Court File and Parties

COURT FILE NO.: CR-16-40000041 DATE: 20160705

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – C.M.L. Defendant

Counsel: David Wright, for the Crown C.M.L., in person Tom LeRoy and Shoshanna Harris, as amicus curiae

HEARD: May 16, 2016

MOLLOY J.

REASONS FOR SENTENCE

A. INTRODUCTION

[1] On January 12, 2016, C.M.L. was convicted by a jury of abducting her own child in contravention of a custody order for the purpose of depriving the child’s father of his rights over the child, contrary to s. 282 of the Criminal Code. It is now my task to sentence Ms. C.M.L. for her crime. Because of the aggravating factors in this case, in my view a fit sentence would be seven years, less time served. Further, since Ms. C.M.L. continues to be in breach of court orders, in my view it would be appropriate for her to serve the entirety of that sentence in custody without parole, unless and until she provides information that, at the very minimum, will permit Canadian authorities to confirm that M is alive, well and being properly cared for. My detailed Reasons for this decision are set out below.

[2] After the trial, but prior to the sentencing hearing, the Crown raised concerns about Ms. C.M.L.’s fitness. An assessment was conducted. Ultimately, the Crown took the position that Ms. C.M.L. was fit for purposes of the sentencing hearing, a position with which I agree. I will be delivering separate Reasons on that issue.

B. BACKGROUND FACTS

[3] In December 2010, Ms. C.M.L. travelled to China with her daughter M, who was at that time seven years old. Ms. C.M.L. is herself originally from China and her parents and other relatives still live there. Ms. C.M.L. and the child’s father, S.R., had previously lived together in a common law relationship, but had been separated for some time. During the separation, Mr. S.R. continued to be actively involved in his daughter’s life.

[4] On February 2, 2011, Ms. C.M.L. returned to Canada without her daughter. When Mr. S.R. found out about this on February 4, 2011, he reported the matter to the police. Ms. C.M.L. thereupon accused Mr. S.R. of assaulting her and threatening to kill both her and her daughter. As a result, Mr. S.R. was charged with multiple criminal offences, and released on bail.

[5] On February 11, 2011, Ms. C.M.L. commenced proceedings in the Ontario Court of Justice (“Family Court”) seeking custody of her daughter M. Pleadings were exchanged between the parties. Ms. C.M.L. filed an affidavit in which she swore that her daughter was living in China with her grandparents and uncle. She sought an order for renewal of M’s visa and passport without requiring Mr. S.R.’s signature.

[6] On April 11, 2011, Justice Geraldine Waldman made an Order in the Family Court proceedings, in Ms. C.M.L.’s presence, directing Ms. C.M.L. to return M to Ontario by April 30, 2011 and made an interim Order that M would live with Ms. C.M.L. in Ontario, with no access by the father pending further order of the court.

[7] Ms. C.M.L. did not return M to Ontario by April 30, 2011. Mr. S.R. filed an application in the Family Court seeking to have Ms. C.M.L. cited for contempt for breaching the April 11, 2011 Order. Ms. C.M.L. thereupon went to the police on May 17, 2011 and reported numerous other acts of violence against her by Mr. S.R., including sexual assault, as a result of which he was again arrested and charged with additional offences.

[8] On June 3, 2011, the contempt application proceeded before Justice Waldman. Ms. C.M.L. was present in court for this hearing. Justice Waldman found Ms. C.M.L. to be in contempt of the April 11, 2011 Order and sentenced her to 60 days in jail, to commence 51 days from the date of the Order (June 3, 2011), with a further provision that if M was returned to Ontario before the sentence was to commence, the Court would reconsider whether jail was still required. The matter was then adjourned to July 21, 2011.

[9] Ms. C.M.L. did not attend in court on July 21, 2011 and she did not return M to Ontario. On November 21, 2011 Justice Waldman made an Order granting sole custody of M to her father, S.R..

[10] The preliminary hearing for all criminal charges against Mr. S.R. was scheduled to commence on March 12, 2012. Ms. C.M.L., who was the complainant and sole witness on all the charges, failed to attend. The Crown stayed all the charges.

[11] In October 2013, Ms. C.M.L. was arrested in Toronto and commenced serving her sentence for contempt of court imposed on June 3, 2011 (for breaching the Order of April 11, 2011).

