Indictment did not charge accused with detaining or harbouring son

IN CONTRAVENTION OF CUSTODY ORDER

Indictment did not charge accused with detaining or harbouring son

Appeal by accused from conviction for abduction of his son in contravention of custody order. Son was born on May 15, 1990. Indictment charged that between April 30 and July 1, 1995 accused took away his son in contravention of custody order, with intent to deprive son’s mother of possession of her son. Custody order was made by provincial court judge on May 11, 1995 and it gave mother interim custody. Sometime between December 1994 and May 1995 accused sent son to Iran, where he remained for 12 years. Accused claimed he sent son in December 1994 and mother consented since she co-signed son’s passport application. Crown claimed that accused was guilty either because he sent son in May 1995, shortly before or after custody order was made; or he failed to return son once order was made. Accused’s defence that he had consent had air of reality to it and trial judge properly instructed jury about it. However, he also instructed jury that it could convict accused either of two bases advanced by Crown. These bases were that he arranged to send son to Iran in contravention of custody order, or that he failed to return son to mother in compliance with court order. Appeal allowed. Conviction set aside and new trial was ordered. Judge instructed jury that it could convict on second basis, which was not particularized in indictment, and that basis should not have been left with jury. Indictment charged accused only with taking son away and not with detaining or harbouring him. Court had jurisdiction to amend indictment but it would not do so because amendment would prejudice accused because it would require accused to meet evidence not presented at trial.
R. v. Sadeghi-Jebelli (Dec. 12, 2013, Ont. C.A., John Laskin J.A., E.E. Gillese J.A., and G.R. Strathy J.A., File No. CA C55732) 110 W.C.B. (2d) 657.