Thread by @alysanmati

The Crown's closing arguments begin today (they were supposed to start at 9:30 but we haven't yet). For the defence arguments yesterday, my thread is here:

https://twitter.com/alysanmati/status/1339582676190306304

Okay looks like we are close to starting. For a preview of where the Crown is likely going, here is what their key expert said: thestar.com/news/gta/2020/…

And here is my wrap on the four days of cross-examination by the Crown of the defence's key expert Dr. Alexander Westphal: thestar.com/news/gta/2020/…

Aha, I had forgotten this but in a pre-trial application in early March the defence had sought to exclude a booking video in which Minassian said he was a "murdering piece of shit." It was argued but judge said she'd rule at end of trial. thestar.com/news/gta/2020/…

The Crown won't be relying on those statements in their arguments and so the defence is withdrawing the application. A lot has happened since that application was argued, and we have heard a tonne more from Minassian since.

Before we start on the Crown, Justice Molloy asks the defence to comment on Dr. Westphal's "process of elimination" approach to dismissing all of Minassian's motives to conclude that it must have been due to autism.

Defence says this is needed to show the specific manifestation of autism in Minassian and his capacity for rational thinking. Westphal got there in part, by saying the negative proves the positive.

Crown Joe Callaghan starts now. He starts with asking court to consider a hypothetical. A boy is born into a loving, pro-social family. When they realized there was an issue he got help through the Giant Steps program and assistance in high school. Some social issues still

But also made friends. Graduated from high school with high marks and accepted into a challenging college program. He left behind some things like using a silly voice or pretending to afraid of women. Able to socialize with other students, in group projects.

Socialized with his brother and friends. Went to the movies, bowling, restaurants, gym. Went for drinks from time to time and to some parties. Did exceptionally well in college though failed some courses in his fifth year. Applied for and got jobs, only lost one for playing

video games. After that failure applied to the military for a fresh start. Successfully navigated the recruitment process and got in, but it was not what he expected. Negotiated an honorable discharge and reenrolled in college. He excelled in his remaining credits and finished.

He got a driver's licence and a credit card in his own name which he used to rent the van. This man is Mr. Minassian. The defence expert described him as having social skills of a child and being capable of very few things in life. This is a gross mischaracterization.

This is largely based on the Vineland-3 test which is based on the answers of his parents. But have seen many of those answers were done incorrectly. The test was "completely misused" in this case and distorted opinions of Westphal et al.

Westphal maintained his opinion despite being presented with this information. He also ignored the words and explanations of the person he was assessing.

This is a case about a person with ASD but not where ASD made him commit the murder. The evidence shows Minassian ACTUALLY knew society regarded his actions as wrong.

The only expert opinions which apply the evidence to the psycho-legal test in Section 16 of the Criminal Code concluded Minassian doesn't meet the test, he says.

Crown says no question autism spectrum disorder is a mental disorder. (Talking about whether it is a disease of the mind per the wording of Section 16). Normally refers to serious mental disorders that distort reality. No cases known involving ASD alone.

Crown says there may be acute form of ASD likely with co-morbidities or significant intellectual disabilities, but Minassian's ASD doesn't qualify for Section 16 bc it doesn't rob him of the capacity to know his actions were morally wrong.

*may be acute form of ASD that meets the NCR criteria

He is referring to R v Lepage from the ONCA: "Not only does the s. 16 exemption apply only to those who suffer from a disease of the mind, but it reaches only those who, because of that disease, are incapable of appreciating the nature and quality of their act or are incapable

of knowing that the act was wrong. An impairment, even a substantial one, of these cognitive or normative functions will not suffice." Need high level of impairment to trigger NCR.

"Nor does the mere failure to engage in the cognitive functions or comprehend the wrongness of one's conduct on a particular occasion give rise to the s. 16 exemption. Outright incapacity on account of mental disorder must exist."

Crown stressing the difference between the two branches of the test: appreciation of consequences vs knowledge of wrongness. Knowledge just means "bare awareness."

Molloy: What is the difference between appreciate and capacity to rationally decide?

Crown: Rational choice is still applicable in this case. What does that mean?

It is the capacity for rational perception, to know right from wrong. Rational choice is having the free will to choose to act on the right or wrong option unencumbered by any external factor flowing from the disease of the mind.

Molloy asks about unencumbered. Low test?

Molloy: No one could say Minassian was not at least affected by his autism.

