R. v. N.J.H., 2023 BCPC 275

Citation: R. v. N.J.H. 2023 BCPC 275 Date: 20231019 File No: 186001-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. N.J.H. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: M. Feldthusen Counsel for the Accused: T. Morino Place of Hearing: Victoria , B.C.

Date of Hearing: October 19, 2023 Date of Sentence: October 19, 2023 [ 1 ] THE COURT: So, Mr. N.J.H., you are before the court today having pled guilty to each of the three counts in Information 186001. Two of those charges relate to threats that you made to social workers with the Ministry of Children and Families as they attempted to carry out their statutory responsibilities regarding your child, R.F. The third relates to your using a sledgehammer to smash through the locked doors at the Ministry's office during regular business hours, frightening the office workers and the clients inside. [ 2 ] You admit, Mr.

N.J.H., that on May 3, 2023, you left a voicemail with A.G., then a social worker with the Ministry of Children and Families, threatening to cause him harm. The language was incendiary and Mr. A.G., who was fearful, reported it to police. You were angry with Mr. A.G. who was the social worker investigating alleged allegations regarding harm that you were alleged to have caused to R.F. You vehemently denied those allegations, but Mr. A.G. was nonetheless statutorily required to investigate them. [ 3 ] On May 3rd of 2023, Ms.

N., R.F.'s mother, refused to let you take R.F. for your parenting time and you were without question upset and distraught. You reiterated some of that in your comments before the court here today. No one disputes that you called police, though there is a question on sentencing whether you asked police to take you to the hospital. Nonetheless, I accept that you were highly upset and agitated. [ 4 ] That state would have been exacerbated when the Ministry informed you by text that they would be seeking an order that day that you be granted only supervised access to R.F.

As you noted in your comments to the court today, that was extremely upsetting for you. Your reaction was, firstly, to send threatening texts and to leave threatening voicemails to MCFD staff and then ultimately, at around 11:30 a.m. that day, you smashed your way into the MCFD offices in Esquimalt using a sledgehammer. You broke through two locked glass entry doorways and proceeded to smash at the Plexiglas separating the secure side of the office from the public side as well as the glass of a metal door leading to the secure side of the office.

Even as police approached you with guns, you continued to smash at the glass until finally walking away from the office and ultimately being apprehended by police. [ 5 ] These facts form the basis of the charges before me today on the sentencing. You were released that day, Mr. N.J.H., only to be re-arrested shortly after your release on allegations of threats against Ms. N., the mother of R.F. You have been in custody since then and you appear here today on sentencing with credit for time served totalling approximately 8.5 months. [ 6 ] At issue in the sentencing is the length of sentence. Mr.

Morino, on your behalf, seeks a time-served sentence and it is apparent from your conduct here earlier today that that was at least one outcome that you expected. Barring that, Mr. Morino submits the sentence should be significantly lower than the sentence sought by the Crown which is in the range of 18 to 24 months less a day. The Crown seeks a three-year probation order with various conditions and you take little issue with that but for the counselling as opposed to the Forensics condition.

Other orders sought by the Crown that are not opposed include a discretionary DNA order on Count 1 of the Information as well as a s. 110 discretionary firearms order also on Count 1 of the Information. I accept that in this case such orders are appropriate and I am going to make those orders at the conclusion of these reasons. [ 7 ] In terms of length of sentence, the Crown spent some time in the sentence hearing outlining the history of your involvement with MCFD as an adult, as a child, and then as well as a parent.

I am going to discuss your history with other child protection officials later in these reasons, but for now, the relevant history leading to what culminated in, really, what was a shocking and violent incident at the MCFD office in Esquimalt on May 4, 2023, relates to the parenting arrangements of your son with his mother, Ms. N. [ 8 ] As the Crown explained, you and Ms. N. have a shared custody agreement under the Family Law Act . You parented R.F. pursuant to this agreement for some time. In March of this year, Mr. A.G. is said to have opened an MCFD file on R.F. and attempted to work with you.

You were not then a stranger to MCFD. Their files, Crown submits, indicate that you had a history with the Director's office going back to 2007. That was involving an older child. You are not perceived by that office, at least, as being in any way cooperative. [ 9 ] I do not doubt, given all of the information you provided to the presentence report writer as well as to Dr. Sirkia, the author of the psychological report prepared for this sentencing, that MCFD is quite correct and I do not think you would dispute that. You unquestionably resent any intrusion by the Ministry into your parenting.

You hold a lifetime of distrust and anger with public offices like the Director of Children and Families and your admitted conduct at the office and towards social workers only confirms this in addition to your comments before the court, and I acknowledge you are being very frank. [ 10 ] The file opened at MCFD on March 17, 2023, remained open even as the Director received an allegation in April that you had assaulted R.F. It is an allegation. While police and the Director investigated that allegation, Mr. A.G. approached you in early March to discuss a safety plan. Now, again, Mr.

