R. v. Dawson

R. v. Dawson
Collection
Supreme Court Judgments
Date
1996-11-21
Report
[1996] 3 SCR 783
Case number
24883
Judges
L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Nova Scotia
Subjects
Criminal law
Notes
SCC Case Information: 24883
Decision Content
R. v. Dawson, [1996] 3 S.C.R. 783
Edward Frank Dawson Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Dawson
File No.: 24883.
1996: June 12; 1996: November 21.
Present: L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for nova scotia
Criminal law ‑‑ Child abduction in absence of custody order ‑‑ Elements of offence ‑‑ Whether accused parent can be convicted of child abduction under s. 283(1) of Criminal Code when child not in possession of deprived parent at time of offence ‑‑ Meaning of "takes" and "possession" ‑‑ Whether defence contained in s. 284 of Code applicable -- Criminal Code, R.S.C., 1985, c. C‑46, ss. 283(1) , 284 .
The accused father and his common law wife were separated in 1986. M, their 3‑year‑old son, originally remained with his mother but she became unable to care for him and, in December 1986, she agreed that M should live with his father and that he would be solely responsible for M’s upbringing. The mother later became dissatisfied with the limitations which the father was placing on her access to M and, in 1992, she applied to the Nova Scotia Family Court for custody and access. Pending the resolution of the matter, the Family Court ordered ex parte that the mother be granted “interim liberal access” and that M not be removed from Nova Scotia. Soon after being served with the interim order, the father left with M for California. The father was arrested two years later and, upon his return to Nova Scotia, was charged with abducting his child contrary to s. 283(1) (a) of the Criminal Code . That section makes it offence for a parent, guardian or lawful custodian of a child to take a child, not the subject of a custody order, with intent to deprive another parent or guardian or lawful custodian of the child of possession of that child. The father was acquitted at trial on the ground that he had not “taken” M from his mother since, at all material times, M was legally in the father’s care. The majority of the Court of Appeal overturned the acquittal and ordered a new trial.
Held (Sopinka and McLachlin JJ. dissenting): The appeal should be dismissed.
Per L’Heureux‑Dubé, Gonthier, Cory, Iacobucci and Major JJ.: The trial judge erred in his interpretation of s. 283(1) of the Code. Since the section states that the offence of child abduction can be committed by the “parent, guardian or person having the lawful care or charge” of the child, a person can clearly be found guilty notwithstanding that he or she is the child’s parent or that he or she had lawful care of the child.
Section 283 does not require that the deprived parent, guardian or other person having lawful care or charge of the child must actually have had possession of the child at the moment of the offence for an accused to be convicted. Reading the English and French texts of s. 283(1) together, a “taking” or “enlèvement” occurs where the accused causes the child to come or go with him or her, and, in the process, excludes the authority of another person who has lawful care or charge of the child. Further, by also prohibiting acts such as “concealing”, “harbouring” and “receiving” — acts which can only be committed while the child is not in the possession of the deprived parent — Parliament has indicated that child abduction by a parent, even in the absence of a custody order, can be found to have occurred regardless of whether the child was in the possession of the deprived parent at the relevant time. There is nothing in the mens rea of s. 283(1) to suggest otherwise. An accused would have the requisite “intent to deprive [the other parent] of the possession” if he or she intended to keep the other parent from having a possession to which he or she would otherwise be entitled. The word “possession” is not limited to circumstances in which the deprived parent is actually in physical control of the child at the time of the taking, but extends to the ability to exercise control over the child. By enacting ss. 281 to 283, Parliament has decided that the protection of children rests in ensuring that people entitled to exercise care and control over children are able to do so. Accordingly, Parliament has criminalized conduct — whether by a stranger or a parent, and whether or not there is a custody order in force — that intentionally interferes with a parent’s lawful exercise of care and control over the children. An interpretation of s. 283 which does not require that the deprived parent have possession of the child at the moment of the offence is consistent with the purpose and scheme of the child abduction provisions. Such an interpretation does not have the effect of unduly expanding the scope of criminal liability, and elevating a deprivation of access to the status of criminal conduct. No accused will be convicted under s. 283 unless he or she intended to deprive a person entitled to possession of the child of that possession.
