Court File and Parties

Ontario Court of Justice

Date: 2017-05-30

Court File No.: Region of Durham 998 16 21613

Between:

Her Majesty the Queen

— and —

Andrea Jacqueline Lewin

Before: Justice J. De Filippis

Heard on: January 23, May 1 and 19, 2017

Reasons for Judgment released on: May 30, 2017

Counsel:

• Ms. J. O'Connor — counsel for the Crown
• Mr. R. Rusonk — counsel for the defendant

Judgment

De Filippis J.:

The Charge and Guilty Plea

[1] Andrea Lewin was charged with several offences relating to allegations that she deprived her former husband from access to their children. At the end of the first day of trial, she pled guilty to one count; that "between June 10 and June 11, 2016 at the Town of Ajax, being a parent of Chloe and Kyle Geuke, both under 14 years of age, in contravention of the custody provisions of an order made by the Superior Court of Justice on December 2, 2015, deprived Sjoerd Geuke of possession those persons contrary to section 282(1) of the Criminal Code". All other charges were withdrawn by the Crown.

[2] The guilty plea is based on the trial testimony of the complainant as well as written statements of Mr. Podesta, a school principal. The former testified by video link from the Netherlands. The latter statements were tendered on consent.

Background Facts

[3] The complainant met the defendant in New York in 2004. In 2008, the defendant gave birth to twins, Kyle and Chloe, in Toronto. The complainant later learned he was the father and the couple married in May 2011. They lived in Amsterdam for two years, until 2013, when the relationship broke down. On February 28, 2014 the defendant obtained an order from a Dutch court allowing her to take the children to Canada. She left the next day. The parties were divorced in June 2014 and the defendant moved for sole custody of the children. Family court proceedings in Canada continue to the present day.

[4] On December 2, 2015, an Order by Justice Magda, in the Superior Court of Justice, provided for sole custody of the children to the defendant with a schedule of unsupervised access to the complainant. The latter was also directed to pay child support. Access was to be exercised in Ontario.

[5] The complainant testified that, commencing in April 2015, to facilitate his right of access, he would fly to Canada and rent a room near the defendant's place of residence. However, these efforts proved futile in early 2016. In January and March he was denied access by the defendant. In both cases, the defendant "disappeared" with the children and the complainant returned to the Netherlands without seeing them. In May and June, 2016 the complainant again encountered difficulties in seeing his children after arriving in Canada. On June 30, 2016 as a result of these actions, the defendant was found in contempt and sanctioned by the family court.

The June 10, 2016 Incident

[6] The incident to which the defendant pled guilty occurred on June 10, 2016. The complainant testified that, in accordance with his previous practice, his lawyer emailed the defendant to confirm he would exercise his right of access and he flew to Canada for this purpose. It had been arranged that he would pick up the children. He explained that he arrived at 2 PM, before classes ended, to prevent the defendant from leaving early, as she had on prior occasions. As he waited inside his car, he saw the defendant, at about 2:15 PM, "sneaking into [the school] from behind the bushes", rather than walk on the sidewalk to the door. On seeing this, the complainant immediately called the police. He moved his car to the front of the pedestrian access zone to the school, close to the door, and went inside.

[7] As the complainant proceeded to the receptionist's office, he saw the defendant "hiding behind a plant" in a hallway. When she saw him she said "you're not going to get them". The complainant did not reply but continued walking to the school office. He told the officials there that, "I'm not going to have this [conflict] in the building" and returned to his car. He telephoned the police a second time and pleaded that they hurry to the scene.

[8] As the complainant waited for the police to arrive, he saw the defendant exit the school with the children, followed by the principal. He testified that the latter was "clearly trying to calm her down". The defendant and children entered a car but the complainant had blocked the exit with his vehicle. The defendant reversed, over the grass, and managed to leave the school property. The defendant followed her as he maintained contact with the police and noted directions. He testified that once the defendant made her way onto Highway 401, she accelerated and drove erratically. Fearing for the safety of the children, the complainant stopped following her and went to the police station. Three days later, the defendant was arrested. The complainant was called to the police station and picked up his children.

[9] The complainant testified that his expenses for coming to Canada for each access visit for flight, car rental, and absence from work was approximately 900 – 1000 Euros [i.e. 1300 - 1500 Canadian dollars].

School Principal's Statement

[10] Mr. Podesta, principal at Brother Andre Catholic Elementary School, provided the following statement to police, on June 10, 2016:

Mrs. Lewin arrived at Brother Andre spoke to the secretary and asked to take the children out early today. I was in my office on the phone and I was not aware that she was here. Mrs. Lewin was waiting in the foyer. The children were coming down the hall.

