Kidnapping Lawyers

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.

Forcible confinement

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. 

Human trafficking

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 Codeas 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

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

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

Kidnapping Charges

Upon an allegation of kidnapping police will invariably proceed to recommend charges to Crown Counsel. Indeed, it’s Crown Counsel, not police nor complainants, who lay charges in British Columbia. 

Kidnapping is treated very seriously by the police, Crown Counsel and courts. When you are charged with kidnapping, you will not be released by police, but rather held for a bail hearing in front of a Judge or Justice of the Peace.

Kidnapping Bail Conditions

If you have a history of violent or property offences, it is exceedingly unlikely that you will be released from prison before your kidnapping charges are handled. In the event you’re granted bail, your problem becomes navigating the restrictive conditions imposed on your release.

Your bail conditions will likely require you to:

• Avoid all contact with the alleged victim
• Abstain from all direct or indirect communication with the alleged victim
• Avoid the alleged victim’s residence, business, school, place of worship and other frequented establishments
• Surrender all weapons and firearms and any related authorizations
• Not be in possession of any weapons, including knives (except for the consumption of food)
• Abstain from alcohol and non prescription drugs
• Demonstrate law abiding behaviour
• Abide by a curfew
• Provide your current address to the court (and notify the Court of any address changes)

Factors that may affect your bail conditions include your:

• Alleged criminal behaviour
• Likelihood of attending court
• Criminal history
• History of drug and alcohol use 
• Physical state
• Mental condition
• Employment situation
• Living situation
• Standing in the community

In certain circumstances bail conditions can be varied, but this takes time and negotiations with the Crown. Bail conditions must be complied with unless and until they are varied lest you be charged with breaching bail and jailed.

Penalties for Kidnapping

Kidnapping convictions risk the most serious punishment in Canadian law: life in prison. 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 prison term 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 year prison term 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 prison term where a firearm is used in the commission of the offence
• Minimum five year prison term where the victim is under the age of 16 (unless the person who commits the offence is a parent or guardian)

Defending Kidnapping Charges

Kidnapping allegations require immediate legal attention. Outcomes in kidnapping cases can depend as much on the circumstances of your case as on the lawyer you hire. Retaining Pender Litigation puts not only a skilled kidnapping lawyer by your side, but our entire team at your back, bolstering your defence with our collective insight, experience and expertise. 

Ways our firm can assist you include:

• Negotiating bail and bail conditions
• Defending you at trial
• Sentencing

Negotiating Bail and Bail Conditions

Kidnapping is treated very seriously by the police, Crown Counsel and courts. Should you have a history of violent or property offences, the courts are unlikely to be satisfied that releasing you from custody pending trial is safe and appropriate. This means you could remain in jail for several months.

We can advocate for your bail. We can also ensure that the conditions upon which you are released impose on your freedom no more than necessary.

Kidnapping Trial Defences

Should your case go to trial, defences to kidnapping charges include (but are not limited to):

• Consent: Crown Counsel must demonstrate beyond a reasonable doubt that the complainant did not consent to being taken and moved.
• Mistake or ignorance: Taking and transporting someone unwittingly should not yield a criminal conviction. Unknowingly driving away with someone in your vehicle, or moving your own child having misconstrued the terms of your custody agreement are both examples of honest mistakes.
• Mistaken belief in consent: The charge of kidnapping involves an element of intent. If you can demonstrate with evidence that you honestly and sincerely believed the complainant consented to being taken and moved, and that you took reasonable steps to ensure their consent, you may be able to argue that your belief in consent was mistaken.
• Innocence: Crown Counsel must demonstrate beyond a reasonable doubt that you were indeed there and committed the kidnapping. This defence performs well when you have an alibi — corroborated by video, eye witnesses and electronic evidence — that places you somewhere else during the kidnapping.
• Violations of the Charter of Rights and Freedoms: Speaking with the police can be detrimental to your case as your statements can be used as incriminating evidence at trial. Charter applications, motions that detail the ways in which police violated your Charter rights in a criminal investigation, can be used to seek the exclusion of this evidence. Violations that may be argued in your defence include searching your car without permission and not letting you speak with a lawyer.
• Self defence: To successfully argue self defence, you must demonstrate 1) force was used, or would foreseeably be used, against you; 2) the sole purpose of your response to the force or threat of force was defending yourself; and 3) your response was reasonable and proportionate given the context from which it arose.
• Defending another person: Provided the response was reasonable and proportionate, moving someone from one place to another to defend another person should not yield a criminal conviction.
• Defending your property: Provided the response was reasonable and proportionate, moving someone to defend your property is sometimes appropriate. 

Sentencing 

If your case cannot be resolved by way of an alternative measures program or peace bond, we can negotiate sentencing options with the Crown, helping you to avoid a criminal record, or ensuring your freedom is minimally curbed upon sentencing.

Learn About Kidnapping

• What is Kidnapping
• Kidnapping in the Criminal Code of Canada
• Kidnapping Charges
• Kidnapping Bail Conditions
• Penalties for Kidnapping
• Defending Kidnapping Charges