Her Majesty the Queen ) ) Shannon Benevides for the Provincial Crown, ) - v. -, 2013 MBPC 70

CITE# 2013 MBPC 70 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN: Her Majesty the Queen ) ) Shannon Benevides for the Provincial Crown, ) - and - ) ) Asel KARAKEEVA ) ) Zilla Jones, for the accused, ) ) Judgment delivered: ) December 18, 2013 L. M. Martin, P.J. Introduction [ 1 ] On March 6, 2009, Asel Karakeeva (“Karakeeva”) boarded an international flight with her four year old son.

She did so without the consent of her common law husband, Sheldon Rosenstock (“Rosenstock”), resulting in her being charged with child abduction contrary to section 283(1) of the Criminal Code . [ 2 ] The issue before this Court is one of intent, that is, whether by taking her son without Rosenstock’s consent, Karakeeva intended to deprive Rosenstock of his possession. Background [ 3 ] To understand the charges before the Court it is important to contextualize the relationship between Karakeeva and Rosenstock. [ 4 ] Karakeeva is a 43 year old native of Kyrgyzstan, a country located in Central Asia.

Thirteen years ago, Karakeeva left her family in Kyrgyzstan and came to Winnipeg, Manitoba. She testified that although she does get homesick she has no plans of ever leaving Canada, where she is now a permanent resident. [ 5 ] In 2004, Karakeeva met and began living with Rosenstock, a 63 year old professional with a home-based practice. A year later, she gave birth to their son. [ 6 ] Both Karakeeva and Rosenstock described each other as having a caring and positive relationship with their son. Rosenstock would often talk and read to his son, but most of the child rearing fell to Karakeeva.

She would take him with her when she went out shopping and she slept in the same room as him; Rosenstock slept by himself in another room. In Karakeeva’s eyes, their son was more attached to her given his young age. [ 7 ] As for their own relationship, Karakeeva and Rosenstock both described it in positive terms. They got along well and other than the occasional disagreement, there was no evidence of any periods of separation or plans to do so prior to this incident.

That said, Karakeeva did describe a relationship which could be viewed as controlling, noting that Rosenstock would call her to come home from friends or tell her that he did not want her to see certain people. He gave her a small allowance which she considered payment for her secretarial work. Significantly, he refused to allow her a return visit to her family in Kyrgyzstan. [ 8 ] Rosenstock testified that he was worried about Karakeeva and their son going to Kyrgyzstan because of what he perceived to be a poor medical and unstable political system. He has never gone because he is afraid of flying.

He did consent to Karakeeva and their son going in 2007 for approximately six months. On that occasion, Rosenstock swore an affidavit indicating his consent. He was kept apprised of their whereabouts and well-being as Karakeeva called Rosenstock often, both on the way and once in Kyrgyzstan. Rosenstock admitted however that the absence of Karakeeva and their son was unbearable for him – he felt lonely and depressed. When they returned home, Rosenstock told Karakeeva that she could never go back.

He testified: “I made it clear to her that under no circumstances would I agree for her to go back to Kyrgyzstan.” [ 9 ] Karakeeva testified that from this point on Rosenstock refused to change his mind and in fact refused to talk about it. According to her, his position softened slightly at the end of 2008 when her mother suffered health issues requiring hospitalization.

Karakeeva testified that Rosenstock told her he would think about it but his answer was always ‘not now, maybe later’. [ 10 ] Rosenstock denied that these conversations about Karakeeva’s mother ever took place. He did however testify that he warned Karakeeva that it would be a criminal offence for her to take their son out of the country. There is no evidence as to when that statement was made or the context in which it was made. Rosenstock also testified that he had no recollection of her mother being ill.

He was under the impression that Karakeeva’s mother would come to visit them in Winnipeg as he had written her a letter of invitation. He acknowledged that she never has come, either before or after March 2009. [ 11 ] Karakeeva found this situation very unfair. She testified that she became increasingly worried about her mother and was concerned that she would miss her window of opportunity as her son’s passport was set to expire on March 30, 2009. [ 12 ] On February 9, 2009, Karakeeva bought two return tickets from March 6 to 29, 2009 with money her mother sent her.