At about the same time Mr. Geuke showed up at the school. Mrs. Lewin tapped on the office window as the secretary. The children arrived – she went out the side door with the children. I came out of my office was about to say hello to Mr. Geuke when he turned - went out of the office [and] out the front doors to his car.

Ms. Lewin (driving a white mini) with the two children in the back seat proceeded to drive out of the school parking lot. Mr. Geuke …in front of the school with his vehicle (grey Hyundai Elantra) and moved his vehicle to block Ms. Lewin….

I was outside between the two vehicles…[illegible]…try to waive this off and diffuse.

Ms. Lewin drove around me and Mr. Geuke's car by going over the curb and the boulevard around a fire hydrant and a tree onto the roadway proceeded north on Seggar. Mr. Geuke proceeded to turn his car around without regard to traffic and followed Ms. Lewin's vehicle north on Seggar.

I returned to my office called 911 at 2:47 hours to report the incident. Police dispatcher indicated that they had Mr. Geuke on the line and were asking him not to follow the vehicle any further.

At 2:28 hours I called C.A.S. Durham Children's Aid and reported the incident to C.A.S. – Diane Strojwons.

At 2:55 Mr. Geuke called indicating that he had followed Mrs. Lewin's car on the 401 and did not now know where she had taken his kids.

[11] On January 17, 2017, Mr. Podesta provided a second statement:

Anything I would add was I was genuinely concerned for the safety of the kids and to some extent myself. I didn't feel like they had any regard for the safety of anyone.

The only other thing is that from time to time Ms. Lewin would either no send the kids to school or pick the kids up early on the days that the father was to pick up the kids. I explained to the father that the school doesn't know when he's supposed to have custody and isn't in a position to manage their custody agreement.

Police Occurrence Report

[12] As part of his sentencing submissions, Defence counsel tendered the following occurrence report, prepared by P.C. Statham. It was not challenged by the Crown:

Information was received that the complainant – Andrea Lewin (DOB 30May72) ex-husband and picked their seven year old twins up from school today and has now left them alone.

At 2123 hrs., I was on scene speaking to the complainant. Lewin stated that her ex lives in the Netherlands and comes to Canada once a month to visit his children. He currently rents a room at this address which is a rooming house. Lewin further stated that the last time she saw him was yesterday at court. She received a text from him yesterday stating that he thought it was a good idea if the kids went back to her a day early. Lewin advised that the tenant in the basement told her he was watching the children yet when she arrived, they were upstairs in the single room they were sharing with their father. The children's names are Chloe and Kyle Geuke and they share a DOB of 17JUL07. The children's father is Sjerd (sic) Geuke.

Officers went upstairs in the residence and were shown the room by the children. I observed one queen sized bed, a few toys strewn about and absolutely none of their fathers' belongings. The closet was empty other than a few hangers. The children stated their father had a big suitcase in the hallway when he brought them home from school today but it is now gone. Lewin stated that Geuke was supposed to be renting three rooms but it looks as though him and the children are sharing one room.

Officers spoke to the basement tenant – stated Geuke had spoken to him earlier today and asked him to watch the children tonight. He asked that they be put to bed around 2100 hours. Stated that the Geuke children had been in his apartment playing with his children and he took them upstairs to their room shortly before 2100. He advised he told them to lock the door and contact him if they needed anything.

I spoke to _______ who identified himself as the homeowner. Stated that Geuke had asked her to take his children to school tomorrow. Late stated to me that Geuke had told her he may be going back to the Netherlands.

Both children appeared to be in a good state of mind, well dressed and unharmed.

At 2200 hrs., Lewin left the address with the children in her custody.

A copy of this report will be forwarded to C.A.S.

On Friday April 22, 2016 at 0110 hrs., I received a phone call from Sjoerd Geuke in relation to this call. Geuke stated that he was calling from the Netherlands – where he lives. He comes to Canada every three weeks to see his children.

Geuke was enquiring about his children, who were the subject of this call. I advised him that they were in the care of his mother. Geuke seemed to have a hard time understanding what he did wrong. He stated that the occupant of the basement apartment was to put his children to bed at 2100 hrs and that the 23 year old son of the homeowner was in the room next to them. I advised Geuke that the 23 year old could only tell officers that he couldn't speak English and that it wasn't appropriate to have someone watching small children who doesn't speak their language.

