COURT FILE NO.: CR-20-5000260-0000
DATE: 20211026
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ALLAN MANN
Alex Rourke, for the Crown
James Miglin, for Allan Mann
HEARD: September 10 and 15, 2021
R.F. GOLDSTEIN J.
[1] In June 1987 Allan Mann failed to return his 21-month old son, Jermaine, to his ex-wife, Lyneth Lewis. A court order required him to do so. Instead, Mann kidnapped his son. For the next 31 years Ms. Lewis had no idea if Jermaine was alive or dead. ‘
[2] On September 15, 2021 I sentenced Mann on a charge of taking his son, Jermaine Mann, in violation of a court order with intent to deprive Lyneth Lewis of custody. I accepted a joint submission for one day in custody in light of credit for three years of pre-sentence custody. I did not accept the joint submission on the amount of probation. At the time I gave brief reasons for sentence and indicated that I would provide more fulsome reasons in due course. The following are my reasons.
Background
[3] In June 1987 Mann was required under a court order to return his son to her mother. Mann and Ms. Lewis were in the middle of a contentious divorce. Instead, Mann disappeared with the boy – who was less than two years old. Mann sent a letter to Lyneth Lewis Ms. Lewis was his ex-wife and the boy’s mother. He wrote:
"FAREWELL, DON'T CALL US, JERMAINE WOULD CALL YOU IF HE COULD REMEMBER YOUR NUMBER."
[4] For the next thirty years, Ms. Lewis did not know where her son was. She did not know if he was in school. She did not know if he was healthy, or even if he was still alive. The police investigated but could not find him. She hired private investigators to search for him. They found nothing.
[5] In fact, Mann took his son to the United States. Jermaine Mann grew up believing that he was an American citizen, and that is name was Eugene De Souza – the name he still goes by as an adult, never having known anything different. He also grew up believing that his mother had died in a car accident when he was very young. He had no idea that his mother had spent years searching for him in vain.
[6] In 2018 Mann was arrested by U.S. law enforcement authorities for fraud. He had sought and obtained federal benefits fraudulently. The Americans discovered his true identity. They also discovered his son’s true identity. They alerted Canadian authorities. They extradited Mann to Canada after he served a sentence United States. He remained in custody until he was sentenced.
Guilty Plea Proceedings
[7] After the facts were read in, Mann made it clear that he did not entirely agree with the facts. He was supposed to have three days with his son in 1987 but only had one. He only took Jermaine because Ms. Lewis was threatening to take the boy to Jamaica. Ms. Lewis had done all manner of terrible things to him.
[8] I was concerned that Mann did not accept the facts that would make out the elements of the offence. I asked Mann some questions. I was satisfied that despite his temporizing and his prevarications, he accepted the facts sufficiently to make a finding of guilt.
The Joint Submission
[9] Crown counsel, Ms. Rourke, and defence counsel, Mr. Miglin, jointly submitted that based on his time spent in custody Mann should spend one day in custody and then be placed on probation for three years.
[10] Before passing sentence, as required by the Criminal Code I asked Mann if he had anything to say. It turned out that he had quite a lot to say. Mann indicated that there are two sides to every story. He complained that Ms. Lewis had lied to him about her status in Canada. She had wanted to have his son. She forced him to marry her – she came home with a wedding dress he didn’t know about. When Jermaine was born, he was not allowed in the delivery room. She insisted on naming Jermaine for someone in her family. I stopped Mann and warned him that he was not doing himself any favours and that he should probably stop. He did not. He continued to blame everyone but himself for what happened.
[11] After hearing from Mann I decided that two years probation was not enough and imposed three years. Mr. Miglin quite properly and correctly pointed out that I had not had a chance to hear submissions from him in light of the fact that I was going outside the joint submission. I agreed and he made further submissions. After a brief period of reflection, I decided that two years of probation was indeed not enough and imposed three years. Quite frankly, given the magnitude of Mann’s offense – and his offensive behaviour – the imposition of an extra year of probation trifling.
[12] In my oral reasons I said the following:
I intend to write more fulsome reasons that I will release in due course. I will take the time to write a judgment simply because I think that the cases that have been provided to me set out sentences that are simply too low and do not reflect denunciation and deterrence adequately. I agree that the sentence is within the range, but that range is currently too low, for reasons that I will explain when I submit more extensive reasons.
For the moment, I will simply say this: what Mr. Mann did was despicable. The harm he caused was extensive, painful, and widespread. It is very clear that Mr. Mann has absolutely no insight into the harm he caused. He thinks there are two sides to every story. When I asked him if he wished to address the court, he launched into a diatribe against the mother of his child for events that occurred more than thirty years ago. There may well be two sides to his relationship with his former wife, but he is as wrong as a person can be that there are two sides to the story of this offence. There are not. He committed a terrible crime and harmed many people. It is obvious to me that Mr. Mann is a cruel, harmful, and self-absorbed man who deserves absolutely no sympathy from this court. Let me say very clearly that I have no sympathy for him.
