IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT: Today I am tasked with sentencing a 62-year-old man named Neale Rex Heath. Under file 90519-3C he has pled guilty to Count 2: committing an assault causing bodily harm of a nurse E.H. This offence is contrary to s. 267(b) of the Criminal Code and it occurred at the Abbotsford Regional Hospital on September 24, 2019.

[2]           The Crown proceeded by indictment and is seeking an 18-month jail sentence to be followed by two years of probation. Mr. Heath has been in custody for over seven months already, which equates to over 10-and-a-half months in custody with enhanced credit. The defence asks me to consider Mr. Heath's state of mind at the time of the offence and to sentence him to a time served jail sentence with probation.

[3]           This is a very challenging sentencing. Mr. Heath has never before been involved with the criminal justice system and he had no reason to assault the nurse. To say he was not himself on September 24, 2019 would be a gross understatement. Based on a December 24, 2019 psychiatric assessment I am satisfied he had some decreased level of consciousness that day.

[4]           Yet what Mr. Heath did was very serious. He struck a nurse in the face with a weight and broke her upper jaw and cheekbone and many of her teeth were damaged. Neither Ms. E.H. nor two of her colleagues have been able to return to work as a result of the trauma inflicted.

[5]           I say at the outset that no one is pursuing the position that Mr. Heath is not criminally responsible by reason of a mental disorder. In the abovementioned psychiatric assessment, the psychiatrist could not comment on Mr. Heath's ability to understand the nature, quality or wrongfulness of his actions at the time of the offence. In a second psychological report, dated March 26, 2020 Mr. Heath says he was hurting "the guy" who was hurting the nurse.

[6]           The defence is really saying that Mr. Heath has pled guilty to this assault, but due to his mental health I ought to reduce his moral blameworthiness and therefore his sentence.

[7]           Mr. Heath suffered a fall in August of 2019, and his wife reports that his behaviour abruptly changed following that event. As will be discussed further, Mr. Heath was hospitalized at Riverview Hospital in 1983 but he maintained a relatively normal life following that period. After the fall in August he was aggressive and confused.

[8]           Mr. Heath was involved in an altercation with his wife on September 18, 2019 and he collapsed to the ground. He was taken to the Fraser Canyon Hospital in Hope. I should say that Mr. Heath still has the full support of his wife notwithstanding that altercation. Mr. Heath was transferred to Abbotsford Regional Hospital in intensive care between September 18 and 22, 2019. He was then transferred to a medical floor on September 22, 2019 but he ended up in a seclusion room with hospital security. Mr. Heath had visitors, including his wife, stepson and grandson.

[9]           The nurse E.H. was caring for Mr. Heath. Prior to the assault he had been polite. On the evening of September 23, 2019 Mr. Heath was restless and speaking of unusual things. He received some sedating drugs. At 2:00 a.m. on September 24, 2019 Mr. Heath was shuffling about and was closing and opening his curtains. When E.H. came to his bed, he struck her with a dumbbell weight. It is unclear how he was able to obtain this weight.

[10]        Ms. E.H. was struck on the left side of her face and fell to the floor. Her head struck the floor. Mr. Heath exited the room with the weight and confronted the security guard. He was later subdued by the security guard and others. Two of E.H.'s co-workers came to assist E.H.

[11]        E.H. sustained significant injuries. Her jaw was broken in more than one place and her left cheekbone was broken. She had many broken teeth. The cut to the back of her head required eight staples. E.H. underwent multiple surgeries and her jaw was wired shut for some six weeks.

[12]        This assault in the Abbotsford Regional Hospital has had a profound effect not only on E.H., but also other nurses who witnessed the assault. Dealing with Ms. E.H. first, there is not a day that goes by where she is not in some sort of pain, both physically and emotionally. Her first jaw surgery was unsuccessful, so it was repeated a week later. Her jaw had to be wired shut to realign the jaw and this caused extreme pain and panic attacks. Ms. E.H. has had to undergo a half-dozen dental reconstructions and she required gum grafting.

[13]        Emotionally speaking, E.H. is angry that she was an innocent victim who did not deserve this unprovoked attack. She suffers from depression and panic attacks. If someone startles her, she is taken right back to the event.