A.G. was statutorily required to carry out work on the file and a safety plan is one means of protecting a child while keeping the Ministry's intrusion into the parent-child relationship to a minimum. It is far from a removal order and certainly short of a supervision order which the Ministry ultimately felt was necessary to try to obtain as they advised you on May 4. So they had started with the safety plan. [ 11 ] Mr.

N.J.H., even acknowledging your life experience and your unresolved trauma arguably contributing to your inability to control your anger or impulses, you have to accept significant, if not complete, responsibility for your failure to deal with social workers rationally on this file. There is nothing, in my view, in your personal history that can justify you threatening social workers as you have admitted to doing, let alone smashing into the office, and I do not think you disagree with me. [ 12 ] Crown described your smashing into the office that day. Mr.

Feldthusen described MCFD staff and MCFD clients hiding in a locked room, fearing for their safety. Among them was a child. You say you did not know who, if anyone, was inside the office that day and that you did not intend to cause any harm or cause anyone to fear, but I do not accept either of these statements. I will say this, you

had to have known people would be there in that office. You had to. And you have to be held accountable at the end of the day for the fear that you caused them and for the harm that they have suffered. [ 13 ] I accept that, here today, having had time to reflect on that event, you regret having done it and I accept that you regret the impact of your actions on these people, but nonetheless it occurred and we have to deal with it. [ 14 ] You are here before the court today, Mr. N.J.H., aged 47, with a significant and related criminal record.

It is one that started in your youth and it has continued with some gaps up to your last conviction in 2021 for an offence in 2020. The relevant gap is the gap between the offending in August 2020 and the offences of May 2023. They do seem to fall within the time you would have become a father to R.F. and the date of the offences before me today.

So I think that was in that period of time. [ 15 ] From the reports provided here today as well as the submissions, there is no doubt that what is at the centre of these offences is your relationship with R.F. and the intrusion of MCFD into that relationship - certainly an intrusion is how you see it.

It appears to have triggered an underlying childhood trauma or traumas leading to the display of, as I say, incredible violence against people who had nothing to do with what happened to you as a child, and who were simply doing their job or attending at the MCFD office as a client. [ 16 ] As you report to each of the presentence and psychological report writers, your childhood was marred from the beginning. You report your mother was a member of the [omitted for publication] First Nation in Prince Edward Island who brought you to Vancouver as a child to get away from her own community.

You report you were taken into the care of now MCFD at age two, that you were placed in foster care and abused and neglected. You report your mother was murdered when you were under age four, though you learned this later. Her killer, you report, was never properly brought to justice. [ 17 ] You report being adopted as a young child by a family in Victoria. You report abuse by your foster father, abuse at school, and that you subsequently left the family at age 11.

You report becoming involved in criminal activity as a youth with others in your group home and, as your record indicates, there is a continual pattern of offending from your youth well into your adulthood. In more recent years, you have obtained employment, you have gaps in your criminal record, you have settled into housing, and you have become a father to R.F. [ 18 ] Obviously, the report to each of these writers does not contain a lot of the detail that we know must otherwise exist. Additionally, Crown asks the court to consider your self-reporting with a degree of scepticism. Mr.

Morino submits I can accept the veracity of what it is that you have reported given the number of admissions against self-interest, if I can put it that way. [ 19 ] I accept, from all of the information provided, Mr. N.J.H., that you continue to suffer the unresolved effects of an abusive childhood in which you suffered the loss of your natural parents, abuse and neglect and physical harm.

I accept that there are a number of Gladue factors present in this sentencing including, as I have just noted: the loss of familial connections, the loss of connection to your mother's community; that she and you are intergenerational survivors of the residential school system; that, as a result of these facts, you left school early; you almost certainly suffer from alcohol abuse disorder; there are unresolved mental health issues; and you clearly cannot control your anger or impulses and these facts have brought you into the criminal justice system time and again. [ 20 ] I accept, Mr.

N.J.H., that because of your life experience you harbour a distrust of public authorities including social workers. I accept you fear R.F. might have similar experiences and that fear underscores your approach to MCFD in this case, but the difficulty, Mr. N.J.H., is that social workers have to be able to do their job, to perform their statutory duties free from retribution or attack. They work in an environment that is fraught with emotion.

They are particularly vulnerable, yet they are also tasked with ensuring the safety of the most vulnerable among us, that is, children who may well have suffered abuse or neglect. [ 21 ] You say MCFD is manufacturing a case against you, that it will not listen or pay heed to evidence you present refuting any allegations made against you. I am in no position to assess what MCFD saw or did not see. I can say that there is a system in place to enable you to deal civilly with MCFD and that your fear, accepting it as well founded given your own experience, cannot serve to minimize your conduct.

