R. v. Fehr and Klimpke, 2019 MBPC 72

CITATION: R. v. Fehr and Klimpke , 2019 MBPC 72 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Paula Leslie ) ) for the Crown - and - ) ) ) Alexander Fehr - and - Vanessa Klimpke ) ) ) ) ) ) ) ) Scott Newman for the Accused Allan Libman for the Accused ) ) ) Reasons for Decision ) Delivered: November 6, 2019 ROLSTON, P.J. (Oral Decision) Introduction [ 1 ] At around the time Guy and Doris Soulodre [pronounced “So Load”] went to bed in their home on December 1, 2018, Alexander Fehr and Vanessa Klimpke headed to a Christmas party at a local bar about one kilometre away.

While the Soulodres slept, Fehr and Klimpke drank alcohol. In the very early morning hours, Fehr and Klimpke, both intoxicated and wandering the neighbourhood looking for a ride home, went to the Soulodre’s door. What followed has altered the lives of all four individuals in a profound way. [ 2 ] Mr. Fehr and Ms. Klimpke plead guilty to forcible entry. The Crown proceeded by indictment and seeks a jail sentence to be served in the community by way of a conditional sentence order. Both Defence counsel have asserted that their respective clients should receive the benefit of a discharge.

These very different, but understandable sentencing positions reflect the fact that each side place emphasis on different sentencing principles based upon the facts and background of these offenders. [ 3 ] The Court is certainly challenged here to arrive at a sentence that properly reflects the gravity of the offence while balancing the degree of responsibility of these offenders. Principled Approach to Sentencing [ 4 ] It is helpful to re-examine the basic principles of sentencing in light of this difficult sentencing, where there are valid reasons to emphasize competing goals.

Why do we as a society, sentence people who have committed crimes?

Section 718 of the Criminal Code provides the answer to this question. The ultimate sentence should: • protect society, • contribute respect for the law, and • ensure ongoing peace and safety for the community. [ 5 ] The Code also sets out the following goals of sentencing: • To denounce unlawful conduct. This means that the sentence must make a statement to the community that the behaviour in

question is unacceptable and will be punished. • To deter. This means that the offender must be compelled to think twice before acting in a similar fashion, and also that a message is sent to other similarly placed individuals that they should not act the same way. • To separate the offender from society. The law says that this principle should be used sparingly and only to the extent necessary. • To rehabilitate. This goal entails changing wrongful thinking that causes offending so as to stop offensive behaviour. • To repair wrongs.

This goal is meant to return victims or the community generally back to where they were prior to the offence occurring. • To promote responsibility and acknowledgement of harm done. [ 6 ] The fundamental principle for sentencing is to arrive at a sentence that is proportional to the gravity of the offence and the degree of responsibility of the offender. The Supreme Court in R. v.

Lacasse , 2015 SCC 64 pointed out (at paragraph 12), “determining a proportionate sentence is a delicate task…both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice”. A proper balancing requires application of the sentencing goals and objectives set out in

section 718 of the Criminal Code . At the end of the day, the Court in Lacasse concludes that the delicate task of measuring proportionality rests on the premise that “the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be.” The Court in this case must look at both the seriousness of the offence and the moral culpability of the offenders. The Circumstances of the Offence [ 7 ] The facts in this case are somewhat unique. The two offenders are in a long term relationship, and attended to a work Christmas party for Mr.

Fehr at the CanadInns Windsor Park. It was a cold night, and at the time, cabs were hard to come by in Winnipeg. Social media car ride services had not yet arrived in the city. The couple were not from the Windsor Park area. Both Mr. Fehr and Ms. Klimpke were not heavy drinkers prior to this night, and for reasons that are regrettable in hindsight, the two drank much more than they originally intended to, or should have. In the early morning hours, they found themselves without a ride, not dressed for the weather and in unfamiliar surroundings. Most unfortunately, Mr. Fehr and Ms.

Klimpke had drank their ability to reason away. [ 8 ] In the sober light of day, it makes no sense for the couple to wander into the vast residential area that is Windsor Park. However, that is exactly what Mr. Fehr and Ms. Klimpke did, away from any commercial businesses that might be open and warm at the time. According to reports, the pair were heard to be looking for a ride as they made their way through the area.

It is unfortunate that someone did not simply help the couple in some way before they encountered the Soulodres. [ 9 ] In any event, Fehr and Klimpke began knocking on doors in the area and ultimately came to the door of Guy and Doris Soulodre, aged 80 and 76 respectively. When they asked for help, they were told to “go away”. At some point, Mr. Fehr formed the impression that the Soulodres uttered racial comments aimed at Ms. Klimpke’s heritage. This clearly could not have happened based upon the unfolding of the facts and the recordings made by the 911 operator. It may be that Mr.

