Kidnapping and Unlawful Confinement are covered under s.279(1) and (2) of the Criminal Code. These offences are found in Part VIII of the Criminal Code concerning “Offences Against the Person and Reputation”.

There is a subtle distinction between kidnapping and unlawful confinement. Unlawful confinement generally requires depriving a person’s liberty so they cannot move from one point to another. Kidnapping involves taking control of a person and carrying them away from one point to another. While kidnapping entails forcible confinement, forcible confinement can occur without kidnapping.

Offences under s.279(1) are straight indictable offences, whereas offences under s.279(2) are hybrid offences, which means that depending on the circumstances of your offence, the Crown can elect to proceed summarily or by indictment.

Examples

Some common examples of kidnapping and unlawful confinement may include the following:

  • Forcing someone to go somewhere with you at gunpoint;
  • Holding someone in your basement;
  • Not allowing someone to leave your car;
  • Not allowing someone to leave your house; or
  • Forcing someone to go somewhere with you so you can get a ransom.

Defences

Some defences to the offences of kidnapping and unlawful confinement may include the following:

  • Identity
  • Lack of intent;
  • The victim voluntarily went with you; and
  • Any applicable Charter defences

Punishments

While unlawful confinement is a hybrid offence and therefore open to Crown discretion to proceed either by indictment or by summary conviction, kidnapping is a strictly indictable offence.

The following penalties may be applicable:

  • Minimum of five years for a first offence in which a firearm is used and the kidnapping is related to a criminal organization (Minimum of seven years for subsequent offences)
  • Minimum of four years in which a firearm is used
  • Minimum of five years in which the victim is under the age of 16 (except if the offender is a parent or guardian)
  • Life imprisonment is the maximum available penalty for any form of kidnapping.

Unlawful confinement is a hybrid offence, and you may be subject to the following penalties:

  • Summary: up to two years less a day in jail and/or a $5,000.00 fine.
  • Indictable: up to 10 years in jail.

Overview of the Offence 

Under s.279 of the Criminal Code:

(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.

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.

In order for the Crown to convict you of a kidnapping or unlawful confinement offence it must prove, beyond a reasonable doubt, that you committed both the actus reus and mens rea associated with the offence. 

Actus Reus (The Guilty Act)

For offences of kidnapping, under s.279(1) of the Criminal Code, the actus reus the Crown must prove, beyond a reasonable doubt, that:

  • You confined or imprisoned; or
  • Unlawfully sent or transported; or
  • You held the person for ransom or to service; and
  • You did so against the persons will.

For the offence of kidnapping, the Crown must prove that you took the victim from one place to another without their 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. It is important to note that while all kidnappings are confinements, not all confinements amount to kidnapping.

Additionally, as indicated in R. v. Vu, 2012 SCC 40, kidnapping is considered “an aggravated form of unlawful confinement, which continues until the victim is freed”.

For offences of unlawful confinement, under s.279(2) of the Criminal Code, the actus reus the Crown must prove, beyond a reasonable doubt, that:

  • You confined, imprisoned or forcibly seized another victim

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”. However, it is important to note that there is no requirement for there to be any sort of “physical application of bindings”. Rather,  as discussed in R v Kematch, 2010 MBCA 18, the restraint can be by “psychological means, such as threats, intimidation or the imposition of fear”. However, there must either be “actual physical restraint” or “coercive restraint”, as discussed in R. v. Pritchard, 2008 SCC 59 (“Pitchard”).

The duration of the confinement does not need to be lengthy for it to amount to a confinement. Rather, instances which involve 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. This was discussed in Pitchard.

Additionally, it is possible that an arrest by a peace officer or private citizen can be unlawful confinement. For example, this was the case in R. v. Munson, 2003 SKCA 28, where an offence of unlawful confinement was made out after an officer took a lawfully arrested man out to a remote area to abandon him in freezing weather.

Mens Rea (The Guilty Mind)

For offences of kidnapping, under s.279(1) of the Criminal Code, the mens rea the Crown must prove, beyond a reasonable doubt, that:

  • You intended to move the individual from one place to another, without their consent.

It is important to note that depending on what subsection of s.279(1) of the Criminal Code you are charged with, the kidnapping may include some specific purpose. For example, under s.279(1)(c), the mens rea that the Crown must prove in order to obtain a conviction must include that specific purpose of holding the victim for ransom. It is not enough for the Crown to prove that the intended to move the individual from one place to another, without their consent, the Crown must also prove that you did so with the specific intent of holding the victim for ransom.

For offences of unlawful confinement, under s.279(2) of the Criminal Code, the mens rea the Crown must prove, beyond a reasonable doubt, that:

  • You intended to affect the deprivation of freedom of movement of another

Confinement is a general intent offence. General intent offences as a rule are those which require the minimal intent to do the act which constitutes the actus reus. Proof of intent is usually inferred from the commission of the act on the basis of the principle that you intended the natural consequences of your act.

Kidnapping and Unlawful Confinement Defences

A strong defence depends entirely on the specific circumstances of your case and the evidence against you.

However, some common defences to kidnapping and unlawful confinement charges may include the following:

  • Identity
  • Lack of intent;
  • The victim voluntarily went with you; and
  • Any applicable Charter

Identity

The Crown needs to prove identity beyond a reasonable doubt. This means that the Crown must prove that it was you who committed the offence. This can often be difficult if there are no witnesses, if there were conditions present that prevented a witness from identifying you, or the offence was captured by poor-quality surveillance footage. Sometimes mistakes do happen, the authorities could have made a mistake in identifying you as the perpetrator based on the poor quality of the footage. Your defence lawyer may be able to argue that the Crown cannot definitively prove that it was you who committed the offence, resulting in an acquittal.

