R v Nyhus, 2023 ABKB 567

Court of King’s Bench of Alberta Citation: R v Nyhus, 2023 ABKB 567 Date: 20231012 Docket: 211259098S1 Registry: Edmonton Between: His Majesty the King Crown (Respondent) - and – Malin Nyhus Defendant (Appellant) Corrected judgment: A corrigendum was issued on October 12, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Justice A. Loparco _______________________________________________________

Appeal from the Conviction and Sentencing by The Honourable Justice Andreassen Convicted on the 24 th day of August, 2022 ( Docket: 211259098P1) I. Overview [ 1 ] Malin Nyhus (Appellant) appeals his conviction by the Honourable Justice Andreassen (Trial Justice) for child abduction in contravention of a Parenting Order under s 282 of the Criminal Code . [ 2 ] The trial proceeded in the Alberta Court of Justice on May 6, 2022. The Trial Justice convicted the Appellant of parental child abduction with reasons delivered on August 24, 2022.

The Appellant was sentenced to a 3-month suspended sentence, which was fully served as of November 2022. [ 3 ] The allegations related to a 3-day period where the Appellant failed to return his son (

C) to the mother (M), in accordance with a Parenting Order delivered by Justice Lema on December 23, 2021 (Parenting Order). The Parenting Order was outlined in a written endorsement ( Nyhus v Chambers , 2021 ABQB 1025 (Judgment)) that was filed on December 23, 2021. Several elements of the offence were admitted in an Agreed Statement of Facts (ASF). The Crown’s case included only the ASF and the Judgment, which were admitted as exhibits by consent.

No viva voce or other evidence was tendered by Crown or Defence. [ 4 ] The issue was whether the Crown had proven beyond a reasonable doubt that the Appellant had the requisite mens rea , specifically, whether the Appellant had actual knowledge that he was in breach of the Parenting Order with the intention of depriving M of the child. The Trial Justice inquired as to the appropriate use that could be made of the information contained in the Judgment. No authorities were provided to the Trial Justice on the question raised. II.

Grounds of Appeal [ 5 ] The Appellant raises the following three (3) grounds of appeal: 1) The Trial Justice erred by admitting and relying on the reasons and facts found by Justice Lema in the Judgment; 2) The Trial Justice’s verdict was unreasonable; and 3) The Trial Justice erred by finding that the facts underpinning the conviction were sufficient to meet the criminal threshold required for the offence under s 282 of the Criminal Code . III. Brief Conclusion [ 6 ] The appeal is allowed.

The Trial Justice improperly relied on parts of Justice Lema’s findings of fact and reasoning in the Judgment that had a bearing on the mens rea of the charged offence. This amounted to an error of law. Justice Lema’s findings arose in the family law context on the civil standard of proof.

Relying on those findings to convict a person of an offence beyond a reasonable doubt contravenes procedural fairness and evidentiary rules. [ 7 ] Having concluded that there was an error on the first ground of appeal, I do not need to determine whether in the alternative, the Trial Justice’s verdict is unreasonable for having been based on insufficient circumstantial evidence to prove knowledge beyond a reasonable doubt, or whether the Trial Justice erred in applying the principle of restraint to the circumstances. IV.

Facts [ 8 ] The ASF included the following evidence that spoke to the essential elements of the offence: • The Appellant is the father of C. He and M separated in November 2019.

M was the de facto primary caregiver until the summer of 2021, when the Appellant did not return C after a weekend visit. • On June 25, 2021, a Consent Interim Parenting Order was entered into by the Appellant and M, giving primary care of C to the Appellant with M being entitled to exercise supervised visits with C. • In November 2021, M applied to have the Interim Parenting Order changed. • On December 16, 2021, Justice Lema granted M’s application and ordered that M have primary care of C.

