|Kidnapping and Unlawful Confinement|
|s. 279(1.1), (2) of the Crim. Code|
|Election / Plea|
|Crown Election||Indictment (279(1.1)), Hybrid (279(2))|
summary proceedings must initiate within 12 months of the offence (786(2))
Sup. Court w/ Jury (*)
|Avail. Disp.||Discharge (730)|
Conditional Sentence (742.1)
|Maximum||18 months incarceration|
|Minimum||4, 5, 7 years incarceration (kipnap w/ firearm)|
|Maximum||10 years incarceration (confine)|
Offences relating to kidnapping and unlawful confinement are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".
|Crown Election||Defence Election
|s. 279(1.1) [kidnapping]||Indictable Offence(s)||(life max)|
|s. 279(2) [forcible confinement]||Hybrid Offence(s)||(* only if Crown proceeds by Indictment)||(under 14 years max)|
Offences under s. 279(1.1) [kidnapping] are straight indictable. There is a Defence election of Court under s. 536(2) to trial in provincial court, superior court with a judge-alone or superior court with judge-and-jury.
Offences under s. 279(2) [forcible confinement] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.
Notice is required if prior convictions are being relied upon to seek an increased penalty under s. 279(1.1)(a)(ii). Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.
by Peace Officer
by Judge or Justice
s. 508(1), 512(1), or 788
s. 498, 499, and 501
a Judge or Justice
on a Release Order
s. 515 to 519
|Direct to Attend |
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
|s. 279(1.1) [kidnapping]|
|s. 279(2) [forcible confinement]|
When charged under s. 279(1.1) [kidnapping], the accused can be given a judicial summons without arrest. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
When charged under s. 279(2) [forcible confinement], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
Under s. 515(6)(a)(vii), offences charged under s. 279(1.1) have a reverse onus on bail where it has "been committed with a firearm".
- Reverse Onus Bail
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
And, regardless of Crown election, if the offence alleged was one:
- where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
- Fingerprints and Photos
A peace officer who charges a person under s. 279 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
- Publication Bans
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
- Offence Designations
|AG Consent Required||Serious Criminality|
s. 36 IRPA
|s. 279(1.1) [kidnapping]||(primary)|
|s. 279(2) [forcible confinement]|
Offences under s. 279(1.1) [kidnapping] are designated offences eligible for wiretap under s. 183.
Section s. 279(1.1) [kidnapping] offences are "primary designated offences" under s. 752 for a Dangerous Offender Order. The offender will be deemed a "substantial risk" for a Long-Term Offender Order under s. 753.1.
Offences under s. 279(2) [forcible confinement] are "designated" offences under s. 752 for dangerous offender applications.
Offences under s. 279(1.1) or (2) are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Draft Form of Charges
|"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"AND FURTHER at the same time and place aforesaid, he [or she]..."|
|Code Section||Subject of Offence||Draft Wording|
|279(1.1)(a.1)||kidnapping with a firearm||"..., kidnap [complainant] using a firearm, with intent to confine [complainant] against his/her will, contrary to section 279(1.1)(a.1) of the Criminal Code.|
|279(2)||forceable confinement||"..., did without lawful authority confine, imprison or forcibly seize [complainant], contrary to section 279(2) of the Criminal Code.|
Proof of the Offence
Proving kidnapping under s. 279(1.1) should include:
Proving Forcible Confinement under s. 279(2) should include:
Interpretation of the Offence
- Kidnapping vs Confinement
For the offence of kidnapping, the crown must prove that the accused took the victim from one place to another without consent.  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.
Kidnapping is considered "an aggravated form of unlawful confinement, which continues until the victim is freed".
- R v Oakley, 1977 ALTASCAD 118 (CanLII), 4 AR 103, 36 CCC (2d) 436 (Alta SCAD), per Morrow JA
see R v Tremblay, 1997 CanLII 10526 (QC CA), 117 CCC (3d) 86, per curiam
R v Niedermier, 2005 BCCA 15 (CanLII), 193 CCC (3d) 199, per curiam
R v Vu, 2012 SCC 40 (CanLII),  2 SCR 411, per Moldaver JA, at para 40
- Meaning of Confinement
Unlawful confinement is made out by "physical restraint" that is "contrary to the wishes of the person restrained" resulting in a deprivation of "liberty to move from one place to another".
"Confinement" means "the state or condition of being confined, restriction or limitation". It is to "keep that person in a place, within or to limits, or a defined area, to restrict or secure that person."
Confinement includes "restraining another person's liberty, though not necessarily the other person's ability to escape."
There is no requirement for "physical application of bindings". The restraint can be by "psychological means, such as threats, intimidation or the imposition of fear". There must either be "actual physical restraint" or "coercive restraint".
The victim must be "fully restrained" so that they cannot "move about from place to place".
A person who voluntarily enters into a car, but is then denied the ability to leave will usually make out the offence.
Where consent was obtained by fraud, deceit, or trickery, then the consent is not valid.
- Actus Reus
There must be proven that there was at least a minimal deprivation of the victim's freedom. 
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.
A child confined by a lawful guardian can be considered lawful confinement.
