SUPREME
COURT OF CANADA
Between:
Sam
Tuan Vu
Appellant
and
Her
Majesty The Queen
Respondent
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)
|
R. v. Vu, 2012 SCC 40, [2012] 2 S.C.R. 411
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, ss. 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
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” (1936), 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, 511 W.A.C. 187, 270 C.C.C. (3d) 546, 83 C.R. (6th)
162, [2011] B.C.J. No. 399 (QL), 2011 CarswellBC 541, setting aside the
acquittal entered by Silverman J., 2008 BCSC 1376, [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 with full knowledge that the victim has been kidnapped — in other
words, persons who willingly and knowingly choose to join the kidnapping
enterprise. Do such latecomers become parties to the offence of kidnapping under
s. 21(1) of the Code , as the Crown maintains, or are they solely liable
for the offence of unlawful confinement, as the appellant contends?
[6]
For reasons that follow, I am not persuaded that
Parliament intended 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. On the contrary, I am
satisfied that 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. Therefore, while the crime of
kidnapping may be complete in law when the victim is initially apprehended and
moved, the crime will not be complete in fact until the victim is freed.
[7]
In view of my conclusion that kidnapping is a
continuing offence that includes the victim’s ensuing confinement, I am
satisfied that latecomers who join the kidnapping enterprise while the victim
remains unlawfully confined may be found guilty as parties to the offence of
kidnapping if they otherwise meet the requirements for party liability under s.
21(1) of the Code .
II. Background
[8]
The pertinent facts are not in issue. On the
morning of April 4, 2006, Mr. McMynn and his passenger were intercepted by two
cars. Several men got out, holding what appeared to be handguns, and ordered
Mr. McMynn to get into one of the vehicles. Mr. McMynn was driven to a van
some 10 minutes away and he was duct-taped so that he could not see his
captors. He was then taken to a house in the Lower Mainland area, where he was
kept in a closet. On or around April 7, Mr. McMynn was transported to a second
house. On April 10 or 11, he was moved to a third house. Mr. McMynn was
threatened from time to time by different captors, sometimes using what
appeared to be a gun. He was either blindfolded or he covered his eyes so that
he could not see his captors. Mr. McMynn was rescued on April 12 in a
simultaneous police raid on many Lower Mainland houses, including the three
houses he had been confined in. The police also found several persons in the
third house, including the appellant, whose citizenship papers were also found
on the premises.
[9]
Upon his arrest, the appellant was charged,
along with four others, with the offences of kidnapping and unlawful
confinement of Mr. McMynn. The salient portions of the indictment upon which
the appellant was tried are reproduced below:
Count 1
[that]
Sam Tuan VU . . . between the 3rd day of April, 2006, and the 13th
day of April, 2006, at or near Vancouver, in the Province of British Columbia,
kidnapped Graham Lee McMYNN, with intent to cause Graham Lee McMYNN to be
confined against his will, contrary to Section 279(1) of the Criminal Code
of Canada.
Count 2
[that]
Sam Tuan VU . . . between the 3rd day of April, 2006, and the 13th
day of April, 2006, at or near Vancouver, in the Province of British Columbia, without
lawful authority, confined Graham Lee McMYNN, contrary to Section 279(2) of the
Criminal Code of Canada.
III. Decision at Trial, 2008 BCSC 1376 (CanLII)
[10]
The appellant and his co-accused were tried by
Justice Silverman of the Supreme Court of British Columbia sitting alone. The
appellant was convicted of unlawful confinement and acquitted of kidnapping.
[11]
In his reasons for judgment, after reviewing the surveillance evidence, cell phone location
evidence, intercepted calls, DNA evidence, fingerprint and footprint evidence,
and location of various exhibits with respect to the appellant, the trial judge
found that
[t]he
accidental occurrence of such a combination of events and items would require a
confluence of coincidences too fantastic to be reasonably possible. There
is no rational inference that can be drawn from the evidence other than that [the
appellant] was involved, with full knowledge, in the wrongdoing against [Mr.]
McMynn. I am satisfied of that beyond a reasonable doubt. [Emphasis
added; para. 369.]
While the remark that the
appellant “was involved, with full knowledge, in the wrongdoing against [Mr.] McMynn”
would seem clear, it is accepted for present purposes that it is not to be
taken as a finding that the appellant either participated in Mr. McMynn’s
initial taking or knew of it at the time it occurred.
[12]
The appellant was found to have taken part in
Mr. McMynn’s confinement in each of the three houses. The evidence further
established that he was involved in the purchase of a tarp and duct tape four
days before Mr. McMynn’s rescue. He and a co-accused were also found to have
discussed the issue of ransom in Mr. McMynn’s presence and to have threatened
to kill Mr. McMynn if the ransom was not paid. Finally, the appellant was
arrested in the third house when the police rescued Mr. McMynn from his
eight-day ordeal.
