Accused appealed his conviction for assault, alleging reasons for conviction were insufficient. Accused submitted that trial judge’s reasons indicated that he convicted accused either on basis of “deemed assault” provisions of s. 38(2) of Criminal Code or on basis of physical struggle for control of vehicle. Accused submitted that reasons were insufficient to understand on what basis trial judge reached his decision. Accused submitted that if trial judge based conviction on basis of s. 38(2) of Code, he made error of law, and if he convicted accused on basis of struggle for car, verdict was unreasonable because only reasonable conclusion on evidence was that struggle was consensual. Appeal dismissed. There was no issue that accused intentionally applied force to complainant while attempting to leave with motor vehicle. There was no need to revert to deemed assault provisions of s. 38(2) of Criminal Code. Evidence clearly supported finding that application of force was not with consent of complainant. Accused decided to enforce his mother’s claim for disputed vehicle instead of choosing normal legal civil dispute resolution. Trial judge clearly rejected idea that what occurred was consensual fight: rather trial judge found father was simply taking steps to prevent accused from leaving with vehicle which was his right to do. Even legal owner of property cannot recover possession of chattel by using force.
R. v. Poitras (Sep. 5, 2013, Ont. S.C.J., M.Z. Charbonneau J., File No. C2833-2009) 108 W.C.B. (2d) 730.