R. v. Klein (G.), 2011 SKQB 94

• Judge: Gerein, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 28, 2011
• Jurisdiction: Saskatchewan
• Citations: 2011 SKQB 94;(2011), 369 Sask.R. 273 (QB)

R. v. Klein (G.) (2011), 369 Sask.R. 273 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. MR.028

Gerald Klein (appellant) v. Her Majesty the Queen (respondent)

(2010 Q.B.G. No. 1500; 2011 SKQB 94)

Indexed As: R. v. Klein (G.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Gerein, J.

February 28, 2011.

Summary:

The accused had been an unwelcome intrusion in the victim's life for 35 years. His breach of a 1998 restraining order led to a 2003 conviction for harassment and three years' imprisonment. In 2007, the accused entered a one year recognizance under s. 810 of the Criminal Code not to have direct or indirect contact with the victim and other named persons and which banished him from a specified geographic area of Regina. In 2008, the accused's attempt to meet with the victim's ex-husband (newly divorced) to discuss their mutual abuse by the victim and later conduct of pacing for 8-10 minutes in front of the victim's sister's house (where the victim was known to occasionally frequent) led the Crown to seek to have the accused enter another s. 810 recognizance. The Crown had to prove on a balance of probabilities that the victim subjectively feared personal injury and that the victim's fear was objectively reasonable. The judge was so satisfied and ordered that the accused enter a s. 810 recognizance. Terms included no direct or indirect contact with the victim and other named persons and banishment from the entire city of Regina. The accused appealed both the order and the conditions.

The Saskatchewan Court of Queen's Bench allowed the appeal in part. The judge did not err in ordering that the accused enter the recognizance, but banishment from the entire city of Regina was excessive and unduly harsh. The court substituted banishment from a smaller portion of the city, which gave the victim significant security of movement while accommodating the accused's basic needs.

Criminal Law - Topic 6707

Recognizances and understakings - General - Terms or conditions of recognizances (incl. banishment) - The accused had been an unwelcome intrusion in the victim's life for 35 years - He called her, wrote her letters, sent her flowers, showed up on her doorstep and kept her under surveillance - He sued her for breach of promise, slander and commenced a private prosecution for perjury, all of which were summarily dismissed - The accused's breach of a 1998 restraining order led to a 2003 conviction for harassment and three years' imprisonment - In 2007, the accused entered a one year recognizance under s. 810 of the Criminal Code not to have direct or indirect contact with the victim and other named persons and which banished him from a specified geographic area of Regina - In 2008, the accused's attempt to meet with the victim's ex-husband (newly divorced) to discuss their mutual abuse by the victim and later conduct of pacing for 8-10 minutes in front of the victim's sister's house (where the victim was known to occasionally frequent) led the Crown to seek to have the accused enter another s. 810 recognizance - The Crown had to prove on a balance of probabilities that the victim subjectively feared personal injury and that the victim's fear was objectively reasonable - The judge was so satisfied and ordered that the accused enter a s. 810 recognizance - Terms included no direct or indirect contact with the victim and other named persons and banishment from the entire city of Regina - The accused appealed both the order and the conditions - The Saskatchewan Court of Queen's Bench allowed the appeal in part - The judge did not err in ordering that the accused enter the recognizance - The victim feared psychological harm and that fear, resulting from the accused's subtle attempt to again re-enter her life, was objectively reasonable - However, banishment from the entire city of Regina was excessive and unduly harsh - The court substituted banishment from a smaller portion of the city, which gave the victim significant security of movement while accommodating the accused's basic needs.

Criminal Law - Topic 6707

Recognizances and understakings - General - Terms or conditions of recognizances (incl. banishment) - An accused subject to a recognizance under s. 810 of the Criminal Code appealed a condition banishing him from the entire city of Regina - The Saskatchewan Court of Queen's Bench stated that "banishment orders are rare. They are protective rather than punitive. All the circumstances must be taken into account, including the impact on the victim and the wrongdoer; the nature of the wrongdoing; the presence or absence of violence; whether alternate measures are available; and whether there is some logical connection between the offensive conduct and the geographic area." - See paragraph 25.

Cases Noticed:

R. v. Patrick (1990), 75 C.R.(3d) 222 (B.C. Co. Ct.), refd to. [para. 7].

R. v. Banks (B.), [1995] 4 W.W.R. 698; 129 Sask.R. 147 (Q.B.), refd to. [para. 22].

R. v. MacLeod, 2005 BCPC 108, refd to. [para. 22].

R. v. Malboeuf (1982), 16 Sask.R. 77 (C.A.), refd to. [para. 23].

R. v. Graham (A.D.), [2009] B.C.T.C. Uned. 1588; 2009 BCSC 1588, refd to. [para. 23].

R. v. Stulac (1983), 63 N.S.R.(2d) 357; 141 A.P.R. 357 (C.A.), refd to. [para. 23].

R. v. Parchment (O.C.), [1999] B.C.A.C. Uned. 88; 1999 BCCA 388, refd to. [para. 23].

R. v. Taylor (W.B.) (1997), 163 Sask.R. 29; 165 W.A.C. 29 (C.A.), refd to. [para. 24].

R. v. Kehijekonaham (M.R.) (2008), 311 Sask.R. 212; 428 W.A.C. 212; 2008 SKCA 105, refd to. [para. 24].

R. v. Okemau (C.P.), [2010] Sask.R. Uned. 161; 2010 SKQB 280, refd to. [para. 26].

R. v. Helm (B.E.) (2011), 368 Sask.R. 115; 2011 SKQB 32, refd to. [para. 26].

R. v. J.C.N. (2005), 269 Sask.R. 183; 357 W.A.C. 183; 2005 SKCA 64, refd to. [para. 35].

R. v. McKenzie (D.W.) (2006), 275 Sask.R. 300; 365 W.A.C. 300; 2006 SKCA 13, refd to. [para. 35].

R. v. Lee (J.A.) (2007), 425 A.R. 21; 418 W.A.C. 21; 2007 ABCA 288, refd to. [para. 36].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 810(1), sect. 810(3)(a) [para. 20].

Counsel:

Brian R. Pfefferle and Berkeley Buchko, for the appellant;

Michael J. Morris, for the respondent.

This application was heard before Gerein, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on February 28, 2011.