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

Supreme Court of Canada

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

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 o...

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