Her Majesty the Queen - v. -, 2013 SKPC 3

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 003 Date: January 3, 2013 Information: 24421572 Location: Wadena _____________________________________________________________________________ Between: Her Majesty the Queen - and - F.W.B. Appearing: Barrie Stricker For the Crown Clayton Barry For the Accused Note: Sections 486.4 of the Criminal Code contains prohibitions against publication of a name or other information that would identify a child or young person who is a victim or a witness in relation to an offence alleged under the Code. JUDGMENT J. PLEMEL , J I. INTRODUCTION

[ 1 ] F.W.B. is charged that on or about the 18 th day of April 2009, at Foam Lake, Saskatchewan, without lawful authority he did take B an unmarried person under the age of sixteen years, out of possession of, and against the will of J.F. and/or C, her guardian, who had lawful care of her contrary to s. 280(1) of the Criminal Code . [ 2 ] The accused was about 29 years old and B was 15 years old in April 2009. Around April 17, B was moved by her mother, C, from their home, to her uncle J.F.’s home in Foam Lake, a distance of about 350 kms.

She ran away on April 18 th and arrived in Saskatoon with the accused and others in the early morning hours of April 19 th . [ 3 ] In order to protect the identity of the young girl and other minors I will not name the girl’s home community in this judgment and I will refer to most of the parties by letters or initials only. The mother of B will be referred to as C, the uncle as J.F., the 9 year old cousin as B.F. and the 15 year old girlfriend as J. These people testified for the Crown as did Cst. Ferguson and Cst. Gervais. [ 4 ] T was a 17 year old female acquaintance of several of the witnesses.

She testified for the defence as did C.B., S.D. and B.Sm. The accused also testified. Ages mentioned in this judgment are approximate ages at the time of the incident. [ 5 ] The Crown submits that B was moved from her family home by C as a result of her drinking, partying and inappropriate relationship with the much older accused.

On April 18, 2009, within a day or two of arriving at her uncle’s home in Foam Lake, the accused and another adult male, accompanied by J, took B from there to Saskatoon without permission from either her mother or the uncle. [ 6 ] The defence argues that the accused had no intention of removing the girl from her uncle’s control but simply went to Foam Lake to facilitate a visit between J and B who were girlfriends. He was unaware that B had left her uncle’s home without permission.

When the uncle left threatening voice mail and text messages for the occupants of the accused’s vehicle they feared for their safety. As B refused to return to her uncle’s home, they drove her to Saskatoon for her own protection. She was put in contact with the Ministry of Social Services the next day. [ 7 ] I will summarize the evidence of the witnesses in the order in which they were called. II. CROWN EVIDENCE

a) Evidence of C [ 8 ] C testified that B, her daughter, was 15 years old on the date of the alleged offence. She described her daughter in terms I interpret as strong-willed and rebellious, which created great difficulty in parenting. She described the accused’s residence as a party house where young people hung out. In the several months leading up to the date in question she went to the house many times to remove her daughter who had been instructed not to go there. B would often be intoxicated. On occasion C would have to take her by the arm to make her leave.

C told the accused on occasion that B was not to be at his place, calling him a paedophile and other names. However, in cross-examination she acknowledged that she may also have dropped B off at the accused’s home with alcohol. [ 9 ] She was aware of rumours in town that the accused was having sexual relations with her daughter but when she confronted him about this he denied it. She knew that her daughter was telling others that she was abused by B’s brother and by her.

She denied that she abused B but acknowledged that she forcefully removed B from the accused’s home as well that of another adult male on occasion. There were times when B did not return home at curfew and on some of these occasions she found her intoxicated in the homes of these men. [ 10 ] C also described a night when B became angry after being brought home from a party against her will. B then left her home

without permission and jumped into a car waiting outside. C acknowledged that she chased after this car in her own vehicle at about 60 km/hour and forced it off the road. She physically dragged B out of the car in which there were other young people. She and her daughter wrestled on the ground but B broke free and ran down the road. C indicated she gave up and went home; B did not return home that night.

The accused was not present on this occasion. [ 11 ] Problems with parenting and concern about the relationship between the accused and B led C to make arrangements with her brother, J.F., to have B live at his home with his family in Foam Lake. Within a day or perhaps days she received word from J.F. that B had run away. He told her that the RCMP had been contacted. C suspected the accused was involved in the disappearance of B and she provided the RCMP with a description of his SUV.

b) Evidence of Constable Ferguson [ 12 ] Cst. Ferguson was on duty and made aware of the possible abduction of B on the night she went missing. He alerted the RCMP Detachments between Foam Lake and Saskatoon to be on the lookout for the SUV in question.

c) Evidence of B.F. [ 13 ] B.F. described how she and B were outside in the uncle’s yard in Foam Lake when a girl, who we now know was J, came into the yard and asked for directions. B.F. went into the house to get a pen and paper and when she returned about a minute later, B and J were gone.

d) Evidence of Constable Gervais [ 14 ] Cst. Gervais is a member of the RCMP and stationed near Foam Lake. He received a call on Friday, April 18, at about 9:45 p.m. from C who reported that her daughter had been kidnapped from her brother’s residence in Foam Lake. She suspected that the accused was involved. As a result, he and his partner patrolled looking for the accused’s vehicle and also alerted detachments from Foam Lake to Saskatoon to watch for it.

