R. v. K.P.C., (2009) 463 A.R. 216 (PC)

• Judge: Semenuk, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: March 05, 2009
• Citations: (2009), 463 A.R. 216 (PC);2009 ABPC 62

R. v. K.P.C. (2009), 463 A.R. 216 (PC)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. MR.085

Her Majesty The Queen v. K.P.C.

(080582844P1-01-001, 002; 2009 ABPC 62)

Indexed As: R. v. K.P.C.

Alberta Provincial Court

Semenuk, P.C.J.

March 5, 2009.

Summary:

The accused mother was charged under s. 282 of the Criminal Code with abducting her 10 year old son and eight year old daughter contrary to a court order. The mother removed the children from Calgary and took them to British Columbia, where she was arrested. The mother denied knowledge of the provisions in the Consent Final Variation Order that granted the father custody and precluded her from removing the children from Alberta without a court order (lack of mens rea) and, alternatively, that the abduction was justified as the children were in imminent danger if they continued to reside with the father (defence of necessity).

The Alberta Provincial Court found the accused guilty. The court disbelieved the accused's testimony that she lacked knowledge of the Consent Final Variation Order and there was no air of reality to the necessity defence.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 203

General principles - Common law defences - Necessity - [See Criminal Law - Topic 1452 ].

Criminal Law - Topic 1452

Abduction of child - Intention or mens rea - Parents of 10 and eight year old children had separated in 2004 - The children initially lived with the mother in British Columbia - The father moved to Alberta - The mother, being investigated by social services authorities in B.C., sent the children to live with the father - The father obtained an Ex Parte Interim Order and a Parenting Order, giving him custody - The mother evaded service (would not answer her phone or disclose her address) - The father proposed moving back to B.C. with the children and the mother was advised of a court date where the father sought a Final Variation Order - The mother appeared, was given copies of all previous court orders, and signed the Consent Final Variation Order, which granted custody to the father and prohibited the removal of the children from Alberta without consent or a court order - After the court hearing, the mother asked for permission to take the children to a restaurant for several hours - Arrangements were made to drop them off at the restaurant and to pick up the children later - Instead, the mother boarded a bus to B.C. with the children - The mother was charged under s. 282 of the Criminal Code with abducting her children contrary to a valid and subsisting custody order - The mother's defence was that she had no knowledge of the provisions of the court order requiring consent to remove the children from Alberta (mens rea) and, alternatively, that she had information that the children were being abused and were in imminent danger if left in their father's care (defence of necessity) - The Alberta Provincial Court found the accused guilty of abduction - Her testimony was not credible - The Crown proved beyond a reasonable doubt that she had knowledge of the court order and knew that she was violating it - There was no air of reality to the necessity defence.

Criminal Law - Topic 1453

Abduction of child - Defences - [See Criminal Law - Topic 1452 ].

Cases Noticed:

R. v. Ilczyszyn (1988), 29 O.A.C. 392; 45 C.C.C.(3d) 91 (C.A.), refd to. [para. 243].

R. v. McDougall (1990), 42 O.A.C. 223; 62 C.C.C.(3d) 174 (C.A.), refd to. [para. 243].

R. v. Hammerbeck (1991), 2 B.C.A.C. 123; 5 W.A.C. 123; 68 C.C.C.(3d) 161 (C.A.), refd to. [para. 243].

R. v. Vandenelsen (C.A.) (2003), 175 O.A.C. 71; 177 C.C.C.(3d) 332 (C.A.), refd to. [para. 2343].

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. 244].

R. v. Van Herk (1984), 53 A.R. 239; 12 C.C.C.(3d) 359 (C.A.), refd to. [para. 244].

R. v. Adams (K.) et al. (1993), 60 O.A.C. 368; 79 C.C.C.(3d) 193 (C.A.), refd to. [para. 244].

R. v. D.W. (1991), 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397 (S.C.C.). [para. 261].

R. v. C.L.Y. (2008), 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 261].

R. v. C.J.L. (2004), 190 Man.R.(2d) 177; 335 W.A.C. 177; 197 C.C.C.(3d) 407 (C.A.), refd to. [para. 262].

R. v. Lake (P.E.) (2005), 240 N.S.R.(2d) 40; 763 A.P.R. 40; 203 C.C.C.(3d) 316 (C.A.), refd to. [para. 263].

R. v. Kamboj (B.S.), [2009] A.R. Uned. 191; 2009 ABPC 37, refd to. [para. 265].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 282, sect. 283, sect. 284, sect. 285 [para. 242].

Counsel:

P. McCluskey, for the Crown;

L. Leung, for the accused.

This matter was heard at Calgary, Alberta, before Semenuk, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on March 5, 2009.