





CITATION:
R. v. Rosevold, 2011
    ONCA 431



DATE:  20110607



DOCKET:  C47292



COURT OF APPEAL
          FOR ONTARIO



OConnor 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 appellants mistaken belief that the order in issue
    was not a custody order.  The
    appellants 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 appellants evidence.  The trial judge found on the appellants
    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 appellants
    evidence, the trial judge found that the appellant believed that he could deal
    with the childrens mother from a position of strength if he had the children
    in British Columbia.

[7]

We see no error in the trial judges conclusions.  In particular, given the appellants 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
    appellants 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 appellants evidence
    satisfies the three-pronged test for the defence of necessity set out in the
    case of
R. v. VandenElsen
(2003), 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.
    OConnor A.C.J.O.

K.
    Feldman J.A.

H.S.
    LaForme J.A.


