Stratford Beacon-Herald

Judge erred in instructions to jury: Crown

By CP and Staff
Stratford Beacon-Herald
Thursday, November 15, 2001

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.

Justice James Donnelly made errors in law in his charge to the jury that eventually acquitted fugitive mom Carline Vandenelsen last month, the Crown argues in a notice of appeal.

Ms. Vandenelsen, 39, was acquitted in October on three counts of abduction after she took the children on a three-month trek through the U.S. 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, dusty Criminal Code clause which can absolve a person of guilt if the benefits of breaking the law outweigh the harm done.

To acquit by reason of necessity, a reasonable person must conclude there was an emergency situation 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,” Justice Donnelly told jurors.

But Justice Donnelly should not have allowed 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.

Justice Donnelly also made other mistakes, including telling 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 to discuss details of the Crown’s appeal Wednesday.

“If I do that, I start to basically argue our case in the media,” Mr. Crawley said. “I can’t really comment beyond saying those are our grounds (for appeal).”

The verdict raised a lot of 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,” Mr. Epstein said Wednesday.

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,” Mr. Epstein said. “It could potentially set a very dangerous precedent.”

Ms. Vandenelsen’s international odyssey with Peter, Gray and Olivia Merkley, 8, began in October 2000, when the triplets 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 U.S. and Mexico in the trunk of a car.

More than three months later, police following Vandenelsen’s trail caught up with her in Acapulco, Mexico. The children were reunited in January with their father, Craig Merkley.

Mr. Merkley was not available for comment Wednesday. Ms. Vandenelsen’s lawyer, Clay Powell, said Monday he welcomed the appeal because its dismissal would “silence the critics.”

Mr. Powell did not immediately return phone calls Wednesday.

Copyright © 2001, The Beacon Herald