



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lewin, 2018 ONCA 882

DATE: 20181105

DOCKET: C63961

MacPherson, Miller and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrea Lewin

Appellant

Mark Halfyard, for the appellant

Linda Shin, for the respondent

Heard: October 31, 2018

On appeal from the order/judgment of Justice J. De
    Filippis of the Ontario Court of Justice, dated January 28, 2017.

REASONS FOR DECISION

[1]

The appellant and the complainant are the parents of twin children born
    in Canada. The complainant lives in the Netherlands, and the appellant moved
    with the children to live with the complainant in Amsterdam. They married and
    lived in Amsterdam for two years. After the relationship ended, the appellant
    obtained an order from a Dutch court allowing her to take the children back to
    Canada, which she did. The appellant then commenced an application in Ontario
    for divorce and custody of the children. She was granted custody, and the
    complainant was granted unsupervised access. The complainants access was to
    take place monthly, when he would fly to Ontario from the Netherlands to see
    the children, now aged 7. A court order set out an access schedule for December
    2015 to June 2016.

[2]

In June 2016, the complainant had travelled to Ontario and was waiting
    to pick up the children at their school, as provided by the access schedule. As
    he waited, the appellant surreptitiously entered the school and removed the
    children from class. The complainant called the police and attempted to block
    the appellants vehicle with his own. The appellant drove onto the grass to
    exit the parking lot, and then to the highway, driving aggressively, with the complainant
    following. Fearing for the childrens safety, the complainant eventually discontinued
    his pursuit.

[3]

The police arrested the appellant three days later. She pleaded guilty
    to one count of abduction of a child in contravention of a court order contrary
    to s. 282(1) of the
Criminal Code
. She received a suspended sentence.
    She appeals from sentence, arguing that the sentencing judge erred by:

1. Using the
    appellants prior wrongdoing as an aggravating factor;

2.
    Not tailoring the sentence to the appellants specific circumstances, and
    instead using the appellants sentence to send a message of general deterrence.

[4]

The appellant submits that she ought to have received a conditional
    discharge.

[5]

We do not agree.

[6]

The agreed facts on sentencing included prior instances of the appellant
    frustrating the complainants access. Even though she was specifically punished
    for these instances through a family court contempt finding, the sentencing
    judge was entitled to consider the appellants admitted course of conduct in
    determining whether a discharge would be contrary to the public interest. Taking
    the appellants prior actions into account in this exercise is not a matter of
    punishing her twice for the same conduct.

[7]

With respect to whether the sentencing judge erred in his consideration
    of the appellants circumstances, or wrongly emphasized denunciation and
    deterrence, the appellant is essentially asking this court to reweigh the
    aggravating and mitigating factors. In the circumstances of this case, given
    the aggravated manner in which the appellant frustrated the complainants
    access, the sentencing judge was entitled to find that it was not in the public
    interest to grant a conditional discharge.

DISPOSITION

[8]

The appeal is dismissed.

J.C. MacPherson J.A.

B.W. Miller J.A.

David M. Paciocco
    J.A.


