The offence of forcible confinement can sometimes arise in the context of domestic disputes. The principles relating to the offence of unlawful confinement can be summarized as follows:
(1) the act of the offence involves:
(a) an actual confinement whereby the complainant is prevented from moving from place to place as he or she wishes, or put another way, the complainant’s will to move is overridden by the accused,
(b) the confinement is without lawful authority, and,
(c) there is a lack of consent by the complainant to the confinement
(2) the mental aspect of the offence is the intention to confine or the intent to deprive the complainant of movement. Such intention can be explicitly expressed or it can be inferred from all of the accused’s actions and the circumstances of the case.
In order to succeed on this charge the prosecutor must prove each of these elements beyond a reasonable doubt.
With respect to the issue of (1) (a), actual confinement, there must be proof of external circumstances that amount to a confinement of the complainant, thereby depriving the complainant of his or her liberty to move from one place to another. The period of confinement, while unable to be definitively defined, must be “significant”, more than minimal but that brief periods of confinement can still qualify as confinement so long as there was a clear restriction of the person’s movements. It is also possible that the existence of initial liberty can in the individual circumstances of a case develop into a state of forcible confinement.
Furthermore, while “confinement” requires that there be some sort of physical restraint, such restraint need not be necessarily effected by physical means. The case law recognizes that the physical restraint required for “confinement” within the meaning of the section “may also be effected by non-physical or psychological means, such as by threats, intimidation or imposition of fear”, which may result from an unequal power dynamic between two persons
Lack of consent to the confinement is a requisite element of the offence As a result, it follows from this that consent is a defence to the charge under section 279(2). This is the case unless the consent obtained is obtained fraudulently or by deceit or if the victim did not have the capacity to consent, such as in the case of a child.