DATE: 20051117
DOCKET: C41571
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – ABDUSALAM TWATI (Appellant)
BEFORE:
DOHERTY, WEILER and MOLDAVER JJ.A.
COUNSEL:
Paul Calarco
for the appellant
Joseph Perfetto
for the respondent
HEARD & RELEASED ORALLY:
November 9, 2005
On appeal from the sentence imposed on September 25, 2003 by Justice Sheila Ray of the Ontario Court of Justice.
E N D O R S E M E N T
[1] The appellant appeals his sentence of nineteen months imprisonment and three years probation following his guilty plea to parental abduction of a child under fourteen.
[2] In February of 1991, the appellant and his estranged wife, Gladys Young, had joint custody of their son, Jamal, then 2 ½ years old. The appellant picked up Jamal, for his regular exercise of custody rights and took him to Libya without Ms. Young’s consent. The appellant called Ms. Young to let her know Jamal was in Libya and maintained some contact with her and her parents for some years. The appellant returned in 1999, while Jamal remained with his paternal grandparents in Libya. The appellant claimed political instability and the confiscation of his son’s passport kept him from returning earlier. That said, the appellant’s conduct effectively deprived Ms. Young of any relationship with her son. The rift created by eleven years of separation may never be healed. The appellant’s excuses for not returning earlier ring hollow. He filed no evidence to show that he was seriously interested in returning to Canada or having his son returned to Ms. Young.
[3] In 2002, the appellant was arrested and charged with parental abduction of a child under fourteen. He served two and a half months pretrial custody. He plead guilty and a hearing was held to determine certain aggravating factors.
[4] At the outset of this appeal, the appellant sought to admit a letter from the Canadian Embassy in Rome written in 1996 in support of his assertion that he tried to return to Canada earlier than when he did in 1999. The respondent does not contest the admission of the letter but submits it ought not to have any effect on the sentence imposed. We agree. The letter simply states that the appellant had missed a scheduled hearing date respecting the issuance of a passport to him.
[5] The appellant submits that the sentencing judge’s reasons disclose a number of errors in principle. We agree that the sentencing judge erred when she said that the guilty plea was a neutral factor here because the appellant did not admit to all the aggravating factors respecting the crime that the Crown alleged. Rather than being neutral we think that the appellant was entitled to some benefit for his plea of guilty.
[6] We see no other error in principle in the reasons. We note the appellant’s argument that the sentencing judge erred in considering the psychological impact on the son Jamal in sentencing the appellant. The sentencing judge’s comments were made in response to defence submissions. The defence raised the best interests of the child and asked the sentencing judge to consider the effect on the child of depriving him of the care of his father. The defence asked that the father not be sent to jail and argued that it would be best to allow Jamal to continue to live with the appellant. The sentencing judge took into consideration that the father had not acted in the best interests of his child by taking him away from his mother at the age of two and a half and her comments were made in the context of responding to the appellant’s submission. Had we been of the view that the sentencing judge was imposing a higher sentence on the father in order to teach the son a moral lesson that would have been an error.
[7] Notwithstanding the error of the sentencing judge with respect to the effect of the guilty plea, we are of the opinion that the sentence imposed was in all the circumstances a fit and proper sentence. Accordingly, while leave to appeal sentence is granted, the appeal as to sentence is dismissed.
“Doherty J.A.”
“Karen M. Weiler J.A.”
“M. J. Moldaver J.A.”