COURT OF APPEAL FOR ONTARIO

DATE: 20030506

DOCKET: C36519

RE: HER MAJESTY THE QUEEN (Respondent) – and – URESH NATHU PATEL (Appellant)

BEFORE: WEILER, LASKIN and MOLDAVER JJ.A.

COUNSEL: Irina Ceric, for the appellant Gillian Roberts, for the respondent

HEARD: April 11, 2003

RELEASED ORALLY: April 11, 2003

On appeal from the conviction imposed by Justice Antonio Dizio of the Ontario Court of Justice, sitting without a jury, dated December 5, 2000.

E N D O R S E M E N T

[1] The appellant appeals his conviction for one count of abduction of a child under 14 contrary to section 283 of the Criminal Code.

[2] The appellant raises 3 grounds of appeal. They are first, failure of the trial judge to adequately weigh the complainant’s evidence having regard to various inconsistencies in her testimony; second, whether the trial judge in effect reversed the burden of proof; and third whether he erred in law in his application of the defence of consent.

[3] With respect to the first ground of appeal the trial judge adverted to some of the inconsistencies between the complainant’s trial evidence and statements she gave in affidavits filed in the family law matter. Having done so, he accepted her explanation for the inconsistencies and found as a fact that she had not consented to the child leaving the country. The trial judge was entitled to make the finding he did. We would dismiss this ground of appeal.

[4] With respect to the second ground of appeal we are satisfied that, reading the reasons as a whole, the trial judge did not err in his application of the burden of proof.

[5] Finally, the appellant submits that in order to be found guilty, the Crown had to prove more than lack of consent by the other parent. At the outset of his reasons, the trial judge asked counsel whether the only issue was whether or not the child had been removed without the consent of the other parent and defence counsel agreed. The mental element of “intent to deprive a parent” of possession of a child is established if the taker knows or foresees that his or her actions would be certain or substantially certain to result in the parent being deprived of the child. This case was not argued before the trial judge on the basis that more than lack of consent was required to satisfy the mental element. In any event, on this record, there is no air of reality to the defence of lack of intent to deprive. There is ample evidence to support the trial judge’s decision.

[6] The appeal is, therefore, dismissed.

“Karen M. Weiler J.A.”

“John Laskin J.A.”

“M.J. Moldaver J.A.”