R. v. Klym, 2016 MBPC 2

CITATION: R. v. Klym, Kyle Randolph, 2016 MBPC 2 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) Adam Bergen and Michael Bodner ) for the Crown- and – ) ) Kyle Randolph KLYM ) Ryan Amy ) ) for the Accused Accused. ) ) Reasons for Decision delivered: February 26, 2016 PULLAN P.J. I. Introduction [1] Defence seeks a stay of proceedings on all charges, urging the Court to find Mr. Klym’s rights under

Section 7 of the Charterof Rights and Freedoms were infringed by the Winnipeg Police Service, and that a stay of proceedings is the appropriate remedy. Defence relies on evidence called by the Crown, and the Defence, that led to my conclusion that Mr. Klym would be found guilty ofdangerous operation, impaired operation, two counts of assaulting a peace officer, and resist peace officer (R. v. Klym, 2015 MBPC 23). [2] Defence submits that the findings of guilt are not a bar to this application, relying on R. v.

Anderson 2009 MBQB 121, R. v.Young, 2014 ONCJ 171. [3] This matter reconvened for submissions on the issue of whether I should order a judicial stay of proceedings. If Mr. Klym’smotion is dismissed, I shall enter convictions on the five charges for which he was found guilty, and a sentencing hearing will then takeplace. II. Positions of counsel

A) Defence [4] Defence submits that even though I found that the police were acting in the execution of their duty, the Supreme Court ofCanada in R. v. Nasogaluak 2010 SCC 6, noted the obligation on the Court to guard against the illegitimate use of power by police. [32] “While, at times, the police may have to resort to force in order to complete an arrest or prevent an offender from escapingpolice custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity, andreasonableness.

Courts must guard against the illegitimate use of power by the police against members of our society, given its graveconsequences.” (para. 32) [5] In R. v.

Babos, 2014 SCC 16 , 2014 SCC16 the Court articulated the test to be applied to determine whether a stay ofproceedings is warranted. [32] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of threerequirements: 1) There must be prejudice to the accused`s right to a fair trial or the integrity of the justice system that “will be manifested,perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54); 2) There must be no alternative remedy capable of redressing the prejudice; and

3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” ( ibid ., at para. 57). (at para. 32) [ 6 ] Defence submits that the case here ought to be considered in the “residual category”, where state conduct creates no threat to trial fairness, but risks undermining the integrity of the judicial process. [ 7 ] Acknowledging that a reduction in sentence, as reflected in some of the cases submitted by Defence, has been employed to address a breach, where a breach is found, Defence urges that the circumstances here fall within the parameters where no alternative remedy is capable of addressing the prejudice.

Defence says that this is one of those clear cases where a stay of proceedings is the only appropriate remedy. [ 8 ] Defence furthers submits that in this case, there are limits to the type of conduct society will tolerate in police investigation. Babos was a case of prosecutorial misconduct, but Defence argues that the same principles ought to apply, as here, to police misconduct. The police conduct here, submits Defence, harms the integrity of the justice system. [ 9 ] Even where use of force is necessary, it must be proportional and reasonable.

In cases falling within the residual category the focus must be on whether an alternate remedy short of the stay of proceedings will adequately distance the justice system from the police conduct. The police conduct in Mr. Klym’s case, in accordance with Defence submission, is such that ought to shock the community conscience and offend the community sense of fair play and decency, as referred in Babos . In the balancing that must ensue, it becomes less likely that the community’s interest in a full trial will prevail. [ 10 ] The facts here are that Mr.

Klym was arrested, and despite the Court’s finding that he assaulted the police officers and resisted arrest, the force used in gaining his compliance was excessive, unnecessary, and not reasonable. The doctors’ evidence of Mr. Klym’s injuries included sustaining broken ribs. Mr. Klym had a bruise on his ribs, which Defence argues is consistent with the kicking that Mr. Klym says he received from the police.

All police who testified denied applying force to his ribs with a foot, or having any knowledge of anyone else doing that. [ 11 ] In the Court’s earlier decision, the issue of kicking and unreasonable force was not dealt with. Mr. Klym’s evidence on that point, was supported by other evidence. [ 12 ] In R. v. Crane [2005] A.J. No. 292 , the Court considered circumstances where Mr. Crane spit in an officer’s face. A second officer, in anger, struck Mr. Crane twice in the face causing a bloody nose. In evidence, Mr. Crane claimed four to six blows landed by more than one officer.

He was forcibly placed in a police car, and removed at the detachment where a spit mask was placed over him. He was put in cells by several police officers more roughly than necessary, and placed on the floor of the cell covered in blood. No attempt was made to assess his injuries until the morning when he was taken to hospital to determine if he were HIV positive. No pictures were taken of him. [ 13 ] The police evidence was inconsistent as to whether the accused was resisting, and no notes were made concerning the use of force and obvious injuries. The Court concluded that Mr.