[13]
With respect to the charge of kidnapping, the
trial judge observed that movement forms an indispensable element of the
offence: it was “the movement of [Mr.] McMynn which separates it from the [charge of] confinement”. In his view, the
element of movement was not restricted to the “initial abduction on April 4”,
but also included the movement of Mr. McMynn from house to house during the
period of confinement. Those movements, the trial judge found, “were part of a
continuing offence of kidnapping” (para. 345).
[14]
However, the trial judge was not satisfied that
the appellant had physically assisted in the movement of Mr. McMynn from house to
house even though the appellant had knowledge of the transfers:
While
there is evidence connecting [the appellant] to all three houses, I am not
satisfied that the evidence indicates that he had anything more than knowledge
about the movement of [Mr.] McMynn. [para. 375]
In the trial judge’s
view, knowledge of these movements alone was not sufficient to find the
appellant guilty of kidnapping. Therefore, he acquitted the appellant on that
count.
[15]
As to the unlawful confinement charge, the trial
judge was satisfied beyond a reasonable doubt that the appellant had knowledge
and was a direct participant in the confinement of Mr. McMynn throughout the
entire period of his captivity (para. 375).
[16]
The Crown appealed the acquittal on the charge
of kidnapping. The appellant filed a cross-appeal, seeking to have his
conviction for unlawful confinement overturned on the basis that it constituted
an unreasonable verdict.
IV. British Columbia Court of Appeal, 2011 BCCA 112, 302
B.C.A.C. 187
A. Majority Opinion
[17]
After reviewing the law of kidnapping, Finch
C.J.B.C., writing for himself and Saunders J.A., concluded that kidnapping is a
continuing offence that encompasses both the initial abduction and the ensuing
confinement of the victim. Chief Justice Finch accepted the trial judge’s
findings that the appellant did not actively participate “in the initial taking
or subsequent movement of [Mr.] McMynn” (para. 57). Thus, the appellant’s
criminal responsibility for kidnapping “would . . . have to rest on a finding that
he [was] a party to the offence of kidnapping by the
application of s. 21 of the Criminal Code ” (ibid.).
[18]
On the issue of s. 21(1) criminal
responsibility, Finch C.J.B.C. reasoned that “in the context of a continuing
offence [kidnapping] where the taking has already
occurred, the accused must have knowledge that a kidnapping has occurred, and
that the victim’s confinement is the result of that act” (para. 61). In this
specific case, as the charge of kidnapping was laid under s. 279(1) (a)
of the Code , the offender “must . . . have knowledge that the principal
offender abducted the victim against his will for the purpose of confining him”
(para. 62).
[19]
In line with these criteria, Finch C.J.B.C. was
satisfied that the trial judge had found all the facts necessary to convict the
appellant as a party to the offence of kidnapping under s. 21(1) (para. 69). Accordingly, he substituted a
conviction for kidnapping and stayed the unlawful confinement count pursuant to
the principles in Kienapple v. The Queen, [1975]
1 S.C.R. 729 (para. 83).
B. Concurring Opinion
[20]
Prowse J.A., concurring in the result, found it
unnecessary to decide whether kidnapping, by its nature, is a continuing
offence. In this case, the kidnapping count should be viewed as a continuing
transaction which covered the period between April 4 and 12, 2006, and
“encompassed the initial taking of Mr. McMynn and the subsequent moving of
him from house to house” (para. 85).
[21]
According to Prowse J.A., though the appellant
might not have been a party to the initial abduction, his actions in confining
Mr. McMynn “aided and abetted those who moved Mr. McMynn” from house to house
in circumstances where the appellant “knew and intended that his actions would
assist the principals in that regard” (para. 85). Therefore, the appellant
should have been found guilty of the offence of kidnapping.
[22]
All three members of the court dismissed the
appellant’s cross-appeal. That matter is not before us.
V. The Issues
[23]
As indicated, this appeal gives rise to the
following two issues:
(1) Is the offence
of kidnapping in s. 279(1) of the Code a continuing offence?
(2) If kidnapping is a continuing offence, can a person who
played no part in the original taking, but who learns of it and chooses
thereafter to participate in the kidnapping enterprise, be found liable as a
party to the offence of kidnapping under s. 21(1) of the Code ?
VI. Statutory Provisions
[24]
The statutory provisions reproduced below
reflect the offences of kidnapping and unlawful confinement in place at the
time the impugned acts were committed:
279. (1)
[Kidnapping]
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.
