HMTQ v. Flick, 2003 BCSC 459

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: HMTQ v. Flick, 2003 BCSC 459 Date: 20030326 Docket: 21043 Registry: Vancouver Between: Her Majesty The Queen And Rory Joseph Flick Ban on Publication and Disclosure 486(3) and 539(1) CCC Before: The Honourable Madam Justice Gill Reasons for Judgment Counsel for the Crown: E.Z. Poll Counsel for the Accused: P.D. Angly Date and Place of Hearing/Trial: March 19, 2003 Vancouver, B.C. [ 1 ] Mr. Flick is charged with the abduction of a person under 16 contrary to s. 280(1) of the Criminal Code .

There are three counts in the indictment covering three time periods. [ 2 ] At the conclusion of the case for the Crown, the defence argued that on the Crown's evidence, the offence was not committed. Reliance was placed upon the evidence of Ms. Hunt that on each of the three occasions in question, her intention was to run away from the home of her grandparents, where she resided. It was argued that as she intended to leave with or without the accused's help, there was no taking. It was further argued that persuasion is an essential ingredient of this offence.

I rejected the defence argument, stating that written reasons would follows. [ 3 ] I will deal first with whether persuasion is an essential element of the offence of abduction. Section 280(1) provides: Every one who, without lawful authority, takes or causes to be taken an unmarried person under the age of sixteen years out of the possession of and against the will of the parent or guardian of that person or of any other person who has the lawful care or charge of that person is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

There are relatively few authorities which deal with the meaning of "takes or causes to be taken". Counsel for Mr. Flick relied upon two — Regina v. Leboe , 1965 CanLII 668 (BC SC) , [1965] 4 C.C.C. 373 (B.C. Co.Ct.) and R. v. Johnson (1977), 1977 CanLII 1957 (SK KB) , 37 C.C.C. (2d) 352 (Sask. D.C.). He argued that R. v. Langevin and LaPensee (1962), 1962 CanLII 583 (ON CA) , 38 C.R. 421 (Ont.CA.) should not be followed. [ 4 ] In R. v. Leboe , Morrow, Co.Ct.J. concluded that some form of persuasion must be proven. In reaching that conclusion, he was guided by the decision in R. v.

Blythe (1895), 4 B.C.R. 276 (S.C.) . As no persuasion had been used by the accused, the charge was dismissed. The facts in R. v. Leboe were as follows. Two young girls, ages 14 and 17, were on board a train where, by coincidence, they found the accused. The elder of the two asked him to take them with him to Whitehorse. At first he refused, but when pressed, agreed to do so. The girls testified that their father had made things unbearable at home and it was their intention to leave, not necessarily with the accused, but with anyone they knew well.

The accused had not exerted any influence on the girls or attempted to persuade them to go with him. Rather, he attempted to persuade them not to do so.

[ 5 ] In R. v. Langevin and LaPensee , both R. v. Leboe and R. v. Blythe were discussed. McLennan J.A. did not agree that R. v. Blythe was authority for the proposition that persuasion is a necessary element in cases of abduction as the issue in that case was not whether persuasion was a necessary ingredient of the crime, but whether the results of the persuasion in another jurisdiction constituted the real taking. It was stated that had parliament intended that persuasion was an essential ingredient, words such as "entice" or "persuade" would have been used. To conclude that persuasion was an essential ingredient would be to disregard the plain language of s. 235(2)(

a) which was as follows: For the purpose of proceedings under this

section it is not material whether (

a) the female person is taken with her own consent or at her own suggestion ... That subsection has been replaced by s. 286 which states that it is not a defence to a charge under s. 280 that a young person consented to or suggested any conduct of the accused. The differences between the old and new sections are therefore not of significance. [ 6 ] In R. v. Johnson , the child had been confined to her bedroom for disciplinary reasons, but climbed out the window and went to the home of the accused where she spent the night.

The accused had suggested that she go home as her parents would be worried but she refused to do so. It was concluded that the accused had not persuaded or induced the child to come to his home. He simply played a passive role in allowing her to remain. Halvorson D.C.J. referred to R. v. Langevin and LaPensee and R. v. Leboe but did not find it necessary to reach a conclusion as to whether persuasion was an essential element. In his opinion, R. v. Langevin was not authority for the proposition that an accused could be convicted of abduction even though he played no

part in the actual removal of the child. He stated that an accused must in some way participate in the removal before it can be said that he "takes or causes to be taken". By allowing the child to stay in his home, the worst that could be said was that the accused had harboured the child. [ 7 ] As R. v. Leboe relies upon the decision in R. v. Blythe , and R. v. Langevin and Lapensee discusses it, it is appropriate to refer to that case. In R. v. Blythe , the accused, who resided in British Columbia, had sent letters to a 15 year old girl who lived with her parents in Washington State urging her to join him.

She agreed. She travelled from Port Townsend to Victoria, where the accused met her. Soon after her arrival, he suggested that she think seriously about her family and her decision and if she wanted to go back, she could do so that evening. She replied that she would rather stay. On the following day, the accused was arrested. He was convicted of abduction. [ 8 ] On appeal, the majority concluded that the conviction should be set aside, although the three justices wrote separate reasons.

Each was of the view that the girl was not in the possession of her father at the time she arrived in Victoria and that the persuasion had taken place out of the jurisdiction of the court. Walkem J. arguably proceeded on the basis that persuasion was a necessary element in cases of abduction. However, that was not the issue before the court and no Canadian authorities were referred to. The English authorities to which he referred were described as illustrating the importance of persuasion. [ 9 ] As was noted by McLennan J.A. in R. v.

Langevin and LaPensee , there was nothing in the English statute to the same effect as s. 235(2) (now s. 286) of the Code. He concluded, at p. 425:

Section 236 defines the offence of abduction of a child under fourteen with the intent therein mentioned, and the language used in subs. 1 (

a) is,—"takes or entices away or detains the child". Had Parliament intended that persuasion was an essential ingredient, apt words such as "entice" or "persuade" would have been used. To hold that persuasion is an essential ingredient would be to disregard the plain language of subs. 2( a ). My opinion is reinforced by the statement of Moss C.J.O. in Rex v. Yorkcma (1910), 1910 CanLII 186 (ON CA) , 21 O.L.R. 193, 16 C.C.C. 189, 13 Can.

Abr. 432, where he states that, "... the statute is prohibitive, and any one dealing with an unmarried girl under sixteen does so at his peril." [ 10 ] I agree with his conclusion. In my view, persuasion is not an essential element of this offence. [ 11 ] As to the argument of the defence regarding Ms. Hunt's intentions, it is for the jury to decide factual questions.

While it is true that she intended to run away, what she would have done had the accused not offered to take her with him is very much in doubt. [ 12 ] In my view, there is evidence from which it could be concluded that the counts have been proven. “K.M. Gill, J.” The Honourable Madam Justice K.M. Gill