Lack of Intent

It is a defence to the charge of kidnapping and unlawful confinement if you did not possess the requisite intent. The Crown must prove, beyond a reasonable doubt, that both the actus reus and mens rea of the offence are met in order to secure a conviction. As such, if you did not possess the requisite intent, you cannot be convicted as the mens rea element would not be satisfied.

Voluntariness of the Victim

It may be a defence to a kidnapping or forcible confinement charge if you are able to showcase that the alleged victim was with you voluntarily. If this is the case, the Crown will not be able to prove an essential element of the offence and you cannot be convicted.

Applicable Charter defences

The Charter sets out your rights before and after arrest. In the event the police fail to abide by these rights, you may have an applicable Charter defence to your charge:

Common Charter breaches include:

  • Section 8- Right to be secure from search and seizure;
  • Section 9- Right not to be arbitrarily detained;
  • Section 10- Right to be informed of reasons for detention or arrest:
  • Section 11- General: legal rights apply to those “charged with an offence”
  • Section 12- Cruel and unusual treatment or punishment

If any of your charter rights have been violated, you may be in a position to have any evidence obtained during the breach excluded.

Kidnapping and Unlawful Confinement Punishments

Kidnapping is a straight indictable offence, if you are convicted, you may be subject to the following penalties:

  • Minimum of five years for a first offence in which a firearm is used and the kidnapping is related to a criminal organization (Minimum of seven years for subsequent offences)
  • Minimum of four years in which a firearm is used
  • Minimum of five years in which the victim is under the age of 16 (except if the offender is a parent or guardian)
  • Life imprisonment is the maximum available penalty for any form of kidnapping. 

Forcible confinement is a hybrid offence which means that the Crown may proceed by indictment or summarily, depending on the circumstances of your case. The following penalties may be applicable:

s.279(2) – Summary

If you are convicted of forcible confinement, and the Crown elected to proceed summarily, you can face up to two years less a day in jail and/ or a $5,000.00 fine.

You also have the following dispositions available to you:

  • Discharge;
  • Suspended sentence;
  • Fine alone;
  • Fine and probation;
  • Prison and probation;
  • Intermittent sentence; and
  • Fine, probation, and intermittent sentence.

s.279(2) – Indictment

If you are convicted of forcible confinement, and the Crown elected to proceed by indictment, you can face up to 10 years in jail.

You also have the following dispositions available to you:

  • Discharge;
  • Suspended sentence;
  • Fine alone;
  • Fine and probation;
  • Prison and probation;
  • Intermittent sentence;
  • Fine, probation, and intermittent sentence; and
  • Conditional sentence.

Frequently Asked Questions

Some examples of unlawful confinement may include the following:

  • Not allowing someone to leave your house;
  • Not allowing someone to leave your car;
  • Locking a room so the person cannot leave; or
  • Not allowing your employee to leave.

Unlawful confinement is a hybrid offence and you may be subject to the following penalties:

  • Summary: up to two years less a day in jail and/or a $5,000.00 fine.
  • Hybrid: up to 10 years in jail.

Kidnapping involves taking control of a person and carrying them away from one point to another.

The offence can be made out in the following ways:

  • You cause the person to be confined or imprisoned against the person’s will;
  • You cause the person to be unlawfully sent or transported out of Canada against the person’s will; or
  • You hold the person for ransom or to service against the person’s will.

Published Decisions

In this case, the victim was abducted and held for eight days in three different houses. There was circumstantial evidence which connected the accused to all three houses where the victim was confined but based on the trial judge’s findings, it is accepted that the accused neither participated in the victims initial taking nor knew of it at the time it occurred. At trial, the accused was convicted of unlawful confinement and acquitted of kidnapping. The Court of Appeal held that the accused was liable as a party to kidnapping under s. 21(1) of the Criminal Code and substituted a conviction for that offence.

You can read the full decision here.

This case involved the trial of the accused, who was charged with assault causing bodily harm, kidnapping, forcible confinement, extortion and breaking and entering with intent to commit an indictable offence. The victim was a friend of the accused’s brother. The accused broke into the victim’s home, threatened him with a machete and forced him to accompany the accused to his home. The accused punched the victim in the face. The accused claimed the victim’s roommate broke into the accused’s home, stole $4,000 and stabbed his brother. The accused wanted the victim to locate the offender or repay the money stolen. The defence argued that the victim voluntarily went along with the accused as he was genuinely interested in learning whether his roommate had been responsible for the stabbing and robbery of the accused’s brother, his friend. The accused argued the victim had many opportunities to escape his situation but chose not to. The victim was ultimately convicted.

You can read the full decision here.

This case involved the trial of the three accused Handule, Abdullahi, and Njoku, who were charged with kidnapping Hue. The Crown alleged Hue was taken at gunpoint from his vehicle and transported to a nearby condominium. The three accused stated that Hue was not taken against his will. Rather, they said there was ample evidence suggesting Hue willingly participated in a ruse that was intended to look like a kidnapping for ransom as an effort to extort money from Hue’s criminal associates. The three were ultimately convicted of kidnapping.

You can read the full decision here.