Not criminally responsible: Alek Minassian's likely defence, explained

·4 min read

TORONTO — The trial for a man who killed 10 people when he drove a van down a busy Toronto sidewalk is expected to hear defence lawyers argue this week that 28-year-old Alek Minassian should be found not criminally responsible for his actions. 

Minassian is facing 10 counts of first-degree murder and 16 counts of attempted murder. He has admitted to planning and carrying out the 2018 attack, and the judge presiding over the case has said the trial will turn on his state of mind at the time. 

Once proceedings get underway Tuesday, defence lawyers are expected to try to convince Justice Anne Molloy that Minassian had a mental illness that rendered him incapable of knowing what he did on April 23, 2018 was wrong.

Daniel Brown, a Toronto criminal defence lawyer who is not involved in the trial, said that in such cases the onus shifts away from the Crown having to prove beyond a reasonable doubt that an accused committed a crime.

"The accused must prove on the balance of probabilities that it's more likely than not that they had a mental disorder and that mental disorder impacted their actions at the time to the point where they really didn't understand that what they were doing was the wrong thing," Brown said.

"It's a really difficult defence to raise. And it's a really rare defence as well."

Dr. Gary Chaimowitz, a forensic psychiatrist and McMaster University professor who also isn't involved in the Minassian case but has been part of several trials where a not criminally responsible defence has been raised, said a legal test is applied to determine criminally responsibility.

"You need to not appreciate the quality and the nature of your actions or you need to not know what you're doing was wrong, either from a moral or legal perspective," Chaimowitz said.

"The vast majority of people who are not criminally responsible have psychotic disorder conditions such as schizophrenia, bipolar disorder, schizoaffective disorder or delusional disorder — people whose mental illness led to them being out of touch with reality."

The key to the legal argument, explained Brown, is timing. 

The defence will have to show Minassian was under the throes of a mental disorder at the time of the attack, he said. 

Minassian has lived with Asperger's syndrome, which is now referred to as autism spectrum disorder, for much of his life, according to old high school classmates. 

It is unclear, however, what mental disorder Minassian has that would be used for his not criminally responsible defence.

The Crown and Minassian's lawyer, Boris Bytensky, have discussed aspects of the case in court over the past year. 

Minassian has undergone several court-ordered psychiatric evaluations along with psychological testing, court has heard. 

Each side has their own mental-health experts who are expected to testify at trial, court has previously heard.

An interview Minassian had with a detective hours after the van attack has been the key piece of insight into his mind that has been made public so far. 

He told police he had thought about an attack for years, but only formulated a plan about a month prior.

Minassian told a detective he was a virgin and lonely. He said he found a welcoming community online with men who hated women and scoured online forums of so-called "incels," males who are involuntary celibate.

Minassian explained to the detective the worldview of incels, who say only alpha males, known as Chads, date all the women, who are known as Staceys.

Men who cannot have sex with women, like Minassian, are on the bottom rung of society, he said. The Chads would have to be killed to change that world order so the Staceys of the world would be forced to have sex with incels, he said. 

The attack against random people would be his form of retribution against society, Minassian explained to the detective.

Minassian's trial is expected to last a month and is being heard without a jury after joint negotiations with the prosecution and the defence. 

This report by The Canadian Press was first published Nov. 9, 2020.

Liam Casey, The Canadian Press