The tickets were sent to her by email to her hotmail account. The address listed on the email ticket is that of an acquaintance. Karakeeva denied that she gave the acquaintance’s address to hide the purchase from Rosenstock. She testified that the only reason she gave the travel agent this address was because she was promised coupons would be mailed to her.

As Rosenstock did not allow her to see the mail and had thrown out marketing mail in the past, she did not want Rosenstock to throw these coupons out. [ 13 ] In her statement to the police, Karakeeva acknowledged that she never directly told Rosenstock about her plans to go to Kyrgyzstan with their son. She testified however that she did not hide it from him; she left out the email tickets on her desk and brought up the suitcases from downstairs, put them in her bedroom and began to pack. She packed clothing for her and her son as well as old clothes and toys to give to her relatives in Kyrgyzstan.

She hoped Rosenstock would notice the tickets and suitcases, realize that she had already paid money, and allow her to go. She was however afraid that he would say no. [ 14 ] Rosenstock did not notice the tickets or the suitcases. He testified that the suitcases were normally stored downstairs behind his desk. He did not notice that they had been moved but acknowledged that the downstairs was a mess and that if something was missing he would not have noticed.

As for the tickets, he was adamant that they were not on the desk, stating that only the tickets from 2007 were there. [ 15 ] On March 6, 2009, the day of the trip, Karakeeva, Rosenstock and their son were at home as usual. Rosenstock testified that he was not feeling well and decided to take a nap. According to him, Karakeeva told him that she was going shopping. When he awoke around 1 p.m., he carried on throughout the day, becoming worried when it got dark that they still had not returned home. He called the police alerting them to a possible child abduction, only to be questioned about his proof.

He then called Karakeeva’s family and learned that Karakeeva and their son were on their way to Kyrgyzstan. At approximately 10:30 p.m., he called 911 again. The 911 call was played in Court. Rosenstock is audibly distraught. [ 16 ] Karakeeva testified that on March 6, Rosenstock told her she could go shopping and she did not respond. When he went for his nap, she called a taxi and left for the airport with her son. She did not wake Rosenstock to tell him they were going or leave a note.

Karakeeva and her son ultimately boarded a flight to Bishkek, Kyrgyzstan via Toronto, Ontario and London, England. [ 17 ] Karakeeva testified that her intention was to call Rosenstock once arrived in Bishkek to let him know where she and their son were, that they would stay for three weeks and then return. She did not get that chance. As a result of Rosenstock’s 911 call the Winnipeg Police Service contacted the authorities in London and Karakeeva was briefly detained. The London authorities refused to detain her for any prolonged period of time or cooperate with extradition.

When it became clear that her son was going to be flown back to Winnipeg, Karakeeva called Rosenstock to tell him she just wanted to take their son to visit her mother. She would be gone for three weeks and then come home. She asked for his permission and he responded “absolutely not”. He did tell her to come back home and live with him. Karakeeva did return and was arrested in Winnipeg for child abduction. [ 18 ] Karakeeva testified that had she known Rosenstock would have been so upset she would not have gone.

In her statement to the police she pondered what went wrong, seemingly surprised that Rosenstock called the police. She testified that her thoughts at the time though were not focussed on Rosenstock, they were focussed on her mother and her ill health. She “couldn’t think about anything else”. To the police, she stated: “I just really wanted to see my parents.” As for taking her son she added: “..he’s so little.

He’s little and..and like just visiting my family without him it’s...I cannot imagine, ‘cause he’s little but he’s very attached to me.” [ 19 ] As for their relationship, Rosenstock testified that although he initially just wanted Karakeeva to come home, a friend of his warned him that she might decide to take off with their child in the future and that he could not trust her. He therefore decided against having her come back home. He later initiated sole custody proceedings in the summer of 2009.

These proceedings resulted in a shared custody arrangement in 2010 that the parties have been complying with ever since without incident. According to Rosenstock, the two continue to get along very well. The Ambit of the Child Abduction Provisions [ 20 ] There are several provisions in the Criminal Code dealing with child abduction. Karakeeva was charged under s. 283, which provides: 283.

