



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lahaie, 2019 ONCA 899

DATE: 20191114

DOCKET: C57695 and C57696

Watt, Huscroft and Jamal JJ.A.

Docket:
    C57695

BETWEEN

Her Majesty the Queen

Respondent

and

Sylvain Lahaie

Appellant

Docket:
    C57696

AND BETWEEN

Her Majesty the Queen

Respondent

and

Olga Lahaie

Appellant

Andrew Menchynski, for the appellant Sylvain Lahaie

Cristina Candea, for the appellant Olga Lahaie

Michael Perlin, for the respondent

Heard: August 22, 2019

On appeal from the convictions entered on May 6, 2013 and
    the sentences imposed on September 6, 2013 by Justice

Gordon D.

Lemon
    of the Superior Court of Justice, sitting with a jury.

Huscroft J.A.:

[1]

This is an unusual case.

[2]

What began with a lawful citizens arrest by homeowners defending their
    property ended with their conviction for unlawful confinement of the two young
    men whom they caught stealing from them.

[3]

The appellant homeowners, Sylvain and Olga Lahaie, caught the
    complainants, Paul Taylor and James Reid, while they were in the midst of stealing
    their property, made a citizens arrest, and bound them with zip ties. Instead
    of calling the police immediately, they called the complainants parents, who
    came to the appellants property some time later. The police were called only after
    the complainants parents arrived, by which time the complainants were no
    longer bound.

[4]

The complainants were charged with theft, but serious charges were also
    brought against the appellants. They were charged with pointing a firearm,
    extortion, and unlawful confinement. Sylvain Lahaie was also charged with
    assault. Following a jury trial in 2013, the appellants were found guilty of
    unlawful confinement but acquitted of all other charges. They received
    suspended sentences.

[5]

The appellants appeal from their conviction. Sylvain Lahaie informed the
    court that he abandoned his appeal from sentence.

[6]

The appellants argue that the trial judge erred in instructing the jury
    concerning the requirements of unlawful confinement. The appellants also contend
    that the jury should have been instructed that they could acquit based on
    self-defence and defence of their property.

[7]

I have concluded that a combination of errors in Crown counsels closing
    address, the trial judges failure to correct those errors, and errors in the
    trial judges instructions caused the jury to be charged inadequately on the
    key issue in this case  whether the complainants consented to their
    confinement. As a result, the appellants conviction cannot stand. There is no
    need to consider the alternative grounds of appeal, namely, self-defence and
    defence of property.

[8]

I would allow the appeal and order a new trial for the reasons that
    follow.

BACKGROUND

[9]

The complainants unlawfully entered the appellants secluded, rural property
    on several occasions prior to the events in question. On August 14, 2008, the
    complainants came to the appellants property intending to steal from them for
    the third night in a row.

[10]

The theft was brazen: the complainants simply drove their van onto the
    appellants property in the middle of the night and started helping themselves
    to a pile of stainless steel. They planned to sell the steel to a scrap metal
    dealer, as they had done on prior occasions.

[11]

The complainants were in the midst of loading their van when the
    appellants caught and confined them. The circumstances of the confinement, and
    what followed, were disputed at trial.

[12]

The complainants testified that the appellants confronted them with a
    firearm, held them hostage, assaulted them, and demanded money from them in
    exchange for not calling the police. The appellants testified that they had no
    firearms with them when they arrested the complainants, denied that they
    assaulted the complainants, and denied that any extortion occurred. According
    to the appellants, they did not call the police after arresting the
    complainants because the complainants pleaded with them not to do so, offering
    to pay compensation for their previous thefts. The appellants claimed that Sylvain
    Lahaie asked whether the complainants were proposing they be cut loose on a
    promise of repayment, and the complainants confirmed that was not what they
    were proposing. Reid suggested the van be left as collateral, Taylor eventually
    agreed, and the complainants asked that their parents be called.

[13]

The appellants called the complainants parents and released Taylor after
    his father arrived on the scene. Taylor left the appellants property with his
    father on the understanding that they were going to return with money for the
    appellants. Reids mother also attended the property and then left to go to the
    bank. Reid remained at the property. Taylor returned with his father and mother.
    His mother wanted to call the police. The appellants called the police and the
    complainants were arrested.

