R. v. Swain
Encyclopedia
R. v. Swain, [1991] 1 S.C.R. 933 is a leading constitutional decision of the Supreme Court of Canada
on certain rights of the mentally ill in their criminal defence. The case concerned a constitutional challenge of the common law
rule permitting the Crown
to adduce evidence of an accused's insanity and section 542(2) of the Criminal Code
, which allowed for the indeterminate detention of an accused who is found not guilty by reason of mental incapacity. The Court held that both the common law rule and the Code provision were unconstitutional. As a result, the Court created a new common law rule that was constitutional, and Parliament
created new laws of what to do with individuals who were found not crimnally responsible by reason of a mental disorder
. The parties to the case were the appellant, Swain, the respondent, the Crown, and the following interveners: 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 Canadidan Association of Community Living.
and aggravated assault. Later at the trial for the charges, Swain's wife testified that Swain was "fighting the air" and talking about spirits. Swain testified that at the time of the incident, he believed that his wife and children were being attacked by devils, and that he had to protect them.
On November 1, 1983, Swain was transferred from jail to a mental health centre, where he was observed to be acting in a bizarre manner. He was prescribed with antipsychotic
medications, and his condition improved rapidly. Swain was granted bail
, released into the community, and continued to take his medication and see a psychiatrist
. Swain remained out of custody until the conclusion of his trial.
).
Applying the appropriate common law rule at the time, the court allowed the Crown to adduce evidence of Swain's insanity at the time of the alleged offence, over defence counsel's objections. At the end of the trial, Swain was found not guilty by reason of insanity
.
As a result of the court's finding, the Criminal Code of Canada
at the time required that the person be held in custody until the Lieutenant Governor of the Province
(i.e. the executive branch of the provincial government
) decides to release him.
Defence counsel challenged the constitutionality of that provision, on the basis that it violated the Canadian Charter of Rights and Freedoms
. On June 10, 1985, the trial judge found that the provisions were constitutional, and ordered that Swain be detained until the Lieutenant Governor's wishes were known.
On June 12, 1985, the Lieutenant Governor issued a warrant further detaining Swain to be held in safe custody in a mental health hospital for assessment, and to report to the Advisory Review Board in 30 days. Neither Swain nor his counsel were notified about the decision, or given an opportunity to make submissions.
The review hearing was held on July 26, 1985, which Swain and his counsel were present at. On August 6, 1985, the Board advised that Swain be held in safe custody in a mental health centre, and that the director of the centre have discretion to allow Swain to re-enter the community with conditions regarding supervision and follow-up treatment. The recommendation was not initially released to Swain or his counsel.
Swain's counsel requested to make submissions before the Lieutenant Governor at the time when the Board's recommendation was made, but before the Lieutenant Governor made a decision. The request was denied.
The Lieutenant Governor issued a warrant for Swain to be held in custody with the conditions recommended by the Board. That was the first time Swain or his counsel were advised what the Board's recommendation was.
wrote the majority opinion, 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.
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 alnernatives 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.
). Since the Criminal Code of Canada is legislated by the federal government, 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.
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.
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.
.
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.
The insanity defence was replaced with being found not criminally responsible by reason of a mental disorder"
.
If a person was "not criminally responsible", the court is no longer required to automatically detain the person. Instead, the court can enter their own disposition or refer the person to the independent Review Board for disposition. The possible dispositions are: detention in hospital, conditional discharge, or absolute discharge. The new legislation requires that the least restrictive or onerous disposition be imposed, bearing in mind public safety, the mental condition of the accused, and the goal of reintegration into society. The role of the Lieutenant Governor in these decisions was abolished, and their decision-making duties were transferred to the Review Boards.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
on certain rights of the mentally ill in their criminal defence. The case concerned a constitutional challenge of the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
rule permitting the Crown
Crown Attorney's Office (Ontario)
The term Crown Attorney's Office is the title for the various public prosecution offices under the jurisdiction of the province of Ontario. Each Ontario Superior Court of Justice has its own Crown Attorney's Office, which conducts all criminal trial prosecutions and summary conviction appeals for...
to adduce evidence of an accused's insanity and section 542(2) of the Criminal Code
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
, which allowed for the indeterminate detention of an accused who is found not guilty by reason of mental incapacity. The Court held that both the common law rule and the Code provision were unconstitutional. As a result, the Court created a new common law rule that was constitutional, and Parliament
Parliament of Canada
The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
created new laws of what to do with individuals who were found not crimnally responsible by reason of a mental disorder
Mental disorder defence
In the criminal laws of Australia and Canada, the defence of mental disorder is a legal defence by excuse, by which a defendant may argue they should not be held criminally liable for breaking the law because they were mentally ill at the time of the alleged criminal actions.These are a statutory...
