Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Abduction of person under fourteen ‑‑ Elements of offence ‑‑ Meaning of word "unlawfully" in English text of s. 281 of Criminal Code ‑‑ Whether Crown must prove additional unlawful act beyond taking of child by stranger ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 281 .
Criminal law ‑‑ Abduction of person under fourteen ‑‑ Mens rea ‑‑ Whether sufficient to establish that taker knew or foresaw that his actions would be certain or substantially certain to result in parents being deprived of ability to exercise control over their child ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 281 .
The accused, aged 43, was hitting golf balls in a field in the school yard when T, aged 8, and his friends A and J, asked him if they could catch the balls with their baseball gloves. The young boys had first met the accused in that same field the previous summer, but only knew him by his first name. They played for a while and then A and J left to get refreshments. When they returned, they found T and the accused in a wooded area at the edge of the school yard. The accused was taking pictures of T and, when the two boys began to interfere with that activity, the accused became annoyed and asked them several times to leave him and T alone. Eventually, the accused suggested to T that they could go to a nearby bridge. Although A and J told T not to go, T entered the accused's car and left with him. They drove approximately 2.9 km, stopping at various locations to take pictures. When T's father was informed of the situation by J's mother, he began a search with the help of others, including a police officer. T's father found his child sometime later and confronted the accused. The latter indicated that he had only intended to take pictures of T as a surprise for T's parents. As a consequence of these events, the accused was charged with several offences, including abduction of a person under 14 years of age contrary to s. 281 of the Criminal Code . At trial, at the close of the Crown's case, the trial judge granted the defence's motion for a directed verdict on the s. 281 charge. He found that the Crown had failed to prove the essential elements of the offence as there was no evidence upon which a jury properly instructed could arrive at the conclusion that the accused intended to deprive T's parents of the possession of their child by an unlawful act. The Court of Appeal dismissed the Crown's appeal.
Held: The appeal should be allowed and a new trial ordered.
The word "unlawfully" (illégalement) which appears in the English, but not in the French, text of s. 281 of the Code does not entail evidence beyond that of the taking by a person without legal authority over the child. The word "unlawfully" has generally been interpreted to mean "without lawful justification, authority or excuse" and in s. 281 is surplusage as the general defences, justifications and excuses available under the Code apply to the offence of abduction just as they do for other offences generally. This interpretation of the word "unlawfully" is in accord with the purpose of the section, which is to prevent and punish a stranger intending to deprive the parent, guardian or person who has the lawful care or charge of the child of the ability to exercise physical control over the child. It also accords with the protection of those persons who innocently take a child out of the control of the person lawfully in charge of the child and who may well be able to provide justification for their conduct. Retaining the word "unlawfully" in the English text of s. 281 was a mere oversight and the French text reflects the true intent of Parliament when it redrafted in 1982 the section to apply only to abduction by strangers. Consequently, there was no necessity for the Crown to prove an additional unlawful act or some element of unlawfulness beyond the taking of a child by a person who did not have lawful authority over the child and the trial judge was in error in so interpreting s. 281 of the Code.
Although the proof of intent under s. 281 can be met by the intentional and purposeful deprivation of the parent's control over the child, the mens rea can be established by the mere fact of depriving the child's parent (or guardian or any other person having the lawful care or charge of the child) of possession of the child through the taking, as long as the trier of fact draws an inference that the consequences of that taking are foreseen by the accused as a certain or substantially certain result from the taking, independently of the purpose or motive for which such taking occurred.
Given the proper interpretation of s. 281 and the evidence adduced, the trial judge erred in granting the motion for a directed verdict and the Court of Appeal should have allowed the appeal. There was evidence upon which a reasonable jury properly instructed could conclude that the accused would have known or foreseen that his actions in taking or enticing the 8‑year‑old boy would be certain or substantially certain to result in his parents being deprived of their ability to exercise control over him.
Cases Cited
Referred to: R. v. Cook (1984), 12 C.C.C. (3d) 471; R. v. Van Herk (1984), 12 C.C.C. (3d) 359; R. v. Horsford (1981), 62 C.C.C. (2d) 478; R. v. Kosowan (1980), 54 C.C.C (2d) 571; R. v. Falvo (1972), 11 C.C.C. (2d) 378; Re Bigelow and The Queen (1982), 69 C.C.C. (2d) 204, leave to appeal refused, [1982] 2 S.C.R. v; R. v. Wasyl Kapij (1905), 1 W.L.R. 130; State v. Noble, 563 P.2d 1153 (1977); R. v. Enkirch (1982), 1 C.C.C. (3d) 165; Morgentaler v. The Queen, [1976] 1 S.C.R. 616; R. v. DeSousa, [1992] 2 S.C.R. 944; R. v. Creighton, [1993] 3 S.C.R. 3; R. v. Garofoli, [1990] 2 S.C.R. 1421; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505; R. v. Nygaard, [1989] 2 S.C.R. 1074; R. v. Robinson, [1948] O.R. 857; R. v. Patterson (1930), 55 C.C.C. 218; R. v. Connolly (1894), 25 O.R. 151; Lyons v. Smart (1908), 6 C.L.R. 143; R. v. McDougall (1990), 1 O.R. (3d) 247; R. v. Meddoui, [1990] A.J. No. 455 (QL), aff'd [1991] 3 S.C.R. 320; R. v. Manktelow (1853), 6 Cox C.C. 143; R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Olan, [1978] 2 S.C.R. 1175; R. v. Allsop (1976), 64 Cr. App. R. 29; R. v. Rousseau, [1982] C.S. 461; R. v. Green (1989), 89 N.S.R. (2d) 16; R. v. Whitty (1977), 12 Nfld. & P.E.I.R. 361; R. v. MacKinlay (1986), 28 C.C.C. (3d) 306; R. v. Johnson (1984), 65 N.S.R. (2d) 54; R. v. Sam, [1993] Y.J. No. 233 (QL); R. v. Petropoulos (1990), 59 C.C.C. (3d) 393; Lewis v. The Queen, [1979] 2 S.C.R. 821; R. v. Elder (1978), 40 C.C.C. (2d) 122; R. v. Leech (1972), 10 C.C.C. (2d) 149; R. v. Steane, [1947] K.B. 997; United States of America v. Shephard, [1977] 2 S.C.R. 1067; R. v. Monteleone, [1987] 2 S.C.R. 154; Mezzo v. The Queen, [1986] 1 S.C.R. 802.
Statutes and Regulations Cited
Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980‑81‑82‑83, c. 125.
Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 37, 40.
Criminal Code, R.S.C. 1906, c. 146, s. 316.
Criminal Code, R.S.C. 1970, c. C‑34, ss. 250 [rep. & sub. 1980‑81‑82‑83, c. 125, s. 20], 250.1 [en. idem], 250.2 [idem].
Criminal Code , R.S.C., 1985, c. C‑46 , ss. 8(3) , 25 , 218 , 266 , 279 [am. c. 27 (1st Supp.), s. 39], 279.1 [ad. idem, s. 40], 280, 281, 282 [am. 1993, c. 45, s. 4], 283 [idem, s. 5], 284, 286.
Criminal Code, S.C. 1953‑54, c. 51, s. 236.
Criminal Code, 1892, S.C. 1892, c. 29, s. 284.
