



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



R.
                v. Alvizuris,









2005 BCCA
            1




Date: 20050105




Docket: CA031876

Between:

Regina

Respondent



And

Vilma Alvizuris

Appellant













Before:



The Honourable
            Mr. Justice Hall





(In Chambers)









V. Alvizuris



Appearing in person
with J. Jacome





W. Rubin



Counsel for the Respondent





Place and
            Date of Hearing:



Vancouver, British Columbia





23 November 2004





Place and
            Date of Judgment:



Vancouver, British Columbia





5 January 2005







Reasons for Judgment of the Honourable Mr. Justice Hall:

[1]

This
      is an application for the appointment of counsel under s. 684 of the
Criminal
      Code
.  The appellant applicant, Vilma Alvizuris, was convicted
      by a jury in the spring of 2004 of the offences of child abduction and
      obstructing justice.  I understand that consequent upon these convictions
      she was sentenced to an eight month conditional sentence to be followed
      by a period of probation.  The case arose out of a custody dispute involving
      an infant.  The parties to that dispute were the father of the child and
      the mother, a daughter of Ms. Alvizuris.

[2]

In
      the course of her instructions to the jury, the trial judge summarized
      the factual background of the case thus:

It has been admitted that on July 3, 2001, Ms. Alvizuris attended at
      Provincial Court presided over by his Honour Judge Steinberg.  The transcript,
      filed as an exhibit at trial, discloses that Jennie Jacome, Josiah's mother,
      was detained on a charge of abducting Josiah.  Josiah was not with her
      when she was detained.  Judge Steinberg spoke to Ms. Alvizuris about Josiah.  He
      directed her to bring Josiah to the court that afternoon.  Ms. Alvizuris
      requested some time to consult a lawyer or a social worker.  Judge Steinberg
      refused the request.  Ms. Alvizuris left the court house.  She did not
      return that afternoon.

Ms. Alvizuris was employed at the time in the Ministry of Human Resources.  Laura
      Rahn, Ms. Alvizuris' supervisor, testified that Ms. Alvizuris appeared
      in her office on the first day after the long weekend in July, 2001, distraught
      and crying.  She told Ms. Rahn that her daughter was incarcerated and she
      needed some time off to sort matters out.  She said the father of her grandson
      had obtained custody of the child and her daughter was in jail because
      she was refusing to give up custody.  Ms. Rahn helped Ms. Alvizuris look
      up some telephone numbers of lawyers.  Ms. Rahn thought Ms. Alvizuris made
      an appointment to see a lawyer that afternoon.  Ms. Alvizuris obtained
      forms to apply for a leave from work.  She never returned to her job with
      the Ministry.

It is admitted that from July 3, 2001 to October 1, 2001, Josiah was
      mainly in the care of Ms. Alvizuris.  During that time, Ms. Alvizuris and
      Josiah were in various locations in the United States, primarily with relatives.  These
      facts were admitted in Exhibit 20, paragraphs (8), (9) and (10).

In late September, 2001, Ms. Alvizuris received a telephone call from
      a person by the name of Kari Simpson.  As a result of the call, on October
      1, 2001, Ms. Alvizuris arranged to have Josiah brought to a Ministry of
      Family and Child Services office by Kari Simpson.

[3]

The
      applicant complains of the conduct of the trial and submits that she was
      convicted against the weight of the evidence.  In particular she claims
      that the trial judge erred in not leaving with the jury the defence of
      necessity.  Counsel for the Crown noted in argument here that the applicant
      has some legal training in her country of origin in Central America but
      I accept what the applicant says, namely that she has no training in the
      Canadian legal system and could not be considered as in any way equivalent
      in training and experience to a Canadian lawyer.  The applicant has been
      advised by the Legal Services Society that they are not in a position to
      fund an appeal because in their view her financial resources exceed the
      guidelines requisite for the appointment of counsel.  I would observe that
      her financial circumstances are modest and if I was of the opinion that
      this appeal was one where the appointment of counsel was requisite, I would
      not be inclined to the view that her financial circumstances would disentitle
      her to the appointment of counsel.

