not criminally responsible

Alek Minassian Pleads Not Criminally Responsible for Van Attack

Written on Behalf of Affleck & Barrison LLP

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.


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.


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.


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. 

Woman Found Not Criminally Responsible in Fatal PATH Stabbing

Written on Behalf of Affleck & Barrison LLP

Rohinie Bisesar (“Bisesar”), accused of fatally stabbing 28-year-old Rosemarie Junor (“Junor”) in a Shoppers Drug Mart in Toronto’s underground PATH system in 2015, has been found not criminally responsible.

Bisesar pleaded not guilty last week to the first-degree murder charge. Bisesar’s lawyers maintained that she was not criminally responsible due to her mental illness. Her trial was held before a judge only.

Ontario Superior Court Justice John McMahon ruled that he was satisfied, on a balance of probabilities, that Bisesar, who suffered from schizophrenia, “was incapable of knowing the killing was morally and legally wrong”.


On December 11, 2015, while shopping at a make-up counter beneath Bay and Wellington streets, Junor was fatally stabbed. She was taken by ambulance to hospital where she succumbed to her injuries.

The unprovoked attack took a mere 54 seconds and was recorded on the store’s surveillance video. Bisesar walked into the pharmacy and stabbed Junor once in the heart with a small knife purchased at a dollar store. She did not speak to Junor during the attack, placed the knife on the counter following the stabbing, and immediately left the store.

According to Bisesar’s lawyers, she was experiencing hallucinations that took control of her physically. A forensic psychiatrist, Dr. Ian Swayze, the only witness at the trial, gave evidence that at the time of the incident Bisesar was experiencing a psychiatric breakdown due to untreated schizophrenia.

According to Dr. Swayze’s report, Bisesar was hearing voices in her head. The voice commanded her to buy a knife, and walk into the Shoppers Drug Mart. Dr. Swayze wrote that “The voice and movements raised my hand, pushed forward … it was like the knife was sticking to my hand and couldn’t be dropped.”

As a result of the not criminally responsible verdict, Bisesar remains in a secure wing of the Centre for Addiction and Mental Health in Toronto until an Ontario Review Board hearing is held.


According to section 16 of the Criminal Code, a person is not criminally responsible for something that he/she did if they were suffering from a mental disorder at the time of the offence, and:

  • the mental disorder made it impossible for him/her to understand the nature and quality of what he/she did; or
  • the mental disorder made it impossible for him/her to understand that what he/she did was morally wrong.


Bisesar’s release is controlled by the Ontario Review Board (“Board”). This is an independent tribunal that oversees and annually reviews every person found to be not criminally responsible or unfit to stand trial for criminal offences due to a mental health condition.

The Board consists of a five person panel, which includes a psychiatrist, a lawyer, a mental health professional, a member of the public, and a Chairperson.  The Chairperson must either be a practicing or retired judge or someone who can be appointed to a judicial office (i.e. a lawyer who has 10 years of experience).  All members of the Board are appointed by the Lieutenant Governor.

The Board hears evidence from the individual and his/her lawyer, the Crown prosecutor, a psychiatrist, and possibly others that may include a family member or other specialist. The hospital facility also provides a report to the Board detailing the individual’s history and progress.

The Board’s decisions are made by a majority vote. The most important concern of the Board is whether the individual poses a significant risk to the safety of the public. If the individual is found to be a significant risk, the Board will consider other factors. The most important being the protection of public from dangerous persons, the re-integration of the person into society, and the liberty interests of the person.

The Board reviews the disposition annually to determine whether changes need to be made depending on the progress made by the individual. The Board can make one of three dispositions:

  • Detention Order: The individual should continue to be detained in the hospital and makes a decision regarding whether the individual stays at a minimum, medium or maximum secure unit and what access the individual would have to the community;
  • Conditional Discharge: The individual is allowed to live in the community while subject to certain requirements (i.e. having to report to a hospital, refrain from using alcohol or drugs, reporting any change in address, or refrain from contact with certain individual); or
  • Absolute Discharge: The individual is granted a full release with no further supervision.

