Judge seals Minassian video interview
U.S. psychologist wouldn’t testify for defence unless recording didn’t go public
With what she called “a gun to her head,” Superior Court Justice Anne Molloy made the unprecedented and extraordinary decision on Friday to proactively seal video recordings of Alek Minassian being interviewed by an American forensic psychiatrist who refused to testify if the recordings would be released to the public.
“Sealing exhibits that don’t even exist yet, that I have not even seen in advance in order to secure his testimony is offensive,” Molloy said. “That said, I am going to do it.”
Though it was tantamount to paying a ransom to a kidnapper, Molloy said the alternative would mean denying Minassian a fair trial for the first-degree murder of 10 people and the attempted murder of 16.
Minassian had admitted to renting a van and intending to kill all his victims as he ran them down on the Yonge Street sidewalk on April 23, 2018.
He is advancing a defence of not criminally responsible, arguing his autism spectrum disorder rendered him incapable of understanding his acts were morally wrong.
Dr. Alexander Westphal, a forensic psychiatrist specializing in autism spectrum disorder, is expected to provide critical testimony. In a brief section of his report read by the Crown last week, Westphal opined that Minassian’s “autistic way of thinking was severely distorted
similar to psychosis.”
That comment and the broader defence have been criticized by the autism community for falsely promoting negative stereotypes about the developmental disorder which is not associated with violence.
Westphal, a faculty member at the Yale School of Medicine, is based in the U.S. and cannot be easily compelled to testify by a Canadian court, Molloy said, noting that she had once ordered the police to pick up an expert who had refused to come to court and would do so again if needed.
Minassian “only has one defence available to him, that has been clear right from the beginning. Dr. Westphal has refused to participate knowing there is nothing I can do about it if he does not, and knowing that he’s all there is in terms of a defence for Mr. Minassian,” she said. “If any person over whom I can have jurisdiction to compel had issued this kind of ultimatum, they would get short shrift.”
The issue first arose when the Crown learned last week West
phal had videotaped about five hours of his interviews with Minassian in December 2019. The Crown wanted access to them in order to better be able to challenge Westphal’s opinions. After a hearing, Molloy ordered the videos to be disclosed to the Crown if Westphal testified, against the wishes of the defence.
Westphal then wrote a letter to the court refusing to testify if the video would be played in the Zoom court, which is being watched by pre-approved media and lawyers, and if there was any chance the videos would be made public.
In the letter, Westphal denied relying on the footage to prepare his report and did not realize they could become part of the trial.
“For me this is a line that cannot be crossed. I will not testify if there is any possibility that the tapes will be surreptitiously recorded via Zoom, or released for publication or distribution,” he wrote.
He gave three reasons. First, that Minassian was inspired to violence “from people he watched online.” Minassian’s lawyer, Boris Bytensky, has said he will be arguing that Minassian was closely influenced by the manifesto and a video produced by mass shooter Elliot Rodger.
“I think Mr. Minassian’s footage could have the same effect on other vulnerable people and could serve as a catalyst for further violence,” Westphal said.
In his submissions in court Friday, Bytensky described the hi-definition footage as “chilling.” It shows a clear close-up of Minassian’s face as he describes his actions in “excruciating detail,” he said.
Westphal also said allowing the videos to be released publicly would also validate Minassian’s stated desire for notoriety. Finally, he said, he is concerned about the stigmatizing effect the “negative stereotypes” in the video could have on millions of people with autism and their families.
“Mr. Minassian shares a developmental disability with millions of Canadians and Americans who pose absolutely no threat to anyone around them. Furthermore, they are a very vulnerable population, already likely to be bullied, and much more likely to be the victims of violence than regular people,” he said.
“While I understand that it is essential for the court to understand autism and the role it played in Mr. Minassian’s actions, my duty to the many people I know with autism surpasses that.”
The problem is that since the videos will only be released to the Crown if Westphal testifies, the judge, the Crown and the lawyer representing the media have not seen the videos. Therefore normal process to determine whether the videos meet the criteria to be sealed under the Canadian legal test can’t happen.
As lawyer Brendan Hughes argued in court on behalf of a coalition of eight media outlets including the Toronto Star, Westphal has effectively held the court hostage.
“Permitting a witness to affect the court process by imposing terms under which their evidence is presented would represent a serious risk to the administration of j ustice,” Hughes wrote in his factum. “This is especially the case where the impact of those terms would be to restrict other parties’ Charter rights and the open court principle.”
Molloy agreed that the request was untenable.
“I do not accept that the issues raised by Dr. (Alexander) Westphal would justify the order he thinks I should be making,” she said.
“I made the analogy to a gun to my head. Another one that occurs to me is a ransom demand,” she said.
She said she would only allow portions of the video to be entered as an exhibit if they were absolutely necessary. The public view of Zoom hearing will be disabled during the time the video is played, except in the physical viewing room where the trial is being shown on a large screen, in order to prevent the surreptitious recording of the videos, as per Westphal’s demand.
The trial continues Monday.