Downtown shooter loses bid for more freedoms

The man found not guilty of an attempted murder in downtown Sudbury in 2010 because of mental disorder has lost his fight to have his restrictions eased.

A decision handed down earlier this month by the Court of Appeal for Ontario upheld restrictions placed on Alex Klem, 71. Klem was found not guilty in 2013 by reason of mental disorder for the shooting at a clothing store downtown. The male victim was left with serious long-term injuries. After the shooting, he drove to a business on The Kingsway, where he was arrested. The sisters who own the business have given victim impact statements in the case, as has the shooting victim.

As a result of his mental condition, Klem “had paranoid delusions and experienced an episode of prolonged psychosis,” the court transcripts say. “He unsuccessfully sought medical help as his disease progressed. At the time of the index offences, he believed his former employer conspired with a number of people, including the man whom he shot and one of the employees at the shop that he sought to enter, to kill the appellant.”

He was first treated at the North Bay Regional Health Centre, before being moved in August 2014 to Ontario Shores Centre for Mental Health Sciences in Whitby when his treatment reached an “impasse.” Klem's treatment team in Whitby apply for the changes in his restrictions because they said it limited him too much at he was at “at the ceiling of his privileges.”

In a joint submission with the Crown to the Ontario Review Board, Klem sought:

-Hospital and grounds privileges be extended to permit him to access these locations with indirect supervision (as opposed to in the presence of a staff member or approved person only);

-The privilege of travelling within 150 kilometres of Ontario Shores, with a staff member, an approved person, or indirectly supervised;

-Permission to reside in approved accommodation in Whitby; and,

-Permission to travel to Sudbury with the consent and prior approval of the person in charge of Ontario Shores, to permit him to attend the funeral of any member of his wife’s family who lives in Sudbury, should the need arise.

It was a joint submission between Klem's legal team and the Whitby treatment facility, and the Crown “adopted the joint position of the hospital and the appellant,” the transcripts say.

But the review board rejected the idea of allowing him to travel within 150 kilometres of the facility, and of allowing him to live in Whitby. He was allowed, however, extended freedoms on hospital grounds and to travel to Sudbury for family funerals with the consent of the head of Ontario Shores.

Klem's legal team appealed that decision, arguing that it was a joint submission so it should have been fully adopted, that the board should have given his lawyers notice the joint submission wasn't going to be accepted, and that the board shouldn't have allowed victim impact statements because they contained information that wouldn't have been allowed at a trial.

But the judge hearing the appeal rejected all those arguments. First, he ruled that Klem and his legal team should not have expected the recommendations to be accepted without changes, especially since they knew three victims in the case would be giving victim impact statements.

“They uniformly opposed the extension of privileges,” the judge wrote. “It was not likely that the board would simply accept a number of contested privileges.”

Plus the board of review had just five months earlier concluded that Klem still presented “a significant threat,” and not much had changed since that ruling.

Since it wasn't a joint submission, no notice was required that a joint submission wasn't going to be accepted, the judge ruled.

And while the victim impact statements contained inadmissible information, the judge ruled that those statements didn't affect the ruling.

“The sole reference to the victim impact statements in the board’s reasons was to fairly acknowledge that 'the events of the index offence have a significant impact on the lives of each of the victims,' ” the judge wrote. “This description of the Board’s use of the statements conforms with what is permissible …

“In my view, the board had discretion to proceed as it did. The board can reasonably be expected to know the relevant law and take it into account.”