Does Thomas Chan belong in prison?

At 19, he killed his father while high on drugs. His case is headed to the Supreme Court in one of the most polarizing legal challenges in a generation. The post Does Thomas Chan belong in prison? appeared first on Macleans.ca.

Does Thomas Chan belong in prison?

Four days after Christmas in 2015, Thomas Chan, a 19-year-old first-year policing student from Peterborough, Ont., met some of his high school buddies at a local sports bar. Watching hockey over pints of draft, the boys hatched a plan: they would pool their cash, score a bag of magic mushrooms from a local dealer, then head back to Chan’s basement to hang out and enjoy the trip.

The boys had been reunited after graduating from Lakefield College School the previous year. They were sporty kids—Chan was a former rugby star—but occasionally they liked to party. They’d done mushrooms before. ’Shrooms (as the kids call them) contain psilocybin, a naturally occurring hallucinogen known for producing a giggly sensation of emotional release often accompanied by mild psychedelic visual hallucinations.

Back at Chan’s, the boys chilled out and passed around the bag of dried mushrooms that had been sold to them loose in a Ziploc bag. They each washed down a handful of dried fungus, gagging and laughing (mushrooms have the texture and flavour of mouldy wood shavings mixed with dirt). An hour or so later, all the lads were in stitches apart from Thomas, who complained he felt nothing. Chan is a big kid, well over six feet with wide shoulders and the chiselled good looks of the all-Canadian small-town athlete that he is—or was. He figured he needed to eat more than the other guys because of his size, so he reached into the bag and choked down another handful.

Since the legalization of cannabis, magic mushrooms are now widely regarded as the softest soft drugs. While technically classified, they are non-addictive, naturally occurring, plant-based and even considered curative in many medical circles. Earlier this year, Health Canada began allowing palliative care doctors to run clinical trials to explore using the hallucinogen to alleviate mortal dread in the dying, paving the way to legalization. The official Canadian government website on magic mushrooms states that while “bad trips” do occur, it’s usually at high doses and that the drug “does not usually result in substance use disorder.” Perhaps for this reason authorities have long turned a blind eye to online sales as well as private recreation consumption and cultivation. Spore kits and dosed fungi capsules are sold openly from digital dispensaries, though most are still scored from the back of VW vans by long-haired guys named Zappa. The point is, as party drugs go, ’shrooms are widely considered safe. If not healthful, at least good fun.

But that’s not the effect they had on Thomas Chan.

By 2 a.m. it was clear to his friends that Thomas was having a bad trip. As his pals giggled, Chan became increasing agitated. Medical experts would later argue in court this was the result of the psilocybin interacting negatively with Chan’s brain, which had been injured earlier that year in a string of rugby-related concussions for which he’d been treated. The brain injuries had negatively affected his academic performance and ultimately prompted him to quit the sport. Some psilocybin users do experience distressing hallucinations, anxiety or paranoia while on ’shrooms, but it usually passes. Chan’s experience was acute.

According to his friends, he began ranting and raving, babbling gibberish. He ran upstairs and woke up his mother and stepfather. They attempted to talk him down to no avail. He then fled the house, running barefoot and shirtless through the snow-covered streets to the nearby home of his father, Dr. Andrew Chan, a respected local gastroenterologist who lived with his new partner, Lynn Witteveen, a woman who had previously been his assistant. Their relationship had coincided with the painful end of Thomas’s parents’ marriage years before. Lynn had an understandably cool relationship with Thomas’s mother, Roz, and his older sister, Christina, who was in university by the time of the split. As the youngest, Thomas moved back and forth between houses, playing family diplomat. Over the years, he and Lynn had grown fond of each other.

