Chan, Sullivan ruling sparks petition on intoxication and assault, as headlines concern lawyers

“To be clear, there's nothing harmful in having a vigorous debate about the correctness of court decisions. People can agree or disagree with them as much as they want, and that's all healthy. The judges aren't infallible any more than the lawyers are. But it's important that public discussion and reaction be based at least on an accurate factual understanding of what's at stake.” 

Widespread concern about misinterpretation
“I think the genesis of the anger and the public outcry was a misinterpretation of headlines,” says Lindsay Daviau, who represented the intervener, Criminal Lawyers Association, in the Chan and Sullivan case.

“I think as lawyers, we all have a responsibility to make sure, to the best of our abilities, that the public understands what something means . . . . That might just be as simple as answering the questions, when they come in, that people might have. But sometimes I do worry about the impact this will have on the way people perceive our justice system, the way people perceive the work we do. I think it goes back to all of our collective responsibility to dispel the inaccuracies and to make sure that, you know, things are placed in their proper context. It's not popular work we do. But it's important work.” 

Megan Stephens, who represented the intervener Legal Education and Action Fund, argued the opposite side of the case from Gourlay — and unlike some other lawyers, she says it could have more widespread, troubling implications for the public, particularly women. But she, too, raised the alarm about misinformation — if for different reasons.

“I am, however, concerned that misinformation circulating about this case risks sowing confusion and anxiety about the state of the law, which could undermine access to justice,” wrote Stephens in the Toronto Star. “Striking down this particular Criminal Code provision does not mean the defence of intoxication can be used for all violent offences . . . . Many women already see the justice system as failing to meet their needs, particularly in cases of sexual assault. . . .  I worry that this decision will further discourage women from coming forward to report. The misinformation circulating about the reach of this decision risks creating further confusion.” 

Are court decisions clear to the public?
Many of the news stories quote from the 110-page Court of Appeal ruling, which addresses a wide variety of issues.

Gourlay says the decision, as written by the Court of Appeal, was long and scholarly, but affirmed fundamental aspects of Canadian criminal justice: that someone is not criminally responsible for something they couldn’t have possibly foreseen and didn’t voluntarily do. He does not fault the court for the misinterpretations that have stemmed from the text. 

The press needs to do a better job, he says, of reading the decisions and committing to presenting the nuances. The Supreme Court of Canada presents plain-language summaries of cases, and offers a legal resource to the press, but provincial courts may not have the resources to do so, he says.

Stephens, however, says that after spending an hour on the phone with a reporter, that it would be difficult to unpack as a non-lawyer. 

“This is an incredibly complex case, that deals with core, seminal values of criminal law liability and when someone should be held responsible for their actions — and deals with really complicated constitutional law issues, in relation to balancing of different Charter rights. . . .The relationship between sections seven and one of the Charter, I think, still hasn’t really played itself out in a manner that is entirely clear,” says Stephens. “Specific and general intent crimes and all of these things are very difficult for not-lawyers to understand.”
While it may not be practical for every case, a plain language summary or Q and A with reporters could be offered by provincial courts in select cases, she says. After the outcry in the 1990s, she says, the blowback from the case could have been predicted. 

While the facts in the case do not involve liquor or sexual assault, the ruling does focus on a provision of the Criminal Code that was enacted in response to outcry around a 1990s case of drinking and sexual assault, notes Daviau. That section of the code, originally designed to prevent using automatism as a defence for violent acts, was perhaps confusingly deemed unconstitutional in the ruling.

A member of provincial parliament has started a petition with over 250,000 signatures demanding the decision be appealed (it will be appealed, according to Ontario’s Crown). The petition reasons the decision “flies in the face of some of the progress made by the #MeToo movement.” The petition has been picked up widely, including in publications such as Elle.

The severity of the impact of the case on progress for women depends on who you talk to. Stephens says that there is “genuine concern” the ruling will affect women. Daviau argues that the defence of automatism is so rare that there will be little change to most criminal justice proceedings. 

“I do think there's also a big concern about where you draw the line. It's very easy to speak in legalese about how this only applies in very exceptional cases. It should only really apply to someone who no longer has voluntary control over their actions, but actually deciding when that happens is going to be a difficult question for a judge or a trier of fact . . . . defense counsel will run this on behalf of their clients, and they'll run it with the borderline cases, too. We know it's going to come up more often.  I think there are really legitimate concerns in relation to this decision that we need to take seriously in the context of a justice system failing to meet the needs of people who have been victims of violence,” Stephens says.

Says Daviau: “The court importantly, does recognize the vulnerability of particular members of society, women and children. But, the principles at play are the ones that are the foundation of our justice system. There's an importance there that needs to be brought out. I think what got lost is: You want to speak about its practical implications. What, practically, does this mean? And the answer to that, in this case is, for most people, it means nothing. You know, it's relatively few accused are ever going to be able to successfully marshal the defense of extreme intoxication, akin to automatism.” 

