B. Bytensky

The accused drove a rented van down a busy sidewalk in Toronto, killing 10 people and injuring 16 others.

He admitted to the acts but raised a defence of not criminally responsible (NCR) under s. 16 of the Criminal Code, arguing that his Autism Spectrum Disorder (ASD) rendered him incapable of knowing his actions were morally wrong.

The court found that while ASD qualifies as a mental disorder under s. 16, the accused did not lack the capacity to rationally evaluate his actions.

He knew his actions were legally and morally wrong but chose to commit them to achieve notoriety.

The NCR defence failed, and the accused was found guilty of 10 counts of first-degree murder and 16 counts of attempted murder.

The defence brought a motion for a sealing order and in camera proceedings during the testimony of their key expert witness, a US-based psychiatrist.

The expert issued an ultimatum that he would withdraw from the case unless his video recordings of the accused were sealed and shielded from public broadcast, citing concerns about copycat violence, notoriety, and stigmatization of the autism community.

Applying the Dagenais/Mentuck test, the court found that while the expert's concerns did not themselves justify a sealing order, his threat to withdraw would deprive the accused of his only defence, thereby creating a substantial risk to the administration of justice.

The court reluctantly granted the motion to preserve the accused's right to a fair trial, balancing it against the open court principle by implementing limited restrictions on public access to the video exhibits.

During a trial for multiple counts of first-degree murder and attempted murder, the Crown brought an application for the disclosure of audio and video recordings made by defence psychiatric experts during their interviews with the accused and his family.

The accused had raised a defence of not criminally responsible under s. 16 of the Criminal Code.

The court held that the recordings were protected by litigation privilege, but that this privilege would be waived if the experts were called to testify or if the recordings were used by a witness to refresh their memory.

The court ordered that the recordings must be disclosed to the Crown immediately upon any of the experts being called to testify.