R. v. Dawson, [1996] 3 S.C.R. 783

Edward Frank Dawson Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Dawson

File No.: 24883.

1996: June 12; 1996: November 21.

Present: L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for nova scotia

Criminal law ‑‑ Child abduction in absence of custody order ‑‑ Elements of offence ‑‑ Whether accused parent can be convicted of child abduction under s. 283(1) of Criminal Code when child not in possession of deprived parent at time of offence ‑‑ Meaning of "takes" and "possession" ‑‑ Whether defence contained in s. 284 of Code applicable -- Criminal Code, R.S.C., 1985, c. C‑46, ss. 283(1), 284.

The accused father and his common law wife were separated in 1986. M, their 3‑year‑old son, originally remained with his mother but she became unable to care for him and, in December 1986, she agreed that M should live with his father and that he would be solely responsible for M’s upbringing. The mother later became dissatisfied with the limitations which the father was placing on her access to M and, in 1992, she applied to the Nova Scotia Family Court for custody and access. Pending the resolution of the matter, the Family Court ordered ex parte that the mother be granted “interim liberal access” and that M not be removed from Nova Scotia. Soon after being served with the interim order, the father left with M for California. The father was arrested two years later and, upon his return to Nova Scotia, was charged with abducting his child contrary to s. 283(1)(a) of the Criminal Code. That section makes it offence for a parent, guardian or lawful custodian of a child to take a child, not the subject of a custody order, with intent to deprive another parent or guardian or lawful custodian of the child of possession of that child. The father was acquitted at trial on the ground that he had not “taken” M from his mother since, at all material times, M was legally in the father’s care. The majority of the Court of Appeal overturned the acquittal and ordered a new trial.

Held (Sopinka and McLachlin JJ. dissenting): The appeal should be dismissed.

Per L’Heureux‑Dubé, Gonthier, Cory, Iacobucci and Major JJ.: The trial judge erred in his interpretation of s. 283(1) of the Code. Since the section states that the offence of child abduction can be committed by the “parent, guardian or person having the lawful care or charge” of the child, a person can clearly be found guilty notwithstanding that he or she is the child’s parent or that he or she had lawful care of the child.

Section 283 does not require that the deprived parent, guardian or other person having lawful care or charge of the child must actually have had possession of the child at the moment of the offence for an accused to be convicted. Reading the English and French texts of s. 283(1) together, a “taking” or “enlèvement” occurs where the accused causes the child to come or go with him or her, and, in the process, excludes the authority of another person who has lawful care or charge of the child. Further, by also prohibiting acts such as “concealing”, “harbouring” and “receiving” — acts which can only be committed while the child is not in the possession of the deprived parent — Parliament has indicated that child abduction by a parent, even in the absence of a custody order, can be found to have occurred regardless of whether the child was in the possession of the deprived parent at the relevant time. There is nothing in the mens rea of s. 283(1) to suggest otherwise. An accused would have the requisite “intent to deprive [the other parent] of the possession” if he or she intended to keep the other parent from having a possession to which he or she would otherwise be entitled. The word “possession” is not limited to circumstances in which the deprived parent is actually in physical control of the child at the time of the taking, but extends to the ability to exercise control over the child. By enacting ss. 281 to 283, Parliament has decided that the protection of children rests in ensuring that people entitled to exercise care and control over children are able to do so. Accordingly, Parliament has criminalized conduct — whether by a stranger or a parent, and whether or not there is a custody order in force — that intentionally interferes with a parent’s lawful exercise of care and control over the children. An interpretation of s. 283 which does not require that the deprived parent have possession of the child at the moment of the offence is consistent with the purpose and scheme of the child abduction provisions. Such an interpretation does not have the effect of unduly expanding the scope of criminal liability, and elevating a deprivation of access to the status of criminal conduct. No accused will be convicted under s. 283 unless he or she intended to deprive a person entitled to possession of the child of that possession.

Under s. 284 of the Code, a person who takes a child with intent to deprive the child’s parent, or another person having lawful care or charge of the child, of possession of the child cannot escape liability by giving his or her own consent to the taking. The consent referred to in s. 284 must come, not from the accused himself or herself, but from the person whom the accused intended to deprive of possession of the child.

It is not the role of this Court to determine whether the mother was entitled to M's possession. That issue should be determined at the new trial on the basis of the evidence adduced. Iacobucci J.'s comments in reply to McLachlin J.'s reasons are agreed with.

Finally, the Court of Appeal did not err in law by allowing the Crown’s appeal from the accused’s acquittal at trial. The Crown’s appeal was based on a question of law ‑‑ namely, the proper interpretation of the actus reus of s. 283 of the Code.

Per Gonthier, Cory and Iacobucci JJ.: The role of the purported custody “agreement” between the father and the mother can arguably be safely discounted. In cases such as this one, the Nova Scotia Family Maintenance Act appears to supplant the common law of contracts as it pertains to agreements between spouses on care and custody matters. Section 18(4) of this Act establishes, as a baseline, that both parents are entitled to care and custody of the child unless a court orders otherwise. An agreement may have the effect of an order, but only if it has been registered in a court (s. 52). No formal order was made in this case, and the 1986 agreement appears not to have been registered. The 1992 order granting “interim liberal access” to the mother did not, by implication, grant care and custody to the father. A parent’s statutory right to joint custody of her child should not be abrogated except in the clearest of terms. Therefore, as there was no order made by the court otherwise, there was no evidence before it that might upset the statutory presumption of joint care and custody. Both parents retained their entitlement to care and custody of the child. Consequently, it cannot be said, on the basis of the agreement, that the father did not take M from the possession of his mother.

Even if it were accepted that the common law of contracts governs in this case, it would still not follow that the father should prevail. Whatever may be the literal terms of the purported custody agreement, it is possible that for reasons of equity an implied condition might be found that the father should not remove M from the country. It is impossible, however, to say in advance whether such a condition should be found. The inquiry must be left to the trial judge.

Although there is a concern that a parent who inadvertently and only technically breaches the other parent’s custody rights may face imprisonment, it should be emphasized that the mens rea of the offence is not simply the intention to take the child, but the intention to take the child from the possession of one who is entitled to that possession. Because the latter kind of intent is serious, prosecution of trifling offences under s. 283 is not to be expected.

Per Sopinka and McLachlin JJ. (dissenting): Section 283(1) of the Code targets the act of taking a child where there is no custody order in place. Certain conditions, however, must be fulfilled before the act of taking becomes criminal: the person taking must have lawful custody and the taking must be with the “intent to deprive” the other parent “of the possession of” the child. The section thus contemplates the situation where people share custody or “possession” of the child. Possession is used in the legal sense of right of possession. It is not necessary that the deprived parent have physical possession of the child at the time of the taking. What is required, at a minimum, is that the deprived parent have a right to possession of the child.

The central issue in this appeal is the effect of a custody agreement, as opposed to a court order, on a parent’s common law custody rights. A parent may give up his or her right to custody by entering into an agreement conferring sole custody on the other parent. Notwithstanding the absence of a court order, a parent who does so no longer has a right to possession of the child of which he or she can be deprived, unless custody is restored by the termination of the agreement, a new agreement, or a court order. It follows that s. 283(1) would find no application in a situation where sole custody has been conferred upon the “taking” parent. It is unquestioned that common law rights, including the right to custody of a child, may be altered by contract. Here, the trial judge was correct in acquitting the father of the offence of child abduction. After the separation, the mother initially had a right to possession of the child at common law, as confirmed by the Nova Scotia Family Maintenance Act, but the trial judge found that the mother, by oral agreement with the father in December 1986, validly conveyed her common law right to possession and custody of the child to the father and that the agreement was still in force. These findings were amply supported by the evidence and should not have been disturbed by the Court of Appeal. The court erred in concluding that the agreement, as opposed to a court order, could not affect a parent’s original right to custody. Further, the father’s interference with the mother’s exercise of her access rights did not constitute a deprivation of possession under s. 283(1). Possession, in contrast to access, comports the right and responsibility of care and control of the child. While the terms of access may be so generous that the non‑custodial spouse in fact exercises a significant degree of care and control over the child, the trial judge’s findings in this case negate any suggestion that the mother had any control or responsibility over the child. She had the right to visit the child; she did not have the control or responsibility for him required to establish possession. Finally, this Court should not rule on the issue of whether unregistered custody agreements may be of no force in Nova Scotia since this issue was not properly raised, considered and argued in this case. With respect to s. 18(4) of the Family Maintenance Act, in the context of a criminal trial, the Crown bore the burden of showing that the father did not have an exclusive right of possession to the child at the time of taking. The Crown not having raised s. 18(4) at trial, it is not for this Court at this stage of the proceedings to raise it to the end of discharging the burden that lay on the Crown.