Victims can provide victim impact statements at the annual Board hearings. The statements do not have an impact on the decision the Board makes, unlike at a sentencing hearing. The Board’s decision must be based on the individual’s current level of risk to public safety.

If you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Jury Finds Anne Norris Not Criminally Responsible in Death of Marcel Reardon

Written on Behalf of Affleck & Barrison LLP

A Newfoundland jury found Anne Norris (“Norris”) not criminally responsible in the death of 46-year-old Marcel Reardon (“Reardon”).

Following the verdict, Norris has been placed in the custody of the Newfoundland and Labrador Criminal Mental Disorder Review Board for psychiatric treatment.


Norris pleaded not guilty to first-degree murder in Reardon’s death, but admitted to repeatedly hitting him in the head with a hammer early in the morning of May 9, 2016.

The following details admitted by Norris were presented to the jury:

  • Norris socialized with Reardon and two others downtown in St. John’s on May 8, 2016, before leaving alone and going to Walmart on Topsail Road;
  • Norris purchased a knife and a 16 oz. Stanley hammer at a Walmart hours before the incident;
  • Norris returned downtown and in the early morning hours of May 9, 2016 she and Reardon took a cab to Harbour View Apartments on Brazil Street, where she lived;
  • Norris killed Reardon by striking him several times in the head with the hammer, then moved his body under a set of concrete steps;
  • Norris put the murder weapon, her jeans and some rope into a borrowed backpack and threw it in St. John’s harbour;
  • The backpack was recovered two days later and turned over to the police; and
  • Norris admitted to owning a sock, scarf, bathrobe and a pair of sneakers taken by police from her apartment, which were found to contain Reardon’s blood.

The issues at trial were whether or not Norris was mentally sound enough to be criminally responsible for Reardon’s death, and if so, whether or not the killing included the intent and planning required for first-degree murder.

Norris’ lawyers maintained that she was suffering from a mental disorder when she attacked Reardon and therefore should be found “not criminally responsible”. Her lawyers suggested that Norris was “a ticking time bomb” and had been on a “downward spiral” since the age of 24. She has received treatment in the past for psychosis and has a longtime belief that she was being sexually assaulted by various men while she slept. She had been released from the Waterford Hospital practically untreated days before she killed Reardon. Lawyers argued that Norris thought Reardon was going to sexually assault her and that’s why she attacked him.

On the other hand, Crown prosecutors argued that the evidence demonstrated that Norris was not delusional and planned a deliberate killing, even going so far as to dispose of the weapon. Lawyers for the Crown reasoned that although Norris had a mental illness, there was no evidence of her being symptomatic at the time of the attack.

The trial lasted one month and 31 witnesses were called, including police officers, friends of Norris, Norris’ father, employees of Walmart, the province’s chief medical examiner, five psychiatrists and one psychologist.


Not criminally responsible (“NCR”) is defined in section 16 of the Criminal Code. An individual is NCR if he/she was suffering from a mental disorder at the time of the offence, and:

  • the mental disorder made it impossible for him/her to understand the nature and quality of what he/she did; or
  • the mental disorder made it impossible for him/her to understand that what he/she did was morally wrong, not just legally wrong.

The party raising the issue of NCR has the burden. More likely than not it is the defence who must prove the accused is NCR on the “balance of probabilities”.

Once an individual is found NCR, he/she is not acquitted. Instead the individual is diverted to a provincial or territorial review board (pursuant to section 672.38 of the Criminal Code), which are independent tribunals made up of at least five people, including a licensed psychiatrist. Each year cases are heard by the board at which point the board can impose one of the following:

  • that the individual remain detained in a hospital with varying levels of privileges;
  • that the individual be released on a conditional discharge (individuals are allowed into the community where they have substantial freedom and relatively light conditions); or
  • that the individual be released on an absolute discharge (individuals are released into the community without any supervision).

Absolute discharges are only granted when the board finds the individual is not a “significant threat” to public safety.

