National Post (National Edition)
Jerema on autism precedent,
Alek Minassian's defence that his Autism Spectrum Disorder (ASD) was behind the 2018 Toronto murder of 10 people was an incredible slur on others living with the condition. The apparent ease with which Judge Anne Molloy took apart the defence's argument in her 68-page ruling finding him guilty on all counts is satisfying.
But the fact that Minassian, who used a rented van to run down and kill his victims, will likely spend the rest of his life behind bars wasn't the most consequential part of Molloy's ruling. In concluding that this specific case did not meet the standard for a finding of not criminally responsible, Molloy wrote that autism could meet the definition of a mental disorder needed to escape a guilty verdict. Before Wednesday, there was no other Canadian precedent allowing autism in an NCR defence.
In one case in Canada a young offender was on trial for arson but was found not criminally responsible in part because the accused had “Asperger's Disorder,” an older name for a form of autism. On appeal however, the verdict was set aside for unrelated reasons and the judge declined to address whether ASD met the legal bar for an NCR ruling.
Presumably, Molloy could have found Minassian guilty on the grounds that he was fully aware that he was committing murder, understood that it was wrong, and had planned the attack well in advance, without also opening the door to autism being used in a future NCR defence.
Instead, she opted to allow ASD to be considered a mental disorder for the purposes of an NCR defence, but she applied it only narrowly. “In its severe manifestations, and particularly where there are comorbidities, ASD might cause a person to lack the capacity to appreciate the nature of an action or to know that it is wrong. It is not possible to rule out ASD at this threshold stage by holding that it cannot ever qualify as a mental disorder” under Section 16 of the Criminal Code, she wrote.
Molloy's narrow definition should offer relief to those with ASD that they will not be considered culpable simply because of their disorder. This is important because, as was noted at the trial, those with ASD are not inherently violent.
At issue was the severity of Minassian's condition. While symptoms vary, ASD was apparent in his case. He “speaks in a monotone and with a stilted manner of speech,” Molloy wrote. He has difficulty maintaining “normal eye contact” and “his eye contact is overly intense.”
As a child he would engage in ritualistic or repetitive behaviour. As my Post colleague Adrian Humphreys has reported, Minassian would bang his head against a wall, “so much so, his parents often held their hands against the wall to soften the blow and prevent him from hurting himself.” He was “terrified of repeating reflections in mirrors and insisted on cutting out holes he spotted in his toast.”
While Minassian is of above-average intelligence, he struggles greatly with interpreting other's emotions.
This apparent lack of empathy formed the basis of the defence, which claimed that Minassian could not fully grasp that his actions were “morally” wrong, even if he understood that what he was doing was against the law and was considered wrong by others. A psychiatrist who testified for the defence argued that Minassian's “communication in everyday settings is more like that of a child, and his skills in social relationships are even lower.”
Molloy rejected that reasoning. Minassian clearly “thought about committing these crimes over a considerable period of time and made a considered decision to proceed. His attack on these 26 victims that day was an act of a reasoning mind, notwithstanding its horrific nature and not withstanding he has no remorse for it and no empathy for his victims.”
Molloy also played down claims that the crimes were committed as part of an “incel rebellion” and argued that the attack was driven by a desire for notoriety.
While some may still find it troubling that someone with autism could be found not guilty for any manner of crimes because of their disorder, setting the precedent narrowly the way Molloy has could actually be a benefit to those with ASD, says Toronto criminal defence lawyer Nadia Chaabane.
“It's huge,” she said of the ruling. Just because an NCR defence didn't fit in this particular case, doesn't mean it couldn't fit in other, less egregious cases, she said.
Typically, symptoms associated with schizophrenia such as psychosis are what make up the vast majority of NCR defences. This ruling “broadens our understanding of the coexistence of mental health and the criminal justice system,” she said. “There are a lot of people who are in the criminal justice system because of a mental health issue and that's not because they are bad people.”
A guilty verdict was always the only option in this case.
ATTACK WAS DRIVEN BY A DESIRE FOR NOTORIETY.