ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12/30000255/0000
DATE: 20120626

BETWEEN:

HER MAJESTY THE QUEEN – and – GHOLAM REZA SADEGHI-JEBELLI Accused

J. Smith for the Crown

L. Hochberg for the Gholam Reza Sadeghi-Jebelli

HEARD: June 8, 2012

REASONS FOR SENTENCE

a.j. o’marra j.:

[ 1 ] Mr. Gholam Sadeghi-Jebelli was found guilty after trial by jury of the offence of abduction of a child in breach of a custody order, contrary to s.282(1) (a) of the Criminal Code .

[ 2 ] He is here today to be sentenced.

Circumstances of the Offence:

[ 3 ] Mr. Jebelli, an Iranian citizen, came to Canada in 1986 as a refugee. He met Madonna Cantwell-Hollett and together they had a son, Paul, born […], 1990. The relationship between Ms. Cantwell-Hollett and Mr. Jebelli was a turbulent one and as a result, they separated. It was claimed; Ms. Cantwell-Hollett suffered from mental health issues. Initially, Mr. Jebelli had custody of their son and Ms. Cantwell-Hollett had visitation access on alternate weekends.

[ 4 ] In the fall of 1994, she did not know the whereabouts of her son. In January 1995, Ms. Cantwell-Hollett brought an application in the Provincial Court, Family Division, for custody of her son. A hearing was held on May 11, 1995 at which both Mr. Jebelli and Ms. Cantwell-Hollett were present and represented by counsel. The court granted interim custody of their son Paul to Ms. Cantwell-Hollett. Mr. Jebelli was to turn over custody of Paul to Ms. Cantwell-Hollett and to return to court on June 6, 1995. He failed to return to court on that date or to comply with the order to deliver over custody of Paul to Ms. Cantwell-Hollett. A warrant issued for his arrest.

[ 5 ] Instead of surrendering custody of Paul, Mr. Jebelli had sent him out of Canada to Iran to stay with his parents, where Paul remained for the next 12 years. Ms. Cantwell-Hollett had no knowledge as to her son’s whereabouts during that entire time. Mr. Jebelli’s claim that he had sent Paul out of the country in the fall of 1994 with Ms. Cantwell-Hollett’s consent was rejected by the jury, having found him guilty of the offence during the time-period between April 30 and July 1, 1995.

[ 6 ] Paul was returned to Canada just before he turned 18 years of age to avoid compulsory military service in Iran. After his return to Canada, he was re-united for a period of time with Ms. Cantwell-Hollett.

[ 7 ] Mr. Jebelli had been a member of a resistance movement in opposition to the regime in Iran and after he sent Paul to Iran to live with his parents he ended up in Iraq, where he was detained for many years by the organization he had joined. He claimed to have had no communication with his family or son Paul until released in 2006 and escaped to Iran.

The Offender:

[ 8 ] Mr. Jebelli was born and raised in Iran. His father owned and operated a Persian rug factory. After completing high school, Mr. Jebelli joined the Iranian air force in compliance with the mandatory military service of the country. He was involved in the 1980 Iran-Iraq War and subsequently injured. He became involved in a subversive movement within the Iranian military opposed to the Iranian government. In 1981, he was imprisoned and held until 1986 for “supporting the resistance”. On his release, he escaped from Iran through Palestine and made his way to Canada where he made a refugee claim.

[ 9 ] After his arrival in Canada, he became involved with another resistance organization, The People’s Mujahedin of Iran (PMOI) otherwise known as MEK or MKO, an organization dedicated to the overthrow of the Iranian regime. In the Pre-Sentence Report ordered in this matter it was stated:

This Muslim organization has been listed as a terrorist organization by the Canadian Government since 2005 and earlier by the United States Government. The group was armed and supported by the Iraq Government under Saddam Hussein and provided a base of operations at Camp Ashraf in Iraq, near the Iranian border.

[ 10 ] Mr. Jebelli claimed that he was pressured by the organization in 1994-1995 to return to Iraq and participate in the overthrow of Iran. An armed invasion was expected to occur within six months of his departure from Canada. He sent Paul, age 4 years to Iran with a woman from the organization to Iran to stay with his parents until his return.

[ 11 ] After, the organization moved him out of Canada, initially into the United States with a false identity and on to a training camp in Iraq; he claimed he became disillusioned with the PMOI. He attempted to leave the organization however; they took his travel documents and held him captive in Camp Ashraf from 1997 to 2003.

[ 12 ] After the United States’ invasion of Iraq the camp came under the control of the Americans but all residents of the camp were held and screened over the next several years to determine whether they were involved in committing terrorist acts in Iran. He was released in 2006 and fled to Iran.