The vehicle was not found that night. [ 15 ] The following day he again spoke to C who reported that she had received a call from Saskatoon and she provided him with a phone number and address for the caller, B.Sm. Cst. Gervais left a voice message at that number. At about 5:00 p.m. B.Sm. returned the call and advised him that he had been with the accused since 2:30 p.m. on April 18. When asked, in cross-examination, whether B.Sm. could have said 2:30 a.m. rather than p.m. the officer acknowledged that was a possibility but did not believe so.

B.Sm. also provided him with information that another male had taken the accused’s vehicle and had taken B. I note here that the Crown suggests B.Sm. was trying to provide the accused with a false alibi while the defence suggests Cst. Gervais misunderstood what B.Sm. said. Defence submits that B.Sm. said the accused was with him since 2:30 a.m., April 19, not 2:30 p.m., April 18. [ 16 ] Cst. Gervais told B.Sm. that their main concern was that B was safe. About 15 minutes later, B.Sm. called to advise him that he had spoken to B and he told her to call the RCMP.

A short time later, B did call, confirmed that she was safe and did not want to return home because her parents beat her. Cst. Gervais passed contact information on to the Saskatoon City Police for follow-up.

e) Evidence of J.F. [ 17 ] J.F. testified that B came to live with them in Foam Lake on or about Friday, April 17, and disappeared the following day. That day they were at the family farm from about 11:00 a.m. to 5:00 or 6:00 p.m. At about 7:00 p.m., a girl called on their cordless phone, asking for B; B told him it was her friend J. Later, his daughter, B.F., and B went out to their yard to play on the trampoline. B.F. came back in for a piece of paper, returned outside and then came back in announcing that B was gone.

He called the number which was still showing on the cordless phone and left a message to the effect that they had five minutes to bring his niece back. He testified that he was upset, used a stern tone and also that he told the caller he was contacting the police. In cross-examination he agreed that he may have made a threatening comment; he agreed he may have stated “you better hope the cops get to you before I do or I’ll beat

the shit out of you.” He went out looking for B but did not find her. He reported this to C and to the RCMP. He did not give anyone permission to take B out of his custody. During the brief time B was with them, he felt they got along. He did not discipline her in any way. He did not believe that B’s cell phone was working. In his home there was a cordless phone as well as a cell phone or cell phones. He denied sending text messages to anyone in the accused’s vehicle.

f) Evidence of J [ 18 ] J and B were girlfriends at the time. She testified that B hung out at the accused’s home and C did not approve. B complained that her mother was abusive towards her but she never saw any physical signs of abuse such as bruising. B contacted her after being moved to Foam Lake and stated she hated it there; she might have mentioned that her uncle was abusive. [ 19 ] Soon after B was removed from her family home, J got a phone call from the accused about going to see her.

She and the accused both wanted to see B and discussed having their 21 year old male friend, K, and the accused’s caretaker’s 16 year old son go along. She believes it was the next day when she, K and the accused set out in the accused’s SUV. The 16 year old boy did not come along. About one hour into their trip, she called B from K’s phone and told her they were coming to pay her a surprise visit; B seemed excited. No plan of action was discussed but B told her she did not know how they could hang out. They discussed how she would sneak out and how the four of them would then spend time together.

She believes B gave her directions to the uncle’s home. K’s phone was used rather than her own because she did not want her parents, when seeing her phone bill, to notice that she was away on this occasion, as she did not have permission to be away. [ 20 ] The accused knew J was only 15. He did not ask her if she had her parent’s permission to go to Foam Lake with him. She did not think her parents would give her permission and did not know if they even knew that she associated with the accused; she knew that B was not allowed to be around him.

J had lied to her parents, telling them that she was going to spend the night at another friend’s place in their home area and her parents consented to this. The accused knew she was supposed to be at this friend’s home because she called that friend and spoke to her while the three of them were en route to Foam Lake. She believes she may have told the accused even before leaving their home area that she had lied to her parents about where she was going. [ 21 ] The accused drove to Foam Lake and at around supper time she, K and the accused went to a hotel room.

The hotel room was mentioned for the first time by her in cross-examination; she had not mentioned it previously to police or in examination-in-chief. In re- examination, J testified that the hotel room was booked by the accused. She testified that at around 11:00 p.m., they drove and parked about one block away from the uncle’s house. From other evidence I now find that J was mistaken about the time and that this occurred at approximately 9:30 p.m.

She believes the accused drove and parked there, but other evidence, which I accept, indicates that K was the driver at this point and the accused was in the back seat. She testified that they were all involved in the decision not to park in front of the house because B was not allowed to be around the accused. The two men remained in the truck while J walked to the door of the uncle’s house. J’s recollection is that she saw B through a window and B.F. answered the door but other evidence which I accept indicates that B and B.F. were already outside.

