Other Offences Against Children

• Author: Lisa Joyal/Jennifer Gibson/Lisa Henderson/David Berg/Kasandra Cronin
• Pages: 467-528



Other

Oences

Against

Children

11

I. Introduction ............................................. 468

II. Child Abandonment ....................................... 468

A. Overview of the Statutory Framework ................... 468

B. Elements of the Offence .............................. 469

C. Actus Reus ......................................... 469

D. Mens Rea .......................................... 472

E. Defences to Child Abandonment Offences ............... 473

III. Child Abduction .......................................... 478

A. Introduction ........................................ 478

B. Statutory Framework ................................. 480

C. Legislative Purpose of the Offence Provisions ............ 482

D. Elements of the Offences ............................. 482

E. Actus Reus ......................................... 486

F. Mens Rea .......................................... 495

G. Defences to Offences of Child Abduction ................ 501

IV. Corrupting Children ....................................... 511

A. Elements of the Offence .............................. 512

B. Actus Reus ......................................... 513

C. Mens Rea .......................................... 518

V. Child Marriage ........................................... 518

VI. Removal of a Child from Canada for the Purpose of

Committing an Enumerated Offence ......................... 520

VII. Enumerated Child Abuse Offences Committed Outside Canada

Deemed to Have Been Committed in Canada .................. 523

© [2023] Emond Montgomery Publications. All Rights Reserved.

Prosecuting and Defending Oences Against Children

I. Introduction

Chapters 6 to 10 have reviewed the main types of child abuse offences prosecuted in

Canada. However, there are a few other child abuse offences contained within the

Criminal Code that, for the purposes of this text, should also be discussed:

1. child abandonment (s 218),

2. child abduction (ss 280-83),

3. corrupting children (s 172),

4. child marriage (s 293.2),

5. removal of a child from Canada for the purpose of committing an offence

(s273.3), and

6. child abuse offences committed outside Canada deemed to be committed in

Canada (s 7(4.1)-(4.11)).

These offences, and the defences that relate to them, are discussed below.

II. Child Abandonment

A. Overview of the Statutory Framework

Section 218 of the Criminal Code establishes the offence of child abandonment. Sec-

tion 218 states:

Abandoning child

218 Every one who unlawfully abandons or exposes a child who is under the age of

ten years, so that its life is or is likely to be endangered or its health is or is likely to be

permanently injured,

(a) is guilty of an indictable offence and liable to imprisonment for a term not

exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

The offence of “child abandonment” was first enacted in 1869 in An Act respect-

ing Offences against the Person.1 In 1892, the offence of “child abandonment” was

included as part of Canada’s first Criminal Code.2 However, it was not until the 2013

decision of R v ADH 3 that the Supreme Court of Canada had its first opportunity to

explain the purpose of the offence provision, interpret its elements, and identify its

mental fault requirement.4

1 SC 1869, c 20, s 26; R v ADH, 2013 SCC 28 at para 35.

2 R v ADH, supra note 1 at para 36.

3 Ibid.

4 Ibid at para 18.

© [2023] Emond Montgomery Publications. All Rights Reserved.

Chapter 11 Other Offences Against Children 

In essence, section 218 is child protection legislation. This section criminalizes the

creation of the risk of permanent injury or death that is likely to occur from the act of

“abandoning” or “exposing” a child.5 The purpose of the statutory provision is “the

protection of children from risk, even when no harm occurs.”6

B. Elements of the Oence

In order to prove an offence of child abandonment, the Crown must establish the

following:

1. the accused “abandoned” or “exposed” a child;

2. the child was under ten years of age;

3. the accused abandoned or exposed the child in a manner such that:

– the child’s life “was” or “was likely to be” endangered, or

– the child’s health “was” or “was likely to be” permanently injured;

4. the accused intended or knew that the act of abandonment or exposure of the

child was such that:

– the child’s life was or was “likely to be” endangered, or

– the child’s health was or was “likely to be” permanently injured; and

5. there was no lawful excuse or justification for the abandonment.

C. Actus Reus

The offence of child abandonment in section 218 of the Criminal Code has a broad

scope. It applies to all persons and criminalizes acts of both commission and omission.

Additionally, the breadth of the terms “abandonment” and “exposure” contained

within the offence provision means that section 218 is capable of capturing many

different types of conduct that create a serious risk of harm to children. The main

components of the actus reus of the offence of child abandonment are reviewedbelow.

1. “Every One”

A child abandonment offence may be committed by “every one.” Section 218 of the

Criminal Code “is not restricted to persons in particular relationships or under speci-

fied, statutorily created legal duties” toward the child.7

2. “Unlawfully”

The term “unlawfully” within section 218 means no more than “without lawful jus-

tification or excuse.”8

5 Ibid at para 51 (also at para 81, Moldaver J in dissent, though not on this point).

6 Ibid at para 39.

7 Ibid at paras 7, 60; R v CCD, [1998] OJ No 4875 (QL) (Ct J).

8 R v ADH, supra note 1.

© [2023] Emond Montgomery Publications. All Rights Reserved.