(1.1) [Punishment] Every person who commits an offence under subsection (1) is
guilty of an indictable offence and liable
(a) 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, to imprisonment for life and to a minimum
punishment of imprisonment for a term of
(i) in
the case of a first offence, five years, and
(ii) in
the case of a second or subsequent offence, seven years;
(a.1) in
any other case where a firearm is used in the commission of the offence, to
imprisonment for life and to a minimum punishment of imprisonment for a term of
four years; and
(b) in
any other case, to imprisonment for life.
. . .
(2) [Forcible confinement] Every one who, without lawful
authority, confines, imprisons or forcibly seizes another person is guilty of
(a) an
indictable offence and liable to imprisonment for a term not exceeding ten
years; or
(b) an offence punishable on
summary conviction and liable to imprisonment for a term not exceeding eighteen
months.
VII. Issue 1 — Is the Offence of Kidnapping a Continuing Offence?
A. Analysis
[25]
For reasons that I will expand upon, I am
satisfied that kidnapping is simply an aggravated form of unlawful
confinement. 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.
So long as the victim of the kidnapping remains unlawfully confined, the crime
of kidnapping continues. To interpret the statutory provisions as they evolved
in their historical context, we must first consider how the offence of
kidnapping was defined at common law.
(1) Kidnapping at Common Law
[26]
At common law, the offence of kidnapping was
viewed as an aggravated form of false imprisonment: W. Blackstone, Commentaries
on the Laws of England (1769), Book IV, at p. 219; E.
H. East, A Treatise of the Pleas of the Crown (1803), vol. I, at pp.
429-30; W. Hawkins, A Treatise of the Pleas of the Crown (8th ed. 1824),
vol. I, at p. 119; H. Roscoe, A Digest of the Law of Evidence in Criminal
Cases (2nd ed. 1840), at p. 529; W. O. Russell, A Treatise on Crimes and
Misdemeanors (3rd ed. 1843), vol. I, at p. 716. See also J. P. Bishop, Bishop
on Criminal Law (9th ed. 1923), vol. II, at § 750; K. A.
Aickin, “Kidnapping at Common Law” (1936), 1 Res Judicatae 130. The term kidnapping emerged in English case law in the late
seventeenth century to describe the forced recruitment of labour for the
American colonies: J. L. Diamond, “Kidnapping: A Modern
Definition” (1985), 13 Am. J. Crim. L. 1, at pp. 2-3. False
imprisonment, in turn, was commonly viewed as a lesser and included offence of
kidnapping.
[27]
In 1803, Sir Edward Hyde East described the
offence of kidnapping in the following terms: “The most aggravated species of
false imprisonment is the stealing and carrying away, or secreting of any
person, sometimes called kidnapping, which is an offence at common law,
punishable by fine, imprisonment, and pillory”: A Treatise of the Pleas of
the Crown, vol. I, at pp. 429-30. False imprisonment, in turn, was referred to as “every restraint
of a man’s liberty . . ., either in a gaol, house, stocks, or in the street,
whenever it is done without a proper authority” (p. 428).
[28]
Other learned authors described the offences of
kidnapping and false imprisonment in like terms. William Hawkins referred to
the offence of kidnapping in the following terms: “. . . an aggravated species
of false imprisonment is the privately carrying off any person, and keeping
them secretly confined, which is generally understood by the term kidnapping”
(p. 119 (emphasis in original)). Likewise, Henry Roscoe wrote that “[k]idnapping,
which is an aggravated species of false imprisonment, is the stealing and
carrying away or secreting of any person, and is an offence at common law,
punishable by fine and imprisonment” (p. 529).
[29]
In Bishop on Criminal Law, the offence of
kidnapping is defined as a “false imprisonment aggravated by conveying the
imprisoned person to some other place” (§ 750). Bishop,
furthermore, described kidnapping as a continuous offence: “It is a continuous crime beginning with the taking and ending with
the return of the kidnapped person” (ibid.).
[30]
American jurisprudence confirms the common law
meaning of the offences of kidnapping and false imprisonment. (See, e.g., Click v. The State, 3 Tex. 282 (1848),
at p. 286; Smith v. The State, 63 Wis. 453 (1885); Midgett v.
State, 139 A.2d 209 (Md. 1958); People v. Adams, 205 N.W.2d 415 (Mich.
1973), at p. 419; U.S. v. Garcia, 854 F.2d 340 (9th Cir. 1988), at pp. 343-44.) The same interpretation is found in other common law
jurisdictions. (See, e.g., Davis v. R., [2006] NSWCCA 392 (AustLII).)