Under s. 284 of the Code, a person who takes a child with intent to deprive the child’s parent, or another person having lawful care or charge of the child, of possession of the child cannot escape liability by giving his or her own consent to the taking. The consent referred to in s. 284 must come, not from the accused himself or herself, but from the person whom the accused intended to deprive of possession of the child.
It is not the role of this Court to determine whether the mother was entitled to M's possession. That issue should be determined at the new trial on the basis of the evidence adduced. Iacobucci J.'s comments in reply to McLachlin J.'s reasons are agreed with.
Finally, the Court of Appeal did not err in law by allowing the Crown’s appeal from the accused’s acquittal at trial. The Crown’s appeal was based on a question of law ‑‑ namely, the proper interpretation of the actus reus of s. 283 of the Code.
Per Gonthier, Cory and Iacobucci JJ.: The role of the purported custody “agreement” between the father and the mother can arguably be safely discounted. In cases such as this one, the Nova Scotia Family Maintenance Act appears to supplant the common law of contracts as it pertains to agreements between spouses on care and custody matters. Section 18(4) of this Act establishes, as a baseline, that both parents are entitled to care and custody of the child unless a court orders otherwise. An agreement may have the effect of an order, but only if it has been registered in a court (s. 52). No formal order was made in this case, and the 1986 agreement appears not to have been registered. The 1992 order granting “interim liberal access” to the mother did not, by implication, grant care and custody to the father. A parent’s statutory right to joint custody of her child should not be abrogated except in the clearest of terms. Therefore, as there was no order made by the court otherwise, there was no evidence before it that might upset the statutory presumption of joint care and custody. Both parents retained their entitlement to care and custody of the child. Consequently, it cannot be said, on the basis of the agreement, that the father did not take M from the possession of his mother.
Even if it were accepted that the common law of contracts governs in this case, it would still not follow that the father should prevail. Whatever may be the literal terms of the purported custody agreement, it is possible that for reasons of equity an implied condition might be found that the father should not remove M from the country. It is impossible, however, to say in advance whether such a condition should be found. The inquiry must be left to the trial judge.
Although there is a concern that a parent who inadvertently and only technically breaches the other parent’s custody rights may face imprisonment, it should be emphasized that the mens rea of the offence is not simply the intention to take the child, but the intention to take the child from the possession of one who is entitled to that possession. Because the latter kind of intent is serious, prosecution of trifling offences under s. 283 is not to be expected.
Per Sopinka and McLachlin JJ. (dissenting): Section 283(1) of the Code targets the act of taking a child where there is no custody order in place. Certain conditions, however, must be fulfilled before the act of taking becomes criminal: the person taking must have lawful custody and the taking must be with the “intent to deprive” the other parent “of the possession of” the child. The section thus contemplates the situation where people share custody or “possession” of the child. Possession is used in the legal sense of right of possession. It is not necessary that the deprived parent have physical possession of the child at the time of the taking. What is required, at a minimum, is that the deprived parent have a right to possession of the child.
