Docket: CACR 2392 Alexander Levin Appellant - v. -, 2014 SKCA 66

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 66 Date: 2014-05-29 Between: Docket: CACR 2392 Alexander Levin Appellant - and - Her Majesty the Queen Respondent Between: Docket: CACR 2401 Her Majesty the Queen Appellant - and - Alexander Levin Respondent

Coram: Lane, Caldwell and Herauf JJ.A. Counsel: Alexander Levin, for himself W. Dean Sinclair, for the Crown Appeal: From: 2014 SKPC 25 Heard: May 29, 201 4 Disposition: Appeal from conviction dismissed (orally); Offender appeal from sentence dismissed (orally); and Crown appeal from sentence allowed (orally) Written Reasons: June 3, 2014 By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Herauf Caldwell J.A. (orally): [ 1 ] Alexander Levin appeals from his conviction and sentence on the indictable offence set out under s. 283 of the Criminal Code : 283.

(1) Abduction – 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) Consent required – No proceedings may be commenced under subsection (1) without the consent of the Attorney General or counsel instructed by him for that purpose. [ 2 ] The information sworn October 12, 2013, framed Mr. Levin’s offence by time as a continuing offence.

It charged that he: (1) between the 10 th day of July, A.D. 2013 and the 11 th day of October, A.D. 2013 at or near SASKATOON, SASKATCHEWAN 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 THE POSSESSION OF IEDA ALEXANDRA LEVIN, CONTRARY TO SECTION 283(1) OF THE CRIMINAL CODE. [ 3 ] At trial, Mr. Levin entered a plea of guilty. He now seeks a stay of proceedings and to set aside his sentence of 15 months’ incarceration (less credit for pre-sentence custody).

The Crown seeks appellate review of the sentence on the basis that 15 months’ imprisonment is not a proportionate response to the gravity of the offence and Mr. Levin’s moral culpability in committing it. [ 4 ] The facts of this matter are more particularly set forth by the trial judge (see: 2014 SKPC 25 ) and in the transcript of the sentencing hearing. In short, leaving his wife and four children in Saskatchewan, Mr. Levin travelled to Brazil and then, along with his Brazilian mistress and their two-year-old daughter, to Argentina, France and Ukraine. While in Ukraine, Mr.

Levin abducted the child (with whom he had had little previous relationship), transported her through Bulgaria, Turkey, Dubai and the Philippines, and ultimately kept her away from her mother for nearly four months. He did so in an effort to compel the child’s mother to follow his instructions. He intentionally interfered with the ability of the child’s mother to exercise control over her child. He deprived the mother of possession of her daughter by harbouring or concealing the child with strangers in the Philippines for several months while he had returned to Canada.

From Canada, he issued instructions and made payments to the persons holding the child in the Philippines. He used facilities in Canadato communicate his demands to the child’s mother, who had returned to Brazil, and to communicate his instructions to the personsholding the child in the Philippines. From Canada, he uttered threats on Facebook, made coercive demands upon the child’s mother andintimated he was negotiating to sell the child to persons in Brunei.

From Canada, he threatened the mother with the consequential long-term loss of access to her child if she resisted his demands for compliance with his instructions. When interviewed by police in Canada,he refused to disclose the whereabouts of the child. Mr. Levin only disclosed her whereabouts after his arrest and a lengthy negotiationwith Canadian police. Although he seeks a stay of proceedings in this matter, Mr. Levin has not resiled from his guilty plea or from hisadmissions as to the facts of this matter. [5] I will address Mr.

Levin’s appeal from conviction first and then turn to address the two sentence appeals in this matter. [6] In respect of his conviction, Mr. Levin seeks a stay of proceedings because he questions the legitimacy of the court proceedingsand he claims the trial judge did not have jurisdiction over the offence. This is because he sees the offence as being committed outside ofCanada. Alternatively, he says the Attorney General’s consent to prosecute him, as is required by s. 283(2) of the Criminal Code, isinvalid and thereby deprived the trial judge of jurisdiction.