In any event, J asked the young girl for directions to a hall and B and J asked her to get a pen. When the young girl went to get the pen, B and J ran to the SUV, jumped in and they took off. J testified that B probably said “go, go, go” when they got into the vehicle and that is when the driver took off. She agreed that B running from her uncle’s residence came as a complete surprise.

She was supposed to sneak out later. [ 22 ] At one point J testified that their plan, after visiting with B, was that B would go back to the uncle’s house and J would spend the remainder of night in the hotel room with the two men, returning to their home community with them the next day. However, at another point, she testified that she did not think they planned to spend the night in the hotel. In any event, after B bolted from her uncle’s home, all plans changed.

They drove to the hotel, removed their belongings and drove out of town, passing by the police detachment on the way out. [ 23 ] At some point, and it is not clear in J’s evidence whether this was before they cleared out the hotel room or after, the uncle called K’s cell phone and left a threatening message. There may have been more than one message; one message may have included a threat to beat them up with a baseball bat. [ 24 ] According to J sometime after they jumped into the SUV there was a difference of opinion on what they should do.

J wanted B to return to her uncle’s home but B did not agree, saying her uncle would kill her over this. The two men thought they should go to Saskatoon. They stopped on a back road a short distance from Foam Lake and the girls got out of the SUV. B did not want to get the men into trouble so she said she would walk. The men convinced them to get back into the SUV. J still wanted them to go back to the

uncle’s. B refused saying it was too late and if she went back she would be beaten. Both men agreed it was too late and felt they should go to Saskatoon. [ 25 ] On the way to Saskatoon, several calls were made to and from the vehicle. J called her mother and told her where she was. Her mother was angry with her, but relieved that she called. Her mother made arrangements to pick her up at an agreed upon location in Saskatoon. At this location, as she went to her mother’s vehicle K, the accused and B left without stopping to talk with J’s mother.

She had no further dealings with K or the accused until the court proceedings. She gave a statement to police in which she stated that only she and K went to Foam Lake to visit B. The four of them agreed, as they fled Foam Lake, not mention the accused’s involvement as they did not want him to lose custody of his two children over this.

g) Evidence of B [ 26 ] B turned 15 about four and a half months prior to the events in question and was 18 when she testified. The accused knew her age. She acknowledged that at the time of the incident she did not get along with her mother but testified that has since changed. She stated she lied in the past about abuse at the hands of her mother. She stated they fought frequently; she always wanted to go the accused’s home to drink and party and her mother did not approve. The accused or others would buy the alcohol but she would often pay for it.

Besides going there to drink and party she would also go there from school at noon to eat lunch. She told the accused that her mother did not approve of her spending time with him. B was “pretty sure” there was one occasion where her mother came to the accused’s home to get her when she was there without her permission. She testified that she always got along with her uncle, J.F. and that he never hurt her, although she acknowledged she may have told others that he was abusive. She agreed that she told many people in the past that her family members abused her, but that in fact, they did not.

These were all lies. [ 27 ] She did not want to live with her uncle’s family in Foam Lake. She wanted to be at home with the accused because they had what she referred to as a secret relationship. However, she and the accused had never discussed him coming to Foam Lake to get her and take her away. In examination-in-chief she described their secret relationship as a dating relationship. When the prosecutor asked her to describe it further she said she was uncomfortable speaking about it and the prosecutor did not pursue it.

In cross-examination, however, she testified that she and the accused had sexual intercourse in the cargo area of the SUV between Foam Lake and Saskatoon. [ 28 ] B testified that she received a call from J on April 18, announcing that she, the accused and K were on their way to see her. They spoke on the phone more than once that day. Calls came to, or were made from, the uncle’s home phone, as her own cell phone had been cut off. She believes she called J once from the uncle’s family farm where they were spending the afternoon. B knew they could not visit at her uncle’s home because he would not allow it.

They talked about meeting at the hotel, but B knew this would not be permitted either. When J arrived in the uncle’s yard that evening B was in the yard with B.F. on the trampoline. They asked her young cousin to go into the house to get a paper on which to write directions to a dance taking place in Foam Lake. When she did, they ran to the SUV in which the two men were waiting some distance from the house. [ 29 ] They drove straight to the hotel where she believes the accused and J went in to retrieve things including clothing and beer.

They returned soon after and drove out of town with K driving; she had never seen K drive this vehicle before. Plans to visit in the hotel were changed because they knew her uncle would phone the police. [ 30 ] B was questioned extensively about the position the people in the SUV took regarding what to do and where to go once her uncle realized she ran away. She replied in various different ways which I will now attempt to summarize. She stated that J immediately changed her mind and wanted B to return.

B estimates that about 15 minutes passed when her uncle called and left a message on K’s cell phone saying he had called police. B testified “that’s when J really started panicking.” She did not remember what the accused said but he may have had concerns after learning that the police were called. At some point K stated that they should take her back. She was afraid to return because she knew she would be in trouble. When they stopped the vehicle on a back road near Foam Lake to discuss what to do next, she got out and refused to get back in if they were going to return her to her uncle’s home.

J also got out and they talked. Eventually the two girls got back into the vehicle and the decision was made to drive to Saskatoon. When asked what position the accused took when she said she was not going back she stated “I honestly don’t think he really cared.