Fehr, in the throes of his alcoholic haze concluded that no one would help them because of his partner’s race. It is not clear to this Court, but the Court was struck by the high degree of remorse indicated by Mr. Fehr in the Presentence Report (PSR) and in court, which stands in contrast with the belief that the victims uttered the words he thought he heard. [ 10 ] In any event, rather than leave the Soulodre home, Fehr and Klimpke kicked the door in. The ensuing chaos was partially captured in the background of a 911 call that was recorded at the time and was tendered into evidence.

The incident was punctuated by Mr. Fehr swearing profusely and Ms. Klimpke pushing a vacuum held by Doris Soulodre, knocking the elderly lady to the ground. At one point, it appears that they started to leave but returned to the residence. In the course of the melee, the door and frame to the Soulodre home were broken and the storm door glass was shattered. The incident ended with Mr. Fehr pulling Ms. Klimpke out of the home. [ 11 ] The offenders were apprehended nearby, after being tracked in the snow. They were very intoxicated and talking nonsense.

Both were detained overnight in the Winnipeg Remand Centre. [ 12 ] It should be noted that there is no significant difference between the respective involvement of the two offenders. Circumstances of the Offenders [ 13 ] The Court must look at the background of the offenders individually for the purpose of determining the appropriate sentence. Vanessa Klimpke [ 14 ] Ms. Klimpke does not remember what happened on the night in question. It is clear however, that she takes full responsibility for her actions and blames no one but herself. To say that her actions were out of character is an understatement.

The Presentence Report, marked as exhibit s-1, details a background that reads more like the prologue to an award as opposed to the background details for sentencing. It is clear that Ms. Klimpke has dedicated her life to excellence in sport and is in the process of transitioning those skills acquired in these pursuits to setting up her work career. In doing so, it is evident that she has overcome some deficits and injuries and still has some potential to continue to play competitive hockey, possibly in the United States.

The Court will not detail the many positive aspects of the presentence report since it is marked as an exhibit. It is clear that the report is evidence that this is an otherwise good person who did a very stupid thing.

[ 15 ] There are several noteworthy details aside from her background that are mitigating. These details post date the incident before the court and demonstrate her character and remorse. Firstly, just four days after the incident and three days removed from a one night stay at the Winnipeg Remand Centre, Ms. Klimpke attended the Addiction’s Foundation of Manitoba (see exhibit s-2, tab 2) for an assessment. This reveals that the incident was serious in Ms. Klimpke’s mind and that she determined on her own that immediate remedial action was necessary. She has not consumed alcohol since that time.

Exactly one month after the incident, Ms. Klimpke wrote a sincere letter of apology to the victims that demonstrates her remorse and insight into the extent of the impact upon them (see exhibit s-2 tab 3). It is also evident that Ms. Klimpke continues to struggle to rectify her actions in this incident as she continues to attend counselling over her involvement. These details are important when applying the principles of sentencing and will be discussed further shortly. Alexander Fehr [ 16 ] Mr. Fehr, while coming from a different background, also presents with an impressive background. At 25 years of age, Mr.

Fehr is an individual who has strived to work hard to obtain his goals. He is clearly bright and driven, and is now well positioned to commence a promising career as an electrician. Letters of support were filed on behalf of Mr. Fehr indicating that this incident was out of character for him. Mr. Fehr also attended to the Addiction’s Foundation and has not consumed alcohol since. Mr. Fehr has apparently struggled with some anxiety throughout his life and appears to need to explore some of the challenges he continues to face in that regard going forward. The Court shares the Crown’s concerns that Mr.

Fehr’s co-lateral’s perspective may suggest that there is a certain degree of enabling behaviour that has allowed certain behaviours to go unchecked. The Court was also concerned initially based upon comments by Mr. Fehr that appeared to display a somewhat flippant attitude towards his bail (see page 3 of 11 of the PSR). However, after hearing Mr. Fehr speak in court, the Court is satisfied that he takes the process very seriously and understands the gravity of the matter. Mr. Fehr also wrote a sincere letter of apology and indicated a desire for ongoing counselling, in a written pledge to his victims.

Nonetheless, the Court has concluded that more so than Ms. Klimpke, some additional supports are required for Mr. Fehr going forward. Preliminary Comments regarding Sentencing [ 17 ] It should be noted at the outset that the Crown proceeded by way of indictment to the charge of forcible entry. The maximum sentence for this offence is two years in jail. [ 18 ] Despite the length of these proceedings, both offenders indicated a desire to plead guilty early in the process. As has been noted, this is a difficult sentencing.

The Court acknowledges that the Crown has exemplified her role as a minister of justice by attempting to engage the post plea mediation process to both assist in the victims recovery, but so as to provide the offenders the opportunity to demonstrate their remorse. This gesture by the Crown has allowed for the apology process to occur in a more meaningful way than normally occurs in an after the fact manner. It is clear that receiving an apology from the offenders has been meaningful for the Soulodres.

