R. v. Kleiman

2026 BCCA 79 R. v. Kleiman COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Kleiman, 2026 BCCA 79 Date: 20260219 Docket: CA51233 Between: Rex Respondent And Bram Kleiman Appellant Restriction on publication: A publication ban has been imposed under s. 486.5 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a victim or witness, referred to in this judgment as C.S. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Madam Justice DeWitt-Van Oosten The Honourable Justice Warren The Honourable Justice MacNaughton On appeal from: An order of the Provincial Court of British Columbia, dated November 19, 2025 (sentence) (R. v. Kleiman, Port Coquitlam Docket 108313-7-BC). Oral Reasons for Judgment The Appellant, appearing in person (via videoconference): B. Kleiman Counsel for the Respondent: S.E. Elliott, K.C. Place and Date of Hearing: Vancouver, British Columbia February 17, 2026 Place and Date of Judgment: Vancouver, British Columbia February 19, 2026 Summary: The appellant seeks leave to appeal, and if granted, appeals the sentence imposed following guilty pleas on 24 counts of breach of probation after repeatedly contacting a person with whom the appellant previously had a romantic relationship, in violation of previous probation orders. The appellant is affected by autism spectrum disorder which manifests as an obsessive attachment to particular individuals. The appellant contends the sentencing judge made several errors in imposing an effective sentence of 32 months' imprisonment, which was reduced to four months and 21 days after the application of enhanced credit for time spent in custody prior to sentencing, plus 18 months' probation. HELD: Leave to appeal granted but appeal dismissed. The appellant has not demonstrated an error in principle that impacted the sentence. Applying a deferential standard of review, there is no basis for appellate interference. WARREN J.A.: Introduction [1] The appellant, Bram Kleiman, seeks leave to appeal and if granted leave, appeals from sentence following guilty pleas on 24 counts of breach of probation. The Crown does not oppose the application for leave but says the sentence appeal should be dismissed. [2] The sentence under appeal is an effective sentence of 32 months' imprisonment, which was reduced to four months and 21 days after the application of enhanced credit for time spent in custody prior to sentencing, plus 18 months' probation. [3] Each of the offences involved Ms. Kleiman contacting C.S., who was the subject of protective conditions in the probation orders in question. [4] The appellant previously identified as male and now identifies as female. She is significantly affected by autism spectrum disorder which, for several years now, has manifested through a fixation on C.S. and resulting compulsive behavior in relation to C.S. [5] On March 4, 2022, following a guilty plea to criminal harassment, Ms. Kleiman received a sentence that included a probation order requiring her to have no contact with C.S. Ms. Kleiman breached the no contact provision almost immediately. [6] On April 26, 2023, charges in relation to those breaches were resolved by way of guilty pleas to four counts of breaching a probation order and release order. The Court imposed a sentence of 17 months' imprisonment (equivalent to the amount of credit given for time already spent in custody) and a probation order prohibiting Ms. Kleiman from contacting C.S. [7] Again, Ms. Kleiman breached the no contact provision almost immediately, leading to charges being laid in May 2023. On November 2, 2023, following conviction on three counts of breach of probation, Ms. Kleiman was sentenced to 18 months' imprisonment (reduced to nine months to account for time spent in custody prior to sentence) plus three years' probation including terms prohibiting contact with C.S. Ms. Kleiman's appeal of that sentence was dismissed on March 28, 2024: R. v. Kleiman, 2024 BCCA 130. [8] Ms. Kleiman was released from custody on May 12, 2024. The three-year term of probation ordered on November 2, 2023 commenced upon her release and will come to an end in May 2027. [9] On May 13, 2024, the day after Ms. Kleiman was released from custody, she contacted C.S. in breach of the probation orders imposed on March 4, 2022, April 26, 2023, and November 2, 2023. Despite being arrested later that day and detained in custody, Ms. Kleiman continued to breach the no contact provisions in the three probation orders, ultimately resulting in the 24 counts leading to the sentence under appeal. Background [10] The events leading up to the March 4, 2022 and April 26, 2023 probation orders were described by Justice Groberman, writing for the Court, on the appeal of the sentence imposed on Ms. Kleiman on November 2, 2023. [11] In summary, the appellant (who then identified as male) was involved in a romantic