Court File and Parties
Court File No.: CR-16-40000041 Date: 2016-09-21 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – C.M.L., Defendant
Counsel: David Wright, for the Crown C.M.L., in person Tom LeRoy and Shushanna Harris, as amicus curiae
Heard: January 4, 5, 7, 11, and 12, 2016
Before: Molloy J.
Reasons for Decision (Pre-Trial and Mid-Trial Rulings)
A. Introduction
[1] The accused was charged with concealing and detaining her daughter in China in contravention of a Canadian custody order. She was not represented by counsel and was extremely disruptive throughout the trial. Ultimately, she was convicted by the jury. My decision on sentencing is the subject of separate Reasons. On occasions prior to trial, issues were raised as to Ms. C.M.L.’s state of mental health. She was found fit to stand trial at the provincial court level. Throughout the trial, I had no concerns about her fitness, notwithstanding her abusive conduct. The issue of fitness was raised again by the Crown following trial and before sentencing. I found Ms. L. to be fit. My reasons for doing so are set out in a separate decision released at the same time as this one. [1]
[2] These Reasons deal with: (a) the basis for excluding Ms. L. from the courtroom from time to time; (b) the role of amicus curiae; (c) the right of Ms. L. to make full answer and defence and to have a fair trial; (d) the basis for my ruling on amendments to the indictment; and (e) the basis for my rulings on certain questions of law contained in the jury charge.
B. Factual Background
Family Court Proceedings
[3] In December 2010, Ms. L. travelled to China with her daughter M, who was at that time seven years old. Ms. L. is originally from China and her parents and other relatives still live there. Ms. L. and the child’s father, Mr. S.R., had previously lived together in a common law relationship, but had been separated for some time. During the separation, Mr. R. continued to be actively involved in his daughter’s life. On February 2, 2011, Ms. L. returned to Canada without her daughter. When Mr. R. found out about this on February 4, 2011, he reported the matter to the police. Ms. L. thereupon accused Mr. R. of assaulting her and threatening to kill both her and her daughter. As a result, Mr. R. was charged with multiple criminal offences, and released on bail.
[4] On February 11, 2011, Ms. L. commenced proceedings in the Ontario Court of Justice (“Family Court”) seeking custody of her daughter, M. Pleadings were exchanged between the parties. Ms. L. filed an affidavit in which she swore that her daughter was living in China with her maternal grandparents and uncle. She sought an order for renewal of M’s visa and passport without requiring Mr. R.’s signature.
[5] On April 11, 2011, Justice Geraldine Waldman made an order in the Family Court proceedings, in Ms. L.’s presence, directing Ms. L. to return M to Ontario by April 30, 2011 and made an interim order that M would live with Ms. L. in Ontario, with no access by the father pending further order of the court.
[6] Ms. L. did not return M to Ontario by April 30, 2011. Mr. R. filed an application in the Family Court seeking to have Ms. L. cited for contempt for breaching the April 11, 2011 order. Ms. L. thereupon went to the police on May 17, 2011 and reported numerous other acts of violence against her by Mr. R., including sexual assault, as a result of which he was again arrested and charged with additional offences.
[7] On June 3, 2011, the contempt application proceeded before Justice Waldman. Ms. L. was present in court for this hearing. Justice Waldman found Ms. L. to be in contempt of the April 11, 2011 order and sentenced her to 60 days in jail, to commence 51 days from the date of the order (June 3, 2011), with a further provision that if M was returned to Ontario before the sentence was to commence, the Court would reconsider whether jail was still required. The matter was then adjourned to July 21, 2011.
[8] Ms. L. did not attend in court on July 21, 2011 and she did not return M to Ontario. On November 8, 2011, Justice Waldman made an order granting sole custody of M to her father, Mr. R.
[9] The preliminary hearing for all criminal charges against Mr. R. was scheduled to commence on March 12, 2012. Ms. L., who was the complainant and sole witness on all the charges, failed to attend. The Crown stayed all the charges.
[10] In October 2013, Ms. L. was arrested in Toronto and commenced serving her sentence for contempt of court imposed on June 3, 2011 (for breaching the order of April 11, 2011). Although the original sentence was for 60 days, Waldman J. reduced the sentence to 15 days.
[11] The Family Court proceedings continued on December 18, 2013. On that occasion, Ms. L. was present in court and represented by counsel. She entered into an agreement with Mr. R., which was incorporated into a consent order dated December 18, 2013. Under the agreement and order, Ms. L. was to make all reasonable efforts to have M returned to Toronto by January 20, 2014, and was directed to provide certain information about M’s location in China by December 19, 2013 (including the legal names of M’s caregivers in China, the municipal address of M’s residence, the name of her school, a telephone number where M could be reached, and other contact information). Ms. L. provided the names of her relatives and some, but not all, of the other required information. Apart from the names, the information provided proved to be incorrect. M was not returned to Ontario.
[12] On January 30, 2014, Justice Waldman found Ms. L. to be in contempt of the court’s orders dated June 3, 2011 and November 8, 2011, and sentenced her to a further 45 days’ incarceration. On April 4, 2014, a further finding of contempt was made and Ms. L. was sentenced to another 60 days. Still she refused to return the child or provide accurate information as to her whereabouts.
[13] Mr. R. has not seen or heard from his daughter since the fall of 2010, when she was seven years old. She would now be nearly 13 years old. Attempts to locate her through Canadian police forces and the Canadian embassy in China have been unsuccessful. There has been no verification that she is in China, nor that she is alive.
Procedural History of Criminal Charges against Ms. L.
[14] On the original indictment, Ms. L. was charged with a number of criminal offences in relation to M’s disappearance: (1) between November 8, 2011 and December 18, 2013, concealing, detaining, receiving M (her own child, under the age of 14) in contravention of the custody provisions of a custody order, with the intent to deprive M’s father, in particular by failing to return M to Ontario, contrary to s. 282(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46; (2) between April 11, 2011 and May 1, 2011, disobeying a court order to return M to Ontario by April 30, 2011; (3) between June 3, 2011 and July 21, 2011, disobeying a court order to return M to Ontario within 45 days of June 3, 2011; and (4) between December 18, 2013 and January 21, 2014, disobeying a court order to return M to Ontario on or before January 20, 2014.
[15] Count 1 alleged a contravention of s. 282(1)(a) of the Criminal Code, which states:
282 (1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, in contravention of the custody provisions of a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding ten years…
[16] Counts 2, 3 and 4 alleged a contravention of s. 127 of the Criminal Code, which states:
127 (1) Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.
[17] Ms. L. was denied bail and has been in custody since the date of her arrest on October 28, 2013.
[18] Initially, Ms. L. was represented by counsel in respect of these charges. However, between January 2014 and June 2014, she dismissed two successive lawyers, both of whom had been funded by Legal Aid Ontario (“Legal Aid”). Her request for funding to hire a third lawyer was refused by Legal Aid and her appeal from the decision was dismissed. The preliminary hearing was repeatedly adjourned during this time, to enable Ms. L. to get counsel. There were also ongoing issues of disclosure requested by Ms. L.