(1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, whether or not there is a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person, is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or (

b) an offence punishable on

summary conviction.

(2) No proceedings may be commenced under subsection (1) without the consent of the Attorney General or counsel instructed by him

for that purpose. [21] The Supreme Court of Canada examined the history and purpose of the child abduction provisions, including s. 283, in R. v.Chartrand, (SCC), [1994] 2 S.C.R. 864. Of note, only child abductions that occurred in the context of custody orderswere covered by the Criminal Code prior to the enactment of s. 283 (formerly s. 250.2). As mentioned in R. v.

Dawson, (SCC), [1996] 3 S.C.R. 783, paragraph 22: The state of the law before 1983 was subject to criticism for neglecting the large number of child abductions which occur in advance of acourt order for custody...[Former s. 250], as interpreted by the courts, contained a sizable loophole which permitted a parent anticipatingan application for custody by the other parent to short-circuit the court proceedings simply by taking the children. [22] Much of the case law dealing with the child abduction provisions can be used interchangeably between the sections (s. 281,282, 283), at least as it refers to the definition of terms, though caution needs to be exercised in how those

definitions are applied,cognizant of the legislative purpose of the various provisions. [23] The elements of the actus reus of a child abduction offence are: · The accused is either not (s. 281) or is (s. 282, 283) a parent, guardian or person having the lawful care or charge of a child; • The child must be under the age of fourteen; · The accused takes, entices away, conceals, detains, receives or harbours the child, in contravention of a custody order (s. 282) whichthe accused knew was in existence or, where there is no custody order (s. 281, 283); and the mens rea: · The taking, enticing, concealing, detain or harbouring must have been done with the intent to deprive the parent of possession of thechild. [24] Case law provides that the terms ‘take, entice away, conceal, detain, receive or harbour’ all refer to manners in which someonecould deprive a parent of their possession of the child.

It is that deprivation of possession, being a parent’s right to the care and controlof their children, that is at the heart of these provisions. The deprivation can be temporary or permanent. (See: Chartrand, paragraphs 50– 52) [25] Often, while the actus reus is relatively straightforward, the mens rea is less clear.

The child abductions sections are specificintent offences, requiring the Crown to prove beyond a reasonable doubt that the accused specifically intended that his or her taking,enticing, concealing, detaining, receiving or harbouring of the child was for the purpose of depriving a parent of his or her right topossession of the child. [26] The Ontario Court of Appeal discussed the elements of the offence in R. v. McDougall (1990), (ON CA), 1O.R. (3d) 247. In that case, a father failed to return the child home to the mother as required by an interim custody order due to a snowstorm.

Instead, he returned him the next day at a time that was convenient to him. At paragraph 35, the court explained that: ...the actus reus or “questioned act” is the detention of the child in contravention of the custody order, while the “purpose going beyondthe mere performance of the questioned act” is the intention to deprive the other parent of possession of the child.

The language of thesection precludes reliance on any lesser level of intent, such as recklessness, and requires proof that the act was done for the expresspurpose of depriving the other parent of possession of the children... [27] The court explained that the purpose of the legislation was to criminalize conduct in the nature of an abduction of a child. As tothe ambit of the section, it added: [39] The genesis of the legislation, the serious potential penalty, and the constitutional limits of the federal criminal law power, allpreclude an

interpretation of the

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

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

section be one which is consistent with the common notions of abduction, and which issufficiently culpable to warrant the imposition of a criminal sanction with potentially serious consequences. [40] The language of the statute clearly requires an intent to deprive the other parent of possession, although it is not necessary that theintention or purpose be achieved. As set out above, detention in the context of s. 282 implies a withholding.

The requirement that the actof detaining be done with the intention to deprive means that the deprivation intended must be something more than the detention orwithholding of the child. The intended deprivation must also relate to the other parent's possession or right of possession of the child. Itake possession to mean physical control over the child or physical custody of the child. To intend to deprive the other parent of thatphysical control or custody, one must intend to somehow put the child beyond the reach of that control or custody.

