COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rafferty, 2013 ONCA 741

DATE: 20131210

DOCKET: M43090 (C56187)

Rosenberg J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Rafferty

Applicant/Appellant

Paul Calarco, for the applicant

Randy Schwartz, for the respondent

Heard: December 2, 2013

On application for an order pursuant to s. 684 of the
Criminal
    Code
and for an order for extension of time to appeal conviction for
    sexual assault causing bodily harm and kidnapping entered on May 10, 2013 by
    Justice Thomas A. Heeney of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant applies for an order under s. 684 of the
Criminal Code
for appointment of counsel for his appeal. The appellant also applies for an
    extension of time to appeal his convictions for sexual assault causing bodily
    harm and kidnapping. The Crown agrees that the extension of time should be
    granted.

[2]

While Mr. Schwartz opposes the s. 684 application, he fairly concedes
    that there are a number of factors that favour counsel being appointed. First,
    there is no dispute that the appellant lacks sufficient means to retain
    counsel. Second, there is no dispute that the appellant cannot argue the appeal
    without the assistance of counsel. The 33-year old appellant has a grade 9
    education and is currently imprisoned outside of Ontario. He is in segregation
    and does not have access to a law library. Crown counsels position is that the
    appeal lacks merit and, in any event, the issues are relatively
    straight-forward and could be argued with the assistance of duty counsel as an
    inmate appeal.

[3]

Third, Mr. Schwartz also points out that this is a case that falls
    within the circumstances identified by Doherty J.A. in
R. v. Bernardo
(1997), 121 C.C.C. (3d) 123 (Ont. C.A.), at paras. 19 and 26:

Appellate review as provided for by Part XXI of the
Criminal
    Code
is not an indulgence to be doled out to those who are somehow seen as
    deserving of the opportunity to challenge their conviction. The salutary
    purposes underlying broad appellate review on appeals from convictions are
    engaged and must be served no matter how heinous the crime or despicable the
    accused.
Detached and reflective appellate review of the trial process is
    perhaps most important in notorious, emotion-charged cases involving the least
    deserving accused. It is in those cases that the public eye is most closely
    focused on the process and the mettle of the criminal justice system undergoes
    its severest test. By giving the most repugnant appellant full recourse to
    meaningful appellate review, and by subjecting the apparently most deserving
    convictions to careful appellate scrutiny the integrity of the process is
    maintained
and a commitment to the unbending application of the rule of
    law is affirmed. [Emphasis added.]

In addition to these considerations, a further practical
    concern leads me to believe that counsel should be assigned. In inmate appeals,
    the court expects and receives the full co-operation of counsel appearing for
    the Crown. Often, the Crown alerts the court to matters which are favourable to
    the appellant and sometimes even assists the appellant in making his or her
    submissions. Given the notoriety of this case, and the unspeakable horror of
    the appellant's crimes (even on his own admissions), it would be unrealistic,
    and unfair to Crown counsel to expect that he or she would be able, despite
    best intentions, to provide the kind of assistance to the appellant which is
    routinely provided to other in-person appellants. It is better for the Crown if
    this appellant has his own advocate.

[4]

This motion turns on whether it is in the interests of justice that the
    appellant have legal assistance because he cannot effectively present his
    appeal without the help of a lawyer. In this appeal, the resolution of that
    issue turns on whether there is merit to the appeal and whether the
    availability of duty counsel is a suitable substitute for appointed counsel.
    For the following reasons, counsel should be appointed in accordance with s.
    684.

[5]

The affidavit of Stacey Nichols contains an outline of the facts and of
    the proposed grounds of appeal. I have also had an opportunity to review the
    lengthy charge to the jury and the several rulings that lie at the heart of
    several of the grounds of appeal. In my view this material shows that the
    appeal is an arguable one in the sense explained in
Bernardo
at para.
    22.

