The issue on this appeal was the elements of the actus reus of kidnapping, and, specifically, whether the offence is completed after the victim is taken control of and moved to another place, or whether it is a “continuing” offence which is not completed until the person is released. The accused was charged along with several other individuals with kidnapping and unlawful confinement in relation to the taking at gunpoint of the son of a wealthy Vancouver businessman and his subsequent confinement. The victim was initially taken to a residence in Vancouver, and was moved to two other residences during the eight-day period before he was rescued by police. He was only able to identify those present in the residences by voice. On the basis of the victim’s testimony and circumstantial evidence placing him at the three residences, the accused was convicted at trial of unlawful confinement, but acquitted of kidnapping, as the trial judge found there was insufficient evidence to conclude that he had participated in the taking of the victim or his movement between the residences. He found only that based on his presence at the residences, the accused had been aware of the confinement and movement of the victim.
The Crown appealed from the acquittal of kidnapping, arguing that the offence of kidnapping is not completed after the taking of the victim and his movement to another location, but that it continues during his confinement. On this basis, it submitted that the accused should have been convicted as a party to the kidnapping offence given his knowledge of the wrongdoing against the victim and of his movement between the residences, and his assistance in the confinement. The Court agreed, concluding that participation in the taking or movement of the victim was not necessary for conviction as a party to kidnapping. The majority found that although the offence of kidnapping could be complete in law after a victim is taken and moved to another location against his will (i.e.: the actus reus of the offence will then be established), it was not necessarily complete in fact. It held that this did not occur until the victim was released or ceased to withhold his consent to the confinement. The accused’s knowledge of the taking and movement of the victim, and his assistance in the victim’s confinement, was sufficient to conclude that he aided in the commission of the offence of kidnapping. The Court entered a conviction on the kidnapping count and a stay on the unlawful confinement count in accordance with the principle in R. v. Kienapple.
Prowse J.A. concurred in the result but for different reasons. In particular, she did not find it necessary to decide that kidnapping was in all circumstances a continuing offence, but that in this case, it was proper to consider the kidnapping a continuing transaction which encompassed the initial taking of the victim and his subsequent movement from house to house.
This appeal was heard by the Supreme Court of Canada in March 2012, but the decision has not yet been rendered.
March 11, 2011
Link to Decision
Julia Wilkes
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