- The ONCA has decided that Sullivan is mostly not guilty and that Chan gets a new trial.
- The public has decided that the ONCA is a bunch of rape apologists.
- The Canadian Twitter Bar has decided that the public is a bunch of misinformed dummies who should be either muzzled or re-educated.
The wisdom of all these decisions and attitudes is, at best, arguable. At worst, they confirm longstanding stereotypes about the bench, the Bar, and the public.
In my view, the Ontario Court of Appeal rendered a decision that any reasonable person should have expected to cause major controversy. The fact that many members of the public have inarticulately expressed their disagreement doesn’t detract from the merit of their concerns. The Bar should listen to the public’s fears and learn from them.
The Decision: R v Sullivan
I haven’t practiced law for over a year and, even when I did, I won’t pretend I possessed a fraction of the legal talent of those who argued and decided R v Sullivan. It’s clear that a tremendous amount of thought, effort, and skill went into the arguments for both sides and into both decisions.
Because I’m so profoundly legally outgunned, I’ll limit my analysis of the legal issues to one or two key points where I’m reasonably sure I have at least one leg to stand on. I also do so with a caveat. The issues raised by Sullivan and Chan are philosophically and legally complex. I don’t suggest that I must be right and that others must be wrong. What I do suggest is that this area of the law is far from cut and dried and that, insofar as there is a “right” answer, no one can yet say with certainty what that answer is.
I made two observations when I read Sullivan:
- Justice Paccioco’s summary dismissal of accountability as a pressing and substantial concern is, at the very least, controversial, and
- The majority’s conclusion regarding the moral culpability of automatons is questionable and likely at odds with widely held moral intuitions.
Justice Paccioco summarily dismisses Parliament’s attempt to impose accountability on the extremely intoxicated with this paragraph:
The constitutional principles at issue define when criminal accountability is constitutionally permissible, given entrenched, core values. To override principles that deny accountability, for the purpose of imposing accountability, is not a competing reason for infringing core constitutional values. It is instead a rejection of those values. It cannot be that a preference for other values over constitutionally entrenched values is a pressing and substantial reason for denying constitutional rights.R. v. Sullivan, Paragraph 113
In Paciocco and Watt’s view, the Charter, as interpreted by the courts, sets out who can be held accountable and who can’t. Having already found that the determination of accountability rests with the courts, and that the courts have decided that intoxicated automatons can’t be accountable, they find it unnecessary to carefully unpack Parliament’s intent and satisfy themselves with a fairly glib treatment of the issue.
In his concurring opinion, Justice Lauwer is much less dismissive of accountability as a pressing and substantial objective. In paragraph 215 he notes:
In submissions to Parliament prior to the enactment of Bill C-72, there was a pervasive sense of outrage at the prospect that a person who sexually assaulted an elderly disabled woman might be permitted to escape punishment on the ground of excessive intoxication, as was the case in Daviault. This reflects a deep intuition of justice that those who commit such terrible acts should be equally subject to penal consequences and should pay the same price, excessively intoxicated or not. Such acts should never be consequence free. More precisely, those who could have sheltered under the defence of non-mental disorder automatism are now, under s. 33.1, subjected to the same penal consequences for their violent acts as those whose state of intoxication was slightly less so as not to be in a state of automatism when committing those same acts. This is the “penal objective” of s. 33.1. The protective and the penal objectives are related but also separate and distinct. [Emphasis added.]R. v. Sullivan, Paragraph 215
The majority’s dismissal of Parliament’s attempt to impose accountability in this instance is troubling. Justices Paciocco and Watt are, I suggest, proposing to decide for the entire country which behaviors are blameworthy and which are not. But this cannot be their role. Blameworthiness and accountability are complicated philosophical concepts that must be dealt with in the political realm, not the courtroom.
It is one thing for a court to (rightly) insist that legislation about fraught moral issues like this one must remain Charter-compliant. It is another thing entirely for a court to say that Parliament has no pressing and substantial interest in ensuring that people are held responsible for immoral acts.
Justice Lauwer was right to treat the accountability principle with the deference and respect it deserved.