It was J who was more concerned, and then K started getting concerned.” When questioned further about who was in favour of going to Saskatoon she answered “me and (the accused) I think.” She did not recall the accused at any point suggesting to K that he turn around and bring her back to her uncle’s home, the police detachment in Foam Lake or to other police detachments. [ 31 ] B testified that shortly after J was picked up by her mother in Saskatoon the accused went with B.Sm. leaving only her and K in the SUV.

The reason for doing this, she said, was to remove the accused from the picture, so he would not get into trouble and risk losing his two children. For the same reason, they all agreed not to mention the accused’s involvement if questioned by police.

[ 32 ] She and K drove around until morning when they met up with T who previously lived in their home area but was now living in Saskatoon. Later that day she, T and K drove to the home of B.Sm. and S.D. The accused was there. They left and returned again later in the day. A member of the Saskatoon Police Service arrived later and spoke with some of them but not to the accused. B did not tell this police officer of the accused’s involvement. [ 33 ] Eventually that Sunday evening, T and K left. B went to bed in the back bedroom of B.Sm. and S.D.’s small home.

She testified that the accused came and slept with her in this room for part of the night but she does not believe that B.Sm. or S.D. were aware of this as they had already gone to bed. The accused was to have slept on the couch. In examination-in-chief the prosecutor asked her what they did in the bedroom. She responded “We did stuff, I guess.

Do I have to actually say?” He then asked “Is it something you’re ashamed of?” and she responded saying “Yeah.” He did not pursue this line of questioning. [ 34 ] The next day, with the help of S.D., arrangements were made through the Ministry of Social Services for B to stay in foster care. She testified that she stayed in a private home for about one month and then moved to a larger foster care facility. While at these foster homes she attended school in Saskatoon. At the end of the school year she returned home to live with her parents.

However, while in Saskatoon, she visited frequently with the accused who had now moved there. When asked why she was still in Saskatoon during this period and not with her mother or uncle she replied that it was because she and the accused had a relationship. He would come and get her or, after he moved to his own house with T, she would take a bus there after school. She stated they would get together almost every day and that T also spent time with them. III. DEFENCE EVIDENCE

a) Evidence of C.B. [ 35 ] C.B., K’s mother, testified that K was 21 years old at the time. They lived together in the same community as the accused. She was travelling and pulled over to the side of the road to take a phone call from K who told her that B had jumped into their vehicle and told them to drive. He also told her that B’s uncle sent them a threatening text and left them a threatening voice message. She spoke to her son, to B, and also to the accused.

She told them that B either needed to return to her uncle’s home or, alternatively, since B was refusing to return, taken to the RCMP Detachment in Foam Lake, or to any other RCMP Detachment, or to Social Services. She had about six conversations with the occupants of the vehicle. She testified that K forwarded to her a copy of the threatening text the uncle sent them and also that B sent her a text message from her cell phone. I point this out because the uncle testified he did not send them a text but left a voice message.

Similarly, B testified that she was not able to send text messages from her phone, as her phone and text messaging services had been cut off. [ 36 ] C.B. testified that she was aware that B did not get along with her mother. B had also previously told her that she had a “crush” on the accused and wished he paid more attention to her. At that time she pointed out their age difference to B, telling her she would find someone more age appropriate someday. She told the accused about this conversation prior to the date in question.

b) Evidence of S D. [ 37 ] S.D. is related to the accused and lives in a common law relationship with B.Sm. in Saskatoon. On Sunday April 19, 2009, the accused phoned them in the early morning hours and B.Sm. went to get him; he spent the remainder of the night at their place. [ 38 ] On Sunday evening B, K and T came to their home at about 7:00 p.m. In the course of the evening she spoke to B who told her that she did not want to return home, or to her uncle’s, as her family was abusive towards her. She said she saw text messages sent to K’s phone by the uncle which she felt were quite serious.

Saskatoon City Police arrived at their home around 7:00 or 8:00 p.m. and spoke to several of the people there. [ 39 ] Police asked her if B could stay there that night and she agreed. She and B went to bed at about 2:30 a.m. The accused had gone to sleep on the couch at around 11:00 p.m. Their home is about 700 square feet with two bedrooms on one floor. B spent the night in the back bedroom which is near their’s. She did not hear the accused go into B’s room, nor did she hear any unusual noises.

[ 40 ] The next day S.D., accompanied by K and T, brought B to Social Services. The accused continued to live with them for the next month or month and one-half, during which time B called perhaps twice a day, to speak with him. B and T also came to visit on occasion.

c) Evidence of B.Sm. [ 41 ] B.Sm. confirmed that the accused phoned him at about 1:00 a.m. on Sunday April 19. When he went to get him the accused was very scared; he had never seen anyone jump out of one vehicle and into another as fast as the accused did that night. He told B.Sm. that he was in trouble and that the police were after him. They returned to B.Sm’s home where the accused spent the night. [ 42 ] At about 8:30 a.m. he phoned C. Though she did not want to speak with him, they talked for about five minutes.

