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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))
Jurisdiction	Prov. Court Sup. Court w/ Jury (*) Sup. Court w/ Judge-alone (*) * Must be indictable. Preliminary inquiry also available.
Summary 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)
Minimum	None
Maximum	18 months incarceration
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) (* varies)
Minimum	4, 5, 7 years incarceration (kipnap w/ firearm)
Maximum	10 years incarceration (confine) Life (kidnap)
Reference
Offence Elements Sentence Digests

Overview

Offences relating to kidnapping and unlawful confinement are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings

Template:PleadingsIndictableListTemplate:PleadingsHybridList

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)

Offences under s. 279(1.1) [kidnapping] are straight indictable. There is a Defence election of Court under s. 536(2).

Offences under s. 279(2) [confinement] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

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.

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By 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]	Template:ReleaseProfileOnlyBail
s. 279(2) [confinement]	Template:ReleaseProfileAll

When charged under s. 279(2), 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));

Fingeprints 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

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 279(1.1) [kidnapping]		(primary)
s. 279(2) [confinement]

Offences under s. 279(1.1) are designated offences eligible for wiretap under s. 183.

Section s. 279(1.1) 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) 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.

Offence Wording

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.

Punishment

(1.1) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of

(i) in the case of a first offence, five years, and

(ii) in the case of a second or subsequent offence, seven years;

(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years;

(a.2) if the person referred to in paragraph (1)(a), (b) or (c) is under 16 years of age, to imprisonment for life and, unless the person who commits the offence is a parent, guardian or person having the lawful care or charge of the person referred to in that paragraph, to a minimum punishment of imprisonment for a term of five years; and

(b) in any other case, to imprisonment for life.

...[(1.2), (1.21), and (1.3) regarding subsequent offences]...

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.

...
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; 2013, c. 32, s. 1.

– CCC

Proof of the Offence

Proving kidnapping under s. 279(1.1) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit moved or took a person from one place to another ☐ the victim did not consent ☐ the culprit had no lawful authority to do so the culprit intended to ☐ confine or imprison the victim ☐ cause the person to be sent in or out of the country ☐ holding the person for ransom or service

Proving Forcible Confinement under s. 279(2) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit "confines, imprisons or forcibly seizes" another person ☐ the other person did not consent to the confinement ☐ the culprit had no "lawful authority" to confine the complainant ☐ the culprit intended to confine the victim ☐ the culprit used force or threat of force

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".

Kienapple

See Kienapple Principle

Confinement

The essence of the offence is "forcible deprivation of another person's physical liberty or freedom". It's guiding principle is "illegal domination of one person by another".

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".

The duration of confinement must be "significant". However, the Crown does not need to prove that the confinement happened throughout the "entire period specified in the count."

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.

Defences

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

Non-Resistance Not a Defence

279
...
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; 2013, c. 32, s. 1.

– CCC

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

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

Offence(s)	Crown Election	Maximum Penalty
s. 279(1.1) [kidnapping]	N/A	life in custody
s. 279(2) [confinement]	Summary Election	18 months custody
s. 279(2)	Indictable Election	10 years custody

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

Offence(s)	Crown Election	Discharge s. 730	Suspended Sentence s. 731(1)(a)	Stand-alone Fine s. 731(1)(b)	Custody s. 718.3, 787	Custody and Probation s. 731(1)(b)	Custody and Fine s. 734	Conditional Sentence (CSO) s. 742.1
s. 279(1.1)	N/A
s. 279(2)	N/A
s. 279(1.1) with aggravating factors	N/A

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.

Subsequent Offences

279.
...[(1), (1.1)]...

Subsequent offences

(1.2) In determining, for the purpose of paragraph (1.1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under subsection (1);

(b) an offence under subsection 85(1) or (2) or section 244 or 244.2; or

(c) an offence under section 220, 236, 239, 272, 273, 279.1, 344 or 346 if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.

Factors to consider

(1.21) In imposing a sentence under paragraph (1.1)(a.2), the court shall take into account the age and vulnerability of the victim.

Sequence of convictions only

(1.3) For the purposes of subsection (1.2), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
...
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; 2013, c. 32, s. 1.

– CCC

Ranges

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

Order	Conviction	Description
DNA Orders	s. 279	For convictions under s. 279 [kidnapping or forceable confinement], as listed under s. 487.04(a), a DNA Order is mandatory as a primary designated offence under s. 487.051(1) regardless of Crown election.
Weapons Prohibition Orders	s. 279	On conviction under s. 279 where "violence against a person was used, threatened or attempted", and punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a) or where "violence was used, threatened or attempted against" an enumerated party relating to a domestic partnership a weapons prohibition order is mandatory under s. 109(1)(a.1).The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive". Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life. Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required. Where there is a conviction under s. 279 [summary election] for an offence not otherwise referred to in s. 109, where "violence against a person was used, threatened or attempted" or "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", a discretionary prohibition order of any of these items is permitted under s. 110 regardless of Crown election where "it is desirable, in the interests of the safety of the person or of any other person". Duration: The Order is for no more than 10 years starting at release from custody or at sentencing where custody is not ordered. If there is a prior conviction for an offence eligible for a s. 109 Order, the duration must be life. If violence is "used, threatened or attempted against" their past or present intimate partner, a child or parent of the said partner, or a person who resides with the said partner or the offender, the duration can be up to life in duration. If the judge declines to make an Order or not order all the possible terms, "the court shall include in the record a statement of the court's reasons for not doing so." (s. 110(3))
SOIRA Order	s. 279(1.1), (2)	On conviction under s. 279(1.1), listed as a "secondary offence" under s. 490.011(1)(a), a SOIRA Order shall be ordered under s. 490.011(1)(b), on application of the prosecutor, "if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit" any SOIRA designated offence listed under s. 490.011(a), (c), (c.1), or (d): If the offender was subject to a SOIRA Order anytime prior to sentencing, the duration is life (s. 490.012(3)) Otherwise, the duration is life as the offence has "maximum term of imprisonment for the offence is life" (s. 490.013(2)(c))). There is an option for early termination under s. 490.015 after 20 years. 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 On conviction under s. 279(2), listed as a "secondary offence" under s. 490.011(1)(a), a SOIRA Order shall be ordered under s. 490.011(1)(b), on application of the prosecutor, "if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit" any SOIRA designated offence listed under s. 490.011(a), (c), (c.1), or (d): If the offender was subject to a SOIRA Order anytime prior to sentencing, the duration is life (s. 490.012(3)) Otherwise, the duration is 20 years as the offence has "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b))). There is an option for early termination under s. 490.015 available after 10 years (if 20 year order) or 20 years (if life order). 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	Periods of imprisonment of 2 years or more for convictions under s. 279 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".

General Sentencing Orders

Order	Conviction	Description
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	Conviction	Description
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.

History

• History of Kidnapping and Unlawful Confinement

See Also

Related Offences

• Abduction of a Young Person (Offence)

References

• Pre-Trial and Trial Motions Checklist