relationship with C.S. C.S. found the appellant's obsessive behaviour intolerable and broke off the relationship. Ms. Kleiman has been unable to accept that the relationship is over and has since engaged in a campaign of harassment of C.S. [12] As mentioned, on March 4, 2022, Ms. Kleiman pleaded guilty to criminal harassment and received a sentence that included a probation order requiring her to have no contact with C.S. She breached the no contact order almost immediately. On April 26, 2023, she pleaded guilty to four counts of breaching a probation order and received an effective sentence of 17 months' imprisonment plus probation, including another provision prohibiting her from contacting C.S. [13] On May 3, 2023, just over a week after that sentence was imposed, Ms. Kleiman deliberately attended at the parking lot of C.S.'s workplace. When C.S. emerged, she noticed Ms. Kleiman waiting and ran to her vehicle. Ms. Kleiman also ran toward the vehicle. C.S. got there first and was able to get in. C.S. called 911. Ms. Kleiman was arrested. A few days later, Ms. Kleiman attempted to contact C.S. by phone. [14] These events resulted in convictions for three counts of breach of probation. As mentioned, on November 2, 2023 Ms. Kleiman was sentenced to 18 months' imprisonment (reduced to nine months to account for time spent in pre-sentence custody) plus three years' probation including terms prohibiting contact with C.S. [15] As mentioned, Ms. Kleiman was released from custody on May 12, 2024 and she contacted C.S. again, the very next day. [16] Between May 13, 2024 and December 3, 2024, there were eight different breaches of the three probation orders in place, resulting in the 24 counts in issue. The details of those breaches are as follows: (i) Counts 1-9: On May 13, 2024, Ms. Kleiman phoned C.S. who told her she did not want any contact whatsoever. Immediately after the call, Ms. Kleiman sent C.S. two emails. Both emails expressed love for C.S. and a desire to have contact with her. One email suggested that Ms. Kleiman had access to nude photos of C.S. Ms. Kleiman was arrested later that day. (ii) Counts 10-12: On August 3-4, 2024, while in custody, Ms. Kleiman used an inmate phone to call and co-opt a female escort to text C.S. that it was Ms. Kleiman's birthday and she really misses and loves C.S. (iii) Counts 13-15: On August 17, 2024, Ms. Kleiman asked her caseworker in custody to facilitate a phone call to her sick grandmother and a lawyer because she was purportedly having difficulty using the inmate phones. Ms. Kleiman gave the caseworker C.S.'s number and spoke to C.S. before the caseworker realized what was happening and ended the call. (iv) Counts 16-18: From October 30 to November 4, 2024, while in custody at the Forensic Psychiatric Hospital, Ms. Kleiman phoned C.S. approximately 22 times. She left voice messages that included a request to visit her and statements that she had dreams of C.S., she was willing to die for her, and her life was in C.S.'s hands. (v) Counts 19-21: On November 24, 2024, Ms. Kleiman reached over the counter at the guard station to use a guard phone to call C.S. (vi) Counts 22-24: On December 3, 2024, Ms. Kleiman again used a guard phone to call C.S. This time she jumped into the guard station to get the phone when the guard left to attend to another matter. The Sentencing Hearing [17] At sentencing, the Crown acknowledged that each of the offences was, in effect, charged in triplicate, as each breach event offended three different probation orders. As such, the Crown proposed that sentences within each triplicate be served concurrent to each other. The Crown also acknowledged that all three counts arising from the breach incident on May 13, 2024 were part of the same endeavor and the sentence for those should be served concurrent to one another. The Crown submitted that the breaches resulting in Counts 19 to 21 and Counts 22 to 24 were sufficiently close in time and method that the sentences imposed for those should be concurrent to each other. With respect to the remaining counts, the Crown submitted they should be sentenced consecutively. [18] Applying this approach, the Crown submitted a cumulative seven-year term of imprisonment would result but acknowledged that would be unduly harsh and disproportionate. After accounting for the totality principle, the Crown sought a total sentence of 36 months' imprisonment less credit for the time spent in custody prior to sentence, to be followed by 18 months' probation. The Crown proposed the following breakdown of the sentence between the counts: Counts 1-9: 24 months, concurrent; and Counts 10-24: 12 months concurrent, but consecutive to the 24 months for Counts 1-9. [19] At the time the sentencing submissions were made, Ms. Kleiman had spent 18 months in custody prior to sentence, which translated to 27 