Authors Cited
Archbold, John Frederick. Pleading, Evidence and Practice in Criminal Cases, 43rd ed. Edited by Stephen Mitchell, P. J. Richardson and D. A. Thomas. London: Sweet & Maxwell, 1988.
Baudouin, Jean‑Louis. "L'enlèvement et la non‑représentation d'enfants à la lumière du nouveau droit civil québécois, du droit fédéral et du droit international" (1982‑1983), 17 R.J.T. 151.
Black's Law Dictionary, 6th ed. St. Paul, Minn.: West Publishing Co., 1990, "unlawfully".
Canada. House of Commons. Standing Committee on Justice and Legal Affairs. Minutes of Proceedings and Evidence, Issue No. 78, April 27, 1982, at p. 78:9.
Canada. House of Commons. Standing Committee on Justice and Legal Affairs. Minutes of Proceedings and Evidence, Issue No. 93, June 3, 1982, at pp. 93:31, 93A:1.
Canada. Houses of Commons Debates, vol. X, 1st Sess., 32nd Parl., at pp. 11300, 11344, 11348.
Canada. Houses of Commons Debates, vol. XIII, 1st Sess., 32nd Parl., at p. 14187.
Canada. Minister of Justice. Proposals to amend the Criminal Code (general principles), June 28, 1993.
Canada. Royal Canadian Mounted Police. 1993 Annual Report on Canada's Missing Children ‑‑ Missing Children's Registry, 1993.
Canada. Statistics Canada. Canadian Centre for Justice Statistics. Juristat, vol. 10, No. 15, October 1990.
Colvin, Eric. Principles of Criminal Law, 2nd ed. Scarborough, Ont.: Thomson Professional Publishing Canada, 1991.
Dictionary of Canadian Law. Scarborough, Ont.: Thomson Professional Publishing Canada, 1991, "unlawfully".
Ewaschuk, E. G. "Abduction of Children by Parents" (1978‑79), 21 Crim. L.Q. 176.
Ewaschuk, E. G. Criminal Pleadings & Practice in Canada, vol. 2, 2nd ed. Aurora, Ont.: Canada Law Book, 1987.
Gold, Alan D. Annual Review of Criminal Law ‑‑ 1984. Toronto: Carswell, 1984.
Harris, Seymour Frederick. Harris's Criminal Law, 22nd ed. By Ian McLean and Peter Morrish. London: Sweet & Maxwell, 1973.
Johnstone, Bruce. "Parental Child Abduction Under the Criminal Code " (1987), 6 Can. J. Fam. L. 271.
LaFave, Wayne R., and Austin W. Scott, Jr. Criminal Law, 2nd ed. St. Paul, Minn.: West Publishing Co., 1986.
McDonald, Ryan J. "Missing Children", in Canadian Social Trends, No. 24. Ottawa: Statistics Canada, Spring 1992, 2.
Mewett, Alan W., and Morris Manning. Criminal Law, 2nd ed. Toronto: Butterworths, 1985.
Stuart, Don. Canadian Criminal Law: A Treatise, 2nd ed. Toronto: Carswell, 1987.
Watt, David. The New Offences Against the Person: The Provisions of Bill C‑127. Toronto: Butterworths, 1984.
Williams, Glanville. Criminal Law: The General Part, 2nd ed. London: Stevens & Sons Ltd., 1961.
Williams, Glanville. "Intents in the Alternative" (1991), 50 Cambridge L.J. 120.
Williams, Glanville. Textbook of Criminal Law, 2nd ed. London: Stevens & Sons, 1983.
APPEAL from a judgment of the Ontario Court of Appeal rendered October 6, 1992, dismissing the Crown's appeal from the accused's acquittals on charges under ss. 218 and 281 of the Criminal Code . Appeal allowed and new trial ordered.
Catherine A. Cooper, for the appellant.
Robert F. Meagher, for the respondent.
The judgment of the Court was delivered by
L'Heureux-Dubé J. -- This appeal essentially raises only one issue: the interpretation of s. 281 of the Criminal Code , R.S.C., 1985, c. C‑46 . That section concerns the abduction of a person under the age of fourteen by an individual other than that person's parent, guardian or a person having his or her lawful care or charge, i.e., the abduction of children by strangers.
Section 281 of the Code reads as follows:
281. Every one who, not being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen 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 an indictable offence and liable to imprisonment for a term not exceeding ten years.
The issue revolves around the intent required by s. 281 of the Code. There are two proposed interpretations. The appellant, on one hand, favours a broad interpretation in light of the important purpose that s. 281 was implemented to achieve, namely preventing children from being removed from the ambit of control of their parents or guardians, or from those who have lawful care or charge over them, in order to protect the children from strangers. According to the appellant, a restrictive interpretation is antithetical to the objective of the section. The respondent, on the other hand, proposes a restrictive interpretation which, in his view, better accords with the interpretation of criminal law.
A brief review of the facts is in order at the outset.
I. Facts
On Sunday, April 14, 1991, the respondent, 43 years old, was hitting golf balls in the soccer field of a school yard in Ottawa. Eight‑year‑old Tyler Arnold and his friends Joey, Andy and Shawn, entered the school yard, which was about one block away from Tyler Arnold's home, in order to play. They asked the respondent whether they could catch the balls with their gloves. The boys had first met the respondent in that same field the previous summer, but only knew him by his first name, John, which was on his key chain.
The boys caught the balls for some time and then some of them went to get refreshments. Tyler remained in the school yard where the respondent began photographing him. When two of the other boys, Andy and Joey, returned to the school yard, they had trouble locating the respondent and Tyler. They found the respondent taking pictures of Tyler in a wooded area at the edge of the school yard. When the other two boys began to interfere with the picture taking, the respondent asked them several times to leave him and Tyler alone. Ultimately, the respondent and Tyler ran back out of the wooded area, away from the two other boys. When Andy and Joey caught up, the respondent said "Guys, leave us alone". Andy agreed to leave them alone if he could steer the respondent's car around the parking lot. The respondent agreed. Tyler and Joey sat in the front seat, and, while the respondent operated the gas and break, Andy, sitting on his lap, steered the car.
Soon thereafter the children got out of the car and the respondent told Tyler that they could go to the Champlain Bridge. One of the children overheard part of this conversation and asked the respondent where he and Tyler were going. The respondent did not answer. Although the two children told Tyler not to go with the respondent, Tyler re-entered the car. The respondent and Tyler drove approximately 2.9 km, stopping at certain points to take pictures along the Ottawa River. They first drove to the Champlain Bridge where the respondent took photographs of Tyler. Then, they drove to Kitchissippi Lookout at Westboro Beach where the respondent took more photographs of Tyler positioned on a large rock which juts out into the water of the Ottawa River, including some which feature Tyler on the rock's ledge.
Upon returning home, the other two boys told Joey's mother that Tyler had left in a red car with the respondent, whose name they knew was John and who they had been told lived in an apartment building near the school yard. As a result, Joey's mother contacted Tyler's father, who, along with the boys, and others (including a police officer) began a search for Tyler which appears to have lasted somewhere between 30 and 90 minutes. Tyler's father and one of the other boys found Tyler and the respondent at the Kitchissippi Lookout at Westboro Beach where the respondent was taking pictures of Tyler wearing the respondent's sweater. Apparently, Tyler had been cold and the respondent had removed his sweater and offered it to Tyler. Tyler's father demanded to know on what authority the respondent had taken his son, and the respondent replied that he had intended to take pictures of Tyler as a surprise for Tyler's parents.
