WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:

486.5 Order restricting publication — victims and witnesses.

(1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) Justice system participants. — On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

486.6 Offence.

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Toronto

Date: 2013-04-02

Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Patricia O'Byrne

Before: Justice Mara Greene

Reasons for Judgment released: April 2, 2013

Counsel:

M. Callahan & N. Krigas ……………………………………… for the Crown

J. Greenspan ……………………………………………….…. for Patricia O'Byrne

Judgment

Greene, J:

Introduction

[1] On December 1, 2011 at approximately 7:00am, Ms. O'Byrne was arrested in Victoria, B.C., and charged with abduction in contravention of a custody order. On February 15, 2013, Ms. O'Byrne entered a plea of guilty to this offence. At the sentencing hearing, victim impact statements were filed as well as materials relevant to Ms. O'Byrne's personal circumstances. Moreover, counsel filed a joint book of authorities and made extensive submissions on sentencing.

The Offence

[2] Ms. O'Byrne and Mr. Chisholm met in 1986 and had a child together in September of 1991. They named the child S.C.. In June, 1992, the couple separated and eventually family court proceedings were initiated to address the issue of custody.

[3] On May 10, 1993, a custody agreement was signed by both Ms. O'Byrne and Mr. Chisholm and by a family court Judge. This agreement held that S.C.'s primary residence would be with Ms. O'Byrne and that Mr. Chisholm would have generous access to his daughter. Pursuant to the agreement Ms. O'Byrne was not to change her primary residence more than 50 km from the Municipality of Metropolitan Toronto.

[4] The custody agreement allowed for Ms. O'Byrne to travel to South Carolina with S.C. from May 17, 1993 to May 30, 1993. On May 28, 1993, however, Ms. O'Byrne's lawyer received an unsigned letter from Ms. O'Byrne advising that she had left the jurisdiction and that Mr. Chisholm would not be able to locate her.

[5] In the investigation that followed it was discovered that Ms. O'Byrne obtained government identification for herself and S.C. in false names and under false pretences. She created new identities for herself and her daughter including new names and new dates of birth. Ms. O'Byrne and S.C. (otherwise known as T.W) lived under the assumed identities until Ms. O'Byrne's arrest in 2011.

[6] Upon discovering that Ms. O'Byrne had left the country with S.C. with no intention of returning, the family court vacated the original custody agreement and a new custody order was issued granting Mr. Chisholm sole custody of S.C.. On June 10, 1993, a warrant for the arrest of Ms. O'Byrne was issued.

[7] Over the next 18 years, Mr. Chisholm worked tirelessly to locate his daughter. He used the resources of child find agencies and policing agencies. He also expended significant financial resources chasing leads all to no avail.

[8] On October 4, 2011, the police received an anonymous tip that Ms. O'Byrne was living in Victoria, B.C. under the assumed name of P.W.. After two months of intensive investigation by the police, Ms. O'Byrne was in fact located and her assumed identity was confirmed.

[9] It was conceded by the Crown and formed part of the agreed statement of fact on the plea of guilty, that Ms. O'Byrne is a survivor of sexual abuse and that at the time of abduction, she was convinced, albeit wrongly, that Mr. Chisholm was putting her daughter at risk by using male babysitters. Ms. O'Byrne, because of her own background, wrongly believed that her daughter would fall to the same fate she suffered. As a result of this faulty reasoning, Ms. O'Byrne wrongly reached the conclusion that the only way to keep her daughter safe was to disappear.

[10] The Crown further concedes that at the time that Ms. O'Byrne left Toronto with her daughter she genuinely believed that she was acting in the best interests of her daughter and was doing what was necessary to protect her from harm.

[11] Nonetheless for the next 18 years, long after Ms. O'Byrne's concern for her daughter's safety had passed, Ms. O'Byrne did not turn herself in and give her daughter a chance to reconnect with her family. Instead, she took her daughter over international borders under assumed names and deprived Mr. Chisholm of a daughter he loved and S.C. of a father. It can be inferred that at some point during the 18 years, the continued abduction was a product of Ms. O'Byrne's concern over being detected and prosecuted as opposed to her daughter's wellbeing.

Victim Impact Information

[12] I was provided with victim impact information in relation to S.C.'s father, Joseph Chisholm, and in relation Donald Chisholm and Joan Cadham, S.C.'s paternal grandparents. I also received a written statement from S.C., under her present name of T.W.. I will attempt to summarize as best as possible the general tone and content of these statements.