When Thomas entered his father’s house unannounced, breaking in through a window, extremely aggravated, it was after 3 a.m. Security camera footage later played in court shows Andrew Chan trying to subdue his son in the hallway as Witteveen looks on confused and frightened. Thomas then went to the kitchen and took a butcher’s knife from a drawer. He declared he was performing “God’s will” and this was “a house of Satan.” He then brutally stabbed his father several times as his father pleaded for recognition, saying, “It’s Daddy, it’s Daddy.” Thomas then turned the knife on his stepmother, stabbing her repeatedly before she was able to flee to the master bedroom. “This is the day of reckoning!” he said, as he followed her. As Witteveen sat on the floor attempting to dial 911, Thomas slashed her across the shoulder. “Thomas, it’s Lynn, I love you,” she said, at which point he stabbed her directly in the right eye. He then left the bedroom and paced the front hallway. “I love you all so much,” he can be heard saying on the video. “I don’t want to do this.” When police arrived on the doorstep, Chan shouted, “This is a holy place!” Then he dropped the knife and unlocked the door. For a moment he was calm but when officers attempted to arrest him, Chan resisted, screaming, “I am God. I will do it again.” He begged officers to kill him, shouting, “Put a bullet in my head!” Multiple officers struggled to subdue the teen as his stepfather, who had followed from home, watched in horror on the front lawn. The arresting officer would later tell the court it was as if the teenager had “super-strength.”

Thomas was taken to the station covered in blood, processed, then held in solitary confinement in a Lindsay, Ont., jail.

In a Zoom call that was hosted by his defence lawyers earlier this fall, Thomas sat on a sofa, flanked by his mother, sister and stepfather, Jeff. His family members looked tiny in the frame beside him. His expression was grave, arms squeezed tight to his sides as if he was trying to shrink himself down to size. He wore a navy crewneck sweater over a white undershirt. His dark hair looked hand-buzzed.

“The first thing you need to know about me,” he began by saying, “is that I’m just totally normal. I’m a normal kid from a good family.” As he said this he looked deep into the camera, his eyes imploring. This was the first interview he and his family have ever given about the case, and will likely be the last. As he and his family spoke, they squeezed each other’s hands for support. There was a lot of breathing, pausing and waiting for tears to subside.

The family celebrate Christina's third birthday in 1998. (Courtesy of the Chan family)

Andrew, Thomas and Christina in 1998 (Courtesy of the Chan family)

The family (L-R: Roz, Thomas, Christina, and Andrew) at Thomas' 2014 LCS graduation. (Courtesy of the Chan family)

Roz, Thomas, Christina, and Andrew in 2014 (Courtesy of the Chan family)

I asked Thomas to describe what he remembers of the night he killed his father. While Chan can’t talk about the incident itself—his appeal is before the courts—he talked about the hours that followed in the Lindsay jail cell, which he said were the darkest of his life. As the psilocybin wore off, he experienced the sensation of returning to himself—to sanity—but with that came the horrifying realization of what he had done. He remembered everything that had happened, but could not account for his violence. His stepmother was gravely injured, undergoing surgery. She would lose her eye and suffer catastrophic injuries, but she would survive. His father bled to death. Thomas now understands he was responsible.

Though Chan had no previous history of mental illness, he decided in the cell that night he must be crazy—an undiagnosed schizophrenic or just flat-out psychotic. More than anything he experienced an overwhelming desire to die. “I just wanted to push everyone away and rot,” he said. The guards put Chan on suicide watch. Like the police, they knew nothing about his case, but what they did know did not predispose them to sympathy. To them, Thomas looked like just another drugged-out killer.

By late morning, Chan was allowed a phone call from his mother and sister. The first thing he remembers them saying was “We love you.” Christina and Roz promised him they’d find a way to figure out what had happened and why. “That wasn’t you,” his mother said repeatedly as her son sobbed. “Don’t believe that was you. It wasn’t you that did this.”

Thomas and Christina in 2012. (Courtesy of the Chan family)

Thomas and Christina in 2012. (Courtesy of the Chan family)

Chan had no history of violence or addiction, no discernible intent or motive for his crime. He got high, then killed his father and blinded his father’s partner—these are the facts. His body, it seemed, was controlled by a brain gone haywire and yet the consequences of his actions were irreversible, the cost to his victims incalculable. The case was bizarre—psilocybin-induced violence is virtually unheard of—but the question at its centre was basic: was he actually responsible for his crime?

