His Majesty the King v. Armen Avansi

Date: May 1, 2023 Ontario Court of Justice

Before: The Honourable Justice K. Fillier On: May 1, 2023 At: Oshawa, Ontario

Appearances: K. Alderton, Counsel for the Crown T. David, Counsel for Armen Avansi

Reasons for Judgment and Ruling on Sentence

FILLIER, J. (Orally):

On Wednesday, April 18th of 2018, Tammy Chan sent a text message to her ex-husband, Armen Avansi, regarding her work schedule in relation to the access arrangements for their nearly three-year-old son Alex.

The parties separated in 2016 and were subject to a parenting and access order of Justice Corkery, setting out the custody arrangements for Alex.

In response to the text from Ms. Chan regarding her work schedule, Mr. Avansi advised that he had taken their young boy on a one-week vacation to Armenia. He stated, “We’re there right now and have settled in. He’s sleeping now and is doing good. I’m also doing well, my battery is running out, so I will need to charge soon, but wanted to quickly let you know what’s going on.” Not surprisingly, Ms. Chan’s response was, “Is this is a joke?”

Unfortunately for Ms. Chan, her young son and her parents, it was not a joke. Mr. Avansi’s actions led to more than two years and eight months of emotional turmoil and legal proceedings in Armenia before Alex was safely returned to Canada with his mother on December 23rd, 2020.

On June 22, 2021, Mr. Avansi voluntarily returned to Canada and he was apprehended at Pearson International Airport and charged with child abduction and disobeying a court order. In March of this year, Mr. Avansi entered pleas of guilt before me to both of those charges.

Positions of the Parties

On behalf of the Crown, counsel submits that Mr. Avansi should be incarcerated for a period of two years less a day to be followed by a three year probation order, a DNA order and an order for a significant restitution in respect of several costs incurred by Tammy Chan trying to get their child back to Canada.

Mr. David, on behalf of the defendant, agrees that a period of incarceration is warranted, but submits that Mr. Avansi should be granted a conditional sentence, such that his sentence is served in the community. Counsel concedes that both the probation order and DNA order are appropriate in this case. As for the restitution, Mr. David submits that it be awarded on a much narrower basis than advocated for by the Crown.

Background of the Defendant

Mr. Avansi is 40 years of age and he has no criminal record. He has a computer science degree from the University of Toronto, has been gainfully employed in the past and earns a living as an entrepreneur in the mobile apps industry, running a company called Apps Continuum. Mr. Avansi spent five years in the Canadian Armed Forces. Prior to abducting Alex, there is no suggestion that he had been anything other than a loving father.

On four separate occasions Mr. Avansi attended for therapy with a licensed social worker named Joanne Smith. A report authored by Ms. Smith was tendered during the sentencing proceedings. According to that report, Alex had been having chronic ear infections and bouts of pneumonia in the months leading up to the abduction. He, Mr. Avansi, and Ms. Chan had disagreed on putting Alex in daycare, which Mr. Avansi felt was the source of his frequent infections.

Mr. Avansi maintains that it was Alex’s health which ultimately drove him to Armenia. He believed that holistic treatments and a change in environment and diet would cure his son’s chronic health ailments. He also erroneously believed that once Ms. Chan realized the health benefits to their child, she would understand the utility of the trip to Armenia.

Mr. Avansi has expressed remorse for his conduct and purports to recognize the significant trauma his actions have caused. He has not seen his son Alex since June of 2021, and I accept that he misses him terribly.

As for community support, Mr. Avansi continues to have the support of his parents who are presently sureties in the amount of $1,000,000.

Victim Impact

Tammy Chan and her parents, Grace and Colin Chan, provided this Court with Victim Impact Statements. To say that Mr. Avansi’s actions have traumatized them would be an understatement.

Tammy Chan put into words the panic and fear that came over her when she learned that her toddler was on the other side of the world. She left her job for three years in order to pursue the return of Alex to Canada. For most of that time, she was living in a country where she did not speak the language and trying to navigate a justice system which was altogether unfamiliar.

Ms. Chan described living through a war between Armenia and Azerbaijan and being financially decimated as a result of what transpired. She continues to live in fear of Mr. Avansi and she indicates that both she and Alex are in therapy as a result of what has happened.

