COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sadeghi-Jebelli, 2013 ONCA 747

DATE: 20131212

DOCKET: C55732

Laskin, Gillese and Strathy, JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gholam Reza Sadeghi-Jebelli

Appellant

Anthony Marchetti, for the appellant

Amanda Rubaszek, for the respondent

Heard: July 15, 2013

On appeal from the conviction entered on April 20, 2012 by Justice Alfred J. O’Marra of the Superior Court of Justice, sitting with a jury.

Laskin J.A.:

A. OVERVIEW

[1] After a trial before a judge and a jury, Mr. Sadeghi-Jebelli was convicted under s. 282(1)(a) of the Criminal Code of the abduction of his son Paul Jebelli in contravention of the custody provisions of a custody order. He was sentenced to 22 months in jail, less seven months for pre-sentence custody. At the end of oral argument we advised the parties of the result – the appeal was allowed, the conviction was set aside, and a new trial was ordered – with reasons to follow. These are the reasons.

[2] We allowed the appeal because the trial judge instructed the jury that it could convict on a basis not particularized in the indictment. The indictment charged that sometime between April 30 and July 1, 1995, the appellant “did take away” his son Paul in contravention of a custody order, with intent to deprive Paul’s mother Ms. Cantwell-Hollett of possession of her son. The custody order referred to in the indictment was made by a provincial court judge on May 11, 1995. It gave interim custody of Paul to his mother.

[3] Sometime between December 1994 and May 1995 the appellant sent Paul to Iran, where he remained for 12 years. The appellant testified that he sent Paul in December 1994 with Ms. Cantwell-Hollett’s consent, as evidenced by her having co-signed Paul’s passport application. The Crown, however, alleged that the appellant was guilty on either of two bases: he sent Paul to Iran in May 1995, shortly before or after the custody order was made; or, he failed to return Paul once the order was made.

[4] The appellant’s defence that he had consent had an air of reality in the evidence, and the trial judge properly instructed the jury it. However, the trial judge also instructed the jury that it could convict the appellant on either of the two bases put forward by the Crown: if he arranged to send Paul to Iran in contravention of the custody order; or, if he failed to take steps to return Paul to his mother’s possession in compliance with the court order. That second basis for conviction should not have been left with the jury. The Crown must prove the offence particularized in the indictment. The indictment charged the appellant only with taking Paul away, not with detaining or harbouring him. Accordingly, the conviction could not stand.

B. BACKGROUND

[5] The main issues at trial were when Paul was taken to Iran and whether his mother consented to the taking. The evidence was most unusual.

(1) The Witnesses at Trial

[6] Only two witnesses testified for the Crown: a Ministry of the Attorney General employee, who entered the family court documents as exhibits, and Paul Jebelli, who at the time of trial was living with his father and his uncle Mehdi Jebelli. The appellant and Mehdi Jebelli testified for the defence.

[7] Ms. Cantwell-Hollett did not testify. The Crown claimed that it could not find her. However, in cross-examination Paul said that she was living in the Hamilton area, and in re-examination he said that he had given a police officer her phone number.

[8] The Crown then met with Ms. Cantwell-Hollett, interviewed her and asked to call her as a witness. The trial judge denied the request. He ruled that permitting the Crown to call her at that stage of the trial would irreparably damage the defence.

[9] During the pre-charge discussions, the Crown renewed its request. It asked to re-open its case to call Ms. Cantwell-Hollett. Again, the trial judge denied the request on the ground that permitting her to be called after all the evidence was in would prejudice the defence.

(2) Custody and Access Provisions for Paul Jebelli

[10] Paul Jebelli was born on May 15, 1990. An April 15, 1993 provincial court order gave the appellant custody of Paul, and gave Ms. Cantwell-Hollett access on alternate weekends. At the time, the appellant and his son lived in Toronto; shortly after the order was made, Ms. Cantwell-Hollett moved to Newfoundland. She rarely visited Toronto and rarely exercised her right of access.

[11] However, on January 20, 1995 Ms. Cantwell-Hollett brought an application in the provincial court, without notice to the appellant, for custody of her son and child support. Both Ms. Cantwell-Hollett and the appellant appeared before Justice Ball on March 13, 1995 and again on May 11, 1995 when he made an order granting Ms. Cantwell-Hollett interim custody of Paul. A further hearing was scheduled for June 6, 1995. The appellant did not appear and a warrant for his arrest was issued.

(3) Paul Goes to Iran

[12] The appellant testified that Ms. Cantwell-Hollett visited Toronto in January 1994 and that the family had dinner together. The appellant told Ms. Cantwell-Hollett that he wanted to send Paul to Iran for six to eight months to visit the appellant’s parents and extended family.

[13] The appellant testified that Ms. Cantwell-Hollett consented to the trip. She co-signed an application for Paul’s passport, which was needed for their son to travel out of the country. The appellant said that he sent Paul to Iran in December 1994 with the expectation that his son would return to Canada sometime in 1995.

