R. v. Hernandez, 2021 ONCJ 252

O N T A R I O C O U R T O F J U S T I C E CITATION: R. v. Hernandez , 2021 ONCJ 252 COURT FILE NO.: 1211-998-20-SD3802 DATE: 2021-04-23 BETWEEN: HER MAJESTY THE QUEEN - AND - WILFREDO HERNANDEZ Before Justice P.N. Bourque REASONS FOR JUDGMENT Heard February 23, 24, 25, 2021 and March 8, 2021.

Released on April 23, 2021 Ismar Horic................................................................................... for the Crown Cormac Donovan................................................................... for the Defendant BOURQUE J.: Overview [ 1 ] The defendant is charged with several offences arising out of and immediately following an altercation with his estranged spouse at her home on September 10, 2020. [ 2 ] The defendant has pled guilty to the following offences: 1.

September 6, 2020; Operate motor vehicle pursued by police officer and failed to stop as soon as was reasonable in the circumstances, s. 320.17 of the Criminal Code . 2. September 7, 2020; dangerous driving 320.13 (1) of the Criminal Code . 3. September 8, 2020; drive motor vehicle while prohibited 320.18 of the Criminal Code . Agreed Statement of Facts (Exhibits 1 and 8) [ 3 ] On Thursday, September 10 th , 2020, Wilfredo Hernandez and Amanda Letourneau were arguing inside Letourneau’s apartment.

At approximately 2:30 p.m., Hernandez brought his son (5 years old) downstairs to the ground floor apartment 102 belonging to Laura Guitar and Murray Thompson. After which, Hernandez returned to Letourneau’s apartment. [ 4 ] Hernandez would eventually leave in a 2009 gray Chevy Aveo, four-door, bearing Ontario marker CPTJ803 (VIN:

KL1TX65E59B356615). His son, was in the front passenger seat. [ 5 ] Police attended Letourneau's residence, and during their investigation, the accused called Letourneau and after a conversation with her, the police officers on scene (they arrived at approximately 3:16 p.m.), then spoke with Hernandez and attempted to reason with him. However, he was in an irrational state, yelling and swearing and refusing to listen to police. P.C. Joyner asked Hernandez to return his son, to which Hernandez said he would not. P.C.

Joyner also asked him to return his son to the nearest police station, at which point Hernandez called him a derogatory name and hung up. P.C. Joyner also observed the text messages that Hernandez sent to Amanda Letourneau, stating “I rather die with my kids then letting any of you take me down.” [ 6 ] As a result of the growing concern, multiple Districts and the O.P.P. were alerted and Hernandez’s cell phone was pinged. At approximately 4:20 p.m., P.C. Hicks located the vehicle parked in the Walker Brother Quarry property in the city of Niagara Falls. [ 7 ] P.C.

Hicks (operating a marked police vehicle and was wearing a police uniform), parked his police vehicle in close proximity to the front bumper of the subject vehicle. At this time, P.C. Hicks was not aware of the grounds for an arrest. His sirens were never activated. P.C. Hicks exited his vehicle and withdrew his “taser”. P.C. Hicks observed the young boy sitting in the front passenger seat and Hernandez sitting in the driver’s seat. [ 8 ] Hernandez then observed P.C. Hicks and started the vehicle. He quickly reversed and then accelerated around drove past P.C. Hicks while P.C.

Hicks yelled for the accused to stop the vehicle through an open driver’s window. Hernandez did not respond. P.C. Hicks did not pursue. At approximately 4:36 p.m., P.C. Milne observed the subject vehicle and briefly activated his emergency roof lights on his marked police vehicle, in an attempt to stop the vehicle. Hernandez, however, did not stop and P.C. Milne turned off his emergency lights and began to strategically follow the subject vehicle while communicating his position to other units. P.C.

Ciaramitaro, #9479, parked his marked police vehicle on the anticipated path in an attempt to block and stop Hernandez’s vehicle. [ 9 ] However, Hernandez drove around the police vehicle of P.C. Ciaramitaro and accelerated to speeds over 30 km/hr over the posted speed limit. P.C. Milne continuing to strategically follow. Hernandez continued to drive east on Lundy's Lane swerving in and out of traffic, through red lights, and through a plaza parking lot. At that time, P.C. Milne aborted his pursuit due to public safety concerns as Hernandez’s driving became increasingly dangerous. [ 10 ] P.C.

