Bigelow and his wife were separated and his wife had custody of their child. The appellant was entitled to access every second weekend as well as for two weeks during the summer and for a specified period at Christmas. On July 10, 1981 he flew to London from Alberta (where he was living) and requested access for the weekend which his wife refused and subsequently notified the police. The police advised the wife to give the child to the appellant as the order granted him weekend access. Bigelow was also advised that he would be liable for contempt of court or abduction if he did not return the child by 7:00pm on Sunday.
The wife spoke to the appellant the following day and discovered he had returned to Calgary with the child and stated that he was not going to return the child but that he intended to keep him. On July 24 the wife travelled to Calgary and returned to Ontario with the child who had been picked up by the Calgary police.
Bigelow was convicted under s. 250(1)(a) of the Criminal Code (now s. 282), which he appealed on the basis that an Ontario court did not have sufficient jurisdiction.
- Do Ontario courts have jurisdiction to entertain a charge under s. 250(1)(a) (now s. 282) when the child had been taken from Ontario to Alberta?
The court, in a per curiam decision, held that s. 434(b) (now 476(b)) should be construed flexibly and sensibly and courts should avoid restricting its operation by interpreting it narrowly or technically. There are three categories of cases to which the section applies:
- continuity of operation extending from that province to other provinces - where the criminal action began in one district, then was continued and completed in another
- commission of an overt act in that province - overt acts committed within a province are grounds for assumption of jurisdiction by that province when those acts are referable to or in furtherance of a criminal plan extending beyond that province (must be elements of the offence and not simply preparation)
- registration of effects in that province from acts committed in other provinces.
In reality, an offence under s. 250(1)(a) of the Criminal Code (now s. 282) is an offence against the custodial rights of the mother – not against the child. The paramount consideration in the award of custody is the welfare of the child which is imperiled by any interference with custodial rights. The offence does not, then, confine the offence to the single act of keeping the child in Alberta but rather describes a crime which could also have ramifications in Ontario. As a result, there is no reason Ontario could not have jurisdiction.
Looking at the facts in the case at bar, it is clear that the offence both began and produced its final effects in Ontario. Bigelow must have formed the intent for the offence prior to boarding the plane in Ontario, and then performed an overt act in furtherance of that intention when he stepped onboard. While this was a continuing offence which also continued while he was in Alberta, the effects continued to be felt in Ontario where the mother was residing. The gravamen of the offence is the depravation of custody from the mother, and thus it is appropriate that Ontario exercise jurisdiction.
Section 476 must be interpreted liberally so as to bring those committing crimes across provinces to justice.