[13] In attempting to summarize the content of Mr. Joseph Chisholm's statement, I recognize that I cannot possibly do it justice. Mr. Chisholm's strength, compassion, insight and kindness are so obvious from the way his statement is written, but so hard to summarize in a judgment. What is equally obvious from his statement is the extreme pain he has endured over the past 18 years all as a result of Ms. O'Byrne's conduct. But Mr. Chisholm's statement is also so much more. Mr. Chisholm, in his impact statement, took the time to thank all the different agencies and people who have helped him over the years. This highlighted to me, not only the kindness and compassion that lies within the core of Mr. Chisholm but also the reality of how far reaching Ms. O'Byrne's conduct was. This crime did not just affect the Chisholm family, but affected the whole community.

[14] Mr. Chisholm, in expressing the impact of having his child abducted for eighteen years wrote:

For 18+ years I have had a provisional life. I do not function to capacity at work or in play. I have sought help and have become acquainted with diagnosis such as post-traumatic stress disorder, anxiety and situational depression. How these labels have manifested in my life include memory loss, disorientation, depression, neglect of self-care, years of guilt, loss of pleasure from normal life activities, lack of motivation for work, hobbies, physical fitness, despair, sleep disorder, anxiety and underachievement professionally and personally. With sleep disorder, it is impossible to perform professionally with the needed proficiency. The inability to remember appointments, plan around what time of day I will be sleeping or awake or looking into the week ahead to anticipate when I will be fit for work duty and when I will not has been costly and embarrassing.

Mr. Chisholm further wrote:

A provisional life makes family gatherings something I dread. I love my family but the absence of a loved one who should be there with us, chocked the joy out of an otherwise great time. Over 18 years, suffering through our daughter's birthday and traditional family holidays has just increased my suffering.

[15] It is clear from Mr. Chisholm's statement that he has spent much of the past 18 years in pursuit of his daughter. He has expended time, money and energy searching for her, only to be disappointed at each false lead. The abduction of his daughter has affected every aspect of Mr. Chisholm's life. Despite the clear pain and agony that Ms. O'Byrne's conduct has created, Mr. Chisholm's love for his daughter and utter selflessness is best displayed in the final passage of his statement where he wrote:

Our daughter was well cared for. Our daughter has been found. The wrongs cannot be undone. They can, however, be exacerbated. Kids and young adults tend to take responsibility for certain things, be it consciously or subconsciously. I don't want our daughter to feel responsible for anyone's suffering – not mine and not her mother's. Empathy is what's called for in sentencing and probation. If you want to take my needs and wishes into consideration, please show mercy. If you want to take our daughter's needs and wishes into consideration please show mercy. I hope that this can be taken into account when considering a fair and justice sentencing.

[16] One final observation I make about Mr. Chisholm's victim impact statement (though I appreciate that he is reluctant to use the term victim), is that he is truly a wonderful person and while I appreciate that S.C. has grown into a wonderful young woman, there can be no doubt she would have benefitted greatly from knowing her father.

[17] I also received victim impact statements from S.C.'s paternal grandparents. They have both suffered in a number of ways from this offence. Firstly, they missed the chance to see S.C. grow up and have felt her absence from their life. Secondly, they had to watch their son suffer every day for 18 years while he searched for his daughter.

[18] The pain and suffering this offence has caused runs deep but as Joseph Chisholm so aptly wrote, "this is a crime that cannot be undone". No sentence I impose can undo the harm suffered by all the victims in this case.

[19] I also received a letter from S.C.. She expressed the impact of this offence on her more in terms of what happened after her mother was arrested. Upon her arrest, Ms. O'Byrne was placed in jail and remained in jail for six weeks before judicial interim release was secured. S.C. had to see her mother in jail, has spent the past year and half worried about her mother and this prosecution and, because of the widespread publicity of this case, S.C. has lost her privacy was hounded by the media and eventually had to leave school for a while.

[20] In relation to her father, S.C. wrote that it is difficult to articulate a loss of a parent she did not know. I suspect this is true. As previously expressed, however, there can be no doubt that being raised without a father, in particular one so exceptional as Mr. Chisholm, is a loss to S.C..

Circumstances of the Offender

[21] Twenty years ago, Ms. O'Byrne abducted her daughter contrary to a custody order because she mistakenly believed that her daughter's safety would be at risk if left in the care of her father or anyone else. As was stated in the agreed statement of fact "Ms. O'Byrne became increasingly frantic and frightened for her daughter while in her father's care. Ms. O'Byrne thought that the only way to keep her daughter safe was to disappear. She believed she was the only one who could keep her daughter safe, which in turn motivated her to abduct her child.