The central issue in this appeal is the effect of a custody agreement, as opposed to a court order, on a parent’s common law custody rights. A parent may give up his or her right to custody by entering into an agreement conferring sole custody on the other parent. Notwithstanding the absence of a court order, a parent who does so no longer has a right to possession of the child of which he or she can be deprived, unless custody is restored by the termination of the agreement, a new agreement, or a court order. It follows that s. 283(1) would find no application in a situation where sole custody has been conferred upon the “taking” parent. It is unquestioned that common law rights, including the right to custody of a child, may be altered by contract. Here, the trial judge was correct in acquitting the father of the offence of child abduction. After the separation, the mother initially had a right to possession of the child at common law, as confirmed by the Nova Scotia Family Maintenance Act, but the trial judge found that the mother, by oral agreement with the father in December 1986, validly conveyed her common law right to possession and custody of the child to the father and that the agreement was still in force. These findings were amply supported by the evidence and should not have been disturbed by the Court of Appeal. The court erred in concluding that the agreement, as opposed to a court order, could not affect a parent’s original right to custody. Further, the father’s interference with the mother’s exercise of her access rights did not constitute a deprivation of possession under s. 283(1) . Possession, in contrast to access, comports the right and responsibility of care and control of the child. While the terms of access may be so generous that the non‑custodial spouse in fact exercises a significant degree of care and control over the child, the trial judge’s findings in this case negate any suggestion that the mother had any control or responsibility over the child. She had the right to visit the child; she did not have the control or responsibility for him required to establish possession. Finally, this Court should not rule on the issue of whether unregistered custody agreements may be of no force in Nova Scotia since this issue was not properly raised, considered and argued in this case. With respect to s. 18(4) of the Family Maintenance Act, in the context of a criminal trial, the Crown bore the burden of showing that the father did not have an exclusive right of possession to the child at the time of taking. The Crown not having raised s. 18(4) at trial, it is not for this Court at this stage of the proceedings to raise it to the end of discharging the burden that lay on the Crown.
The line between wrongful but non‑criminal failure to respect parental rights on the one hand, and child abduction under s. 283(1) on the other, lies at the point where the wrongdoer takes the child with intent to thwart the established right (by court order or agreement) of control and care of the other parent. On one side of the line the remedies are civil, on the other criminal. Section 283(1) draws the line at this point by requiring intent to deprive the other parent of possession of the child, a concept that goes beyond mere interference with access rights or a hypothetical possibility of a future right to possession. While arguments can be raised for an interpretation of s. 283(1) that would criminalize virtually any interference with access rights or future custody rights, given the severity of the criminal sanction, reserved for the most reprehensible conduct in our society, there is no reason to interpret the section that broadly. Less serious breaches are better left to civil sanctions.
Cases Cited
By L’Heureux‑Dubé J.
Referred to: Re Lorenz (1905), 9 C.C.C. 158; R. v. Chartrand, [1994] 2 S.C.R. 864; Augustus v. Gosset, [1995] R.J.Q. 335; Gordon v. Goertz, [1996] 2 S.C.R. 27; R. v. Cowan (1910), 17 O.W.R. 553; R. v. Anagnostis, [1970] 1 O.R. 595; R. v. Miller (1982), 36 O.R. (2d) 387; R. v. Enkirch (1982), 1 C.C.C. (3d) 165; R. v. Cook (1984), 12 C.C.C. (3d) 471; R. v. Hammerbeck (1991), 2 B.C.A.C. 123; R. v. Petropoulos (1990), 59 C.C.C. (3d) 393.
By McLachlin J. (dissenting)
R. v. Van Herk (1984), 40 C.R. (3d) 264; R. v. Petropoulos (1990), 59 C.C.C. (3d) 393.
Statutes and Regulations Cited
Children’s Services Act, S.N.S. 1976, c. 8.
Criminal Code, R.S.C., 1985, c. C‑46, ss. 127(1) , 281 , 282 , 283 , 284 , 691(2) [am. 1991, c. 43, s. 9 (Sch., item 9)].
Criminal Code, R.S.C. 1970, c. C‑34, s. 250.
Family Maintenance Act, R.S.N.S. 1989, c. 160, ss. 18(4), 52 [am. 1994‑95, c. 6, s. 63(4)].
Guardianship Act, R.S.N.S. 1989, c. 189, s. 4.
Authors Cited
Canada. House of Commons. Standing Committee on Justice and Legal Affairs. Minutes of Proceedings and Evidence, Issue No. 93, June 3, 1982, at pp. 93:10 and 93:11.
Ewaschuk, E. G. “Abduction of Children by Parents” (1978‑79), 21 Crim. L.Q. 176.
Grand Robert de la langue française, 2e éd. Paris: Le Robert, 1986, “enlever”, “priver”.
Johnstone, Bruce. “Parental Child Abduction Under the Criminal Code ” (1987), 6 Can. J. Fam. L. 271.
