COURT OF APPEAL FOR ONTARIO
MORDEN, LASKIN and FELDMAN JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Scott C. Hutchison For the appellant
Appellant
- and -
Clay Powell, Q.C.
For the respondent
C.A.V.
Respondent
HEARD: January 14, 2003
On appeal from acquittals by Justice James M. Donnelly of the Superior Court of Justice sitting with a jury on October 26, 2001.
1The respondent mother surreptiously abducted her children, triplets, from their father, who had lawful custody of the children pursuant to a court order, and took them to Mexico. Eventually the children were found and returned to their father in Ontario. The respondent was charged with three counts of abduction contrary to a custody order (s. 283(1) of the Criminal Code, R.S.C. 1985, c. C-46). She was tried by Donnelly J. with a jury and acquitted.
2The Crown appeals the acquittals based on errors of law that it submits the trial judge made in leaving the defence of necessity with the jury when there was no “air of reality” to it and in describing the elements and onus of the statutory defence of necessity to the jury.
3I agree with the Crown’s primary submission that there was no air of reality to the defence of necessity and, as a result, it should not have been left to the jury at all. For the reasons that follow, I would allow the appeal, set aside the acquittals and order a new trial.
FACTS
4Essentially, the respondent had lost custody of the children to the father in March, 2000. The custody trial was adjourned for six months, at which time the trial judge intended to deal with whether the respondent would retain any right to access visits with her children. Fearing that the court would cut off her access completely, and that the children would thereby be deprived of any contact with their mother (herself), she cashed in her assets and prepared to abscond with the children on one of her last access visits. She hid the children in her car and drove to the United States and Panama, then returned to Mexico, where they lived for a few months until they were found and returned to Ontario.
5In his charge to the jury, the trial judge outlined the evidence in a manner that highlighted the situation that the respondent perceived she faced. He described it as follows:
The background evidence was, Mr. M. [the father] is employed with a conservation authority at London. Ms. C.A.V. taught high school in Waterloo. They moved to Stratford in 1990 as a mid-point between work places. Mr. M. testified that within two years following the birth of the children [triplets, 2 boys and 1 girl] on, 1993, he became concerned about Ms. C.A.V.’s parenting ability. In September 1995, Ms. C.A.V. took a leave of absence from her employment, made baby-sitting arrangements and leaving the children with Mr. M., rented an apartment in London. In December 1995, Mr. M. obtained an interim custody order, which remained in effect until Justice Abbey’s order in March of 2000.
During those four years, Ms. C.A.V.’s access was varied from time to time by agreement and by court order. Mr. M. testified that as the children were getting older, the baby-sitting arrangements were not satisfactory. He arranged to have his neighbour, J.S. take the children one day per week.
In September 1998, when Mr. M. and J.S. decided to marry, he and the children moved into her house. Ms. J.S. was responsible for the children while he was at work.
Following a four-week trial, Justice Abbey made the order of March 13th, 2000. Ms. C.A.V. exercised her access entitlement under that order to October 14th. About October 1st, Mr. M. was alerted to a possible abduction. He arranged that the October 14th access visit would be at Ms. C.A.V.’s mothers’ farm. Mr. M. confronted Ms. C.A.V.. She denied any pending abduction. The children were not returned from that access visit. Mr. M. took leave from his employment and devoted his time to the search. In January 2001, they were located in Mexico. Following a week of frustrating administrative delay in Mexico, Mr. M. flew home with the children. Ms. C.A.V. was taken into custody and returned to Canada.
Turning to Ms. C.A.V.’s evidence. She described a four-year quest for pregnancy with physically intrusive long-term fertility clinic investigations and procedures with drug therapy and side effects, with donor sperm finally leading to a difficult pregnancy requiring hospitalizations culminating with two months in hospital prior to the premature birth by caesarean section. There was concern over the size and health of the children. There was difficulty in their care and management even with help from Neighbourlink and a baby-sitter. She badly wanted a child, she paid an exacting price.