[22] A brief review of Ms. O'Byrne's own childhood helps explain how Ms. O'Byrne could form such a mistaken belief that then led to the commission of a horrible offence. Ms. O'Byrne, herself, is the victim of childhood sexual abuse by male caregivers. She also witnessed her mother being abused by her partner. On one occasion, her mother was so badly beaten that she was hospitalized and required plastic surgery to her face. No one should have to live through what Ms. O'Byrne lived through.

[23] Ms. O'Byrne's history of abuse as a child left her distrustful of men in general and when she had a child, it made her hyper vigilant in her need to protect her daughter from any perceived threat. It also impacted her perception of Mr. Chisholm's conduct towards his daughter, in particular his use of male baby-sitters. As a result of her own experiences as a child, Ms. O'Byrne truly believed at the time that the only way to keep her daughter safe was to disappear.

[24] As an adult, prior to having S.C., Ms. O'Byrne in part dealt with the abuse she suffered as a child by drinking. She later, sought help, joined Alcoholics Anonymous, and started attending counselling session. It was in this latter time frame that Ms. O'Byrne met Mr. Chisholm.

[25] Prior to becoming pregnant with S.C., Ms. O'Byrne was diagnosed with depression and started taking medication to help her with her ongoing mental health issues. She stopped taking her medication when she was pregnant with S.C..

[26] While little information was provided to the court about Ms. O'Byrne's activities in the first ten years after the abduction, from the reference letters provided, she clearly spent significant time in Ireland and became active in an Anglican church there. The one reference letter provided from that era portrays Ms. O'Byrne as a devoted and dedicated mother as well as wonderful and caring human being.

[27] Upon arriving in British Columbia, a decade ago, it seems that Ms. O'Byrne found gainful employment with the government, engaged in volunteer work in the community, cared for her daughter and made good friends. Numerous support letters were filed with the court outlining all the positive activities that Ms. O'Byrne engaged in over the past decade. One notable achievement was that Ms. O'Byrne initiated the development a sexual assault prevention program in a high school in Victoria. This program apparently still runs today.

[28] The reference letters all speak to the fact that Ms. O'Byrne was a hard worker and was always gainfully employed. She juggled the balance of working fulltime to support a family and being there for her daughter very well. Ms. O'Byrne was laid off from work a few months before her arrest. As a result of this, she applied and was accepted into a master's program for counselling. A program she was then not able to attend because of her arrest.

[29] The reference letters also speak of Ms. O'Byrne's commitment to her daughter and outline just how amazing S.C. is. She is clearly a wonderful young woman, and to some extent this is a product of being raised by a loving and caring mother.

[30] From all the material provided, I conclude that since abducting her child, Ms. O'Byrne appears to have led a productive life and been a wonderful mother. I hesitate to refer to her existence as pro-social, however, as she spent the past eighteen years living under a false identity and continued to be in breach of a court order.

[31] There can be no doubt being arrested and charged with this offence has had a huge effect on Ms. O'Byrne. She was detained in custody for six weeks prior to her release, she had to drop out of her university program and was subject to constant public scrutiny. Due to outstanding charges, it was difficult to find work and Ms. O'Byrne effectively depleted her savings before she found employment with a not for profit agency called PEERS, in July, 2012. Ms. Little, the Executive Director of PEERS and a personal friend of Ms. O'Byrne described her in a letter dated January 30, 2013 as an excellent employee who was integral to stabilizing the charity and has increased the efficiency of the agency.

[32] Ms. O'Byrne has also engaged in counselling since her arrest. She has attended 21 counselling sessions to help her better understand her actions and deal with her past.

[33] As Ms. O'Byrne noted in her statement to the court, what has been most difficult since her arrest is watching her daughter suffer. S.C. was chased through the streets by reporters to the point that she was driven from her university campus. S.C. lost her privacy at a time when it was most needed and then had to watch her mother, who she loves so very much, be incarcerated.

Issues Raised in the Case at Bar

[34] Both counsel agree that a reformatory sentence is the appropriate disposition in the case at bar. The main difference between the Crown and the defence is that defence counsel is seeking a conditional sentence whereas the Crown argued that Ms. O'Byrne must serve her sentence in a jail.

The Relevant Legal Principles

i) General Legal Principles

[35] The overarching principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is best determined by considering all the aggravating and mitigating factors while keeping in mind the objectives of sentencing which include:

a) General and specific deterrence

b) Denunciation

c) Rehabilitation

d) Reparation to society and/or the victim

e) Separation from society where necessary

f) The need to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.

