J. IN THE PROVINCIAL COURT OF SASKATCHEWAN SMEATON, SASKATCHEWAN HER MAJESTY THE QUEEN UPON THE INFORMATION OF MANLEY J.K BURLEIGH, PEACE OFFICER against CALVIN JOHN KLIMEK OF CANDLE LAKE, SASKATCHEWAN ACCUSED Mr. Gary Parker ........................................................................ Crown Prosecutor Mr. Ron Piche ............................................................... Counsel for the Accused Decision B.D. HALDERMAN, P.C.J. April 18, 2000 R. v. Calvin John Klimek S. 264.1 Criminal Code Decision Background and Initial Findings of Fact [1] Calvin John Klimek is charged that on October 12, 1999 at Candle Lake and Prince Albert District he did knowingly utter a threat to Lena Klimek to cause death to Lena Klimek, Merril Klimek and Garry Klimek, contrary to s. 264.1 of the Criminal Code. [2] Lena Klimek, age 77, has lived on a farm approximately 30 km. east of Prince Albert for some 64 years. She is the mother of the Accused Calvin Klimek, age 44. One of Mrs. Klimek’s sons, Merril, lives with her. [3] Adam Klimek, another son of Lena Klimek, had recently passed away, and very bitter family fight had developed over dealings with and entitlement to his rather substantial estate. The Accused, and to some extent one other sister, were in opposition to Lena Klimek and her other children, including Merril Klimek and Garry Klimek. [4] Sometime after 10 a.m. on October 12, 1999 Michael Klimek, age 29, dropped in to visit his grandmother Lena at her farm home. Michael is the son of Merril Klimek. female friend of Lena Klimek’s was there when he arrived, as the two women were preparing to go bowling in Prince Albert. The friend, though present throughout the telephone conversation which forms the basis of the charge before the Court, was not witness at trial. [5] Soon after Michael Klimek arrived the telephone rang and Mrs. Klimek answered it. It is common ground that the Accused was the caller, and that he was calling from his residence about 100 km. away. Calvin Klimek was extremely agitated about the sale of Adam Klimek estate cattle that was taking place at that moment. His voice was very loud, and his speech was full of coarse language. The Accused’s wife, Camille, was present at the Calvin Klimek residence and testified that during the course of the conversation, the Accused became so angry, and his voice was so loud that he woke the baby granddaughter sleeping in the next room. [6] Although Michael Klimek said there were some parts of the conversation he didn’t catch or ceased listening to, he said that he was sitting about four feet from the phone, and that Lena Klimek held the phone away from her ear because the Accused was speaking so loudly. find that Michael Klimek was able to clearly hear those portions of the conversation which he testified to with respect to the alleged threat. [7] Michael Klimek testified that his uncle’s voice was extremely high-tempered about the selling of cattle which was going, that the Accused said everybody at the farm was bunch of liars, that he was going to blow away Lena, Merril and Garry Klimek, and that they would be put in plastic bags. Michael’s interpretation of what Calvin Klimek said was that these three individuals would no longer be living. Michael also heard the Accused say he was coming down to the farm to take some pictures off the walls, and anything else he thought was his. He said his grandmother didn’t talk much during the telephone call, which lasted 10 to 15 minutes. He said he saw fear in his grandmother’s face. Her friend whispered to him couple of times during the course of the conversation that this was “a terrible thing to happen”. He said that at the conclusion of the conversation, Lena wasn’t sure what to do, that she and her friend went to their bowling, that Michael went to the cattle auction to report the incident, and that Garry Klimek immediately called the RCMP. [8] Lena Klimek testified with respect to the phone conversation. She said there was lot of anger in the Accused’s voice, and lot of swear words. The Accused had never spoken to her this way before, she hadn’t expected it, and it was hard to take. She said her friend was “just petrified” and that she, Lena, was “really shook up”. [9] Lena said that the Accused asked her who gave Merril permission to sell the cattle, and that “I will kill that crippled son of bitch”, (referring to Merril who had had back operation), and that “you will all go out in plastic bags”. She testified he said he would come and would take his pictures and his kid’s pictures off the wall, or if not off the wall would smash all the pictures. Lena told him not to come, and he said he would come any damn time he wanted. He further said he would come and bring friend, and they would “clean us all out”. [10] In cross-examination, Lena Klimek agreed that nowhere in her statement to police had she used the word “kill”. She said Calvin probably used both the words “kill” and “get rid of”. She wasn’t sure in her statement to the police whether the Accused had used the words “blow away”. In her evidence, she was adamant that the Accused had spoken of blowing someone away, referring to herself, Merril and Garry. She said she had looked at her statement before testifying, but that she didn’t really need it because it wasn’t hard to remember the gist of what was said. She agreed that she didn’t remember everything that was said during the conversation word for word. She was prepared to say that her memory was better on the stand than at the time she gave her statement to police, “but it was good then too”. [11] In his testimony, Calvin Klimek agreed that during the course of the telephone call, his tone “elevated somewhat”, that he spoke loudly and that he probably did use profane language. He said that this was not the case at the start of the conversation his tone of voice was “concerned”, and he was not yelling. He said that prior to making the call, he had had call from his sister advising him of the imminent sale of cattle, and that he had only made the call to his mother after being advised to do so by his sister, and after telling his wife, daughter and daughter’s fiancé what was happening. He said he had never been verbally abusive to his mother previously although they had had disagreements, they had walked away from them. [12] The Accused testified that he told his mother he was going to come out to the farm and get his belongings, which he estimated were worth $15 $20,000. (On cross-examination, he estimated his net worth at $155,000). He said that he was going to bring someone from the law with him, that she couldn’t sell off the estate assets. He said that by his reference to “the law”, he intended to bring with him Cst. Jim Kidney of the Prince Albert City Police. He said his mother said to him that if he brought the police out, “we’ll shoot them”, and that he said “If you point firearm at them, they’ll shoot you.” In examination-in-chief, he said he did not recall using the words “I will kill you” to his mother, but that he did say that “if you pull gun on policeman they will shoot you”. He also said he said to his mother that “the police will take you away in body bags”. He said he was tired of hearing that the cattle were hers, that his mother spoke very loudly to him, and told him “you’re not wanted here”. In answer to his counsel’s question “Did you say anything you would construe as threat to any of the three, or cause them death”, the Accused answered “No”. [13] In cross-examination, the Accused said that during the telephone conversation, he did not name the police officer, but that the officer would be along to help him get justice. He said that he was taking the officer along so he wouldn’t get shot at. He said his mother had never threatened to shoot him, but that his brothers Merril and Garry had on some occasions threatened to shoot him or to create bodily harm. He initially agreed he had said he wanted to physically cut his family members out of the pictures hanging on his mother’s wall, then denied that he said he wanted to cut them out. He admitted using the words “body bags” in the conversation, and agreed he had used the words “blown away”, but maintained that what he said was “they will probably blow you away”. He believed there was conspiracy amongst the other brothers to get Adam Klimek’s estate for less than it was worth. He would not admit that he “lost it” in talking to his mother. [14] Camille Klimek is the wife of the Accused. They have been married 19 years. As noted above, Camille related how loud the telephone conversation was at her end of the line. She said that as the conversation proceeded, her husband got louder, red in the face, was using profanity, and that “when he starts swearing, he swears”. She heard reference to “bags” but not to body bags. Significantly, her evidence regarding the reference to “getting the law involved” was somewhat different than her husband’s: she said the Accused said he was going to take “Jim” with him, understanding the above-mentioned Jim Kidney. [15] As permitted by s. 12 of the Canada Evidence Act the Accused was questioned as to his criminal record. With respect to an alleged conviction for theft in Saskatoon in 1987, he said it was possible he had been so convicted. He also admitted to number of convictions in the 1970's, including break and enter, possessing stolen credit cards and property, and Narcotic Control Act convictions for trafficking and possession for the purpose of trafficking. He denied having been convicted for certain other offences during the period 1972 to 1987. The convictions denied were not proven by the Crown. Admissibility and Weight to be Given to Evidence of Previous Record: [16] At the point the Crown commenced questioning the Accused on his record, Defence Counsel objected, arguing that the convictions were dated and highly