Crown: He told Westphal he didn't feel compelled, forced, that he had to do it. Shows he had capacity for choice. No evidence he lost fact of the wrongness of his actions. He always understood from society's perspective his choice to kill was wrong. Can make bad choice, freely.

Crown going to R v Szostak now. A case where the defendant believed he was justified in threatening the victim with death bc due to a delusion there was a danger to his son. He felt compelled to act because of his false belief that he was justified. Lost ability to choose.

Molloy is trying to figure this out (she says she's been told she should never play poker). Let's say someone is intent on harming my child, and I am correct. I can't threaten to kill them and skate free of criminal responsibility. I have to go to the police.

She said you don't have to have a delusion that makes it not a criminal offence but something that causes a break in reality. He couldn't make a proper rational choice because he was weighing something not real.

(This is all in reference to Szostak and not Minassian just to be super clear).

Minassian carefully thought out his actions, planned for weeks. He was under no false belief or compulsion. Never lost sight of the fact society knew his conduct was wrong. He made a choice to execute the attack. First-degree murder is never the right choice.

But if he could make a choice freely, and knew the wrongfulness of the actions, he is not NCR, the Crown basically says.

Crown, in answer to Molloy q, says he accepts she is bound by R v Oomen and the test is rational choice.

No evidence Minassian was ever robbed of his ability to make a choice. "I felt a strong desire to want to do it...but didn't really feel forced or compelled to do," Minassian said. "I didn't feel I had to do it."

Crown points out this part was not in Westphal's report nor in his notes. Was discovered when they got the videos/audio of the interviews.

Minassian said he knew himself it was wrong to kill. "I've been told by everyone...always said it's wrong." He calls it an "ingrained pillar." No evidence he EVER lost that understanding. Consistent with someone capable of making a rational choice.

He weighed his options for years. His interested in mass murder ebbed and flowed over years and he resisted acting on his desire to kill. Shows he had control, capacity to know, and well understood the wrongness of his actions.

Crown now going to how Minassian pushed thoughts that would dissuade him out and revved himself up with negative thoughts. He said if he was in relationship and it was going well, he might not have wanted to complete the attack.

Demonstrates someone capable of weighing his options and making a rational choice based on a clear understanding.

Clearly Minassian can talk about his life, the stage he is at. He talks about his loneliness, sense of failure, hopelessness. These help explain Minassian;s motives-- in a way not an inexplicable as Westphal puts it.

Minassian understood he had the option not to act on his fantasies. He knew most people thought people who committed mass shootings were despicable. Most people would think them senseless. He said no one would have sympathy for his problems (and those of other mass shooters).

Shows his ability to take the perspectives of other people.

That he started the attack at Yonge and Finch and not his original downtown target was a "logistical change" not a change in his goal. No evidence he would not have done the attack upon reaching the original planned location. He wanted to do this for years.

He knew he could chicken out. Shows he had an operating mind and knew he wasn't required or compelled to go ahead.

He knew his parents would be shocked by his actions but consciously put that aside in his mind because he wanted to do it.

Molloy asks a q: Minassian made a lot of things to various assessor. Where it's similar, no issue. But where something hinges on what only person said

Or what he said to only one person. She does have issues with Woodside's note-taking. We don't have Day 1 and long notes of what he said which is how notes are done. With Westphal we have interview transcripts and know lots of key things didn't go into the report. Part of editing

She can look at the Westphal transcripts but re Woodside, she just has the report and anything he attributes to Minassian is essentially unassailable in that way which troubles me.

Crown says he explained his process. Molloy says it doesn't make it reliable. Not sure anyone else has this area of Minassian putting thoughts out of his mind/compartmentalizing

Crown says he has two examples from Westphal on this point.

Taking the morning break now.

Looking at a part of the Westphal transcript in which Minassian said he ignored all other thoughts and continously thought "I really want to do this, I want to do this, I'm going to do this, I want to do this."

Minassian said he "wanted to rationalize doing this as much as possible" and that he deliberately ignored that he knew his parents would feel guilty and that somehow they let him think this is okay.

Crown says this is pretty similar to what is in Woodside's notes.

Crown now going to SCC case of Kjeldsen (I think) to talk about appreciation and absence of empathy. decisions.scc-csc.ca/scc-csc/scc-cs…

Says Minassian doesn't need to understand impact on his victims and their families and that the defence isn't saying he didn't understand at all, but that he didn't have sufficient understanding.

