r v. ERIC ST-ONGE, 2023 QCCQ 6728

R. c. St-Onge 2023 QCCQ 6728 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU TOWN OF GATINEAU Criminal and Penal Division No: 550-01-118699-208 DATE: September 13, 2023 ______________________________________________________________________ BY THE HONOURABLE MARK PHILIPPE, J.C.Q. ______________________________________________________________________ THE KING Prosecutor v. ERIC ST-ONGE Accused ______________________________________________________________________ JUDGEMENT ______________________________________________________________________ [ 1 ] Mr.

Eric St-Onge is accused of abduction of a child, in contravention of a custody or parenting order. [1] [ 2 ] The period of the infraction is between July 24 th , 2020, and September 27 th , 2020. [2] In short, the accused is the father of X (2008-[...]). The mother of the child is A. O. (1976-[...]). [ 3 ] A. O. was in a relationship with the accused between the year 2000 and 2012, when they separated. They had two children together. The events only concern X, who was 12 years old at the time. [ 4 ] During the summer of 2020, according to an Ontario Superior Court order rendered on [...], 2019, A.

O. and the accused had shared custody of the child. The parenting

schedule for the summer was on a one week on, one week off basis. [ 5 ] In accordance with an agreement between A. O. and the accused, X was to remain with him, at his home, until July 24 th , 2020, when he was to return X, to her mother, A.

O.'s, home. [ 6 ] Contrary to the agreement and the court order establishing custody rights, the accused never returned the child to her mother until September 27 th , 2020, when the police had to intervene to enforce a new order issued on [...], 2020, stipulating that X was to be returned to her mother. [ 7 ] The prosecution therefore alleges that there were two judgments establishing custody of the child to his mother, and that the accused acted in keeping the child in contravention of these judgments.

Among other relevant facts, the prosecution points out that the evidence establishes that, as early as July 2020, the accused had moved from his home in St-Albert, Ontario, without informing A. O. of his new place of residence or where he was going to keep X. [ 8 ] The accused, unrepresented, presented a defence explaining that X had chosen to stay with him of her own free will. By keeping her with him, he was respecting her will. Concerning his address: he explained that he had not left his address willingly, but had instead been evicted, an eviction he considered illegal.

He had always intended to return to live there and considered that he was still living at that address, even though he had not physically lived there for several weeks. He had stayed with his parents for a while in Namur, Québec before finding a new home in mid-August 2020 in St-André-Avellin, Québec. He participated by telephone at the [...], 2020, custody hearing for X. He contests the decision rendered on that date, alleging that during the hearing, communication was interrupted and he was unable to be duly heard. [ 9 ] The accused is presumed innocent.

It is up to the prosecution to prove the offence beyond a reasonable doubt. [ 10 ] The issue, therefore, is whether the prosecution has discharged its burden of proving each of the essential elements of the offence. I. THE LAW [ 11 ] In R. c. P. D. 2021 , [3] Judge Délisle rendered a detailed decision in which he recalled the essential elements of the offence set out in

section 282 of the Criminal Code : [27] L’

article 282 du Code criminel se lit comme suit : 282(1) Quiconque, étant le père, la mère, le tuteur ou une personne ayant la garde ou la charge légale d’une personne âgée de moins de quatorze ans, enlève, entraîne, retient, reçoit, cache ou héberge cette personne contrairement aux dispositions d’une ordonnance rendue

par un tribunal au Canada relativement à la garde de cette personne, avec l’intention de priver de la possession de celle-ci le père, la mère, le tuteur ou une autre personne ayant la garde ou la charge légale de cette personne, est coupable :

a) soit d’un acte criminel et passible d’un emprisonnement maximal de dix ans;

b) soit d’une infraction punissable sur déclaration de culpabilité par procédure

sommaire. [28] Pour que l’accusé soit reconnu coupable, la poursuite doit prouver hors de tout doute raisonnable les éléments essentiels de l’infraction suivants : 1) L’accusé doit être le père, la mère, le tuteur ou une personne ayant la garde ou la charge légale de l’enfant en question; 2) L’enfant doit être âgé de moins de quatorze ans; 3) L’accusé enlève, entraîne, retient, reçoit, cache ou héberge l’enfant; 4) L’enlèvement est en contravention d’une ordonnance rendue par un Tribunal au Canada relativement à la garde de l’enfant; 5) L’accusé connaît l’existence de l’ordonnance; 6) L’enlèvement est fait dans l’intention de priver le père, la mère, le tuteur ou une autre personne ayant la garde ou la charge légale de l’enfant de la possession de ce dernier. [29] Les quatre premiers éléments constituent l’ actus reus , tandis que le cinquième et le sixième identifient l’élément de faute ou la mens rea . [30] La Cour d’appel de l’Ontario, dans Sadeghi-Jebelli, écrit que le mot « enlève » devrait recevoir une interprétation large, conforme à l’objectif de cet

article qui est d’éviter qu’un parent nuise intentionnellement au droit de garde de son enfant consenti par la loi. [31] Un enlèvement se produit selon l’

article 282 C. cr. lorsqu’un parent fait en sorte de contrôler les déplacements d’un enfant, que ce soit par la force, une ruse ou une simple persuasion, à l’exclusion de l’autorité d’une autre personne qui a un droit de garde ou la charge légale de l’enfant.