[6]

While there are other grounds of appeal referred to in Ms. Nichols
    affidavit, in his submissions, Mr. Calarco focused on three grounds of appeal.
    The first ground of appeal is the so-called accessory after the fact defence.
    This is not a defence in the classic sense and is more properly characterized
    as a submission that the charge to the jury on the use of after-the-fact
    conduct was deficient. In short, the appellant would argue on appeal that the
    conduct relied upon by the Crown to show that the appellant was a party to the
    first degree murder is consistent with the appellant merely being an accessory after
    the fact to the killing. I agree with Mr. Calarco that on this record it
    appears that the trial judges instructions on the issue were deficient. It
    seems to me that the Crown response is a submission that no substantial wrong
    was occasioned because of the strength of the Crowns case and the directions
    on after-the-fact conduct that were given. The burden would be on the Crown to
    establish that no substantial wrong or miscarriage of justice was occasioned.
    This will involve a full understanding of the case and the complexities of
    applying the test in s. 686(1)(b)(iii) of the
Criminal Code
.

[7]

The second ground of appeal concerns the failure of the trial judge to
    give a
Vetrovec
warning in relation to Ms. McClintic. There is no
    question that the trial judge refused to give this warning because of the
    position taken by the defence. Mr. Calarco points out that in making this
    decision the trial judge was influenced by the concurring reasons of Bastarache
    J. in
R. v. Brooks
, 2000 SCC 11, [2000] 1 S.C.R. 237. It is arguable
    that the reasons of Bastarche J. were not the reasons of the majority on this
    issue and this is one of the rare cases where a
Vetrovec
warning was
    not a matter of discretion, as discussed in
R. v. Bevan
, [1993] 2
    S.C.R. 599, at 614-15, and in the dissenting reasons of Major J. in
Brooks
at para. 80. Arguably Major J. is speaking for a majority of the court on this
    issue in light of the concurring reasons of Binnie J. at para. 127. The
    circumstances surrounding the decision whether or not to give the warning are
    complex. The argument that this was one of the cases where the trial judge
    should have overridden the tactical decision of experienced trial counsel is a
    difficult one and would again require a full familiarity with the trial record.
    Similarly, this may be one of the cases where the proviso can be applied as
    Binnie J. did in
Brooks
, given the strength of the prosecutions case
    and the warning that was given by the trial judge in relation to Ms. McClintics
    testimony. But, that again would be a matter of some complexity requiring the
    assistance of counsel.

[8]

The third ground of appeal concerns the decision of the trial judge to
    allow one of Ms. McClintics prior inconsistent statements to be admitted for
    its truth in accordance with
R. v. B. (K.G.)
,
[1993] 1 S.C.R. 740. In this statement,
    which was one of several that she gave to the police, Ms. McClintic implicated
    the appellant as having actually committed the murder. She did not, however,
    resile from her position that she was a party to the murder. The situation
    presented to the trial judge was an unusual one and whether the issues were
    properly resolved may involve the application of the reasoning in the very
    recent decision of the Supreme Court of Canada in
R. v. Youvarajah
,
    2013 SCC 41. Mr. Schwartz makes a very compelling argument that the trial judge
    properly exercised his discretion in admitting the evidence. However, I am
    satisfied that given the novelty of the situation and the argument, the ground
    of appeal is arguable.

[9]

Given Mr. Schwartzs very fair position that the appellant could not
    argue these grounds of appeal without the assistance of counsel, the issue is
    whether duty counsel would be an adequate substitute for appointed counsel. A
    letter from Mr. Russell Silverstein explains the operation of the duty counsel
    system. He points out that duty counsel is not a substitute for counsel of
    choice and that duty counsel cannot be expected to argue appeals where the
    appeal record is extremely large and the issues are sufficiently complex or
    novel. In my view, this case falls within that category of cases. It may well
    be that, with the agreement of counsel, the actual record that will be placed
    before the appeal court will be relatively limited. But, that result can only
    be fairly achieved with the assistance of appointed counsel familiar with the
    proceedings at the three-month trial. Duty counsel cannot be expected to
    perform that task in a case like this.

[10]

And,
    in my view, this is a case of sufficient complexity that duty counsel will not
    suffice. Duty counsel provide a remarkable service to the court and the
    unrepresented inmates. They work diligently and provide hours of their time
    without compensation to assist inmates, including inmates convicted of serious
    crimes serving lengthy sentences of imprisonment. However, those cases tend to
    have a limited record and involve one or two discrete points. Duty counsel
    cannot be expected to take on a case of this complexity involving difficult
    grounds of appeal, some of which will involve an attack on the tactical
    decisions made by very experienced trial counsel.