Grant proceeded to the area to gain a visual of the vehicle. Once identifying the vehicle, he observed Hernandez drive to through a stale red light at the intersection of Montrose Road and McLeod Road which at that time of day is a construction zone with heavy vehicle traffic and is a very busy intersection. Multiple vehicles that were travelling in the opposite direction were required to brake abruptly to avoid a collision with Hernandez’s vehicle. P.C. Grant pursued and observed Hernandez drive through another stale red light (at Niagara Square Drive) and continued south on Montrose Road. At that time, P.C.

Grant aborted the pursuit due to public safety concerns. [ 11 ] P.C. Critelli then witnessed the vehicle proceed through a light that was red at the time and the vehicle was almost struck by a city bus. P.C. Critelli followed the vehicle as it went through a third set of stop lights without stopping. P.C. Critelli was then ordered by communications to stop strategically following the vehicle for public and child safety. [ 12 ] P.C. Farquhar, without activating his emergency lights, then observed the subject vehicle and proceeded to follow it.

Hernandez proceeded to pass the vehicle that was in front of him, unsafely as there was oncoming traffic. P.C. Farquhar continued to follow at a distance of 500-750m without his emergency lights activated. Without clocking Hernandez on radar, P.C. Farquhar estimated Hernandez reached speeds of 110-120 kms/hr in a posted 80 km/hr zone and failed to stop at a stop sign. [ 13 ] P.C. Tomiuck was able to get in front of Hernandez’s vehicle and attempted to box him in. At that point, Hernandez reversed course and attempted to execute a three point turn to evade police. P.C.

Scime (OPP) safely pulled into westbound traffic to cut off Hernandez’s vehicle. Hernandez drove around P.C. Scime’s vehicle and as a result became partially stuck in the north side ditch. As Hernandez was attempting to get out of the ditch, P.C. Scime made the decision to make contact with Hernandez’s vehicle at a low rate of speed in an attempt to disable the vehicle in the ditch. The impact was at approximately 15 km/h. [ 14 ] The impact caused the subject vehicle to become fully disabled in the ditch. P.C. Scime and P.C.

Tomiuck then approached the driver’s door of the subject vehicle and removed the accused, at which time he was placed under arrest (noting the time of arrest as 4:56 P.M.). [ 15 ] At that time, P.C. Farqhuar arrived on the scene and retrieved the young boy from the vehicle. He had the lap belt of the seatbelt on but the shoulder belt was behind him. EMS attended the scene and transported the five year old to NHS St.

Catharines System as a precaution where he was cleared medically without injury. [ 16 ] Further investigation revealed that Hernandez’s was a prohibited driver on September 10, 2020 with a province wide indefinite prohibition (remedial HTA, medical condition and unpaid fines). The damage to the subject vehicle was $5,000 and damage to the OPP police vehicle was $3,000. [ 17 ] Further to the acceptance of those facts, I find the defendant guilty of counts 6, 7 and 8 of the information.

The facts were also accepted by the defendant for the purpose of the trial on the remaining counts. [ 18 ] The defendant has pled not guilty to the following offences and the trial proceeded on these offences: • September 10, 2020; utter threat to cause death to Amanda Letourneau (s. 264.1 (2)) • September 10, 2020; break and enter a dwelling house at 102-14 John St with intent (s. 348 (1)(a)) • September 10, 2020; take motor vehicle without consent (s. 335 (1));

• September 10, 2020; take person under the age of 14 years in contravention of custody order dated June 27, 2016; and • September 10, 2020; threat to cause Amanda Letourneau to receive a threat to cause death to Cruz Hernandez by text message (s. 264.1(2)). [ 19 ] The trial dealt with the remaining counts of the information and dealt with the circumstances surrounding the relationship between the defendant and Amanda Letourneau, and the actions at the home that day. Further Exhibits [ 20 ] The Crown filed on consent the Family Court Order of September 10, 2020.

It provided that the mother of the child (D.O.B. […], 2015) have sole custody with access to the defendant (the father) “at the reasonable discretion of the mother”. [ 21 ] The Crown also filed MTO documents showing that the drivers licence of the defendant was suspended indefinitely under the HTA. Amanda Letourneau [ 22 ] …is a former girlfriend of the defendant and is the mother of his three children. At the time, two of their children were residing with others, but the son was living with her.