L’enfant n’a pas à être sous le contrôle physique réel de cette autre personne lorsque l’accusé l’enlève ou prend le contrôle de lui. [32] L’infraction prévue à l’art. 282 C. cr. exige l’intention spécifique de priver la personne ayant la garde légale de la possession de l’enfant. [33] Dans Chartrand, la Cour suprême a expliqué que l’expression « avec l’intention de priver de la possession » de l’enfant se rattache à la capacité d’une personne ayant la garde ou la charge légale d’exercer son droit de contrôle sur l’enfant.

Pour conclure que la mens rea de l’infraction prévue à l’ art. 282 C. cr. est établie, il suffit donc que l’auteur de l’enlèvement sache ou prévoie qu’il est certain ou presque certain que ses actes priveront la personne ayant la garde ou la charge légale de sa capacité d’exercer son contrôle sur l’enfant. L’intention de priver de la possession d’un enfant peut n’être que pour une très brève durée.

Elle ne doit pas nécessairement être une tentative de l’en priver de façon permanente. [ 12 ] Further on, Judge Délisle ruled on the element of fault required [4] : [37] Dans Bédard , notre Cour d’appel a eu l’occasion de commenter l’élément de faute requise dans une poursuite en vertu de l’

article 282 C. cr . Elle explique que l’intention « ne saurait s’inférer d’une simple présomption qu’en autant que cette dernière peut reposer sur des faits graves, précis et concordants, et non seulement découler automatiquement de la seule connaissance des conséquences ».

Elle ajoute que « le fardeau de la poursuite d’établir l’intention caractérisée d’un accusé de priver son ex-conjoint des droits conférés à ce conjoint par ordonnance judiciaire doit reposer sur des fondements factuels qui vont au-delà du seul effet de la conduite de l’accusé ». [ 13 ] In other words, the prosecutor must prove the six essential elements of the offence beyond a reasonable doubt: 1- The accused must be the father of the child; 2- the child must be aged less than 14 years; 3- the accused did take and/or conceal and/or detain the child; 4- the abduction is in contravention of a custody order rendered by a Tribunal in Canada; 5- the accused knew the existence of this custody order; 6- the abduction is made with the intention to deprive the mother of the possession of the child. [ 14 ] The first two essential elements are not at issue for the period of the offence.

The evidence supports that the accused is the father of X and that she is aged under 14 years old. She was 12 years old at the time of the offence. [ 15 ] Regarding the third element, it has been proven beyond a reasonable doubt that the accused kept X with him during the period of the offence, between July 24 th , 2020, and September 27 th , 2020. The evidence establishes that there was an agreement between the accused and A. O., that X would stay with the accused up until July 24 th . It was agreed that the accused would bring X back to her

mother on that day. Instead, X stayed with him up until the intervention of the Sureté du Québec on September 27 th , 2020. [ 16 ] The evidence supports that sometime during the summer of 2020, before July 24 th , the accused had moved from his address in St- Albert, Ontario. He first went to live with his parents In Namur, Québec for a few weeks and then moved to his new address in St-André- Avellin, Québec. The accused had never informed A. O. of his new address. [ 17 ] The reason why he moved from his address is not relevant to the issue of this case.

Whether or not he was illegally evicted, which doesn’t seem to be the case, is irrelevant. What is important is only to know if he had informed the mother of the child of his new location or, if he concealed the information from her. [ 18 ] In fact, it seems that there was still communication between the accused and A. O. during the whole period of the infraction. Some text messages were filed into evidence. Some of these messages show that A. O. was questioning the accused about his new address: she wanted to know where her daughter was. The evidence shows that the accused never informed A.

O. of his new address, of his location, although he could have on multiple occasions. He voluntarily concealed the information. The accused could have easily given the information by text messages or by email. There was also communication through his lawyer. Even on the day of the Ontario Superior Court hearing, [...], 2020, the accused did not disclose his location. [ 19 ] By keeping X with him and by concealing his location, the accused acted in contravention of

section 282 of the Criminal Code . The prosecutor has therefore proven the third essential element of the offence beyond a reasonable doubt. We must keep in mind that even after the intervention of the police, the accused was reluctant to give his location. The six-hour audio recording of the negotiations lead to the conclusion that he had no intention of giving his location to the police.