He denies that the police called him after he spoke to C, saying he called both the RCMP and the Saskatoon City Police to inquire if there was a warrant for the accused. He advised them that the accused was with him and he believes the accused also spoke with them. He knew the accused was suspected of having abducted the young girl. He believes the accused told him they took back roads between Foam Lake and Saskatoon in order to avoid police. [ 43 ] Police told B.Sm. that if B and others came to his home, he should try to keep them there and they would come over.

Therefore, when B, K and T arrived later in the day he let the police know and they attended shortly after. [ 44 ] B.Sm. denies telling Cst. Gervais that the accused was with him on April 18, at 2:30 p.m. He denies trying to give the accused a false alibi. However, nor did he tell them that the accused was in the vehicle between Foam Lake and Saskatoon. He agrees that the city police officer who attended their residence did not seem to know much about the complaint of abduction. B.Sm stated he saw a text message on K’s phone suggesting that they were to turn B over to the police or return her.

Threatening texts were not, to his knowledge, copied by police. [ 45 ] B.Sm. went to bed at 11:00 or 12:00 on Sunday night. S.D. came to bed at about 2:00 a.m. He did not hear B go to bed and does not know if her door was open or closed. He heard no unusual sounds during the night to indicate that the accused joined B in her bedroom. When he woke up the next morning the accused was asleep on the couch which is near their bedroom door. [ 46 ] Soon after this incident, B.Sm found the accused a job at his own workplace in Saskatoon as the accused decided not to return to his home community.

d) Evidence of T [ 47 ] This 17 year old girl was well acquainted with B, K, J and the accused as she lived for a time in their area. She had recently spent two nights at the accused’s home there until her mother came and got her and moved her to Saskatoon. She did not get along with her mother. She knew K as someone who would obtain alcohol and cigarettes for her and her friends. The accused’s place was known to her as a hang out where young people could drink alcohol. She testified about an incident when B was drunk at a party at another adult male’s house, when B’s mother dragged her out by the hair.

However, she also recalled C dropping B off at the accused’s house and the other male’s house with alcohol on occasion. [ 48 ] On April 17, 2009, T received text messages from B, until B’s phone was disconnected. T received messages from J in the early morning hours of Sunday, April 19, between 1:00 a.m. and 3:00 a.m., when the parties were travelling from Foam Lake to Saskatoon. Later that morning K and B, arriving alone in the accused’s vehicle, met up with her in Saskatoon.

She recalled that when B arrived, her cell phone was disconnected and she was trying to get it reconnected with SaskTel. [ 49 ] T confirms that later in the day she went with K and B to the home of B.Sm. and S.D. to return the accused’s SUV, While there the police attended. She gave a statement to the police in which, at B’s request, she did not mention the accused’s name.

[ 50 ] In May 2009, T and the accused rented a house together in Saskatoon. She and the accused were just friends and the arrangement was mutually convenient as she would babysit his children while he went to work. B would come over after school and stay until around 8:00 p.m. If she skipped school she would get there around noon. The accused would arrive home for lunch and then after work after 5:00 p.m. Occasionally, B wanted to stay the night and would therefore miss the bus to her foster home. They would either drive her home or Saskatoon Police Services came and got her.

On three occasions C came by and dropped her off. The accused had a girlfriend in Saskatoon during this time. B never told her about any romantic relationship with the accused.

e) Evidence of F.W.B. [ 51 ] The accused lived in the same area as B for about 8 years. He was separated from his female partner who had moved to Saskatoon. They had two children who were about 4 and 6 years of age. They lived with him but every second weekend would be with their mother. From the summer of 2008, to the time in question, he had a woman hired to assist him in their care. She had a 16 year old son and they usually stayed with him, though they had their own home. Another 17 year old boy also often lived at his home.

B and other young people often came there to hang out with these boys. [ 52 ] The accused denies that he ever had a sexual, romantic or intimate relationship with B. He denies ever having been alone with her in his home or anywhere else. He described her as a friend, saying he felt sorry for her. She told him that her mother was abusive towards her. He had witnessed the incident at the other adult male’s house where C had dragged her out. He had also heard about the incident where her mother had run her off the road. He was aware that B had an age appropriate boyfriend.

She had never mentioned anything about her brother abusing her, until they were in Saskatoon when she heard B say something to S.D. about this. [ 53 ] He acknowledges that there were parties at his home but that they were organized by others. Many people, including B, arrived uninvited. He also refers to parties at the home of the other adult male I have already mentioned. B would sometimes arrive at these parties with alcohol. At times, her mother dropped her off so he felt that on these occasions she gave her the alcohol.

He denies ever buying beer or cigarettes for B. [ 54 ] He was aware that C did not approve of B coming to his home as she called him at his work place and told him. He told her he agreed that B should not be at his home and asked her what he could do to get her out. C told him to force her out but he refused to do this. B continued to show up at his home, even though he told her not to be there. He was aware of rumours that she had kissed him or that they had a sexual relationship. He denied that there was any basis for these rumours. He spoke with the police about this on March 25, 2009.