Oxford English Dictionary, 2nd ed. Oxford: Clarendon Press, 1989, “deprive”, “take”.
Pollet, Susan L. “Parental Kidnapping: Can Laws Stem the Tide?” (1993), 21 J. Psychiatry & L. 417.
Sagatun, Inger J., and Lin Barrett. “Parental Child Abduction: The Law, Family Dynamics, and Legal System Responses” (1990), 18 J. Crim. Just. 433.
Watt, David. The New Offences Against the Person: The Provisions of Bill C‑127. Toronto: Butterworths, 1984.
APPEAL from a judgment of the Nova Scotia Court of Appeal (1995), 143 N.S.R. (2d) 1, 411 A.P.R. 1, 100 C.C.C. (3d) 123, 16 R.F.L. (4th) 279, allowing the accused’s appeal from his conviction on the charge of disobeying a court order, contrary to s. 127 of the Criminal Code , allowing the Crown’s appeal from the accused’s acquittal on the charge of taking a child with intent to deprive the child’s mother of possession, contrary to s. 283 of the Criminal Code , and ordering a new trial. Appeal dismissed, Sopinka and McLachlin JJ. dissenting.
Jean A. Swantko, for the appellant.
William D. Delaney, for the respondent.
\\L’Heureux-Dubé J.\\
The judgment of L’Heureux-Dubé, Gonthier, Cory and Major JJ. was delivered by
L’Heureux-Dubé J. --
I. Introduction
1 The appellant lived on the Myrtle Tree Farm at Waterville, Nova Scotia, with his young son Michael, until Michael’s mother arrived at the farm with a court order for “interim liberal access” pending a final determination of her application for custody of Michael. Soon thereafter, the appellant disappeared with the child. When the appellant was finally apprehended two years later, he was living in California with Michael under an assumed name. He was charged with child abduction under s. 283 of the Criminal Code, R.S.C., 1985, c. C-46 , but contends that he is not guilty, essentially because an accused cannot be found to have “taken” a child, within the meaning of s. 283 , unless, at the time of the offence, the child was in the possession of the other parent, guardian or person having the lawful care or charge of the child. The appellant was also charged under s. 127(1) of the Criminal Code for violating a provision of the interim access order requiring that Michael not be removed from Nova Scotia.
II. Facts
2 Michael Dawson was born on January 31, 1983, to Judith Seymour and the appellant. The appellant was physically abusive towards Seymour, and the couple were separated just before Michael’s third birthday. Later that year, the appellant underwent a religious conversion and took up residence in a religious community at Clark’s Harbour, Nova Scotia. Although Michael originally remained with his mother, she became unable to care for him, and, in December 1986, Seymour agreed that Michael should live with the appellant. It was also agreed that the appellant would be solely responsible for Michael’s upbringing. In August 1987, the appellant and Michael moved to an affiliated religious community located on the Myrtle Tree Farm at Waterville, Nova Scotia.
3 Near the end of 1987, Michael was taken from his father by provincial officials acting under an order of the Family Court of Nova Scotia, on the ground that he was a “child in need of protection” within the meaning of the Children’s Services Act, S.N.S. 1976, c. 8. Lengthy court proceedings ensued, at the conclusion of which the Nova Scotia Court of Appeal held that the Family Court’s order was ultra vires and ordered that Michael be returned to his father.
4 Over the next few years, Seymour became dissatisfied with the limitations which the appellant was placing on her access to Michael, and, in 1992, she applied to the Family Court for custody and access. Pending the resolution of the matter, the Family Court ordered ex parte that Seymour be granted “interim liberal access” and that Michael not be removed from Nova Scotia.
5 Soon after being served with the interim order, the appellant vanished, taking Michael with him. He sent a letter to the Chief Judge of the Family Court, explaining that he was motivated purely by a desire to protect Michael’s interests.
