About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

60 Crim. L.Q. 179 (2013-2014)
An Analysis of the Vu Decision

handle is hein.journals/clwqrty60 and id is 191 raw text is: Notes and Comments

Appellant would be governed by the lesser offence of unlawful
confinement for which a maximum penalty of 10 years'
imprisonment could be imposed.21 This, in his estimation, would
be incongruous in view of the fact that the worst part of Mr.
McMynn's ordeal (his eight days in captivity) would be a less serious
offence than the ordeal he underwent in a few moments. . .22
An Analysis of the Vu Decision
Kidnapping is an offence that has long vexed courts and scholars
alike.23 In Canada, much of the confusion surrounding the offence is
owed to the fact kidnapping is not defined in the Criminal Code. As a
result, the ambit of the offence has been divined through common law
precedent.24 In this case, by adopting a continuing transaction
theory, the Supreme Court has managed to settle a troublesome
question that has arisen from time to time in kidnapping cases. On the
other hand, as I suggest below, there are features of the Court's
reasons in Vu that are open to criticism, particularly as these relate to
extending party liability to latecomers to the kidnapping
(a) Kidnapping as a Continuing Act
On the face of his reasons, Justice Moldaver's adoption of the
continuing offence theory seems eminently sensible. He reasons that
since kidnapping is unlawful confinement combined with an
unlawful taking, and since unlawful confinement is a continuing
offence, it is virtually axiomatic that kidnapping is also a
continuing offence.25 Indeed, if an unlawful confinement were an
included offence or an element of kidnapping, then there would be a
logical symmetry in finding that kidnapping is also a continuing
A significant problem with the Court's conclusions in Vui is that it
21.  Ibid., at para. 64.
22.  Ibid., at para. 65.
23. See e.g., John Lambert, Kidnapping and False Imprisonment at Common Law
(1979) 10 Cambrian L. Rev. 20 (Lambert); John L. Diamond Kidnapping: A
Modern Definition (1985), 13 Am. J. Crim. L. 1; and see Simplification of
the Criminal Law: Kidnapping - A Consultation Paper The Law
Commission of England and Wales (Consultation Paper No. 200) (Law
24. See e.g, R. v. Oakley (1977), 36 C.C.C. (2d) 436, 39 C.R.N.S. 105, [1977] 4
W.W.R. 716 (Alta. C.A.) and R. v. Tremblay (1997), 117 C.C.C. (3d) 86,
1997 CarswellQue 460, 1997 CarswellQue 4689 (Que. C.A.).
25. Vu. supra, footnote 1, at para. 33.



What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most