The Appellant was to return C to M’s care by 6:00 PM on December 19, 2021. • The Appellant did not comply with Justice Lema’s December 16, 2021 Order and made an application to Stay the Order. On December 23, 2021, Justice Lema denied the Appellant’s stay application and ordered that C be returned to M by 3:00 PM on December

24, 2021, with a police enforcement clause. • The Appellant was present at “the Courthouse” on December 23, 2021. • The Appellant did not return C to M pursuant to Justice Lema’s December 23, 2021 Order. • Police made multiple attempts to contact the Appellant between December 25 and December 27, 2021, which culminated in apress release requesting public assistance in locating the Appellant and C. • On December 27, 2021, at 3:33 PM, the Appellant contacted police and was informed that there was a warrant for his arrest.

TheAppellant made arrangements to turn himself in, which he eventually did and was arrested at 10:31 PM. [9] The Judgment was made an exhibit “pursuant to the Canada Evidence Act” by consent of the parties and without argumentor submissions on the evidentiary use of the Judgment. V. Position of the Parties at Trial [10] The Crown relied only on the ASF and the Judgment to prove its case.

The Crown argued that the Judgment was tendered forthe purpose of proving that there was a Custody Order in place and that the background and affidavit referenced in the Judgment couldform part of the Trial Justice’s factual basis.

The Crown specifically stated the following was credible and reliable evidence from theJudgment upon which the Court could rely: • The Appellant knew of the December 16, 2021 Order directing him to return C to M’s primary care by a certain date. • The Appellant was at the Courthouse on December 23, 2021, which is the same date that the Judgment was “rendered.” • The Judgment outlines the history between the Appellant and M from May to December 2021. [11] Defence counsel argued that the Appellant’s Affidavit, which was tendered in the hearing before Justice Lema andreproduced in the Judgment, was evidence that could be weighed by the Court to arrive at a factual determination. [12] With respect to Justice Lema’s findings, the Crown argued that Justice Lema’s reasoning may be persuasive but submittedthat the Court must make its own weighing of the reliability of the evidentiary background contained in the Judgment.

Defence counselagreed that the Judgment was not binding. [13] The Crown made the following submissions with respect to the essential elements of the offence that needed to be provedbeyond a reasonable doubt: • There is no evidence that the Judgment was given in open court or that the Appellant was made aware of the Judgment.

However,the Appellant’s presence in the Courthouse on December 23, 2021, shows that the Appellant was expecting a decision. • The Judgment contained evidence of the Appellant’s intent to deprive. [14] Defence counsel argued that there was an insufficient amount of evidence to prove beyond a reasonable doubt that theAppellant was aware of the Judgment and Parenting Order.

Defence counsel emphasized that the stay application was heard in writingand there was no information on the record about how or when the Judgment was delivered on December 23, 2021, or whether it cameto the Appellant’s attention. [15] With respect to the Appellant’s admitted attendance at the Courthouse on December 23, 2021, or his counsel’s knowledge ofthe Judgment, Defence counsel argued that there is no evidence as to what time or why the Appellant attended at the Courthouse orwhether it was before or after the Judgment was filed.

While there is evidence that the Judgment was emailed to counsel, there is noevidence of whether the Appellant’s counsel actually saw and communicated the Judgment to the Appellant. Further, the Appellant’sefforts to reach out to police regarding the press release suggests that the Appellant was not aware of the Parenting Order. VI.

The Trial Justice’s Decision [16] Citing R v Muirhead, 2008 PESCAD 5 and R v McDougall (1990), (ON CA), 62 CCC (3d) 174 (Ont CA),the Trial Justice found that the ASF proved all elements of the offence except the following: 1) That the accused must know that there is an existing custody order made by a Canadian court.

It may be that he must alsoknow that his detention of the child is in violation of that order; and, 2) That the child’s detention must have been done with an intent to deprive the mother of possession of the child. [17] The Trial Justice then concluded, with no objections raised by counsel that the background as recited by Justice Lema, theportions of the Appellant’s Affidavit, as quoted in the Judgment, and the Parenting Order itself, form part of the evidentiary basis of theCrown’s case.

