Chief Justice Lamer wrote the majority decision, allowing Swain's appeal. Two separate decisions concurring with the majority's final decision were released by
Gonthier and
Wilson JJ. The sole dissenting judge was
L'Heureux-Dubé J.
Crown adducing evidence of insanity At the time of the case, Canadian common law allowed the Crown to adduce evidence of an accused person's insanity at the time of the alleged offence during the Crown's case over the objections of the accused. The majority found that a principle of
fundamental justice required an accusatorial and adversarial criminal justice system, founded on respect for the autonomy and dignity of human beings. Therefore, the same principle required that an accused person has the right to control his or her own defence (assuming the person is found
fit to stand for trial). The majority found that since the defence of insanity is an exemption to criminal liability, based on not being capable to form the criminal intent, it is a defence to the criminal charge, and therefore should not be interfered with by the Crown. The majority went on to find that if the Crown independently raised the defence of insanity, it could be inconsistent with the defence an accused person intends to rely on, putting the accused in a position of having to argue inconsistent defences. For example, the defence of insanity could be inconsistent with the defence of
alibi. It could also undermine the accused's credibility with the jury, due to the stigma associated with the mentally ill. The majority also concluded that the accused's right to control their own defence is not an absolute right. For example, if an accused person puts their mental health at issue without going so far as to claim the defence of insanity, the Crown is entitled to "complete the picture". The majority agreed with the Crown that the principles of fundamental justice also required that a person who was insane at the time of an offence not be convicted of that offence. However, the majority found that still did not excuse breaching another principle of fundamental justice. Since the common law rule caused an accused person to lose their liberty, and since it violated a principle of fundamental justice, the majority found that the common law rule infringed
section seven of the Canadian Charter of Rights and Freedoms. The majority did not need to decide whether it also violated other sections of the
Charter. The majority went on to find that the common law rule failed the
Oakes test for a justified limitation of the
Charter under
section one of the Canadian Charter of Rights and Freedoms. Specifically, although the objective justified the limitation (avoiding convicting a person who was insane at the time of the offence but refuses to raise the issue, and protecting the public from mentally ill people who require treatment), and there was a rational connection between the objective and the means to carry out that objective, the means was not minimally intrusive of the
Charter right being violated. As a result, the majority created a new common law rule that was minimally intrusive. The new rule only allows two instances of when the Crown can lead evidence of insanity. The first instance is when the
trier of fact has concluded beyond a reasonable doubt that the accused is otherwise guilty of the charges before the court (as it will no longer interfere with the accused's other defences). The second instance is if the accused's own defence has put his or her mental capacity for criminal intent at issue. The majority also concluded that the new common law rule would not infringe
section 15 of the Canadian Charter of Rights and Freedoms (the equality section). This was because the new rule would not treat the mentally ill unequal in the courts, and would not create new burdens on the mentally ill. In her concurring judgment, Wilson J. reached a similar reasoning with the majority, and agreed with the new common law rule. In his concurring judgment, Gonthier J. agreed with the majority's conclusions and the new rule, but disagreed with some of the alternatives considered by the majority. In her dissenting judgement, L'Heureux-Dubé J. found that the old common law rule did not infringe sections 7 or 15 of the
Charter, and in fact was reflective of the principles of fundamental justice.
Federalism In Canadian law, the federal and provincial governments have exclusive authority to legislate in certain areas (see
Canadian federalism). Since the
Criminal Code is a federal statute, an issue was whether the provision requiring the automatic detention by a person found not guilty by reason of insanity - until released by the Lieutenant Governor - was outside the federal government's authority to legislate, or whether it fell within provincial jurisdiction over health matters. The majority found that the
pith and substance of the provision was "to protect society against dangerous individuals". A preventative law such as this was considered to be a valid part of criminal law, which the exclusive authority of the federal government. The majority felt it was important to note that the legislative provisions dealt with
supervision of the person, not
treatment of the person, and the focus was on what was in the interests of the public. In their concurring judgments, Wilson and Gonthier JJ. agreed with the majority's decision. Although dissenting in other areas, L'Heureux-Dubé J. agreed with the majority on this point.
Constitutionality of automatic detention The majority found that the legislative provisions gave no discretion to the trial judge. Instead, the provisions required the judge to order the person's detention without any hearing on the issue of the person's mental state. Subsequent hearings cannot change that fact. Since the detention is automatic with no standards or criteria that can be applied, the majority found that the law was arbitrarily detaining individuals, and violated
section nine of the Canadian Charter of Rights and Freedoms. The majority went on to find that the legislation failed the
Oakes test for a justified limitation of the
Charter under section one of the
Canadian Charter of Rights and Freedoms. Specifically, although all the parties agreed that the objective was substantial (detaining individuals who may be dangerous due to their mental health), and that there is a rational connection between the objective and the means, it was not minimally intrusive. The majority noted that there was no minimum time before the Lieutenant Governor was required to make their decision known. In fact, the legislation does not require the Lieutenant Governor to ever make an order. The majority felt that minimally intrusiveness required that a person be held no longer than necessary to determine their mental state. In her concurring judgment, Wilson J. agreed with the majority's conclusion, but disagreed with a comment made by the majority that there is a presumption that discretion conferred by statute would be exercised in a manner that is in compliance with the
Charter. In his concurring judgment, Gonthier J. agreed with the majority. In her dissenting decision, L'Heureux-Dubé J. found that the legislative scheme was constitutional.
Disposition As a result of the majority's findings, Swain's finding of not guilty by reason of insanity was overturned. While normally a new trial should be ordered, the specific circumstances in this case did not warrant it: Swain had been acquitted (by reason of insanity) and had been absolutely discharged. A new trial would be unfair to Swain, but entering a full acquittal would also be inappropriate. Therefore, the court entered a judicial
stay of proceedings. Although the court's reasons found that the legislative scheme was unconstitutional, and therefore of no force and effect, the majority crafted a six-month transitional period to allow Parliament to create a new legislative scheme. The period was extended by the court to February 5, 1992. ==Aftermath==