Defining the Legal Limits of Kidnapping: R v Vu

Statutory interpretation is undoubtedly one of the basic tenets of the judiciary in most, if not all, legal systems. Often, much thought and expression is spent on pinpointing the intent of lawmakers; this is to ensure that the courts can enforce law to reflect Parliament’s concerns, as well as to balance the interests of the parties at trial, in addition to protecting societal interests. In the case of criminal law, specificity in the definitions of criminal acts often means pinpointing a tangible meaning for the crime at hand: one that enmeshes common law principles, encompasses principles of fairness and justice, and does not overreach or under-define the elements of the crime.

As a case in point, the Supreme Court of Canada (“SCC”) grappled with providing a precise definition for the crime of kidnapping, by first differentiating it from the less serious crime of unlawful or forced confinement, and then deciding what party liability would apply to an accused who was not the principal perpetuator of the crime, in the recently decided judgment of R v Vu, [2012] 2 SCR 411 [Vu].

Facts

At the SCC, the case was an appeal from the British Columbia Court of Appeal (“BCCA”), where the facts were not in dispute. On April 4, 2006, Graham McMynn’s vehicle was intercepted by two others, after which he was told to get into one of the cars. Then, McMynn was driven to a van, which in turn took him to the first of the three locations where he would be confined for the next 8 days. Three days later, McMynn was moved to a second house, and another 3-4 days after that, either on the 10th or 11th of April, 2006, he was moved to the third and final house of his imprisonment. McMynn’s ordeal ended when he was finally freed by the police on April 12, 2006.

Among those charged in the crime of kidnapping McMynn, as per s.279(1) of the Criminal Code, RSC 1985, c C-46 [CC], was Sam Tuan Vu, who, while being present at all three sites of confinement, was not involved in the initial operation to intercept and procure McMynn. Further, the evidence showed that Vu was actively involved in confining McMynn at all three sites, as well as threatening him with consequences if his ransom went unpaid (para 69). While Vu’s involvement in McMynn’s confinement was not in dispute, Vu’s lawyers contended that his lack of involvement in the initial stages (which constituted the actual “kidnapping” and abduction of McMynn) made his charge of kidnapping wrong. Therefore, Vu should have been charged with the lesser offense of unlawful or forceful confinement, as per s.279(2) of the CC. As defined in the statute, kidnapping carries a maximum sentence of life imprisonment, while the latter leads to a ten-year jail term at the most.

Issues

After examining the decisions of the trial judge and the BCCA, the SCC framed the appeal to consist of two primary issues. First, whether the offence of kidnapping as per s.279(1) of the CC constituted a continuing offence, i.e. if the crime of kidnapping continued even after the initial whisking away of McMynn, making the entire events of the eight days a part of the kidnapping offence. If the first issue was so deemed, only then would the SCC determine what Vu’s party liability to the crime would be (as per s.21(1) of the CC). This was because he was not initially a part of the kidnapping, but later became aware of the crime, and chose to participate knowingly in the “kidnapping enterprise” (para 23).

Analysis

The SCC’s desire to provide a complete and clear answer to the question was apparent in its analysis, which began with an examination of the definition of kidnapping historically in the common law. Using case authorities (paras 26-33), Justice Moldaver, writing for the majority, first considered the difference between the crime of kidnapping and that of forcible, or unlawful confinement. The common law pointed to the conclusion that kidnapping was a part of the general crime of unlawful confinement, but stood at the higher, most severe range of the crime. The defining factor, according to Justice Moldaver (which was also something that had come up repeatedly both at trial and at the BCCA), was the “element of movement” (para 31).

Simply put, the common law has historically deemed kidnapping to be more serious than unlawful confinement because the victim in the former was transported and physically carried away to a location that was both unfamiliar and unsafe: “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” (para 31). In Vu, Justice Moldaver deemed kidnapping to be an aggravated form of unlawful confinement. In his view, the elevation of kidnapping to the level of aggravation came from the movement element. By moving a person from beyond the reach of the law, it became harder to find the person, since “the range of possible locations where the victim might be held captive increase[d] exponentially and the likelihood that the victim [would] be found and rescued diminishe[d] accordingly” (para 32).

From this point on, once it had been accepted that kidnapping was a more serious form of unlawful confinement, Justice Moldaver stated that holding the crime a continuing offence was only a logical conclusion to the argument. While admitting that Parliament had never given a set definition of “kidnapping,” the increased risk that the element of movement causes to the life and safety of a victim, coupled with the fact that the crime carries a maximum penalty of life imprisonment, led Justice Moldaver to think that Parliament’s intentions were quite clear: the crime of kidnapping began at the moment when the victim was whisked away and moved to a location against his or her will, and continued until this entire situation as a whole had been terminated or resolved. In this case, the kidnapping began when McMynn’s car was intercepted, and he was transported to the first house against his own will; it ended when the police freed him, eight days later, from the third house. The SCC thus held that the initial act of nabbing McMynn could not be held to be any more heinous than making him live in forced confinement for eight days after, and thus, criminal liability could not be divided amongst Vu and his compatriots on such grounds. The Justices of the SCC concurred with an Australian case in this regard, which stated, “[o]nce it has been established that a person has been ‘taken’…. the ‘taking’ continues until the compulsion ceases” (para 50, Davis v R [2006] NSWCCA 392 (AustLII)).

After establishing that kidnapping was thus indeed a continuing offence, the SCC then turned to the determination of Vu’s party liability to the offence. It held that once Vu became aware of the fact that McMynn had been kidnapped, his decision to participate in the continuation of the crime, by aiding and abetting the principal perpetuators in confining McMynn in Houses 1, 2 and 3 was enough to extend party liability of kidnapping to Vu. Even if he had not participated in the initial kidnapping, held Justice Moldaver, Vu’s actions would have constituted willful blindness, and in any case, the factual evidence establishing Vu’s involvement was overwhelming enough to hold him guilty of the crime of kidnapping, as per the Court’s definition of kidnapping in this case.

Since the element of movement is a crucial distinguishing factor between the crimes of kidnapping and forcible confinement, the SCC thought it worthwhile to clearly demarcate what “movement” meant as well. In Vu, the fact that Vu did not physically participate in moving McMynn in between locations was held to be obiter; his presence at all three locations, along with his role in keeping McMynn at all three locations against his will, was enough to establish Vu’s acting out within the definition of the movement element. Justice Moldaver thus clarified that movement does not have to involve physical participation, and that mere knowledge of the movement is enough to establish party liability under the offence of kidnapping. The end result of the case then, hopefully provides clarification on the status of the crime as a whole, as well as of its individual elements.