[31]
As this review demonstrates, 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. The underlying
concern was that by carrying the victim away, the kidnappers would be
taking him or her beyond the protection of the country’s laws: R. A. Anderson, Wharton’s
Criminal Law and Procedure (1957), vol. I, at § 371; L. Hochheimer, The
Law of Crimes and Criminal Procedure (2nd ed. 1904), at § 317 cited in Midgett,
at p. 215. As J. L. Diamond explains in his study of
the offence:
The initial common law element of carrying
a victim out of the country . . . emphasized that the victim
would almost inevitably suffer a very lengthy, if not permanent, isolation from
his or her normal society. From this perspective, kidnapping was an extreme
form of false imprisonment because the isolation was often for the duration of
the victim’s life. [Emphasis added; p. 31.]
[32]
Movement is insidious because it removes the
victim from his or her normal surroundings. Locating the victim becomes that
much more difficult. The police are deprived of the clues about the victim’s
whereabouts that are generally available in straightforward cases of unlawful
confinement. When a kidnapping occurs, the range of possible locations where
the victim might be held captive increases exponentially and the likelihood
that the victim will be found and rescued diminishes accordingly. In that
sense, movement is tied to the ensuing confinement and the eventual location
where the victim is secreted and held captive. This argues in favour of
treating kidnapping as a continuing offence. It supports the time-honoured
view that kidnapping, in its essence, is simply an aggravated form of unlawful
confinement.
[33]
Once it is accepted that kidnapping is an
aggravated form of unlawful confinement, the conclusion that kidnapping is a
continuing offence is virtually axiomatic.
(2) Legislative History
[34]
Since kidnapping at common law was seen as an
aggravated form of false imprisonment, which, by definition, is a continuing
crime, we need to determine whether Parliament, by codifying the offence of
kidnapping in the Criminal Code , intended to abandon this
well-established meaning of the offence, as the appellant suggests. In my
view, the legislative history provides no support for the appellant’s argument.
[35]
The first Criminal Code , adopted in 1892 (c. 29),
included kidnapping and unlawful confinement under the same section and
provided for the same punishment. The term “kidnapping” was not defined in the
first Code — indeed, it remains undefined to this day. The original
provision read:
264. [Kidnapping]
Every one is guilty of an indictable offence and liable to seven years’
imprisonment who, without lawful authority, forcibly seizes and confines or
imprisons any other person within Canada, or kidnaps any other person with
intent —
(a.) to cause such other person to
be secretly confined or imprisoned in Canada against his will; or
(b.) to cause such other person to
be unlawfully sent or transported out of Canada against his will; or
(c.) to
cause such other person to be sold or captured as a slave, or in any way held
to service against his will.
On a literal reading of
the 1892 Code , the intent requirement in subss. (a)
through (c) applied both to the offence of kidnapping and to the offence
of unlawful confinement.
[36]
In 1900, Parliament amended the kidnapping
section to clarify that the intent requirement applied only to the offence of
kidnapping: The Criminal Code Amendment Act, 1900, S.C. 1900, c. 46, s.
3. The new section read:
264. Every one
is guilty of an indictable offence and liable to seven years’ imprisonment who,
without lawful authority —
(a.) kidnaps any other person with
intent —
(i.) to cause such other person to be
secretly confined or imprisoned in Canada against his will; or
(ii.) to cause such other person to be
unlawfully sent or transported out of Canada against his will; or
(iii.) to cause such other person to be
sold or captured as a slave, or in any way held to service against his will; or
(b.) forcibly
seizes and confines or imprisons any other person within Canada.
[37]
The appellant argues that Parliament, by
separating the two offences in 1900, restricted kidnapping to the act of
seizing and taking away and made only unlawful confinement a continuing
offence. There is no basis for this interpretation.
[38]
In amending the Criminal Code in 1900,
Parliament did not intend to reduce kidnapping to the moment of taking: it
merely sought to clarify that no specific intent was required to prove unlawful
confinement. In his treatise published two years after the amendments, James
Crankshaw described kidnapping as an “aggravated” form of false
imprisonment: The Criminal Code of Canada and the Canada Evidence Act (2nd
ed. 1902), at pp. 269-70. As he explained:
The
difference between a criminal false imprisonment and kidnapping appears to be this
that the latter is not only an unlawful and forcible detention of a person
against his will, but a removal of him or an intention to remove him beyond the
reach of his country’s laws, by secretly confining him within his own
country or by sending him away into foreign parts. [Emphasis deleted; p. 270.]
[39]
Kidnapping in the Criminal Code after
1900, as before, remained an aggravated form of false imprisonment. It was
aggravated because the additional element of movement increased the risk of
harm to the victim by isolating him or her from a place where rescue was more
likely.