[14]        E.H. tried exposure therapy as a first step to return to work but she experienced pronounced panic attacks. WorkSafe does cover her wages, but there is a cap. This event has affected her entire family and she often requires comforting.

[15]        The two nurses who witnessed the assault have not returned to work. Ms. L.S. has been diagnosed with PTSD and she is still guarded out in public. A.J. has anxiety and cries at almost anything.

[16]        Mr. Heath is 62 years of age, with no criminal record. He had a good childhood in Newfoundland. He worked predominantly in the mining industry. His current wife of nearly 30 years has money and clothing for Mr. Heath whenever he is released. The plan is for him to stay in a hotel in Hope until a no-contact order with his wife can be varied. He is estranged from his biological daughter but has a good relationship with his wife's sons.

[17]        Mr. Heath has said in reports and he has told me that he is very sorry for what happened; he wished he was in control before the assault occurred.

[18]        The psychiatric assessment dated December 24, 2019 was authored by Dr. Kolchak and Dr. Theriault. The report discusses Mr. Heath's involuntary hospitalization at Riverview Hospital for about a month in 1983. Although Mr. Heath was diagnosed with schizophrenia or schizoaffective disorder in 1983, the psychiatrists opined that Mr. Heath's functioning since then is not supportive of this diagnosis. He has been able to maintain employment and significant relationships over the past 25 years without taking any psychotic medication. Mr. Heath's psychotic symptoms in 1983 may have been induced by increased use of marihuana (see page 22).

[19]        The psychiatric assessment goes on to state that Mr. Heath's recent clinical presentation is also not typical for schizophrenia or another primary psychotic illness. Mr. Heath did make many delusional statements during his hospital stay and he even went on a hunger strike. However, the diversity of the delusions had little connection to one another. Usually with a primary psychotic illness the delusional beliefs are more consistent over time.

[20]        The report concludes at page 23 that, "Overall, the information available indicates that he was presented with an acute onset of impaired cognitive functioning after his fall in August and during the period surrounding the offence”.

[21]        The psychiatrists in this December psychiatric assessment go on to opine that at the time of the offence Mr. Heath had a medical condition that "was related to the fall and its sequelae which led to confusion, possible seizure activity and ultimately to his aggressive behaviour”. Three conditions or a combination thereof likely induced his violent behaviours: delirium, seizure activity or levetiracetam side effect (page 24).

[22]        In the final opinion and recommendations in the psychiatric report it is said that during the events of September 24, 2019 Mr. Heath likely presented with a decreased level of consciousness. He is not currently certifiable under the Mental Health Act but requires monitoring to ensure the resolution of residual symptoms.

[23]        The report certainly sets out some delusions experienced by Mr. Heath, especially in October of 2019. According to Mr. Heath, he was taking part in the Olympics and his uncle was the dean in Newfoundland. He was tangential and jumping from topic to topic. With regard to the offence, he then said he was trying to be a superhero and jump to help the nurse. The possibility of malingering was raised, but that is discounted at page 25.

[24]        The second report was prepared by psychologist Dr. Pritchard on March 26, 2020. Again, reference is made to Mr. Heath being a different person after his fall in August of 2019.

[25]        The risk assessment for Mr. Heath is a complex one. I will simply read the last paragraph at page 14 of 15:

[26]        The second report concludes that Mr. Heath requires supervision when released from custody, and a psychiatrist should monitor his presentation. Secondly, Mr. Heath may benefit from a full neuropsychological assessment.

[27]        This case involves an unprovoked attack on an innocent victim, a nurse caring for the offender. At the same time, I must take into account that Mr. Heath had a medical condition related to his fall which led to confusion and this aggressive behaviour. As always, I bear in mind the general sentencing principles under s. 718 and following in the Criminal Code. These principles include denunciation, general and specific deterrence, separation of the offender from society where necessary and rehabilitation of the offender.

[28]        Our Court of Appeal in the case of R. v. Grahame, 1991 CanLII 2198 (BC CA) has made it clear matters of general deterrence and protection of the public have assumed greater prominence in recent years in view of the substantial increase in the number of crimes of violence committed in our community. Of course, this case was penned in 1991, some 29 years ago, and it does not address the mental health issues in this case.

