R. v. Jackson (P.), (1993) 132 N.B.R.(2d) 305 (PC)

• Judge: Brien, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: January 08, 1993
• Jurisdiction: New Brunswick
• Citations: (1993), 132 N.B.R.(2d) 305 (PC)

R. v. Jackson (P.) (1993), 132 N.B.R.(2d) 305 (PC);

    132 R.N.-B.(2e) 305; 337 A.P.R. 305

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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R. v. Peter Jackson

Indexed As: R. v. Jackson (P.)

New Brunswick Provincial Court

Brien, P.C.J.

January 8, 1993.

Summary:

A physician/anaesthetist was charged with assaulting a patient contrary to s. 266(b) of the Criminal Code.

The New Brunswick Provincial Court convicted the accused and sentenced him accordingly.

Criminal Law - Topic 1413

Offences against person and reputation - Assaults - Simple assault - What consti­tutes - A 59 year old physician/anaesthe­tist was charged with assault - The victim was a 93 year old male mental patient who was often con­fused and disoriented - The patient was vocal and yelled and hollered at times, but was not a threat to himself or others - The assault occurred after the doctor inserted a needle into the sleeping patient's hand - The patient moved and the needle came out, then he hollered - The doctor struck the patient's face twice, once with a closed fist - The doctor was charged with assault - The doctor denied hitting the patient - The doctor claimed he was just turning the patient's head and attempting to startle him - The New Brunswick Provincial Court convicted the doctor - See paragraphs 1 to 35.

Criminal Law - Topic 1422

Offences against person and reputation - Assault - Defences - Consent - A 59 year old anaesthetist was charged with assault - The victim was a 93 year old male mental patient - The patient was not a threat to himself or others - The assault occurred after the doctor inserted a needle into the sleeping patient's hand - The patient moved and the needle came out - The doctor struck the patient's face twice, once with a closed fist - The doctor was charged with assault - The doctor sub­mitted that he was just turning the patient's head and attempting to startle him - The doctor also claimed that the family had impliedly consented to the contact - The New Brunswick Provincial Court held that any family consent did not extend to the forceful striking of the head - See para­graphs 30 to 34.

Criminal Law - Topic 5848.5

Sentencing - Proper considerations - Post-offence conduct - A 59 year old physician/anaesthetist was charged with assault - The victim was a 93 year old male mental patient who was often con­fused and disoriented - The assault occurred after the doctor inserted a needle into the sleeping patient's hand - The patient moved and the needle came out, then he hollered - The doctor struck the patient's face twice, once with a closed fist - Following the incident, the doctor approached the charge nurse and indicated that "if she reported what happened he would lose his career" - The doctor was charged with assault - In sentencing, the New Brunswick Provincial Court took into consideration the doctor's refusal to admit his actions and his attempt to influence the nurse - See paragraphs 59 to 61.

Criminal Law - Topic 5849.1

Sentencing - Considerations - Position of public trust of accused - A 59 year old physician/anaesthetist was charged with assault - The victim was a 93 year old male mental patient who suffered from dementia and was described as arthritic, non-ambulatory, hearing and visually impaired, having limited short-term mem­ory, often confused and disoriented, etc. -He was not a threat to himself or others - The assault occurred after the doctor inserted a needle into the sleeping patient's hand - The patient moved and the needle came out, then he hollered - The doctor struck the patient's face twice, once with a closed fist - The doctor was charged with assault - In sentencing, the New Bruns­wick Provincial Court held that the doc­tor's conduct constituted a breach of trust -See paragraphs 46 to 50.

Criminal Law - Topic 5861

Sentence - Assault - A 59 year old physi- cian/anaes­thetist was charged with assault - The victim was a 93 year old male mental patient who was often con­fused and dis­oriented - The assault occurred after the doctor inserted a needle into the sleeping patient's hand - The patient moved and the needle came out, then he hollered - The doctor struck the patient's face twice, once with a closed fist - The doctor was charged with assault - The doctor claimed he was just turning the patient's head and attempting to startle him - The doctor worked long hours and had no previous record - The New Brunswick Provincial Court suspended the passing of sentence and placed the doctor on a six month term of probation - See paragraphs 35 to 68.

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 45 [para. 30]; sect. 266(b) [para. 1].

Counsel:

K. Wingate, for the Crown;

R. Gillis, Q.C., for the accused.

This matter was heard by Brien, P.C.J., of the New Brunswick Provincial Court, who delivered the following decision on January 8, 1993, and orally imposed sentence on the same date.