At Paragraph 147, Justice Paccioco wrote:
Second, the trial judge predicated his balancing on the generic proposition that “[t]hose who self-intoxicate and cause injury to others are not blameless.” He did so without apparent recognition of the expansive grasp of the concept of self-induced intoxication, catching as it does, even those who would fall into a state of automatism after choosing to become mildly intoxicated, and perhaps even those who are complying with a prescribed, medically-indicated drug that they know may cause intoxicating effects. The theory of moral fault that he relied upon cannot be sustained. [Emphasis added.]R. v. Sullivan
Paciocco never says why he and Justice Watt are convinced of the moral blamelessness of at least some intoxicated automatons. It certainly can’t be due to any philosophical certainty on the subject. The interaction between concepts like free will, voluntariness, determinism, and moral luck provides more than enough grist for the moral philosophy mill to keep academics the world over debating these very issues.
I can’t say for certain that Messrs. Chan and Sullivan are morally blameworthy but there is also no reasonable basis for the court to be sure that they are morally innocent. These issues are up for debate and the best place for moral debates to be settled remains the House of Commons.
The Public Reaction
The public has reacted with predictable confusion and consternation to the decision. They’re concerned that the case will lead to legions of rapists and killers going free. On one hand, their concern is overblown. It’s definitely true, as some lawyers have pointed out on Twitter, that the defence is difficult to access. It’s also true that these decisions aren’t about sexual assaults.
I can understand why lawyers would be frustrated with what appears to be a concerted, or at least reckless, effort by some advocates and political actors to stir up additional controversy.
At the same time, the public has a good reason to be concerned, particularly about the spectre of new “loopholes” for people accused of sexual assault. The provision at play was created as a direct result of the case of R. v. Daviault, a man who notoriously escaped conviction for the brutal rape of an elderly woman.
Additionally, sexual assault is mentioned no fewer than ten times throughout the decision. For some reason, Paciocco cites with approval this passage from Daviault:
It follows that it cannot be said that a reasonable person, let alone an accused who might be a young person inexperienced with alcohol, would expect that such intoxication would lead to either a state akin to automatism, or to the commission of a sexual assault.R. v. Sullivan, Paragraph 86
They immediately follow that quote by saying that “a reasonable person in Mr. Chan’s position could not have foreseen that his self-induced intoxication might lead to assaultive behaviour.”
These representations seem oddly naïve.
If a court as august as the Ontario Court of Appeal doesn’t understand why a reasonable person should foresee heavy alcohol consumption leading to a sexual assault, or how double-dosing a powerful hallucinogen might lead to unexpected assaultive behavior, then why should the public trust a lower court to maintain reasonable standards of accountability?
For some reason, and despite mountains of experience and evidence to the contrary, there are still many members of the bar who expect public feedback to controversial decisions to be largely:
- Carefully reasoned, and
The public’s failure to abide by these standards has led some lawyers to attempt to explain the decisions, or at least their view of the decisions. Other lawyers fall back on the familiar attitude that the public doesn’t know what it’s talking about and it should just leave all this law business up to the professionals. Both of these practices are, I suggest, misguided.
The public will never react positively to these sorts of controversial decisions, nor should they.
First, the system of criminal law created by politicians, judges, and lawyers has not earned the respect of the public. Report after report suggests that a very large number of Canadians do not view the work of the justice system positively, nor do they hold criminal lawyers in high esteem.
Until lawyers and judges around the country earn the respect of the public that we serve we will not receive the constructive engagement to which we seem to believe we’re entitled.Tweet
Second, we can’t expect laypeople from all walks of life to tease out the implications of the intricately crafted reasons of judges. That’s not a reasonable expectation. The vast majority of people aren’t experts in the law and will have time only for a quick read of a headline and the first paragraph in a story in the Globe and Mail or the National Post. “Read the case” is not a persuasive retort to simplistic public criticism.
Lawyers complain that the nuances of judicial decisions like Sullivan are lost on the general public. They’re right. Most people do overlook the nuances. But the law, especially public law, belongs to the people. And, at the very least, the people deserve a body of criminal law that is explicable and intuitive at its core.