The Court also acknowledges Defence counsel for their expertise in managing the process in an effective way for their clients. While the Court makes no judgment on the victims, it is in some ways unfortunate that they could not see the end of the process in person. [ 19 ] It is also significant that restitution has been offered by the offenders. While it has been collected by Mr. Fehr’s counsel, given that Mr. Fehr and Ms. Klimpke are in a common law relationship, the Court views this gesture as a mitigating factor for both offenders.

There was some discussion as to how to deal with restitution due to late disclosure of expenses paid by the Soulodre’s insurance company. The Court is mindful that the Soulodres are out their $1000 deductible. The quantum of the actual restitution is in dispute. That dispute has nothing to do with the Soulodres. It is a fight between the offenders and the insurance company. The guilty plea today allows for the insurance company to dispense with the proof as to who is responsible for the damage. It does not clear up the quantum of damage. That dispute can be sorted out in civil court between those parties.

Therefore, the Court will order that Vanessa Klimpke and Alexander Fehr pay a total of $1000 to be paid in to court to be paid directly to the Soulodres. What is the Appropriate Sentence? [ 20 ] The Crown and Defence are seeking very different sentences for the actions of Mr. Fehr and Ms. Klimpke. On one hand, the Crown is seeking a jail sentence. The Crown acknowledges that the offenders are not a danger to the community and therefore it would be just to allow them to serve the sentence in the community.

Nonetheless, the Crown argues that the circumstances of the offence require the Court to impose jail so as to address the principles of deterrence and denunciation. On the other hand, the Defence lawyers both suggest that each offender should leave today without a conviction on their respective criminal records. This is an exceptional form of sentence because, notwithstanding the factual guilt of the offender, the Court spares the offender from incurring a conviction. [ 21 ] The major aggravating factor in this case is the impact of the event on the victims. Mr. and Mrs.

Soulodre were sleeping in their own home before the incident began. They should have been able to do so feeling secure that no outsider would enter into their home. It was late at night. Help was not readily available. The Soulodres were aged 80 and 76 years old respectively at the time. The Court takes into account that the victims here were particularly vulnerable, as is required by

section 718.2(a)(iii.1) of the Criminal Code . [ 22 ] As has been stated, the Court must strive to achieve a proportional response to the wrong done that reflects what has happened and who the offender is. [ 23 ] To what degree does the goal of denunciation need to be met? At first blush, it is clear that society should be interested in denouncing the act of forcibly entering a home while intoxicated at night. No doubt, this was an ugly incident. However, it must be

remembered that this incident did not begin as a forcible entry. It commenced as a knock on the door and a plea for help. Both Mr. Fehr and Ms. Klimpke were cold and desperate for help, albeit both were clouded by alcohol. Their moral culpability was on the low end of the scale. The need for denunciation of acts where there is little moral culpability is logically lower than when the offender is highly culpable. [ 24 ] To what degree is there a need for deterrence? The Court is satisfied that there is no further need for specific deterrence for either offender here. Both spent the night in custody.

Both stopped drinking. As the Court alluded to at the outset, it is evident the events of December 2, 2018 had a profound impact on their lives. The Court is satisfied that similar events will not happen again for either offender. In terms of general deterrence, it is important to question what behaviour is sought to be deterred. While the Court acknowledges that drinking excessive amounts of alcohol leads to poor choice making, excessive drinking behaviour is not illegal. It is the forcible entry that the Court must be concerned about.

The caselaw, or lack of it provided, by counsel illustrates that drunken forcible entries to homes is not a pressing problem and that the present offence is as it seems, a very unique and unfortunate set of circumstances driven by poor drunk decision making. [ 25 ] To what degree is there a need for reparation? Given that victim impact is the most significant aggravating factor in this case, it logically follows that victim reparation should be at the forefront. The Court has already ordered the remainder of restitution be paid.

The emotional toll of the events of December 2, 2018 are likely the hardest part to repair. The feedback received by the court as to the victim’s reactions illustrates that they will not likely ever fully feel safe again. The Court has alluded to the fact that the Crown opened a pathway to a meaningful apology already. It is evident that this was effective as the victims were able to gain some solace from the words of the offenders and from knowing who they are as people. It is noteworthy that the Soulodres were more concerned about Mr. Fehr than Ms. Klimpke. It is also noteworthy that Mr.

Fehr pledged to take programming in his apology. [ 26 ] To what degree is separation from society required in this case? This goal of sentencing is often discussed in conjunction with the principle of restraint. The Crown’s position already takes into account restraint to a degree, by limiting separation from society to house arrest. It is also noteworthy that both offenders were jailed for one night as well. With respect, the Court does not see why further jail is required here for the reasons discussed above.

