to adduce evidence of the insanity of the accused, the Judge ought to have regard to the nature and seriousness of the offence alleged to have been committed and the extent to which the accused may be a danger to the public.

I agree that it would be "manifestly" wrong if evidence of insanity were to influence the jury's decision on the issue of whether the accused committed the alleged act, but, with respect, I fail to see how the discretion of the trial judge to refuse to allow the Crown to raise insanity unless there is "convincing evidence" that the accused committed the alleged act will prevent this from happening. In my opinion, while the Ontario Court of Appeal has recognized the prejudicial effect of allowing the Crown to raise evidence of insanity, it has not formulated a mechanism which adequately safeguards the right of the accused to control his or her defence.

In my view, the ability of the Crown to raise evidence of insanity over and above the accused's wishes, under the existing common law rule, does interfere with the accused's control over the conduct of his or her defence. However, this is not to say that if an accused chooses to raise evidence which tends to put his or her mental capacity for criminal intent into question but falls short of raising the defence of insanity (within s. 16), the Crown will be unable to raise its own evidence of insanity. 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. 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 Crown's ability to raise evidence of insanity in these circumstances is necessary because, otherwise, the jury could well be left with an incomplete picture of the accused's mental capacity. If an accused were able to raise some evidence of mental incapacity (short of an insanity defence) and, at the same time, able to preclude the Crown from raising any evidence of insanity that it may have in its possession, the possibility would arise that the accused could be acquitted by a jury which was deprived of the "full story" surrounding the accused's mental incapacity. Such a result is clearly undesirable. Furthermore, the Crown's ability to raise evidence of insanity only after an accused has put his or her mental capacity for criminal intent in issue does not raise the problem, discussed above, of the Crown's being able to place an accused in a position where inconsistent defences must be advanced.

Thus, although it is a principle of fundamental justice that an accused has the right to control his or her own defence, this is not an "absolute" right. If an accused chooses to conduct his or her defence in such a way that that accused's mental capacity for criminal intent is somehow put into question, then the Crown will be entitled to "complete the picture" by raising its own evidence of insanity and the trial judge will be entitled to charge the jury on s. 16.

The common law rule which was enunciated in R. v. Simpson, supra and R. v. Saxell, supra, does not limit the Crown to raising insanity only in circumstances where an accused's own defence puts his or her mental capacity for criminal intent into issue. Thus, the existing common law rule which allows the Crown to raise evidence of insanity over and above the wishes of the accused does violate a principle of fundamental justice.

The Crown has indicated, however, that the Crown's ability to raise independently evidence of insanity conforms with a second principle of fundamental justice; namely, that a person who was insane at the time of the offence (and was therefore incapable of having criminal intent) ought not to be convicted under the criminal law. In other words, it is argued that the Crown must have the ability to raise evidence of insanity when the accused chooses not to do so, because it would violate the principles of fundamental justice for the accused to be convicted of a criminal offence when there is a real question about the accused's criminal culpability (and, therefore, about the accused's guilt).

I agree that it is a principle of fundamental justice that the criminal justice system not convict a person who was insane at the time of the offence. To the extent that it is a principle protected by the Charter, it is one of the individual rights included in s. 7. However, this principle of fundamental justice is not triggered by the accused's claim to his s. 7 rights under the Charter in this case. Here, the accused has proved that his liberty was denied in a manner which does not accord with the principle of fundamental justice that an accused must have control over the conduct of his or her defence. In my view, this concludes the matter. As I indicated in R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1247-48, with respect to s. 11(b), the legal rights set out therein were enacted for the benefit of individuals. In this case, the accused chose not to invoke the principle of fundamental justice that the criminal justice system not convict a person who was insane at the time of the offence. Therefore, in this case, this principle cannot be a part of the s. 7 analysis.

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. In other words, it is my view that any balancing of societal interests against the individual right guaranteed by s. 7 should take place within the confines of s. 1 of the Charter. Accordingly, while I agree that it is a basic tenet of our legal system that a person who was insane at the time of the offence ought not to be convicted, I prefer to deal with this concern, in this case, under s. 1 of the Charter.

Thus, it is my view that the common law rule which allows the Crown to raise evidence of insanity over and above the accused's wishes is a denial of liberty which is not in accordance with the principles of fundamental justice. Accordingly, the common law rule limits an accused's rights under s. 7 of the Charter.

Given that I have found a limitation of an accused's rights under s. 7, it will be unnecessary to consider whether the common law rule which allows the Crown to raise evidence of insanity over and above the accused's wishes also restricts the rights enunciated in ss. 9 and 15 of the Charter, unless the limitation on s. 7 can be upheld under s. 1. It is my view that s. 9 has no application to this issue and I note that the parties directed no argument to this section despite its inclusion in the constitutional question.

Before turning to s. 1, however, I wish to point out that because this appeal involves a Charter challenge to a common law, judge-made rule, the Charter analysis involves somewhat different considerations than would apply to a challenge to a legislative provision. For example, having found that the existing common law rule limits an accused's rights under s. 7 of the Charter, it may not be strictly necessary to go on to consider the application of s. 1. Having come to the conclusion that the common law rule enunciated by the Ontario Court of Appeal limits an accused's right to liberty in a manner which does not accord with the principles of fundamental justice, it could, in my view, 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 a new common law rule could be enunciated which would not interfere with an accused person's right to have control over the conduct of his or her defence, I can see no conceptual problem with the Court's simply enunciating such a rule to take the place of the old rule, without considering whether the old rule could nonetheless be upheld under s. 1 of the Charter. Given that the common law rule was fashioned by judges and not by Parliament or a legislature, judicial deference to elected bodies is not an issue. 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. As was noted at the outset of this analysis, this Court has stated that a limit "prescribed by law" within the meaning of s. 1 may arise from the application of a common law rule as well as from a statute or regulation. Thus, I do not wish to be taken as having held that s. 1 can never have application when a common law rule is challenged under the Charter.

In a sense, this stage of the analysis is similar to that which would arise if the challenge to the common law rule had not been brought under the Charter. Had the parties chosen to approach this issue from the standpoint that the common law rule was simply contrary to basic principles of criminal law, the Court would have been in the position of considering whether the rule could be reformulated so as to remove any inconsistency with basic criminal law principles (principles of fundamental justice), while still obtaining the original objectives. In other words, it is not strictly necessary to invoke s. 52(1) of the Constitution Act, 1982 in order to challenge a common law, judge-made rule on the basis of the rights and values guaranteed by the Charter -- if a common law rule can be reformulated so as to attain its objectives while removing any inconsistency with basic principles, a judge is entitled to undertake such a reformulation and is not obliged to seek jurisdiction for this action under s. 52(1).

However, this appeal does involve a s. 52(1) challenge to the existing common law rule and, in my view, there are good reasons to go on to consider the application of s. 1 in this case, within the guidelines enunciated in R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103. The Oakes test provides a familiar structure through which the objectives of the common law rule can be kept in focus and alternative means of attaining these objectives can be considered. Furthermore, the constitutional questions were stated with s. 1 in mind. While this is not, in and of itself, determinative, the Court has had the benefit of considered argument under s. 1 both from the immediate parties and from a number of interveners. In my view, it would be both appropriate and helpful for the Court to take advantage of these submissions in considering the objective of the existing rule and in considering whether an alternative common law rule could be fashioned which would be less intrusive to the conduct of an accused's defence. Finally, earlier in these reasons I stated that any consideration of societal interests in not convicting a person who was insane at the time of the offence ought to be left to the s. 1 analysis and ought not to be brought into the s. 7 analysis of the principles of fundamental justice. Having said this, I feel compelled to address these interests under s. 1 of the Charter.

For the reasons given above, I will now consider whether the existing common law rule can be upheld as a reasonable limit under s. 1 of the Charter.

Section 1

Like the other rights and freedoms set out in the Charter, s. 7 is subject to limitations under s. 1 of the Charter. The procedure to be followed when the state is attempting to justify a limit on a right or freedom under s. 1 was set out by this Court in R. v. Oakes, supra:

1. The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right or freedom; it must relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

2. Assuming that a sufficiently important objective has been established, the means chosen to achieve the objective must pass a proportionality test; that is to say they must:

(a) be "rationally connected" to the objective and not be arbitrary, unfair or based on irrational considerations;

(b) impair the right or freedom in question as "little as possible"; and

(c) be such that their effects on the limitation of rights and freedoms are proportional to the objective.

(i) Objective

Given that this appeal involves a common law, judge-made rule, the task of the Court under this part of the Oakes test is not to construe the objective of Parliament or of a legislature, but rather to construe the overall objective of the common law rule which has been enunciated by the courts.

In my view, the objective of the common law rule which allows the Crown, in some cases, to raise evidence of insanity over and above the accused's wishes is twofold. One of the objectives was identified by Martin J.A. in Simpson, supra, at p. 362:

...to avoid the conviction of an accused who may not be responsible on account of insanity, but who refuses to adduce cogent evidence that he was insane.

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. This objective arises from the fact that the Crown's option to simply discontinue the prosecution of an accused, whom it suspects was insane at the time of the offence, does not address the concern that such a person may well be presently dangerous and may therefore bring him or herself into contact with the criminal justice system once again.

In my view, the dual objectives outlined above relate to pressing and substantial concerns in our society and are of sufficient importance to warrant overriding a constitutionally protected right or freedom. Accordingly, I turn now to consider whether the common law rule passes the proportionality test set out in Oakes.

(ii) Proportionality Test

1. Rational Connection

The question to be addressed at this stage of the Oakes analysis is whether there is a rational connection between the objectives, which were identified above under the first branch of the test, and the means which have been chosen to attain these objectives -- namely the common law rule allowing the Crown to raise independently evidence of insanity in certain circumstances.

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. While this method of achieving the first objective may raise certain problems and may not be the preferred method of achieving the objective, it is nonetheless a logical means of achieving the desired objective.

Similarly, allowing the Crown to raise insanity in cases where the accused has chosen not to do so is one way of protecting the public from people who may be presently dangerous. If the Crown is able to prove insanity, the accused will be subject to detainment and review under the L.G.W. system. While this method may again raise certain problems, it is nonetheless a logical means of achieving the second objective.

Thus, in my view, there is a rational connection between the objectives and the means chosen to attain the objectives, and the common law rule therefore passes the first part of the proportionality test in Oakes.

2. As Little as Possible

The question under this part of the proportionality test is whether the impugned law (in this case, the common law rule and criteria enunciated by the Ontario Court of Appeal) violates Charter rights as little as possible in order to achieve the "pressing and substantial" objective. In other words while the means chosen may be rationally connected to the objective, they may, at the same time, be unnecessarily intrusive on constitutional rights in light of alternative means. This Court has stated on a number of occasions that the absolutely least intrusive means need not be chosen in order for a law to pass the "as little as possible" test (see: R. v. Edwards Books and Art Ltd., 1986 12 (SCC), [1986] 2 S.C.R. 713; Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927; and Reference re: ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 105 (SCC), [1990] 1 S.C.R. 1123). However, as I have indicated above, it is my view that the Oakes analysis requires somewhat different considerations when, as here, a judge-made rule is being challenged under the Charter.

In cases where legislative provisions have been challenged under s. 52(1) of the Constitution Act, 1982 this Court has been cognizant of the fact that such provisions are enacted by an elected body which must respond to the competing interests of different groups in society and which must always consider the polycentric aspects of any given course of action. For this reason, this Court has indicated that Parliament 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. However, as was indicated above, in cases where a common law, judge-made rule is challenged under the Charter, there is no room for judicial deference.

In my view, the existing common law rule which allows the Crown, in certain circumstances, to raise evidence of insanity over and above the accused's wishes and which thereby interferes with the principle of fundamental justice that an accused must have control over the conduct of his or her defence, must be subjected to a rigorous examination under s. 1. In other words, the least intrusive common law rule which will attain the objectives without disproportionately affecting rights must be adopted by the Court.

As stated above, I agree that it is a basic tenet of our legal system that the criminal law ought not to convict a person who was insane at the time of the offence. However, I do not agree that this principle and the corresponding objective require that the Crown have the ability to raise evidence of insanity over and above the accused's wishes and thereby to interfere with the conduct of his or her defence. If the Crown is of the view that the accused was insane at the time of the offence, it need not prosecute the accused. The Crown can always exercise the option of dropping the charge or of entering a stay of proceedings. Such action on the part of the Crown would be consistent both with the accused's right to control his or her own defence and with the principle that a person who was insane at the time of the offence ought not to be convicted under the criminal law.

However, the second pressing and substantial objective of protecting the public from a person who may well be presently dangerous would not be met by the Crown's dropping charges. Thus, while a rule requiring the Crown to drop charges or enter a stay of proceedings in cases where the Crown is of the view that the accused was insane at the time of the offence would be less intrusive than the existing common law rule, such an alternative rule would fall short of attaining the dual objectives identified above. Both objectives could be met, in some cases, via civil commitment procedures. The provincial Mental Health Acts do provide an alternative course of action to the Crown when the Crown is in possession of evidence which suggests that the accused may well be dangerously mentally ill but does not wish to pursue the conviction of the accused because he or she may well have been insane at the time of the offence. Moreover, as the appellant has argued,

The provisions of the various provincial Mental Health Acts provide a plethora of substantive and procedural protection for mentally ill persons that are lacking under the indefinite detention regime of the Criminal Code which allows the Crown to achieve indeterminate confinement without proof beyond a reasonable doubt. [Emphasis added.]

I do not wish to be taken, however, as having ruled on the constitutionality of the various provincial Mental Health Acts. I simply wish to make the point that these provincial statutes generally provide more procedural protection than does the system of Lieutenant Governor warrants and, in that sense, they provide an alternative to the Crown when it believes that an accused was insane at the time of the offence and may be presently insane and dangerous. Whether any particular provincial statute dealing with civil commitment is consistent with the provisions of the Charter will have to be decided when the facts of the case raise the issue and the matter is fully argued before the Court. In any event, I have raised the possibility of the Crown having recourse to the provincial civil commitment procedures merely to point out that, no matter what the state of the common law rule, the Crown need never be in the position of having to choose between prosecuting an accused who it believes was insane at the time of the offence, and allowing someone it believes to be presently dangerous and insane to remain at large.

I do not wish to suggest, however, that it would be appropriate to fashion a new common law rule requiring the Crown to commence civil commitment proceedings whenever it believes that an accused may well have been insane at the time of the offence and is presently dangerously insane. In my view, it would be unacceptable for this Court to fashion a common law rule which makes the outcome of a criminal matter dependant upon the existence and validity of legislation presumably falling within a provincial head of power.