When the phrase"intent to deprive" is read in the context of the rest of the section, it must mean an intent to take possession away from the other parent ordivest that other parent of possession. An intention not to assist or co-operate in the regaining of physical control of the child by the otherparent cannot be equated with an intention to deprive that parent of possession of the child. One parent's refusal to co-operate in thereturn of a child may result in some temporary deprivation of the other parent's possession of the children.

However, the purpose orobject in keeping the children is not to deprive the other parent of possession of the children but is rather to make the other parent comeand get them or wait until the overholding parent is ready to return the children. [Emphasis mine] [28] A similar approach in assessing intent was taken in the case of R. v. A., 1993 CarswellAlta 656 (ABPC), a case where aphysically abused mother left with the children to ensure her own safety. The court found that while the accused’s actions may haveresulted in a deprivation of possession, this was not her intent; her intent was to ensure her safety.

[ 29 ] The Supreme Court decisions in Chartrand and Dawson appear at first blush to take a different approach as to intent. In Chartrand , Justice Heureux-Dubé, writing for the majority found at paragraph 54, that: ...it is sufficient that the taker knows or foresees that his or her actions would be certain or substantially certain to result in the parent...being deprived of the ability to exercise control over the child. [ 30 ] Crown counsel submits that foreseeability of deprivation is therefore sufficient to prove mens rea. A review of the case law suggests a much more nuanced

interpretation. [ 31 ] The overwhelming majority of child abduction cases deal with situations where the accused is either a stranger or a parent who is divorced or separated or in contemplation of either. No authorities were provided where the spouses are living together with no anticipated separation. [ 32 ] Further, a review of the more recent case law which post-dates the Supreme Court of Canada decisions in Chartrand and Dawson [1] suggests that courts continue to apply the reasoning in McDougall , adopting a finer

interpretation of the Supreme Court decisions. [ 33 ] The case which provides the most comprehensive explanation of the specific intent requirement of a child abduction offence is the Quebec Court of Appeal decision in R. c. Bédard, 2010 QCCA 527 , leave to appeal denied, [2010] S.C.C.A. No. 197. In Bédard , the Quebec Court of Appeal examined the Supreme Court’s reasons in Chartrand and Dawson. Juge Brossard, writing for the majority, explained that the Supreme Court decisions must be understood in the context of the fact scenario and issues before them.

A translation of Juge Brossard’s reasons follows: 134 With respect for the judge, however, I believe that his statement may result from an understanding of the judgment of L'Heureux- Dubé J in R. v. Chartrand 32 that I do not share, and in which he could not have had the benefit of 1) the ruling of the Court of Appeal of Prince Edward Island in R. v. Muirhead 33 , and 2) the

interpretation found in Martin's Annual Criminal Code - 2010 at pages 608 and 609. I should immediately point out that Chartrand concerned the abduction of an eight-year-old child by a pure stranger without any color of right or relation of any nature whatsoever, in contravention of

section 281 of the Criminal Code . 135 The accused had succeeded in enticing the young victim far away from the schoolyard in which he had approached him, hypothetically to take photos of him, drawing him first into a wooded area at the edge of the schoolyard and then taking him nearly three kilometres away from the school, stopping along the way to take photos. He was eventually found by the child’s father with the help of other individuals, including a police officer. The accused explained that he had taken photos "to surprise the parents of the boy" whom he did not know.

The principal question at issue before the court concerned the scope of the word "unlawfully", which is not found in the French version of the same section. 136 The gist of the reasons of L'Heureux-Dubé J. concerns this question, and includes the detailed background to sections 281 to 283, as we know them today.

It is thus in this context, where the actions of the accused, who is in no way able to claim to exercise any right of control or authority over the child, are deliberately aimed at hiding and even taking flight with the child, for the only possible and imaginable purpose of removing the child, not only from the control, but even from the sight and contact of any person liable to protect him, that L'Heureux-Dubé J. wrote: General principles of mens rea apply to the words "with intent to", and, accordingly, in order to conclude that the mens rea of the offence under s. 281 has been made out, it is sufficient that the taker knows or foresees that his or her actions would be certain or substantially certain to result in the parents (guardians, etc.) being deprived of the ability to exercise control over the child .