[12] The Family Court proceedings continued on December 18, 2013. On that occasion, Ms. C.M.L. was present in court and represented by counsel. She entered into an agreement with Mr. S.R., which was incorporated into a consent order dated December 18, 2013. Under the Order Ms. C.M.L. was to make all reasonable efforts to have M returned to Toronto by January 20, 2014 and was directed to provide certain information about M’s location in China by December 19, 2013 (including the legal names of M’s caregivers in China, the municipal address of M’s residence, the name of her school, a telephone number where M could be reached, and other contact information). Ms. C.M.L. provided the names of her relatives and some, but not all, of the other required information. Apart from the names, the information provided proved to be incorrect. M was not returned to Ontario.

[13] On January 30, 2014, Justice Waldman found Ms. C.M.L. to be in contempt of the Court’s Orders dated June 3, 2011 and November 8, 2011 and sentenced her to a further 45 days incarceration.

[14] Mr. S.R. has not seen or heard from his daughter since the fall of 2010, when she was seven years old. In April of this year, she turned 13. Attempts to locate her through Canadian police forces and the Canadian embassy in China, have been unsuccessful. There has been no verification that she is in China, nor that she is alive.

C. GENERAL PRINCIPLES OF SENTENCING

[15] The Canadian Criminal Code [1] provides that the fundamental purpose of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society.” The Criminal Code further provides that this is to be accomplished by imposing “just sanctions” bearing in mind the objectives of: denunciation of the conduct involved; specific deterrence of the individual offender from reoffending; general deterrence of others in the community who might be tempted to commit similar offences; separating the offender from society, where necessary; rehabilitation of the offender; reparation for harm done; and the promotion of a sense of responsibility in offenders, while acknowledging the harm done to victims or to the community. [2] The Criminal Code also provides specific guidance as to general sentencing principles of overarching importance in sentencing. These general principles may have considerable impact on the sentence imposed, or have limited applicability, depending on the circumstances of the offence and the offender. Perhaps the most fundamental of these principles, and one which is always applicable, is the requirement of proportionality – the sentence imposed must be proportionate both to the gravity of the offence and the degree of responsibility of the offender. [3]

[16] In every case the sentencing judge must strive to achieve parity in sentencing, such that similar offenders receive similar sentences for similar offences committed in similar circumstances. While this is an easy principle to articulate, it is one of the most difficult to apply in practice. In truth, all offenders are different, as are all offences and the circumstances in which they are committed. However, the principle is an important one. There is fundamental unfairness if individuals in similar circumstances are not treated in a similar manner. Further, without concerted efforts to achieve consistency in sentencing, there is a real risk of arbitrary penalties being imposed.

[17] Another principle of universal application is that the sentence to be imposed should be increased or decreased to reflect the aggravating or mitigating circumstances relating to the offence or the offender. Further, a sentencing judge is required to make use of all available sanctions other than imprisonment that are reasonable in the circumstances, and to deprive an offender of her liberty only if there are no less restrictive sanctions that are appropriate in all of the circumstances.

D. ANALYSIS

Denunciation and Deterrence

[18] I consider denunciation and deterrence to be the most important factors governing sentencing in this case. This approach is supported in the case law. The Court of Appeal stated in R. v. Pasdari [4], another case of a parent abducting a child, “We agree with the trial judge that deterrence and denunciation were the paramount consideration in this case.”

[19] Ms. C.M.L.’s crime strikes at the heart of our system of justice. It was she who first brought proceedings in the family court, after first putting the child out of the reach of her father and out of the reach of the court. When the family court proceedings did not go Ms. C.M.L.’s way, she openly defied the court orders made. Even when imprisoned for contempt, she refused to comply with the court orders. Then, to facilitate her release from jail, she entered into an agreement to provide accurate information to enable contact with her daughter, but then breached that agreement. Ms. C.M.L. has repeatedly been given many opportunities to produce her daughter, or at the very least to provide information that would enable the father and/or Canadian authorities to contact M and confirm her well-being. Ms. C.M.L. has steadfastly and obstinately ignored every plea. Every day, Ms. C.M.L. continues to commit this offence. And she does so with deliberation and defiance.

[20] Canada has no treaties with China to enforce child custody orders made here. Efforts of the Canadian police and the Canadian embassy in China have not been successful in making any contact with M. We do not know if she is alive or dead. More importantly, neither does her father. This is a crime of unspeakable cruelty.