prejudicial. permitted the application, based on s. 12 of the Canada Evidence Act and the case law. [17] It is always open to the Accused to make Corbett application and have ruling on it before electing to call evidence. See R.v. Underwood (1998) 1998 CanLII 839 (SCC), 12 C. R. (5th) 241, per Lamer, C. J.; R.v. Corbett (1988) 1983 CanLII 28 (SCC), 36 C.R. (3rd) (S.C.C.). [18] Most reported cases respecting Corbett applications deal with jury trials, where it is of fundamental importance to keep the jury from hearing potentially-prejudicial evidence until its admissibility is determined. In those situations, voir dire is mandatory, as stated in Underwood., supra, at p. 245. [19] As noted in the very useful annotation by Peter Sankoff at (1994) 12 C. R.(5th) 228 at p. 240 respecting post-Corbett decisions: “... it is worth pointing out that with the jury trial comprising small percentage of the criminal persecutions (sic) in Canada, there has yet to be serious discussion as to whether Corbett has any real application in trial by judge alone. In practice, it seems as if criminal records are tendered as matter of course in non-jury trials, with the assumption made that trial judge can properly ignore the prejudicial effects of the record.[footnote omitted] So long as the prevailing approach in Canada is to have all pre-trial and interlocutory motions heard by the trial judge, there would seem to be little point in raising Corbett application as the evidence will have to be put before the trier of fact in order to get ruling on the motion anyway....” [20] In non-jury trial, it is my view that there is ordinarily no need for the defence to formally make Corbett application, requesting an order excluding evidence of convictions whose prejudicial effect outweighs their probative value. Rather, at whatever point the issue of the Accused’s record is raised (either on formal application prior to calling defence evidence, or when the prosecutor proceeds under s. 12), the duty of the judge sitting alone is to indicate that he is instructing himself that he must not treat the record of the Accused as tending to show that the Accused is the kind of person who would be disposed to commit the offence charged that is, that he must not infer from the record that the Accused has propensity to commit criminal offences. See for example R. v. McIlvride 1979 CanLII 3090 (BC CA), [1979] W. W. R. 93 (B.C.C.A.), where the trial judge wrongly instructed the jury that “having criminal record brands the Accused as an unreliable person to give evidence under oath”. [21] In most cases involving judge alone, (and in this case), the evidence adduced during the Crown’s case, together with the submissions of Defence counsel during or at the close of the case, will enable the judge to properly instruct him or herself without the need for voir dire or the attendant concerns regarding defence disclosure. In the event counsel wishes to specifically draw particular convictions to the Court’s attention, in order to highlight probative or prejudicial effect and consequent inclusion or exclusion from the Court’s consideration, this can ordinarily be done during final argument. [22] In this case, have instructed myself as follows: 1. The Accused’s record may not be taken as tending to show that the Accused has propensity to commit crimes, or that he has criminal disposition; 2. The probative versus prejudicial effect of any particular conviction must be weighed, in the context of preserving the right to fair trial; 3. It is then discretionary whether to include or exclude any particular conviction when considering and weighing the evidence; complete exclusion means that the judge treats the excluded evidence as if he or she never heard it; 4. It is proper for the judge to take into account and have “full picture” of who the Accused is, especially if the Accused in cross-examination has launched strong attack on the Crown witnesses’ credibility, i.e. the ability to tell the truth as opposed to the ability to recall events accurately; 5. Convictions for offences involving dishonesty are ordinarily admissible, as they may especially bear on the assessment of credibility permitted by s. 12 of the Canada Evidence Act. See Corbett, supra, at p. 37, per LaForest, J.; R.v.Saroya (1995) 1994 CanLII 955 (ON CA), 36 C.R.(4th) 253 at p. 257 (Ont.C.A.). [23] In the process of giving his or her decision regarding guilt or innocence, the judge should ordinarily acknowledge the self-instruction regarding the admissibility of prior convictions, and should relate the self-instruction to how and why the discretion to admit or exclude has been exercised. Depending on the length and nature of the record, this may merely necessitate reiteration of the prohibited inferences regarding criminal disposition. The purpose of the exercise is to provide asssurance that the judge has not decided the matter on an improper basis, as in McIlvride, supra, but which because the basis is unstated is immune from review. [24] In the present case, the most recent dishonesty-related conviction to which the Accused admitted was in 1978. The most recent such conviction to which the Accused did not admit but which he said was “possible” was 1987. [25] In R.v. S.G.G. (1997) 1997 CanLII 311 (SCC), C.R.