[40]
In 1954, the kidnapping section was re-enacted: Criminal
Code, S.C. 1953-54, c. 51, s. 233. Parliament again did not see fit to define
the term “kidnapping”. Importantly, however, the 1954 amendments altered the
sentencing scheme for kidnapping and unlawful confinement. Instead of the same
seven-year sentence, kidnapping now carried a maximum penalty of life
imprisonment, whereas unlawful confinement carried a maximum term of five
years. Subsequent amendments to the Code have reinforced this
distinction. At present, kidnapping is punishable by a maximum term of life
imprisonment and, where aggravating circumstances exist, severe minimum
sentences are imposed. Unlawful confinement, on the other hand, is treated as
a hybrid offence, punishable by a maximum term of 18 months or 10 years,
depending on whether the Crown proceeds by summary conviction or indictment. I
find the 1954 sentencing amendments and the follow-up amendments to be
instructive. The penalty scheme reflects Parliament’s view that kidnapping is
a much more serious offence than unlawful confinement. This makes sense in law
and logic if kidnapping is viewed as an aggravated form of unlawful confinement
— and hence a continuing offence. Surely, Parliament could not have intended
that the victim’s initial apprehension and movement, which will often occur in
a matter of seconds, be treated more seriously than the victim’s ensuing
captivity, which may last for days, months, or even years. And yet, this is
where the appellant’s submission leads. With respect, I find it unconvincing.
[41]
In sum, while Parliament has never defined the
word “kidnapping” in the Code , nothing in the legislative history
suggests that Parliament intended to abandon the common law definition, much
less replace it with a new meaning that would dramatically alter the nature and
character of the offence of kidnapping as it had come to be understood.
Kidnapping remains an aggravated form of false imprisonment and, as such, a
continuing offence.
(3) Modern
Jurisprudence
[42]
Modern Canadian jurisprudence on the statutory
offence of kidnapping in s. 279(1) of the Code
and unlawful confinement (also referred to as “forcible confinement”) in
s. 279(2) of the Code tracks the understanding of these two offences at common law.
[43]
In R. v. Tremblay (1997), 117 C.C.C. (3d)
86 (Que. C.A.), LeBel J.A. (as he then was) stated:
[translation]
Forcible confinement deprives the individual of his liberty to move from
point A to point B. As for kidnapping, it consists of the taking of control
over a person and carrying him away from point A to point B. The distinction
between the offences sometimes becomes rather subtle because to carry away a
person from one point A to one point B prevents, at the same time, the person
from moving from another point A to another point B. This is the reason why
kidnapping necessarily entails forcible confinement. However, there can
be forcible confinement without there being a kidnapping at the outset.
[Emphasis added; p. 95.]
[44]
Tremblay is
significant in two respects: it adopts the view that unlawful confinement
forms an essential component of the crime of kidnapping, as at common law, and
it accepts the fundamental distinction, drawn at common law, that kidnapping
involves movement, whereas unlawful confinement does not (pp. 94-95). In this
respect, Tremblay’s interpretation of the statutory offence of
kidnapping is consistent with the common law definition of kidnapping as
an aggravated form of false imprisonment — or, as Bishop described it, “a false imprisonment aggravated by
conveying the imprisoned person to some other place” (§ 750).
[45]
In R. v. Oakley (1977), 4 A.R. 103, the
Alberta Supreme Court, Appellate Division, engaged in a comprehensive review of
the origins and evolution of the offence of kidnapping at common law and its
modern-day characteristics. Notably, the court observed that kidnapping has
been described as “an aggravated species of false imprisonment”, a description
that “would fit in with the manner in which the legislature has come to treat
this type of offence” (para. 37). In the next paragraph, the court endorsed
the common law understanding of the offence of kidnapping and the features that
distinguish it from the offence of unlawful confinement:
One of the best statements is by Coffey,
J., of the Supreme Court of Indiana in an 1894 case, Eberling v. State,
35-36 N.E.R. 1023, where at page 1023 he says:
Mr. Bishop, in his work on Criminal Law,
(volume 1, S. 553) says: “Kidnapping and false imprisonment, two offences
against the individual, of which ordinarily the latter is included in the
former, are punishable by the common law. False imprisonment is any unlawful
restraint of one’s liberty, whether in a place set apart for imprisonment
generally, or used only on the particular occasion, and whether between walls
or not, effected either by physical force, actually applied, or by words and an
array of such forces. Kidnapping is a false imprisonment aggravated by
conveying the imprisoned person to some other place.” Taking this definition
as correct, kidnapping, then, as known to the common law, was false
imprisonment aggravated by carrying the imprisoned person to some other place.
