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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
enterprise.
(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
offence.
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
Commission).
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.

2013]

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