[14]

The Ontario Provincial Police discovered that the appellants were
    registered gun owners and obtained search warrants for their property. They
    seized a Glock handgun, arrested the appellants, and charged them with pointing
    a firearm, extortion, assault (against Sylvain Lahaie only), and unlawful
    confinement. The jury convicted the appellants of unlawful confinement, but acquitted
    them of all of the other charges.

The
Criminal Code


[15]

The events giving rise to the appellants conviction occurred in 2008.
    The relevant provisions of the
Criminal Code
, R.S.C. 1985, c. C-46, then
    in force, provided as follows:

279

Forcible confinement

(2) Every one who, without lawful authority,
    confines, imprisons or forcibly seizes another person is guilty of

(a) an indictable offence and liable to
    imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction
    and liable to imprisonment for a term not exceeding eighteen months.



Arrest without warrant by any person

494 (1) Any one may arrest without warrant

(a) a person whom he finds committing an
    indictable offence; or

(b) a person who, on reasonable grounds, he
    believes

(i) has committed a
    criminal offence, and

(ii) is escaping from
    and freshly pursued by persons who have lawful authority to arrest that person.

Arrest by owner, etc., of property

(2) Any one who is

(a) the owner or a person in lawful possession of
    property, or

(b) a person authorized by the owner or by a
    person in lawful possession of property,

may arrest without warrant a person whom he finds
    committing a criminal offence on or in relation to that property.

Delivery to peace officer

(3) Any one other than a peace officer who arrests a
    person without warrant shall forthwith deliver the person to a peace officer.

DISCUSSION

[16]

It is not disputed that the appellants arrest of the complainants was
    lawful under s. 494(1) of the
Criminal Code
, at least initially. The
    Crown concedes as much. The appeal centres on the continuing legality of the
    complainants confinement.

[17]

At trial, Crown counsel argued that the appellants confinement of the
    complainants became unlawful when they failed to deliver them to the police
    forthwith, as required by s. 494(3). It was common ground that this meant as
    soon as reasonably possible. The Crowns theory was that the appellants chose
    not to call the police for a period of several hours and attempted to extort
    money from the complainants at gunpoint during this time.

[18]

The appellants argued that the complainants persuaded them to call their
    parents, rather than the police, and agreed to remain bound until their parents
    arrived. According to the appellants, the complainants consented to their
    continuing confinement and as a result were not confined unlawfully.

[19]

These arguments do not meet up. On the Crowns argument, a lawful
    confinement became unlawful as a result of the appellants failure to deliver
    the complainants to the police forthwith, while on the appellants argument, a
    lawful confinement never became unlawful because the complainants consented to
    it continuing.

[20]

The problem stems from a lack of clarity concerning the relevance of consent
    to the complainants continuing confinement. As I will explain, the trial judge
    erred by failing to instruct the jury that if they had a reasonable doubt as to
    whether the complainants consented to their continued confinement, the
    appellants could not be found guilty of unlawful confinement.

The offence of unlawful confinement

[21]

The parties disagree about the role played by the absence of consent in the
actus reus
of the offence of unlawful confinement.

[22]

The appellants submit that the absence of consent to confinement is one
    of three components of the
actus reus
of unlawful confinement, citing
R.
    v. Niedermier
, 2005 BCCA 15, 193 C.C.C. (3d) 199, at para. 48, leave to
    appeal refused, [2005] S.C.C.A. No. 103. The British Columbia Court of Appeal
    described the three components as follows: (1) a confinement, (2) the
    confinement is without lawful authority, and (3) a lack of consent by the
    complainant to the confinement. Proof of the first two elements is
    objective; the third, subjective.

[23]

The Crown says that only the first two are components of the
actus
    reus
, and that the lack of consent requirement is subsumed under either or
    both of those components, citing the decision of the Supreme Court in
R. v. Magoon
,
    2018 SCC 14, [2018] 1 S.C.R. 309, at para. 64.

[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,
Watts 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.

