Abduction of a Young Person (Offence)
| This page was last substantively updated or reviewed June 2021. (Rev. # 96235) |
| Abduction of a Young Person | |
|---|---|
| s. 273.3, 280, 281, 282 and 283 of the Crim. Code | |
| Election / Plea | |
| Crown Election | Hybrid / Indictable summary proceedings must initiate within 12 months of the offence (786(2)) |
| Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
| Summary Dispositions | |
| Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
| Minimum | None |
| Maximum | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
| Indictable Dispositions | |
| Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
| Minimum | None |
| Maximum | 5 or 10 years incarceration |
| Reference | |
| Offence Elements Sentence Digests | |
Overview
There are four forms of the offence of abduction. There is removal of child from Canada (273.3), abduction of a person under 16 (280), abduction of a person under 14 (281), parental abduction contrary to a custody order (282), and parental abduction (283). The first two offences of abduction of a person under 16 (280) and 14 (281) concern the unlawful taking of a child from the parent or guardian. The latter two offences concern where a parent or guardian who unlawfully takes a child from another person who also has a lawful right to possess the child. They are all found in Part VIII of the Criminal Code relating to "Offences Against the Person and Reputation."
- Pleadings
| Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
Preliminary Inquiry |
|---|---|---|---|---|
| 273.3 [removal of child from Canada], s. 280 [abduction of a person under 16], s. 281 [abduction of a person under 14], s. 282 [parental abduction contrary to order] and 283 [parental abduction] |
Hybrid Offence(s) |  |
(* only if Crown proceeds by Indictment) |
 (under 14 years max)
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Offences under s. 273.3, 280 [abduction of a person under 16], 281 [abduction of a person under 14], 282 [parental abduction contrary to order] and 283 [parental abduction] 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. 273.3 [removal of child from Canada], 280 [abduction of a person under 16], 281 [abduction of a person under 14] |
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When charged under s. 273.3 [removal of child from Canada], 280 [abduction of a person under 16], 281 [abduction of a person under 14], 282 [parental abduction contrary to order] and 283 [parental abduction], 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.
- Fingerprints and Photos
A peace officer who charges a person under s. 273.3 [removal of child from Canada], 280 [abduction of a person under 16], 281 [abduction of a person under 14], 282 [parental abduction contrary to order] or 283 [parental abduction] 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 Orders
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. 273.3 [removal of child from Canada] | |
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(under 10 years max) |
(varies) |
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| s. 283 [parental abduction] | |
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/ (varies on facts) (by indictment only) |
(varies) |
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Offences under s. 273.3 [removal of child from Canada], 280 [abduction of a person under 16], 281 [abduction of a person under 14], 282 [parental abduction contrary to order] and 283 [parental abduction] are designated offences eligible for wiretap under s. 183.
Offences under s. 273.3 [removal of child from Canada], 280 [abduction of a person under 16], and 281 [abduction of a person under 14] are "designated" offences under s. 752 for dangerous offender applications.
Offences under 283(2) require the consent of the Attorney General to prosecute.
Offence Wording
- 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 [sexual interference] or 152 [invitation to sexual touching] or subsection 160(3) [bestiality in presence of or by child] or 173(2) [exposure to person under 16] 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 [sexual exploitation] 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 [incest], subsection 160(2) [compelling bestiality] or section 170 [parent or guardian procuring sexual activity], 171 [householder permitting prohibited sexual activity], 267 [assault with a weapon or causing bodily harm], 268 [aggravated assault], 269 [unlawfully causing bodily harm], 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm], 273 [aggravated sexual assault] or 320.102 [conversion therapy] 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 [force marriage] 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 [marriage under age of 16] 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.
1993, c. 45, s. 3 1997, c. 18, s. 13; 2008, c. 6, s. 54; 2015, c. 29, s. 8; 2019, c. 25, s. 98; 2021, c. 24, s. 4.
- 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.
[omitted (2)]
R.S., 1985, c. C-46, s. 280; 2019, c. 25, s. 106
- 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., 1985, c. C-46, s. 281; 2019, c. 25, s. 107
- 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.
