COURT FILE NO.: 18-228
DATE: 20191016
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Chery Gzik, for the Respondent
Respondent
- and -
Giovanni Corda
Charles Spettigue, for the Applicant
Applicant
RULING - CONSTITUTIONAL CHALLENGE REGARDING SECTION 281 OF THE CRIMINAL CODE
OVERVIEW
[1] The accused brings a constitutional challenge regarding the old Section 281, abduction of child under 14 Section. Bill C-75, Section 107 replaces the former Section 281 with another Section 281.
[2] The gist of the accused's submission is that Section 281 as considered by the Supreme Court of Canada, is overly broad because, according to the defence, it clearly catches mentally innocent non-family persons who simply attempt to help lost children. The defence says, "It is not wrong to take a child from the street."
PURPOSE OF SECTION 281
[3] The SCC in R. v. Chartrand, [1994] 2 S.C.R. 864 indicates that Section 281 must be interpreted in a manner to prevent harm to society. Regarding children, the aim is to prevent harm to and protect children: Chartrand at para. 34.
[4] The purpose of Section 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: Chartrand at para. 36.
REMOVAL OF COMMON LAW DEFENCES
[5] The Supreme Court in Chartrand explicitly confirmed that common law defences as outlined in Section 8(3) are available to Section 281 offences: Chartrand at para. 41.
[6] Further, Section 25 of the Code is also available to provide defences for persons acting under authority such as child protection workers acting under a provincial statute: Chartrand at para. 41.
[7] Further, the defences outlined at Section 284 and Section 285 of the Code are also made applicable by the Criminal Code to Section 281 offences: Chartrand at para. 63.
[8] There is no merit to the argument that common law defences have been removed by Section 281 or that Criminal Code defences have been removed by Section 281.
[9] The defence argues that Section 281 creates an absolute liability offence which fails to protect the "mentally innocent".
[10] The Supreme Court decision in Chartrand clearly contradicts this assertion.
[11] Section 281 of the Criminal Code outlines the required intent in the following terms:
"With intent to deprive a parent or guardian or any person who has the lawful care or charge of that person of the possession of that person".
[12] The intent required to be proved by the Crown is "To intend to deprive the other parent of that physical control or custody, one must somehow intend to somehow put the child beyond the reach of that control or custody.": Chartrand at para. 50, R. v. Macdougall, (1990) 1 OR (3d) 247 (C.A.) at p. 259.
[13] The intended deprivation of possession of a child need only be for a short period of time and there does not need to be an attempt at permanent removal: Chartrand at para. 52.
[14] The requisite intent can be proved in one of two ways:
Proof of intentional and purposeful deprivation of parent's control over the child; or
Proof of the mere fact of deprivation of the child from the child's parents, guardians 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: See Chartrand at para. 61.
[15] Accordingly, Chartrand clearly states that Section 281 is not an absolute liability offence. The Crown must prove intent to deprive either by direct evidence of intent or by the taking of a child in the circumstances where inferences can be made that the accused foresees the consequences of the taking: Chartrand at paras. 61, 62.
[16] The Supreme Court in Chartrand concludes at para. 63:
63 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.
CONCLUSION
[17] Chartrand does not stand for the proposition, as suggested by the defence, that simply taking or helping a lost child from the street is wrong and criminal.
[18] Chartrand clearly indicates that mens rea is required: i.e. that there must be intent to deprive a parent, guardian et cetera of the possession of the child. This intent can be provided by way of direct proof or inference: Chartrand at paras. 61-63.
[19] The Supreme Court, at paragraph 63 of Chartrand clearly concludes that the requirement for mens rea and common law and other defences available under the Code are preserved by Section 281 of the Code.
ORDER
[20] For the reasons outlined, the accused's constitutional challenge fails. The defence application challenging the constitutional validity of Section 281 of the Criminal Code is dismissed.
Skarica J.
Released: October 16, 2019
COURT FILE NO.: 18-228
DATE: 20191016
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Respondent
- and –
Giovanni Corda
Applicant
RULING
TS:js
Released: October 16, 2019