Victim Impact Statement

[13] As part of her sentencing submissions, the Crown tendered a victim impact statement prepared by Sjoerd Geuke. It was not challenged by the Defence:

Emotional Impact: It is hard for me to describe this. Especially as it makes me realize how messed up the situation is at this moment. Mrs. Lewin's behaviour has not changed and despite her guilty plea on the May 2016 charge (sic) I still have to deal with all the financial stress and draws of all the other incidents that happened and that resulted in more separation between a father and his children. The ongoing stress and insecurity in combination with the excess high legal fees to protect myself and in order to see my children resulted in a bankruptcy for me in the Netherlands. It made me lose the passion in the work I do for 15 years as a photographer and got me in so much debt that I currently do not know how to get myself out of this mess. I will never give up to be a father for them and will do anything to be part of their lives. Unfortunately the mom decided to take a destructive road and it looks like that will work in her favour as I cannot deal with it anymore. Kids have the right to have a father.

Economic Impact: The ongoing stress and excessive high legal fees made it impossible for me to work any longer creatively as a photograph. I'm moving to Canada to start a new life, hopefully more with the children but the current amount I am in debt is so high that I am not sure if that ever will be possible.

Costs: Airfare May 2016 – 850; Car Rental – 240; Legal Fees (only for May incident) 11,000

Sentencing Submissions

[14] Defence counsel submitted that his client be conditionally discharged with terms that she comply with family court orders. Counsel suggested a discharge is appropriate because there is no need for the criminal court to become involved in this family dispute. He stated that a conviction will complicate matters for the defendant in the ongoing family court proceedings and compromise her ability to find employment. Counsel noted that the defendant does not have a prior criminal record and that the guilty plea should be given full mitigating effect because of late disclosure of voluminous material.

[15] By way of background to the Defence submissions, counsel said the following: The defendant never intended to have children with the defendant. Previously, in 2006, she had been diagnosed with leukemia. The disease went into remission and she was told she could not have children. The defendant ended the relationship but she became pregnant at their last meeting. The defendant had no intention of telling the complainant or seeking his support. She was a successful business person. However, the complainant came to Toronto for a work assignment and met the complainant while she was pregnant and she admitted he was the father. The parties decided to re-unite for sake of the children and moved to the Netherlands. However, the relationship floundered and the complainant evicted the defendant while retaining custody of the children. After a nine month custody battle in the Dutch courts, the defendant returned to Canada with the two boys. The defendant obtained a court order that is the subject of the present charge. After these criminal proceedings were launched, the defendant was "fined" $5,000 for denying access to the defendant. This amount was offset against outstanding child support payments owed by the defendant.

[16] After the guilty plea, the defendant asked for a long adjournment to prove she could abide by family court order. Counsel stated that, in the interval, at Easter weekend, the defendant transferred custody to the complainant, through the officer in charge, without difficulties. This, it is said, shows that the defendant respects the court and had only violated it on the date in question because of her concern about how the complainant would care for them. Consequently, there is no need for specific deterrence.

[17] The Crown urged me to suspend the passing of sentence with an 18 month period of probation on these terms: to report to a probation officer, take counselling as directed, not associate with the complainant without his written revocable consent, pay restitution "for the lost airline tickets" and not be in possession of any documents in the name of Nardia Brown, identify herself as Nardia Brown, or have any contact with Nardia Brown [the Defence agreed that the terms with respect to Nardia Brown are appropriate].

[18] Crown counsel noted that she does not have the information to permit her to respond to some of the statements made by the Defence in submissions. She argued that the complainant's trial testimony and the statements by Mr. Podesta show that a discharge is contrary to public interest: The complainant made efforts to travel a long distance to be involved in the lives of his children and this was frustrated by the defendant's failure to comply with a court order. This is not in the interests of the children and it is aggravating that the offence was committed in a school setting. The Crown submitted that in these circumstances denunciation and deterrence require that a conviction be registered.

Crown Motion to Re-open

[19] I received the sentencing submissions summarized above on May 1 and reserved my decision until May 19. In the interim, the Crown filed a motion to re-open the hearing. The motion was accompanied by reports from two police officers and one from a custody and access coordinator. The Crown suggested that these reports contradict the submissions of Defence counsel that the defendant had, between the guilty plea and sentencing submissions, demonstrated she could comply with the court order with respect to access. In particular, the Crown alleged that on the Easter weekend in 2017, the defendant had obstructed full access to the children. This, claimed the Crown, suggested that the defendant had used her lawyer to mislead the court.