Specifically, the Trial Justice found that he could consider as evidence the background, findings of fact, excerpts of thesworn Affidavit, conclusions, and terms of the Parenting Order as contained in paras 28 – 34 of the Judgment. The Trial Justice was clear

that Justice Lema’s reasoning is not evidence and that he was free to agree, disagree, or ignore it. [18] The Trial Justice concluded that there was no direct evidence that the Appellant was aware of the Parenting Order. However,the element of knowledge could be satisfied either by inferring knowledge through circumstantial evidence, or by a finding that theAppellant was willfully blind to the Parenting Order. The Trial Justice concluded that the circumstantial evidence did not prove theAppellant’s knowledge beyond a reasonable doubt.

However, the only reasonable inference available from the evidence was that bydisappearing for several days without having learned of the Parenting Order, the Appellant chose not to make himself available to receivenotification from his lawyer or ask his lawyer whether a decision had been issued.

This was sufficient to support a finding that theAppellant was willfully blind to the Parenting Order, thus satisfying the mens rea for parental child abduction. [19] The Trial Justice dismissed the Appellant’s defence of necessity as there was no evidence that, from the Appellant’s view,there was a danger of imminent harm to the child and there were no reasonable legal alternatives to keeping the child in violation of theCustody Order.

In finding the Appellant guilty of the offence, the Trial Justice concluded that the Crown had proved all elements of theoffence beyond a reasonable doubt and that the Appellant had no applicable defence. [20] While the Appellant’s criminal trial was proceeding, the Appellant successfully appealed both the December 16, 2023 Orderand the Parenting Order: Chambers v Nyhus, 2022 ABCA 287. VII. Standard of Review [21] With respect to the first ground of appeal, the admissibility of evidence is always a question of law: The Queen v Fitton, (SCC), [1956] SCR 958 [Fitton] at 971.

The application of a legal standard to the facts is a question of law alone:Araujo v The Queen, 2000 SCC 65 , [2000] 2 SCR 992 at para 18. Questions of law are reviewed on a standard of correctness:R v Sheppard, 2022 ABCA 88 at para 12, citing R v Youvarajah, 2013 SCC 41 at para 31; R v TWS, 2020 ABCA 157 at para 39, citingR v Dez, 2018 ABCA 99 at para 24, and R v Lavallee, 2015 ABCA 288 at para 16.

Whether or not evidence is admissible is always aquestion to be determined in the light of what the law is with respect to the particular nature of the evidence tendered: Fitton at 983 – 84;cited in R v Ward, (SCC), [1979] 2 SCR 30 at 34. VIII. Position of the Parties on Appeal [22] The Appellant argues that the Trial Justice erred by admitting and relying on facts contained in the Judgment. The Appellantsubmits that the Trial Justice did not engage in any independent weighing of the facts contained in the Judgment, and instead, acceptedthem as having been proven beyond a reasonable doubt.

This was a legal error that ignored the contextual approach outlined in BritishColumbia (Attorney General) v Malik, 2011 SCC 18 [Malik], Trang v Alberta (Edmonton Remand Centre), 2002 ABQB 658 [Trang],and Cowichan Tribes v Canada (Attorney General), 2022 BCSC 1586. [23] Applying the framework on admissibility pursuant to Malik, the Appellant argues that the nature of the prior proceedings andthe nexus between the issues in the different proceedings weigh heavily against admission.

The Judgment was produced in the familylaw context, where the best interests of the child were of primary concern and where the burden of proof was set at the civil standard.Furthermore, that hearing was conducted exclusively on affidavit evidence with no cross-examination. [24] The Appellant further argues that if the Judgment was properly admissible, the facts in the Judgment upon which the TrialJustice relied were not properly weighed. The Appellant submits that the hearsay evidence in the Judgment upon which the Trial Justicerelied for certain factual findings is inappropriate in the criminal context.

The Trial Justice erred by ignoring these hearsay issues becausethe parties had consented to the Judgment’s admissibility. The Appellant further submits that there are factual reliability concernsbecause the Judgment was overturned by the Court of Appeal in the interim. [25] The Respondent argues that the Judgment was properly exemplified and admitted as part of standard practice to prove theexistence of an order.

