Graham McMynn was kidnapped at gunpoint. He was held for eight days in three different houses. Sam Tuan Vu was in each of those houses during that time.
Vu along with four others were charged with kidnapping and unlawful confinement. Vu was convicted of confinement but acquitted of kidnapping: 2008 BCSC 1376. The Crown appealed. The British Columbia Court of Appeal substituted a verdict of kidnapping: 2011 BCCA 112. Vu appealed to the Supreme Court. That appeal was dismissed: 2012 SCC 40.
McMynn was kidnapped on April 4, 2006. He was intercepted by two cars. He was taken at gunpoint by several men. McMynn was taken to a van and then transported to a house. He was subsequently taken to two other houses.
There was never any evidence that Vu was part of the initial taking of McMynn. However, when the police raided the home where they found McMynn, eight days after he was taken, they found Vu. Subsequently fingerprint, footprint and DNA evidence connected Vu to all three houses where McMynn was held. While McMynn was held in those houses he was variously tied up, threatened and blindfolded.
At trial Vu was acquitted of kidnapping. The trial judge held that kidnapping was an ongoing offence and that it involved not only the initial taking but also the subsequent movement of McMynn. However, the trial judge held that although Vu had knowledge of the movements, he was not physically involved therewith. Accordingly, the trial judge acquitted Vu of kidnapping.
The Court of Appeal held that kidnapping was an ongoing offence which involved both the initial taking and subsequent confinement of the victim. In its opinion, pursuant to section 21(1), Vu became a party to the subsequent confinement and therefore a party to the more serious offence of kidnapping as he had knowledge that a kidnapping occurred and the confinement was a result thereof [para 18].
On appeal Vu raised two issues. First, he argued that kidnapping is not an ongoing offence; Vu asserted that while confinement is an ongoing offence, kidnapping ends the moment the victim is taken. Second, if kidnapping is a continuing offence, Vu argued that he could not become a party to it, pursuant to section 21(1), as he was not involved in the initial phase of it.
With respect to the first issue, Moldaver J, writing for the Court, considered kidnapping at common law, its legislative history and modern jurisprudence. With respect to its legislative history, Moldaver J concluded:
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 [para 41].
In the end Moldave J concluded, as noted in paragraph 41, that kidnapping is an ongoing offence; this interpretation is “consonant with the intention of Parliament…the crime’s common law origins and legislative history…and common sense” [para 25]. Until the confinement ends the offence of kidnapping continues.
With respect to the second issue, Moldaver J concluded that Vu did become a party to kidnapping in the circumstances of the present case.
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.
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 [paras 59-60].