The facts of that matter are such that it was obviously for this sole purpose and with this intent that the accused sought to take the child as far away as possible and hide him. The evidence of the intent was undeniable and, to a certain point, the preceding quote was not needed to justify the conviction. L'Heureux-Dubé J. said she was relying on the ruling in R. v. Meddoui 34 , which also concerned an offence under

section 281. She also cited the judgment of the Court of Appeal for Ontario in R. v. McDougall 35 , which, with respect for the opinion of L'Heureux-Dubé J., strikes me as more nuanced than her own assertion, as we will see further on. 137 For my part, I take from both the Chartrand and the Meddoui rulings on

section 281 C.C. that they concerned cases where, as the Court of Appeal for Ontario [sic] had said in Meddoui , "We are satisfied that it was open to the trial judge to infer the necessary intention". 138 Again with respect to

section 281 C.C , L'Heureux-Dubé J. summarized the essence of her thinking and analysis of the prior doctrine this way: To summarize, although proof of intent under s. 281 can be met by the intentional and purposeful deprivation of the parent's control over the child, the main body of jurisprudence and the academic commentaries support the view that the mens rea in offences such as s. 281 of the Code can also be proven by the mere fact of the deprivation of possession of the child from the child's parents (guardians, etc.) through a taking, as long as the trier of fact draws an inference that the consequences of that taking are foreseen by the accused as a certain or substantially certain result of the taking, independently of the purpose or motive for which such taking occurred. (Emphasis added.) 139 A litteral application of these principles in the case of section 282(1), if not 283(1), nevertheless seem to me to be problematic and dangerous insofar as there is no correlation between a total stranger taking a child, without any justification or colour of right, and with the clear intent to conceal him, and a parent (or guardian, etc.) holding lawful or court-ordered custody of the child removing a child without considering the rights of the other parent, but without necessarily deliberately seeking to prevent the latter from exercising his or her rights. [Emphasis mine]

[ 34 ] Juge Brossard then examined the reasons in Dawson , noting a more nuanced approach to “intent to deprive”. At paragraph 143 of Bédard, he quotes from Iacobucci J. writing in the majority: My final comments relate to the role that intent plays in narrowing the scope of s. 283. I agree that intent can in many cases be inferred from conduct. However, if this is so it is because the inference makes sense. To impugn or make light of the inference from conduct to intent is to challenge one of the most fundamental inferences known to criminal evidence.

No trier of fact, however clairvoyant, is privy to the thoughts of the accused. The indicia of intent are generally external, but they are not for that reason unreliable. If, having heard all the evidence, a judge or a jury concludes that an accused acted with a certain intent , chances are good that the accused did act with that intent.

Although I appreciate the concern that a parent who inadvertently and only technically breaches the other parent’s custody rights may face imprisonment, I wish to emphasize that the mens rea of the offence is not simply the intention to take the child, but the intention to take the child from the possession of one who is entitled to that possession .

If a parent acts with the latter kind of intent, then it is not an extraordinary thing that he or she should face the sanction of the criminal law. [...] (Emphasis added.) [ 35 ] At paragraph 145 of the decision, Juge Brossard notes McLachlin J.’s (as she then was) dissent in Dawson and her cautionary words with respect to an overly broad

interpretation of intent: 80 In support of the ruling of the Court of Appeal, it is argued that s. 283(1) should apply wherever a custodial parent takes, entices, conceals, detains, receives or harbours a child with intent to in any way deprive the other parent or guardian of any right of control of the child, even a bare right to visit the child. Interpreted thus, a custodial parent who is late in delivering a child for an access visit could be charged with a crime and imprisoned for up to ten years . 81 The respondent argues that the breadth conferred by this

interpretation is mitigated by two factors. First, intent to deprive must be demonstrated. Second, the Attorney General must consent to prosecutions under the section. 82 Neither factor offers great reassurance . Intent in criminal law is generally inferred from conduct. A person taking a child will be presumed to intend whatever deprivation a reasonable person in his position would have foreseen. It is not unrealistic to suppose that thousands of custody and access violations occur in this country each day.