Minassian told Westphal he knew it was wrong to kill people and that it was wrong by society's standards. He then quickly listed his motives for why he did it: wanted to, had booked the ban, didn't want to back out, social isolation, job anxiety socially and performance-wise.

Minassian also knew his interest in mass murder was wrong and not to tell anyone about it, Crown notes.

Minassian also, when talking about the incel websites, said he kept his interest in this private in college because he knew others wouldn't like it.

He kept his plan secret from his parents. He said he did think they were a good judge of him, but didn't know about his plan because he actively hid it from them and didn't want to arouse suspicion.

Crown: When it comes to serious crimes, like killing a person not much difference between knowing it's legally wrong and moral wrongfulness. (Citing case law). Nothing to suggest Minassian thought it was justified. In fact, he wanted to die bc he didn't want to go to prison.

He didn't plan to plant ten trees or rob ten banks. He planned a mass murder. The plan was premised on his act being bad and the worse it was the more notoriety he would get. Minassian has a history of seeking negative attention, Crown notes. Better than no attention at all.

He said he hitched a ride to Rodger and the incel movement to boost his fame. Didn't want to be "just an average mass killer." This was a deliberate and conscious effort. And in a perverse way it makes some sense.

Crown points to Minassian deliberate and though-out reasoning for including specific "catchphrases" in his Facebook post like 4chan, incel. Referenced Rodger like talking about working for a famous boss.

Taking lunch break now.

There is a publication ban on the location Minassian first intended to attack in downtown Toronto. Of course the exact information a publication ban applies to is never noted in the court file so I'm not sure how anyone who hasn't been in court all this time would know.

The Crown is continuing. He says the answers Westphal gave regarding Minassian knowing what he did was morally wrong and that it was against society's standards shows Minassian doesn't meet the Canadian legal test.

Crown again slams the use of the Vineland and says the conclusions were extremely misleading. When confronted with evidence proving Minassian has social and communication skills well above a child, Westphal refused to budge.

Minassian's interviews with assessors show he could have social conversations, they didn't only talk about the index offence.

Minassian told Westphal he really wanted to commit a mass murder and gave a "nuanced" explanation for why, and shows self-awareness. The Crown says Minassian did express understanding of the impact on others, which was totally dismissed by Westphal as "complete lack of insight"

Crown says Westhphal didn't really address hyperfocus and made assumptions about things that he used as foundations for his conclusions. One is the statement Minassian made to his parents re people will see that I did nothing wrong. Westphal never asked Minassian about this

Westphal also found it didn't make sense for Minassian not to take interviews with the media if he wanted attention. But he never asked Minassian about it and at trial admitted there were other explanations like legal advice.

Minassian isn't at the severe end of the autism spectrum, Crown says and his abilities have been mischaracterized by the defence.

Crown now going to Dr. Bradford who was retained by the defence. He did apply Dr. Westphal's theory to the Canadian NCR test and his own view is that it doesn't work. He said in his experience NCR really stems from psychosis.

Bradford didn't think there was anything in autism spectrum disorder that rises to the level of psychosis. He doesn't think hyperfocus reaches the level of a delusion in term of the impact on the mind.

Bradford connected the defence with Westphal, and gave an overview of this hypothetical "less conventional pathway" to NCR. Bradford said it would be up to a court to decide, but he says he doesn't think it applies because it lacks delusional intensity.

There is a dearth of literature actually connecting the theoretical autism pathway and the Canadian legal test, Crown points out.

Crown said Chauhan testified she was not saying Minassian didn't have the capacity to make moral decisions.

Minassian was not in a complex, nuanced decision when it came to deciding to commit mass murder, Crown says. It was simple. Rent van, drive van down street, kill people.

Crown says it's not fair to say Wright, the psychologist for the Crown, doesn't have experience with autism. He does have experience with adults with autism. Did take steps to assess Minassian's perspective-taking and moral reasoning.

Minassian could come up with the right answers, just took longer.

Westphal didn't frame his assessment in the Canadian legal test, so he didn't consider the right things, Crown said, unlike their experts. They also listened to Minassian and didn't discount what he said.

Molloy says she's absolutely not going to make any finding that Woodside perjured himself. But does say what he produced aren't notes. Not like a police notebook or a doctor's notes. Not possible for notes to come out like that, like a fully formed report.

