COURT OF APPEAL FOR ONTARIO

McMURTRY C.J.O, CRONK and ARMSTRONG JJ.A.

DATE: 20030704 DOCKET: C34868

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

• and -

L.R.F. Appellant

Kenneth L. Campbell, for the respondent L.R.F., in person Gregory Lafontaine, acting as Amicus Curiae

Heard: November 28 and 29, 2002

On appeal from the conviction entered by Justice Roland J. Haines, sitting with a jury, on June 30, 2000 and from the sentence imposed by Haines J. on August 3, 2000.

ARMSTRONG J.A.:

[1] After a trial before Justice Roland J. Haines and a jury, the appellant appeals his conviction for taking the child, C.R.H. (“C.R.H.”), in contravention of a custody order with the intention of depriving the legal guardian of possession of the child contrary to s. 282 (1)(a) of the Criminal Code. The appellant also seeks leave to appeal his sentence in regard to the terms of his probation order.

BACKGROUND

[2] C.R.H. was born on […], 1995. The appellant is her father. Her mother, F.T., died on January 13, 1996. Before her death, Ms. F.T. left instructions that her brother, D.H., should have custody of the child and assume all parental responsibilities. C.R.H. began living with Mr. D.H. on the Chippewa of the Thames First Nation Reserve in March 1996.

[3] The appellant commenced proceedings for custody of C.R.H. in the spring of 1996. On May 21, 1998, Morin J. of the Superior Court awarded custody to Mr. D.H. with generous rights of access to the appellant, which included two separate two-week periods in the summer. A motion by the appellant to set aside the custody order was dismissed on July 16, 1999. Also, a motion by the appellant to have C.R.H. declared a child in need of protection and placed in his custody was dismissed on August 27, 1999.

[4] In the period from August 13, 1999 to August 27, 1999, the appellant exercised one of his periods of access. On the day C.R.H. was to be returned to Mr. D.H., the appellant telephoned the professional exchange agency, which facilitated his access, to advise he would not be returning the child to the agency and that he would be returning her directly to Mr. D.H..

[5] Also on August 27, 1999, the appellant telephoned a policeman on the Chippewa Reserve and asked if he was banned from the Reserve. The policeman told him he was not aware of any ban. The policeman advised the appellant that he would assist in the return of C.R.H. to the H. residence. On the same day, the appellant faxed a letter to various people, including the reserve police and the Strathroy O.P.P., in which a number of allegations were made against the reserve police, Mr. D.H. and others. He also stated in the fax that he had been banned from the Reserve.

[6] C.R.H. was not returned to Mr. D.H. by the appellant. Instead, he took her to Halifax, Nova Scotia and kept her there until he was apprehended by the Halifax police on September 30, 1999. The following day, C.R.H. was returned, unharmed, to Mr. D.H.. The appellant was returned to London, Ontario where he faced the charge of breach of s. 282 (1)(a) of the Criminal Code.

[7] Although he had a legal aid certificate, the appellant acted for himself during a 6-week trial. The Crown called four witnesses: D.H., the operator of the access exchange and two police officers. The appellant, in defence, called five physicians, eight persons from either the Children’s Aid Society or Child and Family Services and two childcare workers. The appellant did not testify.

[8] The appellant raised nine grounds in his original inmate notice of appeal dated August 18, 2000. The appellant filed a supplementary notice of appeal dated March 6, 2001, in which he raised 53 grounds of appeal. Most of the original grounds of appeal were incorporated in the supplementary notice of appeal.

[9] On July 20, 2002, the Court appointed Gregory Lafontaine as amicus curiae to assist in the presentation of the appeal to the court.

THE APPEAL

[10] The appellant objected to proceeding with the argument of the appeal because he said that he had recently been charged with a breach of probation and did not want to incriminate himself. Counsel for the respondent undertook that the Crown would not use anything the appellant said before us on the breach of probation charge. The appellant raised a number of other issues concerning the state of the record. He complained that he had not had an opportunity to prepare for the appeal.

[11] We were satisfied that the appeal was ready for argument since the notice of appeal had been filed more than 2 years ago and that both the Court and the appellant would be greatly assisted by the appointment of Mr. Lafontaine as amicus curiae. We therefore declined the appellant’s request for an adjournment of the appeal.

[12] The appellant made an oral presentation to us in which he raised many matters not relevant to the appeal.

