SHORT READ
Kidnapping once referred to the seizing and taking of children to enslave them or for other illegal purposes. The Supreme Court of Canada defines kidnapping as the aggravated form of unlawful confinement that includes "the additional element of movement, which increase(s) the risk of harm to the victim by isolating him or her from a place where detection and rescue were more likely." Kidnapping is an indictable offence punishable by a maximum sentence of life in prison.
Table of Contents:
What is Kidnapping?
Holding someone against their will is considered forcible confinement. The key difference between forcible confinement and kidnapping is the movement of the victim to another location. Kidnapping may be done for ransom, as part of another crime such as sexual assault or can occur in child custody cases. You do not have to be involved in taking or moving of the victim to be charged. According to s.279 (1) of the Code, anyone who willingly participates in the confinement after learning the victim has been kidnapped may be held responsible.
The victim may have been threatened or forced into the kidnapping and held by acts of violence. The Code states that the offence continues until the victim is freed.
Under s.279 (1) of the Code, you can be charged if you take 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.
What is Needed to Convict
To win a conviction the Crown prosecutorLawyers who prosecutes charges on behalf of the Crown must prove beyond a reasonable doubt that you took the victim from one place to another without their consent and there was at least a minimal deprivation of the victim's freedom. The duration of the confinement does not matter.
Your lawyer may argue that there was consent or a mistaken belief of intent. You may also be able to establish reasons why your arrest was not lawful under the Canadian Charter of Rights and Freedoms.
Treated as an Indictable Offence
If you have been charged with kidnapping, the Crown will proceed as an indictable offenceIndictable offences are more-serious criminal offences and you can be imprisoned if convicted.
Penalty for Kidnapping
If you are convicted of kidnapping you can be sentenced to life in prison. According to the Criminal Code there are mandatory minimum sentences for kidnapping.
If a restricted firearm or prohibited firearmsVarious weapons including automatic weapons 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, the minimum sentence is:
- Five years for a first offence;
- Seven years in the case of a second or subsequent offence; or
- Four years where a firearm is used in the commission of the offence.
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Rehan Khali
Machado Law Professional Corporation
M Smith Law
Collett Read LLP
Collett Read LLP
Collett Read LLP
Glossary of Legal Terms
Crown prosecutor
Lawyers who act for the federal, provincial and territorial governments and prosecute people accused of crimes on behalf of the Crown.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Prohibited firearms
Prohibited weapons in Canada include: handguns with barrels equal to or less than 105 mm in length; handguns designed or adapted to discharge a 25 or 32 calibre cartridge; firearms adapted from a rifle or shotgun that are less than 660 mm in length or that have a barrel less than 457 mm in length; automatic firearms, whether or not altered to discharge only one projectile with one pressure of the trigger; and firearms prescribed to be prohibited firearms.