When she returned to teaching on a half time basis in September, she spent her energy caring for the children and required respite care or additional support in the home from 4:30 until 7:30 p.m. Friends of the family had moved to Salt Spring Island. The V.s visited there with the children in the summer of 1995. Ms. C.A.V. considered a family move to British Columbia. She finally decided that she could not leave the children in order to go west and set up a home in advance for the family. The B.C. plans were abandoned.
Marriage problems were developing. Ms. C.A.V. attended a series of six counselling sessions. Mr. M. went west to visit a friend. Wanting quiet time and space, Ms. C.A.V. rented a small apartment in London and pursued interests in writing and music. She testified that she spent the occasional night there. She was not working and was able to spend time with her children in lieu of teaching. In December, she bought a cottage across Fanshawe Lake from Mr. M.’s place of employment. That cottage was registered in his name. During this cottage interval, she continued to spend time in Stratford as the children’s primary caregiver.
In December 1995, Mr. M. obtained a court order for interim custody of the children and exclusive possession of the house. Ms. C.A.V. claims that she did not oppose the order because Mr. M. said in advance that he was abandoning the application. She did not appeal because her status as primary caregiver remained unchanged. About this time Ms. C.A.V. realized that the marriage was at an end. She and Mr. M. went through mediation to try and resolve their differences. From that stage, there was a flurry of court applications.
When the cottage was sold, Ms. C.A.V. lived briefly in Toronto and returned to Stratford in June of 1997. She was concerned about the well being of the children through this court activity to the extent that she considered moving out of their lives and going to Costa Rica. She deliberated at length and decided she could not leave the children.
The issue of total termination of Ms. C.A.V.’s access was first raised about a month prior to the trial before Justice Abbey. Justice Abbey stated in his reasons for judgment, “when this trial resumes in October, I will make a final determination as to access. It will be apparent from what I have said in these reasons that the possibility remains that the access of the defendant may be terminated.”
Ms. C.A.V. testified that she was fearful that Mr. M. would succeed in his termination application. This was not an unsupported fear. In assessing the weight and significance of Justice Abbey’s reference to termination, one needs only to look to its source. This was neither a witness expressing an opinion, nor was it a lawyer assessing the situation. It was a statement by the judge who would make the decision.
Ms. C.A.V.’s access had been relentlessly reduced and may have been on the verge of termination. Her view on the access issue was, “in six years, I had gone from mother to threatened zero access.” She had been unsuccessful in the custody issue. She had been unsuccessful on the issue of paying child support. The momentum of the court proceeding was against her. Her fear was that the children would be cut off from all contact with their mother and from the benefits that flow from that association. The children’s total deprivation of the care, guidance, love, and support of their mother was seen by Ms. C.A.V. as a danger of imminent psychological and emotional harm to the children.
From her perspective, the behaviour of the children was spiralling downward with her declining access. She was involved in a high stakes contest. At issue was a precious asset, the formative years and the welfare of her children. Ms. C.A.V. testified that she truly believed the children needed a loving mother, that she genuinely and honestly felt she had to take the children. Her testimony in part was as follows:
Mr. Powell asked the question, “What did you think might be the result if you were denied access to your children in so far as your children were concerned?”
“Answer: Well I thought my children would be raised without a mother, that they were going to have – I just thought that they were going to come to some imminent harm, not physical harm, but psychological harm, emotional harm. I didn’t think it was healthy. With what I knew and what I believed and what I felt, I didn’t want my children raised without a mother. You can have caregivers, but that’s not the same as a mother.”
And further Mr. Powell asked the question:
“Okay.”
“Answer: And with that I was concerned about what could happen in October before Justice Abbey again and I felt that if we were to attend in October and he gave his judgment then at that time I didn’t have any recourse, that there were no options for me to pursue any longer of how I could maintain an active role in my children’s lives and I wanted to prepare – prepare for that and I wanted to leave. I wanted to leave with my children.”