As a consequence of these events, the respondent was charged with abduction of a person under fourteen years of age (s. 281 of the Criminal Code ), assault (s. 266 of the Code) and exposing a child to endangerment (s. 218 of the Code). On August 27, 1991, the respondent entered a plea of not guilty. On the same day, following the testimony of Tyler, the Crown withdrew the assault charge. At the close of the Crown's case, counsel for the defence moved for a directed verdict of acquittal on the remaining two counts and the court so ordered. The Crown subsequently appealed the respondent's acquittals and the Court of Appeal for Ontario dismissed the appeal. The appellant sought and was granted leave to this Court only with regard to the charge under s. 281 of the Code.
II. Judgments
Ontario Court of Justice (Provincial Division)
At the close of the Crown's case, Beaulieu Prov. Div. J. (as he then was) considered a non-suit motion brought by counsel for the respondent Chartrand requesting a directed verdict for dismissal. In dealing with that motion, Beaulieu Prov. Div. J. indicated that it was not his task to weigh the evidence adduced. Instead, he only had to determine whether there was "some evidence upon which a jury properly instructed might convict" in that "there is some evidence on each of these essential elements of the charge". (Emphasis in original.) He found that the Crown had failed to prove the essential elements of the charge under ss. 218 and 281 of the Code. Of particular relevance to this appeal, in considering s. 281, Beaulieu Prov. Div. J. held:
... the gravamen of this particular offence is the intent to deprive a parent of the possession of the person in question. That is, it is an intentional deprivation of that person from the parent ... [Emphasis in original.]
In determining that there was not enough evidence with regard to some of the essential elements of the charge, Beaulieu Prov. Div. J. stated:
By that, I mean that there may -- and it is conceivable that there may have been enticement. The question arises, however, whether or not it was an unlawful enticement. There is no evidence upon which a jury properly-instructed could arrive at the conclusion that the accused intended to deprive Lorne and Kathy Arnold of the possession of Tyler Arnold by an unlawful act.
Even accepting the position of the Crown with respect to other fashions in which the offence might be completed, there is no evidence, once again the criterion being the unlawful taking, there may have been a taking, but the emphasis has to be the unlawful taking, and that has to be proven in evidence. The concealing, or detaining, receiving, or harbouring must be such that the gravamen is the context of an intentional deprivation of the possession of the parents of their child. [Emphasis in original.]
In closing, Beaulieu Prov. Div. J. commented on the fact that, although the accused's actions were wrong, they were not caught by the Code:
While the actions of the accused may quite legitimately be perceived, not only by the parents and the school authorities, by many citizens, as being, as the Crown has indicated, "socially inappropriate", some people might go further and say that they were not only socially inappropriate, but they are reprehensible in the social sense of the lack of respect for the position of parents and people in authority and their right to control and their right to privacy. In other words, that the father, on the evidence before the Court, quite legitimately expressed his repugnance at the conduct of the accused in the circumstances. The fact remains that, with respect to the criminal law as it is defined and the sections as they have been written, make it such that, as reprehensible and as annoying and as unacceptable as the accused's conduct may have been in the circumstance, that conduct, in my view, on the evidence presented to the Court, falls short of that required to send the matter further for trial.
Accordingly, he allowed the motion for a non-suit and entered directed verdicts of acquittal on the charges under ss. 218 and 281 of the Code.
Court of Appeal for Ontario (per Houlden J.A., Tarnopolsky and Austin JJ.A. concurring)
On appeal by the Crown, Houlden J.A., for the court, wrote this brief endorsement:
On the facts of this case, we believe that the trial judge was entitled to find that there was no evidence on which a jury, properly instructed, could find that there was an intent to deprive the parents of possession of their child.
On the charge under s. 218 of the Code, the facts introduced at trial were too flimsy and dubious to establish a likelihood of "real risk" as opposed to the mere possibility of a threat to Tyler's life.
We believe that the trial judge was right in excluding the evidence of prior warnings as it had no rational or probative value with respect to the charges against the respondent.
Leave to appeal is granted but the appeal is dismissed.
III. Issue
The issue is whether the Court of Appeal for Ontario erred in law in upholding the trial judge's interpretation of the mens rea requirement in s. 281 of the Code.
IV. Analysis
As set out above, this case involves the interpretation of s. 281 of the Code. In order to succeed under s. 281, the Crown must prove beyond a reasonable doubt the following elements:
1. That the accused is not a parent, guardian or person having the lawful care or charge of a person under the age of fourteen years (hereinafter a "child");
2. The age of the child;
3. That the accused took, enticed away, concealed, detained, received or harboured the child (hereinafter "took");
4. That the taking was with intent to deprive a parent or guardian, or any other person who had the lawful care or charge of that person, of the possession of that person.
The first three elements are not in dispute and were supported by uncontested evidence. The remaining element and the significance of the word "unlawfully" in s. 281 of the Code are the matters with which we are concerned here and I will discuss them in turn.
A. "Unlawfully"
According to the trial judge, an "unlawful taking" is distinct from a "taking". The appellant argues that the trial judge equated "unlawfully" with the requisite intent to deprive the parents of possession. The appellant also contends that, if the trial judge concluded that the word "unlawfully" in s. 281 imported some element of unlawfulness beyond that which is already provided for by the remaining words of the section, he wrongly interpreted s. 281. More precisely, the appellant submits that, if the trial judge interpreted s. 281 as requiring proof that the intended deprivation of the child from the parent (guardian, etc.) involved some additional unlawful act, he was in error. According to the appellant, the most that the word "unlawfully" could mean in s. 281 is "without lawful authority" or "without lawful justification or excuse". The respondent for his part agrees with the trial judge's interpretation of the word.
I propose to deal with that issue by looking at the legislative history of the section, its purpose and context as well as the wording of the statute and the interpretation given by the jurisprudence to the word "unlawfully". I conclude that, in light of the history and purpose of the 1982 amendments and the context in which they were enacted, the word "unlawfully" as it is used in s. 281 does not require the commission of an additional unlawful act. Rather, it represents verbal surplusage that enunciates no more than the general defences, justifications, and excuses already available under the Code.
(1) The Legislative History
Section 284 of the Criminal Code, 1892 (S.C. 1892, c. 29), the predecessor of s. 281, defined the offence of child stealing as follows:
284. Every one is guilty of an indictable offence and liable to seven years' imprisonment who, with intent to deprive any parent or guardian, or other person having the lawful charge, of any child under the age of fourteen years, of the possession of such child, or with intent to steal any article about or on the person of such child, unlawfully--
(a.) takes or entices away or detains any such child; or
(b.) receives or harbours any such child knowing it to have been dealt with as aforesaid.
2. Nothing in this section shall extend to any one who gets possession of any child, claiming in good faith a right to the possession of the child.
