Her Majesty the Queen - v. -, 2014 SKPC 25

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 025 Date: January 29, 2014 Information: 33385301 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Alexander Levin Appearing: Frank Impey For the Crown Self For the Accused SENTENCING DECISION D.E.

LABACH , J INTRODUCTION [ 1 ] On January 27, 2014, the accused, Alexander Levin, appeared before me charged that between the 10 th day of July, 2013 and the 11 th day of October, 2013, at or near Saskatoon, he did, being the father of Ieda Alexandra Levin , a person under the age of fourteen years, harbour or conceal Ieda Alexandra Levin with intent to deprive Oziene Barbosa, the mother of Ieda Alexandra Levin, of possession of Ieda Alexandra Levin, contrary to section 283(1) of the Criminal Code .

[ 2 ] He advised that he was representing himself and wished to plead guilty to the charge he was facing.

Following a plea comprehension hearing I was satisfied that the accused understood the charge he was facing, was accepting unequivocal responsibility for the offence, was not being threatened or forced to enter this guilty plea, was not being enticed or promised anything to enter this guilty plea but was pleading guilty voluntarily and with full knowledge of the repercussions of entering this plea. [ 3 ] The Crown outlined the facts of the offence and advised that in their view, an appropriate sentence was two years incarceration less the time that the accused had spent on remand.

Following their submission, the accused made a lengthy submission wherein he concluded by asking me to stay the proceedings against him. Throughout his submissions he was polite and respectful of the Court and towards the Crown. [ 4 ] The only issue in this case is what is an appropriate sentence for the accused. FACTS [ 5 ] The accused is 47 years old . He was born in Ukraine but in 1982, emigrated to Canada. At some point in time, he married a Japanese lady and together they have four children. They reside in Saskatoon where his wife is employed as a teacher’s assistant.

According to the accused, he does odd jobs, buys and sells land and houses in small town Saskatchewan and at times has been a tree planter. [ 6 ] The date is unclear but sometime in 2010, the accused travelled to Brazil to meet Oziene Barbosa. The two had met on the Internet and the accused travelled to Brazil to commence a relationship with Ms. Barbosa unbeknownst to his family in Saskatchewan. According to the accused, Ms. Barbosa was his mistress and in short order she became pregnant with the accused’s child.

On July 30, 2011, a daughter was born of this union and apparently the accused was there to witness the birth. The child was named Ieda. [ 7 ] This was not the first time that the accused had impregnated a Brazilian woman. Some time before beginning his relationship with Ms. Barbosa, the accused had had another Brazilian mistress who had bore him a child. The accused knew very little of this child, did not support her or her mother and had not seen this child at all. [ 8 ] It is unclear what occurred between Ms.

Barbosa and the accused between the birth of the child in 2011 and 2013 however it appears that he kept in contact with her over the computer. Sometime in 2013 he travelled to Brazil and met with Ms. Barbosa and Ieda. According to the accused, they had planned a trip to Argentina and then on to Europe. The accused took them to Argentina where they attended the Brazilian consulate to obtain a passport for Ieda. The accused said that they did this because it was quicker to get a passport in Argentina than in Brazil. [ 9 ] After getting this passport they travelled from Argentina to France and then on to Ukraine.

They visited the area where the accused grew up. During their travels, the accused convinced Ms. Barbosa to sign a paper authorizing the accused and Ieda to be able to travel together in her absence. He was of the view that he did not need such an authorization since he was Ieda’s natural father but agreed that he had obtained such a document from Ms. Barbosa. [ 10 ] One morning while in the Ukraine, the accused told Ms. Barbosa that he was taking Ieda and going to get some milk.

Instead of returning, the accused took his young daughter and travelled to Bulgaria, then on to Turkey, Dubai and finally to the Phillippines. He entered the Phillippines with Ieda on July 1, 2013. [ 11 ] The accused apparently left with Ieda because he found out on their trip that Ms. Barbosa was seeing three other men in addition to being his mistress. This conjugal infidelity was unacceptable to the accused. He was mad at Ms. Barbosa and took Ieda to seek a measure of revenge against her for her dalliances. All the while though, the accused remained married to his Japanese wife. [ 12 ] He left Ms.