Ms. Chan’s parents similarly expressed the devastation caused by Mr. Avansi’s crimes. They both put their lives on hold to varying degrees in the desperate effort to bring Alex home. Their family business in Trinidad suffered since they both spent a significant amount of time in Armenia. They described the physical toll of the stress on each of them as well as on their daughter Tammy.

They also recounted the terror of living through a war in a foreign country to which they had no ties and no understanding of the language or customs.

Furthermore, they described the onset of the Covid-19 pandemic in Armenia and the lack of medical resources in that country compared to Canada. The Chans also continue to suffer stress and trauma as a direct result of Mr. Avansi’s actions.

Principles of Sentencing

The goal of any criminal sentence, as instructed by the Criminal Code, is to protect society, contribute to respect for the law and help maintain a just, peaceful and safe society. Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles that are contained in the Criminal Code.

These principles include; denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime and promoting a sense of responsibility in offenders and acknowledgment of the harm they have caused the community and specific victims.

Ultimately, the fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed and the degree of the responsibility of the person who committed it.

This means that for the sentence I impose to be appropriate it must be tailored to Mr. Avansi’s circumstances and the circumstances of the crimes he committed.

In determining the appropriate sentence, it is helpful to consider the relevant aggravating and mitigating circumstances. This assessment includes features of Mr. Avansi’s background, features of the crimes he has committed, the timing of his plea and any other evidence I have received during these sentencing proceedings. It also includes any legal direction, whether in the Criminal Code or provided by the higher courts with regard to particular aspects of this case that I must give significant consideration to.

I find that listing the applicable aggravating and mitigating features assists me in evaluating this case properly in imposing a sentence that is just and appropriate.

To begin with, the mitigating factors present here are that Mr. Avansi has pled guilty and spared everyone the trauma associated with reliving what happened at a trial. It is also mitigating that Mr. Avansi comes before the Court with no criminal record and is otherwise law-abiding, contributing member of society.

The aggravating features of this case though, are as follows:

1. Alex was a young and helpless child who was taken from his home and separated from his mother altogether for several months. He continues to be traumatized as a result of his father’s actions.
2. Mr. Avansi was unrelenting in his efforts and persisted at every turn in preventing Alex from returning to Canada, thereby prolonging the ordeal and uprooting the lives of his son, his ex-wife and her parents for close to three years.
3. Mr. Avansi was bound by a court order at the time he abducted Alex.
4. Mr. Avansi’s actions have had a significant and ongoing emotional and financial impact on the Chans.

And finally, I find that Mr. Avansi’s abduction of Alex was premeditated and deceptive.

Restitution

At the completion of oral argument I raised the issue of restitution with the parties, given that a significant focus of the victim impact statements was the financial cost associated with trying to get Alex home from Armenia. I subsequently received written submissions from both parties regarding restitution for which I am grateful. In keeping with all of the work done on this case, the quality of the submissions was exceptional.

Criminal courts have discretion to award restitution under s. 738(1) and specifically to award compensation under s. 738(1)(b) for damages incurred as a result of bodily or physical harm resulting from a crime. Restitution awards must always be related to the purpose of sentencing and it cannot be a replacement for civil remedies. The amount of restitution must also be readily ascertainable by the criminal courts and should not involve complex disputed facts.

Although the victims here put their total losses in the range of more than $400,000, including living expenses in Armenia, the Crown fairly concedes that the Court is not in a position to award restitution in respect of all the alleged losses, given that at least some of the alleged costs would require a more complex analysis than this Court is equipped to make.

Crown counsel submits that a restitution order in the amount of $73,102.42, can and should be made, which is broken down as follows:

(i) legal fees, $47,402.42; (ii) return flight to Armenia, $3,600; (iii) travel expenses, $17,100 and; (iv) therapy expenses, $5,000.

On behalf of Mr. Avansi, counsel argues that the restitution order in this case should be limited to the cost of Ms. Chan’s flights to and from Armenia, and for reasonable therapy expenses for Ms. Chan and Alex, as a result of the psychological harm suffered as a result of the abduction. Both the Crown and defence agree that this Court can fix a sum for the cost of future therapy.