Compare that ideal to what we got in Sullivan. To understand the basics of the decision, a person would have to be well versed in a host of complicated criminal law concepts, not least of which is the peculiar and confusing distinction between specific and general intent offences.
The court provides no summary of the decision. It does not attempt to simplify its message in an explanatory paragraph or two. It is a decision written by judges writing for lawyers. While it certainly permits meaningful appellate review, it’s difficult to understand how lawyers can expect a layperson to understand any of it.
Contrast this decision with that of Justice Martin in R. v. Okemow, 2020 MBQB 32. Following a murder in an isolated reserve in northern Manitoba, the Manitoba Court of Queen’s Bench made special arrangements to fly to God’s Lake Narrows to deliver a decision directly to the impacted community in language that could be understood by most inhabitants of that community. From paragraphs 32 to 35 of that decision:
 Two and a half years later, in March 2018, Michael was charged with the murder of Crystal. Michael’s trial took place in Thompson over the last several weeks. I was the judge.R. v. Okemow
 We are here today for me to tell everyone if I find Michael guilty or not guilty of killing Crystal. I will do that, but first I will explain some things people told me at the trial, and the facts that I believe. I will not explain everything that I heard at the trial, just the things that are important so you can follow what I am saying.
 Importantly, no one saw Michael with Crystal, and no one saw Michael kill Crystal. So, I have to decide if all the things people told me at the trial, and the facts I believe, make me sure, prove to me, that the only reasonable or logical decision is that Michael killed Crystal. If so, I will find him guilty.
 So, what happened to Crystal? Did Michael kill her?
Yes, they were different cases in different contexts. However, in the latter example, the court did everything in its power to explain its decision to the people who were affected by it. In Sullivan, the court did absolutely nothing to make its decision easier to digest. The Bar has no right to expect the public to be well-informed when the people who should be doing the informing are absent.
Finally, some members of the Bar seem offended that an apparent majority of the public flat out disagrees with the decision. To justify or rationalize the disagreement, these lawyers blame the media for misinforming the public about the decision or accuse the public of failing to understand this principle or that case.
Chan decided to take powerful drugs that he knew would significantly impair him. These drugs were well-known to cause unpredictable psychotic effects in a small subset of users. Then, he chose to take even more of those drugs. Once he was so impaired that he couldn’t control his own actions he brutally stabbed an innocent man to death and stabbed and slashed a second innocent person.
Sullivan started taking a drug to help him quit smoking. The drug’s tendency to cause psychosis in some users was well-documented. He began to experience unusual psychotic symptoms. Instead of seeking assistance, he chose to take a huge overdose of the drug to kill himself. During the resulting psychotic episode, he repeatedly stabbed a woman.
The uncomfortable truth about the decision to acquit Sullivan and give Chan a new trial (at which he’ll probably be acquitted) is that it absolves two men who many firmly and reasonably believe do not deserve to be absolved.Tweet
It does so in a manner that’s almost inscrutable to the layperson and offensive to the notion of parliamentary supremacy. How can we blame the public for taking umbrage?
Rather than lawsplaining the public or dismissing their concerns out of hand, the Bar should take to heart the anxieties expressed by the people it serves. The public is concerned that people who demonstrate blameworthy behavior are getting a free pass. They’re also worried that more people will use this decision as an excuse to victimize others, especially women and children.
Perhaps the public’s concerns reflect the very real tendency for the Canadian legal system to ignore the interests of those vulnerable to violence.Tweet
Perhaps the fact that the public is reacting so strongly is a measure of how badly the justice system fails to live up to its promises. The bench and the Bar can, at the very least, begin by listening to the concrete fears of the Canadian citizenry.
Sometimes courts of law have to make complicated and unpopular decisions to ensure justice is done. This may, or may not, be one of those decisions. Whatever the situation is here, however, the courts and the Bar must ensure that criminal justice both reflects the values of the public and is understandable to it.
In this case, the Ontario Court of Appeal has released a complex, confusing, and controversial decision without any attempt to ensure that the decision is understood by a public that is skeptical of the justice system’s willingness or ability to serve its interests. The legal system could do better.