It can place it into context, but it cannot minimize it. [ 22 ] Length of sentence is informed by mitigating and aggravating factors. You have heard those discussed here today. The mitigating factors include the early guilty plea. It appears, Mr. N.J.H., that you never intended to do anything other than plead guilty to these offences in part, I believe, because you feel somewhat justified in having committed them. I accept as a mitigating factor that you now regret having committed them.

I accept, as I have noted, that your behaviour is driven by your fear and that is based on your life experience and that you struggle because of this, and a brain injury, to control your anger and your impulses. [ 23 ] Nevertheless, there was some planning involved in the assault on the offence. You had some time to consider this action, yet you decided to proceed. You are now well familiar with the effect these offences had on the victims, two of whom, and that includes Mr. A.G., have not since returned to work.

Moreover, as I alluded to, what is also at risk here is the ability of social workers to do the work necessary to protect children. Incidents like this can have a chilling effect on the workplace. If Ministry workers are unable to do their jobs, children will suffer. [ 24 ] Your related and lengthy criminal record is also an aggravating factor on sentence as well as the severity of the conduct at issue. Though mischief is charged, this is, as the Crown submits, a significant intrusion into a working government office.

There is no disagreement in this sentencing that the primary sentencing objectives have to be deterrence and denunciation. [ 25 ] As the reports and your own comments before the court indicate, you continue to struggle with anger management and impulse control. The trauma from your childhood remains unresolved. Your emotions run close to the surface. It is not hard to imagine that something could easily trigger you again once you are released. As Dr.

Sirkia writes, you are at risk of reoffending because of these unresolved issues and the unresolved family law issues. [ 26 ] In addition to a counselling order at the end of your sentence, you cannot leave here today, Mr. N.J.H., with any sort of impression that these offences will be treated lightly. This attack on the building, in my view, is unusual. I do not think there is a case to be made here for general deterrence on that score, but abuse of social workers simply doing their job is sadly not unusual. Persons have

to know, as well, that courts take that offending conduct seriously. Finally, these offences are deserving of denunciation in the strongest possible terms. This behaviour is all out of proportion to your family law concerns. It puts Ministry workers and their clients at risk and it has to be discouraged as far as possible through sentencing. [ 27 ] Ultimately, a sentence must be proportionate. That is to say, it has to be proportionate to the gravity of the offence and the degree of the responsibility of the offender. The offences here are serious, as I have discussed.

You bear considerable responsibility for these offences, Mr. N.J.H., but your moral culpability is attenuated to a degree by the Gladue factors and other of your life experiences that, in combination, limit, as I say, your ability to control your anger and impulses and I accept that. [ 28 ] You seek a sentence of time served and, as I indicated, in my view, that does not meet the objectives of sentencing that must be met here. It is not proportionate to the offence or your degree of responsibility. It would not serve to deter you as you negotiate your way through the MCFD process upon release.

Of that, I am convinced. Nevertheless, Mr. N.J.H., you will be released and you will, I expect, come to enjoy your parenting time with R.F. again. In my view, you need counselling and that is an important part of this sentence. You will be required by this sentence to undertake counselling, certainly, as directed by Forensics. [ 29 ] As for your custodial sentence, I agree with the Crown that the conduct involved in these offences are at the high range of this kind of offending. Still, your culpability is reduced, as I said.

Bearing this in mind, as well as the mitigating factors in this sentence, I find an appropriate sentence in this case is a sentence of 12 months in custody to be followed by a period of probation for three years. Your credit for time served totals 254 days. When this is credited against a sentence of 12 months, which I will express as 365 days, it leaves you with 111 days to serve on this sentence. All right. So that is the sentence, 12 months less time served. [ 30 ] I am going to make a couple of other orders and I am going to speak to the probation order, as well.

I have told you that it is going to be a three-year probation order. So it is as long as we can go. I am going to set out the conditions of the probation order on the record. That order is going to be read out to you again before you are released from custody and you will sign it then. Okay? So I will set out the compulsory conditions. [ 31 ] You must keep the peace and be of good behaviour. Attend at court if required to do so by the court.

