This story first appeared on VICE Quebec.
Alexandre Bissonnette's trial on six counts of first degree murder and another six counts of attempted murder starts next Monday.
More than a year ago, on January 29, 2017, the Islamic Cultural Center of Quebec was the scene of one of the worst mass shootings in Canadian history. According to the Crown, Bissonnette entered and fired on the faithful that had gathered for the Sunday evening prayer. Six people died and five others were injured. None of the charges against Bissonnette have been proven in court.
So what kind of defence can Bissonnette be expected to present in court? VICE talked to three experts in criminal law to get their insights into the case.
In order for Alexandre Bissonnette to be found guilty of first-degree murder, the prosecution must prove "beyond a reasonable doubt" that it was he who entered the mosque, who used the murder weapon and that it was this weapon that caused the deaths of the six people. Since the suspect is charged with first degree murder—the most serious offense in the entire Criminal Code, premeditated murder—the Crown must also demonstrate that the act was planned.
"If Bissonnette's lawyer succeeds in raising a reasonable doubt about any one of these elements, he should be acquitted—at least of first degree murder charges," says retired Crown prosecutor Pierre Lapointe.
Not criminally responsible
"The question that everyone asked themselves it happened was, 'What was going on in the head of the shooter?'" said criminal lawyer Jean-Claude Hébert. "Was he in a normal state?"
In a criminal trial, according to section 16 of the Criminal Code, the accused can argue they are not criminally responsible for their actions due to their mental state. This amounts to admitting to the crime, but arguing that a mental disorder prevented you from appreciating the nature or quality of the act, or from understanding the act is wrong.*
At the end of the trial—and assuming the defence works—you would then be recognized as the perpetrator of the murders, but would not be liable for your actions in the legal sense. You would not go to jail, but would rather be committed to an institution charged with ensuring you're not released until your psychiatric issues are resolved.
This is what happened to Vince Li, for instance. Li stabbed and beheaded Tim McLean on a Greyhound bus in 2008, but was found not criminally responsible for the acts because of his schizophrenia. He regained his freedom in 2017 after several years in psychiatric institutions.
Weighing the probabilities
It is up to the defence to prove that an accused was indeed suffering from mental disorder at the time of committing the crime. But it is not easy to establish that a person was troubled enough to make them unaware of what they're doing.
The court uses what it calls the balance of probabilities; that is, it must be proven that the accused is more likely to have a mental illness at the time of committing the crime than vice versa.
How do we do that? Psychiatric experts are called to testify about the status of the accused. It's important to have your client assessed as quickly as possible after the crimes, says criminal lawyer Marc Lemay, also vice-president of the Quebec Bar.
He adds that it is also important to document any signs of mental illness before the crime was committed. Having a diagnosis before the crime is essential; without that, one must be able to prove that the accused was in a state of psychosis. The speed of diagnosis is all the more important in this case.
Some of the information about Bissonnette that was reported in the media could be useful in the case of a defence for mental disorders, if they are established legally, according to experts.
If the accused had indeed consumed alcohol and he was taking anti-depressants, as reported in the Journal de Montréal , "it may serve as a basis, where Bissonnette could build something," said Jean-Claude Hébert.
Still, experts will have to determine that, at the time of the crime, the accused was in "an altered state which prevented him from completely realizing what he was doing," says Hébert.
Not all mental illnesses excuses a crime, according to Pierre Lapointe, the retired prosecutor. "The person must be incapable of judging the nature or the quality of the crime and to know that it was wrong, he said. "There are all kinds of diseases, to a greater or lesser degree, that can have these consequences."
In most cases, the prosecution comes prepared to fight this line of defence. "Generally, in this type of case, the police will be quick to pick up the material and testimonial evidence that could neutralize a defence of this nature," said Hébert.
Prosecutors will also call on their own psychiatric experts in psychiatry to rebut the defence arguments. "The effects of a given disease can be controversial from expert to expert. The existence of the disease, its degree, the effects ... There will be a debate, surely, between experts," said Lapointe.
Based on the same facts, experts will likely draw different conclusions. It will then be up to the jury to decide, according to the evidence that is presented.
A first-degree murder charge adds a layer of complexity on both sides: if a crime seems to have been planned, it is more difficult to plead mental illness.
"The more you have elements of premeditation, the more these elements are extended in time, more obviously it complicates the presentation of the defence of mental disorder. A mental disorder can be latent and one day come to an outburst, and there, an unfortunate incident occurs. But if you have evidence that determines that [the act] was something that was programmed, matured, this outburst argument is harder to accept," says Hébert.
In such a situation, the fact that neighbours reported Bissonnette's noisy cries or episodes , sometimes in the middle of the night, could play into the defence. "All the elements are relevant. We need to establish them legally. We need to have witnesses who come to say that they have seen, heard, in the context of the incident, that they have noticed something, something. Material facts are established, which will then be analyzed and interpreted by the experts. "
The legacy of Guy Turcotte
The second trial of Guy Turcotte has notably complicated the task of invoking a mental disorder in court, according to the three experts we spoke to.
There was an uproar in 2011 when Turcotte was found not criminally responsible for the murder of his two children after a high-profile trial.
The defence had argued that he suffered from an adjustment disorder, coupled with anxiety and depression, and noted that Turcotte had drunk windshield wiper fluid in an attempt to commit suicide. He had been found under his bed, where he had vomited, and he was covered with the blood of his children.
The Crown appealed the verdict and a second trial was granted.
"The Court of Appeal stated that the judge in the first trial would have been wrong somewhere on a definition or a directive to the jury, including the weight or incidence of consumption of the substance by Mr. Turcotte [ the washing fluid,]" said Hébert. "The Court of Appeal rejected Turcotte's defence of intoxication and of mental disorder, reasoning they are separate cases."
The second trial focused only on the question of the definition of mental disorder, according to Hébert. Turcotte was found guilty of second degree murder at the end of the proceedings.
Ever since the Turcotte case, the criteria for what constitutes mental disorders have become "really, really very tight," says Marc Lemay.
" I took a shot, drank a 40 ounce, I lost it completely, I do not know what I did: [that defence] does not work anymore. It must be demonstrated that at the time of the acts, the person was in psychosis, and it must be provable. For defence lawyers, the Court of Appeal has closed many doors," he added.
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*This article was modified to clarify the stipulations in Article 16 of the Criminal Code.