What is abandoning a child?

The offence of abandoning a child is covered under s. 218 of the Criminal Code, and includes:

  • Exposing a child who is under the age of 10, so that their life is endangered or likely to be endangered.
  • Exposing a child so their health is likely or has been permanently injured.
The offence of abandoning a child is found in Part VIII of the Criminal Code, which covers “Offences Against the Person and Reputation.” A charge is often laid in Alberta when an individual jeopardizes a child’s life or gravely compromises their well-being, even temporarily.

Abandoning child is a hybrid offence with a Crown election. This means that depending on the circumstances of your case the Crown can elect to proceed by indictment or summarily. If an accused is prosecuted by indictment, there is a defence election of court under s. 536(2) of the Criminal Code. In Alberta, this means you can usually choose a trial in the Alberta Court of Justice or in the Court of King’s Bench of Alberta, with or without a jury.

Examples of abandoning a child

Some examples of abandoning a child that can lead to charges include the following:

  • A parent leaving a child unattended in a hot vehicle.
  • A person abandoning a child on the street to be found by another party.
  • A person leaving a child unattended where there is a risk of injury and abduction.
  • A daycare worker leaving a group of children unattended in an area that jeopardizes their health and safety.

Overview of the offence

According to s.218 of the Criminal Code:

Abandoning child

218(1) Every one who unlawfully abandons or exposes a child who is under the age of ten years, so that its life is or is likely to be endangered or its health is or is likely to be permanently injured,

a) Is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
b) Is guilty of an offence punishable on summary conviction.

The guilty act (actus reus)

The actus reus for an abandoning child charge is established by proof beyond a reasonable doubt of the following:

  • The accused at a specified date and time, in the correct jurisdiction, endangers a child’s health or life; or
  • The accused abandons or exposes a child, so the child’s life or health is endangered.

The case of R. v. Holzer, a decision of the Alberta Court of Queen’s Bench (now the Court of King’s Bench of Alberta), provided that the actus reus was made out for the offence of abandoning a child when a 12-month-old child was left in a vehicle for three hours during negative 14-degree temperatures. R. v. de Freitas held that the Crown must prove more than the potential for endangerment and that the child was actually endangered.

The guilty mind (mens rea)

The mens rea for abandoning a child includes proving beyond a reasonable doubt that:

  • The accused knew that they were abandoning or endangering the child.

The mens rea for an abandoning child charge requires subjective fault. A subjective mens rea offence concerns what is going on in the individual’s mind at the time that the guilty act occurs. When an individual is charged with a subjective mens rea crime, the Crown must satisfy the trier of fact that the accused subjectively intended to commit the prohibited act.

The types of subjective mens rea include the following:

  • Intent
  • Knowledge
  • Wilful blindness
  • Recklessness

Intent

Intent focuses on an individual’s desire to bring about a specific consequence, i.e., to commit the dangerous or guilty act.

In R. v. Théroux, [1993] 2 SCR 5, it was indicated that “subjective awareness of the consequences can be inferred from the act itself, barring some explanation casting doubt on such inference.”

For example, if a person plans to assault someone and finds a target, that person will possess intent.

Knowledge

Knowledge relates to the awareness of a fact or circumstance. This means that knowledge focuses on what the accused knew, not what the accused should have known.

For example, a parent may not want any harm to come to their young child. However, if they leave the child alone in a car on a freezing winter day in Calgary, knowing how cold it is and how long they will be gone, it can be said they had knowledge that the child’s life or health was in danger.

Wilful blindness

Wilful blindness applies where the accused virtually knows what is happening, but deliberately looks the other way.

However, wilful blindness “serves to override attempts to self-immunize against criminal liability by deliberately refusing to acquire actual knowledge” according to an Alberta case later decided by the Supreme Court of Canada in R. v. Briscoe, 2010 SCC 13. It applies where the accused suspected the truth but deliberately chose not to find out. It does not apply simply because the accused should have known something.

For example, a parent leaves their young child at home, strongly suspecting that the babysitter they arranged is not going to arrive. Instead of calling to check, they deliberately avoid finding out and leave anyway. The parent may be wilfully blind to the fact that the child was left alone.

