When the system fails….

A horrific murder case that culminated with a dismembered body stuffed into a fridge has ended with Kenneth Barter being found not criminally responsible for killing 32-year-old Nathan Mayrhofer. Barters family had struggled with the health system for the last six or seven years to try and get their son properly treated.

Kenneth Barter, 37, was ordered to undergo a psychiatric assessment after being charged with second-degree murder in the death of Nathan Mayrhofer in August 2010. Barter admitted to beating Mayrhofer to death with a hammer while in a delusional state, and cutting up his body to store in his apartment refrigerator, the Crown says.

Judge Peter Rogers ordered Barter to be placed at the Forensic Psychiatric Institute in Coquitlam, where his case will be reviewed by a group of psychiatrists.

Barter’s defense lawyer, Juan O’Quinn stated in media reports, that Barter had very little contact with the legal system before the events of August.  The Barters family has struggled with the health system for the last six or seven years to try and get their son properly treated.

Barter, who had been taking medication and seeing a psychiatrist on a regular basis, stopped going to see the psychiatrist for a short period of time. In March, 2010, he tried to see the psychiatrist but because he had stopped, he was told he needed a referral from his doctor, which he got. An appointment was made in April but the earliest Barter could get in to see the psychiatrist was October.
Crown prosecutor Howard Pontious appears to have avoided making any comments on the apparent lack of any suitable treatment prior to the murder.

Memories of Nathan Mayrhofer

Getting Away With Murder

[7] An accused who is found NCR cannot be punished for his or her criminal act. Any post-verdict limitation on the liberty of the person found NCR must be justified on the basis that he or she poses an ongoing danger to the community: R. v. Owen, [2003] 1 S.C.R. 779, at para. 25. That constitutionally mandated precondition to restriction on liberty finds its statutory expression in s. 672.54(a). That section provides that if the Review Board concludes that the NCR accused does not pose “a significant threat to the safety of the public”, the Review Board must order an absolute discharge.

[8] The meaning of the phrase “significant threat to the safety of the public” has been authoritatively set down in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at paras. 49-62, 69. The phrase refers to a foreseeable and substantial risk of physical or psychological harm to members of the public that is serious and beyond the trivial or annoying. A very small risk of even grave harm will not suffice. A high risk of relatively trivial harm will also not meet the substantial harm standard. While the conduct must be criminal in nature, not all criminal conduct will suffice to establish a substantial risk. There must be a risk that the NCR accused will commit a “serious criminal offence”.

Many may find these guidelines established by law, and the courts, are of little consolation and with little recourse when the review board gets it wrong. And they do get it wrong… some would rightfully say, knowingly get it wrong. Read more

Vincent Li Review Board Hearing on May 31, 2010

Less than 2 years after brutally murdering Tim McLean, Vincent Li will have his second Review Board Hearing on May 31,2010. The purpose of this review is to determine whether Vincent Li poses a continued threat to the general public

The Supreme Court of Canada has determined that the Review Board has an obligation to resolve when Vincent Li comes before them:

1. Vincent Li was found by the court to be “Not Criminally Responsible” for his action. Vincent Li does not have to prove anything. In other words: “properly read the section does not … impose a burden of proving lack of dangerousness on the NCR accused.”. There is no presumption of dangerousness in the law.

2. “Dangerousness” has a specific, restricted meaning of “a significant threat to the safety of the public”. This means there must be evidence to support the risk being real, and the physical or psychological harm being serious. The activity causing the harm must be criminal.

3. The Review Board has a duty to investigate facts which support release, as well as detention.

4. “If the Review Board fails to positively conclude, on the evidence, that the NCR offender poses a significant threat to the safety of the public, it must grant an absolute discharge”. In other words, if the Review Board “harbours doubts” or can not resolve whether Vincent Li is a significant risk to the safety of the public, they must unconditionally discharge as there is no legal or constitutional basis for confinement.

5. “As in all cases, the Review Board must make the disposition that is the least restrictive of the NCR accused’s liberty possible.”

6. The Review Board has an affirmative duty “to consider the accused’s personal needs”