2 Bish. Crim. Law, S. 750. [para. 38]
[46]
Likewise, in R. v. Metcalfe (1983), 10
C.C.C. (3d) 114, Nemetz C.J.B.C., writing for a unanimous B.C. Court of Appeal,
adopted the Supreme Court of Indiana’s observation in Eberling v. State,
cited in Oakley, that “[k]idnapping is a false imprisonment
aggravated by conveying the imprisoned person to some other place” (p. 119).
[47]
In my view, the Canadian courts’ interpretation
of the Code lends considerable support to the argument that in enacting
the offence of kidnapping, Parliament did not intend to abandon the meaning of
the offence as it had evolved and come to be understood at common law. Based
on this jurisprudence, Finch C.J.B.C. accurately summarized the basic elements
of the offence of kidnapping in his reasons. For the actus reus, there
has to be an abduction of a person and moving him or her to a place (“carrying
away” or “asportation”), against the victim’s will, which can be accomplished
either by force or by fraud. The mens rea will be established if the
accused has one of the intents described in s. 279(1) of the Code .
[48]
The appellant, however, points to one statement
from Metcalfe, which he says supports his argument that kidnapping is not a continuing offence. At p. 118, Nemetz C.J.B.C. observed that “[t]he crime [of kidnapping] is
complete when the person is picked up and then transported . . . to his place
of confinement.” The appellant also relies on a similar comment in R. v.
Reid, [1972] 2 All E.R. 1350, where the English Court of Appeal said:
We
can find no reason in authority or in principle why the crime [of kidnapping]
should not be complete when the person is seized and carried away, or why
kidnapping should be regarded, as was urged by counsel, as a continuing offence
involving the concealment of the person seized. [pp. 1351-52]
[49]
In my view, Metcalfe and Reid do
not advance the appellant’s position. These cases stand for the proposition
that the crime of kidnapping is complete in law at the point of the taking,
irrespective of whether the victim is subsequently “secreted” or held in
confinement. The converse inference — that a subsequent confinement is not a
part of the offence of kidnapping — does not follow. Chief Justice Finch
recognized this distinction in the instant case. He stated, correctly in my
view, that
the
comment [in Reid] that kidnapping need not be regarded as a “continuing
offence” was made in the context of deciding whether there was a completed
offence without the secreting or concealment of the victim. I do not think
it can be regarded as authority for saying that a subsequent confinement may
not form part of the offence. [Emphasis added; para. 45.]
[50]
Faced with a similar question, the Supreme Court
of New South Wales unanimously held in Davis that the victim’s
subsequent confinement did form part of the offence of kidnapping:
Neither
Reid nor [other case law] supports the proposition that a taking ceases
to be a taking at the moment that the kidnapper becomes criminally liable for
the offence. The offence might at that moment be complete in law, because
the taking has been completed for the purposes of proving the offence, but it
is not necessarily complete in fact. Once it has been established that a person
has been “taken”, in the sense that he or she has been compelled to go where he
or she did not want to go, the “taking” continues until the compulsion ceases.
It does not cease merely because the person has been taken for a certain
distance or for a certain time or even because the kidnapper has ceased to
physically move the victim and has commenced detaining that person in the one
place. In a real sense, the kidnapper is taking the victim, that is causing
the victim to accompany him or her, for the entire duration of the time,
however long it is, that the victim is, as a result of the kidnapper’s conduct,
involuntarily detained in a place that is not the place where the victim was
first detained. The taking begins with the detention and asportation of the
victim, and only ends when the victim is released or ceases to withhold consent
to the detention. [Emphasis added; para. 64.]
[51]
The reasoning in Davis is persuasive on
this point, even though it relies in part on the specific wording of the
kidnapping section in the New South Wales Crimes Act 1900. The decision
is instructive for another reason. As Howie J. observed, drawing a line
between seizure and detention is difficult and artificial, “particularly in
cases where the victim is transported repeatedly from one place to another
rather than simply held in one place” (para. 57).
[52]
Finally, the appellant argues that this Court’s
decision in Bell v. The Queen, [1983] 2 S.C.R. 471, supports his
position that kidnapping is not a continuing offence. With respect, I do not
agree.
[53]
The central issue in Bell was whether the
crime of importing narcotics into Canada under s. 5 of the Narcotic Control
Act, R.S.C. 1970, c. N-1, is complete once the narcotic has crossed the
border or whether the crime continues until the narcotic has reached its
intended final destination in Canada. McIntyre J., writing for a majority of
the Court, concluded that the word “import” in s. 5 should be given its
ordinary meaning, which “is simply to bring into the country or to cause to be
brought into the country” (p. 489). It followed, in his view, that the offence
of importing was “complete when the goods enter the country” (ibid.).