[13] The submissions made by Mr. Lafontaine included:

(i) that the trial judge erred in refusing to permit the jury to consider the defence of colour of right;

(ii) that the trial judge erred in refusing to permit the jury to consider the defence of imminent harm;

(iii) that the trial judge erred in instructing the jury as to elements of the offence in a manner consistent with the appellant having been charged with “detaining” while the indictment particularized the mode of the commission of the offence as “taking”; and

(iv) that the trial judge erred in imposing a term of probation that required the appellant to seek leave of the court before commencing a civil action.

(i) Did the trial judge err in refusing to permit the jury to consider the defence of colour of right?

[14] Mr. Lafontaine submitted that s. 282 (2) of the Criminal Code implicitly recognizes the defence of honest belief that no valid custody order was in place in regard to a charge under s. 282 (1). Section 282 (2) provides:

Where a count charges an offence under subsection (1) and the offence is not proven only because the accused did not believe that there was a valid custody order but the evidence does prove an offence under s. 283, the accused may be convicted of an offence under s. 283.

[15] Mr. Lafontaine submitted that there was evidence that the appellant honestly believed that:

(a) he could not return C.R.H. on August 27 because he had been banned from the reserve and could therefore not lawfully return C.R.H. to D.H.; and

(b) the order of Morin J. dated May 21, 1998 had been obtained illegally and that the conduct (lawlessness) of various individuals, including D.H., in obtaining and carrying out the order had rendered it, in effect, void in the mind of the appellant.

[16] Counsel for the respondent submitted that no colour of right defence is available to a charge of parental child abduction under s. 282 (1)(a) of the Code. He argued that, in the past, the single offence of child abduction required the Crown to prove that the child was taken “unlawfully,” and an accused had a statutory defence on the basis that he or she could claim in good faith a right to custody of the child. These elements were removed by Parliament on January 4, 1983.

[17] However, the respondent conceded that this court had previously held that an objectively reasonable mistake of law might in unusual cases negate the mens rea of the offence of parental abduction under s. 282 (1)(a) of the Code. See R. v. Ilczyszyn (1988), 45 C.C.C. (3d) 91 (C.A.); leave granted: [1989] 1 S.C.R. xiii; appeal quashed for delay; [1989] S.C.C.A. No. 16.

[18] Whether or not a colour of right defence is legally available to a defendant charged under s. 282 (1)(a) of the Code, I agree with the respondent’s submission that it was not available in the circumstances of this case. There simply was no air of reality to the submission that the appellant “truly believed on reasonable grounds” that the custody order of May 21, 1998 was “no longer in existence”.

[19] The respondent quite properly pointed out that:

(a) there is no evidence that the appellant was told he was banned from the reserve and no such order was made;

(b) even if such an order existed, the appellant could have returned C.R.H. through the facility of the professional exchange as had been the established practice;

(c) the appellant did not testify and therefore there was no evidence that he had any question about the validity of the custody order; and

(d) the appellant had brought a motion to set aside the order and therefore appreciated that it was a valid and subsisting order concerning the custody of C.R.H..

(ii) Did the trial judge err in refusing to permit the jury to consider the defence of imminent harm?

[20] Mr. Lafontaine submitted that there was an abundance of evidence that the appellant firmly believed “that C.R.H. was constantly in harm while in the custody of D.H..” He argued that the trial judge erred in focusing on the lack of direct evidence from the appellant when there was evidence to be found in the documentary record. He further submitted that while the reasonableness of the appellant’s belief was for the jury to consider in assessing its honesty, an unreasonable but honest belief is a defence to a charge under s. 282 of the Code. In support of this argument he cited:

R. v. Osolin (1993), 86 C.C.C. (3d) 481 (S.C.C.);

R. v. Adams (1993), 79 C.C.C. (3d) 193 (Ont. C.A.)

[21] The defence of imminent harm is created by s. 285 of the Criminal Code which provides:

No one shall be found guilty of an offence under sections 280 to 283 if the court is satisfied that the taking…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.

