Thread by @alysanmati

Good morning. We are back for the final two days of Alek Minassian's trial for the first-degree murder of Ji Hun Kim, So He Chung, Anne Marie D’Amico, Andrea Bradden, Chul Min (Eddie) Kang, Renuka Amarasingha, Dorothy Sewell, Geraldine Brady, Munir Najjar, and Betty Forsyth.

Today we will be hearing closing arguments from the defence, led by Boris Bytensky. He will be arguing Minassian should be found not criminally responsible because his form of autism spectrum disorder rendered him unable to know what he did was morally wrong.

We heard on the last day of evidence that this argument comes down to what the defence is saying was a "split-second decision" on April 23 ,2018 by Minassian to make his long-planned mass killing a reality.

thestar.com/news/gta/2020/…

In his opening Bytensky pointed to the Supreme Court of Canada case R V Oommen, which says "the crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not."

That case can be read here (it is very different factually from Minassian's case and involved a paranoid delusion which made Ooomen believe he had no choice but to kill, even though he knew killing was morally wrong).

scc-csc.lexum.com/scc-csc/scc-cs…

And finally, here is what Minassian has admitted to doing. thestar.com/news/gta/2020/…

I'll also note, as we have heard repeatedly through the trial, autism spectrum disorder is not associated with violence, and it manifests in extremely variable ways. Justice Molloy noted earlier that this trial is focused very specifically on Minassian and his state of mind.

We are getting underway now. Bytensky is first going to go over the law to ground his arguments. Rational choice is "alive and well" despite comments from the Ontario Court of Appeal in Dobson. canlii.org/en/on/onca/doc…

The Crown says their position is that autism spectrum disorder could be the basis of a not criminally responsible defence, but that in THIS CASE for Minassian, it doesn't reach the threshold. Justice Molloy says easy to think of a case where ASD would qualify...

particularly if there were an intellectual disability, for example. So the live q is whether Minassian's ASD, which has been described as high-functioning in part due to his above average IQ though there are disputes about his ability to function socially and in daily life, fits.

Bytensky says he will go into the SCC case in Oommen in detail, but is starting with Chaulk which is an earlier case that doesn't talk about rational choice.

Bytensky said the main point of Chaulk (1990) is that it explain wrong, per the NCR section as morally wrong. scc-csc.lexum.com/scc-csc/scc-cs…

Oommen was decided in 1994 and came after the Supreme Court had heard a number of Section 16 cases. It's the last case on Section 16, other than two. It's been 26 years and they haven't revisited, clarified or overruled the decision.

So Bytensky says this means the Ontario Court of Appeal in Dobson is either wrong, or can't be followed because Oommen is "absolutely clear."

Oommen raises the question, which Bytensky reads: "What is meant by the phrase "knowing that [the act] was wrong" in s. 16(1) ? Does it refer only to abstract knowledge that the act of killing would be viewed as wrong by society?

Or does it extend to the inability to rationally apply knowledge of right and wrong and hence to conclude that the act in question is one which one ought not to do?" Bytensky said they decide it's the latter.

Bytensky also points to this line: "The accused must possess the intellectual ability to know right from wrong in an abstract sense. But he or she must also possess the ability to apply that knowledge in a rational way to the alleged criminal act."

The decision says: "The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not." Bytensky said starting with "crux of the inquiry" makes it v clear.

Bytensky notes that the SCC decision quotes from two Australian cases. One is from 1933 and one from 1952. Both show that it's not about a hasty, spontaneous decision. Bytensky says this is linked to his argument that Minassian made a "split-second decision."

Bytensky basically says the analysis of Oommen by the ONCA wrongly focuses on this bit: The issue is (if) accused possessed the capacity present in the ordinary person to know that the act in question was wrong having regard to the everyday standards of the ordinary person.

Bytensky points to the part of Oommen that says failure by the accused to exercise will/restraint can be considered part of the "mental mix" IF that stems from the mental disorder.

Bytensky points to another citation in Oommen: The point is that if the person has a mental makeup which is such that he lacks even the capacity for rationality, then responsibility is vitiated. If he has the capacity but simply fails to use it, responsibility is not precluded.

Bytensky says Minassian may have had intellectual ability to know moral wrongfulness, but he falls short of having capacity for rational choice.

Justice Molloy asks about the factual context of Oommen. Bytensky said it involved significant delusions and this was easier to apply.

Molloy says it's interesting they got to this stage of the analysis bc the person wouldn't appreciate the nature and quality of their actions AND they wouldn't think it was legally or morally wrong bc it would be self-defence.