6 Seymour heard nothing from the appellant or their son until two years later, when the appellant was arrested. At the time of his arrest, the appellant was living with Michael in California under an assumed name. The appellant and Michael were returned to Nova Scotia, where the appellant was charged with having disobeyed a court order contrary to s. 127(1) of the Criminal Code and with having “taken” Michael contrary to s. 283(1)(a) of the Code. Throughout the relevant period, the latter provision read as follows:
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, in relation to whom no custody order has been 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; [Emphasis added.]
The prosecution under s. 283(1) (a) was duly authorized on behalf of the provincial Attorney General as required by s. 283(2).
III. Judgments
A. Nova Scotia Supreme Court
7 At trial, the appellant was convicted of the charge under s. 127(1) . He was acquitted, however, of the abduction charge under s. 283(1) (a), on the ground that he had not “taken the child Michael from anyone”. Although the appellant had taken steps to frustrate Seymour’s access, Michael “was legally in the care of his father ... at all times from 1986”.
B. Nova Scotia Court of Appeal (1995), 100 C.C.C. (3d) 123
8 With respect to s. 127(1) , the Court of Appeal unanimously overturned the conviction and substituted an acquittal, on the ground that s. 127(1) does not apply to violations of orders made under the Family Maintenance Act, R.S.N.S. 1989, c. 160. The Court of Appeal’s decision on s. 127(1) is not under appeal.
9 However, the Court of Appeal also overturned the appellant’s acquittal under s. 283(1) and ordered a new trial. Hallett J.A., writing for the majority, observed that the word “take” does not import any requirement that the person whom the accused intended to deprive of possession — hereinafter, the “deprived parent” — have physical control over the child at the time of the taking. While Hallett J.A. acknowledged that, if there has been a taking, a court must then determine whether the child was taken with the intent to deprive a parent (or a guardian or other person having care or charge of the child) of possession of the child, he emphasized that the notion of possession, in the context of this determination, includes actual possession or a right to possession.
10 Jones J.A., dissenting, would have upheld the acquittal under s. 283(1) . According to Jones J.A., only by intentionally removing the child from the possession of the deprived parent, can an accused commit child abduction within the meaning of s. 283 , because the essence of the crime of child abduction is the removal of a child from the possession of its parent rather than the frustration of “rights” of possession.
11 As a result of the decision of the Court of Appeal setting aside the appellant’s acquittal of the offence under s. 283(1) , the appellant appeals as of right to this Court pursuant to s. 691(2) of the Criminal Code .
IV. Issues
12 The appellant raises the following issues:
A.Did the Court of Appeal err in law in ruling that the word “takes” as it appears in s. 283(1) of the Criminal Code does not import a requirement that the deprived parent have possession of the child at the time of the offence?
B.Did the Court of Appeal err in law by failing to apply the defence of consent contained in s. 284 of the Criminal Code ?
C.Did the Court of Appeal err in law in holding that the ex parte order of the Family Court gave Seymour a right to possession of the child?
D.Did the Court of Appeal err in law by allowing the Crown’s appeal from the acquittal entered at trial, when the Crown’s appeal failed to raise a question of law?
V. Analysis
13 To avoid confusion about the scope of this appeal, I would observe at the outset that this appeal, like any appeal as of right to this Court, is restricted to questions of law. Consequently, despite the appellant’s contention that, in light of the agreement between Seymour and the appellant regarding Michael’s upbringing, Seymour is not entitled to the possession of Michael, it is not the role of this Court to resolve this or any other factual controversy. Rather, we are called upon to decide whether the trial judge erred in law in his interpretation of s. 283 . If we agree with the Court of Appeal that the trial judge committed an error of law, then, unless the same verdict is inevitable, we must uphold the order for a new trial and leave all factual issues to be resolved in that forum.
A.Whether the word “takes” imports a requirement that the deprived parent have possession of the child at the time of the offence
14 The trial judge found the appellant not guilty of child abduction, on the basis that the appellant could not have “taken” Michael because the child “was legally in the care of his father” at all material times. The terms in which s. 283 is drafted, however, leave no room for this interpretation. Section 283(1) states that the offence can be committed by the “parent, guardian or person having the lawful care or charge” of the child (emphasis added). Clearly, a person can be found guilty under s. 283 notwithstanding that he or she is the child’s parent or that he or she had lawful care of the child.