[4]

The
      trial judge in a ruling given on 24 February 2004 found that the circumstances
      of the case did not afford a factual underpinning to permit her to leave
      with the jury the defence of necessity.  The applicant seeks to argue that
      that finding was legally flawed and that there is an arguable appeal on
      that issue.  The trial judge noted that there were issues in dispute between
      the parents of the young child.  There was a period of time where the father
      did not see the child.  In the spring of 2000 he filed an application for
      access to the child and served notice of the application on the daughter
      of Ms. Alvizuris.  These events coincided with a serious illness of the
      mother of the appellant who was resident in Guatemala.  The daughter (the
      mother of the infant) and the applicant and the young child travelled to
      Guatemala and were there between 18 June and 5 August 2000.  Around this
      time period they changed addresses from Burnaby to Richmond.  Although
      the daughter said that she had called a family court counsellor to advise
      that they were leaving the city to attend to the ill grandmother, there
      was apparently no formal response by her to the pending access application
      brought by the father.  It appears the father had no contact with the mother
      since April of 2000 and that he was unaware of the family's move to Richmond.

[5]

When
      the application of the father came on for hearing in August 2000 in Surrey
      Provincial Court, only the father was present.  At the first attendance
      in court, the presiding judge was troubled that the mother was not there.  He
      instructed the father to make efforts to locate the mother and ordered
      a short adjournment of the case to permit this to be done.  The father
      was not successful and advised the judge of this after the adjournment.  It
      appears that Ms. Alvizuris, her daughter and the young child had again
      left for Guatemala around this time because of the death of the mother
      of the applicant.  Ultimately a warrant was issued for the mother of the
      child because the child was not produced pursuant to a court order.  When
      the mother was located in June of 2001 she was arrested and spent some
      time in jail.

[6]

The
      applicant said that she had received a distraught phone call from her daughter
      who was in custody.  She thus became aware of the outstanding custody order
      that had earlier been made in favour of the father.  The applicant said
      that her daughter asked her to keep the young child safe.  Thereafter the
      applicant took the child to the United States for a time, remaining there
      for three months in different locations.  Eventually in October the applicant
      brought the child back and surrendered him to the authorities.  She was
      then charged with the offences of which she was convicted, namely child
      abduction and obstruction of justice.  In the course of her reasons dealing
      with the application to leave with the jury the defence of necessity, the
      trial judge said this:

[59]  The accused could not articulate precisely what harm she feared
      Josiah would suffer in the care of his father for the couple of days it
      would take to challenge the interim custody order.  It was, in the words
      of her counsel, an "inchoate fear" of Marlon's "messy" life,
      his professed fear of gang members coming after him and his suspected use
      of drugs, and the suspicion that Marlon's father had at some time in the
      past abused his daughter.

[60]  I must emphasize there was no suggestion that Marlon had ever abused
      Josiah or caused him harm in any way, nor was there any suggestion that
      Jorge Amaya had ever caused harm to the boy.

[61]  The imminence of harm was vaguely expressed as a concern about
      Marlon's lifestyle, concerns that were not borne out in any way by the
      investigation of Rachelle Bazunas, the social worker appointed by the court
      to investigate the matter.

[62]  The issue is whether the fears and suspicions of the accused, accepting
      that they were honestly held and viewing the matter from her perspective,
      can amount to imminent harm within s.285 and the requirements of the necessity
      defence.  After much consideration, I have concluded that they cannot.  There
      was no imminence in this situation and likely there was no harm.

[63]  As noted by the Court of Appeal in
C.A.V.
[
R. v. C.A.V.
,
      [2003] O.J. No. 3247], the defence provided by s.285 accords a lawful excuse
      for breaching a court custody order.  As such, it is designed to deal with
      an emergent situation of danger.  In this case, the Provincial Court issued
      a custody order many months after the accused and her daughter received
      notice that the father was seeking access to Josiah.  In the full knowledge
      that Marlon was taking steps to gain access to his son, they relocated
      without telling him.  They never contacted Marlon to determine the outcome
      of his application or to advise him of their new address.  They represented
      to staff of the private school where Josiah was enrolled that Marlon played
      no role in his son's life.