In the 1906 revision (Criminal Code, R.S.C. 1906, c. 146), s. 284 became s. 316, which is the offence of abduction as it is known today. In so doing, paragraph (b.) was replaced by the following: "receives or harbours any such child, knowing it to have been unlawfully taken, enticed away or detained with intent aforesaid". In the 1953-54 revision of the Code (S.C. 1953-54, c. 51), s. 316 became s. 236, modified as follows, but still dealing with abduction by both parents and strangers:
236. (1) Every one who, with intent to deprive a parent or guardian or any other person who has lawful care or charge of a child under the age of fourteen years of the possession of that child, or with intent to steal anything on or about the person of such a child, unlawfully
(a) takes or entices away or detains the child, or
(b) receives or harbours the child,
is guilty of an indictable offence and is liable to imprisonment for ten years.
(2) This section does not apply to a person who, claiming in good faith a right to possession of a child, obtains possession of the child. [Emphasis added.]
Section 236 became s. 250 in the 1970 revision (Criminal Code, R.S.C. 1970, c. C-34) and, in 1982, the Code was amended to distinguish between abduction by parents (ss. 250.1 and 250.2, now ss. 282 and 283) and abduction by strangers (s. 250, now s. 281): An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980-81-82-83, c. 125, assented to October 27, 1982 and proclaimed in force January 4, 1983. The amended s. 250 dealt only with abduction by strangers. It read:
250. Every one who, not being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen 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 an indictable offence and is liable to imprisonment for ten years. [Emphasis added.]
A notable aspect of the 1982 amendments was the deletion of the word "unlawfully" from the offence of abduction by parents. The word was retained in the English text of the offence of abduction by strangers yet was omitted from the French text of the same section. This incongruity remains in the current text; its significance will be examined in further detail below.
Apart from the discrepancy between the English and the French text, s. 250 (now s. 281) suffered only two modifications. The first one deleted the words "or with intent to steal anything on or about the person of such a child" which appeared in the earlier s. 236(1). The second deleted the former s. 236(2) in its entirety, a section primarily directed at parents, guardians or persons having the lawful care or charge of a child, and, most particularly, at parents who could claim a right to the possession of a child as joint guardians entitled to the child's custody, care and charge. (See: R. v. Cook (1984), 12 C.C.C. (3d) 471 (N.S.C.A.), at p. 475.) That subsection was seldom applied to strangers since strangers (those not related in any way to a child) can very rarely claim a right to possession of a child.
In the 1985 revision (Criminal Code , R.S.C., 1985, c. C-46 ), s. 250 was renumbered s. 281 with minor modifications not relevant to our purposes, and ss. 250.1 and 250.2 became respectively ss. 282 and 283.
As I said earlier, ss. 250.1 (now s. 282) and 250.2 (now s. 283) were added in order to deal with abduction by parents, guardians or persons having the lawful care or charge of the child (hereinafter "parental abduction"). The first dealt with abduction in contravention of a custody order, and the second with abduction in the absence of a custody order. The remarkable feature for our purposes is that, while s. 250 retained the word "unlawfully", the new ss. 250.1 and 250.2 did not.
As noted by E. G. Ewaschuk in "Abduction of Children by Parents" (1978-79), 21 Crim. L.Q. 176, at p. 179, commenting on s. 250 as it was prior to the 1982 amendments:
... both the husband and wife have authority during marriage. Both parents, subject to alteration by court order, therefore generally have lawful custody of their children.
Since s. 250 of the Code requires that the taking, enticing, detaining, receiving or harbouring of the child under 14 years be unlawful and since a parent's custody of the child by reason of status and relationship is lawful, it therefore follows that a parent cannot be guilty of child abduction unless his or her custody of the child has been lawfully terminated. As a consequence, this form of abduction has general application to third parties and, except for limited situations, not to parents. [Emphasis added.]
B. Johnstone, relying on the case law, expressed the same view, in "Parental Child Abduction Under the Criminal Code " (1987), 6 Can. J. Fam. L. 271, at p. 273:
Consequently, although the section was applied to parents in contravention of custody orders, where there was no custody order a successful prosecution would not lie because in the absence of a custody order restricting parental rights, each parent had an equal right to custody and it would not be an unlawful act for one parent to take the child....
No doubt in part to rectify this situation, s. 250.2 was enacted.... [Emphasis added.]
(See: A. D. Gold, Annual Review of Criminal Law -- 1984 (1984), at p. 119.)
The case law is to the same effect. (See: R. v. Van Herk (1984), 12 C.C.C. (3d) 359 (Alta. C.A.), at p. 363; R. v. Cook, supra, at p. 475; R. v. Horsford (1981), 62 C.C.C. (2d) 478 (Ont. Prov. Ct.), at p. 480; R. v. Kosowan (1980), 54 C.C.C (2d) 571 (Man. Co. Ct.); and R. v. Falvo (1972), 11 C.C.C. (2d) 378 (Man. Co. Ct.).)
Thus, there was a rationale not to insert the word "unlawfully" in these two sections. Was there one to justify the retention of that word in s. 250 (now s. 281) particularly since it was deleted from the French text?
A look at the purpose of the amendments and the context in which they were enacted might shed some light.
(2) Purpose and Context
In this examination of the purpose of s. 281, it is necessary to look at the whole scheme designed by Parliament to deal with such related offences as kidnapping, hostage taking and abduction, more precisely, ss. 279 to 286 of the Code. Those sections deal with the whole range of related offences. Sections 279 and 279.1 deal respectively with kidnapping and hostage taking of a person. Section 280 deals with abduction of a person under sixteen, and ss. 281 to 283 deal with abduction of a person under fourteen. In the first two offences, pursuant to ss. 279 and 279.1, the consent to the guilty act of the person abducted could be a defence while in the other four offences, pursuant to s. 286, the consent of the young person is not a defence. More particularly, pursuant to s. 284, in the offences defined by ss. 281 to 283, only the consent of the parents (guardians, etc.) of the child may be a defence. Thus, in ss. 279 and 279.1, the focus is on the person abducted while, in ss. 281 to 283, the focus is on the parents (guardians, etc.) since only their consent, and not that of the taken child, could constitute a defence. Therefore, it would appear that ss. 279 and 279.1 are offences against the person abducted, while ss. 281 to 283 are mainly offences against the rights of the parents (guardians, etc.) of the abducted child.
The wording of ss. 281 to 283 leads us to a similar conclusion. All three sections specify that the taking must be with intent to deprive the parent, guardian or person who has the lawful care or charge of the child. This conclusion was also reached in Re Bigelow and The Queen (1982), 69 C.C.C. (2d) 204 (Ont. C.A.), at p. 213, leave to appeal to the Supreme Court of Canada refused, [1982] 2 S.C.R. v, in which a father was accused of detaining his child contrary to s. 250 (now s. 281):
The gravamen of the offence under s. 250(1) is interference with the custodial rights of the mother by intentionally depriving her of those rights by "detaining" the child.... Although s. 250 is placed in Part VI of the Criminal Code under the heading of "Offences Against the Person and Reputation" it is not an offence against the person of the child.... In reality it is an offence against the custodial rights of the mother. [Emphasis added.]
Seen in that context, the purpose of s. 281 is to secure the right and ability of parents (guardians, etc.) to exercise control over their children (those children for whom they act as guardians, etc.) for the protection of those children, and at the same time to prevent the risk of harm to children by diminishing their vulnerability. It is also a recognition by Parliament that children are best protected by the supervision of their parents (guardians, etc.).
