`I AM SATISFIED AUTISM SPECTRUM DISORDER MEETS THE CRITERIA'

Justice Anne Molloy ruled that autism spectrum disorder did not leave Alek Minassian not criminally responsible for killing 10 people and injuring 16 others, but her decision to consider that possibility means the argument could be made in future cases. Here is her reasoning for including autism as a mental disorder in the context of an NCR defence:

To meet the requirements for a defence under s. 16 of the Criminal Code, the accused must establish either: (a) that he has a mental disorder that renders him incapable of appreciating the nature and quality of his act; or (b) that he has a mental disorder that renders him incapable of knowing that it was wrong. This is commonly referred to as an NCR (“not criminally responsible”) defence. All of the experts agreed that Mr. Doe was not psychotic at the time of this attack, nor was he suffering from any delusions. Rather, he was fully aware of what he was doing when driving the car down the sidewalk, and that this would result in the deaths of many people. He also understood that deliberately killing people in this manner would be murder and that this is a criminal offence. Thus, he appreciated the nature and quality of his actions and he knew they were legally wrong. Therefore, the only aspect of the s. 16 defence that might possibly fit Mr. Doe's circumstances is whether, because of his Autism Spectrum Disorder, he was incapable of knowing that his actions were morally wrong. On this issue, there was a division of opinion among the experts. And it is this issue that is the central point for me to decide in this case.

Under s. 16, it is only an incapacity caused by a “mental disorder” that qualifies for the NCR defence. The first step, therefore, is to determine whether Autism Spectrum Disorder qualifies as a “mental disorder” within the meaning of s. 16 of the Criminal Code. In this context, “mental disorder” is a legal term with a specific legal meaning that may not be the same as what a layperson would consider to be a mental disorder in everyday language.

Based on my review of the legal principles, I am satisfied that Autism Spectrum Disorder meets the criteria to be considered a mental disorder for the purposes of this section. This merely opens the door. It means that people with ASD are eligible to be considered for a possible defence under this section, in the same manner as people with many other kinds of disabilities. It says nothing about whether the particular impact of that disability on that particular person in the particular circumstances of the crimes alleged constitutes a defence to the charges, nor does it say anything at all about any connection between ASD and criminality.