At the time as a result of a separation, she had a family court order which gave her sole custody of the young child with access to the defendant in her “reasonable discretion”. [ 23 ] She stated that the defendant had actually been living with her at her apartment for two weeks and they had been intimate during that time. She states that the night before these events, he had become angry with her and was accusing her of several infidelities.

This apparently continued into the next day. [ 24 ] She states that around 2:30 that afternoon, when the defendant was cutting the son’s hair, the arguments continued and the defendant took the son down to her “aunt’s” apartment in the same building. He came back upstairs and continued to accuse her of further infidelities. He told her that he would “beat the shit out of her”, and he did not care if she stopped breathing. The witness then proceeded to call the police. [ 25 ] The defendant became more agitated.

The witness went out onto the balcony and stated that she had been asking him to leave her apartment all that day. [ 26 ] The defendant took his bike downstairs and put it into her car. He also put his remote controlled toy car in the car. As he came back up, at a suggestion from 911, she locked the door and did not let him in. She believed he was carrying a baseball bat. He then went downstairs and got the boy from the “aunt’s” apartment and she saw him putting him into the front passenger seat of the car. She had texted her aunt not to let him take her but she was too late.

She became distraught and yelled at him not to take their son but he drove away. [ 27 ] The witness stated that she had not let the defendant use her car and did not realize he had taken her key. While she was still on the phone, the defendant drove off and she remained on the phone and the police arrived. [ 28 ] Filed as an exhibit were an exchange of text messages between her and the defendant. In those messages the defendant stated: “You will never see your son again…” “I’d rather die with my kids than letting any of you take me down”. [ 29 ] The 911 tape was played and marked as an exhibit.

It largely confirmed what she had said in her evidence in-chief. I noted that when he was putting his bike in the car and seemed that he was leaving, her demeanour was quite calm, even when she was describing him coming back to her door with an aluminum baseball bat. What was clear was her dramatic change in demeanour when she saw her son being put in the car. She says: “Oh, my son’s outside. no, my son’s outside.

No. he’s taking my son, he’s taking my son…yes…(inaudible) he’s leaving with him.” She was becoming desperate and many of her responses were becoming inaudible. [ 30 ] In cross-examination, she admitted that they had been together for several weeks and on weekends, all of the children were together with her and him. She did not think he was alone with her son more than once or twice when she went to the grocery store (we were in the midst of the COVID restrictions) or the doctor.

She admitted that they had all gone bike riding and that he had played once with her son with the remote car. [ 31 ] In assessing the credibility of this witness, I must consider that the 911 call largely confirms the things she said in court. The text messages are also some further confirmation. [ 32 ] I will set out in full the text messages between the defendant and the witness: DEF: Why couldn’t you say that you are a prostitute, I was there now you won’t see nothing good that to you and all. You will never see him again. Keep on sucking cock.

WITNESS: Bring me my son and this can all go away DEF: I rather die with my kids then letting any of you take me down

No this will be done today Me and my son You can stop all, just stop it WITNESS: Bring me my son and it can it will all go away just bring me my son DEF: Really keep on sucking it Fuck them too hope ya l forgot you just the building whore Cool Why couldn’t you just say you a whore and all couldn’t been over Now I’m calling the real cops Ok thanks You can go see the kids at the cops WITNESS: What police station DEF: Don’t matter I will not give him back till you all end this [ 33 ] She was cross-examined about her previous dealings with Child and Family Services.

She stated that they had attended to deal with an issue with her oldest daughter asking for money from strangers. She also stated they came in the past because of his domestic abuse. She admitted that she had a previous crystal meth and opioid addiction problem. She had been on methadone for many years. She stated that the Crystal Meth problem was in her past. [ 34 ] She stated that after these events, the Child and Family Services had been in touch with her. She was asked whether the past visits of the CAS were part of the argument on September 9th or 10th with the defendant. She denied that.

She also denied that any of the statements of the defendant in the text messages was in any way a reference to the CAS. She agreed with the defence that the defendant did not have a good opinion of the police and he thought that they did not respect him. [ 35 ] There was some discussion with defence counsel about the ownership of the car that he drove away in. She admitted in cross- examination that the defendant had paid for the car. I also note that she has another car.