[36] How much weight I place on any one objective will depend on the facts of each case. It is, however, well recognized that in cases involving child abductions contrary to custody orders, the principles of general deterrence and denunciation are paramount (see R. v. Pasdari, [2003] O.J. No. 319 and R. v. Melville, 2011 ONSC 5697, [2011] O.J. No. 4403). In R. v. P.M., [1997] O.J. No. 13 the Court of Appeal highlighted the importance of general deterrence in these types of cases. Osborne J.A. held at paragraph 28:

Child abduction, even by a parent, is a serious matter. Canada's commitment to protecting children from wrongful taking by a parent is evidenced by the fact that Canada is a signatory to the Hague Convention and by Canada's Extradition Treaty with the United States which includes parental child abduction as an extraditable offence. In my opinion, in sentencing the appellant the trial judge was correct in recognizing that general deterrence was a significant factor to be taken into account.

[37] More recently, Justice Ducharme in R. v. Melville, 2011 ONSC 5697, [2011] O.J. No. 4403 clearly articulated why general deterrence plays such a significant role in cases where children are abducted by a parent contrary to a custody order. At paragraph 20 Justice Ducharme stated that general deterrence is an important objective because:

(1) Abduction of children contrary to family court orders are rarely spontaneous crimes. They are far more likely to involve advance planning in terms of travel and financial arrangements; (2) the persons committing the crime will have been involved in the family court system and are often assisted by counsel. Consequently, they are far more likely to be made aware of the potential punishment for abduction contrary to an order; and (3) all such abductions will be detected as soon as the other parent is unable to contact the child. As the identity of the abductor will almost always be obvious, the risk of apprehension increases exponentially, especially if the other parent has the means to search for the child. If the abducting parent is apprehended, the chances of a successful prosecution under s.282 or s. 283 of the Criminal Code are high.

[38] While not youthful, Ms. O'Byrne still comes before the court as a first offender. As such, I must also keep in mind the principle of restraint. The Court of Appeal stated, in R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at paragraphs 32-33:

… the appellant was a first offender. As such, the restraint principle requires that the sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest, (1996), 30 O.R. (3d) 538, at p. 545.

ii) The Conditional Sentence Regime

[39] Conditional sentencing was introduced in Canada as part of Bill C-41 reforms. The model was described by the Supreme Court of Canada in R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6 as follows, at paragraphs 21-22:

The conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders. The offenders who meet the criteria of s. 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. These offenders' liberty will be constrained by conditions to be attached to the sentence, as set out in s. 742.3 of the Code. In case of breach of conditions, the offender will be brought back before a judge, pursuant to s. 742.6. If an offender cannot provide a reasonable excuse for breaching the conditions of his or her sentence, the judge may order him or her to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence.

[40] Section 742.1 of the Code lists essentially six criteria that a court must consider in deciding whether to impose a conditional sentence:

(1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;

(2) the offender must not be convicted of an offence that is statutorily barred from the imposition of a conditional sentence. For example, a conditional sentence is not available for a serious personal injury offence – which is defined in s.752 of the criminal code as an indictable offence involving the use of violence or attempted use of violence or an indictable conduct endangering or likely to endanger the life or safety of another person or likely to inflict severe psychological damage upon another person or indictable sexual offence…;

(3) the offender must not be convicted of a terrorism offence or a criminal organization offence prosecuted by indictment and punishable by a maximum of ten years or more of imprisonment;

(4) the court must impose a term of imprisonment of less than two years;

(5) the safety of the community would not be endangered by the offender serving the sentence in the community; and

(6) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing prescribed in ss. 718 to 718.2 of the Criminal Code.

[41] The first five criteria are necessary conditions that must be satisfied before a conditional sentence may be imposed. If met, the final question the court must consider is essentially whether a conditional sentence is the appropriate disposition.

Application of the Law

[42] It should first be noted that there is no issue that first five criteria for imposing a conditional sentence are met. No minimum sentence attaches to this offence, Parliament has not listed this offence as an offence where a conditional sentence cannot be imposed, and both parties agree a penitentiary sentence would not be appropriate in this case. Moreover, I am satisfied that the public safety would not be put at risk by the imposition of a conditional sentence. There is no realistic risk that Ms. O'Byrne will reoffend. With this in mind, the main issue that this court must decide is whether a conditional sentence is appropriate and properly reflects the relevant principles of sentencing.

[43] In assessing whether a conditional sentence properly reflects the objectives and principles of sentencing, this court must keep in mind that the principles of deterrence and denunciation are of great importance in this case.

[44] This court must also keep in mind that even where there is no statutory bar to the imposition of a conditional sentence, there will be times when the gravity of the offence coupled with the need to deter others from committing such offences will demand a period of incarceration. The question is whether this is such a case.