In light of the above reasoning, it is necessary to consider whether a new common law rule can be fashioned which does not limit constitutionally protected rights and freedoms; in my view it is possible to do so.

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. 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, within the meaning of s. 16, at the time of the offence a conviction would then be entered.

Such a rule would safeguard an accused's right to control his or her defence and would achieve both the objective of avoiding the conviction of a person who was insane at the time of the offence and the objective 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 chooses not to do so earlier, raise the issue of insanity after the trier of fact has 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. As I have indicated in R. v. Chaulk, supra, evidence of mental impairment will, in certain cases, tend to negate the element of mens rea. As I have stated earlier, and I think it useful to reiterate here, 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.

In my view, the new common law rule achieves the dual objectives enunciated above without limiting an accused's rights under s. 7 of the Charter. Under the new common law rule, there will only be two instances in which the Crown will be entitled to lead evidence of insanity. First, the Crown may raise evidence of insanity after the trier of fact has concluded that the accused is otherwise guilty of the offence charged. In these circumstances the Crown's ability to raise evidence of insanity cannot interfere with the conduct of the accused's defence because the Crown's ability to do so will not be triggered until after the accused has concluded his or her defence. Second, the Crown may raise evidence of insanity if the accused's own defence has (in the view of the trial judge) put the accused's capacity for criminal intent in issue. In these circumstances the Crown's ability to raise evidence of insanity is not inconsistent with the accused's right to control the conduct of his or her defence because the very issue has been raised by the accused's conduct of his or her defence. Furthermore, as was stated above, the Crown's ability to raise evidence of insanity only after an accused has put his or her mental capacity for criminal intent in issue does not raise the problem of the Crown's being able to place an accused in a position where inconsistent defences must be advanced.

In light of the reasons given above, it can be seen that it is indeed possible to fashion a new common law rule which does not limit s. 7 of the Charter. Surely, if it is possible to fashion a common law rule which attains the original objectives but does not limit s. 7, it follows that the existing rule cannot be said to infringe rights "as little as possible". Thus, it is clear to me that the existing common law rule enunciated in R. v. Simpson, supra, and R. v. Saxell, supra, which allows the Crown to raise independently evidence of insanity, does not limit an accused's s. 7 rights as little as possible. It is therefore unnecessary to consider the third part of the proportionality test in Oakes. The existing common law rule does not meet the proportionality test enunciated in Oakes and cannot be upheld as a reasonable limit which is demonstrably justified in a free and democratic society.

Given the findings reached above, it is my view that the common law rule enunciated in Simpson, supra and Saxell, supra, is inconsistent with the provisions of the Constitution and, pursuant to s. 52(1), is of no force or effect. It is, therefore, unnecessary to consider whether this rule also limits s. 15 of the Charter.

However, given that a new common law rule has been constructed to take the place of the rule which has just been struck down, I believe it is appropriate to consider whether the new rule would offend s. 15 of the Charter. The old common law rule was challenged under s. 15, but having found that the old rule violated s. 7 of the Charter, could not be upheld as a reasonable limit under s. 1 and was therefore of no force or effect pursuant to s. 52(1), it was unnecessary to consider whether the old rule also violated s. 15 of the Charter. The same cannot be said of the new common law rule. As was mentioned above, when the constitutionality of a judge-made rule is in issue, the Charter analysis differs from that which is applied to a legislative provision. It is not enough to say that the newly formulated common law rule is less intrusive than the previous rule or even to say that the new common law rule does not limit s. 7 of the Charter. If this Court is to enunciate a new common law rule to take the place of the old rule, it is obliged to consider the status of that new rule in relation to all relevant aspects of the Charter. In my view, the only other provision of the Charter which is directly applicable to the new common law rule is s. 15. As was stated earlier, I do not think that s. 9 is applicable to the issue of the Crown raising evidence of insanity. Accordingly, I will now consider whether the new common law rule limits s. 15 of the Charter.

Section 15

For ease of reference, I have reproduced the text of s. 15(1) below:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

In Andrews v. Law Society of British Columbia, 1989 2 (SCC), [1989] 1 S.C.R. 143, this Court considered the meaning and content of the s. 15(1) guarantee in considerable detail. Justice McIntyre (writing for the majority on s. 15(1), but dissenting as to the application of s. 1) noted that equality was a "comparative concept" and stated, at p. 164:

It must be recognized at once, however, that every difference in treatment between individuals under the law will not necessarily result in inequality and, as well, that identical treatment may frequently produce serious inequality.

McIntyre J. went on to reject the prevailing "similarly situated test" as "seriously deficient" and stated, at p. 168:

Consideration must be given to the content of the law, to its purpose, and its impact upon those to whom it applies, and also upon those whom it excludes from its application. The issues which will arise from case to case are such that it would be wrong to attempt to confine these considerations within such a fixed and limited formula.

McIntyre J. noted that the right to equality before and under the law, and the rights to the equal protection and benefit of the law were granted with the direction, contained in s. 15 itself, that they be "without discrimination". He went on to describe "discrimination" as follows, at p. 174:

I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.

This description of "discrimination" was affirmed by this Court in McKinney v. University of Guelph, 1990 60 (SCC), [1990] 3 S.C.R. 229.

In R. v. Turpin, 1989 98 (SCC), [1989] 1 S.C.R. 1296, this Court reiterated and expanded on the approach to s. 15(1) described by McIntyre J. in Andrews, supra. Justice Wilson (writing for the Court) stated, at p. 1331:

The internal qualification in s. 15 that the differential treatment be "without discrimination" is determinative of whether or not there has been a violation of the section. It is only when one of the four equality rights has been denied with discrimination that the values protected by s. 15 are threatened and the court's legitimate role as the protector of such values comes into play.

Wilson J. went on to state that in determining whether the requirement of discrimination is present in a particular case, it is important to look not only at the impugned legislation which has created a distinction, but also to the "larger social, political and legal context". Thus, in determining whether an individual or group falls into a category analogous to those specifically enumerated in s. 15, courts must examine "the place of the group in the entire social, political and legal fabric of our society".

Accordingly, this Court held in Turpin, supra, that a law which differentiated for mode of trial purposes between those persons accused of certain offences in Alberta and those accused of the same offences elsewhere in Canada, did not infringe s. 15(1) because the group which had invoked s. 15 did not constitute a disadvantaged group in Canadian society, in the sense that it suffered from social, political and legal disadvantage in our society. Wilson J. stated, at p. 1333:

A search for indicia of discrimination such as stereotyping, historical disadvantage or vulnerability to political and social prejudice would be fruitless in this case because what we are comparing is the position of those accused of the offences listed in s. 427 in the rest of Canada to the position of those accused of the offences listed in s. 427 in Alberta. To recognize the claims of the appellants under s. 15 of the Charter would, in my respectful view, "overshoot the actual purpose of the right or freedom in question": see R. v. Big M Drug Mart Ltd., at p. 344

In analyzing the developing jurisprudence of this Court on s. 15(1), I am mindful of the words of Wilson J. in Turpin, supra, at p. 1326:

I note at the outset that in these early days of interpreting s. 15 it would be unwise, if not foolhardy, to attempt to provide exhaustive definitions of phrases which by their nature are not susceptible of easy definition and which are intended to provide a framework for the "unremitting protection" of equality rights in the years to come.

At the same time, I think that the cases mentioned above convey a basic framework within which particular s. 15(1) claims can be analyzed. 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. Furthermore, in determining whether the claimant's s. 15(1) rights have been infringed, 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 s. 15 -- namely, to remedy or prevent discrimination against groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society.

Keeping these basic points in mind, I turn now to consider whether the newly formulated common law rule infringes s. 15(1) of the Charter.

The interveners, C.D.R.C., argued that the old rule infringed s. 15(1) because it took away decision-making autonomy from one particular group of accused persons -- those perceived to have been insane, within the meaning of s. 16(2), at the time of the offence. C.D.R.C. argued that the old common law rule distinguished between accuseds on the basis of a personal characteristic (the enumerated ground of mental disability) and thereby imposed a burden or disadvantage on certain accused by interfering with the conduct of their defence and by removing decision-making autonomy.

Whatever the merits of this argument, it is clear to me that the new common law rule cannot be attacked on these grounds. As I have indicated above, the new common law rule does not interfere with an accused's right to control the conduct of his or her defence. This is because the new rule allows the Crown to raise evidence of insanity only where the accused's own defence has put mental capacity for criminal intent into issue or where the accused has concluded his or her defence. Thus, the new rule cannot be said to impose a burden or disadvantage by interfering with the conduct of an accused's defence or by removing decision-making autonomy with respect to the conduct of an accused's defence. Although an accused who puts his or her mental capacity for criminal intent into issue will be exposed to the added risk of a not guilty by reason of insanity verdict by virtue of the Crown's ability to raise evidence of insanity during the trial in this circumstance, this risk flows not from a perception of mental disability by the Crown, but rather from the accused's own choice of defence. No matter how much evidence of the accused's insanity is possessed by the Crown, it cannot raise this evidence until the accused puts his or her mental capacity for criminal intent into issue (or, if the accused does not do so, until the trier of fact has concluded that the accused is otherwise guilty of the offence charged). Thus any difference in treatment of accuseds is based not on a perception of mental disability, but on the accused's choice as to the conduct of his or her defence.

It must be acknowledged, however, that part of the new common law rule does distinguish between individuals on the basis of a personal characteristic which falls within the enumerated ground of mental disability. The new common law rule allows the Crown to raise evidence of insanity after the trier of fact has concluded that the accused is otherwise guilty of the offence charged in cases where the Crown believes that the accused was insane at the time of the offence. If the Crown holds no such belief about an accused, that accused will be convicted and sentenced. It is only when the Crown believes that an accused was insane at the time of the offence that the 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). Thus, in my view, it is clear that this aspect of the new common law rule draws a distinction between individuals such as Mr. Swain and others based on a personal characteristic; namely, insanity.

Furthermore, the fact that the claim involves the personal characteristic of insanity (which falls within the enumerated ground of mental disability) leaves no doubt in my mind that, if the differential treatment is "discriminatory" (which remains to be seen), the s. 15(1) claim fits within the overall purpose of remedying or preventing discrimination against groups suffering social, political and legal disadvantage in Canadian society. There is no question but that the mentally ill in our society have suffered from historical disadvantage, have been negatively stereotyped and are generally subject to social prejudice. However, the question remains: does this aspect of the new common law rule give rise to differential treatment under the law which is discriminatory? In other words, can it be said that part of the new common law rule imposes a differential burden, obligation or disadvantage or that it withholds or limits access to opportunities, benefits and advantages?

I stated previously that it is my view that 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. This part of the new common law rule distinguishes between accuseds in that it takes certain accuseds (those whom the Crown believes to have been insane at the time of the offence) out of the larger group of accuseds for whom the trier of fact is satisfied (but for the question of insanity) that the Crown has discharged its full burden on actus reus and mens rea, and allows the Crown to subject those accuseds to a further "trial" on the issue of insanity. If the Crown does not exercise its ability to raise evidence of insanity at this point, the accused will be convicted and sentenced. Thus, the differential treatment flowing from this part of the new common law rule is 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 L.G.W. system. Any further differences in treatment (i.e., between insanity acquittees and other acquittees) flow from the Code provisions which set out the L.G.W. system, not from the new common law rule. These Code provisions will be addressed further on in these reasons.

I cannot see how 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, can be said to impose a burden or a disadvantage on that individual. In my view, to say otherwise is tantamount to saying that an accused has a right to be convicted and punished even though he or she does not have the mental capacity for criminal intent. This cannot be the case. As I have stated above, and think it useful to reiterate here, it is a principle of fundamental justice that the criminal justice system not convict a person who was insane at the time of the offence. That this is so dispels any suggestion that an accused somehow has a right to be wrongfully convicted.

In light of the above reasoning, it is my view that 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, in my view, the new common law rule does not infringe s. 15(1) of the Charter. This view is, of course, based on the arguments and evidence before the Court in this appeal. At the hearing of this appeal, no argument was specifically directed at the new common law rule for the simple reason that the new rule was not in existence at the time of the hearing and no such rule was postulated by the parties. Accordingly, while I have felt it necessary to examine the newly formulated rule under s. 15(1) of the Charter, these reasons should not preclude an accused who wishes to raise different arguments and evidence from challenging the new common law rule under s. 15(1) in the future.

I pause here to note that, until the new common law rule becomes widely known, it might well be appropriate for trial judges to remind the jury that the Crown is raising insanity after a finding of guilt has been made but before a conviction is entered because this is what the law requires, not because the Crown has chosen to conduct its case in this manner. Without such a direction, a jury may perceive the Crown to be raising inconsistent theories and may believe that the Crown is raising evidence of insanity at this time for "strategic reasons". I have a high regard for the intelligence and common sense of Canadian juries and for the ability of trial judges to explain difficult concepts of law to the jury. In my view, a clear direction from the trial judge will be sufficient to remove any confusion which may arise with respect to the new common law rule.

I also wish to point out that, throughout my reasons on this issue, I have been careful to speak of the old common law rule as limiting the s. 7 Charter right and as violating the Constitution only after having reached the conclusion that the limitation is not justified under s. 1 of the Charter. This choice of language is deliberate but does not depend on the fact that this case involves a Charter challenge to a common law rule as opposed to a legislative provision. Whether one is speaking of a legislative provision or a common law rule it is not, in my view, correct to speak of a law violating a particular provision of the Charter (such as s. 7) prior to having gone through a s. 1 analysis. The Charter guarantees the particular rights and freedoms set out in it subject to reasonable limits which can be, under s. 1, demonstrably justified in a free and democratic society. Thus a law which limits a right set out in the Charter will only violate the Constitution if it is not justified under s. 1. In this instance, the law will either be struck down (to the extent of the inconsistency) under s. 52(1) or it will be reinterpreted so as not to violate the Constitution. If a law which limits a right set out in the Charter is justified under s. 1, that law does not violate the Constitution.

Conclusion

Conclusion

In the case at bar, the accused was acquitted on the basis of insanity after the Crown raised evidence of insanity, during the trial, over and above his wishes. It is impossible to say whether Mr. Swain would have been convicted or acquitted had evidence of insanity not been raised by the Crown in this manner. In these circumstances, I would normally be of the view that a new trial is in order. However, in this case, Mr. Swain has been through the trial process, has been acquitted on account of insanity, has been detained on a warrant of the Lieutenant Governor, and has subsequently been absolutely discharged by order of the Lieutenant Governor. To order a new trial now on the basis that his constitutional rights were violated at the first trial would, in my view, be unfair. At the same time, it would be inappropriate to enter an acquittal in these circumstances. In my view, the proper disposition in these circumstances is a judicial stay of proceedings. Consequently, I would allow the appeal and enter a stay of proceedings.

