Defence expected to close its case next week, Crown to call experts
This week’s court proceedings in the Minassian trial were dominated by surprises. It began with the aftermath of a ruling that Superior Court Justice Anne Molloy likened to having a gun to her head and ended with the defence presenting an expert in forensic psychiatry who testified he didn’t believe Minassian rose to the level of not criminally responsible on account of mental disorder.
Defence witness refused to testify unless demands were met
Friday’s motion ruling was brought about when Dr. Alexander Westphal, an American forensic psychiatrist based at the Yale Faculty of Medicine, threatened to refuse to testify unless Molloy sealed video evidence of the interviews he conducted with Minassian.
In a letter to the court, Westphal wrote that he didn’t know the roughly five hours of videos he made with Minassian were going to be exhibits, and that playing the interviews was “a line that could not be crossed.” Westphal wrote that he was concerned the video could both inspire copycat murderers and stigmatize individuals with autism.
The Crown originally demanded access to the interviews so that its own experts could scrutinize Westphal’s opinions and testimony. Molloy ordered the defence to turn over the videos if Westphal testified — a motion the defence opposed. That motivated Westphal to issue his threat to not appear in court.
Westphal was opposed by a group of media outlets — represented by lawyer Brendan Hughes — including Bell Media (for CTV), Rogers Media, the CBC, the Globe and Mail, PostMedia and the Toronto Star. The outlets were demanding access to the interview under the principles of open court, a foundational philosophy of Canada’s legal system.
Molloy noted that, were Westphal Canadian, she could compel him to testify, saying that any Canadian who issued this kind of “ultimatum” would get “short shrift” from her. However, any bench warrant she issued against Westphal would be rendered toothless by the international border, which Canadian police can’t cross to arrest an unco-operative witness.
Adding to the confusion is that exhibits in Canadian courts are typically only sealed after they’ve been entered and subjected to legal tests for whether they should be sealed or not. Neither Molloy, nor the Crown or public had seen the videos yet, with only the defence having access to them.
“Sealing exhibits that don’t even exist yet, that I have not even seen in advance, in order to secure his testimony is offensive,” Molloy said.
Noting Minassian’s only defence is one of “not criminally responsible,” Molloy said her concern was that adhering to the open court principle and losing a defence expert would deny Minassian a fair trial. Touching on her analogy of having a gun to her head, Molloy said another analogy would be a ransom demand. “I know it’s wrong to give into those kinds of demands,” she said. “Kidnappers should not be paid ransom but, that said, if somebody kidnapped my child, I would probably pay.
“I’m where the buck stops at this point in terms of Mr. Minassian having a fair trial,” Molloy added, making a ruling that walked the line between Westphal’s demands and upholding the principles of open court. She ordered the videos of the interviews sealed and said the Zoom webinar portion of the trial would be disabled when the interview videos are played. Only the public viewing room at the Metro Toronto Convention Centre would continue to show the trial, she said, adding that monitoring there would prevent people from surreptitiously recording that portion of the trial.
Second defence expert repeatedly denies Minassian rises to the level of NCR
In another strange development, the defence called Dr. John Bradford, one of the founders of the forensic psychiatry specialty within the Royal College of Physicians and Surgeons of Canada and the former director of forensic psychiatry with the Royal Ottawa Hospital (now the Royal Ottawa Mental Health Centre).
Bradford repeatedly testified that, in his expert opinion, Minassian didn’t meet the threshold for not criminally responsible on account of mental disorder. Saying he didn’t observe any psychosis in Minassian, Bradford called psychosis and one of its defining symptoms, delusion, a key component of the NCR defence.
He presented six slides outlining key symptoms of psychosis and autism, contrasting their differences. Calling on the DSM5’s definition of delusions as “fixed beliefs that are not amenable to change in light of conflicting evidence,” Bradford contrasted this with Minassian’s autism and one of its key traits, hyperfocus. Hyperfocus, which isn’t only present in autism, is when an individual fixates their attention on one idea to the exclusion of other ideas.
Bradford and other witnesses for the defence have testified that Minassian had fixated on mass murderers, most notably “incel” killers Elliot Rodger and Chris Harper-Mercer, but also the Virginia Tech, Columbine and Sandy Hook school shooters.
“My version of this hyperfocus is more of an overvalued idea,” Bradford said. An overvalued idea is “a false or exaggerated and sustained belief that is maintained with much less than delusional intensity,” according to Bradford’s slides, and “the individual is able to acknowledge the possibility that the ideas may not be true.”
Bradford testified that his opinion was that delusion was the only “pathway” to a not criminally responsible defence, and that Minassian’s overvalued ideas of mass murder didn’t rise to that pathway. “(An overvalued idea is) not held with the same conviction, not the same impact on the mind, so in my opinion it doesn’t support an NCR finding,” Bradford told the court.
The defence seized on a portion near the end of Bradford’s report where he wrote that psychiatry colleagues more versed in autism, such as Dr. Rebecca Chauhan, an earlier defence expert witness on autism, might argue that hyperfocus would open up another “pathway” to an NCR. Bradford noted several times that his expertise was forensic psychiatry and not autism.
On cross examination, Bradford said the end portion of his report was an academic aside rather than any formal finding on Minassian’s mental disorder. John Rinaldi, for the Crown, went after the inclusion of Bradford’s nod to autism experts in his report, getting Bradford to repeatedly stress that, in his view, Minassian did not rise to the level of not criminally responsible.
“You basically say (autism) isn’t your area of expertise, and this is sort of for legal scholars or the legal system to talk about a hypothetical possibility,” Rinaldi put to him. “You don’t agree, but autism experts might argue that.”
“I don’t agree with that, but it’s in the literature,” Bradford answered.
“What should we be considering?” Rinaldi asked.
“I think I was quite clear on it. If a person in my opinion is not suffering from a psychosis … if they don’t suffer from a delusion, they don’t come within Section 16,” Bradford replied, referring to the section of the criminal code that covers the NCR defence. “There’s nothing there with autism spectrum disorder that goes as far as that.”
The trial resumes next week, when the defence is expected to close its case and the Crown is expected to call its own experts.