Don't put things like "Minassian explained" in a report. Had to have been edited and supplemented. No issue if the original notes are kept but now there is no way to see inconsistencies or anything that got missed. It is troublesome. Not sure how much turns on it bc Minassian was

pretty consistent in what he told people.

No evidence Minassian learned things from the civil suits or from others about the Bible, Crowns says, that is just speculation.

Woodside said what other people feel doesn't matter to Minassian because he is focused to what he wants to do. Would be dangerous to dismiss everything he said. Woodside said Minassian felt hopeless, which as especially dangerous time.

Molloy: Suppose I were to accept that Westphal is right and Minassian felt no empathy whatsoever for his victims but did have intellectual understanding of it and could articulate that but emotionally never got it. Does that matter under Section 16?

Crown says no. Just basic cognitive awareness. Just need to know intellectually. And Kjeldson, which refers to appreciation, says only need to know physical consequences not emotional

Molloy asks if need to have emotional understanding to make a rational decision.

Crown says knowing it was wrong is enough. Don't need to know why something is wrong, especially as something as significant as killing.

Crown calls Westphals view that there was no reason Minassian gave that explains why he did the attack and thus it must be due to his ASD is bald conclusion.

Westphal said if there was a coherent explanation it would be different.

Woodside's view is that you cannot discount Minassian's explanations when they are understandable. Obviously there is no good reason to do a mass killing, but there are understandable (in terms of coherence) explanations for his behaviour

Crown said Westphal had a difficult time listening to Minassian and it's hard to listen to someone talking about mass murder. But Woodside explains the Crown position well on this point.

Crown is almost done. Taking a break and then will have defence reply.

Crown is done. Says Minassian has failed to meet the test.

Now hearing defence reply. He says Westphal was saying the common thread in Minassian's motivations is the lack of understanding of the impact on other people's lives. If he did he would not talk about it in the flat way he does.

Defence: We can distill this down to one basic question. Once he's shown to be capable of knowing the act is morally wrong, anything short of compulsion, the decision to proceed is rational. "You must have the capacity to make a rational choice," Molloy said.

Crown pointed to Minassian saying he may have postponed attack if he was in a relationship.

Shows he could make choices but not that he could make rational choices. Defence says the point is Minassian cannot weigh factors properly.

Another example: Judge has to make decision based on all information. But let's say in a multi-accused trial, only one accused is allowed to make submissions. Could try to think of what the other accused might say and make best decision possible. But will not be rational.

If you accept the suggestion that Minassian is missing one very big pillar bc he cannot take into account key things, you'd be in the same position as a trial judge that can only hear from one person.

Molloy: What about the SCC point that not caring about feelings of others has nothing to do with knowing, let alone appreciation.

All case law that gives rise to these principles are pre-Charter and pre-Oommen, Bytensky said.

The law then was that knowing was just legally wrong and morally wrong doesn't matter. Then in Chaulk, a Charter challenge, this is addressed and then in Oommen four years later brings in rational choice.

(We don't normally get the caselaw presented to the judge and usually don't need it but I wish I'd tried because it's v hard to guess the names of the cases I haven't heard about before).

Bytensky said Oommen makes the test for knowledge more than a cognitive test because now it includes rational choice. If they meant for it to be a bare cognitive test, then no need for rational choice language.

Being able to understand autonomy of others is a key part of how we live our lives, Westphal said.

Now Bytensky is going into Kjeldsen which is from 1981 when psychopathy was considered to fall under the insanity defence which it no longer does. Now our understanding of empathy has evolved.

Kjeldsen is a case about psychopathy. It cites a decision: "Appreciation of the nature and quality of the act does not import a requirement that the act be accompanied by appropriate feeling about the effect of the act on other people...

No doubt the absence of such feelings is a common characteristic of many persons who engage in repeated and serious criminal conduct."

Bytensky says now we look at things in a more nuanced way. Recognize where people don't have capacity. Also says this is a reference to the first branch, which is focused on physical consequences. Involves serious cases where people don't know they are striking a human for ex.

Bytensky said now we understand there are cognitive empathy and emotional empathy, which are different things and work differently. Minassian lacks capacity for cognitive empathy, he has said.

Bytensky said Chauhan didn't do the Vineland and she came to the same opinion that Minassian's social skills are at the level of the child

Bytensky agrees that in the most serious cases legal and moral wrong are the same and that to parse what intellectual levels gets very complex. That is why he is looking at the rational choice part of the test.