Most are committed by people who know full well that their breach may deprive the other parent, however temporarily or trivially, of some present or potential contact with the child. Intent will easily be inferred in such cases. Is this the stuff, one is compelled to ask, of the criminal law ? 83 The respondent concedes that the

interpretation it advocates might result in prosecuting as criminals people whose conduct falls far short of what society would regard as criminal . However, the respondent also submits that this situation is remedied by the requirement of the Criminal Code that the Attorney General authorize prosecutions under this section. This reasoning amounts to attributing to Parliament the intention to place people guilty of civil default in violation of the criminal law of this land; then remedying the overkill by conferring on the executive branch the discretion whether or not to proceed with prosecution.

I cannot hazard what was in the mind of the Parliamentarians when they passed the requirement of the Attorney General’s consent to prosecution. Perhaps it was nothing more than a desire to prevent frivolous private prosecutions in an area of the law where emotions often run high. I can, however, assert that the intention that the respondent would have us attribute to Parliament is unworthy of this country’s history and Constitution. The suggestion of legislating broad criminal laws and then attempting to cure the overbreadth by the conferral of prosecutorial discretion is not to be countenanced.

The citizen has a right to know what conduct will result in the stigma of criminal conviction and punishment. That knowledge should be spelled out by Parliament, not left to the whim of the Attorney General and his or her staff. To live under the cloud of prosecutorial restraint is in itself punishment.

Moreover, the need for executive permission to prosecute offers little comfort to the person whose conduct may, in the minds of others, be unfairly stigmatized as criminal. (Emphasis added.) [ 36 ] Though McLachlin J. was writing in dissent, Juge Brossard notes that Iaocubucci J.’s comments were in reply to McLachlin J.’s concerns and that is was his reply that demonstrates that something more than a common sense approach to inferences of intent is required in cases involving custody disputes.

At paragraph 146, he wrote: ...a majority of the judges, namely Gonthier, Cory and Iacobucci JJ., as well as Sopinka and McLachlin JJ., seemed to be of the opinion that the application of

section 283 , relatively identical to section 282(1), requires proof at least sufficient to rationally justify the inference of specific intent, and not just simple common sense, and that it could only be inferred from a mere presumption to the extent that that presumption can rest on serious, precise and concordant facts, and not simply automatically flow from awareness of the consequence alone.

None of their statements confuses consequence and intent, as the judge in the case at bar does. [Emphasis added] [ 37 ] This approach to mens rea was the same approach taken by the Court of Appeal of Prince Edward Island in R. v. Muirhead, 2008 PESCAD 5 . In that case, a father with access rights refused to return his son back to his mother fearing the son had been abused by her. When the abuse allegations were proven unfounded, the father returned the son but was charged with child abduction under s. 282(1)(a).

Juge Brossard quoted from this decision at paragraph 148 of Bédard : [31] The fifth and sixth elements of the offence, which constitute the fault requirement, contain both a knowledge component and an intent component. See: R. v. McDougall at para. 33 ...

[34] Section 282(1) constitutes a crime of specific intent. To constitute a crime under this section, the Crown must establish beyond areasonable doubt that the accused specifically intended that his detention of the child was for the purpose of depriving the other parent ofthe right to possession of the child. [35] At para. 34 of his reasons in R. v. McDougall, Doherty J.A. explains that a crime of specific intent involves the performance of anact together with an intent or purpose going beyond the carrying out of the act.

In contrast, a crime of general intent would only requireproof of the act with no requirement to prove the accused had any purpose other than the performance of the act. This is so because, witha crime of general intent, the accused is presumed to intend the reasonable consequences of his or her act. ... [51] An essential element of the offence, which the Crown had to prove beyond a reasonable doubt, was whether the appellant had theintent to deprive the mother of possession of the child. The appellant gave evidence as to his intent and if it was accepted, the Crowncould not discharge this burden.