It is very tempting to impose a much higher sentence based on Mr. Mann’s statement to me when I asked him to address the court. Fortunately for Mr. Mann, it would be an error in law for me to impose a higher sentence and not accede to the joint submission simply because what he told me when I asked him to address the court showed no insight or remorse.
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 to. Let me say that Mr. Mann is very, very, very lucky that he is not receiving a sentence that is much, much, much higher.
I do not, however, agree that the term of probation should only be two years and only involve a non-contact order and I will not accede to that aspect of the joint submission. Frankly, Mr. Mann needs to take counselling to gain the insight that will be necessary to rebuild his relationship with his son. I do not think two years is sufficient to accomplish this task. As well, I am quite certain that without a stick wielded by the state, Mr. Mann will never do what is necessary in order to achieve that insight.
There will be a sentence of one day in custody, followed by three years of probation. The terms of probation will be:
Mr. Mann will report to a probation officer once and thereafter as required by his probation officer. He will take such counselling as the probation officer may direct. He is to provide all consents and waivers to his probation officer that are necessary for him to complete any counselling that his probation officer may direct.
Mr. Mann has told me that he intends to retire, so attending at his probation officer and taking counselling will not affect any employment and will not constitute any hardship whatsoever to him.
Impact On The Victims And The Community
[13] The victim impact statements in this case are heart-wrenching.
[14] It is hard for most people to imagine the agony of losing a child. Ms. Lewis doesn’t have to imagine. She knows. For her, the impact has been shattering. After Mann sent his vile, taunting letter to Ms. Lewis she described her state of mind in her eloquent victim impact statement:
My life ended that day. I could not speak, eat, or do anything for weeks following that. I could not remember what day it was and days and nights blended together. My body felt as if it was collapsing. I have had panic attacks throughout the years and shed countless tears for the life I could have had with my son, that was so mercilessly ripped from me by Allan Mann. This crime was not committed because Allan Mann loved my son, this crime was committed because Allan wanted to hurt me in a way that would cause the greatest damage to my mind and soul. It was calculated, vengeful and evil.
[15] Ms. Lewis found solace in prayer and work, but for more than thirty years she wondered what had become of her child. She stated:
I have missed out on milestones, the first day of school, the first day of college, so many firsts that are the right of every mother. There have been numerous lies that Allan Mann has told my son, and it will take years to undo that damage, if ever. I have loved my child every minute of my existence but have been robbed of the opportunity to have him feel that love. I have been robbed of the opportunity to raise him, to influence his thoughts, to know him, to know his heart and mind. I lost my less than 2 year old baby boy and in 31 years, we became strangers to one another. I was his mother in one sense, but a stranger in the other. This concept is so hard to reconcile. It will be many years before Jermaine and I are able to have the relationship we should have always had, but I am hopeful.
[16] Jermaine Mann has decided to continue to be known by the only name that he has ever known, which is Eugene De Souza. Mr. De Souza also submitted a victim impact statement. It is heart-wrenching. Mr. De Souza is, understandably, very conflicted. He missed out on his mother’s love. He grew up having no idea that he had a mother and a sibling. He has become aware that his father engaged in a monstrous deception, although the father he describes in his victim impact statement is caring and conscientious about his duties as a parent:
I valued my father to the highest degree. He provided shelter and security for me. Everywhere I went, people would inform me how wonderful and respectful I am, that I was raised right by my father (at the time, I still didn’t know my mom was alive). I always valued my father, his view of the world and how he always reminded me that I have to be 10x time better than the next man.
[17] Mr. DeSouza went on to say:
It has caused so much stress that I’ve become the most unhappiest [sic] human being on earth.
[18] The impact on the community on an offence of this nature is horrific. Family breakdown is extremely stressful to begin with. When a parent violates the law and weaponizes custody arrangements it can’t help but lead to bitterness and alienation. Sometimes it ends in violence; usually it ends with great tragedy. That is what has happened here.
Aggravating And Mitigating Factors
[19] There are many obvious aggravating factors here. The nature of this crime, the impact on the victims, the disrespect towards the court, and the violation of the rule of law are all obvious.
[20] The effect on Mr. De Souza’s life is also highly aggravating. He has grown up believing himself to be a citizen of the United States. He had a United States passport until his true identity was discovered. The American authorities cancelled it. He does not really know his status in the country that he grew up in. He has not visited his mother because he is not sure he will be admitted back into the United States, where he has a life.