months' credit, leaving nine months remaining to be served in custody on the Crown's proposed sentence. [20] After the Crown completed submissions, C.S. delivered a victim impact statement in which she described the constant anxiety and fear caused by Ms. Kleiman's unrelenting behaviour and the serious toll it has taken on her mental health, sense of safety, and ability to live a normal life. [21] Counsel for Ms. Kleiman then made her submissions. The defence position was that a sentence of 27 months on all counts was appropriate. Among other things, counsel pointed out that a custodial sentence had not prevented Ms. Kleiman from continuing to contact C.S. and argued that a probation order containing protective conditions for C.S. would set Ms. Kleiman up for failure as she is simply unable to comply with such conditions. [22] On Ms. Kleiman's behalf, her counsel submitted letters of support, including letters from Ms. Kleiman's treating psychologists. [23] After defence counsel completed her submissions, Ms. Kleiman addressed the Court. She essentially delivered a statement to C.S., who was listening online but off camera. The statement was lengthy. In it, Ms. Kleiman explained her desire to continue a relationship with C.S. and demonstrated that she continues to lack insight into the harm her actions have caused C.S. The Reasons for Sentence [24] The judge delivered comprehensive reasons setting out the factual background leading to the most recent offences. He summarized C.S.'s victim impact statement. He then turned to Ms. Kleiman's circumstances. [25] The judge noted Ms. Kleiman's age (39 years old) and that she has a supportive mother and stepfather. He acknowledged the challenges Ms. Kleiman has faced as a result of her disability and that she has been working with at least two psychologists for a number of years. He quoted from letters those psychologists submitted which opined that, despite Ms. Kleiman's intelligence and high cognitive abilities, she is significantly impaired in her social perception and is unaware of how her actions impact others. [26] The judge found that Ms. Kleiman's offending was driven by her disability and that her behaviour towards C.S. was unlikely to change. The judge noted that Ms. Kleiman does not wish any harm to C.S. but found that she has no insight into the fact that her behaviour is itself harmful to C.S. [27] The judge reminded himself of the applicable sentencing principles. Citing R. v. Badhesa, 2019 BCCA 70, he instructed himself that while denunciation and deterrence are important objectives, where mental illness plays a central role in the offending, those objectives should be given less weight in favour of treatment and protection of the community. He concluded that specific deterrence may not be realistic for Ms. Kleiman and that rehabilitation is important but treatment has not been successful to date. Ultimately, he considered that the protection of C.S. was the paramount sentencing concern in this case. [28] The judge then identified the mitigating and aggravating circumstances. He found the guilty pleas to be mitigating and Ms. Kleiman's autism to reduce her moral blameworthiness. He acknowledged that a considerable portion of the pre-sentence time Ms. Kleiman spent in custody was in segregation or a modified version of segregation, both of which are harsher forms of incarceration, and that this too was mitigating. The judge found Ms. Kleiman's criminal record, which includes many prior breach convictions, to be aggravating. Finally, the very significant impact of the breaches on C.S. was noted to be a statutory aggravating factor under s. 718.2(a)(iii.1) of the Criminal Code, R.S.C. 1985, c. C-46. [29] The judge agreed with the Crown's submissions concerning the question of which sentences should be concurrent and which should be consecutive. He then turned to the totality principle. He commented upon the other sentences Ms. Kleiman had received for breaches involving contact with C.S., noting that on April 26, 2023, Ms. Kleiman received a sentence that represented an effective 17-month custodial sentence and on November 2, 2023, she received an effective 18-month custodial sentence. [30] The judge balanced the mitigating and aggravating factors and found a fit total sentence to be 32 months' imprisonment, broken down as follows: · 18 months on Counts 1-9, concurrent to each other; and · 14 months on Counts 10-24, concurrent to one another, but consecutive to the 18 months Counts 1-9. [31] After applying enhanced credit for time spent in custody before sentencing, the judge calculated the remaining time to be served as four months and 21 days. [32] The judge granted an 18-month probation order to be served following release from custody, including protective conditions for C.S. He addressed the argument that protective conditions would set Ms. Kleiman up for failure, quoting from Justice Groberman's reasons on the appeal of Ms. Kleiman's previous sentencing at paras. 