(5th) 198 (S.C.C.), Sopinka, J. (in dissent) said at para. 123: “... when evidence as to disposition is tendered for the purpose of proving guilt, it is logically relevant. It is excluded by reason of our system’s aversion to convicting person charged because he or she is bad person. If an accused could be convicted on the basis of past misconduct which disclosed disposition to commit the offence charged, an old offender might never be able to obtain fair trial on the basis of evidence relating to that charge....” [26] accept the Crown and defence evidence that the Accused is presently in the contracting business. He has been married for 19 years, and has an adult daughter and grandchild. He appears to have built up modest net worth. In my view, where there is lengthy period (in this case 12 years, or 22 years if the alleged 1987 conviction is excluded) between the date of the alleged offence and the last conviction, the Court should look charily at admitting such convictions or giving them any probative value whatever. Common experience suggests that for many people convicted in their younger years, rehabilitation occurs and many such individuals become honest law-abiding citizens. Absent evidence to the contrary, their dated criminal past should not be prejudicially used against them forever. [27] Given the age of the record, and the above-noted factors, have concluded that all of the prior convictions should be disregarded insofar as they relate to the Accused’s credibility. While none of the convictions is for an offence that would prima facie be expected to prejudicially influence jury, and hence might properly be put before them, have completely excluded the Accused’s record from my consideration regarding credibility. The only conclusion draw from the record is that the Accused has in the past been familiar with the workings of the criminal justice/court system, and that he accordingly is not neophyte witness. This is not negative inference it is merely the common sense proposition that every witness brings his background with him to the stand, and that the fact-finder is entitled to consider it. Further Findings of Fact and Credibility: [28] If believed, the evidence of Calvin Klimek respecting the telephone conversation would raise reasonable doubt, and would entitle him to an acquittal. As noted, he agreed that he used the words “body bags” and “blown away”. He said that what he would have said was “they will probably blow you away”, and that he was responding to his mother’s alleged comment to him that “if you bring the police with you, we’ll shoot them”. [29] disbelieve the evidence of the Accused regarding his version of this portion of the conversation. find that he did not tell Lena Klimek that he was going to bring Prince Albert City Police officer with him. He admitted on cross-examination that he didn’t tell his mother the officer’s name; his wife’s evidence, however, was that she heard the Accused say during the conversation that he was going to take “Jim” with him, meaning Cst. Kidney. Significantly, in my view, no question was put to Michael Klimek as to whether he heard his grandmother say anything about the police attending or that she would shoot them. Even accepting that Michael agreed that he did not hear everything that the Accused said, he could not have missed hearing his grandmother talk about shooting someone. It is not the sort of remark that grandson would ordinarily forget if his grandmother said it during such telephone conversation. [30] also disbelieve the Accused’s evidence that he wanted police officer along with him so that he wouldn’t be shot at, and that his brothers had threatened to shoot him some five times. There is no suggestion that he reported any such threats. Given his high degree of anger regarding the estate winding up, both during and before the conversation (he believed that there was conspiracy among his brothers to get the Adam Klimek estate for less than it was worth), reporting of such threats to police would be likely, to say nothing of prudent step for him to have taken. [31] disbelieve the Accused’s evidence that he did not say anything to his mother which he would construe as threat to cause death to his three family members. An indicator of his level of anger, in addition to the loud vulgar manner he admitted he had never used with his mother before, is his stated intention to come and take certain family pictures off the walls. find that he did say to his mother that he intended to physically cut out those parts of the pictures portraying him or his immediate