R. v. Corbett, 2004 BCCA 378
[12] It seems to me that those comments of the Saskatchewan Court of Appeal are apposite in the present case. While the appellant and his colleague, Mr. Davies, may have been entitled to restrain the complainant from an attack upon the person or the possessions of the appellant at the residence after she had arrived and engaged in assaultive behaviour, the continuing confinement of the complainant at the residence for several hours grossly exceeded any permissible bounds of self-help or purported exercise of authority under s. 494 of the Code. There is a large measure of unreality, it seems to me, in asserting that this was somehow a proceeding that could be said to be encompassed within the term "lawful authority" contained in the relevant Code section. Counsel for the appellant argues that because "without lawful authority" is a constituent element of the offence, it was for the jury to pass on this and not for the trial judge to remove what was said to be this element of the offence from their consideration. I think an answer to this submission can be found in the following words of Fish J. giving the judgment of the court in the case of R. v. Fontaine, 2004 SCC 27, at para. 56:
... Like all other disputed issues, however, defences of this sort will only be left to the jury where a sufficient evidential basis is found to exist. That foundation cannot be said to exist where its only constituent elements are of a tenuous, trifling, insignificant or manifestly unsubstantive nature: there must be evidence in the record upon which a properly instructed jury, acting judicially, could entertain a reasonable doubt as to the defence that has been raised.
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