That purpose is still more apparent from the social context in which those amendments were adopted and the mischief they were intended to cure. Concerns were voiced at the time by numerous groups as to the security of children in Canada and the fact that the offence of abduction in s. 250, as it was prior to the 1982 amendments, did not adequately protect against parental abduction. (See Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs of June 3, 1982, at p. 93:31; brief from Abducted Children's Rights of Canada on "Child Abduction" appended to the Minutes of June 3, 1982, at p. 93A:1; comments at p. 78:9 of the Minutes of April 27, 1982; J.-L. Baudouin, "L'enlèvement et la non-représentation d'enfants à la lumière du nouveau droit civil québécois, du droit fédéral et du droit international" (1982-1983), 17 R.J.T. 151; R. v. Cook, supra, at p. 479; and Ewaschuk, supra, at p. 195.) To alleviate the confusion which arose under that section, and to render the law more effective regarding the abduction of children, Parliament found it more appropriate to distinguish between parental and stranger abductions and to adopt different rules for each type of abduction. (See House of Commons Debates, vol. X, 1st Sess., 32nd Parl., July 7-8, 1981, at pp. 11300, 11344 and 11348; and House of Commons Debates, vol. XIII, 1st Sess., 32nd Parl., December 17, 1981, at p. 14187.)
The broad aim of criminal law is to prevent harm to society (W. R. LaFave and A. W. Scott, Criminal Law (2nd ed. 1986), at p. 10; A. W. Mewett and M. Manning, Criminal Law (2nd ed. 1985), at p. 14). Since the wording of the section does not suggest otherwise, s. 281 must be interpreted in a manner which conforms with this aim, here the prevention of harm to, and protection of, children. A glance at the social context in which this legislation must be interpreted sets the stage for our purposive and contextual approach to s. 281 of the Code.
Each year, in Canada, hundreds of children are abducted by strangers from playgrounds, parks, school yards and streets:
In 1989, 1,003 abductions were reported to the police. These incidents were equally likely to involve abduction of a person under 14 years of age by a person who is not a guardian (36%) and abduction by a parent or guardian in contravention of a custody order (36%).
(Juristat from Statistics Canada, vol. 10, No. 15 (October 1990), at p. 7.)
The number of children abducted by strangers is reported to be 61 in 1993 (Royal Canadian Mounted Police, 1993 Annual Report on Canada's Missing Children).
That figure may understate the magnitude of the problem of child abduction since children who have been abducted by strangers will generally be listed in the "unknown" category until a witness has informed the authorities that he or she has actually seen the child being taken by an individual. In this "unknown" category, by contrast, there were 9,959 cases reported in 1993. Although many first time runaways are no doubt counted in this category, a fair number of such children may have been children abducted by strangers. Regardless of the precise statistics, the abduction of children by strangers is a sad reality and a great concern to society: one is too many. (See also, R. J. McDonald, "Missing Children", in Canadian Social Trends, No. 24 (Spring 1992), at pp. 2-5.)
That the legislation was designed to curb such social ill cannot be doubted. The purpose of s. 281 -- to protect children from abduction -- reflects a societal interest in the security of children in that it both prevents and deters the abduction of children by strangers. This accords with public policy. Viewed in the light of its purpose and context, such legislation has a broad scope and the restrictive interpretation of s. 281 of the Code proposed by the respondent does not seem to be particularly attractive.
Important as they are, however, the legislative history, the purpose and the context of s. 281 of the Code are, in the end, tributary to the wording of the statute and the case law which has interpreted that section, a matter I will now turn to.
(3)The Wording of the Statute and the Interpretation Given by Jurisprudence to the Word "Unlawfully"
What does an "unlawful" taking mean in s. 281 of the Code? The Dictionary of Canadian Law (1991), at pp. 1120-21, referring to Archbold Pleading, Evidence and Practice in Criminal Cases (43rd ed. 1988), at p. 1342, defines the word "unlawfully" as "[w]ithout a lawful reason or excuse". Black's Law Dictionary (6th ed. 1990), at p. 1536, referring to State v. Noble, 563 P.2d 1153 (N.M. 1977), at p. 1157, equates the term "unlawful" with the expression "without excuse or justification". That interpretation has been retained in a number of cases. (See, for instance, R. v. Wasyl Kapij (1905), 1 W.L.R. 130, at p. 136, interpreting the word "unlawfully" in the context of the offence of unlawfully obstructing or preventing a clergyman from celebrating a divine service.)
In cases dealing more specifically with parental abduction under s. 250, as it read before the 1982 amendments, "unlawfully" has been equated with, amongst other things, "without lawful authority" in the sense of absence of parental authority over the child or "without lawful justification, authority or excuse". (See: Ewaschuk, supra, at p. 179; Johnstone, supra, at p. 273; R. v. Van Herk, supra, at p. 363; R. v. Enkirch (1982), 1 C.C.C. (3d) 165 (Alta. C.A.); R. v. Cook, supra, at p. 475; R. v. Horsford, supra, at p. 480; R. v. Kosowan, supra; and R. v. Falvo, supra.)
It is appropriate to interpret the expression "unlawfully" as meaning "without lawful justification, authority or excuse", as that term is used in s. 281 of the Criminal Code ; this interpretation is in accord with the purpose of the section which is to prevent and punish strangers intending to deprive a parent (guardian, etc.) of his or her child (the child for whom they act as guardian, etc.). To require that an additional unlawful act occur beyond the physical act of taking the child is at cross-purposes with the mischief Parliament wanted to cure; such an interpretation would not adequately achieve the goal of prevention, and the rights of the parents could not be vindicated. This is especially true given the fact that when a stranger abducts a child, he or she often just "takes" the child in a non-violent manner. At the same time, this interpretation accords with the protection of those persons who innocently take a child out of the control of a parent (guardian, etc.), and who may well be able to provide justification for their conduct. Surely, the aim and purpose of the section cannot be to convict people who have a lawful justification for taking children such as an honourable purpose by a good samaritan.
However, the defences that the word "unlawfully" was intended to provide are in fact available and can be found in other sections of the Code. For instance, s. 8(3) states that the common law defences, justifications and excuses are available in respect of proceedings for an offence under the Code (unless it contradicts an Act of Parliament, which is not the case here). Furthermore, s. 25 of the Code already provides a defence for persons acting under authority such as child protection workers acting under a provincial statute. That would be the case under the Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 37 and 40. Thus, the defence of lawful authority is provided for by the Code, notwithstanding any express provision to that effect in s. 281.
This last observation accords with the view that the word "unlawfully", when equated with the expression "without lawful justification, authority or excuse", is unnecessary or redundant as these general exculpatory defences are already implicitly open to an accused. In Morgentaler v. The Queen, [1976] 1 S.C.R. 616, at p. 648, Laskin C.J., dissenting, however not on that point, made the following comments:
. . . the word "unlawfully" in the abortion provisions of the Code, a word which, as already noted, was removed in the Criminal Code revision effected by 1953-54 (Can.), c. 51. The removal of the word, under modern drafting styles, was simply the removal of a redundancy which reflected an older style of drafting.
