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KIDNAPPING - PARTIES - AIDING - ABETTING

R. v. Vu, 2012 SCC 40 (CanLII)

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


                   Held:  The appeal should be dismissed.


                   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.


                    Where an accused — with knowledge of the principal’s intention to see a continuing offence through to its completion — does (or omits to do) something, with the intention of aiding or abetting the commission of the ongoing offence, party liability is established.  The well-established principles of s. 21(1) of the Criminal Code party liability apply with equal force to continuing offences that have been completed in law but not in fact.  The crime of kidnapping continues until the victim is freed, and a person who chooses to participate in the victim’s confinement — after having learned that the victim has been kidnapped — may be held responsible for the offence of kidnapping under s. 21(1) of the Code.  Here, V was a party to the offence of kidnapping under s. 21(1) of the Code.  V participated in the confinement of M.  Accepting that V was initially unaware of and took no part in the taking and carrying away of M, he became aware of it while M remained confined against his will and chose thereafter to take part in the kidnapping enterprise.  V joined the kidnapping enterprise with the intent to aid the kidnappers and with the knowledge that M was a victim of kidnapping — or, at a minimum, he was wilfully blind to that fact.  V took steps, of his own free will, to assist the kidnappers and further their objectives.


Jim O'Neil, LL.B.

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