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The legacy of the ‘autism defence’ in the Toronto van attack trial

Last Updated Mar 3, 2021 at 9:20 pm EDT

The trial of van attack perpetrator Alek Minassian was difficult for members of Canada’s autism community, who feel their condition was on trial too because of his unconventional defence.

“There’s a lot of stigma for people who are on the autism spectrum,” says Michael Cnudde, spokesperson for Autism Ontario.

At trial, the defence’s key argument was that the qualities of Alek Minassian’s autism spectrum disorder (ASD) rendered him unable to understand his actions were morally wrong. Therefore, the defence argued, he should be found “not criminally responsible” (NCR) under section 16 of the Criminal Code. This section is generally used to defend those who commit crimes while in a psychotic state.

There was an outcry from the autism community when the argument was introduced in court in November 2020. People with autism and their advocates said they were concerned that if the judge accepted the line of reasoning, a group of people who are more often the victim of violence, would become associated with the perpetrators of it.

During the trial, a psychiatrist for the defence claimed that Minassian’s “autistic way of thinking was severely distorted, similar to psychosis.”

Autism Canada called the statement “egregious.”

RELATED: Backlash grows over van attack perpetrator’s autism-related defence

“What they were trying to do, should they have been successful, was push back all the way to the dark ages of the 1960s, where autism was a form of childhood schizophrenia,” says Cnudde, who notes that he has high-functioning autism, similar to Minassian.

Today, defence lawyer Boris Bytensky said it’s time for a more nuanced use of not criminally responsible verdicts.

“We are in a place where we need to start thinking about NCR verdicts perhaps differently, less conservatively than we have in the past,” he said.

As part of her verdict, Justice Anne Molloy said she now believes autism spectrum disorder “qualifies as a mental disorder within the meaning of section 16 of the Criminal Code.” However she concluded that Minassian himself didn’t meet the threshold, as he understood his actions were morally wrong.

“She ultimately agreed with my legal submissions about how the law should be interpreted, and with my submission that ASD — and not just ASD but many other diseases of the mind — can fit within the legal definition,” said Bytensky, who added the ruling was a positive development in clarifying section 16 for those working in mental health law.

Section 16 of the Criminal Code states “no person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.”

Defence Lawyer Kim Schofield believes it’s important to test our laws, even when it may be controversial to do so.

“As society changes, as mental health assessments and laws develop, so should the reaction to a NCR claim,” she said. Just “because they weren’t successful in an NCR finding does not mean we haven’t moved forward in the criminal justice system. We have moved the law forward. Wins, losses or NCR findings move the law forward.”