The Respondent submits that the Appellant has not identified anything specific upon which the Trial Justiceimproperly relied in his decision, apart from vague notions of hearsay. [26] The Respondent further argues that the Malik framework does not apply because the Trial Justice relied only on the facts andthe Parenting Order contained in the Judgment, and none of Justice Lema’s reasoning. The Respondent submits that the Trial Justiceconducted a full and independent weighing of evidence by accepting the facts included in the Judgment.

Therefore, the Trial Justicemade no error in admitting and relying on the Judgment. IX. Analysis 1) The Trial Justice did not err by admitting and relying on certain facts containedin the Judgment [27] Section 23(1) of the Canada Evidence Act, RSC 1985, c C-5 (CEA), permits the admission of judicial documents where thedocument is a certified copy purporting to be under the seal of the Court. This provides a mechanism for authenticating judicialdocuments that dispenses with the need to call court officers, clerks, or stenographers to prove the authenticity of the document.

Noticerequirements must be followed if a party intends to admit evidence of any proceeding or record: CEA s 28. Such documents can also beadmitted pursuant to common law principles without notice if it is an exemplification (an official copy of a document made under the

seal of a court or public functionary): R v Tatomir, 1989 ABCA 233 at 20 – 22. [28] These provisions in the CEA facilitate the admission of judicial documents. They do not dispense with the Court’s role indetermining the appropriate uses that may be made of the documents pursuant to the rules of evidence.

To determine the properevidentiary use that can be made of a judicial document in a different proceeding, issues of relevance, probative value, hearsay, and theappropriate weight to be given to it must still be assessed in the context of the legal question at hand. [29] In Malik, the Court considered the admissibility of a prior judgment on a Rowbotham application in which Mr. Malik claimedto be without resources (Rowbotham Judgment).

The application before the Court involved the Province seeking to rely on findings offact contained in the Rowbotham Judgment for the truth of their contents in their later application for an Anton Piller order. The Courtheld that it was entitled to take judicial notice of the Rowbotham Judgment. As a public document, the Rowbotham Judgment could beused to prove the fact that proceedings were taken by the parties and supported by testimony. The admissibility of prior civil or criminaljudgments in subsequent civil proceedings can promote efficiency and reduce overall costs to the parties: paras 37 – 38.

However, theweight and significance of a prior judgment will depend on the circumstances of each case.

Factors such as the similarity of issues to bedecided, the identity of the parties, the nature of the earlier proceedings, the opportunity given to the prejudiced party to contest the priorproceedings, whether the proceedings were criminal or civil (because of the differing burdens of proof), and all the varyingcircumstances of the particular cases should be considered: paras 42 and 47 – 48. [30] There are two distinct stages to this contextual approach: 1) whether the prior judgment is admissible; and if so, 2) what theevidentiary effect of that judgment will be. [31] A relevant judgment in a prior civil or criminal case is admissible in a subsequent proceeding as proof of its findings, providedthe parties are the same or were themselves participants in the prior proceedings on similar or related issues.

Any prejudice can be curedby giving the parties an opportunity to lead evidence to contradict or lessen the weight of the prior judgment: Cowichan at para 47.

Ifthere is a strong nexus between the issues, a prior judgment will be admissible even if the parties in the prior proceedings were different:Trang at para 50. [32] In Cowichan, the British Columbia Supreme Court held that the prior judicial findings made in the decision of Mathias vCanada, 2001 FCT 480, concerning whether the Musqueam people actually or notionally controlled access to the Fraser River, wasinadmissible because there was a lack of mutuality in the parties, a lack of a strong nexus between the issues of the two cases, lack ofrelevance, and because the parties in Cowichan would be unable to adequately respond to the findings in Mathias. [33] In Trang, the Court was concerned with admitting reasons for judgment from a criminal trial and a labour arbitrationjudgment in the context of habeas corpus proceedings.

Given the highly similar nature of the issues in the habeas corpus application andthe underlying proceedings involving the Edmonton Remand Centre, the Court noted that excluding the prior judgments and requiringnew evidence on those issues would essentially amount to re-litigating issues that were already decided.