Chan pleaded not guilty. His family was understandably desperate not to see him go to prison. After all the horrors of that night, his incarceration seemed just another loss to endure. How would punishing Thomas make anyone’s life better? They held out hope the court would find him not guilty of a crime he’d committed while effectively in a state of chemically induced autopilot. Yes, he’d taken the mushrooms willingly, his lawyer argued, but because of his injured brain chemistry, he could not have predicted their horrific effect.

In many countries this argument might have held legal weight, but not in Canada. What the Chans didn’t understand, what their lawyers had to explain over and over again, was that under the Canadian Criminal Code, Thomas was doomed from the outset—not because he’d meant to commit the acts he did, but because he’d willingly taken the drugs that made him do it. He didn’t have a defence. The reason why was decided nearly 30 years ago.

***

In 1989 in a suburb of Montreal, a 72-year-old alcoholic named Henri Daviault drank several beers followed by most of a large bottle of brandy, then lifted an elderly wheelchair-bound woman to her bed where he raped her as she screamed. It was for this reason that over a quarter of a century later in a Peterborough court, Thomas Chan was sentenced to five years in jail for criminal manslaughter. The two stories might seem unrelated, but they are not.

The Chan family appealed. Last June, the Ontario Court of Appeal ruled in Chan’s favour, ordering a new trial. The Crown moved to strike down the appeal. If all goes well, Chan’s case will soon come before the Supreme Court. When it does—his lawyers are certain it will happen next year—it will result in the most controversial ruling in recent Canadian judicial history. Yet again, the reasons why have little to do with Thomas Chan.

The ancient Greek philosophers believed in fate—a system of divine justice ruled by the vagaries of the Gods for whom mortals were playthings. Today in Canada, we have an improved system—liberal democracy as governed by common law, underpinned not by myths and deities but the Charter of Rights and Freedoms as set out by legislators and the judiciary. But as the tragedy of Thomas Chan illustrates, our system is far from infallible. As the old legal chestnut goes, hard cases make bad laws.

The law that decided the fate of Thomas Chan was Section 33.1 of the Criminal Code. It was introduced by an act of Parliament following public outcry after the Daviault rape case. Like Chan, Daviault initially pleaded not guilty but was convicted. Like Chan, he later appealed. His case also went all the way to the Supreme Court—which, in Daviault’s case, exonerated him. It was a split decision. Ultimately the court reasoned that Daviault couldn’t be held criminally responsible for his actions because he was, essentially, out of his mind with drink. The case was widely covered in the national media and the public backlash was immediate. Women’s and victims’ rights groups were understandably furious. The verdict, they argued, would surely pave the way for a wave of rapists and other violent criminals (almost invariably men) using extreme drunkenness as a defence for violent crimes against women and children.

To say the Daviault verdict hasn’t aged well is an understatement. Every legal expert I spoke to for this story agreed the decision likely wouldn’t have been made today. But the Supreme Court’s decisions are final. They stand until tested again by the same court.

The reasons why the Daviault ruling is looked upon poorly are multiple, but the most compelling one is scientific. Neuroscience has advanced considerably since 1994, and most experts in the field today agree that what Canada’s highest court decided in Daviault’s case was a state of “automatism”—the legal bar for self-induced intoxication so extreme it eradicates criminal intent—was in fact more likely an alcohol-induced blackout. Daviault was a chronic drunk and, like many, he experienced blackouts, which are today widely understood as distinct from an “automatized” state, which is akin to sleepwalking, when the brain is on autopilot in a kind of chemically induced dissociation from the self. Blackout drunks commit violent acts all the time; this was as true in the ’90s as it is today. Clearly the Supreme Court verdict set a dangerous precedent. So legislators decided to do something about it.