43-44. In that passage, Justice Groberman explained that where the public cannot be adequately protected without making an order the offender finds difficult to follow, there may be little alternative, and in this case, leaving Ms. Kleiman free to harass C.S. would not be appropriate. Issues on Appeal and Standard of Review [33] Ms. Kleiman was self-represented on this appeal. In her notice of appeal and her statement on sentence appeal, she lists several alleged errors on the part of the sentencing judge. The substance of some of those is unclear. She raised some additional matters during the hearing of the appeal. I would recharacterize the grounds of appeal as follows: 1. The judge erred in the "administration of restorative justice" by neglecting to work with Ms. Kleiman and C.S. to develop a "healing plan" and workable probation conditions and the process was inadequate because Ms. Kleiman could not hear what was being said and does not think those present could hear what she was saying when she made her own statement. 2. Prior to the sentencing hearing, the Crown agreed to seek a sentence that would not exceed a further 18 months in duration, including any additional jail time and any term of probation. This would have aligned the expiry of the new sentence with the expiry of the November 2, 2023 probation order in May 2027. 3. The sentence imposed is "illegal" being contrary to s. 731(1)(b) of the Criminal Code, as the combined sentence of imprisonment exceeds two years. 4. The sentence imposed is excessive--specifically: (a) the sentence of 14 months imposed for Counts 10 to 24 exceeds the Crown's proposed sentence of 12 months for those counts; and (b) the sentence of 14 months for Counts 10 to 24 amounts to duplicative punishment as Ms. Kleiman served over 250 days in solidary confinement as a result of the conduct underlying those counts. 5. The judge erred in failing to apply the principle from Kienapple. 6. The judge ignored medical evidence to the effect that Ms. Kleiman was unable to receive treatment for her mental health issues while in custody and gave no weight to the objective of rehabilitation. 7. The judge erred in characterising the offences as having a "very significant impact" on C.S., thus engaging the statutory aggravating factor in s. 718.2(a)(iii.1). 8. The judge erred in his calculation of pre-sentence credit. [34] Sentencing is an inherently individualised exercise of discretion. The standard of review on a sentence appeal is highly deferential. This Court can intervene to vary a sentence only if the sentencing judge made an error in principle that impacted the sentence or the sentence is demonstrably unfit: R. v. Lacasse, 2015 SCC 64 at para. 11; R. v. Friesen, 2020 SCC 9 at para. 26; R. v. Sheppard, 2025 SCC 29 at paras. 38-39. [35] An error in principle may include "an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor": Friesen at para. 26; Sheppard at para. 39. However, an appellate court may not interfere with a sentence simply because it would have weighed the relevant factors differently. An error in principle in the weighing of relevant factors will be established only if the sentencing judge exercised their discretion unreasonably by not giving enough weight to one relevant factor or overemphasizing another relevant factor: Lacasse at para. 49; Friesen at para. 26. Discussion [36] I am not persuaded that the judge made any error in principle that impacted the sentence or that the sentence is demonstrably unfit. I will deal with each of the alleged errors identified in turn. [37] Ms. Kleiman argues that the judge erred in the "administration of restorative justice" by neglecting to work with her and C.S. to develop a "healing plan" and the process was inadequate because Ms. Kleiman could not hear what was being said and does not think those present could hear what she was saying when she made her own statement. [38] At the outset of submissions, Crown counsel addressed the concept of a "restorative justice style sentencing". He explained that he and defence counsel had discussed this concept and he proposed that C.S. deliver her victim impact statement personally, at the completion of the Crown's submissions, and that Ms. Kleiman would have the opportunity to speak following defence counsel's submissions. Crown counsel clarified that this was to be an opportunity for everyone to speak their mind but there was not going to be contact between Ms. Kleiman and C.S. and it was not suggested that the process would involve a conversation between them. Ms. Kleiman's counsel did not object to that description of the proposed process or propose any alternative. The hearing proceeded as Crown counsel had proposed. Certainly, the judge had no ability to