R. v. Dawson

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Case Brief
Facts

The accused, Edward Dawson, separated from his common-law wife in 1986. Their son, M, initially lived with his mother, but due to her inability to care for him, M began living with Dawson in December 1986, with Dawson assuming sole responsibility for his upbringing. In 1992, the mother, dissatisfied with her limited access to M, applied to the Nova Scotia Family Court for custody and access. The court granted her "interim liberal access" and ordered that M not be removed from Nova Scotia. Shortly after, Dawson left with M for California. He was arrested two years later and charged with abducting his child contrary to s. 283(1)(a) of the Criminal Code.

Issues

1. Can an accused parent be convicted of child abduction under s. 283(1) of the Criminal Code when the child was not in the possession of the deprived parent at the time of the offence? 2. What is the meaning of "takes" and "possession" in the context of s. 283(1)? 3. Is the defense contained in s. 284 of the Code applicable in this case?

Legal Analysis

The majority of the Court determined that s. 283(1) does not require the deprived parent to have had actual physical possession of the child at the moment of the offence for a conviction. The term "takes" encompasses causing the child to come or go, thereby excluding the authority of another person with lawful care or charge. The intent to deprive extends to keeping the other parent from a possession they would otherwise be entitled to, meaning the ability to exercise control over the child. The dissenting judges argued that s. 283(1) targets the act of taking a child where there is no custody order and the "taking" parent has lawful custody. They argued that a parent can give up their right to custody through an agreement, and in such cases, s. 283(1) would not apply.

Decision

The Supreme Court of Canada dismissed Dawson's appeal. The Court held that the trial judge erred in interpreting s. 283(1) of the Criminal Code. The section applies even if the deprived parent did not have physical possession of the child at the time of the abduction. The Court of Appeal's decision to overturn the acquittal and order a new trial was upheld.

Transcript
Welcome back to Casepod, everyone! Today, we're diving into a really interesting case about parental rights and what constitutes child abduction under the Criminal Code. We're looking at R. v. Dawson. So, picture this: Edward Dawson separates from his common-law wife. Their son, M, ends up living with Dawson full-time because Mom wasn't able to care for him. Dawson's raising him, solely responsible for everything. Fast forward a few years, Mom wants more access to M, goes to court, gets an interim order for liberal access, and importantly, a clause saying M can't be taken out of Nova Scotia. What does Dawson do? He packs up and heads to California with M! Two years later, he's arrested and charged with child abduction. Now, the big question here is, can a parent *really* be convicted of abducting their own child? It seems crazy, right? That's what the courts had to grapple with. There were a few key legal issues. First, does the law require the mother to have had physical possession of M at the *exact moment* Dawson took him to California for it to be considered abduction? Second, what does "takes" and "possession" even *mean* in this context? Is it just about physical control? And finally, is there a defense available to Dawson in the Criminal Code? The Supreme Court of Canada decided that physical possession by the mom at the moment Dawson left wasn't necessary for a conviction. They reasoned that "takes" includes causing the child to go somewhere, which effectively excludes the other parent's authority. In other words, it's not just about physically snatching a kid. It's also about depriving the other parent of their right to have control and access. Think about it this way: even though Dawson had been the primary caregiver for a while, the court order gave the mother the right to have access and ensure M remained in Nova Scotia. By leaving, he was intentionally depriving her of that right. There were some dissenting judges, though. They argued that the law is meant to target situations where there’s no clear custody order and one parent simply “takes” the child when the other parent has lawful custody. They felt that because Dawson *had* been the primary caregiver, and the mother had *not* had physical custody, this shouldn't be considered abduction. They even suggested a parent could give up their custodial rights through an agreement. Ultimately, the Supreme Court dismissed Dawson's appeal. They said the trial judge got it wrong when interpreting the Criminal Code. The Court upheld the decision to overturn Dawson's initial acquittal and ordered a new trial. This case is significant because it clarifies that "possession," in the context of child abduction, is broader than just physical control. It includes the legal right to have access and make decisions about a child's life. It's a reminder that even when one parent has been the primary caregiver, court orders regarding custody and access must be respected. A parent cannot simply unilaterally decide to move a child, especially in contravention of a court order. And that's R. v. Dawson! A fascinating look at parental rights, legal definitions, and the complexities of family law. Join us next time on Casepod for another deep dive into the legal world!