Court File and Parties

Court File No.: 09-7629 Newmarket Date: January 6, 2014 Ontario Court of Justice

Between: Her Majesty the Queen — and — T.U.

Application to Vary Sentence

Heard: January 6, 2014 Reasons: January 6, 2014

Counsel: Mr. Amit Ghosh for the Crown Mr. T.U. Self Represented

KENKEL J.:

Introduction

[1] Mr. T.U. was convicted at trial of being a party to a child abduction in violation of a court order contrary to s. 282(1) of the Criminal Code. He was sentenced to an 18 month conditional sentence followed by two years of probation.

[2] Mr. T.U. applies to vary his sentence by deleting house arrest conditions from the conditional sentence and deleting conditions from the conditional sentence and probation that prevent travel outside this province and contact with his daughter and grandchildren in Poland.

House Arrest Conditions

[3] The house arrest conditions applied only for the first 12 months of the Applicant's sentence so now have been served successfully. No variation is required.

Contact and Travel

[4] Mr. T.U.'s grandchildren were apprehended from their mother as children in need of protection in April of 2006. Ontario courts subsequently determined that it was in the best interests of the boys that they reside with their father with access to E.U. on weekends.

[5] E.U. was not co-operative with Catholic Children's Aid or the courts. Justice Waldman found her to be intentionally evasive about her finances and even her place of residence. She also failed to surrender her children's passports as directed and Passport Canada declined the father's request to have them cancelled.

[6] On March 8th, 2009 the Applicant drove his daughter and his grandchildren across the border to New York State. E.U. and the boys took a series of flights to Germany and from there travelled to Poland. The abduction has deprived the custodial parent of custody of his sons since that time. The Applicant and his daughter defeated the careful supervision of the family by the Ontario courts. Unfortunately, the courts in Poland have to date declined to return the children with now sad results.

[7] At the time of the abduction one of the boys had a lengthy history of special needs which were being addressed in Ontario by special schooling arrangements and psychiatric and psychological counselling. The removal of the children from Canada terminated all of that help and Foreign Affairs advised the Crown that the troubled child was recently committed to a psychiatric hospital after threatening his mother with a knife.

[8] Concerns about E.U.'s mental health continue and Polish authorities have found that the children are in need of protection. They've ordered a psychiatric assessment of the mother but the children remain with her during that process. To date Mr. T.U.'s former wife has travelled to Poland to help look after the children but if this variation were to be granted the Applicant would be free to do so as well thus increasing the likelihood that the children would be held in Poland.

[9] The impact of the offence on the father of the children has been devastating. His children were taken from him five years ago and those lost years can never be returned. Worse, his children are in jeopardy in Poland and all of the special support they enjoyed here that was successful at the time appears to have been undone.

[10] I understand and accept Mr. T.U.'s submission regarding his age and his current health problems. Those factors were present at the time of sentencing and were taken into account then. Were it not for those factors the court would have acceded to the Crown's request for a jail sentence given the gravity of the offence and the significant ongoing impact on the children and their father.

Conclusion

[11] While I accept Mr. T.U.'s submission that he's abided by all of the terms of his sentence to date, I find that to grant the variation he requests would aid in the continuation of the abduction offence, continue the risk to the children and undermine the elements of denunciation, specific and general deterrence and responsibility for the offence and the consequences of the offence that are addressed in the sentence.

[12] This application is dismissed. Should the children be returned to the custodial parent in Canada at any time during the remainder of the sentence order the restrictions on contact with them would no longer be necessary and Mr. T.U. could re-apply for the deletion of that condition at that time.

Released: January 6, 2014

Justice Joseph F. Kenkel