[64]  It undoubtedly came as a shock to the accused and her daughter
      that Marlon was granted custody when he sought only access to Josiah.  The
      learned Provincial Court judge took a very unusual step when she granted
      sole custody to the father in the absence of any evidence as to the best
      interests of the child.  Nevertheless, it was the conduct of the accused
      and her daughter that precipitated the
ex parte
custody order.  It
      was their subsequent conduct that led to the warrant for the mother's arrest.

[65]  The accused and her daughter, having failed to deal with the father's
      access application, were shocked and profoundly unhappy with the resulting
      custody order in his favour.  Only then did they attempt to invoke the
      services of the Ministry of Children and Families.  They had every opportunity
      to seek the assistance of the Ministry from the time Marlon applied for
      access, but did not do so.

[66]  The Provincial Court judge seized with the application for Jennie's
      interim release from custody also took a highly unusual step when he ordered
      the accused to produce Josiah.  In my view, the court had no jurisdiction
      in the context of the bail hearing to issue such an order.  The accused
      was delivered an ultimatum by the court that undoubtedly took her entirely
      by surprise.  Having said that, the crisis the accused faced was one primarily
      of her own making.  As an employee of the Ministry of Human Resources with
      some child protection training, she knew even at that point there were
      steps she could take to ensure the appropriate inquiries were made as to
      Josiah's safety.

[67]  There was, in short, nothing imminent in this situation. Further,
      there was no "harm" that could have befallen this child while
      Jennie applied to have the custody order set aside and arrangements were
      made to put in place the appropriate resources to assess the child's living
      situation with the father.  There was a deadline looming here for the accused,
      but it was a deadline that in the words of the court in
C.A.V.
,
"did
      not create an emergency situation requiring immediate action to rescue
      [the child] from imminent danger."

[68]  There is a vitally important public policy consideration underlying
      the limited nature of the defence afforded by s. 285 of the
Code
.  If
      a parent who is unhappy with a custody order, and has vague fears about
      the parenting ability of the custodial parent, could remove the child from
      the custodial parent on the basis of those fears, the result would, in
      the words of the court in
C.A.V.
(at para. 22):

... 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.

[7]

The
      trial judge went on to find that the appellant applicant had access to
      legal resources and access to the courts.  The trial judge also found that
      the reaction of the applicant was not proportional to the circumstances
      facing her and her grandson.  The trial judge made extensive reference
      to the case of
R. v. C.A.V.
, [2003] O.J. No. 3247, a judgment
      of the Ontario Court of Appeal wherein it was found that the judge had
      erred in leaving the defence of necessity with the jury in a case where
      the mother had failed to return the children from an access visit and had
      taken the children to a foreign country.

[8]

It
      seems to me, having considered the facts in this case and the facts in
      the case of
R. v. C.A.V.
that the reliance placed by the
      trial judge in this case on the case of
R. v. C.A.V.
was
      well founded.  It is difficult to discern any air of reality in the defence
      of necessity sought to be advanced by the applicant in this case.  There
      were clearly other avenues open to the applicant than the precipitate one
      of taking the child across the U.S. border and remaining there for a period
      of months.

[9]

A
      salient consideration in the decision of whether or not an order should
      be made for the appointment of counsel is the question of the likelihood
      of success of a proposed appeal:
R. v. Weismiller
, [1994]
      B.C.J. No. 2656 (C.A.);
R. v. Chan
, 2001 BCCA 138, [2001]
      B.C.J. No. 392.  I am not persuaded of the substance of the grounds sought
      to be advanced on appeal.  In my view, the chances of success of this appeal
      are slim to the vanishing point.  I do not perceive any basis on which
      it could be asserted that the ruling of the trial judge concerning the
      defence of necessity could successfully be attacked.  Because of these
      circumstances, in my opinion this is not an appropriate case in which to
      order the appointment of counsel and I therefore dismiss this application
      for the appointment of counsel.

The Honourable
Mr. Justice Hall