compel C.S. to participate in a restorative justice process or healing plan and C.S. made clear in her victim impact statement that she does not want any contact with Ms. Kleiman. [39] The transcript indicates that at times Ms. Kleiman said she was having difficulty hearing. It appears this was due to her position in the courtroom behind a pane of glass and the situation was addressed by Ms. Kleiman standing next to the grate or slot in the glass. While submissions were being made, Ms. Kleiman occasionally interjected with her own comments, which indicates she could hear what was being said. Ms. Kleiman was given the opportunity to make a statement, during which she addressed C.S. directly. She asked for confirmation that C.S. could hear her and the judge provided that confirmation. No error in principle has been identified in relation to the process followed. [40] Ms. Kleiman argues that the Crown agreed to seek a sentence that would not exceed a further 18 months in duration including any additional jail time and any term of probation, to align the expiry of the new sentence with the expiry of the November 2, 2023 probation order in May 2027. However, Crown counsel made clear in his submissions that the Crown was seeking additional jail time, plus 18 months' probation, and advised that the Crown had agreed to propose the 18-month term of probation instead of 36 months. Defence counsel did not indicate that this position was inconsistent with an agreement reached during plea negotiations. [41] Ms. Kleiman argues that the cumulative sentence imposed is "illegal", being contrary to s. 731(1)(b) of the Criminal Code. Specifically, she says it was not open to the judge to attach probation to a 32-month sentence of imprisonment. This is simply incorrect. Section 731(1)(b) provides that "in addition to fining or sentencing [an] offender to imprisonment for a term not exceeding two years, [a court may] direct that the offender comply with the conditions prescribed in a probation order". None of the effective custodial sentences imposed per count exceeded two years. More importantly, and in any event, it is the actual term of imprisonment imposed after giving credit for time spent in pre-sentence custody that is operative for purposes of s. 731(1)(b): R. v. Mathieu, 2008 SCC 21 at para. 19. The actual term of imprisonment imposed in this case, considered cumulatively, was four months and 21 days. [42] Ms. Kleiman argues that the sentence imposed is excessive, and specifically, that the sentence imposed for Counts 10 through 24 exceeds the Crown's proposed sentence of 12 months for those counts and amounts to duplicative punishment as she spent over 250 days in solidary confinement as a result of the conduct underlying those counts. First, no error in principle arises from the manner in which the judge allocated the total custodial sentence among the various counts. The total custodial sentence of 32 months is lower than the total custodial sentence of 36 months proposed by the Crown. The judge was entitled to allocate the total sentence as he saw fit. Second, the judge appropriately accounted for the time Ms. Kleiman spent in segregation as a mitigating collateral consequence. I am not persuaded that he did not give sufficient weight to that mitigating factor. [43] Ms. Kleiman argues the judge erred in failing to apply the principle from Kienapple, a reference to the Supreme Court of Canada's decision in R. v. Kienapple, [1975] 1 S.C.R. 729. This principle precludes multiple convictions for offences that have both a factual and legal nexus. Ms. Kleiman has raised this issue for the first time in the appeal from sentence. As I have said, she was represented by a lawyer in the Provincial Court. Guilty pleas were voluntarily entered with the assistance of that lawyer to 24 separate counts of breach of probation after what appear to have been extensive discussions between the Crown and the defence about how best to proceed, including an agreed statement of facts. No one sought the application of Kienapple at the sentencing hearing nor did the judge consider the issue. [44] There is case law in other jurisdictions suggesting that the Kienapple principle has no application where breaches of court orders, although factually connected, involve different orders imposed at different times. (See, for example, R. v. F. (C.G.), 2003 NSCA 136.) However, I do not consider it necessary to decide that issue in this case and decline to do so. A serious question arises as to whether the Kienapple principle is properly raised on an appeal from sentence as opposed to an appeal from conviction (Ms. Kleiman has not appealed her convictions). Also, because this issue was not raised or addressed below, this Court does not have the benefit of the lower Court's analysis on the applicability of Kienapple or any relevant findings. On