But SCC needed to develop the law.

Byetensky says what does rational choice, rationally assess even mean. Key words in the case but not much case law to explain this. He says two ways to look at it. One is via common parlance. Rational action is opposite of irrational.

And you know irrational when you see it. He proposes what he sees as a better way. Capacity is helpful to think about, he says.

He says should think about it from a consent and capacity framework. You have to know the facts upon which the decision is made, and be aware of the consequences of the decision. Not about a bad choice or failing to make a choice.

Bytensky said it's critical to understand autonomous behaviour of human beings. We can make choices for ourselves, with the benefits and burdens as long as they are made with the capacity to know relevant information and circumstances.

If that isn't possible to due to a mental illness, then there is a failure to have capacity and the decision would be irrational.

(I think this is the case Bytensky referenced but I'm not totally sure: canlii.org/en/ca/scc/doc/…)

Now he's talking about the Ontario Court of Appeal in Dobson. He disagrees with para 22, says it is wrong to say "the Crown’s interpretation of Oommen is consistent with the interpretation adopted in an unbroken line of authority in this court"

He will now go through a bunch of these cases to explain why (this is not great for live-tweeting).

Taking the morning break.

Bytensky is going through the cases mentioned in the aforementioned line from the Ontario Court of Appeal in Dobson.

Bytensky said being able to care and choosing to commit the crime anyway (like a psychopath, narcissistic personality disorder, pedophiles) is different from not having the capacity to care/ cognitive empathy deficit. Failure vs inability.

Section 16 (the section about the not criminally responsible provision) is designed to take into account choice and free will, Bytensky said.

Bytensky points to R v Szostak to support his argument (and which he says, if you look at it undermines the para 22 conclusion in Dobson). Now talking about R v Campione.

The jury in Campione was instructed by the judge with that same "crux of the inquiry" line from Oommen. Bytensky says this makes it clear that capacity for rational choice is part of the NCR test.

The Court of Appeal found this was the correct instruction to the jury, Bytensky said.

Back on Dobson now. "With greatest of respect to Justice Doherty" his view on the unbroken line of authority in the Ontario Court of Appeal is wrong, Bytensky said, and wrongly interprets Oommen.

Bytensky points to a case (I missed the name) where the person took actions to avoid being detected, but the judge found that stemmed from his psychosis/two competing realities. Bytensky said some of the case does apply to Minassian.

Minassian also took steps to avoid detection, Bytensky said. A shout out now to the book on NCR by @JillPresser @pouchbaby et al.

Test is moral wrong combined with rational choice, Bytensky said.

That's it for the caselaw. Taking the lunch break now, back at one.

Back and Bytensky is going through the evidence of the witnesses in the order they testified. He starts with Minassian's dad Vahe Minassian. He says not much will turn on this evidence, but that he testified fairly and didn't try to mislead the court.

The only controversial area is how much help he gave Minassian in his school work. Bytensky says judge can look at the varying quality of the work for herself. His family did everything possible to teach him right from wrong from a young age

and to help him with his developmental disability, Bytensky said. This may go into the assessment of the severity of his deficits. He now goes to Dr. Rebecca Chauhan who has more experience with autism that both Crown experts combined, he said.

She did back off some of the stronger words in her report (like indoctrination). Dr. Bradford was also an excellent and fair witness. He is a leading forensic psychiatrist but saw his limitations even though has at least as much experience as the Crown experts with autism.

Bytensky stressed that Bradford brought in Chauhan because she knew more about autism than him. And says that the Crown experts didn't try to diagnose the severity of Minassian's autism themselves.

Bradford also referred Bytensky to Dr. Westphal, a forensic psychiatrist with expertise in autism. Moving onto Westphal now. Bytensky said he has nothing to gain by coming to testify and actually stands to lose by being perceived as testifying in support of Minassian.

Westphal was questioned about not offering an opinion on whether Minassian was NCR. Bytensky now pointing judge to some rules about expert witness testimony in the US -- the issue of criminal responsibility is for the trier of fact.

Doesn't seem like he could give opinion. Bytensky said he may not have been as polished or as succinct as others but demonstrated a "deep knowledge." The area is so complicated and foreign to "all of us" it can hard to condense answers. His "enthusiasm shone through."

He was challenged extensively in cross which was "aggressive" and sometimes "mocking" and never lost his cool, Bytensky said. In the end, after seven days, he was simply tired.

