Precedent-setting van attack defence worries autism community, academics and legal experts

Academics and legal experts are voicing concerns about a legal argument in the Toronto van attack trial that could set a precedent for future Canadian murder trials while stigmatizing a vulnerable community.

The defence in the Toronto van attack trial is arguing before Justice Anne Molloy that driver Alek Minassian shouldn’t be held criminally responsible because he’s been diagnosed with autism spectrum disorder.

Minassian’s legal team argues it affects his ability to fully understand the consequences of his actions. It’s an argument that has rarely if ever been used in a case determining criminal responsibility in Canada, says criminal lawyer Kim Schofield.

“Usually when we think of not criminally responsible we think of really not having an operating mind,” says Schofield. “But it’s really talking about…knowing it’s right or wrong.”

Schofield has defended clients in “NCR” – not criminally responsible – cases in the past. While case law evolves with societal norms, she says if Minassian is found not criminally responsible, it could lead future murder trials down a dangerous path.

“If it’s moving in that direction when we have an increase in the number of mass shootings and mass murders, does it provide somehow an excuse for someone to rely on that defence later?” she asks.

The argument has struck a chord with the autism community across Canada, and even with academics. University of Toronto sociologist Jooyoung Lee taught groups of students with autism before going to graduate school and studying the condition academically.

“This is a population that is already so vulnerable and there are so many different misconceptions about this group. So, to hear that this was their primary argument in defence of a mass killer is alarming,” he says. “There’s already so much misconception about this population and stigma.”

“One thing I think that we should be very clear on throughout this case is that autism does not cause violence and that that causal link has never been established,” Lee adds. “If anything, the data show that people who are on the spectrum are much more likely to become victims of bullying and violence than they are to commit it.”

The trial this week revealed inconsistencies between the statement Minassian gave to police about the motivation behind his attack and the different stories he’s told to the doctors who’ve assessed him. Something that Schofield believes hurts his case.

“It’s always difficult to establish NCR – maybe more so in this case,” she says. “It seems like that he was very motivated.”

The defence is expected to call their next expert witness, forensic psychiatrist Dr. John Bradford for testimony Monday morning.

Lee says there’s a limited amount of research available on the issue.

“The handful of research that exists on this topic as found that amongst a sample of mass killers, some small percentage of them have had previous autism diagnoses,” he says.

But he explains that the research is clear in saying that this is not the only thing that propels a person to commit mass violence. Other factors, including a history of trauma, are also at play.

“To pin it just on autism is a very slippery slope.”