Abandoning Child (Offence): Difference between revisions

Abandoning Child
	s. 218 of the Crim. Code
Election / Plea
Crown Election	Hybrid; summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction	Prov. Court; Sup. Court w/ Jury (); Sup. Court w/ Judge-alone (); * Must be indictable.
Summary Dispositions
Avail. Disp.	Discharge (730); Suspended Sentence (731(1)(a)); Fine (734); Fine + Probation (731(1)(b)); Jail (718.3, 787); Jail + Probation (731(1)(b)); Jail + Fine (734); Conditional Sentence (742.1);
Minimum	None
Maximum	18 months incarceration
Indictable Dispositions
Avail. Disp.	same as summary
Minimum	None
Maximum	5 years incarceration
Reference
	Offence Elements; Sentence Digests;

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Latest revision as of 07:19, 25 July 2024

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Overview

The offence of abandoning a child is a hybrid offence for abandoning or exposing a child of no more than nine years old such that there is a likelihood of permanent injury or endangerment of life. It is found in Part VIII of the Criminal Code relating to "Offences Against the Person and Reputation." This offence includes situations where parents leave a child somewhere temporarily, such as in a car or home, unattended, or where a mother cannot or does not want to continue caring for a child and leaves the child to be found by someone else.

Pleadings

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)	Preliminary Inquiry
s. 218 [abandoning child]	Hybrid Offence(s)		(* only if Crown proceeds by Indictment)	(under 14 years max)

Offences under s. 218 [abandoning child] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By a Judge or Justice on a Release Order s. 515 to 519	Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act
s. 218 [abandoning child]

When charged under s. 218 [abandoning child] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
"for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

Fingerprints and Photos

A peace officer who charges a person under s. 218 [abandoning child] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 218 [abandoning child]			(under 10 years max)

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

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.

R.S., 1985, c. C-46, s. 218; 2005, c. 32, s. 12; 2019, c. 25, s. 75.

– CCC (CanLII), (DOJ)

Note up: 218

Defined terms: "abandons" (s. 214) and "exposes" (s. 214)

Draft Form of Charges

See also: Draft Form of Charges

		Pre-ambles
		"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section	Subject of Offence	Draft Wording
218	abandoning a child	"did [abandon or expose] [alleged victim's name], a child under the age of 10 years, so that the [life or health] of [alleged victim's name] was [endangered, likely to be endangered, permanently injured, or likely to be permanently injured], to wit: [conduct], contrary to section 218 of the Criminal Code."[1]

Proof of the Offence

Proving Abandoning a Child under s. 218 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit abandons or exposes a child; ☐ the culprit intended to abandon or expose the child; ☐ the child is under the age of 10; ☐ the culprit was aware of the child's age; ☐ the act causes the child's life likely to be endangered or health likely to be permanently injured; and ☐ the endangerment to the child was reasonably foreseeable to the culprit.

Interpretation of the Offence

Actus Reus

A 14-month-old child left in a vehicle for 3 hours during negative 14-degree temperatures would make out the offence.^[1]

Mens Rea

The offence requires subjective fault.^[2] The offence criminalizes risk and so may require knowledge of that risk.^[3]

Age of Victim

Section 30 of the Interpretation Act determines the age for this section.^[4] The term "child" is not defined within the Code.^[5] Section 658 provides methods of proof.^[6]

Spousal Evidence

Section 4(3) of the Evidence Act removes spousal incompetence.