He wasn't trying to hide anything or mislead anyone in his report. Some things the Crown and maybe the judge may think are relevant may not have been in the report but that reflects differences in expert opinions. Crown had all tools needed to challenge him.

His opinions about autism, theory of mind, moral reasoning were not challenged. Crown put Dr. Wright's views to Westphal and Westphal said he "completely disagreed." Crown didn't file any academic articles to challenge his assertions.

His opinions were grounded in "academic literature of significant renown." The notion that Minassian's high intelligence didn't fit his deficits was not borne out, Westphal's opinion was supported.

Bytensky again points out lack of experience with autism in Crown experts. "The fact that the Crown broadly, and Dr. Woodside specifically, chose not to bring in or consult with any expert in autism...It's shocking," he said. "If I was a member of the public I would be outraged."

He said this is a novel and complex trial, as shown by the evidence over the last five weeks. "It is shocking and disappointing," he said. "The search for the truth deserves better."

Judge wondering if the Crown psychologist Dr. Percy Wright did consider himself an autism expert as Bytensky just said. She's going through her notes, he said he doesn't consider himself an expert though he does have "considerable experience" dealing with autism and violence.

Bytensky asked Dr. Wright to mark where Minassian was on a linear rainbow spectrum from low to high-functioning autism and he made some marks. It was a trick question. Westphal when asked said it wasn't possible to do so, and discussed more complex pie charts that also fall short

Now looking at a slide titled "Dr. Woodside's Demonstrated Inexperience" and it's going into what the DSM5 says about levels of autism. It is "basic stuff" for someone working with people with autism and it's troubling he got this thing wrong.

Bytensky: "There is an expression that a little information is a dangerous thing." Says it can lead you to think you know more than you do.

Bytensky said Woodside's experience with autism was in the most severe cases, that is the lens of his experience and affected the way he saw Minassian in comparison.

Bytensky now talking about Woodside's notes which he calls "troubling." He is quoting the Crown's words in seeking the Westphal videos, which said having his words verbatim is crucial. That Woodside's notes and report are the same is troubling, he said.

Bytensky said Woodside saying the notes were a problem for the defence "thumbs his nose at the entire justice system." (One Crown objected to this with his face). Doesn't allow for proper testing of the evidence, Bytensky said.

Bytensky said Woodside testified he summarizes in his notes as he types and writes in the past tense. "Nobody can do that on the fly," he said. It makes no sense.

Bytensky said this all means the judge should be wary about relying on what Woodside writes about what Minassian said. Like the word despicable. Not saying he made up the word, but we don't know context, if it was a leading question.

Minassian speaks at 150 to 200 words per minute, Bytensky said. In one long paragraph in which Woodside quoted Minassian, there are no pauses or clarifying bits. It would take about 40 seconds to say out loud the 135 words. At most a minute.

Bytensky said Woodside learned to touch-type, within his own speed it would have taken longer to type it and also while listening to it. Justice Molloy says he was obviously able to do it, Minassian's comments were very similar to what he told Westphal.

Molloy asks what to make of it. Bytensky said he is submitting (inflammatorily based on the judge's reaction) that this means Woodside secretly recorded his interviews with Minassian. Molloy said she thinks he is just a fast typer.

Bytensky said the other option is he had Minassian stop every few words. Molloy said the trouble she has more is the polished nature of the notetaking. Whole words and syntax and appropriate phrasing. He obviously went back and cleaned it up.

"I don't think you can persuade me" that this expert who is held in the highest regard in Canadian courts and has testified in countless trials is secretly recording. Says Bytensky didn't put to him that his typing of this passage was impossible.

Bytensky said he didn't want to do this, brings him no joy. Is troubled by it. Molloy says she's not going to make any finding about this.

Afternoon break now

Back again. Bytensky said the centre of Woodside's opinion was that Minassian used compensation strategies to understand the view of others and then rationalized what he wanted to do by blocking out negative thoughts.

Bytensky said this is different from his report which focuses on Minassian not being psychotic. This should also be something the court bears in mind.

Now he talks about the importance of testing, and the Crown expert failure to do testing to determine the extent and nature of his ASD when autism is so multi-faceted. Didn't get a real sense of where his strengths and weaknesses are.

Chauhan testified about DSM5 levels of severity can be hard to interpret and level 1 mistakenly interpreted as "not really that impaired." Would typically be done in combo with adaptive functioning tests. Vineland test (which we heard a LOT about) is used for adaptive function

Going through the developmental pathway differences in children with and without autism. Not a choice. It's genetic. Born that way. Molloy agrees it is what your pathway is, but also clear that its not without any remedy. That's why therapy is so important from the get-go.