[19] In October 2014, the Crown gave notice of its request for a fitness hearing, but withdrew that application on October 27, 2014 when it was apparent that Ms. L. was clearly giving instructions to duty counsel in attendance at the request of the Ontario Court of Justice judge who was case managing the matter, Justice Fergus C. ODonnell. In October 2014, ODonnell J. appointed Mr. Tom LeRoy to act as amicus curiae. A preliminary hearing date was set for February 24-25, 2015.
[20] Through January and February 2015, Ms. L. made further and repeated disclosure requests, and ultimately asked for the adjournment of her preliminary hearing so she could obtain that disclosure. On February 24, 2015, Justice ODonnell, on his own motion, ordered a fitness hearing, which was to proceed on April 28, 2015. This was opposed by the Crown and by Ms. L. Dr. Brian Daly of the Southwest Centre for Forensic Mental Health Care assessed Ms. L. and issued a report dated April 27, 2015, in which he stated his opinion that Ms. L. suffers from a delusional disorder that so interferes with her ability to perceive reality that she was unfit to stand trial. He recommended a 60-day treatment order, during which time Ms. L. would be treated with psychotropic medications and attend some psychotherapy.
[21] Ultimately, ODonnell J. did not accept the recommendation made by Dr. Daly and did not find Ms. L. to be unfit. However, significant time had now elapsed without the preliminary hearing having commenced. ODonnell J. invited the Crown to consider bringing a preferred indictment.
[22] On June 4, 2015, Ms. L. again appeared before Justice ODonnell. She refused to answer questions put to her directly, and persisted in making a speech about her perception that Mr. R. (M’s father) is a terrorist, claiming she was being detained illegally, and stating that anyone who was involved in the trial process against her was assisting the terrorist activities of Mr. R., including in that group, Dr. Daly. Justice ODonnell put Ms. L. to her election as to the mode of her trial. She refused to answer. Therefore, as required under the Criminal Code, Justice ODonnell deemed her to have elected a trial composed of a judge and jury. Ms. L. had not requested a preliminary inquiry. The Crown also did not request a preliminary inquiry. Therefore, the matter went directly to the Superior Court, with a first appearance date of June 25, 2015.
[23] In the Superior Court, the matter was case-managed by Justice McMahon. He conducted a judicial pre-trial on July 23, 2015 and raised the issue of a Rowbotham application, urging Ms. L. to retain counsel. The Crown was amenable to a stream-lined Rowbotham procedure, but pessimistic about Ms. L. continuing with a third lawyer, even if she was awarded the funds to retain one. At various pre-trial appearances in the Superior Court, Ms. L. persisted in making speeches about the fact that she was being illegally detained and that Mr. R. was a criminal and a terrorist, just as she had done on previous occasions in the Ontario Court of Justice. In this Court, she also stated that she would not retain counsel until full and proper disclosure had been made by the Crown. In particular, Ms. L. was seeking records of the Family Court proceedings involving the custody of M, the proceedings in the Ontario Court of Justice involving the criminal charges laid against Mr. R. at her behest, and all immigration files relating to the entry of Mr. R. and his family into Canada from Iran many years ago. McMahon J. adjourned the matter to September 8, 2015 and urged Ms. L. to retain a lawyer prior to that date. Mr. LeRoy appeared on this occasion as amicus and his appointment as such was considered. However, Justice McMahon was concerned that this might not be sufficient to ensure a fair trial given the limitations on the role of amicus in recent Supreme Court of Canada jurisprudence: see Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43 (Ontario v. C.L.A.). [2]
[24] On September 8, 2015, Ms. L. still had not attempted to retain counsel. She was advised that the government would pay for her lawyer and all she had to do was pick one. She continued to maintain that she first wanted all of the disclosure to which she believed she was entitled. The matter was adjourned to October 27, 2015. Justice McMahon directed the Crown to come to court that day with all of the disclosure material. Ms. L. was advised to retain a lawyer and to have that lawyer present in court on October 27, 2015. She was also advised that her trial would proceed on January 4, 2016.
[25] By October 27, 2015, Ms. L. still had not consulted counsel. The Crown had produced substantial disclosure, but Ms. L. maintained that she had not been provided with some of it, and also that some of the materials she had were obtained from her own counsel, rather than from the Crown. Justice McMahon adjourned the matter to October 29, 2015. He directed that on October 29, 2015 the authorities at the jail would transport to the court all of the material Ms. L. had, that the material would be reviewed by amicus in order to ensure no breach of solicitor and client privilege, and that a comparison would then be made between what the Crown claimed to have disclosed and what Ms. L. actually had, as well as any further disclosure to which Ms. L. might be entitled.
[26] On October 29, 2015, Ms. L. was present in court along with a box of documents that had been in her possession in jail relating to the case. The Crown provided a list of all the disclosure material and Mr. LeRoy, as amicus, agreed to review the material and provide a list of anything that was missing. In the course of this appearance, Ms. L. made numerous interjections that she was being illegally detained, again refused to say whether she wished to retain legal counsel, and objected to Mr. LeRoy reviewing the materials because she said she did not trust him. Ms. L. also alleged that her former spouse, Mr. R., is a terrorist and that the Crown prosecutor was conspiring with him. She asked the presiding judge to arrest the lead Crown, Mr. Wright, a theme that was to continue repeatedly at court appearances thereafter. In addition, Ms. L. complained at various times about the quality of translation being provided by the various Mandarin interpreters providing interpretation services for all of these court appearances. She alleged that the interpreters were either incompetent or were conspiring against her, and demanded that they be arrested. The matter was adjourned to November 6, 2015.
[27] On November 6, 2015, the Crown provided in court a complete catalogue of the Crown’s disclosure. Arrangements were made for the amicus to review the material Ms. L. had and compare it to the Crown’s disclosure to ensure Ms. L. had everything. This was done so as to protect any solicitor-client privilege that might arise in relation to the material in Ms. L.’s possession. Justice McMahon rejected a number of requests made by Ms. L. for disclosure of material he found to be irrelevant. On other issues, the Crown was directed to make further disclosure and to advise of the status within two weeks. This primarily related to the production of transcripts of prior proceedings. Justice McMahon again urged Ms. L. to retain counsel and she responded that she could not because Legal Aid had illegally refused her request to change counsel. She refused the offer of free legal counsel, insisting that the Director of Legal Aid be called to court to explain its prior decision. The matter was adjourned to November 23, 2015.
[28] At the return on November 23, 2015, McMahon J. again asked Ms. L. if she wanted a free lawyer to represent her, but she refused to answer his question because she wanted to address other issues. Ms. L. insisted she could not call a lawyer unless Justice McMahon issued orders ensuring defence counsel would represent her even if they were offered a bribe of $100 million or a death threat was made against them. Justice McMahon explained that these were not orders he could make. The matter was adjourned for a further week and Ms. L. was directed to contact a defence lawyer to represent her. She was given a list of lawyers qualified to take the case and who would be prepared to accept the Legal Aid tariff. The next appearance date was fixed for December 2, 2015. The trial was to commence on January 4, 2016.