The Daviault verdict came down in September 1994, not long after Chrétien’s Liberals defeated the upstart Reform party, which had swept Western Canada campaigning on law and order. The Liberals were keen to demonstrate they were progressive unifiers, a party firmly on the side of women’s rights. Justice minister Allan Rock ushered in a number of reforms including provisional and custodial sentences; he also assembled a panel of feminist legal experts to discuss the issue of violence against women and women’s rights under the Charter. It was all going swimmingly for the government until the Daviault verdict set off a political crisis.

Chanting

Women’s and victims’ rights groups protest the ruling that exonerated Daviault in 1994 (Peter Power/Toronto Star/ Getty Images)

Every editorial page in the country suddenly hollered: what about the rights of the women? Preston Manning and the other party leaders ran with it, pillorying Chrétien in Parliament, generating headlines around the world. “Women in Canada upset by court ruling on drunkenness,” read a headline from the New York Times from that year.

Rock moved swiftly, fast-tracking a corrective bill through Parliament that would prevent “extreme intoxication” as a defence in criminal cases involving violent physical assault. What’s more, he found a way to do this without invoking the political headache of the notwithstanding clause—the usual legal requirement for legislators seeking to amend the Charter. Rock’s manoeuvre, known as “notwithstanding-by-stealth,” gives politicians the power to override decisions of the court by statutory amendment. It’s controversial, as are all amendments to the Charter—but it wasn’t nearly as controversial as the Daviault ruling.

At the time, constitutional law experts and criminal lawyers complained bitterly that Section 33.1 was unconstitutional, for the simple reason that cases like Thomas Chan’s do happen, and when they do, all citizens have a right to a fair defence. The amendment, they said, violated this key principle of the Charter. But legislators (as well as the media and the public) largely shrugged this off.

Rock and other proponents pointed out that if Section 33.1 was so terrible, it would be tested. Amendments passed without the notwithstanding clause are by definition open to “second look” cases by the courts after five years. And so, just nine months later (a hot minute in parliamentary time), Section 33.1 was enshrined as an amendment to the Criminal Code. A political slam dunk for the Liberals. The experts comforted themselves with the prediction that it would soon be struck down on appeal. Then over a quarter-century passed and guess what happened? Nothing.

Until, in 2013, a 44-year-old man from Whitby, Ont., named David Sullivan stabbed his elderly mother, Jeanne, after taking an overdose of antidepressants. Unlike Chan, Sullivan wasn’t a compelling defendant. He was unemployed, lived at home with his mother and had struggled with crack and opioid addiction and chronic depression. He had a history of minor criminality and violence, and like many troubled characters, he was a victim of childhood abuse himself.

On the night of the attack, Sullivan ingested an entire prescription bottle of Wellbutrin in what he later claimed was a suicide attempt. Prosecutors later argued it was recreational—he had, they alleged, been known to crush and snort or inject the drug in the past. Regardless of why he took the pills, Sullivan suffered a psychotic break as a result. Wellbutrin taken in high doses is toxic and has a host of negative mental side effects including paranoia and psychosis, and Sullivan was already mentally ill.

He woke his mother in distress, begging her to help him throw up, claiming he’d eaten rotten meat, then cowered in the corner of her room for most of the night. As the night wore on he became increasingly hysterical, insisting he was being menaced by invisible aliens. Eventually, he turned on his mother, stabbing her six times with two different kitchen knives as she screamed, “I’m your mother!” She survived her injuries but later died of an unrelated heart attack before her son went to trial in 2016.

Sullivan pleaded not guilty, and was convicted of aggravated assault and assault with a deadly weapon in a Whitby court and sentenced to five years in jail before being released. At the time, the trial judge said he found Sullivan an “inconsistent witness” and did not buy his story that the overdose had been involuntary, a suicide attempt driven by mental illness.

Like Thomas Chan, like Henri Daviault, David Sullivan decided to appeal. It didn’t matter that he was free, having served his five-year sentence; he believed he wasn’t to blame and didn’t want the conviction hanging over him.

