R. v. Dawson (E.F.), (1996) 203 N.R. 254 (SCC)

• Judge: Cory, McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 21, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 203 N.R. 254 (SCC)

R. v. Dawson (E.F.) (1996), 203 N.R. 254 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Edward Frank Dawson (appellant) v. Her Majesty The Queen (respondent)

(24883)

Indexed As: R. v. Dawson (E.F.)

Supreme Court of Canada

L'Heureux-Dubé, Sopinka, Gonthier,

Cory, McLachlin, Iacobucci

and Major, JJ.

November 21, 1996.

Summary:

Common law spouses separated in 1986. The accused husband had consensual de facto custody of their son since then, with­out a court order. In 1992, the wife applied ex parte for custody and access and obtained a court order that, inter alia, gave her liberal access pending the hearing and prohibited removal of the child from Nova Scotia. The husband was served with the order, but denied the wife access except on his terms (supervised). The husband fled Nova Scotia with the child before the hearing and was found in California two years later. He was extradited to face charges of disobeying a court order and taking the child with intent to deprive the wife of possession, contrary to ss. 127(1) and 283 of the Criminal Code.

The Nova Scotia Supreme Court convicted the husband of disobeying a court order and sentenced him to five months' imprisonment plus two years' probation. The court ac­quitted the husband of taking the child with intent. The accused appealed the con­viction and sentence. The Crown appealed the ac­quittal.

The Nova Scotia Court of Appeal, in a judgment reported 143 N.S.R.(2d) 1; 411 A.P.R. 1, allowed the husband's conviction appeal. The court, Jones, J.A., dissenting, allowed the Crown's appeal and ordered a new trial on the taking with intent charge. The husband appealed the ordering of a new trial on the taking with intent charge.

The Supreme Court of Canada, McLachlin and Sopinka, JJ., dissenting, dismissed the appeal. The trial judge misinterpreted s. 283(1) and a new trial was required.

Criminal Law - Topic 1452

Abduction of child - Intention or mens rea - [See Criminal Law - Topic 1454 ].

Criminal Law - Topic 1453

Abduction of child - Defences - Consent - Section 283(1) of the Criminal Code made it an offence for a parent, guardian or person having lawful care or charge of a child under 14 to "take" the child with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of the child of possession of the child - Section 284 provided a defence where the taking was done "with the con­sent of the parent, guardian or other per­son having the lawful possession, care, or charge" of the child - The Supreme Court of Canada stated that "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" - See paragraphs 29 to 32.

Criminal Law - Topic 1454

Abduction of child - Taking defined - Common law spouses separated in 1986 - The father had custody of their child by agreement (no court order) - In 1992, the mother obtained an ex parte court order giving her access and sought custody - The father fled to California with the child before the custody hearing - The trial judge acquitted the father of taking the child with intent to deprive the mother of possession (Criminal Code, s. 283(1)), because the mother never had custody or physical possession at the time of the taking - The Supreme Court of Canada affirmed that the trial judge misinterpreted s. 283(1) - The word "take" did not require that the parent deprived of pos­session have actual physical control over or custody of the child at the time of the taking - The court stated that "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'" - Whether the wife had a right of pos­session sufficient to support a conviction under s. 283(1) was a question of fact which must be determined at the new trial - See paragraphs 13 to 40.

Cases Noticed:

Lorenz, Re (1905), 9 C.C.C. 158 (Que. K.B.), refd to. [para. 16].

R. v. Chartrand (J.), [1994] 2 S.C.R. 864; 170 N.R. 161; 74 O.A.C. 257; 91 C.C.C.(3d) 396, refd to. [para. 18].

Augustus v. Gosset, [1995] R.J.Q. 335 (Que. C.A.), refd to. [para. 20].

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [para. 20].

R. v. Cowan (1910), 17 O.W.R. 553 (Co. Ct.), refd to. [para. 21].

R. v. Anagnostis, [1970] 1 O.R. 595 (Co. Ct.), refd to. [para. 21].

R. v. Miller (1982), 36 O.R.(2d) 387 (Co. Ct.), refd to. [para. 21].

R. v. Enkirch (1982), 41 A.R. 387; 1 C.C.C.(3d) 165 (C.A.), refd to. [para. 21].

R. v. Cook (1984), 63 N.S.R.(2d) 35; 141 A.P.R. 35; 12 C.C.C.(3d) 471 (C.A.), refd to. [para. 21].

R. v. Hammerbeck (R.K.) (1991), 2 B.C.A.C. 123; 5 W.A.C. 123 (C.A.), refd to. [para. 21].

R. v. Petropoulos (1990), 59 C.C.C.(3d) 393 (B.C.C.A.), refd to. [paras. 26, 83].

R. v. Van Herk (1984), 53 A.R. 239; 40 C.R.(3d) 264 (C.A.), refd to. [para. 81].

Statutes Noticed:

Children's Services Act, S.N.B. 1976, c. 8, generally [para. 3].

Criminal Code, R.S.C. 1985, c. C-46, sect. 127(1) [para. 1]; sect. 281, sect. 282 [para. 23]; sect. 283(1) [paras. 6, 23, 51]; sect. 284 [paras. 29, 52]; sect. 691(2) [para. 11].

Family Maintenance Act, R.S.N.S. 1989, c. 160, sect. 18(4) [para. 43]; sect. 52 [para. 44]; sect. 127(1) [para. 8].

Guardianship Act, R.S.N.S. 1989, c. 189, sect. 4 [para. 44].

Authors and Works Noticed:

Canada, House of Commons, Standing Committee on Justice and Legal Affairs, Minutes of Proceedings and Evidence, Issue No. 93 (June 3, 1982), pp. 93:10, 93:11 [para. 22].

Ewaschuk, E.G., Abduction of Children by Parents (1978-79), 21 Crim. L.Q. 176, p. 179 [para. 21].

Grand Robert de la langue française (2nd Ed. 1986), t. 3, p. 1002 [para. 15]; t. 7, p. 779 [para. 17].

Johnstone, Bruce, Parental Child Abduc­tion under the Criminal Code (1987), 6 Can. J. Fam. L. 271, p. 273 [para. 21].

Oxford English Dictionary (2nd Ed. 1989), vol. 4, p. 490 [para. 17]; vol. 17, p. 564 [para. 15].

Pollet, Susan L., Parental kidnapping: can laws stem the tide (1993), 21 J. Psy­chiatry & L. 417, p. 419 [para. 21].

Sagatun, Inger J., and Barrett, Lin, Parental Child Abduction: The Law, Family Dynamics, and Legal System Responses (1990), 18 J. Crim. Just. 433, p. 434 [para. 21].

Watt, David, The New Offences Against the Person: The Provisions of Bill C-127 (1984), p. 141 [para. 15].

Counsel:

Jean A. Swantko, for the appellant;

William D. Delaney, for the respondent.

Solicitors of Record:

Jean A. Swantko, Bellows Falls, N.S., for the appellant;

Public Prosecution Service (Appeals Branch), Halifax, N.S., for the respon­dent.

This appeal was heard on June 12, 1996, before L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

On November 21, 1996, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

L'Heureux-Dubé, J. (Gonthier, Cory and Major, JJ., concurring) - see para­graphs 1 to 40;

Iacobucci, J. (Gonthier and Cory, JJ., concurring) - see paragraphs 41 to 50;

McLachlin, J. (Sopinka, J., concurring), dissenting - see paragraphs 51 to 96.