The line between wrongful but non‑criminal failure to respect parental rights on the one hand, and child abduction under s. 283(1) on the other, lies at the point where the wrongdoer takes the child with intent to thwart the established right (by court order or agreement) of control and care of the other parent. On one side of the line the remedies are civil, on the other criminal. Section 283(1) draws the line at this point by requiring intent to deprive the other parent of possession of the child, a concept that goes beyond mere interference with access rights or a hypothetical possibility of a future right to possession. While arguments can be raised for an interpretation of s. 283(1) that would criminalize virtually any interference with access rights or future custody rights, given the severity of the criminal sanction, reserved for the most reprehensible conduct in our society, there is no reason to interpret the section that broadly. Less serious breaches are better left to civil sanctions.

Cases Cited

By L’Heureux‑Dubé J.

Referred to: Re Lorenz (1905), 1905 104 (QC CQ), 9 C.C.C. 158; R. v. Chartrand, 1994 53 (SCC), [1994] 2 S.C.R. 864; Augustus v. Gosset, 1995 5101 (QC CA), [1995] R.J.Q. 335; Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27; R. v. Cowan (1910), 17 O.W.R. 553; R. v. Anagnostis, 1969 278 (ON SC), [1970] 1 O.R. 595; R. v. Miller (1982), 1982 1783 (ON SC), 36 O.R. (2d) 387; R. v. Enkirch (1982), 1982 ABCA 297, 1 C.C.C. (3d) 165; R. v. Cook (1984), 1984 3462 (NS CA), 12 C.C.C. (3d) 471; R. v. Hammerbeck (1991), 1991 5762 (BC CA), 2 B.C.A.C. 123; R. v. Petropoulos (1990), 1990 1347 (BC CA), 59 C.C.C. (3d) 393.

By McLachlin J. (dissenting)

R. v. Van Herk (1984), 1984 ABCA 167, 40 C.R. (3d) 264; R. v. Petropoulos (1990), 1990 1347 (BC CA), 59 C.C.C. (3d) 393.

Statutes and Regulations Cited

Children’s Services Act, S.N.S. 1976, c. 8.

Criminal Code, R.S.C., 1985, c. C‑46, ss. 127(1), 281, 282, 283, 284, 691(2) [am. 1991, c. 43, s. 9 (Sch., item 9)].

Criminal Code, R.S.C. 1970, c. C‑34, s. 250.

Family Maintenance Act, R.S.N.S. 1989, c. 160, ss. 18(4), 52 [am. 1994‑95, c. 6, s. 63(4)].

Guardianship Act, R.S.N.S. 1989, c. 189, s. 4.

Authors Cited

Canada. House of Commons. Standing Committee on Justice and Legal Affairs. Minutes of Proceedings and Evidence, Issue No. 93, June 3, 1982, at pp. 93:10 and 93:11.

Ewaschuk, E. G. “Abduction of Children by Parents” (1978‑79), 21 Crim. L.Q. 176.

Grand Robert de la langue française, 2^e éd. Paris: Le Robert, 1986, “enlever”, “priver”.

Johnstone, Bruce. “Parental Child Abduction Under the Criminal Code” (1987), 6 Can. J. Fam. L. 271.

Oxford English Dictionary, 2nd ed. Oxford: Clarendon Press, 1989, “deprive”, “take”.

Pollet, Susan L. “Parental Kidnapping: Can Laws Stem the Tide?” (1993), 21 J. Psychiatry & L. 417.

Sagatun, Inger J., and Lin Barrett. “Parental Child Abduction: The Law, Family Dynamics, and Legal System Responses” (1990), 18 J. Crim. Just. 433.

Watt, David. The New Offences Against the Person: The Provisions of Bill C‑127. Toronto: Butterworths, 1984.

APPEAL from a judgment of the Nova Scotia Court of Appeal (1995), 1995 NSCA 151, 143 N.S.R. (2d) 1, 411 A.P.R. 1, 100 C.C.C. (3d) 123, 16 R.F.L. (4th) 279, allowing the accused’s appeal from his conviction on the charge of disobeying a court order, contrary to s. 127 of the Criminal Code, allowing the Crown’s appeal from the accused’s acquittal on the charge of taking a child with intent to deprive the child’s mother of possession, contrary to s. 283 of the Criminal Code, and ordering a new trial. Appeal dismissed, Sopinka and McLachlin JJ. dissenting.

Jean A. Swantko, for the appellant.

William D. Delaney, for the respondent.

L’Heureux-Dubé J.

The judgment of L’Heureux-Dubé, Gonthier, Cory and Major JJ. was delivered by

L’Heureux-Dubé J. --

I. Introduction

[1] The appellant lived on the Myrtle Tree Farm at Waterville, Nova Scotia, with his young son Michael, until Michael’s mother arrived at the farm with a court order for “interim liberal access” pending a final determination of her application for custody of Michael. Soon thereafter, the appellant disappeared with the child. When the appellant was finally apprehended two years later, he was living in California with Michael under an assumed name. He was charged with child abduction under s. 283 of the Criminal Code, R.S.C., 1985, c. C-46, but contends that he is not guilty, essentially because an accused cannot be found to have “taken” a child, within the meaning of s. 283, unless, at the time of the offence, the child was in the possession of the other parent, guardian or person having the lawful care or charge of the child. The appellant was also charged under s. 127(1) of the Criminal Code for violating a provision of the interim access order requiring that Michael not be removed from Nova Scotia.

II. Facts

[2] Michael Dawson was born on January 31, 1983, to Judith Seymour and the appellant. The appellant was physically abusive towards Seymour, and the couple were separated just before Michael’s third birthday. Later that year, the appellant underwent a religious conversion and took up residence in a religious community at Clark’s Harbour, Nova Scotia. Although Michael originally remained with his mother, she became unable to care for him, and, in December 1986, Seymour agreed that Michael should live with the appellant. It was also agreed that the appellant would be solely responsible for Michael’s upbringing. In August 1987, the appellant and Michael moved to an affiliated religious community located on the Myrtle Tree Farm at Waterville, Nova Scotia.

[3] Near the end of 1987, Michael was taken from his father by provincial officials acting under an order of the Family Court of Nova Scotia, on the ground that he was a “child in need of protection” within the meaning of the Children’s Services Act, S.N.S. 1976, c. 8. Lengthy court proceedings ensued, at the conclusion of which the Nova Scotia Court of Appeal held that the Family Court’s order was ultra vires and ordered that Michael be returned to his father.

[4] Over the next few years, Seymour became dissatisfied with the limitations which the appellant was placing on her access to Michael, and, in 1992, she applied to the Family Court for custody and access. Pending the resolution of the matter, the Family Court ordered ex parte that Seymour be granted “interim liberal access” and that Michael not be removed from Nova Scotia.

[5] Soon after being served with the interim order, the appellant vanished, taking Michael with him. He sent a letter to the Chief Judge of the Family Court, explaining that he was motivated purely by a desire to protect Michael’s interests.

[6] Seymour heard nothing from the appellant or their son until two years later, when the appellant was arrested. At the time of his arrest, the appellant was living with Michael in California under an assumed name. The appellant and Michael were returned to Nova Scotia, where the appellant was charged with having disobeyed a court order contrary to s. 127(1) of the Criminal Code and with having “taken” Michael contrary to s. 283(1)(a) of the Code. Throughout the relevant period, the latter provision read as follows:

283. (1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, in relation to whom no custody order has been 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 person, of the possession of that person, is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; [Emphasis added.]