While she stated that she had driven cars with standard transmissions before, she admitted that all the other cars she owned (including the other car she presently owned) had automatic transmissions. [ 36 ] After the witness finished her testimony and we adjourned to another day, it was revealed that the witness had sent a text to the next proposed witness (Guitar). The text was sent during the witness cross-examination (or at a break) and it told the witness not to answer questions about when the children had been in the care of Ms. Guitar, and questions about the witness’s previous Meth addiction.

She complained that the questions were not relevant and then made disparaging remarks about the defendant’s lawyer. [ 37 ] Ms. Letourneau was recalled to the stand and admitted sending the text and admitted that she was trying to influence the witness. I note that it did not mention any of the events that day (September 10, 2020) but it was clearly a wish to influence the witness. I must take this into account in assessing the evidence of this witness and indeed Ms. Guitar. [ 38 ] In assessing Ms.

Letourneau’s evidence, I find that I will discount her statement of the actions of the defendant, where there is no supporting evidence. For example, when I assess the actions of the parties in their apartment that day, I believe that the several texts sent by the defendant supports her assertion that he was earlier accusing her of having sexual relations with several men. I find that the 911 call (at 2:55 p.m.), is also some corroboration of his threats to her. Laura Leeann Guitar [ 39 ] …lives in a downstairs ground floor apartment in the building where the witness Letourneau lives.

She states that she is like an “aunt” to Letourneau. She states that on the 10th of September, she was working from her home office. She became aware that the young boy was in their apartment with her spouse Thomson. She stated that she exchanged text messages with Letourneau and during those messages she got the messages noted above. She also got a message to “keep him” but when she responded to that message, the defendant had come and had taken the boy with him. [ 40 ] She acknowledged that she got the subsequent email from Letourneau asking her not to say anything about the children now living with her.

She believed that Letourneau was asking her to not tell the truth about those things. She was asked about Letourneau’s drug use and she was aware of Letourneau’s drug problems. She was also asked about why the children had been in her voluntary care for the past 4 weeks (before this testimony) and she stated that she believed that Letourneau was having issues and she was informed by one of the children that Letourneau had struck one of her daughters. Murray Thomson [ 41 ] …is the spouse of Guitar.

He confirms that on the 10th of September 2020, he was home when the defendant brought his son to their apartment and he was with him for about half-hour, watching a movie and making popcorn. He related that the defendant came to their ground floor patio and while the witness was keeping his dog and cat away from the patio door, the defendant called to his son and the boy went out the door with him.

The Defence Wilfredo Hernandez [42] The defendant testified in his own defence. His testimony was not always easy to follow. He alternated between saying that hisactions were okay (including the texts sent to Amanda Letourneau as shown in Exhibit 4), and then saying that he was angry andespecially angry because he was not taking his medication that day. [43] While no formal diagnosis was presented at trial, he professed to be a schizophrenic and said that when not on his medication,he would hear “voices”. I noted however that he did not say that the voices were directing him to do anything.

He gave explanations forall of his actions, which if believed, would afford him, in some cases, a defence, and in other cases, a mitigation of his actions. Thedefence did not assert that any of this raised an NCR defence. [44] He said that he had re-connected with Amanda Letourneau and his children in June of 2020 and began to live at her house withtheir son around June 25th. He stated that he would sometimes be alone with the children although he did not state that he went awayfrom the home with them alone. Specifically, he did not say that they had gone on car rides alone.

He stated that the car he drove that day(Chevy Aveo) had been purchased with his money earlier that week, and he admitted it was in Amanda’s name because he did not have alicence and did not have insurance. She denied that she ever drove the car as she could not drive a standard and had her own car. [45] He stated that he was having an argument with her that day. He denied threatening her. He stated that he was asking her about aman who had come to the door yelling at some earlier date and he was obsessed with finding out what she had said to him. He admittedthat he continued to ask her about that.

He admitted that he called her names, i.e. “whore”. He stated that throughout this day, September10th, he continued to call her names. He was shown the texts he sent her and did not deny sending them, but he could not remember. Hehowever stated that he did not think that there was anything inappropriate about them. [46] He stated that he was done in the parking lot of the apartment playing with a Radio-Controlled Toy Car with his son. He saidthat battery ran out, so he took son to the “aunt’s” apartment until he charged it up. It seemed that during this time, he was on the phoneto Amanda.

