Abduction of a Young Person (s. 280 – 286) Laws in Canada

What is the Abduction of a Young Person in Canada?

Abducting a young person is criminalized under sections 280-286 of the Canadian Criminal Code within Part VIII – Kidnapping, Trafficking in Persons, Hostage Taking and Abduction.  There are essentially four categories or ‘classifications’ of child abduction in Canada.

• The abduction of a person under the age of 16 (see: 280).
• The abduction of a person under the age of 14 (see: 281).
• Parental abduction is contrary to a custody order (see: 282).
• General parental abduction (see: 283).

Generally, to abduct someone in Canada means to take them against someone else’s will. These cases are common in the context of family or domestic disputes (e.g., children being taken by their own parents). Abduction is different from kidnapping whereas abduction means to ‘steal’ the person from another and kidnapping means to ‘steal’ the person generally (see: R v Oakley, 1977 ALTASCAD 118 (CanLII)). Abduction in Canada has more to do with the removal or taking of a child from their parents/guardians whereas kidnapping casts a wider net over offences against the person. How one might be charged with the abduction of a young person will depend on the age of the victim, the relationship the victim has to the offender and the circumstances surrounding the victim’s abduction.

Examples

Some examples of abduction of a young person may include:

• A stranger lures or entices a young person (under the age of 16) away from their parent or guardian in a public space such as a park
• A young person is enticed or coerced into going with a stranger or a person whom they know, against their parent’s will
• A parent takes and/or conceals their child from the other parent who has a legal entitlement to be with that child
• Another family member takes and/or conceals a child from their parents or guardians
• A parent takes and/or conceals a child in contravention of a custodial order restricting that parent’s access to the victim (their child)

Note that there are many different scenarios which could constitute abduction of a young person and this is not an exhaustive list.

Defences

A strong defence to a charge of abduction of a young person will depend on the circumstances of one’s case.

However, some common defences against a charge of abduction of a young person include:

• Consent
• Necessity
• Mistake of fact (age of the child)
• Any applicable Charter defences

Punishment

All abduction of a young person offences are what are known as hybrid offences. Hybrid offences provide the Crown with the opportunity to decide whether the crime warrants an indictable charge or a summary one. The indicatable category of offences is the more serious type of criminal charge in Canada and the summary category of offences, the less serious type of charge in Canada. This Crown election is decided on several factors but the criminal history of the accused, circumstances surrounding the offence and an assessment of both the aggravating and mitigating factors related to the offender and the offence are all considerations the Crown will contemplate in making a final election.

The following list outlines the prospective punishments for each classification of abduction within the Criminal Code:

• Abduction of a person under 16 (s. 280):
  • If charged via indictment: maximum 5 years imprisonment
  • If charged summarily: maximum 2 years less a day imprisonment and/or a $5000 fine
• Abduction of a person under 14 (s. 281):
  • If charged via indictment: maximum 10 years imprisonment
  • If charged summarily: maximum 2 years less a day imprisonment and/or a $5000 fine
• Parental abduction contrary to a custodial order (s. 282):
  • If charged via indictment: maximum 10 years imprisonment
  • If charged summarily: maximum 2 years less a day imprisonment and/or a $5000 fine
• General parental abduction (s. 283):
  • If charged via indictment: maximum 10 years imprisonment
  • If charged summarily: maximum 2 years less a day imprisonment and/or a $5000 fine

Note that there are no minimum mandatory sentences for these kinds of offences.

Overview of the Offence 

Sections 280-286 of the Criminal Code read as follows:

Sections 280-283 provide the different types of abduction offences and sections 284-286 outline both the available and unavailable defences for such offences. While the Criminal Code provides no direct definition of abduction, the common law (judge-made law) has helped to fill in these gaps. The Criminal Code does, however, define “guardian” as seen above under s. 280.

To secure a conviction, the Crown must prove both the actus reus (the actual act) and the mens rea (the mental intent) elements of the offence. Below is an outline of what evidence the Crown must produce for such a conviction.