[14] Paul also testified that he went to Iran in 1994 when he was about four and a half to five years old. He could not remember the exact date. He did, however, remember that he celebrated his fifth birthday (May 15, 1995) in Iran. His passport, which likely would have had a date stamp when he entered Iran, was not produced in evidence.

(4) 1995 to Early 2007

[15] Paul lived with his grandparents and extended family in Iran for twelve and a half years. During that period the appellant, was imprisoned in a camp in Iraq and father and son had no contact with each other.

[16] The appellant had joined a political organization known as People’s Mujahedin of Iran, which aimed to overthrow the theocratic regime in Iran. In 1995 the appellant went to Iraq to participate in the group’s activities. However, he became disillusioned with the group, and was imprisoned “incommunicado” until 2006, when American military forces secured his release.

[17] On his release, the appellant went to Iran to arrange for Paul’s return to Canada. He testified that he was surprised to learn Paul was still in Iran after so many years had passed. Paul came back to Canada in February 2007.

(5) 2007 Until Trial

[18] On his return to Canada, Paul lived briefly with another uncle. He then reunited with his mother and lived with her for a while, until she forced him to leave. He then lived on his own until 2009, when his uncle Mehdi Jebelli moved to Canada and they began living together.

[19] Meanwhile, after arranging for Paul’s return to Canada, the appellant went to Belgium where he sought asylum. He lived in Belgium for a while, but was eventually arrested for the abduction of Paul, and, in December 2010, was extradited to Canada. After being released on bail, he moved in with his brother and his son. At the time of trial, the three were living together.

C. Analysis

(1) The Relevant Criminal Code Provisions and the Indictment

[20] The appellant was charged under s. 282(1)(a) of the Criminal Code, which states:

(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 liable to imprisonment for a term not exceeding ten years;

[21] Consent is a defence. Section 284 of the Code provides:

No one shall be found guilty of an offence under sections 281 to 283 if he establishes that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was done with the consent of the parent, guardian or other person having the lawful possession, care or charge of that young person.

[22] Although the conduct proscribed by s. 282(1) comprises, “takes, entices away, conceals, detains, receives or harbours”, the appellant was charged only with taking his son Paul. The indictment read:

Gholam Reza Sadeghi-Jebelli stands charged that he, sometime between and including the 30th day of April in the year 1995 and the 1st day of July in the year 1995, at the Municipality of Metropolitan Toronto, in the Toronto Region, did being a parent of Paul Aryan Wayne Jebelli, a person under the age of fourteen years, in contravention of the custody provisions of a custody order in relation to the said Paul Aryan Wayne Jebelli, made by his Honour Judge Ball of the Ontario Provincial Court, Family Division, with intent to deprive Madonna Hollett, the parent of Paul Aryan Wayne Jebelli of the possession of Paul Aryan Wayne Jebelli, did take away the said Paul Aryan Wayne Jebelli, contrary to Section 282(1)(a) of the Criminal Code.

(2) The Principle that the Offence Particularized in the Charge Must be Proved

[23] When the Crown charges an accused with an offence, and particularizes the way the offence was committed, it must prove the offence as particularized in the charge. The Supreme Court of Canada affirmed this principle in R. v. Saunders, 1990 CanLII 1131 (SCC), [1990] 1 SCR 1020 at 1023. McLachlin J. said: “It is a fundamental principle of criminal law, that the offence, as particularized in the charge, must be proved”. So, for example, if the Crown charges an accused with trafficking in heroin, it cannot, without an amendment to the charge, obtain a conviction for trafficking in cocaine.

[24] This principle is grounded in fairness. Particulars permit “the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and fair trial”. See R. v. Côté, 1977 CanLII 1 (SCC), [1978] 1 SCR 8 at 13. This principle is subject to an exception for “mere surplusage”, or information in the indictment that is not essential to the offence, but that exception does not apply here. See R. v. Vézina, 1986 CanLII 93 (SCC), [1986] 1 SCR 2 at para. 49.

(3) Application of the Principle to this Case

[25] The Crown particularized the charge against the appellant. The indictment charged that the appellant “did take away” his son. Thus, the Crown had to prove:

• The appellant took away his son Paul;

• He did so in contravention of the custody provisions of a custody order;

• He did so with intent to deprive Paul’s mother of possession of her son; and

• He did so without the consent of Paul’s mother.

[26] The appellant claimed that he sent Paul to Iran in December 1994 and that he did so with Ms. Cantwell-Hollett’s consent. The trial judge did instruct the jury that if it had a reasonable doubt whether Ms. Cantwell-Hollett consented, it should acquit.

[27] The Crown alleged that the appellant did not send Paul to Iran in 1994; rather he sent his son there months later – shortly before or after the order granting interim custody of Paul to Ms. Cantwell-Hollett in May 1995. He did so, according to the Crown, to keep control over his son and deprive Ms. Cantwell-Hollett of custody. If the jury accepted these allegations, then undoubtedly the appellant was guilty of the charge as particularized.