. The parties to the case were the appellant, Swain, the respondent, the Crown, and the following interveners: the Attorney General of Canada, the Lieutenant Governor's Board of Review of Ontario, the Canadian Disability Rights Council, the Canadian Mental Health Association
Canadian Mental Health Association
The Canadian Mental Health Association was founded on January 26, 1918 by Dr. Clarence M. Hincks and Clifford W. Beers. Originally named the Canadian National Committee for Mental Hygiene, it is one of the oldest voluntary health organizations still operating in Canada.Each year, CMHA divisions...
, and the Canadidan Association of Community Living.
Background
In October 1983, Owen Swain was arrested for attacking his wife and children in a bizarre manner, and was charged with assaultAssault
In law, assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more...
and aggravated assault. Later at the trial for the charges, Swain's wife testified that Swain was "fighting the air" and talking about spirits. Swain testified that at the time of the incident, he believed that his wife and children were being attacked by devils, and that he had to protect them.
On November 1, 1983, Swain was transferred from jail to a mental health centre, where he was observed to be acting in a bizarre manner. He was prescribed with antipsychotic
Antipsychotic
An antipsychotic is a tranquilizing psychiatric medication primarily used to manage psychosis , particularly in schizophrenia and bipolar disorder. A first generation of antipsychotics, known as typical antipsychotics, was discovered in the 1950s...
medications, and his condition improved rapidly. Swain was granted bail
Bail
Traditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail...
, released into the community, and continued to take his medication and see a psychiatrist
Psychiatrist
A psychiatrist is a physician who specializes in the diagnosis and treatment of mental disorders. All psychiatrists are trained in diagnostic evaluation and in psychotherapy...
. Swain remained out of custody until the conclusion of his trial.
Trial
Swain's trial took place on May 3, 1985 in the District Court of Ontario (which later became part of what is now known as the Ontario Superior Court of JusticeOntario Superior Court of Justice
The Superior Court of Justice is the superior court of general jurisdiction for the Province of Ontario, Canada. It is the successor to the former Ontario Court of Justice , and was created on April 19, 1999...
).
Applying the appropriate common law rule at the time, the court allowed the Crown to adduce evidence of Swain's insanity at the time of the alleged offence, over defence counsel's objections. At the end of the trial, Swain was found not guilty by reason of insanity
Insanity defence
In criminal trials, the insanity defense is where the defendant claims that he or she was not responsible for his or her actions due to mental health problems . The exemption of the insane from full criminal punishment dates back to at least the Code of Hammurabi. There are different views of the...
.
As a result of the court's finding, the Criminal Code of Canada
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
at the time required that the person be held in custody until the Lieutenant Governor of the Province
Lieutenant Governor (Canada)
In Canada, a lieutenant governor is the viceregal representative in a provincial jurisdiction of the Canadian monarch and head of state, Queen Elizabeth II, who resides predominantly in her oldest realm, the United Kingdom...
(i.e. the executive branch of the provincial government
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
) decides to release him.
Defence counsel challenged the constitutionality of that provision, on the basis that it violated the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. On June 10, 1985, the trial judge found that the provisions were constitutional, and ordered that Swain be detained until the Lieutenant Governor's wishes were known.
Subsequent detention
Swain immediately filed for an appeal to the Court of Appeal for Ontario, and applied for bail pending appeal. The appeal judge hearing the bail application adjourned the application to permit an early hearing by the committee that advises the Lieutenant Governor concerning the detention of individuals found not guilty by reasons of insanity (the Advisory Review Board).On June 12, 1985, the Lieutenant Governor issued a warrant further detaining Swain to be held in safe custody in a mental health hospital for assessment, and to report to the Advisory Review Board in 30 days. Neither Swain nor his counsel were notified about the decision, or given an opportunity to make submissions.
The review hearing was held on July 26, 1985, which Swain and his counsel were present at. On August 6, 1985, the Board advised that Swain be held in safe custody in a mental health centre, and that the director of the centre have discretion to allow Swain to re-enter the community with conditions regarding supervision and follow-up treatment. The recommendation was not initially released to Swain or his counsel.