However, the Court was clearthat because a civil judgment is only based on proof to a balance of probabilities, a civil judgement is worthy of less respect in asubsequent proceeding and generally should not be admissible as prima facie proof of the commission of the relevant acts or theexistence of negligent conduct: para 62. [34] In this case, the Appellant argues that the Judgment should never have been admitted by the Trial Justice, even though theJudgment was admitted as trial evidence by consent. The Crown tendered the Judgment to prove that there was an enforceable ParentingOrder at the relevant time.

However, the ASF already contained this fact and was properly admitted pursuant to s 655 of the CriminalCode. The ASF was therefore conclusive proof that there was a valid Parenting Order in effect at the relevant time and that the Appellantdid not return C in accordance with that Parenting Order.

The Appellant submits that once a fact is admitted by an accused, evidenceadmitted for the purpose of supporting the admitted fact is irrelevant and it must be excluded: R v Handy, 2002 SCC 56 at para 74, citingR v Clermont, (SCC), [1986] 2 SCR 131 at 136. [35] A review of the transcripts indicates that the initial purpose of admitting the Judgment was to prove that there was anenforceable Parenting Order at the time that the Appellant was alleged to have breached it.

The Judgment and Parenting Order set out thedetails of the procedural background that led to the Parenting Order (which is a matter of public record), the place where C was to bereturned to M on December 24, 2021, and that the Order was in effect as of the date of pronouncement (December 23, 2021). None ofthese facts were included in the ASF. The Judgment and Parenting Order therefore contained admissible evidence that was not includedin the ASF. [36] As such, the Trial Justice did not err by admitting the Judgment as evidence.

The Judgment was properly admitted, as it sharessufficient factual nexus with the Appellant’s criminal trial issues, namely that the Appellant and M share a child, the Parenting Order wasin place at the time of the alleged offence, and the Appellant was bound by the Parenting Order. The Parenting Order itself containedfurther detail that was relevant to the Trial Justice’s overall assessment of the offence. [37] There are several factors that weigh against admitting the Judgment as evidence.

The parties to the family law proceedingswere the Appellant and M, whereas in the case before the Trial Justice, the parties were the Appellant and the Crown. The burden ofproof in the family law proceedings is on a balance of probabilities, as opposed to the criminal standard of proof beyond a reasonabledoubt. The evidence tendered in the family law proceedings was tendered by way of sworn affidavits that were not tested in cross-examination.

The issue to be decided in the family law proceeding was whether there should be a stay pending appeal of Justice Lema’sDecember 16, 2021 Order and whether it was in the best interests of C to remain with the Appellant pending the outcome of the appeal.The key consideration before Justice Lema was whether C would suffer irreparable harm resulting from the granting or denial of thestay. In contrast, the issue to be decided in the case before me is whether the Appellant was guilty of a criminal offence involving theabduction of C.

The Judgment was therefore very limited in terms of the admissible evidence contained within it. [38] The Judgment was properly admitted and relied upon for the following facts: [39] The Appellant was a respondent in an application by M to vary a Consent Interim Parenting Order, which gave the Appellantprimary parenting of C. That application was heard by Justice Lema on November 25, 2021. The Court requested and received affidavit

evidence from the Appellant and M, and written argument from counsel and subsequently, granted M’s application on December 16,2021, with oral reasons. [40] The Appellant appealed and applied for a stay of the December 16, 2021 Order. The Court received affidavit evidence fromthe Appellant and M, and written argument from counsel.

The Court denied the Appellant’s application by way of written endorsement,which included the Parenting Order with specific terms and was filed on December 23, 2021. [41] The Parenting Order directed the Appellant to return C to M at the Camrose RCMP Detachment by 3:00 PM on December 24,2021. The Parenting Order came into effect on the date of pronouncement, which was December 23, 2021. 2) The Trial Justice did err by relying on certain other facts contained in theJudgment [42] The Trial Justice erred in relying on inadmissible facts contained in the Judgment.

The Trial Justice made several directreferences and drew conclusions that bear directly upon the mens rea of the offence based on inadmissible facts from the Judgement andParenting Order. The Trial Justice’s description of the factual background of the case, reasoning, and conclusions relied partly oninformation contained in the Judgment that went beyond the permissible use of a civil judgment in a criminal trial.

