CITATION: R. v. Rosevold, 2011 ONCA 431

DATE: 20110607

DOCKET: C47292

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Feldman and LaForme JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Derek R. Rosevold

Appellant

Derek R. Rosevold, appearing in person Jill Copeland, appearing as duty counsel

Peter Scrutton, for the respondent

Heard: June 2, 2011 On appeal from the conviction entered by Justice Charles D. Anderson of the Ontario Court of Justice on Mach 30, 2007 and the sentence imposed dated May 28, 2007.

ENDORSEMENT

[1] The appellant was convicted of abducting his two daughters in contravention of a custody order contrary to s. 282(1)(a) of the Criminal Code. Sentence was suspended and he was placed on probation for 18 months. He appeals his conviction and sentence.

[2] The appellant was assisted on the appeal by duty counsel. We are obliged to Ms. Copeland for her very helpful advocacy.

[3] Duty counsel raised three arguments. First, she submits that the trial judge erred in failing to consider the appellant’s mistaken belief that the order in issue was not a “custody order”. The appellant’s mistaken belief was a mistake of fact and as such negated the mens rea necessary for the offence.

[4] We do not accept this argument. We agree that the trial judge did not address the mistake of fact defence in his reasons. However, the appellant did not testify that he had the mistaken belief now asserted, nor did his counsel at trial argue that he did.

[5] In his testimony, the appellant said that he believed that the order was no longer effective at the time he removed the children and took them to British Columbia. The trial judge rejected that part of the appellant’s evidence. The trial judge found on the appellant’s evidence that “[the appellant] did not see the order as fair”; he knew that Ontario was the proper jurisdiction because British Columbia had declined to hear the issues in favour of Ontario; and, if he was caught crossing Canada he would be arrested, indicating his recognition of “legal wrongdoing”.

[6] Additionally, and, again based on the appellant’s evidence, the trial judge found that the appellant believed that he could deal with the children’s mother from a position of strength if he had the children in British Columbia.

[7] We see no error in the trial judge’s conclusions. In particular, given the appellant’s evidence and the defence submission at trial, we do not think that the trial judge erred in failing to consider the defence that the appellant mistakenly believed that the order was not a custody order.

[8] On the appeal, duty counsel asked us to consider by way of fresh evidence a letter from the lawyer who acted as duty counsel for the appellant at the time he consented to the order in question. In that letter, the lawyer says the appellant did not intend to consent to custody, but only to the care of the children by his wife. That letter was not entered as evidence at the trial, nor was the lawyer called when the issue of whether the order was a custody order was squarely before the trial court. The letter was only filed at the time of sentencing.

[9] We are not satisfied that in these circumstances the letter should be admitted as fresh evidence. In any event, the letter puts a gloss on the order that the appellant did not adopt in his evidence.

[10] Duty counsel next argues that the order was not in fact a “custody order”. We disagree. While the order is not styled as a custody order, nor was it intended by the parties to address all the issues that may be included in an order for custody, it is important to consider its function. The order provides that the children “shall remain in the care of” the mother in Brockville, Ontario. It provides that the appellant shall have access to the children in the United Counties of Leeds and Grenville and that after each access visit, the children shall be returned to the mother.

[11] Although the order is made “without prejudice to the rights of either party to argue the issues of custody and access”, it is clear that the order was intended to govern the lawful care and charge of the children during its currency. In our view, s. 282 is intended to apply to such an order.

[12] Finally, duty counsel argues that the trial judge failed to consider the defence of necessity. She concedes, fairly, that the defence of necessity was not raised at trial. However, she submits that the appellant’s evidence required the trial judge to consider the defence on his own initiative.

[13] Accepting for the purpose of discussion that the trial judge had such a duty, we are not satisfied that the appellant’s evidence satisfies the three-pronged test for the defence of necessity set out in the case of R. v. VandenElsen (2003), 2003 3548 (ON CA), 177 C.C.C. (3d) 332 (C.A.) at para. 18. We see no basis to interfere.

[14] The appellant filed this appeal as an in-person appeal. He filed a factum and sought to introduce an extensive amount of fresh evidence. He made oral submissions on the appeal.

[15] The documents the appellant seeks to introduce as fresh evidence do not meet the test for admissibility. Moreover, they have no connection to the offence he was convicted of.

[16] In our view, duty counsel raised all of the arguments that had any chance of success in the appeal. We have dealt with those above.

[17] In the result, the appeal is dismissed.

[18] The appellant did not pursue his sentence appeal in oral argument. In any event, in our view, the sentence was fit. We, therefore, grant leave to appeal the sentence, but dismiss that appeal.

“D. O’Connor A.C.J.O.”

“K. Feldman J.A.”

“H.S. LaForme J.A.”