family. Although the Accused would not admit to the prosecutor that he “lost it” during the conversation, the common meaning of which is to completely lose control of one’s emotions, actions or speech and act in an irrational, unpredictable and possibly violent or criminal manner,) find based on the overwhelming evidence of the Crown witnesses and his wife, that the Accused did in fact “lose it”. [32] find the evidence of Michael Klimek to be straightforward and believable. There was no basis to find that his evidence was coloured by the bad feelings which obviously existed between his aunts and uncles regarding the estate, nor that he was in any way part of the family fight. He happened to drop in to see his grandmother, and his only emotional involvement was that he was offended by what he heard Calvin Klimek say to his grandmother. [33] am not left in any doubt as to whether Michael Klimek was able to hear those portions of the telephone conversation regarding the alleged threats. His own evidence was clear in this regard, and was not weakened on cross-examination. number of questions were put to other witnesses concerning the location of the telephone vis vis an adjoining wall, and the extent to which the wall would interfere with Michael’s ability to hear what the Accused was saying. However, no questions were put to Michael, who drew the diagram of the kitchen/telephone area, which caused me to have any doubt about what he heard. [34] find that he heard the Accused say that he would come to the farm, that he would blow away Lena, Merril and Garry Klimek, and that in immediate temporal proximity, he said that they would be put in plastic bags. Michael Klimek interpreted those words to mean that the three people would no longer be living. Mr. Piche objected to Michael Klimek being permitted to give his interpretation. In my opinion, the meaning of most words must be taken from the context in which they are used. Many words have, in context, powerful and precise connotations. Having regard to any ordinarily-informed adult in today’s society, use of the words “blown away” and “being put in plastic bags”, in temporal proximity, connote death and admit of no non-lethal interpretation. In this regard, also find that Michael Klimek did see fear in his grandmother’s face as result of the words which were spoken by the Accused. [35] At trial, Lena Klimek said that the Accused said he was coming out to kill her. She agreed that in her earlier statement to police, she did not include the word “kill”. She told Mr. Piche that the Accused probably used the words “kill” and “get rid of” during the call, and that in this regard her memory was better at trial than it was when she gave her statement to police. find that her recollection of the actual words spoken was not as accurate as that of Michael Klimek. also find, however, that the words said to her were clearly understood by her to be menacing that she and her sons were being threatened with death. [36] Mr. Piche argued that there must be precision as to what was said during the conversation, and in what order. In the absence of tape recording, it is not reasonable, in my view, for anyone to be able to recall verbatim everything that is said in the course of 10 15 minute telephone conversation, and to relate the precise order in which each sentence was spoken. Mr. Piche’s submission puts the matter too broadly. The Crown is required to place sufficient evidence before the Court as to each of the elements of the offence which, when taken in the context of all the evidence presented, satisfies the Court beyond reasonable doubt that the offence is made out. Obviously, in case such as this, the words used and the meaning of those words, is important. have doubt as to whether Lena Klimek heard the Accused use the word “kill” do not have doubt that the other words were spoken by the Accused, in the manner referred to previously. [37] Having decided that the Defence evidence is not believable, is there any other evidence which raises doubt in my mind? Mr. Piche suggested that Lena Klimek did not take the words seriously, as evidenced by the fact that instead of calling the police immediately, she proceeded unconcernedly to her bowling with her friend. He suggested to her in cross-examination that the conversation couldn’t have been as scary for her as she alleged that she was so scared that she went bowling. [38] do not find this argument to have merit. Although it is clear in observing and listening to Mrs. Klimek on the witness stand that she can be feisty herself and can make her own decisions when required, conclude the following: a) she had already arranged to go bowling. Her friend was there, and Lena was embarrassed that her friend heard the conversation. The friend was petrified; b) she wasn’t sure what to do after hanging up the phone. She told Michael to go to town and report the conversation to his father, which he did. The police