Toronto Sun

October 27, 2001

Triplet mom free

Verdict opens door to parental abduction, warns trio's father

By BRODIE FENLON and LAURA CZEKAJ -- Toronto Sun

STRATFORD -- The door is open for non-custodial parents to abduct their children, the father of Stratford triplets says.

Craig Merkley was responding to a jury decision yesterday that found his former wife not guilty of abducting eight-year-old siblings Peter, Gray and Olivia and whisking them off to Central America.

"If there ever was an injustice, this is it," said a shaken Merkley, who has custody of the children.

"It's open season for people who want to abduct their kids."

Carline Vandenelsen pleaded not guilty by reason of necessity to abducting the children on Oct. 14, 2000, saying she feared her access to the kids was about to be cut off by a family court judge.

At the time, she was allowed to see them every other Saturday.

The eight-man, four-woman jury deliberated for nearly 12 hours before reaching its decision yesterday.

WEPT AT VERDICT

Vandenelsen wept when the verdict was announced.

"Justice was served," she said. "I think the jury heard that my actions spoke of the love I have for my children."

In charging the jurors Thursday, Justice James Donnelly said they must decide whether Vandenelsen took the children because she honestly believed they were in emotional danger.

"The court must be satisfied that the taking of any young person was necessary to protect the young person from danger of imminent harm," Donnelly told them.

The triplets went missing after Vandenelsen failed to return them from a supervised day visit.

Police later learned she had secretly cashed in her investments and sold her house weeks before the abduction.

The children were recovered 31/2 months later in Mexico after police chased dozens of tips, including several generated by an episode of America's Most Wanted.

Merkley wondered whether the verdict had anything to do with the accused's gender.

"If the shoe was on the other foot, I'd be in leg irons," he said.

Hamish Stewart, a criminal law professor at University of Toronto, said it's unlikely the verdict will open the door to abductors because it's difficult to meet the criteria of "by reason of necessity." Still, the defence is rare, he said.

"The Supreme Court has indicated that this is a pretty narrow defence and so it's unusual to see it raised and it's more unusual to see it succeed," he said.

PERCEIVED URGENCY

In order for an accused to plead not guilty by reason of necessity, a reasonable person must perceive an emergency requiring immediate action, that there's no legal way out and that the benefits outweigh the harm.

"It 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," Stewart said.

In evidence read to the jury, Peter Merkley described how he and his siblings were smuggled across borders in the trunk of a car.

Copyright © 2001, Canoe Limited Partnership.