The prosecution under s. 283(1)(a) was duly authorized on behalf of the provincial Attorney General as required by s. 283(2).

III. Judgments

A. Nova Scotia Supreme Court

[7] At trial, the appellant was convicted of the charge under s. 127(1). He was acquitted, however, of the abduction charge under s. 283(1)(a), on the ground that he had not “taken the child Michael from anyone”. Although the appellant had taken steps to frustrate Seymour’s access, Michael “was legally in the care of his father ... at all times from 1986”.

B. Nova Scotia Court of Appeal (1995), 1995 NSCA 151, 100 C.C.C. (3d) 123

[8] With respect to s. 127(1), the Court of Appeal unanimously overturned the conviction and substituted an acquittal, on the ground that s. 127(1) does not apply to violations of orders made under the Family Maintenance Act, R.S.N.S. 1989, c. 160. The Court of Appeal’s decision on s. 127(1) is not under appeal.

[9] However, the Court of Appeal also overturned the appellant’s acquittal under s. 283(1) and ordered a new trial. Hallett J.A., writing for the majority, observed that the word “take” does not import any requirement that the person whom the accused intended to deprive of possession — hereinafter, the “deprived parent” — have physical control over the child at the time of the taking. While Hallett J.A. acknowledged that, if there has been a taking, a court must then determine whether the child was taken with the intent to deprive a parent (or a guardian or other person having care or charge of the child) of possession of the child, he emphasized that the notion of possession, in the context of this determination, includes actual possession or a right to possession.

[10] Jones J.A., dissenting, would have upheld the acquittal under s. 283(1). According to Jones J.A., only by intentionally removing the child from the possession of the deprived parent, can an accused commit child abduction within the meaning of s. 283, because the essence of the crime of child abduction is the removal of a child from the possession of its parent rather than the frustration of “rights” of possession.

[11] As a result of the decision of the Court of Appeal setting aside the appellant’s acquittal of the offence under s. 283(1), the appellant appeals as of right to this Court pursuant to s. 691(2) of the Criminal Code.

IV. Issues

[12] The appellant raises the following issues:

A. Did the Court of Appeal err in law in ruling that the word “takes” as it appears in s. 283(1) of the Criminal Code does not import a requirement that the deprived parent have possession of the child at the time of the offence?

B. Did the Court of Appeal err in law by failing to apply the defence of consent contained in s. 284 of the Criminal Code?

C. Did the Court of Appeal err in law in holding that the ex parte order of the Family Court gave Seymour a right to possession of the child?

D. Did the Court of Appeal err in law by allowing the Crown’s appeal from the acquittal entered at trial, when the Crown’s appeal failed to raise a question of law?

V. Analysis

[13] To avoid confusion about the scope of this appeal, I would observe at the outset that this appeal, like any appeal as of right to this Court, is restricted to questions of law. Consequently, despite the appellant’s contention that, in light of the agreement between Seymour and the appellant regarding Michael’s upbringing, Seymour is not entitled to the possession of Michael, it is not the role of this Court to resolve this or any other factual controversy. Rather, we are called upon to decide whether the trial judge erred in law in his interpretation of s. 283. If we agree with the Court of Appeal that the trial judge committed an error of law, then, unless the same verdict is inevitable, we must uphold the order for a new trial and leave all factual issues to be resolved in that forum.

A. Whether the word “takes” imports a requirement that the deprived parent have possession of the child at the time of the offence

[14] The trial judge found the appellant not guilty of child abduction, on the basis that the appellant could not have “taken” Michael because the child “was legally in the care of his father” at all material times. The terms in which s. 283 is drafted, however, leave no room for this interpretation. Section 283(1) states that the offence can be committed by the “parent, guardian or person having the lawful care or charge” of the child (emphasis added). Clearly, a person can be found guilty under s. 283 notwithstanding that he or she is the child’s parent or that he or she had lawful care of the child.

[15] The appellant, for his part, develops a slightly different argument as to why his acquittal should be upheld. He urges that an accused cannot be convicted under s. 283 unless the deprived parent had possession of the child at the moment of the offence. Yet the breadth of the terms selected by Parliament to express the prohibited acts militates against such a requirement. The word “take”, for example, used in the English text of the section, is commonly understood to mean, inter alia, “to cause (a person or animal) to go with one”: Oxford English Dictionary (2nd ed. 1989), vol. XVII, at p. 564; see also D. Watt, The New Offences Against the Person: The Provisions of Bill C-127 (1984), at p. 141. The verb “enlever”, which appears in the French text, is somewhat more precise, as it connotes the action of “soustraire (une personne) à l’autorité de ceux qui en ont la garde”: Le Grand Robert de la langue française (2nd ed. 1986), t. III, at p. 1002. Reading the two texts together, I conclude that a “taking” or “enlèvement” occurs where the accused causes the child to come or go with him or her, and, in the process, excludes the authority of another person who has lawful care or charge of the child. There is nothing in s. 283 to suggest that the deprived parent, guardian or other person having lawful care or charge of the child must actually have had possession of the child at the moment of the offence. Indeed, by also prohibiting acts such as “concealing”, “harbouring” and “receiving” — acts which can only be committed while the child is not in the possession of the deprived parent — Parliament has indicated that child abduction by a parent, even in the absence of a custody order, can be found to have occurred regardless of whether the child was in the possession of the deprived parent at the relevant time.

[16] Finding little to support his position in the words used to describe the actus reus of s. 283, the appellant rests his argument in large part on the formulation of the mens rea of the offence. He points out that an accused cannot be convicted unless he or she had the “intent to deprive [the other parent] of the possession” of the child, and asserts that a person cannot be “deprived” of something that he or she does not have. However, this argument has been made before, and it did not find favour even under the more narrowly worded provisions in force prior to ss. 281 to 283. In an often-cited case, Re Lorenz (1905), 1905 104 (QC CQ), 9 C.C.C. 158 (Que. K.B.), an alleged abductor contended that “she could not be held guilty of taking away from her husband what he had not actually had, viz., the possession of the child, although he might be legally entitled to it” (p. 161). The court dismissed the argument, stating that when the statute spoke of the “intent to deprive . . . of the possession”, it is not “the possession he has had of which the parent has been deprived, but of that to which he is entitled” (pp. 161-62 (emphasis in original)).

[17] Indeed, to “deprive” a person of something means, among other things, to keep that person from that which he or she would otherwise have: Oxford English Dictionary, supra, vol. IV, at p. 490. Similarly, the French verb “priver” means “empêcher (qqn) de jouir d’un bien, d’un avantage présent ou futur; enlever à (qqn) ce qu’il a ou lui refuser ce qu’il espère, ce qu’il attend”: Le Grand Robert, supra, t. VII, at p. 779. This suggests that the accused would have the requisite intent if he or she intended to keep the other parent from having a possession to which he or she would otherwise be entitled.

[18] Moreover, this Court considered the meaning of the phrase “with intent to deprive ... of the possession” under s. 281 of the Criminal Code, in R. v. Chartrand, 1994 53 (SCC), [1994] 2 S.C.R. 864, and observed that “possession” is not limited to circumstances in which the deprived parent is actually in physical control of the child at the time of the taking, but extends to the ability to exercise control over the child. Consequently, the intent to deprive of possession will exist whenever “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”: Chartrand, at p. 889. There is nothing in this mens rea to suggest that the actus reus requires anything more than preventing a parent, guardian, or other person having lawful care or charge of the child, from exercising control over that child.

[19] The appellant further contends that the interpretation favoured by the Court of Appeal has the effect of unduly expanding the scope of criminal liability, and elevating a deprivation of access to the status of criminal conduct. It must be borne in mind, however, that the essence of the offence is an intentional interference with a parent’s ability to exercise control over his or her child. No accused will be convicted under s. 283 unless he or she intended to deprive a person entitled to possession of the child of that possession. And if an accused does take a child and thereby excludes the authority of a person who has lawful care or charge of the child, with intent to deprive that person of the possession of the child, I see no reason to permit the accused to hide behind his or her status as a custodial parent or the other parent’s status as an access parent.

