Lessons to be learned from Toronto attack

Alek Minassian, the man accused in the 23 April 2018 van attack in Toronto, appeared in court recently to face new charges following identification of additional victims. He now faces 10 counts of first degree murder and 16 counts of attempted murder. Canadians remain understandably shocked at the savagery of the attack and now also are interested in how the prosecution will unfold and if there are lessons to be learned and actions that need to be taken to try and prevent such attacks in the future.

What to expect in the case going forward

At Minassian’s last court appearance, it was clear that he is now lawyered up. Without a plea being entered or bail being sought, the case was adjourned until September 14th, apparently to facilitate the mandatory disclosure of evidence from the Crown. 

His lawyers spoke with the media following his brief court appearance, and their remarks were focused almost entirely on the ongoing ‘grieving’ in the community, and they would not comment on any misogynist motivation of their client or whether the adjournment will actually be used to seek a mental health assessment so as to pursue a ‘Not Criminally Responsible’ (NCR) defence to the charges.

In Canada, to prove first degree murder the prosecution must show that “the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;” (s. 229 Criminal Code)

and that the actions that resulted in the death were ‘planned and deliberate’ (s. 231).”

The penalty for first degree murder is life imprisonment without eligibility for parole for 25 years. (s.745CC)

Additionally, s. 231 (6.01) of the Criminal Code provides that when a murder is planned and deliberate, it is deemed to be first degree murder if death is caused by a person that is committing or attempting to commit an indictable offence if the act or omission also constitutes a terrorist activity which is itself defined in s. 83.01(b) of the Code. While potentially relevant, as explained below, this is not likely something the prosecution will need to prove, as the available penalties for murder now include the possibility of consecutive parole ineligibility periods.

The evidence against Minassian is obviously overwhelming. The Crown will be able to produce evidence of the van rental (including, likely, with a false purpose being provided), plus eye witness and video accounts, plus his arrest video, plus whatever statements he may have provided to the police. In addition, and most relevant to motivation and cognitive awareness of what he was about to do, is the Facebook message posted minutes before the attack where he confirms his adherence to the ‘Incel’ movement, which we now know means ‘Involuntary Celibate’. In the same post, he stated that the ‘rebellion has already begun’ which is definitely indicative of both motivation and awareness of what he was about to do.

It is possible that, like Alexandre Bissonette (the Quebec mosque mass murderer), Minassian could decide to enter guilty pleas and avoid trial. There has been some discussion about why terrorism charges were not laid against Minassian given the evidence of ideological motivation and the broad wording of ‘terrorist activity’ in s. 83.01(b) of the Criminal Code.

Pursuing terrorism charges is unlikely, however, thanks to amendments made by the previous government. Section 745.51(1) CC now authorizes consecutive parole ineligibility sentences for persons convicted of multiple murders. In other words, if he is convicted of the 10 murder charges against him, Minassian is facing a potential sentence of life imprisonment with no eligibility for parole for 250 years. Put differently, in a case with this weight of evidence, why would the Crown bother adding an evidentiary requirement when such a lengthy sentence is now possible?

If Minassian does not plead guilty, his lawyers will likely pursue a verdict of ‘not criminally responsible’ (NCR), which is defined in s. 16 of the Criminal Code.

16 (1) 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.

The onus on establishing the NCR status, on a balance of probabilities, rests on the person alleging it (Minassian), however, as s. 16 notes, the alleged deficiency must be the result of a ‘mental disorder’. Further, to be found NCR, the evidence must establish either that the person did not know what they were actually doing, or that it was wrong in a moral context.

Given the nature of the evidence that the Crown clearly has against him, including motivation, planning and method of committing the crimes, it should be extremely difficult for Minassian to establish the NCR defence. That will not stop his lawyers putting it forward as a defence, given the horrendous nature of his alleged actions. As other cases have demonstrated, this often results in a defence strategy where, in effect, the crime becomes the defence.

Should the NCR defence be pursued, proceedings will be extended well into the future.

Stay tuned.

– Scott Newark