[21] There are no mitigating factors, other than the guilty plea. Ordinarily, a guilty plea is an expression of remorse. This one was not. Ordinarily, a guilty plea carries great weight. This one does not. The case against Mann was overwhelming. Mann still doesn’t think he did anything wrong. There are only two positive things to be said: the plea spared Ms. Lewis and Mr. De Souza from being cross-examined; and the plea saved the justice system time and resources.
[22] During his comments to me, Mann stated that Ms. Lewis had had threatened to take Jermaine to Jamaica. He meant to demonstrate that it was a mitigating factor. It is obviously not. Even if Mann is correct that Ms. Lewis threatened to take the little boy to Jamaica there were other remedies. Instead, he chose a pre-emptive kidnapping. Threats and allegations of abuse are not exactly rare in family law cases. The proper remedy was a report to the court or the police. More importantly, even if Ms. Lewis made a threat – and I hasten to add that we have only Mann’s say-so – she did not act on it. Mann did.
The Offence
[23] The current version of s. 292(1)(a) of the Criminal Code states:
282 (1) Every one who, being the parent, guardian or person having the lawful care or charge of a child under the age of 14 years, takes, entices away, conceals, detains, receives or harbours that child, in contravention of a custody order or a parenting order made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that child, of the possession of that child is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.
[24] The version in force in June 1987 was substantially similar. Parliament modified some of the language:
282 (1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, in contravention of the custody provisions of a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.
Principles of Sentencing
[25] The principles of sentencing are set out in s. 718.1 of the Criminal Code. They are well-known and I need not set them out in detail. In my view, the primary sentencing principles in child abduction cases should be general deterrence and denuncation. 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.
[26] 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. No parent should think that they can kidnap their own child and disappear without significant punishment.
Case Law
[27] Counsel referred me to three cases:
[28] In R. v. Melville, 2011 ONSC 5697 the accused took her son to Florida for 12 years. She surrendered and pleaded guilty. Neither parent had clean hands. Ms. Melville had made domestic abuse allegations and then withdrawn them, although Ducharme J. found that some of the allegations were true. Her ex-husband, Mr. Freid, had attempted to hire someone to “break the balls” of Ms. Melville’s brother to obtain information. Prior to the abduction Ms. Melville had done everything she could to cut Mr. Freid off from his son. Ducharme J. found that Ms. Melville’s guilty plea was a genuine expression of remorse. After a detailed review of the authorities, he sentenced Ms. Melville to six months in custody and two years of probation.
[29] In R. v. Sadeghi-Jebelli, 2012 ONSC 3783, Mr. Jebelli had custody of the child. The mother had visitation access on the weekends. After a court hearing the mother was awarded interim custody in May 1995. Mr. Jebelli was required to return the child to the mother. Instead, he sent the child, who was five, to live in Iran with his parents. The mother had no idea where he was for 12 years. The child returned to Canada just before he turned 18 to avoid compulsory military service in Iran. Mr. Jebelli himself fled Iran and sought political asylum in Belgium. He was then arrested on an outstanding arrest warrant for the abduction. Belgium extradited him to Canada. He stood trial. A jury convicted him. A. O’Marra J. sentenced the offender to 22 months imprisonment (less credit for presentence custody) and 2 years of probation.
[30] In R. v. Twati, 2004 ONCJ 150 Mr. Twati pleaded guilty to abducting his child contrary to s. 283(1) of the Criminal Code. That section is slightly different from s. 282(1), as it is not contrary to a court order. Mr. Twati took his child (who was 2 ½ years old) to Libya for more than 11 years. Shortly after he left, the mother obtained a court order granting custody to her. When the son returned, he was completely alienated from his mother. Much like this case, Mr. Twati had no insight into his offence and blamed the mother. There was a two-day Gardiner hearing where the mother was required to testify. In very detailed and thorough reasons, Ray J. indicated that a conditional sentence was not appropriate and would send the wrong message. She determined that general deterrence required a sentence of incarceration in the penitentiary. She sentenced Mr. Twati to two years incarceration, with credit for presentence custody.