The positions of the parties at trial

The defence

[27]

The defence theory was that the appellants did not call the police
    immediately because the complainants begged them not to do so. In other words,
    following what began as their lawful confinement pursuant to the citizens
    arrest, the complainants consented to their continued confinement while the
    appellants arranged for their parents to come. On this theory of events, the
    continued lawfulness of the complainants confinement did not depend on whether
    the police were called forthwith. Counsel for Sylvain Lahaie made the following
    point to the jury:

[A]lthough they  Paul Taylor and James Reid didnt necessarily
    consent to being bound, they complied with the demand and when they gave the
    number to, for the parents to be called, it was because of the proposal that
    they were offering. So, in my submission, that evidence supports the
    proposition that, in fact, from the circumstances that they were in at the
    time, they consented to that delay.
They consented to a
    delay of their being bound
. And the reason why that is important is
    because, in my submission,
subject to His Honours
    instructions on the point, you dont have an intentional confining or an
    unlawful confining if the [persons] involved are consenting to it
. And,
    in my submission, if you believe the evidence presented by Sylvain and Olga, it
    does support, in my submission, the proposition that
that
    delay was actually consented to
. [Emphasis added.]

Discussions following the
    defence address

[28]

In pre-charge discussions with the trial judge following defence
    counsels address, Crown counsel focused on the requirement that the appellants
    deliver the complainants to the police forthwith following their arrest of the
    complainants, without consideration of the separate issue of consent:

The question isnt was it reasonable for the confinement to
    continue without calling the police, because the Section 494 [arrest without
    warrant power] imposes a duty. They must call the police. There is a duty on
    them there.
Because the question is, did they fulfill
    their duty or not
.  [T]he question is, did they call the police quote
    at the first reasonable opportunity, or did they call the police reasonably
    soon in the circumstances. [Emphasis added.]

[29]

Crown counsel deprecated the defences consent argument, asserting that
    there was no air of reality to it:

At the very end of his submissions, I think [counsel for Sylvain
    Lahaie] suggested that, he suggested the defence of consent. Which is the first
    time that I had heard of that. And in my respectful submission, Your Honour,
    there is simply no air of reality to the defence of consent. It ought not to be
    left with them. Well, its not in your charge, but its just not available, in
    my submission.

[30]

Crown counsels reference to the defence of consent appears to reflect
    a misunderstanding of the relevance of consent to the offence of unlawful
    confinement. Consent was not a defence that required an air of reality in
    order to be put to the jury. On the contrary, the absence of consent was an
    essential part of the offence the Crown was required to prove beyond a reasonable
    doubt in order to prove unlawful confinement in the circumstances of this case.

[31]

The trial judge stated to Crown counsel that it would be a lawful
    confinement because they [the appellants] agreed with Taylor and Reid that they
    would work out this deal. However, Crown counsel insisted that its still not
    a lawful confinement because they failed in their duty [to deliver to the
    police forthwith]. The following exchange then occurred:

THE COURT:        Because they didnt go fast enough.

[CROWN]:             Right.

THE COURT:        But if the jury find that they acted
    forthwith, then they have a defence whether this idea of consent is in the air
    or not. Because they would have made a finding of fact that would make any
    consent irrelevant.



[THE COURT]:      You can think about that overnight, because
    you are going to plug that somewhere in to your address, and well see whether
    I really have to do that. But I dont see it at present.



THE COURT:        And I think the word consent was used
    almost like Mr. Lahaie used the word duress. It might have legal connotations
    in a technical fashion, but it really wasnt meant that way. Right? Here really
    just saying it was an agreement.

[32]

Counsel for Sylvain Lahaie interjected:

[COUNSEL FOR SYLVAIN LAHAIE]:      Your Honour, in my
    submission, in those circumstances, the fact that they would have agreed to the
    delay in having Stephen Taylor [Paul Taylors father] attend, in my submission,
    that would be a basis to say that they were consenting to the position that
    they were in.

THE COURT:        But the consent would only really matter to
    an assault. And they are not charged with assault.

[COUNSEL FOR SYLVAIN LAHAIE]:      No. But, for example,
    intentional confinement is defined with the, without consent. And, in fact,
    unlawful confinement. Its not unlawful if the person agrees to it.

THE COURT:        Right. They would only have agreed to it if
    the jury  the jury could only find that they agreed to it if the jury accepted
    the Lahaie evidence.

