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

Docket Number:34286


Citation: R. v. Vu, 2012 SCC 40

Date: 20120726

Docket: 34286


Sam Tuan Vu

Appellant and

Her Majesty The Queen


Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Rothstein, Cromwell and Moldaver JJ.

Reasons for Judgment:

(paras. 1 to 73)

Moldaver J. (McLachlin C.J. and LeBel, Deschamps, Fish, Rothstein and Cromwell JJ. concurring)

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

r. v. vu

Sam Tuan Vu Appellant v.

Her Majesty The Queen Respondent

Indexed as: R. v. Vu

2012 SCC 40

File No.: 34286.

2012: February 15; 2012: July 26.

Present: McLachlin C.J. and LeBel, Deschamps, Fish, Rothstein, Cromwell and Moldaver JJ.

on appeal from the court of appeal for british columbia

Criminal law - Offences - Kidnapping - Whether kidnapping is a continuing offence encompassing subsequent confinement of victim - Whether persons who willingly or knowingly choose to participate in subsequent confinement become parties to the offence of kidnapping - Criminal Code, R.S.C. 1985, c. C-46, s. 21(1), 279(1).

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.

Cases Cited

Referred to: Kienapple v. The Queen, [1975] 1 S.C.R. 729; Click v. The State, 3 Tex. 282 (1848); Smith v. The State, 63 Wis. 453 (1885); Midgett v. State, 139 A.2d 209 (1958); People v. Adams, 205 N.W.2d 415 (1973); U.S. v. Garcia, 854 F.2d 340 (1988); Davis v. R., [2006] NSWCCA 392 (AustLII); R. v. Tremblay (1997), 117 C.C.C. (3d) 86; R. v. Oakley (1977), 4 A.R. 103; R. v. Metcalfe (1983), 10 C.C.C. (3d) 114; R. v. Reid, [1972] 2 All E.R. 1350; Bell v. The Queen, [1983] 2 S.C.R. 471; R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; R. v. Thatcher, [1987] 1 S.C.R. 652; R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411; R. v. Hijazi (1974), 20 C.C.C. (2d) 183; R. v. Whynott (1975), 12 N.S.R. (2d) 231; R. v. Tanney (1976), 31 C.C.C. (2d) 445.

Statutes and Regulations Cited

Crimes Act 1900 (N.S.W.).

Criminal Code, R.S.C. 1985, c. C-46, ss. 21(1), 279(1), (2).

Criminal Code, S.C. 1953-54, c. 51, s. 233.

Criminal Code, 1892, S.C. 1892, c. 29, s. 264.

Criminal Code Amendment Act, 1900, S.C. 1900, c. 46, s. 3.

Authors Cited

Aickin, K. A. "Kidnapping at Common Law" (1935-1938), 1 Res Judicatae 130.

Anderson, Ronald A. Wharton's Criminal Law and Procedure, vol. I. Rochester, N.Y.: Lawyers Co-operative Publishing Co., 1957.

Bishop, Joel Prentiss. Bishop on Criminal Law, vol. II, 9th ed. by John M. Zane and Carl Zollmann. Chicago: T. H. Flood and Co., 1923.

Blackstone, William. Commentaries on the Laws of England, Book IV. Oxford: Clarendon Press, 1769.

Crankshaw, James. The Criminal Code of Canada and the Canada Evidence Act: With Their Amendments, Including the Amending Acts of 1900 and 1901, and Extra Appendices, 2nd ed. Montreal: C. Theoret, 1902.

Diamond, John L. "Kidnapping: A Modern Definition" (1985), 13 Am. J. Crim. L. 1.

East, Sir Edward Hyde. A Treatise of the Pleas of the Crown, vol. I. London: J. Butterworth, 1803.

Hawkins, William. A Treatise of the Pleas of the Crown: Or, A System of the Principal Matters Relating to That Subject, Digested Under Proper Heads, vol. I, 8th ed. by John Curwood. London: S. Sweet, 1824.

Hochheimer, Lewis. The Law of Crimes and Criminal Procedure: Including Forms and Precedents, 2nd ed. Baltimore: Baltimore Book Co., 1904.

Roscoe, Henry. A Digest of the Law of Evidence in Criminal Cases, 2nd ed. Philadelphia: T. & J. W. Johnson, 1840.

Russell, Sir William Oldnall. A Treatise on Crimes and Misdemeanors, vol. I, 3rd ed. by Charles Sprengel Greaves. London: Saunders and Benning, 1843.

APPEAL from a judgment of the British Columbia Court of Appeal (Finch C.J.B.C. and Prowse and Saunders JJ.A.), 2011 BCCA 112, 302 B.C.A.C. 187 (sub nom. R. v. Hernandez), 270 C.C.C. (3d) 546, 83 C.R. (6th) 162, 511 W.A.C. 187, [2011] B.C.J. No. 399 (QL), 2011 CarswellBC 541, setting aside the acquittal entered by Silverman J., 2008 BCSC 1376 (CanLII), [2008] B.C.J. No. 1953 (QL), 2008 CarswellBC 2200, and entering a conviction. Appeal dismissed.

Howard Rubin, Q.C., and Chandra L. Corriveau, for the appellant.

Jennifer Duncan and Kathleen Murphy, for the respondent.

The judgment of the Court was delivered by

Moldaver J. -

I. Introduction

[1] In April 2006, Graham McMynn was kidnapped at gunpoint and held in captivity in three different houses in the Lower Mainland area of Vancouver. His ordeal ended when he was rescued by the police eight days later. Five adult persons, including the appellant Sam Tuan Vu, were charged with kidnapping and unlawful confinement of Mr. McMynn under s. 279(1) and (2) of the Criminal Code, R.S.C. 1985, c. C-46 ("Code").

[2] Fingerprint, footprint, and DNA evidence connected the appellant to all three houses where Mr. McMynn was confined, but the trial judge found no evidence to place the appellant at the scene of the initial taking or to prove that the appellant had prior knowledge of the taking. The appellant was convicted of unlawful confinement and acquitted of kidnapping (2008 BCSC 1376 (CanLII)).

[3] A majority of the British Columbia Court of Appeal held that kidnapping is a continuing offence that includes both the initial taking and the ensuing confinement. It therefore substituted a conviction for the offence of kidnapping on the basis that all of the facts necessary to convict the appellant as a party to that offence under s. 21(1) of the Code had been established (2011 BCCA 112, 302 B.C.A.C. 187). The appellant seeks to have his conviction for kidnapping set aside.

[4] This appeal raises two issues. The first relates to the nature of the offence of kidnapping. The appellant submits that kidnapping is not a continuing offence, in other words, that kidnapping ends the moment the victim is seized and carried away, at which point the offence of unlawful confinement begins. Only this ensuing phase of confinement, the appellant argues, is a continuing offence. The Crown maintains that kidnapping is an ongoing offence that continues from the time the victim is apprehended and carried away until the time he or she is freed (or otherwise consents to being detained).

[5] The second issue is tied to the first and need only be addressed if kidnapping is found to be a continuing offence. Specifically, it concerns the liability of persons who, while not involved in the victim's apprehension, decide to participate in the ensuing confinement of the victim...

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