Bytensky agrees. Minassian didn't get some of the therapies as a child Westphal thought might have been helpful to address some of his deficits. Says he still has "very very gross impairments in some areas."

Bytensky noting the example of Minassian not knowing to make eye contact, being taught he should and then being perceived as staring in an unnerving way.

Bytensky says complex social experiences are things that happen organically, naturally, innately for neurotypical people. This is where "theory of mind" or cognitive empathy comes from, i.e. ability to see other people as having their own desires, motives, ways of thinking.

This happens around the age of 4 and 5. Neurotypical people develop this expertise in other people naturally.

Bytensky says to be a fully formed moral agent who can make fully formed moral decisions, must be able to recognize the intentions of others, context for actions.

The ability to recognize intentions of others is an area that can be impaired for people with autism.

Minassian, through testing, was found to have deficits in social interaction and communication by Chauhan and Westphal. Not at the level you'd expect for his intellectual function.

He is "very very significantly disabled" in certain aspects of his life, Bytensky said. He also scored low on the Empathy Quotient test which showed he has significant empathy deficits and understanding the perspective of others.

This addresses the "floodgates" issue that lots of people have empathy issues. Not true. He says those people have emotional empathy deficits, which means the understand but don't care. Having a cognitive empathy deficit which means you can't understand is limited to autism.

You "can't just go to the NCR store" and say you don't have empathy. (Again this, he says, is the difference between psychopathy, anti-social personality disorder etc. Not the same as autism, he said).

Bytensky rejects the Crown view that Minassian had a "rich social life" and says they made same mistakes as their experts, confusing pervasiveness of ASD with his intellectual ability. Mistake to say he "mastered" most tasks of adult living.

Seems that Minassian's own brother didn't understand the extent to which he felt alone and lonely, Bytensky said. Seems clear he was "capable of very few things in life" and did not have a rich social life. His difficulties can be traced to his ASD.

Onto the crux here. There is a big symbol of the scales of justice on the powerpoint, above which it says Minassian did not have the capacity to make a rational choice.

Bytensky said no doubt Minassian knew killing is against the law, he said so in many different ways.

Westphal's view is that Minassian stopped at an early stage of the development of moral judgement. He understands rules but not the impact on other people.

Bytensky said Minassian's dad testified every time they drove through a school zone, Minassian would tell his dad to slow down. This was a rule-based observation, this was an important rule he had been taught. A neurotypical person would think about it from a harm perspective.

Moving onto to Minassian's need for "notoriety and lonliness." He wanted to succeed socially but could not, he worried about being blown away like dust. He was "haunted" by failure to reach achieve scholastic goals per Wright.

He wanted to bring something to his name but also not angry or depressed or suicidal. This was about getting a high kill count. His belief from his high school days that he wanted to be known as the person who killed the most people.

If he was released from prison now, he said he'd do it again maybe, and if he did it would be to get another kill count to increase his total.

Minassian's thinking was distorted, Westphal said. He had the same emotional valence, gave same equivalence to worries about a job and a mass killing.

Next point is about hyperfocus/overvalued ideas. Chauhan said it would be dangerous thing to read something over and over again in the absence of other social stimuli, which is something Bytensky thinks is relevant here. These are not ideas at the level of a delusion.

Bradford testified people with autism can become fixated on ideas because they don't have the same normal social interactions of a neurotypical person. Maybe easier for a neuroptyical person to balance their "overvalued ideas"

Bytensky said Minassian has several areas of hyperfocus: kill counts, infamy, mass shootings, elliot rodger, incels certainty about failing at his new job.

A fear, Bytensky said, based on being fired from only one job in the past. And it wasn't that he couldn't do the job, he did it too well, and was fired for playing video games after that.

An example of his deficits. It's not a rational thought and an neurotypical person would not feel that way.

Westphal testified that Minassian was saturated with horrifical material online and it became an area of real focus... in the absence of this sort of thing the mass killing would not have happened. If not for autism this event "would probably not" have occurred, he testified.

His actions were caused by his disability or disorder, said Bytensky.

Minassian also showed "rigid and concrete thinking." He had a binary, all or nothing view as per Westphal. He saw his options as fail at a job or commit a mass killing.

Also linked to his view of suicide which was a necessary consequence of the mission. He was not suicidal, but felt defeated because he failed in his mission to die. Minassian could have crashed his vehicle but followed plan to be killed by a police officer.

