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Canadian Criminal Law/Offences/Abduction of a Young Person

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Legislation

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Abduction of person under sixteen
280. (1) Every one who, without lawful authority, takes or causes to be taken an unmarried person under the age of sixteen years out of the possession of and against the will of the parent or guardian of that person or of any other person who has the lawful care or charge of that person is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Definition of “guardian”
(2) In this section and sections 281 to 283, “guardian” includes any person who has in law or in fact the custody or control of another person.
R.S., c. C-34, s. 249; 1980-81-82-83, c. 125, s. 20.


Abduction of person under fourteen
281. Every one who, not being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, unlawfully takes, entices away, conceals, detains, receives or harbours that person with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
R.S., c. C-34, s. 250; 1980-81-82-83, c. 125, s. 20.


Abduction in contravention of custody order
282. (1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, in contravention of the custody provisions of a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.

Where no belief in validity of custody order
(2) 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 section 283, the accused may be convicted of an offence under section 283.
R.S., 1985, c. C-46, s. 282; 1993, c. 45, s. 4.


Abduction
283. (1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, whether or not there is a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person, is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.

Consent required
(2) No proceedings may be commenced under subsection (1) without the consent of the Attorney General or counsel instructed by him for that purpose.
R.S., 1985, c. C-46, s. 283; 1993, c. 45, s. 5.


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Elements of the Offence

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Abduction (s.283)

  1. the identity of the accused as the culprit
  2. the location of the incident
  3. the time and date of the incident
  4. the accused is a parent, guardian, or custodian of the victim
  5. the victim is under the age of 14
  6. the accused "unlawfully takes, entices away, conceals, detians, receives or harbours" the victim
  7. the accused "[intends] to deprive a parent or guardian or any other person who has the lawful care or charge of" the victim.

Interpretation

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The actus reus is made out by nothing more than "preventing a parent, guardian, or other person having lawful care or charge of the child, from exercising control over that child."[1]

As with any offence, the motive or reason for taking a child is not relevant except where is considered as part of a defence.[2]

Section 30 of the Interpretation Act determines age of the victim.

Lawful authority
"Lawful authority" provides an justification for those who take children from the control of their parent or guardian for their protection. Th purpose of this justification is to protect good Samaritans.[3]

  1. ↑ R. v. Dawson, 1996 CanLII 150 (SCC), [1996] 3 SCR 783
  2. ↑ R v FWB, 2013 SKPC 3 (CanLII) at para. 77
    R v Chartrand, 1994 CanLII 53 (SCC), [1994] 2 S.C.R. 864, para. 52 (“Whether the accused may have had an innocent motive, or intended to interfere with possession for a very short period of time is beside the point.”)
  3. ↑ Chartrand at para. 40

Defences

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Defence
284. No one shall be found guilty of an offence under sections 281 to 283 if he establishes that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was done with the consent of the parent, guardian or other person having the lawful possession, care or charge of that young person.
1980-81-82-83, c. 125, s. 20.


Defence
285. No one shall be found guilty of an offence under sections 280 to 283 if the court is satisfied that the taking, enticing away, concealing, detaining, receiving or harbouring 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.
R.S., 1985, c. C-46, s. 285; 1993, c. 45, s. 6.


No defence
286. In proceedings in respect of an offence under sections 280 to 283, it is not a defence to any charge that a young person consented to or suggested any conduct of the accused.
1980-81-82-83, c. 125, s. 20.


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Digest

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  • R v FWB, 2013 SKPC 3 (CanLII) - defence unsuccessfully argued necessity and s. 285
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