[29] When Ms. L. appeared on December 2, 2015, she had done nothing to obtain defence counsel. In light of the accusations Ms. L. was making against Mr. R. (who would be a Crown witness at trial), the Crown expressed concerns about permitting Ms. L. to cross-examine Mr. R. personally, rather than through a lawyer. The Crown proposed that the Court appoint a lawyer to conduct the cross-examination, pursuant to ss. 486.3(3) and (4) of the Criminal Code. Ms. L. was given notice of that request. Further, Justice McMahon raised a concern about possible mental health issues that might warrant investigation. The matter was adjourned for a further two weeks.
[30] Ultimately, Justice McMahon directed that the trial proceed on January 4, 2016 with or without defence counsel. Mr. LeRoy and Ms. Shushanna Harris were appointed as amici curiae, but the precise scope of their role in that capacity was not defined. Ms. Paula Rochman was appointed to conduct the cross-examination of Mr. R.
C. Exclusion of Ms. L. from the Courtroom
Conduct Leading to the Exclusion Order
[31] The trial commenced before me on January 4, 2016. Ms. L. was not represented by counsel. The entire first day of the trial was consumed by attempting to obtain the cooperation of Ms. L. so that the trial could proceed. From the very outset, Ms. L. demonstrated that she would not participate in the trial. Ms. L. took the position that the orders made by Justice Waldman in the family proceedings were “illegal.” Therefore, she maintained, the criminal trial in this Court, which flowed from the orders made in the family proceedings, was also an illegal proceeding. She refused to participate. She refused to answer directly even the most basic questions. When I asked her a question, she took the opportunity to make a speech about how her rights were being violated. Frequently, she did this from a prepared text.
[32] I permitted Ms. L. to read her prepared text to me, which she did through the Mandarin interpreter. It runs for four full pages of the transcript. [3] The prepared speech started with, “I am a Christian. I am the plaintiff….I am the victim…I am a witness…” This became a recurring theme for many of Ms. L.’s interruptions throughout the trial. She frequently returned to her “I am a Christian” speech on any occasion when her participation in the trial was invited or she was asked a question. In the speech, she alleged that Crown counsel had perjured himself and fabricated evidence. She referred to herself throughout as the “plaintiff, victim and witness,” and referred to the father of her child, Mr. R., as “the criminal.” She stated that Mr. R. was a terrorist and Iranian spy who was responsible for at least one murder. She demanded the arrest of Mr. R., the Crown counsel, Justice Waldman, and various other people she alleged were part of the conspiracy against her.
[33] I hoped that by giving Ms. L. the opportunity to say everything she wished to say, she would then be more amenable to cooperating. This strategy did not work.
[34] I made multiple attempts, at various different times, to get Ms. L. to say whether she wished to sit at the counsel table as opposed to in the dock. She refused to answer the question. Likewise, I could not persuade Ms. L. to indicate whether she wanted to be tried by a jury or by judge alone. Accordingly, in default of a re-election by Ms. L., I determined that she would be tried by a jury.
[35] Mr. Wright advised that, in order to simplify the trial, the Crown would only be proceeding on the child abduction charge and would be withdrawing the other counts on the indictment. Ms. L. was arraigned on the single count relating to child abduction. When initially asked by the Registrar whether she pleaded guilty or not guilty, Ms. L. again started to make a speech, accusing Crown counsel of perjury and claiming the process was illegal. When I interrupted her tirade to ask if she admitted the charge or was saying she was not guilty, she twice replied that she was not guilty. However, a short while later when I referred to the fact that she had pled not guilty and taken the position that the charges were false, she again launched into a tirade, stating that I had tricked her and that she was refusing to take any position. I advised her that I would be treating this as a not guilty plea and, accordingly, would be proceeding with the trial before a jury.
[36] Throughout this process, Ms. L. was exceedingly disruptive. She refused to behave appropriately in the courtroom and persisted in making ad hominen comments about the Crown and the amicus and Mr. R. She was belligerent and could not be controlled. When others tried to talk, she simply talked over them. She was loud and abusive. It was virtually impossible for anyone else to be heard over her. The fact that all of this was being done through a Mandarin interpreter made matters even more difficult, although many of Ms. L.’s interjections were made in English.
[37] I warned Ms. L. several times that if she did not behave appropriately, I would have no choice but to remove her from the courtroom and she could watch the trial proceedings by live video-stream. This had no effect on her conduct.
[38] I therefore sought submissions from counsel as to how we could proceed with the trial while still protecting Ms. L.’s fair trial rights.
The Exclusion Order
[39] As the trial judge, my first and overarching duty was to ensure that Ms. L. received a fair trial. If she had elected to be tried by a judge without a jury, her outbursts could have been more easily managed. However, with a jury, the repeated interruptions and the content of those interruptions became even more problematic. Ms. L., by her conduct in the courtroom, literally made it impossible for the evidence at trial to be heard by the jury. Her very presence in the courtroom became an obstacle to her right to a fair trial.
[40] Although Ms. L. is entitled to a fair trial, she is not entitled to high-jack the proceedings to such an extent that her trial cannot proceed. Justice demanded that the serious charge involved proceed to trial.
[41] Section 650(1) of the Criminal Code requires that, subject to limited exceptions, an accused “shall be present in court during the whole of his or her trial.” In this case, the only applicable exception is in s. 650(2) which provides:
- (2) The court may (a) cause the accused to be removed and to be kept out of court, where he misconducts himself by interrupting the proceedings so that to continue the proceedings in his presence would not be feasible…
[42] In my opinion, this exception is directly applicable to the situation before me. Ms. L. persistently misconducted herself by interrupting and disrupting the proceedings, despite numerous warnings and numerous chances to change that behaviour. She knew what the consequences would be if she continued that pattern of conduct, yet she maintained the same disruptive behaviour. Continuing the trial with her in the courtroom while misconducting herself in this manner was simply not feasible. All of the requirements of s. 650(2) were met.
[43] Notwithstanding that Ms. L.’s conduct met the requirements for her exclusion, I nevertheless repeatedly had her brought back into the courtroom with the admonishment that she would be taken out again if she misconducted herself. Each time, she behaved for a short while, but then erupted again. I had no choice but to keep her out of the courtroom for the bulk of the proceeding.
[44] When she was excluded from the courtroom, Ms. L. was able to watch the proceedings from a cell in another location in the courthouse. She could hear everything that was being said and could see counsel and the witnesses on the screen in her cell. An interpreter was present with her to interpret everything that was said in the courtroom. The courtroom could be contacted from the cell area, but the jury could not hear what was being said in the cell. Therefore, if there was a problem with hearing a witness or having something repeated, she could easily contact the courtroom, which was done on occasion. However, since there was no direct audio feed from the cell into the courtroom, any outbursts or interruptions from Ms. L. could not be heard. Interestingly, Ms. L. was very cooperative every time I ordered that she be removed from the courtroom and was quiet in her cell when she was watching the proceedings from there. I have no doubt that her interruptions in the courtroom were calculated and deliberate.