[20] On receipt of this motion, I advised counsel that I would not deliver reasons as scheduled on May 19. On that day, I heard from the parties. It is not necessary to reproduce the reports relied upon by the Crown. Suffice it to say that, having heard from Defence counsel, I dismissed the Crown's motion. While there may have been some confusion about the duration of access, I am satisfied that the defendant did not attempt to mislead the court. In this regard, I do not accept the contrary interpretation arrived at by the police, and relied upon by the Crown, with respect to the events on Easter weekend.

[21] Defence counsel asserted that the Crown motion to re-open submissions was without merit and designed to prejudice my decision with respect to sentence. He impugned the integrity of opposing counsel and argued for a stay of proceedings based on abuse of process. In the alternative, he sought an absolute discharge. I reject these submissions. The Crown received information that the defendant had not been candid with the court. She was entitled to bring these concerns to my attention. Crown counsel's duty as a "Minister of Justice" does not preclude strong advocacy. Absent bad faith, the fact that such advocacy fails is not grounds for criticism. Moreover, the fact that I entertained and dismissed the motion does not mean I cannot discharge my duties, including that of fairness and impartiality.

Sentencing Principles

[22] Section 718 of the Criminal Code provides as follows:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[23] Parliament has given judges the discretion to avoid the normal consequence of a finding of guilt. Section 730 provides that,

(1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2)

Analysis and Findings

[24] The defendant does not have a criminal record and accepted responsibility by pleading guilty. That the plea was entered at the end of the first day of trial does not undermine its significance; it was informed by voluminous late disclosure. Moreover, as already indicated, since the guilty plea, the defendant has complied with her obligations pursuant to the family court order. However, these mitigating factors are outweighed by the aggravating ones.

[25] The defendant's misconduct on June 10 was not an impulsive, isolated act. Her early arrival at the school speaks to her determination to prevent the complainant from exercising his lawful right to be with his children. That this drama played out on school property is regrettable, but even more troubling is the careless manner in which the defendant fled the scene in her motor vehicle. Moreover, the June incident was one of several breaches over many months.

[26] The defendant's persistent non-compliance with the court order is in marked contrast to the actions of the complainant. Rather than resort to self-help, he engaged the legal process and had his lawyer confirm arrangements for each access visit. This deference to authority is also evident during the incident in question; apart from the unsuccessful attempt to block the defendant's departure from the parking lot, he avoided conflict in the school and sought the assistance of the principal and police. He stopped following the defendant when her driving became more erratic.

[27] The evidence before me shows that, on one occasion, the complainant acted improperly by leaving the children in the care of a third party without the knowledge and consent of the defendant. However, her understandable concern about this does not justify her actions on June 10 and is not a mitigating factor. The police decided that there was no basis to lay charges and/or it was not in the public interest to do so. The defendant did not press the matter further with the police or the family court. Instead, she took matters into her own hands.

[28] Disputes about custody and access to children are often highly charged and fraught with difficulty for all involved. While these matters are usually best dealt with in family court, repeated and blatant disregard for court orders calls for a criminal law sanction. Denunciation and deterrence are the principal sentencing objectives. Assuming the defendant need no longer be specifically deterred, a strong message must nevertheless be sent to others who might be tempted to obstruct lawful access to children. This does not mean a discharge cannot be an appropriate response, but in this case, such a disposition would be contrary to the public interest.

[29] Sentence is suspended and the defendant will be on probation for 18 months. As agreed by the parties, the terms will include that she comply with all family court orders applicable to her and that she not be in possession of any documents in the name of Nardia Brown, identify herself as Nardia Brown, or have any contact with Nardia Brown. I decline the Crown's request that the defendant take counselling or stay away from the complainant. There is nothing to suggest her misconduct is grounded in addiction or psychological issues or that she is a danger to her former husband. Indeed, by all accounts the defendant is intelligent, independent, and successful.

[30] The victim impact statement discloses a basis for a restitution order for what happened in May, 2016. As noted, that event is part of the background I have considered but this sentence applies to the June incident. At that time, the complainant's access was not completely frustrated but it was significantly compromised. It is appropriate that his expenses be partially reimbursed. Accordingly, as part of this sentence, the defendant will report to a probation officer for the purpose of making restitution in the amount of $1,000.00. In any event, that amount must be paid within 12 months.

[31] The defendant is subject to the statutory victim fine surcharge.

Released: May 30, 2017

Signed: Justice J. De Filippis