Court of Appeal for Ontario

Date: 2018-11-05 Docket: C63961

Judges: MacPherson, Miller and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Andrea Lewin Appellant

Counsel

Mark Halfyard, for the appellant

Linda Shin, for the respondent

Heard: October 31, 2018

On appeal from: the order/judgment of Justice J. De Filippis of the Ontario Court of Justice, dated January 28, 2017.

Reasons for Decision

[1] The appellant and the complainant are the parents of twin children born in Canada. The complainant lives in the Netherlands, and the appellant moved with the children to live with the complainant in Amsterdam. They married and lived in Amsterdam for two years. After the relationship ended, the appellant obtained an order from a Dutch court allowing her to take the children back to Canada, which she did. The appellant then commenced an application in Ontario for divorce and custody of the children. She was granted custody, and the complainant was granted unsupervised access. The complainant's access was to take place monthly, when he would fly to Ontario from the Netherlands to see the children, now aged 7. A court order set out an access schedule for December 2015 to June 2016.

[2] In June 2016, the complainant had travelled to Ontario and was waiting to pick up the children at their school, as provided by the access schedule. As he waited, the appellant surreptitiously entered the school and removed the children from class. The complainant called the police and attempted to block the appellant's vehicle with his own. The appellant drove onto the grass to exit the parking lot, and then to the highway, driving aggressively, with the complainant following. Fearing for the children's safety, the complainant eventually discontinued his pursuit.

[3] The police arrested the appellant three days later. She pleaded guilty to one count of abduction of a child in contravention of a court order contrary to s. 282(1) of the Criminal Code. She received a suspended sentence. She appeals from sentence, arguing that the sentencing judge erred by:

Using the appellant's prior wrongdoing as an aggravating factor;
Not tailoring the sentence to the appellant's specific circumstances, and instead using the appellant's sentence to send a message of general deterrence.

[4] The appellant submits that she ought to have received a conditional discharge.

[5] We do not agree.

[6] The agreed facts on sentencing included prior instances of the appellant frustrating the complainant's access. Even though she was specifically punished for these instances through a family court contempt finding, the sentencing judge was entitled to consider the appellant's admitted course of conduct in determining whether a discharge would be contrary to the public interest. Taking the appellant's prior actions into account in this exercise is not a matter of punishing her twice for the same conduct.

[7] With respect to whether the sentencing judge erred in his consideration of the appellant's circumstances, or wrongly emphasized denunciation and deterrence, the appellant is essentially asking this court to reweigh the aggravating and mitigating factors. In the circumstances of this case, given the aggravated manner in which the appellant frustrated the complainant's access, the sentencing judge was entitled to find that it was not in the public interest to grant a conditional discharge.