[45] In my view, I had no alternative but to exclude Ms. L. from the courtroom from time to time. There was no other way to proceed with the trial. She knew what the consequences of her misconduct would be and deliberately repeated that conduct whenever she was given the opportunity to come back into the courtroom for the trial. I concluded that I had jurisdiction to exclude Ms. L. pursuant to s. 650(2). I further believed that this course of action was consistent with the steps taken by other trial judges in similar, although not identical situations, e.g. by Fraser Martin J. in R. v. Fabrikant (1995) and by a Saskatchewan Queen’s Bench trial judge in R. v. Bitternose, 2009 SKCA 54, both of which decisions were upheld by the Courts of Appeal of Quebec and Saskatchewan, respectively. [4]
[46] In both decisions, the Canadian appellate courts referred, with approval, to a decision of the United States Supreme Court in Illinois v. Allen, 397 U.S. 337 (1970), [5] in which the Court held:
We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly. [6]
[47] The power to cite for contempt would not have been a useful tool to control Ms. L.’s behaviour. She had already demonstrated that contempt orders meant nothing to her during the proceedings in the Family Court. Merely threatening Ms. L. for contempt would do nothing. Even a contempt finding and imprisonment had not changed Ms. L.’s conduct in the past. Further, as a practical matter, this was a jury trial. The process of citing Ms. L. for contempt and determining that issue would occupy considerable time. It would not be reasonable to expect to then reconvene the same jury after the contempt had been dealt with, even if it could be assumed that Ms. L. would then act appropriately in the courtroom. As a practical matter, the only effective option was an exclusion order.
[48] Ms. L. was given many opportunities to retain counsel at no cost to her, which she refused to do. Because she was without counsel, her exclusion from the courtroom had a greater impact on her than would have been the case for an accused represented by counsel. While recognizing that problem, I felt there was no reasonable alternative but to make the exclusion order. However, this was a factor I took into account in determining the role to be played by amicus curiae, for reasons set out in the section that follows.
D. The Role of Amicus Curiae
Separate Counsel to Cross-Examine Mr. R.
[49] In the course of case-managing this matter, McMahon J. appointed Mr. LeRoy and Ms. Harris as amici curiae for the assistance of the trial judge. The precise role to be played by amici was left to the trial judge. Also, McMahon J. appointed Ms. Rochman to conduct the cross-examination of Mr. R., the father of the missing child and a key witness for the Crown. Although a Rowbotham order was made and Ms. L. had ample opportunity to retain counsel without any cost to her, she refused to do so.
[50] At the outset of the trial, Ms. Rochman appeared before the Court and advised that she was involved in another trial and that scheduling the cross-examination of Mr. R. could be difficult, although not impossible. In light of that difficulty, I considered whether Ms. Rochman’s involvement was necessary or whether the amici could perform that same role.
[51] The appointment of Ms. Rochman was made under ss. 486.3(3) and (4) of the Criminal Code. Section 486.3 provides:
Accused not to cross-examine witness under 18 486.3 (1) In any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years, or on application of such a witness, order that the accused not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. If such an order is made, the judge or justice shall appoint counsel to conduct the cross-examination.
Accused not to cross-examine complainant — certain offences (2) In any proceedings against an accused in respect of an offence under any of sections 264, 271, 272 and 273, the judge or justice shall, on application of the prosecutor in respect of a witness who is a victim, or on application of such a witness, order that the accused not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. If such an order is made, the judge or justice shall appoint counsel to conduct the cross-examination.
Other witnesses (3) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness who is not entitled to make an application under subsection (1) or (2), or on application of such a witness, order that the accused not personally cross-examine the witness if the judge or justice is of the opinion that the order would allow the giving of a full and candid account from the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice. If the order is made, the judge or justice shall appoint counsel to conduct the cross-examination.
Factors to be considered (4) In determining whether to make an order under subsection (3), the judge or justice shall consider (a) the age of the witness; (b) the witness’ mental or physical disabilities, if any; (c) the nature of the offence; (d) whether the witness needs the order for their security or to protect them from intimidation or retaliation; (e) the nature of any relationship between the witness and the accused; (f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and (g) any other factor that the judge or justice considers relevant.
[52] Mr. R. is not under the age of 18 (which makes s. 486.3(1) inapplicable), and the offence with which Ms. L. is charged does not fall within those listed in s. 486.3(2). There was an application by the prosecutor, which satisfies the first requirement under s. 486.3(3). However, there is nothing about Mr. R. that requires the making of the order. This is not the sort of case where the making of the order “would allow the giving of a full and candid account from the witness of the acts complained of.” Mr. R. was willing and able to give a full and candid account of the events. The problem was not Mr. R., but rather the conduct of Ms. L.
[53] The question, then, is whether the appointment of Ms. Rochman as counsel to cross-examine can be said to fall within the residual language in s. 486.3(3) in that it “would otherwise be in the interest of the proper administration of justice.” Arguably, it does. The mere mention of Mr. R.’s name in the courtroom would cause Ms. L. to launch into a diatribe about his character, labelling him as a terrorist, criminal, murderer, and rapist, all without a shred of evidence in support. Given her conduct, permitting Ms. L. to cross-examine Mr. R. would inevitably be counter-productive to the orderly progress of the trial, and likely be prejudicial to Ms. L.’s defence as it could cause the jury to have a negative impression of her. Further, Ms. L. had completely refused to participate in the trial, so it was at least possible that she would refuse to cross-examine Mr. R. in a meaningful way, leaving the key evidence at trial completely untested by cross-examination. I therefore considered appointing counsel to conduct the cross-examination to be in the interest of the proper administration of justice.
[54] In making a decision to appoint counsel under s. 486.3, the trial judge is required to consider a list of relevant factors. None of the relevant factors listed in s. 486.3(4) fit squarely with the circumstances of this case, save for the residual clause (g), which permits the trial judge to assess “any other factor” she “considers relevant.”
[55] Thus, the entire statutory jurisdiction is founded on a determination that the appointment of counsel to cross-examine the witness would be in the interest of justice based on any factors I consider relevant. In my view, that adds nothing to the inherent jurisdiction of the trial judge to make any order necessary to ensure the efficient management of the trial in the interests of justice while protecting the accused’s right to a fair trial. With or without s. 486.3, I am of the view that I would have jurisdiction to appoint counsel to cross-examine Mr. R.
[56] The reason McMahon J. appointed one lawyer as amicus and separate counsel to cross-examine was due to his concerns about the available parameters for the role of amicus in light of recent jurisprudence from the Supreme Court of Canada. Justice McMahon could not be sure whether Ms. L. would participate in her trial or how she would behave. Nor could he predict what role the trial judge might assign to the amicus. The order he made provided the maximum flexibility, which I greatly appreciated. However, given the role I felt appropriate for the amicus at trial, it was unnecessary to have separate counsel cross-examine this particular witness, especially when that counsel would not be present for the whole of the trial. I therefore excused Ms. Rochman from the assigned cross-examination role.
The Supreme Court of Canada’s Decision in Ontario v. C.L.A.