15 The appellant, for his part, develops a slightly different argument as to why his acquittal should be upheld. He urges that an accused cannot be convicted under s. 283 unless the deprived parent had possession of the child at the moment of the offence. Yet the breadth of the terms selected by Parliament to express the prohibited acts militates against such a requirement. The word “take”, for example, used in the English text of the section, is commonly understood to mean, inter alia, “to cause (a person or animal) to go with one”: Oxford English Dictionary (2nd ed. 1989), vol. XVII, at p. 564; see also D. Watt, The New Offences Against the Person: The Provisions of Bill C-127 (1984), at p. 141. The verb “enlever”, which appears in the French text, is somewhat more precise, as it connotes the action of “soustraire (une personne) à l’autorité de ceux qui en ont la garde”: Le Grand Robert de la langue française (2nd ed. 1986), t. III, at p. 1002. Reading the two texts together, I conclude that a “taking” or “enlèvement” occurs where the accused causes the child to come or go with him or her, and, in the process, excludes the authority of another person who has lawful care or charge of the child. There is nothing in s. 283 to suggest that the deprived parent, guardian or other person having lawful care or charge of the child must actually have had possession of the child at the moment of the offence. Indeed, by also prohibiting acts such as “concealing”, “harbouring” and “receiving” — acts which can only be committed while the child is not in the possession of the deprived parent — Parliament has indicated that child abduction by a parent, even in the absence of a custody order, can be found to have occurred regardless of whether the child was in the possession of the deprived parent at the relevant time.
16 Finding little to support his position in the words used to describe the actus reus of s. 283 , the appellant rests his argument in large part on the formulation of the mens rea of the offence. He points out that an accused cannot be convicted unless he or she had the “intent to deprive [the other parent] of the possession” of the child, and asserts that a person cannot be “deprived” of something that he or she does not have. However, this argument has been made before, and it did not find favour even under the more narrowly worded provisions in force prior to ss. 281 to 283 . In an often-cited case, Re Lorenz (1905), 9 C.C.C. 158 (Que. K.B.), an alleged abductor contended that “she could not be held guilty of taking away from her husband what he had not actually had, viz., the possession of the child, although he might be legally entitled to it” (p. 161). The court dismissed the argument, stating that when the statute spoke of the “intent to deprive . . . of the possession”, it is not “the possession he has had of which the parent has been deprived, but of that to which he is entitled” (pp. 161-62 (emphasis in original)).
17 Indeed, to “deprive” a person of something means, among other things, to keep that person from that which he or she would otherwise have: Oxford English Dictionary, supra, vol. IV, at p. 490. Similarly, the French verb “priver” means “empêcher (qqn) de jouir d’un bien, d’un avantage présent ou futur; enlever à (qqn) ce qu’il a ou lui refuser ce qu’il espère, ce qu’il attend”: Le Grand Robert, supra, t. VII, at p. 779. This suggests that the accused would have the requisite intent if he or she intended to keep the other parent from having a possession to which he or she would otherwise be entitled.
18 Moreover, this Court considered the meaning of the phrase “with intent to deprive ... of the possession” under s. 281 of the Criminal Code , in R. v. Chartrand, [1994] 2 S.C.R. 864, and observed that “possession” is not limited to circumstances in which the deprived parent is actually in physical control of the child at the time of the taking, but extends to the ability to exercise control over the child. Consequently, the intent to deprive of possession will exist whenever “the taker knows or foresees that his or her actions would be certain or substantially certain to result in the parents (guardians, etc.) being deprived of the ability to exercise control over the child”: Chartrand, at p. 889. There is nothing in this mens rea to suggest that the actus reus requires anything more than preventing a parent, guardian, or other person having lawful care or charge of the child, from exercising control over that child.