2.Is s. 542(2) of the Criminal Code of Canada intra vires the Parliament of Canada?

2. Is s. 542(2) of the Criminal Code of Canada intra vires the Parliament of Canada?

The appellant submits that s. 542(2) and the surrounding legislative scheme, including ss. 545 and 547, are ultra vires Parliament's criminal law power. These provisions are set out above.

Whenever an issue of federalism arises, the first step in the analysis must be to characterize the "pith and substance" of the impugned legislation. In order to determine the pith and substance of any particular legislative provision, it is necessary to examine that provision in its overall legislative context. The appellant submits that the pith and substance of this legislative scheme is to treat and cure the mentally ill, not to punish them. Therefore, this Court should find that these provisions are ultra vires the criminal law power of Parliament under s. 91(27) and, instead, fall within the scope of the provincial powers of s. 92(7) (The Establishment, Maintenance, and Management of Hospitals, Asylums... in and for the Province), s. 92(13) (Property and Civil Rights in the Province) and s. 92(16) (Matters of a merely local or private Nature in the Province).

I cannot agree with this characterization. In determining the "pith and substance" of the legislation, "it is necessary to identify the dominant or most important characteristic of the challenged law." (See Hogg, Constitutional Law of Canada (2nd ed.), at p. 313, (emphasis added.)) It is true that the dominant characteristic of these provisions is not punishment; however, neither is it treatment. The "pith and substance" of the legislative scheme dealing with individuals acquitted by reason of insanity is the protection of society from dangerous people who have engaged in conduct proscribed by the Criminal Code through the prevention of such acts in the future. While treatment may be incidentally involved in the process, it is not the dominant objective of the legislation.

A statute that includes a prohibition and a penalty and is enacted to serve a public purpose commonly recognized as being criminal in nature will fall within the scope of Parliament's criminal law power (Canadian Federation of Agriculture v. Attorney-General for Quebec, 1950 342 (UK JCPC), [1951] A.C. 179). Such public purposes include public peace, order, security, health and morality (Reference re Validity of Section 5(a) of the Dairy Industry Act, 1948 2 (SCC), [1949] S.C.R. 1, at p. 50).

It is true that the insanity provisions do not include a "penalty", in that individuals acquitted by reason of insanity are not held responsible for their actions and are not punished. Nevertheless, it has long been recognized that there also exists a preventative branch of the criminal law power:

A law may be validly enacted "in relation to" the criminal law, although the law itself does not have the characteristics of a criminal law. This would be true, for example, of a law which simply repealed a criminal law. Its most important application, however, is in support of laws aimed at the prevention of crime, for example, binding over a person to keep the peace, or detaining a person who has not been able to stand trial by reason of insanity. There is no doubt that laws of this kind are valid although they depart from the traditional format of criminal law. [Emphasis added. Hogg, Constitutional Law of Canada, 2nd ed., at p. 411.]

In other words, federal criminal legislation may be absolute or conditional in operation, may be punitive after the event and also preventive....

[Parliament has the authority] to legislate in relation to preventive criminal law; as, for example, by binding over a person to keep the peace. Parliament's power extends more obviously to the detention of an accused who has been acquitted on the ground of insanity at the time the offence charged was committed. [Emphasis added. Finkelstein, Laskin's Canadian Constitutional Law, vol. 2, 5th ed., at p. 850.]

This preventative aspect to the criminal law power was recognized by this Court in Goodyear Tire and Rubber Company of Canada Limited v. The Queen, 1956 4 (SCC), [1956] S.C.R. 303, at p. 308, by Locke J.:

The power to legislate in relation to criminal law is not restricted, in my opinion, to defining offences and providing penalties for their commission. The power of Parliament extends to legislation designed for the prevention of crime as well as to punishing crime.

More recently, in R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, this Court again approved of this preventative branch of the criminal law power in its discussion of the dangerous offender provisions, at p. 329:

It is thus important to recognize the precise nature of the penological objectives embodied in Part XXI. It is clear that the indeterminate detention is intended to serve both punitive and preventive purposes. Both are legitimate aims of the criminal sanction.

Although both of those cases recognized the preventative branch in the context of sentencing provisions, a conviction is not necessary before Parliament can legislate pursuant to this particular aspect of s. 91(27). On this point, I agree with the determination of the Alberta Court of Appeal in Attorney General of Canada v. Pattison (1981), 1981 ABCA 98, 59 C.C.C. (2d) 138. The court, at p. 142, was of the opinion that a conviction was not necessary for legislation to come within s. 91(27) and found that s. 101 of the Code which provided for the search, seizure and forfeiture of firearms if possession of such was not in the interests of safety was intra vires Parliament's criminal law power:

The legislation may be preventative of crime. The legislation may be preventative of death or injury as a result of shootings which are not crimes because of the insanity of the shooter. It may take a criminal trial, however, to determine that result. To say that because it may turn out that a killing or an injury is not the result of crime precludes the section from being criminal legislation, to my mind is untenable. When the object is to reduce the incidence of injury or death to the citizens of the country by the type of violence made possible by the destructive power of a firearm, it becomes clearly within the legislative competence of the Government of Canada under the head of criminal law to so enact.

While this Court in MacDonald v. Vapour Canada Ltd., 1976 181 (SCC), [1977] 2 S.C.R. 134, at p. 146, suggested that legislation under the preventative branch of the criminal law power must relate in some way to criminal proceedings, it did not require an actual conviction before provisions aimed at prevention could be considered intra vires the criminal law power:

This Court's judgment in Goodyear Tire and Rubber Co. of Canada Ltd. v. The Queen, upholding the validity of federal legislation authorizing the issue of prohibitory order in connection with a conviction of a combines offence, illustrates the preventive side of the federal criminal law power to make a conviction effective. It introduced a supporting sanction in connection with the prosecution of an offence. It does not, in any way, give any encouragement to federal legislation which, in a situation unrelated to any criminal proceedings, would authorize independent civil proceedings for damages and an injunction. [Emphasis added.]

Since the insanity provisions only relate to persons whose actions are proscribed by the Criminal Code, the required connection with criminal law is present. The system of Lieutenant Governor warrants, through the supervision of persons acquitted by reason of insanity, serves to prevent further dangerous conduct proscribed by the Criminal Code and thereby protects society. The protection of society is clearly one of the aims of the criminal law.

While I am aware of the potential danger of eroding provincial power if "protection of society" is characterized too broadly, I would emphasize that in this case Parliament is protecting society from individuals whose behaviour is proscribed by the Criminal Code. The provisions do not relate to all insane persons, but only those who, through their actions, have brought themselves within the criminal law sphere.

For this reason, I disagree with the appellant's submission that this Court's decision in Fowler v. The Queen, 1980 201 (SCC), [1980] 2 S.C.R. 213, applies in the case at bar. In Fowler, Martland J. writing for the Court, held that s. 33(3) of the Fisheries Act, R.S.C. 1970, c. F-14, was ultra vires Parliament's authority under s. 91(12) of the British North America Act to legislate with respect to "Sea Coast and Inland Fisheries". Subsection 33(3) prohibited the dumping of certain debris into waters believed inhabited by fish. This Court held that the Parliament could not rely on an ancillary power to effect legislation which was overbroad and which, therefore, only might relate to a subject matter of federal competence (at p. 226):

Subsection 33(3) makes no attempt to link the proscribed conduct to actual or potential harm to fisheries. It is a blanket prohibition of certain types of activity, subject to provincial jurisdiction, which does not delimit the elements of the offence so as to link the prohibition to any likely harm to fisheries. Furthermore, there was no evidence before the Court to indicate that the full range of activities caught by the subsection do, in fact, cause harm to fisheries. In my opinion, the prohibition in its broad terms is not necessarily incidental to the federal power to legislate in respect of sea coast and inland fisheries and is ultra vires of the federal Parliament.

In my respectful opinion, there is a strong connection between the L.G.W. provisions and the prevention of crime. As I have already mentioned, the only insane individuals who come within the scope of the provisions are those who have committed acts proscribed by the Criminal Code. Without supervision and treatment of these individuals, the potential for harm to other members of society is great.

I agree with the submissions of the appellant that, while the legislation does provide for supervision or confinement of individuals, it does not aim to punish them. Parliament has recognized that, as a matter of public policy, individuals suffering from legal insanity should not be held criminally responsible for their actions nor be punished. However, the fact that the criminal committal provisions are not designed to punish the individual acquittee does not incontrovertibly lead to the conclusion that, therefore, the object of the legislation is treatment and is outside the scope of Parliament's criminal law power.

In Schneider v. The Queen, 1982 26 (SCC), [1982] 2 S.C.R. 112, this Court found a statutory scheme which provided for the involuntary detention of heroin addicts to be intra vires the Province of British Columbia, pursuant to its competence over health matters under s. 92(16). In that case, Dickson J. (as he then was) found that the detention provisions were not punitive, but were instead necessary for the treatment of these people, at pp. 132-33:

I think, on balance, however, it was open to the Court of Appeal of British Columbia to conclude, as it did, that the provisions of the impugned statute for the examination, apprehension and detention of dependent persons or patients are in no way intended to be punitive. They are provided for as ancillary to "treatment" as defined. The legislative plan is not to punish users of narcotics. It is to provide facilities and other means designed to assist in terminating or diminishing a "patient's" use of or dependency on the defined narcotic.

I do not take this statement to mean, however, that if legislation providing for involuntary detention is not punitive, it is necessarily outside the criminal sphere. It is important to note that in Schneider, this Court unanimously emphasized that subjects related to "health" do not exclusively come within either federal or provincial competence, at pp. 114, 142 and 132:

This conclusion must not be taken as excluding the Parliament of Canada from legislating in relation to public health, viewed as directed to protection of the national welfare. In the present case, there is no preclusive or superseding federal legislation.

In sum "health" is not a matter which is subject to specific constitutional assignment but instead is an amorphous topic which can be addressed by valid federal or provincial legislation, depending in the circumstances of each case on the nature or scope of the health problem in question.

It is not an easy matter, I confess, to determine whether the Heroin Treatment Act is a valid provincial health law with what-might-be‑regarded-as-punitive features or whether the pith and substance of the Act is criminal law and therefore invalid.

In conclusion, Dickson J. determined that the most important characteristic of the Heroin Treatment Act, S.B.C. 1978, c. 24, was the treatment aspect of the scheme, and that the coercion was simply incidental to its effectiveness. The legislative scheme in issue in the case at bar is very different from the one considered in Schneider, supra. In that case, it was clear even from the title of the Act that the main object of the legislation was treatment. The Act focussed on the individual heroin addicts. In contrast, the impugned provisions dealing with the criminal committal of persons acquitted by reason of insanity focus on society and the role which the criminal law plays in its protection and in the prevention of crime. While treatment or cure of the individual may be incidentally achieved, this consideration is secondary and simply a means to achieving the ends of protection and prevention.

This distinction between the objective of the L.G.W. system and the means by which it is achieved was described by Macfarlane J.A. of the British Columbia Court of Appeal in Re Rebic and The Queen (1986), 1986 1052 (BC CA), 28 C.C.C. (3d) 154, at p. 171:

The objective of the legislation is to protect society and the accused until the mental health of the latter has been restored. The objective is to be achieved by treatment of the patient in a hospital, rather than in a prison environment. [Emphasis added.]

In R. v. Saxell, supra, at p. 186, the Ontario Court of Appeal also recognized that while the insanity provisions may encompass treatment and cure, these elements merely constitute the means by which to achieve the end of public protection. Society will be safer for every individual cured:

But these provisions of the Code are not designed to punish the accused; they are for the protection of the public and the treatment of the accused. Manifestly, the public is best protected by the cure of the accused. Indeed, the original statute from which ss. 542 and 545 were derived recited that "it may be dangerous to permit persons so acquitted to go at large...": the Criminal Lunatics Act, 1800 (U.K.), c. 94.

As our understanding of mental illness has grown through the years, providing treatment for persons held under L.G.W. has come to be accepted, indeed expected, for both humanitarian and pragmatic reasons. However, this treatment is not prescribed by the impugned provisions; rather, it constitutes the means to achieving their end, the protection of society.

The Criminal Code provisions do not speak directly of the administration of medical treatment. They simply stipulate the procedures for a criminal committal, procedures designed to protect society, not to treat the individual. Parliament has developed a scheme by which to protect society through the neutralization of potentially dangerous persons who have brought themselves within the criminal sphere by committing acts proscribed by the criminal law. The removal of these persons from society, in the interest of protecting society, flows from the federal power. For humanitarian reasons, Parliament has determined that these individuals will be transferred into the hands of the provincial authorities for treatment. However, the impugned provisions themselves deal primarily with the removal of these people from society and only relate to treatment in a secondary, ancillary way. Rather than prescribing "treatment", the provisions provide for an alternative to simple incarceration, based on a humanitarian concern for persons acquitted by reason of insanity.

The actual wording of the Code provisions reveals that their focus is on societal interests. For example, the entire section of the Criminal Code dealing with the detention of insanity acquittees is entitled "Supervision of Insane Persons", not "Treatment of Insane Persons". The statutory powers of the Lieutenant Governor provided for in s. 545(1) of the Code are limited to ordering either the custody or release of the individual and do not extend to specific aspects of treatment. The Lieutenant Governor may order a discharge, either absolute or with conditions, "... if in his opinion it would be in the best interest of the accused and not contrary to the interest of the public". (Emphasis added.)

Similarly, before an individual held under these provisions can be released, the Board of Review must consider, "... whether, in the opinion of the board, that person has recovered and, if so, whether in its opinion it is in the interest of the public and of that person for the lieutenant governor to order that he be discharged absolutely or subject to such conditions" (s. 547(5)(d), emphasis added.). The definition of "recovered" was considered by the Federal Court in Lingley v. New Brunswick Board of Review (1973), 1973 2214 (FC), 13 C.C.C. (2d) 303, at p. 308, and clearly found to encompass societal interests:

It is clear from a reading of ss. 545 and 547 that the public interest and the interest of an accused himself were of paramount importance in the minds of Parliament when these sections were passed. I am satisfied from a reading of s. 547(5)(d) that, in addressing itself to the question of whether an accused has recovered, the Board is entitled to interpret "recovery" as full recovery and to find that if an accused can no longer be said to be legally insane as defined in s. 16, he is, nevertheless, "not recovered" in a case like this where there is strong evidence of continuing psychopathic disorders which would render the accused "dangerous" to members of the public were he to be released.