He believes that C subsequently dropped her off at his place at least once, after which he felt it was fine for her to be at his home. [ 55 ] On Friday evening, April 17, he got his children ready to go to Saskatoon to be with their mother. The caregiver, her son, K and J were at his home. He learned through J that evening that B was in Foam Lake. She had received text messages from B. He thought B was in Foam Lake because of the abuse she endured at home, not to be separated from him. The caregiver’s son and J were communicating with B from his home that evening and decided they wanted to go and visit her.

He had to go to Saskatoon to pick up his children on Sunday, April 19, so he offered to drive them, though he admits he did not know how far Foam Lake was from his home community. It is noteworthy that Foam Lake is about a two and one-half hour drive from Saskatoon. It is not on the way. He insists that his only purpose was to facilitate their visit even though he also admits in cross-examination that prior to arriving in Foam Lake he did not know if such a visit would be permitted. He himself did not phone the uncle to ask him as he did not know him.

He did not plan to remove B from her uncle’s possession. [ 56 ] The next morning he, K and J left for Foam Lake. The caregiver’s son slept in and did not go along. He did not talk to J’s parents about this though he knew she was only 15 years old. He testified that she told him in the morning that she had their permission to accompany him. However, after having travelled a considerable distance, at Kenaston J told him that she did not have her parents’ consent. She had lied to her parents and told them she would be staying at an age appropriate friend’s place back home.

At this point the accused testified that he thought they were over half way to Foam Lake, though they were not. Knowing J’s parents, he felt they would have no objections to her being with K and him, even without prior permission. He believed J had spoken to her siblings about the trip. [ 57 ] When they arrived in Foam Lake he rented a room in the hotel for himself and K. He thought J was going to stay at the uncle’s home. He had no intention of taking B to the hotel room. [ 58 ] J called B from K’s cell phone to get directions to the uncle’s farm. They drove around but were unsuccessful in finding it.

[ 58 ] J called B from K’s cell phone to get directions to the uncle’s farm. They drove around but were unsuccessful in finding it. J used K’s phone rather than her own because she did not want her parents, later, to see her phone bill showing that she was in Foam Lake. This seems inconsistent with his earlier testimony that he felt her parents would be fine with it. [ 59 ] Once back in Foam Lake they stopped at the hotel, then went to fill their vehicle with gas and, with K now driving and the accused in the back seat, they drove past the uncle’s home stopping some distance away.

The accused claims that when they stopped he thought they were directly in front of the uncle’s house. This is inconsistent with J’s testimony. The accused states he did not know why they stopped until J told him it was to go speak with B. He told her to ask B if she could stay at the uncle’s house because, if she could not, they could drive to Saskatoon or even drive her back home. I find this to be remarkable as it was now about 9:30 p.m. He had rented a room in Foam Lake.

Saskatoon was approximately a two and one-half hour drive away and their home community was about 350 kilometres away. [ 60 ] In any event, J left the vehicle, running back very soon after with B. J jumped into the front passenger seat and B got in the back seat. Initially the accused stated that B and J told them everything was fine and they could go. In cross-examination he agreed that the girls said “go, go, go”. He thought the reason the girls were running is that dogs were barking.

He claims B told K to drive over to a party. [ 61 ] At one point the accused testified that it was only after receiving death threats from the uncle that he realized B had run away. However, later he testified that when the girls entered the vehicle and while it was in motion, J asked B why she ran. It became clear at that point that B did not have permission to be with them.

Instead of returning her to her uncle’s home they drove to the hotel where J went in to retrieve belongings, including beer. [ 62 ] As they drove away, but before leaving the town limits, they received their first threatening message from the uncle. The exact nature of the threat is unclear but at one point the accused agreed it was to the effect that they were to go to the police station in Foam Lake and drop her off and if they didn’t he would kill them. He testified that the first threat arrived approximately 5 or 10 minutes after the girls entered the vehicle.

A short distance out of Foam Lake they stopped to discuss what to do. B refused to return. [ 63 ] When K put on the signal light to turn back to Foam Lake, B jumped out; it was now 10:30 or 11:00 p.m. This is when K phoned his mother to ask her what they should do. The accused decided that taking her to Saskatoon was safest for all. They wanted to take her some place where people would listen to them. Though they saw police vehicles on the way to Saskatoon, they didn’t think police would listen to them as C would have gotten to them first. B was afraid that if she was returned to her uncle’s he would beat her.

The uncle’s threats also made him feel unsafe. Among several calls on the way to Saskatoon, they talked to T who gave them numbers for police, Social Services and mobile crisis. However, they did not call any of these agencies. [ 64 ] Before getting to Saskatoon the accused called B.Sm. to come and get him. He wanted to distance himself from this vehicle and the events of the evening, as he was afraid he would be blamed for taking B when his only purpose was to facilitate a visit between the two young girls. He denies, however, telling others to lie and say he was not there.

The accused confirms that he spent the night at the home of B.Sm. and S.D. He states that he called police in the morning to find out if there were warrants for him and that B.Sm. also spoke with police. That evening when police attended the home they took statements from some of the people present, but not from him. [ 65 ] That night B slept in the spare room and he slept on the couch. He denies going into her room. He decided not to move back to his home community because of this incident. He continued to live with B.Sm. and S.D. for about two months and B went into foster care.

