Artist's sketch of Toronto van attack suspect Alek Minassian in court.
A screengrab of Alek Minassian’s booking video.
TORONTO — The singlemost important defence witness supporting Alek Minassian’s claim that autism prevented him from knowing it was wrong to kill 10 people refused to testify unless the judge guaranteed his videos of the accused are never publicly released.
Describing the witness’s refusal as “offensive” and a “ransom demand,” Justice Anne Molloy reluctantly agreed to the unprecedented demand, because without the doctor’s evidence, Minassian had no plausible defence to what is the most serious set of charges ever heard in an Ontario court.
“Either I do it or proceed directly to sentencing,” Molloy said in court while explaining her ruling that restricted trial viewing of the videos and banned any publication.
“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.”
If the doctor was in her jurisdiction, “he would be under arrest before he could blink,” Molloy said. But he isn’t. He is an American living in the United States.
“I’m where the buck stops at this point in terms of Mr. Minassian having a fair trial and that’s my over-arching discretion, to ensure he gets a fair trial and that’s what I’m going to do.
“That’s my ruling. Not happy about it,” she said. “(It’s) the least wrong thing to do in all the circumstances.”
A consortium of media organizations, including Postmedia, opposed the sealing order, arguing courts must be open and transparent and not held in secret — especially when they are this important.
Minassian’s legal team hired Dr. Alexander Westphal, a forensic psychiatrist specializing in autism and a professor at Yale University, to provide an expert opinion on Minassian’s mental state at the time he purposely drove a van into pedestrians in Toronto in 2018.
During trial this week, Westphal wrote to Minassian’s lawyer, Boris Bytensky declaring: “I will not testify if there is any possibility that the tapes will be surreptitiously recorded via zoom, or released for publication or distribution.”
Because of COVID-19 restrictions, the trial is being held entirely online, through Zoom video teleconferencing.
“The way I understand Mr. Minassian’s process to violence, it depended heavily on inspiration from people he watched online. 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 wrote.
Mr. Minassian, without Dr. Westphal, will be asked to fight with both hands tied behind his back
He said he also wanted to protect the autism community from misinformation of what Minassian says in the videos, apparently linking autism symptoms to previous killers.
“This case is particularly sensitive. Mr. Minassian shares a developmental disability with millions of Canadians and Americans who pose absolutely no threat to anyone around them,” Westphal wrote.
“I am deeply concerned about the effects that negative stereotypes illustrated by the footage would have on their lives and the lives of their families.”
His demand would normally be rejected almost out of hand, Molloy said. A Canadian in Canada could be compelled to show up in court at a specific date and time, willingly or not.
Molloy noted that in a different matter, she sent a police officer to collect a reluctant witness and bring him to court.
The border makes that impossible.
Bytensky himself appeared uncomfortable making the motion, admitting it may seem “unreasonable.” He admitted he had no choice if he wanted Minassian to have a plausible defence he is not criminally responsible due to mental state.
“I’m not conceding that he cannot make out the defence that I’m advancing without Dr. Westphal, but I am saying it would be infinitely more difficult to do that,” Bytensky said.
“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.”
Five psychiatric specialists offering expert opinion evidence are expected to testify, three called by the defense and two by the Crown. Only Westphal is expected to advance the opinion that Minassian’s mental state made him not criminally responsible for the van attack.
Bytensky described the videos as high-definition, close-up recordings of Minassian’s face being interviewed by Westphal and a colleague, describing his attack “in excruciating detail.”
He said they are “very personal” and “somewhat chilling.”
The videos also make it clear Minassian really was influenced or inspired in his attack by the mass killings of Elliott Rodger in California in 2014, and the “incel” ideology that it fuelled. Short for “involuntarily celibate,” it is a fringe subculture of men whose inability to attract sexual interest from women fuels self-loathing and hatred of women and sexually successful men.
Bytensky argued the videos of Minassian would similarly fuel copycat killers and give Minassian more of what he wanted: infamy and notoriety.
Crown prosecutor Joseph Callaghan referred to the restrictions as an attempt to “hijack this process.”
“The importance of the testimony enhances the public’s need to know,” he said, not diminish it.
Brendan Hughes, arguing on behalf of the consortium of eight media organizations, said it was an infringement of the Charter guarantees to freedom of the press and open courts.
“It can’t be the case that witnesses are allowed to dictate their terms,” Hughes said.
Everything at the trial hinges on Minassian’s mental state.
He admits he planned the van attack and purposely drove onto the sidewalk with intent to kill people. He admits he killed the 10 people who died in his attack and attempted to kill 16 he injured.
He faces 10 mandatory life sentences and potentially 26 life sentences if found guilty.
A process for the media and members of the public to report on the testimony and view the videos in a restricted way will be made, Molloy said, but how that will be done is not yet known.
Copyright Postmedia Network Inc., 2020