(a) The Aggravating and Mitigating Factors

[45] The first step in determining the appropriate sentence is to consider all the relevant aggravating and mitigating factors.

[46] I find the following factors to be aggravating:

a) S.C. was abducted at a very young age;

b) S.C. was abducted for 18 years, leading to the reality that she now has no working memory of her father, half-brother and grandparents;

c) The offence was a heavily planned event;

d) Ms. O'Byrne used false documents and created false identities for herself and S.C.;

e) S.C. was taken over international boundaries making detection harder;

f) S.C. was deprived of a relationship with her entire family on her father's side;

g) Mr. Chisholm and his parents were deprived of relationship with S.C. for eighteen years and did not get to watch her grow up;

h) This was not just one spontaneous mistake. Every day for 18 years Ms. O'Byrne actively chose to continue committing this offence and live under an assumed identity;

i) Significant time and resources were spent trying to track down S.C.;

j) Extensive harm was caused to Mr. Chisholm and his family;

k) Ms. O'Byrne effective lived a lie for 18 years by living under an assumed name, varied birth dates and false backgrounds;

l) Ms. O'Byrne obtained false government identification for herself and S.C.; and,

m) This offence harmed the whole community.

[47] The mitigating factors in this case include:

a) Ms. O'Byrne entered a plea of guilty thereby saving the victims from having to testify and also reducing the stress the fact of the impending trial had on the developing relationship between S.C. and Mr. Chisholm;

b) Ms. O'Byrne is remorseful for her conduct;

c) Ms. O'Byrne is a first offender and not likely to re-offend;

d) Ms. O'Byrne has great prospects for rehabilitation;

e) Ms. O'Byrne, despite committing this horrible offence, was a great mother to S.C. who has grown up to be an exceptional young woman;

f) Ms. O'Byrne is otherwise of good character, albeit she has spent the past 18 years committing a criminal offence;

g) Ms. O'Byrne had a traumatic childhood that influenced her initial decision to abduct S.C.;

h) Unlike other cases referred to, the initial abduction was not committed out of revenge or with an intent to harm Mr. Chisholm, but out of a desperation created by her mistaken belief that her daughter's safety was at risk;

i) Ms. O'Byrne is gainfully employed;

j) Ms. O'Byrne has suffered many informal consequences including public condemnation given the wide spread media attention her case has received, having to leave her university program and the depletion of her life savings because it took her a long time to find a new job after her very public arrest;

k) Ms. O'Byrne is now taking responsibility for her actions, albeit it is over 18 years later and she did not voluntarily turn herself in;

l) Ms. O'Byrne has substantial community support;

m) Ms. O'Byrne has engaged in volunteer work in the community; and,

n) Ms. O'Byrne has engaged in counselling since her arrest.

(b) Range of Sentence Generally Imposed in Similar Cases

[48] While sentencing is always an individualized process, a review of the general range of sentence normally imposed for similar offences is a necessary starting point. As was noted in R. v. McDonnell, [1997] S.C.J. No. 42, starting point sentences as set out by the appellate courts act as guides to the lower courts on the appropriate disposition. While a sentencing judge may, in exceptional cases, impose a sentence outside the general range of sentences normally imposed for similar offences, where the sentencing judges chooses to do so, the sentencing judge must clearly articulate the basis for such a deviation.

[49] Mr. Callaghan on behalf of the Crown and Ms. Greenspan on behalf of Ms. O'Byrne provided me with a joint book of authorities that included many cases where sentences were imposed on parents convicted of abducting their children. The facts supporting the convictions for these cases varied widely as did the sentences imposed. The sentences ranged from an absolute discharged imposed by the Ontario Court of Appeal in R. v. Neundorf, [2011] O.J. No. 5241 (C.A.) to as high as a four year penitentiary sentence imposed by the Ontario Court of Appeal in R. v. A.M., [2005] O.J. No. 1829 (C.A.). Both parties agreed that while it is helpful to review all these cases, the case at bar can easily be distinguished from those cases where discharges have been granted and those cases where penitentiary sentences have been imposed. I will therefore only review the cases that are most similar to the case at bar. I do note however, that the general tone of the cases that I find are most similar to the case at bar, suggests that a conditional sentence is not normally an appropriate sentence.