appeal, neither party has developed substantive submissions specific to Kienapple, or provided this Court with an in-depth canvassing of relevant and cross‑jurisdictional jurisprudence. In my view, the applicability of Kienapple in a case involving multiple breaches of probation arising from the same unlawful act is more appropriately left to another case in which the issue is properly raised and developed at first instance. In any event, I note that in this case, the judge imposed concurrent sentences for each set of breaches arising from the same factual delict. [45] Ms. Kleiman argues the judge ignored medical evidence to the effect that she was unable to receive treatment for her mental health issues while in custody and gave no weight to the objective of rehabilitation. This is simply incorrect. The judge referred to the medical evidence and noted that treatment had not been successful, despite the support of family and resources in the community. He identified rehabilitation as an important objective but in the circumstances, concluded rehabilitation was not a realistic goal, particularly given Ms. Kleiman's lack of insight into her conduct and the harm it has caused C.S. I can discern no error in principle arising from the weight given to the objective of rehabilitation. [46] Ms. Kleiman argues the judge erred in characterising the offences as having a "very significant impact" on C.S., thus engaging the statutory aggravating factor in s. 718.2(a)(iii.1). This argument cannot succeed. C.S.'s victim impact statement is in the record. She plainly describes the very significant negative impact that Ms. Kleiman's conduct has had on her. She specifically spoke about the repeated breaches of orders, even while Ms. Kleiman was in custody. She described living in constant anxiety, never knowing when Ms. Kleiman would try to reach out to her again, and the serious toll this has taken on her mental health, sense of safety, and ability to live a normal life. I can discern no error in principle arising from the judge's characterisation of the impact of the offences on C.S. or his conclusion that the impact engaged the statutory aggravating factor. [47] Ms. Kleiman argues that the judge erred in his calculation of pre-sentence credit but the nature of the error remains elusive. In her statement on sentence there is a reference that reads: "Para 40 calculates days wrong as 12-19: 7 days". I cannot make sense of that. Ms. Kleiman was in custody for 18 months and six days between May 13, 2024 when she was arrested and the imposition of sentence on November 19, 2025. The judge gave her credit for that time at an enhanced 1.5:1 rate, which translates to credit of 27 months and nine days. Again, I can discern no error in principle in the judge's application of credit for time spent in custody prior to sentencing. [48] The probation order is for a term of 18 months and it includes several conditions, including the protective conditions to benefit C.S. and a condition requiring Ms. Kleiman to participate in counselling as directed by her probation officer. There is no question that the probation order is a serious restriction of Ms. Kleiman's liberty. However, courts have broad discretion in imposing probation conditions. As Justice Groberman noted in his reasons on Ms. Kleiman's last sentence appeal, probation orders are typically aimed at rehabilitation of the offender but protection of the public remains a proper consideration: see R. v. Duguay, 2019 BCCA 53, citing R. v. Proulx, 2000 SCC 5 at para. 32. [49] It appears that Ms. Kleiman's autism spectrum disorder remains intractable. The sentencing judge did note, however, that Ms. Kleiman's psychologist suggests some guarded optimism for treatment. It is certainly hoped that while subject to the conditions of the probation order Ms. Kleiman will recognise the importance of prioritizing her mental health, and in doing so, will gain some insight into her offending and its impact on C.S. In the meantime, the judge was correct to consider that protection of C.S. was a paramount consideration in granting a probation order. [50] As I have indicated, the sentencing judge's reasons are comprehensive. He took great care in imposing a sentence that balanced Ms. Kleiman's reduced moral blameworthiness occasioned by her autism spectrum disorder with her record for the same or similar offences and the very significant impact of these offences on C.S. There is no basis upon which this Court could interfere with his exercise of discretion. Disposition [51] For these reasons, I would grant Ms. Kleiman leave to appeal the sentence but dismiss the appeal. [52] DEWITT-VAN OOSTEN J.A.: I agree. [53] MACNAUGHTON J.A.: I agree. [54] DEWITT-VAN OOSTEN J.A.: Accordingly, leave to appeal from sentence is granted. The appeal from sentence is dismissed. "The Honourable Justice Warren"