[57] Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43 was essentially a fee dispute between Ontario defence lawyers and the Ontario government as to the rate of pay for lawyers appointed as amicus curiae in criminal trials. Four appeals were heard together. In each case, an Ontario Superior Court trial judge had appointed amicus and directed a rate of pay that was greater than the Ontario Legal Aid tariff set by the Ontario government. Ontario appealed all four orders to the Ontario Court of Appeal, which unanimously dismissed all the appeals on the basis that determining the rate of compensation for counsel appointed by the court was part of the trial judge’s inherent jurisdiction. [7] Ontario then appealed to the Supreme Court of Canada.
[58] In a split five-to-four decision, the Supreme Court of Canada held that the inherent jurisdiction of the trial judge to appoint amicus does not extend to setting the rate of pay for the lawyer performing that role. Rather, the separation of powers doctrine requires that the allocation of public funds (which involves policy, economic, and political issues), is properly the role of the legislature and the executive, not the courts. By contrast, the four dissenting judges were of the view that the Ontario Court of Appeal was correct in finding that setting compensation for an amicus fell within the inherent power of the court to appoint the amicus.
[59] The ratio decidendi of Ontario v. C.L.A. has no bearing on the case before me. The rate of funding for amicus was not an issue in the instant case. However, it is necessary for me to address some statements made in the majority decision relating to the appropriate role for amicus, which although obiter, have a potential impact on this case.
[60] Karakatsanis J. (writing for the majority, with McLachlin C.J. and Rothstein, Moldaver and Wagner JJ. concurring) devoted a section of her reasons to this issue under the heading “Amici as Defence Counsel.” [8] Karakatsanis J. noted that “[a]mici and court-appointed defence counsel play fundamentally different roles.” [9] She also noted that the issue of the appropriateness of the appointment of amicus in any of the cases before the Court had not been raised by any of the parties, but had been raised by two intervenors and not challenged by the parties. [10] She then went on to comment that “to the extent that the terms for the appointment of amici mirror the responsibilities of defence counsel, they blur the lines between those two roles, and are fraught with complexity and bristle with danger.” [11]
[61] Karakatsanis J. then listed the following dangers of assigning such a role to an amicus: [12]
(1) “[T]he appointment of amici for such a purpose may conflict with the accused’s constitutional right to represent himself.” [13] (2) “[I]t can also defeat the judicial decision to refuse to grant state-funded counsel” based on a Charter application (a Rowbotham application). [14] (3) There is an inherent conflict between the duties of an amicus who is asked to represent the interests of the accused, given that the amicus has separate obligations to the court, which may require the amicus to make submissions that are not favourable to the accused, and where communications with the accused are not protected by solicitor-client privilege. [15] (4) The use of an amicus to assist the accused on all matters goes beyond the assistance that could be provided by a trial judge and thereby enables the judge to do indirectly something that she would not be permitted to do directly. [16] (5) “[T]here is a risk that appointing amici with an expanded role will undermine the provincial legal aid scheme.” [17]
[62] Karakatsanis J. concluded by stating that she agreed with Fish J., writing for the dissenting judges, that “a lawyer appointed as amicus who takes on the role of defence counsel is no longer a friend of the court.” [18]
[63] The minority dissenting decision, authored by Fish J. (with LeBel, Abella and Cromwell JJ. concurring) also addressed this issue. Fish J. prefaced his comments by noting the issue was not raised by the parties, stating (at para. 113):
The Crown did not, either before this Court or the courts below, contest the propriety of the amicus appointments in any of the cases before us. Nor did it challenge the established distinctions between defence counsel, whether appointed pursuant to a legal aid certificate or under a Rowbotham order, and amicus curiae. The Crown’s appeal is restricted to a single question: whether trial judges have jurisdiction to fix an amicus’s rate of remuneration. [19]
[64] Fish J. then stated that it was nonetheless useful to offer some “guidance” regarding the circumstances in which an amicus appointment is appropriate, noting at the outset the distinction between an amicus and defence counsel and stating that, “Once clothed with all the duties and responsibilities of defence counsel, the amicus can no longer properly be called a ‘friend of the court’” [20] (emphasis added).
[65] By way of guidance, the dissenting judges offered the following:
(1) the power to appoint must be exercised sparingly and with caution [21]; (2) “[t]rial judges must not externalize their duty to ensure a fair trial…by shifting the responsibility” (emphasis in original) to amicus and causing amicus to “assume a role nearly identical to that of defence counsel [22]; and (3) “amicus should not be appointed to impose counsel on an unwilling accused or permit an accused to circumvent the established procedure for obtaining government-funded counsel. [23]
[66] Finally, Fish J. stated, “The blurring of the line between the two roles [amicus and court-appointed defence counsel] in the present case causes me some concern; however, as pointed out, that is not the issue before us.” [24]
[67] The general principles stated by both the majority and minority in Ontario v. C.L.A. are well-known. Amicus should only be appointed in exceptional cases and where necessary in the interests of justice. Clearly, there is a distinction between an amicus appointed by the court and state-funded defence counsel. Equally clearly, there is a well-recognized test for an accused to meet in order to obtain the appointment of a state-funded defence counsel, including a requirement that the right to a fair trial is implicated. It would be improper to circumvent that established authority by appointing amicus and giving those same responsibilities to that lawyer. However, with the greatest of respect, those are not the circumstances in which amici curiae are appointed. Trial judges typically appoint amicus in those difficult cases where justice simply cannot be done without that assistance. It is impossible to list all the circumstances in which this might arise; the possibilities are infinite. It is also impossible to categorize the types of roles that may be appropriate for an amicus in any given case; those responsibilities will depend on the particular problems that are presented in each case. What is clear to me, however, is that there are cases in which I cannot ensure a fair trial for an accused without the assistance of amicus in an expanded role that goes well beyond making submissions on points of law. The trial of Ms. L. is one of those cases.
[68] The difficulty with the general principles expressed by the Supreme Court in Ontario v. C.L.A. is that they do not address the problems presented by these unusual cases, such as where the accused is mentally ill, but nevertheless fit to stand trial; where the accused refuses to participate in the trial for whatever reason; or where there is a real risk of a wrongful conviction as a result of the manner in which an unrepresented accused is presenting his or her case. It is one thing to say that the trial judge cannot provide strategic advice to an accused. But what of the situation where there is a fatal flaw in the Crown’s case and the accused is unaware of it? Similarly, the trial judge cannot “descend into the arena” in order to cross-examine a key witness or make a jury address. But what of the situation where justice requires that a key witness be cross-examined or where there are things about the accused’s case that could be put to the jury, but the accused either does not know how or refuses to do so?
[69] These are never easy issues for a trial judge and there is a delicate balance to be maintained. However, the appropriate use of a skilled lawyer as amicus curiae often goes a long way to ensuring the fair trial rights of an accused are respected and thereby avoiding a miscarriage of justice.