In her reasons the trial judge did not give any indication as to how she assessed the credibility of theappellant's evidence. Rather, she drew inferences from other evidence, without stating whether she believed or disbelieved theappellant's uncontradicted evidence, to conclude the Crown had proven the requisite intent. ... [55] Violation of s. 282(1) of the Code constitutes a serious offence. Prosecutions under this

section are not another way of enforcingcustody and access orders in family law matters, nor is the

section intended to be a way of punishing those who violate such orders withno specific intention of depriving the other parent of the possession of the child or children. As Doherty J.A. points out at para. 48 of hisreasons in R. v. McDougall, the offence created by this

section is intended to address conduct that is in the nature of child abduction. Notonly is it important that restraint be exercised in the prosecution of offences under this

section but great care must be taken when chargesare laid that all the essential elements of the offence are proven by the prosecution beyond a reasonable doubt before convictions areentered. (Emphasis added.) [38] After his thorough analysis of the law, Juge Brossard concluded at paragraph 150 that in cases between estranged spouses,specific intent must be proven on factual underpinnings that go beyond the resulting consequences of an accused’s actions: 150 I therefore take from this recent ruling, which, in my opinion, flows logically from the above-cited opinions of Iacobucci andMcLachlin JJ. on behalf of the majority in Dawson, that the prosecution’s burden to establish the clear intent of an accused to deprive hisor her former spouse of rights conferred on that spouse by a court order, and to thereby criminalize the parental relationship, often to theprejudice of the child, must be based on factual underpinnings that go beyond the impact of the accused’s conduct alone. [Emphasismine] [39] Having set out the legal requirements of the specific intent requirement under s. 283, this Court now turns to an analysis of thefacts.

Analysis [40] As indicated at the outset, this case turns on Karakeeva’s intent in taking her son on an anticipated three week trip withoutRosenstock’s consent. As Karakeeva testified, this Court must assess the evidence in this regard in accordance with the principles set outin R. v. W (D.), (SCC), [1991] 1 S.C.R. 742. [41] This Court heard from several police witnesses as a result of some evidentiary issues, but the main witnesses were Rosenstockand Karakeeva. [42] As a general comment, I found the evidence of both Karakeeva and Rosenstock to be candid and forthright.

Rosenstockadmitted when he was unsure of or could not recall certain events, conceding for example that Karakeeva might have removed thesuitcases without his even being aware of it. He did however impress as having reacted strongly to the entire incident, exaggerating thenumber of suitcases Karakeeva left with (four not seven as he testified to) and jumping to the conclusion she had absconded with theirchild, a fear he himself admitted was perhaps irrational. [43] As for Karakeeva, she answered questions fully with respect to the steps she took to carry out her travel plans.

Her candour washowever tempered by what I found was either an inability or unwillingness to accept the truth as opposed to any dishonesty, with respectto her communications with Rosenstock about the trip. [44] Karakeeva’s position in this regard is that she told Rosenstock about her mother’s ill health and as a result he softened hisposition about her travelling to Kyrgyzstan.

It was because Rosenstock softened his position that she held out hope that he might changehis mind, all the more if he found out she had already bought a ticket. [45] This position was not conveyed to the police during her videotaped statement. In that statement she acknowledged that she didnot tell Rosenstock about her trip, stating that she just wanted to see her family. I am cautious about drawing too many conclusionsabout this discrepancy given that English is not Karakeeva’s first language.

That said, her unwillingness to accept that Rosenstock wasunaware of her travel plans was unreasonable yet explainable by her obstinacy in not wanting to accept Rosenstock’s position and fear ofwhat his refusal meant. [46] It is clear that Karakeeva really wanted to visit her family and felt that she was being denied this right unfairly. Her desire tovisit her family became her main focus to the exclusion of all other rational and logical behaviour. She became fixated on her plans and

nothing was going to stop her. [ 47 ] I accept that Karakeeva broached the subject of her visiting her family on multiple occasions only to be rebuffed by Rosenstock. Rosenstock acknowledged that he did not want her to go, overtly admitting that he told her ‘under no circumstances’. There must have been numerous discussions and on at least one occasion the discussion must have been persistent enough for Rosenstock to threaten criminal reprisals if Karakeeva disobeyed.

