R. v. Munson, 2003 SKCA 28
[54] The judge then turned to the offence of forcible confinement. He read s. 279(2) to the jury, and explained the elements of the offence. The element with which the appellants are concerned in this ground of appeal is that the confinement must be without lawful authority. This is what the judge said in his charge with respect to this element at p. 529:
The fourth ingredient that the Crown must prove is that the restraint was without lawful authority. Lawful authority means just what it says, authority granted by law. For example, a police officer has a lawful authority to restrain someone he or she has arrested however, the lawful authority ends when the reason for the arrest ceases and any unnecessary further confinement is unlawful, unless consented to by the complainant. If the restraint is or becomes unlawful, then the restraint is without lawful authority.
[57] Sections 495 to 498 apply to situations where a person is arrested and then detained in circumstances where he has been charged with an offence or the officers involved intend to charge him with an offence. They are concerned with requiring pre-trial release of the person charged or to be charged, except in the very limited circumstances set out therein. They do not apply in circumstances where the arresting and detaining officers have decided not to charge the person. These sections of the Code do not speak to such circumstances and have no application to them. They do not and cannot, if there is no intention to charge the person with an offence, provide authority to continue to detain the person, at least in the circumstances of this case. Nor do they provide any immunity from prosecution for criminal offences which may occur as a result of detention without lawful authority.
[58] It is worth noting that the only reported authorities respecting s. 495(3) and its predecessor provisions seem to indicate that the purpose of the provision is to prevent persons escaping conviction for resisting arrest if it later transpires that the person was not convicted of the offence for which he was arrested: R. v. Adams, 1972 CanLII 867 (SK CA), [1973] 2 W.W.R. 371 (Sask. C.A.); R. v. McKibbon (1973), 1973 CanLII 1395 (BC CA), 12 C.C.C. (2d) 66 (B.C.C.A.); R. v. Fuhr, 1975 CanLII 1520 (AB CA), [1975] 4 W.W.R. 403 (Alta. C.A.); R. v. Bunn (1986), 1986 CanLII 4735 (MB KB), 29 C.C.C. (3d) 133 (Man. Q.B.); and R. v. Delong (1989), 1989 CanLII 7164 (ON CA), 47 C.C.C. (3d) 402 (Ont. C.A.). That is to say, the purpose is to discourage persons resisting arrest where they believe they will not be convicted of the offence for which they are being arrested.
[59] As to the argument that there is no offence of failing to release immediately upon a decision not to charge, that is true, but it begs the question. The offence of forcible confinement does exist, and the issue to be put to the jury was whether they were satisfied beyond a reasonable doubt, on the evidence before them, that the appellants had committed the offence of forcible confinement.
[60] The only element of the offence with which the appellants took issue was the existence or non-existence of any lawful authority to continue to detain Night after they decided not to charge him. The direction of the judge in this respect, quoted above, was correct. While one can conceive of arguments that continued detention may be necessary in certain circumstances for purposes such as the safety of the person detained, or the safety of others, even where no charges are contemplated, no such circumstances existed here. In this case the purpose of the police officers in continuing to detain Night was to convey him to a remote place from which he would be forced to walk home inadequately dressed for the winter weather. Any argument that the law allows this is unacceptable.
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