Barbosa in the Ukraine with a prepaid apartment, some money and a bus and/or airline ticket back to South

[12] He left Ms. Barbosa in the Ukraine with a prepaid apartment, some money and a bus and/or airline ticket back to SouthAmerica. He corresponded with her on the Internet from time to time. At one point in his correspondence he told Ms. Barbosa that if shewanted to visit Ieda she would have to move to Canada, live and work on a farm in Saskatchewan and give up seeing other men and theInternet. Needless to say, Ms. Barbosa rejected this demand. She asked for her daughter back and advised the accused that if he wantedto see Ieda, he would have to come to Brazil to do that.

This was not acceptable to him. [13] While in the Phillippines, the accused met a seamstress by the name of Mrs. Flores. He ended up striking a deal with her to look after Ieda while he returned to Canada. He left Mrs. Flores money and supplies and on July 13th flew back to Canada without hisdaughter. He said that he left his daughter in the Phillippines with a complete stranger because he knew that if he brought her back toCanada with him, the Canadian authorities would take her away and return her to her mother. While he was in contact with Ms.

Barbosahe refused to tell her that he had left Ieda in the Phillippines. [14] Eventually Ms. Barbosa went to the Brazilian authorities who in turn must have contacted the

section of the RCMP responsible for abducted children. The RCMP involved the Saskatoon Police Service and on October 11, 2013 the accused was arrestedand charged with harbouring or concealing Ieda from her mother. [15] Following his arrest, the accused was interrogated for a lengthy period of time. Initially he refused to divulge Ieda’swhereabouts but after a number of hours, finally disclosed that she was in the Phillippines and where specifically he had left her. [16] On October 29th, the Phillippine equivalent to our Department of Social Services took custody of Ieda and made arrangementsfor Ms.

Barbosa to come and get her. Today, Ieda is back at home in Brazil with Ms. Barbosa. [17] The accused remained in custody following his arrest. The accused had a show cause hearing however the Judge presidingover the hearing determined that the accused should be remanded in custody. He remains in custody to today’s date. ISSUE What is the appropriate sentence for the accused in this case? THE LAW [18] The fundamental principle of sentencing is that a sentence imposed on an offender must be proportionate to the gravity of theoffence and the degree of responsibility of the offender.

As I consider what is an appropriate sentence, I must bear in mind that thepurpose and objectives of sentencing are denounciation, general and specific deterrence, separation from society where necessary,rehabilitation, reparation to the victim and/or society and the need to promote a sense of responsibility in the offender and anacknowledgment of the harm done to the victim and the community. [19] In R. v. Mendez (1997) (ON CA), 113 C.C.C. (3d) 304 (Ont. C.A.), Osborne J.A. said at paragraph 28: [28] Child abduction, even by a parent, is a serious matter.

Canada’s commitment to protecting children from wrongful taking by aparent is evidenced by the fact that Canada is a signatory to the Hague Convention and by Canada’s Extradition Treaty with the UnitedStates which includes parental child abduction as an extraditable offence. [20] In cases under

section 283 of the Criminal Code, courts have consistently held that the principles of general deterrence anddenounciation are paramount. See R. v. Pasdari, [2003] O.J. No. 319 (Ont. C.A.); R. v. Melville, 2011 ONSC 5697 , [2011]O.J. No. 4403 (Ont.S.C.J.); R. v. O’Bryne, [2013] O.J. No. 1490 (Ont.C.J.). [21] In addition,

section 718.2 of the Criminal Code sets out other principles that I am to consider in crafting an applicablesentence. For the purposes of this sentencing, I will also consider the relevant aggravating and mitigating circumstances of the offence

and the accused, that my sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances and that the accused should not be deprived of his liberty if other reasonable, less restrictive sanctions are appropriate. CROWN POSITION [ 22 ] The Crown took the position that a sentence of two years less the accused’s remand time was an appropriate sentence given the facts of this case. In their view, the accused’s taking this young girl from her mother and leaving her with a stranger in the Phillippines was unthinkable and bordered on bizarre.

They argued that it was aggravating that the accused did this to get revenge on Ieda’s mother for being with three other men at the same time she was with him, that he left Ieda with a total stranger in a foreign country and that it was very possible that Ieda suffered some psychological harm as a result of this incident. [ 23 ] While they admitted that the accused’s early guilty plea saved them considerable expense and avoided the difficulties they were going to have in prosecuting the case, they questioned whether the accused was truly remorseful for what he had done.

