Voir la source de Enlèvement d’une jeune (jurisprudence des peines)

[[en:Abduction of a Young Person (Sentencing Cases)]]
{{Currency2|January|2023}}
{{LevelZero}}{{HeaderSentCases}}
{{OffencesBoxMini|Enlèvement d’une jeune}}
{{seealso|Kidnapping and Unlawful Confinement (Sentencing Cases)}}

==Offence Wording==
<div class="mw-collapsible mw-collapsed">

{{quotation3|
; Removal of child from Canada
273.3 (1) No person shall do anything for the purpose of removing from Canada a person who is ordinarily resident in Canada and who is
:(a) under the age of 16 years, with the intention that an act be committed outside Canada that if it were committed in Canada would be an offence against section 151 {{AnnSec1|151}} or 152 {{AnnSec1|152}} or subsection 160(3) {{AnnSec1|160(3)}} or 173(2) {{AnnSec1|173(2)}} in respect of that person;
:(b) 16 years of age or more but under the age of eighteen years, with the intention that an act be committed outside Canada that if it were committed in Canada would be an offence against section 153 {{AnnSec1|153}} in respect of that person;

(c) under the age of 18 years, with the intention that an act be committed outside Canada that if it were committed in Canada would be an offence against section 155 {{AnnSec1|155}}, subsection 160(2) {{AnnSec1|160(2)}} or section 170 {{AnnSec1|170}}, 171 {{AnnSec1|171}}, 267 {{AnnSec2|267}}, 268 {{AnnSec2|268}}, 269 {{AnnSec2|269}}, 271 {{AnnSec2|271}}, 272 {{AnnSec2|272}}, 273 {{AnnSec2|273}} or 320.102 {{AnnSec3|320.102}} in respect of that person; or
:(d) under the age of 18 years, with the intention that an act be committed outside Canada that, if it were committed in Canada, would be an offence against section 293.1 {{AnnSec2|293.1}} in respect of that person or under the age of 16 years, with the intention that an act be committed outside Canada that, if it were committed in Canada, would be an offence against section 293.2 {{AnnSec2|293.2}} in respect of that person.

; Punishment
(2) Every person who contravenes this section is guilty of
:(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or
:(b) an offence punishable on summary conviction.

{{LegHistory90s|1993, c. 45}}, s. 3
{{LegHistory90s|1997, c. 18}}, s. 13;
{{LegHistory00s|2008, c. 6}}, s. 54;
{{LegHistory10s|2015, c. 29}}, s. 8;
{{LegHistory10s|2019, c. 25}}, s. 98;
{{LegHistory10s|2021, c. 24}}, s. 4.
|{{CCCSec2|273.3}}
|{{NoteUp|273.3|1|2}}
|{{terms-
|"Canada" (s. 35 IA)
|"person" (s. 2)
}}
}}

{{quotation3|
; Abduction of person under age of 16
280 (1) Every person who, without lawful authority, takes or causes to be taken a person under the age of 16 years out of the possession of and against the will of the parent or guardian of that person or of any other person who has the lawful care or charge of that person is guilty of
:(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
:(b) an offence punishable on summary conviction.

{{removed|(2)}}
R.S., {{LegHistory80s|1985, c. C-46}}, s. 280;
{{LegHistory10s|2019, c. 25}}, s. 106
|{{CCCSec2|280}}
|{{NoteUp|280|1|2}}
|{{terms-
|"person" (s. 2)
}}
}}

{{quotation3|
; Abduction of person under age of 14
281 Every person who, not being the parent, guardian or person having the lawful care or charge of a person under the age of 14 years, unlawfully takes, entices away, conceals, detains, receives or harbours that person with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person is guilty of
:(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
:(b) an offence punishable on summary conviction.

R.S., {{LegHistory80s|1985, c. C-46}}, s. 281;
{{LegHistory10s|2019, c. 25}}, s. 107
|{{CCCSec2|281}}
|{{NoteUp|281}}
|{{terms-
|"person" (s. 2)
}}
}}

{{quotation3|
; Abduction in contravention of custody or parenting order
282 (1) Every one who, being the parent, guardian or person having the lawful care or charge of a child under the age of 14 years, takes, entices away, conceals, detains, receives or harbours that child, in contravention of a custody order or a parenting order made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that child, of the possession of that child is guilty of
:(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
:(b) an offence punishable on summary conviction.

