R v Swain

Details of the Case

Owen Swain

- In October of 1983, Owen Swain was arrested and charged for assault and aggravated assault.

He assaulted his wife and family in a bizarre manner.

- During the assault he was swinging at the air and was talking about spirits

- On November 1st he was transferred from Toronto jail to a mental health care where he was prescribed antipsychotic medication

- By December 19, 1983 Swain was released into the community on the condition that he would continue to see a psychiatrist.

Appeal

Trial

• 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

• At the conclusion of the trial, Mr. Swain was found not guilty by reason of insanity on all counts

Trial (cont.)

Trial (cont.)

• Defence counsel then moved to have s. 542 of the Criminal Code of Canada declared inoperative on the basis that it violated the Charter.

• The judge ruled that Swain’s constitutional rights were not infringed by s. 542

• Swain was held in a metal health care centre until the lieutenant governor’s pleasure was known

Appeal

Appeal

• Swain filed for an appeal to the Court of Appeal for Ontario.

• The appeal judge permitted for an early hearing with the Advisory Review Board

• On June 12, 1985, the Lieutenant Governor issued a warrant further detaining Mr Swain in safe custody in a mental hospital for assessment and report to the Advisory Review Board within 30 days.

• Neither Swain nor his council were notified about the decision.

Appeal (cont.)

Appeal

• On August 6, 1985, the Board advised that Swain be held in safe custody in a mental health centre, and allow Swain to re-enter the community with conditions regarding supervision and follow-up treatment, which was not initially released to Swain or his counsel.

• The Lieutenant Governor issued a warrant for Swain to be held incostody based upon the recommendations of the board.

• That was the first time Swain or his counsel were advised what the Board's recommendation was.

Conclusion of Appeal

Conclusion of Appeal

• The appeal to the Court of Appeal was finally heard in early September, 1985. A majority of the Court dismissed Swain's appeal.

• On September 4, 1986, the Lieutenant Governor ordered that the warrant for Swain to be held in custody be vacated, and that Swain be discharged absolutely.

Canadian Charter of Rights and Freedoms

Ss. 7 Canadian Charter of Rights and Freedoms

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.

Ss. 9 Canadian Charter of Rights and Freedoms

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

CCRF

Criminal Code

Criminal Code

Criminal code part XX.1 672.34

Where the jury, or the judge or provincial court judge where there is no jury, finds that an accused committed the act or made the omission that formed the basis of the offence charged, but was at the time suffering from mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), the jury or the judge shall render a verdict that the accused committed the act or made the omission but is not criminally responsible on account of mental disorder.

Criminal code subsection 16 (1)

No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

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Terminology

Terms

• Intra Vires: within the legal power or authority or a person or official or body etc

• Detain - to hold or keep in or as if in custody

• Statutory - enacted, created, or regulated by statute

• Arbitrary Detention - the detention of an individual in a case where there is no likelihood/evidence that they committed a crime or there has been no proper due process of law

Issues

Issues Brought Up

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?

Other Legal Issues

Additional Issues

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?

)

Majority Decision

(Supreme Court of Canada

-Majority found that Crown’s adducing of evidence violated Section 7 of CCRF

-Did not have to evaluate is section 9 and 15 were also violated because of the aforementioned

- Found that automatic detention also violated s7 because it was done before any medical examination

-Crown’s insertion of insanity plea would of been fine if it was done before incarceration

-New trial would of been ordered but was not fair to Mr. Swain

Minority(Supreme Court of Canada)

Title

-Thought nothing in the Charter was violated.

-Used the same reasoning as Ontario Court of Appeal

Conclusion

Conclusion

This case helped to highlight how the Crown’s over eagerness to project marginalized groups(in this case the mentally ill) can violate their fundamental rights and resulted in the changing of laws in order to better avoid such violations and make our judicial system fairer.

Bibliography

Bibliography

• Canada, R. v. Swain, www.hrcr.org/safrica/enforcement/r_swain.html.
• “Early History of Mental Illness and the Criminal System - Doc Zone - CBC-TV.” CBCnews, CBC/Radio Canada, www.cbc.ca/doczone/features/early-history-of-mental-illness-and-the-criminal-system.
• “Judgement's of the Supreme Court of Canada.” R. v. Swain - SCC Cases (Lexum), scc-csc.lexum.com/scc-csc/scc-csc/en/item/753/index.do.
• Pilon, Marilyn. “Mental Disorder and Canadian Criminal Law.” Mental Disorder and Canadian Criminal Law (PRB 99-22E), 5 Oct. 1999, publications.gc.ca/Collection-R/LoPBdP/BP/prb9922-e.htm.
• “R v Swain.” Global Health and Human Rights Database, www.globalhealthrights.org/health-topics/mental-health/r-v-swain/.
• “R. v. Swain, 5 CR (4th) 253.” VLex, ca.vlex.com/vid/r-v-swain-680602377.

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