For his part, G. Williams, Criminal Law: The General Part (2nd ed. 1961), at pp. 27-29, dealt at length with the issue of the use of the word "unlawfully" in statutes and, in the end, arrived at a similar conclusion to that of Laskin C.J.:
A criminal statute will frequently declare that it is an offence "unlawfully" to do a specified act. This use of the word "unlawfully" has been criticised, on the ground that it is the business of the statute to reveal to the citizen precisely what conduct the legislature has considered unlawful. On its face the word appears to be intended to have limiting effect, but there are several possible opinions as to the nature of the limitation.
(1) One interpretation would read the word "unlawfully" in a criminal statute as referring to a breach of the criminal law....
(2) The word may indicate, in addition to (1), an intention to attach criminal punishment to an act that, though already a tort or other civil wrong, is not at the time of the passing of the statute a crime.
...
(3) In some cases courts have gone further and distinguished between what is legal and what is lawful; legal is what is in conformity with the law; lawful connotes also a requirement of morality....
(4) Yet another possible interpretation of "unlawfully" is that the word is surplusage, merely indicating the existence of general defences in crime, such as infancy and insanity, which will in fact apply even if the word "unlawfully" is not in....
It is submitted that this last is generally the best interpretation.... [Emphasis added.]
By way of contrast, I note that where, in result-based offences, a particular unlawful act attracts certain consequences, "unlawful" has a precise purpose, such as unlawfully causing bodily harm (s. 269 of the Code). In R. v. DeSousa, [1992] 2 S.C.R. 944, this Court dealt with s. 269 of the Code which involves some additional unlawful act in order to constitute the offence. Sopinka J. stated this requirement in the following terms, at p. 956:
To be brought within the ambit of s. 269, an accused must have committed an underlying unlawful offence (otherwise referred to as the predicate offence) and have caused bodily harm to another person as a result of committing that underlying offence.
In that case, Sopinka J. examined the case law interpreting the term "unlawfully" in a similar provision, that is unlawful act manslaughter. He stated, at p. 962, that, in addition to "the requirement that an underlying offence with a constitutionally sufficient mental element has been committed", s. 269 required an additional aspect to the mental element of that section. Such an analysis is not applicable to s. 281 of the Code since, contrary to s. 269 of the Code, s. 281 is not a result-based offence and does not rely on an underlying offence. Thus, the notion that the word "unlawfully" in s. 281 of the Code requires some additional unlawful act, as the trial judge seems to have required, cannot be sustained on that basis.
Similarly, other interpretations of the word "unlawfully" have been put forward in particular contexts. (See: R. v. Creighton, [1993] 3 S.C.R. 3, at p. 25, which dealt with unlawful act manslaughter under s. 222(5) of the Code and held that an "unlawful act" is one which is objectively dangerous; R. v. Garofoli, [1990] 2 S.C.R. 1421, at pp. 1451-53, which was concerned with the admission of intercepted private communication evidence unlawfully obtained and with unlawful search or seizure, where unlawful was equated with "not authorized by law"; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505, at p. 1515, in a similar context; R. v. Nygaard, [1989] 2 S.C.R. 1074, at p. 1096, also in a similar context; R. v. Robinson, [1948] O.R. 857 (C.A.), which dealt with unlawful carnal connection, in which unlawful was found to mean "not authorized by law"; R. v. Patterson (1930), 55 C.C.C. 218 (Ont. C.A.), at p. 229, in which an assembly which was likely to produce dangers to the tranquillity and peace of the neighbourhood was found to be an unlawful assembly; R. v. Connolly (1894), 25 O.R. 151 (Ch. Div.), in which unlawful was held to mean a "thing of public mischief"; Lyons v. Smart (1908), 6 C.L.R. 143 (H.C. Aust.), at p. 147, in which unlawful was interpreted as meaning "wicked in itself".) These interpretations are specific to the offences under scrutiny and cannot automatically and necessarily be applied to s. 281 of the Code. The particular features of s. 281 must be considered.
In the case of s. 281, given its legislative history, its purpose, the context in which it was enacted and, most particularly, the absence of the word "unlawfully" (illégalement) in the French text of s. 281, it is my view that the word "unlawfully" in the English text of s. 281 was carried over from the 1892 legislation under less "modern drafting styles" and the word is "surplusage, merely indicating the existence of general defences in crime". Retaining that word in the English text was a mere oversight and the French text reflects the true intent of Parliament when, in 1982, it redrafted s. 250 (now s. 281) to apply only to abduction by strangers. The fact that the word "unlawfully" does not appear in s. 250.1 (now s. 282) and 250.2 (now s. 283) provides further support for this conclusion.
As a consequence, there was no necessity for the Crown to prove an additional unlawful act or some element of unlawfulness beyond the taking of a child by a person who did not have lawful authority over that child. The trial judge was in error in so interpreting s. 281 of the Code.
I now turn to the remaining issue, the mens rea required by s. 281 of the Code.
B. The Mens Rea
The required intent in s. 281 is couched in the following terms: "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".
(1) "deprive ... of the possession"
In order to interpret the intent requirement in s. 281, a brief discussion of the meaning of the phrase "deprive ... of the possession" is a prerequisite. I agree with the appellant that, given the fact that children are not inanimate objects, this wording must be interpreted to encompass the idea that parents have the right to the care and control of their children. This approach was adopted in the Ontario Court of Appeal decision of R. v. McDougall (1990), 1 O.R. (3d) 247 (C.A.), where Doherty J.A. discussed this phrase in relation to s. 282 of the Criminal Code , the related section of parental abduction, at p. 259:
I take possession to mean physical control over the child or physical custody of the child. To intend to deprive the other parent of that physical control or custody, one must intend to somehow put the child beyond the reach of that control or custody.
It is clear that "possession" is not limited to circumstances in which the parent or guardian is actually in physical control of the child at the time of the taking. In R. v. Meddoui, [1990] A.J. No. 455 (QL), aff'd [1991] 3 S.C.R. 320, a child was playing amongst other children rather than being physically supervised by her guardian when the "enticement" occurred. The trial court concluded, and the appeal court confirmed, that the child had been "in the possession" of her guardian for the purposes of s. 281 of the Criminal Code . Moreover, as the appellant notes, this concept of "deprive ... of the possession", relates to the ability of the parent (guardian, etc.) to exercise his or her right of control over the child and is therefore in keeping with the intent of the legislation to prevent interference with such rights, and with jurisprudence relating to deprivation of possession. (See R. v. Manktelow (1853), 6 Cox C.C. 143 (C.C.A.).)
Further, as noted by the Court of Appeal of Alberta in Meddoui, the intended deprivation of possession of a child need only be for a very short period of time and need not be an attempt at permanent removal. Affirming this decision, Sopinka J., for the Court, in brief oral reasons from the bench, adopted the reasons of the Alberta Court of Appeal where the appellate court concluded as follows:
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.
D. Watt in The New Offences Against the Person: The Provisions of Bill C-127 (1984), expresses a similar view at pp. 144-45:
It may be noticed that the "intent to deprive" described in ss. 250 to 250.2, inclusive, is left unqualified by words such as "temporarily or absolutely", "temporarily" or "permanently". The unqualified nature of the language used in the sections would appear to make it unnecessary for the prosecution to demonstrate that D. intended a permanent deprivation: any intention to deprive the parent, guardian or custodian of the possession of such young person or child would appear to satisfy the statutory command of the sections. Put differently, in respect of the offences of ss. 250 to 250.2, inclusive, an intention to deprive, whether temporarily or permanently, a parent, guardian or custodian of the possession of a child or young person of the protected class will attract liability. [Emphasis added.]