[21] Ms. C.M.L. had no reluctance to seek the assistance of Ontario courts when she believed this would be to her benefit. As I noted, she was the one who first launched custody proceedings in the family court. In February, 2011, when Mr. S.R. reported to the police that Ms. C.M.L. had failed to return M to Ontario, Ms. C.M.L. retaliated by making numerous allegations of assault and threats by Mr. S.R. against her and M. He was charged with multiple criminal offences as a result. Subsequently, when Ms. C.M.L. breached the first court order requiring her to return M to Ontario, Mr. S.R. brought a contempt proceeding against her. She retaliated again by making further allegations of assault, including sexual assault, which led to further criminal charges against Mr. S.R.. However, she failed to attend for court in respect of any of these charges and they were withdrawn by the Crown. When the custody proceedings did not go her way, she ceased appearing for court dates. Thus, Ms. C.M.L. seeks to invoke court proceedings which she thinks might benefit her, but is absolutely unwilling to abide by any of the orders of those very courts, unless they suit her own purposes.

[22] It is of vital importance to the integrity of our family law courts that individuals who submit their rights to those courts can do so with the knowledge that orders of the court cannot be ignored at will. It is in this context that general deterrence must play an important role in sentencing for cases of this nature.

[23] The Ontario Court of Appeal held in R. v. Mendez [5] that the “trial judge was correct in recognizing that general deterrence was a significant factor to be taken into account” in child abduction cases.

[24] This principle was also noted by the Alberta Queen’s Bench in R. v. Goudreault [6], a case in which a mother, in breach of a court order, took her young son to Mexico for three years and then Los Angeles for another 12 years. By the time the mother was apprehended, the child was a 19-year-old college student, who elected to remain in Los Angeles and not to have a relationship with his biological father. Martin J. held, at para. 33:

Custody and access disputes are always difficult. Invariably the parent denied primary care is hurt and frustrated. But these disputes must be resolved by the court and rulings of the court must be obeyed unless changed on appeal. No parent has a unilateral right to circumvent a decision of the court regarding custody or access. What this woman did to this man and their child is every caring parent’s nightmare. Such a deliberate act to defeat the administration of justice on such a prolonged basis with such tragic but foreseeable results must be severely sanctioned to maintain respect for the judicial process and to deter others from engaging in similar desperate acts. Without strong sanctions to support judicial orders, it is reasonable to expect that other parents will defy such orders.

[emphasis added]

[25] Likewise, in R. v. Melville [7], Ducharme J., while noting that the role of general deterrence can sometimes be overstated, held that child abduction cases fell into that group of offences for which general deterrence was of paramount importance. He held (at paras 19-20):

The theory behind general deterrence has been questioned in some contexts [citations deleted]. Critics of general deterrence question its validity on the basis that (1) many crimes are relatively spontaneous and the offender does not stop beforehand to consider the possibility of being punished; (2) offenders are not aware of sentences imposed for particular crimes so the quantum of a sentence will not have a deterrent effect; and (3) even if an offender was aware of the range of sentences imposed for a particular crime, they would discount that range by the risk of discovery, apprehension and actual prosecution.

Despite these criticisms, general deterrence remains one of the objectives of sentencing that Parliament has prescribed in s. 718 of the Criminal Code. In fact, in my view, general deterrence is the principal sentencing objective in cases like this. Moreover, the above criticisms have little or no applicability to cases of this nature: (1) Abductions 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 this 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. 283 or 283 of the Criminal Code are high.

[26] I agree entirely with those observations. I also agree with Ducharme J. that denunciation is another important factor in sentencing for cases of this nature. He stated (at para 21), that denunciation is required because “Canadians expect that family disputes involving will be decided by the courts ‘in the best interests of the child’ and that these decisions will be respected by all parties.”

[27] In another context, but equally applicable to this case, the Supreme Court of Canada dealt with the purpose of denunciation in sentencing, holding in R. v. C.A.M. [8]:

Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicial sentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77: "society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass". The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code.

[28] Accordingly, given the circumstances of this case, I consider denunciation and general deterrence to be the most important factors informing the appropriate sentence.

