The charge of forcible confinement is not as simple as it seems

By Matthew Deshaye

It is a criminal offence to hold anyone against their will by using threats, coercion or force. If you do that you may be charged with forcible confinement.

This charge is often laid in connection with other offences such as sexual assault and robbery. It also can arise from domestic altercations where one partner alleges the other person did not allow them to leave a residence.

It is important to note that the charge of forcible confinement is different from the offence of kidnapping. In both cases, someone is held against their will. However, kidnapping involves transporting a person to another location. While kidnapping entails forcible confinement, forcible confinement can occur without kidnapping.

It is difficult to determine how often the charge of forcible confinement is laid. A 2022 report from Statistics Canada combines it with the offence of kidnapping, noting that a total of 3,763 people were charged with either crime that year.

However, a 2007 StatsCan report notes that while it is “not possible to distinguish between these two offences from the data reported by police services … information from adult criminal courts shows the vast majority (94 per cent) to be forcible confinement.”

The report adds that in 2007, “Canadian police services reported about 4,600 incidents of forcible confinement, accounting for just over one per cent of all violent crimes. Forcible confinement occurs much less often than many violent crimes, including assault, sexual assault and robbery, but is more common than both homicide and attempted murder.”

Examples of forcible confinement

While kidnapped charges are relatively rare, the offence of forcible confinement can apply to a broad range of circumstances. Common examples include:

• Forcing someone to stay in a residence by threatening harm if they try to leave.
• Locking the staff of a store into a room while robbing the business.
• Blocking the exits from a location to prevent someone from leaving.
• Refusing to allow someone to exit a vehicle by locking the doors or refusing to slow down so that they can safely open the door.

What does the Crown need to prove?

To obtain a conviction against you on the charge of forcible confinement, the Crown must show:

• The complainant was prevented from moving from one place to another.
• You intentionally confined the complainant.
• The complainant did not consent to the confinement and you knew or should have known they did not consent to the confinement.
• You had no legal authority to restrain the complainant.

Legal defences

Anyone charged with forcible confinement in Alberta needs to retain an experienced criminal lawyer. If convicted of forcible confinement, you face a 10-year maximum prison sentence if the charge is treated as an indictable offence.

The best defence will depend on the circumstances. Generally speaking, common defences would include:

• You are not the person who committed the offence. Your lawyer can challenge the Crown’s evidence that identified you as a suspect. Perhaps it can be shown the complainant is not credible or their memory of the alleged incident is questionable.
• The complainant was not actually confined. If someone claims you held them against their will but it can be shown that they had the option of leaving unharmed, your lawyer can argue that they were not truly confined.
• You did not intend to confine the complainant. Perhaps the accusation resulted from a misunderstanding or a misinterpretation of events.
• Your Charter rights were violated. The Canadian Charter of Rights and Freedoms protects everyone from unreasonable search and seizure. After examining the evidence against you and how it was obtained, your lawyer may conclude that investigators overstepped their limits in building their case. If they did, your lawyer can ask for the evidence to be excluded at trial.
• You had the legal authority, or justification to confine the complainant. This defence is very limited, in that it could be argued that restraining someone was the only way to stop them from damaging property or hurting themselves or others.

Keep in mind that in all criminal trials, the Crown must prove the elements of the crime beyond a reasonable doubt. If that high standard cannot be met, your lawyer may be able to secure a verdict in your favour.

Forcible confinement in Alberta

Various court judgments have dealt with legal issues involved with forcible confinement.

• According to a 2002 Alberta Court of Appeal judgment, “Physical restraint standing alone will satisfy the minimum intent to perform the act which constitutes the actus reus of unlawful confinement. Although the serious nature of the crime itself might be suggestive of the necessity of establishing an ‘ulterior intent’ over and above the minimal intent required for general intent offences, I am of the view that the minimal intent to effect deprivation of freedom of movement will suffice. A robber who instructs staff and customers to raise their hands as he empties the till does so in order to hold them captive. The minimal intent associated with unlawful confinement is to prevent the victim from leaving or from being removed. A temporary restraint will suffice if it is a purposeful detention.”
• In 2004, a man in Calgary was convicted of forcible confinement after he got into an argument with a woman and grabbed her keys to prevent her from leaving the residence. That confinement only lasted for “five to ten minutes” but the court ruled that was enough. According to court documents, “the complainant was prevented from leaving in view of the position of the accused, his size, and his strength. In fact, the accused agrees that by virtue of his size he could prevent the complainant from leaving.” The man was acquitted of assault arising from the same incident.
• In 2019, a Lethbridge court found a man guilty of domestic assault-related charges including forcible confinement. According to a news report, the man was charged with assault after he beat his girlfriend. Days later, he breached a no-contact order to stay away from the woman and “took her to an RV he had parked in a neighbouring town where he held her against her will. She was badly beaten and kicked while [he] was wearing steel-toed boots.” He faced a number of charges including kidnapping and assault causing bodily harm and pleaded guilty to lesser charges including unlawful confinement, assault and uttering threats.
• In 2023, four high school football players were charged with various crimes including sexual assault with a weapon and forcible confinement in a case involving a 16-year-old teammate. According to a 2024 news report, three were given peace bonds while charges against the fourth person were withdrawn in exchange for his participation in a diversion program involving extrajudicial sanctions.

Contact us for assistance

If you are charged or are being investigated for forcible confinement, do not give a statement to police until you have obtained legal counsel. The team at Dunn & Associates has years of experience with representing clients facing criminal charges. We will work tirelessly on your behalf as your case progresses through the judicial system. Contact us for a free consultation.