Requested disclosure arose from concerns about Crown’s forensic psychiatrist
The Ontario Court of Appeal has declined to order the disclosure of materials requested by Alek Minassian, who sought to adduce fresh evidence on appeal of his conviction for 10 counts of murder and 16 counts of attempted murder.
The applicant in R. v. Minassian, 2026 ONCA 150, lived with autism spectrum disorder. At a judge-alone trial, all experts confirmed that this could qualify as a mental disorder for a finding that he was not criminally responsible on account of mental disorder (NCRMD).
The Crown and defence experts also agreed that the applicant appreciated the nature and quality of his actions, knew that he was committing murder, and understood that murder was legally wrong.
A forensic psychiatrist, called by the Crown as its expert, gave the opinion that the applicant was criminally responsible when he killed 10 people and tried to kill 16 others by running them down with a van in Toronto in April 2018.
The court convicted the applicant of all 26 counts on the indictment. The trial judge determined that the applicant knew that his actions were morally wrong, the last prong of an NCRMD inquiry.
The psychiatrist also served as the Crown expert in two other dangerous offender cases: R. v. Nettleton, 2023 ONSC 3390, and R. v. Hason, 2024 ONCA 369. In Nettleton, the judge rejected the psychiatrist’s evidence based on professional credibility bias.
Following Hason, the applicant’s counsel learned that all Ontario Crown counsel received a certain communication. In August 2024, the applicant requested a disclosure of a copy of the communication and all related or supporting documents.
The applicant wanted to know whether the Crown communication included a direction to refrain from retaining the psychiatrist for future criminal cases. The response confirmed that a communication existed but declined to disclose its contents on the grounds of privilege.
In the context of his conviction appeal, the applicant moved for the production of documents. He specifically sought the disclosure of:
The Court of Appeal for Ontario dismissed the production motion. First, the appeal court denied the request for the disclosure of the list of cases reviewed and the reason for their selection.
The appeal court saw no reasonable possibility that the list would assist the applicant with a fresh evidence motion. The appeal court said it was speculative to assert that the list might involve anything relevant to the psychiatrist’s ability to fulfill his expert role in this case.
The appeal court added that solicitor-client privilege – which extended to internal government legal advice, reviews, and communications – protected the details of the Crown’s internal review.
The Crown clarified that it had not discovered any concerns beyond those raised in Nettleton.
Second, regarding the post-Hason Crown communication, the applicant acknowledged the privilege covering any legal advice in such communication.
The applicant thus limited his request to the direction in the communication, with the reason for the direction redacted. He alleged that the justification for the direction could be a concern about the psychiatrist’s ability and willingness to perform his expert duties.
The appeal court found no reasonable possibility that the direction on its own could assist the applicant with a fresh evidence motion, pursuant to the first part of the test in R. v. Trotta (2004), 119 C.R. (6th) 261 (Ont. C.A.).
The appeal court explained that the direction, absent its reason, would lack relevance and would not support the applicant’s theory. The appeal court noted that the reason could be a concern regarding efficiency and litigation strategy.