They pointed to the fact that throughout his two hour submission, not once did he apologize to Oziene or Ieda for what he had done. [ 24 ] In taking this position, the Crown relied on the case of R . v. Schellenberg , [1989] S.J. No. 632 (Sask.C.A.) . In that case, the accused and her husband were divorced and the husband had custody of the couple’s two daughters. The accused took the daughters to British Columbia and refused to return them to her ex-husband. She initiated custody proceedings but they were dismissed and the children returned to their father.

A few years later, the accused took the children to the United States and then on to Yugoslavia, establishing residency there. One daughter returned to Canada five years later but the youngest daughter remained in Yugoslavia. The Court of Appeal allowed the Crown appeal from the one year sentence imposed by the trial judge. In their view, general deterrence was the primary consideration and the facts of the case called for a severe sentence.

Taking into account the fact that the accused had a criminal record for abducting her daughters previously, that she continuously violated the court’s order granting custody to her ex- husband, that this was premeditated, that she took the girls to a country where return was virtually impossible, that she deprived her ex- spouse of seeing his children and even now failed to bring the youngest one back to Saskatchewan, the Court increased the accused’s sentence to two years less one day. ACCUSED ’S POSITION [ 25 ] The accused took issue with the Crown’s position.

In his view, there were some thirty nine mitigating factors in his case that justified leniency. He argued that he was remorseful for what he had done, he apologized profusely to his present spouse and his four children and assured me that he understood that what he did was wrong and he would not do it again. He said he was a good father and had no addictions issues or mental health concerns. He admitted that he has some beliefs that others may find offensive but these should not be held against him.

In his view general deterrence was not of significance in his case since the Attorney General for the province can pick and choose who he prosecutes for this offence. In the accused’s view, general deterrence could not be a factor when some people are prosecuted and others are not. [ 26 ] He acknowledged that he was responsible for this drama and he agreed that his punishment should reflect society’s revulsion for what he did. That being said, he encouraged the Court not to be swayed by the media and public opinion and to impose a stay of proceedings in this case.

Alternatively, he asked the Court to consider the mitigating circumstances in this case and impose as lenient a sentence as possible. ANALYSIS [ 27 ] Having reviewed the submissions of both parties, I have determined that the aggravating circumstances in this case are as follows: (

a) Ieda was only two years of age when the accused took her from her mother;

(

b) this was

an act of revenge on the part of the accused done in retaliation for Ms. Barbosa seeing other men; (

c) that he left Ms. Barbosa in Ukraine where she did not know anyone and did not speak the language. This factor is tempered somewhat by the fact that he had prepaid for the apartment in which they were staying, he left her some money as well as a bus and/or airline ticket to get back to South America; (

d) he refused to tell Ms. Barbosa where he had taken Ieda unless she agreed to move to Canada and accede to a number of his conditions including shared parenting; (

e) he left two year old Ieda with a stranger in a foreign country; (

f) that not once did he ever express any remorse for the pain and anguish that Ms. Barbosa suffered from having her daughter taken from her and not knowing where she was or if she would ever see her again; (

g) the accused has a Criminal record with a number of convictions. While there are no previous convictions for abduction, there are a number of convictions for property related offences including thefts, attempted thefts, uttering a forged document, using a cancelled credit card and frauds as well as unauthorized possession of a firearm, threats and an assault. [ 28 ] The following are mitigating factors in this case: (

a) the accused entered a guilty plea at a relatively early opportunity and has spared the Crown the expense and difficulty in prosecuting this case; (

b) that the period of Ieda’s separation from her mother was only two to three weeks and not months or years; (

c) that it appears the accused maintained regular contact with Ms. Barbosa via the Internet after he absconded with Ieda; (

d) that there was no court order in place that he was violating; (

e) this does not appear to have been a premeditated plan but rather a spur of the moment decision to take Ieda from Ms. Barbosa once he found out that she had three other male friends besides himself; (

f) there was no evidence that Ieda was harmed, that she suffered any physical or psychological damage or that she was abused. There was no evidence of any violence either when the accused left with the child or thereafter and there is no evidence that the accused was trying to sell Ieda. The Crown encouraged me to find that Ieda must have suffered some psychological trauma as a result of this incident but there were unable to provide any specific evidence that this was the case and they called no expert evidence to establish this. It is possible that she suffered some trauma but without some evidence of this I am not prepared to take judicial notice that she suffered some trauma; (

