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.
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.