The Crown, in this case, has 30 days to decide whether it will seek to appeal the verdict. In the meantime, Norris will remain in psychiatric care until a review board deems her fit to be released into the community.

If you have been charged with a serious offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.




Man Found Not Criminally Responsible for Killing Police Officer Has Been Released

Written on Behalf of Affleck & Barrison LLP

A man who was found not criminally responsible for killing a Toronto police officer in 2011 by running him over with a stolen snow plow has been released from a psychiatric hospital and is living in Durham Region.

What Happened?

In winter 2011, Richard Kachkar was in the midst of a psychotic breakdown and behaving erratically when he stole a snow plow, barefoot and without a jacket on. After an hour of driving around Toronto, he was apprehended by Sergeant Ryan Russell, and ran him over with the plow as the Sergeant tried to stop him, killing the officer.

At trial, Kachkar’s defense lawyers conceded that he had killed Russell, but argued that Kachkar was not legally blameworthy (i.e.- culpable) because he had been influenced by a mental disorder.

The Crown (i.e- prosecution) acknowledged that it was more likely than not that Kachkar had been suffering from a mental disorder, but argued that it was not serious enough to meet the threshold of “not criminally responsible”. Instead, the prosecutor suggested that Kachkar had been influenced by his anger and frustration by the direction his life had taken.

In 2013, after a seven-week trial, a jury found Kachkar not criminally responsible for the crime and he was sent to the Ontario Shores Centre for Mental Health Sciences in Whitby.

Not Criminally Responsible

Currently, s. 16 of the Criminal Code recognizes the defense of not criminally responsible on account of mental disorder, referred to more often as NCR.

The NCR defense depends on the answer to two fundamental questions:

  • Did the accused have a mental disorder at the time the act was committed?
  • Did the mental illness render the accused either a) incapable of appreciating the nature of the act or b) incapable of understanding that the act was wrong.

In order for a jury or judge to deliver an NCR verdict, they must answer yes to the first question and to at least one of the two options in the second question.

During an NCR trial, it is up to the person who wants to rely on the NCR defense to prove that the accused is not criminally responsible- in this case, Kachkar’s lawyers. The standard of proof is a “balance of probabilities” (i.e.- more likely than not).

An NCR verdict is not a guilty verdict, but it is also not an acquittal. Rather, it recognizes that a person who did not have the mental capacity to have a criminal intent cannot be found guilty. An accused who is found to be NCR is treated as a patient, not a criminal, and are remanded to a mental health institution of hospital. The intention is not to punish them, but to rehabilitate and mitigate their future risk to the public. Eventually the goal is to slowly reintegrate the individual into the community.

If you or someone you know has become involved in the criminal process, or have questions about your rights, contact Affleck & Barrison LLP. We provide skilled criminal defence, including for murder, manslaughter, and other serious offences. Located in in Oshawa, we serve clients throughout Ontario in the Durham Region, the Greater Toronto Area and points east. Call 905-404-1947 or contact us online.

Man Found Not Criminally Responsible for Beheading Fellow Bus Passenger Seeks Absolute Discharge

Written on Behalf of Affleck & Barrison LLP

Will Baker, formerly known as Vince Li, was originally found not criminally responsible (i.e.: “NCR”) for the murder of Tim McLean, whom he had decapitated and cannibalized on a Greyhound bus in Manitoba in 2008.

Mr. Baker has now asked the Criminal Code Review Board for an absolute discharge. If granted, there will be no conditions placed on his freedom, and no legal requirement to obtain treatment for his mental illness.

Absolute Discharges

In 1999, the Supreme Court of Canada found that individuals who have been found to be not criminally responsible for their crimes must be granted an absolute discharge if they do not pose a “significant threat to public safety”.

Mr. Baker’s Current Situation

Following the murder, Mr. Baker was diagnosed with schizophrenia, and initially housed in a secure psychiatric facility in Selkirk, Manitoba. Over the last several years, he has been gradually granted more freedoms.