Later, he and T moved to a residence together, as she needed somewhere to live and he required a babysitter. B came over on occasion to visit T and his children. During this time he had a girlfriend. After leaving this location in August 2009, he never saw B again until court proceedings. [ 66 ] I should mention several matters testified to by the accused which I have not yet referred to but which have some relevance. He denies that K’s mother told him B had a “crush” on him, and he was unaware that she had such feelings towards him.

On an unrelated point, one reason for not stopping at the RCMP detachment with B rather than leaving Foam Lake with her, was because earlier in the day he had noticed that there were no police vehicles at the detachment and no signs of activity there. Finally, asked about what he felt C might think of him going to Foam Lake as he did, the accused stated that C was the type of person who would make his life miserable if she knew he agreed to take J and the young 16 year old boy to see B in Foam Lake. He added that at one moment she might approve of this but at the next moment she might not.

IV. THE LAW [67] The following sections of the Criminal Code apply: 280(1) Every one who, without lawful authority, takes or causes to be taken an unmarried person under the age of sixteen years out ofthe 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 ofthat person is guilty of an indictable offence. 285 No one shall be found guilty of an offence under

section 280 to 283 if the court is satisfied that the taking, enticing away,concealing, detaining, receiving or harbouring of any young person was necessary to protect the young person from danger of imminentharm or if the person charged with the offence was escaping from danger of imminent harm. 286 In proceedings in respect of an offence under sections 280 to 283, it is not a defence to any charge that a young person consentedto or suggested any conduct of the accused. [68] If the accused honestly believed that B had consent to leave her uncle’s home, or if s. 285 of the Criminal Code applies thenthe accused is entitled to an acquittal.

If the evidence leaves me with a reasonable doubt about these issues, then I am also to find himnot guilty. [69]

Section 286 makes it clear that the fact that B wanted to go with the accused and his companions is no defence to this chargeas she was under the age of 16. [70] If the accused only learned, after B entered the vehicle, that she did not have permission to join them, but he subsequentlyfeared for her safety, or the safety of others in the vehicle, then I must go on to consider whether he was justified in not returning herimmediately by virtue of s. 285 of the Criminal Code. [71] The defence of necessity is preserved by s. 8(3) of the Criminal Code: Perka v. R., (SCC), [1984] 2 S.C.R.232 (S.C.C.). This case is instructive and applicable to the

interpretation of s. 285: R. v.

Adams, 1993 CarswellOnt 289 (ON CA); R. v.VandenElsen, 2003 CarswellOnt 3136, para. 12. [72] Commenting on the defence of necessity Dickson J. in Perka states: 35...At the heart of this defence is the perceived injustice of punishing violations of the law in circumstances in which the person had noother viable or reasonable choice available; the act was wrong but it is excused because it was realistically unavoidable. .................................. 38 If the defence of necessity is to form a valid and consistent part of our criminal law it must, as has been universally recognized, bestrictly controlled and scrupulously limited to situations that correspond to its underlying rationale.

That rationale as I have indicated, isthe recognition that it is inappropriate to punish actions which are normatively "involuntary". The appropriate controls and limitations onthe defence of necessity are, therefore, addressed to ensuring that the acts for which the benefit of the excuse of necessity is sought aretruly "involuntary" in the requisite sense. ....................................

55....Mere negligence, however, or the simple fact that he was engaged in illegal or Immoral conduct when the emergency arose will notdisentitle an individual to rely on the defence of necessity. 56 Although necessity is spoken of as a defence, in the sense that it is raised by the accused, the Crown always bears the burden ofproving a voluntary act. The prosecution must prove every element of the crime charged. One such element is the voluntariness of theact.

Normally, voluntariness can be presumed, but if the accused places before the court, through his own witnesses or through cross-examination of Crown witnesses, evidence sufficient to raise an issue that the situation created by external forces was so emergent thatfailure to act could endanger life or health and upon any reasonable view of the facts, compliance with the law was impossible, then theCrown must be prepared to meet that issue. There is no onus of proof on the accused. V. ANALYSIS [73] In effect, the accused argues that the defence of necessity as codified in s. 285 applies to his actions.

He argues that, after Bunexpectedly entered his vehicle refusing to return to her uncle’s home, he and his companions feared for her safety as well as their own. The uncle’s threats left them no realistic option but to keep her in their care and leave Foam Lake. [74] I find that in the months leading up to this incident the accused developed an inappropriate relationship with B,described by her as a secret relationship. I reject the accused’s evidence that no such relationship existed. I accept B’s testimony on thispoint and also that of K’s mother who said she told the accused that B had a “crush” on him.

He did nothing to discourage it and in factencouraged it by allowing her to attend parties at his home where alcohol was readily available to young people. I reject his evidencethat he could not prevent B from drinking and partying in his home. [75] Although B’s mother dropped her off at the accused’s home on one or more occasions, these appear to be acts of a mother atwits end, who decided to appease her daughter rather than to constantly fight with her, resulting in inconsistent parenting.