[11]

I
    agree with Mr. Schwartz that although Legal Aid Ontario has refused to fund the
    appeal, it would be appropriate to refer the matter back to the Corporation
    pursuant to s. 28(6) of the
Legal Aid Services Act, 1998
, S.O. 1998, c. 26
. In my opinion it is
    desirable in the interests of justice that the appellant be represented.

[12]

If
    legal aid is refused, an order will go appointing Mr. Calarco as counsel, his
    fees and disbursements to be paid by the Attorney General for Ontario.

[13]

As
    I indicated to counsel at the hearing of the motion, this is a case that would
    benefit from case management. The Associate Chief Justice has asked me to case
    manage this appeal. Accordingly, I direct the following:

1.       If Legal Aid Ontario has not made a decision in this
    matter by December 31, 2013, I would ask the parties to be in touch with Ms.
    Schirripa to arrange a conference call with me the week of January 6, 2014.

2.       Counsel should meet by December 31, 2013 to agree on
    those parts of the transcript that are required for the appeal. Based on my
    review of the materials placed before me on this motion it would seem to me
    that the evidence of McClintic will be necessary as well as the transcript of
    the pre-charge conference, the addresses of counsel, the charge to the jury and
    any objections to the charge. This should be the starting point for those
    discussions. There should be some demonstrable reason why other parts of the
    transcript are required. If counsel are unable to agree, they should be in
    touch with Ms. Schirripa to arrange a conference call with me the week of
    January 6, 2014.

3.       It is in the public interest and the interest of
    justice that this appeal proceed to hearing as soon as possible. I would ask
    counsel to be in touch with Ms. Schirripa to arrange a conference call no later
    than the end of May 2014 to arrange a timetable for filing of factums and the
    appeal book.

[14]

As
    indicated earlier in my reasons, the application to extend time to appeal the
    convictions for sexual assault causing bodily harm and kidnapping is granted.

M. Rosenberg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rana, 2013 ONCA 738

DATE: 20131209

DOCKET: C56572

Cronk, Watt and van Rensburg JJ.A.

BETWEEN

Her
    Majesty the Queen

Ex Rel. City of Toronto

Respondent

and

Parvez Rana

Appellant

Parvez Rana, in person

Amanda Ross, for the respondent

Heard in writing: December 9, 2013

On appeal from the decision of Justice Eric N. Libman of
    the Ontario Court of Justice, dated May 29, 2012, dismissing the appeal from the
    conviction entered and the sentence imposed on November 21, 2011 by Justice of
    the Peace Philomen Wright of the Ontario Court of Justice.

ENDORSEMENT

[1]

At the hearing in the Ontario Court of Justice, the prosecutor advised
    the provincial offences appeal judge that she was satisfied that the appellant
    had a valid permit when the no permit offence was alleged to have been
    committed.  She invited the appeal judge to enter an acquittal on the no
    permit charge.

[2]

The appellant was represented by a paralegal who pointed out that he had
    prepared a s. 11(b)
Charter
motion to be advanced at trial, but was
    unable to do so.  The paralegal asked the appeal judge:

so is there any chance that this Court can take this into
    consideration and the defendant here can benefit out of his  there was a 19
    month delay.

[3]

The paralegal then expressed a preference to pursue the s. 11(b)
    motion.  The following colloquy then ensued:

THE COURT:  Just so that I understand, your view is that  your
    preference is to argue without notice the period of time?

[THE PARALEGAL]:  Yes, I didnt get a chance to argue at that
    moment but I already filed with the prosecutor and with the Court the
Charter
motion.  I just dont (inaudible).

THE COURT:  Anything else you want to say?

[THE PARALEGAL]:  Nothing, Your Honour, but I am asking the
    permission of the Court.

[4]

Without offering any explanation about the redundancy of the s. 11(b)
    motion, or hearing any submissions on the motion itself, the appeal judge said:

This appeal will be dismissed.  The defendant seeks on appeal
    to raise a new issue involving the length of trial [sic] that it took for the
    matter to come to court.