Mr. Baker began living on his own in 2016; however, a pharmacy employee continues to ensure that he takes his medications daily.

The Criminal Code Review Board

Under the Criminal Code, a Review Board must be established in each province to make or review decisions concerning any individual who has received a verdict of not criminally responsible by reason of mental disorder. The Boards are generally made up of judges, lawyers, psychiatrists, psychologists, and members of the public who are al appointed by the Lieutenant Governor.

The mother of Mr. Baker’s victim told the Review Board reviewing Mr. Baker’s status that she is concerned about public safety should he be granted the discharge, and informed the Review Board that in her opinion, he should remain in a facility and never be “completely free”.

Crown Attorney Mary Goska likewise argued that an absolute discharge would be too great of a risk to the general public, telling the Board that “it’s clear that [Mr. Baker] can be dangerous in certain circumstances”.

A doctor who has treated Mr. Baker told the Review Board that while it had taken more than a year for Mr. Baker’s symptoms to “resolve completely” he is now at a “low risk”, as he understands that his medication keeps his illness under control. The doctor did admit that there is a risk of relapse if Mr. Baker was to stay off his medication for a prolonged period of time, and recommended that Mr. Baker always continue to see a psychiatrist.  According to the doctor, Mr. Baker plans to remain in Winnipeg for several years, but ultimately wants to visit China, his native country.

The Review Board is expected to make a decision with respect to the absolute discharge shortly. We will continue to follow developments in this matter and will update our readers once more information becomes available.

If you have questions about absolute discharges, a finding of NCR, or the Review Board process, contact the skilled Oshawa defense lawyers at Affleck Barrison online or at 905 404 1947. For your convenience, we offer 24-hour phone services and a free confidential consultation. We are available when you need us most.

Senior Who Beat Fellow Long Term Care Home Resident to Death Gets Life in Prison

Written on Behalf of Affleck & Barrison LLP

We previously blogged about Peter Brooks, a 76-year old man who had been found guilty of second-degree murder after Joycelyn Dickson who was beaten to death at a long term care facility in Scarborough in 2013.  Brooks had used a cane to fatally injure the other resident. He was also charged with attempted murder following an attack on another elderly resident at the same facility.

Brooks has since been sentenced to life in prison, and will not be able to apply for parole for another 10 years, which is the minimum period of time following a second-degree murder conviction.

The Trial

Brooks’ defence lawyer had argued that Brooks was not criminally responsible for his actions. The defence relied on evidence by a forensic psychiatrist who testified that Brooks had been suffering from dementia and delusions at the time of the incident which had caused damage to his brain’s frontal lobe and left him unable to distinguish the consequences of his actions:

We all know that, regardless of what Peter’s belief was, there is nothing that can justify his actions. This is where Peter’s departure from society’s moral code becomes glaringly obvious. He is still unable to appreciate the moral wrongfulness of his actions.

The Crown had argued that despite Brooks’ mild dementia, he had deliberately and intentionally attacked the two residents for “sweet revenge” (which had been Brooks’ own words). Brooks’ belief that the women had been conspiring against him was based in reality as the women had complained to management on a number of occasions about violent or hostile interactions they had previously had with Brooks. It was the Crown’s position that there had been no evidence of “psychotic thinking that can be raised above suspiciousness”, that Brooks had threatened to kill the resident and then took steps to act on the threat, that he ultimately minimized his conduct and blamed the victims, and then lied to the jury about being unable to remember the murder and made up an account of being told to “beat” the women in a dream.

All second degree murder charges have an automatic sentence of life in prison. If you have been charged with murder or manslaughter, or have questions about other criminal charges and your rights, contact the Oshawa criminal lawyers at Affleck Barrison online or at 905-404-1947. We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times.

Psychiatrist testifies that senior in murder trial has dementia and delusions, and is not criminally responsible

Written on Behalf of Affleck & Barrison LLP

Peter Brooks, 76, is on trial for first degree murder after he beat Joycelyn Dickson, 72, to death in her bed with his cane. Dickson was a fellow resident at the Wexford long-term care facility in Scarborough. Brooks is also charged with attempted murder, for attacking a second resident, Lourdes Missier, 91, on the same night.

