Lawyer says designation given to Trevor Farley has rarely been used since it was introduced in 2014
An extremely rare and exceptionally restrictive designation handed down this week to a Winnipeg man who killed his parents and brutally stabbed his former supervisor should be used with caution — but lawyers say they expect to see it used more often as the option to label an accused high-risk gains attention.
Trevor Farley was on Tuesday found not criminally responsible due to mental disorder in the 2021 stabbing deaths of his 73-year-old parents, Judy Swain and Stuart Farley, and an attack on Candyce Szkwarek, his former nursing supervisor at Seven Oaks General Hospital.
That decision was made after a team of experts who evaluated the now 39-year-old found he believed he was a prophet sent by God to "cut the contamination" out of his victims to save them.
But Farley and his counsel also agreed to having him labelled as what's known as a high-risk accused in exchange for the Crown agreeing to find him not criminally responsible — something one Toronto lawyer says in practice has become "effectively a life sentence" because of how the law is interpreted.
People who are found not criminally responsible are already subject to a potentially indeterminate sentence, where a provincial review board has oversight over when and how they are eventually given more freedoms or discharged.
But with the relatively new high-risk designation on top of that, any discharges from supervised medical facilities can only happen with the approval of a superior court judge.
It's believed Farley's case is the first time the designation has been used in Manitoba.
His lawyer, Evan Roitenberg, told reporters this week that the order applied to his client is not permanent and will be in place "until such time as there is updates down the road as to progress and treatment."
But Anita Szigeti, president of the Law and Mental Disorder Association — an advocacy organization of lawyers practising mental health law — said it's not always that simple.
Szigeti said the designation has only been used at most 10 to 15 times across Canada since it was introduced in 2014 under Stephen Harper's government — and one recent case shows how far-reaching its implications can be for those rare cases.
"Right now, there's really no way out," said Szigeti, speaking from the experience of one of her own clients.
Tyler Cousineau, who has schizophrenia, was found not criminally responsible in 2018 — and labelled a high-risk accused — for killing his two elderly neighbours a year earlier. He had previously been found not criminally responsible for two unrelated offences in 2011, Szigeti said.
In 2020, Cousineau asked for an assessment to determine whether he still qualified as high-risk, given that he appeared stable under treatment and his psychotic symptoms had resolved — but his request for that assessment was denied, Szigeti said.
His appeal of that decision and his request to have the case heard by the Supreme Court of Canada were also denied, leaving Cousineau with no further recourse.
Szigeti, who argued the appeal in the case, said it's an example of the catch-22 in place for people looking to get rid of their high-risk designation.
They have to convince a review board — which would then make a recommendation to a court — they wouldn't be a danger to others if they were allowed out unsupervised. But they can't demonstrate that without being granted small bits of freedom outside of the facility.
"Practically speaking, what this means is they'll never ever get out," she said. "It's actually way more dire and way more hopeless than it appears on the face of the Criminal Code."
'Unwarranted distrust' in usual system
For someone to be deemed a high-risk accused, a court has to consider factors that range from whether it's likely they'll endanger others to how likely they are to be rehabilitated — questions that largely circle around whether an accused poses a significant threat to public safety, said Stephanie DiGiuseppe, a Toronto defence lawyer and partner at Henein Hutchison Robitaille.
But the process also "communicates an unwarranted distrust" in the provincial review boards that typically oversee not criminally responsible cases, since that responsibility is essentially reassigned to the courts in cases where an accused is deemed high risk, she said.
"It really bypasses what is a process done with a high level of medical expertise and allows courts to take all of that ability for any lesser form of liberty restriction away," said DiGiuseppe, who is a director at the Criminal Lawyers' Association.
That can mean even someone who's made significant progress in treating their mental illness has less of a chance of winning back any freedom because they've been deemed high-risk — especially since that designation can allow a board to review the person's case only every three years, instead of annually.
"We're not always talking about the difference between being in a hospital and just living freely in the community. Sometimes we're talking about little differences in liberty, like the ability to go for a walk around the neighborhood," she said.
"When they keep somebody in who could otherwise be out, you're destroying a life, right? And maybe not just that one life but also family members, children of that person."
Not about distrust, but responsibility: lawyer
But Kevin Westell, a Vancouver criminal lawyer who has worked extensively on not criminally responsible cases for both Crown and defence, said the high-risk designation isn't about distrust of the regular process.
"It's about the criminal justice system, and the judge presiding over a case, taking responsibility … that it was the opinion of that court that this person poses a greater risk than your average person," said Westell, a principal at Pender Litigation.
That gives a judge the option of "removing the discretion," said Westell.
"This allows the judge to say … 'This guy's [not criminally responsible], that's fine. But the institution doesn't get, or the doctors don't get, to decide whether he gets a day pass,'" he said.
Still, Westell said it's important the designation is used "thoughtfully and not too frequently," so it doesn't lose its value in the cases that truly warrant it.
Farley's lawyer said this week his client's case was unique and that he doesn't think it "opens the floodgates" to having more high-risk designations granted, but others aren't so sure.
Like Szigeti and DiGiuseppe, Westell said he wonders if "the tide is turning," given the heightened attention on cases like Farley's — and if there may now be an increase in Crown prosecutors seeking the designation.
More applications could also increase the chance for a constitutional challenge to the law, according to DiGiuseppe — a concern she said hasn't yet been addressed since it came into effect.
ABOUT THE AUTHOR
Caitlyn Gowriluk has been writing for CBC Manitoba since 2019. Her work has also appeared in the Winnipeg Free Press, and in 2021 she was part of an award-winning team recognized by the Radio Television Digital News Association for its breaking news coverage of COVID-19 vaccines. Get in touch with her at firstname.lastname@example.org.
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