19 The appellant further contends that the interpretation favoured by the Court of Appeal has the effect of unduly expanding the scope of criminal liability, and elevating a deprivation of access to the status of criminal conduct. It must be borne in mind, however, that the essence of the offence is an intentional interference with a parent’s ability to exercise control over his or her child. No accused will be convicted under s. 283 unless he or she intended to deprive a person entitled to possession of the child of that possession. And if an accused does take a child and thereby excludes the authority of a person who has lawful care or charge of the child, with intent to deprive that person of the possession of the child, I see no reason to permit the accused to hide behind his or her status as a custodial parent or the other parent’s status as an access parent.
20 In this connection, it is important to remember, as Deschamps J.A. of the Quebec Court of Appeal wrote in Augustus v. Gosset, [1995] R.J.Q. 335, that “if parental status entails responsibilities, it is the source of few right[s]” (p. 357). Indeed, all rights of custody and access exist only to the extent that they permit the custodial or access parent to act in the best interests of the child: Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 69, per L’Heureux-Dubé J. It follows that although the parties and the courts below speak of ss. 281 to 283 as provisions enacted for the protection of parental “rights”, their ultimate purpose is the protection of children. In Chartrand, supra, we described this purpose in this way (at p. 880):
. . . to secure the right and ability of parents (guardians, etc.) to exercise control over their children . . . for the protection of those children, and at the same time to prevent the risk of harm to children by diminishing their vulnerability.
This description was given in the context of s. 281 ; however, I believe that s. 283 has the same broad purpose. Parliament has decided that the protection of children rests in ensuring that people entitled to exercise care and control over children are able to do so. Accordingly, by enacting ss. 281 to 283 , Parliament has criminalized conduct — whether by a stranger or a parent, and whether or not there is a custody order in force — that intentionally interferes with a parent’s lawful exercise of care and control over the children.
21 Before 1983, the Criminal Code did not distinguish explicitly between parents and strangers. Section 250 provided simply that:
250. (1) Every one who, with intent to deprive a parent or guardian or any other person who has lawful care or charge of a child under the age of fourteen years of the possession of that child, or with intent to steal anything on or about the person of such a child, unlawfully
(a) takes or entices away or detains the child, or
(b) receives or harbours the child,
is guilty of an indictable offence and is liable to imprisonment for ten years.
(2) This section does not apply to a person who, claiming in good faith a right to possession of a child, obtains possession of the child. [Emphasis added.]
However, courts generally held the view that, in the absence of a judicial order to the contrary, a parent had authority over and a right to possession of his own child and, therefore, could not be found guilty of child abduction. They therefore interpreted s. 250(2) as being available to any parent accused of abducting his or her own child, unless the taking violated a custody order: see R. v. Cowan (1910), 17 O.W.R. 553 (Co. Ct.), at p. 554; R. v. Anagnostis, [1970] 1 O.R. 595 (Co. Ct.), at p. 597; R. v. Miller (1982), 36 O.R. (2d) 387 (Co. Ct.); R. v. Enkirch (1982), 1 C.C.C. (3d) 165 (Alta. C.A.); R. v. Cook (1984), 12 C.C.C. (3d) 471 (N.S.C.A.), at p. 475; R. v. Hammerbeck (1991), 2 B.C.A.C. 123; E. G. Ewaschuk, “Abduction of Children by Parents” (1978-79), 21 Crim. L.Q. 176, at p. 179; B. Johnstone, “Parental Child Abduction Under the Criminal Code ” (1987), 6 Can. J. Fam. L. 271, at p. 273; I. J. Sagatun and L. Barrett, “Parental Child Abduction: The Law, Family Dynamics, and Legal System Responses” (1990), 18 J. Crim. Just. 433, at p. 434; and S. L. Pollet, “Parental Kidnapping: Can Laws Stem the Tide?” (1993), 21 J. Psychiatry & L. 417, at p. 419.
