A Sudbury man who repeatedly punched a psychiatric unit nurse at Health Sciences North almost three years ago will not be spending time in jail.
The reality is the vast majority of people put in jail are going to be released, Ontario Court Justice John Keast ruled in the case of Jonathan Smith, 49, who had pleaded guilty to assault (originally sexual assault) and assault causing bodily harm back in October 2019.
This is one of those rare cases where a real custody sentence would put Mr. Smith at high risk, at a high risk of harm if put in a jail population, he said. He is already in the community under the Mental Health Act and has been for a few years under a very strict community treatment order supervised by a psychiatrist and several other service providers in our community.
A community treatment order is highly intrusive, the judge said. It is far more intrusive than a conditional sentence order. It’s far more intrusive than a probation order. They watch these people very carefully. This gentleman has severe psychiatric conditions. It is testimony to all of these people in the community he is in the condition he is in today.
The Crown had suggested a 15-month house arrest sentence, a DNA order and two-year weapons ban. That was largely due to Smith staying out of trouble while on bail and was continuing to be under the close, continuing scrutiny of the community treatment order.
Smith’s lawyer, Alex Toffoli, said sending his client to jail would undo all the progress he was making in getting his schizoaffective disorder (symptoms of both schizophrenia and mood disorder) under control. His community treatment orders made sure he received his prescribed medication and a monthly injection.
Smith was to have been sentenced earlier, but it was derailed due to the coronavirus pandemic.
Keast said while public sentiment would strongly favour a jail sentence, he had to consider other things.
If I was to put him in real jail, he will never get the type of treatment he’s getting right now, said Keast. The (Sudbury) jail is not set up to deal with a highly intensive community treatment program. Any kind of jail term would disrupt the community treatment plan he has been under for a long time …
If then released in the community, he would be a serious menace, a danger to the community.
The court had heard that about 8:10 a.m. Nov. 16, 2016, a woman parked her car on Elgin Street. Smith, who had just left an apartment on Shaughnessy Street, approached the woman, grabbing her with his arm. Nothing was said and Smith went back into the apartment.
The woman contacted Greater Sudbury Police and identified Smith as the man through a photo lineup. Police located Smith at Health Sciences North.
Then on Jan. 29, 2018, Smith was a patient on the sixth floor at the hospital when a female nurse walked into his room about 6:55 a.m. and turned on the light. Smith was not in bed, but standing on the far side of the room. He came toward the nurse and began punching her, causing her to fall.
The nurse could not get up and began yelling for help. Smith continued punching her, getting in 10 to 15 punches primarily to the right side of her head before the assault ended when another patient warned Smith to stop and other staff intervened.
The court heard the nurse suffered a concussion and was off work for some time. She could not go back to her old job on the psychiatric unit due to fear and anxiety, and found work elsewhere in the hospital.
In her victim impact statement, the nurse said her life has been turned upside down since the attack.
I screamed for my life as I felt he was going to kill me, she said, her voice breaking. I thought I was going to die as the punches continued for what seemed forever … It was undoubtedly the scariest incident I ever experienced in my life.
The nurse said crawled to the hallway as another patient intervened. She then ran to the nursing station, screaming and crying hysterically while holding her battered head.
The nurse said following the attack, she accessed psychiatric help for four months. She took medication for anxiety and to help her sleep that produced muscle tension. She needed massage therapy to help ease the tension, had physiotherapy, and suffered post-traumatic stress disorder.
She eventually returned to work, but just driving to the hospital would make her anxious and nervous, and had to stop working again for a time.
I never imagined I would be injured at my place of work and it would affect me for the rest of my life, she told the court through tears. Every day, I am reminded how Jonathan hurt me on that day and it can never be undone. I hope Jonathan Smith never has the opportunity to hurt anyone else again.
Keast praised the nurse for reading her statement in person to the court.
I want to thank you for the courage of doing what you did, he told her. I think it’s important you have done what you did here today … We all owe a deep debt of gratitude to the nurses in our hospital and especially the nurses in our psychiatric unit who are very vulnerable and at very high risk.
In her sentencing submission, assistant Crown attorney Kaely Whillans said while Smith’s criminal record including violence, there was a large gap in the past decade.
Whillans said the assault on the woman downtown was unprovoked and involved concerning behaviour.
The assault on the nurse and the impact of that level of violence is obvious … She had bruises head to toe. She had to leave a job she had for seven years. She could not return to a place where she fought for her life and might die. As a community, as a society, we lost her contribution to the (psychiatric) field.
In his sentencing submission, Toffoli said Smith has been diligent in reporting to the Elizabeth Fry Society bail supervision program, working with mental health officials, getting regular assessments, and has stayed out of trouble since the attack.
I’m very, very impressed that an individual with his antecedents for 31 months has attended at Elizabeth Fry and not breached his bail, said the lawyer. It appears we have an individual who is being appropriately medicated … Community treatment orders are very beneficial to society as a program that can bridge gaps between the criminal justice system and mental health …
Jail would be absolutely the wrong conclusory sentence for an individual with his problems.
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