Stephanie DiGuiseppe. (Photograph by Clay Stang)

Stephanie DiGuiseppe. (Photograph by Clay Stang)

Annamaria Enenajor. (Photograph by Clay Stang)

Annamaria Enenajor. (Photograph by Clay Stang)

Two years ago, Stephanie DiGiuseppe, a respected constitutional and criminal lawyer with the Toronto firm Ruby Shiller, agreed to take on Sullivan’s appeal. (Sullivan’s case, given his lack of income, is funded by Legal Aid Ontario.) DiGiuseppe believed it had potential—not just for her troubled client, whom she felt had been unfairly convicted, but on a broader legal scale. Like many criminal and constitutional law experts, DiGiuseppe believed Section 33.1 violated the spirit of the Charter. In Sullivan’s case, she saw an opportunity to take it down.

DiGiuseppe figured, rightly as it turned out, that if she could convince the Ontario Court of Appeal that Sullivan was entitled to a fair defence, the case might go all the way to the Supreme Court. In an interview, she explained the importance of the underlying principles. “The right to present an argument is integral to a fair defence and trial—as a criminal lawyer I cannot overstate how seriously we take these principles. Section 33.1 is hugely problematic in that it directly interferes with these rights.”

As DiGiuseppe, who was joined by co-counsel Annamaria Enenajor, was preparing Sullivan’s appeal, she heard through the Toronto legal grapevine that two other Toronto criminal lawyers at the firm Henein Hutchison LLP were preparing a challenge on similar grounds. Danielle Robitaille and Matthew Gourlay, two distinguished criminal lawyers, were working on Thomas Chan’s appeal, though on different terms. In Chan’s case, his family is covering the legal fees.

The lawyers met and mulled over whether to make the appeal a strategic joint cause. Chan was clearly the more compelling appellant, but Sullivan’s case would be heard first—if he lost, it might weaken Chan’s case. As co-appellants, Sullivan and Chan had little in common but arguably this contrast made them ideal for demonstrating the same argument from two distinct angles, specifically: the constitutionality of Section 33.1.

Lawyer Danielle Robitaille. (Markian Lozowchuk)

Lawyer Danielle Robitaille. (Markian Lozowchuk)

Lawyer Matthew Gourlay. (Markian Lozowchuk)

Lawyer Matthew Gourlay. (Markian Lozowchuk)

In the end they decided to go for it. The lawyers flew into action. Robitaille and Gourlay scrambled, rushing Chan’s appeal through in just a matter of months. It was, after all, a chance to make history. The lawyers knew if they succeeded in taking down the hated section it would be controversial, but they weren’t cowed. “It wasn’t our first rodeo,” is how one of them put it to me. Neither Sullivan’s nor Chan’s case involved alcohol or sexual assault, which the lawyers figured would mitigate any outcry from victim’s rights groups if and when they succeeded.

They were wrong.

***

Over the past 30 years there have been several failed attempts to strike down 33.1 in the lower courts, but the Sullivan-Chan case is the first that seems set to go all the way. So why has Section 33.1 gone untested?

The reasons are a puzzle that’s confounded legal experts across the country for decades. One theory is that cases of violent crime in which automatism can be proved a factor are exceedingly rare, and when they do occur, legal aid counsel (who often represent heavily intoxicated violent criminals in lower courts) may not have the expertise or resources required to medically prove the case in court.

My favourite theory, however, was published five years ago by two political science professors, Dennis Baker and Rainer Knopff. The paper is dense reading, thick with Latin terms and case law. In essence, the authors speculate that Canadian judges may have upheld the section in part because they were subconsciously biased. The idea of extreme drunkenness being used as a reasonable defence saddled them with the arduous task of parsing to what degree wilful intoxication impacts on criminal intent, particularly in sentencing. In other words, the precedent set by Daviault was a massive judicial headache and Section 33.1 was the Aspirin. So perhaps judges were just as happy to let it lie.

Like I said, it’s just a theory.

The fact is, people do get totally wasted and commit violent acts that they wouldn’t have in a sober state. Extreme intoxication, even when it does not involve a state of automatism, negatively affects a person’s ability to make decisions and determine consent. Alcohol in particular exacerbates aggression and lowers impulse control. And yet the notion that it should be considered as a contributing factor in violent crime is understandably unpopular among proponents of victims’ rights. Victims, and the advocates who represent them, dislike talking about intoxication because it clouds the issue and deflects blame away from abusers. Criminal lawyers disagree.

