QUICK TAKEAWAY
Child Kidnapping and Abduction: The terms kidnapping and abduction are sometimes used interchangeably but the Criminal Code treats them quite differently. Section 279 of the Criminal Code defines kidnapping as taking a person and physically holding them in some location against their will, often for a ransom, while s.280 of the Code defines abduction as the taking of a child by one parent or caregiver in a custodial dispute. You may be sentenced to life in prison for kidnapping, with four to 10-year maximums for abduction charges.
Table of Contents:
What is Kidnapping vs. Abduction in Canada?
Section 279 of the Criminal Code makes it an offence to kidnap a person, move them to another location and confine them against their will. It is also an offence to be unlawfully send or transported out of Canada against the person's will or to hold the person for ransom against the person's will.
Section 280 of the Code makes it an offence for one parent or family member to take a child without the permission of the parent who has custody. Even if the child agrees or wants to move with one parent, it could be considered child abduction if the other parent does not know or has not given permission.
Section 282 makes it illegal to entice, detain or harbour a child "in contravention of a custody order or a parenting orderA court order setting out who is responsible for a child. made by a court anywhere in Canada."
What is Needed to Convict
With child abduction, the Crown must prove beyond a reasonable doubtThe standard that must be exceeded to find someone guilty that the accused took the child with the intent to deprive the other parent, guardian or caregiver of possession. Section 284 of the Code states that no one will be found guilty if they can establish that the taking of any young person was done with the consent of the parent, or guardian having the lawful possession or that young person.
Section 285 of the Code states that no one can be found guilty if they took or harboured a "young person from danger of imminent harm or if the person charged with the offence was escaping from danger of imminent harm."
Your lawyer may be able to show that your rights under the Canadian Charter of Rights and Freedoms were breached during the police investigation. In all cases, a successful defence is built on the facts of the case.
Kidnapping is an Indictable Offence, Abduction is a Hybrid Offence
The Code states that kidnapping is an indictable offenceIndictable offences are more-serious criminal offences and you will be imprisoned if convicted. The Crown can prosecute abduction as an indictable offence or as a summary offenceLess-serious criminal offences, with fines and lighter jail sentences given upon conviction.
Penalties for Kidnapping, Abduction in Canada
If the kidnapping victim is under 16 years of age, s.271 (1.1) states the maximum penalty is imprisonment for life. If the offender is a parent, guardian or person having the lawful care or charge of the person, they will receive a minimum punishment of imprisonment for a term of five years. If a non-restricted firearm is used without any connection to a criminal organization, the minimum penalty is four years in prison, with the maximum sentence imprisonment for life.
In all cases, s.271 (1.21) of the Code states that in imposing a sentence, "the court shall take into account the age and vulnerability of the victim."
If you abduct someone under 16 and it is treated as an indictable offence, you can be imprisoned for up to five years, with lesser penalties given for charges handled as summary convictions. If the abductee was under 14 and the charge is treated as an indictable offence, you face a maximum of 10 years in jail, or less if handled as a summary conviction.
Those who contravene a parenting order could face 10 years in prison if the change is treated as an indictable offence or less if it is handled as a summary conviction.
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Affleck & Barrison LLP
Red Elk
Kitchen Simeson Belliveau Llp
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Sandip (Sandy) Khehra, Criminal Defence Lawyer
Glossary of Legal Terms
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Parenting order
A court order that specifies who is the primary caregiver and when the other parent/guardian can see the child.
Reasonable doubt
The Supreme Court of Canada has said that reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities” and “that something less than absolute certainty is required, and that something more than probable guilt is required."
Summary offence
Summary offences are less-serious criminal offences such as disturbing the peace or unlawful assembly
