Duty counsel Georgia Koulis, left to right, Alek Minassian, Justice of the Peace Stephen Waisberg, and Crown prosecutor Joe Callaghan are shown in court in Toronto on April 24, 2018 in this courtroom sketch.Alexandra Newbould/The Canadian Press
A Yale University psychiatrist threatened to back out of testifying in the Toronto van attack trial unless the judge agreed to seal the tapes of his interviews with the killer, arguing that the footage could incite further violence and stigmatize people with autism spectrum disorder.
On Friday Superior Court Justice Anne Molloy likened the ultimatum to “having a gun” to her head.
Alexander Westphal, a forensic psychiatrist who specializes in autism spectrum disorder, is a key defence expert for Alek Minassian, who is on trial for killing 10 people and seriously injuring 16 others on April 23, 2018, when he drove a rented van through groups of pedestrians on Toronto’s busy Yonge Street. The 28-year-old’s defence team argues he is not criminally responsible for the mass killing because his autism spectrum disorder made him unable to rationally appreciate that what he was doing was wrong.
On Sunday, Dr. Westphal – who conducted a psychiatric assessment of Mr. Minassian and is expected to support the defence’s case – wrote a letter to defence lawyer Boris Bytensky, expressing concern that footage of his interviews with Mr. Minassian could come out as part of his testimony.
Autism isn’t on trial in the Toronto van attack case. The accused is
“I understand that members of the public and the media may be able to watch and/or hear some of the recordings by Zoom, and perhaps even get access to them. For me this is a line that cannot be crossed,” Dr. Westphal wrote. If made public, he feared the tapes would provide Mr. Minassian the notoriety he was expressly seeking – and could incite further violence through a contagion effect.
“Finally,” he added, “this case is particularly sensitive. Mr. Minassian shares a developmental disability with millions of Canadians and Americans who pose absolutely no threat to anyone around them … I am deeply concerned about the effects that negative stereotypes illustrated by the footage would have on their lives and the lives of their families. While I understand that it is essential for the court to understand autism and the role it played in Mr. Minassian’s actions, my duty to the many people I know with autism surpasses that.”
Faced with Dr. Westphal’s ultimatum, Mr. Bytensky filed an application for the audio and video footage of those interviews to be sealed or shown in camera. A coalition of news outlets, including The Globe and Mail, fought the application Friday.
Mr. Bytensky acknowledged that the issue left a “bad taste in everyone’s mouth.”
“I’m not happy to do this, I assure you,” he said. “But my concern is that Mr. Minassian get a fair trial, and this is the only way I can do that.”
He argued that the fear of inciting violence is a legitimate one, given the contagion effect. The court previously heard that Mr. Minassian was obsessed with a mass killer affiliated with incel (short for involuntary celibates) subculture and routinely read a manifesto by the man, who killed six people and then himself in California in 2014.
“I would describe it as somewhat chilling, to be perfectly candid,” Mr. Bytensky said of his client’s interview video. “He speaks about the offences in excruciating detail.” He also noted that there are many references in the video to autism.
Justice Molloy expressed deep concern about Dr. Westphal’s attempts to dictate the proceedings. If he was Canadian, she said, she could compel him to testify. But Dr. Westphal is American, and it would be difficult to compel him to testify in any timely way.
“I do not expect that the issues raised by Dr. Westphal would justify the order that he thinks I should be making,” she said. “In particular, sealing exhibits that don’t even exist yet, that I have not even seen in advance, in order to secure his testimony, is offensive. That said, I’m going to do it.”
Her deepest concern, she said, is Mr. Minassian’s right to a fair trial: “He only has one defence available to him. That has been clear right from the beginning.”
Without Dr. Westphal’s testimony, she said, “we may as well go directly to sentencing.”
Although she agreed to seal any portions of the interviews that are entered as exhibits, she would not agree to play them in camera. Instead, approved media will be able to watch the footage over Zoom, and members of the public will be able to watch at a designated location in downtown Toronto.
“So people will hear it and they will see it. They can report on it. They just won’t have a copy of it,” she said. “So that’s my ruling. I’m not happy about it. It’s a tough one. But I just think it’s the right thing to do in all the circumstances – or the least wrong in all the circumstances.”
The trial will resume Monday.
Our Morning Update and Evening Update newsletters are written by Globe editors, giving you a concise summary of the day’s most important headlines. Sign up today.
Molly Hayes