R. v. L.D., (2014) 585 A.R. 41 (QB)

• Judge: Tilleman, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 17, 2014
• Citations: (2014), 585 A.R. 41 (QB);2014 ABQB 31

R. v. L.D. (2014), 585 A.R. 41 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. AU.036

Her Majesty the Queen (Crown) v. L.D. (accused)

(100743673Q1; 2014 ABQB 31)

Indexed As: R. v. L.D.

Alberta Court of Queen's Bench

Judicial District of Medicine Hat

Tilleman, J.

January 17, 2014.

Summary:

Following a highly contested guardianship case, a father and grandmother were appointed co-guardians of a child (V.). V.'s mother (the accused) remained a guardian as well but had no rights or responsibilities. Late one night, the accused took V. from the father's home and transported her to a town several hours away. She was charged with child abduction (Criminal Code, s. 282(1)(a)), and breaking and entering and committing an indictable offence therein (s. 348(1)(b)).

The Alberta Court of Queen's Bench found the accused guilty of child abduction but not guilty of breaking and entering and committing an indictable offence therein.

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 91

General principles - Estoppel - Collateral issues decided in prior proceedings - Following a highly contested guardianship case, a father and grandmother were appointed co-guardians of a child (V.) by a provincial court judge - V.'s mother (L.D.) felt that the guardianship trial was unfair and that the father had lied to the court - She took V. from the father's house - At her trial for child abduction charges, L.D. asked the court to determine whether there was a valid custody order in place - She argued that the provincial court judge did not have jurisdiction to make an order respecting V. - The Alberta Court of Queen's Bench stated that "[T]he criminal proceeding against the Accused is not the place to determine such an issue. If the Accused is convinced that the Provincial Court lacked jurisdiction to make the custody order, then the order would have to be appealed and argued on that issue. Addressing it in the current proceeding would be a collateral attack on the order..." - See paragraphs 141 to 144.

Criminal Law - Topic 203

Common law defences - Necessity - Following a highly contested guardianship case, a father and grandmother were appointed co-guardians of a child (V.) - V.'s mother (L.D.) remained a guardian as well but had no rights or responsibilities - L.D. did not trust the father or Child and Family Services - She believed that V.'s legal guardians were irresponsible - Late one night, L.D. went to the father's home and observed the family through the window - The father's sister was stumbling around like she was drunk - V. was walking around the house - At 3:00 a.m., when V. was alone in the kitchen, L.D. took her from the house and transported her to a town seven hours away - The Alberta Court of Queen's Bench found L.D. guilty of abduction - The court rejected L.D.'s submission that the defence of necessity applied - There was no imminent harm to V. at the time of the abduction - While it was possible that danger might have befallen her while she walked around the house late at night, theoretical danger was not sufficient to qualify for imminent harm - Moreover, if L.D. thought that V. was in danger, other remedies were available to prevent such danger, such as appealing the guardianship order - Distrust of authorities did not displace the objective nature of the test in s. 285 of the Criminal Code - L.D.'s actions were an attempted remedy of self-help to rectify court rulings which she felt were wrong - See paragraphs 119 to 140.

Criminal Law - Topic 1453

Offences against person and reputation - Abduction of child - Defences - [See Criminal Law - Topic 203 ].

Criminal Law - Topic 1802

Offences against property - Breaking and entering - Intention to commit an "offence therein" - [See Criminal Law - Topic 1803 ].

Criminal Law - Topic 1803

Offences against property - Breaking and entering - What constitutes breaking and entering - Following a highly contested guardianship case, a father and grandmother were appointed co-guardians of a child (V.) - V.'s mother (L.D.) remained a guardian as well but had no rights or responsibilities - Late one night, L.D. and her boyfriend (J.N.) went to the father's home and observed V. standing alone in the kitchen - L.D. stood outside a patio door, which was slightly open, and motioned for V. to leave the house, which she did - After putting V. in a vehicle, L.D. instructed J.N. to go inside the home and retrieve V.'s blanket, which he did - The Alberta Court of Queen's Bench found L.D. guilty of abduction (count 1), but not guilty of breaking and entering and committing an indictable offence therein (count 2) - Regarding count 2, L.D. did not break and enter the home by standing outside the patio door - The Crown's alternative argument was that L.D. was guilty of count 2 by virtue of being a party to the offence committed by J.N. when he entered the home and took V.'s blanket - The court agreed that L.D. was a party to the break and enter, but found L.D. not guilty because it was left with a reasonable doubt as to whether an indictable offence was committed therein - Since the court was unable to determine who owned the blanket, there was a reasonable doubt as to whether it was taken fraudulently or without colour of right with the intent to deprive the owner of it - See paragraphs 145 to 167.

