Thomas Chan faces new trial after Supreme Court rules extreme drunkenness can be used as a defense

Rulings issued Friday by Canada’s Supreme Court to allow extreme intoxication as a legal defense in assault cases will allow a new trial for a Peterborough, Ont., man previously convicted of the murder of his father while he also acquitted a Whitby, Ont., man who assaulted his mother.

On Friday morning, Canada’s highest court upheld the Ontario Court of Appeal’s decisions last summer for both Thomas Chan of Peterborough and David Sullivan of Whitby.

READ MORE: Canada Supreme Court Says Voluntary Extreme Intoxication Is A Defense In Violent Crimes

In the separate cases, both men claimed that drugs left them in a state of “automatism” in which they were so drunk or debilitated that they lost complete control of themselves.

In both trials, the defense argued that Section 33.1 of the Criminal Code violated the Charter rights of their clients, as the section prevented a person from using the automatism of non-mental disorders as a defense for crimes.

Chan, then 19, was consuming magic mushrooms in late December 2015 and started having hallucinations. At his home he attacked his father Dr. Andrew Chan and killed him and seriously injured his father’s partner, Lynn Witteveen. In December 2018, an Ontario Supreme Court judge found Chan guilty of manslaughter and aggravated assault for the drug-induced attack and sentenced him to five years in prison.

Chan’s defense also argued that he was not criminally responsible because he had a mental disorder – a mild traumatic brain injury resulting from concussions he suffered playing rugby – which left him unable to know his actions were wrong.

Sullivan overdosed on prescription drugs in December 2013, fell into a deteriorating condition and stabbed his mother, assuming she was an alien. He was convicted in 2016 for aggravated assault and assault with a weapon.

In Sullivan’s case, an investigating judge agreed that he acted involuntarily, but ruled that Section 33.1 prevented the defense of automatism. In Chan’s case, another judge ruled that he did not have to follow previous rulings of the same court and declared Section 33.1 unconstitutional. The judge also said Chan’s brain injury was not the cause of his actions.

READ MORE: Thomas Chan found guilty of manslaughter in father’s death (December 6, 2018)

Both men appealed to the Ontario Court of Appeal, which heard the appeals together. In June 2020, the Court of Appeals acquitted Sullivan and ordered Chan to retrial because no factual finding of automatism had been made in his case.

The Crown then appealed both rulings to the Supreme Court of Canada, which agreed to hear the cases in December 2020.

On Friday morning, the Supreme Court rejected the Crown’s appeals in a statement.

In its unanimous decision, the Supreme Court agreed that Article 33.1 of the Criminal Code violates the freedoms of the Charter “in a way that cannot be justified in a free and democratic society and is unconstitutional.”

“In this case, Mr Sullivan can be acquitted because he proved he was drunk to the point of automatism and the judge found that he acted involuntarily,” Judge Nicholas Kasirer wrote on behalf of the panel of nine judges. “For his part, Mr. Chan can lead the defense of automatism during his new trial.”

In a statement from Chan, issued by attorneys Danielle Robitaille and Matthew Gourlay, Chan said he is “grateful” to the court for recognizing the defense of extreme intoxication and giving him the opportunity to defend himself again at a second trial.

“Thomas is so grateful for his circle of support, especially his mother, sister, grandparents and friends who have assisted him on this nearly seven-year legal journey,” the statement read. “Thomas knows that this legal saga is not over for him. Of course, the pain and horror of that night will always be with him.”

The statement concludes that Chan wants “healing and harmony” for himself and everyone involved on the night of the attack.

“As counsel for Thomas, we look forward to working with the Peterborough Crown Attorney’s office, who will assess the prospect of a retrial in light of the court’s decision.”

A look back at Chan’s case:


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