[20] In this connection, it is important to remember, as Deschamps J.A. of the Quebec Court of Appeal wrote in Augustus v. Gosset, 1995 5101 (QC CA), [1995] R.J.Q. 335, that “if parental status entails responsibilities, it is the source of few right[s]” (p. 357). Indeed, all rights of custody and access exist only to the extent that they permit the custodial or access parent to act in the best interests of the child: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, at para. 69, per L’Heureux-Dubé J. It follows that although the parties and the courts below speak of ss. 281 to 283 as provisions enacted for the protection of parental “rights”, their ultimate purpose is the protection of children. In Chartrand, supra, we described this purpose in this way (at p. 880):

. . . to secure the right and ability of parents (guardians, etc.) to exercise control over their children . . . for the protection of those children, and at the same time to prevent the risk of harm to children by diminishing their vulnerability.

This description was given in the context of s. 281; however, I believe that s. 283 has the same broad purpose. Parliament has decided that the protection of children rests in ensuring that people entitled to exercise care and control over children are able to do so. Accordingly, by enacting ss. 281 to 283, Parliament has criminalized conduct — whether by a stranger or a parent, and whether or not there is a custody order in force — that intentionally interferes with a parent’s lawful exercise of care and control over the children.

[21] Before 1983, the Criminal Code did not distinguish explicitly between parents and strangers. Section 250 provided simply that:

250. (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.]

However, courts generally held the view that, in the absence of a judicial order to the contrary, a parent had authority over and a right to possession of his own child and, therefore, could not be found guilty of child abduction. They therefore interpreted s. 250(2) as being available to any parent accused of abducting his or her own child, unless the taking violated a custody order: see R. v. Cowan (1910), 17 O.W.R. 553 (Co. Ct.), at p. 554; R. v. Anagnostis, 1969 278 (ON SC), [1970] 1 O.R. 595 (Co. Ct.), at p. 597; R. v. Miller (1982), 1982 1783 (ON SC), 36 O.R. (2d) 387 (Co. Ct.); R. v. Enkirch (1982), 1982 ABCA 297, 1 C.C.C. (3d) 165 (Alta. C.A.); R. v. Cook (1984), 1984 3462 (NS CA), 12 C.C.C. (3d) 471 (N.S.C.A.), at p. 475; R. v. Hammerbeck (1991), 1991 5762 (BC CA), 2 B.C.A.C. 123; E. G. Ewaschuk, “Abduction of Children by Parents” (1978-79), 21 Crim. L.Q. 176, at p. 179; B. Johnstone, “Parental Child Abduction Under the Criminal Code” (1987), 6 Can. J. Fam. L. 271, at p. 273; I. J. Sagatun and L. Barrett, “Parental Child Abduction: The Law, Family Dynamics, and Legal System Responses” (1990), 18 J. Crim. Just. 433, at p. 434; and S. L. Pollet, “Parental Kidnapping: Can Laws Stem the Tide?” (1993), 21 J. Psychiatry & L. 417, at p. 419.

[22] The state of the law before 1983 was subject to criticism for neglecting the large number of child abductions which occur in advance of a court order for custody. The problem of pre-emptive abductions was discussed by Sagatun and Barrett, supra, at p. 437, for example, and by children’s advocates before the Standing Committee on Justice and Legal Affairs, Minutes of Proceedings and Evidence of June 3, 1982, at pp. 93:10 and 93:11. Section 250, as interpreted by the courts, contained a sizable loophole which permitted a parent anticipating an application for custody by the other parent to short-circuit the court proceedings simply by taking the children.

[23] The 1983 amendments (S.C. 1980-81-82-83, c. 125, s. 20) closed this gap. The Code continues to prohibit takings by strangers (now s. 281), and takings by a parent in contravention of the custody provisions of a custody order (now s. 282). However, it also contains a completely new section (s. 283) which extends criminal liability to intentional takings — the same actus reus and mens rea described in ss. 281 and 282 — committed by a parent even in the absence of a custody order. Thus, by the time of the incidents which gave rise to the present appeal, the provisions read 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.

282. Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, in contravention of the custody provisions of a custody order in relation to that person 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 person, of the possession of that person 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.

283. (1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, in relation to whom no custody order has been 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 person, of the possession of that person, 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. [Emphasis added.]

All three offences involve taking, enticing away, concealing, detaining, receiving or harbouring a child with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of the child, of the possession of that child. They differ only as to the identity of the person who commits the offence (whether a stranger or a parent) and as to the existence or violation of a custody order in respect of the child.

[24] In repealing s. 250(2) and adding what is now s. 283, Parliament clearly intended to expand the reach of the child abduction provisions so as to protect children from unilateral removal, even in the absence of a custody order, and even by a person who could, in some sense, claim a right to possession of the child. The interpretation favoured by the appellant would unacceptably undermine this purpose.

[25] Indeed, if the appellant’s submissions on this question of law were accepted, it would severely reduce the scope of all three child abduction offences. For example, a non-custodial parent who, in contravention of a custody order, acted as the appellant is alleged to have done, would escape criminal liability under s. 282. There would have been no “taking”, since the deprived custodial parent did not actually have the possession of the child at the time of the offence. Similarly, under the appellant’s interpretation, a stranger who plucked a lost child off the street, with intent to deprive the child’s parents of the possession of the child, could not be convicted under s. 281. There would be no “taking”, as the child was not in the possession of its parents at the time of the alleged offence.

[26] The courts have consistently refused to adopt such a narrow interpretation of the offence of child abduction. An excellent example is the Nova Scotia Court of Appeal’s decision in Cook, supra, which the appellant himself calls the “seminal decision” on s. 283. In that case, far from confirming the right of a parent to disappear with his or her children provided that they are not taken from the actual possession of the other parent, the Nova Scotia Court of Appeal in fact upheld the conviction of a father in circumstances quite similar to those of the case at bar. In Cook, as here, there was no custody order in respect of the child, so both parents were entitled to custody of the child by virtue of the Family Maintenance Act. As in the case at bar, the accused had possession of the child with the permission of the mother (although, admittedly, in Cook the permission was much more limited). As in the case at bar, the accused vanished with the child. The Nova Scotia Court of Appeal upheld the accused’s conviction for abduction under s. 283. See also R. v. Petropoulos (1990), 1990 1347 (BC CA), 59 C.C.C. (3d) 393 (B.C.C.A.).

[27] Even under the pre-1983 legislation, courts have upheld convictions for child abduction where the child was not in the possession of the deprived parent. In Enkirch, supra, for example, another decision relied on by the appellant, the Alberta Court of Appeal entered a conviction against an accused under former s. 250 notwithstanding that there had been no transfer of possession and that, at the time of the offence, the child was lawfully in the possession of the accused under the access terms of a custody order.

[28] These decisions are consistent with the proposition that a “taking” can be found to have occurred notwithstanding that the children were not removed from the actual physical possession of the deprived parent but were, in fact, in the possession of the depriving parent. Considering the scheme and purpose of ss. 281 to 283 as well as the wording of the provisions, I am left with no doubt that the principle underlying these decisions is correct. There is no requirement in s. 283 that the deprived parent have the possession of the child at the moment of the alleged offence. Accordingly, this ground of appeal must fail.

B. Whether the Court of Appeal erred in law by failing to apply the defence of consent contained in s. 284 of the Criminal Code

[29] The appellant argues that, even assuming that his arguments on s. 283 are not accepted, there is no need for a new trial since a defence under s. 284 of the Criminal Code was raised on “the undisputed facts”. The English text of s. 284 of the Code reads as follows:

284. No one shall be found guilty of an offence under sections 281 to 283 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. [Emphasis added.]

The appellant reasons that, since he is the parent who had lawful possession of the child at the time of the alleged offence, his consent suffices under s. 284 as a defence to any charge under s. 283.

