W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 205, c. 32, s. 15.
CITATION: R. v. E.K., 2010 ONCA 366
DATE: 20100518
DOCKET: C48972
COURT OF APPEAL FOR ONTARIO
Rosenberg, Feldman and Watt JJ.A.
BETWEEN:
Her Majesty The Queen
Respondent
and
E.K.
Appellant
R. Craig Bottomley, for the appellant
Lucy Anne Cecchetto, for the respondent
Heard: May 6, 2010
On appeal from conviction by Justice Faye McWatt of the Superior Court of Justice, dated April 24, 2007.
By The Court:
[1] The appellant appeals from her conviction for abduction of a child under the age of fourteen years in contravention of the provisions of a custody order. For the following reasons the appeal is dismissed.
[2] The only issue raised on this appeal is whether the trial judge erred in refusing to leave to the jury the necessity defence as codified in s. 285 of the Criminal Code. The trial judge held that there was no air of reality to the defence because there was no evidence to support two of the three elements of the defence: no other reasonable legal alternatives and proportionality. We agree with the trial judge that there was no air of reality to the defence. We only find it necessary to address the issue of other reasonable legal alternatives.
THE FACTS
[3] The chronology of events is important to understand our decision. In 1997, the appellant and C.M., who were in a common law relationship, had a child, G. In 2000, the relationship ended and C.M. moved out. The appellant remained the custodial parent. Her mother, the co-accused, lived with the appellant and G. As a result of a June 2001 court order, C.M. was to be consulted on all major parenting decisions. The Order also included a provision that the appellant not move G.s’ residence from a 50 km. radius of Toronto without the prior written consent of C.M., and if the appellant intended to move on a permanent basis she was to provide 90 days written notice. There were a number of disputes over access in the next year. On occasion the appellant would refuse to hand the child over to C.M. and made allegations of physical abuse, such as complaining to the CAS that C.M. was spanking the child.
[4] In July 2001, G. broke his collarbone while with C.M. The child’s physician referred the matter to the SCAN clinic at the Hospital for Sick Children. The CAS also investigated. Both agencies were satisfied that the injury was the result of an accident. The appellant and her mother also reported to various professionals a number of incidents of what they viewed as inappropriate sexualized conduct exhibited by the child.
[5] In September 2002, the appellant informed C.M. that she intended to move, with G., to Vancouver. She had not provided the requisite written notice. C.M. obtained an emergency ex parte order dated October 2, 2002 preventing the removal of G. until October 16, when the judge assigned to the family court proceedings involving G. could hear the motion. After being served with this Order, the appellant left a voice mail message in which, for the first time, she accused C.M. of sexually abusing G. As a result of the allegation, C.M. included reference to this allegation in his materials to support the application to be heard October 16, 2002.
[6] On October 10, the grandmother took G. to a walk-in clinic because his buttocks were red. The physician referred the matter to the SCAN clinic. Three days later, the grandmother took the child to the appellant’s cousin in St. Catharines and made complaints to her about suspected abuse. The cousin then made a complaint to the local police.
[7] On October 16, 2002, the family court judge ordered that the appellant not remove G. from the jurisdiction until further order. The father’s counsel brought the sexual abuse allegation to the court’s attention. The father’s access to the child continued. Over the next many months, the case was repeatedly before the family court. In November 2002, the court ordered, on consent, that an assessment be done. This assessment lasted for several months and included meetings and contacts with the parents, with G., with C.M.’s new partner, the appellant’s mother, the school, SCAN and the CAS. The appellant made it clear to the assessor that she did not think she had to consult with C.M., notwithstanding the terms of any court orders. The final report from the assessor recommended joint custody.
[8] The proceedings in the Family Court continued, but little progress was made because the appellant had discharged her counsel and her materials were not in order. The next significant court appearance was to be on January 7, 2004. This was an important date since the appellant had been told that she had to show up with a lawyer and the matter would not be further delayed. In the meantime the appellant and her mother had begun to set aside money and make other preparations for abducting her son. The uncontradicted evidence demonstrates that by this time the appellant had abandoned the court process. The plan was to take G. out of Canada during the Christmas holidays because she would have him for a week without access by C.M. This would give her an opportunity to get far away before anyone noticed they were gone. During Christmas 2003, the appellant took G. and drove to Texas, where they lived in hiding until a private investigator retained by C.M. tracked them down.
ANALYSIS
[9] The elements of the necessity defence are not in doubt. In particular, there must be some evidence upon which a jury could infer that from the appellant’s perception, but using the modified objective standard, there was no reasonable legal alternative to taking the child in breach of the custody order. The trial judge need only find that there is a real issue to be decided by the jury on that and the other elements of the defence. The judge is not to decide whether or not the defence is likely to succeed.
[10] In this case, the trial judge held that there were at least three other reasonable legal alternatives, including that the appellant could have hired a lawyer to better handle her suspicions about sexual abuse in the family court proceedings. We agree with that proposition, although we would frame it slightly differently. Simply put, the appellant could have retained counsel to assist her in fully participating in the family court proceedings, placed the allegations of sexual and physical abuse before that court and sought an order that would have protected her child. She did not do so. Rather, as we have said, many months before the critical January 2004 date, the respondent had decided to abandon those proceedings and to abduct the child.
[11] The appellant’s case is not unlike this court’s decision in R. v. C.A.V. (2003), 2003 CanLII 3548 (ON CA), 177 C.C.C. (3d) 332. There, Feldman J.A. speaking for the court, said this about other reasonable legal alternatives at para. 24:
The 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. [Emphasis added.]
[12] As in C.A.V., there was no air of reality to the necessity defence. The trial judge was correct to withdraw that defence from the jury.
[13] Accordingly, the appeal is dismissed.
Signed: “M. Rosenberg J.A.”
“K. Feldman J.A.”
“David Watt J.A.”
RELEASED: “MR” MAY 18, 2010