[COUNSEL FOR SYLVAIN LAHAIE]:      Absolutely.

THE COURT:        And if they accept the Lahaie evidence the
    defences that are front and centre kick in long before an analysis of consent.
    If my pessimistic estimates work out, you can tell me more about that at the
    end of tomorrow afternoon, part way through the Crowns address, and I can deal
    with it in my charge tomorrow night before I give it on Wednesday.

[33]

These exchanges reveal considerable confusion about the nature of the
    offence and the relevance of consent to its proof.

[34]

Counsel for Olga Lahaie addressed the jury following these discussions,
    but did not discuss the defence of consent in relation to the offence of
    unlawful confinement. Instead, he took the position that, in all of the
    circumstances, the police were in fact called forthwith.

The Crown

[35]

Crown counsel advised the court and counsel that he would be showing a
    PowerPoint presentation as part of his address. Counsel and the trial judge
    reviewed the presentation slides together in the absence of the jury and, among
    other issues, discussed Crown counsels statements on the slides regarding the requirement
    to contact the police forthwith.

[36]

One of the proposed slides stated: WHY THEY DIDNT CALL FORTHWITH
    DOESNT MATTER. In discussing this slide, Crown counsel said:

[The appellants] motivation for not calling [the police] is
    utterly irrelevant. In fact, I am not going to say this, but it goes to
    sentence. It doesnt go to anything else. The question of whether or not they
    did meet [the requirement of] forthwith is alive. But the question of why they
    did it isnt.

[37]

The trial judge challenged the Crowns position, stating that if it is
    as the Lahaies say, because the deal was offered to them, then why is a big
    part of all the circumstances. Crown counsel and the trial judge then had the
    following exchange:

[CROWN]:   Its a big part of all the circumstances, but its
    incorporated into the concept of what forthwith means. It is part of forthwith.

THE COURT:        Right.

[CROWN]:   Its not, it doesnt exist independent.

THE COURT:        But why, if its part of forthwith, then it
    does matter why they didnt call forthwith.

[38]

The trial judge instructed the Crown to remove the statement WHY THEY
    DIDNT CALL FORTHWITH DOESNT MATTER from the slide, explaining that as it
    is, its wrong. In context it might be entirely correct.

[39]

Crown counsel then addressed the jury. His address focused on the appellants
    obligation to call the police forthwith, with only passing references to the
    non-consent of the complainants:

At the moment  that the Lahaies did not comply with the duty
    to deliver Taylor and Reid to the police forthwith, at that moment they turned
    away from the required, they turned away from the duty and they lost the
    protection of the law. From that moment onwards any continued detention against
    their will was a forcible confinement. So, from the point of arrest, citizens
    arrest made properly, onwards lawful authority, lawful authority, lawful
    authority, until the point of forthwith and anytime after the point of
    forthwith you lose lawful authority and if the other element to the offence is
    satisfied, which it is in this case, you are guilty of the offence of unlawful
    confinement. Forthwith is a requirement that speaks to time. Did they call the
    police soon enough? The question isnt were their actions reasonable from start
    to finish.

[40]

Crown counsel took the position that the appellants were guilty on their
    own evidence, stating, Even if you disagree completely with everything that I
    have to say about the facts, even on the defence version of the facts, I put it
    to you, that Sylvain and Olga Lahaie are guilty of the offence of forcible
    [sic] confinement.

[41]

Crown counsel later told the jury:

Importantly, why [the appellants] didnt deliver Taylor and Reid
    forthwith doesnt matter.  [For] [t]he purpose of unlawful confinement  if
    you find that they [the appellants] did not deliver them [the complainants]
    forthwith then theyre guilty of the offence.

The trial judges instructions

[42]

The trial judge addressed the relevance of consent in his instructions
    to the jury, but only summarily. His focus was on the appellants obligation to
    contact the police.

[43]

The trial judge addressed the requirement of physical restraint as
    follows:

To intentionally confine another person is to physically
    restrain that person
contrary to his wishes
thereby depriving that person of his liberty to move from one place to another.
     It seems to me and it seems from the submissions given to you that there is
    little doubt that Mr. Reid and Mr. Taylor were confined. [Emphasis added.]

