Taking a child away from their lawful guardian without authorization is a serious criminal offence. Although many people use “kidnapping” as a blanket term, the Canadian Criminal Code makes a clear distinction between abduction and kidnapping, particularly when it comes to parental and familial situations.
A 2023 case in British Columbia highlighted this issue; a mother and her companion were charged with abduction after a weeklong Amber Alert, which was triggered after the children were not returned to their father in Surrey following a trip with their mother to Kelowna.
While the public often assumes any unauthorized removal of a child is kidnapping, the law treats cases involving parents, legal guardians, and other family members differently.
Key Difference Between Kidnapping and Abduction
Kidnapping typically involves force, threats, or deceit to take and confine a person, for ransom, financial gain, or other criminal purposes.
Abduction occurs when a minor is removed from their lawful guardianship without permission, even if no force is used. A parent or other guardian can face charges if they remove a child in violation of a court order or custody agreement.
Kidnapping
According to the Criminal Code, a person commits kidnapping if they:
- Take a person kidnapped against their will by force, deceit, or coercion
- Confine or hold such a person against their freedom
- Transport the victim beyond the limits of lawful authority
The intent behind the crime is a major factor. Kidnapping is often linked to ransom demands, human trafficking, or other serious crimes. The punishment for kidnapping can be life imprisonment, reflecting the severity of the act.
To understand how kidnapping and abduction fit within the broader legal framework, it’s helpful to explore the basics of criminal law in Canada, including how courts interpret intent, consent, and legal authority in these cases.
Abduction
Abduction is legally distinct because it often involves a family member taking a minor without the consent of the other parent or legal guardian. Under the Criminal Code, abduction charges can arise in two main ways:
- Abduction by a parent – If a parent takes a child under 14 without the consent of the other parent or guardian, even if no force or threats are used.
- Abduction by a non-parent – If someone who is not a person legally authorized to care for the child takes a minor under 16 years of age without consent.
When Abduction Becomes Kidnapping
In some cases, an abduction charge can escalate into kidnapping. This happens when:
- Force, threats, or deception are used to take the child
- The child is held against their will
- The accused takes the child outside of Canada or into foreign territory
- The abduction is linked to other offences, such as trafficking or exploitation
Canadian law imposes stringent penalties on those who use deceitful means, physical force, or psychological coercion to take a child. A person convicted of abduction may face up to ten years in prison.
Legal Defences Against Kidnapping or Abduction Charges
Common defences include:
- Lack of intent – If the accused did not intend to commit a crime, they may challenge the charge.
- Parental rights – A parent may argue they were not acting unlawfully if they had a reasonable belief that they were within their rights
- Emergency situations – If a child is taken away due to immediate safety concerns, courts may consider the circumstances.
A conviction can result in imprisonment and loss of parental rights. Abduction cases might also involve related offences, such as a criminal mischief charge if property damage or obstruction of law enforcement occurs during the incident.