[5]

The peremptory manner in which the appeal judge conducted these
    proceedings was an affront to the best interests of the administration of
    justice.  Once advised that an essential element of the offence  the absence
    of a permit  could not be proven, the appeal judge should have allowed the
    appeal on that count, set aside the conviction, and, as requested by the
    prosecutor, entered an acquittal.  The course adopted by the appeal judge  to
    dismiss without argument a redundant application to stay proceedings for delay
    and to dismiss the appeal  resulted in a miscarriage of justice.  In the end,
    a conviction of a person whose guilt could not be proven was left to stand.

[6]

The dismissal of the appeal also meant that no effect was given to
    another concession by the prosecutor  that the fine imposed for failure to
    stop should be reduced.  To rectify this wrong, the respondent on appeal
    invites us to allow the appeal against sentence, set aside the fine imposed at
    trial, and suspend the passing of sentence.

[7]

Accordingly, the appeal on the no permit charge is allowed, the
    conviction is set aside and an acquittal is entered on this charge.  The sentence
    appeal on the failure to stop charge is also allowed and the penalty on this
    charge is reduced to a suspended sentence.

E.A.
    Cronk J.A.

David
    Watt J.A.

K.
    van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sadeghi-Jebelli, 2013 ONCA 747

DATE: 20131212

DOCKET: C55732

Laskin, Gillese and Strathy, JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gholam Reza Sadeghi-Jebelli

Appellant

Anthony Marchetti, for the appellant

Amanda Rubaszek, for the respondent

Heard:  July 15, 2013

On appeal from the conviction entered on April 20, 2012
    by Justice Alfred J. OMarra of the Superior Court of Justice, sitting with a
    jury.

Laskin J.A.:

A.

OVERVIEW

[1]

After a trial before a judge and a jury, Mr. Sadeghi-Jebelli was
    convicted under s. 282(1)(a) of the
Criminal Code
of the abduction of
    his son Paul Jebelli in contravention of the custody provisions of a custody
    order.   He was sentenced to 22 months in jail, less seven months for
    pre-sentence custody.  At the end of oral argument we advised the parties of
    the result  the appeal was allowed, the conviction was set aside, and a new
    trial was ordered  with reasons to follow.  These are the reasons.

[2]

We allowed the appeal because the trial judge instructed the jury that
    it could convict on a basis not particularized in the indictment.  The
    indictment charged that sometime between April 30 and July 1, 1995, the
    appellant did take away his son Paul in contravention of a custody order,
    with intent to deprive Pauls mother Ms. Cantwell-Hollett of possession of her
    son.  The custody order referred to in the indictment was made by a provincial
    court judge on May 11, 1995.  It gave interim custody of Paul to his mother.

[3]

Sometime between December 1994 and May 1995 the appellant sent Paul to
    Iran, where he remained for 12 years.  The appellant testified that he sent Paul
    in December 1994 with Ms. Cantwell-Holletts consent, as evidenced by her
    having co-signed Pauls passport application.  The Crown, however, alleged that
    the appellant was guilty on either of two bases:  he sent Paul to Iran in May
    1995, shortly before or after the custody order was made; or, he failed to
    return Paul once the order was made.

[4]

The appellants defence that he had consent had an air of reality in the
    evidence, and the trial judge properly instructed the jury it.  However, the
    trial judge also instructed the jury that it could convict the appellant on
    either of the two bases put forward by the Crown:  if he arranged to send Paul
    to Iran in contravention of the custody order; or, if he failed to take steps
    to return Paul to his mothers possession in compliance with the court order.  That
    second basis for conviction should not have been left with the jury.  The Crown
    must prove the offence particularized in the indictment.  The indictment
    charged the appellant only with taking Paul away, not with detaining or
    harbouring him.  Accordingly, the conviction could not stand.

B.

BACKGROUND

[5]

The main issues at trial were when Paul was taken to Iran and whether
    his mother consented to the taking.  The evidence was most unusual.

(1)

The Witnesses at Trial

[6]

Only two witnesses testified for the Crown:  a Ministry of the Attorney
    General employee, who entered the family court documents as exhibits, and Paul
    Jebelli, who at the time of trial was living with his father and his uncle
    Mehdi Jebelli.  The appellant and Mehdi Jebelli testified for the defence.

[7]

Ms. Cantwell-Hollett did not testify.  The Crown claimed that it could
    not find her.  However, in cross-examination Paul said that she was living in
    the Hamilton area, and in re-examination he said that he had given a police
    officer her phone number.