Unlike Daviault, the Sullivan-Chan appeal has nothing to do with rape culture or alcohol abuse, so it’s bizarre the case has become a lightning rod in the politically charged debate over both. However there is one point on which all three cases come together: the issue of victims’ rights.

Lynn Witteveen is widowed and her injuries will prevent her from working and supporting herself for the rest of her life. After Thomas was convicted, but before his appeal, she sought compensation from the family. The Chans were forthcoming and last May they settled with Witteveen for an undisclosed amount widely reported to be in the low millions. At the time of his death, Andrew Chan’s estate was willed entirely to his children. Under the law, Thomas stood to inherit his portion only if exonerated; however, a source outside the family but close to the case told me the recent settlement precludes Thomas inheriting anything from his father’s estate.

Witteveen has never given an interview, but through her lawyer she provided this statement: “Lynn is focused on the things she can control like healing, both in terms of recovery and forgiveness, and she tries not to dwell on the outcome of the criminal trial. Lynn maintains faith that the Canadian criminal justice system will ultimately decide this case fairly. She hopes that her voice and Andrew’s voice will be heard and that some sort of accountability will be imposed.”

On a Zoom call, David Sullivan’s siblings, Michael and Teri, were more explicit in their desire for justice. Teri, who arrived at the Whitby condo the morning of her mother’s attack, found “the whole place covered in blood,” her stricken mother being attended to by paramedics inside while her younger brother David sat naked on the front lawn in a deck chair, chatting with police. She is understandably incensed by the appeal verdict, not only because it leaves her mother’s suffering unacknowledged but also because it reinforces what she views as David’s pathological lack of remorse. “Nothing is ever David’s fault. And this will only make it worse.”

David Sullivan’s brother, Michael. (Photographed remotely by Ebti Nabag)

David Sullivan’s brother, Michael. (Photographed remotely by Ebti Nabag)

Michael and Teri concede that David was in a state of automatism when he stabbed their mother, but they don’t believe it should in any way absolve him of guilt. He is, they contend, precisely the sort of defendant Section 33.1 was put in place to guard against: an impulsive, reckless addict who became wilfully intoxicated and committed an act of horrific violence.

Michael is particularly articulate in his frustration with the case. “Any individual who knowingly takes drugs or alcohol has an obligation to society not to then go around stabbing, killing or raping people,” he says. As far as he and Teri are concerned, their brother is benefitting from free top-tier legal counsel afforded to him only because an ambitious lawyer wanted to make history by righting a perceived wrong in the Charter. “The defence of ‘automatism’ is just a semantic walk-around,” Michael scoffs. “It’s a manipulative rewording of the law that does not accurately reflect what society as a whole expects as part of the social contract.”

David Sullivan’s sister, Teri. (Photographed remotely by Ebti Nabag)

David Sullivan’s sister, Teri. (Photographed remotely by Ebti Nabag)

David Sullivan is currently living on the street. He is a mentally ill addict and an abuse survivor—his siblings back this up. DiGiuseppe warned her client’s thinking can be “tangential.” Sullivan responded to questions from Maclean’s via a phone call with his lawyer. Sullivan said he wants to be exonerated so that his family knows “their own brother did not intentionally commit this act.” He also believes the current law is unjust. “It is wrong to hold anybody against their will in a prison with real criminals who have chosen to commit acts that are immoral, unjust and unethical, as opposed to those who were involved in a horrible thing that they did not intend to have happen.”

Most legal experts agree it’s unlikely that if the Sullivan-Chan appeal is upheld by the Supreme Court, a wave of acquittals for drunken murderers and rapists will follow—though it’s likely that some may try. Legal experts on the side of upholding the section—and there are many—largely concede this. But for them this is not the point.