The provisions providing for confinement and the criteria for the decision to release or not, therefore, do not focus on treatment as much as on the protection of society. Of course Parliament is sympathetic to persons suffering from psychological illnesses and it will not hold them responsible for their actions or punish them. However, it is not Parliament's responsibility to treat these people; Parliament must concern itself with the consequences for society if these individuals are released while dangerous. The fact that the Code provisions themselves do not focus on treatment is not callousness on the part of Parliament, but simply a recognition of the responsibilities and priorities assigned to it by the division of powers provisions in the Constitution.

It should be noted that while "treatment" in a narrow sense falls under provincial heads of power, Parliament may have competence over certain subjects which may appear to be "treatment" in certain aspects. For example, no one disputes that criminal law sentencing may deal with considerations of rehabilitation. The criminal law power authorizes Parliament to provide for conditional discharges just as well as unconditional discharges, even though some of the conditions may involve a treatment program. If Parliament chooses to respond to conduct proscribed by the Criminal Code in a manner more sensitive to rehabilitation concerns, it does not thereby lose its legislative competence.

For example, this Court found in Attorney General of British Columbia v. Smith, 1967 65 (SCC), [1967] S.C.R. 702, that the Juvenile Delinquents Act, R.S.C. 1952, c. 160, was intra vires Parliament's criminal law power. In that case, it was argued that the Act, which provided an alternative system under which to deal with children committing acts which -- but for their age -- would constitute crimes under the Criminal Code, was ultra vires Parliament because it related to the welfare of children. While recognizing an incidental effect on the provincial subject area of welfare of children, this Court nevertheless found the Act related primarily to criminal law (at pp. 710 and 712-13):

Briefly, and in scope, the Act deals with juvenile delinquency in its relation to crime and crime prevention, a human, social and living problem of public interest, in the constituent elements, alleviation and solution of which jurisdictional distinctions of constitutional order are obviously and genuinely deemed by Parliament, to be of no moment.

Obviously, one can say that the Act gives a special kind of protection to misguided children and that it should incidentally operate to ultimately enhance their welfare.

[The judge must consider the]... child's interest or own good, the community's best interest and the proper administration of justice. This, I think, qualifies the nature of the protection which the Act is meant to give to juveniles alleged or found to be delinquents and supports the proposition that the Act is not legislation in relation to protection and welfare of children within the meaning envisaged in the Adoption Act case, supra.... [It] is genuine legislation in relation to criminal law in its comprehensive sense.

Parliament's sensitivity to individual rights also expands its competence to legislate with respect to procedures for review of the Lieutenant Governor warrants. Although the protection of society rationale may not fully authorize such provisions, Parliament surely 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 of Canada Violate the Canadian Charter of Rights and Freedoms?

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?

Following a verdict of not guilty by reason of insanity, s. 542(2) requires that the trial judge automatically order the acquittee into strict custody until the pleasure of the Lieutenant Governor of the province is known. The appellant submits that this provision of the Criminal Code restricts his rights under ss. 7 and 9 of the Canadian Charter of Rights and Freedoms and cannot be saved under s. 1. First, he submits that s. 542(2) of the Criminal Code restricts his procedural rights under s. 7 because there is no opportunity for a hearing before the trial judge orders the insanity acquittee into "strict custody". Since any evidence of insanity adduced during the trial only relates to insanity at the time of the offence, there is no evidence before the trial judge as to whether such detention is necessary because the patient is dangerous.

Additionally, the appellant submits that s. 542(2) infringes his substantive rights under s. 7 and his right to be free from arbitrary detention under s. 9, because it imposes a duty on the trial judge to order "strict custody" automatically and arbitrarily, without providing any standards for the exercise of this power. The provision substitutes an overly inclusive assumption that all accused persons acquitted by reason of insanity are presently dangerous and require hospitalization, for an actual determination on the facts of each case as to whether or not that assumption is valid.

Section 7

The automatic detention required under s. 542(2) clearly deprives the appellant of his right to liberty. However, if this deprivation is in accordance with the principles of fundamental justice, there will be no limitation of his rights under s. 7 of the Charter. As was stated in Re B.C. Motor Vehicle Act, supra, at pp. 503-4, the principles of fundamental justice, while not limited to "natural justice", require at least those procedural safeguards. Because s. 542(2) provides for no hearing or other procedural safeguards whatsoever, I need not proceed any further to conclude that the deprivation of liberty is not in accordance with the principles of fundamental justice.

With respect, I do not accept the position of the majority of the Court of Appeal that the procedural fairness required by the principles of fundamental justice can be simply "read in" to this legislation. For this point, they relied on this Court's decision in Singh v. Minister of Employment and Immigration, supra, and particularly the words of Wilson J., at p. 188:

If, as a matter of statutory interpretation, the procedural fairness sought by the appellants is not excluded by the scheme of the Act, there is, of course, no basis for resort to the Charter. The issue may be resolved on other grounds.

While I agree with this statement, in Slaight Communications Inc. v. Davidson, 1989 92 (SCC), [1989] 1 S.C.R. 1038, I explained the process of reading constitutional requirements into legislation which confers a discretion. 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 (at p. 1078):

As the Constitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect, it is impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter, unless, of course, that power is expressly conferred or necessarily implied. Such an interpretation would require us to declare the legislation to be of no force or effect, unless it could be justified under s. 1. Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect. Legislation conferring an imprecise discretion must therefore be interpreted as not allowing the Charter rights to be infringed. [Emphasis added.]

Applying this approach to the situation in the case at bar, I find that s. 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 in that it states that the trial judge "shall order that [the acquittee] be kept in strict custody... until the pleasure of the lieutenant governor of the province is known". (Emphasis added.) This order of "strict custody" is thus automatically made immediately following the trial and before any hearing on the issue of current mental state. Even attempting to interpret s. 542(2) within the bounds of the Constitution, it is impossible to conclude that Parliament did not intend to authorize such conduct on the part of the trial judge. Because the wording of s. 542(2) is precise and requires the trial judge to order the insanity acquittee into strict custody immediately following the trial, this is not a situation in which this Court can simply "read in" procedural safeguards to make the legislation accord with constitutional requirements.

While I accept that the statutory scheme in question must be looked at in its entirety, I respectfully disagree with the majority position in the Court of Appeal that although s. 542(2) alone may infringe s. 7, the procedural requirements are 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 without any opportunity for a hearing.

Neither can I accept the submissions of the respondent that the constitutional requirements are met by the procedural fairness afforded during the trial itself. With respect, I do not understand how any procedural safeguards which an accused may have enjoyed during the trial offer any protection in a post-acquittal committal process.

It is the position of the appellant that his arguments with respect to s. 9 also apply to the substantive (as opposed to procedural) aspects of s. 7. Since s. 9 is illustrative of s. 7, and since the central point of the substantive s. 7 arguments in this case is that the detention is ordered on the basis of no criteria (i.e., arbitrary detention), a discussion of s. 9 is sufficient and I will proceed with that forthwith.

Section 9

The appellant submits that it would be pointless to address the procedural defects in s. 542(2) if this Court were not also to deal with the substantive defects. I agree that the substantive defects in the legislation restrict the appellant's right not to be arbitrarily detained under s. 9 of the Charter.

The detention order is automatic, without any rational standard for determining which individual insanity acquittees should be detained and which should be released. I need not determine at this point what standard would be required by s. 9 in order to detain an insanity acquittee. The duty of the trial judge to detain is unqualified by any standards whatsoever. I cannot imagine a detention being ordered on a more arbitrary basis. As La Forest J. stated in R. v. Lyons, supra, at p. 348, adopting the submission of the Crown in finding that the Crown's discretion with respect to dangerous offender applications was not "arbitrary" and did not infringe s. 9:

...it is the absence of discretion which would, in many cases, render arbitrary the law's application.

Denying that the provision is "arbitrary" and without standards, the respondent submits that there are criteria for the operation of s. 542(2) which can be found in both the statutory scheme and the jurisprudence: s. 542(2) only applies to indictable offences (s. 542(1)); the trier of fact must have been satisfied that the insane acquittee did commit the act charged, even if incapable of the mental requirement; the mental disorder must be particularly severe so as to meet the test of s. 16(2); and the condition of insanity must have been established on a balance of probabilities (s. 16(4)). With respect, while I agree that the mandatory detention order authorized under s. 542(2) only applies to people who have met these four criteria, it is still arbitrary in the way that it operates with respect to them. Not all of these individuals will be dangerous.

In conclusion, because s. 542(2) 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, this provision infringes the appellant's rights under ss. 7 and 9 of the Canadian Charter of Rights and Freedoms. I turn now to the issue of whether the provision can be saved under s. 1.

Section 1

Objective

As I have already stated above, the test for whether legislation which has been found to limit a right or freedom guaranteed by the Charter can be saved is that set out by this Court in Oakes, supra. All of the parties to this appeal seem to agree that 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 -- is indeed "pressing and substantial".

Proportionality Test

Before embarking on the proportionality test of the s. 1 inquiry, it is necessary to specify which particular aspect of the impugned legislation has limited the Charter rights in question and therefore must be balanced against the importance of the objective. In the case at bar, the lack of a hearing in s. 542(2) deprives the appellant of his right to liberty in a way that is not in accordance with the principles of fundamental justice, thereby infringing his rights under s. 7 of the Charter. His right under s. 9 of the Charter not to be detained arbitrarily is also restricted in that there are no criteria for the exercise of the trial judge's power to detain.

1. Rational Connection

In order to satisfy the first part of the proportionality test, there must be a rational connection between the objective of protecting the public and preventing crime through the detention of dangerous insanity acquittees pending the decision of the Lieutenant Governor and the means chosen to obtain this objective, which has been found to limit the appellant's right. The means chosen by Parliament in s. 542(2) which infringes ss. 7 and 9 is the automatic and arbitrary order of detention, issued in the absence of any procedural safeguards and without any governing standards.

I accept the submissions of the respondent and of the Attorney General of Canada that there is a rational connection between the objective and the means because it is reasonable to assume that some insanity acquittees will continue to represent a danger to the public. While I recognize that not every individual will pose a continued threat to society, I do agree that this assumption, while certainly not irrefutable, is reasonable.

We know that individuals who have been found not guilty by reason of insanity have, in the past, committed an act proscribed by the Criminal Code. At that time, they were either incapable of appreciating the nature and quality of that act or were not aware that it was morally wrong (R. v. Chaulk, supra). It seems reasonable to assume that these individuals could still be legally "insane" and that this incapacity to appreciate the nature and quality of their actions or their amorality could result in future dangerous conduct.

The United States Supreme Court reached a similar conclusion in Jones v. United States, 463 U.S. 354 (9183), at p. 366 and pp. 364-65 (note 13)

Nor can we say that it was unreasonable for Congress to determine that the insanity acquittal supports an inference of continuing mental illness. It comports with common sense to conclude that someone whose mental illness was sufficient to lead him to commit a criminal act is likely to remain ill and in need of treatment....

¹³ . . . We have recognized repeatedly the 'uncertainty of diagnosis in this field and the tentativeness of professional judgment. The only certain thing that can be said about the present state of knowledge and therapy regarding mental disease is that science has not reached finality of judgment...." The lesson we have drawn is not that government may not act in the face of this uncertainty, but rather that courts should pay particular deference to reasonable legislative judgments. [References omitted.]

Of course, while the assumption that persons found not guilty by reason of insanity pose a threat to society may well be rational, I hasten to add that I recognize that it is not always valid. While past violent conduct and previous mental disorder may indicate a greater possibility of future dangerous conduct, this will not necessarily be so. Furthermore, not every individual found not guilty by reason of insanity will have such a personal history. Nevertheless, the connection between the objective and means is a rational one. 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.

2. Minimal Impairment

Because s. 542(2) affects the appellant's rights under ss. 7 and 9 differently, I will deal with each separately, beginning with his right to liberty under s. 7.

The order of strict custody required by s. 542(2) remains in effect until the pleasure of the Lieutenant Governor of the province is known. The pleasure of the Lieutenant Governor is "known" once the patient is released or an L.G.W. is issued either imposing a conditional release or detention. There is no time requirement within which the Lieutenant Governor must act: no time limit is placed on the order under s. 542(2) and the language of s. 545, pursuant to which the L.G.W. is issued, is discretionary. In fact, the wording of the legislation does not require the Lieutenant Governor to ever make an order.

The following statistics taken from the Canadian Data Base: Patients Held on Lieutenant Governors' Warrants, A Description of Patients Under Lieutenant Governors' Warrant (1988), demonstrate that the duration of this initial remand by the trial judge following a verdict of not guilty by reason of insanity can be quite lengthy:

Mean Length of Time Between the Court Judgment and the Issuance of the L.G.W.:

British Columbia: 0.1 months

Alberta: 5.4 months

Saskatchewan: 3.2 months

Manitoba: 1.9 months

Ontario: 2.3 months

Quebec: 1.2 months

New Brunswick: 1.4 months

Nova Scotia: 2.2 months

Newfoundland: 1.5 months

Canada: 1.8 months

Whatever the actual length of time between court judgment and the issuance of an L.G.W. in any particular case, s. 542(2) does not meet the minimal impairment component of the proportionality test. Parliament could easily employ a means which would still meet its objective and yet not limit the appellant's liberty under s. 7 to such a great extent. The Attorney General of Canada submits that s. 542(2) is simply a bridging provision to ensure the protection of society until a decision is made with respect to an L.G.W. under s. 545 of the Code. I find nothing wrong with having a "bridging" provision. However, 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.

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, there will necessarily be a gap in time between the acquittal by reason of insanity and the decision whether to release or detain under an L.G.W. The delay in making the dangerousness determination is inevitable because evidence adduced at trial with respect to the s. 16 defence only relates to mental condition at the time of the offence. Automatic detention following an acquittal by reason of insanity is to some extent, then, a codification of practical reality.

In addition to furthering the legislative objective in the short-term, automatic detention also serves to prevent crime and protect society in the future. While prediction of recidivism and recurring mental illness is always difficult, there is evidence before this Court that the opportunity for psychiatrists to observe and evaluate the individual on an inpatient basis often results in a more accurate assessment:

It might be helpful to examine inpatient assessment, when at its most productive, through the eyes of a clinician. Such a clinician might argue that, although it is true that many accused initially present themselves as model patients, such a veneer drops quickly....