{{removed|(2)}}
R.S., {{LegHistory80s|1985, c. C-46}}, s. 282;
{{LegHistory90s|1993, c. 45}}, s. 4;
{{LegHistory10s|2019, c. 16}}, s. 123
|{{CCCSec2|282}}
|{{NoteUp|282|1}}
|{{terms-
|"Canada" (s. 35 IA)
|"person" (s. 2)
}}
}}

{{quotation3|
; Abduction
283 (1) Everyone who, being the parent, guardian or person having the lawful care or charge of a child under the age of 14 years, takes, entices away, conceals, detains, receives or harbours that child, whether or not there is an order referred to in subsection 282(1) {{AnnSec2|282(1)}} in respect of the child, with intent to deprive a parent, guardian or any other person who has the lawful care or charge of that child, of the possession of that child, is guilty of
:(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
:(b) an offence punishable on summary conviction.

{{removed|(2)}}
R.S., {{LegHistory80s|1985, c. C-46}}, s. 283l;
{{LegHistory10s|1993, c. 45}}, s. 5;
{{LegHistory10s|2019, c. 16}}, s. 124.
|{{CCCSec2|283}}
|{{NoteUp|283|1|2}}
|{{terms-
|"person" (s. 2)
}}
}}
</div>

==Case Digests==
{{SCaseHeaderLong}}
{{SpanYear2|2023}}
{{SCaseLong|{{CanLIIR-S|Ellis|k0279|2023 NSCA 63 (CanLII)}}{{perNSCA|Van den Eynden J}} (2:1) | {{NS}} | CA | |  {{FindSummaries|k0279}} {{keywords|}}}}
{{SpanYear2|2022}}
{{SCaseLong|{{CanLIIR-S|Al Aazawi|jstsg|2022 ABCA 361 (CanLII)}}{{TheCourtABCA}} | {{AB}} | CA | {{JailY|8}} | {{FindSummaries|jstsg}} {{keywords|}}}}

{{SCaseLong|{{CanLIIR-S|RM|jt6v5|2022 ONSC 6662 (CanLII)}}{{perONSC|Conlan J}} | {{ON}} | SC| 12 months + 3 years probation | "A father attempted to abduct his son from outside of his son’s school. He grabbed his son and attempted to draw him to a car before bystanders intervened to separate the two." {{fromsum|Ellis|k0279|2023 NSCA 63 (CanLII)}} {{keywords|}}}}
{{SpanYear2|2019}}
{{SCaseLong|{{CanLIIR-S|Rodrigues|j140z|2019 ONSC 2752 (CanLII)}}{{perONSC|Edwards J}} | {{ON}} | SC | | {{FindSummaries|j140z}} {{keywords|}} }}
{{SpanYear2|2017}}
{{SCaseLong|{{CanLIIR-S|Blackmore|h5bsl|2017 BCSC 1426 (CanLII)}}{{perBCSC|Pearlman J}} | {{BC}} | SC | | "a completed abduction resulting in a conviction under section 283(1) of the Code attracted a sentence of 15 months in custody and house arrest (with enhanced credit) and a three-year probationary period. However, the father was also convicted of other offences arising from the total series of events and his sentence was not divided up among the different convictions. The father abducted his daughter from the mother’s house in the middle of the night after breaking in and assaulting the mother. He fled with the daughter in his car and eventually ended up in a high-speed car accident, causing injuries to both him and his daughter." {{summfrom|Ellis|k0279#par130|2023 NSCA 63 (CanLII)}} {{FindSummaries|h5bsl}} {{keywords|}} }}

{{SpanYear2|2016}}
{{SCaseLong|{{CanLIIR-S|ME|gvhm3|2016 ABPC 250 (CanLII)}}{{perABPC|Lamoureux J}} | {{AB}} | PC | |{{FindSummaries|gvhm3}} {{keywords|}}  }}

{{SCaseLong|{{CanLIIR-S|CAS|gs15b|2016 BCPC 162 (CanLII)}}{{perBCPC|Pothecary J}} | {{BC}} | PC | |{{FindSummaries|gs15b}} {{keywords|}}  }}

{{SCaseLong|{{CanLIIR-S|CML|gshr8|2016 ONSC 4406 (CanLII)}}{{perONSC|Molloy J}} | {{ON}} | SC | | Mother taken child out of Canada and refused to return child. She also prohibited any contact between father and child. {{FindSummaries|gshr8}} {{keywords|}} }}
{{SpanYear2|2014}}
{{SCaseLong|{{CanLIIR-S|Levin|g7c95|2014 SKCA 66 (CanLII)}}{{perSKCA|Caldwell JA}} | {{}} | | | {{FindSummaries|g7c95}} {{keywords|}} }}

