The appellant, a high school student, appealed his conviction for assault arising from an incident where he attempted to retrieve his confiscated cell phone from a teacher.
The trial judge convicted the appellant by relying on section 38(2) of the Criminal Code, which deems a trespasser who persists in taking property to commit an assault without justification.
On appeal, the Superior Court of Justice held that section 38(2) is intended to restrict the availability of defences, not to create an independent offence.
The court found the trial judge erred in law by using section 38(2) as a sword rather than a shield, and by failing to properly analyze the elements of assault under section 265(1)(b).
The conviction was set aside and a new trial ordered.