Crane was not resisting and that more force than necessary was used in moving him from the police vehicle to the cell. [ 14 ] In Mr. Klym’s case, Defence points to the existence of broken ribs caused by the altercation in the parking garage. Defence argues that Mr. Klym was healthy when arrested, and discharged from the Winnipeg Remand Centre with broken ribs. The only reasonable conclusion is that his ribs were broken, as he testified, from being kicked by the police. [ 15 ] The facts in Nasogaluak , supra are of assistance in considering the issues here. Mr.

Nasogaluak, who was intoxicated, led police on a high speed pursuit. When the vehicle was stopped, the police pointed a gun at him. He did not get out of the vehicle as ordered, but retreated back in and had to be physically removed. One officer punched Mr. Nasogaluak in the head to prevent him from driving away and striking the officer’s partner. Mr. Nasogaluak was struck again in the head a second time and pulled out of the vehicle. After a third punch in the head, he was pinned on the pavement. When he refused to be handcuffed he was punched in the back. His ribs were broken.

The broken rib punctured one of his lungs. No record was made of the force used during the arrest, the deployment of the officer’s weapon, or Mr. Nasogaluak’s injuries. The next day, he was admitted to hospital with broken ribs and collapsed lung resulting in surgery. [ 16 ] The Supreme Court did not interfere with the trial judge’s finding of a

Section 7 Charter of Rights breach. Defence submits that the facts in Nasogaluak supra are on point with the facts here and police have an obligation to act reasonably effecting an arrest. Here, Defence submits the Court can consider collusion by the officers involved with Mr. Klym, involving misplaced good intentions not wanting to get a colleague in trouble. [ 17 ] In balancing the applicable circumstances before it in R. v.

Young , supra , the Ontario Court of Justice came to the same conclusion urged by Defence here : [33] “I find, applying the test in Babos , nothing short of a stay of proceedings can address the depth and breadth of the serious police misconduct in this case and its negative impact on both the delivery of justice and the integrity of our justice system and law enforcement....” (para. 33) [ 18 ] In R. v. Maskell, 2011 ABPC 176 , the accused resisted the officer’s attempt to open the driver’s door, and Mr. Maskell grabbed the inside door handle resulting in a “tug-of-war” between the officer and Mr. Maskell.

After the door was open, the officer grabbed Mr. Maskell by his shirt lapel extracting him from the vehicle and putting him on the ground in a prone position. There was a difference in the evidence about the amount of effort and force used to accomplish the maneuver. Mr. Maskell sustained a fractured orbital bone and nose, a deviated septum, and the tissues in his cheek were separated from the bone. The Court concluded Mr. Maskell’s testimony believable, and the officer’s unbelievable. Referring to police evidence, Groves, P.J. found the evidence of the officer:

“incredulous” and “only strengthened the circle of silence I found existed amongst them” (at para. 72). He concluded the force used was excessive, infringed Mr. Maskell’s

Section 7 and 12 Charter rights, and if condoned would undermine the community sense of fair play and decency. The Court’s concern was exacerbated by what the Court concluded to be misleading testimony by the police. Groves, P.J. was compelled to communicate unequivocally that the police conduct will not be tolerated, and found the only fit and appropriate remedy was to stay the proceedings pursuant to s. 24(1) of the Charter . [ 19 ] Defence submits that what is clear in this case, is that something happened to Mr. Klym sufficient to break his bones.

The only reasonable conclusion, argues Defence, is that excessive force was used by police in the police garage resulting in the broken ribs. [ 20 ] In R. v. Bene [2002] O.J. No. 5131 , Allen, J. concluded: “Mr. Bene’s injuries are serious. I have some difficulty with the idea that the injury to his eye was caused by anything described by P.C.

Merkel, and the injury leads me to believe that the use of force was even less restrained than Merkel admits.” (at para. 8) [ 21 ] Defence urges the Court to conclude, as did Allen, J., that the seriousness of the injuries lead the Court to conclude that the force must have been excessive. [ 22 ] In this case, submits Defence, some force was used and significant injuries occurred. The police reaction to Mr. Klym’s resistance was excessive, and shocks the community. The Court must separate itself from the actions of the Winnipeg Police Service.

A lesser sentence is inadequate condemnation of the conduct of the Winnipeg Police Service. A lesser sentence carries with it the stigma of a criminal record. This is a case where only a stay of proceedings will suffice to address the issues. [ 23 ] Defence points out that police officers are given a great deal of power, and if they step out of line this ought to be noted and addressed by the Court. To permit the prosecution to continue condones the actions of the Winnipeg Police Service. The only appropriate conclusion, Defence submits, is to bring an end to these proceedings. B.

