Kidnapping and Unlawful Confinement (Offence): Difference between revisions
m Text replacement - "|[{{CCCSec|" to "|{{CCCSec2|" Tags: Mobile edit Mobile web edit |
No edit summary |
||
| (9 intermediate revisions by the same user not shown) | |||
| Line 1: | Line 1: | ||
{{HeaderOffences}} | [[fr:Enlèvement et séquestration (infraction)]]{{HeaderOffences}} | ||
{{OffenceBox | {{OffenceBox | ||
|OffenceTitle=Kidnapping and Unlawful Confinement | |OffenceTitle=Kidnapping and Unlawful Confinement | ||
| Line 115: | Line 114: | ||
===Draft Form of Charges=== | ===Draft Form of Charges=== | ||
{{seealso|Draft Form of Charges}} | {{seealso|Draft Form of Charges}} | ||
{{DraftHeader}} | {{DraftHeader}} | ||
|- | |- | ||
| Line 178: | Line 176: | ||
</ref> | </ref> | ||
Kidnapping is considered "an aggravated form of unlawful confinement, which continues until the victim is freed" | Kidnapping is considered "an aggravated form of unlawful confinement, which continues until the victim is freed."<ref> | ||
{{CanLIIRP|Vu|fs54k|2012 SCC 40 (CanLII)|[2012] 2 SCR 411}}{{perSCC|Moldaver JA}}{{atL|fs54k|40}}<br> | {{CanLIIRP|Vu|fs54k|2012 SCC 40 (CanLII)|[2012] 2 SCR 411}}{{perSCC-H|Moldaver JA}}{{atL|fs54k|40}}<br> | ||
</ref> | </ref> | ||
| Line 186: | Line 184: | ||
{{reflist|2}} | {{reflist|2}} | ||
===Confinement=== | ===Confinement=== | ||
The essence of the offence is "forcible deprivation of another person's physical liberty or freedom" | The essence of the offence is "forcible deprivation of another person's physical liberty or freedom."<ref> | ||
{{CanLIIRx|Fagg|gl88d|2014 BCSC 2632 (CanLII)}}{{perBCSC|Saunders J}}{{atL|gl88d|38}}<br> | {{CanLIIRx|Fagg|gl88d|2014 BCSC 2632 (CanLII)}}{{perBCSC|Saunders J}}{{atL|gl88d|38}}<br> | ||
</ref> | </ref> | ||
It's guiding principle is "illegal domination of one person by another" | It's guiding principle is "illegal domination of one person by another."<ref> | ||
{{CanLIIRP|Luxton|1fssl|1990 CanLII 83 (SCC)|[1990] 2 SCR 711}}{{perSCC|Lamer CJ}}<br> | {{CanLIIRP|Luxton|1fssl|1990 CanLII 83 (SCC)|[1990] 2 SCR 711}}{{perSCC|Lamer CJ}}<br> | ||
</ref> | </ref> | ||
; Meaning of Confinement | ; 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" | 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."<ref> | ||
{{CanLIIRP|Gratton|gbprd|1985 CanLII 3549 (ON CA)|18 CCC (3d) 462}}{{perONCA|Cory JA}}{{atL|gbprd|29}}<br> | {{CanLIIRP|Gratton|gbprd|1985 CanLII 3549 (ON CA)|18 CCC (3d) 462}}{{perONCA|Cory JA}}{{atL|gbprd|29}}<br> | ||
{{supra1|Fagg}}{{atL|gl88d|38}}<br> | {{supra1|Fagg}}{{atL|gl88d|38}}<br> | ||
</ref> | </ref> | ||
"Confinement" means "the state or condition of being confined, restriction or limitation" | "Confinement" means "the state or condition of being confined, restriction or limitation."<ref> | ||
{{CanLIIR-N|EB|, [2006] OJ 1864}}{{perONSC|Watt J}}{{at-|115}}<br> | {{CanLIIR-N|EB|, [2006] OJ 1864}}{{perONSC|Watt J}}{{at-|115}}<br> | ||
</ref> | </ref> | ||
| Line 210: | Line 208: | ||
</ref> | </ref> | ||
There is no requirement for "physical application of bindings" | There is no requirement for "physical application of bindings."<ref> | ||
{{supra1|Gratton}}{{atL|gbprd|29}} | {{supra1|Gratton}}{{atL|gbprd|29}} | ||
</ref> | </ref> | ||
The restraint can be by "psychological means, such as threats, intimidation or the imposition of fear" | The restraint can be by "psychological means, such as threats, intimidation or the imposition of fear."<ref> | ||
{{CanLIIRP|Kematch|28cmh|2010 MBCA 18 (CanLII)|252 CCC (3d) 349}}{{perMBCA|Monnin JA}}{{atL|28cmh|55}}<br> | {{CanLIIRP|Kematch|28cmh|2010 MBCA 18 (CanLII)|252 CCC (3d) 349}}{{perMBCA|Monnin JA}}{{atL|28cmh|55}}<br> | ||
{{supra1|Fagg}}{{atL|gl88d|41}}<br> | {{supra1|Fagg}}{{atL|gl88d|41}}<br> | ||
</ref> | </ref> | ||
There must either be "actual physical restraint" or "coercive restraint" | There must either be "actual physical restraint" or "coercive restraint."<ref> | ||
{{CanLIIRP|Pritchard|21b1w|2008 SCC 59 (CanLII)|[2008] 3 SCR 195}}{{perSCC|Binne J}} | {{CanLIIRP|Pritchard|21b1w|2008 SCC 59 (CanLII)|[2008] 3 SCR 195}}{{perSCC|Binne J}} | ||
</ref> | </ref> | ||
