2015 MBPC 30, 2015 MBPC 30

Cite: 2015 MBPC 30 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Mark Kantor, ) for the Crown - and – ) ) Brooke Klima, ) ) Jay Prober, for the Defendant Defendant ) ) ) Sentencing Decision delivered: June 25, 2015 ) R.L. POLLACK P.J. [ 1 ] On August 20, 2012 Brooke Klima was employed as a guard at the Winnipeg Remand Centre (“WRC”). That afternoon she struck an inmate several times in the head and she has entered a guilty plea to one count of assault in a

summary conviction proceeding. The incident leading to the prosecution: [ 2 ] The victim suffers bi-polar and anxiety disorders and was housed in a special needs unit on the sixth floor of the WRC. That day, upon his return from a court appearance, Ms Klima told him that he was being transferred to the Headingley Correctional Centre (“HCC”). At some point in that conversation he asked her for his lozenges, a tobacco addiction product that he felt he needed to calm himself.

His request was not well received by Ms Klima and she chastised him for being a bother. [ 3 ] The victim returned to his unit and, using obscene and degrading language, began describing her to whoever would listen. There is no privacy in that unit and, through some kind of system, Ms Klima heard what he had to say about her. She made an arrangement whereby she and four other guards were in a room across the hall. The victim was beckoned to enter that room and was seated, surrounded by guards, one of whom watched the doorway.

At this time Ms Klima carried a pair of latex gloves which ordinarily would be used when searching the property of an inmate who was being transferred to another jail. [ 4 ] In that room Ms Klima tried to prod the victim into repeating the disgusting language that he had just used in front of other inmates. At least one other guard joined in. The victim was unresponsive and Ms Klima, wearing the gloves, proceeded to assault him. She did so by “striking him” several times in the head.

Then he was sent on his way to the lower level from which he would be transported to HCC. [ 5 ] The victim suffered no permanent injury. A week later he saw a doctor at HCC and complained of a bruise; he was given a non-prescription pain reliever. In the interim, the WRC received an anonymous complaint about the conduct of Ms Klima and the guards who were with her. An investigation took place, part of which included an interview with Ms Klima. In that interview she described the victim as repeating the foul language and acting aggressively.

She told the investigators that she could not deal with him and tapped him on the head before backing away. [ 6 ] For that assault, about which there is more to say, her employment was terminated. I have no evidence about the rules of inmate conduct at the WRC or whether guards are expected to respond to being insulted. Regardless, Ms Klima decided to confront the victim and she did so by placing him in an extremely intimidating situation.

The complicity of her colleagues is clear because three of them lost their jobs. [ 7 ] On October 28, 2012 Ms Klima voluntarily met with police and she was arrested for assault. As was her right, she consulted with a lawyer and declined to make a statement. She was released that day with an appearance notice. A procedural issue raised by the defence and a change of counsel delayed the matter but finally a trial date was set. It was on the trial date – apparently after abundant discussion between counsel - that the defendant entered a guilty plea.

The plea bargain: [ 8 ] The November 17, 2014 guilty plea was a term of an agreement wherein Ms Klima would plead guilty as charged, the prosecutor would seek a four-month conditional sentence order and her lawyer would seek a conditional discharge. The plea bargain was flawed, however, because it failed to rest upon a clear statement of facts other than that the offender struck her victim several times

in the head. Indeed, at one point in the hearing it was my impression that the only agreement was that the defendant would enter a guiltyplea. Counsel debated two issues as if summing up after a trial: first, what the assault consisted of; second, whether the assault wasplanned and deliberate. Determining the facts: [9] The prosecution statement of facts included that Ms Klima punched and slapped the victim on the head several times.

Indeed,a police report appended to her pre-sentence report stated that: Klima instructed (the victim) to have a seat and began goading (the victim) into a fight however he remained sitting passively. Klimathen assaulted (the victim) by punching and slapping him about the head several times. Mr. Kantor also said that, in an internal investigation, she denied such an assault. Early in his remarks, Mr.

Prober submitted that hisclient demonstrated appropriate responsibility for the offence by pleading guilty; when I pointed out that this was years later, he statedthat his client had made an admission in the internal investigation.

It was a flurry of discussion between counsel that produced thestatement by Ms Klima in the internal investigation that she tapped the victim in the head; the defence maintained that this was an earlyadmission of the offence of which the defendant is guilty. [10] This prompted a discussion of the plea comprehension inquiry (before another judge) until counsel decided to review the audiotrack during a recess. Mr. Kantor then admitted that he had used the word “struck” and not “punched” or “slapped” as the basis for theguilty plea.

In making that admission, however, the prosecutor demonstrated the flaw in the bargain because he also told the arraigningjudge that he would be elaborating upon the facts. When he did so before me, he was met by denial or contradiction from the defence. Why he expected Mr. Prober to have accepted the prosecution statement of facts was not explained. [11] The prosecutor asked me to infer that, because Ms Klima had already obtained the latex gloves, this was a planned anddeliberate assault; in the same breath, he stated that there is no other evidence of intent.