[54]
Justice McIntyre offered some examples of
offences that he considered to be “continuing” offences. After observing that
murder was not a continuing offence but that conspiracy to commit murder could
be, he stated the following:
Theft
is not a continuing offence. It is terminated when the wrongful taking has
occurred with the requisite intention. On the other hand, possession of goods
knowing them to have been obtained by the commission of theft is a continuing
offence. The offence of kidnapping would not be a continuing offence, but
that of wrongful detention of the victim following the kidnapping would be.
[Emphasis added; p. 488.]
[55]
In my view, Bell does not assist the
appellant. Much as the appellant seeks to rely on McIntyre J.’s observation
that kidnapping is not a continuing offence, that observation is not
authoritative. The offence of kidnapping was not before the Court. McIntyre
J. did not discuss the essential features of kidnapping, nor did he cite any
supporting case law. McIntyre J. merely used the offence of kidnapping as an
example. As such, this observation is obiter. (See R. v. Henry,
2005 SCC 76, [2005] 3 S.C.R. 609, at para. 57).
[56]
In Bell, Dickson J., concurring,
concluded that the offence of importing a narcotic into Canada is not “over and
done with” until the goods have reached their final destination in Canada (p.
481). While his view in that respect was not shared by the majority, Dickson
J.’s analysis helps to shed light on the second issue in this appeal: party
liability. It is to that issue that I now turn.
VIII. Issue 2 ― Party Liability
[57]
Section 21(1) of the Code reads:
21. (1) [Parties to offence] Every one is a party to an offence who
(a) actually
commits it;
(b) does
or omits to do anything for the
purpose of aiding any person to commit it; or
(c) abets any person in committing it.
[58]
Under s. 21(1), a person is criminally liable,
as a party to an offence, if that person, having the requisite intent, plays
one of the three enumerated roles in the offence — principal, aider or abettor.
An individual will bear the same responsibility for the offence regardless of
which particular role he or she played: R. v. Thatcher, [1987] 1 S.C.R.
652, at pp. 689-90. As this Court recently explained in R. v. Briscoe, 2010
SCC 13, [2010] 1 S.C.R. 411, a person becomes a party to an offence when that
person — armed with knowledge of the
principal’s intention to commit the crime and with the intention of assisting
the principal in its commission — does (or, in some circumstances, omits to do)
something that assists or encourages the principal in the commission of the
offence (paras. 14-18).
[59]
In my view, the well-established principles of
s. 21(1) criminal liability apply with equal force to continuing offences that
have been completed in law but not in fact. In particular, 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.
[60]
Applying that principle to this case, once it is
understood that kidnapping is an aggravated form of unlawful confinement, which
continues until the victim is freed, there is no reason in law or logic why a
person who learns that the victim has been kidnapped and nonetheless chooses to
participate in the kidnapping enterprise, should not be found liable as a party
to the offence of kidnapping under s. 21(1) of the Code .
[61]
A series of appellate decisions are instructive
in this regard. The Ontario and Nova Scotia Courts of Appeal, having found
that narcotics importation was a continuing offence, held that a person could
be charged as a party to the offence under s. 21(1) at any point from the time
the goods entered Canada until they reached the final destination, even though
the offence could be considered complete in law at the moment the goods had
crossed the border: R. v. Hijazi (1974), 20 C.C.C. (2d) 183
(Ont. C.A.); R. v. Whynott (1975),
12 N.S.R. (2d) 231 (S.C. (App. Div.)); R. v. Tanney (1976), 31
C.C.C. (2d) 445 (Ont. C.A.). In Bell, the majority cast doubt on these
decisions by adopting a narrow construction of the term “import” in s. 5 of the
Narcotic Control Act. But the majority decision in Bell does not
detract from the general principle articulated in the case law that a person
who chooses to engage in a continuing offence with full knowledge of the
offence can be held responsible as party to that offence under s. 21(1) of the Code .
[62]
In his concurring opinion in Bell,
Dickson J. relied on these appellate decisions in finding that the importation
offence was not “over and done with” and that criminal liability could be
incurred as long as the offence was ongoing in fact. As Dickson J. held:
To
“actually commit” importing, an accused must bring in, or cause to be brought
in, to Canada, goods from a foreign country; this, by definition, necessitates
crossing the Canadian border. Someone who becomes involved only after the
border crossing, however, may be aiding and abetting a person bringing the
goods from outside Canada to a given destination inside Canada. [Emphasis
added; pp. 478-79.]
Therefore, although not a party at the
time the offence was initiated (by the principal(s)), a person may become a
party to the offence as long as the offence is not “over and done with”.