And then Mr. VanDrunen [counsel for the Crown] asking these questions in cross-examination:
“Question: Well, you were selfish and wanted the kids for yourself, not for their father and yourself?
Answer: I wouldn’t consider a mother’s love for her children and the steps and the actions she takes in terms of that love as being selfish. I wouldn’t consider that selfish at all.
Question: Well you took the kids away from their stable lives. You took them away from – you took them away from their father, the one person who had been there forever for them?
Answer: I took my children from a very nasty situation. They were being raised by the courts and I don’t believe any judge can do a better job in raising children than their own parents. So my taking the children was not done to spite anyone. It was not done for selfish motives. It was done because I truly believed these children need a loving and good mother.”
Support for that belief by Ms. C.A.V. is found in the T.V. [the respondent’s mother] evidence that there was a causal link between the threatened isolation from the children and Ms. C.A.V. taking them from the country.
In making assessments of Ms. C.A.V.’s actions and motivations, bear in mind, we view these issues in calm reflection with hindsight in the sterile atmosphere of the courtroom. Ms. C.A.V. acted in developing circumstances and in a swirl of powerful emotions. T.V.’s evidence indicates the emotional force generated.
Firstly, T.V. was so worried, so mixed up, so guilt ridden by her knowledge of the plan to leave with the children that she broke her daughter’s solemn confidence.
Secondly, her daughter’s response to that breach of confidence was in violent anger to the extent of threatening harm and even death to her mother.
Ms. C.A.V.’s friend, neighbour, and fellow multiple birth mother, Ann Kelly testified about the emotional turbulence:
“Question: Did she ever say anything to you to the effect that the question of her access to the children being denied was something being considered by the court?
Answer: I – I honestly don’t remember that specific. I just remember that even just the Saturday afternoons was just so limited and it’s like she’d go through a grieving process every time the kids would go back home. It’s like she’d just cry and you know she’d come and cry on my shoulder and go on, ‘I can’t take this.’ It’s like she’d go through a bereavement every time the kids would go back home on Saturdays so I knew it was bad at that point but I honestly don’t remember that it was going to be denied all together.”
You may determine Ms. C.A.V.’s motivation by direct evidence, that is by what she tells you. You may determine that motivation by circumstantial evidence. You will remember that I explained that is an examination of the surrounding circumstances, finding out what you accept as proven facts, and drawing rational inferences from those proven facts. Or, you can determine her motivation by both direct and circumstantial evidence.
The circumstantial evidence is by fleeing with the children, her entire life and support structures were in convulsion. She sacrificed home, parents, brothers, sisters, friends, and the security of her teaching position with whatever income, health and pension benefits that may have carried. There was a finality about her actions, cashing her Retirement Savings Plan, cashing her children’s educational plans, withdrawing her savings, fleeing unaccompanied by an adult into foreign countries, a fugitive with three small children. There is P.'s [one of the children] poignant description of the stealth and subterfuge, their quest for distance, losing the car, being turned back at Panama, the lack of a job, and the need to conserve money. What powerful motivation produced that result?
Turning to alternative courses of action which may have been available. There is evidence that during the four years of Mr. M.’s custody and while these matters were before the court, the children required investigation, assessment, and intervention from the Children’s Aid Society, The Huron Perth Clinic, C.P.R.I. in London, that used to be the Children’s Psychiatric Research Institute and we are told it has a different name now, Dr. Yaroshevski and Dr. Doering from Waterloo or Kitchener.
With all those investigations and court appearances including a four-week trial, the matter remained unresolved after four years. That delay and inconclusive result may have contributed to a perception by Ms. C.A.V. that further resort to lawyers and courts was not the answer. There was no basis on the evidence to conclude that any plea to Mr. M. that he relent in his quest for zero access would succeed.