[8]

The Crown then met with Ms. Cantwell-Hollett, interviewed her and asked
    to call her as a witness.  The trial judge denied the request.  He ruled that
    permitting the Crown to call her at that stage of the trial would irreparably
    damage the defence.

[9]

During the pre-charge discussions, the Crown renewed its request.  It
    asked to re-open its case to call Ms. Cantwell-Hollett.  Again, the trial judge
    denied the request on the ground that permitting her to be called after all the
    evidence was in would prejudice the defence.

(2)

Custody and Access Provisions for Paul Jebelli

[10]

Paul
    Jebelli was born on May 15, 1990.  An April 15, 1993 provincial court order
    gave the appellant custody of Paul, and gave Ms. Cantwell-Hollett access on
    alternate weekends.  At the time, the appellant and his son lived in Toronto; shortly
    after the order was made, Ms. Cantwell-Hollett moved to Newfoundland.  She
    rarely visited Toronto and rarely exercised her right of access.

[11]

However,
    on January 20, 1995 Ms. Cantwell-Hollett brought an application in the
    provincial court, without notice to the appellant, for custody of her son and
    child support.  Both Ms. Cantwell-Hollett and the appellant appeared before
    Justice Ball on March 13, 1995 and again on May 11, 1995 when he made an order
    granting Ms. Cantwell-Hollett interim custody of Paul.  A further hearing was
    scheduled for June 6, 1995.  The appellant did not appear and a warrant for his
    arrest was issued.

(3)

Paul Goes to Iran

[12]

The
    appellant testified that Ms. Cantwell-Hollett visited Toronto in January 1994
    and that the family had dinner together.  The appellant told Ms.
    Cantwell-Hollett that he wanted to send Paul to Iran for six to eight months to
    visit the appellants parents and extended family.

[13]

The
    appellant testified that Ms. Cantwell-Hollett consented to the trip.  She
    co-signed an application for Pauls passport, which was needed for their son to
    travel out of the country.  The appellant said that he sent Paul to Iran in
    December 1994 with the expectation that his son would return to Canada sometime
    in 1995.

[14]

Paul
    also testified that he went to Iran in 1994 when he was about four and a half
    to five years old.  He could not remember the exact date.  He did, however,
    remember that he celebrated his fifth birthday (May 15, 1995) in Iran.  His
    passport, which likely would have had a date stamp when he entered Iran, was
    not produced in evidence.

(4)

1995 to Early 2007

[15]

Paul
    lived with his grandparents and extended family in Iran for twelve and a half
    years.  During that period the appellant, was imprisoned in a camp in Iraq and
    father and son had no contact with each other.

[16]

The
    appellant had joined a political organization known as Peoples Mujahedin of
    Iran, which aimed to overthrow the theocratic regime in Iran.  In 1995 the
    appellant went to Iraq to participate in the groups activities.  However, he
    became disillusioned with the group, and was imprisoned incommunicado until
    2006, when American military forces secured his release.

[17]

On
    his release, the appellant went to Iran to arrange for Pauls return to Canada.
    He testified that he was surprised to learn Paul was still in Iran after so
    many years had passed.  Paul came back to Canada in February 2007.

(5)

2007 Until Trial

[18]

On
    his return to Canada, Paul lived briefly with another uncle.  He then reunited
    with his mother and lived with her for a while, until she forced him to leave.
    He then lived on his own until 2009, when his uncle Mehdi Jebelli moved to
    Canada and they began living together.

[19]

Meanwhile,
    after arranging for Pauls return to Canada, the appellant went to Belgium
    where he sought asylum.  He lived in Belgium for a while, but was eventually
    arrested for the abduction of Paul, and, in December 2010, was extradited to
    Canada.  After being released on bail, he moved in with his brother and his
    son.  At the time of trial, the three were living together.

C.

Analysis

(1)

The
    Relevant
Criminal Code
Provisions and the Indictment

[20]

The
    appellant was charged under s. 282(1)(a) of the
Criminal Code
, which
    states:

(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 liable to imprisonment for a term not exceeding ten years;

[21]

Consent
    is a defence. Section 284 of the
Code
provides:

No one shall be found guilty of an offence under sections 281
    to 283 if he establishes that the taking, enticing away, concealing, detaining,
    receiving or harbouring of any young person was done with the consent of the
    parent, guardian or other person having the lawful possession, care or charge
    of that young person.