Having reviewed the submissions of both parties, I find that the vast amount of the restitution sought is best determined by a civil court, whether in the confines of the ongoing family proceeding or otherwise. That is a far better place to adjudicate the complex disputed facts that are present in this case. Here, the defence does not concede the reasonableness of the amount sought and I note that several of the expenses were incurred through, ostensibly, lawyers in Armenia.

In the absence of a hearing on the issue, I am unable to determine, what is “readily ascertainable”, and what is not. Again, particularly, since a significant part of the documentation is from an Armenian law firm.

I will however order that Mr. Avansi pay restitution to Tammy Chan in the amount of $8,600, representing the $3,600 cost of the return ticket to Armenia and $5,000 for future and ongoing therapy expenses for herself and Alex.

Credit for Pre-Trial Custody

As already noted, upon his arrival to Canada, Mr. Avansi was taken into custody where he remained until his release on a bail review by the Superior Court after spending a total of 57 days in jail. Pursuant to R. v. Summers, 2014 SCC 26, Mr. Avansi will be given credit on a 1.5 to 1 basis for having served a total of 86 days of pre-trial custody. On the issue of pre-trial custody, Mr. David submits that his client should be given extra credit beyond 1.5 to 1 for harsh conditions of pre-trial custody.

In July of 2021 Mr. Avansi swore an affidavit in support of his release application, which sets out that as a result of Covid-19, he was not permitted to use his CPAP machine while incarcerated for his obstructive sleep apnea.

Apparently, he was advised by staff that the use of the machine would cause an increased risk of aerosol transmission of the Covid-19 virus to himself and other inmates. Furthermore, he spent a total of 26 days in lockdown during his period of incarceration. Mr. David submits that he should be given credit for the equivalent of four to five months in jail.

In addition to the time Mr. Avansi actually spent in jail, defence counsel seeks a further four months of credit pursuant to the decision of R. v. Downes, 2017 ONCA 599, for the period of time Mr. Avansi spent on restrictive release terms. I am advised that from the time of his release to December 14th, 2022, Mr. Avansi was on house arrest for a total of 484 days. On December 14, 2022, the house arrest term was removed entirely.

In the recent case of R. v. Marshall, 2022 ONCA 600, the Ontario Court of Appeal confirmed the manner in which enhanced pre-trial custody credit (often referred to as Duncan credit), is to be considered and applied. At paragraph 50, the Court stated as follows:

A Duncan credit is given on account of particularly difficult and punitive pre-sentence custody conditions. It must be borne in mind that the 1.5 to 1 Summers credit already takes into account the difficult and restrictive circumstances offenders often encounter during pre-trial custody. The Duncan credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pre-trial incarceration. The very restrictive conditions in jails and health risk brought on by Covid-19 are an example of the kind of circumstance that may give rise to Duncan credit.

The Court went on to say that,

Duncan credit is not a deduction from the otherwise appropriate sentence, but it is one of the factors to be taken into account in determining the appropriate sentence.

For reasons that will become clear shortly, I am of the view that the sentence I intend to impose already takes into account the conditions experienced by Mr. Avansi when he was incarcerated for 57 real days in 2021. I will also note, somewhat parenthetically, that Mr. Avansi voluntarily returned to Canada during the Covid-19 pandemic, knowing full well he would be apprehended by authorities upon arrival.

In any event, I do accept that it would have been difficult to be without a necessary sleep machine, but again I find that the sentence already takes these issues into account.

I am prepared to grant an additional 30 days of pre-trial custody to Mr. Avansi in light of the period of time he spent on house arrest in accordance with the Court of Appeal decision in Downes, 2017 ONCA 599.

Conditional Sentence versus Real Incarceration

As I indicated at the outset, counsel for the Crown seeks a period of real incarceration for Mr. Avansi of two years less a day minus any pre-trial custody. Mr. David submits that Mr. Avansi be granted a conditional sentence of imprisonment. In doing so, he points to Mr. Avansi’s period of time on bail without incident and the fact that he is indeed a first time offender.

In advocating for their respective positions counsel provided me with a number of cases involving sentencing of parents who have abducted their child. While I do not intend to summarize each of these decisions, they have been helpful to me in setting out the range of sentences in similar situations and they have assisted me greatly in determining a fit and appropriate sentence here.