ISSUES
6The issue on appeal is the availability of the defence of necessity under s. 285 of the Criminal Code. The Crown submits that the trial judge made three errors in leaving the defence of necessity to the jury in this case:
(i) The defence of necessity should not have been left to the jury at all, as there was no air of reality to the defence and therefore no basis upon which the jury could find necessity.
(ii) The trial judge erred in instructing the jury that the onus of disproving the defence was on the Crown.
(iii) The trial judge erred in his instructions to the jury regarding the elements of the defence and in particular to view the first element as subjective only.
ANALYSIS
(i) No Air of Reality to the Necessity Defence
(a) Air of Reality
7In R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, the Supreme Court of Canada reiterated and restated the “air of reality test” that applies before a defence may be left with the jury, and described the correct evidential standard to be applied in determining whether there is an air of reality to a defence. The rule is that no defence is to be left with a jury unless the defence has “an air of reality.” The test for whether there is an air of reality to a defence is “whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit” (para. 49).
8In Cinous, the accused and two criminal cohorts were together in a car when he shot one cohort in the back of the head, essentially as a pre-emptive strike, because he feared that the cohort intended to kill him. He testified that calling the police was not an option in his criminal society. At trial he raised the issue of self-defence. The jury did not accept the defence and convicted the accused. The accused appealed based on alleged errors made by the trial judge in his charge to the jury on self-defence. The Crown argued that there was no legal significance to any such errors, because the defence of self-defence should not have been left to the jury at all, as it had no air of reality. The Supreme Court agreed.
9The court first stated the basic features of the air of reality test as derived from the case law:
(a) An evidential foundation is required before a defence can be put to a jury. A trial judge is obliged to leave with the jury all defences that arise on the facts, whether raised or not, and to keep from the jury defences that lack an evidential foundation, even if the defence in question is the only basis for an acquittal.
(b) The air of reality test imposes an evidential (rather than a persuasive) burden on the accused.
(c) The totality of the evidence is to be considered.
(d) The test does not address the substantive merits of the defence or its likelihood of success, but only whether a real issue exists.
(e) The air of reality issue is a question of law.1
(f) The same test and evidential standard apply to all defences.
(paras. 50 - 57).
10The Supreme Court then discussed the evidential standard. The court rejected the “some evidence/no evidence” dichotomy, adopting instead the articulation set out by Cory J. in R. v. Osolin, 1993 54 (SCC), [1993] 4 S.C.R. 595 at 682:
The term “air of reality” simply means that the trial judge must determine if the evidence put forward is such that, if believed, a reasonable jury properly charged could have acquitted.
In other words, even if there is “some evidence,” in order to leave a defence to the jury that evidence must be “reasonably capable of supporting the inferences necessary for the defence to succeed” (para. 63). Looked at the other way, the duty of the trial judge is to keep the defence from the jury “[w]here evidence does not permit a reasonable inference raising a reasonable doubt on the basis of the defence” (para. 86).
11In applying the evidential standard, the trial judge cannot consider credibility, but must accept the defence evidence as believed. Furthermore, the trial judge is not to weigh evidence, make findings of fact or draw determinate factual inferences. However, using the process of “limited weighing” described in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, the trial judge must reach a conclusion about “the field of factual inferences that could reasonably be drawn from the evidence” (para. 91). Stated another way, “the question is whether, if the jury were to accept the construction of the evidence most favourable to the accused’s position, the requisite inferences could reasonably be drawn” (para.98).
(b) The Necessity Defence
12The necessity defence against the charge of abduction in contravention of a custody order (s. 283 of the Criminal Code) is statutory. Sections 283(1) and 285 of the Criminal Code provide:
s. 283. (1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, whether or not there is a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person, is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.
s. 285. No one shall be found guilty of an offence under sections 280 to 283 if the court is satisfied that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was necessary to protect the young person from danger of imminent harm or if the person charged with the offence was escaping from danger of imminent harm.