[44]

The trial judge then addressed the requirement of 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
.
    Again it is agreed that the person may bind someone for the purposes of safety,
    and the initial binding of Mr. Taylor and Mr. Reid, as part of the arrest was
    lawful. The question is did [the appellants] call the police as soon as
    reasonably possible or practicable
having regard to all of the prevailing circumstances
?
    [Emphasis added.]

Errors in the instructions

[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.

[47]

The trial judges instructions in this regard were inadequate. Although
    his brief mention of consent was accurate, he did not instruct the jury that it
    was for the Crown to prove a lack of consent beyond a reasonable doubt, nor did
    he review the evidence relevant to consent and relate it to this issue. Moreover,
    his instructions conflated the lawfulness of the complainants confinement with
    the lawfulness of their arrest, as the following passage indicates:

[A]ny 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
. Again it is
    agreed that the person may bind someone for the purposes of safety, and the
    initial binding of Mr. Taylor and Mr. Reid, as part of the arrest was lawful.
The question is did Mr. and Mrs. Lahaie call the police as soon
    as reasonably possible or practicable having regard to all of the prevailing circumstances
?
    And again you will consider all of the evidence, along with my comments on
    citizens arrest. Here it comes again, but its important. Do you accept the
    [Lahaies] evidence that they had a lawful authority to confine Mr. Taylor and
    Mr. Reid? If not, does it raise a reasonable doubt? If not, does the rest of
    the evidence persuade you beyond a reasonable doubt that they did not have a
    lawful authority? [Emphasis added.]

[48]

In this passage, the trial judge correctly states that any unnecessary
    further confinement is unlawful unless consented to by the complainant, but he
    countermands this instruction later in the same passage by stating that the
    lawfulness of the further confinement depended on whether the appellants called
    the police as soon as reasonably possible in the circumstances.

[49]

Whether

the appellants failed to call the police forthwith and
    whether the jury had a reasonable doubt about whether the complainants
    consented to their continued confinement were separate issues. The trial judge
    failed to make this clear for the jury; failed to instruct the jury adequately on
    consent; and failed to review the evidence and relate it to the consent issue. As
    a result, the jury may well have convicted the appellants despite having a
    reasonable doubt about consent.

[50]

The risk that this occurred was magnified by the trial judges failure
    to correct erroneous comments made by Crown counsel in his closing submissions.
    Counsel had by this point told the jury that [i]mportantly, why they didnt
    deliver Taylor and Reid forthwith doesnt matter  the comment the trial judge
    had required Crown counsel to remove from his PowerPoint slides  and stated that
    the appellants were guilty of the offence of unlawful confinement any time
    after they failed to call the police forthwith. Although Crown counsel made
    passing references to the complainants being held against their will (as set
    out previously), the clear thrust of his submissions would have left the jury
    with the impression that the appellants were guilty of unlawful confinement
    simply if they did not call the police forthwith. The problem is evident in the
    trial judges summary of the Crowns argument:

[T]he [Lahaies] are guilty of unlawful confinement because they
    failed in their duty to deliver Mr. Taylor and Mr. Reid to the police forthwith
    and, in fact, took no steps to do so for over five hours from the time they
    were detained. The clearest point of departure from their duty occurred when
    they called the parents and not the police.

[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 Crowns 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 Lahaies 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 Crowns assertion to the
    contrary and made it clear that it is the Crowns 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.

[54]

Although the trial judge provided a fair description of the issue of
    consent in summarizing Sylvain Lahaies position for the jury, this description
    appeared only in his summary of the defences position, and not in the trial
    judges own instruction on the law of consent. This was inadequate, given that
    counsel for Sylvain Lahaie expressly qualified his statements on the consent
    issue, describing them as subject to His Honours instructions on the point.

[55]

In summary, the consent of the complainants was a live issue on these
    facts. The combination of the erroneous statements in the Crowns closing submissions,
    the trial judges failure to correct them, and the errors in the trial judges 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.

CONCLUSION

[56]

I would allow the appeal, set aside the convictions, and order a new
    trial.

Released: November 14, 2019 (D.W.)

Grant Huscroft J.A.

I agree. David Watt J.A.

I agree. M. Jamal J.A.