Her decisionto move her to Foam Lake was clearly to remove her from the accused and other negative influences in her community. I do not acceptthe accused’s testimony that he had no idea this is why she was moved. [76] B testified that her relationship with the accused included sexual intercourse. This is not an element of the offencecharged and I am making no conclusive finding on that matter. However, I reject the accused’s explanation that he went to Foam Lakesimply to facilitate a meeting between J and B; he wanted to see her.

I accept J’s evidence that she got a call from the accused aboutgoing to see B and that they both wanted to see her. He went to Foam Lake knowing that 15 year old J did not have her parents’ consentto be with him. His purpose in going there was to have B sneak out of her uncle’s home and spend time with him and his companions inthe Foam Lake area. Had she not been at the farm this likely would have occurred earlier in the afternoon. I accept that the plan was notto take her to Saskatoon, but that his initial plans changed after B bolted from her uncle’s home.

I find that at approximately 9:30 p.m.they intentionally drove past the uncle’s residence rather than stopping in front, as they did not want to be seen. Furthermore, I do notaccept the accused’s evidence that he thought the girls ran back to the SUV because of barking dogs. It was obvious that they wereescaping quickly from the uncle’s home. When they jumped in and told K to “go, go, go” he knew that he did not have the uncle’spermission or the permission of B’s mother to take her away. [77] The offence under s. 280(1) of the Criminal Code was complete when they drove away at this time.

Whether theaccused’s motive for taking her was his own sexual gratification, or something less sinister, is irrelevant. It is also irrelevant that hisinitial plan was to have her spend time with them in the Foam Lake area, not to take her to Saskatoon. “Whether the accused may havehad an innocent motive, or intended to interfere with possession for a very short period of time is beside the point.” R v Chartrand, (SCC), [1994] 2 S.C.R. 864, para. 52. [78] There is conflicting evidence as to whether or not the uncle sent threatening text messages.

There is also conflictingtestimony that a message or phone call came from B’s phone at a time when I am satisfied that B’s phone was disconnected. It is quitepossible that, without intending to mislead the Court, witnesses are confused as to who sent what text messages and to whom. There isno doubt, however, that the uncle left a stern voice message. I am proceeding on the basis that in one or more messages the unclethreatened to assault the parties responsible if they did not return B either to him or to the police. I find that the threat was made after the

offence under s. 280(1) was already committed. The accused and K had already taken her out of the possession of, and against the will of, her uncle and her mother. [ 79 ] Though I find that the offence was complete prior to the threat being made I will go further and state that it continued and that s. 285 does not apply to excuse the accused’s conduct after the threat was made. It should have come as no surprise to the accused, given the history he had with B, that the uncle and mother would be upset when she ran off with them, but that itself does not disentitle him to the defence of necessity.

What makes the defence of necessity inapplicable here is that I do not believe the reasons he gave for continuing on with her to Saskatoon. [ 80 ] The accused testified that the reason he did not return her that evening is that she refused to go back out of fear that her uncle would hurt her; another reason is that he feared the uncle would assault him and others in the vehicle as he threatened. I do not accept this.

If he was simply an obliging adult who believed J’s parents were fine with him facilitating a visit between two 15 year old girls he could have phoned back or driven back immediately and explained to the uncle that this was all a misunderstanding. He had nothing to fear. Alternatively, he could have phoned the police or 911 and explained that he was getting threats from the uncle and explain the misunderstanding.

I do not accept his explanation for avoiding police that night. [ 81 ] I find that the real reason he did not immediately return B is that he did not want to get caught or be implicated in taking her; also, he wanted to be with her and he knew that she wanted to be with them.

I am satisfied that he was in on the decision to have others in the vehicle lie when speaking to police and to leave his name out of it. [ 82 ] An offence under s. 280(1) is only made out if someone takes or causes the person to be taken “without lawful authority.” The use of the phrase “without lawful authority” may allow someone with an honourable purpose in taking a child to be acquitted in certain circumstances. The aim and purpose of this

section is not to convict a good Samaritan. ( R v Chartrand , supra . para. 40.) However, I do not accept that his intentions were to save her from an abusive situation at any time. I do not accept that by befriending her in his home community he was trying to give her comfort from an abusive mother or brother. I do not accept that by driving to her uncle’s house in Foam Lake he was simply allowing two 15 year old girls a chance to re-unite. Furthermore, I reject the suggestion that by fleeing Foam Lake he was trying to save her and others in the vehicle from an abusive uncle.

At no time was he trying to save her from such problems; he was her parent and guardian’s chief problem. [ 83 ] The accused went to Foam Lake with the intention of taking B out of the possession of her uncle, against his will and against the will of B’s mother and he did just that. I do not believe his evidence that the reason he did not immediately return her to her uncle’s possession was to protect her from danger of imminent harm, or to escape from danger of imminent harm from the uncle. Not only do I not believe his evidence on these matters, I am not left with a reasonable doubt by it. VI.

CONCLUSION [ 84 ] On the basis of the evidence which I do accept I am convinced beyond a reasonable doubt that F.W.B. committed the offence charged and I therefore find him guilty. J. Plemel, J