Kidnapping Defence Lawyers in Calgary
An individual is generally deemed to have committed the offence of kidnapping when he kidnaps a person with intent to cause the person to be confined or imprisoned against the person’s will; or 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 is created under section 279 of the Criminal Code. It is an indictable offence punishable with a maximum sentence of imprisonment for life.
Key Takeaways
- A charge of Kidnapping is considered to be a severe offence, under the Canadian criminal law. This is evident in the fact that it attracts a maximum sentence of imprisonment for life. This is especially so where a restricted firearm or prohibited firearm was used in the commission of the offence; or the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization using any firearm; or in any other case where a firearm is used; or where the victim is a person under 16 years of age. This is the implication section 279(1.1), (a.1) and (a.2).
- It also attracts a minimum punishment of imprisonment for 5 years, in case of a first offence or 7 years, in case of a second or subsequent offence. In other cases where a firearm is used, the minimum punishment is imprisonment for 4 years. Where the victim is a person under 16 years of age, then the minimum punishment is imprisonment for 5 years.
- An accused person has the right not to be denied reasonable bail without just cause under the Canadian Charter of Rights and Freedom. Some bail conditions which the court may impose include directing the accused to –
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- Attend court as directed
- Remain within a particular territorial jurisdiction
- Notify any change of address and employment
- Deposit a passport/travel document
- Have a surety
- Not possess or use a device capable of accessing the internet
- Be under house arrest and/or keep a curfew
- Wear electronic monitoring equipment, such as an ankle bracelet
- Depending on the circumstance of the case, an accused may – with the legal assistance – beat a charge of kidnapping to at least attract a less severe sentence.
How can a kidnapping lawyer in Calgary help?
Given the severity of the offence of kidnapping, a pre-charge advice by a criminal defense lawyer may be very helpful. Pre-charge advice comes in handy when the charge is anticipated. Thus, once it is apparent that the accused will be charged, the accused needs to consult a criminal defense lawyer for the purpose of determining the next action to take. Furthermore, pre-charge legal advice helps to provide the accused with guidance prior to the formal filing of the charge. It extends to advising the accused about his/her rights, potential legal consequences, and the best course of action to mitigate risks.
A criminal defense lawyer can also help in protecting an accused from self-incrimination. During the investigation and interrogation, the accused may unknowingly or unintentionally confess to the crime committed or offer some other self-incriminating statements which may be damning to his/her case. A Criminal defense lawyer will help the accused to navigate conversations with law enforcement agents.
The lawyer’s services may range from interviewing of witnesses to evaluating the strength of their testimony, identifying and retaining expert witnesses where necessary, as well as court processes/proceedings, and ultimately representation during trial. Criminal defence lawyers possess good knowledge of the legal system, court rules, and precedents. Their advice would thus be helpful at every stage of the legal process, from arraignment to trial, ensuring that the accused’s rights are protected and advocating for the most favorable outcome possible.
Kidnapping Charge in the Criminal Code of Canada
As already mentioned, kidnapping is proscribed under section 279 Canadian Criminal Code which provides as follows:
S 279 (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.
Examples of Kidnapping Charges
Section 279(1) of the Criminal Code provides for different examples of kidnapping. They include:
- causing a person to be confined or imprisoned against the person’s will;
- causing a person to be unlawfully sent or transported out of Canada against the person’s will; or
- holding a person for ransom or to service against the person’s will.
In any of the instances above, the offence of kidnapping would have been committed.
Consequences of a Kidnapping Charge
Kidnapping is an indictable offence, which means the Crown may not proceed under summary conviction. As an indictable offence, kidnapping is punishable under section 279(1.1) of the Criminal Code by jail term of a maximum of life imprisonment.
If a restricted firearm or prohibited firearm 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, then the maximum punishment is imprisonment for life and the minimum is imprisonment for a term of five years in the case of a first offence, and seven years in the case of a second or subsequent offence.
In any other case where a firearm is used in the commission of the offence, the maximum punishment is imprisonment for life, while the minimum punishment of imprisonment for a term of four years.
If the victim is under 16 years of age, the maximum punishment is imprisonment for life and, unless the person who commits the offence is a parent, guardian or person having the lawful care or charge of the person referred to in that paragraph, the minimum punishment would be imprisonment for a term of five years.