22 The state of the law before 1983 was subject to criticism for neglecting the large number of child abductions which occur in advance of a court order for custody. The problem of pre-emptive abductions was discussed by Sagatun and Barrett, supra, at p. 437, for example, and by children’s advocates before the Standing Committee on Justice and Legal Affairs, Minutes of Proceedings and Evidence of June 3, 1982, at pp. 93:10 and 93:11. Section 250, as interpreted by the courts, contained a sizable loophole which permitted a parent anticipating an application for custody by the other parent to short-circuit the court proceedings simply by taking the children.
23 The 1983 amendments (S.C. 1980-81-82-83, c. 125, s. 20) closed this gap. The Code continues to prohibit takings by strangers (now s. 281 ), and takings by a parent in contravention of the custody provisions of a custody order (now s. 282 ). However, it also contains a completely new section (s. 283 ) which extends criminal liability to intentional takings — the same actus reus and mens rea described in ss. 281 and 282 — committed by a parent even in the absence of a custody order. Thus, by the time of the incidents which gave rise to the present appeal, the provisions read as follows:
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.
282. 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.
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, in relation to whom no custody order has been 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. [Emphasis added.]
All three offences involve taking, enticing away, concealing, detaining, receiving or harbouring a child with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of the child, of the possession of that child. They differ only as to the identity of the person who commits the offence (whether a stranger or a parent) and as to the existence or violation of a custody order in respect of the child.
24 In repealing s. 250(2) and adding what is now s. 283 , Parliament clearly intended to expand the reach of the child abduction provisions so as to protect children from unilateral removal, even in the absence of a custody order, and even by a person who could, in some sense, claim a right to possession of the child. The interpretation favoured by the appellant would unacceptably undermine this purpose.
25 Indeed, if the appellant’s submissions on this question of law were accepted, it would severely reduce the scope of all three child abduction offences. For example, a non-custodial parent who, in contravention of a custody order, acted as the appellant is alleged to have done, would escape criminal liability under s. 282 . There would have been no “taking”, since the deprived custodial parent did not actually have the possession of the child at the time of the offence. Similarly, under the appellant’s interpretation, a stranger who plucked a lost child off the street, with intent to deprive the child’s parents of the possession of the child, could not be convicted under s. 281 . There would be no “taking”, as the child was not in the possession of its parents at the time of the alleged offence.
26 The courts have consistently refused to adopt such a narrow interpretation of the offence of child abduction. An excellent example is the Nova Scotia Court of Appeal’s decision in Cook, supra, which the appellant himself calls the “seminal decision” on s. 283 . In that case, far from confirming the right of a parent to disappear with his or her children provided that they are not taken from the actual possession of the other parent, the Nova Scotia Court of Appeal in fact upheld the conviction of a father in circumstances quite similar to those of the case at bar. In Cook, as here, there was no custody order in respect of the child, so both parents were entitled to custody of the child by virtue of the Family Maintenance Act. As in the case at bar, the accused had possession of the child with the permission of the mother (although, admittedly, in Cook the permission was much more limited). As in the case at bar, the accused vanished with the child. The Nova Scotia Court of Appeal upheld the accused’s conviction for abduction under s. 283 . See also R. v. Petropoulos (1990), 59 C.C.C. (3d) 393 (B.C.C.A.).
27 Even under the pre-1983 legislation, courts have upheld convictions for child abduction where the child was not in the possession of the deprived parent. In Enkirch, supra, for example, another decision relied on by the appellant, the Alberta Court of Appeal entered a conviction against an accused under former s. 250 notwithstanding that there had been no transfer of possession and that, at the time of the offence, the child was lawfully in the possession of the accused under the access terms of a custody order.
28 These decisions are consistent with the proposition that a “taking” can be found to have occurred notwithstanding that the children were not removed from the actual physical possession of the deprived parent but were, in fact, in the possession of the depriving parent. Considering the scheme and purpose of ss. 281 to 283 as well as the wording of the provisions, I am left with no doubt that the principle underlying these decisions is correct. There is no requirement in s. 283 that the deprived parent have the possession of the child at the moment of the alleged offence. Accordingly, this ground of appeal must fail.
B.Whether the Court of Appeal erred in law by failing to apply the de