{{SpanYear2|2013}}
{{SCaseLong|{{CanLIIR-S|O’Byrne|fwvg3|2013 ONCJ 171 (CanLII)}}{{perONCJ|Greene J}}| {{ON}} |PC| {{MaxCSO}} {{PlusP}} | The offender was a mother who disappeared with her 2-year-old child and hid from child's father in British Columbia under assumed names for 18 years. The child was subject to a custody order at the time. see also [https://canlii.ca/t/gs15b#par153] {{FindSummaries|fwvg3}} {{keywords|}}  }}

{{SCaseLong|{{CanLIIR-S|Chen|fvp95|2013 NBCA 7 (CanLII)}}{{TheCourtNBCA}}|{{NB}}|CA | {{CSOM|3}} {{PlusP}} | The offender abducted his own child contrary to a family court order. {{FindSummaries|fvp95}} {{keywords|}} }}

{{SpanYear2|2011}}
{{SCaseLong|{{CanLIIR-S|Melville|fnc6m|2011 ONSC 5697 (CanLII)}}{{perONSC|Ducharme J}} | {{ON}} | | | "a completed abduction resulting in a conviction under s. 282 of the Code attracted a sentence of six months imprisonment followed by two years of probation and 120 hours of community service. The father abducted the child and moved to the United States with the child for 12 years. There was a court order in place at the time under which the mother had custody of the child and the father had access on alternating weekends. The family court had also ordered that neither parent could remove the child from Toronto without the consent of the other parent. The judge stated that “given the nature, duration and consequences of this abduction, an actual custodial sentence [was] required.” (at para. 29)" {{summfrom|Ellis|k0279#par127|2023 NSCA 63 (CanLII)}}{{atL|k0279|127}} {{FindSummaries|fnc6m}} {{keywords|}}  }}

{{SpanYear2|2008}}
{{SCaseLong|{{CanLIIR-S|Gill|1w1p2|2008 BCPC 58 (CanLII)}}{{perBCPC|Gordon J}} | {{BC}} | PC | | {{FindSummaries|1w1p2}} {{keywords|}} }}

{{SCaseLong|{{CanLIIR-S|JV|21ftc|2008 BCPC 307 (CanLII)}}{{perBCPC|Challenger J}} | {{BC}} | PC | | {{FindSummaries|21ftc}} {{keywords|}} }}

{{SpanYear2|2007}}
{{SCaseLong|{{CanLIIR-S|MDP|1rkxb|2007 BCPC 153 (CanLII)}}{{perBCPC|Dyer J}} | {{BC}} | PC | | "the father refused to return his 4½ year old daughter to her mother following an overnight scheduled access visit, later alleging that his daughter had disclosed that members of her mother’s family were sexually abusing her.  This was in the context of a bitter custody dispute between the parents.  He was arrested about five days later and disclosed his daughter’s whereabouts that same day when ordered to do so.  During those five days, the daughter spoke to her mother several times by telephone.  He had a prior criminal record, some of which related to difficulties with the mother.  The Crown sought a custodial sentence of between 60 and 90 days and opposed a conditional sentence order.  Defence counsel sought a short custodial sentence of perhaps two weeks or a 60 to 90 day sentence to be served conditionally.  The court accepted that a conditional sentence order could provide a significant amount of denunciation and deterrence with properly crafted terms, and sentenced the father to 90 days to be served by means of a conditional sentence order plus two years’ probation." {{summfrom|CAS|gs15b#par155|2016 BCPC 162 (CanLII)}}{{atL|gs15b|155}} {{FindOthers|1rkxb}} {{keywords|}} }}

{{SpanYear2|2006}}
{{SCaseLong|{{CanLIIR-S|Nathalie Gettliffe-Grant|1q82j|2006 BCSC 1944 (CanLII)}}{{perBCSC|Koenigsberg J}} | {{BC}} | SC | | {{FindSummaries|1q82j}} {{keywords|}} }}

{{SCaseLong|{{CanLIIR-S|Urbiola|1q8sj|2006 BCPC 551 (CanLII)}}{{perBCPC|Romilly J}} | {{BC}} | PC| | {{FindSummaries|1q8sj}} {{keywords|}} }}

{{SpanYear2|2005}}
{{SCaseLong|{{CanLIIR-S|Goudreault|1lr20|2005 ABQB 699 (CanLII)}}{{perABQB|Martin J}} | {{AB}} | QB | | {{FindSummaries|1lr20}} {{keywords|}} }}

