In R. v. Boudreau, 2023 ABCA 286, October 12, 2023 the Alberta Court of Appeal considered section 423(1)(d) of the Criminal Code, which reads in part:
Everyone is guilty of an … offence … who, wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing
(d) hides any tools, clothes or other property owned or used by that person, or deprives him or her of them or hinders him or her in the use of them…
The Court of Appeal described the elements of the offence in the following manner (at paragraphs 21 to 25):
This section was traditionally confined to industrial disputes and trade union activity but is now broadly applicable…Intimidation is a specific intent offence. It requires proof of what the accused did, the actus reus, and also the specific purpose the accused intended to achieve, the mens rea.
The trial judge accepted that Mr Boudreau took the complainant’s cellphone without her consent: the actus reus.
While the evidence suggests that Mr Boudreau’s initial intent in taking the cellphone was to read the complainant’s text message, the mens rea of intimidation was inferred from his conduct in keeping the cellphone from the complainant and using the false promise of its return to compel her to get into his car. The trial judge accepted the complainant’s evidence that she agreed to get into the car because Mr Boudreau told her he had her cellphone with him.
…on the facts determined by the trial judge here, the only reasonable inference that could be drawn from Mr Boudreau’s conduct in telling the complainant he had her cellphone when he arrived at the place she was staying, when in fact he did not have it with him, was to compel her to get into his car, something she had a lawful right to abstain from doing.