Given his submissions in this respect, we take him as appealing from hisconviction on the basis of a question of law alone pursuant to s. 675(1)(a)(

i) of the Criminal Code or as a miscarriage of justice pursuantto s. 675(1)(a)(iii). [7] To begin, a guilty plea made in open court must be presumed to be valid unless the accused can prove it was not voluntary,informed or unequivocal (see, for example: R. v. Leonard, 2007 SKCA 128, 307 Sask. R. 140). Here, the trial judge properly conductedan inquiry into the circumstances and satisfied himself that Mr. Levin’s plea was voluntary, informed and unequivocal and that, as thetrial judge, he was not bound to follow any agreement made between Mr. Levin and the Crown (see: Criminal Code, s. 606(1.1)).

Anappellate court may only set aside a guilty plea where there are valid grounds for doing so (R. v. Adgey, (SCC), [1975] 2S.C.R. 426, per Dickson J. (Judson and Ritchie JJ. concurring)). A lack of jurisdiction would amount to a valid ground for setting asideMr. Levin’s plea. [8] Although not required by s. 606(1.1), in our assessment, by voluntarily pleading guilty Mr. Levin must be taken to havesubmitted to the jurisdiction of the court. We say this for three reasons.

First, the voluntariness of a plea turns on the idea of a “consciousvolitional decision” to plead guilty for reasons the accused regards as appropriate, which decision, by its nature, must have beenpredicated on an understanding or acceptance that the court taking the plea has jurisdiction over the offence and the accused.

Second, aguilty plea is unequivocal if it is unqualified and certain with respect to the acknowledgement of the essential facts of the crime charged,which must be taken to include an admission that the crime occurred in Canada or that Canada otherwise has jurisdiction to prosecute it.Finally, a guilty plea is informed if the accused understands the nature of the charges, the legal effect of the plea and the consequences ofthe plea, which again must involve an understanding or acceptance that the courts of Canada have jurisdiction to try the accused for theoffences charged. See: R. v.

Leonard, at para. 21. [9] As such, it is incumbent upon Mr. Levin to establish that an error of law alone in the nature of a lack of jurisdiction or amiscarriage of justice has occurred in this case. Mr. Levin is self-represented but he has filed detailed written arguments in support of hisappeal from conviction. He also appeared before us and ably acquitted himself in oral argument. Albeit wide-ranging in scope, we havefully and carefully considered each of Mr. Levin’s submissions. We are, nonetheless, not satisfied the trial judge lacked jurisdiction toaccept Mr.

Levin’s plea of guilt and to convict him on the offence pursuant to s. 283(1) of the Criminal Code or that a miscarriage ofjustice has occurred here. [10] We find the trial judge had jurisdiction to try Mr. Levin because, albeit the child is Brazilian and had been abducted in Ukraineand harboured in the Philippines, there is still a real and substantial connection between the offence and Canada and that is all that isnecessary to make an offence subject to the jurisdiction of our courts (see: R. v. Libman, (SCC), [1985] 2 S.C.R. 178).

Itis true s. 6(2) of the Criminal Code provides that no person may be convicted of an offence committed outside Canada; but, the law doesnot require that all acts of an offence occur in Canada. Here, as noted, a significant portion of the activities constituting the s. 283(1)offence with which Mr. Levin was charged took place in Canada. As such, we have no difficulty holding on the facts admitted byMr. Levin that he was properly prosecuted and convicted in Canada.

Moreover, we are not aware of any requirement of internationalcomity that would dictate that Canada refrain from exercising its jurisdiction in this case. [11] As to the circumstances themselves, when Mr. Levin raised the matter of jurisdiction before the trial judge, the judge pointedlyasked him on no less than four occasions whether he was taking any issue with Canada’s assertion of jurisdiction over this offence. Inresponse to each inquiry Mr. Levin said he was not disputing jurisdiction.

He even positively acknowledged that Canada had jurisdiction.He further advised the trial judge that neither Ukraine nor the Philippines intended to prosecute him, which he saw as mitigating hissentence. [12] Furthermore, we find the Attorney General’s consent to prosecute Mr. Levin on this offence was valid. A prosecutor dulyauthorised by the Deputy Attorney General of Saskatchewan executed the consent to prosecute required pursuant to s. 283(2) the daybefore charges were laid against Mr. Levin.

Her authorisation to sign the consent as a lawful deputy of the Attorney General is on record.The delegation of authority to her to do so is contemplated in the definition of “Attorney General” in s. 2 of the Criminal Code and by s.283(2) itself. As such, we find the consent to prosecute required pursuant to s. 283(2) is valid and no jurisdictional issue arises in respectthereof. [13] Considering the whole of the matter, we conclude the evidence and the law simply do not support Mr.

