Failed defence in Toronto's van attack trial damaged the autism community, activists say

When Michael Cnudde, who has autism, learned that lawyers for the man accused of Toronto's deadly van attack in 2018 would be using the disorder as a defence for their client, his immediate reaction was: "How dare they?"

Yet despite the rejection of that argument on Wednesday by Ontario Superior Court Justice Anne Molloy, who found Alek Minassian guilty on all 10 counts of first-degree murder, there is still concern that the trial itself further stigmatized the autistic community.

"There's a lot of damage that's been done already," said Cnudde, who dismissed the defence's arguments as "junk science."

Minassian, who was also found guilty of 16 counts of attempted murder, had pleaded not guilty to all charges. His lawyers argued that he was not criminally responsible for the deaths and violence he wrought because his autism spectrum disorder (ASD) left him incapable of determining that his actions were morally wrong.

Autism activists expressed outrage at the unsubstantiated defence. During the trial both Autism Ontario and Autism Canada released statements denouncing the defence's attribution of their client's actions to his "autistic way of thinking."

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While Malloy dismissed the defence's argument, she did determine ASD qualifies as a "mental disorder" under Section 16 of the Criminal Code. That section allows a defendant to claim they were not criminally responsible for a crime committed "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."

But Malloy's ruling that ASD should be a consideration under Section 16 is in itself troubling, says Cnudde.

"Even raising that possibility is concerning. It just further raises the issue of one day, this happening all over again," said Cnudde, who is communications and resource development specialist at Autism Ontario but was speaking on behalf of himself.

Doris Barkley of Stratford, Ont., whose 23-year-old son Ryan has autism, says she believes a lot of people who heard ASD used as a defence will now have a faulty opinion of people with autism, that "they can be evil like this and want to kill others.

"And I think that's where a lot of damage has been done," she said.

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Pandora's box

In a statement, Autism Ontario said while it was relieved by the verdict, it was also concerned about the damage already inflicted on the community. The organization said the case has forced it to push back against the stigma it thought it had made progress on removing over the past few decades.

"We are concerned about the potential ramifications of this defence being used in future cases and the difficulties it will cause for autistic people and their families," Margaret Spoelstra, executive director of Autism Ontario, told CBC News in an interview.

She fears that "the Pandora's box is open on this," and that there could be "long-term implications."

"I think that is an additional barrier to inclusion," Spoelstra said. "Having this story attached to autism adds another barrier to people finding opportunities and acceptance in their community."

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Backlash from the case

Dermot Cleary, board chair of Autism Canada, said he believes the trial and the autism defence has certainly made life more difficult for those with the disorder.

"Once the charges are laid and once the defence is articulated through the media, there's a perception on the part of some viewers that it's true, that there's some basis in truth, otherwise it wouldn't have been uttered," he said.

He said his organization has received an inordinate number of anecdotes and experiences of those with ASD who say they have been dealing with a backlash from the case.

In her ruling, Malloy said there was no other Canadian case dealing directly with whether ASD is a "mental disorder." But Cleary said her decision to characterize it as such motivates his organization to see what can be done to take a closer look at her description and whether "it can be made to more accurately reflect those on the spectrum."

"The last thing we want to see is this exploited again, as it was done here. Because, you know, in balancing the benefit to the defence of one individual at the cost of the stigma to half a million Canadians, to me, that just does not seem like a good way to proceed."

Criminal defence lawyer Karen McArthur, who was not involved in the case, said she doesn't believe, however, courts will now be besieged with ASD defences.

But she said the autism community should be prepared for heightened scrutiny of the disorder itself, and the extent to which those with autism may have a diminished understanding of their acts.

That this defence was raised "will send ripples across changing seas, as to whether or not autism diminishes one's understanding of their acts or their ability to control same," she said. "This may cause hardship for the autism community in the immediate future."

Voula Marinos, an associate professor in the department of Child and Youth Studies at Brock University in St. Catharines, Ont., says she doesn't believe this case "will open the floodgates," but that ASD could be used in sentencing of lesser crimes.

"This is what you're most likely to see that someone being found guilty of an offence and at sentencing they introduce ASD as a mitigating factor," she said.