[omitted (2)]
R.S., 1985, c. C-46, s. 282; 1993, c. 45, s. 4; 2019, c. 16, s. 123
- 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) [abduction in contravention of custody or parenting order] 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.
[omitted (2)]
R.S., 1985, c. C-46, s. 283l; 1993, c. 45, s. 5; 2019, c. 16, s. 124.
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 |
| 273.3(1)(a) | removal of a child under 16 from Canada | "...did [prohibited conduct] for the purpose of removing from Canada [vicitm's name], a person under 16 years of age who was ordinarily resident in Canada, with the intention of committing an act outside Canada that would be an offence under [s. 151, 152, 160(3), or 173(2)] in respect of that person if it were committed inside Canada, to wit: [particulars of offence], contrary to section 273.3(1)(a) of the Criminal Code." |
| 273.3(1)(b) | removal of child of 16 or 17 years from Canada | "...did [prohibited conduct] for the purpose of removing from Canada [vicitm's name], a person greater than 15 years of age but less than 18 years of age who was ordinarily resident in Canada, with the intention of committing an act outside Canada that would be an offence under s. 153 in respect of that person if it were committed inside Canada, to wit: [particulars of offence], contrary to section 273.3(1)(b) of the Criminal Code." |
| 273.3(1)(c) | removal of child from Canada for purposes of | "...did [prohibited conduct] for the purpose of removing from Canada [vicitm's name], a person under the age of 18 years who was ordinarily resident in Canada, with the intention of committing an act outside Canada that would be an offence under [s. 155, 160(2), 170, 171, 267, 268, 269, 271, 272, or 273] in respect of that person if it were committed inside Canada, to wit: [particulars of offence], contrary to section 273.3(1)(c) of the Criminal Code." |
| 273.3(1)(d) | removal of child from Canada for purposes of forced marriage | "...did [prohibited conduct] for the purpose of removing from Canada [vicitm's name], a person under the age of 18 years who was ordinarily resident in Canada, with the intention of committing an act outside Canada that would be an offence under s. 293.1 in respect of that person if it were committed inside Canada, to wit: [particulars of offence], contrary to section 273.3(1)(d) of the Criminal Code." |
| 273.3(1)(d) | removal of child from Canada for purposes of child marriage | "...did [prohibited conduct] for the purpose of removing from Canada [vicitm's name], a person under the age of 16 years who was ordinarily resident in Canada, with the intention of committing an act outside Canada that would be an offence under s. 293.2 in respect of that person if it were committed inside Canada, to wit: [particulars of offence], contrary to section 273.3(1)(d) of the Criminal Code." |
| 280 | Abduction of person under 16 | "did without lawful authority [take or cause to be taken] [victim's name], an unmarried person under the age of 16 years, out of the possession of and against the will of [third party], their [parent or guardian or person] then having the lawful care of charge of that unmarried person contrary to s. 280 of the Criminal Code." |
| 281 | Abduction of a person under 14 | "did without lawful authority [take or cause to be taken] [victim's name], an unmarried person under the age of 14 years, out of the possession of and against the will of [third party], their [parent or guardian or person] then having the lawful care of charge of that unmarried person contrary to s. 281 of the Criminal Code." |
| 282(1) | Abduction in contravention of a custody order | "...being the parent, guardian or person having the lawful care or charge of [victim's name], a person under the age of 14 years, did [take, entice away, conceal, detain, receive or harbour] 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 contrary to s. 282 of the Criminal Code." |
| 283 | Abduction without a custody order | "...being the parent, guardian or person having the lawful care or charge of [victim's name], a person under the age of 14 years, did unlawfully [take, entice away, conceal, detain, receive, or harbour] [victim's name], with the intent of depriving the [parent, guardian, or person who has the lawful care or charge of] [victim's name], of the possession of [victim's name], to wit: [particulars of offence], contrary to s. 283 of the Criminal Code." |
Proof of the Offence
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Proving Removal of a child from Canada (under 14) under s. 273.3(1)(a) should include:[1]