[29]        In Grahame the Court of Appeal upheld a 15-month sentence where a drunken 19-year-old viciously assaulted a victim, injuring him and breaking his jaw. The attack was unprovoked and the victim had his jaw wired shut for a number of weeks. The Grahame case can be distinguished from the case at bar in many respects. Mr. Grahame had a criminal record, he was drunk and not mentally ill, and he was rather unremorseful. Mr. Heath has no record, he was remorseful and he had some diminished consciousness. His victim, however, may have been more vulnerable. More importantly, Mr. Heath underwent a risk assessment where he was found to be a moderate risk to be violent.

[30]        The more recent case of R. v. Eng, 2019 BCSC 611 also provides some guidance on sentencing for assaults causing bodily harm. The general range for assault causing bodily harm falls between a suspended sentence and jail of two to three years.

[31]        More importantly, Eng discusses the various principles governing the sentencing process. No single sentencing objective outweighs the others, but the most fundamental of these principles is proportionality. Proportionality requires that a sentence be proportionate both to the gravity of the offence and to the circumstances of the offender.

[32]        In Eng the Supreme Court justice overturned a sentence of what was said to be six months less one day of new jail time, given that the offender had already served five-and-a-half months using enhanced credit. The offender, Ms. Eng, was a permanent resident and there were immigration issues as a result of the sentence. However, the main thrust of the case was that a fit sentence was found to be the time served of five-and-a-half months with enhanced credit plus probation. Ms. Eng had attacked a four-year-old boy with a kitchen knife and the boy had cuts to the front, back and side of his head. He was in the hospital for seven days. Ms. Eng also attacked the boy's grandmother.

[33]        The appellate court said the sentencing judge erred in assessing Ms. Eng's moral blameworthiness by going off her medication. Ms. Eng had been mentally unwell for 15 to 20 years and she had been diagnosed with psychosis, bipolar disorder and schizoaffective disorder. Of significance, the court cites the following passages from R. v. Badhesa, 2019 BCCA 70 at paragraph 42:

[34]        The Eng case sets out some important principles, but there are some distinguishing factors from the case at bar. First, Mr. Heath is not facing an immigration problem as a result of a jail sentence. Secondly and more importantly, Mr. Heath does not have as definitive a mental health diagnosis as did Ms. Eng. Mr. Heath’s diagnosis here is guarded, but he clearly had some difficulties with his mental health during the time of the offence. Thirdly, Ms. Eng was adhering to a new treatment regime and had developed better insight. In Mr. Heath's case, while his condition has improved, he still is at least a moderate risk of committing violence in the future. Finally, the nurse here suffered perhaps even greater injuries than those of the young child in Eng.

[35]        This is a challenging and complex case. Mr. Heath has caused great harm to his nurse and she still is unable to return to work. No words I utter can undo the harm caused to her on September 24, 2019. However, Mr. Heath's decreased level of consciousness at the time does reduce his moral blameworthiness to some degree.

[36]        I fully accept that he is remorseful, and he has no criminal past. However, I must juxtapose his reduced moral blameworthiness with his risk to the public. I am not so much focused on any form of deterrence here as I am on the need to separate Mr. Heath from the community until he can be safely reintegrated.

[37]        I am concerned that the second psychological report indicates at page 14 that Mr. Heath may have future problems with professional services because he did not have clear plans. I recognize that his immediate plan is to live in a hotel in Hope, but so much more needs to happen. He needs to address the no-contact order with his wife. The report suggests his head injury could be a barrier to employment. I do know that he is being carefully monitored while in custody.

[38]        Most significantly, Mr. Heath remains a moderate risk to become violent. The severity of harm could be high. I measure that against the fact that he has undergone a number of assessments and he will be subject to a Rogers order on release.

[39]        Weighing all the above factors, I consider a sentence of 14 months less 11 months time served on an enhanced basis to be a fit sentence. I recognize that we are in difficult times of COVID-19, and prison populations are particularly susceptible. However, I am not aware of any health concerns that would make Mr. Heath especially vulnerable to the virus. He has a leg brace and takes medications for seizures, blood pressure and his mental health. In a different type of case I may have cut the sentence short given the COVID-19 concerns, however as indicated in the Badhesa case, my concern here has to be Mr. Heath's treatment and the protection of the public.