[22]

Although
    the conduct proscribed by s. 282(1) comprises, takes, entices away, conceals,
    detains, receives or harbours, the appellant was charged only with taking his
    son Paul.  The indictment read:

Gholam Reza Sadeghi-Jebelli stands charged that he, sometime
    between and including the 30
th
day of April in the year 1995 and the
    1
st
day of July in the year 1995, at the Municipality of
    Metropolitan Toronto, in the Toronto Region, did being a parent of Paul Aryan
    Wayne Jebelli, a person under the age of fourteen years, in contravention of the
    custody provisions of a custody order in relation to the said Paul Aryan Wayne
    Jebelli, made by his Honour Judge Ball of the Ontario Provincial Court, Family
    Division, with intent to deprive Madonna Hollett, the parent of Paul Aryan
    Wayne Jebelli of the possession of Paul Aryan Wayne Jebelli, did take away the
    said Paul Aryan Wayne Jebelli, contrary to Section 282(1)(a) of the
Criminal
    Code
.

(2)

The
    Principle that the Offence Particularized in the Charge Must be Proved

[23]

When
    the Crown charges an accused with an offence, and particularizes the way the
    offence was committed, it must prove the offence as particularized in the
    charge.  The Supreme Court of Canada affirmed this principle in
R. v.
    Saunders
, [1990] 1 SCR 1020 at 1023.  McLachlin J. said:  It is a fundamental
    principle of criminal law, that the offence, as particularized in the charge,
    must be proved.  So, for example, if the Crown charges an accused with
    trafficking in heroin, it cannot, without an amendment to the charge, obtain a
    conviction for trafficking in cocaine.

[24]

This
    principle is grounded in fairness.  Particulars permit the accused to be
    reasonably informed of the transaction alleged against him, thus giving him the
    possibility of a full defence and fair trial.  See
R. v. Côté,
[1978]
    1 SCR 8 at 13.  This principle is subject to an exception for mere
    surplusage, or information in the indictment that is not essential to the
    offence, but that exception does not apply here.  See
R. v. Vézina,
[1986]
    1 SCR 2 at para. 49.

(3)

Application
    of the Principle to this Case

[25]

The
    Crown particularized the charge against the appellant.  The indictment charged
    that the appellant did take away his son.  Thus, the Crown had to prove:

·

The appellant took away his son Paul;

·

He did so in contravention of the custody provisions of a custody
    order;

·

He did so with intent to deprive Pauls mother of possession of
    her son; and

·

He did so without the consent of Pauls mother.

[26]

The
    appellant claimed that he sent Paul to Iran in December 1994 and that he did so
    with Ms. Cantwell-Holletts consent.  The trial judge did instruct the jury
    that if it had a reasonable doubt whether Ms. Cantwell-Hollett consented, it
    should acquit.

[27]

The
    Crown alleged that the appellant did not send Paul to Iran in 1994; rather he
    sent his son there months later  shortly before or after the order granting
    interim custody of Paul to Ms. Cantwell-Hollett in May 1995.  He did so,
    according to the Crown, to keep control over his son and deprive Ms.
    Cantwell-Hollett of custody.  If the jury accepted these allegations, then
    undoubtedly the appellant was guilty of the charge as particularized.

[28]

The
    problem in the charge arose because the trial judge instructed the jury on the
    Crowns alternative argument.  The Crown argued in the alternative that even if
    the appellant initially had Ms. Cantwell-Holletts consent to take Paul to
    Iran, once the interim custody order was made in May 1995, he had to comply
    with that order by returning Paul to his mother, and he did not do so.

[29]

The
    trial judge outlined this argument for the jury as follows:

If Ms. Cantwell-Hollett provided verbal consent permitting Mr.
    Jebelli to remove Paul from the country, she no longer consented after she
    commenced her application in January 1995, and it no longer applied.  The Crown
    argued, if the consent existed at all, then after the May 11, 1995 order had
    been made, it had ended with her right to interim custody.  Any consent that
    may have existed prior to May 11, 1995, evaporated on the granting of the order
    for interim custody.  Mr. Jebelli had an obligation to comply with that order
    and he did not.

