R. v. Lahaie, 2019 ONCA 899
[24] In Magoon, at para. 64, the Supreme Court stated that “[u]nder s. 279(2) of the Criminal Code, the Crown must establish that (1) the accused confined the victim, and (2) the confinement was unlawful.” At para. 72, the court concluded:
There is no doubt that [the deceased child] was confined on Sunday. She was coercively restrained and directed contrary to her wishes. And the confinement was clearly unlawful. The acts of “discipline” were grossly disproportionate, cruel, degrading, deliberately harmful, and far exceeded any acceptable form of parenting. [Emphasis added.]
[25] These passages suggest that the lack of consent is not a separate component of the actus reus, but is instead an aspect of the component of confinement. However, there is also authority suggesting that lack of consent is an aspect of the component of lawful authority: see e.g. David Watt, Watt’s Manual of Criminal Instructions, 2nd ed. (Toronto: Carswell, 2015), at p. 885.
[26] The matter need not be resolved for purposes of this appeal. Whether it is subsumed within one or both of the components of confinement and unlawfulness, there is no doubt that a lack of consent is an element of the offence of unlawful confinement that the Crown must prove beyond a reasonable doubt: R. v. Gough, (1985) 18 C.C.C. (3d) 454 (Ont. C.A.), at p. 458. This appeal succeeds because the jury was not adequately informed of this requirement.
[45] As the trial judge noted, there was no doubt that the complainants were physically restrained — all parties accepted that they were tied with zip ties following their arrest. The question was whether the complainants consented to remaining confined, and this issue needed to be specifically addressed and explained by the trial judge.
[46] Although the trial judge referred to this issue, read as a whole his instructions focused on the wrong issue. Even if the appellants failed to call the police forthwith — an issue that went to the continuing lawfulness of the complainants’ arrest — their confinement of the complainants was unlawful only if the complainants did not consent to it. Consent in no way depended on whether or when the appellants called the police. If the appellants’ evidence were accepted, or if it at least left the jury in a state of reasonable doubt as to whether the complainants consented, they were entitled to be acquitted, and any concern about their failure to call the police forthwith was irrelevant.
[51] Again, this summary is erroneous because it ignores the fact that the jury was required to acquit the appellants if they had a reasonable doubt as to whether the complainants consented to their continued confinement. It was incumbent on the trial judge to correct the Crown’s erroneous remarks, lest the jury be left with a misunderstanding of the law, but he failed to do so.
[52] Moreover, Crown counsel told the jury that the Lahaies were guilty of unlawful confinement even on the defence version of the facts. But as the trial judge put it in his jury instruction, Sylvain Lahaie’s version of the facts was that he decided not to call the police because the complainants begged him not to. He claimed that he specifically asked the complainants if they were proposing that they be cut loose on a promise that they would return and pay for what they had previously stolen. He said that the complainants confirmed this was not what they were proposing, and they instead proposed that their parents be called, and compensation paid.
[53] On this version of events, the appellants would not be guilty of unlawful confinement because the complainants consented to their continued confinement. The trial judge should have corrected the Crown’s assertion to the contrary and made it clear that it is the Crown’s obligation to prove lack of consent beyond a reasonable doubt: the appellants were not guilty of unlawful confinement if the jury found, or had a reasonable doubt about whether, the complainants consented.
[55] In summary, the consent of the complainants was a live issue on these facts. The combination of the erroneous statements in the Crown’s closing submissions, the trial judge’s failure to correct them, and the errors in the trial judge’s instructions gives rise to a real risk that the jury may have convicted the appellants of unlawful confinement despite having a reasonable doubt about whether the complainants consented to their continuing confinement. The absence of an objection to the charge by defence counsel is no reason to deny relief for the errors in this case. The convictions cannot stand.
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