Alek Minassian decision opens door for verdict of not criminally responsible due to autism

TORONTO — The judge who found Alek Minassian guilty of murder and attempted murder in the Toronto van attack set Canadian precedent Wednesday by considering autism a “mental disorder” under the Criminal Code.

Justice Anne Molloy ruled that autism spectrum disorder did not leave the 28-year-old 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.

Some legal experts expressed concern about the implications of Molloy’s decision, while members of the autism community said it would further stigmatize those living with the condition.

Molloy noted, however, that the decision does not “say anything at all about any connection between ASD and criminality,” and each case must be decided based on the specific circumstances.

“This merely opens the door,” she wrote in the decision. “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.”

The only other Canadian case that had argued someone was not criminally responsible due to autism was appealed, and Molloy said the appeal judge did not rule on whether autism was a “mental disorder.”

For someone to be found “not criminally responsible,” they must have a condition that meets the legal definition for a “mental disorder,” and also fail to understand the nature or consequences of their actions.

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“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,” she wrote.

Molloy ruled that autism is a mental disorder by the Criminal Code’s definition because it is a permanent condition with an “internal cause, rooted in the brain” that “has an impact on brain functioning and thought processes.”

“In its severe manifestations, and particularly where there are comorbidities, ASD might cause a person to lack the capacity to appreciate the nature of an action or to know that it is wrong,” she wrote, underlining the word “might” in the decision.

Those with autism spectrum disorder are far more likely to be on the receiving end of violent crimes than perpetrating them, the Minassian trial heard.

Roxanne Mykitiuk, a professor of disability law at Osgoode Hall Law School, said she worries about the implications of Molloy’s decision.

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“I am a little bit concerned about the overbreadth of autism spectrum disorder becoming conceptualized as a mental disorder and not perhaps some small portion of individuals who are on the spectrum with particular kinds of characteristics,” she said, though she added that figuring out a way to narrow that down could be tricky.

Alex Echakowitz, who spent a year in the same high school homeroom as Minassian, said she was shocked when Molloy said autism qualifies as a mental disorder under the Criminal Code.

“With all due respect to Justice Molloy, I feel as though she tried to wash her hands of any responsibility for the stigma that follows,” said Echakowitz, who is autistic.

“The reality is she can say this has no bearing on people with ASD as a whole and speak to the morality of autistic people, but now the idea is in the public’s head.”

Kim Sauder, an autistic activist who uses the pronouns “she” and “they” interchangeably, said the defence’s arguments played into inaccurate stereotypes that autistic people are somehow dangerous, while downplaying other aspects of Minassian’s life.

“It completely ignores the deep-rooted misogyny that was very prevalent in what he did and why he did it,” she said.

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Minassian has said he carried out the attack as retribution for women who had rejected him, but also because he wanted to gain infamy.

But Sauder said it was fair of Molloy to open the door for someone to be deemed not criminally responsible due to autism in the future.

She said there are some circumstances where she could imagine that being the case, for instance if an autistic person accidentally injured somebody else while in the throes of a meltdown.

But Mike Cnudde, a spokesman with Autism Ontario who is on the autism spectrum, worried that Molloy’s judgment “threatens to push us back into the dark ages.”

He said it was difficult to watch Minassian’s defence lawyers use autism to try to explain the attack.

1:51 Forensic psychiatrist who studies autism and violence testified at the Alek Minassian’s trial

“How dare he use this defence to hide behind,” Cnudde said. “This was the worst kind of stigmatization.”

He said he’s glad the judge saw through Minassian’s argument and delivered a guilty verdict, but the decision came with mixed feelings.

That Molloy opened the door for others to use autism in a similar defence means this case isn’t the end of the story for those in the autism community, he said.

“If this defence pops up again, we’ll start the whole process of stigmatizing people on the spectrum again,” Cnudde said.

“But you have to keep fighting the good fight — the answer is more educuation and more acceptance.”

— With files from Liam Casey