Certain key facts setout in the Judgment not included in the ASF were accepted as having been proven beyond a reasonable doubt in the Appellant’s criminaltrial. [43] The inadmissible facts included in the Judgment and Parenting Order included the history of the family law proceedingsbetween the Appellant and M, reproductions of prior judgments made by Justice Lema in relation to the proceedings between theAppellant and M, contents of emails from the Appellant’s counsel and M’s counsel, a reproduction of portions of the Appellant’sAffidavit submitted in the Stay Application, excerpts from the written arguments provided by counsel for both the Appellant and M, andJustice Lema’s reasons for dismissing the Appellant’s Stay Application. [44] The Trial Justice incorrectly relied on the following facts from the Judgment: • The Appellant knew that Justice Lema treated M’s application to return primary parenting to her as sufficiently urgent, such that itwas dealt with in Regular Chamber rather than Special Family Chambers, which would have happened some distance off in the future. • There was an acrimonious current court proceeding where the issue was whether to stay an order with which the Appellant hadvery recently chosen not to comply. • The Appellant’s family lawyer explained the Judgment and Parenting Order to him before the Appellant decided on December 19,2021, not to obey it. • The materials and argument with respect to the Stay Application were submitted on December 21, 2021. • Justice Lema gave no indication as to when he would render a decision. • Justice Lema had been treating the parenting issue as urgent since November 2021.

The Appellant knew that Justice Lema wasgiving the matter his urgent attention, especially after he agreed to hear the Stay Application under tight timelines. • The Appellant’s family lawyer would have been aware of Justice Lema’s disapproval with the Appellant having taken primaryparenting in May, the deadline to return C on December 19, 2021, the tight deadlines to provide materials in support of the StayApplication, and the holiday period which would have been starting the day after the Judgment was filed. • The Appellant’s family lawyer had shown that he prioritized this file by sending an agent to court in November, and again, bypreparing affidavit and argument on the Stay Application within a day. [45] The Trial Justice also accepted as proven facts hearsay portions of the Appellant’s Affidavit as described in the Judgment.Specifically, that the Appellant decided to disobey the December 16, 2021 Order after receiving specific advice from police, C’s reactionto overhearing that he would be taken to M’s, that M’s stepfather had physically disciplined C and, during a conversation between C andM’s stepfather, M’s stepfather used profanity and threatened the Appellant. [46] The Trial Justice recognized the hearsay nature of this evidence but determined that because the parties consented to theevidence being considered, he did not have to address the hearsay issue.

This was an error of law. Counsel consented to the considerationof the Appellant’s Affidavit as reproduced in the Judgment, but not to any exception to the hearsay rule. Hearsay evidence may only beadmitted if it is necessary and reliable: R v Khan, (SCC), [1990] 2 SCR 531 at 540 – 42; R v Starr, 2000 SCC 40 [Starr]at para 213. Once hearsay evidence is found to be admissible, it still must be weighed to determine the ultimate reliability of theevidence: Starr at para 217.

Other than a brief statement of the effect of hearsay, the Trial Justice did not address how the informationmet the burden of proof on the criminal standard, given that the evidence on the Stay Application was in relation to a family proceeding,tendered through affidavits without the benefit of viva voce evidence and cross-examination, and subject to a lower standard of proof. [47] The Trial Justice also erred in using representations from counsel as described in the Judgment. Specifically, the Judgmentdescribes that the Appellant decided to disobey the Parenting Order.

These representations by counsel are not evidence; they constitutehearsay, are unsworn, and are untested in cross-examination. Further, the ASF differs from this representation of counsel.

