CRM 3311 Chapter Notes - Chapter 16: Indictable Offence, Mental Disorder, Fundamental Justice
25 Nov 2018
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(16) The Insanity Defence in Canada: Setting a New Course (Verdun-Jones, 1994)
The Case of Regina v. Swain (1991): The Disposition of Those Acquitted by Reason
of Insanity
• The Supreme Court of Canada struck down (what was then) section 614(2) of the
Code, which provided for the automatic detention in custody of any defendant
acquitted by reason of insanity of an indictable offence. (176)
o The trial judge had no discretion but to order that the accused be kept “in
strict custody” until the “pleasure of the lieutenant governor of the
province is known.” Such individuals could only be released by a decision
of the government. (176)
o Although each province had a review board that periodically examined the
cases of all those held under such warrants, the role of such boards was
purely advisory and their advice might be ignored by the government of
the day. (176)
o It infringed the rights protected by sections 7 and 9 of the Charter.
▪ Section 7 safeguards “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”. (176)
▪ Section 9 enshrines “the right not to be arbitrarily detained or
imprisoned”. (176)
The Parliamentary Response to Swain: Amendments to the Criminal Code
• The amendments created a “verdict of not criminally responsible on account of
mental disorder,” (NCRMD) which is defined as “a verdict that the accused
committed the act or made the omission” that formed the basis of the offence with
which the accused is charged “but is not criminally responsible on account of
mental disorder”. The term, “mental disorder” is simply defined as “a disease of
the mind. (177)
• The amendments require the establishment of review boards in each province.
These tribunals will now take over the primary responsibility for deciding
whether an NCRMD acquittee should be detained and, if so, for how long. (178)
o It must choose the disposition that is “the least onerous and least
restrictive to the accused”. (179)
o The possible dispositions are an absolute discharge, a discharge on
conditions, or an order for holding the accused person in custody in a
hospital. (179)
▪ Treatment can not be imposed as a condition of release or as part
of a custodial order. (179)
o Permits the accused person to appeal to the provincial court of appeal
against the disposition. (179)
o Provides for a cap to be set on the period during which an NCRMD
acquittee may be detained. The caps are related to the seriousness of the
offence in relation to which the accused has been found not criminally
responsible. (179-180)