Retribution, Moral Blameworthiness and Proportionality

[29] In R. v. M.(C.A.) [9], the Supreme Court noted the connection between denunciation and another principle underlying criminal sentencing: retribution. The Supreme Court was careful to distinguish retribution in this context from vengeance, which has no part in our criminal sentencing process. However, retribution, in the sense of moral blameworthiness, is an important factor in this case. Lamer C.J. held, at paras. 79-80:

Retribution, as an objective of sentencing, represents nothing less than the hallowed principle that criminal punishment, in addition to advancing utilitarian considerations related to deterrence and rehabilitation, should also be imposed to sanction the moral culpability of the offender. In my view, retribution is integrally woven into the existing principles of sentencing in Canadian law through the fundamental requirement that a sentence imposed be "just and appropriate" under the circumstances. Indeed, it is my profound belief that retribution represents an important unifying principle of our penal law by offering an essential conceptual link between the attribution of criminal liability and the imposition of criminal sanctions. With regard to the attribution of criminal liability, I have repeatedly held that it is a principle of "fundamental justice" under s. 7 of the Charter that criminal liability may only be imposed if an accused possesses a minimum "culpable mental state" in respect of the ingredients of the alleged offence. See Martineau, supra, at p. 645. See, similarly, Re B.C. Motor Vehicle Act, supra; R. v. Vaillancourt, [1987] 2 S.C.R. 636. It is this mental state which gives rise to the "moral blameworthiness" which justifies the state in imposing the stigma and punishment associated with a criminal sentence. See Martineau, at p. 646. I submit that it is this same element of "moral blameworthiness" which animates the determination of the appropriate quantum of punishment for a convicted offender as a "just sanction". As I noted in Martineau in discussing the sentencing scheme for manslaughter under the Code, it is a recognized principle of our justice system that "punishment be meted out with regard to the level of moral blameworthiness of the offender" (p. 647). See the similar observations of W. E. B. Code in "Proportionate Blameworthiness and the Rule Against Constructive Sentencing" (1992), 11 C.R. (4th) 40, at pp. 41-42.

However, the meaning of retribution is deserving of some clarification. The legitimacy of retribution as a principle of sentencing has often been questioned as a result of its unfortunate association with "vengeance" in common parlance. See, e.g., R. v. Hinch and Salanski, supra, at pp. 43-44; R. v. Calder (1956), 114 C.C.C. 155 (Man. C.A.), at p. 161. But it should be clear from my foregoing discussion that retribution bears little relation to vengeance, and I attribute much of the criticism of retribution as a principle to this confusion. As both academic and judicial commentators have noted, vengeance has no role to play in a civilized system of sentencing. See Ruby, Sentencing, supra, at p. 13. Vengeance, as I understand it, represents an uncalibrated act of harm upon another, frequently motivated by emotion and anger, as a reprisal for harm inflicted upon oneself by that person. Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more. As R. Cross has noted in The English Sentencing System (2nd ed. 1975), at p. 121: "The retributivist insists that the punishment must not be disproportionate to the offender's deserts."

[30] The moral culpability of this offender is very high. She is fully aware of the harm she is causing and nevertheless stubbornly persists in her conduct. There is not a shred of evidence that Mr. S.R. is anything other than a capable and loving parent. Ms. C.M.L., on the other hand, is motivated by spite and vengeance. In the fall of 2010, she was given a job promotion that required her to work nights. She asked Mr. S.R. if he could take M on those nights, picking her up from day care, feed her and keep her overnight. She wanted Mr. S.R. to start this routine immediately. When Mr. S.R. responded that he would have to change his living arrangements because he had no room for M in his housing which he shared with a roommate, Ms. C.M.L. became angry. Subsequently, she told him that she had found another solution. What she did not tell him was that her solution was to take M to China and leave her there. However, that was the plan she devised and the plan she followed.

[31] I found Mr. S.R. to be a credible and compelling witness. I accept his evidence on this point. Further, I note that Justice Waldman reached the same conclusion in June 2011. After hearing both Mr. S.R. and Ms. C.M.L. testify on the issue, Justice Waldman rejected Ms. C.M.L.’s contention that she believed the child would be at risk if returned to Toronto. Waldman J. held: [10]

But, in determining whether it would be too dangerous for the child to return, notwithstanding these allegations [made by Ms. C.M.L. against Mr. S.R.] I know the following: Mother agrees and admitted in her evidence that she asked the father, in September 2010, if he would babysit this child in the days, when her shift changed so that she could go to work. That is entirely inconsistent with any conclusion that I could draw that Mother is so afraid of this man, in terms of risk to the child, that if the child will return to the jurisdiction of the Province of Ontario, the child is likely to be at risk.