According to data compiled by Elizabeth Sheehy, an eminent University of Ottawa law professor and feminist activist who was involved in the section’s inception, as well as her colleague Isabel Grant, an equally respected law professor at the University of British Columbia, the extreme intoxication defence was raised in 23 cases during the brief period between the Daviault verdict and the enactment of Section 33.1, and in roughly a third of those it was successful. Those numbers aren’t huge, but they’re significant. In a joint email interview, they told me they would likely be “under-predictive of future use” given the fact that far more defence lawyers are aware of it. Sexual violence is widely under-reported as it is, and Sheehy and Grant compellingly argue the removal of the section will exacerbate this problem. “We can’t measure the number of cases where women decide against reporting or police or prosecutors do not lay charges because they anticipate a successful extreme intoxication defence,” they said.

Perhaps the biggest disagreement between femicide experts like Sheehy and Grant and those who supported the appeal verdict concerns the broader issue of victims’ rights. If Sullivan and Chan win their appeal, Jeanne Sullivan and Lynn Witteveen will effectively be denied judicial remedy or acknowledgement of their suffering. Why should victims of violence, Sheehy asked, who are disproportionately women, “be made to bear that risk”?

Megan Stephens, a Toronto lawyer, is the executive director of the Women’s Legal Education and Action Fund (LEAF). She spoke at the Court of Appeal as an “official intervener,” urging the panel to uphold both convictions. In an interview, she expressed sympathy for Chan and his family, but for her, the case is about precedent. “There were no interveners at Daviault,” she reminded me. “The [Supreme Court] judges didn’t look at the context and what it would do for women’s rights.” Ultimately, as Stephens puts it, the case comes down to one question: “How do we determine whether laws are constitutional when we’re trying to balance countervailing rights?”

There is no moral certitude in this story, no clear bad guys or good guys. There are only the devastated real people it happened to, the Sullivans and the Chans, and swirling around them a bunch of lawyers, the judges, the activists, politicians, and journalists like me. The Supreme Court will decide who is on the side of the angels. They will do this because it’s their job. But as we know from Daviault, they’re not gods either.

***

The Peterborough judge who convicted Thomas Chan of criminal manslaughter did so with excruciating reluctance. “Mr. Chan is a really good person and something really bad happened to him and the people closest to him in his life,” reads the judgment. “He is not a danger to the public. He is a good kid who got super high and did horrific things while experiencing a drug-induced psychosis.” Then he sentenced him to the mandatory minimum: five years in a federal prison.

The appeal decision last June determined, over 110 pages, that Section 33.1 was unconstitutional. It was a clear victory for the appellants. But for the Chan family, their relief was overshadowed by the way it played out in the Canadian media. Within hours of the panel of appeal judges handing down their decision, the news alert headlines were blaring, sensational. The Globe and Mail: “Ontario’s top court rules intoxication similar to automatism is a legitimate defence for acts of violence.” CP24: “Ontario court throws out law barring self-induced intoxication as defence for sexual assault.” There were many others, some later retracted or corrected. Most of the coverage skirted over the details of Sullivan and Chan’s cases and focussed instead on Section 33.1—an echo of the initial outcry over Daviault. Simultaneously and predictably, Canadian social media exploded. Progressive feminist outrage on the left was met with conservative civil libertarian glee on the right. In the days that followed, the outrage over victims’ rights was reignited, resulting in a slew of angry petitions and MP-led calls for parliamentary action.

The day of the verdict, Christina Chan returned to her desk in the Toronto software firm where she works and watched in disbelief as her feeds filled up with friends and acquaintances expressing their horror at her brother’s successful appeal verdict. Chan describes herself as a “progressive feminist,” and while she knew most of the posts were by friends who did not understand her connection to the case, the posts still stung. In the following weeks she made a point of going back to every person she knew who’d expressed their outrage at the verdict and explained the facts of her brother’s case. All of them apologized and took down their posts after admitting they hadn’t read past the headline.