Moreover, in order for there to be deprivation of possession, there need not be any withholding of the child. Indeed, where withholding is made a necessary element of deprivation, the deprivation arises as a result of "detention" rather than by "taking, or enticing" (see McDougall, supra, and Bigelow, supra).
(2) "with intent to"
General principles of mens rea apply to the words "with intent to", and, accordingly, in order to conclude that the mens rea of the offence under s. 281 has been made out, it is sufficient that 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.
In R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369 (Ont. C.A.), although in the context of wilful promotion of hatred, Martin J.A. stated at pp. 384-85:
I agree ... that, as a general rule, a person who foresees that a consequence is certain or substantially certain to result from an act which he does in order to achieve some other purpose, intends that consequence. The actor's foresight of the certainty or moral certainty of the consequence resulting from his conduct compels a conclusion that if he, none the less, acted so as to produce it, then he decided to bring it about (albeit regretfully), in order to achieve his ultimate purpose. His intention encompasses the means as well as to his ultimate objective. [Emphasis added.]
This definition of intent was subsequently approved by this Court in R. v. Keegstra, [1990] 3 S.C.R. 697, at pp. 774-75. Moreover, in R. v. Olan, [1978] 2 S.C.R. 1175, at p. 1182, this Court examined the possibility that intent under s. 338 (now s. 380) of the Code may encompass a contemplated outcome distinct from the purpose of the conduct. It adopted the English Court of Appeal's dictum in R. v. Allsop (1976), 64 Cr. App. R. 29:
Generally the primary objective of fraudsmen is to advantage themselves. The detriment that results to their victims is secondary to that purpose and incidental. It is "intended" only in the sense that it is a contemplated outcome of the fraud that is perpetrated.
In Meddoui, supra, several children had been playing in their backyard next to a back alley when the defendant approached the children and offered some of the children money if a young girl, who he identified, would go with him. The young girl followed him. However, approximately ten minutes later, she ran home crying and frightened. One of the issues raised on appeal was the evidentiary basis which must be laid before a trial judge may conclude that an accused intended to deprive parents of the possession of a child, pursuant to s. 281. The Court of Appeal held that it was open to the trial judge to infer the necessary intent from the facts:
We are satisfied that it was open to the trial judge to infer the necessary intention. 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. We are unaided by any evidence from the accused on this aspect of the case because he denied that he was involved in the taking.
(See also: R. v. Rousseau, [1982] C.S. 461; R. v. Green (1989), 89 N.S.R. (2d) 16 (C.A.); R. v. Whitty (1977), 12 Nfld. & P.E.I.R. 361 (Nfld. C.A.); R. v. MacKinlay (1986), 28 C.C.C. (3d) 306 (Ont. C.A.), at p. 318; R. v. Johnson (1984), 65 N.S.R. (2d) 54 (C.A.); and R. v. Sam, [1993] Y.J. No. 233 (Terr. Ct.) (QL).) It is especially true that intent can be inferred from the surrounding circumstances when we consider that intent is very seldom exteriorized.
The argument of innocent motive or purpose, while relevant, is not dispositive of the question of intent, since intent, purpose and motive are not one and the same. In the British Columbia Court of Appeal decision of R. v. Petropoulos (1990), 59 C.C.C. (3d) 393, the court addressed the intent requirement under s. 282 of the Criminal Code and underlined that the concept of purpose must be kept distinct from intent, at p. 395:
I think the argument raised under this heading confuses what might be conveniently called the concept of "purpose" with that of "intent". It appears that the appellant's purpose in going to Toronto was to get work, rather than to defeat his wife's access rights, but his intent in taking the child with him was that the child should stay in Toronto.... His intent was that she be deprived of the rights which she had under that order. [Italics in original.]
D. Stuart, Canadian Criminal Law (2nd ed. 1987), at pp. 128-30, commenting on Lewis v. The Queen, [1979] 2 S.C.R. 821, expresses the following view with respect to the meaning of intent and the distinction between intent and motive:
The Code provides no general definition of intent and our courts have not found it necessary to fill the gap. "Intent" seems to have been construed in a loose colloquial sense of actual desire, end, purpose, aim, objective or design and knowledge to mean actual knowledge, for example, of the contents of the package possessed. It seems futile for criminal law to enter the unfathomable depths of the philosophical debate as to the meaning of "intent". Our courts are, as we shall soon explore, increasingly prepared to extend mens rea to wider concepts of states of mind. This being so, the debate as to the meaning of intent will often be totally irrelevant.
...
A motive for an act is the explanation of why the actor acted. A motive or series of motives logically arises before an act is committed. This might well be only at the unconscious level. Intent and motive do not necessarily coincide.
...
[The decision of this Court in Lewis after reviewing English and Canadian authorities reduced the place of motive in a criminal trial to six propositions:]
(1) As evidence, motive is always relevant and hence evidence of motive is admissible....
(2) Motive is no part of the crime and is legally irrelevant to criminal responsibility. It is not an essential element of the prosecution's case as a matter of law....
(3) Proved absence of motive is always an important fact in favour of the accused and ordinarily worthy of note in a charge to the jury ....
(4) Conversely, proved presence of motive may be an important factual ingredient in the Crown's case, notably on the issues of identity and intention, when the evidence is purely circumstantial....
(5) Motive is therefore always a question of fact and evidence and the necessity of referring to motive in the charge to the jury falls within the general duty of the trial Judge "to not only outline the theories of the prosecution and defence but to give the jury matters of evidence essential in arriving at a just conclusion...."
(6) Each case will turn on its own unique set of circumstances. The issue of motive is always a matter of degree. [Emphasis added.]
The above extracts reinforce the proposition that intent and motive are different concepts within criminal law and that, although evidence of motive may be evidence of intent, proof of motive is not necessary to prove intent.
The difficulties of defining and proving intent have most recently been examined by the Government of Canada in its white paper, Proposals to amend the Criminal Code (general principles), released on June 28, 1993. The following excerpt, at p. 3, is helpful for our purposes:
12.4 (2) Except as otherwise provided by this Act or any other Act of Parliament, where the description of an offence specifies or the law otherwise provides, in substance, that there be intention in respect of an element of the offence, no person commits that offence unless
(a) where that element is an act or omission, the person means to commit the act or make the omission, as the case may be;
(b) where that element is a circumstance, the person knows the circumstance; or
(c) where that element is a consequence, the person
(i) means to cause that consequence, or
(ii) is aware that the consequence will occur in the ordinary course of events. [Emphasis added.]
Williams expresses a similar view in his Textbook of Criminal Law (2nd ed. 1983), at p. 84:
Even though a man's knowledge that a particular consequence will probably result from his act is sometimes an insufficient basis for saying that he intends it, there are strong reasons for holding that as a legal matter he can be held to intend something that he knows for sure he is doing.