He stated that Amanda left for awhile but then returned in her car. He stated that after the car was charged up, he got sonfrom the aunt and then put his son in the car. He stated that he wanted to get away from Amanda’s arguing so he drove with his son to anearby quarry, to play with the remote control toy car. [47] He stated that at some point, he saw a police officer and stated that the officer had his gun drawn, and as the defendant knew hedid not have a licence he left. He did not describe in any detail where he went.

He stated that at some point, he exchanged texts withAmanda, and he spoke to her on the phone. He did not describe any of the details of the discussion. He stated that at some point, he wasarrested. He did not describe anything about the arrest.

He at one point stated that he saw the police some 10 to 15 minutes before hisarrest, but then denied he had seen them before his arrest. [48] He stated that he was afraid of the police and stated that things always went “badly” for him when he had dealings with thepolice. [49] While he was not asked about whether he knew of the custody order, he did admit in this testimony that he and Amanda werepreviously in family court and he had a lawyer.

In cross-examination, he admitted that Amanda had an order of sole custody of their son.He was not asked specifically whether he believed he was acting in contravention of the order, but I will assume from the totality of hisevidence that he did not believe he was contravening the order. [50] I note that he has already pled guilty to the offence of dangerous driving, driving while prohibited and evading the police, andhe has also accepted as fact the events in Exhibit 1 and 8. [51] While I accept that he stated he was afraid of the police and was angry and much madder than would usually be if on hismedication, I accept that he was aware (at the time) of the events of the driving. [52] In assessing the totality of his evidence, I find that where it contradicts any of the other evidence of the Crown, it cannot bebelieved.

He has admitted to most of the events of the day. He admits that he was arguing with Amanda and calling her derogatorynames, all of which had some reference to her perceived sexual improprieties. [53] His evidence was self contradictory in many respects. He stated he wanted to get away from her arguing, yet he insisted hewanted to know things about this “man” who had come to the door some days previously.

He stated that he was hearing voices, yet hedid not think that any of his texts were “inappropriate”. [54] The agreed statement of facts has him acknowledging that he fled the police but in his evidence he stated he did not know theywere there. With regard to the text messages which are Exhibit 5 ,he refused in his evidence to acknowledge that they in any wayconstituted a threat to his son. He kept repeating that he only did that because he was “mad” at her. [55] In his evidence, he mentioned her previous use of drugs and some reference to her losing the children because of it.

Nothing inthe texts refers to these issues. I cannot accept these concerns other than a post-event justification. Proof of Guilt [56] The defendant can only be found guilty of these further counts if I am convinced beyond a reasonable doubt about the essentialelements of each of these offences. [57] As stated in R. v. Lifchus, (SCC), [1997] 3 SCR 320: The burden of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the

presumption of innocence: Reasonable doubt is not a doubt based upon sympathy or prejudice: Rather, it is based upon reason and common sense; It is logically connected to the evidence or absence of evidence; It does not involve proof to an absolute certainty, it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and More is required than proof that the accused is probably guilty - a (Judge) jury which concludes only that the accused is probably guiltymust acquit." [58] As part of the burden of proof, I must also consider the doctrine as outline in R. v.

W.D. (SCC), [1991] 1S.C.R. 742, and that is, if I believe the evidence of the accused, then I must acquit him where his evidence affords a defence. Even if I donot accept the accused’s evidence then I must ask myself whether his evidence raises a reasonable doubt, and if so, I still must acquit.Finally, even if I reject his evidence I must consider the evidence I do accept to determine whether I am convinced beyond a reasonabledoubt of his guild. Is the defendant guilty of the offence of theft of the car? [59] The evidence was that she was the registered owner of the car.

There was evidence that the defendant did not have a driver’slicence. Clearly the car could not be registered in his name. If he drove the car, he would be guilty of driving without a licence. [60] The offence of theft requires that the defendant have a “fraudulent intent”, and that he takes it without “colour of right”. [61] I find that the evidence submitted not only is capable of negating the “fraudulent intent” but also give an air of reality to thedefence of “colour of right”.