[70] These difficulties were very ably summarized by my colleague Code J. in R. v. Jaser and Esseghaier, 2014 ONSC 2277, [25] in which one of the accused in a terrorism case refused to participate in key aspects of the trial based on his belief that the trial should be conducted in accordance with the Qur’an rather than the Criminal Code. Justice Code reviewed the law with respect to the appointment of amicus in considerable depth, including the Supreme Court of Canada’s decision in Ontario v. C.L.A., and concluded that the Supreme Court of Canada cannot be taken to have overruled the long series of cases supporting an expanded role for amicus in exceptional cases where there is a danger of a miscarriage of justice. [26] I agree entirely with, and adopt, the reasoning of Code J. on this point.
[71] In determining whether the case before me is one that warrants the appointment of amicus with an expanded role, I have considered the factors discussed by Karakatsanis J. as being problematic. In my view, none of them arise.
[72] First, there is no conflict with the right of an accused to choose to represent herself. [27] Ms. L. refused to participate in the trial.
[73] Second, there was no circumvention of the requirement for state-funded counsel. [28] An order had already been made that the state should fund a lawyer for Ms. L. A judicial determination had already been made that without counsel her right to a fair trial was compromised. I agree entirely. However, Ms. L. simply refused to retain counsel.
[74] Third, there was no tension between the amicus taking instructions from Ms. L. and also having a duty to the court. [29] Ms. L. for the most part refused to speak to amicus and there was certainly no issue of confidentiality between them. Mr. LeRoy, and his associate Ms. Harris, were cognizant of the balancing act that was required and performed those duties impeccably, in my view. They understood the importance of bringing forward anything that might be said on behalf of the defence, while recognizing their professional responsibilities to the court.
[75] Fourth, there were things taken on by amici that I, as the trial judge, could not have done directly. That is precisely why the amici were required. The principal witness for the Crown would not have been cross-examined at all were it not for the amici. This is certainly not a task that was appropriate for me to take on, particularly not in front of a jury. However, in my view there was a real danger of a miscarriage of justice if the evidence in chief of the main Crown witness was left before the jury unchallenged by cross-examination and without eliciting any additional evidence that could be helpful to Ms. L.’s defence. It was therefore necessary for the cross-examination to be done in order to prevent a miscarriage of justice.
[76] Likewise, although I gave Ms. L. the opportunity to make a jury address at the end of the trial, she did not use the opportunity to deal with any relevant point. Again, for the purpose of having some balance, it was helpful to have an address by amicus so that the jury had a fuller picture. While some of this could have been, and was, covered in the jury instructions given by me at the end of the trial, that is not the same as an address by counsel, both in its tone and content. As trial judge, I cannot be seen to be an advocate for one side or the other. Having amicus give a jury address that was equivalent to what defence counsel would have delivered was an important component of ensuring Ms. L. had a fair trial.
[77] Fifth, the role assigned to the amici in this case was unopposed by the Crown and did not give rise to any risk of undermining the Legal Aid system. Ms. L. had Legal Aid lawyers in the past, but dismissed them. She could have had a state-funded lawyer at the same Legal Aid rate as a result of the Rowbotham order made by McMahon J., but she refused to hire one. The appointment of amici in the unusual circumstances of this case does not, in my view, undermine the Legal Aid system. It is entirely independent of it.
[78] Finally, because of Ms. L.’s conduct, it was necessary to exclude her from the courtroom for extensive portions of her trial. In that situation, it was important to have some presence for the defence in the courtroom. The amici filled that role, even if only symbolically.
[79] I advised the jury of the role of amici and that Ms. L. was watching the proceedings from a location outside the courtroom and might or might not be back in the courtroom at some point during the trial.
[80] In my opinion, justice would not have been done in this case without the assistance of amicus. Ours is an adversarial justice system, which does not work well when one side absolutely refuses to participate. Notwithstanding the absolute fairness and even-handedness of the Crown throughout, there would have been the appearance of a one-sided trial. Given that I was required to tell the jury that everything Ms. L. said in the courtroom was irrelevant and could not be taken into account in determining her guilt or innocence, it was particularly important that there was a neutral voice before them advancing what could be said for Ms. L.’s defence. This did not, in my view, undermine the obligations the amici owed to the court, nor did it force counsel upon Ms. L. I am deeply indebted to Mr. LeRoy and Ms. Harris for the highly competent and professional manner in which they handled an extremely difficult assignment.
E. The Right to Make Full Answer and Defence
[81] I gave Ms. L. oral and written instructions on the issues she needed to consider and the rules she must follow to conduct her own defence. I told her that she could ask Mr. LeRoy or Ms. Harris for advice on any legal or procedural issues that might arise. At the close of the Crown’s case, I again brought Ms. L. into the courtroom and explained to her that now was her opportunity to testify on her own behalf if she wished to do so. I explained that if she did so, she would be required to take an oath or make an affirmation to tell the truth and that she would be subject to cross-examination. I also advised her that, whether she testified or not, she would have an opportunity to make a closing address to the jury, but that she was not permitted to refer in that address to matters of fact that had not been part of the evidence. Ms. L. was fully aware that if she did not testify, it would be improper to make allegations of fact against Mr. R. that had not been a part of the evidence at trial.
[82] In her previous speeches, Ms. L. frequently referred to the period of time during which she claimed to have been illegally imprisoned. I cautioned Ms. L. that this is the kind of information that defence counsel usually tries to keep away from a jury, although there can sometimes be strategic reasons for putting it in.
[83] Ms. L. asked to present evidence from a number of witnesses, which I held were not appropriate witnesses because they would have no relevant evidence to provide (e.g. the Attorney-General, the top passport official in Canada, a family law expert, a criminal law expert, customs officials, and the Governor General). Ms. L. elected not to testify herself.
[84] Although I had every reason to believe Ms. L. would use the opportunity to make a closing jury address to tell the jury about all sorts of things that were not part of the evidence, I did allow her to make an address. As expected, Ms. L. immediately launched into an attack on all of the persons involved in the trial and alleged the Crown, duty counsel, and the Family Court judge of various acts of misconduct, including fabricating evidence. She also attacked Mr. R., alleging him to be a rapist and not the father of her child. After she had gone on for some time and had reached the point of describing Mr. R. as a terrorist and Iranian spy who had been smuggled into Canada, I stopped her address.
[85] Because the address was filled with allegations of fact that were not the subject of evidence, I provided a separate instruction to the jury about what they could and could not consider from Ms. L.’s jury address.
[86] I am not sure whether Ms. L. harmed her own case by the jury address she made. Despite my concern that this might happen, I felt an obligation to provide Ms. L. with the opportunity to address the jury in person, which she had stated she wanted to do. I hoped in this way to balance her right to a fair trial and her right to represent herself at the only part of the trial in which she was prepared to participate. She made no effort to follow the rules I had explained to her. She took advantage of the opportunity to repeat the very things that I had told her could only be presented as evidence from the witness box. So that the jury would have a more balanced address dealing with defence issues, I also requested amicus to address the jury, which Mr. LeRoy did. It was my hope that a more measured address given by Mr. LeRoy as amicus would ameliorate any negative impact created by Ms. L.’s presentation.