The Guilty Act (Actus Reus)

Regardless of what category of offence one is charged with (i.e., the abduction of a person under the age of 16 (see: s. 280), the abduction of a person under the age of 14 (see: s. 281), parental abduction contrary to a custody order (see: s. 282) or general parental abduction (see: s. 283)), the Crown must show nothing more than that the offender “prevent[ed] a parent, guardian, or other person having lawful care or charge of the child, from exercising control over that child” (see: R v Sadeghi-Jebelli, 2013 ONCA 747 (CanLII)). Of course, other elements such as the child’s age, the relationship of the offender to the victim, the offender’s identity, or the method for depriving the parent of access to their child (“takes”, “causes to be taken”, “conceals”, “entices away”, “detains”, etc.) must also be made out. For example, a section 280 offence only requires that the young person be taken or caused to be taken from the care of their parent or guardian whereas the other three abduction of a young person offences (ss. 281-283) include that the offender either “takes, entices away, conceals, detains, receives or harbours [the] child”. This phrasing covers more ground and therefore, criminalizes more types of behaviour. Section 282 also requires that the parent committing the abduction do so “in contravention of a custody order or a parenting order”. Lastly, the child cannot be in danger. Abduction offences only relate to the removal of a child from their rightful guardianship. Where elements of danger or threats are introduced, the offender is likely to be charged with a different and likely more serious Criminal Code offence.

The Guilty Mind (Mens Rea) 

The mens rea or requisite mental intent of the offender is more rudimentary than the actus reus and really, only requires the Crown to show that the offender (whether a stranger, parent or other family member/non-family member known to the victim) intended to deprive the parent or guardian of access to, or the ability to have care or charge over their child. The Crown will likely demonstrate this by adducing evidence which shows that the offender was motivated to remove the child from their guardianship by inhibiting the parent’s access to that child.

Defences

The Criminal Code identifies some statutorily embedded defences to a charge of abduction of a young person. These are enumerated under ss. 282(2), 284 and 285 of the Criminal Code. The usefulness and applicability of a defence will largely depend on the facts on one’s case. However, below are some common defences to a charge of abduction of a young person.

Consent

Section 284 accepts where available, the defence of consent. Where the parent for which the child is taken from consents to such taking, a s. 282/283 offence cannot be made out. The courts have accepted both implied and explicit consent. That the victim (the child) consented is no defence (see: s. 286 of the Criminal Code and R v Flick, 2005 BCCA 499 (CanLII)). Furthermore, consent cannot be obtained fraudulently (i.e., consent is given under false pretences) [see: Regina v Cox, 1969 CanLII 331 (ONCA)].

Necessity

Another statutorily accepted defence as proffered by the Criminal Code and entrenched in s. 285, can apply where the accused person was acting in a protective capacity and took the child (or enticed away, concealed, detained, received or harboured away the child) to protect that child from imminent harm or as a method to protect the accused him/herself from imminent harm or danger. The test for this defence is both objective and subjective and asks whether a reasonable person, based on the circumstances as the accused honestly would have believed them to be, would have had to ‘take’ or otherwise entice away, conceal, etc. the child to avoid the threat of imminent harm or danger (see: R v Adams, 1993 CanLII 8537 (ONCA)). For this defence to be put to the jury, the judge must accept that there is some air of reality to the defence (see: R v CAV, 2003 CanLII 3548 (ONCA)).

Mistake of fact (age of the child) 

Unlike sexual offences against children, for the offence of abduction, any honest mistake of age suffices to excuse the defendant, even if he or she did not take reasonable steps to determine the victim’s age (see: R v Quinones, 2012 BCCA 94 (CanLII)). 

Any applicable Charter defences

The Canadian Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights, either deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s.24(2) of the Charter.

Punishments

As noted above, the prospective sentence for the abduction of a young person charge can depend on two factors. Firstly, the offence the accused is charged with and secondly, the Crown’s election of either an indictable or summary charge. The chart below lays out the prospective maximum penalties for each classification of abduction charge:

In imposing a custodial sentence, the courts are also free to make ancillary orders.

