R. v. M.E-H., (2015) 368 B.C.A.C. 89 (CA)

• Judge: Kirkpatrick, Garson and MacKenzie, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 18, 2015
• Jurisdiction: British Columbia
• Citations: (2015), 368 B.C.A.C. 89 (CA);2015 BCCA 54

R. v. M.E-H. (2015), 368 B.C.A.C. 89 (CA);

    633 W.A.C. 89

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. FE.022

Regina (respondent) v. M.E-H. (appellant)

(CA041649; 2015 BCCA 54)

Indexed As: R. v. M.E-H.

British Columbia Court of Appeal

Kirkpatrick, Garson and MacKenzie, JJ.A.

February 18, 2015.

Summary:

Police responded to a "domestic dispute" at the accused's home. When the police left, the accused packed up his and his four children's belongings and drove to Seattle, Washington. He then checked into a hotel and purchased airline tickets for himself and the children to go to Egypt. Two days later, the accused was stopped from boarding the flight. The accused was charged with four counts of child abduction (Criminal Code, s. 283(1)).

The British Columbia Provincial Court found the accused guilty. The trial judge was satisfied beyond a reasonable doubt that the accused did not have his wife's consent to take the children to Egypt and that it was his specific intent to deprive her of possession of the children. The accused appealed, submitting that: (1) the Crown failed to establish that it obtained the required written intent of the Attorney General to institute the proceedings; (2) the trial judge erred in considering the wife's obtaining of ex parte court orders (denying him parenting time and a protection order in her favour) and her prior consistent statements; and (3) the trial judge erred in applying the specific intent requirement to the facts; and (4) the trial judge failed to consider relevant evidence.

The British Columbia Court of Appeal dismissed the appeal. The Attorney General's consent to instituting proceedings was presumed unless it was challenged at trial, which it was not. The wife's prior consistent statements were admissible as circumstantial evidence of a fact in issue (i.e., whether wife consented to the accused taking the children to Egypt). The trial judge did not use the prior consistent statements for the impermissible purpose of proving that the accused intended to deprive the wife of possession of the children. It was properly used only as circumstantial evidence of the wife's state of mind (that she feared the accused would take the children to Egypt) and to show her conduct.

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 23

General principles - Prosecution of crime - Consent of Attorney General - Requirement for - See paragraphs 23 to 31.

Criminal Law - Topic 1452

Abduction of child - Intention or mens rea - See paragraphs 56 to 70.

Criminal Law - Topic 1453

Abduction of child - Defences - Consent - See paragraphs 56 to 70.

Evidence - Topic 1031

Relevant facts - Relevance and materiality - Admissibility - Prior consistent statements - See paragraphs 32 to 55.

Cases Noticed:

R. v. Chartrand (J.), [1994] 2 S.C.R. 864; 170 N.R. 161; 74 O.A.C. 257, refd to. [para. 16].

R. v. McDougall (1990), 42 O.A.C. 223; 1 O.R.(3d) 247 (C.A.), refd to. [para. 16].

R. v. Falkenberg (1974), 16 C.C.C.(2d) 525 (Ont. C.A.), refd to. [para. 27].

R. v. Breckenridge (1905), 10 O.L.R. 459; 10 C.C.C. 180 (Div. Ct.), refd to. [para. 27].

R. v. Minot (P.) (2011), 304 Nfld. & P.E.I.R. 212; 944 A.P.R. 212; 2011 NLCA 7, refd to. [para. 28].

R. v. Samida et al. (1989), 78 Sask.R. 274 (Q.B.), refd to. [para. 28].

R. v. Spicer (1992), 120 A.R. 139; 8 W.A.C. 139; 1 Alta. L.R.(3d) 383 (C.A.), refd to. [para. 28].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 41].

R. v. M.C. (2014), 325 O.A.C. 1; 2014 ONCA 611, refd to. [para. 41].

R. v. G.C., [2006] O.A.C. Uned. 274 (C.A.), refd to. [para. 46].

R. v. Ay (1994), 59 B.C.A.C. 161; 98 W.A.C. 161; 93 C.C.C.(3d) 456 (C.A.), refd to. [para. 46].

R. v. Evans (B.J.), [1993] 2 S.C.R. 629; 153 N.R. 212; 28 B.C.A.C. 81; 47 W.A.C. 81; 104 D.L.R.(4th) 200, refd to. [para. 46].

R. v. Stirling (B.J.), [2008] 1 S.C.R. 272; 371 N.R. 384; 251 B.C.A.C. 62; 420 W.A.C. 62; 2008 SCC 10, refd to. [para. 49].

R. v. Fair (J.E.) (1993), 67 O.A.C. 251; 16 O.R.(3d) 1; 85 C.C.C.(3d) 457 (C.A.), refd to. [para. 49].

R. v. Hehn (G.) (2008), 254 B.C.A.C. 215; 426 W.A.C. 215; 2008 BCCA 170, refd to. [para. 53].

R. v. Dawson (E.F.), [1996] 3 S.C.R. 783; 203 N.R. 254; 155 N.S.R.(2d) 241; 457 A.P.R. 241, refd to. [para. 56].

Kirton v. Mattie (2014), 365 B.C.A.C. 186; 627 W.A.C. 186; 2014 BCCA 513, refd to. [para. 65].

R. v. J.M.H., [2011] 3 S.C.R. 197; 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 68].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 68].

Counsel:

J.R. Ray, for the appellant;

G.S. Comer, for the Crown/respondent.

This appeal was heard on January 8, 2015, at Vancouver, B.C., before Kirkpatrick, Garson and MacKenzie, JJ.A., of the British Columbia Court of Appeal.

On February 18, 2015, MacKenzie, J.A., delivered the following judgment for the Court of Appeal.