[87] In my view, Ms. L. had a fair trial. Crown witnesses were cross-examined and an appropriate jury address was made by amicus. Issues of law relevant to the jury charge were also dealt with by the amici. Ms. L. was given every opportunity to participate meaningfully, but refused. She had the opportunity to present relevant evidence, but chose not to. She was removed from the courtroom only when the trial could not continue in her presence. She was given many opportunities to remedy the situation, which she also failed to heed. Notwithstanding her repeated misconduct, the evidence was presented and tested, legal theories were debated prior to finalizing the charge, and a fair and measured address was made to the jury on her behalf. In my view, this respected Ms. L.’s right to make full answer and defence, and resulted in a fair trial.
F. Amendments to the Indictment
[88] Ms. L. was initially charged under s. 282 of the Criminal Code with abduction of her own daughter in contravention of a custody order. She was also charged with breaching three court orders (dated April 11, 2011, June 3, 2011, and December 18, 2011), all of which related to M and were issued by Justice Waldman in the Family Court proceedings. Ms. L. has already been found to have breached at least some of those orders, and indeed has been found to be in contempt, been sentenced, and served some time in relation to those breaches. At the outset of the trial before me, the Crown sought to withdraw the three counts of breaching court orders for the sake of simplifying the proceedings.
[89] I agreed. There can be no prejudice to Ms. L. by the withdrawal of these three counts.
[90] The remaining count on the indictment was worded as follows:
[C.M.L.] stands charged that she, between and including the 8th day of November in the year 2011 and the 18th day of December in the year 2013 in the City of Toronto, in the said Toronto Region, being the parent of [M] a person under the age of 14 years, did conceal or detain or receive or harbor [M] in contravention of the custody provisions of a custody order in relation to [M] made by the Ontario Court of Justice, with intent to deprive [S.R.], the parent of [M], of the possession of [M], to wit: by failing to return [M] to the custody and residence of [S.R.], contrary to s. 282(1)(a) of the Criminal Code.
[91] The Crown sought leave to amend the remaining count on the indictment in two respects: (1) by changing the dates upon which the offence was committed to April 30, 2011 and continuing; and (2) by particularizing the custody orders that are alleged to have been breached to stipulate the orders of April 11, 2011 and November 8, 2011.
[92] To understand the impact of the requested amendment, it is useful to review the Court orders at issue:
- April 11, 2011: temporary order that M be returned to Ontario by April 30; that M reside with her mother pending further order; and that the father not have access pending further order.
- June 3, 2011: contempt order that Ms. L. return M to Ontario within 45 days and sentencing Ms. L. to 60 days in jail commencing 51 days after the order, with the proviso that the jail sentence will be reconsidered if the contempt is purged.
- November 8, 2011: final order granting custody of M to her father.
- December 18, 2013: consent order that both parents will execute the necessary documents to obtain a passport for M; that upon M arriving in Toronto, Ms. L. shall have sole interim custody until a motion for access by the father can be heard; that Ms. L. make all reasonable efforts to have M returned by January 20, 2014; and that Ms. L. provide specified contact information for M and her caregivers by December 19, 2013.
- January 30, 2014: contempt order sentencing Ms. L. to 45 days in jail for contempt of the orders dated June 3, 2011 and November 8, 2011; granting leave to M’s father to obtain a passport for M without her mother’s consent; and granting the father leave to exercise his custodial rights to M as long as she is in China and to take such steps available to him to bring M back to Canada.
[93] Although the child abduction count on the indictment originally stipulated that the offence was alleged to have been committed between November 8, 2011 and December 18, 2013, Ms. L. was also originally charged with breaching the court orders of April 11, 2011 and June 3, 2011, the particulars of which would have been subsumed within the child abduction count that required breach of a custody order. Because of the charges relating to the April 11 and June 3, 2011 orders, any preparation for trial would necessarily have involved matters relating to those dates. It would always have been apparent to Ms. L. that the gravamen of the charges against her commenced with the alleged breach of the April 2011 order. I therefore see no prejudice to Ms. L. if the breach of court order charges are removed and the child abduction count is amended to commence April 30, 2011, which is the last date upon which she would have been required to return M to Ontario according to the terms of the April 11, 2011 order.
[94] With respect to the end date specified in the child abduction count, I accept that this is an ongoing offence and that it did not end on December 18, 2013, the date specified in the indictment. Ms. L. had previously been charged with breaching the December 18, 2013 order, but that count merely alleged that it had been committed between December 18, 2013 and January 21, 2014. Further, it specified that the breach was the failure to return M to Ontario by January 20, 2014. That count was not particularized to include other breaches of the December 18, 2013 order; for example, the failure to execute the documents required or the failure to provide accurate contact information for M and her caregivers in China. Opening up the indictment to include all breaches of the orders to the present day would therefore expand the potential jeopardy to Ms. L. beyond what she would have been facing on the indictment as originally presented. Accordingly, I refused to permit an amendment to change the end date on the charge, but permitted the start date to be amended to April 30, 2011, rather than November 8, 2011.
[95] The second amendment requested is merely to provide particulars with respect to the specific court orders that are said to have been breached, those being the orders of April 11, 2011 and November 8, 2011. Again, I see no prejudice to Ms. L. from this addition to the indictment. Rather, it is to her advantage to have clarity as to the precise orders that are alleged to have been breached, and in particular for it to be clear that any breach of the December 18, 2013 order is not part of the charge.
[96] Ms. L. provided no meaningful submissions on these points. Amici were unable to point to any prejudice arising from the amendments, but did raise as an issue whether the April 11, 2011 order could be said to be a “custody order” within the meaning of s. 282 of the Criminal Code. For the reasons set out in the following section, I have concluded that the April 11, 2011 order does fall within the meaning of s. 282.
[97] Accordingly, I ordered that the indictment could be amended by changing the commencement date from November 8, 2011 to April 30, 2011, and by particularizing the custody orders that were breached by stipulating the April 11, 2011 and November 8, 2011 orders.
G. Section 282: The Meaning of “Custody Order”
[98] One of the essential elements of an offence under s. 282 of the Criminal Code is that the detention or concealment of the child in question must be “in contravention of the custody provisions of a custody order in relation to that person” made by a Canadian court.
[99] The custody of M was an issue before Waldman J. in the Family Court proceedings. On April 11, 2011, Waldman J. ordered Ms. L. to return M to Canada and directed that M reside with Ms. L., with no access by Mr. R., pending further order of the court. The question is whether this constitutes a “custody provision of a custody order” within the meaning of s. 282 of the Criminal Code.
[100] There is very little case authority on what constitutes a “custody provision of a custody order,” perhaps because in the vast majority of cases, the order in question will have all the attributes of a conventional custody order.