Some of these additional orders could include:

• Victim protection orders (ss. 21, 732.1(3)(a.1), 732.1(3)(h), 742.3(2)(a.3), 742.3(2)(f) of the Criminal Code).
• Restitution (ss. 738 and 1(3)(h) of the Criminal Code).
• DNA order ( 487.04 of the Criminal Code).
• SOIRA (Sexual Offender Information Registry Act) Orders (ss. 011(1)(a), 490.012(3)), 490.015 of the Criminal Code).
• Victim surcharge fine ( 737 of the Criminal Code).
• Firearm Prohibitions ( 109 and 110 of the Criminal Code).

There is no mandatory minimum sentence for these types of offences.

Frequently Asked Questions

What is the legal definition of abduction in Canada?

The Criminal Code does not offer any explicit legal definition of “abduction”. However, it is understood by the courts as to literally lead away a child from their parent or guardian. The Criminal Code states that this can be done by taking the child, causing the child to be taken, enticing the child away, concealing the child, detaining the child, receiving the child or harbouring the child so as to inhibit the parent or guardian’s access to their child. Remember, abduction is not to be confused with kidnapping. Abduction means to ‘steal’ the person from another and kidnapping means to ‘steal’ the person generally (see: R v Oakley, 1977 ALTASCAD 118 (CanLII)).

What is the most common type of abduction?

The most common type of abduction in Canada is parental child abduction. In other words, abduction of the child committed by a parent, against the child’s other parent. These are ss. 282 and 283 offences in the Criminal Code.

Published Decisions

R v Li, 2017 ONCA 509 (CanLII)

Ms. Li travelled to China with her seven-year-old daughter from her common-law relationship and left the child in China, refusing to tell anyone where she was. Ms. Li was convicted of child abduction in contravention of a custody order (s. 282 offence). The trial judge recognized that the accused suffered from mental illness but ultimately, concluded that there were no reasonable grounds to believe that the accused was unfit to stand trial. The accused was sentenced to seven years imprisonment, less 29 months for time served. The accused appealed the sentence arguing that it was an unfit sentence. The Court of Appeal allowed the appeal in part. The trial judge was heavily influenced by the accused’s failure to arrange the child’s return to Canada. The Court of Appeal found that the trial judge did not err in imposing a sentence of seven years imprisonment, however, she erred in denying the accused 1.5:1 credit for pre-sentence custody by using the same aggravating factor (ongoing nature of the accused’s offending) that was already reflected in the seven-year sentence. The Court of Appeal therefore adjusted her sentence to the 1.5:1 ratio for time served.

You can read the full case here.

R v M. E-H., 2015 BCCA 54 (CanLII)

The accused and his wife had four children and after a domestic dispute, the accused took the children. Two days later, the police located the accused and his four children at the airport in Washington, about to board a flight to Egypt. The accused was charged with four counts of child abduction (under s. 283 of the Criminal Code). At trial, he unsuccessfully argued the consent defence and was convicted under all four counts. He appealed to the British Colombia Court of Appeal where his appeal was ultimately dismissed.

You can read the full case here.

Russell-Crowell v R, 2007 NBCA 81 (CanLII) 

In this case, the deputy sheriff attended the accused mother’s residence on April 28, 2006, to obtain possession of her two children to turn them over to the father. The deputy sheriff undertook action in the belief that the father was lawfully entitled to possession of his children under access provisions of two separate, but related custody orders issued several years earlier (the first custody order was rendered in 1998, and the second was rendered in 2000). The mother failed to comply with deputy sheriff’s demand to produce the children and was charged with a violation of s. 282 of the Criminal Code. The trial judge found that the accused’s refusal to produce the children was a clear violation of s. 282 and a conviction was entered. On appeal, the key issue was whether the 1998 custody order, as amended, entitled the father to possession of the children on April 28, 2006. The Court of Appeal found that the trial judge erred in law in concluding that, on April 28, 2006, the father was lawfully entitled to possession of the children and had lawful right to them. Therefore, the appeal was allowed.

You can read the full case here.