He didn't crash into other cars or drive full speed into an intersection. This demonstrates his "rigid thinking." Also only wanted to hurt pedestrians because that was his plan. Molloy says not sure she'd take it that far. He didn't want to get hurt. He didn't want to get hit.

Molloy said he wanted to die as a martyr not get hit by a car. Bytensky said that's a fair observation but it remains that his plan was to die by cop and that's what he was focused on.

Minassian also spoke about wanting to maintain consistency with his Facebook post and his incel narrative. Said he'd want to kill more women next time and wanted to stick to his narrative. It's very rigid thinking.

Westphal asked Minassian why he did it knowing it was wrong. Essentially he said he already committed to it and had booked the van. He also mentioned social isolation and job anxiety.

Bytensky's clip art scales of justice is now starting to tilt to one side.

Another factor is his lack of appreciation of impact on others, on the community. Bytensky argues that Minassian did not think about moral outrage as Crown expert Woodside said.

He points to Minassian's answer in which he explains why he pursued the incel narrative. He is interested in notoriety and media attention. Not considering "emotional" moral outrage. Not an emotional response he is seeking.

If he truly understood it, why wouldn't it be enough to kill 100 people. Why would he think the world wouldn't think about him, or that people would be confused. This is revealing, Bytensky said. If he set a world record, that would on its own generate enormous amount of outrage.

Molloy asks if it doesn't make sense that he'd be applauded for the incel motivation or a hate motivation vs just because he was lonely. It's not irrational.

Molloy flags his use of the term "appreciating" the impact, given the wording of section 16. (The relevant part it KNOWING it was morally wrong). Doesn't think SCC went that far. Bytensky said its linked to rational choice.

Says lets call it awareness instead of appreciation. You have to have basic ability what the fact is. It is absolutely neccessary to be aware of someone being more than sad at an intellectual level. Not enough to make rational choice.

It is the ability to know in some way what the reaction is going to be. Is it enough to know someone might be 1 per cent sad. Have to have general awareness of facts that go into a rational decision and that has to include impact on other people. Have to be able to feel it.

Minassian was not thinking about the impact of his actions on others before, during or after the mass killing. He used the term "batch" to refer to the first group of victim. He thinks about legal consequences. His voice is different when he says "did i really just do that"

Minassian gets really focused on the drink that spills onto his windshield, he says it multiple times. Not on the people he killed. If he had NO emotional feeling, he wouldn't be so caught up in the drink impairing his visibility. Just shows how skewed it is.

Minassian said he was nervous, but after he hit the first group of people everything changed. Nervousness was about him not being sure he could go through with breaking the biggest law. Not a moral struggle.

Bytensky says if Minassian truly understood the moral wrongfulness of his actions and used compensatory strategies to do so, why would he say he'd do it again, why isn't he remorseful, why does he still want to increase his kill count?

He took no joy or pleasure in the act of killing or the harm he caused. Some pleasure in the number of people he killed. Never said, I'm glad those people are dead. He has no psychopathy, no personality disorder. "He is just interested in statistics."

He saw his whole life as an algorithm, a logical approach to him. Saw it in his approach to dying by suicide. His compensatory strategies are "demonstrably absent."

Bytensky says Minassian can't use compensatory strategies anyway in a "real life, complex decision" such as this one. Crown will say he's had years to think about it, but ultimately the decision was made in a split second, Bytensky said.

Bytensky said there is no evidence compensatory strategies would have worked to get Minassian to the same place as a neurotypical person. Not in the report of Woodside and not put to Westphal, Bytensky said.

Taking a quick break, then will hear more about Minassian's various comments about empathy-related things.

Looking at Minassian's police statement. He says he doesn't know what he'd say to the families. He doesn't know if he'd apologize. This is what he said almost immediately after the attack. Crown will say this is him spicing it up, but why does he say it later.

He could have said other things if he wanted to spice it up. This is one the rare examples in the police statement where he spoke with his heart. That I urge you to accept.

He used the phrase "converting life status to death status" which shows what he thinks about death. He speaks about the attack from the perspective of the van in saying "I allow the van to collide with them."

Two defence experts who examined Minassian, Chauhan and Mamak, found he shows little consideration for the experiences of other people and could not connect emotionally to his victims.

Shows a significant lack of empathy according to Bradford. The comments he made about what he did being morally wrong, Minassian's affect was flat and they were leading questions. Just because he uses "certain magic words" doesn't mean he understands them at all.