On the evening of March 13, 2013, Brooks entered Missier’s and attacked her with his cane, leaving her with injuries to her hands and face. Brooks then went upstairs and killed Dickson, who was partially paralyzed, by hitting her in the head at least seven times while she slept in her bed.

Brooks pled not guilty to the charges at his first trial date, where he appeared in a wheelchair and required an assistive listening device in order to hear the proceedings. A forensic psychiatrist retained by Brooks’ defence lawyers has since testified that at the time of the incident, Brooks was suffering from dementia and delusions and should be found not criminally responsible.

History of Animosity

The jury previously heard of a history of animosity between Brooks and the women over the course of the two years that Brooks lived in the facility.

Missier and Brooks had once lived on the same floor and had been friendly, but their friendship eventually soured after Missier began to share treats she received from her family with residents other than Brooks. Brooks and Dickson once resided on the same floor for a year and had engaged in verbal clashes.

Brooks was moved back to the same floor as Missier days before the attacks occurred. On the day of the attacks, Missier expressed a fear of Brooks and informed staff that she did not want to be on the same floor as him. On the same day,  Dickson told a Wexford employee that she feared that Brooks would kill her.

Dementia and Delusions

Dr. Julian Gojer, a forensic psychiatrist, testified that Brooks has likely had dementia since 2010, and this has impacted his brain functioning, memory, and inhibitions. In addition, since 2011, Brooks suffered from a strong paranoid delusion that Missier and Dickson were conspiring with staff and management to harass him and get him removed from the facility.

Dr. Gojer testified that

[Brooks] is now suffering (from a mental disorder) and was suffering from a mental disorder at the time of homicide. I can say that with a very strong conviction.

In Dr. Gojer’s opinion, Brooks was so consumed by his delusional behaviour nothing else seemed to matter. Brooks would have been unable to foresee the consequences of his actions, or weigh the pros and cons of his actions (which is a major component of determining criminal responsibility). He pointed to Brooks’ admission to hitting the women when confronted by staff, and the fact that he made no attempt to run away following the attacks.

Dr. Gojer additionally suggested that the attacks had been triggered by Brooks’ fear of being moved within the facility, to the independent wing, and his worries about his ability to care for himself and afford the higher costs of living there. The psychiatrist noted that, in 2010, prior to living at Wexford, Brooks had been found in his apartment, “in a terrible state”, drinking heavily and depressed following the death of his wife. Brooks was initially admitted to hospital, and later transferred to Wexford.  According to Dr. Gojer, there had been no effort by Wexford staff to treat Brooks’ dementia or paranoid delusions.

The psychiatrist testified that:

…Rather than treat his delusion with anti-pyschotic medication they thought about transferring him to another unit…[i]f he was placed in a nursing home again, I guarantee there would be problems. He is not a safe person to be put in a nursing home, he needs to be in a hospital. He needs to be treated.

Dr. Gojer additionally refuted the prosecutor’s suggestion that Brooks was lying or faking his condition, and the allegation that Brooks had to have remembered attacking the women. The psychiatrist testified that Brooks had been tested for signs of “malingering” (i.e- lying) and did not show any signs of it. Additionally, Brooks’ claim that he did not remember the attacks could be explained by the fact that people suffering from dementia are highly susceptible to filling gaps in their memories with information they received from other sources.

Dr. Gojer emphasized that Brooks has no known history of violence and no criminal record prior to moving into the Wexford. He noted that it will be up to the jury to decide:

Is (Brooks) simply an angry old man, a cantankerous disgruntled nursing home resident or is he a person with a delusion acting in a violent manner because he thinks someone is harming him?

We will continue to follow developments in this case and will provide updates as necessary.

If you have been charged with murder or manslaughter , or have questions, contact our firm online or at 905-404-1947 to discuss your charges with one of our experienced Oshawa lawyers. We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times.