



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.