[30]

Then,
    in instructing the jury on whether the appellant intended to deprive Pauls
    mother of possession of her son, the trial judge said:

Number five:  Did Mr. Jebelli intend to deprive Ms.
    Cantwell-Hollett of possession of Paul?  This element has to do with Mr.
    Jebellis state of mind at the time he took steps to send Paul to Iran or
    failed to take steps to return him to the possession of his mother in
    compliance with the court order.  To intend to deprive a parent of possession
    of a child is to somehow put the child beyond the reach of the other parents
    control or custody.  Even a brief or short period of time is enough.

[31]

This
    instruction was wrong because the appellant was charged only with taking away
    his son, not with detaining or harbouring him.  On this instruction, the jury
    could have accepted that Ms. Cantwell-Hollett consented to Pauls going to Iran
    in December 1994, or had a reasonable doubt that she did not, but nonetheless
    found the appellant guilty because he did not bring Paul back to his mother
    once the custody order was made.  That basis for conviction should not have
    been left with the jury on the indictment as particularized.

[32]

The
    Crowns alternative basis for conviction could properly have been left with the
    jury if the appellant had also been charged with detaining or harbouring his
    son in contravention of the May 11, 1995 custody order.  If the indictment had
    been particularized in that way, then the Crown would have had to show that the
    appellant intended to keep Paul in Iran to deprive Ms. Cantwell-Hollett of
    custody of her son.  That, however, was not the charge the appellant had to
    meet.  Thus, his conviction must be set aside.

(4)

The
    Definition of Takes in s. 282(1)(a), Amending the Indictment, and the
    Directed Verdict Appeal

[33]

Three
    final points.  First, I accept the Crowns submission that the word takes in
    s. 282(1)(a) of the
Criminal Code
should be interpreted broadly,
    consistent with the purpose of the section:  to  prevent one parent from
    intentionally interfering with the other parents lawful right to custody of
    their child.  See
R. v. Dawson,
[1996] SCJ No. 113 at paras. 15 and
    19.  Thus, a taking contrary to s. 282(1) need not be solely a singular or
    discrete act; it may continue for some time.  See
R. v. Goudreault
,
    [2005] AJ No. 1296 (C.A.).

[34]

For
    example, suppose a court order gives custody of a child to the mother and
    allows the father to take the child on vacation for two weeks.  If the father
    takes the child on vacation but doesnt return the child until a year later,
    the father is guilty of abduction.  The taking would be a continuous act,
    which ended only when the child was returned.  See
R. v. Hammerbeck
,
    [1993] BCJ No. 685.

[35]

These
    continuous taking cases do not apply here.  On the appellants evidence he
    sent to Paul to Iran months before Ms. Cantwell-Hollett obtained an order for
    custody of her son.  He therefore did not take Paul in contravention of the
    custody provisions of a custody order.

[36]

Second,
    in her factum and in oral argument, Ms. Rubaszek for the Crown asked that the
    indictment be amended in two respects:

·

To extend the time frame to begin in December 1994 to conform to
    the evidence; and

·

To add to the charge the words conceals, detains or
    harbours.

[37]

Although
    we have jurisdiction under s. 683(1)(g) of the
Code
to make the
    amendment, we declined to do so.  We concluded that the amendment would
    prejudice the defence because it would require the appellant to meet evidence
    not presented at trial.

[38]

Third,
    at trial, the appellant applied for a directed verdict of acquittal at the
    close of the Crowns case on the ground the Crown had not led any evidence that
    Paul had been taken during the time frame of the indictment, April 30 to July
    1, 1995.  The trial judge dismissed the application.  He ruled that as Paul
    testified he was four and a half to five years old when he went to Iran, there
    was some evidence that Paul was taken there during the time frame in the indictment.

[39]

The
    appellant also appealed the trial judges ruling on the directed verdict
    application.  This aspect of the appellants appeal must fail.  In the light of
    Paul Jebellis testimony, the trial judge was correct to dismiss the
    application.

D.

conclusion

[40]

The
    appeal is allowed, the conviction for abduction is set aside, and a new trial
    is ordered.

Released: December 12, 2013 (JL)

John Laskin J.A.

I agree.  E.E. Gillese J.A.

I agree.  G.R. Strathy J.A.