[ 13 ] After returning to Iraq, he lived with his parents and Paul for a period of time. Iranian security services forcefully removed them from the parents’ home, which caused his mother to suffer a heart attack, enter a coma and pass away. A situation he blamed himself for having occurred because of his past activities.

[ 14 ] Arrangements had been made for Paul to be returned to Canada in order to avoid any military service in Iran. Mr. Jebelli fled Iran through Turkey and sought asylum eventually in Belgium. It was there in June 2010 that he was arrested on the outstanding warrant for the abduction of Paul in 1995. After he was extradited in December 2010, he was released on bail in Canada in January 2011.

[ 15 ] Mr. Jebelli asserted that he had not been able to communicate with anyone while held captive in Iraq. Moreover, he had made no arrangements with his parents or anyone else to ensure that Paul was returned to Canada at any point during Paul’s minority.

[ 16 ] For the few years Mr. Jebelli has been in Canada, both earlier and more recently, he has been industrious. After his earlier arrival in Canada, he was employed s a taxi driver and in 1992, he and other drivers started the Crown Taxi Service. However, since his return to Canada, although he does not have any status, having been extradited here to deal with the offence of abduction, he has been working on an “unpaid basis” with a friend and former taxicab business partner in his automobile repair shop. His friend, Mr. Saleh Mirsalari has offered him a full time job on receipt of a work permit.

[ 17 ] Mr. Jebelli has a criminal record from his earlier time in Canada. It consists of a convictions for impersonation with intent March 29, 1990 for which he received a suspended sentence and one year probation, and uttering threats and assault peace officer on September 12, 1994 for which he received a suspended sentence and three years probation. He was on probation at the time he initiated the offence in this matter.

[ 18 ] At the conclusion of the sentencing hearing Mr. Jebelli was given the opportunity to address the court and stated the following:

I’m deeply sorry for what happened. I never expected things to turn out the way it is, otherwise, if I could turn the clock back, I would definitely take a different stance. The very important thing is right now for me is my son. As you heard …he went through a lot, emotional and depression and everything because of me. All I want to do is put him back in college and take care of him. That’s all, thank you.

Effect on Paul

[ 19 ] Paul Jebelli testified on the trial that his first recollections of Iran was a large birthday party given to him by his grand-parents and other family members when he turned five years of age, which would have been in May in 1995.

[ 20 ] He testified that he was raised in a loving household by his grandparents and uncle, the younger brother of his father. He wanted for nothing and received a good education. Just before his 18 th birthday, he was sent from Iran to Canada to avoid the compulsory military service.

[ 21 ] Initially, he lived with an uncle in the Toronto area and then reunited with his mother Ms. Cantwell-Hollett. He lived with her in the Hamilton area for about a year until their relationship became strained because of her mental health issues. He then lived for a period in a basement apartment supported by social assistance. Eventually he moved in with his uncle and later his father when he returned to Canada and released on bail. He attended George Brown College however, he did not attend in the last year, because of the anxiety and depression he suffered over his father’s circumstances.

[ 22 ] He wrote a letter, submitted in support of his father, in which he stated:

I feel that if my dad is taken away from me again now, when I can’t have him is not fair to me. My dad is a great man and did great things and wanted to do other great things but things went wrong. I need my dad and I love him very much. I really have no one else here. He is kind and supportive and cares for me very much. He is a loving and caring father. When I found out my dad was arrested and went to jail in Belgium, I got depressed and later on, I even withdrew from college because I was worried about him. I got better and better when he was released from jail with bail and I am very healthy and happy now, and going back to George Brown College in September 2012.

[ 23 ] A letter prepared by Dr. Sofia Mobilos, M.D. confirmed that Paul has suffered anxiety and depression that has been linked to his concern about his father’s whereabouts and well-being. She noted that since Paul’s father had been back in Toronto and living with him there had been a considerable improvement.

Impact on Ms. Cantwell-Hollett:

[ 24 ] Ms. Cantwell-Hollett provided a Victim Impact Statement in which she described how the loss of her son at age four tore her life apart emotionally: “From the day he disappeared, I was heartbroken, shattered, trying to survive without Paul.”

[ 25 ] She stated that at times she felt like she did not want to live and that she felt so hopeless not knowing where her son was and not having any communication about his wellbeing. She lost the irretrievable joy and fulfillment of motherhood.

Position of the Parties:

[ 26 ] The Crown seeks a period of incarceration in the range of 14 to 20 months, less credit for pre-trial custody of 7 months detention pending extradition from Belgium and being granted bail in Canada.

[ 27 ] Defence counsel submits that in light of the 7 months pre-trial custody and having been on bail with conditions of house arrest for approximately 16 months he should be sentenced to 7 months time served.