The location of the accused was finally found using investigations techniques involving locating the cellular towers in use by the accused. [ 20 ] The accused testified lengthily that during the period of the offence, X wanted to stay with him. According to him, by keeping her with him, he was only responding to her will. He also insisted that she was well treated, that she was happy with him. She was even taught how to cook, for example. The fact that she was well treated or not was never in question. The prosecutor has not presented evidence as to if she was well treated or not by the accused.

This was not in question because it is not an element of the offence. That said, the Court noted that although the accused claims X was well treated, he did not register her in school. [ 21 ] This preoccupying fact must be considered as one of the elements leading to the conclusion that the accused was trying to hide her. This fact is to be considered when evaluating the mens rea of the accused. [ 22 ] Concerning the intention of X, we must refer to

section 286 of the Criminal Code that reads as follow: “In proceedings in respect of an offence under sections 280 to 283, it is not a defence to any charge that a young person consented to or suggested any conduct of the accused.” [ 23 ] Once it is proven that the child was taken, concealed, or detained in contravention of the custody order, it is not relevant whether the child wanted to stay with the accused or not. [ 24 ] That means that the will of the child, as well as the fact that she was, at the time, well treated or not, are not defences to the infraction of abduction. [ 25 ] This leads us to the fourth element of the offence: was the abduction in contravention of a custody order? [ 26 ] The evidence supports that there were two court orders for the period of the offence.

The first court order dated from June 24 th , 2019, determined what would be the custody provision. The evidence supports that it was, in 2020, the order that was in effect. The order provided that during the summer, the custody of the child had to be on a one week on, one week off basis. There was an exception for a period of two weeks, where the child was to be with her mother for two consecutive weeks on her summer holiday.

Besides that, any adjustments needed would have to be made between the parents by communication with each other directly. [ 27 ] The fact that the accused kept X with him after July 24 th was in contravention with the provision of the judgement. [ 28 ] As to the existence of an agreement between the parties on a different arrangement, the evidence differs. According to the version of A.

O., there was no such arrangement after July 24 th but according to the accused, there was an arrangement taken at the end of July through their lawyers. [ 29 ] Contradictory testimonies must be analysed in light of the Supreme Court of Canada's decision in R. v. W. (D.) [5] . If the accused is believed, he must be acquitted. Even if he is not believed, if his version raises a reasonable doubt, he must be acquitted.

It is not a question of what version is the most credible, but the question is to decide if the prosecutor has proven the infraction beyond a reasonable doubt. [ 30 ] During the trial, the accused did not provide any evidence of such an arrangement.

The only document he provided was an email message from his lawyer, Me Patrice Cormier, on July 21 st , asking him the following [6] : “Are you prepared to accept that we reverse the residence of X (…) to your place with access to mom ¾ weekends?” To which the accused responds: “No”. [ 31 ] The lawyer, then, recommends a three-month trial period, but his recommendation stays without an answer from the accused. [ 32 ] The exchange suggests that there were no changes to the custody order. In fact, no other order was issued before September 25 th . The suggestion made by the accused’s lawyer was not accepted.

At best, a change in the custody provision was discussed during the summer but it was never implemented. [ 33 ] The only valid order was still the decision of the Ontario Superior Court, rendered on [...], 2019. This, confirms the version of A.

O.. [ 34 ] In addition to his arguments, the accused filed text messages between A. O. and himself that were sent around August 21 st , 2020. [7] [ 35 ] In theses messages A. O. asks the accused where X is. To which the accused does not reply. He avoids the question. This is an indication that, as A. O. testified, the accused was hiding the child from her. The accused asks her the information to register X to school, and A. O. replies to make the verifications himself. As he asks her if she had made any step to register X she replies: “I haven’t done anything.

You’re the one that has temporarily full custody of X (…). I’ve done my duty for A. (…). Like I said it’s online. Go find it.” [8] [ 36 ] The accused suggests that the message is an admission from A. O. that there was a verbal agreement that the accused had full custody of the child. The Court does not see it that way: A. O. testified that there was no agreement. There were some discussions, but the only evidence is that the accused refused the suggestions proposed by his lawyer. The judgment was still valid. A. O. was trying to find the address where X was. The accused was refusing to tell her.