Swain's counsel requested to make submissions before the Lieutenant Governor at the time when the Board's recommendation was made, but before the Lieutenant Governor made a decision. The request was denied.
The Lieutenant Governor issued a warrant for Swain to be held in custody with the conditions recommended by the Board. That was the first time Swain or his counsel were advised what the Board's recommendation was.
Court of Appeal
The appeal to the Court of Appeal was heard in early September, 1985. A majority of the Court dismissed Swain's appeal.Discharge
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.Reasons of the Supreme Court of Canada
Chief Justice LamerAntonio Lamer
Joseph Antonio Charles Lamer, PC, CC, CD was a Canadian lawyer, jurist and Chief Justice of the Supreme Court of Canada.-Personal life:...
wrote the majority opinion, allowing Swain's appeal. Two separate decisions concurring with the majority's final decision were released by Gonthier
Charles Gonthier
Charles Doherty Gonthier, was a Puisne judge on the Supreme Court of Canada from February 1, 1989 to August 1, 2003. He was replaced by Morris Fish.-Early life:...
and Wilson
Bertha Wilson
Bertha Wernham Wilson, CC was a Canadian jurist and the first woman Puisne Justice of the Supreme Court of Canada.-Early life:...
JJ. The sole dissenting judge was L'Heureux-Dubé
Claire L'Heureux-Dubé
Claire L'Heureux-Dubé, served as a justice on the Supreme Court of Canada from 1987 to 2002. She was the first woman from Quebec and the second woman appointed to this position.- Personal history :...
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
Alibi
Alibi is a 1929 American crime film directed by Roland West. The screenplay was written by West and C. Gardner Sullivan, who adapted the 1927 Broadway stage play, Nightstick, written by Elaine Sterne Carrington, J.C...
. 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
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
. 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
R. v. Oakes
R. v. Oakes [1986] 1 S.C.R. 103 is a case decided by the Supreme Court of Canada which established the famous Oakes test, an analysis of the limitations clause of the Canadian Charter of Rights and Freedoms that allows reasonable limitations on rights and freedoms through legislation if it can be...
for a justified limitation of the Charter under section one of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
. 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
Trier of fact
A trier of fact is a person, or group of persons, who determines facts in a legal proceeding, usually a trial. To determine a fact is to decide, from the evidence, whether something existed or some event occurred.-Juries:...
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
Section Fifteen of the Canadian Charter of Rights and Freedoms
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...
(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 alnernatives 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 federalismCanadian federalism
Canada is a federation with two distinct jurisdictions of political authority: the country-wide federal government and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government...
). Since the Criminal Code of Canada is legislated by the federal government, 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.
The majority found that the pith and substance
Pith and substance
Pith and substance is a legal doctrine in Canadian constitutional interpretation used to determine under which head of power a given piece of legislation falls...
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 do not 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
Section Nine of the Canadian Charter of Rights and Freedoms
Section Nine of the Canadian Charter of Rights and Freedoms, found under the "Legal rights" heading in the Charter, guarantees the right against arbitrary detainment and imprisonment...
.
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 proceedingsStay of proceedings
A stay of proceedings is a ruling by the court in civil and criminal procedure, halting further legal process in a trial. The court can subsequently lift the stay and resume proceedings. However, a stay is sometimes used as a device to postpone proceedings indefinitely.-United Kingdom:In United...
.
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
As a result of the legislative scheme being struck down, Parliament created a new legislative scheme in 1992.The insanity defence was replaced with being found not criminally responsible by reason of a mental disorder"
Mental disorder defence
In the criminal laws of Australia and Canada, the defence of mental disorder is a legal defence by excuse, by which a defendant may argue they should not be held criminally liable for breaking the law because they were mentally ill at the time of the alleged criminal actions.These are a statutory...
.
If a person was "not criminally responsible", the court is no longer required to automatically detain the person. Instead, the court can enter their own disposition or refer the person to the independent Review Board for disposition. The possible dispositions are: detention in hospital, conditional discharge, or absolute discharge. The new legislation requires that the least restrictive or onerous disposition be imposed, bearing in mind public safety, the mental condition of the accused, and the goal of reintegration into society. The role of the Lieutenant Governor in these decisions was abolished, and their decision-making duties were transferred to the Review Boards.