[32] Upon returning to Canada, Ms. C.M.L.’s plan was to obtain a court order dispensing with Mr. S.R.’s consent to obtain a passport and visa for M. Her stated intention at that time was to have M return to Toronto for school in September 2011. She needed a court order because Mr. S.R. was not consenting to his child living fulltime in China. It was only when Mr. S.R. went to the police to report that his child had been taken to China and left there without his consent that Ms. C.M.L. first raised any allegation of assaultive or violent behavior by Mr. S.R..

[33] I am satisfied beyond a reasonable doubt that Ms. C.M.L. was motivated throughout by stubbornness and vengeance. She would not tolerate Mr. S.R. having any say in where their daughter would live, nor was she prepared to abide by any court orders on that issue. I am also satisfied beyond a reasonable doubt that Ms. C.M.L. had no genuine concern about her daughter being at risk as a result of any conduct by Mr. S.R.. Hers was not a well-meaning but misguided act with her daughter’s welfare at heart; it was a deliberate act of revenge.

[34] Notwithstanding the numerous speeches made by Ms. C.M.L. during the course of these proceedings with outrageous accusations against Mr. S.R., most of which she read from a prepared text, I do not accept that Ms. C.M.L.’s conduct in taking her daughter away from Mr. S.R. was founded in a delusional disorder characterized by an irrational, but genuine, belief that Mr. S.R. is a violent criminal and terrorist. By the time such allegations appeared, the child was long gone and court orders had already been made against Ms. C.M.L.. I do accept that she may have a personality disorder with behavioural traits that underlie some of her conduct in this case. However, I do not see these traits as in any way reducing her degree of moral culpability for what she has done – anymore than personality traits of violence and brutality reduce the moral culpability of a rapist.

Mitigating Factors

[35] Ms. C.M.L. does not have a criminal record. There are no other mitigating factors.

Aggravating Factors

[36] The most aggravating factor is that Ms. C.M.L. has not returned the child to Canada, and has not provided any information that would enable authorities to locate her. Effectively, Mr. S.R. has lost his child forever. I found Mr. S.R. to be a loving, kind parent. He has been devastated by the loss of M.

[37] Further, it is very aggravating that Ms. C.M.L. has provided no information as to her daughter’s well-being. Her father has had no contact with her whatsoever. There are no pictures or telephone messages. There is not even any information from which it could be confirmed that M is still alive.

[38] This was not simply one impulsive act by Ms. C.M.L.. It was planned and deliberate. She was given multiple opportunities to change her position, but refused to do so. Indeed, her crime in that regard is ongoing, another seriously aggravating factor.

[39] This is also a crime that affects the rights of a vulnerable child who is a citizen of Canada. M was a happy child at home and at school in Toronto. As a result of Ms. C.M.L.’s actions she has been removed from her school, her friends and her community, as well as losing the care and companionship of both her mother and her father. Ms. C.M.L. stated in court that she has had no contact with her daughter since February 2011. This is a horrific tragedy visited upon an innocent child. M will grow into adulthood having been abandoned by her mother, and undoubtedly told horrible lies about her father. She will have little real memory of him. She has gone from having two loving parents actively involved in her life, to effectively being an orphan, living far away from the home she knew here. The impact of such abandonment must surely be devastating.

[40] Ms. C.M.L. was in a position of trust and authority over M. Mr. S.R. trusted her to return M to Canada after her visit to China, as she had done in the past. Instead, she used her position of authority over M to take her to China and leave her there, betraying both M and M’s father. This betrayal of trust is a further aggravating factor.

[41] Additionally, as I have already noted, the motivation for this crime is reprehensible. Ms. C.M.L. does not genuinely fear that Mr. S.R. will harm her child and she has never had that genuine fear. Rather, she took this child away from her father as an act of petty revenge. She is determined to have her own way, no matter the cost.

Rehabilitation and Special Deterrence

[42] Ms. C.M.L. has persistently ignored and disobeyed court orders. No sentence I impose would serve as a deterrent. Rehabilitation is also largely irrelevant in this case. Ms. C.M.L. does not appear to care about the consequences of her actions.

Parity

[43] Both the Crown and the amicus have provided an exhaustive review of the case law. The sentences range from conditional and suspended sentences to four years in custody. There is no case which is on all fours with this one. Typically, when a parent is charged with child abduction, it is because they have either voluntarily returned to the jurisdiction with the child, or have been arrested and the child located. That is not this case. Many other cases are distinguishable because the accused has pleaded guilty or otherwise demonstrated remorse – also not this case. Furthermore, many of the reported cases proceeded by summary conviction rather than by way of indictment, which reduces the upper range of the available sentence.

