R. v. Dawson, [1996] 3 S.C.R. 783 (1996)

Docket Number:24883
 
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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...

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