That the defendant would also be committing an offence by driving the car, does not in and of itself removehis ability to assert both of these defences. I find that on the evidence, I am left with a preponderance of evidence that the defendant wasthe “owner” (either beneficially or in law) and thus his taking it would remove his fraudulent intent. I therefore am left in a reasonabledoubt and find the defendant not guilty of this count (count 3).

Did the defendant utter a threat to cause death to Amanda Letourneau and to their five-year old son? [62] The complainant states that during their argument, the defendant uttered the words, that he would “beat the shit out of her”. Thecomplainant also sent a text message to Ms. Guitar which included the statement, “He’s threatened my life”. There is also the 911 callwhere she asserted that he had threatened her. This is almost contemporaneous. It is not just a self-serving statement made long after thefact.

I therefore find that notwithstanding some doubts about her absolute veracity, I find that he did make threats to her in the context ofher earlier argument. I reject the defendant’s denials and I am not left in a reasonable doubt by them. I find him guilty of count 1. [63] The witness further states that she received a text message from the defendant at 3:41 p.m. which read: “You will never see himagain. Keep on sucking cock”. At 3:48 p.m.,. she received a text which read: “I rather die with my kids then letting any of you take medown. No this will be done today.

Me and my son.” [64] He also sends some messages later which may suggest that he may not carry out these threats: “You can go see the kids at thecops...Doesn’t matter I will not give him back till you all end this”. This is an obvious threat to the life of their son. His explanation thathe did it only because he was mad (and even if I believe that was the only reason) does not constitute a defence. The mens rea of thedefence is made out if the accused intended the words uttered to intimidate or to be taken seriously. It is not necessary to prove that theaccused intended to carry out the threat. (R. v.

McRae, [2013] S.C.R. 931). [65] The defendant asks that I put myself in his shoes and conclude that this was just the rambling of an angry man. I accept that it isthe rambling of an angry man, but an angry man who is expressing threats to cause real harm and indeed death to the child. It ignoresthat he is trying to get her to admit to some sexual indiscretions. It ignores that his words are designed to get her to make theseadmissions.

What other reasonable conclusion is there but that he is making these threats with the intention that they be taken seriously.They were taken seriously, and it is not just the subjective statement of the mother of the child. The mother was literally begging thatthe child be returned to her (“Bring me my son and this can all go away”) and his response is (“I rather die with my kids then letting anyof you take me down”). [66] The defendant will be found guilty of this charge (count #5).

Did the defendant break and enter a dwelling house? [67] There was evidence that the defendant was allowed in the house by the complainant for a period of several weeks before thisincident. During this incident, the complainant locked the door. The defendant knocked on the door loudly to gain entrance. With regardto the home of Ms. Guitar and Mr. Thomson, there is no evidence that he broke into their home to get his son, and indeed there is noevidence he was contemplating and indictable offence therein. Count 2 will be dismissed.

Did the defendant take the child in contravention of a custody order? [68] The Criminal Code states as follows: 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 courtanywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that child, ofthe possession of that child is guilty of

(

a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or [ 69 ] The defendant admitted his earlier attendance in family court with Amanda. He did not deny that he knew about the order. I find on the totality of the evidence that he was aware of the family court order. [ 70 ] The custody order clearly states that the complainant has custody of the child. There is no prescribed access period for the defendant. The only access allowed is at the “reasonable discretion” of the complainant. The parties were obviously residing together for a short period of time before this incident.

Does this short period of residence somehow negate the Order or place it in abeyance? I do not believe it does. [ 71 ] All orders are effective from the date they are made. The order does not contain an ending period. I believe that the order was in full force and effect for the period of this offence. I must also consider whether this period of residence together would have the effect of negating the mens rea of the defendant.

That is, would he honestly feel that by residing together, this order would no longer be in effect. [ 72 ] In the circumstances of this case, I believe that there is ample evidence to show that he was under no such illusion. Looking at the text messages, he is not asserting any right under law to have the child. He is taunting her and using the child as a bargaining chip in his quest to get her to admit her infidelities. His possession of the child, and his refusal to return the child at her insistence, is a tool which he is using to assert his unhappiness with her.