[101] Although dealing with a different but related provision of the Criminal Code (s. 283), the Supreme Court of Canada’s decision in R. v. Dawson [30] is a useful starting point. In that case, the Court emphasized the purpose of the parental child abduction provisions in the Criminal Code as the protection of children by ensuring that people who are “entitled to exercise case and control over children are able to do so.” [31] The Court also noted that “[t]he courts have consistently refused to adopt…a narrow interpretation of the offence of child abduction.” [32]
[102] In R. v. Petropoulos (1990), [33] the British Columbia Court of Appeal considered the case of a father who had custody of his son under a custody order, with access by the mother for three days a week. There was a term in the order that the child could not be removed from British Columbia. The father moved with the child to Toronto. Clearly this was a breach of a term of the order, but the question that arose was whether the non-removal term was also a “custody provision.” The British Columbia Court of Appeal held that this was a custody provision because it restricted the rights of the parent with custody. The Court held:
In this context I do not understand how the clause prohibiting the removal of the children from the jurisdiction can be regarded as one relating to something other than custody. It restricts the custody rights of the party having custody by limiting the geographic area within which that party is free to move the child. It also protects the custody rights of that party by preventing the other party from by [sic] removing the children to another jurisdiction. It seems to me in the circumstances that this limitation is properly to be considered a "custody" provision of the custody order, within the meaning of s.282. [34]
[103] In R. v. Chartier, 2006 ONSC 4500, [35] my colleague Hackland J. held that a supervision order made at the request of the Children’s Aid Society (“C.A.S.”) under the Child and Family Services Act, R.S.O. 1990, c. C.11, was a “custody order” within the meaning of s. 282 of the Criminal Code. The children in question had been apprehended by the C.A.S., found to be in need of protection, and placed by court order with the maternal grandmother, subject to the supervision of the C.A.S. and under certain terms, which included that the mother and father cooperate with the C.A.S. in various ways and not physically discipline the children. Hackland J. noted that the word custody is not used in the order, nor is it used in the section of the legislation under which the order was made. Further, there are numerous other sections in the same legislation which do refer specifically to “custody.” At the same time, Hackland J. noted that “[t]he terms custody, custody order, or custody provision, are not defined in either the Divorce Act, the Children’s Law Reform Act or the Child and Family Services Act.” [36] To this list, I add the Criminal Code, which also contains no such definition. I agree entirely with my colleague that the absence of the word “custody” in the order itself is not determinative, and that one must look instead at the substantive content of the order and whether it deals with the care and control of a child. Hackland stated:
I am of the opinion that the absence of specific reference to custody in this order, exhibit one, is not fatal. I respectfully adopt Justice Watt’s non-technical and generally understood explanation of a custody order [referring to the standard jury instruction on s. 282]. It is a court order dealing with the issues of who has the care and control of the child or children, and defines the conditions or circumstances in which that care and control may be exercised. In my opinion, this can include court orders like a supervision order, under the Child and Family Services Act, as well as orders referring to shared parenting arrangements and other orders which do not speak of or specifically grant custody per se.
The intention of s. 282(1) of the Criminal Code, would in my view be defeated if the offence is not proven merely due to the absence of the word custody in the order. It is the substantive content of the order’s provisions dealing with the children’s care and control which are determinative. [37]
[104] Finally, I have taken into account the decision of the Ontario Court of Appeal in R. v. Rosevold, 2011 ONCA 431, [38] which although not on all fours factually with the case before me, is certainly applicable in principle. In that case, the parents of two children were involved in a custody dispute in Ontario. An interim order was made that the children would “remain in the care” of the mother in Brockville, Ontario with access to the father. The order was stated to be without prejudice to the rights of either party to argue custody or access. The father took the children to British Columbia. The Court of Appeal held that the order in question constituted a custody order within the meaning of s. 282(1) of the Criminal Code and upheld the father’s conviction. The Court held:
Although the order is made “without prejudice to the rights of either party to argue the issues of custody and access”, it is clear that the order was intended to govern the lawful care and charge of the children during its currency. In our view, s. 282 is intended to apply to such an order.
Finally, duty counsel argues that the trial judge failed to consider the defence of necessity. She concedes, fairly, that the defence of necessity was not raised at trial. However, she submits that the appellant’s evidence required the trial judge to consider the defence on his own initiative. [39]
[105] Applying these principles to the case before me, I find that the April 11, 2011 order of Waldman J. is a custody order within the meaning of s. 282(1) of the Criminal Code. Both parties had submitted their rights with respect to the care and custody of M to the Family Court. In that context, an order was made that the child be returned to Ontario. That is an order that relates directly to the care and control of the child. It is also an order that restricts the custodial rights of Ms. L. as the child’s mother. The order further provides that M is to reside with Ms. L. until further order of the court. Again, this is an order that relates to the care and control of M, and restricts how that care and control is to be exercised. Having submitted her rights to the court in this manner, Ms. L. chose to defy the order that was made by refusing to bring M back to reside with her in Ontario. Parties to proceedings relating to the care and custody of vulnerable children cannot simply take the law into their own hands if the court makes an order with which they do not agree. To find that the order at issue is not a custody order within the meaning of s. 282(1) would, in my view, completely thwart the purpose of the legislation.
[106] Accordingly, I ruled that, as a question of law, the April 11, 2011 order is a “custody order” within the meaning of s. 282(1) and the requirement that Ms. L. return M to Ontario where she would reside with Ms. L. pending further order of the court is a “custody provision” in that custody order.
[107] There is no issue with respect to the November 8, 2011 order, which is a final order stating that the father “shall have sole custody” of the child and that the child “shall reside with” the father. Clearly that order falls within s. 282(1) of the Criminal Code.
Molloy J. Released: September 21, 2016
Footnotes
[1] R. v. C.M.L., 2016 ONSC 5499 [2] Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3. [3] Transcript, January 4, 2016, pp. 34-38. [4] R. v. Fabrikant (1995), 39 C.R. (4th) 1, 97 C.C.C. (3d) 544 (Q.C.C.A.); R. v. Bitternose, 2009 SKCA 54. [5] Illinois v. Allen, 397 U.S. 337 (1970); Fabrikant at paras. 40-50; Bitternose at para. 71. [6] Ibid, pp. 343-344. [7] R. v. Imona-Russell, 2011 ONCA 303. [8] Ontario v. C.L.A., supra, at paras. 49-56. [9] Ibid, at para. 49. [10] Ibid, at para. 50. [11] Ibid, at para. 50. [12] Ibid, at paras. 51-55. [13] Ibid, at para. 51. [14] Ibid, at para. 52. [15] Ibid, at para. 53. [16] Ibid, at para. 54. [17] Ibid, at para. 55. [18] Ibid, at para. 56. [19] Ibid, at para. 113. [20] Ibid, at para. 114. [21] Ibid, at para. 115. [22] Ibid, at para. 115. [23] Ibid, at para. 116. [24] Ibid, at para. 121. [25] R. v. Jaser and Esseghaier, 2014 ONSC 2277. [26] Ibid, at para. 38. [27] Ontario v. C.L.A., supra, at para. 51. [28] Ibid, at para. 52. [29] Ibid, at para. 53. [30] R. v. Dawson, [1996] 3 S.C.R. 783. [31] Ibid, at para. 20. [32] Ibid, at para. 26. [33] R. v. Petropoulos (1990), 59 C.C.C. (3d) 393 (B.C.C.A.). [34] Ibid, at para. 11. [35] R. v. Chartier, 2006 ONSC 4500. [36] Ibid, at para. 24. [37] Ibid, at paras. 28-29. [38] R. v. Rosevold, 2011 ONCA 431. [39] Ibid, at paras. 11-12.