The cases relating to the common law defence of necessity are instructive and applicable to the interpretation of s. 285. See e.g. R. v. Adams (1993), 1993 8537 (ON CA), 12 O.R. (3d) 248 (C.A.) at 258.
13In R. v. Perka, 1984 23 (SCC), [1984] 2 S.C.R. 232, the Supreme Court confirmed that necessity is a common law defence preserved by s. 8(3) of the Criminal Code. The defence is in the nature of an excuse, rather than a justification for otherwise illegal conduct. As such, it must be strictly controlled and limited to situations where the illegal conduct is based on human instincts of self-preservation or altruism that overpower voluntary action, i.e. where the wrongful conduct was the only effective choice open to the accused.
14In Perka, the court set out three requirements for the defence of necessity:
(a) The situation must be urgent and the peril imminent.
(b) Compliance with the law must be demonstrably impossible such that there is no reasonable legal alternative to disobeying the law.
(c) The harm inflicted must be proportional to and not greater than the harm sought to be avoided.
15In 2001 in R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3, the Supreme Court was required to apply the three part test of necessity to the situation faced by Robert Latimer when he took the life of his severely disabled daughter. The Supreme Court upheld the decision of the trial judge that there was no air of reality to the defence of necessity and therefore no basis upon which to leave the defence to the jury. The court held that the first two requirements of the test, imminent peril or danger and absence of a reasonable legal alternative, must be assessed on a “modified objective standard,” while the third requirement, proportionality, is to be determined using an objective standard. The modified objective standard incorporates the accused’s situation and characteristics into an objective evaluation.
16In Latimer, the court concluded, first, that there was no imminent peril because the accused’s daughter’s ongoing pain and her impending surgery did not constitute an emergency, as better pain management was available and there was no imminent threat to her life. Second, there were legal alternatives available for the care of the accused’s daughter, including a feeding tube for pain management, and placing her in a group home setting for ongoing care. Third, the court observed that, assuming it was possible for a homicide to be considered proportional in the context of the necessity defence, in the circumstances of that case there was no risk of harm seriously comparable to death.
(c) Section 285 of the Criminal Code
17The issue under s. 285 of the Criminal Code in this case was whether taking the children from their father, in contravention of a custody order, was necessary to protect them from the danger of imminent harm.
18Before leaving the necessity defence with the jury, the trial judge was required to determine whether there was an air of reality to the defence by considering whether there was some evidence upon which the jury could reasonably draw the required inferences for the defence of necessity to succeed:
(i) that from the respondent’s point of view, but using the modified objective standard, there was a danger of imminent harm to the children;
(ii) that from the respondent’s perception, but using the modified objective standard, there were no reasonable legal alternatives to taking the children in breach of the custody order; and
(iii) that viewed objectively, the harm to the children by taking them in contravention of the custody order was proportional to the potential harm to the children that was being avoided.
(i) The Perceived Harm
19The respondent mother feared that at the resumption of the custody hearing in October, the trial judge would deprive her of all access to her children. She believed that if that happened, the children would suffer psychological and emotional harm being raised by caregivers and without a mother. The imminence of the harm was the court date, after which she felt she would have no ability to carry out her plan to remove the children. In effect, the imminence of the harm to the children was not the perceived psychological and emotional harm that would result from being deprived of a loving mother, the effect of which would accrue over time, but the fact that after the court order, the respondent anticipated that she might no longer have the opportunity to exercise self-help to remove the children.
20The issue is whether the respondent’s fears, accepting that they were honestly held, and viewing the matter from her perspective taking into account her condition and situation, can amount in law to “imminent harm” within the meaning of s. 285 and the requirements of the necessity defence. In my view it is clear that they cannot. There is neither harm, nor imminence in this situation.
21The defence provided by s. 285, according, as it does, a lawful excuse for breaching a court custody order, is designed to deal with an emergent situation of danger, arising in circumstances that were not foreseen or contemplated by the court that granted the custody order. In this case, the opposite is true. Here, the danger or harm contemplated by the respondent mother is the very condition that would be created by the court if it were to grant custody of the children to the father with no access to the mother. Such an unusual order would only be made if the court were completely satisfied that it was in the best interests of the children, including their psychological and emotional interests.