Sentencing Principles:

[ 28 ] I consider the sentencing objectives as set out in s.718 and 718.2 of the Criminal Code . In cases of child abduction, it has been recognized that general deterrence and denunciation are significant factors to take into account in fashioning the appropriate sentence: (See R. v. P.M. , 1997 432 (ON CA) , [1997] O. J. No. 13 (OCA), R. v. Pasdari , [2003] O. J. No. 319 (OCA) at para. 1 ).

[ 29 ] Professor Nicholas Bala, in a commentary entitled, Criminal Code Amendments to Ensure Protection to Children and Women (1993) 21 CR (4 th ) 365 noted that the effect of parental abduction to the custodial parents who lose their children and the children taken away from them is profoundly traumatic. Further, the act undermines respect for the judicial system.

[ 30 ] The sentence imposed in such circumstances must denounce Mr. Jebelli’s abject disregard for the court order granting interim custody of Paul to Ms. Cantwell-Hollett that existed in 1995 and the effect of his decision on both the mother and child. The sentence must also act to dissuade others from doing so.

Aggravating and Mitigating Factors:

[ 31 ] Mr. Jebelli’s act of sending his son out of the country was both planned and deliberate. He did not want Ms. Cantwell-Hollett to have custody of Paul. I have no reservation that he believed he was acting in the best interest of the child by sending him to his parents in Iran, however, it was done in flagrant disregard to a court order issued in this country.

[ 32 ] Indeed, it is ironic that he chose to disregard the lawful order made in a judicial system that operates in a free and democratic country that he no doubt hoped to effect in his own homeland. Rather, he chose to make a unilateral decision – to take the law into his own hands.

[ 33 ] He sent Paul to a volatile country with a repressive regime – a regime he sought to overthrow by violent means.

[ 34 ] He sent Paul to live in a country in which a Canadian custody order could not be enforced, even if Paul’s whereabouts had been known by his mother because Iran is not a signatory to The Hague Convention on International Child Abduction. She was powerless.

[ 35 ] The impact on Ms. Cantwell-Hollett cannot be overstated. She was devastated because of Mr. Jebelli’s action.

[ 36 ] He took Paul away at a very young age, four years, from his mother and allowed him to be kept from her for the next twelve years. He deprived Ms. Cantwell-Hollett of her son and her son of his mother during his formative years and adolescence. He deprived Ms. Cantwell-Hollett of Paul’s childhood.

[ 37 ] Mr. Jebelli has shown no remorse or acknowledgement for the consequences of his actions, the harm done to Ms. Cantwell-Hollett. He has voiced only regret for the distress he has caused his son, because of his situation.

[ 38 ] I consider as well that Mr. Jebelli had a criminal record at the time he made the decision to remove his son from Canada and hide him out of reach of his mother in Iran. I do not accept that he was rendered in communicato , certainly during the early stages of his absence from Canada. He made no arrangements to have Paul returned to Canada if he was occupied for more than six months or to direct his parents to return Paul to Canada. Mr. Jebelli made bad choices that affected not only his life, but also that of his son and former spouse.

[ 39 ] There are few mitigating circumstances to consider akin to those reflected in the cases referred by counsel, such as guilty pleas having been entered by the abductors and voluntarily returning the child to the jurisdiction and the custodial parent. (See: R. v. Melville, 2011 ONSC 5697 , [2011] O.J. No. 4403 in which the mother who abducted the child to Florida, and 12 years later returned with the child and surrendered herself was sentenced to six months imprisonment and 2 years probation. She pleaded guilty, surrendered herself, and she had no criminal record.)

[ 40 ] In R. v. Twati , [2005] O.J. No. 4877 (OCA) , the Court of Appeal upheld a sentence of 19 months imprisonment plus 3 years probation imposed in a case more factually similar to the instant case. In Twati , the offender, subject to a joint custody order removed his son, at the age of 2 ½ years to Libya, another non-signatory to The Hague Convention on International Child Abduction, where he kept the child for 11 ½ years. Unlike this case, Twati communicated with his wife to let her know that their son was with him in Libya and maintained contact with her and her parents throughout the years. Further, the accused pleaded guilty.

[ 41 ] In all of the circumstances, I consider a fit sentence necessary to emphasize the sentencing objectives of deterrence and denunciation to be one of 22 months incarceration, less credit for 7 months pre-trial custody, leaving 15 months imprisonment to serve. In addition, there shall be a period of probation for 2 years consecutive to the 15 months period of imprisonment.

Judge

Released: June 26, 2012

COURT FILE NO.: 12/30000255/0000

DATE: 20120626

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – GHOLAM REZA SADEGHI-JEBELLI Accused

REASONS FOR JUDGMENT A.J. O’Marra J.

Released: June 26, 2012