In the recent decision of R. v. Mann, 2021 ONSC 7071, Justice Goldstein of the Superior Court of Justice in Toronto was faced with a joint submission of one day in light of the accused having spent the equivalent of three years in pre-trial incarceration.

In that case, Mann had been under a court order to return his less than two-year old son to the child’s mother, who was Mann’s ex-wife. Instead, Mann had sent his ex a callous letter that read, “Farewell, don’t call us, Jermaine would call you if he could remember your number.”

For the next 30 years the child’s mother had no idea where her son was or even if he was still alive. Mann had taken him to the United States, changed his name and told him that his mother had been killed in a car crash.

In acceding to the custodial portion of the joint submission, Justice Goldstein stated as follows at paragraph 12.

I will accede to the joint submission with reluctance. I will do so for two reasons. First, Mr. Mann has pleaded guilty and spared the victims of this crime the pain of testifying.

And second, while I think the effective sentence of three years is on the low side, I take into account that it is put forward by experienced counsel and is not unconscionable, based on the cases that I have been referred. Let me say that Mr. Mann is very, very, very lucky that he is not receiving a sentence that is much, much, much higher.

In discussing the principles of sentencing Justice Goldstein went on to state,

In my view, the primary sentencing principles in child abduction cases should be general deterrence and denunciation. Offenders are usually otherwise law-abiding. They usually have the means and the ability to leave, set up somewhere else and care for the abducted child.

These offenders rarely need specific deterrence or a large measure of rehabilitation. On the other hand, child abduction is a horrible crime that causes enormous damage to all of the victims. It often arises in contentious family law proceedings, but no parent should think that they can kidnap their own child and disappear without significant punishment.

I must say that I am in complete agreement with and adopt without reservation the comments of Justice Goldstein.

Taking into account the mitigating and aggravating factors in this case and the need to emphasize general denunciation and deterrence, I find that it is indeed necessary to impose a period of true incarceration. In my view, allowing Mr. Avansi to serve his sentence in the comfort of his parents’ million dollar home in Toronto would signify to anyone so inclined to abduct their own child, that there is very little risk inherent in doing so. Mr. Avansi’s cruel and calculated conduct can only be adequately denounced by a true deprivation of his liberty.

Reasons for Sentence

FILLIER, J. (Orally):

Mr. Avansi, I am sentencing you to two years less a day or the equivalent of 729 days. From that you will receive a credit for pre-trial custody in the amount of 116 days, leaving you with a total sentence to serve of 613 days.

In addition, you will be placed on probation for a period of three years with the following terms; you will report to probation within two working days of your release from custody and thereafter as directed.

You will take counselling as directed and sign any releases to allow your probation officer to monitor your attendance, compliance and participation in counselling. You are not to leave Ontario with Alexander unless you are specifically authorized by an Order of an Ontario Family court. You are not to purchase a ticket for any mode of travel for the child Alexander, unless you are specifically authorized by an order of an Ontario family court.

You are to have no contact or communication directly or indirectly with Alexander, except in accordance with an Order of an Ontario Family court. You are to have no contact or communication directly or indirectly with Tammy Chan, Colin Chan or Grace Chan, except through legal counsel or with their written revocable consent filed with probation.

Finally, you will provide a sample of your DNA for uploading into the DNA databank by 5:00 p.m. today and I will re-iterate the restitution order in the amount of $8,600. I will also make an Order pursuant to s. 742.13 that you are to have no contact or communication for the duration of your custodial sentence with Tammy Chan, Colin Chan or Grace Chan, again, except through legal counsel.

I am grateful to Mr. David and Crown counsel who worked very hard on this case. Mr. Avansi, good luck in the future. You committed a serious crime and I found that this is the way you need to pay that debt to society. Good luck, Sir.

Electronic Certificate of Transcript (Subsection 5(2))

Evidence Act

I, Yvette Fiala, certify that this document is a true and accurate transcript of the recording of R. v. Avansi, in the Ontario Court of Justice held at 150 Bond Street East, Oshawa, Ontario L1G 0A2, taken from Recording No. 2811_402_20230501_085814__6_FILLIEK.dcr, which has been certified in Form 1.

May 14, 2023

(Electronic Signature of Authorized Person)

_________ 6098052764 _____________ (Authorized Court Transcriptionist’s identification number) Ontario, Canada (Province of signing)

A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.