In other words, separation from society does not further or enhance the goals of sentencing in any way here. Jail should be a last resort reserved for only those cases where it is necessary to accomplish the goals and principles of sentencing where other sentencing options cannot. The Court is satisfied that this is not one of those cases. [ 27 ] What remains are two competing goals of sentencing that the Court views to be of paramount importance in determining this matter.

The sentence in this case must rectify the competing goals of promotion of responsibility and acknowledgement of harm done with the ongoing rehabilitation of the offenders. [ 28 ] Both Defence counsel argue that discharges adequately address all of the principles of sentencing. Whether a discharge is appropriate comes down to whether a discharge properly holds these offenders responsible and adequately acknowledges the harm done. [ 29 ] This issue can be answered by applying the test for a discharge as set out by

section 730 of the Criminal Code . It is clearly in the best interests of the respective offender’s ongoing rehabilitation to have the benefit of a discharge. [ 30 ] Mr. Fehr, you have taken responsibility for your actions by pleading guilty. You spent a night in custody and have been subject to strict bail conditions for the better part of a year. Your actions have indicated an acknowledgment of the harm done by way of your apology and offer of restitution.

Based upon your acknowledgement of your wrongdoing and taking into account your efforts since this incident, the Court is satisfied that it would not be contrary to the public interest to grant you a discharge. [ 31 ] The Court has determined that a 12 month conditional discharge is appropriate for you. This means that you will be placed on probation for 12 months. So long as you complete the terms of your probation, there will be no conviction entered in this matter.

If you do not complete the terms of your probation, you may be brought back before me to determine whether a different order should be imposed. [ 32 ] I want to explain to you why I am putting you on probation. You will recall that Mr. Soulodre was particularly concerned about the anger exhibited in your language and your manner that night. Your Presentence Report reveals that you have struggled with some anxiety, and that you have not dealt with that in the most healthy way. Your supports may not have helped the situation, if they have enabled your behaviour.

While you may not have substance abuse issues, you have consumed hard drugs in the past. It seems to the Court that some further exploration of these issues is necessary. Moreover, you, yourself pledged to your victims that you will seek counselling. In order to make your apology meaningful, the Court is of the view that some counselling is necessary. Additionally, the Court feels that it is necessary to impose some community service work so as to properly promote responsibility for your offending.

Lastly, the Court feels compelled to accede to the wishes of the Soulodres and impose the no contact and non-attendance conditions requested.

In the Court’s view, with these conditions attached to a conditional discharge, the Court can address the harm done to the Soulodres. [ 33 ] Therefore, the conditions of your probation, by way of a conditional discharge for 12 months is as follows: You are to: • Keep the peace and be of good behaviour. • You must not contact or communicate directly or indirectly with Guy and Doris Soulodre. • You must not attend to any place where Guy and Doris Soulodre reside, work or worship. • You must report to Probation Services within two days after today’s date.

After you first report, you must continue to report and be supervised by your Probation Officer when and how you are told to by your Probation Officer. • You must attend, participate and complete counselling, assessments and programming as directed and supervised by your

Probation Officer. • You must complete 25 hours of community service work, as directed by your Probation Officer. The community service work must be completed within the first eight months of your Probation Order. [ 34 ] Ms. Klimpke, the Court has outlined the efforts that you have made since you committed this offence. While it is necessary that the Court try to impose a similar sentence for you, as Mr. Fehr’s, I must also consider that you have your own unique background. You do not present as a person who has struggles similar to Mr. Fehr that require counselling.

If anything, you have become so focused in your pursuit of excellence on the ice that you have chosen not to let your background impact who you intend on becoming. While this is a strength in many ways, ignoring your background may impact you as your hockey career winds down and you must focus on other areas of your life. Part of the Court’s role in sentencing is to consider the circumstances of your background as an Indigenous person. This is typically done with other offenders by exercising restraint and not imposing jail.

At first blush, the qualities you have acquired as a hockey player make you very valuable for performing community service by serving as a positive role model for all children, but more specifically for young indigenous women. This is a demographic in need of role models. Ironically, because of the nature of a condition discharge, imposing community service work upon you would reduce your ability to reach your goals and fulfill your potential to be a role model.

You have demonstrated a willingness to step forward as a coach and mentor through your volunteer work and through your recent involvement with the Neechiwaken program. To that end, in light of your background, and your efforts since these offences, the Court is satisfied that a discharge is not contrary to the public interest. The Soulodres did not seem to be as concerned about the Court imposing protective conditions against you. The Presentence Report suggests that no further counselling is needed in your case.

The Court takes into account your background as an Indigenous person and in particular, finds that inhibiting travel to the United States will potentially curtail your career, which would impact your ability to serve as a positive role model. Therefore, in your case, the Court finds that an absolute discharge should be granted in this unusual circumstance. “Original signed by:” ROLSTON, P.J.