[40]        Mr. Heath, this is your sentence. The term of imprisonment I would have imposed before granting any credit is 14 months. The actual time you have spent in custody is 219 days. I am granting you credit of 1.5 days for every one day served. The total enhanced credit I am granting is 329 days, or 11 months. Therefore, the sentence imposed is further jail time of three months.

[41]        Following the jail sentence, I am ordering probation for two years on the following terms:

[42]        You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. You must notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the officer of any change of employment or occupation.

[43]        You must report by telephone to a probation officer at Abbotsford Community Corrections at the phone number 604-851-7100 within two business days after you are released from custody, unless you have obtained before your release from custody written permission from the probation officer to report elsewhere or within a different timeframe. After that, you must report as directed by the probation officer.

[44]        When first reporting to your probation officer you must provide them with the address where you live and your phone number. You must not change your address or phone number without notifying your officer in writing at least two days in advance of any change.

[45]        You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer.

[46]        Having consented in court, you must attend, participate in and complete any intake assessment program, treatment or a fulltime live-in treatment program as directed by your probation officer. This may include programming or treatment for (b) psychiatric and psychological health.

[47]        Having consented in court, you must do the following:

[48]        You must not possess directly or indirectly any weapon as defined by the Criminal Code including a) firearms and ammunition; b) cross-bows, prohibited or restricted weapons or devices or explosive substances; c) anything used, designed to be used or intended to be used in causing death or injury to any person or to threaten or intimidate any person; d) any imitation of all of the above, including any compressed air guns or BB pellet guns; or e) any related authorizations, licences and registration certificates, and you must not apply for any of these.

[49]        With respect to the no-contacts: you must have no contact or communication directly or indirectly with E.H., A.J. and L.S. I want to emphasize here that I am using their names fully in this order but there is a ban on publication on the three nurses' names under s. 486.7(1).

[50]        You must not go to or be within 100 metres of any place where E.H., A.J., L.S. lives, works, attends school, worships or happens to be. If you see them, you must leave their presence immediately without any words or gestures.

[51]        The next term is rather unique, but I am making it in this case: You shall not attend at Abbotsford Regional Hospital. By way of explanation, I understand you will not be living in that area in any event and you would be able to access emergency services in the Fraser Canyon area.

[52]        You must have no contact or communication directly or indirectly with Jennifer Goodkey and Rohit Behl.

[53]        That is the probation order. There are some ancillary orders that have to be made, sir. Count 2 is a primary designated offence, so I am going to simply say this: Pursuant to s. 487.051(1) of the Criminal Code I authorize the taking of bodily samples from you. That is a DNA order.

[54]        With respect to firearms, this is a s. 109 order I am making: Pursuant to s. 109 of the Criminal Code you are prohibited from possessing a) any firearm other than a prohibited weapon or restricted weapon and any cross-bow, restricted weapon, ammunition or explosive substance for a period of 10 years from your release from prison; and b) any prohibited firearm or restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

[55]        As well, I am being asked to make a surrender firearm order: Pursuant to s. 114 of the Criminal Code immediately upon your release, you must go to the Abbotsford Police station and present a copy of this order for the purpose of accompanying a police officer to the place of all firearms, cross-bows, restricted or prohibited weapons, prohibited devices, ammunition or explosive substances possessed by you or through another person, and to the location of any related authorizations, licences or registration certificates and surrender all such items to the police officer.

[56]        That is a rather long-winded probation order, sir. Because of these COVID times I am giving you the warning that if you fail to comply with the conditions of your sentence, you could be charged with a breach of that disposition and a warrant could be issued for your arrest to be brought back to court to deal with these new charges. If you need to change a term of this disposition you have the right to apply to a judge.

[57]        That is my sentence. I realize I did not deal with the victim fine surcharge, but I am assuming, Mr. Schultz, you want that waived if it applies.

[58]        MR. SCHULTZ: I would ask for that to be waived, yes, Your Honour.

[59]        THE COURT: Yes, given his stay in custody and everything else that has occurred financially for him, there will be no victim fine surcharges if they are applicable.