[50] In R. v. Goudreault, [2005] A.J. No. 1296 (Q.B.), Ms. Goudreault abducted her son when he was four years old, just two weeks after the family court granted custody to the father of the child. Ms. Goudreault took their child to Mexico for three years and then moved to Los Angeles where she lived with her son until she was arrested in 2004, some 15 years after the initial abduction. In that case a sentence of six months incarceration was imposed. There are some striking similarities between the case at bar and the Goudreault case. First, the abduction in both case lasted a very long time. Second, the abduction included crossing international borders and thirdly, in both cases the child was very young and was gone so long that the child effective had no memory of the other biological parent. The biggest differences are that in the case at bar, the abducted child is building a relationship with her father and that at the time of the abduction, Ms. O'Byrne was under the mistaken belief that her child would be harmed if she did not leave with her. I note, however, that in imposing a sentence of six months, the court was not sending the message this was the right sentence, it was just the highest sentence the court could impose given the fact that the Crown elected to proceed summarily.

[51] In R. v. P.M., [1997] O.J. No. 13, the Ontario Court of Appeal upheld a six month sentence for a father who abducted his child for three years and five months. The abduction came to an end when the child was recognized from a child find poster and P.M. was arrested. In that case the father took the child to Mexico. From Mexico the father travelled with the child throughout the United States. In upholding the six month sentence for a first offender, the court commented on the seriousness of the offence and the need for general deterrence.

[52] In R. v. Sadeghi-Jebelli, [2012] O.J. No. 2904 (SCJ), the offender was sentenced to 22 months incarceration for abducting his son and sending him to Iran for 12 years to live with the child's paternal grandparents. The arrest was only made after the son returned to Canada 12 years later to avoid military service in Iran. In sentencing Mr. Sadeghi-Jebelli to 22 months in jail, the court noted the lack of remorse, the fact that the son was sent to a volatile country, that the father was not even with the son in Iran and that Iran is not a signatory to the Hague Convention on international child abduction which would have made apprehension even more difficult. This case is easily distinguishable from the case at bar. Firstly, Ms. O'Byrne entered a plea of guilty where Mr. Sadeghi-Jebelli had a trial. Other differences include that: (a) Ms. O'Byrne was acting out of a concern for her child's safety; (b) Ms. O'Byrne had a traumatic childhood; (c) Ms. O'Byrne remained with her daughter and was an excellent mother; (d) Ms. O'Byrne is remorseful for her conduct; and, (e) Ms. O'Byrne has taken full responsibility for her actions.

[53] In R. v. Getliffe-Grant, 2006 BCSC 1944, [2006] B.C.J. 3336, the court imposed a sixteen month sentence where Ms. Getliffe-Grant abducted her two children and moved to France for five years contrary to a custody order. I note that in this case, two days before the abduction, Ms. Getliffe-Grant applied to the Court to allow her to take the children to France for 10 months. When the Court denied her application, she chose to ignore the Order and go to France with her children anyways. Ms. Getliffe-Grant's conduct showed a blatant disregard for the rule of the law and the custody rights of the father. The Court also held that Ms. Getliffe-Grant either intentionally vilified the biological father or intentionally failed to correct misleading information about the father in an attempt to retain her illegal custody of the children. Ms. Getliffe-Grant also threatened the father of her children that if he pursued any remedies for her breach of the Order, he would never see his children again. Ms. Getliffe-Grant was arrested when she returned to Canada to defend her thesis for school. Her children, however, remained in France at the time and it took a long time for the father to find his children. The sentencing judge held that Ms. Getliffe-Grant either directed that her children be hidden from their father after her arrest or was complicit in such actions. The differences between these two cases are obvious. In the case of Getliffe-Grant, the abduction was for a far shorter period of time, but Ms. Getliffe-Grant's overall conduct was far more aggravating.

[54] Of all the cases provided, the one that I find to be most similar is that of R. v. Melville, 2011 ONSC 5697, [2011] O.J. No. 4403. In that case, like the case at bar, Ms. Melville had custody of her child and the father had generous access rights. Pursuant to the custody order, Ms. Melville was not permitted to take their child outside of Ontario without permission from the father. In 1997, when their child was only five years old, Ms. Melville nonetheless travelled to Florida with her child and remained there for 12 years without any communication with the father of the child. During the 12 years, the father of the child travelled throughout the United States and other places in search of his child to no avail. Ms. Melville was arrested in 2008 when she voluntarily returned to Canada with her now grown-up son so he could attend University here. The Court held that despite numerous mitigating factors including that she turned herself in, entered a plea of guilty (albeit after a preliminary inquiry was conducted), and was a victim of two domestic assaults by the father of her child, that a conditional sentence would not meet the principles of sentencing. The Court held that given all the relevant factors, and the need to denounce the conduct and deter others from committing similar offences, a six month custodial sentence was necessary.