The ASF statesthat the Appellant did not return C by the December 19, 2021, deadline and instead made an application for a stay of the Parenting Orderbecause C made concerning comments. [48] Even if the Appellant’s Affidavit as reproduced in the Judgment was reliable for the truth of what it purports, the Appellantdeposed that he intended to comply with the Parenting Order and that he sought the advice of the police, but it does not go so far as to

admit having knowledge that he was breaching the Parenting Order with the intention of depriving the mother of the child. The Trial Justice recognized that there was no direct evidence that the Judgment or Parenting Order came to the attention of the Appellant but relied on unsworn and untested information as evidence to establish the Appellant’s mens rea on the basis of circumstantial evidence or willful blindness. [ 49 ] It is unfortunate that counsel led the Trial Justice astray.

However, I agree with Appellant’s submission that despite the consent by counsel that the Court could rely on information contained in the Judgment as evidence, the Court should not take this as having the same effect as a formal factual admission under s 655 of the Criminal Code .

Despite the consent of counsel, issues of the admissibility and the evidentiary effect of the Judgment are legal questions over which the Trial Justice had the ultimate responsibility as gatekeeper. [ 50 ] In R v RAH , 2017 PECA 5 , trial defence counsel consented to the admission of two video recorded statements under s 715.1 of the Criminal Code . The trial judge admitted the videos without further consideration, which was found to be an error on appeal.

The Appeal Court explained that an admission that the requirements of s 715.1 of the Criminal Code were met is not an admission of fact, but only counsel’s opinion: para 52. Counsel’s opinion cannot usurp a trial judge’s duty to ensure that the admissibility requirements are met before admitting evidence. The Trial Judge, not counsel, must be satisfied that the conditions are met: para 53. X.

Conclusion [ 51 ] The Trial Justice erred by accepting the joint submissions of counsel that he could rely on supplementary background information contained in the Judgment that extended beyond the procedural history of the family law proceedings. [ 52 ] The Trial Justice further erred by accepting the information contained in the Judgment as having been proven beyond a reasonable doubt without engaging in the necessary analysis.

The admissibility of a prior judicial decision in a criminal trial does not automatically lead to the acceptance of the information or findings contained in the decision without the usual evidentiary rigors required to meet the burden of proof beyond a reasonable doubt on all elements of the alleged offence. The Trial Justice did not turn his mind to whether the information contained in the Judgment met the necessary evidentiary safeguards required in a criminal trial.

The failure to conduct an analysis of the credibility, reliability, and evidentiary weakness of the findings of fact in the Judgment was an error of law.

The Trial Justice’s use of such information amounts to a breach of procedural fairness as it was relied upon without the benefit of viva voce evidence and cross-examination such that the credibility and reliability of the information could be properly tested. [ 53 ] With respect to the other evidence in the Judgment cited by the Crown in its argument, it was entirely within the Crown’s control to introduce supplementary evidence through different avenues, such as transcripts of the oral hearing on November 25, 2021, or viva voce evidence from M, M’s family lawyer, the police, or the Appellant’s family lawyer. XI.

Remedy [ 54 ] The appeal is allowed, the Appellant’s conviction is quashed, and an acquittal is entered. [ 55 ] Without the information contained in the Judgment, the Appellant’s conviction cannot stand. There is no admissible evidence (direct or circumstantial) that addresses the Appellant’s direct or indirect knowledge of the Parenting Order or that the Appellant intended to deprive M of C.

As such, the Crown did not meet its burden of proving these essential elements of the offence. [ 56 ] Further, on August 24, 2022, the Appellant was sentenced to a 3-month suspended sentence and probation, which was fully served as of November 2022. He did not seek a stay of sentence pending appeal in relation to this matter and therefore has fully served his entire sentence. [ 57 ] Given these considerations, it is not in the interests of justice for this exceptional case to have another trial. R v Titong , 2021 ABCA 75 at paras 18 – 20 . Heard on the 15 th day of June, 2023.

Dated at the City of Edmonton, Alberta this 12 th day of October, 2023. A. Loparco J.C.K.B.A. Appearances:

Jill A. Tarrabain Crown Prosecutor’s Office - Wetaskiwin for the Crown (Respondent) Cateline Joly, Student at law Purser Law for the Defendant (Appellant) _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Justice A. Loparco _______________________________________________________ The citation number has been amended and the style of cause has been modified Format has been changed to reflect a criminal appeal.