Crown [ 24 ] The Crown reminds the Court that the onus is on the accused to prove, on a balance of probabilities, that his rights have been breached. In the context here, the Court is required to find that police misconduct, police doing what they are not allowed or authorized to do in the execution of their duties, will result in such a finding. The Crown submits the Court here should have no trouble finding that there was no such police misconduct. [ 25 ] The Crown suggests that the findings already made in the Court’s earlier decision, are dispositive of the issue because of the way the findings of fact fell.

The Crown submits that the credibility findings with respect to Mr. Klym’s evidence are those that would need to be made to deal with this application. [ 26 ] The Crown suggests that the Court’s description of Mr. Klym’s evidence, at paragraph 149 of the earlier decision, that it “does not pass the test of common sense”, at paragraph 157, that Mr. Klym’s account “defies logic”, and that his account of events after pulled over by the police is significantly affected by his state of mind, are of assistance in resolving the issues in this application. [ 27 ] The Crown notes the Court’s conclusion that Mr.

Klym’s evidence was calculated to minimize culpability for his conduct. The Crown submits that the Court’s assessment of Mr. Klym is a blend of honest but mistaken perception, touched with the motive to colour events, which falls short on appropriate grounding for an application of this nature. [ 28 ] The Crown argues that Mr. Klym has not proven, on any standard, that a kick occurred. [ 29 ] There is no expert evidence regarding causation. The Crown submits there is a pattern of a bruise, but no one has indicated with an expert’s eye what that meant, and where is could have come from.

The only evidence is that of Mr. Klym, alleging the kick. [ 30 ] The Crown submits that where the accused has the onus, the evidence presented is insufficient. [ 31 ] No police officers indicated they saw or delivered any kick, so the evidence of a kick could only come from Mr. Klym. It would be unsafe, in the Crown’s submission, to conclude there was a kick, never mind who delivered it and under what circumstances. [ 32 ] From a common sense perspective, the Crown says, the only real conclusion could be that at some point between leaving his parents’ house and getting x-rayed, obviously his ribs were broken.

The Crown says the most logical time for this to have occurred is during physical contact with any number of things including the floor, the police vehicle, and the police officers themselves. The Crown says it’s probable that it happened at some point during the altercation with police. From a lay assessment, a common sense time for the fracture to have occurred is when the police were on top on Mr. Klym subduing him with the greatest application of force within a smallest period of time. That, at best, is a guess. [ 33 ] At one point, Mr.

Klym was face down on a concrete floor, with metal hand cuffs on his wrists beneath him, and heavy police officers applying what the Crown says is justifiable force to him. The compression on his chest must have been significant. The Crown says that is probably the most likely time when the ribs were broken if the Court accepts the officers’ version of events. [ 34 ] Mr. Klym required repeated subduing over multiple locations. The police must repeatedly respond to Mr. Klym’s presentation. In R. v.

Anderson , supra , at para. 28 Abra, J. observed that even after the accused was handcuffed, he continued to struggle and resist. Abra, J. concluded the police were authorized and entitled “to use as much force as was necessary to overpower and subdue the accused”.

[ 35 ] The police are entitled to move to a level of force above that they are confronted with, to be able to control the person with whom they are dealing. With someone as violent and aggressive as Mr. Klym, we cannot expect the police to measure the use of force with nicety. Because officers are human, it is a rare circumstance where precisely that amount of force is used. The law does not require that degree of measuring. [ 36 ] The Crown also submits the police acted appropriately in response to Mr.

Klym who was incredibly out of control, would become apparently subdued, and then re-engage. [ 37 ] The Crown’s submission is that the Court need not distance itself “one inch” from the conduct of these officers. Mr. Klym’s actions actually are what caused all of his injuries. The police did exactly what they should have. The Court and society should not criticize, but, in fact, should express support for police responding in the way that they must when confronted with someone behaving in the way Mr. Klym did. [ 38 ] The Crown submits this is not a difficult decision for the Court.

