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.
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.
Marginal note: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.
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.
(3) [Repealed, 2018, c. 29, s. 26]
Annotations | French
- Section 279
- The actus reus of this offence is the unlawful confinement/abduction and movement of the victim against their will. The mens rea will be established if the accused has one of the intents set out in s.279(1).
- R v Hernandez, 2012 SCC 40 at paras 43, 44 and 47
- R v Ochelo, 2021 ABCA 380 at para 23
- Kidnapping is an aggravated form of false imprisonment but is differentiated from that offence by the element of movement. The distance or time over which a person is moved is not a determinative factor, so long as there is movement with intent.
- R v Hernandez, 2012 SCC 40 at paras 25-33
- R v Briscoe, 2015 ABCA 2 (CanLII)
- R v St-Hilaire, 2014 CarswellQue 12248, 2014 QCCQ 11349 (C.Q.) at paras. 88-89
- The use of fraud or dishonest stratagem to obtain the consent of another to be moved will constitute kidnapping. The degree of fraud need only be sufficient to overcome the person’s will or mislead the person.
- R v Hernandez, 2012 SCC 40
- R v Briscoe, 2015 ABCA 2 (CanLII) at paras 21-22 and 25
- R v Metcalfe, 1983 CanLII 248 (BC CA) at paras. 10-12, leave to appeal refused (1984), 54 N.R. 320n (S.C.C.)
- R v Brown, 1972 CarswellOnt 1059, 8 C.C.C. (2d) 13 (Ont. C.A.)
- R v Johnson, 1984 CarswellNS 345, 65 N.S.R. (2d) 54 (N.S. C.A.) at paras. 10-15, leave to appeal refused (1985), 67 N.S.R. (2d) 180 (note), 155 A.P.R. 180 (note) (S.C.C.)
- R v St-Hilaire, 2014 CarswellQue 12248, 2014 QCCQ 11349 (C.Q.) at para. 88
- R v Spence, 2011 CarswellOnt 10392, 2011 ONSC 5587 (Ont. S.C.J.) at para. 433
- R v Sidhu, 1985 CarswellOnt 2578 (Ont. Dist. Ct.)
- R v V (K.B.), 1995 CarswellOnt 3544, [1995] O.J. No. 1431 (Ont. C.A.) at para. 4
- Kidnapping is a continuing offence that begins with the taken and continues until the victim is released. It is complete, however, at the moment the victim is taken. While subsequent confinement may be part of the offence, as it is a continuing offence, such confinement is not necessary.
- R v Hernandez, 2012 SCC 40 at para 25 and 49
- R v Briscoe, 2015 ABCA 2 (CanLII)
- Individuals may be a party to a kidnapping at any time. They need not be present or involved in the initial taking.
- R v Hernandez, 2012 SCC 40 at paras 59-60 and 72
- R v Briscoe, 2015 ABCA 2 (CanLII) at paras 21-22
- Confinement S.279(2)
- A person is unlawfully confined if she is coercively restrained or directed contrary to her wishes so that she cannot move about according to her own inclination and desire. There is not requirement in terms of duration in order to satisfy the actus reus of the offence.
- R v Saleh, 2022 ONCA 735 at para 25
- R v Ally, 2022 ONCA 558
- Unlawful confinement is a continuing offence – it is complete upon the victim being restrained against his or her will.
- R v Ally, 2022 ONCA 558 at para 78
- R v Parris, 2013 ONCA 515at para 47
- R v Saleh, 2022 ONCA 735 at para 25
- The purpose of the confinement is irrelevant.
- R v Ally, 2022 ONCA 558 at para 78
- R v Sundman, 2022 SCC 31 at para 21
- R v Kimberley, 2001 CanLII 24120 (ON CA) at para 107
- The confinement can be effected via violence, fear, intimidation or psychological or other means.
- R v Ally, 2022 ONCA 558 at para 78
- R v Sundman, 2022 SCC 31 at para 21
- The adverb “forcibly” qualifies the verb seizes it does not, however, qualify confining or imprisoning.
- R v Pritchard, 2008 SCC 59 at para 25