Wiping away tears and in a voice choked with emotion, Thomas Chan uttered “thank you” Thursday during a brief court proceeding on Zoom that concluded his nearly seven-year legal journey that went all the way to the Supreme Court of Canada.
Following a 2018 trial in Peterborough, Ont., Chan, now 25, was convicted of manslaughter for stabbing his father, and aggravated assault for attacking his dad’s partner, while experiencing a violent, drug-induced psychotic episode after taking magic mushrooms hours before the horrific late night Dec. 28, 2015 encounter.
At trial, Chan was not permitted to raise the automatism defence because Section 33.1 of the Criminal Code said it can’t be used by an individual charged with a violent assault. Automatism is when someone claims to have been so intoxicated or impaired that they have lost complete control of themselves. That left Chan arguing a not criminally responsible defence.
This spring, the Supreme Court unanimously upheld the Ontario Court of Appeal’s decision granting Chan a new trial after finding that Section 33.1 of the Criminal Code was unconstitutional, depriving him of access to the non-insane automatism defence.
That sent the case back to Peterborough Superior Court. But on Thursday, Crown attorney Paul Murray told court that after careful review with senior Crown counsel, it had been determined that it was not in the public interest to proceed with a retrial so the prosecution was withdrawing the charges.
The reasons include the time he has already served, the restrictive bail conditions he’s been on, as well as the fact he’s doing well in the community.
“He has completely turned his life around. At 25 years of age, he is now on the dean’s honour role at university,” Murray said.
As well, the prosecutor noted the difficulty of convening another trial that would include the issue of the defence of extreme intoxication. The Supreme Court also wrote in its decision that it remained an “open question” whether it was in the public interest to prosecute Chan again — but that the decision was best left to the Crown.
The Crown is not conceding that Chan “was an automaton” that evening, Murray continued.
“The psychiatric evidence adduced at his first trial suggested his conduct was driven by delusions, and that he had conscious control of his actions. He was therefore … not an automaton,” Murray told Superior Court Justice Michelle Fuerst.
Toronto defence lawyer Danielle Robitaille, who represented Chan with law firm partner Matthew Gourlay, thanked prosecutors for their “principled and honourable review of this difficult case and ensuring that justice was done today.”
While Chan and “many others will have to live with the consequences of the tragedy,” the decision to withdraw his charges “settles once and for all what Mr. Chan’s friends and family have faithfully always known. Thomas Chan is not a criminal,” she told the court.
“He was a kid who made a mistake for which he could never have foreseen the consequences,” she added. He had never been in trouble with the law before, was a leader in his group of friends, popular, a great athlete and cherished son, the trial judge said at his sentencing hearing.
Robitaille declined to comment any further.
Hours after ingesting magic mushrooms, Chan stabbed his father Andrew Chan, a well-respected local doctor, and his partner, Lynn Witteveen, in their Peterborough home late at night. His father died and she was gravely injured.
A video recording captured a barefooted Chan wearing pants, no shirt and an open jacket, screaming “I’m not afraid anymore.” Witteveen testified that she kept telling him she loved him while he slashed at her with a long butcher knife.
Prosecutor Murray said Witteveen had been notified in advance of the Crown’s decision.
In his 2018 judgment, the original trial judge said while he concluded Chan was not rendered incapable of knowing his actions were wrong by his mild traumatic brain injury, he was incapacitated by the effects of the drugs he consumed.
Nevertheless, the judge said he had no choice but to find him criminally responsible for his actions, which he called “a very tragic result to a very tragic case.”
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