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Proving Removal of a child from Canada (14 to 17) under s. 273.3(1)(b) should include:[2]
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Proving Removal of a child from Canada (14 to 17) under s. 273.3(1)(c) should include:
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Proving Removal of a child from Canada (14 to 17) under s. 273.3(1)(d) should include:
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Proving abduction under 16 years old under s. 280 should include:
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Proving abduction under 14 years old under s. 281 should include:[3]
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Proving Parental Abduction Contrary to a Custody Order under s. 282 should include:
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Interpretation of the Offence
The purpose of the offence is "to prevent one parent from intentionally interfering with the other parent's lawful right to custody of their child."[4]
The actus reus is made out by nothing more than "preventing a parent, guardian, or other person having lawful care or charge of the child, from exercising control over that child."[5]
As with any offence, the motive or reason for taking a child is not relevant except where it is considered as part of a defence.[6] It is not necessary for the Crown to prove whether there was any coercion or persuasion of the young person.[7]
Section 30 of the Interpretation Act determines age for the purpose of this section.[8] The term "child" is not defined within the Code.[9] Section 658 provides methods of proof.[10]
Section 4(3) of the Evidence Act removes the spousal incompetence rule for all abduction offences between s. 280 and 283.
The presence of the word "unlawfully" does not add any requirement of proof. It is effectively "verbal surplusage."[11]
- ↑
R v Blackmore, 2017 BCSC 192 (CanLII), per Pearlman J, at para 71
- ↑
Blackmore, ibid., at para 71
- ↑
R v Marini, 2014 BCPC 3 (CanLII), per Skilnick J, at para 20
- ↑ R v Sadeghi-Jebelli, 2013 ONCA 747 (CanLII), 313 OAC 257, per Laskin JA, at para 33
- ↑ R v Dawson, 1996 CanLII 150 (SCC), [1996] 3 SCR 783, per L’Heureux‑Dubé J
- ↑
R v FWB, 2013 SKPC 3 (CanLII), per Plemel J, at para 77
R v Chartrand, 1994 CanLII 53 (SCC), [1994] 2 SCR 864, per L’Heureux‑Dubé J, at para 52 (“Whether the accused may have had an innocent motive, or intended to interfere with possession for a very short period of time is beside the point.”) - ↑
R v Vokey; R v Defouw, 2005 BCCA 498 (CanLII), 202 CCC (3d) 236, per Rowles JA, at para 26
R v Langevin and LaPensee, 1962 CanLII 228 (ON CA), 38 CR 421, per McLennan JA - ↑ 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
- ↑ Chartrand, supra
Parent, Guardian, or Person with Care of Charge
A "parent" is not defined in the Code.
280.
[omitted (1)]
- Definition of “guardian”
(2) In this section and sections 281 to 283 [abduction of a young person], “guardian” includes any person who has in law or in fact the custody or control of another person.
R.S., c. C-34, s. 249; 1980-81-82-83, c. 125, s. 20.
[annotation(s) added]
A parent does not have to have "lawful care or charge" to be convicted.[1]
- ↑ R v Van Herk, 1984 ABCA 167 (CanLII), 12 CCC (3d) 359, per Laycraft JA
"Lawful Authority"
"Lawful authority" provides a justification for those who take children from the control of their parent or guardian for their protection. The purpose of this justification is to protect good Samaritans.[1]
- ↑
R v Chartrand, 1994 CanLII 53 (SCC), [1994] 2 SCR 864, per L’Heureux‑Dubé J, at para 40
"Possession"
Possession refers to "the ability of the parent to exercise his or her right to control over the child."[1]
- ↑
R v Vokey; R v Defouw, 2005 BCCA 498 (CanLII), 202 CCC (3d) 236, per Rowles JA, at para 26
"Takes," "Entices Away," "Conceals," "Details," "Receives," or "Harbours"
"Takes" or "causes to be taken" requires some act of the accused to induce or persuade the young person, if not physical force. A young person simply seeking refuge with the accused is not sufficient.[1]
The word "should be interpreted broadly, in a manner consistent with the purpose" of the offence. Taking "need not be solely a singular or discrete act; it may continue for some time"[2]
"Detains" refers to the "intentional withholding of the child from the wife, which had the effect of depriving her of her custodial rights."[3]
- ↑
R v Flick, 2005 BCCA 499 (CanLII), 202 CCC (3d) 244, per Rowles JA, at para 24 ("The fact that the girl knew she could find some refuge with the accused does not in my opinion constitute an inducement on his part.")