[63]
Applying this principle to the present context,
once it is accepted that the crime of kidnapping continues until the victim is
freed, 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) .
IX. Application
[64]
On the appellant’s thesis, once Mr. McMynn had
been forcibly apprehended and taken away, the offence of kidnapping was spent
and his abductors faced a possible life sentence. In contrast, Mr. McMynn’s
ensuing eight-day ordeal in captivity would not be considered as part of the
kidnapping charge. It would, instead, be governed by the lesser offence of
unlawful confinement for which a maximum penalty of 10-years’ imprisonment
could be imposed if the Crown proceeded by way of indictment.
[65]
This case illustrates why it would be
incongruous to view the worst part of Mr. McMynn’s ordeal (his eight days in
captivity) as a separate and less serious offence than the ordeal he underwent
in the few moments it took for his captors to apprehend and remove him from his
usual surroundings.
[66]
Parliament intended no such thing. Under s.
279(1) of the Code , the offence of kidnapping was complete in law as
soon as Mr. McMynn’s abductors had forcibly apprehended and taken him away —
assuming that in doing so it was their intention to keep him confined against
his will.
[67]
But, as I have mentioned before, just because
the offence was complete in law at the moment of the taking does not mean that
it was also complete in fact. Mr. McMynn’s unlawful confinement following the
taking continued for the next eight days. The kidnapping came to an end when he
was set free by the police. Put differently, Mr. McMynn’s status as a victim
of a kidnapping did not change during his eight days of captivity.
[68]
I agree with Finch C.J.B.C. that for purposes of
s. 21(1) , the appellant’s participation in the confinement of Mr. McMynn
satisfied the actus reus component of the offence of kidnapping (para. 65).
In this case, accepting that the appellant was initially unaware of and took no
part in the taking and carrying away of Mr. McMynn, he became aware of it while
Mr. McMynn remained confined against his will and chose thereafter to take part
in the kidnapping enterprise.
[69]
The evidence in this regard, as found by the
trial judge, is overwhelming. First, the appellant was present in all three
houses in which Mr. McMynn was held captive. Second, the appellant was one of
Mr. McMynn’s captors and was aware that Mr. McMynn was being held with a view
to obtaining a ransom. Indeed, the trial judge was satisfied that the
appellant and one of his co-accused had threatened to kill Mr. McMynn if the
ransom was not paid. Third, the appellant had purchased duct tape and a tarp
four days before the police rescued Mr. McMynn. Fourth, the appellant was
arrested in the third confinement house when the police eventually freed Mr.
McMynn. Finally, while the trial judge was not satisfied that the appellant
had physically moved Mr. McMynn from house to house during the period of
confinement, he did find that the appellant had full knowledge of those
movements.
[70]
Given the trial judge’s findings, I agree with
Finch C.J.B.C. that the appellant “would have had to be wilfully blind not to
know that [Mr.] McMynn had been taken and was being held against his will in
all three houses” (para. 67). The trial judge’s findings in that regard can
give rise to no other rational conclusion. The requisite mens rea element
under s. 21(1) was met.
[71]
The trial judge nevertheless acquitted the
appellant of kidnapping because he considered movement to be an essential
element of kidnapping and was not satisfied that the appellant had physically
participated in moving Mr. McMynn from house to house to justify a guilty
verdict for kidnapping (paras. 3, 345 and 375). With respect, I cannot agree.
Movement, of course, is what distinguishes kidnapping from unlawful confinement
and makes kidnapping an aggravated form of unlawful confinement. But
kidnapping, as discussed above, is a continuing offence. It began when Mr. McMynn was abducted by force
from his car and ended when he was freed. Mr. McMynn was not kidnapped and
confined at house 1, then kidnapped again upon being moved to house 2 and then
kidnapped a third time upon being moved to house 3. To treat what occurred
here as three separate kidnappings and three separate cases of unlawful
confinement is, in my respectful view, illogical and further underscores why
kidnapping should be treated as a continuing offence.
[72]
In short, the appellant joined the kidnapping
enterprise while the confinement of the victim was still underway. He did so
with the intent to aid the kidnappers and with the knowledge that Mr. McMynn
was a victim of kidnapping — or, at a minimum, he was wilfully blind to that
fact. The appellant took steps, of his own free will, to assist the kidnappers
and further their objectives. By doing so, he made himself a party to the
offence of kidnapping under s. 21(1) of the Code .
[73]
For those reasons, I would dismiss the appeal.
Appeal dismissed.
Solicitors for the
appellant: Howard Rubin, Q.C., North Vancouver; Chandra L.
Corriveau, Burnaby.
Solicitor
for the respondent: Attorney General of British Columbia, Vancouver.