were immediately notified. For 77-year-old woman to be uncertain as to what to do, and to want her sons to deal with the police on difficult family matter makes eminent sense; c) if Calvin Klimek was coming to the farm to do as he said he would do, she would be safer away from the farm; d) Mrs. Klimek and Michael both took the words of the Accused seriously there was no delay in calling the police and giving statements. [39] In R.v.Clemente (1994) 1994 CanLII 49 (SCC), 31 C. R. (4th) 28 at paras. ,7 and 12, the Supreme Court held that the mens rea, or requisite intent, required under s. 264.1 is established (a) if the words were uttered with the intent to intimidate or instill fear, or (b) if it is shown that the threat was uttered with the intent that it be taken seriously. At para. 13 and 14, Cory J. said: “To determine if reasonable person would consider that the words were uttered as threat the court must regard them objectively, and review them in light of the circumstances in which they were uttered, the manner in which they were spoken, and the person to whom they were addressed. “Obviously words spoken in jest or in such manner that they could not be taken seriously could not lead reasonable person to conclude that the words conveyed threat....” [40] In Clemente, the accused did not testify, and Cory J. referred to the court making its determination in the absence of any explanation of the accused. In the present case, there has been an explanation by the Accused, but have disbelieved the evidence given on his behalf in this regard. Therefore, the statement of the law set out above is equally applicable with respect to Klimek. [41] Mr. Piche argued that the Accused didn’t mean what he said, and that he was simply making idle threats, blurted out in anger and frustration in the context of family disagreement. He referred to R. v. LeBlanc (1989) 1988 CanLII 131 (NB CA), 66 C. R. (3rd) 134 (N.B.C.A.), reversed and trial judgement upheld, (1989) 1989 CanLII 56 (SCC), 70 C.R (3rd) 94 (S.C.C), in support of the proposition that the words used by Klimek could not lead reasonable person to conclude that the words conveyed threat. [42] In LeBlanc, the hypothetical example used by the trial judge was to situation where person is playing cards, and says to his partner after the partner’s misplay caused them to lose the hand, “Oh gees! could kill you”. In such case there would be no threat, because there was no actual menace or hostile determination of pain or suffering or death. In my view, an analagous instance of lack of menacing intent is that referred to in the evidence of the Accused in the present case, is when he alleged that his mother said to him “I should have drowned you”. The bare words “I should drown you” won’t ordinarily attract criminal liability. However, all of the surrounding circumstances will bear on whether the words are innocently spoken, or whether there is something in all the circumstances which would convey to reasonable person the menace that harm or ill will befall you. [43] In my view the words spoken by the Accused were clearly meant to be taken seriously, and implied menace to the listeners They cannot on any reasonable construction of their meaning lead reasonable person to doubt that they conveyed threat. Decision [44] As indicated, I disbelieve the Accused’s evidence. do not consider it reasonably capable of being true. In my opinion, the Accused, in much cooler frame of mind than on the day of the incident, has constructed story in explanation of what occurred. The story does not “hang together”, for the reasons I have given. Considering all of the evidence, I find that the Crown has proven its case against Calvin Klimek beyond a reasonable doubt, and I accordingly find him guilty of the charge as amended. Dated at Melfort, Saskatchewan on April 18, 2000. B. D. Halderman, P. C. J.
The accused was charged with uttering threats to his 77 year old mother to cause death to her and his brothers contrary to s.264.1 of the Criminal Code. HELD: The accused was found guilty. 1)The words spoken by the accused were clearly meant to be taken seriously and implied menace to the listeners. The accused's evidence was disbelieved. His constructed story did not 'hang together'.  2) In a non-jury trial there is ordinarily no need for defence to formally make a Corbett application, requesting an order excluding evidence of convictions whose prejudicial effect outweighs their probative value. The judge must not infer from the record that the accused has a propensity to commit criminal offences. Given the age of the record and other factors considered including his present work and family life, it was concluded that all of the prior convictions should be disregarded as they relate to the accused's credibility. The only conclusion drawn was that the accused had been familiar with the workings of the criminal justice system which was not a negative inference.