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New trial ordered for Caledon couple convicted of unlawfully confining thieves
The Ontario Court of Appeal is seen in Toronto on Monday, April 8, 2019. THE CANADIAN PRESS/Colin Perkel
Paola Loriggio, The Canadian Press
Published Friday, November 15, 2019 5:15AM EST
Ontario's top court has ordered a new trial for a Caledon, Ont., couple found guilty of unlawful confinement after they tied up two young men caught stealing from their property.
In a unanimous ruling released Thursday, the Court of Appeal says the trial judge made mistakes in his instruction to the jury in the citizen's arrest case.
The court says the judge failed to direct the jury on the issue of whether the two men consented to their prolonged confinement, as the couple alleged.
During the trial, court heard the two men were trying to steal stainless steel from the homeowners' yard for the third night in a row in August 2008 when they were caught in the act.
The two men testified that the couple confronted them with a gun, held them hostage, assaulted them and demanded money in exchange for not calling the police.
The couple denied those allegations and said that after they tied up the men with zip ties, the pair pleaded with them not to call police and offered to repay them for the previous thefts.
They testified the men asked that their parents be called instead, and agreed to stay bound until their relatives arrived. As a result, they argued, the men consented to their continued confinement.
Prosecutors argued at trial that while the citizens' arrest was initially legitimate, it became unlawful when the homeowners failed to call police as soon as reasonably possible, as required by law.
The appeal court noted that the trial judge referred to the issue of consent but said his instructions on the topic were “inadequate.” Instead, the appeal court said, the trial judge focused on the “wrong issue” - the couple's obligation to contact the police as soon as possible.
“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,” the three-judge panel said.
“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.”
Nor did the trial judge explain that it was up to the Crown to prove beyond a reasonable doubt that there was no consent, the appeal court said.
“As a result, the jury may well have convicted the appellants despite having a reasonable doubt about consent,” it said. “The convictions cannot stand.”