g) the accused’s intent was not to permanently separate Ieda from her mother but to get Ms. Barbosa to agree to joint parenting of Ieda. [ 29 ] The Crown has referred me to only one case - R. v. Schellenberg, supra . This case, while a decision of the Saskatchewan Court of Appeal, is of limited assistance as I determine a fit and appropriate sentence for the accused. The facts in Schellenberg were significantly more egregious than those in the accused’s case. For example, Ms. Schellenberg had a prior conviction for abducting her children, she ignored a Court order, her offence was planned, she deprived her ex-spouse of his children for five years and even when she

returned to Canada she did not bring both children back with her. These are much different circumstances than the present case. [30] The accused has not brought any case law to the Court’s attention. That is not surprising. He is not legally trained and isremanded to the Saskatoon Correctional Centre where he has no access to legal research or legal databases. Surprisingly, charges undersection 283 happen more frequently than one would expect or would hope. I have done some research and have come up with a numberof cases that establish a range of sentence that is applicable to the accused’s case. [31] R. v.

Lagowski, [1992] M.J. No. 373 (Man.C.A.) The accused, a first time offender, failed to return his three year old son tohis former wife during one of his periods of access. He took the child to the United States, then to Spain and eventually to Poland. Aftera nine year absence, the accused voluntarily returned his son to his ex-spouse. The accused did not accept moral responsibility for hiscrime. He plead guilty and the sentencing judge imposed a three year period of incarceration.

On appeal, the Court of Appeal felt thatthis lengthy a period of incarceration would deprive the child of the financial and emotional support of his primary caregiver. As aresult, they reduced the accused’s sentence to 18 months incarceration. [32] R. v. Hammerbeck, [1993] B.C.J. No. 685 (B.C.C.A.) The accused failed to return his daughter to his ex-spouse after one ofhis periods of access. The police had advised the accused that they would not enforce his access order because it was a Provincial Courtorder and not an order from the Supreme Court.

The accused misinterpreted this as meaning that no valid order regarding his access tohis daughter was in place. The accused took his daughter to California where he was located three weeks later. He had not told his ex-spouse where he was going with the child, that he intended to keep her for an extended period of time and during the child’s absence, hemade no contact with his ex-spouse. The accused received a one year jail sentence following a conviction after trial. His appeal of hisconviction was dismissed. He did not appeal his sentence. [33] R v Mendez, supra.

A father took his son to the United States in contravention of a custody order. He lived with his son inCalifornia for some four years under an assumed name. After a trial he was convicted and sentenced to six months imprisonment andthree years probation. [34] R. v. P. M., (ON CA), [1997] O.J. No. 13 (Ont. C.A.) The accused took his child and went to Mexico andthen on to the United States. They were gone for almost three and one half years. The abduction ended when the child was recognizedfrom a Child Find poster. The accused had no prior criminal record.

The Court of Appeal upheld a six month period of incarceration. [35] R. v. Gettliffe-Grant, 2006 BCSC 1944 , [2006] B.C.J. No. 3336 (B.C.SCJ) The accused abducted her two childrenand moved to France after the Court had denied her application to take her children there for a ten month period. She intentionallyvilified the childrens’ father and failed to correct misleading information about the father in an attempt to maintain her illegal custody. The accused threatened the father that if he pursued her for breach of the court’s order he would never see his children again.

Eventuallyshe returned to Canada but made arrangements for her children to remain hidden in France. The court imposed a 16 month jail sentence. [36] R. v. Sadeghi-Jebelli, [2012] O.J. No. 2904 (Ont.SCJ) After a trial, the accused was convicted of abducting his son. He hadtaken his son from his ex-spouse and sent him to Iran to live with his paternal grandparents. The son was gone for twelve years and onlyreturned to avoid military service in Iran. The accused was not remorseful and was not with his son in Iran.

Iran was not a signatory tothe Hague Convention on International Child Abduction, was a volatile country and apprehension would have been difficult. Theaccused was sentenced to 22 months incarceration. [37] In the present case, the Crown proceeded by indictment. In doing so, the maximum sentence the accused could receive is 10years incarceration. There is no minimum sentence for this offence. It is open for me to impose anything from a discharge up toincarceration.

He is also eligible for a conditional sentence order as no bodily harm was suffered by the victim in this case. [38] The accused has suggested that I stay the proceedings against him even thought he has plead guilty to this offence. While theCourt has inherent jurisdiction to stay proceedings in any situation, a stay of proceedings in this case is not appropriate. There is noevidence before me of any abuse of process and no Charter breach has been proven that would result in a remedy of a stay pursuant tosection 24(1) of the Charter.