Criminal Law - Topic 1807

Offences against property - Breaking and entering - Ownership or interest in property taken - [See Criminal Law - Topic 1803 ].

Criminal Law - Topic 1818

Offences against property - Breaking and entering - Being in a dwelling with intent - Following a highly contested guardianship case, a father and grandmother were appointed co-guardians of a child (V.) - V.'s mother (L.D.) remained a guardian as well but had no rights or responsibilities - Late one night, L.D. and her boyfriend (J.N.) went to the father's home and observed V. standing alone in the kitchen - L.D. stood outside a patio door, which was slightly open, and motioned for V. to leave the house, which she did - After putting V. in a vehicle, L.D. instructed J.N. to go inside the home and retrieve V.'s blanket, which he did - L.D. was charged with breaking and entering and committing an indictable offence therein (Criminal Code, s. 348(1)(b)) by virtue of being a party to the offence committed by J.N. when he entered the home and took V.'s blanket - The Alberta Court of Queen's Bench found L.D. not guilty because it was unable to determine who owned the blanket - The court also rejected the Crown's argument that L.D. should be found guilty of breaking and entering with the intent to commit an indictable offence (s. 348(1)(a)), which was an included offence in s. 348(1)(b) - J.N. only entered the house to get the blanket - This evidence rebutted the presumption in s. 348(2)(a) as it demonstrated that J.N. entered the house with the sole intention of taking V.'s blanket for V.'s use, and that he did not enter the house with the intent to commit an unspecified indictable offence - See paragraphs 168 to 170.

Criminal Law - Topic 2747

Attempts, conspiracies, accessories and parties - Parties to offences - What constitutes a party - [See Criminal Law - Topic 1803 ].

Criminal Law - Topic 4458

Procedure - Verdicts - Included offences - Inclusion in break, enter and theft - [See Criminal Law - Topic 1818 ].

Guardian and Ward - Topic 364

Appointment and qualifications of guardian - Practice - Judicial review or appeal - [See Criminal Law - Topic 91 ].

Cases Noticed:

R. v. Liang (V.H.) (2008), 446 A.R. 167; 442 W.A.C. 167; 2009 ABCA 2, refd to. [para. 91].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321, refd to. [para. 92].

R. v. Vandenelsen (C.A.) (2003), 175 O.A.C. 71; 177 C.C.C.(3d) 332 (C.A.), appld. [para. 123].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1, refd to. [para. 124].

R. v. Latimer (R.W.) (2001), 264 N.R. 99; 203 Sask.R. 1; 240 W.A.C. 1; 2001 SCC 1, refd to. [para. 127].

R. v. Adams (K.) et al. (1993), 60 O.A.C. 368; 12 O.R.(3d) 248 (C.A.), refd to. [para. 128].

R. v. P.Z. (2013), 544 A.R. 234; 567 W.A.C. 234; 2013 ABCA 97, refd to. [para. 130].

R. v. E.K. (2010), 262 O.A.C. 213; 2010 ONCA 366, refd to. [para. 131].

Quebec (Procureur général) v. Laroche et al. (2002), 295 N.R. 291; 2002 SCC 72, refd to. [para. 142].

R. v. Sarson (J.A.), [1996] 2 S.C.R. 223; 197 N.R. 125; 91 O.A.C. 124, refd to. [para. 142].

Clarke et al. v. Phinney (1895), 25 S.C.R. 633, refd to. [para. 143].

R. v. Wilson, [1983] 2 S.C.R. 594; 51 N.R. 321; 26 Man.R.(2d) 194, refd to. [para. 143].

R. v. Johnson, [1977] 2 S.C.R. 646; 14 N.R. 362; 34 C.C.C.(2d) 12, consd. [para. 150].

R. v. Greyeyes (E.R.), [1997] 2 S.C.R. 825; 214 N.R. 43; 152 Sask.R. 294; 140 W.A.C. 294, refd to. [para. 155].

R. v. Huard (S.G.) (2013), 311 O.A.C. 181; 2013 ONCA 650, agreed with [para. 157].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 171].

Counsel:

Brandy L. Shaw, for the Crown;

Marc F. Crarer, for the accused.

This matter was heard before Tilleman, J., of the Alberta Court of Queen's Bench, Judicial District of Medicine Hat, who delivered the following reasons for judgment on January 17, 2014.