[22] Counsel for the respondent submitted in his factum that before an accused can rely upon the defence of imminent harm under s. 285, there must be “some evidence showing that the accused honestly believed the child was in danger of virtually immediate physical or psychological harm, and that the abduction of the child by the accused was ‘necessary’, in an ‘objective sense’, based upon the circumstances known to the appellant and the ‘other remedial steps’ that were reasonably open to the accused.” See R. v. Lines, [1986] N.W.T.J. No. 98; R. v. Gamache (unreported, September 3, 1987, B.C. Co. Ct.); R. v. Adams, supra; and R. v. Mendez (1997), 113 C.C.C. (3d) 304 (C.A.) at p. 310; leave denied: [1997] S.C.C.A. No. 679.

[23] I agree with the respondent’s further submission that there was no air of reality to the defence of imminent harm. There was no evidence that C.R.H. was ever at risk physically, emotionally or psychologically. The five physicians called to testify by the appellant each described C.R.H. as happy and in good health. The Children’s Aid and Child and Family Service workers expressed no concern about her welfare. The two childcare workers described C.R.H. as a happy, normally developing child.

[24] It is also significant that the appellant took C.R.H. on August 18, 1999 to see Dr. Irwin Anton for a check-up. At that time, C.R.H. was found to have a common cold with no further complications and no medication was prescribed. Accordingly, as counsel for the respondent pointed out, the appellant knew a few days before the abduction that C.R.H. was in good health. Further, on the day of the abduction, August 27, 1999, the appellant was in communication with a number of individuals and at no time did he suggest that he believed C.R.H. could be at risk of imminent harm. When the appellant arrived in Halifax, he did not suggest to his friend, Ms. Pearson, or any members of his family, that C.R.H. was at risk of imminent harm and therefore that was the reason for his bringing her to Halifax.

(iii) Did the trial judge err in instructing the jury as to the elements of the offence in respect of detaining and taking?

[25] The indictment clearly states that the appellant was charged with “taking” C.R.H. contrary to s. 282 (1)(a) of the Code. He was not expressly charged with “detaining” C.R.H., although it can be an element of the offence under s. 282 (1)(a). However, in his charge to the jury, the trial judge referred to both taking and detention and therefore the appellant submitted that he failed to specifically address with clarity the mode of the offence with which the appellant was charged. Mr. Lafontaine argued that the only evidence of “taking” occurred on August 13, 1999 at the commencement of the access period and for which there was little or no evidence of criminal intent.

[26] Counsel for the respondent conceded that it would have been preferable for the trial judge to have charged the jury on the precise allegation of “taking” as specified in the indictment. However, he submitted that there was never any issue between the parties that the appellant did in fact “take” C.R.H. as alleged in the indictment and therefore any potential error in the charge was of no consequence.

[27] While I agree with Mr. Lafontaine that the charge to the jury on the issue of “taking” lacks clarity, I would not intervene. To the extent that the trial judge fell into error in this aspect of the charge, I would invoke s. 686 (1)(b)(iii) of the Criminal Code because there was no substantial wrong or miscarriage of justice. This is a case in which the evidence against the appellant was overwhelming and no valid purpose would be served by ordering a new trial on the basis contended for by the appellant.

(iv) Did the trial judge err in imposing a term of probation that required the appellant to seek leave of the court before commencing a civil action?

[28] The probation order contained three terms (10, 11 and 12) which prevented the appellant from commencing legal action (without court approval) against members of the H. family, from seeking subpoenas relating to the H. family and from seeking access to records or information relating to the H. family. The trial judge explained his rationale for these provisions as follows:

Terms 10, 11 and 12 impose limits on Mr. L.R.F.’s access to the Courts and to records that relate to the H. family. Given Mr. L.R.F.’s history and penchant for harassment by litigation, I consider it appropriate that he should henceforth be required to seek leave of the Court before initiating any legal process relating to the H. family.

[29] Section 732.1 (3)(h) of the Code permits a judge to impose “…reasonable conditions…for protecting society and for facilitating the offender’s successful reintegration into the community.” In my view, the conditions imposed by the trial judge in the circumstances before the court were well within his authority under the aforesaid section.

CONCLUSION

[30] In the result, on the grounds argued before us, I would dismiss the appeal from conviction. I would also dismiss the appeal from conviction in respect of the other grounds contained in the supplementary notice of appeal. In regard to the application for leave to appeal the sentence and, in particular, the provisions in the probation order referred to above, I would grant leave and dismiss the appeal as to sentence.

RELEASED:

“RRM” “Robert P. Armstrong J.A.”

“JUL –4 2003” “I agree Roy McMurtry C.J.O.”

“I agree E.A. Cronk J.A.”