It is not unusual for an individual to give one impression during brief assessment and another quite different one after a few days within an inpatient unit. Consider, for example, the case of Leonard S., charged with a relatively minor offence. He was sullen and silent in the initial interview. He spoke in a flat monotone with a quiet undertone of anger. At brief assessment the psychiatrist initially entertained a number of diagnostic hypotheses with regard to this young man. These ranged from passive aggressive personality disorder to depression to schizophrenia. It was decided to admit him to the inpatient unit where within weeks he showed all the signs of being schizophrenic and did so consistently till the end of his period of remand. [Butler, B., Clinical Assessment and the Mentally Disordered Offender, Working Paper in Forensic Psychiatry Number 27, p. 52 at pp. 75-76.]

A defence witness, Sheila Hodgins (Research Director at l'Institut Philippe Pinel in Québec), also testified under cross-examination to the benefits of observation on an inpatient basis:

...it is very difficult to do an assessment of a patient on a one shot or a two shot or even three interviews. The treatment staff have observed the patient over longer periods of time in many different situations, twenty-four hours a day and, myself, I trust their observations more than somebody who just interviews him one or two or three times.

In the long term, then, crime is prevented and society protected as dangerous individuals in need of treatment will be held in custody under an L.G.W.

Therefore, the means chosen by Parliament, automatic detention, furthers the objective in two important ways. First, if individuals acquitted by reason of insanity are immediately ordered into custody, they cannot pose a threat to society in the short term. Secondly, 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.

However, the minimal impairment component of the Oakes, supra, test requires that insanity acquittees be detained no longer than necessary to determine whether they are currently dangerous due to their insanity. Parliament has provided for remands of a fixed duration for psychiatric observation elsewhere in the Criminal Code which indicates that they are aware of the constitutional concerns raised by indeterminate detention.

For example, remands for psychiatric observation can be ordered at the time of a preliminary hearing (s. 465); at the time of trial to determine fitness (s. 543); at the time of a dangerous offender application (s. 691); or at the time of an appeal (s. 608.2). The language in all of these other provisions of the Code is consistent: the remand is limited to a 30-day period in most instances, except in exceptional cases when it can be extended to 60 days. Without pronouncing on the constitutionality of these other remands, the fact that the indeterminate remand provided for in s. 542(2) is an anomaly clearly demonstrates that the means chosen by Parliament does not impair the appellant's s. 7 right to liberty as little as possible.

In conclusion, s. 542(2) cannot be justified as a reasonable limit on the appellant's rights under s. 7 and is accordingly of no force or effect, pursuant to s. 52(1) of the Constitution Act, 1982.

While I need not proceed further, I would note that a detention of limited duration would not impair the appellant's rights under s. 9 any less than the current s. 542(2). The order of the trial judge would be no less arbitrary if it was only in effect for a limited period of time. Given that there will be no evidence on this issue adduced during the trial, I am willing to accept that 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, in my opinion, and renders the effect of the limitation disproportionate to the objective. Therefore, s. 542(2) cannot satisfy the Oakes, supra, test and therefore cannot be justified with respect to s. 9 of the Charter either.

Because of my conclusion that s. 542(2) infringes ss. 7 and 9 of the Charter and cannot be saved under s. 1, I need not deal with the issue of s. 15 which was raised by some interveners.

The Rest of the Legislative Scheme

The Rest of the Legislative Scheme

Although the appellant has referred in his arguments to the "surrounding legislative scheme", ss. 545 and 547 were not included in his application to state the constitutional questions. Rule 32(1) of the Rules of the Supreme Court of Canada, SOR/83-74, states:

32. (1) When a party to an appeal

(a) intends to raise a question as to the constitutional validity or the constitutional applicability of a statute of the Parliament of Canada or of a legislature of a province or of Regulations made thereunder, or

such party shall, upon notice to the other parties, apply to the Chief Justice or a Judge for the purpose of stating the question....

The reason for requiring that a constitutional question be stated when the constitutionality of a statute is being challenged, is to ensure that the Attorney General of Canada and the Attorneys General of all of the provinces will be notified and have the opportunity to intervene as of right. Rule 32(4) imposes a duty on the Chief Justice or Judge of this Court who is stating the constitutional question to direct that this notice be served:

32. ...

(4) Upon a motion, the Chief Justice or a Judge shall state the question or questions and direct service of the question or questions upon the Attorney General of Canada and the attorneys general of all the provinces within the time fixed by the Chief Justice or Judge together with notice that any of them who intends to intervene, whether or not the attorney general wishes to be heard, shall, within a time fixed in the notice that is not less than four weeks after the date of the notice, file a notice of intervention in Form C.

Although the Attorney General of Canada and the Attorneys General of Ontario and British Columbia intervened in this case, we have no way of knowing whether the Attorneys General of other provinces would have also intervened, if they had been aware that the constitutional validity of the L.G.W. system itself (ss. 545 and 547) was also being challenged. Because these provisions were not included in the constitutional question, I am declining at this point in time to deal with the issues relating to them. However, I do note in passing that the lack of procedural safeguards provided for in ss. 545 and 547 do, in my opinion, attract suspicion.

Transitional Period

Transitional Period

If, based on the reasons given above, s. 542(2) is simply declared to be of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982, it will mean that as of the date this judgment is released, judges will be compelled to release into the community all insanity acquittees, including those who may well be a danger to the public. Because of the serious consequences of finding s. 542(2) to be of no force and effect, there will be a period of temporary validity which will extend for a period of six months. During this period, however, any 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. This seems a sufficient duration for the remand in light of the other provisions of the Criminal Code providing for detention for psychiatric observation and given that a warrant can issue in some provinces within a period of approximately this length. Courts may choose to limit their orders under s. 542(2) to between 30 and 60 days. If they do not, the individual acquittee will have the writ of habeas corpus available to him or her at the expiration of 30 days.

Any of the parties hereto, may, in the case of necessity upon further application, supported by such evidence as may be required, return to this Court to show cause for such further extension of the transitional period or for modification of the regimen therein, as this Court may decide.

In light of the transitional period, which has been outlined above, there are only two circumstances in which a judge would be compelled to release a possibly dangerous insanity acquittee into the community. First, this unfortunate result would arise during the transitional period if the Lieutenant Governor of a province were unable to issue either a warrant for further detention or a discharge order within 30 to 60 days. This contingency is unlikely given the information which was supplied to this Court by the intervener, the Lieutenant Governor's Board of Review of Ontario. Second, such a result would arise after the expiration of the transitional period if Parliament neither enacted a replacement for s. 542(2) within the six-month period nor returned to this Court to apply for an extension of the transitional period for that purpose.

I note that this Court has provided for a similar transitional period in previous cases: see Re Manitoba Language Rights, 1985 33 (SCC), [1985] 1 S.C.R. 721, and R. v. Brydges, 1990 123 (SCC), [1990] 1 S.C.R. 190. Furthermore, the availability of a transitional period in appropriate circumstances was recognized by the majority judgment of Cory J. in Askov, supra.

Disposition

Disposition

For the reasons given above, the appropriate disposition in the circumstances of this case is a judicial stay of proceedings. Accordingly, I would allow the appeal and enter a stay of proceedings. I would answer the constitutional questions as follows:

Question 1:Is s. 542(2) of the Criminal Code of Canada intra vires the Parliament of Canada?

Answer:Yes.

Question 2:Do the common law criteria, enunciated by the Ontario Court of Appeal, permitting the Crown to adduce evidence of an accused's insanity, violate ss. 7, 9, and 15 of the Canadian Charter of Rights and Freedoms?

Answer:Yes, the common law criteria limit s. 7 of the Canadian Charter of Rights and Freedoms. It is not necessary to answer this question with respect to ss. 9 and 15 of the Canadian Charter of Rights and Freedoms.

Question 3:If the answer to question 2 is affirmative, are the common law criteria, enunciated by the Ontario Court of Appeal, permitting the Crown to adduce evidence of an accused's insanity, justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?

Answer:No.

Question 4:Does the statutory power to detain a person found not guilty by reason of insanity, pursuant to s. 542(2) of the Criminal Code of Canada violate ss. 7 and 9 of the Canadian Charter of Rights and Freedoms?

Answer:Yes.

Question 5:If the answer to question 4 is affirmative, is the statutory power to detain a person found not guilty by reason of insanity, pursuant to s. 542(2) of the Criminal Code of Canada, justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?

Answer:No. However, during the six-month transitional period, an order issued pursuant to s. 542(2) will be valid, but for no longer than 30 to 60 days.

//Wilson J.//

Wilson J.

The following are the reasons delivered by

Wilson J. -- I have had the benefit of reading Chief Justice Lamer's reasons in this appeal and wish to address one or two issues on which I am not fully in agreement with his position.

Let me say first, however, that I agree with the Chief Justice that, from the jurisdictional point of view, s. 542(2) of the Criminal Code, R.S.C. 1970, c. C‑34, is a valid exercise of the federal criminal law power.

I also agree with the Chief Justice for the reasons given by him that s. 542(2) infringes an accused's rights under both s. 7 and s. 9 of the Canadian Charter of Rights and Freedoms and is not saved by s. 1. I have one reservation, however, about the Chief Justice's discussion of this aspect of the appeal. I cannot agree with him that discretionary powers conferred by statute should be interpreted in such a way as to ensure their compliance with the Charter. My own view is that this approach is tantamount to a presumption of constitutionality, a presumption which I believe has no application in Charter cases. While I recognize that the efficacy of "reading down" in the Charter context has not as yet been finally decided (see Manitoba (Attorney General) v. Metropolitan Stores Ltd., 1987 79 (SCC), [1987] 1 S.C.R. 110, at p. 125), I prefer the view expressed in Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 169, that:

. . . it is the legislature's responsibility to enact legislation that embodies appropriate safeguards to comply with the Constitution's requirements.

In this case, however, the issue simply does not arise since the section does not confer a discretion, imprecise or otherwise, but rather constitutes a directive. Accordingly, I prefer to leave the important question of whether statutes conferring discretionary powers should be judicially interpreted in such a way as to avoid conflict with the Charter's guarantees to a day when the issue is clearly before the Court. I turn now to a consideration of the constitutionality of the common law rule.

The Common Law Rule

The Common Law Rule

Like the Chief Justice, I find it unnecessary to deal with ss. 9 and 15 of the Charter since I agree with him that the common law rule as enunciated in R. v. Simpson (1977), 1977 1142 (ON CA), 35 C.C.C. (2d) 337, and R. v. Saxell (1980), 1980 1623 (ON CA), 59 C.C.C. (2d) 176, 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. I accept the appellant's submission that 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. I agree with the appellant that to allow the prosecution to raise the issue of insanity can 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. The appellant gave some illustrations of this distortion:

(a) the unfairness of imposing upon an accused who does not wish to raise the defence of insanity the burden of proving, among other things, that he is not presently dangerous;

(b) permitting the prosecution to place an accused in a position where inconsistent defences must be advanced. This may well negate the advice of counsel;

(c) discrediting or undermining the accused's credibility so that other potential defences such as alibi or accident are prejudiced. This reduces the accused's chance of obtaining an unqualified acquittal;

(d) leaving the accused to combat the inevitable inference that he or she is, because of mental illness, the type of person who would have likely committed the offence.

(e) giving to the [Crown] a strategic tool whereby a person may be deprived of his liberty upon proof to a standard that is less than beyond a reasonable doubt. In R. v. Simpson, supra, Martin J.A. [stated at p. 364]:

Since the evidence of insanity is directed to an acquittal the standard of proof should be on the balance of probabilities, whether the evidence of insanity is led by the prosecution or the defence. It would be strange indeed to have a different standard of proof of insanity leading to the acquittal of the accused depending upon who introduced the evidence. In my view, the learned trial Judge in the present case was correct in charging the jury that the prosecution must prove on a balance of probability that the accused was insane.

(f) permitting the Crown the strategic advantage of urging what may be a compromise verdict where all the jury is not convinced of guilt beyond a reasonable doubt but is satisfied the accused is mentally ill and perhaps dangerous;

(g) permitting the Crown under the auspices of seeking an "acquittal" to press for what in reality is indefinite detention at the pleasure of the Lieutenant‑Governor of the province. Thus, a greater period of incarceration may be effected through this vehicle than if the accused were convicted and punished. As insanity constitutes a true defence, which negates mens rea, the prosecutor convinced of the validity of the defence need not prosecute the "innocent". If future dangerousness is the Crown's concern which causes them to continue the prosecution of an innocent person for the purpose or raising an insanity defence, then provincial mental health laws are more than adequate to protect that public interest.

The Crown submits, however, that permitting the prosecution to raise the issue of insanity against the wishes of the accused gives effect to another basic tenet of our criminal justice system, one which is embodied in s. 16(1) of the Criminal Code, namely that insane persons who are not criminally responsible for their conduct should not be convicted of criminal offences. The Crown contends that, if evidence of the accused's insanity at the time of the commission of the offence is not adduced by either the accused or the prosecution, this principle will be violated and an illegal conviction, i.e., one which flies in the face of s. 16(1), may result.

While I agree that it is a basic tenet of our criminal justice system that insane persons not be convicted of criminal offences, I am not persuaded that to permit the prosecution to introduce evidence of insanity in the course of the trial always promotes this principle or promotes it in a way which is in accord with the principles of fundamental justice.

Under s. 16(4) of the Criminal Code the accused is presumed to have been sane at the time he or she committed the offence. The accused who elects not to defend on the basis of insanity relies on this statutory presumption. If I am correct in what I have said about the impact of the common law rule, allowing the prosecution to raise the issue of insanity may substantially reduce the chances of an accused's outright acquittal. It may totally defeat the strategy adopted by the defence and deprive the accused, particularly an accused who turns out to be sane, of the fair trial the adversarial process was designed to ensure. This is a high price to pay to protect the relatively small number of persons going through the criminal justice system who are truly insane and do not wish to raise it in their defence. In cases where the Crown is permitted to introduce evidence of insanity over the accused's objection and does not succeed in proving it, the defence's case may have been destroyed to no avail. His election is simply proved to have been sound but this is cold comfort to him and to his counsel.