There does not appear to any stated confusion in his mind as to the reason he is taking the child. It is obvious to anyone. Even if he may have felt he had the right to take the child at the time he put the child in the car, such an assertion vanished at the point he began to taunt her and indeed, the point he taunted her by making threats concerning the health of the child. [ 73 ] There is no need to delve into the wording of this order.

Any potential assertion that her insertion that the child be returned was somehow not in accordance with the terms of the Order, vanished when he began to use the child to confront her, and indeed to threaten the child. It may also have vanished when he took the child in a car, for which he had no licence to drive, and for which he had not properly secured the child in a safe seating arrangement. [ 74 ] I must also address the different versions of the parties with regard to her being at the apartment. I find that she did not leave in her car.

I find that the 911 call (and it’s timing) put her at the apartment the whole time. It all makes his assertion that he calmly took the child to the park in serious doubt. I find that his anger during the day never diminished. He left with the child in an angry state. [ 75 ] This is compounded by his obvious and clear dangerous operation of the motor vehicle, which started with him driving without a licence and was further increased when he saw a policeman and decided to drive away.

Nothing he did during that period would be evidence of any legal assertion of an honestly held belief of his right to have access to the child at that time. This was not a custody and access dispute. This was a taking of a child to be used as a hostage to his demands. In rejecting most of the defendant’s evidence, I find that it does not raise a reasonable doubt. [ 76 ] The other question that I must ask is whether my difficulty with the credibility of the complainant Letourneau, cause me to doubt that he was taking the child in contravention of the court order. I find it does not leave me in doubt.

There is sufficient evidence coming from the defendant himself to convince me that he had no concerns about her as a parent, but his focus was entirely on his belief that she was seeing many other men. [ 77 ] While I accept that she had a history of drug abuse and the Family and Children Services were involved in her children’s lives, there is nothing in what he said that could lead anyone to reasonably believe that her parenting skills or history of drug use was in the mind of the defendant. [ 78 ] In R. v. McDougal ,

(1990) CanLII 6788, (ON CA), the court held in a situation where a father returned the child home a day late from an access visit that : …The actus reus or “questioned act” is the detention of the child in contravention of the custody order, while the “purpose going beyond the mere performance of the questioned act” is the intention to deprive the other parent of possession of the child. The language of the

section precludes reliance on any lesser level of intent, such as recklessness, and requires proof that the act was done for the express purpose of depriving the other parent of possession of the children... and: The genesis of the legislation, the serious potential penalty, and the constitutional limits of the federal criminal law power, all preclude an

interpretation of the

section that would extend it to all conduct in relation to children by a parent who violated a custody order. The

section is not aimed at parents who refuse to act in a responsible and co-operative manner in the administration of the terms of a custody order. It targets parents who abduct their children in contravention of custody orders. The purpose of the legislation requires that the criminal intent described in the

section be one which is consistent with the common notions of abduction, and which is sufficiently culpable to warrant the imposition of a criminal sanction with potentially serious consequences. [ 79 ] In our case, the defendant states that the initial taking was lawful and the time that he did not return the child was very small and therefore the actus reus of the offence and the mens rea are not complete.

As noted in McDonald , above, the amount of time involved in the deprivation of the custodial parent from the child is not as important as whether it is proven beyond a reasonable doubt that the failure to return the child is by way of the “express purpose of depriving the other parent of possession of the children”. [ 80 ] I find that the defendant in our case was doing it for that express purpose. The text messages cannot be interpreted in any other way. What could be a stronger denial of the rights of the custodial parent than saying “you will never see him again”.

The defence urges me to consider the context in coming to a conclusion about the mens rea . Taking a child in the middle of an argument away in a vehicle, without the parent being aware of the location of the child, and then making threatening statements about the life of the child, coupled with everything else, is the strongest statement of intention possible.

[ 81 ] I find beyond a reasonable doubt that his intention was to deprive the custodial parent of possession of the children, for a least a period of time. The defendant states that the defendant had no plan of going anywhere and would probably have at some point merely returned them to the custodial parent. He never stated that to the custodial parent nor to the police.

While it is not a certainty that some terrible harm to the child would have been the result if he had not been apprehended by the police, that would appear to have been his stated intention, even if we do not know whether he ultimately would have carried it out. [ 82 ] I find the defendant guilty of count 4. Released: April 23, 2021 ________________________________ Signed: “Justice P.N. Bourque”