Party liability for continuing offences

R. v. Vu, 2012 SCC 40 was just released.  The case stands for several principles.

First, kidnapping is a continuing offence that includes the victim’s ensuing confinement.  So long as the victim of the kidnapping remains unlawfully confined, the crime of kidnapping continues. 

Second, 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.  The well-established principles of party liability apply with equal force to continuing offences that have been completed in law but not in fact.  The crime of kidnapping continues until the victim is freed, and a person who chooses to participate in the victim’s confinement — after having learned that the victim has been kidnapped — may be held responsible for the offence of kidnapping.

The Court writes:

[58]                          Under s. 21(1), a person is criminally liable, as a party to an offence, if that person, having the requisite intent, plays one of the three enumerated roles in the offence — principal, aider or abettor.  An individual will bear the same responsibility for the offence regardless of which particular role he or she played: R. v. Thatcher, [1987] 1 S.C.R. 652, at pp. 689-90.  As this Court recently explained in R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, a person becomes a party to an offence when that person — armed with knowledge of the principal’s intention to commit the crime and with the intention of assisting the principal in its commission — does (or, in some circumstances, omits to do) something that assists or encourages the principal in the commission of the offence (paras. 14-18).

[59]                          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.

[60]                          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.

[61]                          A series of appellate decisions are instructive in this regard.  The Ontario and Nova Scotia Courts of Appeal, having found that narcotics importation was a continuing offence, held that a person could be charged as a party to the offence under s. 21(1) at any point from the time the goods entered Canada until they reached the final destination, even though the offence could be considered complete in law at the moment the goods had crossed the border:  R. v. Hijazi (1974), 20 C.C.C. (2d) 183, (Ont. C.A.); R. v. Whynott (1975), 12 N.S.R. (2d) 231 (S.C. (App. Div.)); R. v. Tanney (1976), 31 C.C.C. (2d) 445 (Ont. C.A.).  In Bell, the majority cast doubt on these decisions by adopting a narrow construction of the term “import” in s. 5 of the Narcotic Control Act.  But the majority decision in Bell does not detract from the general principle articulated in the case law that a person who chooses to engage in a continuing offence with full knowledge of the offence can be held responsible as party to that offence under s. 21(1) of the Code.

[62]                          In his concurring opinion in Bell, Dickson J. relied on these appellate decisions in finding that the importation offence was not “over and done with” and that criminal liability could be incurred as long as the offence was ongoing in fact.  As Dickson J. held:

To “actually commit” importing, an accused must bring in, or cause to be brought in, to Canada, goods from a foreign country; this, by definition, necessitates crossing the Canadian border.  Someone who becomes involved only after the border crossing, however, may be aiding and abetting a person bringing the goods from outside Canada to a given destination inside Canada.  [Emphasis added; pp. 478-79.]

Therefore, although not a party at the time the offence was initiated (by the principal(s)), a person may become a party to the offence as long as the offence is not “over and done with”.