- ↑ R v Sadeghi-Jebelli, 2013 ONCA 747 (CanLII), 313 OAC 257, per Laskin JA, at para 33
- ↑ R v Bigelow, 1982 CanLII 2046 (ON CA), 69 CCC (2d) 204, per curiam
"Custody Order"
282
[omitted (1)]
- Where no belief in validity of custody order
(2) If a count charges an offence under subsection (1) [abduction in contravention of custody or parenting order] and the offence is not proven only because the accused did not believe that there was a valid custody order or parenting order but the evidence does prove an offence under section 283 [parental abduction of persons under 14], the accused may be convicted of an offence under that section.
R.S., 1985, c. C-46, s. 282; 1993, c. 45, s. 4.
[annotation(s) added]
A mere breach of an order is not sufficient to prove the offence. There must be an intent to deprive a designated person of possession of the young person.[1]
- ↑ R v Muirhead, 2008 PESCAD 5 (CanLII), 230 CCC (3d) 236, per McQuaid J
Consent of Attorney General
Prosecutions under s. 283 for Parental Abduction requires written consent of the Attorney General.
283
[omitted (1)]
- Consent required
(2) No proceedings may be commenced under subsection (1) [parental abduction of persons under 14] without the consent of the Attorney General or counsel instructed by him for that purpose.
R.S., 1985, c. C-46, s. 283; 1993, c. 45, s. 5.
Defences
The statutory defence of duress is excluded by s. 17 from applying to offences under s. 280 to 283.
Consent
- Defence
284 No one shall be found guilty of an offence under sections 281 to 283 [certain abduction-related offences] if he establishes that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was done with the consent of the parent, guardian or other person having the lawful possession, care or charge of that young person.
1980-81-82-83, c. 125, s. 20.
[annotation(s) added]
Where the accused is a parent, guardian or another person with lawful possession of the child, it does not mean they can get consent from themselves. Consent must be provided by a third party who meets the definition.[1]
- No defence
286 In proceedings in respect of an offence under sections 280 to 283 [abduction of a young person], it is not a defence to any charge that a young person consented to or suggested any conduct of the accused.
1980-81-82-83, c. 125, s. 20.
[annotation(s) added]
- ↑ R v Dawson, 1996 CanLII 150 (SCC), [1996] 3 SCR 783, per L’Heureux-Dubé J
Safety
- Defence
285 No one shall be found guilty of an offence under sections 280 to 283 [abduction of a young person] if the court is satisfied that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was necessary to protect the young person from danger of imminent harm or if the person charged with the offence was escaping from danger of imminent harm.
R.S., 1985, c. C-46, s. 285; 1993, c. 45, s. 6.
The impugned act must have a sufficient connection to the harm to be avoided to justify the act.[1]
The accused may rely upon an honest but mistaken belief as long as the act was objectively necessary based on the understanding of the accused at the time.[2]
See also Duress.