I think it should be borne in mind also that another consequence of allowing the prosecution to adduce evidence of insanity is that the accused may well face consequences more harmful to him than a conviction. An insane acquittee is detained at the pleasure of the Lieutenant Governor, often for a period exceeding that which would have been possible upon conviction. He must also live with the stigma of being held to be both a criminal and insane and may face conditions worse than those obtaining in prison. The intervener, the Canadian Disability Rights Council, described the Penetanguishene Mental Health Centre in which the appellant initially spent some time and in which 130 of Canada's inmates on Lieutenant Governor's warrants are detained as:

. . . a highly coercive environment emphasizing rules and regulations rather than personal rights. At Oak Ridge, there are steel gates which are double locked. The gates are deadlocked from the end of the corridor, from 10:30 at night to 6:30 or 7:00 in the morning. The windows in the inmates' rooms have bars. One‑third of the patients sleep on concrete slabs. The rooms want for cleanliness. There is no cleaning staff. There are metal detectors, a closed circuit television, and an x‑ray machine. At night all inmates are locked in individual rooms. Inmates are also locked in their rooms during the day if the staff is short, which is often the case. Inmates who are in the assessment unit are subjected to intense lighting which is left on twenty‑four hours a day. In some parts of the facility, there are no temperature controls. There is one psychiatrist for all the inmates at Oak Ridge and he spends one‑fifth of his time away from the facility. Consequently the facility uses inmates on LGW's to act as therapists for one another. In the name of treatment, inmates of one of the units are forbidden to speak to each other during the course of an ordinary day.

It is my view that 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. As I stated in R. v. Turpin, 1989 98 (SCC), [1989] 1 S.C.R. 1296, at pp. 1313 and 1316:

To compel an accused to accept a jury trial when he or she considers a jury trial a burden rather than a benefit would appear, in Frankfurter J.'s words, "to imprison a man in his privileges and call it the Constitution".

. . . in the case of individual constitutional rights . . . an accused cannot be compelled to take advantage of rights intended for his or her benefit even if such rights may have a public interest aspect.

A number of writers in the United States have expressed the same view. Cohn in "Offensive Use of the Insanity Defense: Imposing the Insanity Defense Over the Defendant's Objection" (1988), 15 Hastings Const. L.Q. 295, states at p. 313:

The Constitution does not explicitly guarantee the right to select personally one's available defenses to criminal prosecution. However, the imposition of an unwanted defense contravenes the very nature of our criminal justice system. Even if the wresting of control from an accused does not violate due process per se, it violates our basic notion of a fair trial. The enumerated rights of trial by jury, confrontation of witnesses, assistance of counsel, and the right against self‑incrimination, as well as the vaguer notion of due process, are all simply accoutrements to the basic Anglo‑American concept of a fair trial as it has developed over the centuries. The right to select personally one's defenses, though not an enumerated right, is central to this idea of a fair trial. Indeed, it is inherent in our constitutional framework of criminal jurisprudence.

Cohn concludes that, subject to the traditional limitation under American law that waivers be intelligent and voluntary, a competent defendant should be able to waive a viable insanity defence just as he or she may enter a guilty plea or waive his or her constitutional right to counsel. Singer in "The Imposition of the Insanity Defense on an Unwilling Defendant" (1980), 41 Ohio St. L.J. 637, shares Cohn's opinion and also states, at p. 660, that an accused's right to enter a guilty plea or choose his or her own defences is tied in with the right to counsel. She states that if counsel for the accused has advised him or her to avoid an insanity plea for pragmatic or tactical reasons and the court refuses to accept this decision, then the accused's right to effective assistance from counsel is compromised because the court's decision negates and overrides any expert advice that counsel has given.

Also of interest in these two articles is the examination of the American case law on the subject. Both writers identify two lines of American authority. The first is found in Whalem v. United States, 346 F.2d 812 (D.C. Cir. 1965), where the court held that since society only has an interest in punishing those who are morally culpable, trial judges have a discretion to raise the defence over the objections of the defendant. On the other hand in Frendak v. United States, 408 A.2d 364 (D.C. Ct. App. 1979), the court held that the trial judge must defer to the wishes of an accused if the defence is waived "intelligently and voluntarily". 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. Other courts' responses to these two conflicting authorities have been mixed. Some jurisdictions follow Whalem and others Frendak.

I am of the view that the proper approach under our Charter is the one adopted in Frendak. I conclude, therefore, that the Court of Appeal erred in deciding that the trial judge properly allowed the Crown to raise the insanity defence over the objections of the accused. I find that doing so infringed the accused's rights under s. 7.

Section 1 of the Charter

In R. v. Edwards Books and Art Ltd., 1986 12 (SCC), [1986] 2 S.C.R. 713, this Court summarized the criteria enunciated in R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, which a proponent of a limitation on Charter rights must address. At page 768, Dickson C.J. said:

Two requirements must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society. First, the legislative objective which the limitation is designed to promote must be of sufficient importance to warrant overriding a constitutional right. It must bear on a "pressing and substantial concern". Second, the means chosen to attain those objectives must be proportional or appropriate to the ends. The proportionality requirement, in turn, normally has three aspects: the limiting measures must be carefully designed, or rationally connected, to the objective; they must impair the right as little as possible; and their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgment of rights. The Court stated that the nature of the proportionality test would vary depending on the circumstances.

It is my view that the common law rule cannot be saved under s. 1 of the Charter as a reasonable and justified limit on the accused's right to control his own defences. I fully acknowledge the importance of the concern to which the common law rule is directed, namely that insane persons not be convicted of criminal offences. I agree with Lamer C.J. that this goal is of sufficient magnitude to warrant overriding a constitutionally guaranteed right or freedom and that allowing the Crown to raise the issue of insanity during the trial is a rational means of furthering this objective. I agree with him also that there are alternative means of ensuring that the insane not be convicted which do not impinge as severely upon an accused's s. 7 rights. In my view, 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. I would respectfully agree with Professor Stuart who, commenting on the decision in Simpson in Canadian Criminal Law: A Treatise (2nd ed. 1987), states at pp. 344‑45:

Although this decision represents a most conscientious attempt to reach a wise compromise, it is submitted that the decision to allow a prosecutor to adduce the insanity evidence is unfortunate. It is difficult to understand the concern that otherwise a conviction will be registered without the appropriate defence having been tendered. Where evidence has not been led, it seems inappropriate for the judge and certainly for the prosecutor, to speculate as to what the appropriate defence should be. Allowing the prosecutor or even the judge to call evidence might well prejudice another valid defence and betray the adversary system. Surely any possibility that this might be so should be resolved by a rule in favour of the defence rather than conferring an uncertain discretion on the trial judge? There is something decidedly odd and thoroughly confusing about a prosecutor seeking to have an accused acquitted and the accused fighting strenuously to be convicted. [Citations omitted.]

I part company with the Chief Justice over the application of the minimal impairment branch of the Oakes test in the circumstances of this case. In Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927, this Court adopted a less rigorous standard of review under this branch of the proportionality test. In doing so, the Court explained why this softening of the Oakes requirement that the limit "impair as little as possible" the right in question was simply not appropriate in all cases. At page 993 Dickson C.J., Lamer J. (as he then was) and I stated:

When striking a balance between the claims of competing groups, the choice of means, like the choice of ends, frequently will require an assessment of conflicting scientific evidence and differing justified demands on scarce resources. Democratic institutions are meant to let us all share in the responsibility for these difficult choices. Thus, as courts review the results of the legislature's deliberations, particularly with respect to the protection of vulnerable groups, they must be mindful of the legislature's representative function. [Emphasis added.]

Though regard had to be paid to the vital role the legislature plays in a representative democracy, the Court nonetheless made it clear that it would not be in all cases that such deference should prevail over exacting scrutiny. At page 994 it was said:

In other cases, however, rather than mediating between different groups, the government is best characterized as the singular antagonist of the individual whose right has been infringed. For example, in justifying an infringement of legal rights enshrined in ss. 7 to 14 of the Charter, the state, on behalf of the whole community, typically will assert its responsibility for prosecuting crime whereas the individual will assert the paramountcy of principles of fundamental justice. There might not be any further competing claims among different groups. In such circumstances, and indeed whenever the government's purpose relates to maintaining the authority and impartiality of the judicial system, the courts can assess with some certainty whether the "least drastic means" for achieving the purpose have been chosen, especially given their accumulated experience in dealing with such questions.

Both of the principles articulated in Irwin Toy have been brought to bear in a unique way in this appeal. We are dealing here, not with a rule of law developed through the legislative process, but rather a common law rule created by the judiciary. In such circumstances, there is no room for deference to the legislature: the task of making "difficult choices" falls squarely on the Court. It is also important to bear in mind the nature of the right at stake in this appeal. Inasmuch as this dispute centres around the right of the prosecution to raise insanity against the wishes of the accused, we are dealing here with a situation in which the state is acting as the "singular antagonist" seeking to limit the accused's s. 7 interests.

Section 7 of the Charter guarantees everyone the right to life, liberty and security of the person and the right not to be deprived of that right except in accordance with the principles of fundamental justice. The section guarantees rights which are fundamental to any free and democratic society and, as such, cannot be easily overridden. In Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486, I expressed the view that 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. At page 523 I explained:

I say this because I do not believe that a limit on the s. 7 right which has been imposed in violation of the principles of fundamental justice can be either "reasonable" or "demonstrably justified in a free and democratic society". The requirement in s. 7 that the principles of fundamental justice be observed seems to me to restrict the legislature's power to impose limits on the s. 7 right under s. 1.

Similarly, in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 135 (SCC), [1990] 1 S.C.R. 425, I stated that it would be a rare provision which violated the principles of fundamental justice and could nevertheless be justified under s. 1.

It seems to me that in a case such as this where what is at issue is a common law rule which impinges upon a Charter guarantee central to the proper administration of the criminal justice system, it is incumbent upon the Court, in applying the minimal impairment branch of Oakes and attempting to fashion a new common law rule, to select the most constitutionally sound means possible for furthering the government's objective. This does not, of course, mean that the Court should adjudicate in a definitive way upon complex constitutional questions which are not properly before it. In practical terms, however, it does mean that it is not enough for the Court to proffer alternatives which, although they may impair the right to a lesser extent than the existing common law rule, can not themselves meet the minimal impairment test or satisfy the other branches of the Oakes inquiry. Nor will it suffice to settle upon a new common law rule which seems prima facie to fall foul of other Charter guarantees and not be justifiable as a reasonable limit under s. 1. In other words, it is my view that in a case such as the present the Court is charged with the responsibility of modifying the common law so as to make it constitutional in all its dimensions.

Before turning to alternatives to the present common law rule, there is one other aspect of this appeal which deserves mention. As noted earlier, s. 16(1) of the Code by its terms mandates an inquiry into the sanity of the accused at some point prior to the entry of a conviction. The constitutionality of this provision has not been challenged in this case. The Court must, therefore, in this case seek a modification of the common law rule which will not only be constitutional but comply with the provisions of the Criminal Code as well.

While I agree with the Chief Justice that modifying the existing common law rule so as to give the prosecution only a conditional right to introduce evidence of insanity during the course of the trial, i.e., in circumstances where the accused has himself put his mental capacity in issue, is a less intrusive means of achieving the government objective, I am not sure that such modified common law rule can itself survive full Charter scrutiny. In my view, 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 for the reasons expressed earlier. 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.

I believe, moreover, that 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. In a word, it denies them equality with other accused persons under the guise, putting it at its best, of a benign paternalism. The prosecution's conditional right will only pass constitutional muster, in my view, 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.

It seems to me that the principle advanced in support of the prosecution's right to introduce evidence of insanity can be effectively implemented by having the issue of the accused's insanity 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 I think either party should be free to raise the issue of the accused's insanity. I realize, of course, that there is an element of circularity involved in this approach in that insanity has a direct bearing on proof of mens rea. However, I prefer this approach since it both 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.

In my view, if the prosecution's right to raise the issue of the accused's insanity is confined as I have suggested, the requirements of s. 16(1) are satisfied and no infringement of the accused's trial rights under either s. 7 or s. 15 are involved. I express no opinion as to whether any other constitutional rights of the accused, other than his trial rights, are infringed by such a rule or by s. 16(1) of the Code and, if so, whether any such infringement would be saved by s. 1 since this is not, for obvious reasons, before us.

I should add that I recognize that 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. To some, no doubt, this would amount to a failure of our criminal justice system. In my view, however, 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. Section 16(1) of the Code only makes it illegal to convict an insane person of a criminal offence. The potential risk of the criminally insane eluding the reach of the criminal law remains, in other words, a matter for Parliament if it views the civil commitment procedures instituted by the provincial legislatures as inadequate for the proper protection of the public.

In conclusion, it is my view that while preventing insane persons from being convicted of criminal offences is an important objective, it is not of sufficient importance to justify overriding such a fundamental constitutional right of the accused as is in issue here, particularly where the objective can be achieved by the less intrusive means I have suggested. I would therefore allow the appeal and enter a stay of proceedings. I would answer the constitutional questions in the manner indicated by the Chief Justice.

I agree with Lamer C.J's conclusion for the reason given by him that a transitional period in the terms he has outlined is required in order to deal with the consequences of a finding by this Court that s. 542(2) of the Criminal Code is of no force or effect.

//Gonthier J.//

Gonthier J.

The reasons of La Forest and Gonthier JJ. were delivered by

Gonthier J. -- I have had the benefit of the opinions of Chief Justice Lamer and Justices Wilson and L'Heureux-Dubé. I share the conclusions of the Chief Justice and substantially agree with his reasons.

I am in agreement that what has become known as the Oakes test (R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103) provides a useful analytical framework to assess conformity of the existing common law rule to the Canadian Charter of Rights and Freedoms, but it is not a necessary one 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 is pre-eminent. Both are to be implemented to the greatest possible extent.

I would however depart from the analysis made by the Chief Justice in as much as he considers that the latter principle should not necessarily enter into the determination of a breach of fundamental justice under s. 7 of the Charter. This principle which is stated in mandatory terms in s. 16 of the Criminal Code, R.S.C. 1970, c. C-34, pertains to the integrity of the justice system itself. 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. In other words, even though this principle benefits the accused, it is not open to him to deny it effect, any more than he is entitled to assume guilt when he is innocent.

I also respectfully differ with the Chief Justice's statement that the objective of non-interference with the defence of the accused may be met by the Crown's not prosecuting. While this is factually correct, I am of the view that this answer is inappropriate. 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. This is particularly significant where the issue is clouded with uncertainty and can therefore best be resolved through the judicial process. It is akin to saying that the deficiencies, let alone the unconstitutionality of a law, can be remedied by not resorting to it. Rather, the trial process itself must allow for the recognition and implementation of the principle. I agree with the Chief Justice that this need not interfere with the conduct of the accused's defence.

I am likewise in agreement with the Chief Justice as to the flaws in the present common law rule and as to the "new common law rule" which he sets forth as best reconciling and giving effect to these two principles in a manner consistent with s. 15 of the Charter.