Ewaschuk, in Criminal Pleadings & Practice in Canada (2nd ed. 1987), vol. 2, at p. 21-65, relies on Buzzanga, supra, and Williams, "Intents in the Alternative" (1991), 50 Cambridge L.J. 120, for the following proposition:
A person thus intends an event when his conscious purpose is to cause the event. A person furthermore intends an event when he has no intent or purpose to cause the event but foresees that the event (consequence) is certain or substantially certain to result from an act which he does in order to achieve some other purpose. In the latter case, the person is deemed to have intended the inevitable consequence of his act regardless of his actual purpose. [Emphasis added; italics in original.]
(See: E. Colvin, Principles of Criminal Law (2nd ed. 1991), at pp. 117-18; Mewett and Manning, supra, at p. 113; and R. v. Sam, supra. Contra: Harris's Criminal Law (22nd ed. 1973), at pp. 39-40; R. v. Elder (1978), 40 C.C.C. (2d) 122 (Sask. Dist. Ct.); R. v. Leech (1972), 10 C.C.C. (2d) 149 (Alta. S.C.T.D.); and R. v. Steane, [1947] K.B. 997 (C.C.A.).) The element of intent in s. 281 must be interpreted in this manner so as to give s. 281 a meaning that is consistent with the legislative intent, the purpose, and the social context -- all of which I have discussed above -- of this section of the Code. (Compare R. v. McDougall, supra, in which the Court of Appeal of Ontario adopted a purposive approach to the determination of the intent requirement in s. 282 of the Criminal Code .)
To summarize, although proof of intent under s. 281 can be met by the intentional and purposeful deprivation of the parent's control over the child, the main body of jurisprudence and the academic commentaries support the view that the mens rea in offences such as s. 281 of the Code can also be proven by the mere fact of the deprivation of possession of the child from the child's parents (guardians, etc.) through a taking, as long as the trier of fact draws an inference that the consequences of that taking are foreseen by the accused as a certain or substantially certain result of the taking, independently of the purpose or motive for which such taking occurred.
The objective of the legislation is simple, as it is both preventative as regards future harm, and reactive as to the act of immediate wrongful interference with custodial rights. In this light, and with the purpose of the section in mind, the intent requirement of s. 281 of the Code must be interpreted so that if a child is in a park or on the street with the knowledge or consent of the parents (guardians, etc.), and therefore, within the parents' (guardians', etc.) realm of control and possession and is taken, it will be rare indeed that the deprivation of possession of the child from the parents (guardians, etc.) was not the intent of the impugned act. This is ultimately, however, a matter of inference for the trier of fact. In the end, if the purpose of the section is to be achieved, foresight of the certainty or near certainty of the end result must be sufficient.
C. Conclusion
To recapitulate, the word "unlawfully" in the English text of s. 281 of the Code means "without lawful justification, authority or excuse", and is surplusage or merely an oversight. It does not entail evidence beyond that of the taking by a person without legal authority over the child. The required mens rea can be established by the mere fact of the deprivation of possession of the child from the child's parents (guardians, etc.) through the taking, as long as the trier of fact draws an inference that the consequences of that taking are foreseen by the accused as a certain or substantially certain result of the taking, independently of the purpose or motive for which such taking occurred. The general defences, justifications or excuses available under the Code apply to the offence under s. 281 just as they do for other offences generally.
The only remaining question is whether, on the facts of this case, the trial judge erred in concluding that there was no evidence upon which a properly instructed jury could convict the respondent of the offence charged, so that the motion for non-suit could properly be allowed. That is a question of law which I will now address.
D. The Motion for Non-suit
In United States of America v. Shephard, [1977] 2 S.C.R. 1067, Ritchie J. stated at p. 1080 the test to determine whether a motion for non-suit has been made out:
... the duty imposed upon a "justice" under s. 475(1) [of the Criminal Code, R.S.C. 1970, c. C‑34] is the same as that which governs a trial judge sitting with a jury in deciding whether the evidence is "sufficient" to justify him in withdrawing the case from the jury and this is to be determined according to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The "justice", in accordance with this principle, is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction. [Emphasis added.]
McIntyre J., for the Court in R. v. Monteleone, [1987] 2 S.C.R. 154, applied this test to directed verdicts. At page 161, he wrote:
Where there is before the court any admissible evidence, whether direct or circumstantial, which, if believed by a properly charged jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal. It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence before him. These functions are for the trier of fact, the jury.
In Mezzo v. The Queen, [1986] 1 S.C.R. 802, the majority applied the test set out in Shephard to directed verdicts, and concluded that, although a case is made up of purely circumstantial evidence, where there is some evidence going to each of the essential elements of the offence, the question of weighing the evidence and deciding the ultimate issue should be left to the trier of fact. That was the test that the trial judge had to apply to the facts of this case, which I will now review.
E. Application to the Case at Bar
Applying this legal test to the facts of this case, there was evidence, in my view, upon which a reasonable jury properly instructed could conclude that the respondent would have known or foreseen that his actions in taking or enticing Tyler would be certain or substantially certain to result in Tyler's parents being deprived of their ability to exercise control over Tyler, i.e., deprived of the possession of Tyler, who was eight years old at the time, a child under s. 281 of the Code.
The evidence relating to each essential element of the offence is as follows:
1. The accused is not a parent, guardian or person having the lawful care or charge of a person under the age of fourteen years.
This was not contested.
2. The age of the child.
This was not contested.
3. The accused took, enticed away, concealed, detained, received or harboured the child, thereby depriving the person with custody of the ability to exercise physical control over the child.
There is evidence to the effect that the respondent took Tyler with him in his car to various points along the Ottawa River, during which time Tyler's father was unable to locate or contact Tyler, not knowing his whereabouts. Thus, there was evidence which indicated that the respondent had taken Tyler out of the ambit of his father's control with the result being that Tyler's father was unable to exercise control over Tyler during the period in which he was missing.
4. The consequence of deprivation of possession must have been intended by the accused in the sense that he or she subjectively desired to deprive the child's parents of possession through the taking or foresaw such a consequence as a certain or substantially certain result from the taking which was done for some other purpose.
There is evidence of the following: the respondent explained to Tyler's father, as a purpose for the taking, his intention to take pictures of Tyler to give to Tyler's parents; prior to leaving the school yard the other boys objected to Tyler going with the respondent but nevertheless the respondent took Tyler, refusing to tell the other boys where they were going; the respondent took Tyler some 2.9 km away from the school yard in his car; and Tyler's father did not know of Tyler's whereabouts for approximately 30 to 90 minutes. Thus, there was some evidence, and the evidence in toto, from which a reasonably instructed trier of fact could infer that the respondent, by taking in his car a child, whose parents he did not know, 2.9 km away from the school yard where the child was playing, would have foreseen that the substantially certain result of this taking would be to deprive that child's parents of possession of that child.
Had that evidence been assessed in light of the proper test for a directed verdict as well as the correct interpretation of the expressions "unlawfully" and "with intent to" in s. 281 of the Code, the motion for a directed verdict should have been dismissed.
V. Disposition
Given the proper interpretation of s. 281 of the Criminal Code and the evidence adduced, the trial judge erred in granting the motion for a directed verdict and the Court of Appeal should have allowed the appeal. Accordingly, I would allow the appeal, reverse the judgment of the Court of Appeal and order a new trial.
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