[30] I cannot accept the notion that a person who takes a child with intent to deprive the child’s parent, or another person having lawful care or charge of the child, of possession of the child could escape liability by giving his or her own consent to the taking. Under the appellant’s interpretation of s. 284, a babysitter or a teacher could take a child with intent to deprive the child’s parents of possession of the child, and escape criminal liability under s. 281 simply by giving his or her own consent as a person having lawful possession of the child. Such an absurd result could not have been within the contemplation of Parliament in enacting s. 284.

[31] My view is confirmed by the French text of s. 284, which states that the defence is available where “le père, la mère, le tuteur ou l’autre personne qui avait la garde ou la charge légale de la personne âgée de moins de quatorze ans en question a consenti aux actes reprochés” (underlining added). There is no reference to possession. I cannot but conclude that the consent referred to in s. 284 must come, not from the accused himself or herself, but from the person whom the accused intended to deprive of possession of the child.

[32] It therefore cannot be maintained that a defence under s. 284 arises “on the undisputed facts”. That is not to say that there is no possible argument to be made under s. 284. Assuming (without deciding) that the appellant’s conduct falls prima facie within s. 283, it may be possible for the appellant to argue that Seymour consented to the taking so as to engage s. 284. However, this factual question is very much in dispute, and should be resolved at trial.

C. Whether the Court of Appeal erred in law in holding that the ex parte order of the Family Court gave Seymour a right to possession of the child

[33] The appellant argues that the order of the Family Court giving Seymour “interim liberal access” was not lawful because the Family Court issued it without first hearing from him. According to the appellant, the legality of the order is of the utmost importance because it was the basis on which the Court of Appeal found that Seymour had a right to possession of the child.

[34] In fact, however, the majority of the Court of Appeal also pointed out that “[a]s the mother of the child, Ms Seymour had a right to custody even though she had consented to Dawson having custody of the child when they separated” (p. 151). Presumably, Hallett J.A. was alluding to the provision in s. 18(4) of the Family Maintenance Act that, in the absence of a court order or legislative provision to the contrary, the parents of a child are equally entitled to custody of the child. Thus, even if it were assumed that the appellant could successfully challenge the legality of the order of the Family Court, there could well be room to argue that Seymour’s right to possession of Michael, for the purposes of s. 283 of the Code, can be supported on the basis of the Family Maintenance Act.

[35] However, it does not fall to us to decide these points. This is not an appeal from the order of the Family Court. Nor is it a trial, at which the question of whether Seymour was entitled to the possession of Michael ought to be determined in the first instance on the basis of the evidence adduced. The trial judge made no findings on this issue, and, indeed, the appellant has indicated that there is additional evidence not presented at the first trial that may be relevant. This ground of appeal should therefore fail.

[36] In that respect, I fully agree with my colleague Iacobucci J.’s reasons in reply to my colleague McLachlin J.’s reasons.

D. Whether the Court of Appeal erred in law by allowing the Crown’s appeal from the acquittal entered at trial, when the Crown’s appeal failed to raise a question of law

[37] The appellant’s final contention is that the Crown’s appeal from the acquittal entered at trial should have been dismissed by the Court of Appeal, as it failed to raise a question of law. However, in light of the foregoing, I think it is obvious that the Crown’s appeal was based on a question of law, namely the proper interpretation of the actus reus of s. 283 of the Criminal Code. This ground of appeal, like the others, should be rejected.

VI. Conclusion

[38] Much was made by the appellant, in his factum and in oral argument, about the agreement between Seymour and the appellant regarding Michael’s upbringing. The appellant attempted, in essence, to paint himself as a sole custodial parent and Seymour as a mere access parent. The Crown did not allow these assertions to go unanswered. It responded that Seymour no longer assents to the arrangement, and that, in any event, s. 18(4) of the Family Maintenance Act grants both parents joint custody of Michael in the absence of a custody order. However, as I stated at the outset, it is not the role of the Court to determine whether Seymour was entitled to possession of Michael. That determination is a matter for trial. All we are called upon to decide is whether, assuming that a person is a parent, guardian or other person having lawful care or charge of a child, an accused may be found to have taken the child with intent to deprive that person of the possession of the child even if, at the moment of the alleged offence, the deprived person did not have the possession of the child.

[39] This question, for the reasons I have set out above, should be answered in the affirmative. The text of s. 283, the purpose and scheme of the child abduction provisions, and even the case law cited by the appellant himself, indicate that the person whom the accused intended to deprive of possession need not actually have had possession of the child at the time of the offence in order for a conviction under s. 283 to be sustained.

[40] I therefore agree with the majority in the Court of Appeal that the trial judge committed an error of law in his interpretation of s. 283, and that a new trial should be ordered. In the result, I would dismiss the appeal.

McLachlin J.

The reasons of Sopinka and McLachlin JJ. were delivered by

McLachlin J. (dissenting) --

I. Introduction

[41] This appeal requires us to interpret the section of the Criminal Code, R.S.C., 1985, c. C-46, as it stood in 1992, which criminalizes child abduction by parents or guardians. Section 283(1) made it an offence for a parent, guardian or lawful custodian of a child to take a child, not the subject of a custody order, with intent to deprive another parent or guardian or lawful custodian of the child of possession of the child. It read:

283. (1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, in relation to whom no custody order has been 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 person, of the possession of that person, 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.

Section 283(1) was modified by s. 284, which reads:

284. No one shall be found guilty of an offence under sections 281 to 283 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.

[42] Judith Seymour and Edward Dawson lived together. In 1983 they had a child, Michael. Three years later they separated. Ms. Seymour initially took the child with her. Very soon, however, she became unable to care for him. She agreed that Michael should go to live with his father, and that his father would be exclusively responsible for his upbringing. This agreement had the effect of giving Mr. Dawson sole custody of Michael.

[43] In 1992, six years after conferring custody of the child on Mr. Dawson, Ms. Seymour objected to certain limitations that Mr. Dawson was placing on her access to the child. She obtained a court order granting her “interim liberal access” and stipulating that the child not be removed from Nova Scotia. Shortly after being served with the order, Mr. Dawson took the child to California. He advised the Family Court by letter that he was acting out of a desire to protect the child’s interests.

[44] Mr. Dawson was arrested in California two years later. Upon returning to Nova Scotia, he was charged with disobeying a court order contrary to s. 127(1) of the Criminal Code and with abducting his child contrary to s. 283(1)(a) of the Code.

[45] The trial judge acquitted Mr. Dawson of the offence of child abduction. He held that it was an essential element of an offence under s. 283(1) that the accused have taken the child from a person entitled to possession of the child. In his view, the mother did not have possession or any right to possession of the child at the time the father took him to California; rather the child “was legally in the care of his father ... at all [material] times”. Therefore an essential element of the offence was not met.

[46] The majority of the Nova Scotia Court of Appeal, per Hallett J.A., interpreted s. 283(1) differently. In its view, the offence did not require that the mother have custody of the child at the time of the taking. It sufficed that the mother had a statutory right to possession of the child. The court found this right in the stipulation of the Family Maintenance Act, R.S.N.S. 1989, c. 160, which affirmed the common law rule that both parents have custody of a child. The custody agreement giving the father sole custody did not affect the mother’s statutory right to custody. In the Court’s view, only a court order could deprive her of her custody right. It followed that the mother had a right to possession of the child sufficient to attract s. 283(1) of the Criminal Code. With reluctance, the Court of Appeal ordered a new trial, noting that the appellant had already paid a considerable price for his conduct.

[47] Both the trial judge and the Court of Appeal held that in order for s. 283(1) to apply, the parent “deprived” of possession must have a right to possession of the child. The trial judge found that the parent said to be deprived in this case, the mother, did not have such right or entitlement because the custody agreement had transferred her custody rights to the father. The Court of Appeal, in contrast, held that because there was no court order concerning custody, but only an agreement, both parents had custody at common law and under the Nova Scotia Family Maintenance Act. Thus, the difference between the views of the trial judge and those of the Court of Appeal is based on their respective interpretations of the effect of the custody agreement between the parties. The trial judge held that an agreement giving one parent exclusive custody negates a right of the other parent to “possession” of the child of which she may be “deprived” under s. 283(1). The Court of Appeal, on the other hand, held that a custody agreement giving one parent sole custody does not remove the common law and statutory right to custody of the other parent. Only a court order giving one parent sole custody would deprive the other parent of the right to possession under the Act.