I also concur in his reasons and conclusions regarding the other issues in appeal. Accordingly, I would allow the appeal and enter a stay of proceedings and would answer the constitutional questions as he does.

//L'Heureux-Dubé J.//

L'Heureux-Dubé J.

The following are the reasons delivered by

L'Heureux-Dubé J. (dissenting) -- I have had the benefit of the reasons of Chief Justice Lamer and Justice Wilson but, with respect, cannot agree with them nor with the conclusion they reach. At issue in this case is the constitutionality of the legislative scheme which provides for the detention of insane acquittees (ss. 542-547 of the Criminal Code, R.S.C. 1970, c. C-34), as well as the common law rule which allows the Crown to raise evidence of insanity independently.

It is my view that the common law rule allowing the Crown to raise evidence of insanity independently is a principle of fundamental justice consonant with, and indeed, reflective of the values substantively embodied in s. 7 "principles of fundamental justice". Further, I agree with the majority of the Ontario Court of Appeal that s. 542(2) of the Criminal Code, viewed within its legislative and operative context, is also fully consistent with Charter guarantees. I am, however, in agreement with both of my colleagues' conclusion that s. 542(2) of the Criminal Code is intra vires the Parliament of Canada.

As I am in substantial agreement with the reasons of Thorson J.A., writing for the majority of the Ontario Court of Appeal, with respect to the alleged s. 7 and s. 9 violations arising out of the legislative scheme, I will focus my remarks on the constitutionality of the common law rule with but brief comments directed to the constitutionality of the legislative provisions.

Relevant Statutory Provisions

Relevant Statutory Provisions

For ease of reference, I will reproduce the law in effect at the time of trial.

Criminal Code, R.S.C. 1970, c. C-34:

542. (1) Where, upon the trial of an accused who is charged with an indictable offence, evidence is given that the accused was insane at the time the offence was committed and the accused is acquitted,

(a) the jury, or

(b) the judge or magistrate, where there is no jury,

shall find whether the accused was insane at the time the offence was committed and shall declare whether he is acquitted on account of insanity.

(2) Where the accused is found to have been insane at the time the offence was committed, the court, judge or magistrate before whom the trial is held shall order that he be kept in strict custody in the place and in the manner that the court, judge or magistrate directs, until the pleasure of the lieutenant governor of the province is known.

545. (1) Where an accused who is, pursuant to this Part, found to be insane, the lieutenant governor of the province in which he is detained may make an order

(a) for the safe custody of the accused in a place and manner directed by him, or

(b) if in his opinion it would be in the best interest of the accused and not contrary to the interest of the public, for the discharge of the accused either absolutely or subject to such conditions as he prescribes.

(2) An accused to whom paragraph (1)(a) applies may, by warrant signed by an officer authorized for that purpose by the lieutenant governor of the province in which he is detained, be transferred for the purposes of his rehabilitation to any other place in Canada specified in the warrant with the consent of the person in charge of such place.

(3) A warrant mentioned in subsection (2) is sufficient authority for any person who has custody of the accused to deliver the accused to the person in charge of the place specified in the warrant and for such last mentioned person to detain the accused in the manner specified in the order mentioned in subsection (1).

547. (1) The lieutenant governor of a province may appoint a board to review the case of every person in custody in a place in that province by virtue of an order made pursuant to section 545 or subsection 546(1) or (2).

(2) The board referred to in subsection (1) shall consist of not less than three and not more than five members of whom one member shall be designated chairman by the members of the board, if no chairman has been designated by the lieutenant governor.

(3) At least two members of the board shall be duly qualified psychiatrists entitled to engage in the practice of medicine under the laws of the province for which the board is appointed, and at least one member of the board shall be a member of the bar of the province.

(4) Three members of the board of review, at least one of whom is a psychiatrist described in subsection (3) and one of whom is a member of the bar of the province, constitute a quorum of the board.

(5) The board shall review the case of every person referred to in subsection (1)

(a) not later than six months after the making of the order referred to in that subsection relating to that person, and

(b) at least once in every twelve month period following the review required pursuant to paragraph (a) so long as the person remains in custody under the order,

and forthwith after each review the board shall report to the lieutenant governor setting out fully the results of such review and stating

(d) where the person in custody was found not guilty on account of insanity, whether, in the opinion of the board, that person has recovered and, if so, whether in its opinion it is in the interest of the public and of that person for the lieutenant governor to order that he be discharged absolutely or subject to such conditions as the lieutenant governor may prescribe,

(f) any recommendations that it considers desirable in the interests of recovery of the person to whom such review relates and that are not contrary to the public interest.

(6) In addition to any review required to be made under subsection (5), the board shall review any case referred to in subsection (1) when requested to do so by the lieutenant governor and shall forthwith after such review report to the lieutenant governor in accordance with subsection (5).

(7) For the purposes of a review under this section, the chairman of a board has all the powers that are conferred by sections 4 and 5 of the Inquiries Act on commissioners appointed under Part I of that Act.

The relevant provisions of the Canadian Charter of Rights and Freedoms are:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. Everyone has the right not to be arbitrarily detained or imprisoned.

Analysis

Analysis

The Common Law Rule

The Common Law Rule

Pivotal to the determination of the validity of the common law rule which allows the Crown to raise evidence of insanity independently, is a full discussion of what the rule is intended to achieve and the internal limits which govern its operation. The common law rule was crafted with precision: it does not operate willy-nilly in allowing the Crown to raise such evidence but, rather, operates within strict parameters. It is both informed and, conversely, limited by two principles of fundamental justice.

The two distinct principles of fundamental justice that my colleagues identify, i.e., 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. There can be no doubt that the two principles identified above are properly labelled, in the language of s. 7, "fundamental". This Court has, on numerous occasions, addressed the fundamental nature of these principles.

In Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486, Lamer J. (as he then was), discussed the principle that criminal law should not punish the innocent in these terms, at p. 492:

A law that has the potential to convict a person who has not really done anything wrong offends the principles of fundamental justice. . .

And at p. 513:

It has from time immemorial been part of our system of laws that the innocent not be punished. This principle has long been recognized as an essential element of a system for the administration of justice which is founded upon a belief in the dignity and worth of the human person and on the rule of law.

Neither can there be any doubt as to the "fundamental" nature of the principle that an accused has the right to control and make meaningful decisions about the manner in which he or she defends. As my colleague the Chief Justice notes, it is founded on respect for the autonomy of the individual as well as on the adversarial nature of our criminal justice system. The common law rule at issue here does not, in my view, violate either of these fundamental principles.

Regardless of how one chooses to label or characterize the principle that an individual should not be convicted absent fault, i.e., as one adhering to the accused or as a purely societal interest, I am not convinced that it is properly dealt with under s. 1. Since, in my view, the common law rule reflects an appropriate balance between the two principles identified above, I will necessarily address the concerns raised by them within s. 7.

In my respectful opinion, 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. I find it difficult to engage in the sifting process advocated by my colleagues. The principles of fundamental justice do not spring up independently of one another but evolve gradually in what can be seen to be a mutually nourishing process. Our legal system is not a system of rules and principles operating singly, each within its own limited sphere. Any analysis requiring an examination of these principles, be it mandated constitutionally or otherwise, must respect this integrity. In this regard, I adopt the words of La Forest J. (dissenting on other grounds) in R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, at p. 745 that "the principles of fundamental justice operate to protect the integrity of the system itself. . . ." I thus respectfully disagree with the Chief Justice's approach (at p. 000), that:

. . . the accused chose not to invoke the principle of fundamental justice that the criminal justice system not convict a person who was insane at the time of the offence. Therefore, in this case, this principle cannot be a part of the s. 7 analysis.

The common law rule in issue here has evolved in precisely the fashion alluded to above. The fundamental principles of justice that my colleagues prefer to separate from its mix, 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, in my view, consonant with the principles of fundamental justice.

The ability of the Crown to raise evidence of insanity independently appears to have been first challenged, at the appellate level, in R. v. Simpson (1977), 1977 1142 (ON CA), 35 C.C.C. (2d) 337. The rule at issue here has its genesis in the reasons of Martin J.A., for a unanimous five-member panel of the Ontario Court of Appeal. Martin J.A. prefaced and based his articulation of the rule upon a careful analysis of the arguments for and against it. He noted the concerns of defence counsel that allowing the Crown to raise evidence of insanity would prejudice an accused, concerns that are discussed at length in my colleagues' reasons. Martin J.A. also noted the fundamental tenet of criminal law that those that ought not to be held responsible for their actions should not be convicted. However, as I have mentioned above, he also recognized at p. 359 that the criminal justice system can accommodate divergent interests and that "a balance must frequently be sought and maintained between them". Moreover, he doubted, as I do, that "drastic" prejudicial consequences would ensue upon allowing the Crown to raise evidence of insanity, and he held at p. 359 that "the prosecution, in appropriate circumstances, is entitled to lead evidence that the accused was insane at the time of the act". (Emphasis added.) Martin J.A. was also well aware in his framing of the rule, that while giving voice to the principle that the criminal justice system cannot convict without fault, the rule must also protect the interests of the accused and the adversarial nature of the system in general. He addressed these concerns at p. 361:

The adversary system, in general, has served us well and I, for one, would not like to contemplate the erosion of its essential features, but I am not persuaded that the inflexible application of a rule which debars the prosecution from adducing cogent evidence of insanity in its possession, where the accused refuses to adduce it, is an essential concomitant of that system.

On the other hand, the prosecution, clearly, ought not to be entitled to bolster a weak case that the accused committed the act by weak evidence that the accused was insane, where the admission of such evidence might deprive the accused of a fair trial on the issue whether he committed the act by leading the jury to conclude that he is the sort of person likely to have committed the act charged.

Martin J.A.'s articulation of the rule, at pp. 362-63, takes into account these seemingly divergent concerns and reflects the careful balance discussed at the outset:

[A trial judge's discretion] is broad enough to permit him to exclude evidence of insanity when tendered by the prosecution unless he is satisfied that the evidence of insanity proposed to be tendered is sufficiently substantial that the interest of justice requires that it be adduced. In no case would the interest of justice require the prosecution to adduce such evidence until evidence had been previously adduced which would warrant a jury being satisfied beyond a reasonable doubt that the accused committed the act charged with the requisite criminal intent, apart from a condition of insanity.

Where the prosecution seeks to adduce that the accused was insane at the time of the act, the proper test, in my view, is not whether, if advanced by the accused, the evidence would be sufficient to require the defence of insanity to be submitted to the jury by the trial Judge, but whether it is sufficiently substantial and creates such a grave question whether the accused had the capacity to commit the offence that the interest of justice requires it to be adduced.

In any case where the prosecution adduces evidence of insanity and the accused denies the commission of the act, it is incumbent upon the trial Judge to direct the jury that they are not to consider the evidence of insanity unless and until they are satisfied beyond a reasonable doubt that the accused committed the act charged with the requisite criminal intent. [Emphasis added.]

Notably, in a revisiting of the issue in R. v. Saxell (1980), 1980 1623 (ON CA), 59 C.C.C. (2d) 176, the Ontario Court of Appeal further tightened the rule by requiring that the trial judge also direct his or her mind to "the nature and seriousness of the offence alleged to have been committed and the extent to which the accused may be a danger to the public", (per Weatherston J.A., for the majority, at p. 189).

Thus, it is plain that 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, then, 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. It is not lightly that a Court will proceed to consider evidence of insanity raised at the behest of the Crown and it is always in its discretion to exclude such evidence if it feels that the resultant prejudice to the accused would be too great. While the original formulation of the rule occurred prior to the Charter, the balance achieved by the rule is harmonious with the dictates of the Charter and, surely, 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.

This is certainly not the first time that this Court has introduced a consideration of the trial judge's discretion into the balance, in its examination of a substantive Charter guarantee, and weighed this along with the relevant "competing interests". In R. v. Corbett, supra, the issue was whether s. 12 of the Canada Evidence Act, R.S.C. 1970, c. E-10, which allows cross-examination of an accused on his or her prior criminal record, was inconsistent with the guarantee in s. 11(d) of the Charter. In concluding that no inconsistency existed, Dickson C.J., for the majority on this point, held at pp. 691-92:

The balance struck by the combination of the Canada Evidence Act, s. 12, and the requirement for a clear direction from the judge is admirably summed up in the following passage from the judgment of Martin J.A. in R. v. Davison, DeRosie and MacArthur [citation omitted] at pp. 441-42:

An accused who gives evidence has a dual character. As an accused he is protected by an underlying policy rule against the introduction of evidence by the prosecution tending to show that he is a person of bad character, subject, of course, to the recognized exceptions to that rule. As a witness, however, his credibility is subject to attack.

In my view the policy rule which protects an accused against an attack upon his character lest it divert the jury from the issue which they are called upon to decide, namely, the guilt or innocence of the accused on the specific charge before the Court, is not wholly subordinated to the rule which permits an accused who elects to give evidence to be cross-examined on the issue of his credibility. In this area of the law, as in so many areas, a balance has been struck between competing interests, which endeavours so far as possible to recognize the purpose of both rules and does not give effect to one to the total exclusion of the other.

One can now add on the accused's side of the balance the discretion in the trial judge to exclude evidence of prior convictions in those unusual circumstances where a mechanical application of s. 12 would undermine the right to a fair trial. [Emphasis added.]

Similar considerations were brought to bear in R. v. Beare; R. v. Higgins, 1988 126 (SCC), [1988] 2 S.C.R. 387, wherein La Forest J., for the Court, in his discussion of the relevance of the existence of discretion in the application of the statute, stated at p. 410 that, "[t]he existence of the discretion conferred by the statutory provisions does not, in my view, offend principles of fundamental justice".

Also pertinent to any conclusion as to the proper balance to be struck under s. 7 are considerations of the scope of the impugned rule or law. In R. v. Potvin, 1989 130 (SCC), [1989] 1 S.C.R. 525, Wilson J., for the majority, in considering whether s. 643 of the Criminal Code was inconsistent with s. 7 of the Charter in so far as it allowed the reading in of evidence given at the preliminary inquiry, found that the provision was consistent with the principles of fundamental justice as long as the accused had a full opportunity to cross-examine the witness when the previous testimony was given. She further noted at p. 545:

In any event, because s. 643(1) can only be invoked when its stringent pre-requisites are met by the party seeking to introduce the previous testimony, it is not a provision that the Crown can use at will to its advantage or as a device to protect Crown witnesses who may not prove to be credible before the trier of fact.

The same can be said of the common law rule in issue here.