In any other case, kidnapping is punishable by imprisonment for life. The Criminal Code does not provide for an option of fine for the offence of kidnapping.
Kidnapping Charge Defences
Available defences to a charge of kidnapping generally depends on the circumstances of the case. Certain defence exists which can either totally exculpate the accused or reduce the criminal liability of the accused. Possible defences include:
- Consent: If the accused can established the fact that the victim consented to be taken or confined, within a certain period of time or voluntarily stayed at the place, then the accused may be exculpated. This is so because an important element in the offence of kidnapping is holding the person against his or her will. This implies that where the person stays willingly, the offence is not committed.
- Lawful Authority: Where it is established that the accused had the lawful authority to arrest and detain the victim, the Crown may not succeed in a kidnapping charge. For instance, a police officer who makes an arrest. See Section 25 of the Canadian Criminal Code However, it is important that while exercising this lawful authority, the accused restrict himself to the law and not detain the victim for an unreasonable amount of time or use unreasonable force or unnecessary threats or otherwise offend the accused charter rights.
- Necessity: The accused can plead necessity and establish that the holding or confinement of the accused was done to either protect the victim, or prevent the victim from harm or injury.
- Lack of intent: Another important ingredient of the offence of kidnapping is intent. This is the actus reus. If it is shown that the accused had no intention of committing the offence of kidnapping, then the charge of kidnapping may fail.
Kidnapping Charge Investigation
When a kidnap is alleged to have been committed, investigation is commenced after report is lodged with the law enforcement agencies, like the police. The police upon receipt of the report would commence the collection and gathering of evidence to identify the perpetrator (if not already known) and establish a case. This may involve collection of physical evidence, interview of eyewitnesses, and collection of forensic evidence, etc. The investigation may extend to interviewing and recording the statements of the victim, witnesses and the suspects. Legal proceeding may thereafter be commenced against an identified suspect whom the evidences ties.
Bail Conditions for Kidnapping Charges
Generally, an accused person has the charter right to liberty and is presumed innocent until proven guilty. An accused person also has the charter right to be released on bail on reasonable terms. The purposes of imposing bail conditions is to address risks posed by the accused and ensure they do not commit other offences while awaiting trial or interfere with the administration of justice and would be available for their trial. Some bail conditions include:
- An indication that the release order does not include any financial obligations;
- The accused’s promise to pay a specified amount if they fail to comply with a condition of the order;
- The obligation to have one or more sureties, with or without the accused’s promise to pay a specified amount if they fail to comply with a condition of the order;
- The obligation to deposit money or other valuable security in a specified amount or value, with or without the accused’s promise to pay a specified amount if they fail to comply with a condition of the order; etc
Frequently Asked Questions on Kidnapping
Will a kidnap charge show on my criminal record while the case is ongoing?
Yes, a kidnap charge will show on your criminal record, mostly because the charge will still be in the database of the police, until it is resolved in favour of the accused.
Will a kidnap charge show on my criminal record after the case is done?
Yes, especially upon conviction.
How long does a kidnap case take?
It is the right of every Canadian charged with an offence to be tried within a reasonable time. It may be difficult to give a precise length of time.
Can I travel while a kidnap case is ongoing?
If the bail condition does not prevent you from travelling, you may travel. But certain countries may not admit a person who has pending criminal charges in Canada.
Can I go to jail for kidnap charges?
Yes, if found guilty, the accused may go to jail as there is no option of fine.
Related Offences
- Aggravated Assault: This is the most serious of all assault charges. It occurs when a person wounds, maims disfigures or endangers the life of another.
- Choking Charge: This charge involves choking, strangling, suffocating, or otherwise incapacitating another person in order to commit another offence. The charge may be brought alongside an assault charge.
- Criminal Confinement: This involves depriving a person’s liberty such that they cannot move from one point to another.
- Domestic Violence: This is a kind of assault that occurs between persons who have some close relationship, eg: between boyfriends and girlfriends, spouses, common-law partners, and other family members. It is a form of assault.
- Kidnapping: This offence involves taking away the liberty of a person to move. It usually entails carrying the victim away from one point to another without his consent.
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If you have been charged with a criminal offence, you need legal advice. Contact our Calgary criminal lawyers today for a free consultation.