[48] The issue arising from the judgments below is thus not whether s. 283(1) required that the “deprived” parent have possession or a right to possession of the child. All courts below agree that she must. The issue centers rather on the effect of a custody agreement, as opposed to a court order, on a parent’s common law custody rights. If it is concluded as a matter of law that a custody agreement, as opposed to a custody order, is capable of negating a parent’s common law right to custody, the further question arises of whether the custody agreement in this case had that effect. If it did, a final question arises: whether possession by the mother sufficient to attract s. 283(1) may be found on other grounds, such as her access rights or her right to apply to the courts for custody.

II. Legal Issues

[49] The issues that emerge from the judgments under review suggest an analysis proceeding on the following lines:

(1) The nature of the requirement under s. 283(1) for the non-taking or “deprived” parent to have possession or a right to possession of the child;

(2) Whether a custody agreement, as opposed to a custody order, may remove a parent’s common law right to possession for the purposes of s. 283(1);

(3) If so, whether the custody agreement in this case removed the mother’s right of possession for purposes of s. 283(1);

(4) If so, whether there are alternative grounds on which the right to possession required by s. 283(1) may be asserted, such as access.

[50] These, I perceive, are the real issues in the case. Unfortunately, a number of the arguments focussed undue attention on side-issues, such as whether custody in the “taking” parent provides an absolute defence, whether actual physical possession by the deprived parent is required by s. 283(1), and whether the father himself could consent to the taking. As will be seen, I substantially agree with L’Heureux-Dubé J.’s answers to these side-issues; however, I do not agree that they resolve the appeal in favour of the respondent.

1. The Nature of the Requirement of Section 283(1) for the “Deprived” Parent to Have Possession of the Child

[51] Both the trial judge and the Court of Appeal accepted that for there to be an offence under s. 283(1), the parent, guardian or person having lawful care or charge of the child from whom the child is alleged to be taken or otherwise kept must have some right of possession in the child. Otherwise, it is logically impossible to find that that parent has been deprived of possession of the child, as required by s. 283(1).

[52] Section 283(1) targets the act of taking a child where there is no custody order in place. But certain conditions must be fulfilled before the act of taking becomes criminal. The person taking must have lawful custody. And the taking must be with the “intent to deprive” the other parent “of the possession of” the child. Unless there is another parent with a right to possession of the child, the intent to deprive required by s. 283(1) cannot be established. The section thus contemplates the situation where people share custody or “possession” of the child. It makes it an offence for one of those people to take the child without the consent of the other, and with intent to deprive the other of his or her right to possession or control of the child. The most common example is the situation of joint custody which exists at common law (confirmed by statute in most provinces) between parents whether separated or living together, absent agreement or court order to the contrary.

[53] It is thus apparent that s. 283(1) applies only where the person alleged to be “deprived” by the taking of the child, has possession of the child. Possession is used in the legal sense of right of possession. I agree with L’Heureux-Dubé J. that it is not necessary that the deprived parent have physical possession of the child at the time of the taking. What is required, at a minimum, is that the deprived parent have a right to possession of the child, in other words, a possession right of which he or she is “deprived” by the taking. To interpret s. 283(1) as requiring actual physical possession in the deprived parent at the time of taking is not required by the words of the section and would subvert its purpose of preventing one of two persons sharing custody or possession of a child from taking or keeping the child from the other parent without that parent’s consent.

[54] While I agree with L’Heureux-Dubé J. that the deprived parent need not have actual physical custody of the child at the time of the taking, I do not share her view that this disposes of the issue of possession. We must go on to consider whether the parent alleged to be deprived of possession of the child in this case had a right to possession of the child.

[55] Possession of a child connotes the right (and correlative obligation) to care for and control the child. It may be unilateral, or it may be shared with another person. The latter is the situation addressed by s. 283(1) of the Criminal Code.

[56] The right of a person to possession of a child may flow from a variety of sources. It may flow from the common law right of parents, confirmed in most provinces by statute, to the custody, care and control of their children. It may be conferred by contracts, called custody agreements. Finally, it may be conferred by court order.

[57] There can be no doubt that Ms. Seymour originally had a right to possession of the child at common law as confirmed by the Nova Scotia Family Maintenance Act. The question is whether the separation agreement conferring exclusive custody on the father conveyed that right to Mr. Dawson.

2. Is a Custody Agreement Capable of Depriving a Parent of a Common Law Right to Possession of the Child for Purposes of Section 283(1)?

[58] The key element of the decision of the Court of Appeal is its conclusion that the mother retained the right to custody at common law, notwithstanding the agreement between the parties that the father would have sole custody.

[59] The appellant argues that the mother relinquished her rights to custody and possession of the child by entering into the custody agreement. The custody agreement was a contract between the appellant and the mother which, by its terms, gave exclusive custody of Michael to the appellant. Like most other contracts, a custody agreement can be oral or written, and while there was no written custody agreement in evidence before the trial judge, he was satisfied that a valid contract existed.

[60] The mother had a right to apply to the courts for custody. But so long as the agreement remained in effect, she was contractually bound to permit the appellant to have sole custody, subject to her rights of access. Having contractually relinquished her custody right to Michael’s father, she had no remaining right to possession or custody. Until the agreement was ended or overridden by court order, her only right was to access.

[61] When a child is born, both parents have the right to its custody. This is the common law, confirmed by statute. However, a parent may give up his or her right to custody by entering into an agreement conferring sole custody on the other parent. Notwithstanding the absence of a court order, a parent who does so no longer has a right to possession of the child of which he or she can be deprived, unless custody is restored by the termination of the agreement, a new agreement, or a court order. It follows that s. 283(1) would find no application in a situation where sole custody has been conferred upon the “taking” parent.

[62] Both settled legal principle and policy support this view. From the point of view of legal principle, it is unquestioned that common law rights, including the right to custody of a child, may be altered by contract.

[63] Every day, hundreds of separating parents in Canada enter into custody agreements by which they do just this, and every day the courts uphold and enforce these agreements. From the point of view of policy, parents are encouraged to settle matters of custody by agreement rather than engaging the expensive and often slow process of adversarial litigation. It is probable that many more custody issues are resolved by agreement than by court orders. The legal result sought by the parties is identical, regardless of whether they settle the issue of custody out of court or through a court order. It makes no sense to treat the two situations differently. The reasoning of the Court of Appeal would require us to conclude that a parent who takes a child where a court order for custody has been made will not commit a crime, while a parent who takes a child where there is a custody agreement will be criminally liable, assuming that all other facts are identical. That cannot have been the intention of Parliament.

[64] I conclude that a parent may cede his or her right to custody of a child by agreement, just as he or she may lose that right by court order. For the purposes of s. 283(1), there is no difference between the two situations.

[65] Before leaving this point, I must avert to the suggestion of Iacobucci J. that unregistered custody agreements may be of no force in Nova Scotia. This argument was not raised at the hearing nor considered by any courts below. It is one of far-reaching implications, having the potential to undermine all unregistered custody agreements in the province of Nova Scotia.

[66] This Court should not rule on this issue in obiter dicta in this case, but should leave the issue to a case where it is properly raised, considered and argued. Suffice it to say that it is far from apparent that the legislature in enacting s. 18(4) of the Family Maintenance Act, intended to oust the common law power of parents to make their own arrangements on matters of custody. As for the provision for registration of custody agreements, this is a common provision in many legislative schemes. Its intent is not to curtail the right of parties to settle their own affairs where they can do so amicably, but to enhance that right by making agreements enforceable as court orders.

[67] I also note that the issue is raised here in the context of a criminal trial. The Crown bore the burden of showing that the appellant did not have an exclusive right of possession to the child at the time of taking. The Crown not having raised s. 18(4) of the Family Maintenance Act at trial, it is not for this Court at this stage of the proceedings to raise it to the end of discharging the burden that lay on the Crown.