[44] It is, however, relevant to look at sentences imposed in some of these cases for purposes of comparison.

[45] One of the few cases in which an accused had not returned an abducted child at the time of sentencing is R. v. Schellenberg [11]. In that case, a mother had previously abducted her two daughters in breach of a custody order and had received a lenient sentence and a period of probation. At that time, she again applied for custody of her children. Again, she was unsuccessful and again she fled the jurisdiction with both children. She was then convicted a second time. The Reasons are very sparse. It is not clear how long the children had been gone, but the Saskatchewan Court of Appeal referred to it as being “many years” and said that “Even now, Mrs. Schellenberg has failed to bring back to this jurisdiction the youngest of the two children.” There is no information as to how old the child was. Also, there is no information as to the sentence imposed by the trial judge, but the Court of Appeal increased it to two years less a day. In doing so, Wakeling J.A. stated:

We were urged by the crown to impose a heavier sentence and might well have done so were it not for the fact Mrs. Schellenberg is 55 years old and no doubt held the genuine belief that what she did was in the interests of her two daughters.

It is difficult to compare that case to the one before me because of the dearth of particulars as to the circumstances. However, I do note that the case is somewhat dated and that the Court accepted the mother’s genuine motivation to act in the best interests of her children, a mitigating factor that is not present in this case.

[46] R. v. Goudreault [12] is another example of an abduction case in which the child was never returned. The mother took the child to Mexico in breach of a custody order in favour of the father. At the time, the child was about three or four years old. After living for three years in Mexico, she moved to Los Angeles and was married twice there, with resulting name changes for the child. The mother was not apprehended until 2004, by which time the child was 19 years old and attending college in Los Angeles. The child declined to return to Canada and decided against establishing any relationship with his biological father, of whom he had no memory. Although the mother did not plead guilty, the trial proceeded by an Agreed Statement of Facts, which the trial judge found to be a mitigating factor. The accused was sentenced in provincial court to six months in prison, which she appealed. The sentence was upheld by the Alberta Queen’s Bench, but only because it was the highest sentence possible, given that the Crown had elected to proceed summarily. Martin J. held as follows (at paras 32-33):

The Crown’s election to proceed by summary conviction procedure was generous, literally to a fault. This was not an inadvertent breach, it was not a technical breach, it was not a temporary breach and it was not a harmless breach. With respect, this was not a summary conviction offence. Had the Crown elected to proceed by indictment, the appellant would most likely have received a period of incarceration in a federal institution. I note that in R. v. Fernandez, [1976] 6 W.W.R. 522 the British Columbia Court of Appeal suggested a five year term of imprisonment appropriate to a father who took his child out of the country and placed her in a convent in Spain thus depriving the mother of custody of the child for a period of two and a half years.

Custody and access disputes are always difficult. Invariably the parent denied primary care is hurt and frustrated. But these disputes must be resolved by the court and rulings of the court must be obeyed unless changed on appeal. No parent has a unilateral right to circumvent a decision of the court regarding custody or access. What this woman did to this man and their child is every caring parent’s nightmare. Such a deliberate act to defeat the administration of justice on such a prolonged basis with such tragic but foreseeable results must be severely sanctioned to maintain respect for the judicial process and to deter others from engaging in similar desperate acts. Without strong sanctions to support judicial orders, it is reasonable to expect that other parents will defy such orders.

[emphasis added]

[47] Thus, although the sentence in Goudreault was only six months, it is clear the Court would have imposed something beyond five years but for the maximum sentence available as a result of the Crown proceeding summarily.

[48] In R. v. Twati a father abducted his 2 ½ year old son and took him to Libya. The mother was separated from the child for eleven years. The accused pleaded guilty. The Ontario Court of Appeal held that the trial judge’s sentence of 19 months followed by three years’ probation was fit in light of the guilty plea. It is not entirely clear whether the 19 months was in addition to two and a half months of pretrial custody, and if so, the credit given for that, although it seems as though the effective sentence was for two years. The aggravating factors in the case before me are more serious.