Bytensky said it's very child-like to say he "really, really wanted to do it." Also true of adults but they can take many factors into account.

Molloy: And yet they often do not

Bytensky agrees. But a young child who really really wants candy, for example, not the same as adult

Molloy: What are the implications if I follow your reasoning. Lack of empathy and inability to put yourself into other person's shoes is one of the things that gets you diagnosed with autism spectrum disorder. Applies to alot of people.

So any time someone with that characteristic commits an offence they would have a section 16 defence?

Bytensky: Just bc you have something doesn't mean impacted by it to level to be exempt from criminal responsible. Have to have causal connection to offence.

In this case there is evidence that this offence would likely not have taken place if not for autism spectrum disorder. In Minassian's case you have a significant body of evidence. Multiple doctors, testing, many statements from Minassian to show his degree of deficit.

Bytensky says this doesn't open floodgates or mean that people with autism are free to commit crimes. She is right this could open door for people with autism to raise the defence but they will have to argue it. NCR not a get out of jail free card.

Also points out there is not much that can be done re things like treatment/medication which can mean they will not be released from hospital. Makes the prospect of such a defence daunting.

Molloy says she's not saying NCR can't be raised for people with ASD in some circumstances. But you seem to be saying that people with autism by definition qualify.

Bytensky says it depends on degree of deficit.

Molloy: You are saying it has to be at the extreme end.

Bytensky said it's like a consent and capacity case. What is the degree to which you have to know something. Not exact. Have to act rationally, make a true choice. Every case and every person with autism is different.

Bytensky said Bradford said he wouldn't comment on hyperfocus AND theory of mind deficits together, doesn't have the expertise in autism. Also doesn't address issue of rational choice.

Judge says it is helpful to have a pychiatrist opinion grounded in the legal test thought not needed. Bytensky said autism expert testimony is really important in this case and in other cases that may come. Very hard to understand this area, especially people without this deficit

Almost done. Last break.

Justice Molloy says she wants to say a few words before we wrap up a long arduous process. It is now a complex factual and legal question. She will be writing a decision. This trial has been unprecedented really, not just because of the subject matter but the manner

in which it has been conducted and the public scrutiny. She says in light of that she wants to explain the delay in her decision. The trial has consumed her attention but she has two other important decisions to write.

(One is an awful sexual assault case that I wrote about earlier). She says she does not expect a decision until early March.

She says this trial has only been possible due to the enormous effort of court staff and the ministry. With this level of public interest at the best of times it would have hard to manage. If someone told her last year the trial would have been done remotely, she'd have laughed

She said at the time they couldn't even do electronic filing of materials. They have accomplished what she thought was impossible. Everything has been done remotely without sacrificing anything, and everyone has remained safe.

This was only possible because of the outstanding efforts of court staff. There are far too many to acknowledge personally but she commends the court reporter who has provided daily transcripts, the tech genius who set this up and court registrar Addi Khan who is "amazing."

She now turns to the lawyers, who are unsurprisingly, skilled in their craft and have marshalled the evidence and law, working extremely hard. Most grateful for their professionalism in working together where issues can be resolved.

She singles about defence, a role the public often doesn't appreciate. The have been steadfast and zealous in their defence but conceding where needed. System of justice could not work without such lawyers taking on difficult cases.

Every accused person deserves access to a high-calibre lawyer, so that in the end a decision can be made with best evidence possible and applicable law. Counsel are to be thanked not criticized for this role.

Now she addresses some concerns from the disability community. Autism is not on trial here, Alek Minassian is on trial. Issue is not whether people with ASD know right from wrong or can make moral decision. Issues is about a specific person at a specific time.

It is a very specific and narrow issue. Those condemning this as stereotyping autism don't understand process. It is not discrimination against people with ASD to give this consideration, but might be to simply say none are eligible. Not about stereotyping, the exact opposite.

A highly individual, specific inquiry into Minassian's specific circumstances and offence.

Now we are setting a date. It will be March 3. Either way there will need to be further submissions on disposition (prison or hospital).

Registrar asks if it will virtual or not. Molloy says she is a total Zoom trial convert. It's almost better she says. Crown notes that many victims have been able to watch from their homes more comfortably.

So the decision will be done virtually on March 3. That is the end of the trial (almost exactly six weeks after it began).