Both Daviau and Stephens agree, however, that the defence used to acquit Sullivan should be invoked very rarely, and should not be a status-quo argument in cases involving intoxication. Stephens says even articles that may have intended to highlight injustices against women may actually have fanned flames and been triggering, instead of exploring the nuances.

“[This case] isn’t easily translated into 250 characters on Twitter. Sometimes there's a real desire to plain paint pictures of paint stories as black and white,” says Stephens. “Some of the headlines that have said, ‘intoxication is now a defense to sexual assault.’ Those have really not been helpful.”

Missing nuances
Gourlay raised several arguments against the interpretation offered by mainstream press. 

The decision dealt with two cases where family members were stabbed by someone under the influence of drugs. But it has gotten blowback from those who feel it has implications for a more common set of facts: drinking and sexual assault. 

“Neither Chan nor Sullivan involved alcohol. Both involved highly unusual reactions to drugs that were unintended and unforeseeable by the accused. And neither case involves sexual assault, which is another concern that has been I've seen raised in the in the media. So I think it's a hot button issue, but people would be well advised to read the decision and consider the

fact that it's limited in its application,” says Gourlay. 

“In the various reports I've seen in the media — people been critical of this decision — I haven't seen any attempt to justify why the particular accused in these cases should have been held criminally responsible. I've seen a lot of hypotheticals about cases that were not before the court. But courts decide the cases before them. They set out principles that govern the cases before them. They don't engage in speculation and hypotheticals.”

 For one, he says that it has not even been proven that alcohol can spark a state of automatism (which is legally different than simply being so drunk that you forget what you did or why.)

“Intoxication that merely causes somebody to lose their inhibitions — and commit acts that they wouldn't have committed while sober — is not extreme intoxication and has nothing to do with this ruling. Similarly, the fact that you get so drunk that you don't remember what you did the next day does not mean that you're not criminally responsible for what you did or that you intended it at the time,” says Gourlay.

“Loss of memory is not the same thing as loss of voluntariness, and the courts have repeatedly affirmed in a number of contexts. So, again, we're not talking about simple loss of control. That is the predictable result of serious intoxication. We're talking about highly unpredictable reactions.” 

Because entering a state of automatism is such an unusual reaction to a drug, says Daviau, entering an automatism defence would require meeting a very high bar: medical evidence, as well as potentially witnesses who could testify that you had lost touch with yourself and reality. 

“We're not talking just, ‘I don't remember what happened, I had too much to drink,’ which again, isn't novel. We're talking about extreme intoxication akin to automatism, where you have to be able to show that but you have to have evidence of that,” says Daviau. “I have seen the debate that ‘rich people can just buy that [expert evidence].’ That's not the case. Our system is an adversarial system. Any accused is going to raise this defense is going to be faced with the government. The Crown attorneys have access to their own experts. So I think and I think that the important thing to take away from this is just how hard that is and how high of a threshold that is.” 

Consequences of misinterpretations
While some observers have called for new laws to address gaps left by the decision, Gourlay questioned the logic that a law could be a deterrent for a case that merited this defence, since legal automatism would not be foreseeable or voluntary.

“There is not in my view, any danger that the guilty people will go free based on the rationale in this case,” he says. 

“Particularly in this case, I don't think people are going to be sitting around saying, ‘Okay, I can get away with anything, as long as I say I was drinking.’ I think that fear is overblown,” says Daviau. “But if there is worry about it, then we should be educating people and to make sure people understand: that's not actually the defence, and it can't be used in that manner.” 

But Stephens says that — in addition to making it harder for women to come forward — misinformation around the ruling could have other consequences. 

“I think the message that a decision like this sends to women — who are disproportionately the victims intoxicated violence — is that it's okay for a person to go out, and get themselves into a state of such extreme intoxication that they no longer control their conduct. And that behavior can be excused, and they won't be found to be responsible for it. And the person who really ends up having to bear the risk of that behavior are those who ultimately are the victims of the violence. That's a very troubling message, and a very concerning aspect of this,” says Stephens.

“You can also think about the misinformation in the hands of other people who also are involved in the justice system at different stages. And how the complexities of a decision like this —when they get lost — might ultimately lead to problems, like when the police are deciding whether or not to lay charges. They might ultimately decide not to lay charges in a case, if an accused was seemingly quite drunk, because they might think, ‘Well, it's not going to go anywhere.’ Ultimately, that shouldn't be a decision that police officers make. It should be for the Crown to decide if there's a reasonable prospect of conviction. But I think that we know that happens. So that's another concern.”