[ 39 ] The circumstances of this case are both shocking and inconceivable. I do not understand how the accused, as smitten with Ms. Barbosa as he says he is, could take their two year old child away from her and disappear to another country, not tell her where he took the child and make demands on her if she wants to see her daughter again. I do not understand how he could leave the child in the care of a total stranger in the Phillippines. The accused says that he now understands that his actions were wrong and that he will not do this again however I am not sure if I can believe what he says.

His sentencing submissions seem to indicate otherwise. In a democratic society such as Canada a person is entitled to their views and it matters not that others do not share those views. However, the accused’s attitude and actions toward women can be described as nothing short of barbaric. Early on in his submissions, the accused said that he had exclusivity of consortium with Ms. Barbosa. It appeared to me that he was making the point that only he had the right to engage in sexual activity with her because she was his mistress. He then went on to say that Ms.

Barbosa’s conjugal infidelity, that is, her sexual relations with three other men while she was his mistress, traumatized him to the point that he thought that taking Ieda and fleeing was the best course of action. But this caveman mentality can in no way justify what the accused did. Ms. Barbosa was not an object owned by him with which he was free to do whatever he wished. She was a person, a human being, and she was free to have whatever relationships she wanted with whomever she wanted, whenever she wanted. When I consider that at no time in his lengthy submissions did he ever apologize to Ms.

Barbosa or Ieda, these comments show me that the accused felt no remorse for what he did to them. Instead, he has convinced himself that he is the victim in all of this. [ 40 ] In his submissions, the accused alleged that there was a massive conspiracy against him. Neither the Ukrainian or Phillippine justice systems laid any charges against him. Only the Saskatchewan Justice Department pursued a criminal charge against him. In his view, the Attorney General wrongly gave his consent to this prosecution. He complained that he has been vilified in the media.

The press has not been kind to him and he argued that their inflamed words make it hard for this Court to remain independent. He also argued that he has only been charged because of public opinion, he has been subject to psychological exploitation by Ms. Barbosa and that there is a conspiracy about to deprive him of custody of Ieda. He felt that all of these comments were mitigating factors. But these are not mitigating factors and they are completely without substance.

These comments do not point to this prosecution being an abuse of process but rather they further support that the accused has convinced himself that he is the victim here and not Ieda or her mother. [ 41 ] A number of other points raised by the accused in his submissions were misconstrued by him as being mitigating in nature. His comments that Ieda may have witnessed Ms.

Barbosa fooling around with her other suitors, that men are more traumatized than women when infidelity comes to light, that his lawyer messed up his show cause hearing, that he has another child in Brazil with another woman and that his passport has been suspended and he will have trouble travelling in the future are not properly characterized as mitigating factors. They are neither mitigating nor aggravating. They are of little or no use to me as I determine an appropriate sentence.

If anything, they also support the fact that the accused considers himself the victim here. [ 42 ] The abduction of any child by a parent or a stranger is a serious crime and as Mr. Justice Wakeling said in Schellenberg, supra , “It is difficult to know what sentence is precisely appropriate in cases of this nature.” Taking into account all of the aggravating and mitigating factors and looking at sentencing precedents for cases of this nature, considering the accused’s self-centeredness and his perplexing behaviour in this matter and understanding the grief that Ms.

Barbosa felt when she found out that the accused had taken her child and left, that she had no idea where they went or if she would ever see Ieda again, I am convinced that a period of real jail is the only appropriate disposition in this case. I have given thought to whether the accused could spend his sentence out in the community on a conditional sentence order but I am not satisfied he would not do this again if given the chance.

As such I have concerns that allowing him to be on a conditional sentence order would endanger the safety of the community and is not consistent with the purpose and principles of sentencing set forth in the Criminal Code . [ 43 ] In order to properly denounce what the accused did, to deter others from doing what he did, to get the accused to understand the harm he has done to Ieda and Ms. Barbosa and to promote a real sense of responsibility in him, an appropriate sentence is 15 months incarceration.

I have reached this conclusion based on the aggravating and mitigating facts I have identified and the case law I have cited. The accused will however be given credit for the 108 days he has spent on remand. As such, by my calculation, that will leave him 347 days or just under one year left to serve in custody from today’s date. [ 44 ] The Crown is not asking for a

section 109 or 110 prohibition order nor a DNA order and as such neither will be granted. I will waive the victim fine surcharge in this case for hardship reasons as the accused has been remanded for a little over three months and has not had any means of income.

______________________________ D.E. Labach J.