3. Did the Agreement in this Case Negate the Mother’s Right of Possession?

[68] The trial judge found that pursuant to the agreement between the parties, the appellant father had had the legal care of the child with the consent of the mother since 1986. While the father took steps to frustrate the mother’s access, he at all times had a legal right to have the child in his care. These amount to findings that the mother, by agreement with the father, conveyed her common law right to possession and custody of the child to the father and, notwithstanding the father’s frustration of access, that agreement was still in force. These findings should not have been disturbed by the Court of Appeal unless they were not supported by the evidence.

[69] In fact, the evidence amply supports the trial judge’s finding that the agreement conferring sole custody of the child on the father was still in force. The mother, it is true, had of late become dissatisfied with the agreement and wished to recover the custody rights she had ceded by her agreement. But she recognized that she could not break the contract unilaterally and that to regain the custody she had conveyed by contract, it would be necessary to obtain either the appellant’s consent to a new arrangement or a court order granting her custody. At the time of the alleged offence, she had decided to apply for such an order. However, until it was granted, the agreement remained in effect.

[70] Custody agreements are binding until terminated, amended, or set aside by court order. To suggest otherwise would be to introduce dangerous uncertainty into custody law, a domain where it is of the utmost importance that the parties know precisely what their rights are and are not. None of these events occurred in the case at bar. The trial judge correctly concluded the custody agreement remained in force. It follows that the mother did not have custody or a right to custody of the child at the time of the alleged offence. As such, the facts in the case at bar dictate that custody cannot serve as a basis for finding possession of the child required by s. 283(1).

4. Can the Mother’s Possession Under Section 283(1) of the Criminal Code Be Established on Other Grounds?

[71] It has been held that the words “having the lawful care or charge” of a child following “parent, guardian or person” in s. 283(1) does not mean that all persons enumerated in the phrase must have lawful care or charge of the child: R. v. Van Herk (1984), 1984 ABCA 167, 40 C.R. (3d) 264 (Alta. C.A.). For the purposes of this case, I am prepared to proceed on that basis. This raises the possibility that a parent not having custody rights may be the object of a deprivation under s. 283(1). This in turn raises the question of whether interfering with the exercise of access rights can constitute a deprivation of possession under s. 283(1).

[72] Possession, in my view, is different from access. Access refers to the right to visit the child. Often it entails giving the access parent temporary possession of the child. But possession is not an inherent or necessary quality of access. Possession, in contrast to access, comports the right and responsibility of care and control of the child.

[73] Whether the parent has sufficient care and control of the child to have possession for the purposes of s. 283(1) in cases falling short of express custody is a matter of fact for the trial judge to decide. The terms of access may be so generous that the non-custodial spouse in fact exercises a significant degree of care and control over the child. The British Columbia Court of Appeal proceeded on this basis in R. v. Petropoulos (1990), 1990 1347 (BC CA), 59 C.C.C. (3d) 393. In that case the father had custody. However, the mother had access for three days of the week. In affirming a conviction following the father’s move with the child from British Columbia to Toronto, Taylor J.A. reasoned that the access order in question amounted to a transfer of care and custody of the child to the access parent (at p. 397):

While the word “access” is used, indicating that the order does not contemplate joint, or alternating, custody, what is granted by such an order as this is more than merely a right to visit while the child is in the possession, care, or charge of the other parent. It involves transfer of the child from the possession, care or charge of the “custodial parent” to that of the non-custodial parent.

[74] This decision confirms that in order to support a charge of child abduction, the parent deprived of possession must have an express right to custody, or failing this, rights which establish a custody-like obligation of care and control over the child.

[75] The findings of the trial judge in the case at bar negate any suggestion that the mother had any control or responsibility over the child. She had the right to visit the child; she did not have the control or responsibility for him required to establish possession. This was the case both under the agreed provisions as to access and the access established by the court order.

[76] It was faintly suggested that there was interference with Ms. Seymour’s possession of the child in the sense that the appellant’s conduct prejudiced the exercise of a future possible right to court-ordered custody. I see little merit in this suggestion. Section 283(1) refers not to possible future possession, but to possession simpliciter. In a criminal law statute, that can only be interpreted as an actual right of possession at the time of the taking.

III. The Defence of Consent

[77] Having concluded that the trial judge did not err in finding that the mother retained no right of possession to the child sufficient to found the deprivation of possession required by s. 283(1) of the Criminal Code, it is unnecessary to consider the defence of consent provided by s. 284:

284. No one shall be found guilty of an offence under sections 281 to 283 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. [Emphasis added.]

[78] I observe only that I agree with L’Heureux-Dubé J. that it makes no sense to suggest that the taking parent could himself provide the necessary consent. Clearly what Parliament had in mind as a defence was the consent of the parent deprived of possession of the child by the taking. The fact that Parliament chose to describe that person as a person “having the lawful possession, care or charge of” the child in s. 284 confirms the view expressed above that the deprived person must have a present right to possession, in the sense of care and control, of the child.

IV. The Common Sense Perspective

[79] Section 283(1) of the Criminal Code is not a model of clarity, as the history of this case attests. My analysis to this point has centered on the wording of the section -- wording that suggests, if I am right, that it is essential to conviction of the crime of abduction of a child under the section that there be a person who had possession of the child, in the sense of custody or a custody-like right of care and control of the child. But where the section is as important as this one is, a court charged with settling its meaning would be remiss if it did not consider the common sense perspective. How was the section intended to function? How, as interpreted, does it function?

[80] In support of the ruling of the Court of Appeal, it is argued that s. 283(1) should apply wherever a custodial parent takes, entices, conceals, detains, receives or harbours a child with intent to in any way deprive the other parent or guardian of any right of control of the child, even a bare right to visit the child. Interpreted thus, a custodial parent who is late in delivering a child for an access visit could be charged with a crime and imprisoned for up to ten years.

[81] The respondent argues that the breadth conferred by this interpretation is mitigated by two factors. First, intent to deprive must be demonstrated. Second, the Attorney General must consent to prosecutions under the section.

[82] Neither factor offers great reassurance. Intent in criminal law is generally inferred from conduct. A person taking a child will be presumed to intend whatever deprivation a reasonable person in his position would have foreseen. It is not unrealistic to suppose that thousands of custody and access violations occur in this country each day. Most are committed by people who know full well that their breach may deprive the other parent, however temporarily or trivially, of some present or potential contact with the child. Intent will easily be inferred in such cases. Is this the stuff, one is compelled to ask, of the criminal law?

[83] The respondent concedes that the interpretation it advocates might result in prosecuting as criminals people whose conduct falls far short of what society would regard as criminal. However, the respondent also submits that this situation is remedied by the requirement of the Criminal Code that the Attorney General authorize prosecutions under this section. This reasoning amounts to attributing to Parliament the intention to place people guilty of civil default in violation of the criminal law of this land; then remedying the overkill by conferring on the executive branch the discretion whether or not to proceed with prosecution. I cannot hazard what was in the mind of the Parliamentarians when they passed the requirement of the Attorney General’s consent to prosecution. Perhaps it was nothing more than a desire to prevent frivolous private prosecutions in an area of the law where emotions often run high. I can, however, assert that the intention that the respondent would have us attribute to Parliament is unworthy of this country’s history and Constitution. The suggestion of legislating broad criminal laws and then attempting to cure the overbreadth by the conferral of prosecutorial discretion is not to be countenanced. The citizen has a right to know what conduct will result in the stigma of criminal conviction and punishment. That knowledge should be spelled out by Parliament, not left to the whim of the Attorney General and his or her staff. To live under the cloud of prosecutorial restraint is in itself punishment. Moreover, the need for executive permission to prosecute offers little comfort to the person whose conduct may, in the minds of others, be unfairly stigmatized as criminal.

