From the 1973 edition of Archbold Criminal Pleading Evidence & Practice:
"Kidnapping (is) the stealing and carrying away, or secreting of any person of any age or either sex against the will of such a person, or if he be a minor, against the will of his friends or lawful guardians, is an offence at common law...."
Jowitt's Dictionary of English Law defines kidnapping as:
"... the forcible abduction or stealing away of a person whether man, woman or child."
In R v Hale, British Judge Lawson noted that "older authorities ... appear to present an element of removing a person from this country".
Lawson also opined that the definition in Archbold was deficient in that the common law offence of kidnapping "present "an elements of force or fraud".
Thus, in 1984, Justice Brandon wrote, in R v D:
"The nature of the offence (of kidnapping) is an attack on, and infringement of, the personal liberty of the individual.
"The offence contains four ingredients as follows: the taking or carrying away of one person by another, by force or by fraud, without the consent of the person so taken or carried away and without lawful excuse."
The 2009 version of Canada's Criminal Code, at §279, defines the offence of "kidnapping" as follows:
"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."
The offence adds that "the fact that the person in relation to whom the offence is alleged to have been committed did not resist is not a defence unless the accused proves that the failure to resist was not caused by threats, duress, force or exhibition of force".
REFERENCES:
- Archbold Criminal Pleading Evidence & Practice, 38th Edition, page 1036, para. 2796.
- Criminal Code, Revised Statutes of Canada 1985, Chapter C-46
- Duhaime, Lloyd, Criminal Law Centre
- R v D 1984 All ER 449
- R v Hale 1974 QB 819
- R v Leech 10 CCC 2d 149 (1972)