An arrest by a peace officer or private citizen can be unlawful confinement. For example, where an officer takes a lawfully arrested man out to a remote area to abandon him in freezing weather makes out the offence.
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."
There is no need for physical application of bindings.
- Mens Rea
Confinement is a general intent offence.
The offence requires an "intent to effect deprivation of freedom of movement"
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.
R v Fagg, 2014 BCSC 2632 (CanLII), per Saunders J, at para 38
R v Luxton, 1990 CanLII 83 (SCC),  2 SCR 711, per Lamer CJ
R v Gratton, 1985 CanLII 3549 (ON CA), 18 CCC (3d) 462, per Cory JA, at para 29
Fagg, supra, at para 38
R v EB,  OJ 1864(*no CanLII links)
, per Watt J, at para 115
EB, ibid., at para 115
- EB, ibid., at paras 115 and 116
- Gratton, supra, at para 29
R v Kematch, 2010 MBCA 18 (CanLII), 252 CCC (3d) 349, per Monnin JA, at para 55
Fagg, supra, at para 41
- R v Pritchard, 2008 SCC 59 (CanLII),  3 SCR 195, per Binne J
EB, ibid., at para 119
Gratton, supra, at para 29
EB, supra, at para 119
EB, supra, at para 119
- see for example Tremblay, supra
R v Metcalfe, 1983 CanLII 248 (BCCA), 10 CCC (3d) 114, per Nemetz CJ, at paras 9, 11, 12
R v Johnson, (1984), 65 NSR (2d) 54 (NSSCAD)(*no CanLII links) , leave denied  SCCA No 263
R v Brown, 1972 CanLII 1353 (ON CA), 8 CCC (2d) 13 (Ont CA), per MacKay JA
- R v B(SJ), 2002 ABCA 143 (CanLII), 312 AR 313, per Berger JA
- R v Pritchard, 2008 SCC 59 (CanLII),  3 SCR 195, per Binnie J (7:0), at para 24 ("The authorities establish that if for any significant period of time [the victim] was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire, there was unlawful confinement")
- R v Whalen, 2001 NWTSC 63(*no CanLII links)
- R v Munson, 2003 SKCA 28 (CanLII), 172 CCC (3d) 515, per curiam
R v Neidermier, 2005 BCCA 15 (CanLII), 193 CCC (3d) 199, per curiam
- Gratton, supra
- R v B(SJ), 2002 ABCA 143 (CanLII), 166 CCC (3d) 537, per Berger JA
- B(SJ), ibid., at para 41
- R v Vu, 2012 SCC 40 (CanLII), 288 CCC (3d) 405, per Moldaver J
Participation of Third Parties
- Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
- On Finding of Guilt
s. 606(4.1) [SPIO]
for Interest in Agreement
s. 606(4.2) [5+ years]
|Victim Notice |
of Impact Statement
|s. x [x]|
For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".
Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Sentencing Principles and Ranges
- Maximum Penalties
|s. 279(1.1) [kidnapping]||N/A||life incarceration|
|s. 279(2) [confinement]||summary election||18 months custody|
|s. 279(2)||indictable election||10 years incarceration|
Offences under s. 279(1.1) are straight indictable. The maximum penalty is life incarceration.
Offences under s. 279(2) are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 18 months.
- Minimum Penalties
Where the aggravating factors in s. 279(1.1)(a) are established, there is a mandatory minimum of 5 years incarceration or 7 years incarceration with prior convictions. Where the aggravating factor in s. 279(1.1)(a.1) are established, there is a mandatory minimum of 4 years incarceration. Where the aggravating factor in s. 279(1.1)(a.2) are established, there is a mandatory minimum of 5 years incarceration.
- Available Dispositions
s. 718.3, 787
with aggravating factors
Offences under s. 279(1) are ineligible for a conditional sentence order, when prosecuted by indictment, as the offence is enumerated as ineligible under s. 742.1(f).
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
The range of sentence should not be narrow given the variable range of circumstances of kidnapping.
One category of kidnapping, described as "the classic form of kidnapping" should be in a range of 10 years to life. Another category is a "technical" kidnapping, usually where there was a "relatively short period of confinement", which should range between 4 to 6 years.
Hostage-taking has been interpreted as a form of terrorism.
Ancillary Sentencing Order
- Offence-specific Orders
|DNA Orders||s. 279 [kidnapping or forceable confinement]||
|Weapons Prohibition Orders||s. 279 [kidnapping or forceable confinement]||
|SOIRA Order||s. 279(1.1), (2)||
Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act
Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act
|Delayed Parole Order||s. 279 [kidnapping or forceable confinement]||
- General Sentencing Orders
|Non-communication order while offender in custody (s. 743.21)||any||The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.|
|Restitution Orders (s. 738)||any||A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.|
|Victim Fine Surcharge (s. 737)||any||A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).|
- General Forfeiture Orders
|Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))||any||Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.|
|Fine in Lieu of Forfeiture (s. 462.37(3))||any||Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.|
|Forfeiture of Weapons or Firearms (s. 491)||any||Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.|
|Forfeiture of Offence-related Property (s. 490.1)||any||Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.|
Record Suspensions and Pardons
- Related Offences