A police statement made by Alek Minassian the April 2018 night after he was arrested and charged with driving a rented van into pedestrians on Yonge St., killing ten and injuring 16, can be made public before his trial, a judge ruled Friday morning.
Minassian’s identity as the van driver will not be disputed at his murder trial, and there is no evidence the contents of his statement to police will taint potential witnesses, Superior Court Justice Anne Molloy said at a Toronto courthouse Friday, ruling the statement will remain under publication ban until Sept. 27 to allow his defence to interview witnesses, review disclosure and appeal the decision should they choose to do so.
“It is hard to imagine a witness being called who will not already know that Mr. Minassian drove a van down a Toronto sidewalk killing and injuring many people,” Molloy said.
Defence lawyer Boris Bytensky had sought a publication ban on the statement extending until the start of Minassian’s trial in February 2020. Bytensky argued that publishing the statement could taint potential witnesses, and that their perception of Minassian could be altered from reading or watching the police statement.
Because Minassian’s trial is now being heard before a judge alone, jury bias was not an issue at Friday’s hearing.
The trial will centre on the Crown needing to prove Minassian had the “requisite state of mind for murder and attempted murder,” Molloy said. She added that she did not find anything in his statement so shocking that it would alter a person’s memory.
Minassian admits to being the van driver in the police statement, she said, but his arrest by the van was also broadcast on television moments after it happened.
Molloy agreed with the submissions of Brendan Hughes, a lawyer representing the Star and other media outlets opposing the publication ban, and found there was no evidence witnesses might be tainted. The statement would also become public at the start of the Crown’s case, Molloy said, long before any defence witnesses testified.
She also rejected the defence request for a publication ban on the statement during the trial. That step would have made the trial effectively secret and been a “colossal affront to the concept of openness of our judicial system,” impossible to enforce beyond traditional media outlets.
“The people of Toronto are entitled to know what evidence is being presented at trial,” she said. “This was a tragedy with a wide and devastating impact within the Toronto community and beyond. People want to know why it happened. They are entitled to know what is happening at the trial devoted to finding the answer to that question.”
Molloy considered the argument that there is little difference between publishing the statement now and waiting a few months until the trial. But, she said, the openness of the courts to the public is not based on timing — it is always open — and therefore simply delaying publication to the trial is an infringement of free expression.
She also found there is a strong public interest in publishing the police statement, and in the ability to scrutinize police procedures and tactics, as well as Minassian’s treatment post-arrest.
“The public has an important and legitimate interest in how our police force conduct themselves,” she said.
According to Friday’s decision, the material that can be published in September includes Minassian’s police statement, the details of a defence request to access some of Minassian’s encrypted electronic devices, and an alleged link between the Toronto attack and a man now facing a charges over a potential threatened attack in London, Ont., “possibly inspired by the Toronto van attack.”
The case of that man, Alex Penkala, is still before the courts and the charge has not been proven.
The material that will be published comes from a pretrial motion by the defence seeking access to three electronic devices seized by police from Minassian’s residence. The Crown objected to this because the devices were encrypted and could not be accessed by police experts.
Justice Molloy has since directed the Crown to disclose those devices to the defence subject to a strict undertaking, but the reasons for her decision remain under a publication ban until Sept. 27.
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Alyshah Hasham is a Toronto-based reporter covering crime and court. Follow her on Twitter: @alysanmati