Ethical Guidelines for Canadian Forensic Psychiatrists: “Forensic psychiatrists may be called or be tempted to give evidence on areas that fall outside their visual practice and areas of expertise…”
December 20, 2020
By Talha Hashmani
Final deliberations by both the defence and Crown counsels marked the end of the fourth week of trial for Alek Minassian, accused of perpetrating the 2018 van attack in Toronto.
Minassian is charged with 10 counts of first-degree murder and 16 counts of attempted murder. He pleaded not guilty on the first day of trial under the defence of not criminally responsible (NCR), as outlined in section 16 of the Criminal Code of Canada. In his closing statements to the court, Crown attorney Joseph Callaghan said that Minassian’s diagnosis of autism does not qualify him under the NCR defence, as it requires a certain level of incapability. According to Callaghan, Minassian was capable of knowing between right and wrong but freely chose to make the wrong choice.
Section 16 of the Criminal Code classifies the NCR defence under the following three subsections:
- No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder than rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong
- Every person is presumed not to suffer from a mental disorder so as to be exempted from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
- The burden of proof that an accused was suffering from a mental disorder so as to be exempted from criminal responsibility is on the party that raises the issue.
In interviews with Dr. Alexander Westphal, Minassian said that he had fantasized about school shootings and mass murders since high school. To the Crown, the fact that Minassian was able to control his fantasies and not act on them for a while showed that he was in control of his actions and desires. Minassian also didn’t talk to other people about his fantasies because, as he put it, no one would have sympathy for the problems he had.
Taking apart Minassian’s various interviews with Westphal, defence attorney Boris Bytensky stated that Minassian “did not have the capacity to make a rational choice”. Bytensky also referred to Westphal’s report, which noted that Minassian had “stopped at an early stage of the development of moral judgment”.
According to Bytensky, the defence’s case rested on the argument that Minassian could not make a rational choice. The defence’s case also emphasized Minassian’s inability to discern the moral wrongfulness of his actions.
Minassian: “I just want to settle my mind… it was racing… the thing that was most concerning me was the huge splash on my window and that I couldn’t see anything… because I could very easily hit a pole.”
Moral wrongfulness also played a vital role in the judgement provided for R. v. Oommen, a case that went up to the supreme court of Canada in 1994. Oommen was charged with the second-degree murder of a friend. He also suffered from a mental disorder described as “a psychosis of a paranoid delusional type”. At trial, Oommen used the defence of not criminally responsible but was found guilty and sentenced. The court of appeals ordered a new trial and set aside the initial convictions. The Crown then appealed this order, and the case eventually found its way to the Supreme Court of Canada.
R. v. Oommen was referenced by Bytensky in his final deliberations, as part of a list of other case laws that have dealt with matters surrounding the NCR defence. However, none seem to address the question of rational choice. With the Oommen case, the focus was on the accused’s claims of insanity, which arose out of delusions and paranoia. In their decision to overturn the appeal, the Supreme Court of Canada explained that an individual does not have to demonstrate that their delusions are true and are what instigated a criminal offence. Rather, the existence of such delusions is enough to satisfy the criteria for the NCR defence. Bystenky argued that the Oommen case should be a standard for trying Minassian, as it brought up questions of legal wrongfulness.
Minassian: “I’m thinking that this is it. I see all these people it’s to go for it. I speed the van towards them and I allow the van to collide with them.”
In an interview with Dr. Westphal, Minassian said that he knew it was socially wrong to kill but did not want to back down since he had already planned his attack. The defence counsel argued that this reflected Minassian’s rigid and concrete thinking, part of what made it difficult for him to morally reason between right and wrong. Seeing as he told various psychologists that he would commit his attack again if released, the defence argued that Minassian could not truly understand the magnitude of his actions – neither could he understand the moral wrongfulness of his attack. Concluding his deliberation, Bytensky asked the court that if Minassian could contemplate the morality of his actions, then why wasn’t he remorseful and why did he confide in Dr. Scott Woodside that he was concerned about increasing his kill count.
Ultimately, the defence counsel put forward a submission that Minassian was motivated less by wanting to cause suffering and instead wanted to get a higher kill count. An achievement that he associated with infamy and appreciation from the online community. This was further instigated by his autism, according to the defence, resulting in a hyper fixation on the subject of mass murder and the desire to have a high kill count.
According to the Crown, Minassian’s diagnosis of autism did not play a role in his attack. Neither did it affect his ability to know that killing was morally wrong.
Justice Molloy is set to deliver her judgement for this case on March 3, next year.
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On Thursday, Dec. 17, Autism Ontario came out with a statement in support of the Canadian autistic community:
As the Alek Minassian trial comes to a close, we want to reiterate that autism is not defined by a lack of understanding of right or wrong and it is not a precursor to violent behaviour.
The autistic community has been a powerful voice throughout this trial. We understand this is a highly emotional time for the autistic community in Canada and we remain by your side throughout the course of these legal proceedings, and beyond.
We will continue to monitor this trial and respectfully await the process and final decision of the court, at which point we will provide further comment. Autism Canada advocates for all individuals on the Autism Spectrum and we will always be here for you.