The victim must be "fully restrained" so that they cannot "move about from place to place" | The victim must be "fully restrained" so that they cannot "move about from place to place."<ref> | ||
{{ibid1|EB}}{{at-|119}}<br> | {{ibid1|EB}}{{at-|119}}<br> | ||
</ref> | </ref> | ||
The duration of confinement must be "significant" | The duration of confinement must be "significant."<ref> | ||
{{supra1|Gratton}}{{atL|gbprd|29}}<br> | {{supra1|Gratton}}{{atL|gbprd|29}}<br> | ||
{{supra1|EB}}{{at-|119}}<br> | {{supra1|EB}}{{at-|119}}<br> | ||
| Line 246: | Line 244: | ||
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.<ref> | 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.<ref> | ||
{{CanLIIRP|Pritchard|21b1w|2008 SCC 59 (CanLII)|[2008] 3 SCR 195}}{{perSCC|Binnie J}} (7:0){{atL|21b1w|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")</ref> | {{CanLIIRP|Pritchard|21b1w|2008 SCC 59 (CanLII)|[2008] 3 SCR 195}}{{perSCC-H|Binnie J}} (7:0){{atL|21b1w|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")</ref> | ||
A child confined by a lawful guardian can be considered lawful confinement.<ref> | A child confined by a lawful guardian can be considered lawful confinement.<ref> | ||
| Line 270: | Line 268: | ||
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.<ref> | 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.<ref> | ||
{{CanLIIRP|Vu|fs54k|2012 SCC 40 (CanLII)|288 CCC (3d) 405}}{{perSCC|Moldaver J}} | {{CanLIIRP|Vu|fs54k|2012 SCC 40 (CanLII)|288 CCC (3d) 405}}{{perSCC-H|Moldaver J}} | ||
</ref> | </ref> | ||
| Line 364: | Line 362: | ||
===Principles=== | ===Principles=== | ||
To determine the gravity of the offence of kidnapping should consider factors including:<ref> | |||
{{CanLIIR|Brar|g6s9j|2014 BCCA 175 (CanLII)}}{{atL|g6s9j|23}}<Br> | |||
{{CanLIIR|Okito|jw27p|2023 ONSC 1514 (CanLII)}}{{perONSC|Forestall J}}{{atL|jw27p|26}} | |||
</ref> | |||
* the purpose of the kidnapping, specifically whether it is carried out for ransom or as a means of extorting a payment or repayment from the victim; | |||
* the extent to which there is planning and premeditation; | |||
* the length and conditions of the confinement; | |||
* the extent to which there is violence, torture or significant physical injuries; | |||
* whether third parties are threatened; | |||
* whether guns are used; | |||
* whether there is gang involvement; | |||
* whether the kidnapping occurs in the course of the commission of another offence; and | |||
* the circumstances in which the kidnapping ends. | |||
{{reflist|2}} | |||
===Ranges=== | ===Ranges=== | ||
| Line 371: | Line 385: | ||
One category of kidnapping, described as "the classic form of kidnapping" should be in a range of 10 years to life.<ref> | One category of kidnapping, described as "the classic form of kidnapping" should be in a range of 10 years to life.<ref> | ||
{{CanLIIRx|Brar|g6s9j|2014 BCCA 175 (CanLII)}}{{perBCCA|Willcock JA}} (3:0){{atL|g6s9j|19}} | {{CanLIIRx|Brar|g6s9j|2014 BCCA 175 (CanLII)}}{{perBCCA|Willcock JA}} (3:0){{atL|g6s9j|19}}<br> | ||
{{CanLIIRP|Mills|1wmdv|1998 CanLII 15020 (BC CA)|129 CCC (3d) 313}}{{perBCCA|Donald JA}}{{AtL|1wmdv|17}} ("The classic form of kidnapping, that which attracts penalties in the 10 years to life range, usually involves a carefully planned scheme for ransom with a period of confinement much longer than several hours and where the victim is bound, gagged, and sometimes blindfolded.") | |||
</ref> | </ref> | ||
Another category is a "technical" kidnapping, usually where there was a "relatively short period of confinement", which should range between 4 to 6 years.<ref> | Another category is a "technical" kidnapping, usually where there was a "relatively short period of confinement", which should range between 4 to 6 years.<ref> | ||
| Line 379: | Line 394: | ||
Hostage-taking has been interpreted as a form of terrorism.<ref> | Hostage-taking has been interpreted as a form of terrorism.<ref> | ||
{{CanLIIRP|Maltby|g9k0j|1986 CanLII 4644 (ON CA)|30 CCC (3d) 317, 17 OAC 363 (CA)}}{{perONCA|Grange JA}}</ref> | {{CanLIIRP|Maltby|g9k0j|1986 CanLII 4644 (ON CA)|30 CCC (3d) 317, 17 OAC 363 (CA)}}{{perONCA|Grange JA}}</ref> | ||
{{reflist|2}} | {{reflist|2}} | ||