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Supreme Court to consider whether Ontario man can use ‘extreme intoxication’ as defence in killing

The case touches on how to balance the rights of the accused with those of the public, and core criminal law principles with public policy concerns

PHOTO: CHAN FAMILY, Thomas Chan, second from left, and Andrew Chan at right in 2014

TORONTO — The basic facts of the case aren’t in dispute. In December 2015, Thomas Chan gathered with some pals in his mother’s basement and consumed magic mushrooms. He’d done so on a few occasions before without incident. Failing to get high, he used more.

Soon, he began speaking in gibberish. He called his mother and sister “Satan” and “the devil.”

Chan, then a 19-year-old student, wandered to the home in Peterborough, Ontario, where his father lived. They enjoyed a good relationship. But Chan, proclaiming he was doing God’s will, broke in, grievously wounded his father’s partner and stabbed Andrew Chan as the father tried to get his son to recognize him: “Thomas, it’s Daddy, it’s Daddy,” he said. The gastroenterologist died in the attack.

An Ontario trial judge found that Chan, with no apparent rational motive for the attack, had been in a drug-induced, “not reasonably foreseeable” psychosis that rendered him incapable of knowing that his actions were wrong, or of reasonably controlling them.

But he convicted him of manslaughter and aggravated assault, in part because a federal law bars defendants who are accused of some violent crimes from arguing that they were in the grips of voluntary intoxication so extreme that it amounted to automatism, leaving them incapable of voluntary action or of forming intent to commit the act.

Now Chan’s case is before the Supreme Court of Canada, which heard arguments on Tuesday. The main questions before the justices are whether that law is constitutional, and if not, whether the limits it places on a suspect’s ability to defend himself or herself are nevertheless justified.

He is a good kid who got super high and did horrific things.

Those issues have split lower courts across the country — and the public.

Chan’s case was heard with that of David Sullivan, who, in 2013, took as many as 80 tablets of the prescription drug Wellbutrin in a suicide attempt. He experienced a break with reality and stabbed his mother, thinking she was an alien. The trial judge found his acts were involuntary. He convicted him of several assault charges.

Lisa Silver, a law professor at the University of Calgary, said the case is being closely watched because the issue is “overdue for clarity.”

“There are fundamental criminal law principles that are at stake here.”

The case touches on how to balance the rights of the accused with those of the public, and core criminal law principles with public policy concerns. The questions — and the controversies — date back decades.

In 1989, Henri Daviault threw a 65-year-old woman who uses a wheelchair onto a bed and sexually assaulted her. In the preceding hours, he had consumed several beers and most of a bottle of brandy. Daviault, who suffered from alcoholism, said he had no recollection of the attack.

His case went to the Supreme Court of Canada. In 1994, it ruled that Daviault had the right to raise as a defence that he was in a state of intoxication so extreme that it was akin to automatism or insanity, making him incapable of acting voluntarily or of possessing the guilty mind needed for conviction.

Until then, those accused of “general intent” offences, such as sexual assault, for which prosecutors have to prove only intent to commit the act, had been unable to use extreme intoxication as a defence. It was reserved for “specific intent” offences, such as murder, where prosecutors had to prove also that the accused intended the specific result of the act, though in those cases it often reduces liability.

A police cruiser sits in front of the house where Andrew Chan was killed, Dec. 28, 2015 in Peterborough, Ont.
A police cruiser sits in front of the house where Andrew Chan was killed, Dec. 28, 2015 in Peterborough, Ont. PHOTO BY JASON BAIN/POSTMEDIA/FILE

The court found that rule unconstitutional and ordered a new trial for Daviault.

“The mental aspect of an offence has long been recognized as an integral part of crime,” Justice Peter Cory wrote in the 6-3 decision, “and to eliminate it would be to deprive an accused of fundamental justice.”

The court said the defence was “likely” to be available only in “rare” cases, and successful in even fewer of them.

It ultimately went untested in Daviault’s case. A Quebec judge found that a new trial would not be fair because the victim had died in the intervening years.