[28] The problem in the charge arose because the trial judge instructed the jury on the Crown’s alternative argument. The Crown argued in the alternative that even if the appellant initially had Ms. Cantwell-Hollett’s consent to take Paul to Iran, once the interim custody order was made in May 1995, he had to comply with that order by returning Paul to his mother, and he did not do so.

[29] The trial judge outlined this argument for the jury as follows:

If Ms. Cantwell-Hollett provided verbal consent permitting Mr. Jebelli to remove Paul from the country, she no longer consented after she commenced her application in January 1995, and it no longer applied. The Crown argued, if the consent existed at all, then after the May 11, 1995 order had been made, it had ended with her right to interim custody. Any consent that may have existed prior to May 11, 1995, evaporated on the granting of the order for interim custody. Mr. Jebelli had an obligation to comply with that order and he did not.

[30] Then, in instructing the jury on whether the appellant intended to deprive Paul’s mother of possession of her son, the trial judge said:

Number five: Did Mr. Jebelli intend to deprive Ms. Cantwell-Hollett of possession of Paul? This element has to do with Mr. Jebelli’s state of mind at the time he took steps to send Paul to Iran or failed to take steps to return him to the possession of his mother in compliance with the court order. To intend to deprive a parent of possession of a child is to somehow put the child beyond the reach of the other parent’s control or custody. Even a brief or short period of time is enough.

[31] This instruction was wrong because the appellant was charged only with taking away his son, not with detaining or harbouring him. On this instruction, the jury could have accepted that Ms. Cantwell-Hollett consented to Paul’s going to Iran in December 1994, or had a reasonable doubt that she did not, but nonetheless found the appellant guilty because he did not bring Paul back to his mother once the custody order was made. That basis for conviction should not have been left with the jury on the indictment as particularized.

[32] The Crown’s alternative basis for conviction could properly have been left with the jury if the appellant had also been charged with detaining or harbouring his son in contravention of the May 11, 1995 custody order. If the indictment had been particularized in that way, then the Crown would have had to show that the appellant intended to keep Paul in Iran to deprive Ms. Cantwell-Hollett of custody of her son. That, however, was not the charge the appellant had to meet. Thus, his conviction must be set aside.

(4) The Definition of “Takes” in s. 282(1)(a), Amending the Indictment, and the Directed Verdict Appeal

[33] Three final points. First, I accept the Crown’s submission that the word “takes” in s. 282(1)(a) of the Criminal Code should be interpreted broadly, consistent with the purpose of the section: to prevent one parent from intentionally interfering with the other parent’s lawful right to custody of their child. See R. v. Dawson, 1996 CanLII 150 (SCC), [1996] SCJ No. 113 at paras. 15 and 19. Thus, a taking contrary to s. 282(1) need not be solely a singular or discrete act; it may continue for some time. See R. v. Goudreault, [2005] AJ No. 1296 (C.A.).

[34] For example, suppose a court order gives custody of a child to the mother and allows the father to take the child on vacation for two weeks. If the father takes the child on vacation but doesn’t return the child until a year later, the father is guilty of abduction. The “taking” would be a continuous act, which ended only when the child was returned. See R. v. Hammerbeck, [1993] BCJ No. 685.

[35] These continuous “taking” cases do not apply here. On the appellant’s evidence he sent to Paul to Iran months before Ms. Cantwell-Hollett obtained an order for custody of her son. He therefore did not “take” Paul in contravention of the custody provisions of a custody order.

[36] Second, in her factum and in oral argument, Ms. Rubaszek for the Crown asked that the indictment be amended in two respects:

• To extend the time frame to begin in December 1994 to conform to the evidence; and

• To add to the charge the words “conceals”, “detains” or “harbours”.

[37] Although we have jurisdiction under s. 683(1)(g) of the Code to make the amendment, we declined to do so. We concluded that the amendment would prejudice the defence because it would require the appellant to meet evidence not presented at trial.

[38] Third, at trial, the appellant applied for a directed verdict of acquittal at the close of the Crown’s case on the ground the Crown had not led any evidence that Paul had been “taken” during the time frame of the indictment, April 30 to July 1, 1995. The trial judge dismissed the application. He ruled that as Paul testified he was four and a half to five years old when he went to Iran, there was some evidence that Paul was taken there during the time frame in the indictment.

[39] The appellant also appealed the trial judge’s ruling on the directed verdict application. This aspect of the appellant’s appeal must fail. In the light of Paul Jebelli’s testimony, the trial judge was correct to dismiss the application.

D. conclusion

[40] The appeal is allowed, the conviction for abduction is set aside, and a new trial is ordered.

Released: December 12, 2013 (“JL”)

“John Laskin J.A.”

“I agree. E.E. Gillese J.A.”

“I agree. G.R. Strathy J.A.”