- ↑ R v Mendez, 1997 CanLII 432 (ON CA), 113 CCC (3d) 304, per Osborne JA
- ↑ R v Adams, 1993 CanLII 8537 (ON CA), 79 CCC (3d) 193, per Osborne JA
Mistaken Belief
In relation to an offence contrary to a custody order, it is a valid defence for the accused to have the mistaken belief that the order [1]
- ↑
R v Ilczyszyn, 1988 CanLII 7063 (ON CA), (1988), 45 C.C.C (3d) 91, 5 WCB (2d) 351, per curiam
R v Hammerbeck, 1991 CanLII 5762 (BC CA), 68 CCC (3d) 161, per Locke JA
Participation of Third Parties
- 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) |
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| s. 273.3 [removal of child from Canada], s. 280 [abduction of a person under 16], s. 281 [abduction of a person under 14], s. 282 [parental abduction contrary to order] and s. 283 [parental abduction] |
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For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 273.3, 280, 281, 282 and 283), 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
Sentencing Profile
- Maximum Penalties
| Offence(s) | Crown Election |
Maximum Penalty |
|---|---|---|
| 273.3 [removal of child from Canada] 282 [parental abduction contrary to order] or 283 [parental abduction] |
summary election | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
| 273.3 [removal of child from Canada] | indictable election | 5 years incarceration |
| 280 [abduction of a person under 16] | N/A | 5 years incarceration |
| 281 [abduction of a person under 14] | N/A | 10 years incarceration |
| 282 [parental abduction contrary to order] or 283 [parental abduction] |
indictable election | 10 years incarceration |
Offences under s. 280 [abduction of a person under 16], s. 281 [abduction of a person under 14], s. 282 [parental abduction contrary to order] or s. 283 [parental abduction] are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration [s. 280] and 10 years incarceration [s. 281, 282 and 283]. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).
- 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 |
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| s. 273.3 [removal of child from Canada], 283 [parental abduction] |
any | |
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| s. 280 [abduction of a person under 16], 281 [abduction of a person under 14] |
N/A | |
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| s. 282 [parental abduction contrary to order] | summary election | |
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| s. 282 [parental abduction contrary to order] | indictable election | |
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Offences under s. 281 [abduction of a person under 14] are ineligible for a conditional sentence order, when prosecuted by indictment, as the offence is enumerated as ineligible under s. 742.1(f).
Offences under s. 282 [parental abduction contrary to order] or 283 [parental abduction] are ineligible for a conditional sentence order under s. 742.1(e), when (i) prosecuted by way of indictment and where the maximum penalty is 10 years incarceration, that resulted in "bodily harm", "involved the import, export, trafficking or production of drugs", or "involved the use of a weapon".
Offences under s. 282 or 283, that occur between November 30, 2007 and November 19, 2012, are not eligible for a conditional sentence as they are designated "serious personal injury" offences as it is an enumerated offence under under s. 752(b). It will also not be available if the offence was committed in relation to a criminal organization or terrorism offence committed on Nov 30, 2007 or afterwards.
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
Principles
Section 718.01 requires sentencing judges to "give primary consideration to the objectives of denunciation and deterrence" when conduct "involved the abuse of a person under the age of eighteen years". Where the evidence shows that the offender, "in committing the offence, abused a person under the age of eighteen years,... shall be deemed to be an aggravating circumstances" under s. 718.2(a)(ii.1). Where the offender is in a "position of trust or authority" in relation to the victim, it will also be aggravating under s. 718.2(a)(iii).
Ranges
Ancillary Sentencing Orders
- Offence-specific Orders
| Order | Conviction | Description |
|---|---|---|
| DNA Orders | s. 273.3(2), 280, 281, 282 or 283 |
|
| SOIRA Orders | s. 273.3(2), 280 or 281 |
Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act
Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act |
| Weapons Prohibition Orders | s. 280, 281, 282 or 283 |
|
| Section 161 Orders | s. 280 or 281 |
|
| Delayed Parole Order | s. 273.3 |
|
- 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. 273.3(1)(a) [removal of a child under 16 from Canada for purposes of listed offences], 273.3(1)(b) [removal of a child 16 or more but under 18 from Canada for purpose of a listed offence], 273.3(1)(c) [removal of a child under 18 from Canada for purposes of listed offences] are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. An exception can be made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference between victim and offender is less than 5 years.
Convictions under 280 [abduction of a person under 16], 281 [abduction of a person under 14], and 282 [parental abduction contrary to order] 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
- Related Offences
- Kidnapping and Unlawful Confinement (Offence)
- Trafficking in Persons (Offence)
- Abandoning Child (Offence)
- References