[55] In some respects the case at bar is more aggravating. Ms. O'Byrne abducted S.C. for six years longer than Ms. Melville abducted her son. Moreover, Ms. Melville turned herself in to police in order to ensure her son had a good university education while Ms. O'Byrne's arrest was the product of exceptional police work. In other respects Ms. O'Byrne's case is more mitigating in that she took S.C. out of a true belief that her child's safety demanded it. While Ms. Melville had been the victim of two relatively minor domestic assaults, Justice Ducharme ultimately held that in relation to some of the accusations Ms. Melville made against the father of her child that she "exaggerated in an attempt to provide greater justification for her actions". Moreover, while Ms. Melville did enter a plea of guilty, she did so only after having a preliminary inquiry. Ms. O'Byrne, on the other hand, entered a plea of guilty without forcing any of the victims to testify. More importantly, Ms. O'Byrne did not attempt to make false excuses for her conduct. She entered her plea of guilty and has taken full responsibility for her actions.

(c) Use of Victim Impact Information

[56] There is one final piece of information provided to the court that bears mentioning. Mr. Chisholm and S.C. have both asked the court to show mercy in determining the appropriate sentence. Both Mr. Chisholm and S.C. have been careful not to express specific opinions as to the appropriate sentence, but it is clear that both these victims wish for a sentence that will not result in Ms. O'Byrne being incarcerated. Mr. Chisholm, in his statement, expressed a concern that the sentence I impose would serve to exacerbate the harm caused by this offence, not only to him but also to S.C.. For this reason, he asks the court to show mercy. S.C., in her letter to the Court expressed how painful it would be for her to see her mother in jail, and what a loss it would be for her. I note that in my view, Mr. Chisholm's and S.C.'s words are more than an expression of their wishes on sentence. They are expressions of their opinion about the potential impact a custodial sentence will have on them. The concern is that instead of restoring what was lost because of the crime committed by Ms. O'Byrne, the sentence I impose will exacerbate the harm caused by the offence.

[57] These comments call into question what role a victim's wishes on sentencing should play. There should be no doubt that a victim's impact statement is always relevant in assessing the appropriate sentence, because the harm suffered is a relevant aggravating factor on sentencing. Only the victim can best explain how much he or she has suffered.

[58] This court, like every other court, has concern and compassion for the victim. It is my view, however, that despite this compassion and concern, a victim's opinion as to what sentence the court should impose should be afforded little weight. I reach this conclusion for two reasons: firstly, because the person deciding sentence should be objective and dispassionate; and secondly, while crimes are often committed against individual victims, crimes also affect the community as a whole. A sentence must address, not just the harm done to the identified victim, but the community as well.

[59] There is arguably one other role at a sentencing hearing for a victim's comments about the appropriate sentence. Some of the objectives of sentencing include restorative principles, like rehabilitation and reparation to the victim and/or society. A victim's comments as they relate to these objectives is helpful in that it can, at times, guide how much weight a sentencing judge places on these restorative objectives. Where possible, a court should attempt to impose a sentence that is not inconsistent with restorative justice principles when the victim highlights a specific need.

[60] I reach this conclusion recognizing that there will be occasions where the objectives of deterrence and denunciation override the restorative justice objectives of sentencing. In those cases, the court may be required to impose a sentence that runs contrary to the needs and wishes of a victim. For example, in domestic assault cases, many victims do not want their partner prosecuted, let alone sentenced. In those cases, however, there is often an overriding concern for the safety of the public and the victim. Moreover, given the prevalence of domestic violence in our society, deterrence and denunciation are often paramount concerns that serve to override immediate restorative principles. In other cases, where the offence is less serious or where there is a broad range of available sentences, the traditional objectives of deterrence and denunciation can be met while still addressing the restorative objectives of sentencing. I note that in R. v. Proulx, supra, the Supreme Court of Canada noted that one of the benefits of the conditional sentence regime is that it allows for the imposition of a sentence that includes restorative justice objectives while still fulfilling the objectives of deterrence and denunciation.

The Appropriate Sentence in This Case

[61] From the above review of the case law, there can be no doubt that the vast majority of cases support the conclusion that when a parent abducts their child contrary to a custody order, that parent in going to a real jail. A period of incarceration is necessary to deter others from committing similar offences, denounce the conduct and address the overall harm to the victims and the community that such offences cause. In my view, however, the case at bar has some unique mitigating factors that would justify imposing a jail sentence to be served in the community.