Levin’s contention that thetrial judge lacked jurisdiction to accept his plea and convict him of the s. 283(1) offence or that a miscarriage of justice has occurred inthis case. In such circumstances, we are simply not empowered to expunge Mr. Levin’s guilty plea or to enter a stay of proceedings inthis matter. Accordingly, we must dismiss the appeal from conviction. [14] Mr. Levin’s appeal from sentence was less well-prepared than his appeal from conviction. He presented few arguments relevant tothe issues at play in a sentence appeal.

And, on the whole, we find no sustainable basis upon which to interfere with the trial judge’sdiscretion by reducing the sentence he imposed or to impose a stay. We therefore dismiss Mr. Levin’s appeal from sentence.

[15] As to the Crown’s submissions on sentence, we acknowledge the trial judge misapprehended some of the aggravating andmitigating factors in this case. We speak chiefly of the following: (1) the child was held apart from her mother for four months, not twoor three weeks as the trial judge had understood; (2) although not an element of the s. 283(1) offence, the trial judge misapprehendedthat, as a continuing offence, a part of the harbouring or concealing had in fact occurred in the face of a Brazilian court order, of whichMr.

Levin was aware, granting the mother full custody of the child, which is an aggravating factor; regardless, the absence of a courtorder is hardly mitigating; (3) in abducting the child, Mr. Levin intended to force custody and other concessions from his mistress or topunish her by permanently preventing her access to her daughter and, in these circumstances, it was an error to find as mitigating thatMr.

Levin did not intend to permanently deprive the mother of her child if she conceded to his demands; (4) the “regular contact” Mr.Levin maintained with the child’s mother is not a mitigating factor in the circumstances as it simply furthered his illegal efforts to bendher to his will; and (5) a lack of evidence of harm to or trauma suffered by the child is not a mitigating circumstance. [16] In our respectful view, the trial judge’s misapprehension of the circumstances led him to impose a sentence that is disproportionateto the gravity of the offence and to Mr. Levin’s culpability in committing it. Mr.

Levin’s moral blameworthiness in the commission ofthis offence is substantial. To summarise the trial judge’s findings, Mr. Levin was motivated by selfishness and vindictiveness and heused the child as a means to coerce the child’s mother to submit to his will through the deliberate infliction of mental anguish upon herwith respect to the safety and security of her child. He did not act out of a sense of the best interests of the child, however misplaced ormisguided. To him, the child was a mere tool for him to use as he saw fit to achieve his ends.

On the whole of the very seriouscircumstances of this matter, we find the sentence of 15 months’ imprisonment to be demonstrably unfit. We therefore grant the Crownleave to appeal from sentence and grant the Crown’s appeal by setting aside the sentence imposed by the trial judge. [17] As to a fit sentence, we observe that denunciation and general and specific deterrence are the principal sentencing objectives inoffences of this nature. In this respect we also observe that s. 718.2 of the Criminal Code applies in the circumstances.

Furthermore, inthe particular circumstances of this offence, we conclude the sentence imposed must also promote a sense of responsibility in theoffender and acknowledgement of the harm done to victims and to the community. It is apparent to us Mr. Levin still has no remorse forthis offence and sees himself as the victim. In our considered opinion, a fit sentence in all of the very serious circumstances of thisoffence would involve imprisonment in a federal penitentiary (see: R. v. Malik, 2004 CarswellOnt 6400 (S.C.J.), affirmed 2005 CarswellOnt 1825 (C.A.); R. v. Ghodsi, 2013 ABCA 337; R. v.

Rocha (1996), (ON SC), 25 R.F.L. (4th) 315 (Ont.C.J. (Gen. Div.)), affirmed [1996] O.J. No. 2672 (C.A.); and R. v. Finck (2003), (ON CA), 177 C.C.C. (3d) 557(Ont. C.A.)). However, we acknowledge that in consideration of Mr. Levin’s guilty plea the Crown has limited its sentencingsubmissions at trial and before this Court to imprisonment for two years less a day. Given all of these and other considerations, weimpose a sentence of two years’ less a day incarceration, less credit for the 108 days Mr. Levin spent on remand.