Endangerment

The Crown must prove more than the "potential" for endangerment. It must be actual endangerment.^[7]

↑ R v Holzer, 1988 CanLII 3795 (AB QB), 63 CR (3d) 301, per MacCallum J
↑ R v ADH, 2013 SCC 28 (CanLII), [2013] 2 SCR 269, per Cromwell J, at para 75
↑ ADH, ibid., at para 53
↑ See s. 30 of the IA: "A person is deemed not to have attained a specified number of years of age until the commencement of the anniversary, of the same number, of the day of that person’s birth."
↑ See s. 214, which had the definition until repealed in 2002
↑ See Jurisdiction of the Courts#Young Persons
↑ R v Freitas, 1999 CanLII 14071 (MB CA), 132 CCC (3d) 333, per Twaddle JA
R v JR, [2000] OJ No 6073 (OntHCJ)(*no CanLII links)

"abandons or exposes"

Definitions

214 In this Part [Pt. VIII – Offences Against the Person and Reputation (ss. 214 to 320.1)],
...
"abandon" or "expose" includes

(a) a wilful omission to take charge of a child by a person who is under a legal duty to do so, and

(b) dealing with a child in a manner that is likely to leave that child exposed to risk without protection;

...
R.S., 1985, c. C-46, s. 214; R.S., 1985, c. 27 (1st Supp.), s. 33, c. 32 (4th Supp.), s. 56; 2002, c. 13, s. 9.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 214

To "abandon" is to "leave [the child] to his fate."^[1]

Simply leaving a child with someone contracted to take care of a child is not abandonment. There must be a "wilful omission to take charge of the child, or some mode of dealing with it calculated to leave it without proper care."^[2] An act of giving up all claims to a child will also not be abandonment.^[3]

↑ R v Reedy, 1981 CanLII 3130, 58 CCC (2d) 571, per Boyd J
↑ R v Davis (1909), 18 O.L.R. 387(*no CanLII links) cited by Reedy and R v Bokane-Haraszt, 2007 ONCJ 228 (CanLII), OJ No 2000, per Bourque J
↑ Davis, ibid.

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. 218 [abandoning child]	(on indictment, victim must make request)

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 218), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Sentencing Profile

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
s. 218 [abandoning child]	indictable election	5 years incarceration
s. 218 [abandoning child]	summary election	18 months incarceration

Offences under s. 218 are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is 18 months incarceration.

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s)	Crown Election	Discharge s. 730	Suspended Sentence s. 731(1)(a)	Stand-alone Fine s. 731(1)(b)	Custody s. 718.3, 787	Custody and Probation s. 731(1)(b)	Custody and Fine s. 734	Conditional Sentence (CSO) s. 742.1
s. 218 [abandoning child]	any

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Abandoning Child (Sentencing Cases)

Prior cases have given both custodial and non-custodial sentences. The main factors concern the level of willful neglect and the overall risk to the child. Repetitive or highly dangerous behaviour will typically attract custodial sentences. For the more negligent offences, fines and probation have been given.

Where a child's life is put in danger will be an aggravating factor.^[1] In these circumstances, jail sentences will generally be given.^[2]

↑ R v Nguyen, [2001] OJ No 647 (Ont. C.J.)(*no CanLII links) (“[w]hen actual endangerment to life or serious injury is realized in the commission of the offence, the Courts must consider that this fact makes the offence more serious.")
↑ Nguyen, ibid. (“[o]nly a full deprivation of liberty can bring home the message to this woman personally of the nature of her conduct, and adequately denounce this conduct.”)

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 218 [abandoning child]	If an offence under s. 218 is prosecuted by indictment, a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).

General Sentencing Orders

Order	Conviction	Description
Non-communication order while offender in custody (s. 743.21)	any	The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738)	any	A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737)	any	A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

General Forfeiture Orders

Forfeiture	Conviction	Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))	any	Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not* apply to summary offences*.
Fine in Lieu of Forfeiture (s. 462.37(3))	any	Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491)	any	Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1)	any	Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not* apply to summary offences*.

Record Suspensions and Pardons

Convictions under s. 218 [abandoning child] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

Criminal Code, 1970

Section 189 was renamed to 200.

Criminal Code, 1953-54

Abandoning child

189 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, is guilty of an indictable offence and is liable to imprisonment for two years.

– CCC

Criminal Code, 1906

Section 216 was renamed to 245.

Criminal Code, 1892

Abandoning children under two years of age

216 Every one is guilty of an indictable offence and liable to three years' imprisonment who unlawfully abandons or exposes any child under the age of two years, whereby its life is endangered, or its health is permanently injured.

–