An Interview with Matthew Gourlay

Matthew Gourlay is a partner at Henein Hutchison LLP, a top criminal defence and civil litigation boutique in Toronto. His practice focuses on criminal and appellate litigation as well as regulatory matters, with over half of his work occurring at the appellate level.

Prior to becoming a criminal lawyer, Matthew pursued a PhD in English Literature at NYU. He had planned on being a writer and professor. Shortly after he began graduate school, however, the September 11th attacks took place and created a “challenging political atmosphere” in the United States. He became increasingly politically involved during the lead up to the Iraq War, and following the election of President George Bush, he changed course from pursuing a PhD to enrolling in law school at the University of Toronto.

“I ultimately found that I wanted to do something a little more connected to the real world,” Matthew reflects. “When I went into law, I was pretty confident I wanted to go into criminal work. I’ve always been interested in civil liberties and assisting individuals rather than large entities. And I’ve always been interested in the challenges of courtroom advocacy, so criminal defence seemed an obvious choice to me.”

At the University of Toronto, Matthew spent his 1L summer working as a research assistant for Martin Friedland, a leading scholar in criminal law and a former Dean of the law school. He spent his following summer with a leading criminal lawyer in his hometown of Vancouver. He then spent his 3L summer working as a research assistant, inquiring into the long trials in the Ontario criminal justice system. After graduating as the gold medalist of his class, Matthew clerked at the Supreme Court of Canada for Chief Justice Beverley McLachlin. He began articling at Henein Hutchison the following year.

“My three summer experiences were fascinating for somebody interested in criminal law,” he says. “Although they weren’t entirely normal practice-based jobs, they did open me up to a lot of interesting issues in criminal law.”

Charter Challenges and R v Chan

Matthew maintains a broad appellate practice rather than taking on specific offenses. Criminal law, he says, tends not to be as specialized as other areas of the law. However, Matthew does have an expertise in Charter challenges; he has co-written a handbook for criminal lawyers entitled Charter Remedies in Criminal Cases: A Practitioner’s Handbook (Emond, 2019), and more recently, a book on evidence in criminal proceedings entitled Modern Criminal Evidence (Emond, 2021).

Given the focus of his practice on appellate work, Charter challenges are a litigation strategy he employs regularly. He considers them to be an instrument, not only for defending his clients, but for upholding our civil liberties more broadly in society.

“It’s another important tool in a defence lawyer’s toolkit to ensure that if the client is going to be convicted, it’s only on the basis of proof beyond a reasonable doubt, substantiated by evidence that’s properly admissible,” he says. “The ability of defence lawyers to challenge state conduct using the Charter in criminal cases has important knock-on effects for civil liberties more broadly, because most police conduct doesn’t result in evidence leading to charges.”

One of Matthew’s most noteworthy ongoing cases is R v Chan. The case involves a Charter challenge that has received significant media attention, due in part to the application it could have on other offences such as sexual assault. His client, Thomas Chan, had taken magic mushrooms and, in a state of psychotic hallucinations, stabbed his father and his father’s partner.

Chan argued that section 33.1 of the Criminal Code, which explicitly bans the defence of extreme self-induced intoxication, was unconstitutional because it violated sections 7 and 11(d) of the Charter and could not be saved by the “reasonable limits” clause of section 1. Although Matthew was not Chan’s counsel at trial, he successfully represented Chan at the Ontario Court of Appeal, where Chan was granted a new trial. The Ontario Court of Appeal held that section 33.1 would be of no force or effect in Ontario. The crown appealed and Matthew argued the case at the Supreme Court last month.

“We emphasized to the Supreme Court that the defence we’re arguing for is very limited in application,” he says. “That was one of the things that was really misrepresented by certain people in the press when the [Ontario] Court of Appeal’s decision came out overturning Section 33.1. Certain commentators said it would be open season on people to commit crimes after having had a few beers and that’s just inaccurate. Nobody disputes that getting drunk or getting high on drugs is not a defence to any general intent offence. What we’re talking about is the very narrow subset of cases where the person loses touch with reality completely.”

He went on to say that if the Supreme Court upholds the Court of Appeal’s decision, it will be “an important precedent but not a ground-breaking one, because it reaffirms certain basic commitments that our justice system has had for many, many years.” It is a fundamental principle of criminal law that the crown must prove a mental fault element to convict someone of a crime. But, says Matthew, the intent to consume drugs or alcohol is not the same as the intent to commit a violent offence, and accordingly, proving the former is not sufficient to ground a conviction for the latter.

Skills Necessary for Success in Criminal and Appellate Litigation

According to Matthew, the most important skills for appellate litigation are the ability to write clearly and persuasively, and the possession of analytic facility with the law. Strong writing skills are particularly important in appellate litigation, where it’s crucial to clearly express your legal arguments.. Matthew adds that commitment to one’s client is paramount: “You have to be willing to go the distance with your client, and you have to be unswayed by the shifting societal opinion about who, and what people, and what crimes are worthy of a defence,” he said.

Meanwhile, the most challenging part of being a defence lawyer, is the high-stakes nature of these matters. In criminal law, Matthew notes, “you’re fighting often about somebody’s liberty for a very long time, and that imposes a tremendous amount of pressure on a lawyer. You have to become accustomed to the fact that you don’t control everything and you can’t always get the result you would have liked. The desire to get the best result for your client leads to a lot of potentially sleepless nights.”

Advice for Law Students Interested in Criminal Defence

Matthew recommends keeping up with evolving case law in order to get a sense of which lawyers are doing what type of work. This will help you determine for whom you might want to work in the future. In addition, he emphasizes that the criminal defence bar in Toronto is small and tight-knit, and stresses the importance of reaching out to lawyers in the community.

“Students will find that members of the criminal bar are very generous with their time, interested in cultivating the next generation of lawyers, and are more than willing to give them advice and assistance,” Matthew remarks. “If they’re not hiring, most people have their ear to the ground and may have suggestions about who may be hiring. You just have to do a little more footwork than you do in the Bay Street process.”