Kidnapping definition in Canada
May 30, 2013 6:12 PM   Subscribe

What makes something kidnapping?

Let's say children ask their parent for permission to go for a walk with a neighbour. The parent says yes, having the understanding that it is just nearby. Instead, the other adult takes the children to a remote location a mile or two away, gives one child instructions to go somewhere else to play, takes a path aimed at preventing that child from following or finding them, and then takes the other child to an isolated location. The neighbour then prevents the child from leaving, makes threats, carries out acts, etc. The parent has no idea where either child is. Eventually, both children find their ways home individually.

Is that sort of thing kidnapping or "just" forcible confinement? I am guessing the second child might be considered to be abandoned. But if the parent gave permission for the child to be with a neighbour, can they still be considered kidnapped? Maybe forcible confinement and kidnapping are one and the same - I'm not a lawyer and can't tell. Or perhaps abduction is the term here.

This is not for legal advice, you are not my lawyer, etc. I was reading about the Brampton man who was recently charged and I wondered about the above scenario.

(If no one can tell me about the law in Canada, I can make do with US law references.)
posted by Chaussette and the Pussy Cats to Law & Government (9 answers total) 1 user marked this as a favorite
 
Likely this is abduction, covered by sections 280 and 281 of the Criminal Code.
posted by Monday, stony Monday at 6:34 PM on May 30, 2013


Best answer: IANAL.

Oh, I read that fast, didn't see the threats and acts. So it likely would be 279, and reading R. v. Vu, 2012 SCC 40, [2012] 2 SCR 411...
Kidnapping is a continuing offence that includes the victim’s ensuing confinement. So long as the victim of the kidnapping remains unlawfully confined, the crime of kidnapping continues. Here, M’s unlawful confinement following the taking continued for the next eight days. The kidnapping came to an end only when M was set free by the police. Parliament has never defined the word “kidnapping” in the Criminal Code. There is nothing in the legislative history to suggest that Parliament intended to abandon the common law definition of kidnapping which remained an aggravated form of unlawful confinement. It was aggravated by the additional element of movement, which increased the risk of harm to the victim by isolating him or her from a place where detection and rescue were more likely. It is the element of movement that differentiated kidnapping from the lesser included offence of false imprisonment and made kidnapping an aggravated form of false imprisonment. This interpretation is consonant with the intention of Parliament as expressed in the Code, the crime’s common law origins and legislative history, modern jurisprudence of Canadian appellate courts, and common sense. Parliament did not intend to restrict the offence of kidnapping to the victim’s initial taking and movement, while leaving the victim’s ensuing captivity to the comparably less serious crime of unlawful confinement. Parliament intended to include the offence of unlawful confinement in the offence of kidnapping so as to capture, under the crime of kidnapping, the victim’s ensuing captivity. The penalty scheme reflects Parliament’s view that kidnapping is a much more serious offence than unlawful confinement.
So, to this layman, kidnapping; sentence: up to life.
posted by Monday, stony Monday at 7:04 PM on May 30, 2013


The key legal distinction between kidnapping and confinement is transporting the victim from one place to another without their consent. The fact that the parent gave consent for the walk will make it difficult to prove kidnapping because you have to show that consent was withdrawn at some point. Further, there is an affirmative defense called "mistaken belief of consent" that would probably provide some cover as well.

So long as the child continued to the new location willingly and was not carried forcibly, you probably only have met the elements of confinement. Vu is not on point because there the issue was concerning Vu's responsibility for the movement element. There was no dispute that the victim was moved against his will.
posted by Lame_username at 7:58 PM on May 30, 2013


Best answer: Yes, R. v. Metcalfe, 1983 CanLII 248 (BC CA) (warning: horrible kidnapping) is more relevant:
It is my opinion that under the Criminal Code "to kidnap" has as one of its meanings "to take and carry away a person against his will by unlawful force or by fraud". The fact that the person is not forcibly conveyed by a stratagem of an inducement can make no difference. The crime is complete when the person is picked up and then transported by fraud to his place of confinement. As Coffey J. said in Eberling v. State (1894), 35 N.E. 1023 at p. 1024 (Supreme Court of Indiana): "Kidnapping is a false imprisonment aggravated by conveying the imprisoned person to some other place."
If the threats are established, you won't be able to argue consent for the false imprisonment, per 279(3). And by the kidnapper's behaviour, it's clear that the initial consent was obtained by fraud, and that his intention was to kidnap.
posted by Monday, stony Monday at 8:10 PM on May 30, 2013 [1 favorite]


Response by poster: Thanks. So, let's say the child was told they were going for a walk or to play a game or something of the like, but the real intent was to abuse one child and abandon the other (so that the abuse could take place). And then the neighbour used threats, physical force and intimidation to keep the child in that place and, during the walk, obtained an item to help with intimidation and credible threats, which would seem to suggest some intent. Would that constitute fraud and then aggravated confinement, meaning it is kidnapping? I'm not clear on the distinction between kidnapping and abduction either.
posted by Chaussette and the Pussy Cats at 11:25 PM on May 30, 2013


If something has happened, then report it to your local police and let the authorities decide.

If your asking for a fiction project, the specific matter less.

If you're developing a plan in which you'd be the "neighbour", don't.
posted by Heart_on_Sleeve at 6:39 AM on May 31, 2013 [1 favorite]


Response by poster: Good grief. This is not a question for legal advice, nor is it a question asked with any intent to carry out harm or somehow tread within the bounds of forcible confinement vs kidnapping. I am trying to understand the distinction between kidnapping and abduction. Were a child at risk, I would not be delaying under any circumstances, as, in my province, everyone, regardless of profession, has a duty to report any question of child abuse and I also wouldn't be able to sleep at night.
posted by Chaussette and the Pussy Cats at 9:00 AM on May 31, 2013 [1 favorite]


Best answer: As I understand it, for abduction, the idea is that the kid's consent doesn't matter; if you take a child from its rightful parent/guardian, even if the child is all for it, it's still abduction.

Kidnapping/forcible confinement are where the abductee's consent matters, kidnapping being a form of aggravated forcible confinement. The element of movement (taking the victim somewhere else) differentiates kidnapping from simple forcible confinement.

So here I think we're in the kidnapping/forcible confinement area, since if the child was consentant, the abductor wouldn't have had to use threats.

Now the victim has moved, but that move was initially consented to by both the child and their parent. So is it just confinement or kidnapping?

I think that, per R. v. Metcalfe, the initial consent can be seen as a sham, since it was obtained by ruse: the abductor didn't really mean it when he said they would go for a "walk"; his intent was kidnapping all along, as shown by his trying to lose the other kid.

So from my point of view, from the information provided, I think it's kidnapping.
posted by Monday, stony Monday at 3:51 PM on May 31, 2013


Response by poster: Thank you. This has been very helpful.
posted by Chaussette and the Pussy Cats at 4:36 PM on May 31, 2013


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