He is smart enough to read a statement of claim to see the impact he had on people, or glean that from conversations with inmates, the chaplain and others, plus reading the Bible.

Minassian told Woodside he didn't think anyone would have sympathy for his problems or those of other mass shooters.

He uses phrases like shocked and disappointed to refer to his parents after him losing his job, leaving the army and the mass killing. Very superficial level. He can't engage with the emotions of others.

Because he can recognize sadness on his mother's face doesn't mean he can understand how people are going to feel.

Minassian is smart enough to understand at an intellectual level what his parents would think upon learning what he did. "Where did I go wrong. Did I let him think this is okay? Why did he do this?" Bytensky says these are generic responses to rule-breaking.

Parents might say the same thing if he cheated on a test. May just reflect his experience from the past, we don't know.

"I was imagining if I was in the hospital with broken bones, I would be inconvenienced and uncomfortable," Minassian said in an interview. Bytensky said he may as well have said I don't know how the survivors would feel.

He feels no remorse, no regret, no pleasure or sadism. He feels nothing. Devoid of emotional context whatsoever on impact on other lives, Westphal said. He can repeat words but that's different from understanding at the time of the offence.

He is "incapable of properly weighing the factors that go into this decision," Bytensky said. He did not have the capacity or time to make a rational choice.

Talks about time because it's key in thinking about it as one decision that led the the deaths and injuries in this case, he said.

No matter how long planning goes on for, the final decision has an enormous emotional component. You may do it subconsciously, you may do it innately. They are essential parts of every big decision, marriage, kids, divorce, not just crime.

If Minassian had chickened out there was no offence. The decision to go ahead and strike the victims he actually identified is different from the one in his head for weeks or years.

When sitting at the light at Yonge and Finch, not at his original destination. That he can look at a crosswalk, see the people there and make a split-second decision, he does so because he has done from I really want to do it to a specific targetted plan. A personal attack.

Any neurotypical person would have the capacity to take into account, well that younger looking person there might have a family. Those people have lives and I am about to end them. A psychopath might be thrilled about it. That person is not NCR.

But Minassian is not capable, because of his lifetime of brain development, of taking into account the life of the people he was about to kill.

Molloy says there is difference between randomly doing this with own car, vs a long-time plan.

Would be a different case if he randomly decided to do it, she say. Bytensky said there are other options. He could have just followed his plan the way he intended. To break the focus on his plan and start now is a critical step.

Minassian saw people as objects, not independent entities.

The question of whether he has the capacity for rational choice overlaps with whether he knew he was morally wrong, Bytensky says.

"A lot of this case is abstract," Bytensky observes. The questions/concepts raised and which Justice Molloy will have to wrestle with are novel and philosophical.

Westphal said both ASD and psychosis can both dramatically and profoundly alter the way in which the world is perceived. Minassian's thinking was distorted, illustrated in his binary choice, commit mass killing and gain infamy or fail at his job.

Bytensky said the NCR section doesn't talk about psychosis. It is typically the diagnosis but legally unhelpful. Question is not what he had but the impact of what he had. It was a "perfect storm." His thinking was so distorted that he thought he had binary choice

Bytensky notes that during this case we've heard about two instances where schizophrenia/related disorder was mis-diagnosed and it later turned out to be a diagnosis of ASD. Bradford said if ASD wasn't diagnosed in childhood it can be missed/mixed up with other disorders.

Bytensky says the symptoms can be mixed up. What would have happened if Minassian had not been diagnosed with ASD in childhood. Nobody was sidetracked by psychosis here.

Molloy isn't sure, and she's done a lot of work in this area, has never met a person involved with psychiatric system for a long time who has had only one diagnosis. A lot of these disorders overlap and different psychiatrists have different opinions.

What matters is not what the disorder is called but how it affects person. Molloy also notes the current way of diagnosing ASD is relatively new, many people may not have been diagnosed in the part or as adults.

Bytensky says the scales in Minassian's case were broken. His decision to rent the van was the result of his distorted thinking and inability to think of the impact on others.

His ability to gauge world was broken but not his fault. He never had the tools to begin with. His decision was completely irrational in a colloquial sense. His ability to take a measured look at what he was doing was compromised, lacked capacity to weigh the factors properly.

Knowing the emotional impact is a critical part of that decision making. Without that component it is not a rational decision.

"I appreciate it is a novel case," Bytensky said. One that is exceptionally complex from a legal, moral, medical standpoint. Urges judge to find Minassian not criminally responsible.

That is it from Bytensky. We are starting a little earlier tomorrow, 9:30.