B.C. sentencing decision pits victim safety against accused’s health issue

Law360 Canada (April 23, 2026, 10:15 AM EDT) --

John L. Hill

Sending individuals with mental health issues to prison rather than to specialized treatment facilities can yield several legal, punitive and societal outcomes.

Imprisonment of persons with mental health issues is increasingly viewed as counterproductive and ethically problematic. Yet our courts tend to focus on punishment and accountability for the specific crime rather than the offender’s clinical state.

This approach serves the goal of retribution, in which the legal system prioritizes the “moral wrong” of the action over the perpetrator’s underlying health issues. An example of this tendency appears in the Feb. 19, 2026, judgment delivered by the British Columbia Court of Appeal in R. v. Kleiman, 2026 BCCA 79.

Bram Kleiman is a British Columbia woman affected by autism spectrum disorder, which led to fixation on her former partner, C.S. Restrictions were placed on her contact with C.S., which led to her pleading guilty to 24 counts of breach of probation over several months and ultimately to a penitentiary term of 32 months, reduced to four months and 21 days when enhanced credit for time in custody was applied. An 18-month probation term was also imposed.

The events underlying the March 4, 2022, and April 26, 2023, probation orders stem from Kleiman’s obsessive conduct toward C.S. after their relationship ended. Unable to accept the breakup, Kleiman engaged in ongoing harassment. She first pleaded guilty to criminal harassment in March 2022 and was ordered to have no contact with C.S. She breached that order almost immediately. In April 2023, she pleaded guilty to multiple further breaches and received a 17-month custodial sentence, followed by probation with renewed no-contact terms. Within days, she again sought out and contacted C.S., resulting in additional convictions and, in November 2023, a further custodial sentence followed by probation.

After her May 2024 release, Kleiman resumed contact with C.S. the very next day and continued over several months, committing eight breaches that led to 24 counts. These included repeated phone calls and emails expressing love and veiled threats, using third parties to communicate, deceiving institutional staff to facilitate contact, and repeatedly calling C.S. from custody using inmate and guard phones.

At sentencing, the Crown proposed a structured approach with some concurrent and some consecutive sentences, ultimately seeking a total sentence of 36 months under the totality principle. The defence argued for a 27-month global sentence, emphasizing that prior incarceration had not deterred Kleiman and that strict probation conditions were unrealistic given her inability to comply with them.

The sentencing judge considered Kleiman’s personal circumstances, including her age, supportive family, and significant cognitive and social impairments linked to autism, which reduced her moral blameworthiness but also contributed to her persistent behaviour. While acknowledging that deterrence and rehabilitation were limited in effectiveness, the judge found that protecting C.S. was the paramount concern. Aggravating factors included Kleiman’s extensive history of similar breaches and the severe impact on C.S., while mitigating factors included her guilty pleas, mental condition and harsh presentence custody.

The judge imposed a total sentence of 32 months’ imprisonment (18 months for the first group of counts and 14 months consecutive for the remaining counts), reduced to just over four and a half months after credit for time served, followed by 18 months’ probation with strict no-contact conditions. Despite concerns that these conditions might set Kleiman up for failure, the judge found them necessary to protect C.S.

Kleiman, who was self-represented, appealed her sentence on multiple grounds, alleging errors in the sentencing process, the sentence’s legality and length, and the judge’s treatment of evidence and legal principles.

The appellate court restated her arguments as including alleged flaws in a “restorative justice” process; a claimed agreement by the Crown to limit the total sentence; the assertion that the sentence was illegal under the Criminal Code; the assertion that the sentence was excessive and duplicative; failure to apply the Kienapple principle (R. v. Kienapple, [1975] 1 S.C.R. 729); disregard for medical evidence and rehabilitation; improper reliance on an aggravating factor relating to the victim’s impact; and an error in calculating presentence custody credit.

The court emphasized that sentencing is highly discretionary and that appellate intervention is limited to cases of legal error affecting the sentence or to cases where the sentence is demonstrably unfit (R. v. Lacasse, 2015 SCC 64, R. v. Friesen, 2020 SCC 9 and R. v. Sheppard, 2025 SCC 29). It found no such error.

Addressing each ground:

The “restorative justice” complaint failed because the process used was explained in advance, did not require direct interaction and could not compel the victim’s participation. The record showed Kleiman was able to hear and participate.

There was no evidence that the Crown had agreed to cap the total sentence at 18 months; rather, it sought jail time plus an 18-month probation term.

The sentence was not illegal. Probation can follow custodial terms so long as each count is within statutory limits, and the effective custodial term after credit is well under two years.

The sentence was not excessive. Although one component exceeded the Crown’s suggestion, the total sentence was lower than what the Crown proposed, and the judge reasonably accounted for time spent in segregation.

The Kienapple argument was not properly raised, as Kleiman did not appeal her convictions and the issue had not been argued at trial; in any event, concurrent sentences were imposed.

The judge did consider medical evidence and rehabilitation but reasonably found rehabilitation to be a limited prospect in light of Kleiman’s lack of insight.

The finding of significant impact on the victim was supported by the victim impact statement and properly treated as an aggravating factor.

There was no identifiable error in calculating enhanced credit for presentence custody.

The court also upheld the 18-month probation order as a valid exercise of discretion, balancing rehabilitation with the need to protect the victim.

In conclusion, the court found no error in principle and no basis to vary the sentence. Leave to appeal was granted, but the appeal was dismissed.

The British Columbia Appeal Court favoured an approach that effectively removes a person from society for a set period, theoretically reducing the immediate risk to the public in general and to C.S. in particular. However, research indicates that this is often a temporary “churning” of individuals through the correctional system. Untreated mental health issues frequently lead to reoffending and to higher recidivism rates compared to non-mentally ill inmates.

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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