There is nothing here that the Court can conclusively point to and say that the police behaved in a way that they ought not to have and the inquiry ought to stop there. The Crown says there was no breach here. C. Analysis [39]

Section 7 of the Charter of Right and Freedoms provides: Life, liberty and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [40] If I find a breach of

Section 7 of the Charter , the next step is consideration of the appropriate remedy pursuant to s. 24(1) of the Charter : Enforcement of guaranteed rights and freedoms 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [41] As noted earlier, counsel agree that the onus is on Mr. Klym, to prove on a balance of probabilities, that his rights under

Section 7 of the Charter were breached, and that a stay of proceedings is the appropriate remedy pursuant to s. 24(1) ( Anderson , supra , para. 13 ). [42] On the basis of the evidence presented by the Defence, I am satisfied that when Mr. Klym left his parent’s home July 12, 2013 he was suffering no injury except for recovering from strained tendons in his right wrist sustained moving wood in the back of his house. It is clear that when seen by Dr. Khelil on July 15, 2013, he had bruises to his chest in addition to other injuries. The July 16, 2013 chest x-ray interpreted by Dr.

Paul Major, identified two specific rib fractures. [43] It is reasonable to conclude that when Mr. Klym was discharged from the Winnipeg Remand Centre July 14, 2013, he was discharged with broken ribs. [44] The Crown suggests that it is not unreasonable for the Court to conclude that the ribs were broken in the company of the Winnipeg Police Service. I agree, but to the come to that conclusion I must consider that the nurse at the Winnipeg Remand Centre who examined Mr. Klym upon admission missed the broken ribs. I must also conclude that when Mr.

Klym was ultimately placed in the police vehicle in the East District Station for transfer to the Winnipeg Remand Centre, and was so out of control that he had to be rip hobbled to restrain him, he continued to behave violently even having sustained fractured ribs. In addition, there was evidence from Mr. Klym of inserting his head between closing doors in the Winnipeg Remand Centre under escort by correctional officers.

He must have, then, lost control to such an extent that the self evident pain and discomfort he later described as accompanying his broken ribs, did not restrain his violent behaviour placed back in the police car and rip hobbled, or his behaviour putting his head between the closing doors of the elevator in the Winnipeg Remand Centre. [45] While my earlier reasons for judgment did not address the causation of the broken ribs, they did address Mr. Klym’s credibility as I found it. I appreciate that he says he was kicked in the ribs by police, as he struggled with them on the floor of the East District Station.

In my earlier reasons, I found his description of events troublesome and not reasonable (para. 150) inconsistent with his behaviour (para. 151) illogical (para. 152) injected with ill motive to police without foundation (para. 154) defying logic and impacted by panic and anxiety (para. 157) impacted by his psychiatric and psychological challenges (para. 159) and offering explanations that simply were not reasonable, not plausible, and did not ring true (para. 160). [46] Although Mr. Klym had bruises in the rib area of his body, the only evidence connecting the bruises to the fracture came from Mr. Klym.

The Court had the benefit of medical evidence from Dr. Khelil, the family doctor, and Dr, Paul Major, the radiologist. Other that Dr. Major’s description of the fractures as “recent”, there was no medical evidence to assist the Court with respect to causation of these injuries.

[47] Crown counsel suggests that it may be that the broken ribs were sustained when Mr. Klym was face down on the floor of the East District Station, with his metal handcuffs beneath him as officers struggled to control him by holding him from the rear. Although I agree that it is possible, to come to that conclusion is really nothing more than a guess. [48] If members of the Winnipeg Police Service had deliberately kicked Mr.

Klym in the ribs, while he was face down on the floor of the East District Station, certainly that police conduct could support a conclusion that the Winnipeg Police Service exerted force beyond what was reasonable in the circumstances, and constitute excessive force. This conclusion could ground a decision that Mr. Klym’s rights under

Section 7 of the Charter of Rights and Freedoms were violated. [49] In the circumstances here, however, any conclusion as to how Mr. Klym’s ribs were broken would be nothing more than speculation. Based on the evidence presented, the Court cannot say with any degree of certainty, let alone be persuaded on a balance of probabilities, how the rib injuries were sustained. [50] The unreliability of Mr.

Klym’s evidence, and the absence of any medical or other evidence to assist, leaves me without any foundation to conclude a Charter breach in this case. [51] In my earlier judgment, I commented extensively on my assessment of all of the witnesses presented by Crown and Defence. I would adopt and apply that assessment to my conclusions here. [52] I appreciate that members of the Winnipeg Police Service, in response to Mr. Klym’s conduct, were required to use force. Police are clearly prohibited from using a greater degree of force than necessary. [53] I adopt the reasoning the Supreme Court in R. v.

Nasogaluak , supra : [35] Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), C.C.C. (2d) 211 (B.C.C.A.): In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used.

They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218] (at para. 35) [54] I find that Mr. Klym’s rights under

Section 7 of the Charter of Rights and Freedoms were not breached. As a result, there is no necessity to consider a remedy pursuant to s. 24(1) of the Charter of Rights and Freedoms . His application for judicial stay of proceedings is dismissed. __________________________ Pullan, P.J.