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Canadian Criminal Law/Offences/Kidnapping and Unlawful Confinement

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Kidnapping and Unlawful Confinement
s. 279 of the Crim. Code
Election / Plea
Crown ElectionIndictable/Hybrid
JurisdictionProv. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Summary Dispositions
Maximum18 months jail (279(2))
Indictable Dispositions
Avail. Disp.Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1) (limited)
Minimum4, 5, 7 years jail (kidnapping w/ firearm)
Maximumlife in jail (279(1))
10 years jail (279(2))
References
Offence Elements
Sentence Principles
Sentence Digests
Comments
DO/LTO primary designated offence
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Legislation

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Kidnapping
279. (1) Every person commits an offence who kidnaps a person with intent

(a) to cause the person to be confined or imprisoned against the person’s will;
(b) to cause the person to be unlawfully sent or transported out of Canada against the person’s will; or
(c) to hold the person for ransom or to service against the person’s will.

...

Forcible confinement
(2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Non-resistance
(3) In proceedings under this section, the fact that the person in relation to whom the offence is alleged to have been committed did not resist is not a defence unless the accused proves that the failure to resist was not caused by threats, duress, force or exhibition of force.

R.S., 1985, c. C-46, s. 279; R.S., 1985, c. 27 (1st Supp.), s. 39; 1995, c. 39, s. 147; 1997, c. 18, s. 14; 2008, c. 6, s. 30; 2009, c. 22, s. 12.


– CCC

Proof of Offence

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Elements of proof include:

Kidnapping (279(1))

  1. identity of accused as culprit
  2. time and date of the incident
  3. jurisdiction of the incident
  4. the accused moved or took a person from one place to another[1]
  5. the victim did not consent
  6. the accused had no lawful authority to do so
  7. the accused intended to
    1. confine or imprison the victim
    2. cause the person to be sent in or out of the country
    3. holding the person for ransom or service

Forcible Confinement (279(2))

  1. identity of accused as culprit
  2. time and date of the incident
  3. jurisdiction of the incident
  4. the accused restrained the victim
  5. the restraint was contrary to the victim's wishes
  6. the complainant did not consent to the confinement
  7. the accused had no lawful authority to confine the complainant
  8. the accused intended to confine the victim
  9. the accused used force or threat of force
  10. the sobriety of the parties

Sources:

  1. ↑ e.g. see R v Oakley, (1977) 36 CCC (2d) 436 (ABCA)

Interpretation

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Confinement is a general intent offence.[1]

For the offence of kidnapping, the crown must prove that the accused took the victim from one place to another without consent. [2] This is the key distinction between confinement and kidnapping. Confinement is the deprivation of a person's liberty to move, while kidnapping is the moving of a person. All kidnappings are confinements but not all confinements are kidnapping.[3]

A person who voluntarily enters into a car, but is then denied the ability to leave will usually make out the offence.[4]

Where consent was obtained by fraud, deceit, or trickery, then the consent is not valid.[5]

There must be proven that there was at least a minimal deprivation of the victim's freedom. [6]

The duration of the confinement does not need to be lengthy. A "significant" period of time where the victim is "coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire" will be sufficient.[7]

A child confined by a lawful guardian can be considered lawful confinement.[8]

An arrest by a peace officer or private citizen can be unlawful confinement. For example, where a officer takes a lawfully arrested man out to a remote area to abandon him in freezing weather makes out the offence.[9]

A person who knowingly becomes involved with the confinement of a person known to them to have been kidnapped can be found to be a party to the initial offence of kidnapping.[10]

Confinement refers to the "physical restraint, contrary to the wishes of the person restrained, ...thereby depriving the person of his or her liberty to move from one place to another". [11]

There is no need for physical application of bindings.[12]


  1. ↑ R v B(SJ) 2002 ABCA 143
  2. ↑ R v Oakley, (1977), 4 AR 103, 36 CCC (2d) 436 (Alta SCAD)
  3. ↑ see R. v. Tremblay (1997), 117 C.C.C. (3d) 86 (QCCA)
    R. v. Niedermier, 2005 BCCA 15
  4. ↑ see for example R. v. Tremblay (1997), supra
  5. ↑ R v Metcalfe 1983 CanLII 248 (BC CA), (1983), 10 CCC (3d) 114 at paras 9, 12, 11
    R v Johnson, (1984), 65 NSR (2d) 54 (NSSCAD), leave denied [1985] SCCA No. 263; R v Brown (1972), 8 CCC (2d) 13 (Ont CA)
  6. ↑ R v B(SJ), 2002 ABCA 143, 312 AR 313
  7. ↑ R v Pritchard, 2008 SCC 59 at 24
  8. ↑ R. v. Whalen 2001 NWTSC 63
  9. ↑ R v Munson, 2003 SKCA 28
  10. ↑ R. v. Vu, 2012 SCC 40
  11. ↑ R v Gratton (1985), 18 C.C.C. (3d) 462
    R v Neidermier 2005 BCCA 15
  12. ↑ R v Gratton (1985), 18 C.C.C. (3d) 462

Defences

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  • Consent
  • Mistaken Belief of Consent
  • Self-Defence or Defence of Another
  • Defence of Property

See Also

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