A hybrid offence, kidnapping may be charged as either a summary or indictable offence, carrying maximum penalties of 18 months and life imprisonment, respectively. Penalties depend on the manner, duration and outcome of the kidnapping, subsequent and previous offences, and the age and vulnerability of the victim.
Kidnapping under Canadian criminal law describes the act of seizing and moving a person from one place to another for the purpose of causing them to be confined against their will; transporting them to another country against their will; or holding them for ransom or service against their will.
What is Kidnapping?
Kidnapping is an aggravated form of false imprisonment or unlawful confinement. It involves the act of seizing and taking a person against their will, as well as the aggravating feature of moving that person from one place to another. Because it hinders the possibility of rescue, the aspect of movement makes kidnapping more serious in law than mere forcible confinement.
A continuing offence, kidnapping does not end at the point the person is seized or moved. Rather, the offence continues until the forcible confinement ends and the person is freed.
Anyone who chooses to participate in the victim’s confinement after learning the victim has been kidnapped may be held responsible for the kidnapping — despite not being involved in the initial taking, seizing, or moving of the person.
The charge of kidnapping involves an element of intent. To make out a charge of kidnapping, the Crown must prove:
- Intent to confine or imprison a person against their will;
- Transport a person outside of Canada against their will; or
- Hold them for ransom or service against their will.
Overlapping with kidnapping is the offence of forcible confinement. Forcible confinement, an essential element of kidnapping, describes the act of confining, imprisoning, or seizing a person without lawful authority. Unlike kidnapping, forcible confinement doesn’t require the movement of a person. It merely entails the deprivation of a person’s liberty. So while kidnapping necessarily involves forcible confinement, a person can be forcibly confined without being kidnapped. The key difference is the movement of a person involved in a kidnapping.
Separate and distinct from kidnapping is the offence of human trafficking. Trafficking in persons involves exercising control over a person, by way of concealment, movement, or coercion, for the purposes of exploiting that person. In relation to human trafficking, exploitation is defined in the Criminal Code as causing a person to provide labour or service by way of threats, deception, or abuse of trust, power, or authority. It is not a defence to argue a person consented to being exploited.
Hostage taking is another distinct offence that shares a number of common elements with kidnapping. Hostage taking involves the taking and confining of a person, as well as threats to cause harm or continue the confinement of that person. The intent of hostage taking is to coerce another person or group to do something to secure the release of the victim, like provide a ransom.
Kidnapping in the Criminal Code of Canada
Section 279 of the Criminal Code states that every person commits an offence who kidnaps a person with intent
- to cause the person to be confined or imprisoned against the person’s will;
- to cause the person to be unlawfully sent or transported out of Canada against the person’s will; or
- to hold the person for ransom or to service against the person’s will.
A kidnapping conviction risks the most serious punishment in Canadian law: life imprisonment. As with any sentence, the Court will consider the particular circumstances of the offender and the offence. In determining what sentence to seek, the Crown will assess the manner, duration and outcome of the kidnapping, subsequent and previous offences, and the age and vulnerability of the victim.
Mandatory minimum sentences for kidnapping include:
- Minimum five year sentence for a first offence offence where a firearm is used and the kidnapping is committed for the benefit of or at the direction of a criminal organization
- Minimum seven years for a subsequent offence where a firearm is used and the kidnapping is committed for the benefit of or at the direction of a criminal organization
- Minimum four year jail term where a firearm is used in the commission of the offence
- Minimum five year jail term where the victim is under the age of 16 (unless the person who commits the offence is a parent or guardian)