Some of the Chief Justice's concerns with the scope and operation of the rule can perhaps be traced to the fact that his reasons refer exclusively to the reasons of the Ontario Court of Appeal in Saxell, supra, wherein the Court restated the rule originally formulated in Simpson, supra. To the extent that the Court in Saxell, supra, was only restating the rule (with the added requirements discussed above), it was wrong in asserting that the prosecution need only show "convincing evidence" that the accused committed the act, notwithstanding evidence of insanity. The Court in Simpson, supra, at p. 362, emphatically stated that the standard is higher and that the prosecution must adduce sufficient evidence "which would warrant a jury being satisfied beyond a reasonable doubt that the accused committed the act charged." Any other reading of the rule does not do justice to the sensitive balance achieved by the Court of Appeal in Simpson, supra. As I have made clear previously, properly interpreted and applied, the rule reflects fundamental values inherent in our system of criminal justice and balances them in a way that passes constitutional muster. This conclusion is necessarily threatened by any attempt to detract from the weight accorded to the various interests in this balance.

Thus, while an accused may be deprived of his or her liberty upon the Crown's independently raising evidence of insanity, for the above reasons this deprivation is fully consonant with principles of fundamental justice and thus no s. 7 violation is made out. Since the common law rule survives s. 7 scrutiny, there is no need to embark upon a s. 1 analysis.

Although the constitutional question was framed in reference to ss. 9 and 15 as well as s. 7 of the Charter, neither the appellant nor the respondent have addressed these additional sections in their argument and thus I will not consider these alternative grounds of constitutional invalidity.

The Legislative Scheme

The Legislative Scheme

As I stated at the outset, I am in agreement with the majority of the Court of Appeal that the legislative scheme in issue here is consistent with the guarantees set out in ss. 7 and 9 of the Charter. Therefore, I will limit myself to but brief remarks in this respect.

The legislative scheme, it will be recalled, is embodied in ss. 542-547 of the Criminal Code. In commenting upon the constitutionality of the legislative scheme, as regards s. 7 and s. 9 of the Charter, I will follow the analysis of the Chief Justice and address the issue of arbitrariness under the s. 9 Charter guarantee although the same result would necessarily obtain if the question of arbitrariness was discussed under s. 7 and measured against the principles of fundamental justice. I will deal first with the argument that the legislative scheme is procedurally unfair and thus violates the principles of fundamental justice.

In interpreting the legislative scheme in an attempt to determine its constitutionality, the words of Wilson J. in Singh v. Minister of Employment and Immigration, 1985 65 (SCC), [1985] 1 S.C.R. 177, at p. 188, are particularly appropriate:

The appellants allege that the procedural mechanisms set out in the Immigration Act, 1976, as opposed to the application of those procedures to their particular cases, have deprived them of their rights under the Charter. It is important, therefore, to understand these provisions in the context of the Act as a whole. If, as a matter of statutory interpretation, the procedural fairness sought by the appellants is not excluded by the scheme of the Act, there is, of course, no basis for resort to the Charter. [Emphasis added.]

Regard should also be had to the reasons of La Forest J. in R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309. La Forest J., for the majority, discussed the impact of s. 7 on traditional notions of procedural fairness and observed at pp. 361-62:

It is clear that, at a minimum, the requirements of fundamental justice embrace the requirements of procedural fairness . . . . It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another.

It seems to me that s. 7 of the Charter entitles the appellant to a fair hearing; it does not entitle him to the most favourable procedures that could possibly be imagined. [Emphasis added.]

While the majority of the Court of Appeal followed the blueprint outlined in these cases it did not, in coming to its conclusion that the legislative scheme was procedurally fair, direct its attention at any length to the large body of case law discussing the duties and obligations resting upon the Lieutenant Governor and the Advisory Review Board at the various points in the Code procedure. I will, therefore, refer specifically to a number of cases in this regard with a summary discussion of their findings.

While the Court of Appeal, in this case, held that the duty of the Lieutenant Governor to make an order under s. 545 arises "forthwith", as soon as is feasible in the circumstances, other courts have held, for example, that: (Saxell, supra), although the permissive word "may" is used, the Lieutenant Governor is under an obligation to make one of the orders contemplated by s. 545(1); (Re Abel and Advisory Review Board (1980), 1980 1824 (ON CA), 56 C.C.C. (2d) 153 (Ont. C.A.)), the Advisory Review Board is under a duty to act fairly and must supply to the patient and his or her counsel the facts to which it will apply its mind; (Re McCann and The Queen (1982), 1982 426 (BC CA), 67 C.C.C. (2d) 180 (B.C.C.A.)), the Order in Council Patients' Review Board, a Board analogous in function to that of the Advisory Review Board, is required to observe the requirements of procedural fairness and, therefore, must inform the patient of changes in their recommendations and the reasons therefor and give him or her a fair opportunity to address them; (Re Egglestone and Mousseau and Advisory Review Board (1983), 1983 1621 (ON SC), 42 O.R. (2d) 268 (Div. Ct.)), the Board must act fairly and the patient must have the main body of facts to which the Board "is going to apply its mind", therefore, the patient and his or her counsel must be present when the psychiatric members of the Board present their findings to the Board and, further, the Board is under a duty to disclose the information obtained by the psychiatric members of the Board; (Jollimore v. Nova Scotia (A.G.) (1986), 1986 7143 (NS SC), 75 N.S.R. (2d) 191 (N.S.S.C.)), the Lieutenant Governor is under a duty to act fairly and must advise the patient of an intended decision not to follow the recommendation of the Advisory Review Board and the patient or his or her counsel must be given an opportunity to make representations to the Lieutenant Governor in this regard; (Attorney General of Ontario v. Grady (1988), 34 C.R.R. 289 (Ont. H.C.)), the patient's right to procedural fairness was denied in that there was no evidence before the Board, falling within its jurisdiction, that would justify its conclusions and because the Board failed to provide an opportunity to speak to a disposition that did not reasonably flow from the evidence and materials before it and by appearing partial through allowing a representative of the Attorney General to make inflammatory and irrelevant remarks. Further, the patient should have been allowed to speak to an expert's proposed disposition and the Lieutenant Governor may only rely on the recommendations of the Advisory Board to the extent that they have been the product of a fair hearing.

In light of the authorities canvassed above, I agree with the reasons of the Court of Appeal on this point, that the legislative scheme does not offend the principles of fundamental justice. In this respect, Thorson J.A., for the majority of the Court of Appeal held, at pp. 408-9:

I do not accept, however, that a failure of procedural due process occurred in this case. More generally, I do not accept that either s. 542(2) or the process which it set in motion in this case does or did countenance, in the circumstances of this case, a deprivation of the right to liberty of the person, otherwise than in accordance with principles of fundamental justice.

Furthermore, should an individual be denied procedural fairness in any given case, recourse can be had to both Charter and private law remedies.

I am also in agreement with the majority of the Court of Appeal's conclusion that s. 542(2) is not arbitrary within the meaning of s. 9 of the Charter. Again, Thorson J.A. considers this matter at length and at pp. 415-16 asserts:

In my opinion, the detention authorized by s. 542(2) is not arbitrary. Some period of time is required before an assessment can be made by the authorities of the acquittee's dangerousness and his therapeutic needs. No such assessment is made at his trial. . . .

Further, the finding of not guilty by reason of insanity raises what I accept to be a reasonable concern that the accused may remain a danger to the public and in need of further treatment. Under the statute, it is only after such a finding has been made that the State acquires the right to deprive him for the time being of his liberty in order that these matters may be properly assessed, under conditions that ensure the protection of the public.

As a result of the lengthy consideration given the matter by the Court of Appeal, my comments will be limited. 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.

In addition, although the Court of Appeal lacked the guidance of recent decisions of this Court, this Court has not, in its consideration of the s. 9 Charter guarantee, articulated standards that cast doubt on the conclusion reached by the majority of the Court of Appeal in the present case. While the impugned section confers the power to detain acquittees who may not be presently dangerous or in need of treatment, it does not do so arbitrarily.

In R. v. Lyons, supra, La Forest J., in determining whether or not Part XXI of the Criminal Code was arbitrary, examined, at p. 347, the scope of the legislation and the relationship between the legislative provisions and their objectives:

However, even giving the word "arbitrary" its broadest signification, it is readily apparent that not only is the incarceration statutorily authorized, but that the legislation narrowly defines a class of offenders with respect to whom it may properly be invoked, and prescribes quite specifically the conditions under which an offender may be designated as dangerous. . . . Moreover, implicit in my discussion of the s. 12 issue is the common sense conclusion that the criteria in Part XXI are anything but arbitrary in relation to the objectives sought to be attained; they are clearly designed to segregate a small group of highly dangerous criminals . . . . [Emphasis added.]

In R. v. Hufsky, 1988 72 (SCC), [1988] 1 S.C.R. 621, Le Dain J., for the Court, framed the inquiry in these words at p. 633:

Although authorized by statute and carried out for lawful purposes, the random stop for the purposes of the spot check procedure nevertheless resulted, in my opinion, in an arbitrary detention because there were no criteria for the selection of the drivers to be stopped and subjected to the spot check procedure. The selection was in the absolute discretion of the police officer. A discretion is arbitrary if there are no criteria, express or implied, which govern its exercise. [Emphasis added.]

Regard should also be had to the words of La Forest J. in R. v. Beare; R. v. Higgins, supra. La Forest J. addressed the question of whether, due to their arbitrary operation, certain provisions respecting fingerprinting, found in the Identification of Criminals Act and the Criminal Code, violated the principles of fundamental justice. Important in his analysis were considerations of the scope of the legislation and the nature of the individuals subject to it. At pages 408-9 La Forest J. held:

The legislation is not arbitrary in its scope. The Identification of Criminals Act and ss. 453.3(3) and 455.5(5) of the Criminal Code do not create an arbitrary or irrational statutory scheme. They apply only with respect to three categories of accused persons who have not been convicted of an indictable offence:

The impugned provisions, therefore, operate only with respect to indictable offences which, obviously, constitute the most serious category of criminal offences. Moreover, with respect to each class of accused there must be reasonable and probable grounds to believe that the persons involved have committed an indictable offence. [Emphasis added.]

Similarly, the impugned legislation in the instant case operates in a restricted fashion and applies only to insane acquittees charged with an indictable offence. Further, the trial judge, has a discretion as to the place and the manner of the initial detention.

The last case I will mention in this regard is R. v. Luxton, 1990 83 (SCC), [1990] 2 S.C.R. 711, wherein Lamer C.J., for the majority, found, at pp. 722-23, that s. 669 of the Criminal Code, which imposed a mandatory term of imprisonment for those convicted of first degree murder, was not arbitrary because:

. . . Parliament has narrowly defined a class of murderers under an organizing principle of illegal domination and has specifically defined the conditions under which the offender can be found guilty of first degree murder. . . . The decision of Parliament to attach a minimum 25-year sentence without eligibility for parole in cases of first degree murder, having regard to all these circumstances, cannot be said to be arbitrary. . . . The incarceration is statutorily authorized, it narrowly defines a class of offenders with respect to whom the punishment will be invoked and it prescribes quite specifically the conditions under which an offender may be found guilty of first degree murder. [Emphasis added.]

It is clear then, that one must look at the operation of the provision in question in its entire context. In this light, contrary to the assertions of the Chief Justice, the criteria, that the Crown respondent contends inform the s. 542(2) detention decision, are not irrelevant to the s. 9 inquiry. Indeed, these criteria typify the kinds of considerations that this Court has determined to be important in assessing whether the government has acted arbitrarily. "[H]aving regard to all these circumstances", (per Lamer C.J. in Luxton, supra), and, for the reasons expressed by Thorson J.A. for the majority of the Court of Appeal, the impugned legislative provision does not operate arbitrarily and, consequently, the detention of the appellant here was not arbitrary.

Before finally disposing of this case, I would like to make some brief comments about the legislation challenged in this case. In attempting to address the unique position of the insane acquittee, Parliament has set up a comprehensive system of assessment and review. Mere literal reference to the text of the Criminal Code goes only a short distance towards an understanding of its working and its practical complexity. While I am by no means suggesting that Parliament has devised the best or the most sophisticated scheme, and while the reform suggestions made by the Law Reform Commission may have merit, Parliament has, in the context of the issues raised in this case, made constitutionally permissable choices. In any evaluation of complex legislative schemes, such as the one here, the judiciary has an obligation to respect the integrity of the scheme and to measure it against constitutional guarantees with this integrity in mind. This is especially the case in situations where, as here, difficult predictive and treatment decisions are involved. In the absence of some constitutional imperative, and there is none here, and however desirable certain changes may be, this Court cannot act as a "super legislature" and tinker with a legitimate legislative scheme. In light of the complex structure provided by Parliament, any redrafting of the legislation is properly left to reform and legislative bodies.

Disposition

Disposition

In light of the above, I would dismiss the appeal and answer the constitutional questions as follows:

Question 1:Is s. 542(2) of the Criminal Code of Canada intra vires the Parliament of Canada?

Answer:Yes.

Question 2:Do the common law criteria, enunciated by the Ontario Court of Appeal, permitting the Crown to adduce evidence of an accused's insanity, violate ss. 7, 9, and 15 of the Canadian Charter of Rights and Freedoms?

Answer:No, the common law criteria do not limit s. 7 of the Canadian Charter of Rights and Freedoms. It is not necessary to answer this question with respect to ss. 9 and 15 of the Canadian Charter of Rights and Freedoms.

Question 3:If the answer to question 2 is affirmative, are the common law criteria, enunciated by the Ontario Court of Appeal, permitting the Crown to adduce evidence of an accused's insanity, justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?

Answer:This question does not have to be answered.

Question 4:Does the statutory power to detain a person found not guilty by reason of insanity, pursuant to s. 542(2) of the Criminal Code of Canada violate ss. 7 and 9 of the Canadian Charter of Rights and Freedoms?

Answer:No.

Question 5:If the answer to question 4 is affirmative, is the statutory power to detain a person found not guilty by reason of insanity, pursuant to s. 542(2) of the Criminal Code of Canada, justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?

Answer:This question does not have to be answered.

Appeal allowed, L'Heureux-Dubé J. dissenting. 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.

Solicitors for the appellant: Ruby & Edwardh, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.

Solicitor for the intervener the Attorney General of Canada: John C. Tait, Ottawa.

Solicitors for the intervener the Lieutenant Governor's Board of Review of Ontario: Hughes, Amys, Toronto.

Solicitors for the interveners the Canadian Disability Rights Council, the Canadian Mental Health Association and the Canadian Association of Community Living: British Columbia Public Interest Advocacy Centre, Vancouver.

• Chief Justice at the time of judgment.