[49] In R. v. A.M. [13], the Ontario Court of Appeal upheld the four year custodial sentence imposed at trial by Ewaschuk J. for a father who abducted his four children and took them to Pakistan. The father returned to Canada ten months later, but refused to tell the mother or the police where the children were. The trial judge found this to be a seriously aggravating factor. However, the mother was eventually successful in ascertaining the whereabouts of the children and they were returned to Canada. It is unclear from the decision how long the mother was separated from her children, except that it must have been for more than one year. Clearly, the situation in the case before me is far worse.

[50] As I have already stated, there is no clear case that stands out as similar to the one before me. However, the decisions in A.M. and Goudreault support a sentence in the four to five year range for circumstances which I find to be less egregious than those here.

E. CONCLUSION

[51] The Crown’s submission was that Ms. C.M.L. should be sentenced to an additional two to three years on top of time served, which he was calculating to be the equivalent of 46.5 months, thus an effective sentence of approximately six to seven years.

[52] The maximum sentence for this offence is 10 years. Ms. C.M.L. has no criminal record, which is a mitigating factor. Apart from that one factor, the circumstances of this offence bring this case into the range close to the maximum.

[53] In light of all of the circumstances, the most significant aggravating circumstance being the continued absence of the child with no knowledge of her safety and well-being, in my view seven years is an appropriate sentence for this offender and this offence.

[54] Ms. C.M.L. is entitled to credit for the time she has already served. However, given the ongoing nature of the offence, I do not agree that she is deserving of any enhanced credit. Assuming Ms. C.M.L. was telling the truth that she left M with her parents in China, it has always been within her ability to provide proper contact information so that M’s well-being could be confirmed. Her continued stubborn refusal to provide this information means that every single day she has been in custody she has been continuing to hide this child from her father. I have a discretion as to whether an enhanced credit of 1.5:1 is appropriate. In these circumstances, I find that it is not. [14] I am allowing the credit only on a straight 1:1 basis.

[55] The Crown’s earlier calculations as to time served were incorrect. Ms. C.M.L. was arrested on October 28, 2013 and has not been released since that date. Upon her arrest, she commenced serving time on the contempt sentence previously imposed, which Justice Waldman reduced to 15 days. On January 30, 2014, Ms. C.M.L. was again sentenced for contempt, this time for 45 days. Further, on April 4, 2014, she was again found in contempt and sentenced to 60 days. The total time for all three contempt sentences is 120 days. She has been in custody since her arrest on October 28, 2013, which is a total of 982 days. From that total, I deduct 120 days, which are attributable to the contempt sentences. Thus, the pretrial custody on this offence is 862 days, or 28.3 months, which I will round up to 29 months. Accordingly, the time remaining to be served on Ms. C.M.L.’s seven year sentence is four years seven months.

[56] It is not up to me to decide when, or if, Ms. C.M.L. should be released on parole. However, I do have a recommendation which I would urge upon the authorities. In my view, as long as Ms. C.M.L. persists in concealing the whereabouts of her daughter, she should serve every day of her sentence. On the other hand, if at any time Ms. C.M.L. does provide accurate information as to the whereabouts of her daughter and signs the necessary consents to have M returned to Canada, I would consider that to warrant her early release.

MOLLOY J. Released: July 5, 2016

Footnotes

[1] Criminal Code, R.S.C. 1985, c. C-4. [2] Criminal Code at s. 718. [3] Criminal Code at s. 718.1. [4] R. v. Pasdari, [2003] O.J. No. 319 (C.A.) [5] R. v. Mendez (1997), 32 O.R. (3d) 67 (C.A.) at pp. 75-76 [6] R. v. Goudreault, 2005 ABQB 699 [7] R. v. Melville, 2011 ONSC 5697 [8] R. v. C.A.M., [1996] 1 S.C.R. 500 [9] R. v. M.(C.A.), [1996 1 S.C.R. 500 [10] Oral Reasons of Justice G. Waldman, Transcript of Proceedings, C.M.L. v. S.R., Court File No. D53311/11, Ontario Court of Justice Family Court, June 3, 2011 at pp. 17-18 [11] R. v. Schellenberg, [1989] S.J. No. 632., [1990] 2 W.W.R. 724, 81 Sask.R. 317 (C.A.) [12] R. v. Goudreault, 2005 ABQB 699 [13] R. v. A.M., [2005] O.J. No. 1829 (C.A.), affirming [2004] O.J. No. 764 (S.C.J.) [14] E. v. Gettliffe-Grant, 2006 BCSC 1944 at paras. 37-38; R. v. Jacome, 2001 BCPC 352