[84] At the same time, the evil targeted by Parliament -- the taking or keeping of children from those who have the right and responsibility to contribute to their care and upbringing -- must not be minimized. Unlike more trivial defalcations of custodial obligations, child abduction constitutes an immediate injury against not only the other parent, but more importantly against the child, who is deprived of that parent’s care and control. This is misconduct of the most serious order. Where it is done with intent, criminal sanctions properly lie. The line between wrongful but non-criminal failure to respect parental rights on the one hand, and child abduction under s. 283(1) on the other, lies at the point where the wrongdoer takes the child with intent to thwart the established right (by court order or agreement) of control and care of the other parent. On one side of the line the remedies are civil, on the other criminal. Section 283(1) draws the line at this point by requiring intent to deprive the other parent of possession of the child, a concept that goes beyond mere interference with access rights or a hypothetical possibility of a future right to possession. While arguments can be raised for an interpretation of s. 283(1) that would criminalize virtually any interference with access rights or future custody rights, I see no reason to strain to accept them. Given the severity of the criminal sanction, reserved for the most reprehensible conduct in our society, there is no reason to interpret the section more broadly. Less serious breaches are better left to civil sanctions than to the ultimate sanction of conviction and imprisonment.

V. Conclusion

[85] The trial judge did not err in concluding that the custody agreement deprived the mother of a right of possession sufficient to support the deprivation of possession required by s. 283(1) of the Criminal Code. The error lay rather with the Court of Appeal, which concluded that the custody agreement, as opposed to a court order, could not affect a parent’s original right to custody.

[86] I would allow the appeal and set aside the conviction.

Iacobucci J.

The reasons of Gonthier, Cory and Iacobucci JJ. were delivered by

[87] Iacobucci J. -- I agree with the reasons of my colleague, L’Heureux-Dubé J., and with her disposition of this appeal. However, I wish to make some comments that are intended to reinforce her views and that address, in part, the approach taken by my colleague, McLachlin J.

[88] I am somewhat concerned with McLachlin J.’s emphasis on contract principles to resolve this appeal, not only because, as L’Heureux-Dubé J. correctly mentions, the question of contract law is a factual one for the trial court, but also because the role of contract issues in this appeal is not as clear in my view as it is in McLachlin J.’s. I say this for a number of reasons.

[89] First, it would appear that, in cases such as this one, Nova Scotia’s Family Maintenance Act, R.S.N.S. 1989, c. 160, supplants the common law of contracts as it pertains to agreements between spouses on care and custody matters. As L’Heureux-Dubé J. points out, s. 18(4) of that Act establishes a presumption of joint guardianship:

18 . . .

(4) Subject to this Act, the father and mother of a child are joint guardians and are equally entitled to the care and custody of the child unless otherwise

(a) provided by the Guardianship Act; or

(b) ordered by a court of competent jurisdiction.

[90] However, even more important in this respect is s. 52 of the Family Maintenance Act (as am. by S.N.S. 1994-95, c. 6, s. 63(4)), which describes the effect of custody agreements:

Registration of agreement

52 (1) A judge may, with the consent of either parties, register in the court an agreement entered into between the parties respecting maintenance or respecting care and custody or access and visiting privileges or any amendment made to that agreement.

Inquiry into agreement

(2) Before registering an agreement pursuant to subsection (1), a judge may inquire into the merits of the agreement and, after giving the parties an opportunity to be heard, may vary its terms as he deems fit.

Effect of registration

(3) An agreement, including amendments registered pursuant to this Section, shall for all purposes have the effect of an order for maintenance or respecting care and custody or access and visiting privileges made under this Act.

It should also be noted that s. 4 of the Guardianship Act, R.S.N.S. 1989, c. 189, provides that the parents may, “by instrument in writing executed in the presence of two witnesses”, appoint a guardian for their child. This provision is not relevant on the facts of this case, however, because it is nowhere suggested that the purpose of the “agreement” between the appellant and Seymour was to appoint a guardian.

[91] Pursuant to s. 52 of the Family Maintenance Act, a registered custody agreement may have the same effect as a court order. If a custody agreement could, by virtue of the common law alone, upset the statutory presumption of joint entitlement to care and custody, then the requirement of registration in s. 52 would be rendered meaningless -- an agreement would have the effect of an order without being registered.

[92] On the basis of the foregoing, the role of the purported custody “agreement” between the parties can arguably be safely discounted. The law establishes, as a baseline, that both parents are entitled to care and custody of the child unless a court orders otherwise: Family Maintenance Act, s. 18(4). An agreement may have the effect of an order, but only if it has been registered in the court: s. 52. No formal order was made in this case, and the agreement at issue in this case appears not to have been registered. I should pause to mention that the order of March 10, 1992 granted “interim liberal access” to the mother. It could be argued that this order, by implication, grants care and custody to the father. However, I do not think that something as important as a parent’s statutory right to joint custody of her child should be abrogated except in the clearest of terms. I suspect that the mother did not raise s. 18(4) of the Family Maintenance Act at the interim hearing, and that the judge’s decision to grant “interim liberal access” consequently reflects unawareness of that provision. And in any case, if it were found that the order of March 10, 1992 was an order respecting custody, s. 283 would not even apply. The relevant provision of the Criminal Code, R.S.C., 1985, c. C-46, would then be s. 282.

[93] Therefore, as there was no order made by the court otherwise, there was no evidence before it that might upset the statutory presumption of joint care and custody. Both parents retained their entitlement to care and custody of the child. Consequently, it cannot be said, on the basis of the agreement, that the appellant did not take Michael from the possession of his mother.

[94] However, even if I were to accept that the common law governs in this case, I still would have trouble with the argument advanced by my colleague. It is one of the features of the law of contracts that the freedom of the parties to arrange their own affairs will in certain cases yield to concerns of policy. For reasons of equity, terms are often implied that do not exist on a literal reading of the instrument. In a case such as this one, it may well be that a fair implication is that any giving up of custody by one parent is subject to the condition that the other parent should not abscond with the child. Thus, even if the parents did agree that the father should have care and custody of the child, arguably it was not in the contemplation of the mother to authorize the spiriting of the child out of the country. I acknowledge the contrary argument, namely, that, if this implied term were accepted, parents would be unable to conclude binding agreements respecting custody. However, I do not mean to suggest that no agreement could ever confer unfettered care and custody on one parent. My point is that the inquiry must be an ad hoc one to be determined according to all circumstances of the case. I have simply not seen sufficient evidence concerning the agreement in this case to say whether it might have conferred absolute care and custody on the father. And, as L’Heureux-Dubé J. has said, it is not the role of this Court to settle the precise legal significance of whatever agreement might have existed between the appellant and Seymour because that matter is not properly before us.

[95] My final comments relate to the role that intent plays in narrowing the scope of s. 283. I agree that intent can in many cases be inferred from conduct. However, if this is so it is because the inference makes sense. To impugn or make light of the inference from conduct to intent is to challenge one of the most fundamental inferences known to criminal evidence. No trier of fact, however clairvoyant, is privy to the thoughts of the accused. The indicia of intent are generally external, but they are not for that reason unreliable. If, having heard all the evidence, a judge or a jury concludes that an accused acted with a certain intent, chances are good that the accused did act with that intent. Although I appreciate the concern that a parent who inadvertently and only technically breaches the other parent’s custody rights may face imprisonment, I wish to emphasize that the mens rea of the offence is not simply the intention to take the child, but the intention to take the child from the possession of one who is entitled to that possession. If a parent acts with the latter kind of intent, then it is not an extraordinary thing that he or she should face the sanction of the criminal law. Surely the parent whose only offence is to return his child to the custodial parent five minutes late does not have the requisite intent, and so is unlikely to face prosecution. While such a parent may know that he has, in however small a measure, deprived the custodial parent of possession of her child, it does not follow that he intends that consequence. Prosecution of trifling offences under s. 283 is not to be expected, because the offence described in s. 283 is not trifling.

[96] I would dispose of the appeal as proposed by L’Heureux-Dubé J.

Appeal dismissed, Sopinka and McLachlin JJ. dissenting.

Solicitor for the appellant: Jean A. Swantko, Bellows Falls, Nova Scotia.

Solicitor for the respondent: The Public Prosecution Service (Appeals Branch), Halifax.