Globe and Mail

Abduction case muddies legal waters, experts say

Saturday, October 27, 2001
The Globe and Mail

The acquittal of a Stratford mother yesterday on charges of abducting her triplets has sent a troubling message to the losers of custody battles, family-law experts say.

The decision by a jury that Carline Vandenelsen did not commit a crime when she scooped the eight-year-old children from their father and took them to Mexico for three months tells Canadians that "if you disagree with a court order you can take matters into your own hands as long as you honestly believe it's the best thing," Philip Epstein, who teaches law at the University of Toronto, said yesterday.

Mr. Epstein, who answered questions on a televised call-in show immediately after the Stratford court released its verdict, said he spoke to a barrage of angry callers who felt that there is a double standard for fathers and mothers who defy custody orders, and that the ruling will encourage more abductions.

"There was a real sense of outrage," he said.

The jury of eight men and four women accepted the "defence of necessity" put forward by Ms. Vandenelsen's lawyer, Clay Powell, who argued that the mother feared harm to the children as a result of separation from her.

"Desperate people do desperate things, and maybe the most desperate of all when your children are on the line," Mr. Powell told the jury this week.

Crown attorney Henry Van Drunen countered that "the harm inflicted [by the abduction] far exceeded any harm that was avoided."

Mr. Epstein said the judge should not have allowed the defence of necessity to go to the jury, which clearly felt sorry for Ms. Vandenelsen and was not privy to the facts gathered for the family-court trial in which she lost custody to Craig Merkley.

Another legal expert, Hamish Stewart, a professor at U of T, said the defence of necessity is rarely used and is held to be "pretty narrow" by the Supreme Court.

Not guilty by reason of necessity means a reasonable person must perceive an emergency situation requiring immediate action and that the benefits outweigh the harm, Prof. Stewart said.

He likened it to breaking the speeding laws to get someone to hospital.

Mr. Merkley, shaking with emotion after the judgment, told reporters the court had "just declared open season [for] anyone who wants to abduct their children."

But Prof. Hamish said other would-be abductors will face difficulty meeting the conditions of the defence of necessity. "[The acquittal] certainly does open up some doors, but it's not quite the same as saying it's an open season for people to disregard custody orders," Prof. Stewart said, noting that the Supreme Court prohibited Robert Latimer from using the defence in his trial for murder in the death of his disabled daughter.

Ms. Vandenelsen, 39, greeted the verdict with tears of joy. "Justice was served. I think the jury heard that my actions spoke of the love I have for my children."

Copyright 2001 Globe Interactive, a division of Bell Globemedia Publishing Inc.