Crown appeals jury's decision to free motherBy JAMES MCCARTEN
Thursday, November 15, 2001 Print Edition, Page A25
The Globe and Mail
A Superior Court judge wrongly instructed the jury that acquitted a mother of abducting her triplets on the grounds she was acting in the best interests of the children, Crown lawyers say.
Mr. Justice James Donnelly made errors in law in his charge to the jury that acquitted Carline Vandenelsen last month, the Crown argues in a notice of appeal.
Ms. Vandenelsen, 39, of Stratford, Ont., was acquitted last month on three counts of abduction after she took the children on a three-month trek through the United States and Mexico as she fled a bitter custody battle.
She was found not guilty by reason of necessity, a rare verdict arising from an obscure Criminal Code clause which can absolve a person if the benefits of breaking the law outweigh the harm of doing so.
To acquit by reason of necessity, a reasonable person must conclude that there was an emergency requiring immediate action from which there was no legal escape.
"The court must be satisfied that the taking of any young person was necessary to protect the young person from danger of imminent harm," the judge told the jurors.
But Judge Donnelly should not have allowed the jurors to acquit Ms. Vandenelsen on the "defence of necessity" because the facts of the case didn't support it, say the documents, filed last week with the Ontario Court of Appeal.
"The learned trial judge erred in law in leaving to the jury the statutory defence of necessity . . . when there was no 'air of reality' to that defence on the evidence adduced," the notice says.
Judge Donnelly also made other mistakes, among them telling the jurors that rather than Ms. Vandenelsen being required to prove the abductions were necessary, the Crown was required to prove they weren't, the Crown says.
"The learned trial judge's charge to the jury failed to fully and fairly set out the Crown's theory of the case and the relevant supporting evidence for the jury," the notice says.
Brendan Crawley, a spokesman for the Ministry of the Attorney-General, refused yesterday to discuss details of the Crown's appeal. "If I do that, I start to basically argue our case in the media. I can't really comment beyond saying those are our grounds [for appeal]."
The verdict raised eyebrows in the legal community, making an appeal by the Crown a foregone conclusion, said Philip Epstein, a lawyer and lecturer at the University of Toronto.
"In the eyes of many, particularly in the eyes of lawyers, it is an unusual result," he said yesterday.
Should the verdict stand, non-custodial parents across Canada might be encouraged to take the law into their own hands simply because they feel their children would be better off, he added.
"If the defence of necessity is available in those circumstances, it sends a very strange message. It could potentially set a very dangerous precedent."
Ms. Vandenelsen's international odyssey with Peter, Gray and Olivia Merkley began in October of 2000, when the three children were whisked away during a supervised day visit with their mother.
In evidence read to the jury at trial, Peter Merkley described how he and his brother and sister were smuggled into the United States, then Mexico, in the trunk of a car.
More than three months later, police following Ms. Vandenelsen's trail caught up with her in Acapulco, Mexico.
In January, the children were reunited with their father, Craig Merkley.
Mr. Merkley was not available for comment yesterday. Ms. Vandenelsen's lawyer, Clay Powell, said on Monday that he welcomed the appeal because its dismissal would "silence the critics."
Mr. Powell did not immediately return phone calls yesterday.
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