The accused, Alek Minassian (“Minassian”), who has admitted that he planned the van attack and purposely drove onto the sidewalk with the intent to kill on April 23, 2018, has plead not guilty and is asking the court to find him not criminally responsible for his actions.
Minassian has been charged with 10 counts of first-degree murder and 16 counts of attempted murder. He faces 10 mandatory life sentences and potentially 26 life sentences, if found guilty.
NOT CRIMINALLY RESPONSIBLE DEFENCE
Minassian’s trial has finally begun and is being conducted entirely online through Zoom video teleconferencing due to COVID-19 restrictions.
Both the Crown prosecutors and the defence have agreed upon a lengthy set of facts setting out the events that occurred on the day of the attack. The only issue before the court is Minassian’s state of mind at the time of the attack.
Minassian’s defence is claiming that Minassian’s autism prevented him from knowing it was wrong to kill.
Section 16 of the Criminal Code codifies the defence of “not criminally responsible”. This defence typically arises when an accused who is mentally ill, does not understand either:
- The nature and quality of the act that he/she has committed, or
- That the act was wrong.
As Minassian has raised a not criminally responsible defence, the onus shifts from the Crown prosecutor to prove its case beyond a reasonable doubt to the defence to prove on a balance of probabilities that more likely than not Minassian had a mental disorder that affected his behaviour and he didn’t understand that what he was doing was wrong.
If an individual is found “not criminally responsible” he/she will fall under the jurisdiction of the Ontario Review Board (“ORB”). The ORB will hold an initial hearing shortly after the finding of not criminally responsible and additional hearings will be held once every year. The Board is made up of five members including two lawyers, a psychiatrist, a psychologist and an appointed public member who determine based on an assessment and the accused’s risk to the public whether he/she should remain in hospital, be allowed to remain in the community or absolutely discharged.
AUTISM SPECTRUM DISORDER IS MINASSIAN’S DEFENCE
Minassian’s own lawyer, Boris Bytensky, admits that it is very rare to use autism as a mental disorder when pursuing a defence of not criminally responsible.
Minassian was diagnosed with autism spectrum disorder at age five. Autism is a neurological condition that affects how the brain functions. Those living with autism often find it hard to connect with others, may have difficulty communicating, repeat certain patterns of behaviour and may show interest in a limited number of activities.
Minassian’s defence team will argue that he “only understood wrongfulness at the intellectual level” and lacked the ability to rationally choose whether his behaviour was right or wrong. It is anticipated that the defence will be calling psychiatric experts to testify that Minassian had an “autistic way of thinking” that was similar to psychosis.
UNPRECEDENTED RULING BY JUSTICE MOLLOY
Justice Anne Molloy reluctantly agreed to the never before granted demand by Dr. Alexander Westphal to guarantee that his videos of the accused are never publicly released.
Dr. Westphal, retained by Minassian’s legal team to provide expert opinion on their client’s mental state at the time of the attack, is a forensic psychiatrist specializing in autism and a professor at Yale University.
Dr. Westphal made it clear that he would not testify if the tapes of interviews with the accused were to be recorded via Zoom or released for publication or distribution. It was his belief that the footage of Minassian may be an inspiration to some vulnerable individuals and serve “as a catalyst for further violence”. Dr. Westphal also noted that he wanted to protect the autism community from misinformation.
In justifying her ruling regarding the videos, Justice Molloy stated:
Either I do it or proceed directly to sentencing. … I made the analogy of a gun to my head. Another one that occurs to me is a ransom demand. I know it’s wrong to give into those kinds of demands. As a general proposition kidnappers should not be paid ransom but that said, if somebody kidnapped my child, I’d probably pay. …
That’s my ruling. Not happy about it. (It’s) the least wrong thing to do in the circumstances.
In ordinary circumstances, Dr. Westphal’s bold request would not be entertained by a Judge. However, Dr. Westphal is an American living in the United States. If he were living in Canada, Justice Molloy could simply send a police officer to bring a hostile witness to court at a specific date and time.
Bytensky argued that he could not put forward the defence for Minassian without Dr. Westphal’s testimony and stated:
Mr. Minassian, without Dr. Westphal, will be asked to fight with both hands tied behind his back. That’s really what it comes down to. And while that may be popular with some people who are watching the trial, that is not the test your Honour has to be concerned with.
The videos in question have been described as high-definition, close-up recordings of Minassian’s face as he responds to questions by Dr. Westphal and describes the attack.
A number of media organizations opposed the sealing of the videos and argued that courts are to be open and transparent. Further, it was argued that it was an infringement of the rights set out in section 2 of the Charter which guarantee freedom of the press.
We will continue to follow the Minassian trial and will report on any further developments in this blog.
If you have been charged with a criminal offence or have questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights. We offer a free consultation and are available 24 hours a day, seven days a week.