You also have to notify the court or probation officer in advance of any change of name or address, and promptly notify the court or the probation officer in advance of any change of employment or occupation. [ 32 ] You must have no contact or communication directly or indirectly with A.G. or T.W. [ 33 ] You must have no contact or communication directly or indirectly with any other employee of the Ministry of Children and Family with the following two exceptions: (

a) through email or text message; or (

b) through your legal counsel. [ 34 ] You must not go to or be within 100 metres of any place where A.G. or T.W. live, work, attend school, worship, or happen to be and, if you see them in any of those places, you will leave their presence immediately without any words or gestures. [ 35 ] You must not go to any office of the Ministry of Children and Family Development in British Columbia or be within 25 metres of the office located at [omitted for publication] in Victoria, British Columbia, with the following two exceptions: (1) if you have obtained in advance written permission from a representative of the Ministry of Children and Family Development and, if you have, you will have to carry a copy of that written permission with you at all times when you are in the vicinity of an office of the Ministry of Children and Family Development. [ 36 ] There will be a reporting requirement because of the counselling, and that is going to provide that you are going to report in person to the probation officer at 836 Courtney Street, here in Victoria, British Columbia, within two business days of your release from custody and thereafter as directed, unless you have obtained before your release permission -- written permission from your supervisor to report elsewhere or within a different timeframe and, after that, you are going to report as directed. [ 37 ] When you report to the probation officer, you are going to tell that person where it is you are living or sleeping and your phone number if you have one, and you cannot change either of those without notifying your probation officer before making the change. [ 38 ] Having consented in court, you must attend for a psychiatric intake, assessment, or treatment program through the Forensic Psychiatric Services as directed by your probation officer.

That will be required of you and, if you miss it, you will be back in custody. [ 39 ] There is an order, as well, that you must not possess directly or indirectly any weapon as defined by s. 2 of the Criminal Code , and that includes: firearms and ammunition; crossbow, prohibited or restricted weapons or devices, or explosive substances; anything used, designed to be used, or intended for use in causing death or injury to any person, or to threaten or intimidate any person; any imitation firearms or weapons, including any compressed airguns, BB guns, or pellet guns; or any related authorizations, licences, and registration certificates and you must not apply for any of those. [ 40 ] In addition, pursuant to 110 of the Criminal Code , you are prohibited from possessing any firearm, crossbow, restricted or prohibited weapon, prohibited device, or ammunition or explosive substance for five years from the date of your release from custody. [ 41 ] I am going to make a DNA order, as well. [ 42 ] That is a secondary DNA order, Madam Clerk.

It applies to Count 1. [ 43 ] After considering the factors set out in s. 487. 051(3) of the Criminal Code , I am satisfied it is in the best interests of the administration of justice to authorize the taking of samples of bodily substance from you. You are in custody so those samples will be taken from you while you are in custody, and you must submit to the taking of those samples. That sample of your blood, from that will be extracted a sample of your DNA. That will be placed on the national DNA databank.

I am not sure if that has been done before or not. [ 44 ] There is a $100 victim impact surcharge which I will waive because I know that that would work an undue hardship in all of the

circumstances. [ 45 ] Anything else? [ 46 ] THE CLERK: No, Your Honour. [ 47 ] CNSL T. MORINO: I may have misheard -- [ 48 ] THE COURT: Yes, you may not have. [ 49 ] CNSL T. MORINO: -- when Your Honour directed that he not go to Ministry office, you said there were two exceptions? [ 50 ] THE COURT: Oh, there is not. There is just one exception -- [ 51 ] CNSL T. MORINO: Okay, all right, good. [ 52 ] THE COURT: -- and the second one was that he needed to carry the written permission. [ 53 ] CNSL T. MORINO: All right. I see. [ 54 ] THE COURT: Yes. [ 55 ] CNSL T.

MORINO: Thank you. [ 56 ] THE COURT: Yes. [ 57 ] CNSL T. MORINO: Thank you. [ 58 ] THE COURT: I got ahead of myself there. [ 59 ] CNSL T. MORINO: Yeah. [ 60 ] THE COURT: Yes. Anything else? [ 61 ] CNSL M. FELDTHUSEN: Nothing from the Crown. [ 62 ] THE COURT: Oh, okay. Okay. All right. Well, then, good luck, Mr.

N.J.H., okay? [ 63 ] THE CLERK: And the clerk had a question. [ 64 ] THE COURT: Yes. [ 65 ] THE CLERK: So we apply the -- the sentence to the three counts? [ 66 ] THE COURT: Twelve months each concurrent with one another. [ 67 ] THE CLERK: Yes. [ 68 ] THE COURT: 356 days on each concurrent with one another. You could apply the 111 against them all, however it works -- or, sorry, the 254, leaving 111. Yes. Okay. [ 69 ] THE CLERK: Thank you. [ 70 ] THE COURT: Thank you for that. [ 71 ] THE CLERK: Okay, all right. [ 72 ] CNSL M.

FELDTHUSEN: Your Honour, that concludes our matters today. (REASONS FOR SENTENCE CONCLUDED)