Recklessness

Recklessness focuses on the accused’s awareness and their irresponsibility. If an accused person is aware that their conduct could bring about the prohibited criminal act, but they persist despite the risk, that could be deemed reckless.

For example, a parent knows there is a risk that their young child could wander out of the backyard and onto a busy road. They leave the child alone in the yard anyway while they run an errand. The parent is reckless because they were aware of the risk to the child but went ahead regardless.

How to Beat an Abandoning Child Charge

The strength of any available defence rests on the evidence against you and the precise details of the allegations. However, some common defences that may be used when fighting an abandoning child charge are detailed below.

Factual innocence

If you can show that the facts and the evidence do not support that you abandoned a child or caused them to be endangered, then you may have a strong defence that you were factually innocent.

Age of the child

If the child who was endangered or abandoned is 10 years of age or older, their age can serve as a potential defence.

Mistake in identity

Depending on the circumstances of your case, you may be able to raise an identity defence. For this defence to be raised successfully, you would argue that the Crown cannot prove, beyond a reasonable doubt, that you were the person.

Any applicable Charter defences

If any of your Charter rights are violated before or after your arrest, some or all of the evidence that the Crown is relying on to secure a conviction could be excluded under s. 24(2) of the Charter.

Necessity (Emergency)

In rare cases, you may have a defence if you left a child alone because of a real emergency. To use this defence, you must show that you faced immediate danger, that you had no reasonable legal alternative, and that the harm you were trying to avoid was at least as serious as the risk to the child.

Duress (Coercion)

You may have a defence if someone forced you to leave the child by threatening to kill or seriously hurt you or someone else. To use this defence, you must have reasonably believed the threat would be carried out, you must have had no safe way to escape it, and your actions must have been proportionate to the threat.

Punishments for abandoning a child in Alberta

The maximum punishment for abandoning a child is as follows:

  • Imprisonment for 5 years of the Crown elects to proceed by indictment.
  • Imprisonment for 2 years less a day if prosecuted by summary conviction.

There is no minimum penalty. However, the consequences of a conviction and criminal record can extend to one’s employment prospects, immigration standing, and more.

Persons found guilty of abandoning a child may be eligible for a discharge, suspended sentence, or stand-alone fine, as well as custody or probation. Speak with a lawyer from Strategic Criminal Defence during a free consultation if you’re facing this charge.

FAQs

In Canada, the penalty for child abandonment, under section 218 of the Criminal Code, is a maximum term of imprisonment of five years (for an indictable offence).

The specific penalties vary based on the circumstances of the case and judicial discretion. Courts take into account several factors, such as the degree of endangerment, intent, and the overall impact on the child’s well-being when determining an appropriate sentence.

Legal representation and understanding the nuances of the law are crucial when dealing with child abandonment charges in Canada.

Child abandonment in Canada encompasses situations where a caregiver or guardian abandons their responsibility to provide proper care, supervision, and protection for the child’s well-being.

Child abandonment can take various forms, such as leaving a child unattended in dangerous environments, failing to meet their basic needs, or neglecting to provide necessary medical attention.

Canadian law emphasizes the importance of safeguarding children from harm and ensuring their welfare, making child abandonment a serious legal concern that carries potential criminal consequences.

The precise definition and legal interpretation of child abandonment can vary, but the essence lies in the act of jeopardizing a child’s safety or health through neglectful actions or omissions.

Yes, child neglect is considered a crime in Canada. Child neglect involves failing to provide proper care, supervision, and basic necessities for a child’s well-being, which can result in physical, emotional, or mental harm.

While there isn’t a specific charge of ‘child neglect’ in the Criminal Code, various criminal offences cover different aspects of neglectful behaviour towards children.

These offences include child abandonment under section 218 and failure to provide the necessaries of life under section 215.

Canadian law places a high priority on protecting children from harm and ensuring their welfare, and individuals who engage in neglectful behaviour that endangers a child’s safety or well-being can face serious legal consequences under these provisions.

Yes. In Alberta, the Child, Youth and Family Enhancement Act requires anyone who has reasonable and probable grounds to believe that a child is in need of intervention, for example because of neglect, to report it right away to Children’s Services or the police. Failing to report is an offence, with a fine of up to $10,000, up to 6 months in jail, or both.