[62] Firstly, I note that the rationale expressed by Justice Ducharme in R. v. Melville, supra, for placing great weight on the objective of general deterrence in these types of cases is less compelling in Ms. O'Byrne's case given her unique circumstances. Ms. O'Byrne acted in a way that she thought was in the best interest of her child. She was frantic and fearful of her child's safety when she was not with her. These thoughts ultimately led her to abduct her child. Given this state of mind at the time of the abduction, it is less likely that knowing the potential consequences of committing this offence would have deterred her. More importantly, when addressing the issue of general deterrence, given the overall tone of this judgment, other parents in the midst of custody dispute could not readily conclude that a conditional sentence is the normal sentence for abducting one's child but that it is the exception.

[63] Secondly, there is a clear link between the abuse Ms. O'Byrne suffered as a child and the initial commission of the offence. I appreciate that this does not explain why Ms. O'Byrne kept S.C. away from her father 18 years later. At some point, the abduction became less about Ms. O'Byrne's concern for the safety of her child and more about protecting herself from detection and prosecution.

[64] Thirdly, in the vast majority of the cases provided the offender did not take full responsibility for his or her actions. In many of the cases the victims were put through the rigours of a trial. In other cases, where the offender entered a plea of guilty this was only after a preliminary inquiry was held or where many aggravating factors remained in dispute requiring the Crown to call evidence at the sentencing. In the case at bar, Ms. O'Byrne entered a plea of guilty at a relatively early stage, prior to any witnesses testifying. Moreover, she took full responsibility for her actions and did not do anything to vilify Mr. Chisholm to his daughter or to the court.

[65] Fourthly and lastly, in the case at bar, the victims have asked the court to take into account restorative justice principles and, if possible, impose a sentence that will not serve to exacerbate the harm already caused by this offence. In many cases provided, either the victim child does not want to develop a relationship with the victim parent or no information about this relationship is provided to the court. In the case at bar, S.C. and her father are trying to move forward and develop a relationship. I repeat, however, that this factor alone should never result in the imposition of an otherwise improper and disproportionate sentence.

[66] When I consider these important mitigating factors I am satisfied that a jail sentence, to be served in the community is the appropriate sentence in the case at bar. In my view, taking into account the aggravating and mitigating factors unique to this case, a lengthy conditional sentence would serve the objectives of denunciation and deterrence while still ensuring that the restorative objectives of sentencing are met.

[67] In my view, in order to properly address the objectives of denunciation and deterrence the maximum conditional sentence should be imposed of two years less a day less the six weeks that Ms. O'Byrne spent in pre-trial custody. I appreciate that had I imposed a traditional custodial sentence it would have been for much, much shorter a time frame, but since jail sentences that are served in the community, by their very nature are less denunciatory than incarceration in a prison, an increased period of incarceration is necessary. I therefore impose a conditional sentence of two years less one day to be followed by two years of probation.

[68] The terms of the conditional sentence are as follows:

a) report forthwith to your conditional sentence supervisor and thereafter as directed;

b) House arrest for the first four months with the only exceptions being for i) medical emergencies, ii) counselling, iii) attending at conditional sentence supervisors office iv) to attend for personal necessities like grocery shopping two times a week for three hours on dates and time to be determined with the conditional sentence supervisor v) to attend medical appointments and vi) to attend religious services;

c) House arrest for the next eight months with the same exceptions above but including the additional exceptions that Ms. O'Byrne is permitted out of her residence for employment purposes, to complete her community service hours and with the written permission of her conditional sentence supervisor, to attend special events for her daughter including but not limited to a wedding, university or college graduation or birth of a child;

d) for the remainder of the conditional sentence, Ms. O'Byrne will abide by a curfew of 9pm until 6am daily, except for medical emergencies, to attend counselling, and with prior written permission of the conditional sentence supervisor to attend special events for her daughter including but not limited to a wedding, university or college graduation or birth of a child.

e) Ms. O'Byrne must complete 100 hours of community service;

f) Ms. O'Byrne is to continue attending counselling to address her traumatic childhood and the factors that led to the commission of this offence for as long as her conditional sentence supervisor sees is necessary;

g) Ms. O'Byrne is to sign all releases so that the conditional sentence supervisor can confirm compliance with this term;

h) Ms. O'Byrne is to remain in Canada unless she receives prior written authorization from her conditional sentence supervisor; and,

i) Ms. O'Byrne is to reside at an address approved of by her conditional sentence supervisor.

[69] The terms of the probation are as follows:

a) report to probation as directed;

b) attend all counselling as directed by probation and sign forms to confirm compliance with this term;

c) reside at an address approved of by probation;

d) do not travel outside Canada without written permission of your probation officer; and,

e) complete 100 hours of community service within the first eighteen months of probation.

[70] There will also be a section 109 order for ten years.

Released: April 2, 2013

Justice Mara Greene