Vanshika Dhawan, a U of T law student, wrote a widely shared blog post decrying the misinformed response to the appeal verdict. She accused campaigners of getting the story so egregiously wrong that they harmed victims of sexual assault in the process. The petitions and calls to action, she argued, conflated garden-variety drunkenness with extreme intoxication to the point of automatism, of the kind Chan and Sullivan suffered—a very high bar. In the process, Dhawan asserted, campaigners “capitalized on and exploited the pain and trauma that survivors of sexual assault experience at the hands of our criminal justice system.” In other words: by using the appeal verdict to stoke the flames of a pre-existing culture war, they made collateral damage of the very female victims they purport to represent.

Vanshika Dhawan. (Photographed remotely by Ebti Nabag)

Vanshika Dhawan. (Photographed remotely by Ebti Nabag)

Dhawan is a victim of assault herself. In an interview, she told me this is why she was moved to speak up. Like Christina Chan’s, her social media feed ignited on the day of the verdict with progressives posting calls to action and petitions to overturn the verdict. Like Christina, she could also scarcely believe it, though for different reasons: Dhawan, like many keen Canadian law students, is obsessed with the integrity of the Charter. Like the Chan-Sullivan lawyers and most of her professors, she sees Section 33.1 as unconstitutional. Dhawan heartily agrees that the system badly fails victims of sexual violence, but she maintains Section 33.1 is not the answer. In Dhawan’s view the Canadian media’s response to the appeal verdict was the most distressing thing the controversy brought to light. “Headlines matter because they change the way we think,” she says. “People share stuff on social without thinking it through. It’s powerful and because of that, it’s dangerous.”

All of which raises the question: if Section 33.1 is so great, why is the Canadian justice system still failing victims of sexual assault so badly 30 years after Daviault? For all the media furor, the legal bills, the decades of paperwork and political grandstanding, what has it actually accomplished? I put this to one of the key cabinet ministers involved in pushing through the bill and his response—off the record—was that had it not been there, things might well be worse. Though he admitted, “It’s true you can’t prove a negative.”

***

Thomas with his stepfather, Jeff, mother, Roz and sister, Christina; the family is weary but they still have a long fight ahead, even if the SCC rules in his favour. (Photograph by Clay Stang)

Thomas with his stepfather, Jeff, Roz and Christina; the family is weary but they still have a long fight ahead, even if the SCC rules in his favour. (Photograph by Clay Stang)

Thomas Chan has spent the last five years either incarcerated or on probation so strict it is tantamount to house arrest. As his mother told me, “Our family was on lockdown five years before the pandemic hit.”

As Chan’s case works its way toward the highest court in the land, the family’s story in particular deserves attention. Following Chan’s arrest in the lead-up to his trial, his mother and stepfather were forced to live separately and forbidden to communicate for a full year due to a court-mandated no contact order while the trial was pending. It was either that or Roz could have no contact with her son. Both of Roz’s parents were hospitalized and died during this time. The family was unable to say goodbye due to the combined restrictions of Thomas’s house arrest and the subsequent COVID lockdown.

Christina has put her life in Toronto on hold for months at a time, moving home for a period to support her mom and brother. Despite the first appeal victory, the family is weary, their ordeal unfathomable. Whatever the outcome, they still have a long fight ahead of them. As it stands, even if the Supreme Court decides in their favour, Thomas will face another trial.

On Zoom, Thomas still looks like the high school rugby star he once was, but his face is haunted. One of the mandatory conditions of his bail is bimonthly psychiatric counselling—he continues to adhere to it fastidiously though the order has lapsed. In part it’s rehabilitation for his brain injury, but the therapy is also an attempt to reconcile himself to the incomprehensible events of the past.

He remains close to his family. Christina now visits often and at length. His high school buddies who were witnesses that terrible night remain on a court-ordered no-contact list, he says. Over the passage of time, old friendships have fallen away. He no longer wants to be a police officer and has instead enrolled in a remote bachelor of arts program at Trent University, where he just completed midterms.

His new major? Philosophy.


This article appears in print in the December 2020 issue of Maclean’s magazine with the headline, “Does Thomas Chan belong in prison?” Subscribe to the monthly print magazine here.

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