The message was merely an observation of what was obvious, the accused was keeping X with him. That does not mean that the custody was determined by a court order or that there was an agreement between the accused and A. O. [ 37 ] The Court does not believe the version of the accused. The whole evidence shows, without a doubt, that he was trying to keep X with him, hidden from her mother in contravention of the court order. [ 38 ] This brings us to the order of [...], which gives full custody of X to her mother. The order was signed on [...] and is presumed valid. In fact, it is a valid order.

Copy of the order was send to the accused the same day by e-mail and he confirmed, during is testimony, that he was informed and aware of the court order. [ 39 ] The accused contests the order because, at some point during the audition that took place over the telephone because of COVID measures, the line cut off. It was interpreted by the judge that the accused hung up on her. Just before that, it was said that he was disrespectful with the counsel and the Court. [ 40 ] The accused denied that he hung up, he believes he was disconnected.

However, he did not try to reconnect afterward. [ 41 ] In the decision, the judge took into consideration that the accused refused to disclose where he resided with X, that communication with her was not possible, that the accused refused to answer questions regarding the well being, the health, location, and status of X and that he did not register her in school. [ 42 ] Following the audition, the custody order was rendered with the following conclusions [9] : “

a) Effective immediately, X (…) shall be returned to the care of A. O.

b) If necessary, the return of X (…) shall take place with the assistance of all municipal, provincial and federal police agencies which are hereby directed to enforce the terms of the herein Order (…) ” [ 43 ] The order is valid. If the accused disagreed with the order, he had to proceed by a legal way to have it changed. The solution was never to hide the child. It is not the role of this court to evaluate the decision rendered on that day.

Still, the Court noted that the accused was present at the audition, that his behavior was disrespectful, that, whether he was disconnected or not, he did not try to connect again although he could have, that the decision was based on information that also transpires from the evidence in our case. [ 44 ] The Court concludes that the fourth element of the offence has been proven by the prosecutor beyond a reasonable doubt. [ 45 ] The evidence shows that there were two valid orders for the custody of the child and that the abduction was made in contravention of these orders. [ 46 ] The fifth essential element of the offence is that the accused knew the existence of these orders.

This is not at stake; it has been proven that the accused was duly informed. The court order was sent to him by email shortly after the decision. This was confirmed in the audio recording of the negotiation with the Sureté du Québec and in his testimony, he admitted himself having knowledge of these decisions. [ 47 ] Finally, the prosecutor must prove that the abduction was made with the intent to deprive the mother of the possession of the child. [ 48 ] This sixth element must be analysed with the whole of the evidence.

Since July 24 th , the accused had kept the child with him, limiting contact, hiding her location, refusing to answer the question of her mother about their location. This culminates to the event of September 27 th , when the police had to intervene to find them. Even after more then 6 hours of negotiations, the accused was still refusing to disclose his location and give back the child. [ 49 ] The consequence of the actions of the accused was that, since July 24th, A. O. was deprived of access to her daughter. The accused was aware of the two judgements.

The evidence shows that the accused had the intention of committing the infraction. [ 50 ] Some examples provided by the audio recording of the negotiation between the accused and the Sureté du Québec on September 26 th and 27 th express clearly the intention of the accused. [ 51 ] Here are some examples [10] : - 2 min 38 sec : «Vendredi la madame a rendu une grosse décision gang de croches. Ils disent que c’est moi qui a raccroché. »;

- 4 min 50 sec : « Avec vendredi avec le nouvel ordre c’est du vrai crossage, elle refuse de retourner »; - 11 min 58 sec : « Là tu me tiens tu sur le téléphone pour essayer de me trouver juste pour faire sûr que c’est pas un set up »; - 13min 58 sec : « Je refuse d’y aller à cause qu’ils vont me ramasser, ramasser la petite. »; - 28 min 27 sec : « J’ai dit que je donnais pas l’adresse à X (…) parce que A. (…) l’utilise pour envoyer la police. »; - 1h36 min : « Vous voulez l’adresse où que je suis, je ne veux pas qu’on enlève mes droits et les droits de X (…) à cause d’un ordre niaiseux ». [ 52 ] The prosecution has proven beyond a reasonable doubt that the abduction was made with the intent to deprive the mother of the possession of the child. [ 53 ] The Court concludes that the prosecutor has fulfilled the burden to prove all the essential elements of the offence beyond a reasonable doubt.

THEREFORE, FOR THESE MOTIVES, THE COURT: Declares the accused GUILTY. __________________________________ MARK PHILIPPE, J.C.Q. Me Simon Pelletier, Me Anne-Marie Côté Crown Attorneys Eric St-Onge Defense Date of hearing: December 14, 2022; December 15, 2022; January 31 st , 2023; February 13, 2023; February 16, 2023; February 20, 2023; May 17, 2023; June 12, 2023.