Rebecca Mayrhofer said she felt “100 per cent frustrated” when she heard about a triple stabbing in Vancouver’s Chinatown on the weekend, that police allege was committed by a man on day release from psychiatric detention.
But she wasn’t surprised.
“These are things that should not be happening … None of these. Not with this person on the weekend. Not with Ken. They are preventable,” Mayrhofer said.
“Ken” is Kenneth Barter, who killed Mayrhofer’s brother Nathan Mayrhofer with a hammer in 2010 during a psychotic episode in Vernon, B.C. He then dismembered his friend, double bagged the remains and put them in his refrigerator.
Like Donnelly, Barter was found not criminally responsible for the killing, and was confined to the Forensic Psychiatric Hospital, before decisions by the B.C. Review Board allowed both men to return to the community unescorted.
Like Donnelly, Barter would be re-arrested. He was charged with assault and assault with a weapon in 2022. Those charges were stayed this year, and he remains in the community because of an absolute discharge by the review board in 2019.
Barter could not be reached for comment.
Rebecca Mayrhofer and other victim advocates have long sought reform of the system handling offenders deemed not criminally responsible by reason of mental disorder. She said the “system is broken” and it “desperately needs a change.”
“I don’t want to see other people go through what happened last weekend and what happened with Ken,” said Mayrhofer.
Critics say the system doesn’t prioritize community safety or justice for victims, and some offenders are left without adequate supervision, or any at all. But lawyers working within the system say risk assessments aren’t made without careful consideration, and they cautioned about a knee-jerk response to the Chinatown stabbings, that have put the system into sharp focus.
Anita Szigeti, president of the Law And Mental Disorder Association, an advocacy organization of about 200 lawyers working in the field of mental health law, said the Chinatown stabbings were “extremely unfortunate.”
“One-off situations (are) quite tragic, but they are not the norm,” she said. “They are not common, they are not frequent. They are not typical, they are not to be expected.”
Decisions about the detention of not-criminally-responsible offenders are generally made annually by a review board panel at the hospital. Offenders can be represented by lawyers. Also present are their doctors and a representative of the attorney general, and victims and relatives can attend.
The board decides whether to continue to detain a person, whether they can be allowed time in the community and under what conditions, or whether to give them an absolute discharge without any ongoing conditions.
“On the day of a scheduled outing, the patient is assessed to decide whether they are stable and well enough to visit the community. If not, the outing is cancelled or postponed,” read a statement from BC Mental Health and Substance Use Services, adding that a critical incident review of Donnelly’s handling was underway by the Public Health Services Authority.
In Donnelly’s case, the board ruled in April that he remained a “significant” threat to public safety. He had stabbed a friend while on previous day release in 2009 after a cocaine binge, then in 2017 he attacked a fellow detainee at the Coquitlam hospital with a butter knife shortly after returning from another day pass, a board decision said.
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But he was nevertheless allowed more unescorted time in the community, including overnight stays of up to 28 nights at his doctors’ discretion.
The board’s reasons for their decision, leaked to local media and put online by CHEK News, describe mistakes in Donnelly’s care.
At one stage last year, he was moved to transitional accommodation on the grounds of the former Riverview Hospital in Coquitlam. But his time there included days in an unstaffed cottage, something that occurred without his doctors’ knowledge and failed to provide the “high-level” supervision Donnelly required.
Donnelly has been charged with three counts of aggravated assault after Sunday’s attack at the Light Up Chinatown! festival, which left three people with severe wounds.
He was in B.C. provincial court on Friday via video from the psychiatric hospital. He appeared wearing a red prison-issued jumpsuit with a blue shirt wrapped around his neck.
A publication ban has been imposed on his case and he’s been remanded in custody until at least his next court appearance Sept. 27.
B.C. Premier David Eby has appointed former Abbotsford police chief Bob Rich to look into how “such a dangerous person” as Donnelly could be allowed into the community unescorted, and whether other such cases exist. Eby said this week he was “white-hot angry” about Donnelly’s release.