Defence counsel stated forcefully that his clienthad no intention to assault her prisoner when she had him brought into the room; he pointed out that, because the victim was about to betransferred, his property would have to be searched and that is why his client had the gloves before she entered that room. And Mr.Kantor agreed that his property bag was on a table just outside that room. [12] The aggravating facts described by Mr. Kantor were the basis for his submission that this case called for a conditional sentenceorder but none was admitted by the defence.

I allowed a recess in order for him to consider whether to offer evidence of the prosecutionversion of the assault. When the hearing resumed I was advised that there would be no evidentiary hearing. Therefore, as Chartier J.A.(as he then was) articulated in R. v. Leschyshyn, 2007 MBCA 41, the defence statements of fact stand: 7 Section 724(3)(

b) of the Code, together with the Supreme Court of Canada decision in R. v. Gardiner, (SCC),[1982] 2 S.C.R. 368 (S.C.C.), sets out the procedure to be followed where there is a dispute of fact at a sentencing hearing. Basically, if adefendant denies a Crown submission of fact, which goes to the gravity of the offence, or presents a different version of the incident, thesentencing judge is bound to ignore the Crown submission, unless it leads evidence on the disputed fact.

In the absence of proof beyond a reasonable doubt in a Gardiner hearing, I cannot conclude that the assault consisted of more thantapping the victim’s head or that it was a premeditated assault. And I would add, parenthetically, that it is not my function to rationalizehow that could lead to four correctional officers being terminated from employment. Pre-sentence information: [13] The pre-sentence report details mental health issues that arose after a traumatic experience in Ms Klima’s work place sixmonths before the assault.

In a letter to counsel, her psychiatrist confirmed that she presents with symptoms of post-traumatic stressdisorder and this requires medication. Every page of the pre-sentence report contains corroboration of her previously unblemishedreputation. Since her termination from employment she has been under mental health care and has relocated to The Pas. There shefound employment and established herself as a trusted and dependable employee.

Separate from the pre-sentence report, others whoknow her well have testified in writing as to her good character. [14] I know from reading his impact statement that the victim, too, is receiving attention for post traumatic stress as a result of theassault. It is understandable how terrified he would have been in that room.

The situation of a jailed inmate being intimidated andassaulted - even in a minor way - by a guard while surrounded by other guards, is hopeless; there is no one to call out to and certainlynowhere to run. [15] I asked Ms Klima if she had anything to say before reserving my judgment and, responding in the affirmative, she turned to thevictim who was seated with his family. She apologized and, in a few short sentences, demonstrated that she now has appropriate insightinto her wrongdoing and the effect that it had on all of them.

Application of sentencing principles: [16] The aggravating features of the case are that:

a) the assault constituted a breach of trust because the authority of the offender over the victim enabled her to commit theoffence with the moral support of peers who shared her position of authority;

b) the offender knew that her victim was classified by her employer as someone with special mental health needs;

c) the assault consisted of intimidation and more than one blow; The mitigating factors are that:

a) the offence can be regarded as being out of character;

b) a career in which the offender invested six years has been terminated;

c) previous stressors in the offender’s life, requiring psychotherapy and medication, arose from an incident in the same workplace a few months before the assault;

d) a probation officer described the offender as a very low risk to reoffend and not requiring probation supervision;

e) this case comes with media attention that few simple assaults by a first offender would attract. [ 17 ] The prosecution sought a deterrent sentence of four months to be served conditionally. In doing so, Mr. Kantor relied upon a series of cases in which the assaults were more than tapping a prisoner on the head.

This offender has no prior conflict with the law and, notwithstanding that the offence was committed while in a position of trust, a conditional sentence would be disproportionate to the harm done by a first offender. [ 18 ] The existence of the trust relationship between the offender and her prisoner, however, is a key factor in considering the public interest criterion for a conditional discharge. Not only was the offender a trustee but the prisoner with whom she was entrusted was more vulnerable to her abuse because of his identified high needs.

In my opinion, to allow Ms Klima to say that she was not convicted of assault would be contrary to the public interest. The public interest requires a criminal record for this offence to demonstrate the public’s high expectation that, regardless of the reasons for their detention, prisoners will be kept safe by their jailers. [ 19 ] Ordering this offender to serve a sentence of imprisonment, even at home, would not change anything for the community as she does not represent a risk to public safety.

Ordering her to contribute to the community by way of unpaid service, which the Criminal Code permits to a maximum of 240 hours, would make a community based disposition a proportionate sentence. [ 20 ] Brooke Klima: your sentence is suspended for eighteen months and you are released on probation with the following mandatory conditions:

a) keep the peace and be of good behaviour;

b) appear before the Court when required to do so by the court;

c) notify the Court in advance of any change of name or address and promptly notify the Court of any change of employment or occupation;

d) do not communicate with the victim directly or indirectly by any means and stay 100 metres away from where he may live, work, continue his education or worship; and, in addition to those conditions:

e) provide 120 hours of community service without remuneration or reward within fifteen months;

f) report within five working days to Manitoba Probation and thereafter as directed to register for, to attend at or to complete your community service requirement. [ 21 ] There will be a victim surcharge of $50.00 and costs of $2.00 payable within thirty days. “Original signed by” R.L. POLLACK P.J.