[31] In addition to the cases referred to me by counsel, I point to R. v. Mendez (1997), 1997 CanLII 432 (ON CA), 32 O.R. (3d) 67 (C.A.). Ducharme J. relied on that case in Melville. In that case, the non-custodial parent abducted the child for 3 ½ years before surrendering. The trial judge imposed a sentence of 6 months imprisonment. The sentence was upheld by the Court of Appeal. Osborne J.A. stated at para. 28:
Child abduction, even by a parent, is a serious matter. Canada's commitment to protecting children from wrongful taking by a parent is evidenced by the fact that Canada is a signatory to the Hague Convention and by Canada's Extradition Treaty with the United States which includes parental child abduction as an extraditable offence. In my opinion, in sentencing the appellant the trial judge was correct in recognizing that general deterrence was a significant factor to be taken into account. Having regard to the fact that the taking was planned and the appellant hid his son for about three and one-half years, I do not think that it can be said that the six month sentence was demonstrably unfit or that it represents a marked departure from sentences imposed in similar circumstances…
[32] In R. v. Li, 2017 ONCA 509 Ms. Li and Mr. Rezadoust had a child. In December 2010, without the knowledge of Mr. Rezadoust, Ms. Li took the child to China. Ms. Li had family there. Mr. Rezedoust went to the police. So did Ms. Li. She alleged that Mr. Rezadoust had assaulted her and threated to kill her. The police charged Mr. Rezadoust but the Crown stayed the charges. Ms. Li returned to Canada in February 2011 without the child. Waldman J. of the Family Court ordered Ms. Li to return the child to Canada. Ms. Li refused to do so. Waldman J. found her in contempt but gave her an opportunity to purge by returning the child to Canada. Ms. Li refused to do so again – indeed, Ms. Li never returned the child and never disclosed the child’s whereabouts. Waldman J. awarded custody to Mr. Rezadoust. Ms. Li served two sentences for contempt of court. During the criminal proceedings against her, there were serious concerns about Ms. Li’s mental health. Ms. Li was highly disruptive. The trial judge, Molloy J., concluded that Ms. Li’s behaviour was intentional and probably tactical. She sentenced Ms. Li to 7 years incarceration, with credit for presentence custody. The Court of Appeal upheld the sentence.
Nature Of The Offence
[33] Kidnapping a child is a crime of extreme cruelty and emotional violence. It is almost always done with the intent of harming a non-custodial parent. I agree with the comments of Ducharme J. in R. v. Mainville at para. 1:
Unfortunately, family law is often the most conflictual area of our law. This is especially true of custody and access disputes. Too often the litigants are people who, having once loved another, now interact motivated by spite, stubbornness, anger or hatred. Reasonable persons caught up in such litigation may treat each other terribly. In a system that is meant to focus on the best interests of the child, the child can be reduced to a weapon used by warring parents to bludgeon each other. In such emotionally charged, acrimonious litigation, court orders are far too often disdained, skirted or defied outright. This is not in the interests of either parent nor the justice system and it most certainly is not in the best interests of the child.
[34] This particular offence also involves the flouting of a court order. McLachlin J. (as she then was) said the following in United Nurses of Alberta v. Alberta, 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901 in the context of civil and criminal contempt of court at para. 20:
Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependant on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court.
The Importance Of The Joint Submission And The Sentence That Would Have Been Imposed Without one
[35] A sentencing judge should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest: R. v. Anthony-Cook, 2016 SCC 43 at para. 32. There are many good reasons for this. Counsel often know things about the case that judge cannot or need not know. Joint submissions are critical to the operation criminal justice system. Without joint submissions many cases would not be resolved and the system would collapse. Joint submissions provide certainty to an accused person who might otherwise be willing to go to trial and try their luck.
[36] I accept that the joint submission was within the range set out in other cases. I accept that the joint submission did not bring the administration of justice into disrepute, and that it was not contrary to the public interest. I do not doubt that Ms. Rourke and Mr. Miglin professionally negotiated what they believed was a fair resolution, and nothing I say here should be taken as criticism of them. I am also aware that there was a very good chance that Mann would have represented himself at trial. It was readily apparent to me from observing him – as it must have been to Crown counsel – that any such trial would have been torture to the victims, prolonged and difficult for the trial judge, challenging for everyone else involved. The trial may well have looked something like the trial in R. v. Li. The comments of Trotter J.A. in that case apply here:
[The trial judge] recognized that Ms. Li's cruel and reprehensible conduct has deprived M. of a life with her father. The crime is ongoing. Not only has Mr. Rezadoust been deprived of the right to parent his own child, he has been completely excluded from M.'s life. He does not know where she is in the world, whether she is well, or whether she wishes to have contact with him. This case calls out for a sentence that emphasizes the objectives of denunciation and general deterrence… While severe, I cannot say that the sentence imposed by the trial judge was demonstrably unfit.
[37] In my respectful view, general deterrence and denunciation should be foremost when sentencing offenders in child abduction cases. The people involved are usually otherwise of good character, are not professional criminals, and usually have had no prior contact with the criminal justice system. Specific deterrence plays a lesser role. The courts must, however, send a clear and strong message that child abduction by one parent is utterly unacceptable and will result in significant denunciatory sentences. In my view, sentences closer to the range in Li would send such a message. Had there not been a joint submission I would have imposed a sentence much closer to the sentence imposed in that case.
Disposition
[38] Mr. Mann was sentenced to 1 day in custody in light of time served, being the equivalent of a three year sentence. He was also sentenced to three years of probation.
Released: October 26, 2021
COURT FILE NO.: CR-20-5000260-0000
DATE: 20211026
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ALLAN MANN
REASONS FOR JUDGMENT
R.F. Goldstein J.