But longtime defence lawyer and former prosecutor Juan O’Quinn said the premier, as former executive director of the British Columbia Civil Liberties Association and attorney general, should better understand how the process works.
“He (spent) years lobbying on behalf of people under human rights legislation and so to now act surprised is somewhat surprising,” he said.
O’Quinn, an associate at Murphy Battista in Kelowna, said in his experience review board members were well educated and decisions are “not flippantly made.”
“These are decisions that are made with extensive consideration, with contemplation for the safety of the public, made by educated professionals, and unfortunately this individual was gauged to be safe and (allegedly) proved not to be,” he said.
“This is not something that happens every month or two, but when it does happen in such an extravagant fashion, as terrible as it is, it garners a lot of attention.”
He said the general population doesn’t understand the not-criminally-responsible defence and thinks someone can just say they are mentally ill and quickly be released, when in fact years of work goes into determining whether someone should be allowed back into the community.
“This government is trying to make an issue out of trying to find out how this happened. Well, the premier knows how it happens, he was the attorney general when people were being appointed to those boards,” O’Quinn said.
O’Quinn previously represented Barter. He says there’s “nothing you can say to relieve the pain” felt by Mayrhofer’s family.
But Barter was entitled to representation and “the opportunity to take advantage of the legislation that was there.”
There have been previous efforts to tighten the system.
The mother of Tim McLean — who was killed and cannibalized on a Greyhound bus in 2008 by Vince Li, who was found not criminally responsible — spent years calling for reforms to a system she said provided “minimal assurances that the criminal behaviour will not be repeated.”
In 2014, the Conservative government of Stephen Harper passed the Not Criminally Responsible Reform Act. It created a new “high risk” designation for some offenders, that saw the period between their reviews extended to three years.
But Rebecca Mayrhofer says some offenders need permanent supervision if they are allowed into the community.
“I do have a lot of sympathy with people with mental illness. It’s a very hard thing to struggle with, but when you have this small percentage of violent people, you need to really keep an eye (on them) and make sure that the public is kept safe from them,” said Mayrhofer.
Mayrhofer said she had been writing to different levels of government, advocating for permanent monitoring and psychiatric supervision to ensure such offenders take prescribed medication.
“I think that for people who have violent crimes, there should be a lot stricter guidelines for them as far as letting them go on day passes and letting them go on outings.
“If they do eventually get a discharge like (Barter), they should have to always go to check in with a psychiatrist.” said Mayrhofer.
She described her brother Nathan as a “gentle soul” with a “really big heart.”
Lawyer Szigeti said it was extremely rare to see someone reoffending while on authorized leave from the hospital, and the review board’s experts “tend to be quite conservative in their risk assessment.”
“I’ve been doing this for 30 years, I’ve had maybe 10,000 of these hearings … the system generally works extremely safely.”
She said incidents like the Chinatown stabbings result in a “knee-jerk response” from legislatures, government, and the public.
“And I worry that there’s going to be a disproportional, grossly outsized negative adverse impact on all of my clients’ liberty because there’s always some kind of backlash and it’s an emotional nature response that’s usually quite ill-informed or uninformed,” said Szigeti.
Mayrhofer said there’s a lack of adequate funding and resources at the psychiatric hospital. The Donnelly ruling refers to possibly placing him in an enhanced program, but it couldn’t happen until funding and staffing became available.
Mayrhofer said she doesn’t doubt review board members are well-educated and intelligent, but she said they sit through so many hearings it was impossible for them to get to the root of every offender’s problems.
She and Nathan’s father, John Mayrhofer, aren’t so forgiving.
Mayrhofer, 72, said his son’s death and its manner still pain him, and Barter was a “sociopath.”
“And the review board is a bunch of idiots. They couldn’t see that,” he said.
Barter and people like him needed lifetime monitoring, John Mayrhofer said, and not an unconditional release.
“He didn’t have to go see a psychiatrist. He doesn’t have to take pills. He’s unmonitored. That is what pisses me off the most. They just let them go. Nothing happens.”