{{SpanYear2|2002}}
{{SCaseLong|{{CanLIIR-SN|A(M)|[2002] JQ no 2844 (CA)}} |{{QC}}|CA| |  {{FindSummaries2|%22%5B2002%5D%20JQ%20no%202844%22}} {{keywords|}}  }}

{{SCaseLong|{{CanLIIR-S|Jacome|58gt|2002 BCCA 15 (CanLII)}}{{per|MacKenzie JA}} | {{BC}} | CA | {{JailM|3}} | "the child had lived with the mother since birth with the father having regular weekly or semi-weekly access.  When the boy was five, following a dispute, the mother denied access to the father so he went to court for court-ordered access.  He served the mother with his application in May and the matter was set for hearing in August.  Sometime later in May, he became aware that she had cancelled her telephone and bank account so he became concerned about the whereabouts of his son.  In August, he obtained an ex parte order for sole custody of which she became aware.  He continued his efforts through the courts to obtain information regarding the whereabouts of his son throughout which she repeatedly refused to provide any information herself despite the court’s exhortations.  She was arrested the following July and remanded in custody until October 1st when she finally surrendered the boy to his father.  The father had not seen his son for about 21 months.  At the time of sentencing, he was living with his father and attending school.  A conditional sentence was rejected, “on the ground that it would not satisfy the denunciatory requirement of an adequate sentence and general deterrence.”  The court also rejected a conditional discharge.  A sentence of three months in jail plus 3 months’ probation was upheld on appeal with no credit for the time she spent in custody prior to surrendering the boy." {{summfrom|CAS|gs15b#par151|2016 BCPC 162 (CanLII)}}{{atL|gs15b|151}} {{FindSummaries|58gt}} {{keywords|CSO rejected}} }}

{{SpanYear2|1998}}
{{SCaseLong|{{CanLIIR-S|Butler|1gmrp|1998 CanLII 1252 (NS SC)}}{{perNSSC|Carver J}} | {{NS}} |SC |{{CDischarge}} {{Plus1YP}} | "a completed abduction attracted a conditional discharge followed by one year of probation, 240 hours of community service, and the offender was required to make a charitable donation. At the end of her access period with the child, without warning the mother took the child with her to the airport. They travelled to Texas and were not heard from again until the mother was arrested and returned to Nova Scotia 17 years later. ... The judge in that case noted the offence was not a prevalent offence in that area (at para. 18)."  {{summfrom|Ellis|k0279#par125|2023 NSCA 63 (CanLII)}}{{atL|k0279|125}} {{FindOthers|1gmrp}} {{keywords|}} }}

{{SCaseLong|{{CanLIIR-SN|Lewis|[1998] O.J. No. 46}} | {{ON}} | | | {{FindSummaries2|%22%5B1998%5D%20O.J.%20No.%2046%22%20%2Fp%20Lewis}}  {{keywords|}}  }}
{{SpanYear2|1997}}
{{SCaseLong|{{CanLIIR-S|Mendez|6hmn|1997 CanLII 432 (ON CA)}}{{perONCA|Osborne JA}} | {{ON}} |CA| | "the father had two children with the mother as well as her eldest child, his stepson.  Although the relationship had ended they continued to share a home for financial reasons.  Near the end of June, the father took the children, then aged 7, 5 and 3, for the weekend with the mother’s consent.  At the end of the weekend, he telephoned the mother and told her he would not be returning the children until the end of the summer, if ever.  She immediately obtained an ex parte interim custody order.  A few weeks later he telephoned her and told her the children were fine but refused to disclose their location.  Charges were laid and a warrant was issued for the father’s arrest.  He was apprehended in New Jersey at his sister’s residence where he and the children had been living.  They had been gone for 77 days.  During the period after their return, the children continued to exhibit signs of psychological trauma from the experience.  Crown counsel sought a sentence of 12 months plus probation, not to be served by conditional sentence order; defence counsel argued for 3 to 6 months, to be served by way of conditional sentence order.  A conditional sentence order was rejected as not being sufficiently denunciatory.  The sentence imposed was 2 months custody for the two biological children and 2 months consecutive for the step son, plus three years probation." {{summfrom|CAS|gs15b#par150|2016 BCPC 162 (CanLII)}}{{atL|gs15b|150}} {{FindOthers|6hmn}} {{keywords|}}   }}

{{SCaseEnd}}