22For the criminal court to hold that a situation deliberately created in the children’s best interests by the custody court after a trial could be considered a situation of imminent harm to the children, would invite a regime of anarchy and chaos within the family law domain. Parents unhappy with the outcome of custody proceedings would feel entitled to ignore, with apparent impunity, unfavourable court orders regarding their children. Instead, what the parents must do is operate within the legal system. The first route is an appeal. Another is to revisit the custody and access issues from time to time as circumstances change for the various affected parties.
23Not only was the harm contemplated by the respondent not the type of harm for which the defence can be invoked, but there was also no emergent situation which required immediate action by the respondent. A deadline was looming when the access decision would be made in the family court proceedings. However, that deadline did not create an emergency situation requiring immediate action to rescue the children from imminent danger. The imminence analysis is inextricably linked with the second requirement for a necessity defence, alternative legal avenues.
(ii) Other Legal Avenues
24The respondent had been given a window of time in which to demonstrate that her access to the children should be continued. One of her legal avenues was to build the record for access during that period based on her own actions, and possibly to obtain further expert assistance. Another was to retain experienced counsel to assist her with the court proceedings, instead of continuing to represent herself and deprive herself of the benefit of professional representation in such a crucial matter. As noted above, she also always had the right to appeal any order, and if unsuccessful, to reopen the issue at a later date. In other words, the respondent had unfettered access to the courts for the purpose of seeking to resolve her concerns in a legal fashion. Furthermore, she had been given time to do so in the family law proceeding.
(iii) Proportionality
25Given that there was no danger of harm here within the meaning of the necessity defence, it is conceptually difficult to address the proportionality issue meaningfully. However, taking children from their home and their normal life, to a life in hiding and on the run from authorities with no community support, is clearly a drastic remedy, which can only be proportional to a drastic imminent danger from which the children must be rescued. Viewed objectively, this was not such a situation.
26Clearly, both the trial judge and the jury had considerable empathy for the respondent, a mother faced with the possibility of losing all access to her children, who honestly and truly believed that it was in their best interests for her to become a fugitive with them, rather than leave them with no access to their mother. The fact that the children, who were seven and a half years old, willingly went with her and co-operated in hiding from authorities without trying to contact the father, suggests that they loved and trusted their mother very much. The children’s co-operative conduct could be seen as affirming the mother’s perception of the situation, and in that way, as a troubling factor for the jury.
27Having said that, the necessity defence is not meant for situations where the parties are unhappy with custody and access decisions of the court. Often the losing party may continue to feel that the court’s custody or access decision was not the best for the children. However, in our society, where the parents choose or are forced by circumstances to separate, and where they cannot agree on the best care arrangements for their children, the court process is not only the best and most orderly way to determine where the children should be, it is the only legal procedure for doing so. It is based on the children’s best interests. The court’s orders must be respected and followed. Any other approach would lead to anarchy.
CONCLUSION
28As I have concluded that the trial judge erred in law by leaving the defence of necessity to the jury where there was no air of reality to any of the requirements for a necessity defence, it is unnecessary to address the other two issues, which relate to how to apply the defence.
29I would allow the appeal, set aside the acquittals and order a new trial.
RELEASED: August 26, 2003 “KNF”
“K. Feldman J.A.”
“I agree: John Morden J.A.”
“I agree John Laskin J.A.”
Footnotes
- In R. c. Sole, [2002] J.Q. No. 516 (C.A.), the Quebec Court of Appeal suggested in obiter that the issue of air of reality in the defence of necessity as it applies to child abduction is a question of mixed fact and law. This decision was released 5 days after the Supreme Court released its decision in Cinous, and it appears that the court may not have had that decision before it released Sole.
