R. v. Dawson (E.F.), (1995) 143 N.S.R.(2d) 1 (CA)

• Judge: Hallett, Jones and Chipman, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: July 05, 1995
• Jurisdiction: Nova Scotia
• Citations: (1995), 143 N.S.R.(2d) 1 (CA)

R. v. Dawson (E.F.) (1995), 143 N.S.R.(2d) 1 (CA);

  411 A.P.R. 1

MLB headnote and full text

Her Majesty The Queen (appellant) v. Edward Frank Dawson (respondent)

(C.A.C. No. 110024)

Edward Frank Dawson (appellant) v. Her Majesty The Queen (respondent)

(C.A.C. No. 110603)

Indexed As: R. v. Dawson (E.F.)

Nova Scotia Court of Appeal

Hallett, Jones and Chipman, JJ.A.

July 5, 1995.

Summary:

Common law spouses separated in 1986. The accused husband had consensual de facto custody of their son since then, without a court order. In 1992, the wife applied ex parte for custody and access and obtained a court order that, inter alia, gave her liberal access pending the hearing and prohibited removal of the child from Nova Scotia. The husband was served with the order, but denied the wife access except on his terms (supervised). The husband fled Nova Scotia with the child before the hearing and was found in California two years later. He was extradited to face charges of disobeying a court order and taking the child with intent to deprive the wife of possession, contrary to ss. 127(1) and 283 of the Criminal Code.

The Nova Scotia Supreme Court, in a judgment not reported in this series of reports, convicted the husband of disobeying a court order and sentenced him to five months' imprisonment plus two years' proba­tion. The court acquitted the husband of taking the child with intent. The accused appealed the conviction and sentence. The Crown appealed the acquittal.

The Nova Scotia Court of Appeal allowed the husband's conviction appeal. The court, Jones, J.A., dissenting, allowed the Crown's appeal and ordered a new trial on the taking with intent charge.

Criminal Law - Topic 440

Disobedience and obstruction - Disobedi­ence of court order - Section 127(1) of the Criminal Code made it an offence to dis­obey a court order, without lawful excuse, unless "a punishment or other mode of proceeding is expressly provided by law" - An accused was convicted under s. 127(1) after refusing to permit his com­mon law wife access to their child as provided by a court order - Section 42(1) of the Family Maintenance Act specifically provided that where a person failed to comply with the conditions of a court order the judge could, inter alia, issue a warrant for that person's imprisonment for up to three months - The Nova Scotia Court of Appeal set aside the conviction - Section 42(1) of the Family Maintenance Act clearly provided for a punishment or other mode of pro­ceeding expressly pro­vided by law for the enforcement of cus­tody orders under that Act - See para­graphs 17 to 27.

Criminal Law - Topic 1454

Abduction of child - Taking defined - Common law spouses separated in 1986 - The father had de facto custody of their child since then - In 1992 the mother obtained an ex parte court order giving her access and sought custody - The father fled with the child before the custody hearing and was found in California two years later - The trial judge acquitted the father of taking the child with intent to deprive the mother of possession (Criminal Code, s. 283(1)), because the mother did not have custody or physical possession at the time of the taking - The Nova Scotia Court of Appeal set aside the acquittal - The word "take" did not require that the parent deprived of possession have physi­cal control over or custody of the child at the time of the taking - A parent who takes a child with intent to deprive the other parent of actual possession (custody) or an existing right to possession was guilty under s. 283(1) - Notwithstanding there was no custody order and the father had custody by consent, the mother had a statutory right to possession (custody) - The court ordered a new trial to determine whether the father intended to put the child beyond the reach of the mother's ability to regain custody of the child and whether he intended to deprive her of possession - See paragraphs 54 to 78.

Cases Noticed:

Nova Scotia (Attorney General) v. Lohnes (1982), 55 N.S.R.(2d) 592; 114 A.P.R. 592; 30 R.F.L.(2d) 360 (C.A.), refd to. [para. 20].

R. v. Clement, [1981] 2 S.C.R. 468; 38 N.R. 302; 10 Man.R.(2d) 92; 61 C.C.C.(2d) 449, refd to. [para. 26].

R. v. Enkirch (1982), 41 A.R. 387; 1 C.C.C.(3d) 165 (C.A.), refd to. [para. 32].

R. v. Cook (1984), 63 N.S.R.(2d) 35; 141 A.P.R. 35; 12 C.C.C.(3d) 471 (C.A.), refd to. [para. 33].

R. v. Petropoulos (1990), 59 C.C.C.(3d) 393 (B.C.C.A.), refd to. [para. 36].

R. v. Ilczyszyn (1988), 29 O.A.C. 392; 45 C.C.C.(3d) 91 (C.A.), refd to. [para. 38].

R. v. McDougall (1990), 42 O.A.C. 223; 62 C.C.C.(3d) 174 (C.A.), refd to. [para. 39].

R. v. Chartrand (J.), [1994] 2 S.C.R. 864; 170 N.R. 161; 74 O.A.C. 257; 91 C.C.C.(3d) 396, refd to. [para. 40].

R. v. Levesques (1984), 67 N.S.R.(2d) 57; 155 A.P.R. 57; 15 C.C.C.(3d) 413 (Co. Ct.), refd to. [para. 63].

Young v. Young, [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; 49 R.F.L.(3d) 117, refd to. [para. 67].

R. v. Cassidy, [1989] 2 S.C.R. 345; 100 N.R. 321; 36 O.A.C. 1; 50 C.C.C.(3d) 193, refd to. [para. 78].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 127(1) [para. 23]; sect. 214 [para. 34]; sect. 281, sect. 282(1), sect. 283(1) [para. 29]; sect. 283(2) [para. 75].

Family Maintenance Act, R.S.N.S. 1989, c. 160, sect. 18(2) [para. 24]; sect. 18(3)(c), sect. 18(3)(k) [para. 22]; sect. 42(1) [para. 24].

Authors and Works Noticed:

Bala, Nicholas, Criminal Code Amend­ments, 21 C.R.(4th) 365, p. 372 [para. 56].

Concise Oxford Dictionary (7th Ed. 1982) [para. 57].

Mewett, Alan W., and Manning, Morris, Criminal Law (2nd Ed. 1985), p. 579 [para. 43].

Russell on Crime (12th Ed.), p. 730 [para. 44].

Counsel:

William Delaney, for the Crown;

Jean A. Swantko, for Edward Frank Daw­son.

These appeals were heard on March 21, 1995, before Hallett, Jones and Chipman, JJ.A., of the Nova Scotia Court of Appeal.

On July 5, 1995, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Jones, J.A., dissenting in part - see paragraphs 1 to 52;

Hallett, J.A. (Chipman, J.A., concurring) - see paragraphs 53 to 83.