The Supreme Court decision drew a swift backlash. Some critics charged that it had effectively given a green light to intoxicated men to sexually assault women or harm other vulnerable groups, such as children. Others said it would probably be used frequently.

“It’s wreaked havoc on the public view of judges,” one judge told the Toronto Star at the time. “Everywhere you go, you get it. You can’t go for a coffee or to lunch or a party without being attacked.”

Amid the outcry, Parliament passed a law that bars the accused from using as a defence that they were in a state of self-induced intoxication so extreme that they “lacked the general intent or the voluntariness required to commit the offence” in general intent crimes involving violence against another person.

Chan and Sullivan sought to argue that they were in a state of automatism caused by something other than a mental disorder, but faced hurdles because the cause was their voluntary intoxication.

Before his trial, Chan challenged the constitutionality of the legislation passed after the Daviault case. The trial judge agreed that it breached his rights, but found those breaches were permissible under another section of the Charter of Rights and Freedoms.

The mental aspect of an offence has long been recognized as an integral part of crime.

Chan then argued he was not criminally responsible because he had a mental disorder at the time — a mild traumatic brain injury from concussions suffered playing rugby — that left him incapable of knowing his actions were wrong. The judge agreed that Chan had a mental disorder, but said it was Chan’s self-induced intoxication, not the disorder, that caused the psychosis, so that defence didn’t apply.

“Mr. Chan is not a danger to the public,” Ontario Superior Court Justice Cary Boswell wrote in the 2018 decision. “He is a good kid who got super high and did horrific things while experiencing a drug-induced psychosis. . . . This is a very tragic result to a very tragic case. But it is the result mandated by our laws.”

Sullivan, who had experienced mental illness and childhood abuse, argued that the law that bars voluntary extreme intoxication as a defence didn’t apply to his case. He claimed that his intoxication was involuntary and the result of a suicide attempt. The trial judge disagreed.

Both men appealed.

The Ontario Court of Appeal ruled in their favour last year, finding that the amendment violates constitutionally-protected rights to the presumption of innocence and life, liberty and security of the person. It said those infringements weren’t justified and declared the law no longer valid in Ontario.

The “deleterious effects” of the law, Ontario Court of Appeal Justice David Paciocco wrote in the decision, include the violation “of virtually all the criminal law principles that the law relies upon to protect the morally innocent.”

The Crown had argued that the voluntary intent to consume the intoxicants supplied the voluntary intent to commit the criminal offence. In the court decision, Paciocco said this argument was “misplaced” and that violent acts aren’t always a foreseeable risk of voluntary intoxication.

“What must be voluntary is the conduct that constitutes the criminal offence charged,” he wrote.

The ruling sparked a firestorm for many of the reasons that the decision in the Daviault case did. Lawmakers expressed concern. A petition calling on the Crown to appeal racked up nearly 80,000 signatures. Two law professors, writing in Policy Options magazine, warned that the decision would be yet another barrier to women in their “often-futile attempts to seek justice for the sexual violence perpetrated against them.”

“It is unrealistic to expect that women will not take into account the potential availability of the extreme intoxication defence when deciding whether to report crimes of male violence committed against them,” they wrote.

Other legal analysts countered that the defence would be successful in only a minuscule number of cases. The onus would be on the accused to prove — with expert witness testimony — that it was more probable than not that they were in such an extreme state of intoxication.

Danielle Robitaille, one of Chan’s lawyers in the Supreme Court appeal, said she was surprised by the reaction to the Ontario appellate court’s decision. “In terms of what’s at stake, it really applies to a very small subset of accused people,” she said. “On the other hand, it does speak to these fundamental questions of criminal responsibility and the fundamental values of our criminal justice system.”

The Crown appealed to the Supreme Court.

Kat Owens is project director for the Women’s Legal Education & Action Fund, which was granted intervener status in the Supreme Court appeal.

She said the case boils down to “how courts think about how to balance rights that might be in competition” and “the policy choice of who we make responsible for intoxicated violence.”

“Are we putting the burden on potential perpetrators who need to take responsibility for becoming extremely intoxicated?” she asked. “Or are we putting the burden on women and children to protect themselves?”


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