Further, there were certainly a sufficient number of discussions to make Rosenstock jump to the immediate conclusion that Karakeeva had left for Kyrgyzstan on March 6, rather than think something untoward had happened to her. [ 48 ] I have difficulties accepting that Karakeeva told Rosenstock about her mother’s ill health or that this was the motive behind her decision to go to Kyrgyzstan. The evidence before this Court is that Rosenstock had written a letter of invitation to Karakeeva’s family with the thought that they could come to Winnipeg the next summer.

This evidence is consistent with Karakeeva’s own statement to the police that it is difficult for people from Kyrgyzstan to get visits to Canada. It might very well be that Karakeeva’s mother was having health problems but I have troubles accepting that she shared this with Rosenstock or that he told her ‘maybe later’ such that she thought that he might just say yes if he found out that she had purchased tickets.

Karakeeva knew that Rosenstock would never change his mind and she decided that she was going to go, regardless. [ 49 ] I have the same difficulties with respect to the alleged telltale signs left around the house for Rosenstock to find. To leave telltale signs would run the risk of her being told no, something she already decided she did not want to hear. While I do accept that she certainly would have brought the suitcases upstairs to pack, the suitcases were obviously not seen by Rosenstock.

Yet I note that there is no evidence that Karakeeva surreptitiously removed the suitcases from the house on a prior day and given that she was found with four suitcases, she would have needed a taxi to get them and her son to the airport.

As for the electronic ticket, though I accept that she did not take steps to hide the tickets from Rosenstock given that the tickets were emailed to her and not mailed to her acquaintance, I have difficulty believing that she left them out in plain view for him to discover. [ 50 ] In any event, even if Rosenstock failed to see the tickets or suitcases, it would have been clear to Karakeeva that Rosenstock was unaware of her plans on March 6 th . I accept that she simply did not respond to him when he told her to go shopping.

This silence is consistent with all of her other reactions and consistent with Rosenstock’s directive nature. The fact remains that Karakeeva did not tell Rosenstock about her plans and Rosenstock was clearly not aware of them given his direction for her to go shopping. Despite his clear ignorance she did not leave a note nor did she call him at any point in time during the trip.

Though she testified she did not have time to do so, the ticket shows that there was ample time to make a quick phone call. [ 51 ] That said, I do accept her evidence that she intended on calling him once in Kyrgyzstan, and thereafter during the trip to advise him as to their well-being. I also accept that she never intended to hurt or worry Rosenstock and that her surprise at his call to the police was genuine. As she so candidly stated to Rosenstock and the police, she just wanted to go on a trip to Kyrgyzstan, visit her family, and then come home.

Both Rosenstock and Karakeeva initially thought that Karakeeva would return home and continue their relationship. Both also spoke fondly of their relationship.

At one point in the trial, Karakeeva became quite emotional at the thought that perhaps Rosenstock did not value their relationship as she had. [ 52 ] In the end, despite some of my concerns regarding Karakeeva’s evidence I do believe that it was her intention to simply go on a trip with her son and return home three weeks later. [ 53 ] The issue though is whether Karakeeva’s intention to go on a trip her common law husband forbade her from going on is criminal under the s. 283 child abduction provisions. [ 54 ] This Court finds that it is not. [ 55 ] The only evidence the Crown relies on in support of its position that Karakeeva is guilty under s. 283 is that of her defying Rosenstock’s wishes and taking their son on a trip without his consent.

The Crown acknowledges that there is no evidence that Karakeeva never intended on returning. That evidence, as already stated is clear. [ 56 ] As so aptly reasoned by Juge Brossard in Bédard

interpretation of the reasons in Chartrand and Dawson needs to be nuanced when dealing with situations involving parents who are subject to custody orders. In these cases, care must be taken in assessing intent, careful not to jump too quickly to an inference of intent simply because of the consequences of one’s actions. In this case, the caution is all the more relevant. Karakeeva and Rosenstock were in a functioning relationship. Separation was not even contemplated. What Karakeeva did was certainly inappropriate but it was not criminal. [ 57 ] As a result, this Court finds Karakeeva not guilty. “Original Signed by:” L. M. Martin, P.J.

[1] R.c. Bédard , 2010 QCCA 527 , leave to appeal denied, [2010] S.C.C.A. no. 197; R. v. Muirhead , 2008 PESCAD 5 .